judgement:
Civil Appeal NOS.
64 65 of 1969.
(From the Judgment and Decree dated 1 12 61 of the Madhya Pradesh High Court in Misc.
First Appeal No. 43 of 1959).
section K. Gambhir for the appellant in CA 64 and Respondent in CA 65/69.
L. Sanghi, K. John and J. Sinha for the respondent in CA 64 and appellant in CA 65/69.
The Judgment of Jaswant Singh and R. section Pathak, JJ. was delivered by Jaswant Singh, J. A. P. Sen, J. gave a dissenting opinion.
JASWANT SINGH, J.
These two cross appeals by certificates of fitness granted by the High Court of Madhya Pradesh at Jabalpur are directed against the judgment and decree dated December l, 1961 of the said High Court dismissing the Misc.
(First) Appeal No. 42 of 1959 preferred by the appellant from the Award dated December 20, 1958 of the II Additional District Judge, Raigarh in Miscellaneous Judicial Case No. 59 of 1958 being a reference under section 18 of the Land Acquisition Act, made at the instance of the appellant in 13 817SCI/78 186 respect of the Award dated August 23, 1957 of the Land Acquisition officer, Raigarh.
The facts giving rise to these appeals are: on an undertaking given by him to pay full compensation with interest from the date of possession to the date of payment of compensation as provided in the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act ') the District Engineer, South Eastern Railway, Raigarh, took advance possession on January 17, 1957 of five plots of agricultural land admeasuring 3.38 acres and another plot of agricultural land admeasuring 0.14 acres adjoining the railway track situate in village Darogamuda, Tehsil and District Raigarh, a suburb of Raigarh belonging to respondents I and 2 respectively for doubling the railway line between Rourkela and Durg in the South Eastern Railway.
Subsequently Notification dated February 8, 1957 under section 4(1) of the Act for acquisition of the aforesaid plots of land was issued and published in the Government Gazette dated February 15, 1957.
This was followed on March 21, 1957 by a notification under section 6 of the, Act.
Although in the r statements filed by them under section 9(2) of the Act the respondents claimed compensation at the rate of Rs. 32,670/ per acre i.e. at the rate of /12/ per square foot on the ground that the plots of land in question had a great potential value as a building site and Rs. 500/ for improvements and Rs. 100/ as the value of one tree, the Special Land Acuisition officer, Raigarh by his award dated August 23, 1957 awarded compensation at the rate of Rs. 3,327/14/ per acre which roughly worked out at /1/6 per square foot on the basis of the statement of sales furnished by A.S.L.R. (L.A.) prepared by Jujhar Singh N.A.W.I. Not satisfied with the quantum of compensation, the respondents made an application to the Special Land Acquisition officer requesting him to refer the matter to the court under section 18 of the ;1 Act.
According to the request of the respondents, the Special Land .
Acquisition officer made the aforesaid references to the II Additional District Judge, Raigarh, who by his award dated December 20, 1958 enhanced the rate of compensation to /4/ per square foot and awarded Rs. 36,808/4/ and Rs. 1,524/8/ to respondents l and 2 respectively as compensation.
The Additional District Judge also allowed the solatium at the rate of 15% amounting to Rs. 5.521/4/ and Rs. 228/12/ to respondents 1 and 2 respectively.
Aggrieved by the said , Award of the II Additional District Judge, the appellant preferred an appeal to the High Court of Madhya Pradesh at Jabalpur which was registered as Miscellaneous (First) Appeal No. 43 of 1959.
In the said appeal, the respondents filed cross objections claiming enhancement of compensation by Rs. 84,518.39 P.
The High Court by its 187 judgment dated December 1, 1961 dismissed the aforesaid appeal preferred by the appellant but allowed the cross objections filed by the respondents holding the reasonable rate of compensation to be /8/per square foot.
Consequently respondent No. 1 was held entitled to Rs. 73,616 8 O as compensation and Rs. 11,042 8 0 as solatium and respondent No. 2 was held entitled to Rs. 3,049 0 0 as compensation and Rs. 457 8 O as solatium.
It is against this judgment of the High Court that the present appeals are directed.
Appearing for the appellant, Mr. Gambhir while admitting that in an appeal under Article 136 of the Constitution, the Court is only concerned with finding out whether the principles on the basis of which compensation has been computed for acquisition of land under the Act have been rightly applied or not and cannot re appraise the evidence, has urged that the Additional District Judge and the High Court have erred in treating the land in question which was primarily an agricultural land as abadi land overlooking that it had not been declared as such.
Mr. Sanghi has on the other hand urged that even according to the findings of the Additional District Judge, who made the spot inspection, as also of the High Court, it is abundantly clear that the land in question was Abadi land and has been rightly treated as such.
Mr. Sanghi has further urged that the said site has great potentialities as building site.
The question as to whether a land has potential value of a building site or not is primarily one of fact depending upon several factors such as its condition and situation, the user to which it is put or is reasonably capable of being put, its suitability for building purposes, its proximity to residential, commercial and industrial areas and educational, cultural or medical institutions, existing amenities like water, electricity and drainage and the possibility of their future extension, whether the nearby town is a developing, or a prospering town with prospects of development schemes and the presence or absence of pressure of building activity towards the land acquired or in the neighbourhood thereof.
the instant case, the fact that the land in question has a great potential value as a building site is evident not only from the observations made by the Special Land Acquisition officer himself in his aforesaid award to the effect that the land has assumed semi abadi site hut also from the following observations made in his judgment dated December 20, 1958 by the Additional District Judge who had the advantage of inspecting the site: "The land abuts Raigarh town.
It is within Municipal limits and the nazul perimeter extends upto it.
To the east of 188 the plot there are some kutcha buildings inhabited by respectable persons.
To the North is a Municipal road leading to the railway quarters to the west.
To the west beyond the railway quarters, there is further habitation` and the locality is called "Banglapara" within Municipal limits.
The plot did have a potential value as a building site and it is further supported by the fact that the plot has been used by the Railway authorities for construction of staff quarters thereon though the land was acquired for doubling the rail way line.
" It is also not disputed that the Special Land Acquisition officer did not lead any evidence worth the name to show the price of the comparable sites in question and remained content with the production only of the sale statement made by Jujhar Singh, N.A.W.I.
Now the sale statement consisted mostly of sales relating to the year 1951 which is not relevant for the question in hand.
Moreover, the sale statement by it self without examining either the vendors or the vendees or the persons attesting the sale deeds is not admissible in evidence and can not be relied upon.
The sale deed dated December 14, 1956 in favour of Dr. Das for 4,800 square feet of land out of contigious Khasra No. 256 in lieu of Rs. 2,000/ i.e., at approximately 6 1/2 annas per square foot (which has been relied upon by the Additional District Judge and the High Court) could be taken as a safe guide for determine nation of the compensation.
From the material adduced in the case, it appears that Raigarh is a growing town, that instead of utilising the land for doubling the railway track, the railway has built staff quarters thereon, that on three sides of the acquired land, there already existed pucca buildings and on the fourth side, there is a metalled road.
It is also in evidence that some lawyers have put up some constructions near the sites in question.
Taking all the facts into consideration.
it cannot be said that the basis on which the Additional District Judge and the High Court proceeded is wrong or that the quantum of compensation awarded by the High Court is in any way excessive or exorbitant.
As neither the interest nor compensation on account of severance was claimed in the High Court either by Dr. Harisingh Thakur or by Tikam Singh Thakur, we do not think they can justifiably put up claims in that behalf.
Mr. Sanghi appearing on their behalf has fairly stated that he would not like to press his cross appeal.
In the result, we do not find any merit in either of the aforesaid appeals.
W. would accordingly dismiss them with costs.
SEN J. I have had the advantage of reading the judgment by my learned brother Jaswant Singh.
Since the appeal involves an important 189 question affecting valuation which has been overlooked by the High Court, I would like to say a few words of my own.
Normally, this Court does not interfere in appeal with the valuation by the High Court in land acquisition cases, unless the judgment cannot be supported, as it stands, either by reason of a wrong application of principles or because some important point in evidence has been overlooked or mis applied: The Special Land Acquisition officer, Bangalore vs Adinarayan Setty(1).
With respect, I venture to say that the judgment of the High Court cannot be supported by reason of a wrong application of principles.
It overlooked the fact that there was no discernible basis on which the Additional District Judge could have changed the mode of valuation adopted by the Special Land Acquisition officer treating the land acquired to be agricultural land and in awarding compensation upon the basis as if it were a building site.
Indeed, there was no atempt on their part to determine the ' 'intrinsic character of the land", namely, whether the land acquired should be classified as agricultural land or not.
In the present case, the High Court obviously fell into an error in overlooking the, fact that the acquired land situate in village Darogamuda, admeasuring 3.52 acres, was, on the 8th February, 1957 i.e. On the date of the issue of the notification under section 4(1) of the Act, agricultural land.
It was recorded as a raiyati land belonging to the two claimants, Dr. Harisingh Thakur and his brother Vikram Singh Thakur who were ex gaontiyas of village Darogamuda.
The land was not recorded as abadi as wrongly assumed by the High Court.
Perhaps it was misled by the mis description of the land as abadi in the reference made by the Collector under section 18(1).
This is an admitted position between the parties.
In response to the notice of admissions and denials of documents served by the claimants, the Collector admitted panchsala khasra for the years 1952 53 to 1953 54 and kistbandi khatouni for the years 1952 53 and 1953 54.
The claimant Dr. Harisingh Thakur, AW1 admits during his crossexamination that till the month of December 1956, the lands were actually under his cultivation and he had reaped the crops before delivering possession of the same on the 17th January, 1957 to the District Engineer, South Eastern Railway.
He further admits that throughout the land was under cultivation i.e. from the time, of his forefathers.
In fact, Jujhar Singh NAW1, Assistant Superintendent Land Records, who was at the relevant time a Revenue Inspector, states that the,. land (1) [1959] Supp.
(1) S.C.R. 404.
190 acquired was a paddy field and was surrounded by agricultural lands.
That being so, the District Judge, was clearly wrong in treating the land to be abadi and calculating compensation on the footing of its being a building site.
In awarding compensation at a flat rate of Rs. 3,327.87 P. per acre, the Special Land Acquisition officer took notice of the fact that the land is situate in village Darogamuda, a suburb of Raigarh, which is a town of great commercial importance, though beyond its nazul perimeter.
He also took notice of the fact that the land abuts the railway track and there were agricultural fields on two sides.
On the other two sides, there existed kutcha hutments of backward classes and a few railway buildings.
The award of compensation at the rate of Rs. 3,327.87 P. per acre was based on average of sales of lands in recent years as prepared by Jujhar Singh, Revenue Inspector NAW 1.
The Special Land Acquisition officer accordingly observed: "The average value based on the above noted sales comes to Rs. 3,327/14/ per acre and in my opinion it truly re presents the average market value of lands in this predominantly agricultural locality which has assumed semi abadi site value due to the constructions of houses mostly by low class people besides a few buildings of Railway Department.
It is for this reason that the average value per acre comes to as much as Rs. 3,327/14/ per acre else the lands in question would have fetched lower price, available in respect of agricultural lands to which class they really belong and stand assessed as such till today.
" While it is no doubt true, as my learned brother Jaswant Singh has rightly observed, that the statement of average of sales, prepared by Jujhar Singh NAW 1, was not admissible in evidence unless the Collector proved the transactions in question, upon which it was based, there is no denying the fact that the acquired land was nothing but agricultural land and the mode of valuation had necessarily to be upon that basis.
Now, if the purpose for which the land was acquired, i.e., for the construction of staff quarters in connection with the doubling of the railway line by the South Eastern Railway, has no bearing on the question of valuation, the future possibilities of the land, which admittedly was agricultural land, lying in the vicinity of Raigarh if applied to the most lucrative use, having regard to its the then condition, was very little as a building site.
The land was lying undeveloped and undiverted.
Unless there was a development scheme, the land could not 191 be valued as a building site.
The land could, however, be put to that use if there was such development scheme.
At the time of the notification under section 4(1), there was no recent building activity near about the land, which was either under cultivation or lying desolate.
But as l have already said, the land could be put to a better use provided it was fully developed as a building site.
The claimants were, therefore, entitled to the evaluation of the land as agricultural land with an additional allowance being made for its future potentiality as a building site.
I just cannot imagine what could be the utility of the acquired land on a building site, looking to its proximity to the railway track.
It would, indeed, be very little.
In a reference under 9. 18 of the Act, the burden of proving that the amount of compensation awarded by the Collector is inadequate lies upon the claimant, and he must show affirmatively that the Collector had proceeded upon a wrong basis.
The nature and the burden of establishing that he was wrong, depend on the nature of the enquiry held by him.
When the proceedings before the Collector disclose that the award was not reasonably supported by the material before him, or when the basis was the application of a 'multiple ' which could not be justified on any rational ground, the burden can be discharged by a slight evidence.
But that is not the case here.
The claimants have led no trustworthy evidence.
It is equally well settled that where the claimant leads no evidence to show that the conclusions reached in the award were inadequate, or, that it offered unsatisfactory compensation, the award has to be confirmed.
Upon a compulsory acquisition of property, the owner is entitled to the value of the property in its actual condition, at the time of expropriation, with all its advantages and with all its possibilities, excluding any advantage due to the carrying out of the claim for the purpose for which the property is acquired.
In Vyricharla Narayana Gajapatjiraju vs Revenue Divisional Officer Vizagapatnam(1) the Privy Council state: "For the land is not to be valued merely by reference to the use to which it is being put at the time at which the value has to be determined. but also by reference to the uses to which it is reasonably capable of being put in the future.
It is possibilities of the land and not its realized possibilities that must be taken into consideration.
" The value of the acquired property, with all its possibilities has to be ll adjudged on the material on record.
(1) 66.
I.A. 104.
192 The market price must be fixed with reference to the date of the.
notification under section 4 irrespective of any trend, if any, for an increase in the value thereof.
The basis for determination of the market value of tel land within section 23 (1) (i) of the Act is the value of the land to the owner.
Only such transactions would be relevant which can fairly be said to afford a fair criterion of the value of the property as at the date of the notification.
That test is clearly not fulfilled in the present case.
Clause fifthly in section 24 interdicts the court from considering any prospective increase in value due to acquisition.
Market value of the land acquired has to be fixed with reference to the date of notification under section 4 (1) .
In Vyricharla Narayana Gajapatiraju vs Revenue Divisional Officer, Vizagapatam (supra) the Privy Council observed that where the owner is a person who could turn the potentiality of the land into account, it is immaterial that the utilization of the same potentiality is also the purpose for which the land is acquired.
The Underlying principle is that a speculative rise in price of land due to acquisition should not be an element which should enter into computation.
Sometimes the prices shown in sale deeds executed subsequent in point of time are not the actual prices paid.
The sales may be.
unreal and may not reflect the true value of the land.
There always elapses a certain interval between the time when the intention to acquire Ea certain land first becomes known and the actual notification under section 4(1) is issued.
Here though the notification under section 4(1) was issued on 8th February, 1957, but the claimants had, in fact, delivered the possession to the District Engineer, South Eastern Railway on the 17th January, 1957, and were indeed, as it appears from the evidence, aware of the fact that the land was being acquired by the South Eastern Railway much earlier, i.e., in December, 1956.
In view of this, the prospective rise in value, if any, has to be kept out of consideration.
the principles to determine the quantum of compensation are contained in section 23(1) of the Act.
The court in fixing the amount has to take into consideration the prevailing market value of the land at The date of the notification under section 4(1) and the said market value has to be determined by reference to the price which a willing seller might have reasonably expected for similar property from a willing purchaser.
The underlying principle of fixing the market value with reference to comparable sales is to reduce the element of speculation.
In a comparable sale, the features are: (i) it must be within a reasonable time of the date of notification under section 4.(1); (ii) it should be a bona fide transaction; (iii) it should be a sale of the land acquired or of the land adjacent to the acquired; and (iv) it should possess 193 similar advantages.
Before such instances of sales can be considered there must be material evidence either by the production of the sale deeds or by examining the parties to the deeds or persons having knowledge of the sales, to prove that the transactions are genuine.
In the light of these principles, the three sale deeds relied upon by the High Court, Ext.
P 14, Ext.
P 15 and Ext.
P 17, pertaining to the small portions of the acquired land executed by the claimants, could not obviously be the basis for the determination of the market value of the land.
These sale deeds had clearly been brought into existence by the claimants in quick succession, in an attempt to inflate the price of the land, after they became aware of the proposed acquisition.
Of these, the land covered by the sale deed Ext.
P 14, dated 14th December, 1956 executed by Tikam Singh Thakur, i.e., just a month before the delivery of the possession, shows a sale of a plot measuring 4,800 sq.ft.
to Dr. Dhirendra Chandra Das, AW 2, for a price of Rs. 2,000/ .
The rate works out to about 42P per sq.
It evidently could not afford a fair criterion of the value of the property on the date of the notification under section 4(1).
Dr. Das admits that he is in Railway service and when he purchased the land he knew that it was being acquired by the South Eastern Railway.
No doubt Dr. Das is a willing friend of Dr. Harisingh Thakur prepared to lend a helping hand but, by no stretch of imagination, could he be treated to be a willing purchaser.
in the true sense of the term.
Though Dr. Das asserts that he had purchased the land for building a house, he admits that he did not construct upon it because he would have been required to invest considerable money for levelling the land making it fit to be utilised as a building site.
This transaction indubitably does not appear to be a real sale and could not furnish any guide for determination of the true market value.
I am afraid, the other two sale deeds, Ext.
P 15 dated 19th December, 1956 and Ext.
P 17 dated 21st February, 1957 executed by Dr. Harisingh Thakur, by which he sold 300 sq.
Of the acquired land to Jhallu Dani, AW 13 for Rs. 150/ and 280 sq.
ft to Baido, AW 15, for Rs. 200/ were, in fact, fictitious sales effected by him after delivery of possession to the South Eastern Railway.
The transactions speak for themselves.
Indeed, Ext.
P 17 was executed by him after issue of the notification under s.4(1).
The first sale was effected by the claimants to show the price of the land to be 50P per sq.
They were evidently not satisfied by this and, therefore, brought the other sale deed into existence, a few days after the notification, showing the rate to be about 72P per sq.
It is needless to stress that such fictitious and unreal transactions which are but 194 speculative in nature could not be taken into account by the High Court at all.
In Raghubans Narain Singh vs The Uttar Pradesh Government (1) this Court quoted with approval the following passage from one of its earlier decision in N. B. Jeajabhoy vs The District Collector, Thana,(2) where it was said: "the question therefore turns upon the facts of each case.
In the context of building potentiality many questions will have to be asked and answered: whether there is pres sure on the land for building activity, whether the acquired land is suitable for building purpose, whether the extension of the said activity is towards the land acquired, what is the pace of the progress and how far the said activity has ex tended and within what time, whether buildings have been put up on the lands purchased for building purposes, what is the distance between the built in land and the land acquired and similar other questions will have to be answered.
It is the overall picture drawn on the said relevant circumstances that affords the solution.
" In Raghubans Narain Singh 's case (supra) there was evidence to the effect that there was a school building near the acquired land, that the land abutted on the road and that some houses had been built on the opposite side of the road.
It was nevertheless held by this Court that all this did not constitute evidence of building potentiality.
It was pointed out that there should be evidence, on the record, 'of building activity of a substantial nature, being carried on in the neighbourhood of the acquired land, at about the time when the notification was issued '.
There is complete absence of such evidence in this case.
It is beyond doubt that the acquired land was agricultural land, and had not been diverted for non agricultural purposes.
Indeed, the claimant, Dr. Harisingh Thakur had himself admitted the land to be agricultural land.
The land is on the outskirts of Raigarh town but that itself does not show that the land had a potential value for building purposes.
It was for the claimants to show that at the relevant time there was a tendency of the town to develop in that direction and that prior to the acquisition new buildings had been constructed in the neighbourhood.
Topography of the acquired land which abuts the railway track is given by Jujhar Singh, NAW 1, the then Revenue Inspector, who states that actually paddy used to be grown on the land.
To the north of this land, there was cultivation.
Beyond it, there was a 10 ft.
(1) [1967] I S.C.R. 489.
(2) C.A. Nos. 313 to 315 of 1965 decided on August 30, 1965.
195 broad pucca road.
About three furlongs way from the land was the house of Ambalal.
About one and a quarter miles away there was a skin godown.
In the east, there were small huts.
Beyond them, in the east, at a distance of about half a furlong, there was the house of Jairamvalji.
In the west, about a furlong away, there was an old bungalow.
At about the same distance, there is the burial ground.
In between and all around, there were agricultural fields.
That is the total evidence of the case.
On this evidence it cannot be said that valuation should be made on the basis of the potentiality of the land as building site.
In the absence of comparable sales, the only other alternative to adopt is the capitalised value.
Compensation in respect of the agricultural land should be allowed on the basis of 20 years ' purchase.
The capitalisation basis cannot, however, be accepted in a case where, as in the instant case there is no evidence of the profits yielded from the land.
I would, therefore, for these reasons allow the appeal of the State of Madhya Pradesh.
It is with reluctance that I have written this separate opinion.
There has never been a public undertaking in this country Governmental, Municipal, city or industrial, but that the land holder has generally secured anything from four to forty times as much for the land as its agricultural price, i.e., many times its real value.
This result unfortunately springs from a general tendency of District Judges in hearing a reference under s.18 of the Land Acquisition Act, 1894, to assume that purely agricultural lands, merely by their proximity to a city or town, become endowed with 'special adaptability ' as a building site.
While it is not suggested that unfairly low value should be offered, on the other hand the temptation to over generosity must be equally resisted.
Such generosity at the public expense reacts against the development and against the prosperity of the country and imposes an unnecessary burden on the taxpayer.
Per Curiam In accordance with the opinion of the majority, the appeals are dismissed with casts.
N.V.K. Appeals dismissed.

summary/full:
Agricultural land belonging to the respondents was acquired by the railways for doubling the railway line, compensation payable for the acquired land was fixed at Re. 1/6 per sq.
But the respondent claimed Re. /12/ per sq.
On the ground that the land had a great potential value as a building site.
On reference the Additional District Judge enhanced the rate of compensation to Re. /41 per sq.
and allowed solatium at 15%.
On appeal the High Court enhanced the compensation to Re.
/8/ per sq.
on further appeal to this Court it was contended on behalf of the appellants that the courts below had erred in treating the land, which was primarily agricultural land, as abadi land overlooking that it had not been declared as such.
[Per Jaswant Singh & Pathak, J. Sen, J. dissenting] Dismissing the appeals.
^ HELD: (1) Taking all the facts into consideration it cannot be said that the basis on which the Additional District Judge and the High Court proceeded was wrong or that the quantum of compensation awarded by the High Court was in any way excessive or exorbitant.
[188 F] (2) The question as to whether a land has potential value as a building site or not is primarily one of fact depending upon several factors such as its condition and situation, the user to which it is put or is reasonably capable of being put, its suitability for building purposes, its proximity to residential, commercial and industrial areas and educational, cultural or medical institutions, existing amenities like water, electricity and drainage and the possibility of their future extension, whether the nearby town is a developing or a prospering town with prospects of development schemes and the presence or absence of pressure of building activity towards the land acquired or in the neighbourhood thereof.
[ 87F F] (3) In the instant case it was clear from the observations of the Special Land Acquisition officer and the Addl.
District Judge that the land had great potential value as a building site.
Moreover the Spl.
Land Acquisition officer did not lead any evidence worth the name to show the price of comparable sites but remained content with the production only of the sale statement prepared by the Revenue Inspector.
The sale statement consisted mostly of sales relating to the year 1951 which is not relevant to the question on hand.
Without examining the vendors or vendees, the sale statement was not admissible in evidence and could not be relied upon.
From the material on record it was clear that Raigarh was a growing town.
Instead of utilising the land for doubling the railway track 184 the railway had built staff quarters.
On three sides of the land there were pucca buildings and on the fourth side there was a metalled road.
[187G H 188C D. [Per Sen, J.(dissenting)] 1.
Upon compulsory acquisition of property, the owner is entitled to the value of the property in its actual condition at the time of expropriation with all its advantages and with all its possibilities, excluding any advantage due to the carrying out of the claim for the purpose for which the property is acquired.
The value of the acquired property with all its possibilities had to be adjudged on the material on record.
[191 F, H] Vyricharla Narayana Gajapatiraju vs Revenue Divisional officer, Vizagapatnam, 66 IA 104, followed.
The market price must be fixed with reference to the date of the notification under section 4 irrespective of any trend, for an increase to the value thereof.
The basis for determination of the market value of the land within section 23(1)(i) of the Act is the value of the land to the owner.
Only such transactions would be relevant which can fairly be said to afford a fair criterion of the value of the ,, property as at the date of the notification.
That test is clearly not fulfilled in l? the present case[192A B] 3.
In a reference under section 18 of the Act the burden of providing that the amount of compensation awarded by the Collector is inadequate lies upon the claimant, and he must show affirmatively that the Collector had proceeded upon a wrong basis.
The nature and the burden of establishing that he was wrong, depend on the nature of the enquiry held by him.
When the proceedings before the Collector disclose that the award was not reasonably supported by the material before him or when the basis was the application of a "multiple" which could not be justified on any rational ground, the burden can be discharged by a slight evidence.
But that is not the case here.
[191C D] 4.
In the present case the High Court fell into an error in overlooking the fact that the acquired land was agricultural land.
It was recorded as a raiyati land.
The land was not recorded as abadi as wrongly assumed by the High Court.
The claimants admitted that the land was actually under cultivation.
The Revenue Inspector stated that the land was a paddy field and was surrounded by agricultural lands.
That being so the District Judge was clearly wrong in treating the land to be abadi and calculating compensation on the footing of its being a building site.
[189E 190A] 5.
Secondly, the land was lying undeveloped and undiverted.
Unless there was a development scheme the land could not be valued as a building site.
At the time of the notification under section 4(1) there was no recent building activity near about the land.
The land could be put to better use provided it was fully developed as a building site.
The claimants were therefore entitled to the valuation of the land as agricultural land with an additional allowance for its future potentiality as a building site.
[190H 191B] 6.
In fixing the amount of compensation the court has to take into consideration the prevailing market value of the land at the date of the notification unders.
4(1) and such market value has to be determined by reference to the price which a willing seller might have reasonably expected for similar property from 1 a willing purchaser.
In a comparable sale the features are: (1) it must be 185 within a reasonable time of the date of notification under section 4(1), (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or of the land adjacent to the land acquired and (4) it should possess similar advantages.
[92G 193A] 7.
In the instant case the sale deeds relied upon by the High Court could not obviously be the basis for the determination of the market value of the land.
These sale deeds had clearly been brought into existence by the claimants in quick succession in an attempt to inflate.
the price of the land after they became aware of the proposed acquisition.
The transactions which were examined by the High Court were apparently fictitious and unreal and are speculative in nature and could not be taken into account at all.
[193B C, 193H 194A] 8.
On the evidence produced it could not be said that valuation should be made on the basis of potentiality of the land as building site.
There is complete absence of evidence of building activity of a substantial nature being carried on in the neighbourhood of the acquired land at about the time when the notification was issued.
The claimants themselves did admit that the land was agricultural land.
[195B, 194F C] Raghubans Narain Singh vs The U.P. Govt.
, ; N. B. Jeejabhoy vs The District Collector, Thana, C.A. Nos. 313 to 315 of 1965 decided on Aug 1965: referred to.
In the absence of comparable sales, the only other alternative to adopt is the capitalised value.
Compensation in respect of the agricultural land should be allowed on the basis of 20 years ' purchases.
The capitalisation basis cannot, however, be accepted in a case where there is no evidence of the profits yielded from the land.
[195C]


judgement:
N: Criminal Appeal No. 194 of 1977.
(Appeal from the Judgment and order dated 30 8 76 of the Orissa High Court in Criminal Revision No. 88/76).
Soli J. Sorabjee, Addl.
Gen. and E. C. Agarwala and Girish Chandra for the appellant.
Gobinda Mukhoty and N. R. Chowdhary for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal is directed against the judgment dated 30th August, 1976 of the High Court of Orissa by which the High Court has upheld the order of the Special Judge, Puri discharging respondents No. 1 and 2.
The facts of the case lie within a narrow compass and centre round an alleged conspiracy said to have been entered into between respondents No. 1 and 2 in order to commit offences under sections 5(2) and 5(1)(d) of the Prevention of Corruption Act (hereinafter referred to as the Act) read with section 120 B I.P.C.
The main charge against the respondents was that between 19 2 1972 to 30 3 1972 the respondent entered into an agreement For the purpose of obtaining pecuniary advantage for respondent No. 1 P. K. Samal and in pursuance of the said conspiracy the second respondent Debi Prasad Jena, who was the Land Acquisition officer aided and abetted the first respondent in getting a huge sum of money for a land acquired by the Government which in fact belonged to the Government itself and respondent No. 1 was a skew thereof.
It is averred in the chargesheet that respondent No. 1 by abusing his official position concealed the fact that the land which was the subject matter of acquisition and was situated in Cuttack Cantonment was really Khasmahal land belonging to the Government and having made it appear that he was the undisputed owner of the same, got a compensation of Rs. 4,18,642.55.
The charge sheet contains a number of circumstances from which the inference of the conspiracy is sought to be drawn by the police.
After the charge sheet was submitted before the Special Judge, the prosecution ousted him to frame a charge against the respondents.
The Special Judge, Puri after having gone through the charge sheet and statements made by the witnesses before the police as also other documents came to the conclusion that there was no sufficient ground for framing a charge against the respondents and he accordingly discharged them under section 227 of the Code of Criminal Procedure, 1973 hereinafter called the Code).
The Special Judge has given cogent reasons 231 for passing the order of discharge.
The appellant went up to the High Court in revision against the order of the Special Judge refusing to frame the charge, but the High Court dismissed the revision petition filed by the appellant and maintained the order of discharge passed by the Special Judge.
Thereafter the appellant moved this Court by ar, application for special leave which having been granted to the appellant, the appeal is now set for hearing before us.
The short point which arises for determination in this case is the scope and ambit of an order of discharge to be passed by a Special Judge under section 227 of the Code.
The appeal does not raise any new question of law and there have been several authorities of the High Courts as also of this Court on the various aspects and grounds on which an accused person can be discharged, but as section 227 of the Code is a new section and at the time when the application for special leave was filed, there was no direct decision of this Court on the interpretation of section 227 of the Code, the matter was thought fit to be given due consideration by this Court.
We might, state, to begin with, that so far as the present case (offences committed under the Prevention of Corruption Act) is concerned it is regulated by the procedure laid down by the Criminal Law Amendment Act under which the police has to submit, charge sheet directly to the Special Judge and the question of commitment to the Court of Session does not arise, but the Sessions Judge has nevertheless to follow the procedure prescribed for trial of sessions cases and the consideration governing the interpretation of section 227 of the Code apply mutatis mutandis to these proceedings after the charge sheet is submitted before the Special Judge.
Before interpreting and analysing the provisions of section 227 of the Code so far as pure sessions trials are concerned, two important facts may be mentioned.
In the first place, the Code has introduced substantial and far reaching changes in the Code of 1898 as amended in 1955 in order to cut out delays and simplify the procedure, has dispersed with the procedure for commitment enquiries referred to m section 206 to 213 of the Code, of 1898 and has made commitment more or less a legal formality.
Under the previous Code of 1898 the Magistrate was enjoined to take evidence of the prosecution witnesses after giving opportunity to the accused to cross examine the witnesses 2nd was then required to hear the parties and to commit the acceded to the Court of Session unless he chose to act under section 209 and found that there was no sufficient ground for committing the accused person for trial.
Under the Code the Committing Magistrate has been authorised to peruse the evidence and the documents produced by the 232 police and commit the case straightaway to the Sessions Court if the case is one which is exclusively triable by the Sessions Court.
Thus, it would appear that the legislature while dispensing with the procedure for commitment enquiry under the Code of 1898 has conferred a dual responsibility on the Trial Judge who has first to examine the case on the basis of the statement of witnesses recorded by the police and the documents filed with a view to find out whether a prima facie case for trial has been made out and then if such a case is made out to proceed to try the same.
In our view the legislature has adopted this course in order to avoid frivolous prosecutions and prevent the accused from being tried of an offence on materials which do not furnish a reasonable probability of conviction.
In the instant case, as the offences alleged to have been committed by the respondents fall within the provisions of the Act, the Special Judge has been substituted for the Sessions Judge, the procedure of the Sessions Court having been applied fully to the trial of such cases.
Thus, it is manifest that the accused has not only one opportunity and that too before the Sessions Judge for showing that no case for trial had been made out.
This was obviously done to expedite the disposal of the criminal cases.
Secondly, it would appear that under section 209 of the Code of 1898 the question of discharge was to be considered by a Magistrate.
This power has now been entrusted to a senior Judge, namely, the Sessions Judge who is to conduct the trial himself and who has to decide before commencing the trial as to whether or not charges should be framed in a particular case against the respondents The discretion, therefore, is to be exercised by a senior and more experienced Judge so as to exclude any abuse of power.
In this view of the matter, it is manifest that if the Sessions Judge exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or by this Court.
Section 227 of the Code runs thus: "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
" The words 'not sufficient ground for proceeding against the accused ' clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial 233 has been made out by the prosecution.
In assessing this fact, it is not A necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts.
At the stage of section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused.
The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.
: The scope of section 227 of the Code was considered by a recent decision of this Court in the case of State of Bihar vs Ramesh Singh(1) where Untwalia, J. speaking for the Court observed as follows: "Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial.
But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.
The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved.
But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not.
If the evidence which the Prosecutor pro poses to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebut ted by the defence evidence; if any, cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial".
This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of ths Sessions Judge in order to frame a charge against the accused.
Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out.
(1) [1978]1 S.C.R. 287.
16 817 SCI/78 234 In the case of K. P. Raghavan and Anr.
vs M. H. Abbas and Anr.(1) this Court observed as follows: "No doubt a Magistrate enquiring into a case under section 209, Cr.
P.C. is not to act as a mere Post office and has to come to a conclusion whether the case before him is fit for 8 commitment of the accused to the Court of Session".
To the same effect is the later decision of this Court in the case of Almohan Das and ors.
vs State of West Bengal(2) where Shah, J. speaking for the Court observed as follows: "A Magistrate holding an enquiry is not intended to act merely as a recording machine.
He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment; and not whether there is sufficient evidence for conviction.
If there is no prima facie evidence or the evidence is totally unworthy of credit; it is the duty to discharge the accused: if there is some evidence on which a conviction may reasonably be based, he must commit the case".
In the aforesaid case this Court was considering the scope and ambit of section 209 of the Code of 1898.
Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application.
By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while (1) A.I.R. 1967 S.C. 740.
(2) 235 giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on.
This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
We shall now apply the principles enunciated above to the present case in order to find out whether or not the courts below were legally justified in discharging the respondents.
Respondent No. 1 was a Joint Secretary in the Ministry of Information and Broadcasting from April, 1966 to January, 1969.
Later he worked as Joint Secretary in the Ministry of Foreign Trade till 12 11 1971.
Thereafter, respondent No. 1 was working as Joint Secretary, Ministry of Education and Social Welfare.
The second respondent worked as Land Acquisition officer in the Collectorate, Orissa from February 1972 to 18th August, 1973.
In the year 1969 the All India Radio authorities were desirous of having a piece of land for construction of quarters for their staff posted at Cuttack.
In this connection, the said authorities approached respondent No. 1 who had a land along with structure in the Cantonment at Cuttack.
As the All India Radio authorities found this land suitable, they approached respondent No. 1 through his mother for selling the land to them by private negotiation.
As this did not materialise, the All India Radio authorities moved the Collector of Cuttack to assess the price of the land and get it acquired.
Accordingly, the Tehsildar of the area directed the Revenue officer, Cuttack; to fix the valuation of the land of respondent No. 1.
The Revenue officer reported back that the land belonged to respondent No. 1 and was his private land and its value would be fixed at Rs. 3000 per guntha.
It is common ground that the land in question was situated in Cuttack Cantonment and was a Khasmahal land which was first leased out to one Mr. Boument as far back as 1 9 1943 for a period of 30 years.
The lease was given for building purposes.
In 1954.
Mrs. Boument who inherited the property after her husband 's death transferred the 236 land to respondent No. 1 with the consent of the Khasmahal authorities.
When respondent No. 1 came to know that the land in question was required by the All India Radio authorities, he wrote a letter to Mr. section Gill on 28th October, 1970 suggesting that the land may be acquired but price fixed by mutual consent.
It may be pertinent to mention here that in this, letter a copy of which being exhibit D 4 (12) is to be found at page 86 of the paper book, respondent No. 1 never concealed the fact that the land really belonged to the Government.
In this connection, respondent No. 1 wrote thus: "I have represented to you against the revenue authorities quoting a higher price for similar Government land more adversely situated and a lower price for my land despite its better strategic location".
We have mentioned this fact because this forms the very pivot of the case of the appellant in order to assail the judgment of the courts below.
A perusal of this letter clearly shows that respondent No. 1 made no attempt to conceal that the land in question was, a Government land which was leased out to his vendor.
A copy of the original agreement which also has been filed shows that under the terms of the lease, the same is entitled to be renewed automatically at the option of the lessee and unless the lessee violates the conditions of the lease, there is no possibility of the lease being resumed.
As it is, the lease had been continuing from the year 1943 and there was no possibility or its not being renewed on 1 9 1973 when the period expired.
In these circumstances, therefore, it cannot be said that the letter written by respondent No. 1 referred to above was an evidence of a criminal intention on the part of respondent No. 1 to grab the huge compensation by practising fraud on the Government.
Respondent No. 1 a high officer of the Government and was a lessee of the Government, a fact which he never concealed and if he was able to get a good customer for purchasing his land or acquiring the same, there was no harm In writing to the concerned authority to fix the proper valuation and take the land.
There, was no question of any concealment or malpractice committed by respondent No. 1.
Apart from this, the contention of the appellant that the fact that the land being Khasmahal land belonging to the Government was deliberately suppressed by the respondents is completely falsified by the circumstances discussed hereinafter: The land in question was situated in a Cantonment area and it is not disputed that all lands in the Cantonment area were Khasmahal Lands belonging to the Government.
237 The High Court in this connection has observed as follows: "Government authorities admit that the land in question was known to be Khasmahal land from the very inception.
This must lead to an inference that the authorities knew that the interest of the opposite party No. 1 in the land was that of a lessee and the State Government was the proprietor".
The High Court has further observed that a number of witnesses who were examined by the police had stated that it was common Knowledge that all khasmahal lands in the Cantonment area in Cuttack were Government lands Relying on the statement of Mr. T. C. Vijayasekharan, Collector, Cuttack, the High Court observed as follows: "Shri Vijayasekharan who has admittedly played an important role in the land acquisition proceeding has said that it is a matter of common knowledge that all khasmahal lands in Cantonment area at Cuttack are Government lands.
He has further categorically stated that Shri P. M. Samantray did not put undue pressure of any kind".
Furthermore, it would appear that Mr. B. C. Mohanty, Land Acquisition officer submitted a report about the land in question on 15th February, 1971 in which he had clearly mentioned that the land in question was Government land and that respondent No. 1 was a Pattidar in respect of the land as shown in the record.
Thus, one of the important premises on the basis of which the charge was sought to be framed has rightly been found by the High Court not to exist at all.
The records of the Government showed the nature of the land.
Respondent No. 1 at no time represented to the All India Radio authorities or the Government that the land was his private one and the records of the Government clearly went to show that the land was a Government land.
In these circumstances, therefore, it cannot be said that respondent No. 1 acted illegally in agreeing to the land being acquired by the Government.
Another important circumstance relied on by the appellant was the great rapidity with which the land acquisition proceedings started and ended clearly shows that the respondents had joined hands to get the lands acquired and the compensation paid to respondent No. 1.
In this connection, reliance was placed on the fact that the copies of the records of rights were prepared on 30th March, 1972 in which the land was no doubt shown as having been owned by the State.
Bhujarat report was also prepared on the same date.
Respondent No. 1 presented his copy of the deed of transfer also on the same date and respondent No. 2 made the award for Rs. 4,18,642.55 also on the same 238 date.
The entire amount was disbursed also on the same date and possession also was handed over on the same date.
Prima facie, it would appear that the Officer acted in great hurry perhaps at the instance of respondent No. 1.
These circumstances are clearly explainable and cannot be said to exclude every reasonable hypothesis bu the guilt of respondent No. 1.
Admittedly, the All India Radio authorities were in a great hurry to get the land acquired and take possession of the same.
As respondent No. 1 was a high officer of the I.A.S. cadre there may have been a natural anxiety on the part of the small officers posted in the district of Cuttack to oblige respondent No. 1 by completing the proceedings as early as possible and meeting the needs of the All India Radio.
It would, however, appear that once notices under section 9(1) and 10(1) of the Land Acquisition Act were issued and the objection filed by the appellant was withdrawn, because there was no one else in the field, there was no impediment in the way of acquiring the land and taking possession from respondent No. 1.
In fact, it would appear as pointed out by the High Court that as far back as 22nd February 1972 the Land Acquisition officer who was a person other than the second respondent had sent a letter to the Government with the counter signature of the Collector for sanctioning the estimate of acquisition of 2 acres of land belonging to respondent No. 1.
Later, however, the area of the land was reduced from 2 acres to 1.764 acres and revised estimates as desired by the Revenue department were sent on 7 3 1972.
This estimate amounted to Rs. 4,18,642 55 and was sent through the A.D.M 's letter,on 8 3 1972.
The Home Department by their letter dated 11 3 1972 sanctioned the aforesaid estimate.
There after, the Government indicated to the Collector that an award might be passed for acquiring 1.764 acres of land.
These facts apart from negativing the allegations of criminal conduct against the respondents demonstrably prove the untruth of the circumstance relied upon in the charge sheet, namely, that unless the respondent No. 1 and 2 acted in concert and conspiracy with each other, respondent No. 1 could not have known the exact figure of the compensation to be awarded to him.
In this connection, reliance was placed on a letter written by respondent No. 1 to the Vigilance officer, L. section Darbari on 15th March, 1972 where he had mentioned that as Karta of the H.U.F. he would be getting a compensation of Rs. 4,18,642.55 which is to be paid to him on the 10th March, 1972 and it was argued that unless the two respondents were in league with each other how could respondent No. 1 get these details.
We are, however, unable to agree with this contention.
239 We have already mentioned that a fresh estimate for 1.764 acres was prepared and the total compensation was Rs. 4,18,642.55 as only the Raiyyati or the lessee 's interest was proposed to be acquired and this letter was sent to the Government for sanction and the estimate was sanctioned on 11 3 1972.
It was contended that no notice was given to the Khasmahal department, so that the Government could claim compensation of the proprietary interest.
It is obvious that what has been acquired in the present case is merely the Raiyyati or the lessee 's interest and as the proprietary interest vests in the Government itself, there is no question of either acquiring or claiming compensation for the interest of the Government.
In the case of Collector of Bombay vs Nusserwanji Rattanji Mistri & Ors.(1) this Court observed as follows: "If the Government has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user. . . .
When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own.
An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition".
To the same effect is a later decision of this Court in the case of The Special Land Acquisition Officer, Hosanagar vs K. section Ramachandra Rao & ors.(1) where this Court observed as follows: "Mr. M. Veerappa, the learned counsel for the State of Mysore, contends that the Land Acquisition officer had not assessed the compensation payable for the rights of the respondents in the land acquired . .
We have gone through the Award made by the Land Acquisition officer.
The Land Acquisition officer appears to have valued the rights of the respondents in the lands acquired.
Whether the valuation made by him is correct or not cannot be gone into these proceedings.
" As the appellant was naturally interested in finalising the deal as quickly as possible, there could be no difficulty in finding out the esti (1) ; (2) AIR 1972 S.C. 2224.
240 mates which had been sanctioned a week before respondent No. 1 wrote the letter to the Vigilance Department.
This fact proves the bona fide rather than any wrongful conduct on the part of respondent No. 1 which may lead to an adverse inference being drawn against him.
Finally, it was argued that what was acquired by the Government was merely the lessee 's interest, but the respondent No. 1 appears to have got compensation as the owner.
This is factually incorrect.
We have already referred to the circumstances which clearly show that the Government was fully aware that it was only the lessee 's interest which was being acquired and even the fresh estimate for Rs. 4,18,642.
55, which was sent to the Government was shown as representing the Raiyyati interest.
Mr. Agarwala appearing for the respondents fairly conceded that having regard to the nature, character and situation of the land, it could not be said that the amount of compensation awarded did not represent the market value of the lessee 's interest of the land.
On the other hand, in the counter affidavit at page 87 of the paper book, it has been alleged that 16 sale deeds executed during the year 1970 and sale deeds executed during the year 1971 pertaining to the village in question were acquired at the rates varying from Rs. 42,165 to 750,000.
The High Court has also pointed out that the records before the Trial Judge show that the Collector Vijayasekharan had valued the land at the rate of Rs. 1.70 lakhs per acre as far back 1: as 3 2 1970 and if two years later the valuation was raised to Rs. 2 lakhs it cannot be said that the land was in any way over valued.
Lastly, there does not appear to be any legal evidence to show any; meeting of mind between respondents No. 1 and 2 at any time.
Although the Collector at the time of the acquisition was a distant relation of respondent No. 1 he had himself slashed down the rate of compensation recommended by the Revenue officer from Rs. 2,10,000 to Rs. 2,00,000 and it was never suggested by the prosecution that the Collector was in any way a party to the aforesaid conspiracy.
For these reasons, therefore, we find ourselves in complete agreement with the view taken by the High Court that there was no sufficient ground for trying the accused in the instant case.
Moreover, this Court could be most reluctant to interfere with concurrent findings of the two courts in the absence of any special circumstances.
For the reasons given above, the judgement of the High Court is affirmed and the appeal is dismissed.
M.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The second respondent, a Land Acquisition officer, allegedly, by abusing his official position, concealed the fact that the land which was the subject matter of acquisition was really Khasmahal land belonging to the Government and having made it appear that the first respondent was the undisputed owner of the same, aided and abetted him in getting a huge sum of money as compensation.
The charge sheet was submitted before the Special Judge, and the prosecution requested him to frame a charge against the respondents under sections 5(2) and 5(1)(d) of the Prevention of Corruption Act read with section 120B IPC.
The Special Judge, Puri went through the charge sheet, statements made by the witnesses before the police and other documents, and coming to the conclusion that there was no sufficient ground for framing a charge against the respondents, discharged them under section , after giving cogent reasons for passing the order of discharge.
In revision the High Court upheld the Special Judge 's order of discharge.
Dismissing the appeal by special leave, the Court ^ HELD: 1.
The considerations governing the interpretation of section 227 of Cr.
P.C. apply mutatis mutandis to the proceedings under the Prevention of Corruption Act, after the charge sheet is submitted before the Special Judge.
At the stage of section 227, the Judge has merely to sift the evidence in order to find out whether or not, there is sufficient ground for proceeding against the accused.
The sufficiency of ground would take within its fold, the nature of the evidence recorded`by the police, or the documents produced before the court, which exfacie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.
[231E, 233A B] State of Bihar vs Ramesh Singh, [1978] I SCR 257; K. P, Raghavan & Anr.
vs M. H. Abbas and Anr.
AIR 1967 SC 740; Almohan Das & Ors.
vs State of West Bengal, ; applied.
What has been acquired is merely the Raiyyati or the lessee 's interest, and as the proprietary interest vests in the Government itself, there is no question of either acquiring or claiming compensation for the interest of the Government.
[239B] Collector of Bombay vs Nusserwanji Rattanji Mistri & Ors., ; ; and The Special Land Acquisition officer, Hosanagar vs K. section Ramachandra Rao & Ors., AIR 1972 SC 2224: applied. 230


judgement:
Civil Appeal No. 2764 of 1977.
(From the Judgment and order dated 24 11 76 of the Delhi High Court in C.R.P. No. 1264/76).
M. K. Ramamurthi and Faqir Chand for the appellant.
P. N. Lekhi and Girish Chandra for the respondent.
The Judgment of the Court was delivered by SHINGHAL J.
, This appeal by special leave is directed against an order of the Delhi High Court dated November 24, 1976, dismissing the appellant 's writ petition in timing.
The appellant was promoted to the post of Director in the All India Radio after some thirty years of service under the Government of India.
She was working as Joint Director, Family Planning, in the Directorate General of the All India Radio, when she was served with an order dated March 26, 1976, retiring her prematurely from service, with immediate effect, on the ground that she had already attained the age of 50 years on April 11, 1972, and the President was of the opinion that her retirement was in the "public interest".
The appellant made representation on April 6, 1976, but it was rejected on July 1, 1976.
She therefore filed a writ petition in the Delhi High Court under article 226 of the Constitution in which she, inter alia, made a mention of the hostile attitude of one V. D. Vyas who took over as Chairman of the 204 Central Board of Film Censors from her on February 11, 1972.
She also made a mention of the adverse remarks made by Vyas in her service record after she had ceased to work under him which, according to her, were "totally unfounded, biased, malicious and without any justification".
She stated that "her integrity had never been considered doubtful 28 years before or 4 years after the period of 21 months she spent under him.
" It was also contended that some baseless allegations were made against her because of "malicious vendetta" carried on by Vyas, and that the order of premature retirement was not in public interest but was "arbitrary and capricious", and that the retiring authority had not "applied its mind to the record" of her case.
It was particularly pointed out that as he was confirmed in the post of Director on April 28, 1973, with retrospective effect from July 10, 1970, any adverse remark in her confidential report before that date could not legitimately form the basis of the order of her premature retirement.
The appellant also pointed out that the order cast a stigma on her conduct, character and integrity and amounted to the imposition of one of the major penal ties under the Central Civil Services (Classification, Control and Appeal)Rules, 1965.
It is not in controversy, and has in fact been specifically stated in the order of premature retirement dated March 26, 1976, that the appellant was retired in the "public interest" under clause (j) (i) of rule 56.
of the, Fundamental Rules.
That rule provides as follows, "(j) Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is in.
the public interest to do so have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of notice.
(i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years.
" It is also not in dispute that the power under the aforesaid rule had to be exercised in accordance with the criteria and the procedure laid down in office memorandum No. F.33/13/61 Ests (A), dated 23rd June, 1969, of the Ministry of Home Affairs, Government of India.
It is however the grievance of the appellant that her premature retirement was not made in accordance with the requirements of the rule and the memorandum, but was ordered because of malice, and was arbitrary and capricious as the Government did not apply its mind to her service record and the facts and circumstances of her case.
It has been speci 205 fically pleaded that the power under F.R. 56(j)(i) has not been exercised "for the furtherance of public interest" and has been based on "collateral grounds".
The appellant has pointed out in this connection that her service record was examined in March, 1976, by the Departmental Promotion Committee, with which the Union Public Service Commission was associated, and the Committee considered her fit for promotion to the selection grade subject to clearance in the departmental proceedings which were pending against her, and that she was retired because of bias and animosity.
Our attention has also been invited to the favourable entry which was made in her confidential report by the Secretary of the Ministry.
Mr. Lekhi, learned counsel for the Union of India, produced the, relevant record of the appellant for our perusal.
While doing so he frankly conceded that there was nothing on the record which could justify the order of the appellant 's premature retirement.
He went to the extent of saying that the Government was not in a position to support that unfair order.
We have made a mention of the plea of malice which the appellant had taken in her writ petition.
Although she made an allegation of malice against V. D. Vyas under whom she served for a very short period and got an adverse report, there is nothing on the record to show that Vyas was able to influence the Central Government in making the order of premature retirement dated March 26, 1976.
It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact.
Malice in law IS, however, quite different.
Viscount Haldane described it as follows in Shearer and another vs Shield,(1) 'A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law.
He may, therefore be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.
" Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause.
It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether (1) at p. 813.
206 its repository was acting in good faith or in bad faith.
As was stated by Lord Goddard C.J., in Pilling vs Abergele Urban District Council(1), where a duty to determine a question is conferred on an authority which state their reasons for the decision, "and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter.
" The principle which is applicable in such cases has thus been stated by Lord Esher M.R. in The Queen on the Prosecution of Richard West brook vs The Vestry of St. Paneras(2).
" If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.
" This view has been followed in Sedlar vs Sheffield Corporation.(3) We are in agreement with this view.
It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a nonexisting fact or circumstance.
This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another.
The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence.
It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of government servants only in the ' 'public interest", to a purpose` wholly unwarranted by it, and to arrive at quite a contradictory result.
An administrative order which is based on reasons of fact which do not exist raust therefore be held to be infected with an abuse of power.
So when it has been conceded by Mr. Lekhi that there was nothing on the record which would justify the impugned order dated March 26, 1976, of the appellant 's premature retirement under clause (j) (i) of (1) (2) at p. 375.
(3) 207 Rule 56 of the Fundamental Rules, and that the Government was not in a position to support that unfair order, that order must be set aside, for it amounts to an abuse of the power which was vested in the authority concerned.
The appeal is allowed with costs and it is ordered accordingly.
N.V.K, Appeal allowed.

summary/full:
The appellant who was working as Joint Director, Family Planning in the Directorate General of the All India Radio was prematurely retired from ser vice.
She made a representation, but it was rejected.
In her writ petition under article 226 of the Constitution she alleged that she had a long and clean record of nearly three decades but that baseless allegations had been made against her, because of malicious vendetta of the then Chairman of the Central Board of Film Censors.
She also alleged that the impugned order was arbitrary and capricious and that the retiring authority had not applied its mind to the record of her case.
The writ petition was dismissed in limine.
On the appeal, the first respondent conceded that there was nothing on the record to justify the impugned order, and that the Government was not in a position to support that unfair order.
Allowing the appeal, ^ HELD: (1) There was nothing on the record to show that the Chairman of the Central Board of Film Censors was able to influence tho Central Government m making the impugned order.
It was not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order so as to amount to malice in fact.
[205E] (2) Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause.
[205G] .
Shearer & Anr.
vs Shields, at p. 813 referred to.
(3) It was not necessary to examine the question of malice in law as it was trite law that if a discretionary power had been exercised for an unauthorised purpose, it was generally immaterial whether its repository was acting in good faith or in bad faith.
[205H 206A] 203 Pilling vs Abergele Urban District Council.
[1950] 1 K.B. 636: referred to.
(4) The principle which is applicable in such cases is that laid down by Lord Esher M.R. in at p. 375, and followed in 3.
[206C D] (5) When a public body is prompted by a mistaken belief in the existence of a non existing fact or circumstance it will be an error of fact.
That is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith.
[206E] (6) When the respondent conceded that there was nothing on record to justify the impugned order, that order must be set aside for it amounts to an abuse of the power which was vested in the authority concerned as it had admitted the influence of extraneous matter.
[206H 207A] (7) It will be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the "public interest", to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result.
[206F] (8) An administrative order which is based on reasons of fact which do not exist must be held to be infected with abuse of power.
[206G]


judgement:
: Review Petition No. 95 of 1978.
K.R. Nagaraja, S.K. Metha and P.N. Puri for the petitioner.
293 The order of the Court was delivered by KRISHNA IYER, J. A short narrative of the facts is necessary to explore and explode the submission that a substantial question of law arises, which merits grant of leave under article 136 of the Constitution.
The respondent is the wife of the petitioner.
She moved the Magistrate, having jurisdiction over the subject matter, for grant of maintenance under Sec.
125 of the Criminal Procedure Code.
The Court awarded maintenance, in a sum of Rs. 250/ per mensem but the order was made ex parte since the petitioner did not appear in court.
The motion for setting aside the ex parte order was dismissed whereupon a criminal revision was filed by the husband before the High Court.
During the pendency of the said petition a compromise was entered into between the parties as a result of which the wife resumed cohabitation with the husband.
This resumption of conjugal life was followed by an application by the wife (respondent) praying that her application for maintenance be dismissed and the execution proceedings for recovery of arrears of maintenance be withdrawn.
Apparently, on this basis the trial court did not proceed to recover arrears of maintenance.
But as the record now stands, the order for maintenance remains.
That has not been set aside and must be treated as subsisting.
The High Court apparently dismissed the revision petition on the score that the parties had compromised the dispute.
Later developments were not as smooth as expected.
The wife was betrayed, because her allegation is that her husband is keeping a mistress making it impossible for her to live in the conjugal home.
Naturally, the proceeded to enforce the order for maintenance.
This was resisted by the petitioner (husband) on the ground that resumption of cohabitation, after the original order for maintenance, revoked the said order.
This plea having been rejected right through, the petitioner has come up to this Court seeking leave to appeal.
The short question of law pressed before us is that the order for maintenance under section 125 of the Code is superseded by the subsequent living of the wife with the husband and is unavailable for enforcement.
Counsel has relied on a ruling of the Madras High Court in A.I.R. 1960 Madras 515.
The holding in that case is that resumption of cohabitation puts an end to the order of maintenance.
The learned Judge observed: "on the authority of the above decisions I must hold in this case that there was a reunion for some time and that put ran end to the order under section 488 Cr.
If the wife separated again from the husband, then she must file another peti 294 tion, a fresh cause of action, and obtain an order if she satisfied the Court that there is sufficient reason to leave her husband and that he neglected to maintain her.
" To the same effect is the decision of the Andhra High Court reported in 1955 Andhra Law Times Reports (Criminal) Page 244.
The head note there leads "If a wife who has obtained an order of maintenance under Sec.
488 rejoins her husband and lives with him, the order is revoked and cannot be enforced subsequently, if they fall out again.
If there are fresh grounds" such as would entitle her to obtain maintenance under Section 488, it is open to her to invoke the jurisdiction of court once again for the same relief.
" An earlier Rangoon case (A.I.R. 1931 Rangoon 89) as lends support to this proposition.
A contrary position has found favour with the Lahore High Court reported in A.I.R. 1932 Lahore p. 115.
The facts of that case have close, similarity to the present one and the head note brings out the ratio with sufficient clarity.
It reads: Shadi Lal, C. J. observed: Now, in the present case the compromise, as pointed out above, was made out of Court and no order under section 488, Criminal P. C. was made in pursuance of that compromise, Indeed, the order of the Magistrate allowing maintenance at the rate of Rs. 10 per mensem was neither rescinded nor modified, and no ground has been shown why that order should not be enforced.
If the husband places his reliance upon the terms of the compromise, he may have recourse to such remedy in a civil Court as may be open to him.
The criminal Court can not however take cognizance of the compromise and refuse to enforce the order made by it." This reasoning of the learned Chief Justice appeals to us.
We are concerned with a Code which is complete on the topic and any defence against an order passed under section 125 Cr1.
P. C. must be founded on a provision in the Code.
Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife.
If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself.
If the husband has a case under section 125 (4) (5) or section 127 of the Code it is open to him to initiate appropriate proceedings.
295 But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of section 125(4) or (5) ar section 127, its validity survives.
It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence.
In this view, we hold that the decisions cited before us in favour of the proposition contended for by the petitioner are not good law and that the view taken by Sir Shadi Lal Chief Justice is sound.
A statutory order can ordinarily be demolished only in terms of the statute.
That being absent in the present case the Magistrate will execute the order for maintenance.
Our order does not and shall not be deemed to prejudice the petitioner in any proceedings under the law which he may start to vacate or vary the order for maintenance.
S.R. Petition dismissed.

summary/full:
The respondent obtained an ex parte maintenance award for a sum of Rs. 250/ p.m. from the Court of competent jurisdiction under Sec.
125 Crl.
Subsequently, as a result of a compromise between the parties and resumption of cohabitation an application was made by the respondent praying that her application for maintenance be dismissed and the execution proceedings for recovery of maintenance be withdrawn.
Though the Trial Court did not proceed to recover the arrears of maintenance it did not set aside the award.
As the respondent was betrayed, she proceeded to enforce the order for maintenance.
The petitioner resisted the application on the ground that resumption of cohabitation, after the original order for maintenance revoked the said order.
This plea having been rejected right through the petitioner came up by way of special leave.
Dismissing the petition, the Court, ^ HELD: the Criminal Procedure Code is complete on the topic and any defence against an order passed under section 125 Crl.
P.C. must be founded on a provision in the Code.
Section 125 b a provision to protect the weaker of the two parties, namely, the neglected wife.
If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself, if the husband has a case under section 125(4)(S) or section 127 of the Code it ii open to him to initiate appropriate proceedings.
But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of section 125(4) or (S) or section 127, its validity survives.
It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence.
[294G H, 295A] A statutory order can ordinarily be demolished only in terms of the statute.
That being absent in the present case the Magistrate will execute the order for maintenance [295 B] Fazal Din vs Mt. Fatima, A.I.R 1932 Lahore P. 115; approved.
Natesan Pillai vs Jayammani, A.I.R. 1960 Madras, U. Po Chein vs Ma Sein Mya, A.I.R. 1931 Rangoon, 89, Ampavalli Veerabhadrudu vs Ampavalli Gaviramma 1955 A.l.
R. (Crl.) p. 244; over ruled.