Madras High Court
The Revenue Divisional Officer vs Srikandan on 1 December, 2016
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan, J.Nisha Banu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.12.2016
RESERVED ON : 24.11.2016
DELIVERED ON : 01.12.2016
CORAM
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
A.S.(MD)No.138 of 2009
and
Cross Objection (MD)No.12 of 2010
A.S.(MD)No.138 of 2009:
The Revenue Divisional Officer,
(Land Acquisition),
Padmanabhapuram at Thuckalay,
Kanyakumari District. ... Appellant/
Referring Officer
Vs.
1.Srikandan
2.C.Prabhakaran Nair
3.Egurajan
4.Babu
5.Rasal Raj
6.Sundararaj ... Respondents 1 to 6/
Claimants
7.The Divisional Engineer,
National Highways(Execution),
Tirunelveli. ... 7th Respondent/
2nd Respondent/
Beneficiary
PRAYER: Appeal filed under Section 54 of the Land Acquisition Act, 1894, to
set aside the judgment and decree dated 27.06.2006 made in L.A.O.P.No.9 of
1997 on the file of the Sub Court, Kuzhithurai.
!For Appellant : Mr.C.Selvaraj,
Special Government Pleader
^For Respondents : Mr.K.Sreekumaran Nair
for R.1 & R.2
Mr.G.R.Swaminathan for R.3 to R.6
No appearance for R.7
Cross Objection (MD)No.12 of 2010:
1.V.Srikandan
2.C.Prabhakaran Nair ... Cross Objectors/
Respondents 1 & 2
Vs.
1.The Revenue Divisional Officer,
(Land Acquisition),
Padmanabhapuram at Thuckalay,
Kanyakumari District. ... 1st Respondent/
Appellant/Referring Officer
2.Egurajan
3.Babu
4.Rasal Raj
5.Sundararaj ... Respondents 2 to 5/
Respondents 3 to 6
6.The Divisional Engineer,
National Highways(Execution),
Tirunelveli. ... 6th Respondent/
7th Respondent/
Beneficiary
PRAYER: Petition filed under Order 41 Rule 22 of the Civil Procedure Code, to
grant additional compensation of Rs.3,99,600/- (Rupees Three Lakhs Ninety
Nine Thousand and Six Hundred only) towards market value of the property
acquired with usual solatium and interest as provided under the Land
Acquisition Act over and above the compensation fixed by the Sub Judge,
Kuzhithurai to the Cross Objectors.
!For Petitioners : Mr.K.Sreekumaran Nair
^For Respondents : Mr.C.Selvaraj,
Special Government Pleader for R.1
Mr.G.R.Swaminathan for R.2 to R.5
No appearance for R.6
:COMMON JUDGMENT
M.SATHYANARAYANAN,J.
The Revenue Divisional Officer (Land Acquisition), Padmanabhapuram at Thuckalay, Kanyakumari District, aggrieved by the enhanced quantum of compensation, awarded by the Reference Court, namely, Sub Court, Kuzhithurai, vide award and decree dated 27.06.2006, had filed the appeal in A.S.(MD)No.138 of 2009.
2. The facts leading to the filing of this appeal, briefly narrated, are as follows:
2.1. The Divisional Engineer, National Highways (Execution), Tirunelveli, had moved for acquisition of lands in Nalloor and Vilavancode villages in Vilavancode Taluk for the construction of new bridge at K.M. 604/4 of National Highways ? 47 [N.H-47] and accordingly, the land acquisition proceedings were initiated under the provisions of the Land Acquisition Act, 1894 [Central Act 1 of 1894] {in short '1894 Act'} by the Land Acquisition Officer/Revenue Divisional Officer, Padmanabhapuram at Thuckalay, Kanyakumari District. The lands sought to be acquired were to an extent of 1.57.01 Hectares in the above said places.
2.2. As per the Draft Notification, a decision has been taken to acquire 1.57.01 Hectares and subsequently, a Withdrawal Notification was submitted deleting the above 4,600 sq. links in T.S.Nos.14/1, 2, 4, 5, 6 and 7 and T.S.No.A4/8 and are accepted and thereafter, the Government had approved the Draft Declaration proposal in G.O.No.824, Public Works Department, dated 28.05.1993.
2.3. After completing the required formalities mandated under the said Act, enquiry under Section 54 of the 1894 Act was conducted, wherein, the statements were recorded from the claimants.
2.4. Some of the land owners had consented for acquisition, but prayed for the higher compensation and some of them had raised their objections on the ground that the residential houses, places of business as well as standing trees are there. The objections were considered and a declaration under Section 6 of the 1894 Act was published in G.O.No.824, Public Works (HS1) Department, dated 26.05.1995 and also published in the Tamil Nadu Government Gazette No.286, dated 28.05.1993 as well as in two vernacular local dailies. The draft direction under Section 7 of the 1894 Act was approved and published in the Tamil Nadu Government Gazette No.4B dated 29.10.1993 and the locality publications were also effected and there, the award enquiry was conducted under Section 11 of the 1894 Act between 15.05.1995 and 18.05.1995.
2.5. According to the appellant/Land Acquisition Officer, the lands covered by the award are classified as ryotwari dry and Manai in the revenue account.
2.6. The appellant/Land Acquisition Officer for the purpose of valuation of the land, had obtained the statistics of the sales of similar lands in that vicinity for a period of three years prior to the date of notification under Section 4(1) of the 1894 Act, i.e. 30.05.1989 to 31.05.1992 from the office of the Joint Sub Registrar I and II, Marthandam and complied the list and as per the list, 39 sales were effected during that period and for the purpose of fixing the valuation, the lands under acquisition have been divided into three categories, namely, (a) the lands under acquisition in Nalloor Village; (b) the lands abutting National Highways - 47 in Vilavancode Village; and (c) the lands away from National Highways - 47 in Vilavancode Village and three separate data lands were selected.
2.7. Insofar as the lands in Vilavancode Village abutting National Highways - 47, the appellant/Land Acquisition Officer has taken into consideration the document No.406, dated 09.03.1992, in and by which, an extent of 9.250 cents of land was sold for consideration of Rs.30,73,158/- (Rupees Thirty Lakhs Seventy Three Thousand One Hundred and Fifty Eight only) in T.S.No.A5/36 and fixed the value of thatched shed at Rs.5,400/- (Rupees Five Thousand and Four Hundred only) and also fixed the electrification expenditure at Rs.810/- (Rupees Eight Hundred and Ten only) and after deducting these amounts, fixed the land value at Rs.7,238/- (Rupees Seven Thousand Two Hundred and Thirty Eight only) per cent.
2.8. The subject matter of the appeal is Manai (Plot) viz., the land admeasuring to an extent of 0.04.72 Hectares in T.S.No.A5/36-1 abutting National Highways - 47 and the appellant/Land Acquisition Officer has arrived at the compensation in the following manner:
Details Amount (Rs.)
(a) Land value of Rs.7,238/- per cent 0.04.72 Hectares 84,383.00
(b) Value of structures
(i) Compound wall, which belong to Dr.John Joseph 9,636.00
(ii) Shops 9/36, 9/36A to 9/36D which belong to Thiru.Justin 46,378.00
(iii) Thatched Shop 9/35A which belong to Sreekantan Nair 1,835.00
(iv) Tiled house which belongs to Prabhakaran Nair 79,294.00 Total 1,36,443.00 Value of Trees Jack tree 1 (6 Head load X 20) - 120.00 780.00 Vembu tree 1 (3 Head load X 20) - 60.00 Ananchi 1 (cart load X 30) - 600.00 Total 2,21,606.00
(c) 30% Solatium 66,482.00
(d) 12% Market value for 1064 days from 01.06.1992 to 30.05.1995 79,663.00 Total 3,67,751.00 and also made a reference to the Sub Court, Kuzhithurai, which has been taken on file in L.A.O.P.No.9 of 1997.
2.9. The first claimant, namely, Sreekandan contended that an extent of 3 cents of his land was acquired and his place of business is in superstructure bearing Door No.9/35A. Insofar as the second claimant is concerned, the land admeasuring to an extent of 4.4 cents, including the residential building bearing Door No.9/35 and the compound wall was acquired. According to the claimants, the appellant/Land Acquisition Officer fixed the very low and inadequate compensation and therefore, prayed for appointment of an Advocate Commissioner to take note of the advantages and potentialities of the acquired lands as well as the proximity to the educational institutions, public offices and to assess the value of the buildings with the aid of a Civil Engineer.
2.10. Insofar as the enhancement of the compensation is concerned, it is the specific case of the claimants that the open market value of the land per cent with minimum price was Rs.2,00,000/- (Rupees Two Lakhs only) and on that basis, the appellant/Land Acquisition Officer should have fixed Rs.6,00,000/- (Rupees Six Lakhs only) as the value of the land and insofar as the building is concerned, since it contains the amenities, it should be worth more than Rs.3,00,000/- (Rupees Three Lakhs only), but, a very low amount has been fixed and therefore, the appellant/Land Acquisition Officer ought to have granted Rs.12,00,000/- (Rupees Twelve Lakhs only) for the land, building and the compound wall and therefore, prayed for enhancement to Rs.6,53,000/- (Rupees Six Lakhs and Fifty Three Thousand only) and Rs.12,00,000/- (Rupees Twelve Lakhs only) respectively with other statutory entitlements.
2.11. The claimants filed I.A.No.381 of 1997 in L.A.O.P.No.9 of 1997 on the file of the Sub Court, Kuzhithurai, praying for appointment of an Advocate Commissioner for the above said purposes and it was dismissed and challenging the same, the claimants had filed C.R.P.No.1579 of 1999 before this Court and vide order dated 26.02.2001, the Civil Revision Petition was allowed and the lower Court was directed to appoint an Advocate Commissioner for ascertaining the market value of the land which is the subject matter of land acquisition and it was also reported in (2001) T.L.N.J. 179.
2.12. Accordingly, the lower Court has appointed Mr.Salin as the Advocate Commissioner and he has also filed his report marked as Ex.C.1 and sketch/plan as Ex.C.2 and he was also examined as C.W.1. The second claimant examined himself as P.W.1 and one of the parties to the rectification deed dated 05.03.1998, namely, Mohanakumar was examined as P.W.2. One K.P.Rajendran, Deputy Tahsildar, who was attached to the office of Vilvancode Taluk Office was examined as R.W.1. The claimants had marked Exs.A.1 to A.5 and on behalf of the appellant/Land Acquisition Officer, Exs.B.1 to B.4 were marked.
2.13. The Tribunal/Sub Court, Kuzhithurai, after analysing and considering the materials placed before it, especially, the report and sketch/plan of the Advocate Commissioner, marked as Exs.C.1 and C.2, enhanced the compensation to Rs.50,000/- (Rupees Fifty Thousand only) per cent and fixed the value of the building at Rs.50,000/- (Rupees Fifty Thousand only) and the value of the trees at Rs.1,000/- (Rupees One Thousand only) insofar as the first claimant is concerned.
2.14. As regards the lands acquired from the second claimant, the Tribunal had fixed the compensation for the land at the rate of Rs.50,000/- (Rupees Fifty Thousand only) per cent and Rs.2,31,900/- (Rupees Two Lakhs Thirty One Thousand and Nine Hundred only) towards the value of the building and Rs.1,000/- (Rupees One Thousand only) towards the value of the trees.
2.15. In respect of the lands acquired from the third claimant, the Tribunal had fixed the compensation for the land at the rate of Rs.50,000/- (Rupees Fifty Thousand only) and the value of the building at Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only). The Tribunal/Sub Court, Kuzhithurai, had also awarded the other statutory entitlements to the claimants as per the provisions of the 1894 Act and aggrieved by the higher quantum of compensation fixed by the Tribunal/Sub Court, Kuzhithurai, the present appeal is filed by the appellant/Land Acquisition Officer.
3. Mr.C.Selvaraj, learned Special Government Pleader appearing for the appellant/Land Acquisition Officer has drawn the attention of this Court to the award passed by the appellant/Land Acquisition Officer and would contend that the said official on an indepth analysis of the data sale deeds, had rightly fixed the value of the land at Rs.7,238/- (Rupees Seven Thousand Two Hundred and Thirty Eight only) per cent and in respect of the superstructures and trees, had also awarded the just, reasonable and adequate compensation and the sale deeds marked as Exs.A.1 and A.2 ought not to have been taken into consideration for the reason that the acquisition of the said lands was not similar in nature and came into being subsequently and at any rate, the value fixed for the superstructures is also very much on the higher side and therefore, he prays for reduction.
4. Per contra, Mr.K.Sreekumaran Nair, learned Counsel for the respondents 1 and 2/claimants 1 and 2 has drawn the attention of this Court to the judgment dated 13.08.2013 in A.S.No.169 of 2011 [The Revenue Divisional Officer (Land Acquisition), Padmanabhapuram at Thuckalay, Kanniyakumari District and another v. Ramadevi] and would submit that in respect of the acquisition for the very same purpose, this Court had fixed the value at the rate of 40,000/- (Rupees Forty Thousand only) per cent and the said order has not been put to challenge and in the said judgment, reliance has also been placed upon the judgment in Union of India v. S.Thuraisamy Reddiar reported in 2010 (3) MWN (Civil) 294 and as per the said decision, it has been held that there cannot be any differential value for the lands acquired in the same area and since the said judgment has reached the finality, it is not open to the appellant/Land Acquisition Officer to contend otherwise as they filed the above said appeal and suffered the order.
5. The learned Counsel for the respondents 1 and 2/claimants 1 and 2 would submit that seeking further enhancement of compensation awarded by the Tribunal, Cross Objection (MD)No.12 of 2010 was also filed and as per Exs.A.1 and A.2 and Exs.C.1 and C.2, the value of the acquired land per cent should be Rs.1,04,000/- (Rupees One Lakh and Four Thousand only) per cent and admittedly, the lands acquired are abutting the National Highways - 47 and it is very close to Kuzhithurai Junction road. He would further contend that since Kanyakumari District is a hilly region, the value of the land would normally be much more than the rates of the lands situate in other parts of the State and therefore, prays for enhancement of the compensation to Rs.34,83,753.73 (Rupees Thirty Four Lakhs Eighty Three Thousand Seven Hundred and Fifty Three and Paise Seventy Three only) with other statutory entitlements.
6. This Court paid it's best attention to the rival submissions and also perused the oral and documentary evidence as well as the original records.
7. The following questions arise for consideration in this appeal:
(i) Whether the enhanced compensation awarded by the Tribunal/Sub Court, Kuzhithurai, requires reduction or modification?
(ii) Whether Cross Objection (MD)No.12 of 2010 filed by the claimants is to be allowed?
Question No.(i):
8. The second claimant, namely, Prabhakaran Nair examined himself as P.W.2 and in the chief examination, he deposed that in respect of the lands acquired from the first and third claimants, the houses were there and for the purpose of acquisition, the said superstructures were demolished and as far as he is concerned, five shops were located on the land in question and the said land in question lies very near to Kuzhithurai Junction and also abutting the National Highways - 47 and therefore, the market value of the land per cent should be Rs.5,00,000/- (Rupees Five Lakhs only). P.W.1 would further depose that near the acquired lands, hospital, college, school and cinema theatre and other amenities are also available. He has also drawn the attention of this Court to the order dated 19.07.2001, made in L.A.O.P.No.2 of 1997 on the file of the Sub Court, Kuzhithurai, which pertains to the acquisition of land for the very same purpose, wherein the Reference Court has fixed the land value at the rate of Rs.40,000/- (Rupees Forty Thousand only) per cent.
9. In the cross-examination, P.W.1 would depose that the subject matter of properties in Exs.A.4 and A.5 also lie close to Kuzhithurai Junction and is 100 meters away from his property. One of the parties to Ex.A.2 was examined as P.W.2 and he would depose that the property near Kuzhithurai Junction is valued at Rs.301/- (Rupees Three Hundred and One only) per sq. ft. and the subject matter of property in Ex.A.2 is near Kuzhithurai Junction and the land value will be Rs.88,200/- (Rupees Eighty Eight Thousand and Two Hundred only) and denied the suggestion that the land in Ex.A.2 is far away from the acquired land.
10. R.W.1 who was employed as Deputy Tahsildar, in Vilavancode Taluk Office would depose that he is giving evidence on the basis of the record and also on personally inspecting the acquired lands, come out with the modus operandi for fixing the value. R.W.1 would further depose that at the time of acquisition, coconut trees were there and between the acquired lands, River Thamirabarani is flowing and in the cross-examination, he would depose that the data land based on which the valuation is done, lies away from the National Highways - 47 and the acquired land is within 200 meters from Kuzhithurai Junction. He would further admit that the hospital is also located bit further away from the acquired land. R.W.1 has also admitted that the acquired land lies in very close proximity to the National Highways
- 47 and as regards the valuation of the superstructure, it was on the basis of the report of the Public Works Department and is not in possession of the records and denied the suggestion that the market value of the lands lie near to Kuzhithurai Junction will be Rs.2,00,000/- (Rupees Two Lakhs only) per cent.
11. R.W.1 would further depose that they have scanned 39 sale deeds which also contained the lands that were sold for higher value, but all the documents have not been marked and also made a crucial admission that they did not verify the guideline value.
12. It is to be pointed out at this juncture that even in the award passed by the appellant/Land Acquisition Officer, it is conceded that his land is classified as 'Manai' (Plot) and it is abutting the National Highways
- 47. R.W.1 would also fairly admit the said fact that the land is located very near to Kuzhithurai Junction.
13. It is a categorical finding of R.W.1 that the hospital, school, cinema theatre are lying very close to the acquired lands and the said evidence was not controverted by R.W.1.
14. Ex.A.4 is the award dated 19.07.2001 passed in L.A.O.P.No.2 of 1997 by the Sub Court, Kuzhithurai, which also concerned with the acquisition of land for the very same purpose and the Reference Court has fixed the value at Rs.40,000/- (Rupees Forty Thousand only) per cent.
15. It is also brought to the knowledge of this Court that in respect of the acquisition for the very same purpose, the reference was made by the first appellant in L.A.O.P.No.12 of 1997 before the Tribunal/Sub Court, Kuzhithurai, wherein the Land Acquisition Officer has fixed the market value at Rs.2,440/- (Rupees Two Thousand Four Hundred and Forty only) per cent and Rs.12,194/- (Rupees Twelve Thousand One Hundred and Ninety Four only) for superstructures and Rs.4,970/- (Rupees Four Thousand Nine Hundred and Seventy only) and Rs.1,080/- (Rupees One Thousand and Eighty only) for trees.
16. The Tribunal has fixed the land value at Rs.45,000/- (Rupees Forty Five Thousand only) in respect of the lands in T.S.No.A4/21-1 and Rs.40,000/- (Rupees Forty Thousand only) for the lands acquired in T.S.No.A4/20-2 and aggrieved by the same, they preferred the appeal in A.S.No.169 of 2001 and a Single Bench of this Court, after analysing the materials placed before it, has reduced the rate from Rs.45,000/- (Rupees Forty Five Thousand only) per cent to Rs.40,000/- (Rupees Forty Thousand only) per cent with other statutory entitlements. According to the learned Counsel for the respondents 1 and 2/claimants 1 and 2, the said judgment has reached the finality and also placed reliance upon the decision in Union of India v. S.Thuraisamy Reddiar reported in 2010 (3) MWN (Civil) 294, which laid down the proposition that there cannot be any differential basis of compensation for the lands acquired in the same area.
17. It is also well settled position of law that the Reference Court is not acting like that of a Court of Appeal and can determine the market value afresh and on the basis of the materials produced before it. [Special Tahsildar (LA) Krishna Water Supply Project Scheme v. Natesan (DB) reported in 2000 (IV) CTC 440].
18. It is to be pointed out at this juncture that the claimants prayed for appointment of an Advocate Commissioner to ascertain the advantages and potentialities of the acquired lands as well as the proximity to the educational institutions, public offices and to assess the value of the buildings with the aid of a Civil Engineer, by filing I.A.No.381 of 1997 in L.A.O.P.No.9 of 1997 on the file of the Sub Court, Kuzhithurai and it was dismissed and challenging the same, the claimants had filed C.R.P.No.1579 of 1999 before this Court and vide judgment reported in (2001) T.L.N.J. 179, the Civil Revision Petition was allowed and thereby, ordered the appointment of an Advocate Commissioner and accordingly, C.W.1 was appointed as an Advocate Commissioner and he has filed his report and sketch/plan marked as Exs.C.1 and C.2.
19. As per the evidence of C.W.1, the acquired lands lie in Kuzhithurai Junction and is abutting the National Highways - 47 and it is also important commercial place and nearby to the acquired lands, a college, training school as well as banks are there and also considered Exs.A.1 and A.2 and he was exhaustively cross-examined, wherein he has deposed that his valuation is based on the document of the year 1998 and the acquisition was in the year 1992 and as per the document of the year 1989, the land value would be Rs.40,000/- (Rupees Forty Thousand only) per cent.
20. As per the report of the Advocate Commissioner marked as Ex.C.1, the land value is fixed as Rs.50,000/- (Rupees Fifty Thousand only) per cent and Ex.A.1 came into being on 22.07.1989, which is at least about three years prior to the Section 4(1) Notification. Even as per the said document, the land value was Rs.40,000/- (Rupees Forty Thousand only) per cent.
21. In the light of the fact that the first appellant himself had conceded that it is classified as plot and it is abutting the National Highways - 47 coupled with the evidence of R.W.1 and the testimony of the other witnesses, especially, C.W.1 - Advocate Commissioner and Exs.C.1 and C.2 and also in the light of the judgment dated 13.08.2013 made in A.S.(MD)No.169 of 2011, wherein the land value has been fixed at Rs.40,000/- (Rupees Forty Thousand only) per cent, this Court is of the considered view that the compensation fixed by the Reference Court/Tribunal at Rs.50,000/- (Rupees Fifty Thousand only) per cent warrants no interference. Accordingly, Question No.(i) is answered.
Question No.(ii):
22. This Court has taken into consideration the fact that the acquired lands lie near Kuzhithurai Junction and its proximity to college, school, cinema theatre, etc., coupled with the fact that it is classified as plot and is also abutting the National Highways - 47, has confirmed the fixation of value done at Rs.50,000/- (Rupees Fifty Thousand only) per cent, though in the judgment dated 13.08.2013 made in A.S.(MD)No.169 of 2011, the land value has been fixed at Rs.40,000/- (Rupees Forty Thousand only) per cent.
23. It is the submission of the learned Counsel for the respondents 1 and 2/claimants 1 and 2 that the land in question lies below the mean level and as such, a comparison cannot be made within the lands which is the subject matter of Ex.A.1 - sale deed. The Advocate Commissioner who was examined as C.W.1 would also admit that he did not look into the guideline value and merely went by the document of the year 1998 marked as Ex.A.2.
24. In the light of the facts and circumstances of the case, this Court is of the view that the compensation awarded for the value of the land, superstructures and trees, warrants no interference. Accordingly, Question No.(ii) is answered.
25. In the result,
(i) A.S.(MD)No.138 of 2009 is dismissed, confirming the judgment and decree dated 27.06.2006 made in L.A.O.P.No.9 of 1997 on the file of the Sub Court, Kuzhithurai. No costs; and
(ii) Cross Objection (MD)No.12 of 2010 is dismissed. No costs.
To
1.The Sub Court, Kuzhithurai.
2.The Revenue Divisional Officer, (Land Acquisition), Padmanabhapuram at Thuckalay, Kanyakumari District.
3.The Divisional Engineer, National Highways(Execution), Tirunelveli..