Cross objection Nos.32/07 and 29/07:-1. K. P. Abdul Rahiman...Cross objector in Cross v. Union of India

Cross objection Nos.32/07 and 29/07:-1. K. P. Abdul Rahiman...Cross objector in Cross objection 32/07/Respondent2. Mundishwarath Kallu Meena Nivas...Cross objector in Cross objection 29/07/RespondentvsUnion of India rep. by Secretary (Revenue),to the Government of Pondicherry,through the Deputy Collector (Revenue) cumLand Acquisition Officer,Mahe, Pondicherry....Respondent in both Cross objections/AppellantA.S. Nos.243, 244 and 245 of 2007Appeal filed under Section 54 of the Land Acquisition Actagainst the order dated 20.11.2006 passed by the Special Officerfor Land Acquisition, Mahe in a common award in LAOP Nos.10 of2005, 11 of 2005 and 12 of 2005 respectively by allowing the aboveappeal.CRP.956/07 and 957/07These CRPs filed under Article 227 of the Constitution ofIndia Challenging the order dated 8.1.2007 in I.A.No.11/07 inLAOP.No.10/05 and I.A.No.12/07 in LAOP.No.11/05 respectively onthe file of Special Judicial Officer for Land Acquisition (SubJudge) Mahe.Cross objections 32/07 and 29/07:-These Cross objections are filed under order 41 Rule 22 ofCPC challenging the award dated 20.11.2006 in LAOP.No.10/05 andLAOP.11/05 respectively on the file Special Judicial Officer forLand Acquisition (Sub Judge), Mahe, in so far as the extent theLower Court has not considered the case of the Cross objector.For Appellants : Mr.P.Murugesan Government Pleader (Pondicherry)For Respondentsin AS.For Petitioners in CRPs : Mr.K.Raja Srinivas* * * * * https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTA.S.No.243 OF 2007This appeal is directed against the award passed by the lowerCourt in LAOP No.10 of 2005 preferred by the Land AcquisitionOfficer, Mahe.A.S.No.244 OF 2007This appeal is directed against the award passed by the lowerCourt in LAOP No.11 of 2005 preferred by the Land AcquisitionOfficer, Mahe.A.S.No.245 OF 2007This appeal is directed against the award passed by the lowerCourt in LAOP No.12 of 2005 preferred by the Land AcquisitionOfficer, Mahe.Cross Objection No.32 OF 2007The present cross objection is directed against the quantumof compensation awarded by the lower Court in LAOP No.10 of 2005preferred by the Claimant for enhancement of compensation.Cross Objection No.29 OF 2007The present cross objection is directed against the quantumof compensation awarded by the lower Court in LAOP No.11 of 2005preferred by the Claimant for enhancement of compensation.CRP (NPD) No.956 OF 2007The Revision Petition is filed against the order passed bythe lower Court in I.A. No.11 of 2007 in LAOP No.10 of 2005 indismissing the review petition filed by the Claimant.CRP (NPD) No.957 OF 2007The Revision Petition is filed against the order passed bythe lower Court in I.A. No.12 of 2007 in LAOP No.11 of 2005 indismissing the review petition filed by the Claimant.The lands (i) in R.S.No.97/1-B of an extent of 0.17.30hectares; (ii) in R.S.No.97/2-A/2 of an extent of 0.12.50hectares; (iii) in R.S.No.97/4 of an extent of 0.10.00 hectares; https://hcservices.ecourts.gov.in/hcservices/ and (iv) in R.S.No.100/16 of an extent of 0.10.00 hectares of theRevenue Village of Mahe in the Registration District of Mahe inthe Pondicherry District were acquired by the Government ofPondicherry through the publication made in the State Gazette No.8dated 25.02.2003 in G.O.Ms.No.08 for the purpose of furtherexpansion/development of the Government General Hospital, Mahe.The Claimant in LAOP No.10 of 2005 was the owner of the aforesaidfirst item; the Claimant in LAOP No.11 of 2005 was the owner ofthe aforesaid fourth item; and the Claimant in LAOP No.12 of 2005was the owner of 0.04.01 hectares in the third item of theaforesaid properties.2. The 4(1) notification issued under the Act was dated28.10.2002. The Land Acquisition Officer had considered 59documents of sale effected in the said Mahe Village immediatelyprior to 4(1) notification and had rejected 55 documents of saleon the reason that the lands comprised therein were located eitherfar away or dissimilar to the land acquired. In the remaining fourdocuments of sale, the Land Acquisition Officer had rejected itemNo.55 of sales as it was effected only for an extent of 0.00.20hectare. Among the three documents of sale left, he had considereditem no.5, 17 and 49, as documents showing the market value of thesaid properties at Rs.1,054 per square metre, Rs.517/- per squaremetre and Rs.519/- per square metre respectively and he hadselected item no.5 of the document of sale which was the higher inprice at Rs.1,054/- per square metre. However, he had reduced themarket rate from Rs.1,054/- to Rs.870/- per square metre as perthe approval given by Revenue Department of Pondicherry vide itsletter No.2699/REV-B1/2002 dated 25.02.2003. The Land AcquisitionOfficer had also fixed the value for the trees standing in theproperties and had also ordered 30% solatium and additional marketvalue at 12% per annum from the date of 4(1) notification till thedate of passing the award. However, he had not calculated theinterest for the said valuation as per the statute, namely TheLand Acquisition Act, 1894.3. Aggrieved by the offer made by the Land AcquisitionOfficer for the acquired lands the Claimants in LAOP Nos.10 of2005, 11 of 2005 and 12 of 2005 had requested the Land AcquisitionOfficer to refer the matter to the Sub Court, Mahe for fixing themarket value of the acquired lands as on the date of 4(1)notification. Accordingly, they were referred to the said Courtand they were taken on file as LAOP Nos.10 to 12 of 2005.4. The learned Special Judicial Officer for land acquisition(Sub Judge) at Mahe had taken up all the three cases togethersince the market value of the properties belonging to theClaimants in all the three LAOP's were under a single award madein 1 of 2005 dated 28.01.2005 by the Land Acquisition Officer. The https://hcservices.ecourts.gov.in/hcservices/ lower Court had examined PW-1 to PW-5 on the side of the Claimantsand admitted Ex.P-1 to P-4 as documentary evidence. Similarly, theLand Acquisition Officer had examined DW-1 and had produced Ex.R-1to R-7 in support of the award passed by him. After going throughthe evidence adduced before the lower Court, the market value ofthe acquired lands was fixed at Rs.1,450/- per square metre with30% solatium and 12% as additional value from the date of 4(1)notification and till the passing of the award and with aninterest at 9% per annum from the date of taking possession uptoone year and thereafter at 12% per annum at the enhanced amounttill the amount is made into Court as contemplated under Section28 of the Act.5. Against the said fixation of market value at Rs.1,450/-per one square metre, the Land Acquisition Officer had preferredall the three appeals.6. The Claimants in LAOP Nos.10 of 2005 and 11 of 2005 hadpreferred Cross Objections on the ground that the lower Court hadfixed the market value of the acquired lands on the date of Ex.P-1in the year 1999 but failed to fix the market value on the date of4(1) notification dated 28.10.2002 and had sought for enhancementof the fixation of the market value at Rs.1,600/- per squaremetre.7. The Claimants in LAOP Nos.10 of 2005 and 11 of 2005 hadfiled applications in I.A.Nos.11 of 2007 and 12 of 2007respectively before the lower Court for reviewing its judgmentspronounced in the LAOP Nos.10 of 2005 and 11 of 2005 against thefailure to grant interest for the 30% solatium awarded by thelower Court. The lower Court had dismissed the said applicationsholding that the said request of the Claimants could be made andbe decided only by the way of appeal and not through filing anyreview petition before the lower Court. Against the said orders,the Claimants have preferred the aforesaid revisions respectively.8. For convenience, the ranks of parties before the lowerCourt are maintained in this judgment. The reference as toClaimants will indicate all the claimants in LAOP Nos.10, 11 and12 of 2005.9. Heard Mr.P.Murugesan, learned senior counsel / learnedGovernment Pleader (Pondicherry) for appellants / Cross Appealrespondents and respondents in revision petitioners and M/s.K.RajaSrinivas, learned counsel for the respondents / Cross appellantsand for review petitioners.10. On a careful perusal of the evidence of parties, thejudgment passed by the lower Court and the arguments advanced, the https://hcservices.ecourts.gov.in/hcservices/ following points have emerged for my consideration in theseappeals, cross appeals and review petitions:i. Whether the market value for the acquired lands as fixedby the lower Court at Rs.1,450/- per one square metre is correct?ii. Whether the market value fixed by the lower Court atRs.1,450/- per one square metre has to be further enhanced toRs.1,600/- per one square metre as asked for by the crossappellants?iii. Whether the Claimants are entitled to interest on 30%solatium also?iv. To what relief the appellants in Appeal Nos.243, 244 and245 of 2007 are entitled to?v. To what relief the cross appellants in 32 and 29 of 2007are entitled to?vi. To what relief the revision petitioners in CRP (NPD)Nos.956 and 957 of 2007 are entitled to?11. Points No.i and ii - The lands in Mahe village in SurveyNos.(i) in R.S.No.97/1-B of an extent of 0.17.30 hectares; (ii) inR.S.No.97/2-A/2 of an extent of 0.12.50 hectares; (iii) inR.S.No.97/4 of an extent of 0.10.00 hectares; and (iv) inR.S.No.100/16 of an extent of 0.10.00 hectares; were acquired forthe purpose of development and expansion of the Government GeneralHospital at Mahe and the Land Acquisition Officer had conductedenquiries and had fixed the market value at Rs.870/- per onesquare metre with solatium and additional value. They werequestioned by the Claimants in LAOP Nos.10 to 12 of 2005 afterthey were referred to the Sub Judge, Mahe under Section 18 of theAct, who in turn conducted enquiry and had fixed the market valueof the said acquired lands at Rs.1,450/- per square metre. Againstwhich these appeals and cross appeals have been preferred.12. The learned Senior Counsel / Government PleaderMr.P.Murugesan would submit in his arguments that the lower Courthad fixed the market value of the acquired lands at Rs.1,450/- persquare metre which is far more than the value fixed by the LandAcquisition Officer at Rs.870/- per square metre. He would furthersubmit that the lower Court had been apparently lead by itsearlier decision and it had adopted the value fixed by the Courtin an earlier occasion which was not at all applicable to fix themarket value of the lands acquired and the three sale deeds whichwere produced on the side of the acquisition officer were neitherdiscussed nor followed and the said three sale deeds should havebeen either accepted or rejected by the lower Court. He wouldfurther submit in his arguments that the lower Court hadconsidered that the land acquired in Ex.P-1 was lying far awayfrom the lands acquired, but had subsequently accepted the earlieraward passed by the Court and made it applicable to the presentcase which is not sustainable. He would also submit in his https://hcservices.ecourts.gov.in/hcservices/ arguments that there is no dispute that the interest could beawarded on solatium. However, he would request the Court that thevalue fixed by the Land Acquisition Officer at Rs.870/- per onesquare metre is justifiable and the interest on the solatium of30% may be awarded and to that extent the lower Court award can bemodified and the appeals may thus be allowed and the CrossObjections may be dismissed and the revision petition mayaccordingly be ordered.13. The learned counsel for the cross appellants andrespondents in the appeals would submit in his arguments that theacquired lands were situated at the heart of the Mahe town and itis very near to the Salem Steel Plant Bye-pass road which branchesfrom Salem and Cuddalore main road and the schools and otherindustries which are situated within a distance of one furlong. Hewould also draw the attention of the Court that the witnessesexamined on the side of the Claimants would speak to the effectthat the lands acquired are located north to a tar road by nameChoodikotta road and also at a distance of 20 metres from NH17Road and 500 metres away from Mahe Railway Station and 250 metresaway from Sri Krishna Temple. He would further submit that RW-1himself had admitted the said facts in his evidence and that theMahe Municipality, Sub Court, Mahe and PW Office are also situatedwithin 200 metres away from the acquired property and it was alsoa commercial locality and therefore, the lower Court ought to haveadded additional value to the acquired lands when it decided toapply the market value of the property located far away from theacquired lands, despite the nature and amenities available in thesaid land were very poor, when compared with the acquired lands.He would further submit in his arguments that the reliance made bythe lower Court on Ex.P.-1 award made in LAOP No.5 of 1999 dated13.02.2001 should have been done properly since the 4(1)notification of the said acquisition was in the year 1999 andthree years lapsed from the said date of notification for thepresent acquisition of these lands and therefore, the additionalvalue of the lands should have been considered for the passage ofthree years on its potentiality and suitable addition of valueshould have been made on the award Ex.P-1. If suitable percentageis given over the value of the said award Ex.P-1 it would be morethan the claim of the cross appellants made at Rs.1,600/- persquare metre and therefore the market value fixed by the lowerCourt may be enhanced to Rs.1,600/- per square metre. He wouldalso submit in his arguments that the lower Court had failed toaward interest on 30% solatium awarded which is erroneous in law.In support of his argument, the learned counsel for the crossappellant would cite a judgment of Apex Court reported in (2001) 7SCC 211 in between Sunder v/s Union of India, to the effect thatthe claimants who are entitled to compensate is also entitled toget interest not only on the aggregated amount but also on https://hcservices.ecourts.gov.in/hcservices/ solatium. He would request the Court that as per law 9% interestper annum till one year and thereafter at 15% per annum shouldhave been ordered by the lower Court but it failed to act inaccordance with law. He would also submit that the lower Court didnot correct its mistake when it was requested by the Claimants byway of Review Petitions. Therefore, he would also request theCourt to award interest on the 30% solatium awarded in accordancewith law and thereby to allow the Cross objections and the CivilRevision Petitions and also to dismiss the appeals preferred bythe Land Acquisition Officer.14. On my anxious consideration given to the argumentsadvanced on either side I could see that the market value fixed atRs.1,450/- was made on the basis of Ex.P-1, an award passed inLAOP No.5 of 1999 for the land situated in the same village by thelower Court. The Claimants have produced Ex.P-2 to P-4 in order tosubstantiate that the value fixed by the Land Acquisition Officerwas very low and the market value fixed by the Court is notadequate and the said value should have been enhanced fromRs.1450/- per square metre. According to the grievance of bothsides Ex.P-2 to P-4 were not considered by the lower Court whilefixing the market value. When I go through Ex.P-2 and P-4, boththe documents were prepared in Malayalam language. Their truetranslations were made available before the lower Court by thelearned Government Pleader, for comparison; when those documentsEx.P-2 to P-4 are perused with the help of the translated copies,it is found that those documents were made for smaller extent,with buildings constructed in the said properties. Similarly, whenwe go through the translated copies of R-3 to R-5 produced by theLand Acquisition Officer, they were effected prior to three yearsto the 4(1) notification for an extent of 0.03.75 hectares inR.S.No.101/7 at Mahe village; for an extent of 0.05.20 hectares inR.S.No.99/12 in Mahe village; and for an extent of 0.02.02hectares in R.S.No.105/8 of Mahe village for a consideration ofRs.1.94,000/-, Rs.2,70,000/- and Rs.2,13,000/- respectively. Whenthese documents are satisfied, I could see that the sale price wasat Rs.517/-; Rs.519/-; and Rs.1,054/- per square metrerespectively as the value of the properties. I could also see thatall these documents were considered by the Land AcquisitionOfficer for the purpose of fixing the market value. When he hasfixed the market value at Rs.1,054/- per one square metre on thebasis of Ex.P-4, it was reduced to Rs.870/- as per theintervention of the Revenue Department, Pondicherry. As rightlypointed out by the lower Court, the reason for such reduction wasnot explained by the Land Acquisition Officer in his evidence.Under what guidelines it had been reduced was also not spoken.Therefore, the reduction of the market value from Rs.1,054/- toRs.870/- was found to be without any basis. However, the lowerCourt had come to a conclusion for fixing the market value at https://hcservices.ecourts.gov.in/hcservices/ Rs.1,450/- per one square metre after comparing with an earlierorder passed by the said Court, which is more than Rs.1,054/- asmentioned in Ex.P-4. 15. The lower Court had come to a conclusion that theacquired lands were situated in the heart of the town Mahe and itwas a commercial area as per evidence. It also decided that it hada high potential value. No doubt the purpose of acquisition ofthese lands was for the development and extension of theGovernment General Hospital, Mahe and therefore the acquired landshould have been situated adjacent to Government General Hospitalof Mahe. Therefore, the valuation fixed by the Land AcquisitionOfficer without considering the potentiality of the acquired landsis certainly not justifiable. As already discussed the lower Courthad not accepted those documents Ex.R-2 to R-4 but had consideredthe award passed in respect of some acquired lands in Mahe town,in LAOP No.5 of 1999 even though it had been located far away fromthe present acquired lands to fix the market value of the acquiredlands. Even according to the evidence available in this case, thesaid property was located in a hillock and there was no waterfacility for the said land. The purpose of acquisition of the saidland was for establishing a school. However, the said land wascompared and the market value of the said land was fixed inrespect of the acquired lands, since the documents relied upon bythe Land Acquisition Officer in Ex.R-2 to R-5 were not consideredby the Land Acquisition Officer in correct perspective and thevalue available through other records namely the award passed inLAOP No.5 of 1999 was higher in value on the date of 4(1)notification. 16. Admittedly there was no appeal preferred by theGovernment against the award passed in LAOP No.5 of 1999 producedin Ex.P-1. Therefore, it is certainly binding upon the appellantswho were parties in the said case. Therefore, I am entirely inagreement with the lower Court regarding the adaptation of thevalue arrived at in Ex.P-1 award.17. It is also not in dispute that the acquired land in LAOPNo.5 of 1999 was somewhat away from the lands acquired in thisacquisition. It has been already found that the propertiesacquired in this acquisition were highly potential properties.Moreover, the lands acquired in LAOP No.5 of 1999 were found tohave been valued at Rs.1,450/- per one square metre prior to threeyears. Considering the potentiality of the land and its importantlocation at the Mahe town, the lower Court ought to have orderedmore value than that of the value mentioned in Ex.P-1. Thesuggestion of the learned counsel for cross appellant that 5%increase in value per one year from the date of 4(1) notificationof Ex.P-1 to the date of 4(1) notification in this case (i.e. for https://hcservices.ecourts.gov.in/hcservices/ three years) appears to be sound. When we use the said percentageon the value fixed by the lower Court at Rs.1,450/- an addition of15% of its value should be added. On such calculation it comes toRs.1,667/-, whereas the cross appellants have asked for thefixation of the market value of the acquired lands at Rs.1,600/-per one square metre. 18. The lower Court ought to have fixed the value atRs.1,600/- as prayed for by the claimants before it. However ithad fixed only at Rs.1,450/- without taking note of itspotentiality, even though it had rejected the fixation of marketvalue at Rs.870/- per one square metre, by the Land AcquisitionOfficer. Therefore, it has become necessary for me to allow theclaim of the cross appellants. Accordingly, both these points aredecided in favour of the cross appellants and against theappellants.19. Point No.iii – While submitting the argument in theearlier issues, the learned counsel for the crossappellants/revision petitioners would submit that the section 28of the Land Acquisition Act, 1894 has given the benefit ofinterest on the outstanding sum payable under the said Act and thesaid claim of interest were not granted by the lower Court to theclaimants, which is not in accordance with law. He has cited thejudgment of Apex Court reported in (2001) 7 SCC 211 in betweenSunder v/s. Union of India which reads as follows:"The proviso to Section 34 of the Act makes the positionfurther clear. The proviso says that "if suchcompensation" is not paid within one year from the dateof taking possession of the land, interest shall standescalated to 15% per annum from the date of expiry ofthe said period of one year "on the amount ofcompensation or part thereof which has not been paid ordeposited before the date of such expiry". It isinconceivable that the solatium amount would attractonly the escalated rate of interest from the expiry ofone year and that there would be no interest on solatiumduring the preceding period. What the legislatureintended was to make the aggregate amount under Section23 of the Act to reach the hands of the person as andwhen the award is passed, at any rate as soon as he isdeprived of the possession of his land. Any delay inmaking payment of the said sum should enable the partyto have interest on the said sum until he receives thepayment. Splitting up the compensation into differentcomponents for the purpose of payment of interest underSection 34 was not in the contemplation of thelegislature when that section was framed or enacted." https://hcservices.ecourts.gov.in/hcservices/

20. He would also draw the attention of the Court that underSection 28 of the Land Acquisition Act, the interest on thesolatium amount should have been ordered for one year from thedate of taking possession at 9% per annum and thereafter at 15% onthe said amount till the date of payment. For the bestunderstanding it has become necessary to extract under Section 28of the Land Acquisition Act, 1894:"Collector may be directed to pay interest on excesscompensation - If the sum which, in the opinion of theCourt, the Collector ought to have awarded ascompensation is in excess of the sum which the Collectordid award as compensation, the award of the Court maydirect that the Collector shall pay interest on suchexcess at the rate of (nine per centum) per annum fromthe date on which he took possession of the land to thedate of payment of such excess into Court:(Provided that the award of the Court may also directthat where such excess or any part thereof is paid intoCourt after the date of expiry of a period of one yearfrom the date on which possession is taken, interest atthe rate of fifteen per centum per annum shall bepayable from the date of expiry of the said period ofone year on the amount of such excess or part thereofwhich has not been paid into Court before the date ofsuch expiry.)"21. On a careful perusal of the aforesaid judgment of ourApex Court and the ingredients of Section 28 it could beunderstood that the interest is payable on the entire compensationawarded and not merely on the market value of the land. The actualmeaning of word compensation in Section 28 will include the entirecompensation comprising solatium etc., or the some equivalentthereto. Therefore, in this case the word entire compensationwould mean the solatium also and accordingly, the interestawardable under Section 28 of the Act should have been orderedincluding the solatium as directed by the statute. Therefore, itcould be easily understood that the provisions of Section 28 ofthe Act warrant and authorise the grant of interest on solatium aswell. The learned Government Pleader had, in the course ofarguments, fairly conceded that the payment of interest onsolatium and other outstanding amount of compensation are thebenefits given under the Act, to the claimants. The lower Courtwas erroneous in not ordering interest on the solatium amountarrived on the market value. The lower Court ought to havereviewed its judgment since it had erred in law, under the wrong https://hcservices.ecourts.gov.in/hcservices/ impression that an appeal would do. Therefore, the orders passedby the lower Court are also liable to be set aside in theserevisions. Accordingly, this point is also decided in favour ofthe Claimants.22. Point No.iv – In view of my findings reached in PointNo.i to iii that the market value fixed by the lower Court areliable to have been enhanced and are not liable to be reduced, theappeals preferred by the Land Acquisition Officer seeking to setaside the said awards are not sustainable. Accordingly, all theappeals are dismissed.23. Point No.v – In view of the discussion held in Point No.ito iii that the market value fixed by the lower Court was liableto be enhanced from Rs.1,450/- to Rs.1,600/- per square metre withproportionate 30% solatium and additional market value withinterest as per law and with costs, the cross appeals preferred bythe respondents/claimants in A.S.Nos.243 and 244 of 2007 in CrossObjections Nos.32 and 29 of 2007 are allowed.24. Point No.vi – In view of the finding reached in PointNo.iii that the revision petitioners are entitled for interest on30% solatium and the lower Court had also not considered theirrequest in the review applications, the finding of the lower Courtis found to be erroneous in law and set aside. Accordingly theCivil Revision Petitions are allowed.25. In fine, the appeals are dismissed and the cross appealsare allowed and the Civil Revision Petitions are allowed. In thepeculiar circumstances, the parties are directed to bear theirrespective costs, in these proceedings.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Special Judicial Officer for Land Acquisition,(Subordinate Judge)Mahe.Copy to:-The Section Officer,VR Section,High Court, Madras.•4 ccs to Mr. K. Rajasrinivas, Advocate SR No.4685 to 4688•1 cc to Sr Government Pleader (Pondicherry) SR No.4431 to 4435JUDGMENT IN A.S. Nos.243, 244&245/2007andCross Objections Nos.32&29/2007andCRP (NPD) Nos.956&957/2007CK(CO)SR/18.2.2009