ORDER
N.Y. Hanumanthappa, J.
1. This review petition is filed aggrieved by the judgment passed in AS No.2923 of 1996 dated 30-12-1998.
2. It is well settled that the review proceedings cannot be equated with the original hearing of the case or an appeal. The finality of the judgment delivered by the Court will not be reconsidered except where glaring omission or patent mistake or grave error has crept in the judgment rendered earlier. The interference of the Court is warranted only when there is error apparent on the face of the record which requires correction or modification failing which it causes grave injustice to the party. In a similar situation the Supreme Court in Northern India Caterers v. Lt. Governor, Delhi, : [1980]2SCR650 held as follows :
'An error apparent on the face of the record exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to ambit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record.'
The Supreme Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, : (1979)4SCC389 , held as follows :
'There are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of theperson seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; il may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not be confused with appellate power which may enable an appellate Court to correct all kind of errors committed by the subordinate Court.'
In Avtar Singh Sekhon v. Union of India, : (1981)IILLJ405SC , the Supreme Court observed that the earlier order cannot be reviewed unless the Court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
3. Before considering the request made by the petitioner to review our earlier order it is proper to note a few facts which gave rise to the filing of AS No.2923 of 1996 before this Court by the State. The land in extent of Ac.18.39 cents situated at Venkannapalem, Makavarapalem Mandal of Visakhapatnam District covered by S. Nos.25/2, 26/2, 26/4, 26/5, 26/6, 26/7, 31/ 16, 31/28 and 31/3A was acquired by the Government under Section 4(1) of the Land Acquisition Act, for short 'the Act', for the formation of Yeleru Left Main Canal. Section 4(1) notification was published in the Gazette on 5-8-1981. The Land Acquisition after considering the claims of the claimant passed an award on 24-6-1983 awarding a sum of Rs.16,965/- per acre in respect of Ac.3.84 cents wherein there is a coconut tope by adopting capitalisation method and awarding Rs.1,615/- and Rs.1,515/- per acre for the rest of the land which were classified into two categories. He also awarded compensation for fruit yielding coconut tree at Rs.40/-, coconutplant not yielding any fruits at Rs.5/-, big palmyrah tree at Rs.8/-, medium palmyrah tree at Rs.6/- and small palmyrah tree at Rs.4/-. He further awarded Rs.5,457/- for ground well and Rs.950/- for motor shed and a sum of Rs.88,303.25 ps. towards land value and under the head 'buildings, wells, crops etc.' a sum of Rs.7,579/- was awarded. After calculating solatium at 30% and interest at 45% and deducting income tax, the total compensation awarded to the claimant is Rs.1,13,241.74 ps. Aggrieved by the said award the claimant sought reference under Section 18 of the Act to the Civil Court. The grounds urged before the Reference Court are that the award of the Land Acquisition Officer is Contrary to law; the market value fixed for the lands and tope is too low and the compensation for the wet lands ought to have been granted at Rs.40,000/- per acre; the compensation ought not to have been fixed on the basis of the statistics of sales taken behind the back of the claimant; the LAO ought to have taken into consideration as to what price the willing purchaser could have given since there were offers for the acquired land at the rate of Rs.40,000/- per acre during the relevant time; the lands ought to have been treated as wet lands; the LAO erred in discording the sale-deeds mentioned at items 1, 5, 6, 7, 12 and 14 and holding that land covered by item No.9 is nearer to the Venkannapalem village and accepting the sale-deed without examining the parties connected with the documents; the lands covered by S. No.26/2 ought to have been treated as grazing lands and compensation ought to have been granted at the rate of Rs.1,550/- per acre; the LAO ought to have taken the opinion of an expert for valuing the coconut tope and other trees and ought not to have prepared his report on the basis of the enquiry made by his predecessor; the calculation that one tree in the tope in an average yields 66 coconuts is incorrect as the coconuts of each tree are piucked in three seasons and in each season 20 to 25 coconuts are plucked and therefore the valuation arrived at that the netincome for the tope per year after deducting the cultivation expenses is Rs.4,653.37 ps. is incorrect; adoption of capitalisation method for 14 years is a mistake and instead compensation for each fruit bearing coconut tree ought to have been granted at Rs.3,000/-, for each palmyrah tree at Rs.500/-, and for ground well at Rs.12,000/-; the compensation for the loss sustained in respect of the land because of severance and the remaining land by digging the canal ought to have been at Rs.30,000/-; and interest should have been granted at 15%.
4. On behalf of the claimant seven witnesses were examined and documents Ex.A1 to A13 were marked. None were examined on behalf of the Referring Officer and documents Exs.Bl and B2 and Ex.X1 were marked on his behalf. PW1 is the son of the claimant, PW2 is the farm servant, PWs.3 and 4 are the vendee and vendor respectively of the land covered under Ex.A2, PWs.5 and 6 are the sons of the vendee and vendor respectively of the land under Ex.X1 and PW7 is the scribe of Ex.A2.
5. The Reference Court before considering the evidence on record, both oral and documentary, referred to the principles laid down in Mandal Haravind v. Special Land Acquisition Officer, 1988 (2) APLJ 31, for the proposition that a reference under Section 18 of the Act is an appeal against the award and as such the Court need not take into consideration the material placed before the Land Acquisition Officer while deciding the reference application; that the award is not a judgment but is an offer made by the LAO; that the Court has to treat the reference as an original proceedings and thus determine the market value afresh on the basis of the material produced before it; and that the claimant will be in the position of plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the material produced before the Court and the material placed and provedby the other side also could be taken into consideration by the Court for the purpose. The learned Judge also placed reliance on another decision in Gopu Manikyam Rao v. LAO & Dist. Social Welfare Officer, Eluru, 1988 (1) ALT 690, for the proposition that where the land is occupied entirely by the trees, the market value has to be determined either on the basis of the value of the land or on the basis of the income of the yielding by the trees and in no case double value can be adopted and in case where large extent of land only and some trees are situated scattering here and there, then the value of the trees cannot reflect the correct market value and therefore some margin has to be given. If the trees are income yielding trees, the income has to be calculated on the basis of the actual yielding plus capitalisation and if the trees do not bear any fruits, they have to be valued as fire-wood and market value has to be determined as such. It was also observed that separate market value has to be given to the land as well as the small number of trees.
6. Now we shall refer to the evidence recorded on behalf of the claimant. PW1 staled in his evidence that each coconut tree bears 12 gelas per year and by selling the same they were getting net income of Rs.250/- to Rs.300/- per year and that the price of each coconut fruit at the relevant time was Rs.1/-. This part of the evidence of PW1 is corroborated by the evidence ofPW2 and there is no other evidence to disprove the evidence of PWs. 1 and 2. Therefore, the Court below applied capitalisation value of Rs.5,000/- for each coconut tree in respect of 170 coconut trees in an extent of Ac.3.84 cents and awarded compensation of Rs.8,50,000/-. So far as 50 coconut trees in the remaining land is concerned, accepting the evidence of PW1 that the just compensation would be Rs.3,000/- per each tree and 'also adopting the capitalisation method, the Court below granted a sum of Rs.3,000/- per each treei.e., a total compensation of Rs.1,50,000/- in respect of 50 coconut trees. In respect of six palmyrah trees, accepting the evidence of PW1, in the absence of any other evidence disproving the same, and applying the ratio laid down in Gopu Manikyam Rao's case referrred (supra), that the trees which do not bear any fruits have to be valued as firewood and market value has to be determined as such, the Court below granted compensation at Rs.3,000/- for six palmyrah trees i.e., Rs.500/- per each tree. In respect of land on which 50 coconut trees and 6 palmyrah trees are situated separate valuation has to be given to the land. As regards the said land PW1 deposed that there are no sale transactions but there are only agreements of sales pertaining to the sale of the land situated in Venkannapalem village. PW3, the vendee and PW4, the vendor of an extent of Ac.0.17 cents of land covered under Ex.A2, agreement of sale were examined on behalf of the claimant. PW3 deposed in his evidence that he has purchased the said land for Rs. 10,500/-. The land under Ex.A2 is a wet land whereas the acquired lands are dry lands. PW7, the scribe of Ex.A2 deposed that the value per acre of the dry land at the relevant time was about Rs.25,000/- to Rs.30,000/- per acre and that the sale transactions in their village Venkannapalem take place on agreement of sale only. PWs.3, 4 and 7 spoke to the fact that the sale transaction under Ex.A2 took place between the willing purchaser and willing seller in respect of wet land. PW5 is the son of the vendee of the land covered under Ex.X1. As per the evidence of PW5 dry lands were sold at Rs.35,000/- per acre. He also took the stand of PW1 that the sale transactions in their village take place under the agreement of sale only. The land covered under Ex.X1 is 24 cents sold for Rs.8,000/-under an agreement of sale. PW6 is the vendor of the land of an extent of 24 cents covered under Ex.XI. He stated that he sold the said land at the rate of Rs.30,000/-per acre. ?le also reiterated the version of PWI and PW5 that in their village there areno sale transactions under sale-deeds. Relying on the evidence of PWs.5 and 6 and also the evidence of PW1 as regards the income realised from the yieldings and Ex.XI and holding that the transactions under Ex.XI clearly discloses that the market value at the relevant time is Rs.30,000/-peracre, the Court below fixed the market value of the remaining land other than Ac.3.84 cents at Rs.30,000/- per acre. As regards compensation in respect of motor engine and shed, the Court below considering the evidence of PWs.1 and 2 awarded a sum of Rs.17,000/-. The Court below, however, did not grant any compensation in respect of the severance of the land and the alleged loss sustained by him on the ground that there is no documentary evidence as regards the crop yield and severance of land and cogent and consistent evidence of other witnesses. The Court below also observed that the claimant is entitled to all the benefits under the Land Acquisition Act. Aggrieved by the said order the State preferred the present appeal before this Court.
7. The learned Advocate-General contended on behalf of the appellant that the compensation awarded by the Court below is exorbitant, the Court below ought not to have granted compensation in the absence of acceptable evidence, the reasoning adopted by the Reference Court for fixing the market value in respect of tope is quite incorrect and there is no proper documentary evidence to hold that the claimant established her case. It is further contended that the Court below ought to have rejected the evidence of PWs.1 and 2 while granting compensation in respect of an extent of Ac.3.84 cents of coconut tope and also the evidence of PWs.3 to 7 and Ex.Xl while enhancing the market value in respect of the remaining land at Rs.30,000/- per acre, the Court below ought not to have enhanced the compensation in respect of well and motor shed without any basis, the Court below based its findings on agreement of sale produced by the claimants which are ex facie inadmissible in evidenceand as there is no evidence suggesting just market value the Court may either reduce the compensation awarded by the Court below or remand the matter for fresh disposal.
8. After going through the judgment of the Court below and upon considering the rival contentions of the learned Counsel, this Court by an order dated 30-12-1998 allowed the appeal setting aside the impugned order and decree passed by the Court below and remanding the matter to the lower Court for fresh consideration of the matter with the following observations:
'A perusal of the judgment and decree of the Court below shows that the Court below has not appreciated the evidence, both oral and documentary, adduced before it and it requires reconsideration. As such we are of the considered opinion that the matter is required to be remitted to the Court below for reconsideration of the entire material available before it, including the evidence, both oral and documentary and for fresh disposal of the matter.'
Aggrieved by the same the claimant preferred this review petition.
9. The learned senior Counsel Sri M.V. Ramana Reddy appearing for the review petitioner urged that remittance of the matter to the Reference Court for fresh enquiry and disposal is not warranted on a consideration of both oral and documentary evidence which is available on record and that the Reference Court awarded compensation after considering the nature of the land, the actual yielding and other circumstances including the principles laid down by the Courts holding the field as on the date the OP was decided. The Counsel took us through the evidence of each witness and also documentary evidence and contended that the Land Acquisition Officer did not choose to enter the witness boxand as such whatever evidence that was recorded on behalf of the claimant was accepted by the Court below and thus ordered the compensation. The learned Counsel confining his argument only as to the correctness of the order passed by the Reference Court contends that the Court below ought to have granted compensation as sought for by the claimant. The learned Counsel further contends that remand is warranted only when evidence is not considered and in the case on hand the Court below has considered the entire evidence and reached a correct conclusion as to the just and adequate compensation and therefore there is nothing again to be reconsidered. According to him, non-consideration of this fact is an apparent error which deserves to be corrected or otherwise injustice will be caused to the claimant. The learned Counsel for the respondent supported the order passed by us.
10. Upon considering the contentions advanced on behalf of the review petitioner, we make it clear, though it is settled principle, that there should be valid basis for determining just compensation and the same should not be as a result of whims and fancies of the Court. As far as the factors to be taken into consideration while determining the market value in respect of land, trees, wells, buildings etc., is concerned, law is well settled by this Court and Supreme Court in catena of decisions. In cases where enhancement of compensation is sought, since the claimant will be in the position of the plaintiff, it is for him to prove his case by giving evidence. When a large extent of land is acquired, the value or price of small bit of land cannot be taken as basis merely, because some lands were acquired under the same notification in the same village for the same purpose and there is no necessity to fix the same market value as it depends upon the nature of the land, location, advantages, yielding etc. Further, the decision rendered in one case cannot be abasis to make applicable by the Court in respect of another similar case since the decision in one case cannot be considered as judgment in rem.
11. Regarding the evidence to be accepted for determination of compensation when reliance is placed on some of the sale-deeds, the sale-deeds of the relevant period has to be taken into consideration. Such sale transactions which relate to pre-notification can be relied upon and not the post notification sale transactions except in exceptional cases. The claim for compensation both for garden land and in respect of land where there is irrigation source cannot be treated on the same footing. So far as appreciation of evidence is concerned, the Court shall analyse the same in proper perspective bearing in mind as to whether the claim of the claimant is reasonable or exaggerate value of the land. While considering the determination of compensation or market value in respect of garden land, if the income of the fruit yielding trees is to be taken as the basis, proper multiplier has to be adopted as observed in the latest decision of the Supreme Court in State of Haryana v. Gurcharan Singh, : [1995]1SCR408 .
12. On a perusal of the evidence on record and the findings arrived at by the Reference Court and in the light of the principles laid down in the decisions referred to above, we once again come to the same conclusion of remitting the matter to the Court below for reconsideration of entire material available before it, and for fresh disposal, because the Court below took into consideration the evidence of the claimant and the evidence of the witnesses examined on behalf of the claimant as gospel truth without noticing that the evidence is full of exaggeration. Further, the burden always lies on the person who comes to the Court for relief to prove his case and cannot ask his opponent to prove his case as it appearsto have been so in the present case. No doubt, the sum and substance of the statement of all the witnesses is corroborating as regards the coconut yielding and the income derived from it in the case on hand, however, the multiplier applied by the Court below is quite incorrect according to us. As far as documentary evidence is concerned, Ex.X1 no other document is helpful to the claimant and the same should not have been relied upon by the Court below for the reason that it relates to the sale transaction of the year 1976 of a small extent of 24 cents and more over it is only an agreement of sale. We also feel that the valuation of scattered coconut trees at Rs.3,000/- per tree is also incorrect. Under those circumstances, we thought it proper to remand the matter. In fact the remand is for the benefit of both the parties.
13. In view of the above discussion and settled legal position, the request to reconsider our earlier decision is unwarranted. We would like to part with the case observing that the Court is satisfied that there is no material error manifest on the face of the order resulting in miscarriage of justice. In the circumstances, the review petition fails and it is accordingly dismissed. However, since it is stated that the matter is pending since a long time, it is ordered that the Reference Court shall decide the reference application by the end of August, 1999 positively by making use of the evidence already made available and to be made available uninfluenced by the observations made in this order and in OP No.133 of 1989 dated 23-2-1995. All other contentions are kept open. Costs of Rs.5,000/- is payable to the learned Counsel for the respondent.