Mahesh Dattatray Thirthkar vs State Of Maharashtra

Mahesh Dattatray Thirthkar ...Appellant

Versus

State of Maharashtra ...Respondent

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

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 Aurangabad in

First Appeal No.875 of 2003 reversing the order dated 27th of

April, 1994 of the Reference Court, under Section 18 of 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/-.

2

3. The relevant facts as arising from the case made out by the

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,

bearing House No. 100/5 at village Deolali, Tal. & 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 the Act regarding the need of the acquired

property for purposes 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 purposes mentioned therein. Thereafter, on 30th

of March, 1988, 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 of the Act.

3

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, held that the

compensation awarded by the Land Acquisition Officer was

inappropriate and, therefore, increased the same 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

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.

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. 4

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

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 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 also unsatisfactory, as he could not prove the

factum of having 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 prove that the property purchased by

him was adjacent to the acquired property and that the 5

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.

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

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.

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.

9. The first question that arose for our consideration in this

appeal is whether the High Court was justified in reversing 6

the finding of fact arrived at by the Reference Court on

reappreciation of evidence under Article 136 of the

Constitution of India.

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

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

through examination of three witnesses and production of the

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 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 7

weightage to the fact that the acquired property was situated

near Osmanabad Latur Road and that the Aurangabad Solapur

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

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

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

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 8

& Ors. v. Union Territory of Chandigarh (AIR 1985 SC

1576) in giving importance to technicalities in a matter of land

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

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 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 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 9

learned counsel for the appellant argued that judgment of the

High Court was not, therefore, at all a proper judgment of

reversal.

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

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

by the appellant and the actual distance of the acquired

property from the developed organized area and the allegedly

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,

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 10

to prove that the construction on the acquired property was

done with the permission of the gram panchayat, as required.

Learned counsel further contended that since the High Court

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.

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 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

the findings of fact arrived at by the High Court on

consideration of the materials on record, oral and documentary,

in that case, the question of going into the other aspects of the 11

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, 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 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 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 fact 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.

12

15. It is not in dispute that power under Article 136 of the

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). 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 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."

[Underlining is ours]

A reading of this observation of this Court, as quoted

herein above and considering the expressions used in Article

136 of the Constitution, it would not be difficult to

understand 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 13

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 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 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.

16. Again in Himachal 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

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 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."

14 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 in Article 136 itself qualifying that power. But, the very 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 of the power under Article 136 only in very exceptional 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 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. Babul Nath ((1994) 6 SCC

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 evidence by the High Court is accepted by the Supreme 15

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, 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 Koya & Anr. ((2000) 2 SCC 185) it was

held that 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 taken in the event of serious

miscarriage of justice or manifest illegality but not

otherwise."

20. In Mithilesh Kumari & Anr. v. Prem Behari Khare

((1989) 2 SCC 95) this court has held that where findings

of subordinate courts are shown to be "perverse or based

on no evidence or irrelevant evidence or there are material

irregularities affecting the said findings or where the court

feels that justice has failed and the findings are likely to 16

result in unduly excessive hardship, the Supreme Court

could not decline to interfere merely on the ground that

findings in 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 erred in drawing interferences based on

presumptions, the Supreme Court can reappreciate the

evidence to prevent further delay instead of remanding

the matter (See : Dr.N.G. Dastane v. Mrs.S. Dastane,

(1975) 2 SCC 326).

22.From a close examination of the principles laid down by

this Court in the aforesaid series of decisions as referred

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:

7 The powers of this Court under Article 136 of the

Constitution of India are very wide.

17 7 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 otherwise

improperly.

7 When the evidence adduced by the parties in

support of their respective cases fell short of

reliability and acceptability and as such it is

highly unsafe and improper to act upon it.

7 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,

or where the conclusions of the High Court are

manifestly perverse and unsupportable from the

evidence on record.

7 The appreciation of evidence and finding results

in serious miscarriage of justice or manifest

illegality.

7 Where findings of subordinate courts are shown

to be "perverse or based on no evidence or 18

irrelevant evidence or there are material

irregularities affecting the said findings or where

the court feels that justice has failed and the

findings are likely to result in unduly excessive

hardship.

7 When the High Court has redetermined a fact in

issue in a civil appeal, and erred in drawing

interferences based on presumptions.

7 The judgment was not a proper judgment of

reversal.

(Underlining is ours)

23.Keeping the aforesaid position as enunciated and 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 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 19

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 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 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.

25.The High Court upheld the contentions of the State

Respondent even though there was no evidence adduced 20

by 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 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 is on the State that has acquired it for a particular

purpose (See Land Acquisition Officer & Mandal 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, 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 the

Reference Court. Therefore, it can be legitimately concluded 21

that the burden of proving inadequacy 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 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 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

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 22

deciding the value of the 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 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 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.

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 23

reasoning based 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 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, it is held that section 51A of the Act permits

acceptance of the certified copy of the sale transaction, as

produced by the 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. Purya & Ors.

((2004) 8 SCC 270). This Court in the abovenamed 24

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 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 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

SC 403) and State of Rajasthan v. Netrapal & Ors.

((2007) 4 SCC 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 Rameshwar v. State of Madhya 25

Pradesh ((1999) 8 SCC 649) 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.

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, 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 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 26

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 any report regarding the

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 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.

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.

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 27

evidence. The High Court sought "consistence in the

evidence forsaking the sense the evidence conveyed and

the effect it produced." Such an approach renders the

reasoning of the High Court unsustainable, as held by

this Court in State of Karnataka v. Appa Balu Ingale

& 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 Suresh Kumar v. Town Improvement Trust (Supra) and

Bhag Singh v. Union of India (Supra). The former case

clearly lays 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 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 against taking 28

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

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 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 in mind.

39.For the reasons above-stated, we set aside the impugned

judgment of the High Court, thereby restoring the 29

judgment of the Reference Court awarding enhanced

compensation to the appellant.

40.The appeal is accordingly allowed. There is no order as to

costs.

.......................J. [Tarun Chatterjee]

New Delhi .................. .....J. March 04, 2009 [V. S. Sirpurkar]