Revenue Divisional Officer, Tiruvannamalai v. A.Geetha Ammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.07.2009 CORAMTHE HONOURABLE MR.JUSTICE P.R. SHIVAKUMARA.S.No.791 of 1997The Revenue Divisional Officer,Tiruvannamalai. .. Appellant/Referring OfficerVs.1. A.Geetha Ammal2. Tamil Nadu Housing Board, Rep. by its Executive Engineer and Administrative Officer, Vellore Housing Unit, Vellore. .. Respondents/Claimant(2nd respondent is impleaded as party respondentas per order of this Court dated 04.11.2003 made in C.M.P.No.15656/97)Prayer: Appeal filed against the judgment and decree dated 28.10.1993made in L.A.O.P.No.7 of 1990 on the file of the learned SubordinateJudge, Tiruvannamalai.For Appellant:Mr.V.Ravi,Special Government Pleader (AS)For R-1:Mr.T.R.RajaramanFor R-2:No AppearanceJUDGMENTThis appeal has been preferred against the judgment and decreeof the learned Subordinate Judge, Tiruvannamalai, dated 28.10.1993made in L.A.O.P.No.7 of 1990 directing payment of enhancedcompensation for the compulsory acquisition of the land belonging tothe first respondent.2. A total extent of 49 acres and 41,485 sq. ft. of landcomprised in various survey numbers including the one concerned inthis appeal was acquired by the Government at the instance of theRequisitioning Department viz., the Tamil Nadu Housing Board forconstruction of houses under the Mini Neighbourhood Scheme in https://hcservices.ecourts.gov.in/hcservices/ Tiruvannamalai Taluk. The notification under Section 4(1) of theLand Acquisition Act was approved by G.O.Ms.No.891, Housing and UrbanDevelopment Department dated 08.09.1982. The same was published inthe Tamil Nadu Government Gazette dated 29.09.1982 and also in thenewspapers. After hearing the objections, some of the areas weredeleted from the acquisition and the objections raised in respect ofthe other areas were overruled. Declaration under Section 6 of theLand Acquisition Act was approved in G.O.Ms.No.838, Housing and UrbanDevelopment department dated 22.08.1985. The same was published inTamil Nadu Government Gazette Supplementary dated 04.09.1985. It wasalso published in English daily, the Hindu and Tamil daily “ThinaThanthi” on 09.09.1985. Thereafter, award enquiry was conducted bythe Revenue Divisional Officer, Tiruvannamalai. The acquired landswere classified into three categories, viz., 1.Manavari dry lands,2.Irrigated dry lands and 3.Wet lands. As many as 18 sales wereincluded in the data sales to assess the market value of Manavari drylands. Out of the 18 sale deeds, 17 were rejected as not reflectingthe correct market value of the acquired land and a sale deed dated05.08.1982 was selected as the data sale for Manavari dry lands. Asale deed dated 14.10.1981 in respect of 22 cents of lands in SurveyNo.1786/3 bearing document No.1186/1981 has been taken as the datasale both for irrigated dry lands and wet lands.3. Under sale deed dated 16.05.1981 bearing Document No.607, anextent of 5200 sq. ft. of land comprised in Survey No.1774/1 had beensold for a sum of Rs.2,600/-. It was selected as the data salereflecting the market value of Manavari dry lands. Thus, the marketvalue of the acquired land was calculated at the rate of Rs.0.50paise per sq. ft. for Manavari lands and Rs.1.46 paise per sq. ft.for irrigated dry lands and wet lands. We are concerned with thelands belonging to the first respondent acquired by the Governmentfor the above said scheme, the particulars of which are as follows:-1)Survey No.1789/2C measuring 0.01240/- sq. ft. and2)Survey No.1793/1A1A2 measuring 0.02642 sq. ft. Both the lands were classified as dry lands by the Land AcquisitionOfficer. 1789/2C was classified as irrigated dry land whereas1793/1A1A2 was classified as Manavari dry land. Thus, the marketvalues of the said properties were assessed by the Land AcquisitionOfficer as follows:-a) Survey No.1793/1A1A2 (Manavari dry land) Market value as on the date of 4(1) notification at the rate ofRs.0.50 paise per sq. ft. = 2642 x 0.50 = Rs.1,321. https://hcservices.ecourts.gov.in/hcservices/ b) Survey No.1789/2C (irrigated dry land)Market value as on the date of 4(1) notification at the rate ofRs.1.46 paise per sq. ft. = 1240 x 1.46 = Rs.1,810.40 paise.The total compensation awarded by the Land Acquisition Officerhad been worked out as follows:-Land value = (Rs.1,321.00 + Rs.1,810.00) = Rs.3,131.40 Solatium at 30% = Rs. 939.40 Increase in market value at the rate of 12% per annum from the date of 4(1) notification till the date of award of the Land Acquisition Officer (5 years)= Rs.1,878.85 Total= Rs.5,949.65 4. On the request of the first respondent herein/the claimant,a reference was made under Section 18 of the Land Acquisition Act tothe Sub Court, Tiruvannamalai for fixing a reasonable compensationfor the land acquired from the first respondent herein/the claimant.The same was taken on file by the learned Subordinate Judge,Tiruvannamalai as L.A.O.P.No.7 of 1990. In the claim statement filedbefore the Court below, the first respondent herein contended thateven the guideline values of the lands lying on the East and West ofThandarampet road had been fixed at Rs.30 per sq. ft. and Rs.27 persq. ft respectively; that the acquired lands concerned in this appealwere situated near Thandarampet main road; that the acquired landsshould have been classified and valued as house sites and that thecompensation should be fixed taking the market value as on the dateof 4(1) notification at Rs.100 per sq. ft. The claim was resisted bythe appellant herein and the second respondent herein contending thatthe market value was fixed following proper procedure; that theamount awarded by the Land Acquisition Officer was reasonable andthat therefore, the first respondent herein/claimant was not entitledto any enhancement of compensation. 5. The Tribunal framed a single issue, which reads as follows:- "Whether the claimant is entitled to claim enhancedcompensation?"6. One witness was examined as C.W.1 and five documents weremarked as Exs.C.1 to C.5 on the side of the claimant (firstrespondent herein). One witness was examined as R.W.1 and fourdocuments were marked as Exs.R.1 to R.4 on the side of the https://hcservices.ecourts.gov.in/hcservices/ Appellant/Referring Officer. 7. At the conclusion of trial, the learned Subordinate Judge,Tiruvannamalai heard the arguments advanced on either side andconsidered the evidence in the light of such arguments. Upon suchconsideration, the learned Subordinate Judge, Tiruvannamalai directedpayment of additional compensation by fixing the market value of theacquired property uniformly at the rate of Rs.12 per sq. ft.irrespective of the classification of the land. While directingsuch assessment of market value, the learned Subordinate Judge hasalso directed deduction of 1/5th part of the land viz., 776 sq. ft.for developmental purposes from the total extent of land acquired andcalculated the total market value of the acquired land andcompensation as follows:-i) Market value of the acquired land (3882 – 776 = 3106 sq. ft. at the rate of Rs.12/- per sq. ft.= Rs.37,272.00ii) Solatium on the above said value at 30%= Rs.11,181.00iii) Market value + Solatium = Rs.48,453.00iv) Additional market value on the above said total amount from the date of 4(1) notification till the date of award passed by the Land Acquisition Officer at the rate of 12% per annum = Rs.28,862.00 v) Total amount of compensation = Rs.67,315.00vi) Amount already awarded by the Land Acquisition Officer = Rs. 5,949.45 ----------------Excess compensation= Rs.61,365.00 ----------------The learned Subordinate Judge also directed payment of intereston the above said amount from the very next day of the award of theLand Acquisition Officer at the rate of 9% per annum for a period ofone year and thereafter at the rate of 15% per annum till payment. 8. Aggrieved by the said judgment and decree of the learnedSubordinate Judge, Tiruvannamalai awarding enhanced compensation asindicated supra, the Government through the Referring Officer hascome forward with present appeal on various grounds set out in thememorandum of appeal. https://hcservices.ecourts.gov.in/hcservices/

9. Of course it is true that the Requisitioning Department viz.,the Tamil Nadu Housing Board was not made a party before the lowercourt and also in the appeal as it was originally filed in thiscourt. Subsequently, the Requisitioning Department made anapplication viz., Civil Miscellaneous Petition No.15656 of 1997 forgetting impleaded as a party in the appeal. The said miscellaneouspetition was allowed on 04.11.2003 and thus, the Tamil Nadu HousingBoard has been made a party to the appeal and arrayed as the secondrespondent in the appeal.10. This Court heard the submissions of Mr.V.Ravi, learnedSpecial Government Pleader representing the appellant,Mr.T.R.Rajaraman, learned counsel for the first respondent/claimant.There is no representation on behalf of the second respondent Tamil Nadu Housing Board. 11. A vast extent of land measuring 49 acres 41485 sq. ft.comprising several survey numbers in Tiruvannamalai Taluk, includingthe first respondent's lands viz., 1) T.S.No.1789/2C measuring0.01240/- sq. ft. and 2) Survey No.1793/1A1A2 measuring 0.02642 sq.ft. was acquired by the Government for construction of houses underthe 'Mini Neighborhood Scheme.' Not satisfied with the amountawarded as compensation by the Land Acquisition Officer, the firstrespondent herein made a request for making a reference under Section18 of the Land Acquisition Act to the court. Thus, the referencehappened to be made to the Sub Court, Tiruvannamalai in L.A.O.P.No.7of 1990. The said court, after trial, fixed the market value of theacquired properties at the uniform rate of Rs.12 per sq. ft. asagainst Rs.0.50 paise for manavari dry land and Rs.1.46 paise forirrigated dry land. While ordering assessment of market value forboth the lands at the uniform rate of Rs.12 per sq. ft., the learnedSubordinate Judge has also directed deduction of 1/5th part of theland from the total extent as the area required for developmentalpurposes since agricultural dry land was to be valued as house sites.The fixation of market value at the rate of Rs.12 is challenged inthis appeal. The appellant is supported by the second respondentviz., the Requisitioning Department. 12. The points that arise for consideration in this appeal are-"1) Whether the learned Subordinate Judge right infixing the market value at the rate of 12 per sq. ft. 2) Whether the compensation awarded by the learnedSubordinate Judge deserves to be reduced?." https://hcservices.ecourts.gov.in/hcservices/

13. Though five documents on the side of the claimant and fourdocuments on the side of the Referring Officer were marked and onewitness each on the side of the claimant and the Referring Officerwere examined, the documents marked as Exs.C.1, Ex.C.4 and Ex.R.3assume importance. Ex.C.3 is the certified copy of the data saleselected by the Land Acquisition Officer as reflecting the marketvalue of the acquired property. The acquired property has beenclassified into two sub categories even though they come under thecommon category 'dry land'. They were classified into manavari dryland and irrigated dry land. For irrigated dry land, the LandAcquisition Officer fixed the market value at the rate of Rs.1.46 persq. ft. based on Ex.C.3 sale deed. But the sale deed taken as thedata sale reflecting the market value of manavari dry land has notbeen produced on the side of the Referring Officer. However, theclaimant has produced Ex.C.1 sale deed to show that the acquiredproperties had been purchased by her on 12.06.1981. The market valuereflected in the said sale deed, as on 12.06.1981 is Rs.1 per sq. ft.However, for a neighbouring land comprised in Survey No.1774/3, anaward was passed fixing the market value of the land at the rate ofRs.12 per sq. ft. Ex.A.4 is the certified suit register extract ofL.A.O.P.No.57 of 1988. The judgement therein was pronounced on26.07.1990. The market value of the neighbouring land acquired forHousing purpose had been fixed at the rate of Rs.12 in the said case.Those lands concerned in the L.A.O.P.No.57 of 1988 were also acquiredfor construction of houses under Mini Neighbourhood Scheme. TheReferring Officer in the said case had also fixed the very sameamount viz., Rs.1.46 per sq. ft. as the market value for theirrigated dry lands and Rs.0.50 paise per sq. ft. for the Manavaridry lands. In the said L.A.O.P. also, the learned Subordinate Judge,Tiruvannamalai by judgment and decree dated 26.07.1990 awardedenhanced compensation by fixing a uniform market value of Rs.12 persq. ft. for the dry lands without any further classification asmanavari dry lands and irrigated dry lands. The said judgment anddecree of the learned Subordinate Judge, Tiruvannamalai dated26.07.1990 made in L.A.O.P.No.57 of 1988 was challenged before thisCourt in A.S.No.884 of 1991. The claimants therein had alsopreferred cross objection No.135 of 1992. A Division Bench of thisCourt, after hearing, dismissed both the appeal and the crossobjection by a judgment dated 12.07.2001. In the said judgment, theDivision Bench of this court has held that the fixation of the marketvalue at the rate of Rs.12 per sq. ft. was quite reasonable and thathence, there was no scope for either reducing or enhancing the marketvalue. 14. As the learned Subordinate Judge has fixed the market valuebased on an earlier order in another L.A.O.P.No.57 of 1988, whichorder was confirmed by a Division Bench of this court, this court has https://hcservices.ecourts.gov.in/hcservices/ to necessarily come to the conclusion that the market value fixed bythe court below at the rate of Rs.12 per sq. ft. is quite reasonableand it cannot be held excessive or unreasonable. The first point inissue is answered accordingly. 15. As a large extent of land was acquired for housing schemeand considering extent of land acquired from the firstrespondent/claimant (3882 sq. ft.), the court below has chosen toallow a reduction of 1/5th part of the land from the total extent asthe area required for developmental purposes as the property was tobe valued as house site. By reducing 1/5th part of the land viz.,776 sq. ft., the balance extent alone was valued at the above saidrate. The said procedure adopted by the learned Subordinate Judge isnot challenged to be unreasonable, either by the appellant or by anyone of the respondents. Therefore, there can be no interference inthe market value arrived at by the court below.16. The court below has also rightly awarded 30% of the marketvalue as solatium as per Section 23(2) of the Land Acquisition Act(hereinafter referred to as 'the Act'). However, additional marketvalue as per Section 23(1-A) of the Act was calculated by the courtbelow at the rate of 12% per annum from the date of 4(1) notificationtill the date of award passed by the Land Acquisition Officer, not onthe market value alone, but on the aggregate value of market value +solatium. Now it has been settled that the additional market valueshould not be calculated on the aggregated sum of market value andthe solatium, but the additional market value under Section 23(1-A)of the Act should be calculated on the market value alone. Thelearned Subordinate Judge seems to have committed an error incalculating additional market value on the aggregate sum of marketvalue and solatium. Though the same was not made a ground of attackin the appeal, the same being a legal issue can be raised with thepermission of the court at stage of the proceeding in the appeal.Now the learned Special Government Pleader has made such a plea thatthe said question being a legal issue can be allowed to be raisedduring the arguments in the appeal. This Court, after considering therequest, comes to the conclusion that such a plea has got to beaccepted in view of the apparent mistake committed by the court belowin calculating the additional market value.17. Apart from the above said error committed by the learnedSubordinate Judge, some arithmetical mistakes are also found in thejudgment. While calculating the solatium, the court below hascommitted a mistake in quoting Rs.11.181.00 instead of Rs.11,181.60paise. The same can be ignored if at all there is no other mistake.The court below seems to have committed an arithmetical error bywhich aggregate sum of the market value, solatium and additional https://hcservices.ecourts.gov.in/hcservices/ market value has been quoted to be Rs.67,315.00/- instead of thecorrect figure of Rs.77,315.60 paise. The Appellate Forum cannotsimply close its eyes to such mistakes. Therefore, though the firstrespondent/claimant has not chosen to file any appeal or crossobjection, the said mistake has got to be corrected. 18. For all the reasons stated above, this Court comes to theconclusion that the excess amount of compensation awarded by thecourt below cannot be reduced. At the same time, in exercise of thepowers conferred on the Appellate Court under Order 41 Rule 33 C.P.C.the error committed by the court below in calculating additionalmarket value and the arithmetical mistakes committed by the courtbelow in computing the total compensation should be corrected by thiscourt in this appeal.19. Therefore, the excess compensation to be payable to thefirst respondent/claimant has got to be worked out as follows:-a) Market value calculated at the rate of Rs.12/- per sq. ft. (on 3882 – 776 = 3106 sq. ft.= Rs.37,272.00b) Solatium under Section 23(2) of the Act at 30% of market value= Rs.11,181.60c) Additional market value calculated at the rate of 12% p.a. on the market value indicated in (a) as per Section 23(1-A) of the Act (for 5 years from the date of 4(1) notification till the date of award of the Referring Officer= Rs.22,363.20 ----------------- Total amount of compensation = Rs.70,816.80 Amount already paid as per the award of the Referring Officer= Rs. 5,949.45 ------------------ Enhanced compensation = Rs.64,867.35 ------------------20. In the result, the appeal filed by the appellant praying forreduction of the enhanced compensation awarded by the court below isdismissed. However, exercising the powers of Appellate Court underOrder 41 Rule 33, the award is modified as follows:-21. The first respondent/claimant is entitled to a sum ofRs.64,867/- as enhanced compensation instead of Rs.61,365.55 paiseas found in the decree of the court below. The above said amount https://hcservices.ecourts.gov.in/hcservices/ shall carry on interest at the rate of Rs.9 % per annum from19.09.1987 (the day after the admitted date of taking possession) fora period of one year and thereafter at the rate of 15% per annum tillpayment. The parties shall bear their respective cost of litigationin this appeal. Subject to the above said modification, in all otherrespects the decree of the court below shall stand confirmed. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarjrlTo1.The Subordinate Judge, Tiruvannamalai,2.The Executive Engineer and Administrative Officer, Vellore Housing Unit, Vellore.+ 1 cc to Mr.T.R.Rajaraman,Advocate,Sr.33949+ 1 cc to Government Pleader,SR.34549A.S.No.791 of 1997AKR(CO)EM/22.8.09