Land Acquisition Officer and the Special Tahsildar (ADW) v. M.R.Subramaniam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.08.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.526 of 1997andCross Objection No.19 of 1999A.S.No.526 of 1997Land Acquisition Officer andthe Special Tahsildar (ADW) Tiruttani...Appellant/Referring Officer Vs.M.R.Subramaniam...Respondent/ClaimantThis appeal suit filed under Section 54 of the LandAcquisition Act as against the judgment and decree of the learnedSubordinate Judge of Kancheepuram in L.A.O.P.No.1/88 dated25.06.1993.For Appellant: Mr.V.Ravi, Special Govt. Pleader (AS)For Respondent: Mr.S.D.N.VimalanathanCross Objection No.19 of 1999M.R.Subramaniam...Cross Objector/ClaimantVs.Land Acquisition Officer andthe Special Tahsildar (ADW) Tiruttani...Respondent/AppellantThis cross objection petition filed under Order 41 Rule 22 CPCto modify the lower court judgment and decree dated 25.06.1993 madein L.A.O.P.No.1/88 on the file of Sub-Court, Kanchipuram andenhance the compensation to Rs.1,100/- per cent at least andconfirm the judgment in all other respects. https://hcservices.ecourts.gov.in/hcservices/ For Cross Objector/Claimant: Mr.S.D.N.VimalanathanFor Respondent/Appellant:Mr.V.Ravi, Special Govt. Pleader (AS) J U D G M E N TThis appeal preferred under Section 54 of the Land AcquisitionAct is directed against the judgment and award of the SubordinateJudge, Kanchipuram made in L.A.O.P.No.1 of 1988 dated 25.06.1993.The Land Acquisition Officer, namely the Special Tahsildar, AdiDravidar Welfare, Tiruttani is the appellant herein. The claimantbefore the court below in the LAOP is the respondent herein.2. An extent of 1.63 acres of land comprised in SurveyNo.30/1A, 1B situated in Kakkalur village in Pettai Kandigai group,Pallipet Taluk, Kanchipuram District was acquired by the governmentfor allotment of house sites to Adhi Dravidars. The ReferringOfficer, namely the appellant herein, collected 11 data sales,selected a sale deed dated 25.06.1985 in respect of 1.86 acres ofland comprised in Survey Nos.33/4B, 33/8 and 33/10 as the samplesale reflecting the market value of the acquired property and basedon the same, fixed the market value of the property underacquisition at the rate of Rs.80/- per cent. The referring officercalculated the total market value of the property under acquisitionat Rs.13,040/-, added Rs.3,912/- as solatium, and grantedRs.1,907.75P towards additional value @ 12% per annum for 445 daysand thus awarded a total sum of Rs.18,850.75P as total amount ofcompensation. 3. As the respondent herein/claimant felt the amount awardedas compensation was inadequate, he received the said amount underprotest and made a request for making a reference under Section 18of the Land Acquisition Act to the court to fix a reasonablecompensation for the land acquired. Consequently, the appellantherein/Referring officer made a reference under Section 18 of theLand Acquisition Act to the trial court which took it on file asLAOP No.1/1988. After receiving the claim statement of theclaimant and the objection statement of the Referring Officer, thetrial court conducted trial in which one witness each on the sideof the respondent herein/claimant and the appellantherein/Referring officer was examined. Three documents were markedon the side of the claimants as Ex.C1 to C3 and two documents weremarked on the side of the Referring officer as R1 and R2. 4. The learned Subordinate Judge, Kanchipuram (the judge ofthe court of reference) framed necessary point for consideration,considered the evidence in the light of the arguments advanced on https://hcservices.ecourts.gov.in/hcservices/ either side and upon such consideration, fixed the market value ofthe acquired property at Rs.932/- per cent relying on a sale deeddated 24.11.1986, a copy of which was marked as Ex.C2 and fixed thetotal amount of compensation to which the claimant was entitled atRs.1,51,916/-. The court below has deducted the amount awarded bythe land acquisition officer, namely Rs.13,040/-, from the saidamount and directed payment of the balance, namely Rs.1,39,976/- asthe enhanced compensation. The trial court also awarded additionalmarket value @ 12% per annum from 03.01.1986 to 20.03.1987,solatium @ 30% and interest @ 9% from the date of taking possessionfor one year and thereafter @ 15% per annum till realisation.5. The correctness of the judgment and decree of the courtbelow is questioned by the appellant herein/Referring officer onvarious grounds set out in the Memorandum of appeal. Similarly, therespondent in the appeal/claimant has filed a cross-objectionclaiming further enhancement of compensation on various grounds setout in the grounds of cross-objection.6. The points that arise for consideration in the appeal andthe cross-objection petition are as follows:i)Whether the compensation awarded by the court below deservesany downward revision as claimed by the appellant/Referringofficer?andii)Whether the compensation awarded by the court below requiresupward revision as claimed by the respondent/crossobjector/claimant?7. The arguments advanced on either side were heard. Thematerials available on record were also perused.8. As rightly pointed out by the Special Government Pleader(AS) appearing for the appellant herein/Referring officer, thecompensation awarded by the Land Acquisition Officer should beconstrued to be an offer and a reference made to the court underSection 18 of the Land Acquisition Act at the request of theclaimant should not be construed to be an appeal over the award ofthe Land Acquisition Officer. A reference under Section of theLand Acquisition Act numbered as LAOP, is akin to a suit as thesame is an original proceeding and not an appeal proceeding. Theclaimant shall be in the position of a plaintiff, whereas theReferring officer and the requisitioning department, if any, shallbe in the position of the defendants. Therefore, it shall bewrong to assume the powers of an appellate forum to test thecorrectness and legality of the award passed by the LandAcquisition Officer. On the other hand, the court dealing with theLAOP under Section 18 of the Land Acquisition Act has to decide theissue before it in the light of the pleadings made and the evidenceadduced before it. https://hcservices.ecourts.gov.in/hcservices/

9. In this case, as rightly pointed out by the learned SpecialGovt. Pleader, the court below has gone to the extent of sayingthat the procedure adopted by the Land Acquisition Officer was notin accordance with the provisions of the act. The court below hasalso expressed its conclusion that the very approach made by theLand Acquisition Officer in passing the award was erroneous. Thescope of the power available to the court dealing with the LandAcquisition Original Proceedings under Section 18 of the LandAcquisition Act is restricted to giving a finding as to whether theoffer made by the government as compensation in the form of theaward of the Land Acquisition Officer is insufficient and if so,what should be the reasonable amount to be fixed as compensation.In this regard, though the judgment of the court below has not beenhappily worded, we can treat it as an expression of the court belowregarding the sufficiency of the amount awarded as compensation bythe Land Acquisition Officer. Such a conclusion can be arrived atonly after considering all the evidence brought before the courtbelow. Before ever taking up the evidence regarding the marketvalue of the property to fix quantum of compensation, no view canbe expressed as to the sufficiency or otherwise of the offer madeby the government in the form of the award of the Land AcquisitionOfficer. It seems, the court below before taking up such evidencefor discussion, has commented upon the procedure adopted by theLand Acquisition Officer and expressed a conclusion that such aprocedure was not proper. In this regard, the reason assigned bythe court below is also not sound in this regard.10. The learned Subordinate Judge has made an observation inparagraph 9 of his judgment as if it is provided in Section 23(1)of the Land Acquisition Act that the sales statistics for a periodof three years prior to the date of notification under Section 4(1)of the said Act should be considered and on the basis of the same,the market value of the acquired land should be ascertained. Thelearned Subordinate Judge has found fault with the Land AcquisitionOfficer for considering documents, which came into existence withina period of one year prior to the date of notification underSection 4(1). On a search being made, this court failed to comeacross any such provision found in Section 23(1) of the LandAcquisition Act. On the other hand, it simply states that themarket value of the land as on the date of publication of thenotification under Section 4(1) shall be taken into consideration.It is by way of interpretation to the said provision, the courtshave directed consideration of the documents pertaining to landssituated within a particular distance from the acquired land thathave come into existence within three years prior to the date ofSection 4(1) notification. It is not a hard and fast rule that thescope of consideration should necessarily extend to the entirethree years period or should be mandatorily restricted to the threeyears period prior to the date of 4(1) notification. In appropriatecases, wherein developments have taken place within a period of oneyear or two years prior to the date of 4(1) notification causing anincrease in the market value of the lands in the neighbour-hood ofthe acquired property, it will be of futile exercise to considerthe documents that came into existence prior to such development. https://hcservices.ecourts.gov.in/hcservices/ The documents that came into existence subsequent to suchdevelopment would reflect a higher value. Even it is notimpermissible to consider post 4(1) notification sales if therewere no reliable sales on the pre 4(1) notification salesreflecting the market value and the post 4(1) notification saleswere not influenced by the developments made in the acquired landafter the acquisition proceedings started. It is obvious that thecourt below was aware of these propositions, as it has relied on adocument which came into existence subsequent to the date ofSection 4(1) notification as the data sale for fixing the marketvalue of the property. The fact that the Land Acquisition Officerhas considered documents that came into existence within a periodof one year prior to the date of 4(1) notification and failed toconsider the documents that might have come into existence beyondthat period of one year but within a period of three years prior tothe date of 4(1) notification, will be of no consequence if it isnot shown that any such document which was not taken intoconsideration reflected a higher market value. 11. In this case, the learned Subordinate Judge has relied onEx.C2 as the data sale for fixing the market value of the acquiredproperty. Ex.C2 is nothing but a xerox copy of a sale deed dated24.11.1986 bearing document No.930/1986 on the file of Sub-Registrar, Pallipattu, whereunder a pucca house site measuring1,634 sq.ft. had been sold for a sum of Rs.3,500/-. Based on thesaid document, the court below has fixed the market value of theproperty at Rs.932/- per cent. This court wants to point out thefact that the calculation itself is some what faulty. If correctlycalculated, the market value reflected by the said document willcome to Rs.925.93P. Apart from the same, all the documents, namelyEx.C1 to C3 relied on by the claimants, were only xerox copies ofsale deeds. They have been admitted in evidence disregarding therules relating to admission of secondary evidence. They were xeroxcopies of registered sale deeds. Certified copies of registeredsale deeds are allowed. When certified copies are allowed, noother form of secondary evidence shall be admissible as perSection 65 of the Evidence Act. 12. Apart from the question relating to the admissibility ofthe said documents, there is absence of evidence to prove that thesame reflected actual price paid for the transaction. The solewitness examined on the side of the claimant is the claimanthimself. He was not a party to the said document. He was not evenan attestor of the document. Nobody connected with the saidtransaction under Ex.C2 has been examined. No evidence has beenadduced to prove that Ex.C2 is the true copy of the original saledeed. The person who took the xerox copy was not examined.Receipt for taking such xerox copy also was not produced.Therefore, this court has to accept the contention of the learnedSpecial Government Pleader that no reliance can be made on Ex.C2and the market value cannot be fixed on the basis of Ex.C2. Theobservations made in respect of C2 shall mutatis mutandis apply toEx.C1 and Ex.C3 also. https://hcservices.ecourts.gov.in/hcservices/

13. Perhaps sensing trouble, the respondent/claimant has comeforward with an application in C.M.P.No.723/2008 for reception ofadditional documentary evidence. Certified copies of: 1) asettlement deed dated 11.12.1985 bearing document No.897/1985 onthe file of Sub-Registrar, Pallipattu and 2) a sale deed dated06.02.1984 bearing document No.98/1984 on the file of Sub-Registrar, Pallipattu are the additional documents sought to beproduced. Though the Referring Officer was examined as RW-1 andthe sale data collected by him and the master plan of the villagehave been produced as Ex.R1 and R2, nobody connected with the saletransaction which was taken as the sample sale by the LandAcquisition Officer was examined on the side of theappellant/Referring officer. The only witness examined on the sideof the appellant/Referring officer did not have any personalknowledge of the sale transaction covered by the sale deed taken asthe sample sale. Apart from that, the Referring Officer has alsofailed to produce an authenticated copy of the sale deed relied onby him as the data sale reflecting the market value of the acquiredproperty. That being so, this court is able to find a vacuum inthe evidence regarding the market value of the acquired property ason the date of 4(1) notification. Under such circumstances, thiscourt felt that the additional documents sought to be relied on bythe respondent/claimant filed along with C.M.P.No.723/2008 could bereceived as additional evidence and hence an order was also passedin this regard allowing the said CMP.14. So far as the proof of those documents are concerned, therespondent therein/appellant herein conceded the genuineness of thetransaction and gave consent for marking those documents. Hence,they were marked as Ex.C4 and C5 respectively. The said documentsstand proved by consent. Therefore, this court comes to theconclusion that it shall be proper to fix the market value based onany one of the said documents. Under Ex.C4-Settlement deed, anextent of 5,640 sq.ft vacant site was gifted quoting its marketvalue to be Rs.8,460/-. The said document came into existence acouple of months prior to the date of Section 4(1) notification.The market value reflected by Ex.C4 is Rs.650/- per cent. As perEx.C5, namely document No.98/84, 576 sq.ft., of land valued atRs.749/- and a tamarind tree valued at Rs.624/- (total valueRs.1373) was sold for a sum of Rs.1,000/-. The said amount waseven less than the market value reflected in Ex.C4. When more thanone reliable sales have taken place, the market value of theacquired property shall be fixed on the basis of the sale deedwhich reflects a higher market value. Therefore, this court is ofthe considered view that it shall be just and reasonable to fix themarket value of the acquired land on the basis of Ex.C4. Besidesholding that the market value fixed by the trial court is not onlyerroneous but also excessive, this court holds that the marketvalue of the acquired property should be fixed at the rate ofRs.650/- per cent relying on Ex.C4. The land sold under the datasale was a small extent of 13 cents and it was sold as a developedhouse site. If the same is to be compared with a larger extent ofproperty acquired, considering the potentiality of the acquiredproperty for being developed into house sites, certain percentage https://hcservices.ecourts.gov.in/hcservices/ of deduction is to be allowed from the total extent towardsdevelopmental charges. Such deductions may normally range from 20%to 40%. We can take the minimum rate of deduction, namely 20% inthis case. Deducting 20% from the market value calculated for theentire extent, the balance amount alone shall be taken as the totalmarket value of the acquired land as on the date of Section 4(1)notification. The total compensation is worked as follows:The total market value ofthe acquired land afterallowing a deduction of 20%for developmental purposes163 x 650 = Rs.1,05,950/- minus20%= Rs.84,760.00Respondent/claimant shall beentitled to 30% of the abovesaid amount as solatiumunder Section 23(2) of the LandAcquisition Act, which is= Rs.25,428.00In addition to that an additionalmarket value calculated @ 12%per annum from the date of 4(1)notification to the date of award of the collected or date of taking possession of landwhichever is earlier (for 442 days from 03.01.86 to 20.03.87)= Rs. 12,316.00----------------Total amount of compensation= Rs.1,22,504.00The amount awarded by theReferring officer as compensationand paid to the respondent/claimant was = Rs.18,850.75P---------------It should be noticed that the trial court committed an error indeducting a sum of Rs.13,040/- as the amount awarded by the LandAcquisition Officer, whereas the actual amount awarded by the LandAcquisition Officer was Rs.18,850.75PThe enhanced compensation whichis payable to the respondent/claimant is= Rs.1,03,653.25R/o: Rs.1,03,653.00As per Section 28 of the Land Acquisition Act, therespondent/claimant shall be entitled to an interest at the rate of9% per annum from 20.03.1987, the admitted date on which possessionwas taken, for a period of one year and a further interest at therate of 15% per annum after the above said period of one year tillrealisation. https://hcservices.ecourts.gov.in/hcservices/

15. In the result, this appeal is allowed in part and thedecree of the trial court is modified by reducing the totalcompensation from Rs.2,06,837.10P to Rs.1,22,504.00. From the saidamount, the amount awarded by the Land Acquisition Officer, namelyRs.18,850.75P shall be deductedand the balance amount should bepaid as enhanced compensation. The respondent/claimant shall beentitled to an interest @ 9%per annum for the enhanced compensationfor a period of one year from 20.03.1987, the date on whichGovernment took possession of the acquired land and thereafter atthe rate of 15% per annum till realisation. The Cross-ObjectionNo.19 of 1999 is dismissed. 16. There shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarasrTo1) The Subordinate Judge of Kancheepuram2) Land Acquisition Officer and the Special Tahsildar (ADW) Tiruttani3) The Section Officer, VR Section, High Court, Madras.1 cc To The Special Government Pleader (A.S), SR.362161 cc To Mr.S.D.N.Vimalanathan, Advocate, SR.36141A.S.No.526 of 1997CKN(CO)SRA(23/9/2009)