Madras High Court
The Land Acquisition Officer-Cum vs Tmt. Pappu @ Athaya Ammal (Died) on 21 March, 2018
Author: R. Subbiah
Bench: R. Subbiah, P.D. Audikesavalu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21-03-2018
CORAM:
THE HONOURABLE MR. JUSTICE R. SUBBIAH
and
THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU
Second Appeal No. 1873 of 2002
---
The Land Acquisition Officer-cum-
Special Tahsildar (Harijan Welfare)
Salem .. Appellant
Versus
1. Tmt. Pappu @ Athaya Ammal (died)
2. Paramasiva Gounder (died)
3. Tmt. M. Marayi
4. N Surrenderan
5. N. Chokkalingam
6. K. Periyasamy
7. Kandaya Ammal
8. P. Shelvakumar
9. P. Babu Venkatesh
10. Tmt. Padmavathy
(Respondents 3 to 10 are impleaded as
legal heirs of the deceased respondents
1 and 2 as per order dated 04.08.2015
made in CMP No. 365 to 370 of 2015 in
SA No. 1873 of 2002) .. Respondents
Appeal filed under Section 13 of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act (Act 31 of 1978) read with Section 100 of Code of Civil Procedure against the Judgment and Decree dated 19.04.2001 made in LA CMA No. 3 of 1999 on the file of Additional Subordinate Judge, Salem modifying the award dated 28.02.1981 in Award No. 3/1980-1981 on the file of the Land Acquisition Officer-cum-Special Tahsildar (Harijan Welfare), Salem.
For Appellant : Mr. M. Venkatesh Kumar
Government Advocate (Civil Suit)
For Respondents : Mr. G. Masilamani, Senior Advocate
for Mr. S. Siva Shanmugam for RR3 to 10
JUDGMENT
(Judgment of the Court was delivered by R. Subbiah, J) The Land Acquisition Officer cum Special Tahsildar (Harijan Welfare), Salem District has come forward with this Second Appeal questioning the validity of the Judgment and Decree dated 19.04.2001 passed in LA CMA No. 3 of 1999 on the file of the Additional Subordinate Judge, Salem. By the said Judgment dated 19.04.2001, the Appellate Court has modified the award dated 22.08.1981 passed by the appellant herein and enhanced the compensation amount payable to the land owners/respondents herein from Rs.3,667/- per acre to Rs.6/- per square feet.
2. The lands owned by the first and second respondent comprised in Survey Nos. 88/1 and 88/2 measuring a total extent of 5.65 acres situated in Mallur Village, Salem Taluk and District were proposed to be acquired by the appellant for providing house sites to Arunthadiars. In this regard, the officials attached to the office of the Special Tahsildar, Salem conducted a site inspection and the site identified by them was also approved by the District Collector in his proceedings in Roc No. 34685/1980 dated 09.03.1980. An enquiry was conducted thereafter on 06.05.1980 with the land owners as contemplated under Section 4 (2) of The Land Acquisition Act (Act 31 of 1978) and during such enquiry, the objections raised by the land owners were over ruled. Subsequently, the notification under Section 4 (1) of The Land Acquisition Act was published in the gazzette on 06.09.1980. For the purpose of determining the compensation for the lands proposed to be acquired, the appellant resorted to take into account the sale transactions that had taken place prior to the publication of notification under Section 4 (1) of The Land Acquisition Act. Accordingly, the appellant had taken into account the sale statistics that had taken place between 06.09.1977 to 05.09.1980. As per the data collected, the appellant had taken into account a sale deed dated 15.03.1978 registered as document No. 501 of 1978 relating to the land in Survey No.88/7 measuring 81 cents and based on the same, the appellant has passed the award dated 28.02.1981 fixing the value for the acquired land at Rs.3,627/- per acre. Aggrieved by the quantum of compensation fixed by the appellant, the land owners/respondents have sought for a reference to the competent Civil Court, as contemplated under Section 18 of The Land Acquisition Act and accordingly, a reference was made and it was taken on file as L.A.C.M.A. No. 3 of 1999 on the file of Subordinate Court, Salem.
3. Before the Sub Court, on behalf of the claimants/respondents herein, the deceased second respondent examined himself as PW1 and one Chinna Goudner was examined as PW2 and Exs. P1 to P2 were marked. On behalf of the appellant, none was examined however Exs. R1 to R4 were marked. That apart, the Report and Sketch filed by the Advocate Commissioner was marked as Exs. C1 and C2. The learned Subordinate Judge, Salem, after analysing the oral and documentary evidence, concluded that taking into account the locational advantages with which the acquired lands are situated, as could be evident from Exs. C1 and C2, the value of the land has to be enhanced. Accordingly, the Sub Court, Salem, enhanced the value of the acquired land from Rs.3,667/- per acre to Rs.6/- per square feet.. Aggrieved by the same, the present Second Appeal is filed by the appellant.
4. At the time of admission of this second appeal, the following substantial questions of law were framed for consideration:-
(i) Whether the learned Judge is right in converting the court of appeal into a trial court especially when the Act does not confer any power on the subordinate Judge to conduct a trial?
(ii) Whether the learned Judge has got power to receive any oral and documentary evidence especially when the Civil Procedure Code is not made applicable before the subordinate judge, which is an appellate authority?
(iii) Whether the lower appellate Court was justified in fixing the market value which is against the well settled proposition of law that a small extent of land cannot be taken as data sale to arrive at the compensation for a larger extent as held by the Apex Court reported in 1997 (9) SCC 629, Land Acquisition Officer and Sub-Collector vs. Sreelatha Bhoopal Case?
(iv) Whether the lower appellate Court was right in relying on the sale deed of a property situated abutting the main road, when the property in question is situated in an interior-village as has been held in 1997 (6) SCC 58 (Union of India vs. Mangathram case.
5. The learned Government Advocate appearing for the appellant would vehemently contend that the acquired lands are situated 1 kilometer away from the Mallur Town and they are not fit for conversion into residential plot. The data sale taken into account by the acquisition officer has relative and identical potential value as that of the acquired land and therefore, the appellant is wholly justified in fixing the market value for the acquisition land. Above all, the learned Government Advocate would contend that as per Section 9 of The Tamil Nadu Acquisition of Land for Harihan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978) only an appeal would lie as against the award passed by the Prescribed Authority. Therefore, the learned Subordinate Judge is not a reference Court as contemplated under the said Act but only an appellate Court to try an appeal as against the award passed by the Prescribed Authority under Section 7 of the said Act. While so, the learned Subordinate Judge erred in permitting the Prescribed Authority as well as the land owner to let in oral evidence and thereby the Subordinate Judge assumed himself as a Reference Court. Such a course adopted by the Subordinate Judge is in contravention to Section 9 of the said Act. In such event, the provisions contained under the Code of Civil Procedure cannot be applicable to the proceedings conducted by the learned Subordinate Judge and the applicability of Code of Civil Procedure is impliedly excluded to the proceedings under Act 31 of 1978. In such view of the matter, the learned Government Advocate prayed for setting aside the decree and judgment passed by the court below.
6. The learned Senior counsel appearing for the land owners /respondents would contend that the acquired lands are situate adjacent to Salem to Trichy National Highway. The acquired lands exist very closer to the Mannur Bus Stand. There are residential colonies occupied by Government servants, Factories and Cinema Halls situated nearby the acquired lands. The lands which are situated adjacent to the acquired lands have been converted into housing plots and the market value of the acquired land will not be less than Rs.24/- per square feet as on the date of issuing the notification under Section 4 (1) of the Land Acquisition Act.. In order to substantiate the above locational advantage which the acquired land possessed, the second respondent examined himself as PW1 along with another witness as PW2 and both of them, in unison, have deposed in detail above the locational advantages the acquired lands possess. Above all, the Advocate Commissioner appointed by the Reference Court has also produced Exs. C1 and C2, which would clearly indicate the fact that the acquired lands are situated near the Mallur Bus Stand and that they have been converted into that of a housing site. Taking into account the above, the Reference Court has rightly enhanced the market value of the acquired lands and it calls for no interference by this Honourable Court. As regards the contention of the learned Government Advocate appearing for the appellant that the lower Appellate Court ought not to have permitted the land owner as well as the appellant to let in evidence inasmuch as such a procedure is contrary to Section 9 of The Tamil Nadu Acquisition of Land For Harijan Welfare Schemes Act (Tamil Nadu Act 31 of 1978), the learned Senior counsel for the respondents would contend that such a contention is urged before this Court for the first time and they were not agitated at the time of letting in evidence before the Lower Appellate Court. Therefore, the learned Senior counsel would pray for dismissal of the appeal.
7. We have heard the counsel for both sides and perused the material evidence. When the appeal was taken up for hearing, we have directed the learned Government Advocate to produce the file pertaining to the acquisition proceedings. However, on 16.03.2018, it was reported by the learned Government Advocate that the file could not be traced and it was lost. In such circumstances, we have decided to proceed with this appeal with the materials available on record.
8. At the outset, the learned Government Advocate would vehemently contend that the Sub Court, Salem has assumed the role of a Reference Court and it had permitted the appellant and the land owner to adduce evidence, which is contrary to the provisions contained under Section 9 of The Tamil Nadu Acquisition of Land For Harijan Welfare Schemes Act (Tamil Nadu Act 31 of 1978), As rightly pointed out by the learned Senior counsel for the respondents, the appellant did not raise any such objection before the Court below while letting in oral evidence or at the time of marking documents. The appellant, without any protest, has let in evidence and he was also subjected to cross-examination. Even for the appointment of advocate commissioner or for marking the documents through him namely Exs. C1 and C2, there was no protest made by the appellant. While so, in this appeal, the appellant cannot contend that the procedure adopted by the Court below is erroneous. Therefore, the argument advanced by the learned Government Advocate (Civil Side) is only liable to be rejected. In this context, reliance was made on the decision of the Honourable Supreme Court in the case of (Land Acquisition Officer and Sub-Collector, Gadwal vs. Sreelatha Bhoopal (smt) and another) reported in (1997) 9 Supreme Court Cases 628. Similarly, reference was also made to the decision of the Honourable Supreme Court in the case of (Union of India and others vs. Mangatu Ram and others) reported in (1997) 6 Supreme Court Cases 59. In both the decisions relied on by the counsel for the appellant, it was only held that when the acquired lands are abetting the main road they are entitled for higher rate of compensation when compared to the lands which are situated in the interior area. Further it was held that for fixation of the market value of the land, the land acquisition officer is not entitled to take into account the sale deeds relating to smaller extent of lands. Therefore, the reliance placed by the learned counsel for the appellant on the above decisions to contend Court below has no power to record evidence of the land acquisition officer or the Court below has no power as that of a Civil Court cannot be accepted.
9. As regards the enhancement of the market value of the acquired lands, we have gone through the order, which is impugned in this appeal, wherein the Sub Court, Salem has clearly recorded the deposition of the appellant as well as the respondents and the documents filed by them. While referring to the deposition of PW1 and 2, the Sub Court, Salem has taken into account the locational advantages the acquired lands possess. A specific finding was rendered by the court below that as per the sketch filed by the advocate commissioner, the acquired lands are situated near Mannur Bus Stand and very near to the National Highways. The court below has also found that the data land taken into account by the appellant is a barren land and on the other hand, the acquired lands have been converted into house sites and are capable of fetching more value. Therefore, the Court below, taking into account the value of the land covered in Ex.P2 filed on behalf of the land owners/respondents found that similar lands have been sold at the rate of Rs.10.50 per square feet and therefore, the court below has arrived at a sum of Rs.6/- per square feet as compensation for the acquired lands. The court below also rendered a specific finding that on behalf of the appellant herein, no documentary evidence was filed to show that the lands covered in Ex.P2 do not reflect the correct market value of the acquired lands. Therefore, we do not find any reason to interfere with such a finding arrived at by the Court below for determining the market value of the lands based on the oral and documentary evidence adduced before it. Accordingly, we answer all the questions of law framed for consideration in this appeal as against the appellant.
10. In the result, we confirm the Judgment and Decree dated 19.04.2001 made in LA CMA No. 3 of 1999 on the file of Additional Subordinate Judge, Salem and consequently, the second appeal fails and it is dismissed. No costs. It is brought to the notice of this Court that pending second appeal, the appellant had deposited 50% of the compensation amount as per the order passed by this Court in CMP No. 15853 of 2002 in S.A. No. 1873 of 2002. The appellant is therefore directed to deposit the balance compensation amount together with all other statutory benefits within a period of eight weeks from the date of receipt of a copy of this judgment. Consequently, connected miscellaneous petitions are closed.
(R.P.S.J.,) (P.D.A.J.,)
21-03-2018
rsh
Index : Yes / No
To
The Additional Subordinate Judge
Salem
R. SUBBIAH, J
and
P.D. AUDIKESAVALU, J
rsh
SA No. 1873 of 2002
21-03-2018