Madras High Court
The Land Acquisition Officer Cum vs Ramaswamy on 4 June, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
In the High Court of Judicature at Madras Dated: 04.06.2012 Coram: The Honourable Mr.Justice V.PERIYA KARUPPIAH Second Appeals No.484 and 485 of 2004 and CMP.Nos.3790 and 3791 of 2004 The Land Acquisition Officer cum the Special Tahsildar (ADW) Villlupuram. ... Appellant in both appeals Versus Ramaswamy ... Respondent in SA.484/04 Adhimoolam ... Respondent in SA.485/04 Second Appeals filed under Section 100 of Civil Procedure Code against the Judgments and Decrees dated 14.08.2003 made in L.A.C.M.A.No.3 and 2 of 2000 on the file of the Principal Subordinate Court, Villupuram, modifying the award dated 01.04.1999 made in Award No.10/11896/99 by the Land Acquisition Officer, Villupuram. For Appellant .. Mr.Jayaramaraj in both appeals Government Advocate For Respondent .. Mr.J.Antony Jesus in both appeals COMMON JUDGMENT
S.A.No.484 of 2004:
This appeal is directed against the judgment and decree passed in enhancing the compensation by the first appellate court made in L.A.C.M.A.No.3 of 2000 dated 14.08.2003 filed against the award passed by the appellant in the award dated 25.05.1999.
S.A.No.485 of 2004:
This appeal is directed against the judgment and decree passed in enhancing the compensation by the first appellate court made in L.A.C.M.A.No.2 of 2000 dated 14.08.2003 filed against the award passed by the appellant in the award dated 25.05.1999.
3. The case of both parties before the first appellate court would be as follows:-
The respondent in the S.A.No.484 of 2004 was the absolute owner of the lands situated in S.No.114/2A, an extent of 0.30.0 ares; in S.No.114/2C, an extent of 0.36.0 ares; in S.No.122/2, an extent of 0.40.0 ares and in S.No.123/2D, an extent of 0.22.0 ares. The respondent in S.A.No.485 of 2004 was the absolute owner of the land in S.No.114/2B, an extent of 0.65.0 ares; in S.No.122/1, an extent of 0.40.5 ares out of 0.42.5 ares; and in S.No.123/1B an extent of 0.22.0 areas. The suit properties of both the respondents apart from the properties belonging to three other persons located in various Survey Numbers measuring a total extent of 3.86.5 hectares were acquired by the appellant for the purpose of allotting house sites towards the welfare of Adi-Dravidar community people and due 4(1) notification was issued on 20.03.1999 and published in Government Gazette on 06.04.1999 and after formal enquiries contemplated under law, the award was passed by the appellant / Land Acquisition Officer on 25.05.1999 under Na.Ka.M.10/11896/96. The respondents, who were aggrieved by the fixation of market value for the lands belonging to them at Rs.725/- per cent, had appealed against the said award before the first appellate court in L.A.C.M.A.No.3 and 2 of 2000 respectively.
4. The first appellate court had enhanced the compensation payable towards the acquisition of respective properties at Rs.2,000/- per one cent from the value fixed by the appellant at Rs.725/- per one cent. The aggrieved Land Acquisition Officer had preferred these Second Appeals against the judgments and decrees passed in L.A.C.M.A.No.3 and 2 of 2000 dated 14.08.2003.
5. On admission, this Court formulated the following substantial questions of law, for consideration in the Second Appeal:-
"1. Whether the lower Appellate Court is correct in allowing the respondent to let in oral evidences 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 CPC are explicitly banned ?
2. Whether the lower Appellate Court is justified in permitting the appellant to let in evidence as a matter of routine without recording finding that the appeal is an appropriate appeal for receiving additional evidence as laid down by 1995 S.C. 2114 (State of Tamil Nadu ..vs.. Ananthiammal & Others) ?
3. Whether the lower Appellate Court was not right in deducting the one third amount of the market value towards the development charges as held by the Apex Court reported in 1990 S.C.1028 ? "
6. Heard Mr.Jayaramaraj, learned Government Advocate for the appellant and Mr.J.Antony Jesus, learned counsel for the respondents in both the appeals.
7. Learned Government Advocate would submit in his argument that the first appellate court had enhanced the value of the property acquired without any basis. He would also submit that there was no enabling provision in the Act 31 / 1978 to let in evidence for deciding the appeal. He would also submit that the first appellate court is not a reference Court to let in evidence and it has to decide at the evidence already available and produced before the Land Acquisition Officer. He would further submit that, however, the first appellate court had enhanced the compensation by fixing the value of acquired lands at Rs.2000/- per cent without any discussion, but placed reliance on Ex.A2, which is a document conveying a smaller extent of 5 cents, a house site. He would also submit that the evidence recorded by the first appellate court would be an additional evidence, but it was received as a matter of course without recording any finding towards the reception of additional evidence under Order 41 Rule 27 CPC. He would also submit that the first appellate court has not assigned any reason for relying upon the value fixed in Ex.A2. He would also cite a judgment of the Hon'ble Apex Court reported in (1991) 4 SCC 218 (Special Tehsildar Land Acquisition, Vishakapatnam ..vs.. A.Mangala Gowri) for the principle that 1/3rd of the market value should have been reduced towards development charges whenever the value of a house site has been relied upon to value larger extent of lands acquired. He would, therefore, submit that the value fixed by the Land Acquisition Officer / appellant in his award at Rs.725/- per cent, based upon a document dated 06.04.1999, exactly executed on the date of 4(1) notification, of one acre 25 cents sold for Rs.90,988/- in S.No.106/5A, 5B and S.No.106/10B of the same village can be accepted. The said property is also within the same village and the fertility and quality of the acquired lands are same and therefore, the said value fixed by the Land Acquisition Officer ought to have been accepted by the first appellate court, but it had enhanced without any valid reasons. Therefore, he would request the Court to interfere with the judgments and decrees passed by the first appellate court in both the Civil Miscellaneous Appeals and to approve the value fixed by the Land Acquisition Officer as correct. Therefore, he would request the Court to allow both the appeals, after setting aside the judgments and decrees passed by the court below in L.A.C.M.A.Nos.2 and 3 of 2000.
8. The learned counsel for the respondents in both the appeals would submit in his argument that the value fixed by the Land Acquisition Officer for the acquired lands are very low and the data sale relied upon by the Land Acquisition Officer was far away from the acquired lands and there was a road in between those lands. He would also submit that the acquired lands were located adjacent to TPTC Cooperative Society house sites and also very near to the lands sold in Exs.A1 and A2. He would also submit that the acquired lands are located very near to Kumbakonam - Madras National HighWays and Villupuram - Pondy National High Ways. He would also submit that it is located very near to BDO Office, Government Hospital and Bus Body Building Work Shops apart from the location of the temples, Kalyana Mandapam, Petrol Bunks and Inspection Bunglow. He would further submit that the value ought to have been fixed should be more than Rs.2000/- per one cent, but the appellate Court had come to a conclusion of fixing it at Rs.2000/- per cent even though the value of one cent was proved to have been at Rs.6,500/-, as per Ex.A2. He would also submit that Ex.A2 sale deed was comprising a land, which is one Survey Number away from the acquired lands and therefore, it is the correct value to be followed by the first appellate court, but the first appellate court had fixed the value at Rs.2000/- per cent only. He would also submit that there is no quarrel over the deduction of the value when the value of the smaller extent is applied to a larger extent and even such percentage is deducted as per the judgment of the Hon'ble Apex Court reported in (1991) 4 SCC 218 (Special Tehsildar Land Acquisition, Vishakapatnam ..vs.. A.Mangala Gowri), it would be Rs.4,000/- per one cent. He would also cite a judgment of this Court reported in 2003 (2) LW 267 (The Special Tahsildar (LA) ..vs.. Rathinareddi) for the principle that whenever a higher market value has been produced before the Court for fixing the market value of any acquired land, such a value should have been followed by the Court. Therefore, he would submit in his argument that if the principles laid down by both this Court as well as the Hon'ble Apex Court are applied it would be certainly more than Rs.4,000/- per one cent. However, the first appellate court had fixed the value at Rs.2,000/- per cent and therefore, the said value may not be further reduced in these appeals. He would, therefore, request the Court that both the appeals deserve dismissal, for want of merits and accordingly, they may be dismissed with costs.
9. I have given anxious thoughts to the arguments advanced on either side.
10. The admitted facts are that the properties, belonging to the respondents in both the appeals, in S.No.114/2A, an extent of 0.30.0 ares; in S.No.114/2C, an extent of 0.36.0 ares; in S.No.122/2, an extent of 0.40.0 ares, in S.No.123/2D, an extent of 0.22.0 ares, and in S.No.114/2B, an extent of 0.65.0 ares; in S.No.122/1, an extent of 0.40.5 ares out of 0.42.5 ares; and in S.No.123/1B an extent of 0.22.0 ares were acquired for the purpose of providing house sites to the houseless Adi-Dravidar community people and for that purpose, the Government issued 4(1) notification in the District Gazette on 06.04.1999. In furtherance of 4(1) notification, enquiries were conducted by the Land Acquisition Officer and he had gathered 31 data sales which took place within three years prior to 06.04.1999 and had selected the sale dated 06.04.1999 in S.No.106/5A, 5B and S.No.106/10B of the same village of one acre 25 cents sold for Rs.90,988/- and thereby fixed the market value of the acquired lands at Rs.725/- per cent. The said fixation of market value has been challenged by the respondents herein in L.A.C.M.A.Nos.2 and 3 of 2000 before the first appellate court.
11. It was vehemently contended by the learned Government Advocate that the first appellate court being the appellate court had recorded evidence like that of a reference court and had appraised the evidence for arriving to a value of Rs.2000/- per cent which is not in accordance with law. He would also submit that the provisions of Code of Civil Procedure would not apply to the procedures contemplated under Section 9 of the Act 31 of 1978 and therefore, the first appellate court ought not to have recorded evidence to arrive to any conclusion. It is the further contention of the Land Acquisition Officer that the value fixed by the Land Acquisition Officer from and out of the 31 data sales alone have to be looked into for fixing the market value.
12. When the argument of the learned Government Advocate is considered, I could see that there was no demur on the part of the Land Acquisition Officer while the first appellate court had resorted to record evidence like a reference court. The Land Acquisition Officer himself had let in evidence and had produced the documents on his side. The said procedure followed by the first appellate court was not challenged while the appeals were pending before the first appellate court. In the said circumstances, the evidence collected by the first appellate court was utilised for reaching a conclusion, which cannot be questioned at this stage.
13. As far as the fixation of market value at Rs.2000/- per cent is concerned, the first appellate court has come to a conclusion of relying upon Ex.A2 document dated 05.02.1999, which is in respect of S.No.116, an extent of 5 cents sold for a sum of Rs.32,500/-. No doubt, the said document was two months prior to the 4(1) notification, but admittedly, it was for a lesser extent. On that basis, the first appellate court had come to the conclusion, but fixed the market value at Rs.2000/- per cent. When it is actually calculated, one cent would be valued at Rs.6,500/- as per Ex.A2. The first appellate court had not followed any rules or principles laid down by this Court or Hon'ble Apex Court for arriving to a market value of Rs.2000/- per cent. It is brought to the notice of this Court that whenever the value of lesser extent of lands were applied for fixing the value of larger extent of lands, there should be some deduction in its percentage of value. In a judgment of this Court reported in 2003 (2) LW 267 (The Special Tahsildar (LA) ..vs.. Rathinareddi), it has been held as follows:-
"10. It is settled law, while fixing the market value, the comparable sale transaction which fetched maximum price and which is the most advantageous to the Claimants, alone should be taken into consideration, since the guideline and principle laid down is that Court should see at what price a willing seller will sell. {Refer [i] 1969 (1) MLJ SC 45 (Ranee of Vuyyur v. Collector of Madras); [ii] (State v. P. Seetharamammal); and [iii] (Mehta Ravindraraj Ajitraj v. State of Gujarat)}"
As per the dictum, the higher value mentioned in Ex.A2 has to be adopted as per the deduction method contemplated in various judgments.
14. In the judgment of the Hon'ble Apex Court reported in (1991) 4 SCC 218 (Special Tehsildar Land Acquisition, Vishakapatnam ..vs.. A.Mangala Gowri) it is laid down as follows:-
"4. ..... Therefore, based upon the situation of the land and the need for development, the deduction shall be made. Where acquired land is in the midst of already developed land with amenities of roads, drainage, electricity etc. then deduction of 1/3 would not be justified. In the rural areas housing schemes relating to weaker sections, deduction of 1/4 may be justified. On that basis, this Court in R.Dharma Rao Case upheld deduction of 1/5 because the owner while obtaining the layout had already set apart lands for road anddrainage. Threfore, deduction of 1/3 would be reasonable. In fact in Tehsildar, Land Acquisition, Vishakapatnam ..vs.. P.Narasing Rao, a Division Bench of the High Court surveyed judgments of the High Court relating to housing schemes of Visakhapatnam upholding deduction of 1/3 to be reasonable. Accordingly, we hold that 1/3 of the market value should be deducted for development of the lands."
15. In the dictum laid down by the Hon'ble Apex Court that 1/3rd of the value to be deducted for fixing the value of larger extent of property, from the value of the property containing lesser extent.
16. According to 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), the value to be deducted was fixed at 30%. When we deduct 30% value from and out of the value given in Ex.A2, it is calculated at Rs.4,550/- per cent. Therefore, the fixation of market value by the first appellate court at Rs.2000/- per cent is not in accordance with the principles of Hon'ble Apex Court. It is also argued by the learned counsel for the respondent that the property acquired was located in and around Kumbakonam - Madras National High Ways and Villupuram - Pondy National High Ways, BDO Office, Government Hospital and Bus Body Building Work Shops apart from the location of the temples, Kalyana Mandapam, Petrol Bunks and Inspection Bunglows and therefore, it has got a potential value. Considering that aspect, I am of the considered view that the first appellate court ought to have fixed the market value of the acquired land at Rs.4,550/-, but it had fixed only a sum of Rs.2000/- per one cent.
17. The respondents did not prefer any separate appeal or cross appeal in this appeal for enhancing the market value. The learned counsel for the respondents in both appeals would insist in his argument that such enhancement can be ordered in favour of the respondent in an appeal filed by the rival party as per the provisions of Order 41 Rule 33 C.P.C. The judgment cited by the learned counsel for the respondents reported in CTJ 2008 MHC 2362 (The Special Tahsildar (LA) & another v. G.Raju & others) and CTJ 2009 MHC 3194 (The Revenue Divisional Officer, Tiruvannamalai v. A.Geetha Ammal and another) were cited for that purpose. On a careful perusal of those judgments, it was ordered in respect of correcting the error committed by the First Appellate Court while calculating the market value. The arithmetic mistake committed by the first Appellate Court has been corrected in the said judgments.
18. In the judgment of the Honourable Apex Court reported in 2010 (1) SCC 458 (Pralhad & others vs. State of Maharashtra & another) the power of the Court under Order 41 Rule 33 C.P.C. has been laid as follows:
"18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate Court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression "order ought to have been made" would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
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21. In the instant case, the right of the land owner to receive the benefit under Section 23(1-A) of the Principal act is legally permissible in view of the majority decision in Paripoornanm. Therefore, the law declared by this Court in Paripoornan is binding on the High Court under Article 141 of the Constitution and the High Court is bound to follow the same, especially when an application has been made by the landowner under Order 41 Rule 33 CPC."
19. As per the dictum laid down by the Honourable Apex Court if the respondents are legally entitled to such enhanced compensation, it could be awarded even without cross appeal or any separate appeal. For that, we have to refer to other two judgments of the Honourable Apex Court reported in A.I.R. 1985 SC 1576 (Bhag Singh and others v. Union Territory of Chandigarh) and A.I.R. 1988 SC 1652 (Chimanlal v. special Land Acquisition Officer, Poona) also.
20. The Judgment of the Hon'ble Apex Court in Bhimasha v. Special Land Acquisition officer and another reported in (2008) 10 Supreme Court Cases 797 would also guide us to the effect that under Section 23 of the Land Acquisition Act, 1894, the party, who is claiming an enhanced compensation, was not bound by the quantum claimed by him and if the market value of the said land was found to be more than the rate claimed by the claimant, it should have been awarded as higher compensation subject to the payment of balance Court fee. For better understanding of the said Judgment, the following passage is extracted here under:
5. We have heard learned counsel for the parties and perused the record. In the impugned order the High Court, after taking note of the yield notification issued by the Government and price list notified by the competent authority for crops (both are public documents) concluded that market value of the land is Rs.66,550 per acre. Therefore, the appellant's omission to make appropriate claim before the High Court after paying the requisite court fee cannot be castigated as one lacking bona fide.
6. In our view, the High Court should have, after taking note of the peculiar facts of the case and the market value determined by it, awarded higher compensation to the appellants subject to the condition of paying the balance court fee. This, having not been done, we feel that ends of justice could be met if the impugned order is suitably modified.
21. On a careful understanding of the said dictum laid down by the Hon'ble Apex Court, I could see that the claimant even though had claimed lesser amount and the Court had found a higher market value for the acquired lands, the higher value arrived at by the Court should have been awarded. The only thing which has to be considered and ordered is the collection of the balance Court fee for the difference between the higher market value arrived and the amount claimed by the claimant. However, it could be exercised only in an appeal filed by the claimant.
22. Whether it is possible to order such compensation amount in the appeal preferred by the appellant has been answered by the Honourable Apex court in its judgment made in a Motor Accident Claims appeal. In the judgment of the Honourable Apex Court reported in CDJ 2011 SC 733 equivalent to 2011 (7) SC 6 (Ranjana Prakash and others Vs. Divisional Manager and others.), it has been laid down as follows:
"7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.
8. Where an appeal is filed challenging the quantum of compensation irrespective of who files the appeal, the appropriate course for the High court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."
23. In the aforesaid judgment, it is categorically mentioned that in an appeal preferred by the person, who is to pay compensation, enhancement of compensation cannot be ordered at the request of the respondents under Order 41 Rule 33 C.P.C. Hence, the principle laid down in the Judgment of the Hon'ble Apex Court in Bhimasha v. Special Land Acquisition officer and another reported in (2008) 10 Supreme Court Cases 797 is not applicable to the facts and circumstances of the present case. Therefore, it could be found that the respondents are not legally entitled to ask for the enhanced compensation in the appeal preferred by the appellants herein. Therefore, this Court cannot enhance the market value in the appeal preferred by the Government. Consequently, the request of the appellant that the enhanced compensation at Rs.4,550/- has to be awarded is not sustainable.
24. Therefore, the value fixed by the first appellate court at Rs.2000/- per one cent has to be justified, since it is lesser than the actual market value of the lands acquired. Therefore, the questions of law framed are necessarily to be decided against the appellants in both the appeals.
25. However, the third question of law even though can be decided in favour of the appellant, it will not help the appellant since the market value fixed after the deduction of 1/3rd value as per the judgment of the Hon'ble Apex Court by the appellant in the appeal memo is more than that of the market value fixed by the first appellate court. Therefore, I am of the considered view that the appellant in both the appeals has not made out any case to reverse the judgments and decrees passed by the first appellate court and therefore, the judgments and decrees passed by the first appellate court are confirmed in both the appeals.
26. Accordingly, the Second Appeals preferred by the appellant are dismissed and thereby, the judgments and decrees passed by the first appellate Court are confirmed. No costs. Consequently, connected Miscellaneous Petitions are closed.
04.06.2012 Index :Yes/No Internet :Yes/No mra To
1. The Principal Subordinate Court, Villupuram.
2. The Land Acquisition Officer, Villupuram.
V.PERIYA KARUPPIAH,J.
mra Second Appeals No.484 and 485 of 2004 and CMP.Nos.3790 and 3791 of 2004 04.06.2012