The Special Tahsildar Adi Dravidar Welfare Namakkal Salem District v. Pooncholai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.07.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.964 of 1997The Special Tahsildar Adi Dravidar WelfareNamakkal Salem District...Appellant/Referring OfficerVs.Pooncholai...Respondent/ClaimantThis appeal suit filed under Section 54 of the LandAcquisition Act as against the judgment and decree of the learnedSubordinate Judge of Namakkal in L.A.O.P.No.80 of 1992 dated29.11.1995.For Appellant: Mr.V.Ravi, Special Govt. Pleader (AS)For Respondent: No Appearance 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, Namakkal made in L.A.O.P.No.80 of 1992 dated 29.11.1995. TheLand Acquisition Officer, namely the Special Tahsildar, AdiDravidar Welfare, Namakkal is the appellant herein. The claimantbefore the court below in the LAOP is the respondent.2. An extent of 0.98.0 hectare dry land (equivalent to 2.42acre) comprised in Survey No.155/2 in Sircarpalayapalayam Village,Namakkal Taluk, the then Salem District was acquired by theGovernment following the procedure prescribed in the LandAcquisition Act (Central Act) for providing house sites/pathway tothe Arunthathiars of Sircarpalayapalayam village. The notificationunder Section 4(1) of the Land Acquisition Act, 1894 for acquiringthe said land was approved by the Government in G.O.Ms.No.1186 AD &TW Dept. dated 11.07.1990 and the same was published in theGovernment Gazette part II, Section - 2 supplement page-6 issueNo.31A dated 08.08.1990. The same was published in Tamil dailynews papers Murasoli and Viduthalai on 14.08.1990 and 10.08.1990respectively. https://hcservices.ecourts.gov.in/hcservices/

3. After hearing the objections and overruling the same, theGovernment decided to proceed with acquisition and the declarationunder Section 6 of the Land Acquisition Act, 1894 was approved bythe Government in G.O.(3D) No.727 A.D. & TW Dept dated 31.07.1991.The same was also published in the Gazette on 21.08.1991 and theTamil daily news papers "Malaimalar" and "Thinathoothu" on23.08.1991. It was also published in the locality on 26.08.1991.After award enquiry, the Referring Officer passed an award on23.03.1992 in his proceedings Roc.No.3601/89 fixing thecompensation at Rs.86,557/- for the above said land, taking themarket value of the property as on the date of notification underSection 4(1) of the Land Acquisition Act at Rs.23,529/- per acre.The Referring Officer relied on a sale deed dated 06.08.1988registered as document No.438/1988 in the office of the SubRegistrar, Erumaipatti. The total amount of compensation wasarrived as follows:Market value of the land @Rs.25,529/- per acre for 2.42 acres (0.98.00 hectares): Rs.58,116.63Value of building, wells, crops, trees etc.: NilSolatium @ 30% on the market value: Rs.17,434.98Increase in the market value @12% per annum under Section 23(1-A)of the Land Acquisition Act from thedate notification under Section 4(1)notification till the date of awardor date of taking possession, whicheveris earlier (28.08.1990 to 25.03.1992): Rs.11,005.53--------------Total: Rs.86,557.14Rounded to: Rs.86,557.004. Not satisfied with the amount of compensation awarded bythe Referring Officer, the appellant herein/claimant chose toreceive the said amount under protest and with a request for makinga reference to the Court under Section 18 of the Land AcquisitionAct, 1894 for fixing a reasonable amount as compensation for theacquired land. Accordingly a reference was made by the ReferringOfficer under Section 18 of the Land Acquisition Act to the Sub-court, Namakkal. The same was taken on file by the Sub-Court,Namakkal on its file as LAOP No.80/1992. Claim statement of therespondent herein/claimant and the objections of the ReferringOfficer to the claim statement were filed. In the trial before thecourt below, including the respondent herein/claimant, twowitnesses were examined as P.W.1 and 2 and one document was markedas Ex.A1 on the side of the claimant. No witness was examined and https://hcservices.ecourts.gov.in/hcservices/ no document was marked on the side of the appellantherein/Referring officer. 5. At the conclusion of trial, after hearing the argumentsadvanced on either side, the court below came to the conclusionthat the acquired land had the potential for being developed intohouse sites and hence it must be valued taking a sq.ft. as the unitfor valuation. The court below relied on the only documentproduced on the side of the respondent herein/claimant and markedas Ex.A1 and on the basis of the valuation found in the saiddocument, fixed the market value of the acquired land as on thedate of notification under Section 4(1) of the Land Acquisition Actat Rs.6/- per sq.ft. However, since the sale deed in respect of asmall extent of land, namely 7500 sq.ft. land sold as a house site,was taken as the data sale reflecting the market value of theacquired land, to make the acquired land comparable with the saidland, the court below chose to deduct 25% of the total extent asthe area required for development like road, public area, openspace etc. and calculated the value for the rest of the area alone.Thus, out of the total extent of 1,05,415 sq.ft. Which isequivalent to 0.98.00 hectare, deducting an extent of 25% fordevelopmental purposes, the balance extent alone, namely 79,062sq.ft. alone was valued at the rate of Rs.6/- per sq.ft.Accordingly, the valuation was made and compensation was assessedby the court below in the following terms:-Total extent of land acquired: 1,05,415 sq.ft.25% deduction fordevelopmentalpurposes: 26,353 sq.ft.------------------Balance to be valued at Rs.6/-per sq.ft.: 79,062 sq.ft.The value of the land @ Rs.6/-sq.ft. as on the date of 4(1)notification: Rs.4,74,372.00Solatium @ 15% on the market value: Rs. 71,155.80----------------Grand Total Rs.5,45,527.80Fixing the total compensation at the above said amount, thecourt below directed the Government to pay a sum of Rs.4,60,722.80as the enhanced compensation after deducting the amount awarded bythe Referring Officer, namely Rs.84,805/- from the total amount ofcompensation. The court below also directed payment of interest @ https://hcservices.ecourts.gov.in/hcservices/ 6% per annum from the date on which possession was taken by theGovernment, namely 25.03.1992.6. Aggrieved by the said award and contending that the amountof compensation awarded by the court below is highly excessive andexorbitant, the appellant herein/Referring Officer has come forwardwith the present appeal on various grounds set out in theMemorandum of Appeal.7. The points that arise for consideration in this appeal are1) Whether the amount awarded by the court below ascompensation is excessive requiring downward revision?2) To what relief the parties are entitled?8. Mr.V.Ravi, learned Special Government Pleader representingthe appellant herein argued that the court below committed an errorin comparing a small piece of land measuring 7500 sq.ft. to alarger extent of land, namely 2.42 acres to assess the market valueof the acquired land; that the court below committed an error inassessing the market value of the acquired land taking a sq.ft. asthe unit of assessment when the acquired land was on ground dryland as on the date of 4(1) notification and that even if it isassumed that the acquired land did have the potential to bedeveloped into house sites, a larger percentage should have beendeducted as area required for developmental purposes. Based on theabove said contentions, the learned Special Government Pleader hasargued that the award of the court below is infirm and defectiverequiring interference by this court and that the compensationawarded by the court below should be drastically reduced. 9. Unfortunately, in this case, the respondent herein/claimanthas not chosen to contest the appeal. Therefore, this court has todecide the case only after hearing the submissions made by learnedSpecial Government Pleader representing the appellantherein/Referring Officer and after perusing the materials availableon record.10. Admittedly, notification under Section 4(1) of the LandAcquisition Act, 1894 was published in the Tamil Nadu GovernmentGazetted dated 08.08.1990 and the same was again published in thedaily news papers 'Murasoli' and 'Viduthalai' on 14.08.1990 and10.08.1990 respectively. Since the notification under Section 4(1)was not published in the vernacular language, again the same aspublished in the Tami dailies 'Malai Malar' and 'Dinathoothu' on23.08.1991. However, the Referring Officer took the date ofSection 6 declaration as the relevant date from which theadditional market value should be calculated under Section 23(1-A)of the Land Acquisition Act. The said mistake was not at alladverted to by the learned Subordinate Judge who tried the LAOP.On the other hand, the learned Subordinate Judge seems to have https://hcservices.ecourts.gov.in/hcservices/ totally ignored the provision found in Section 23(1-A) of the LandAcquisition Act which mandates that an additional market value @12% per annum from the date of publication of notification underSection 4(1) of the Land Acquisition Act till the date of award ofthe Referring Officer or the date of taking possession whichever isearlier should be added. Section 23(2) of the Land Acquisition Actwas amended in 1984 itself by Act 48 of 1984 prescribing 30% of themarket value to be calculated as solatium. The acquisitionproceedings in this case itself started much later than the date onwhich the said amendment was brought into force. The learnedSubordinate Judge in utter disregard of or ignorance of the saidamendment has chosen to award solatium @ 15% percent alone. Eventhe Referring Officer, in his award has calculated 30% on themarket value as solatium. It is very unfortunate to note that thelearned Subordinate Judge did not even think of how 30% solatiumhappened to be calculated by the Referring Officer. Had thelearned Subordinate Judge put such a question to himself or to theparties litigating before him, he would have been enlightened bybrining the amendment introduced in 1984 to his notice.11. The learned Subordinate Judge has also failed to calculatethe additional market value in terms of Section 23(1-A) of the LandAcquisition Act and include it in the total amount of compensation.As per Section 23(1-A) of the Land Acquisition Act, 1894,additional market value at the rate of 12% per annum from the dateof publication of Section 4(1) notification till the date of awardor the date on which possession was taken by the Governmentwhichever is earlier should be calculated and added to thecompensation amount. The Referring Officer, in his award haschosen to apply the said provision for assessing additional marketvalue. However, the learned Subordinate Judge who dealt with theLAOP, omitted to do so. Apart from the above said defects andinfirmities found in the judgment of the court below, yet anothermistake is also noticed by this court. The interest on excesscompensation has been enhanced by the legislature by the above saidAmending Act of 1984. Previously, it was 6%. By virtue of thesaid amendment, now the interest to be allowed on excesscompensation is 9% per annum for a period of one year from the dateon which possession was taken by the Government and 15% per annumthereafter.12. All the above said defects found in the judgment of thecourt below show that the learned Subordinate Judge was lacking inlegal knowledge and was not even aware of the change of law whichwas brought into effect 11 years prior to the date on which hepronounced his judgment in the LAOP. As the errors and defectspointed in the judgment of the court below are not regarding thefactual issues but are relating to the application of correctprovision of law, this court is of the considered view that it isone of the exceptional cases in which this court has to invoke itspowers under Order 41 Rule 33 and set-right the mistakes committedby the court below. Rule 33 of Order 41 gives wide powers enabling https://hcservices.ecourts.gov.in/hcservices/ the Appellate Court to pass any order or decree to meet the ends ofjustice. But it is a judicial discretion to determine allquestions in order to render complete justice between the parties.Exercise of such discretion should not be refused on meretechnicalities as held by the Hon'ble Supreme Court in AIR 1988(SC) 54. However, it must be noted that ordinarily the appellatecourt should not vary or reverse the decree or order in favour of aparty who has not preferred any appeal despite the presence ofOrder 41 Rule 33 in the Code. However, the Hon'ble Supreme Courtin AIR 1998 (SC) 3118 has held that in exceptional cases the ruleenables the appellate court to pass such a decree or order whichought to have been passed even if such decree would be in favour ofparties who have not filed any appeal and that such a power of theappellate court though discretionary should not be declined to beexercised merely on the ground that the party has not filed anyappeal or cross-objection. As a flagrant violations of thestatutory provisions are found in the judgment and decree of thecourt below, it is one such exceptional case in which this courthas to exercise its power under Order 41 Rule 33 to pass a decreewhich shall incorporate the statutory benefits available to theclaimants under Sections 23(1-A), 23(2) and 28 of the LandAcquisition Act, 1894 (as amended by the Amending Act of 1984). 13. Therefore, while accepting the contention of the learnedSpecial Government Pleader that it is a fit case in which 50%deduction should be made for developmental purposes from the marketvalue of the land arrived at on the basis of the rate found inEx.C1, this court also comes to the conclusion that the decree ofthe court below deserves to be interfered with and modified bydirecting the addition of statutory benefits under Sections 23(1-A)and 23(2) to the market value to arrive at the total amount ofcompensation, in exercise of its power under Order 41 Rule 33 ofCivil Procedure Code. Accordingly, the total compensation andenhanced compensation are arrived at as follows:Total extent of land acquired: 1,05,415.50 sq.ft.50% of the said extent liableto be deducted for develop-mental purposes: 57,007.50 sq.ft.---------------------Balance to be valued @ Rs.6/- per sq.ft.: 57,007.50 sq.ft.Value of the said extent @ Rs.6/-sq.ft. 57007.5 x 6: Rs.3,42,045.0030% solatium on the market value https://hcservices.ecourts.gov.in/hcservices/ thus arrived at : Rs.1,02,613.50Increase in market value @ 12% atRs.3,42,045/- from the date of 4(1)notification till the date on which the possession was taken whicheveris earlier. Date of 4(1) notifica-tion published in the gazette on 08.08.1990. Date of award 25.03.1992(admitted to be the date of takingpossession). Totally 594 days: Rs. 66,797.17----------------Total amount of compensation: Rs.5,11,455.67Rounded to: Rs.5,11,456.00Amount already awarded by the LandAcquisition Officer: Rs. 84,805.00 Excess compensation to which the respondent/claimant shall be entitled: Rs.4,26,651.00For the said amount, as per Section 28 of the Land AcquisitionAct, the respondent herein/claimant shall be entitled to claiminterest at the rate of 9% per annum for a period of one year fromthe date on which possession was taken by the Government andthereafter (after the period of above said one year) @ 15% perannum till the amount is deposited.14. For all the reasons stated above, this appeal is partlyallowed and the market value of the acquired land is assessed atthe rate of Rs.6/- sq.ft. after allowing a deduction of 50% fromthe total extent for developmental purposes and the total marketvalue of the acquired property as on the date of 4(1) notificationis reduced to Rs.3,42,045/- from Rs.4,74,372/-. However,exercising the power of the appellate court under Order 41 Rule 33,the decree of the court below is further modified as follows:-a) A sum of Rs.1,02,613.50 being 30% of the market value isawarded as solatium under Section 23(2) of the Land AcquisitionAct.b) A sum of Rs.66,797.17 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.c) The total amount of compensation, (market value + solatium+ additional market value) is fixed at Rs.5,11,456.00d) After deduction 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.4,26,651/- e) On the enhanced amount of compensation, the respondentherein/claimant shall be entitled to an interest @ 9% per annumfrom the date on which the Government took possession of the land,namely 25.03.1992 for a period of one year and thereafter at therate of 15% per annum till the amount is deposited.f) The appellant shall also be liable to pay proportionatecost of the respondent herein/claimant in the LAOP.Andg) There shall be no order as to cost in this appeal. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarasrTo1. The Subordinate Judge, Namakkal, Salem District.2. The Section Officer, V.R.Section, High Court, Madras.Judgment inA.S.No.964 of 1997NTK {CO}TP/7.9.2009.