TMI Blog1976 (8) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... t necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence. The result is that we allow these appeals and set aside the judgment and order of the Karnataka High Court and direct it to decide the cases afresh on evidence on record, so as to determine the market value of the land acquired on the date of the notification under section 16 of the Bangalore Act. It will also decide the question, after affording parties opportunities to lead necessary evidence, whether the judgment, sought to be offered as additional evidence, could be admitted. Appeal allowed. - Civil Appeals Nos. 644-650/74 - - - Dated:- 16-8-1976 - RAY, A.N. , BEG, M. HAMEEDULLAH AND SINGH, JASWANT, JJ. For the Appellant : K. Sen, V.M. Tarkunde, H.B. Datar and R.B. Datar. For the Respondent: S. Rangaraj, M. Qamaruddin, P.N. Purl, S.K. Mehta, Mr. K.R. Naggrain, A.R. Somnath Iyer and S. Laxminarasu JUDGMENT BEG, J. Civil Appeals Nos. 644. to. 650 of 1974 are by special leave against the judgment of a Division Bench of the Karnataka High Court. The common and principal question of law which arises is: Do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of any locality, it shall be lawful for any person either generally or specially authorised by the Board in this behalf and for his servants and workmen, to do all such acts on or in respect of land in that locality as it would be lawful for an officer duly authorised by the Government to act under Section 4(2) of the Mysore Land Acquisition Act, 1894 and for his servants and workmen to do thereunder; and the provision contained in Section 5 of the said Act shall likewise be applicable in respect of damage caused by any o.f the acts first mentioned. (2) The publication of a declaration under section 18 shall be deemed to be the publication of a declaration under section 6 of the Mysore', Land Acquisition Act, 1894. (3) For the purposes of section 50(2) of the Mysore Land Acquisition Act, 1894 the Board shall be deemed to be the local authority concerned. (4) After the land vests in the Government under section 16 of the Mysore Land Acquisition Act, 1894 the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the Board agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the Board, and the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that a notification under Section 16 of the Mysore Act of 1903 could be equated with a notification under section 4 of the Acquisition Act was negatived by the provisions of Section 23 sub. s. (1) of the Mysore Act of 1903. It said (at p. 198): "Section 23 (1) of the Act states that upon the passing of a resolution by the Board that an improvement scheme under Section 14 is necessary, it would be lawful for any person authorised by the Board to enter upon the land carry out the several acts on the land in question as provid ed under section 4(2) of the Acquisition Act and the pro visions of section 5 of the Acquisition Act would likewise be applicable in respect of damage caused by any of the acts of servants or workmen of the Board". It, therefore, thought that what was sought to be achieved by notification under section 4(1) of the Acquisition Act was done by a resolution under section 14 of the Mysore Act. Taking the view that such a resolution could only be anterior to the publication of the notification under section 16, it equated the notification under section 16 of the Mysore Act with a notification under section 6 of the Acquisition Act. Thus, the Mysore. Full Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed modes in which they are to be carried out. Acquisition of land, as already observed, is a mere incident in the carrying out of those purposes. Section 26 of the Act gives, it the power to acquire land by agreement. Section 27 of the Act reproduced above, enables the procedure 'found in the Acquisition Act to be utilised except to the extent to which the procedure for compulsory acquisition in the Bangalore Act may differ from that contained in the Acquisition Act. Section 27 of the Bangalore Act gives certain "further provisions" indicated under four heads. Apparently. these are meant to displace corresponding actions under the Acquisition Act. We have to identify the corresponding provisions only for the purposes of applying Section 23(1) of the Acquisition Act. It is evident that the first of these additional provisions enables the Board of Trustees, by virtue of section 14, to undertake what could have been done under the Acquisition Act only after a notification under section 4(1 ) of the Acquisition Act. In other words, the deviation from the procedure laid down in the Acquisition Act is that, whereas the Agents of the Govt. could not undertake anything provided f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the Act, that the special procedure was meant to take the place of and to serve the same object as the general. The argument that an additional compliance with section 4(1) of-the Acquisition Act was necessary despite the special procedure in section 16 of the Act, which fulfils the same function, is also repelled by the correct view taken in M. Manicklal v. the State of Mysore (1967 (2) M.L.J.p.239) by the Mysore High court. The real question before us is whether the market value should be determined with reference to the date of notification under section 16 of the Act. As we find that the notification under section 18 has been actually equated, by the second additional provision contained in section 27 of the Bangalore Act, with a notification under section 6 of the Acquisition Act, so that it could not be also equated with any notification under section 4(1) of the Acquisition Act and, as we also find that the provisions of section 16 of the Bangalore Act and section 4(1) of the Acquisition Act show that the obvious intention behind and objects achieved by a notification under section 16 of the Act and one under section 4(1 ) of the Acquisition Act are identical, we thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of .the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so. (3 ) Where the acquisition is for a company, an officer of such company may be authorised by the appropriate Government or the Deputy Commissioner to exercise the powers conferred by sub-section (2). (4) The Officer authorised, under sub-section (2)or sub-section (3) shall complete his investigation and submit his report to the Deputy Commissioner within a period of three months (or within such longer period not exceeding six months in all as the Deputy Commissioner may allow), from the date of the publication of the notification under subsection (1). with his remarks to the appropriate Government along-with his report under sub-section (2) of section 5A". Section 16 of the Bangalore Act enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) by delivery of the same personally to the person required to be served or if such person is absent or cannot be found, to his agent, or if no agent can be found, then by leaving the same on the land or building; or (b) by leaving the same at the usual or last known place of abode or business of such person as aforesaid; or (c) by registered post addressed to the usual or last known place of abode or business of such person". It will be set that Section 16 of the Bangalore Act provides even more elaborately for the publication of the initial notice which is given in section 4(1) of the Acquisition Act so that any representations which the objectors may have to make may be considered by the Board itself under section 17 of the Bangalore Act. Thus, the object of the procedure provided by section 16 and section 17 seems to be to take the place of the notification under section 4(1) and the hearing of objections under section 5A of the Acquisition Act. Under the Bangalore Act, it is the Board itself which gives notices and considers objections to a scheme before communicating the scheme to the Govt. for sanction. It is true that the Board has not been specifically given the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uting the scheme as sanctioned, the Board shall not, without the previous sanction of the Government, proceed to execute. the scheme as altered. (c) If the scheme as altered involves the acquisition otherwise than by agreement, of any land other than that specified in the schedule accompanying the scheme under section 17(2)(e), the provisions of sections 16 and 17 an sub-section (1) shall apply to the part of the scheme so altered, in the same manner as if such altered part were the scheme". It will be seen that, but for the 1st additional provision, contained in section 27 of the Bangalore Act, perhaps it could be urged that the powers contained in section 4(2) of the Acquisition Act and the fight to damages, contained in section 5 of the Acquisition Act, do not apply at all to acquisition under the Act. Hence, this additional provision became necessary. We are not called upon to determine here at what stage, powers under section 4(2) of the Acquisition Act could or should reasonably be. exercised in a case falling under the provisions of the Bangalore Act. Nevertheless, we may mention that it would seem more reasonable to exercise the powers provided for by section 27(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its of the land between the time of the publication of the declaration under section 6 and the time of the Deputy Commissioner's taking possession of the: land. (2) In addition to the market-value of the land, as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition". Non-specification of a different principle or procedure in the Act, governing award of compensation under the Bangalore Act, far from indicating, as learned Judges of the High Court erroneously opined, that section 23(1) of the Acquisition was not applicable here at all, was one of the strongest arguments for holding that it is covered by the general provisions applied by section 27 of the Bangalore Act. An acquisition proceeding without providing for award of compensation on some principle is unthinkable. Such a situation would have invited an attack on the validity of the acquisition itself. But, as we have already observed, there is n` such challenge here. There was some argument on the meaning of the words "so far as they are applicable", used in section 27 of the Bangalore Act. These words cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ka High Court was that a judgment filed by the respondents claimants m Civil Appeals Nos. 644-650 of 1974, when they appealed to the Karnataka High Court against the' orders passed by a Civil Judge of Bangalore, on a reference made under the Acquisition Act, could be accepted as additional evidence under Order 41, Rule 27 C.P.C. on the ground that it. was relevant, evidence for the purpose of determining compensation of lands which were the subject matter of appeals before the High Court. The reasons given for admitting, at the appellate stage, a judgment of the High Court, which had not been filed before the Trial Court, were: firstly, that it was not available when the proceedings were pending in the Trial Court; and secondly, that lands dealt with by the judgment were adjacent to the lands the value of which needed determination, and that both sets of lands were acquired at different stages of what is known as the "layout scheme within the limits of Bhinnamangala village'. The High Court overruled the objection that the judgment admitted as additional evidence was not final inasmuch as an appeal against it was pending in this Court. We find that the High Court did not consider i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relating to facts in issue and investigated in different cases. The existence of a judgment would not prove the value of some piece of land not dealt within at all in the judgment admitted in evidence. Even slight differences in situation can, sometimes, cause considerable differences in value. We do not think it necessary to take so restrictive a view of the provisions of Sections 11 anti 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission. In Khaja Fizuddin v. State of Andhra Pradesh,( C.A. No. 176 of 1962) a bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case. The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the C.P.C. which require that an Appellate Courts should be satisfied that the additional evidence is required to enable them either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27, Order 41, of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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