Madras High Court
The Special Tahsildar vs N.A.Katheeja Beevi on 20 April, 2012
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/04/2012 CORAM THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI S.A.(MD)No.1188 of 2006 The Special Tahsildar, ADW, Paramakudi. ... Appellant/Respondent/ Land Acquisition officer Vs N.A.Katheeja Beevi ... Respondent/Petitioner/ Claimant PRAYER Second appeal is filed under Section 100 of C.P.C., against the judgment and decree, dated 10.11.2000, made in C.M.A.No.26 of 1997 on the file of the learned Subordinate Judge, Ramanathapuram, modifying the award No.4/97- 98, dated 20.08.1997, passed by the Special Tahsildar (ADW), Ramanathapuram District. !For appellant ... Mr.T.S.Mohamed Mohideen, Addl. Government Pleader ^For respondent ... Mr.V.R.Venkatesan :JUDGMENT
The Special Tahsildar for Adi-Dravidar Welfare Scheme is the appellant herein. The appeal is filed against the enhancement of compensation for the lands acquired, from Rs.17,700 per acre to Rs.7,000 per cent.
2.The respondent/claimant was the owner of an extent of 3.85 acres in Survey No.135/3B, Kattuparamakudi Village and in pursuance of 4(1) notification, dated 13.01.1997, the lands are acquired for the benefit of Adi-Dravidars and the Special Tahsildar cum Land Acquisition Officer, on the basis of the value of data land in Survey No.401/D, fixed the compensation at Rs.17,700 per acre. Aggrieved against the award passed by the Special Tahsildar, the claimant has preferred an appeal in Civil Miscellaneous Appeal No.26 of 1997 for enhancement of compensation at Rs.15,000/- per cent on the ground that the land acquired has the potential and advantage of being converted into house sites and is located abutting the main road and is in close proximity to the residential building, Government high school, rice mill, theater and men and women hostel and the area is having the advantage of uninterrupted supply of electricity and water.
The claimant has in support of his contention examined her son and the attestors of sale deeds, dated 10.05.1995 and 14.05.2007 in respect of the adjacent survey numbers and in respect of the land forming part of the same survey number as PW1 to PW4, whereas the respondent/Special Tahsildar has examined the Special Survey Sub-Registrar as RW1. Both the claimant and the respondent produced Exs.A1 to A3, sale deeds and Ex.R1 - award passed by the Special Tahsildar, Ex.R2 - guideline value, Ex.R3 - FMB, Ex.R4 - Chitta and Ex.R5 - data sale deed.
3.The appellate Court, on the basis of the available evidence, found that Exs.A1 to A3, sale deeds in respect of the lands in the adjacent sub division and same Survey Nos.135/1, 135/1A, 135/3B, can be accepted to be reflecting the correct market value of the lands in question and proceeded to fix the compensation for the land in question at Rs.7,000 per cent. Aggrieved against the same, the Land Acquisition Officer preferred the present second appeal before this Court.
4.The second appeal is admitted on the following substantial questions of law;
"a) Whether the Court below ought to have considered the defendant documents Exs.1 to 3 and erred in holding the documents placed by the respondents?
b) Whether the award of interest and solatium is in contraversion of the decision reported in 1997(5) SCC 148 and 1997 (1) SCC 249?
c) Whether the enhancement of compensation could be made on the basis of sale deed of the respondent without examining either party and without going into the merits of the individual facts of the case?"
5.Heard the rival submissions made on both sides and perused the records.
6.The lands acquired are measuring 3.85 acres situated in Survey No.135/3B in Kattuparamakudi Village. While the valuation fixed in the award is at Rs.17,700/- per acre, the value enhanced in the appeal is Rs.7,000/- per cent. The appellant herein fixed the value on the basis of the value of the data land in Survey No.401/D, measuring 40 cents sold on 18.06.1996 at Rs.7080/- per acre. Whereas the subject matter of Exs.A1 to A3, sale transactions effected between May, 1995 and December, 1995 are in the adjacent sub division numbers and in same survey Nos.135/1, 135/1A & 135/3B. Under Exs.A1 to A3, an extent of 1260 sq. ft., 1200 sq. ft. and 1200 sq.ft. are sold for Rs.32,760/-, 31,200/- and 42,000/- and the value of the land per cent is arrived at Rs.11,336/-. It may be true that the claimant has not examined either of the parties to Exs.A1 & A2 and the witnesses examined before this Court as PW2 to PW4 are the attestors of the documents. As far as Ex.A3 is concerned, the son of the claimant, who is the vendor under Ex.A3 is examined as PW1 and the same satisfied the legal requirement as contemplated in the judgment reported in 1997 (5) SCC 148.
7.It is not in dispute that the land in Survey No.135/1 & 135/1A is adjacent to the land in question, whereas the land in Survey No.401/1D is situated at a distance from the lands covered under Exs.A1 to A3. It is not seriously disputed that the lands covered in Exs.A1 to A3 and the land acquired possess more or less the same advantages and disadvantages, as such, the lower appellate Court readily accepted the value of the sample lands produced on the side of the respondent/claimant in the place of the data land and this Court finds no error on the part of the lower appellate Court in doing so.
8.As rightly argued by the learned counsel for the claimant, when the acquired land and sample lands possess similar advantages and situated adjacently and in the absence of any evidence to show that the sale transaction do lack bona fide, considering the proximity of the location of the lands and the proximity of the time of the transactions and acquisition, it is but appropriate to fix the market value with reference to the sample sales. At the same time, it shall be but appropriate that while determining the value of the market land, in addition to potentiality of the land and the available facilities, like national highway, bus-stand, temple, residential houses, schools, colleges, hospitals, etc. in the nearby vicinity, the nature of the land as to whether the same is agricultural or housing plots, is to be necessarily considered.
9. A serious objection raised herein is that the land acquired is agriculture in nature, but the lands covered under comparable sales are already converted into housing plots, as such reasonable percentage of the value has to be deducted from the value of the lands covered under sample sales. It is further contended that as the sale made are lessor in extent, the same cannot be taken into consideration as comparable sales to larger area acquired in acres. Further the learned counsel for the respondent/claimant has by relying upon the nature of the lands acquired i.e., a vacant site, questioned the fixation of the value at Rs.7,000/- per cent as against value of Rs.11,136/- and Rs.15,250/- per cent for which the lands under Exs.A1 to A3 are sold.
10.There can be no quarrel with regard to the legality of the submission advanced herein at the hands of the appellant. However, it is contended that the first ground is not available to the appellant for the simple reason while the land covered under Exs.A1 to A3 are sold as house sites, the land in question is already leveled as vacant site and has the potential to be converted into house sites without incurring additional expenditure.
11. This Court finds some force in the argument raised on the side of the respondent/claimant. As already referred to, the lands sold under Exs.A1 and A2 are in the adjacent sub division numbers to the land in question and Ex.A3 is in respect of the land forming part of the land in Survey No.135/3B as that of the land acquired. Though it cannot be disputed that the sale consideration of larger extent cannot be taken for fixation of sale consideration of smaller extent, the Court below has erred in reducing 50% of the value for the lands acquired which possess the same advantage as that of sample lands. In my considered view, having regard to all the aspects discussed above, Rs.13,000/- can be fixed as average sale consideration for the sale of the lands under Exs.A1 to A3 and the compensation for the lands acquired can be fixed at Rs.10,000/- per cent as against Rs.7,000/- per cent.
12. In doing so, another legal objection arises herein is as to whether the claimant is entitled to seek any enhancement in this appeal filed by the Special Tahsildar / Land Acquisition Officer without preferring any independent appeal. This aspect is well settled by the Apex Court and our High Court in the following judgments (a) 1993 (2) SCC 639 (Bihar Supply Syndicate Vs. Asiatic Navigation), (b) 2010 STPL (Web) 728 SC (Pralhad and others Vs. State of Maharashtra and another), (c) 2012 (2) SCC 161 (Y.Nagaraj Vs. Jalajakshi and others), (d) AIR 2004 Madras 538 DB (Bond Food Products Pvt. Limited Vs. Planters Airways Ltd.), (e) 2006 (2) L.W. 102 (The Sub- Collector, Padmanabhapuram Vs. R.S.Raveendran), (f) AIR 1999 Supreme Court 3571 (Ravinder Kumar Sharma Vs. State of Assam), (g) 1997 (II) CTC 560 (Thanthai Periyar Transport Corporation Vs. Sundari Ammal), (h) 2002 (II) CTC 272 (Annai Sathya Transport Corporation Ltd., Vs. Janardhanam), (i) unreported judgment of the Division Bench of our High Court in Second Appeal No.225/2003, dated 21.10.2011 (The Special Tahsildar Vs. J.P.Kannan), and (j) 2001 ACJ 1128 (Justice MKVJ), (Managing Director Vs. Sundari Ammal and four others).
13.In all the cases cited above, the Apex Court and our High Court have clearly observed that the power of appellate Court under Order 41 Rule 33 of C.P.C. is much wider and that may be exercised in favour all the parties, although such parties filed no appeal or cross objection.
14.As a matter of fact, the unreported judgment of our High Court, (Division Bench) as referred to above and that of the learned Single Judge of Our High Court reported in 2001 ACJ 1128, cited supra, are in respect of award of compensation and our High Court, following the earlier Supreme Court judgment reported in (1985) 3 SCC 737 (Bhag Singh Vs. Union Territory of Chandigarh) observed that the Court can award higher compensation, if the Court ultimately comes to the conclusion that the market value of the land fixed by the Court below is less. Further the Supreme Court in the judgment reported in 2010 STLP (Web) 728 = (2010) 10 SCC 458, cited supra, in paragraph No.20 has observed as follows;
"20. In Vanarsi v. Ramphal, AIR 2004 SC 1989, this Court construing the provisions of Order 41 Rule 33 CPC held that this provision confers powers of the widest amplitude on the appellate court so as to do complete justice between the parties. This Court further held that such power is unfettered by considerations as to what is the subject-matter of the appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party. (see para 15 at p. 1997.). It has also been held by this Court in Samundra Devi v. Narendra Kaur and others, (2008) 9 SCC 100 (para 21), that this power under Order 41 Rule 33 CPC cannot be exercised ignoring a legal interdict."
15.In the judgment dealt with by the Supreme Court reported in (1985) 3 SCC 737, the claimants are held entitled to enhanced compensation subject to payment of deficit Court fee so that, like other claimants, who are awarded compensation at enhanced rate. The Supreme Court under the said circumstances is of further view that:
"The learned single Judge and the Division Bench should not have, in our opinion, adopted a technical approach and denied the benefit of enhanced compensation to the appellants merely because they had not initially paid the proper amount of court fee. It must be remembered that this was not a dispute between two private citizens where it would be quite just and legitimate to confine the claimant to the claim made by him and not to award him any higher amount than that claimed though even in such a case there may be situations where an amount higher than that claimed can be awarded to the claimant as for instance where an amount is claimed as due at the foot of an account. Here was a claim made by the appellants against the State Government for compensation for acquisition of their land and under the law, the State was bound to pay to the appellants compensation on the basis of the market value of the land acquired and if according to the judgments of the learned single Judgement and the division Bench, the market value of the land acquired was higher than that awarded by the Land Acquisition Collector or the Additional District Judge, there is no reason why the appellants should have been denied the benefit of payment of the market value so determined. To deny this benefit to the appellants would tantamount to permitting the State Government to acquire the land of the appellants on payment of less than the true market value. There may be cases where, as for instance, under-agrarian reform legislation, the holder of land may, legitimately, as a matter of social justice with a view to eliminating concentration of land in the hands of a few and bringing about its equitable distribution, be deprived of land which is not being personally cultivated by him or which is in excess of the ceiling area with payment of little compensation or no compensation at all, but where land is acquired under the Land Acquisition Act, 1894, it would not be fair and just to deprive the holder of his land without payment of the true market value when the law, in so many terms, declares that he shall be paid such market value. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the state Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen. We are, therefore, of the view that, in the present case, the Division Bench as well as the learned single Judge should have allowed the appellants to pay up the deficit court fee and awarded to them compensation at the higher rate or rates determined by them."
16. In the other case reported in AIR 1988 SC 54 (Mahant Dhangir Vs. Madan Mohan), the Supreme Court has observed that the scope of power under Order 41 rule 33 is wider enough to determine any question not only between the appellant and respondent, but also between the respondent and co-respondents and the appellate Court could pass any decree or order which ought to have been passed as the circumstances of the case may require subject to fulfillment of the requirements (1) that the parties before the lower Court should be there before the appellate Court and (2) the question raised must properly arise out of judgment of the lower Court. It is observed by the Apex Court that if these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower Court that may be urged by any party to the appeal.
17.That being the legal position, this Court has no hesitation to enhance the compensation from Rs.7,000/- per cent to Rs.10,000/- per cent. As the value of comparable sales of small extent cannot form the basis for fixation of value of larger extent, this Court is inclined to fix the rate at Rs.10,000/- per cent by allowing some concession to the extent of the land sold and by allowing reasonable 10% towards development charges. The judgment and decree of the reference Court is liable to be modified to that effect.
18. As far as the award of interest on solatium and additional amount to be awarded under Section 23(1)(a), the same is negatived in the judgment reported in 1997 (1) SCC 249 (Tehari Hydro Development Corporation Vs. S.P.Singh and others). But the Supreme Court has in the subsequent judgment reported in 2001 (4) CTC 434 (Sundar Vs. Union of India) held that interest is payable not only to the actual market value of the land, but also for the additional amount as well as solatium and the same is also followed by our High Court in 2004 (4) CTC 359 (Tube Investments of Indian Ltd. Vs. The Special Tahsildar) and 2006 (2) L.W.102 (Sub Collector, Padmanabhapuram Vs. R.S.Raveendran).
19.Therefore, the claimant is held entitled to compensation at the rate of Rs.10,000/- per cent, 30% solatium under Section 23(2), 12% under Section 23(1A) on the market value and interest at 9% per annum for one year from the date of taking possession and 15% per annum from the date of expiry of the said period of one year till the date of payment of the compensation. Accordingly, the second appeal is disposed of with proportionate costs.
gcg To
1.The Subordinate Judge, Ramanathapuram.
2.The Special Tahsildar, ADW, Paramakudi.