Supreme Court of India
MAHESH DATIATRAY THIRTHKARversusSTATE OF MAHARASHTRA
- Citation
- 2009 INSC 314
- Decided
- 4 March 2009
- Disposal
- Appeal(s) allowed
- Bench
- TARUN CHATTERJEE
Holding
The Supreme Court set aside the High Court's judgment, restoring the Reference Court's enhanced compensation, holding that Article 136 permits interference where the High Court's findings are perverse and the appellant had discharged the burden of proving market value.
Summary
The appellant, Mahesh Dattatray Thirthkar, owned land acquired by the State of Maharashtra for a medium project. The Land Acquisition Officer initially awarded Rs.40,226 as compensation, which the Reference Court enhanced to Rs.83,000. The State appealed, and the High Court reduced the award back to Rs.40,226, finding the appellant's evidence inconsistent. The appellant challenged this decision by special leave, arguing that the High Court erred in its factual findings and that he had discharged the burden of proving the market value of the land. The Supreme Court held that under Article 136 it could intervene where the High Court’s findings were arbitrary, perverse, and caused a miscarriage of justice, and that the appellant had indeed proved the inadequacy of the original award. Consequently, the Court set aside the High Court judgment, restored the Reference Court’s enhanced compensation, and allowed the appeal.
Issues considered
- Whether the Supreme Court can examine and set aside the High Court's findings of fact under Article 136 of the Constitution when the High Court reversed the Reference Court's findings.
- Whether the appellant successfully discharged the burden of proving that the compensation awarded by the Land Acquisition Officer was inadequate, i.e., whether the evidence was sufficient and reliable.
Legislation cited
- Land Acquisition Act, 1894s. 11, s. 18(1), s. 23, s. 4, s. 51A, s. 6, s. 9
Subjects
Land acquisitionCompensationArticle 136Special leave petitionBurden of proofMarket valueWelfare legislationMiscarriage of justiceEvidence appraisal
Judgment
[2009) 3 S.C.R. 1122
~
A MAHESH DATIATRAY THIRTHKAR
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1526 of 2009)
MARCH 4, 2009
B
[TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.]
Constitution of India, 1950:
c Arlicle 136 - Exercise of power under- Scope of - Held:
Power thereunder is exercisable not only against judgment
of reversal on facts but also in cases of concurrent findings
offact - Supreme Courl would ordinarily not interfere with the
findings of fact arrived at by High Courl unless conclusions
D of High Courl are manifestly perverse or unsupporlable from
evidence on record - On facts, findings made by High Courl
were arbitrary causing serious miscarriage of justice as
against the claimant by denying him a just and reasonable
compensation for properly acquired from him by the State -
Therefore powers under Arl.136 is exercisable.
E
Land Acquisition Act, 1894:
Market value of acquired properly - Burden to prove -
Held: ts on the State that has acquired it for a parlicu/ar
F purpose - On facts, burden of proving inadequacy of the .\
amount successfully discharged by claimant - Onus then
sh(fted to State to adduce sufficient evidence to sustain the
award - State completely failed to discharge the burden -
Enhancement order by reference court restored - Evidence
- Burden to prove market value of property.
G
Compensation provision of the Act is in the nature of a
welfare stipulation - State government must be just and fair
to those whose land it acquires - It is not just and fair to
H 1122
MAHESH DATIATRAY THIRTHKAR v. STATE OF 1123
MAHARASHTRA
deprive the owner of any property without payment of its true A
market value, especially when the law provides that the same
shall be paid - Welfare legislation.
Evidence:
Burden of proof in civil cases - Held: Is that of balance B
of probability and not that of beyond reasonable doubt -
Minor inconsistencies in evidence cannot impeach the credit
of witness and reliability of its testimony.
Jurisdiction: c
First appeal jurisdiction - Held: High Court in exercise
of its first appeal jurisdiction is entitled to come to a different
findings of fact after considering the evidence.
The land belonging to appellant was acquired by the D
State Respondent. Land Acquisition officer passed an
award of compensation of Rs.40,2261- in favour of the
appellant. Reference Court increased the same to Rs.
830001-. State Government filed appeal before High Court.
High Court disbelieved the evidence and the witnesses E
produced by the appellant and set aside the order of
Reference court and restored the order of Land
~
Acquisition officer.
•
The questions which arose for consideration in the
F
present appeal were:
(1) Whether this court, in the exercise of its power
under Article 136 of the Constitution of India, would be
entitled to examine the findings of fact arrived at by the
High Court while reversing the findings of fact arrived at G
by the Reference Court and whether this Court in the
exercise of its power under Article 136 of the Constitution
of India is also entitled to set aside the findings of fact
arrived at by the High Court on the ground that the
judgment of the High Court was not a proper judgment H
1124 SUPREME COURT REPORTS [2009] 3 S.C.R ..
A of reversal, and
(2) Whether the evidence adduced by the appellant-
claimant to discharge his burden of proving that the
compensation awarded by the Land Acquisition Officer
was inadequate, thus justifying enhancement as ordered
B
by the Reference Court was sufficient and reliable.
Allowing the appeal, the Court
HELD: 1. The High Court, in the exercise of its first
c appeal jurisdiction, was entitled to come to a different
findings of fact after considering the evidence on record.
[Para 14] [1135-C]
2.1. The power under Article 136 of the Constitution
of India is exercisable not only against a judgment of
D reversal on facts but also in cases of concurrent findings
of fact and such powers are wide enough. This Court in
its discretion may grant leave to appeal from any
judgment, decree, determination, sentence or order in
any cause or matter passed or made by any court or
E tribunal in the territory of India which would be apparent
also in cases of judgment of reversal and affirmance in
civil proceed in gs. The scope of Article 136 of the
Cqnstitution of India cannot be different in civil or criminal
proceedings. It is also true that this Court while exercising
-
.....
F its power under Article 136 of the Constitution of India will
not readily interfere with the findings of fact given by the
High Court but it can interfere with such findings of fact
if the High Court acts perversely or otherwise improperly.
When the High Court has re-determined a fact in issue
G in a civil appeal, and erred in drawing inferences based
on presumptions, the Supreme Court can re-appreciate
the evidence to prevent further delay instead of
remanding the matter. [Paras 15 and 21] [1136-B; 1136-
G, H; 1137-A; 1138-H; 1139-A]
H
MAHESH DATIATRAY THIRTHKAR v. STATE OF 1125
·" ~
MAHARASHTRA
State of Madras v. A. Vaidyanatha Iyer AIR (1958) SC A
61; Himachal Pradesh Administration v. Shri Om Prakash
(1972) 1 SCC 249; Arunachalam v. P.S.R. Sadhanantham
& Anr. (1979) 2 SCC 297; State of UP. v. Babu/ Nath (1994)
6 SCC 29; Pattakka/ Kunhikoya (Dead) by LRs. v.
Thoopiyakkal koya & Anr. (2000) 2 SCC 185 and Mithi/esh B
Kumari & Anr. v. Prem Behari Khare (1989) 2 SCC 95, relied
on.
Dr. N.G. Dastane v. Mrs. S. Dastane (1975) 2 SCC 326)
- relied on.
c
2.2. The powers of this Court under Article 136 of the
Constitution of India are very wide. It is open to this Court
to interfere when the evidence adduced by the parties in
; support of their respective cases fall short of reliability
~ and acceptability and as such it is highly unsafe and D
improper to act upon it. If the appreciation of evidence
and finding is vitiated by any error of law of procedure
or found contrary to the principles of natural justice or
errors of record and misreading of the evidence, or where
the conclusions of the High Court are manifestly perverse E
and unsupportable from the evidence on record, or the
·~
appreciation of evidence and finding results in serious
miscarriage of justice or manifest illegality, the powers
under Article 136 is exercisable. [Para 22] [1139-C, D, E,
F] F
3.1. In the facts and circumstances of the present
case and evidence and materials, which was duly
considered by the Reference Court, the High Court was
not justified in interfering with the findings of the
Reference Court based on mere suggestions made by G
the State Respondent and setting aside its order. The
findings made by the High Court were arbitrary and
improper inasmuch as the High Court had failed to
consider the total lack of evidence adduced by the State
Respondent and disregarded the witnesses produced H
1126 SUPREME COURT REPORTS [2009] 3 S.C.R.
A before it without sufficient justification for doubting their
credibility. Such arbitrariness in findings caused serious
miscarriage of justice as against the appellant by denying
him a just and reasonable compensation for property
acquired from him by the State Respondent. Keeping this
B in mind, this court is inclined to reconsider evidence on
record in this appeal and assess the findings offact made
by the courts below. [Paras 24 and 26] [1140-F, G; 1141-
B]
3.2. It is a well-established proposition of law that the
C burden of proving the true market value of acquired
property is on the State that has acquired it for a particular
,purpose. It appears from the record that the State had
only produced a valuers' report of a government engineer
in order to substantiate its claim of market value, whereas
D the claimant has produced a valuation report and sale t
transaction from which it will appear that the claimant has
successfully proved the market value of the acquired
property as determined by the Reference Court.
Therefore, it can be legitimately concluded that the
E burden of proving inadequacy of the amount which lay
on the claimant was successfully discharged by him. The
report of the engineer engaged by the appellant to prove
the market value of the acquired property, is based on his
personal visit to the site of the acquired property, the map
F drawn by him after taking the measurements of the
acquired property and the valuation report made by him
after deducting the cost of depreciation. The valuer of the
appellant has also submitted a map as well as the cost
of depreciation report and the valuation report. He has
G also given details of the date of his visit to the said
property in 1985. Further, it is not disputed that he has
used the PWD practice and standard engineering norms
while deciding the value of the acquired property. All
these factors made the valuation of the expert valuer
H worthy of credence. Thus the appellant was able to show,
MAHESH DATTATRAYTHIRTHKAR v. STATE OF 1127
MAHARASHTRA
~ by the testimony and valuation report of the expert A
valuer, that the award of compensation passed by the
Land Acquisition Officer was inadequate. The onus
shifted on the Respondent to adduce sufficient evidence
to sustain the award. The State Respondent completely
failed to discharge this burden. High Court completely 8
overlooked the lack of evidence in support of the
contentions of the Respondent. [Paras 27, 28, 29 and 30]
[1141-C, D, E; 1141-G, H; 1142-A, C, D, E]
Land Acquisition Officer & Manda/ Revenue Officer v. V.
Narasaiah, (2001) 3 SCC 530 and Othayath Lekshmy Amma C
& Anr. v. Ne//achinkuniyil Govindan Nair & Ors. (1990) 3 SCC
37 4, relied on.
3.3. As regards the evidence of 'T' who claimed to
~ have purchased property in the vicinity of the acquired o
property, it is held that section 51A of the Act permits
acceptance of the certified copy of the sale transaction,
as produced by the witness even without examination of
the vendor or vendee. However, the use of the term "may"
in the said provision shows that there is discretion with E
the court to the extent of reliance to be placed on the
same. Such a sale deed is to be believed only if there is
" no contrary evidence to rebut its contents. Since the State
Respondent was unable to adduce any evidence to rebut
this sale deed, the same is considered to be it genuine.
F
[Para 31] (1142-H; 1143-A, B, C]
Cement Corpn. Of India Ltd. v. Purya & Ors. (2004) 8
sec 270, relied on.
4. Coming to the findings of the High Court regarding G
~ the inconsistency and infirmity in the testimony of the
witnesses produced by the appellant for examination, it
is emphasized that the burden of proof in civil cases is
that of "balance of probability" and not that of "beyond
reasonable doubt". Thus minor inconsistencies in H
1128 SUPREME COURT REPORTS [2009] 3 S.C.R.
A ~vidence are not relevant in civil cases in considering the
question of discharge of this burden. All inconsistencies
in evidence cannot impeach the credit of the witness and
hence reliability of its testimony. The High Court held that
there is inconsistency in the testimony of the father of the
B appellant and that of 'T' in so far as the distance between
the acquired property and the property purchased by 'T'
is concerned because the former witness claimed the
distance as 0.5 kms, while the latter stated that it was 1.5
to 2 kms. This inconsistency was insignificant since both
the statements go on to prove that the two properties
c were close to each other and are hardly contradictory.
The High Court overlooked the proximity of the acquired
property to a developed area. High Court set aside the
order of the Reference Court merely on grounds of minor
inconsistencies and technicalities. It seemed to have
D disregarded the fact that the compensation provision of '
the Act is in the nature of a welfare stipulation and thus
the State government must be just and fair to those
whose land it acquires. It is not just and fair to deprive
the owner of any property without payment of its true
E market value, especially when the law provides that the
same shall be paid. [Paras 32, 33 and 37] [1143-0, E; 1143-
G, H; 1144-A; 1145-C, D, E]
Sarjudas & Anr. v. State of Gujarat AIR (2000) SC 403;
F State of Rajasthan v. Netrapal & Ors. (2007) 4 SCC 45;
Rammi alias Rameshwar v. State of Madhya Pradesh (1999)
8 SCC 649; State of Kamataka v. Appa Balu lngale & Ors.
AIR 1993 SC 1126; Suresh Kumar v. Town Improvement
Trust, Bhopal AIR 1989 SC 1222 and Bhag Singh & Ors. v.
Union Territory of Chandigarh AIR 1985 SC 1576, relied on.
G
Case Law Reference:
AIR (1958) SC 61 relied on Para 15
(1972) 1 sec 249 relied on Para 16
H
MAHESH DATIATRAY THIRTHKAR v. STATE OF 1129
MAHARASHTRA
(1979) 2 sec 291 relied on Para 17 A
(1994) 6 sec 29 relied on Para 18
(2000) 2 sec 185 relied on Para 19
(1989) 2 sec 95 relied on Para 20 B
(1975) 2 sec 326) relied on Para 21
(2001) 3 sec 530 relied on Para 27
(1990) 3 sec 374 relied on Para 30
c
(2004) 8 sec 210 relied on Para 31
AIR (2000) SC 403 relied on Para 32
(2001) 4 sec 45 relied on Para 32
(1999) 8 sec 649 relied on Para 32 D
""
AIR 1993 SC 1126 relied on Para 36
AIR 1989 SC 1222 ·relied on Para 12
AIR 1985 SC 1576 relied on Para 12 E
CIVIL APPELLATE JURISDICTION: Criminal Appeal No.
1526 of 2009.
\
From the Judgment & Order dated 6.12.2004 of the High
Court of Bombay Bench at Aurangabad in First Appeal No. 875 F
of 2003.
Sudhanshu S. Choudhari and Naresh Kumar A.S.
Sukhtankas for the Appellants.
Sanjay V. Kharde and Asha G. Nair for the Respondents. G
i.
' ~
The Judgment of the Court was delivered by
TARUN CHATTERJEE, J. 1. Leave granted.
H
1130 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 2. This appeal has been filed by the appellant to challenge
the judgment and order dated 6th of December, 2004 passed
by the High Court of Judicature at Bombay, Bench at
Aur~ngabad in First Appeal No.875 of 2003 reversing the order
dated 27th of April, 1994 of the Reference Court, under Section
B 18 <1>f the Land Acquisition Act, 1894 (hereinafter referred to
as the 'Act') whereby the High Court had reduced the quantum
of compensation, as enhanced by the Reference Court from
Rs.83,000/- to Rs.40,226/-.
3. The relevant facts as arising from the case made out
C by tile parties, leading to filing of this appeal, and which will help
us in understanding the controversy involved, can be
summarized as follows.
The property in acquisition belonged to the appellant,
D bearing House No. 100/5 at village Deolali, Tai. & District
Osmanabad (hereinafter referred to as the 'acquired property'). •
The same was sought to be acquired by the State Respondent
for the Ruibhor Medium Project. On 10th of September, 1985,
the State Respondent issued a notification under section 4 of
E the Act regarding the need of the acquired property for
puq!>oses mentioned in the notification. This notification was
published on 16th of October, 1985. On 17th of March, 1986,
the State Respondent issued a notification under section 6 of
the .Act regarding the need of the acquired property for
F purposes mentioned therein. Thereafter, on 30th of March,
19818, the Land Acquisition Officer passed an award of
compensation under section 11 of the Act, granting an amount
of Rs.40,226/- as compensation to the appellant, the said
amount being inclusive of statutory benefits under Section 23
G of the Act.
4. Dissatisfied with the quantum of compensation awarded
to him, the appellant in 1991 filed a Reference case under
section 18 of the Act. On 27th of April, 1994, the learned Civil
Judge, Senior Division, Osmanabad, on hearing the parties,
H held that the compensation awarded by the Land Acquisition
MAHESH DATIATRAY THIRTHKAR v. STATE OF 1131
MAHARASHTRA [TARUN CHATIERJEE, J.]
Officer was inappropriate and, therefore, increased the same A
to Rs.83,000/-, in addition to Rs.5,000/- towards the loss and
..,
damages incurred by the appellant. He also awarded other
statutory benefits under Section 23 of the Act. Being aggrieved
by this order of the Reference Court, the State Respondent filed
an appeal before the Aurangabad Bench of the High Court of B
Bombay in December 1996. By the impugned Judgment dated
6th of December, 2004, the High Court had set aside the order
~ of the Reference Court and reduced the compensation in
respect of the acquired property from Rs.83,000/- to
Rs.40,226/- as granted by the Land Acquisition Officer.
c
5. For the purposes of deciding this appeal, it is pertinent
to note the grounds on which the High Court had set aside the
order of the Reference Court, so that the same is kept in
consideration while appreciating the contentions of both the
parties and finally adjudicating on the issues involved. D
~
6. The High Court was of the opinion that the evidence
produced by the appellants for proving their claim of inadequacy
of the compensation awarded was insufficient. The High Court
also held that the witnesses produced for examination by the E
appellant were inconsistent in their testimony, especially
Dattatraya Trimbakrao Tirthkar, father of the appellant, and
,. Ramchandra Shankarrao Baraskar, an engineer and also the
valuer in respect of the market value of the acquired property.
As per the High Court, the father of the appellant was unable
F
to show how the acquired property was mutated in the name
of the appellant, whether by partition or purchase by his
guardian. Further, the valuer was unable to say in his deposition
the date of his visit to the acquired property for the purpose of
valuation. The evidence on record adduced by the claimant was
G
also unsatisfactory, as he could not prove the factum of having
4 answered the notice under Section 9 of the Act and his claim
for Rs.7000/- for the vacant plot. Moreover, the third witness,
Tanaji Madhukar Kshirsagar, who claimed to have purchased
property in the vicinity of the acquired property, was unable to
H
1132 SUPREME COURT REPORTS (2009] 3 S.C.R.
A prove that the property purchased by him was adjacent to the
acquired property and that the transaction of its purchase could
be considered similar to the acquisition of land of the appellant.
Thus, the High Court was of the view that there was nothing to
support reliance on his testimony.
B 7. Given these findings, the High Court held that evidence
adduced by the appellant was unsatisfactory, on which the
Reference Court ought not to have placed reliance. The High
Court has even held that the deposition of the father and the
expert seems to be concocted merely in order to garner support
C for the claimant's case. Upon the aforesaid findings arrived at
by the High Court, it has set aside the order of the Reference
Court and held that the order of the Land Acquisition Officer
valuing the acquired property at Rs.40,226/- was just,
reasonable, proper and adequate.
D •
8. Feeling aggrieved by this judgment and order of the
High Court, the appellant has filed the present special leave
petition, which was heard by us on grant of leave in the
presence of the learned counsel for the parties.
E 9. The first question that arose for our consideration in this
appeal is whether the High Court was justified in reversing the
finding of fact arrived at by the Reference Court on
reappreciation of evidence under Article 136 of the
Constitution of India.
F
10. If the first question is answered in the affirmative, the
next issue is with respect to the sufficiency and reliability of
the evidence adduced by the appellant to discharge his
burden of proving that the compensation awarded by the Land
G Acquisition Officer was inadequate, thus justifying enhancement
as ordered by the Reference Court.
11. The learned counsel for the appellant submitted that
the impugned judgment and order of the High Court was passed
not after considering the fact that the appellant had proved
H
MAHESH DATTATRAY THIRTHKAR v. STATE OF 1133
MAHARASHTRA [TARUN CHATTERJEE, J.]
through examination of three witnesses and production of the A
sale deed of a sale transaction in the vicinity that he was legally
entitled to an enhanced compensation, and that the order of the
Reference Court was fully justified. Further, he contended that
the High Court had failed to consider the fact that the
Respondent was unable to produce for examination any B
witness or any other evidence to rebut any of the submissions
of the appellant. The contention of the learned counsel for the
appellant was also that the High Court did not give proper
weightage to the fact that the acquired property was situated
near Osmanabad Latur Road and that the Aurangabad Solapur c
Highway is just 3 k.m. from it, indicating that it was in an area
which was developed, lucrative from the point of view of further
development and hence capable of yielding a high price for the
owner on its sale. The learned counsel for the appellant has
brought to our notice the aforesaid factual situation of the
0
acquired property and then relying on the principles laid down
by this Court in Suresh Kumar v. Town Improvement Trust,
Bhopal [AIR 1989 SC 1222], submitted that "in order to
ascertain the market value of the land taking into consideration
the special value which ought to be attached to the special E
advantage possessed by the land; namely, its proximity to
develop urbanized area, the Court has to ascertain as best as
possible from the materials before it what a willing vendor might
reasonably expect to obtain from a willing purchaser, for the
land in that particular position and with that particular
potentiality. The value of the potentiality has to be determined F
on such materials as are available and without indulgence in
fits of imagination." According to the learned counsel for the
appellant, the High Court also ignored the ratio in Bhag Singh
& Ors. v. Union Territory of Chandigarh (AIR 1985 SC 1576)
in giving importance to technicalities in a matter of land G
acquisition by relying on minor inconsistencies in the testimony
of the witnesses. It was also the contention of the learned
counsel for the appellant that the claim of the State Respondent
regarding absence of permission from the gram panchayat for
.;
construction of the property cannot be accepted. This was H
1134 SUPREME COURT REPORTS (2009] 3 S.C.R.
A because the claimant had specifically deposed that such ..
permission was obtained. Further, this was evident from the fact
that the property was numbered as house no 100/5 by the gram "'
panchayat. There is nothing to suggest that no permission has
been obtained and the respondent has not examined anybody
B from the gram panchayat to substantiate its assertion. Further,
the learned counsel for the appellant contended that the High
Court was not justified in allowing the appeal in the first instance
merely on suggestions made by the respondents in cross-
--
examinations, when they had failed to derive any admissions
c on the basis of these suggestions. The learned counsel for the
appellant submitted that the High Court was not justified in
considering grounds that were not at all raised by the State
Respondent in the appeal before it. Lastly the learned counsel
for the appellant argued that judgment of the High Court was
not, therefore, at all a proper judgment of reversal.
D •
12. On the other hand, the learned counsel for the State
Respondent submitted that there was no documentary evidence
to prove that the appellant submitted a reply under section 9 of
the Act. Further, he contended that the Reference Court
E enhanced the award of compensation without considering the
true nature of the evidence, which was rightly set aside by the
High Court after properly considering the evidence brought in
f
by the appellant and the actual distance of the acquired
property from the developed organized area and the allegedly
F similar sale. On the issue of sufficiency of the evidence
adduced by the appellant, he submitted that the appellant could
not produce any material evidence in support of his claim for
enhanced compensation and the Reference Court was thus
wrong in placing reliance on the same. More specifically,
G according to the learned counsel for the State Respondent the
testimony of the expert, the father of the appellant and Tanaji
(who allegedly purchased proximate property) was fabricated
and hence unreliable. He contended that there was no evidence
to prove that the construction on the acquired property was
H done with the permission of the gram panchayat, as required.
.
MAHESH DATIATRAY THIRTHKAR v. STATE OF 1135
MAHARASHTRA [TARUN CHATIERJEE, J.]
,.
Learned counsel further contended that since the High Court A
had reversed the finding of the Reference Court after
considering the materials on record, it was not open for this
Court to interfere with the findings of fact under Article 136 of
the Constitution of India.
8
13. We have heard and considered all these contentions
of the learned counsel for the parties and also perused the
materials on record including the Judgment of the Reference
Court and also the impugned Judgment.
14. It is not in dispute that the High Court, in the exercise c
of its first appeal jurisdiction, was entitled to come to a different
findings of fact and after considering the evidence and materials
on record can come to a different conclusion based on such
consideration. Accordingly, we are of the view that in the event
~ we hold that this Court would not be permitted to interfere with D
the findings of fact arrived at by the High Court orr·consideration
of the materials on record, oral and documentary, in that case,
the question of going into the other aspects of the matter, which
was argued by the learned counsel for the parties, would not
arise at all. In this view of the matter, before we proceed further, E
we may take note of the fact that whether this court, in the
exercise of its power under Article 136 of the Constitution of
"' ' India, would be entitled to examine the findings of fact arrived
at by the High Court while reversing the findings of fact arrived
at by the Reference Court and whether this Court in the F
exercise of its power under Article 136 of the Constitution of
India is also entitled to set aside the findings of fact arrived at
by the High Court on the ground that the judgment of the High
Court was not a proper judgment of reversal. Accordingly, let
us first examine whether in the exercise of our power under
G
Article 136 of the Constitution of India, we can upset the
judgment of reversal on facts and come to a finding that on the
evidence already on record, the order of the Reference Court
was just, proper and adequate. Therefore, let us examine
whether this Court would be entitled to examine the findings of
H
1136 SUPREME COURT REPORTS (2009] 3 S.C.R.
..
A fa~t arrived at by the High Court on consideration of evidence
on record and the power to set aside the findings of the High ...
Court under Article 136 of the Constitution of India in the matter
of reversal of findings of fact.
15. It is not in dispute that power under Article 136 of the
8
Constitution of India is exercisable not only against a judgment
of reversal on facts but also in cases of concurrent findings of
fact and such powers are wide enough. This view was
expressed by this Court way back in the year 1958 in the case
of State of Madras v. A. Vaidyanatha Iyer (AIR 1958 SC 61 ).
C In Para 13 at page 64 of the aforesaid decision, this Court
observed as follows
"in Article 136 the use of the words 'Supreme Court may
in its discretion grant special leave to appeal from any
D judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal
in the territory of India' show that in criminal matters no
distinction can be made as a matter of construction
between a judgment of conviction or acquittal."
E
[Underlining is ours]
A reading of this observation of this Court, as quoted 1
herein above and considering the expressions used in Article
136 of the Constitution, it would not be difficult to understand
F that this Court in its discretion may grant leave to appeal from
any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the
territory of India which would be apparent also in cases of
judgment of reversal and affirmance in civil proceedings. It is
G true that the aforesaid observation was made by this Court while
dealing with a criminal case but the scope of Article 136 of the
Constitution of India cannot be different in civil or criminal
proceedings. It is also true that this Court while exercising its
power under Article 136 of the Constitution of India will not
H readily interfere with the findings of fact given by the High Court
MAHESH DATIATRAY THIRTHKAR v. STATE OF 1137
MAHARASHTRA [TARUN CHATIERJEE, J.]
...
but it can interfere with such findings of fact if the High Court A
acts perversely or otherwise improperly.
16. Again in Himacha/ Pradesh Administration v. Shri Om
Prakash ((1972) 1 SCC 249), this Court while considering its
power under Article 136 of the Constitution of India on the
B
question of interference with the findings of fact, observed as
follows:
~
"in appeals against acquittal by special leave under Article
136, this Court has undoubted power to interfere with the
findings of the fact, no distinction being made between c
judgments of acquittal and conviction though in the case
of acquittals it will not ordinarily interfere with the
appreciation of evidence or on findings of fact unless the
High Court "acts perversely or otherwise improperly."
... D
17. In Arunachalam v. P.S.R. Sadhanantham & Anr.
((1979) 2 SCC 297), this Court while agreeing with the views
expressed in the aforementioned decisions of this Court stated
thus:
"The power is plenary in the sense that there are no words E
in Article 136 itself qualifying that power. But, the very
1 nature of the power has led the court to set limits to itself
within which to exercise such power. It is now the well-
established practice of this Court to permit the invocation
it' of the power under Article 136 only in very exceptional F
circumstances, as when a question of law of general public
importance arises or a decision shocks the conscience
of the court. But within the restrictions imposed by itself,
this Court has the undoubted power to interfere with the
findings of fact making no distinction between judgments G
1 of acquittal and conviction, if the High Court, in arriving at
those findings, has "acted perversely or otherwise
improperly."
18. Again in State of U.P. v. Babu/ Nath ((1994) 6 SCC
H
1138 SUPREME COURT REPORTS (2009) 3 S.C.R.
A 29), this Court observed as follows:
"At the very outset we may mention that in an appeal under
Article 136 of the Constitution this Court does not normally
reappraise the evidence by itself and go into the question
of credibility of the witnesses and the assessment of the
B
evidence by the High Court is accepted by the Supreme
Court as final unless, of course, the appreciation of
evidence and finding is vitiated by any error of law of
procedure or found contrary to the principles of natural
justice, errors of record and misreading of the evidence,
c or where the conclusions of the High Court are manifestly
perverse and unsupportable from the evidence on record."
19. In Pattakkal Kunhikoya (Dead) by LRs. v.
Thoopiyakkal Kaya & Anr. (2000) 2 SCC 185) it was held that
D when an appeal arises under Article 136 of the Constitution of ,
India, "it is not the practice of the Supreme Court to
reappreciate the evidence for the purpose of examining
whether the findings of fact arrived at by the High Court and
the subordinate court is correct or not. Exception can only be
E taken in the event of serious miscarriag~ ofjustice or manifest
illegality but not otherwise."
20. In Mithilesh Kumari & Anr. v. Prem Behari Khare ~
(1989) 2 sec 95) this court has held that where findings of
F subordinate courts are shown to be "perverse or based on no
evidence or irrelevant evidence or there are material ..
.':regularities affecting the said findings or where the court feels
that justice has failed and the findings are likely to result in
unduly excessive hardship, the Supreme Court could not
decline to interfere merely on the ground that findings in
G question are findings of fact."
21. As noted herein earlier, this Court does not normally
reappreciate evidence under Article 136, but when the High
Court has redetermined a fact in issue in a civil appeal, and
H erred in drawing interferences based on presumptions. the
MAHESH DATIATRAYTHIRTHKAR v. STATE OF 1139
MAHARASHTRA [TARUN CHATIERJEE, J.]
Supreme Court can reappreciate the evidence to prevent A
further delay instead of remanding the matter (See : Dr.N.G.
Dastane v. Mrs.S. Dastane, (1975) 2 SCC 326L
22. From a close examination of the principles laid down
by this Court in the aforesaid series of decisions as referred
B
to herein above on the question of exercising power to interfere
~
with findings of fact by this Court under Article 136 of the
Constitution, the following principles, therefore, emerge:
The powers of this Court under Article 136 of the
Constitution of India are very wide. c
It is open to this Court to interfere with the findings
of fact given by the High Court if the High Court has
acted perversely or otherwis£J improperly.
When the evidence adduced by the parties in D
support of their respective cases fell short of
reliability and acceptability and as such it is highly
unsafe and improper to act upon it.
The appreciation of evidence and finding is vitiated E
by any error of law of procedure or found contrary
t to the principles of natural justice, errors of record
~' and misreading of the evidence, or where the
conclusions of the High Court are manifestly
perverse and unsupportable from the evidence on F
record.
The appreciation of evidence and finding results in
serious miscarriage of justice or manifest
illegality.
~
G
Where findings of subordinate courts are shown to
be "perverse or based on no evidence or iffelevant
evidence or there are material irregularities
affecting the said findings or where the court feels
that justice has failed and the findings are likely H
1140 SUPREME COURT REPORTS [2009) 3 S.C.R.
A to result in unduly excessive hardship.
When the High Court has redetermined a fact in
issue in a civil appeal, and erred in drawing
inferences based on presumptions.
B The judgment was not a proper judgment of
reversal.
•
(Underlining is ours)
23. Keeping the aforesaid position as enunciated and
C settled by the aforesaid series of decisions of this Court on the
question of the power of this Court to interfere with the findings
of fact on reversal in the exercise of our power under Article
136 of the Constitution of India, we shall now proceed to
examine the evidence as well as reasonings given by the
D Reference Court and the High Court and the materials on
record to find out whether the findings of fact arrived at by the
High Court while reversing the findings of fact arrived at by the
Reference Court had satisfied the basic principles as noted
herein earlier.
24. In our view, in the facts and circumstances of the
present case and evidence and materials before us, which was
duly considered by the Reference Court, the High Court was
not justified in interfering with the findings of the Reference Court
F based on mere suggestions made by the State Respondent
and setting aside its order. In our view, the findings made by
the High Court were arbitrary and improper inasmuch as the
High Court had failed to consider the total lack of evidence
adduced by the State Respondent and disregarded the
G witnesses produced before it without sufficient justification for
doubting their credibility. Such arbitrariness in findings has
caused serious miscarriage of justice as against the appellant
by denying him a just and reasonable compensation for
property acquired from him by the State Respondent.
H 25. The High Court upheld the contentions of the State
..
MAHESH DATIATRAY THIRTHKAR v. STATE OF 1141
MAHARASHTRA [TARUN CHATIERJEE, J.]
..
Respondent even though there was no evidence adduced by A
the State Respondent to support the same. Thus, its findings
are based on no evidence at all.
26. Keeping this in mind, we are inclined to reconsider
evidence on record in this appeal and assess the findings of
B
fact made by the courts below.
~ 27. We now turn to the issue of sufficiency of evidence
adduced by the appellant to prove its claim of enhancement of
compensation. It is a well-established proposition of law that
the burden of proving the true market value of acquired property c
is on the State that has acquired it for a particular purpose (See
Land Acquisition Officer & Manda/ Revenue Officer v. V.
Narasaiah, (2001) 3 SCC 530). It appears from the record that
the State had only produced a valuers' report of a government
-. engineer in order to substantiate its claim of market value, D
whereas the claimant has produced a valuation report and sale
transaction from which it will appear that the claimant has
successfully proved the market value of the acquired property
as determined by tl_)e Reference Court. Therefore, it can be
legitimately concluded that the burden of proving inadequacy
E
of the amount which lay on the claimant was successfully
, discharged by him.
28. In Special Land Acquisition Officer v. Sidappa
Omanna Tumari & Ors. (1995 Supp (2) SCC 168) it was held
that a report of an expert for establishing the market value can F
be acted upon by the Court if "relevant factual data or material
which constituted basis for the report is also produced and the
same is proved to be genuine and reliable and the method
adopted by the expert is found to be recognized and correct."
In this appeal, the report of the engineer engaged by the G
'
~.
appellant to prove the market value of the acquired property,
is based on his personal visit to the site of the acquired
property, the map drawn by him after taking the measurements
of the acquired property and the valuation report made by him
after deducting the cost of depreciation. The valuer of the H
1142 SUPREME COURT REPORTS [2009] 3 S.C.R.
A appellant has also submitted a map as well as the cost of
depreciation report and the valuation report. He has also given
details of the date of his visit to the said property in 1985.
Further, it is not disputed that he has used the PWD practice
and standard engineering norms while deciding the value of the
B acquired property. All these factors seem to make the valuation
of the expert valuer worthy of credence, as per the ratio of the
above-stated case. •
29. Given that the appellant has been able to show, by the
testimony and valuation report of the expert valuer, that the
C award of compensation passed by the Land Acquisition Officer
was inadequate, the onus now shifts on the Respondent to
adduce sufficient evidence to sustain the award, as was held
clearly in the case of Special Land Acquisition Officer v.
Sidappa Omanna Tumari (1995 Supp (2) SCC 168). We
D firmly feel that the State Respondent has completely failed to
discharge this burden. The Respondent has been unable to
produce any evidence at all to support its claim of sufficiency
of the award and the High Court judgment, leave alone the
question of having adduced sufficient evidence.
E
30. It is clear that the High Court has completely overlooked
the lack of evidence in support of the contentions of the
Respondent and the conclusion of the High Court is backed
only by assertions rather than by acceptable reasoning based
F on proper appreciation of evidence. This being the case, the
order of the High Court cannot be sustained, as held in the case
of Othayath Lekshmy Amma & Anr. v. Nellachinkuniyil
Govindan Nair& Ors. (1990) 3 SCC 374). We are thus inclined
to accept the contention of the appellant that the High Court has
relied merely on suggestions made by the State-Respondent
G in cross-examinations, when they have failed to derive any
admissions on the basis of these suggestions.
31. As regards the evidence of Mr. Tanaji, who claimed to
have purchased property in the vicinity of the acquired property,
H it is held that section 51A of the Act permits acceptance of the
MAHESH DATIATRAY THIRTHKAR v. STATE OF 1143
• MAHARASHTRA [TARUN CHATIERJEE, J.]
,j certified copy of the sale transaction, as produced by the A
witness in this case, even without examination of the vendor or
vendee. However, the use of the term "may" in the said
provision shows that there is discretion with the court to the
extent of reliance to be placed on the same. This has been
explicitly held in the case of Cement Corpn. of India Ltd. v. B
Purya & Ors. (2004) 8 SCC 270). This Court in the
abovenamed decision also held that such a sale deed is to be
-<
believed only if there is no contrary evidence to rebut its
contents. Given that the State Respondent has been unable to
adduce any evidence to rebut this sale deed, we are inclined c
to place reliance on the same and consider it genuine.
32. Coming to the findings of the High Court regarding the
inconsistency and infirmity in the testimony of the witnesses
produced by the appellant for examination, it is emphasized that
the burden of proof in civil cases is that of "balance of D
'I
probability" and not that of "beyond reasonable doubt". Thus
minor inconsistencies in evidence are not relevant in civil cases
in considering the question of discharge of this burden. This
principle has been reiterated by this Court in a number of
decisions namely Sarjudas & Anr. v. State of Gujarat (AIR 2000 E
SC 403) and State of Rajasthan v. Netrapal & Ors. ((2007) 4
sec 45). Further, all inconsistencies in evidence cannot
impeach the credit of the witness and hence reliability of its
" testimony. It has been held by this Court in Rammi alias
Rameshwarv. State of Madhya Pradesh ((1999) 8 SCC 649) F
that only contradictory statements would so affect the witnesses'
credit. We are of the opinion that the inconsistencies pointed
out by the High Court in the evidence adduced by the appellant
are only minor inconsistencies and do not warrant non-reliance
on the same. G
33. The High Court held that there is inconsistency in the
~
testimony of the father of the appellant and that of Mr. Tanaji in
so far as the distance between the acquired property and the
property purchased by Mr. Tanaji in Kajali is concerned
because the former witness claims the distance as 0.5 kms, H
1144 SUPREME COURT REPORTS [2009] 3 S.C.R.
..
A while the latter has stated that it is 1.5 to 2 kms. We are of the
opinion that this inconsistency is insignificant since both the
statements go on to prove that the two properties are close to
each other and are hardly contradictory.
34. Further, the inconsistency pointed out in the testimony
8 of the expert valuer is that he stated in the cross-examination
that it is necessary for valuation of the acquired property to
consider the type of material used in the construction of the
same and the place from which the materials were procured
and in the examination-in-chief, he agreed that he did not see
C any report regarding th1:i same. These statements are, however,
not contradictory. While it might be necessary for the valuer to
consider the abovementioned factors in the process of his
valuation, it is not necessary for him to rely on the report of
another person with regard to the same. He, being an expert
D in his field, can rely on his own knowledge, experience and
judgment to come to conclusions regarding these aspects of
the acquired property. Thus, the testimony of the expert valuer
is not rendered discredited on this ground.
E 35. The reasons given by the High Court· for setting aside
the order of the Reference Court were limited to inconsistency
and unreliability of the testimony of the witnesses produced by
the appellants and on the grounds that were clearly argued by
the State Respondent.
F 36. It appears that the High Court found doubts in the
evidence adduced by the appellants when none existed. Thus,
there is a patent error in rejecting the appellant's evidence. The
High Court sought "consistence in the evidence forsaking the
sense the evidence conveyed and the effect it produced."
G Such an approach renders the reasoning of the High Court
unsustainable, as held by this Court in State of Karnataka v.
Appa Batu lnga/e & Ors. (AIR 1993 SC 1126).
37. Finally, it is pertinent to note that the appellants have
correctly brought out the opinion of this Court in the case of
H Suresh Kumarv. Town Improvement Trust (Supra) and Bhag
MAHESH DATTATRAY THIRTHKAR v. STATE OF 1145
MAHARASHTRA [TARUN CHATIERJEE, J.]
Singh v. Union of India (Supra). The former case clearly lays A
down that proximity to develop urbanized area needs to be
necessarily considered, while deciding on the compensation
to be paid for acquisition of land, on the basis of evidence
available. The High Court seems to have ignored that based
on the evidence put forth before it by the appellant, the acquired B
property is situated near Osmanabad Latur Road and
Aurangabd Solapur Highway, and the Respondent has not
given any evidence to rebut this contention. Thus, the High
Court has overlooked the proximity of the acquired property to
a developed area. Further, while this Court clearly cautioned c
against taking up of "technical pleas to defeat a just claim to
enhanced compensation" under the Act in Bhag Singh v.
Union of India (supra), the High Court set aside the order of
the Reference Court merely on grounds of minor
inconsistencies and technicalities. It seemed to have 0
disregarded the fact that the compensation provision of the Act
is in the nature of a welfare stipulation and thus the State
government must be just and fair to those whose land it
acquires. It is not just and fair to deprive the owner of any
property without payment of its true market value, especially E
when the law provides that the same shall be paid.
38. Before parting with this judgment, we may also state
here that the entire compensation money given by the
Reference Court has been allowed to be withdrawn and
therefore, this is one of the aspects that should have been kept F
in mind.
39. For the reasons above-stated, we set aside the
impugned judgment of the High Court, thereby restoring the
judgment of the Reference Court awarding enhanced G
compensation to the appellant.
40. The appeal is accordingly allowed. There is no order
as to costs.
D.G. Appeal allowed. H
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