Madras High Court
V. Sreekantan And Another vs The Revenue Divisional Officer, ... on 26 February, 2001
ORDER
1. The civil revision petition has been filed against the order of the learned subordinate Judge, Kuzhithurai dismissing the application in I.A.No. 381 of 1997 in L.A.O.P.No.9 of 1997 on his file. The application itself was for the appointment of an Advocate Commissioner under Order 26, Rule 9 read with Section 151 of the Code of Civil Procedure for the purpose of ascertaining the following facts:
(1) prepare a plan of the acquired land separately showing the areas acquired from the shares of first claimant and the second claimant with reference to the sketch filed by the claimants in Court and as per the marks made on the requisition body;
(2) Estimate the value of the building bearing Door No. 9/35-A and the trees standing on the acquired land from the share of the first claimant;
(3) Estimate the value of the land, building bearing Door No.9/35, the compound wall and other structures falling within the acquired land from the share of the second claimant;
(4) Estimate the value of land at Kuzhithurai in the open market;
(5) Note whether the acquired land is situated very close to the Kuzhithurai Junction, Devikumari Women's College, Training School, Banks and other public offices, and (6) Note such other matters at the request of the claimants at the spot.
2. The L.A.O.P. is for enhancement of compensation. The allegations in the affidavit filed in support of the application for the appointment of a commissioner are that the Land Acquisition Officer fixed a pitiably inadequate compensation for the land and building acquired from the revision petitioners, that it is absolutely necessary to appoint a Commissioner to note the advantages and potentiality of the acquired land and its proximity to the commercial area, educational institutions, public offices and to assess the value of the building with the aid of a building aspect.
3. The respondent/State opposed the application contending that the Land Acquisition Officer correctly fixed the compensation as per the rules and regulations of the Government after analysing the date land equivalent to the acquired land that the case is not a civil suit and that it is not necessary to have the assistance of a commissioner.
4. The learned Subordinate Judge dismissed the applications holding that the Advocate Commissioner is not competent to fix the value and there is absolutely no ground to appoint any Advocate Commissioner.
5. As against the dismissal, the present revision petition has been filed.
6. Mr. K. Sreekumaran Nair, learned counsel for the revision petitioners, submitted that the provisions of the Code of Civil Procedure are made applicable to proceedings before the Court by virtue of Section 53 of the Land Acquisition Act(Act I of 1984) and that the application for the appointment of an Advocate Commissioner ought to have been allowed. Section 53 of the Land Acquisition Act (Act I of 1984). The learned counsel also relied on the following decisions in support of his contentions:
(1) K. Krishna Reddy and others v. Special Deputy Collector etc., and (2) Satheeshkumar v. Special Tahsildar (LA), 2000 (1) KLT 416.
7. Mr.M. Dhandapani, learned Government Advocate, opposed the stand of the revision petitioners and contended that the Land Acquisition Officer had analysed all the available evidence such as sale details, documents, nature of land assessment and the village accounts and it is not possible for an Advocate Commissioner to fix the value, that the lower court has rightly rejected the application and that no interference is called for.
8. Section 53 of the Land Acquisition Act provides that so far as they are not inconsistent with anything contained in the Land Acquisition Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under the Land Acquisition Act. Section 18 is the provision under which reference is made to Court. When the person interested does not accept the award, he can make an application in writing to the Collector requiring the latter to refer the matter for determination by the Court. The objection of the person interested may relate to the measurement of the land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested. There is a time limit fixed for applying for reference.
9. In the statement filed by the revision petitioners it is set out in detail as to how the value fixed by the Land Acquisition Officer is inadequate. It is not necessary to refer in extenso to the particulars given in application for reference. Suffice it to say that the petitioners are thoroughly dissatisfied with the compensation awarded by the Land Acquisition Officer.
10. Order 26, Rule 9 is clear that for ascertaining the market value of any property a commission may be issued.
11. It has been held in Parameshwari Devi etc. v. Punjab State Electricity Board and another, , that, " the burden regarding the market value of land lies on the claimant/landowner and if he fails to discharge the burden and he did not make any effort in this direction by letting in proper evidence, then he would ultimately suffer."
In fact, the Supreme Court has held that, " It is the duty of the claimant to prove sale deeds by adducing evidence either by vendor or vendee or attesting witness of passing of the consideration under the sale deed to prove that the sale transactions are genuine transactions between the willing vendor and willing vendee, that the consideration has in fact been passed under the document duly registered, represent and prevailing market value and also the lands under acquisition and the lands concerning the sale are similarly situated and possessed of same or similar nature, advantages, etc.
12. It has been held in K. Krishan Reddy and others v. Special Deputy Collector, Land Acquisition Unit II, LMD Karim Nagar, Andhra Pradesh, 1984 (4) SCC 163 that, " the award in land acquisition matters must be given without loss of time as with rising inflation, delayed payment might loss all charm and utility of the compensation."
In that case, Commissioner was indeed appointed to go to the spot and after taking the relevant matters into consideration give a report regarding the nature of the land, the location of the land and its value. Thus the appointment of an Advocate Commissioner in references arising under Section 18 of the Land Acquisition Act is now settled. It is not necessary that such Advocate Commissioner should be an expert. He can always take the assistance of experts like Surveyors, Engineers, etc. Appointment of Commissioners will also save the time of the Court, in such matters.
13. In Satheeshkumar v. Special Tahsildar (LA), 2000 (1) KLT 416, it has been held by S. Marimuthu, J. of the Kerala High Court that, " an Advocate Commissioner can be appointed for ascertaining the market value of any property in land acquisition matters and the court can rightly act upon the report of such Advocate Commissioner."
14. For all the reasons stated above, the order of the lower court cannot be sustained and the same is set aside and the applications filed by the revision petitioner in I.A.No.381 of 1997 in L.A.O.P.No.9 of 1997 will stand allowed and an Advocate Commissioner will be appointed by the lower court for ascertaining the market value of the property subject matter of the land acquisition proceedings. The civil revision petition is allowed, The stay petition C.M.P.No.8504 of 1999 is closed. There will be no order as to costs.