MTHE HONOURABLE MR v. The Special Deputy Collector (Land Acquisition Works) Madras City Ezhilagam, Chennai-5 ...Referring

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:05.08.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.550 of 1997andC.M.P.Nos.699 and 700/20081.Mrs.Kotteswari Ammal2.Mrs.C.P.Kasturibai Ammal...Appellants/Claimants 2 & 3Vs.1.The Special Deputy Collector (Land Acquisition Works) Madras City Ezhilagam, Chennai-5 ...Referring Officer /1st Respondent2.Managing Director, Metropolitan Transport Corporation, No.4, Davidson Street Ayyanavaram, Chennai-23...Requisition Authority/2nd Respondent name amended 2nd Respondentas per order of Court dt.19.1.01made in CMA.928/01This appeal suit filed under Section 54 of the Land AcquisitionAct as against the judgment and decree of the learned VI Asst. CityCivil Judge, Madras in L.A.O.P.No.24 of 1993 dated 13.09.1996.For Appellants: Mr.J.R.K.BhavananthamFor Respondent: Mr.V.Ravi, Spl. GP (AS) for R1 Mr.M.Chidambaram, for R2J U D G M E N TThis appeal is directed against the judgment and award (decree)of the learned VI Assistant Judge, City Civil Court, Chennai dated13.09.1996 made in L.A.O.P. No.24/1993. The claimants whose landswere acquired, have come forward with the present appeal complainingthat the amount awarded by the Court below as compensation for theacquired land is grossly inadequate and praying for enhancement ofcompensation. The 1st respondent herein is the Referring Officer andthe 2nd respondent is the Managing Director of the former PallavanTransport Corporation, presently Metropolitan Transport Corporation,Ayanavaram, Chennai, the requisitioning authority for whose benefit https://hcservices.ecourts.gov.in/hcservices/ the land was acquired.2. A total extent of 8 grounds and 2,102 sq.ft of land comprisedin Survey Nos.4059/1, 4059/14, 4059/15, 4059/16 and 4059/17 inTondiarpet Village, within the Sub-Registration Sub-District ofChennai in the District of Madras belonging to the claimants wasacquired by the Government for the purpose of construction of busterminus in Tondiarpet. The draft notification under Section 4(1) ofthe Land Acquisition Act was approved in G.O.Ms.No.7522 (Transport)dated 31.08.1978 and the same was published at Page 29 of Part 2Section 2 of Tamilnadu Government Gazette dated 20.09.1978. It wasfollowed by an enquiry under Section 5(A) and declaration underSection 6 of the Land Acquisition Act. The same was approved by theGovernment in G.O.Ms.630 (Transport) dated 24.05.1980 and waspublished at Page 23 of Part 2 Section 2 of Tamilnadu GovernmentGazette dated 18.06.1980. Necessary notices were served on theowners of the lands and local publications were also effected inaccordance with the provisions of the Land Acquisition Act. Theaward enquiry under Section 11 was conducted and the Land AcquisitionOfficer (Referring Officer), namely the Special Deputy Collectorpassed an award in Award No.2/1983 dated 13.06.1983 fixing the Marketvalue of the property at the rate of Rs.10,000/- per ground as on01.07.1971 based on the market value adopted for assessing the landsunder Urban Land Tax. As the notification under Section 4(1) of theLand Acquisition Act was issued on 20.09.1978 i.e. after 7 years, theTrial Court chose to fix the market value of the property atRs.16,300/- by giving 9% increase per year for the market valuefixed, as on 01.07.1971. However, the Trial Court ultimately fixedthe market value of the property as on the date of notification underSection 4(1) at Rs.16,000/- per ground. Thus the total market valueof the land as on the date of 4(1) notification was arrived atRs.1,42,013.34p. The value of Trees and the value of the thatchedshed were fixed at Rs.100/- and Rs.200/- respectively, thus makingthe total market value to Rs.1,42,313.34p. A sum of Rs.21,347/-calculated at the rate of 15% as solatium was added and the totalamount of compensation payable to all the land owners was fixed atRs.1,63,660.34p. The land owners/claimants received the amount underprotest and requested the Referring Officer/Land Acquisition Officerto make a reference under Section 18 of the Land Acquisition Act tothe Court for fixing a reasonable compensation. Thus a referencecame to be made to the City Civil Court, Chennai which was registeredas L.A.O.P. No.24/1993 on the file of the VI Assistant Judge, CityCivil Court, Chennai.3. The registered owners of the land before acquisition were G.Sambandam Chettiyar, V.Kotteeswariammal, C.P. Kasturi Bai andBalambigai Ammal, wife of the above said G.Sambandam Chettiyar. Thesaid Balambigai Ammal, 4th claimant passed away subsequent to thepassing of the award by the Land Acquisition Officer. The claimants1 to 3 claimed to have become entitled to the compensation and otherbenefits as the legal heirs of the deceased 4th claimant BalambigaiAmmal also. Their claim was recognised by the Collector inproceedings No.K2/15/80 of the Collector of Madras dated 29.08.1984.The possession of the acquired land was taken by the Government on https://hcservices.ecourts.gov.in/hcservices/

12.03.1984. Even thereafter the Land Acquisition Officer did notmake payment of the compensation as per his award and failed to makea reference under Section 18 of the Land Acquisition Act to theCourt. Therefore, the claimants approached the High Court by filinga Writ Petition W.P.No.462/85. By an order dated 23.09.1985, thiscourt directed payment of compensation to the claimants on or before31.10.1985. It was also directed in the said order to make areference to the Court under Section 18 of the Land Acquisition Act.However, payment was made to the claimants only on 11.09.1989 and theaward copies were served on them on 20.10.1989. As no reference wasmade under Section 18 of Land Acquisition Act as demanded by theclaimants they had to again approach the High Court by filing a WritPetition W.P.No.15008/1992 for a Writ of Mandamus directing theSpecial Deputy Collector, (Land Acquisition Officer), Madras City tomake a reference to the City Civil Court, Chennai under Section 18 ofthe Land Acquisition Act. Only subsequent to the filing of the saidWrit Petition, the Land Acquisition Officer made a reference to theCity Civil Court under section 18 of the Land Acquisition Act on23.06.1993.4. The appellants herein/claimants in their claim statementsfiled in the L.A.O.P. before the Court below contended that the landshould be valued at the rate of Rs.1 Lakh per ground as on the dateof 4(1) Notification (20.09.1978). They had also claimed that thoughthe award was passed in the year 1983, the compensation amount waspaid after six years and a further delay of 4 years had been causedin making the reference to the Court and hence they were entitled todamages at 100% of the market value for the delay under section 48-Aof the Land Acquisition Act. They had also claimed other statutorybenefits like additional market value calculated at the rate of 12%per annum on the market value in accordance with Section 23(1-A) andSolatium at the rate of 30% under Section 23(2) of Land AcquisitionAct. They had also claimed enhancement of the compensation for thethatched shed at Rs.20,000/- and value of trees at Rs.4,000/- asagainst valuation adopted by the Land Acquisition Officer at Rs.200/-and Rs.100/- respectively. They had also prayed for the award ofinterest on the compensation at the rate of 9% per annum for aperiod of one year and thereafter at the rate of 15% per annum.Ultimately, the claimants claimed compensation to the tune ofRs.90,00,000/-. The court below framed a single issue as follows:"whether the market value fixed for the acquired land atthe rate of Rs.16,000/- per ground was proper? If not so,what was the actual market value of the acquired land?"5. In the Trial, the 1st claimant G.Sambandam Chettiyar deposedas the sole witness C.W.1 on the side of the claimants and 12documents were marked as Exs.C1 to C12 on their side. One Dayalan,Special Thasildhar was examined as the sole witness (R.W.1) and threedocuments were marked as Exs.R1 to R3 on the side of the ReferringOfficer. https://hcservices.ecourts.gov.in/hcservices/

6. At the conclusion of Trial, the learned Trial Judge confirmedthe correctness of the market value of the land, value of thatchedshed and trees fixed by the Land Acquisition Officer. However,taking into account the change in law, the learned Trial Judgedirected payment of solatium at the rate of 30% instead of 15%. Thelearned Trial Judge also directed calculation of Additional Marketvalue (though termed as interest) at the rate of 12% per annum fromthe date of 4(1) notification till the date of the award passed bythe Land Acquisition Officer. The learned Trial Judge also allowedinterest at the rate of 9% per annum for the period of one year fromthe date of taking possession and thereafter at the rate of 15% perannum till the enhanced compensation would be paid to the claimants.7. As against the disallowed portion of the claim made by theclaimants and contending that the amount awarded as compensation isgrossly inadequate, the claimants have come forward with the presentappeal under Section 54 of the Land Acquisition Act, on variousgrounds set out in the memorandum of appeal. 8. Pending disposal of the appeal, the appellants/ claimantshave come forward with C.M.P.No.699 of 2008 under Order 41 Rule 27C.P.C. seeking permission to adduce additional evidence and anotherpetition C.M.P.No.700/2008 under Order 41 Rule 27 seeking permissionto raise additional grounds in the appeal. The said prayers havebeen made based on the contention that they were not able to producenecessary documents before the trial court to prove the market valueof the property as on the date of 4(1) notification as the existenceof the said document was not within the knowledge of the appellantsat that point of time and they came across such documents only duringthe pendency of the appeal. The prayer made in C.M.P.No.700/2008 forpermission to raise additional grounds is only consequential to thepetition for reception of additional evidence. The reasons assignedby the appellants for not producing the documents before the trialcourt, which are now sought to be introduced are not satisfactory.Apart from the same, the documents now sought to be introduced aresale deeds pertaining to properties situated at a considerabledistance from the acquired property. In addition to that thosedocuments are not sale deeds relating to vacant sites. They are saledeeds under which land along with buildings were sold. The documentsdo not contain the split up particulars of the value as the value ofland and value of building. However, the appellants have chosen toget a valuation certificate for the building from one buildingsurveyor. The same could have been done in respect of Ex.C11 beforethe trial court. Having failed to do so, the appellants have nowcome forward with the present petition to introduce such evidenceonly to fill up the lacunae caused in their case. Therefore, thiscourt is of the considered view that both the petitions do not haveany merit in them and they deserve to be dismissed. In addition tothat, this court is of the view that the issue involved in the casecan be decided conveniently with the help of the evidence adducedbefore the trial court. No case for adducing additional evidence hasbeen made out by the appellants under Order 41 Rule 27 of CivilProcedure Code. Therefore, this court comes to the conclusion thatC.M.P.No.699/2008 and C.M.P.No.700/2008 deserve to be dismissed. https://hcservices.ecourts.gov.in/hcservices/

9. Though the Land Acquisition Officer considered six sale deedsfor the purpose of fixing the market value of the acquired propertyas on the date of Section 4(1) notification, namely 20.09.1978, theLand Acquisition Officer came to the conclusion that all the six saledeeds did not reflect the correct market value of the acquiredproperty as on the date of Section 4(1) notification. Of course, outof the six sale deeds included in the sales data, five sales hadtaken place for a rate lesser than the one fixed by the LandAcquisition Officer, as the market value of the acquired property.The Land Acquisition Officer had fixed the market value of theacquired property as on the date of Section 4(1) notification atRs.16,000/- per ground. Under the five sale deeds rejected by theLand Acquisition Officer as not reflecting the correct market value,the lands had been sold comparatively at a lesser rate per ground.Under one sale deed bearing document No.706/1978 pertaining toS.No.4310/56, the property was sold at the rate of Rs.19,393/- perground. The Land Acquisition Officer did not rely on the said sale,as the subject matter of the sale was at a distance of more than fourfurlongs and according to him the same would not reflect the truemarket value of the land acquired. After discarding all the six saledeeds considered by him to fix the market value, the Land AcquisitionOfficer chose to adopt the Urban Land Tax value. The value fixedunder the Urban Land Tax for the acquired land on 01.07.1971 wasadopted to be the market value of the acquired land on the said date.As Section 4(1) notification was issued after seven years from thesaid date, the Land Acquisition Officer fixed the market value as onthe date of Section 4(1) notification by giving an increase at therate of 9% per annum. Ultimately, deducting a sum of Rs.300/- fromsuch amount, the Land Acquisition Officer fixed the market value ofthe acquired property at Rs.16,000/- per ground. 10. Though the appellants/claimants would have challenged themethod adopted by the Land Acquisition Officer in arriving at themarket value of the acquired property, it is trite law that areference under Section 18 of the Land Acquisition Act (LAOP) is notan appeal against the award of the Land Acquisition Officer and thecourt dealing with the reference under Section 18 is not an appellateforum sitting in appeal over the award of the Land AcquisitionOfficer. A reference under Section 18 is original proceedings akinto a suit wherein the claimant occupies the position of the plaintiffand the Referring officer occupies the position of the defendant. Asit is an original proceedings like a suit, it is for the claimant toprove his case that the market value of the acquired property as onthe date of Section 4(1) notification was more than the amount fixedby the Land Acquisition Officer and that he is entitled to anenhanced compensation calculated adopting a higher amount as marketvalue of the acquired property. The appellants, in an attempt toshow that the market value of the acquired property was more than theamount fixed by the Land Acquisition Officer, had produced copies offour sale deeds marked as Ex.C2, C3, C11 and C12. But, out of thefour sale deeds, Ex.C2 and C3 came into existence several years afterthe notification under Section 4(1) of the Land Acquisition Act waspublished. Therefore, the court below has rightly refused to fix the https://hcservices.ecourts.gov.in/hcservices/ market value of the acquired property based on Ex.C2, C3 and C12. Sofar as Ex.C11 is concerned, no doubt, it is a document contemporaryto the notification under Section 4(1) of the Land Acquisition Act.But the said sale deed pertains to S.No.2996/2001 in NewWashermanpet, whereas the acquired property is situated in Tondiarpetvillage. Apart from that under the said document, a land measuring1,347 sq.ft. along with the building therein was sold for a sum ofRs.39,000/-. The value of the land and building have not beenseparately given. A specific suggestion was put to CW-1 that thesaid land sold under Ex.C11 was far away from the acquired land. Ofcourse the said suggestion was denied by CW-1. But, CW-1 himselfadmitted that he did not know either the vendor or the purchaserunder Ex.C11. CW-1 has also pleaded ignorance of the name of thestreet in which the said property was situated. Therefore, thiscourt finds no defect or infirmity in the choice of the court belowto reject the said document as not helpful to assess the correctmarket value of the acquired land as on the date of notificationunder Section 4(1) of the Land Acquisition Act.11. On the other hand, the Referring Officer has produced a truecopy of an assessment order made under the provisions of the UrbanLand Tax Act, 1966 relating to the survey number in which theacquired land was comprised as the basis on which the market valuewas sought to be fixed. The acquired land is comprised inS.Nos.4059/1, 4059/14, 4059/15, 4059/16 and 4059/17. The assessmentorder under the Tamil Nadu Urban Land Tax Act, 1966 was made inrespect of S.No.4059/1. It is adjoining the acquired land which canseen from the survey field map of S.No.4059/1 and 4059/14 to 19marked as Ex.R2. A copy of the Urban Land Tax Assessment order dated07.03.1995 has been produced and marked as Ex.R1. As the documentsproduced on the side of the appellants/claimants are not helpful tofix the market value of the land acquired, the decision arrived at bythe learned trial judge to assess the market value of the acquiredland on the basis of Ex.R1 assessment order cannot be termed eitherinfirm or discrepant. But whether the learned trial judge hasrightly assessed the market value of the acquired property inaccordance with the particulars found in Ex.R1 Assessment Order hasgot to be considered. 12. The assessing authority, namely the Assistance Commissionerof Urban Land Tax, relying on a sale deed, came to the conclusionthat the market value of the property comprised in S.No.4059/1 as onthe date of 01.07.1971 was Rs.16,000/- per ground. In fact theassessing authority under the Urban Land Tax Act has made thefollowing observation in Ex.R1 Assessment Order:-"Hence I consider that a higher rate of Rs.16,000/- per groundcan be reasonably determined for the case land and I accordinglyfinally determine the market value at Rs.16,000/- per ground underSection 10(2)(b) of the Act for the case land"13. However, relying on a government order in G.O.Ms.No.2625Revenue dated 27.02.1976, which directed the market value for thepurpose of Urban Land Tax as on 01.07.1971 should be limited to https://hcservices.ecourts.gov.in/hcservices/ double the market value fixed on the earlier occasion, namely as on01.07.1963, Assessing Authority (Assistant Commissioner of Urban LandTax), fixed market value as on the date of notification atRs.10,000/- per ground. The market value fixed as on 01.07.1963 wasRs.5,000/-, the assessing officer under the Urban Land Tax Actlimited the market value of the said land to Rs.10,000/- per groundas on 01.07.1971. This aspect was not properly considered by thelearned trial judge. The actual market value as on 01.07.1971 wasunequivocally fixed under Ex.R1 at Rs.16,000/- per ground. However,only for the purpose of taxation, the same was limited toRs.10,000/-. Therefore, this court is of the considered view thatthe learned trial judge committed a mistake in fixing the marketvalue of the acquired property at the rate of Rs.10,000/- per groundas on 01.07.1971 instead of Rs.16,000/- per ground as the said date.It shall be quite reasonable and justifiable to fix the market valueof the acquired land as on 01.07.1971 at Rs.16,000/- per ground.Since there was a gap of 7 years and two months between 01.07.1971and the date of Section 4(1) notification, an increase in the marketvalue at a certain percentage has to be allowed which the court belowhas rightly done. But the trial judge allowed the increase in themarket value @ 9% per annum. What is the basis on which the rate ofincrease was decided is not spelt out in the judgment of the trialcourt. On the other hand, when there is no guideline, we can get aclue from Section 23(1-A) of the Land Acquisition Act which says thatan additional market value of the land at the rate of 12% per annumshall be calculated from the date of Section 4(1) notification tillthe date of award or the date of taking possession, whichever isearlier. The said section is intended to be made applicable for theperiod subsequent to the date of section 4(1) notification. Byanalogy we can take a clue from the said section as to at whatpercentage the increase in the market value should be given when themarket value of the acquired property is fixed with reference to someyears prior to the date of section 4(1) notification, to find outwhat could be the market value as on the date of 4(1) notification.Therefore, this court comes to the conclusion that instead of 9%increase per annum, the trial court should have allowed 12% increasein the market value per annum. While calculating the market value ason the date of section 4(1) notification we can disregard thefraction of a year, namely 2 months (approximate) and calculate theincrease in market value of the acquired land as on the date of 4(1)notification for seven years at the rate of 12% per annum. Thus themarket value of the acquired land as on the date of 4(1) notificationper ground is to be fixed as follows:Market value as on 01.07.1971 per ground : Rs.16,000/-As on the date of section 4(1) notification, namely 20.09.1971 increase in market value @ 12%per annum for 7 years: 16,1000 x 12 x 7100: Rs.13,440/- https://hcservices.ecourts.gov.in/hcservices/ So, the market value of the acquired land as on the date of section 4(1) notification is to be fixed at Rs.29,440/- (16,000/- + 13,440)per ground. In accordance with the aboe said calculation, the marketvalue of the acquired property as on the date of Section 4(1)notification should be fixed at the rate of Rs.29,440/- per ground.The compensation shall be worked out as follows:Market value of the acquired land measuring 8 grounds 2,102 sq.ft. @Rs.29,440/- per ground is Rs.2,61,304.53. Though Section 23(1-A) wasintroduced subsequent to the award passed by the Land AcquisitionOfficer, the same is applicable to pending cases. Therefore, anadditional market value @ 12% per annum from the date of 4(1)notification till the date of award or date of taking possessionwhichever is earlier should be calculated and added to the marketvalue. The possession of the property is said to have been taken bythe government on 12.03.1984. Therefore, the additional market valueshall be calculated for the period from 20.09.1978 to 12.03.1984 @12% per annum on the market value. As per the amended Section 23(2)which is applicable to pending cases, 30% solatium should becalculated. A small thatched shed with mud walls and an old boringpump have been valued at the rate of Rs.200/- and Rs.100/-respectively. There need not be any change in the said valuation.The same is to be added to the market value of the property. So, thetotal market value of the acquired land including thatched shed andboring pump is fixed at Rs.2,61,604.53. The break-up details arefurnished below:Market value at the rate of Rs.29,440/- per ground for8 grounds 2102 sq.ft.= Rs.2,61,304.53Value of the thatched shed andbore pump= Rs. 300.00Total market value = Rs.2,61,604.5330% solatium = Rs. 78,481.361Additional market value calculatedat the rate of 12% per annum on themarket value for the period from the the date of 4(1)notificationtill the date of award of the landAcquisition Officer. i.e.from 20.09.1978 to 12.03.1984 (i.e.2000 days) is = Rs.1,72,013.94________________The total amount of compensationto which the appellant/claimant No.1 shall be entitled is = Rs.5,12,099.83 (which is rounded to Rs.5,12,100.00) https://hcservices.ecourts.gov.in/hcservices/ The amount awarded by the LandAcquisition Officer as compensation,= Rs.1,63,660.34The balance amount representing the enhanced compensation payableto the appellant/claimant No.1 is= Rs.3,48,439.66(which is rounded to Rs.3,48,440.00)14. As per Section 28 of the Land Acquisition Act on thecompensation awarded in excess of the sum awarded by the collector(Land Acquisition Officer), the land owner shall be entitled to aninterest at the rate of 9% per annum, from the date on whichpossession was taken by the government, for a period of one year andthereafter at the rate of 15% per annum from the date of expiry ofthe above said period of one year till deposit. In addition to thesaid interest, since the appellants/claimants were not paid even thecompensation amount awarded by the Land Acquisition Officer till theclaimants filed their Writ Petition in the High Court inW.P.No.462/1985 and the amount awarded as compensation by the LandAcquisition Officer was paid only on 11.09.1989, it shall be just andnecessary to direct the respondents to pay an interest on the amountawarded by the Land Acquisition Officer, namely Rs.1,63,660.34 at 9%per annum from 12.03.1984, the date on which possession was takentill 11.09.1989, the date on which the amount awarded by the LandAcquisition Officer was paid/deposited.15. Out of four claimants, the fourth claimant died and theclaimants 1 to 3 were recorded as the legal representatives.Subsequently, the first claimant, by name M.G.Sambandam Chettiar alsodied and the second and third claimants were recorded as the legalrepresentatives of the first claimant. As such the appeal has beenpreferred by the second and third claimants alone. They are entitledto the compensation for acquired property in equal moieties.16. In the result, the appeal is allowed in part and the awardof the trial court is modified as follows:a) The total market value of the property including the value ofthatched shed and bore pump is fixed at Rs.2,61,604.53Pb) A sum of Rs.78,481.359 being 30% of the market value isawarded as solatium under Section 23(2) of the Land Acquisition Act.c) A sum of Rs.1,72,013.94 is awarded as additional market valuecalculated @ 12% per annum on the market value from the date of 4(1)notification till the date of award.d) The total amount of compensation, (market value + solatium +additional market value) is fixed at Rs.5,12,100.00e) After deducting the amount awarded by the Land AcquisitionOfficer as compensation as per his award, the enhanced compensationto which the respondent herein/claimant is entitled is fixed at https://hcservices.ecourts.gov.in/hcservices/ Rs.3,48,440/- f) On the enhanced amount of compensation, the respondentherein/claimant shall be entitled to an interest @ 9% per annum fromthe date on which the Government took possession of the land, namely12.03.1984 for a period of one year and thereafter at the rate of 15%per annum till the amount is deposited.g) The respondent shall also pay interest on the amount awardedby the Land Acquisition Officer, namely Rs.1,63,660.34 from12.03.1984 (the date of taking possession) to 11.09.1989 (the date ofdeposit/payment of the said amount) at the rate of 9% per annum.Andh) There shall be no order as to cost in this appeal. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarasrTo1. The Registrar, City Civil Court, Madras.Copy to : The Section Officer,V.R.Section, High Court, Madras.+ 1 cc to Mr.J.R.K.Bhavanantham,Advocate,SR.36260+ 1 cc to Mr.M.Chidambaram,Advocate,SR.35604A.S.No.550 of 1997KS(CO)EM/2.9.09