Madras High Court
State Of Tamil Nadu vs R.Somasundaram on 15 February, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.02.2012
CORAM
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
S.A.No.300 of 2004
1. State of Tamil Nadu
represented by the District Collector,
Erode District.
2. The District Collector,
Erode.
3. The Special Tahsildar,
ADW, Kangeyam. ... Appellants / Land Acquisition Officer
vs.
R.Somasundaram ... Respondent / Claimant
Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 05.09.2003 made in C.M.A.No.21 / 99 on the file of Sub-Court, Dharapuram modifying the award made in Award No.11/1998-99 dated 30.03.1999 passed by the Special Tahsildar (L.A.,) ADW, Kangeyam.
For Appellants : Mr.M.Venugopal, AGP (CS)
For Respondent : Mr.D.Krishnakumar
for Mr.S.Saravanan
J U D G M E N T
This appeal is directed against the judgment and decree passed by the lower appellate court in CMA No.21 of 1999 dated 5.9.2003 in enhancing the compensation fixed by the Land Acquisition Officer in his award No.11 of 1998-99 dated 30.03.1999 fixing the market value of the acquired land at Rs.20,000/- per acre to Rs.2,40,000/- per acre.
2. The case of the parties before the lower court would be that the land acquisition officer appointed under Tamil Nadu Adi-Dravida Welfare Scheme Land Acquisition Act 31 of 1978 had acquired lands in Lakuminaickenpatti village, Kangeyam Taluk located in S.No.245/B1 of an extent of 0.03.5 hectare and in S.No.255/2 of an extent of 1.41.5 hectare, total extent of 1.79.0 hectare lands, for the purpose of providing house facilities to the Adi Dravida community people in that area. Accordingly, the Land Acquisition Officer had taken steps to acquire the aforesaid land and 4(1) notification was issued by the District Collector and it was published on 11.01.1999. In pursuance of the 4(1) notification, an enquiry was held under Section 5(1) of the Act and the enquiry was conducted after the notice was sent to the sole owner of the entire property. In the said enquiry, the land acquisition was accepted by the respondent and the Land Acquisition Officer also proceeded for fixing the market value by taking the data sales from the office of the vellakoil Sub-Registrar, one year prior to the date of 4(1) notification and had selected the land situated at S.No.262 to be equivalent with the acquired land for fixing the value and had fixed the market value at Rs.20,000/- per one acre. Aggrieved by the fixation of market value, the respondent/claimant had sought for a referral to the competent Court for fixing the correct compensation and thus, the papers were submitted before the lower appellate court for fixing the market value. The said referral was taken as appeal in CMA No.21 of 1999 and notice was issued to the respondent therein. After hearing the arguments on either side, the lower appellate Court had come to the conclusion of fixing the market value at Rs.2,40,000/- per one acre along with other accrued benefits payable to the claimant.
3. Aggrieved upon the fixation of market value at Rs.2,40,000/- per one acre, the respondents before the First Appellate Court have preferred the present appeal before this Court.
4. On admission of the second appeal, this Court had formulated the following questions of law for being considered in the appeal.
1.Whether the lower appellate court is correct in allowing the respondent to let in oral evidence and also marking document in the appellate stage especially when section 9 of the Act does not contemplate taking any evidence and also when the application of the provisions of C.P.C are explicitly barred ?
2.Whether the lower appellate court excluded in its jurisdiction in entertaining the oral and documentary evidence let in by the respondent herein, even though, there is no power conferred to the appellate authority under Section 9 of the Act ?
3.Whether the lower appellate court is justified in permitting the appellant to let in evidence as a matter of routine without recording a finding that the appeal is an appropriate appeal for receiving additional evidence as laid down by 1995 SC P.2114, State of Tamilnadu v. Ananthiammal and Others ?
4.Whether the lower appellate court was not right in deducting the 1/3rd amount of the market value towards development charges as held by the Apex Court reported in 1990 SC P.1026 ?
5.Whether the appeal is maintainable when the respondent has failed to pay the court fee as contemplated under Section 51 of the Tamilnadu Court Fee and Suit Valuation Act, 1955 ?
5. Heard Mr.M.Venugopal, AGP (CS) learned Special Govt. Pleader (C.S.) for the appellants and Mr.D.Krishnakumar for Mr.S.Saravanan learned counsel for the respondent.
6. The learned Special Govt. Pleader (C.S.) would submit in his argument that the lower appellate Court erred in allowing the appellant to let in evidence, which is not provided under Section 31 of 1978 Act. He would further submit that the lower appellate court had relied upon the document, which exaggerated the market value for the purpose of availing loan for the rice mill, cannot be relied upon to fix the market value. He would also submit that the sale deeds regarding S.Nos.232, 249, 290 and 291 were showing the market value at Rs.10,000/- only which would reflect the correct and true market value. He would also submit that reliance was placed by the First Appellate Court over the sale deed in Ex.C2 and to take the market value of the land in S.No.254/2. He would further submit that the said document was for lesser extent and the value shown in the said document in Ex.C2 will not depict the correct market value. He would also submit that the First Appellate Court ought not to have entertained the appeal, since there was no payment of Court fee contemplated under Section 51 of Tamil Nadu Court Fee and Suit Valuation Act 1955. He would also submit that the respondent alone was under the burden of proof of the enhanced market value as on 4(1) notification date. He would further submit that the subsequent development and nature of land acquired should not be considered for fixing the market value on the date of 4 (1) notification. He would also submit that the premium given by First Appellate Court in fixing the market value at Rs.69,000/- for 30 cents as mentioned in Ex.C2 cannot be at 10% per annum. Therefore, he would request the Court that the judgment and decree passed by the First Appellate Court was not in accordance with law and therefore, it is liable to be interfered and set aside and modified and the second appeal be allowed accordingly.
7. The learned counsel for the respondent/claimant would submit in his argument that the non-payment of Court fee before the First Appellate Court is only a mistake and it could be rectified at any moment and the respondent is always willing to pay the Court fee payable to the award amount as ordered by the 1st appellate Court. He would further submit that the award passed by the Land Acquisition Officer did not show the correct market value and the land selected for fixing the market value was very much away from the acquired land but the land in S.No.254/2 comprised in the document Ex.C2 is very much located near the acquired land and therefore, the value fixed in Ex.C2 was correctly taken by the First Appellate Court and the value fixed at Rs.2,40,000/- was also in accordance with law. The lower appellate court had also fixed the market value after cutting a premium of 10% per year since the document in Ex.C2 was not in existence 3 years prior to the 4(1) notification. He would further submit that the object of selling the property to a higher value cannot be disputed in this proceedings and therefore, the said rate may be fixed for and towards the market value of the land acquired. He would further submit that the finding of the lower Court was not biased but within the evidence available, for fixing the market value. He would also submit that the percentage to be deducted for applying the value of smaller and larger extent may be at 10% and the premium to be given for the subsequent years could be at 10% per year so as to have an enhancement of compensation.
8. He would also submit that the percentage to be deducted for applying the value of lesser extent to a larger extent of land and the premium to be given for each year for the hike of price of the land, it could be adjusted mutually and therefore, the value fixed in Ex.C2 at the rate of Rs.2,30,000/- per one acre ( in other words Rs.69,000/- for 30 cents of land), may be confirmed instead of Rs.2,40,000/- per one acre for the acquired lands. He would therefore, request the Court to dismiss the appeal by confirming the judgment and decree passed by the First Appellate Court or to pass suitable orders in the facts and circumstances of the case.
9. I have given anxious thoughts to the arguments advanced on either side.
10.The major objection raised was, when no enquiry was contemplated under Section 9 of the Act, how the appellate forum indulged in recording evidence and conducted enquiry as done in reference made under Section 18 of the Land Acquisition Act. No doubt it is true that the fixation of market value by the Land Acquisition Officer, has been questioned before the 1st appellate Court. However, there was no sufficient materials placed by the Land Acquisition Officer and no opportunity for the claimant to cross examine the witnesses of the Land Acquisition Officer. Therefore, the 1st appellate court was justified to conduct the enquiry by the way of getting additional evidence in order to render substantial justice. Even though the 1st appellate court did not express that the enquiry was conducted by the paid court by the way of getting additional evidence under Order 41 Rule 27 CPC, the procedure contemplated under the said provisions enabled the Court to conduct an enquiry for enabling the Court to come to a correct conclusion.
11. The land in S.No.245/B1, of an extent of 0.37.5 hectare and in S.No.255/2 of an extent of 1.41.5 hectare, a total extent of 1.79.0 hectare in Lakuminaickanpatti, Kangeyam Taluk, belonged to the respondent/claimant. On 11.09.1991, a notification for distributing the house sites to houseless Adi Dravida community people was issued. In pursuance of the notification, the Land Acquisition Officer had conducted an enquiry and had collected all the data sales in the suit village registered with Vellakoil Sub-Registrar Office, one year prior to the date of 4(1) notification. Even though, the particulars regarding the data sales were not given, it could be seen from the consolidated village sketch, that the value of the land in S.No.259 was fixed at Rs.20,000/- per one acre. The said fixation was questioned in the appeal before the First Appellate Court. The respondent/claimant had produced Ex.C2, a land situated in S.No.254/2 for the value of Rs.69,000/- of an extent of 30 cents has been relied upon. The reason given by the First Appellate Court was that the said land is located in the next survey number of the land acquired. On verification of Ex.B1 village map, it is true that the land dealt with in Ex.C2, i.e., S.No.254/2 is located adjacent to S.No.255 where part of the acquired land is located. On the other hand, the land relied upon by the Land Acquisition Officer for fixing the market value was located in S.No.259, which is found to be away from the acquired land that too, on a different cart track. Therefore, the decision reached by the First Appellate Court for adopting the market value of Ex.C2, instead of market value for the land in S.No.259 as fixed by the Land Acquisition Officer, is perfectly correct. But the said transaction was in the year 1996 and the property sold in Ex.C2 was for a lesser extent.
12. The learned counsel for the respondent brought to the notice of this Court that when the other suitable lands are not available for fixing the market and the lesser extent alone is available for fixing the market value, the procedures laid down by the Hon'ble Apex Court may be followed.
13. An unreported judgment of this court made in A.S.Nos.192 to 200 of 1999 dated 29.11.2001 in between The Special Tahsildar (L.A) Housing Scheme, Hosur vs M.G. Ramaiya and another was produced and in the said judgment it has been categorically mentioned as to when the value of smaller extent of property can be applied for a larger extent of land with a proper deduction is followed. In the said judgment it has been categorically mentioned that 30% could be applied, for such deduction towards the value fixed for larger extent from the value of smaller extent.
14. As per the aforesaid judgment of this Court, we could see that 30% of the smaller extent could be deducted for the purpose of ascertaining correct value of the larger extent of the property. On such calculation, the value for 30 cents at Rs.69,000/- has to be subtracted with 30 % of its value. The 30% of Rs.69,000/- is Rs.20,700/-. The remaining value for 30 cents would be at Rs.48,300/-. If the said value is calculated for one acre it comes to Rs.1,61,000/-. This value per one acre was of the year 1996 when Ex.C2 sale deed was executed. The 4(1) notification was issued in the year 1999 and therefore, the premium has to be awarded for fixing the correct market value as on 4 (1) notification date.
15. The judgment of Hon'ble Apex Court reported in 2008 AIR SCW 5947 (General Manager, Oil and Natural Gas Corporation Limited v. Rameshbai Jivanbhai Patel & Another) has dealt with such contingencies. According to the said judgment, the premium for mofussil properties could be given at 5% to 7.5% per annum. The relevant passage would run as follows:-
"There is a significant different in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. If the increase in market value in urban/ semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same."
16. The property acquired was certainly in a rural area. Therefore, a premium of 5% can be given for reaching the correct value on the date of 4(1) notification upon the value fixed at Rs.1,61,000/- per one acre. When 5% premium is added for four years and four months to the said value of Rs.1,61,000/-, it would come to Rs.34,615/-.
17. When the said premium have been added to the existing value, the actual value would come to Rs.1,95,615/-. This market value of Rs.1,95,615/- per one acre ought to have been fixed by the lower Court but it applied the same value of the lesser extent to the larger extent property and had applied the inclusion of premium without any basis to an extent of Rs.10,000/-. Therefore, the lower court was not correct in applying the principle of law in ascertaining the market value of the acquired land.
18. Therefore, it has become necessary for this Court to intervene and set aside the judgment of First Appellate Court in fixing the market value at Rs.2,40,000/- per one acre and by fixing Rs.1,95,615/- as the correct market value for the acquired land on the date of 4(1) notification. Therefore, it has become necessary for this Court to allow the appeal to the extent as indicated above for fixing the market value at Rs.1,95,615/- per one acre of the land acquired. The questions of law framed are thus answered partly in favour of the appellants.
19. It has been brought to the notice of the Court that the respondent/claimant did not pay the requisite Court fee payable in the appeal preferred by him before the First Appellate Court under Section 51 of the Tamil Nadu Court Fee and Suit Valuation Act. It has been categorically laid down that the Court fee ought to have been paid in the appeal preferred by the appellant under Section 9 of the Act 31 of 1978. However, it was not paid but the First Appellate Court has granted a decree in the appeal without receipt of the Court fee. The said non-payment of Court fee is only an irregularity and it could be corrected. The First Appellate Court ought to have directed the claimant who was appellant before him to pay requisite Court fee on the enhanced compensation, but it was not ordered by the First Appellate Court. Therefore, it has become necessary for this Court to direct the respondent/claimant to pay the requisite Court fee as per Section 51 of Court Fee and Suit Valuation Act, to be calculated on the enhanced compensation before the 1st appellate court, by the Registry and to pay the same before this Court in the account of C.M.A.No.21 of 1999 on the file of the First Appellate Court, within a period of one month from the date of receipt of a copy of this judgment.
20. With the aforesaid observations and directions, the second appeal preferred by the appellant is partly allowed and thereby, the market value is fixed at Rs.1,95,615/- per one acre and the respondent/claimant is entitled to all other benefits as per the provisions of Land Acquisition Act. No order as to costs.
ssn To
1. The Sub-Court, Dharapuram
2. Special Tahsildar (L.A.,) ADW, Kangeyam