IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:14.06.2010 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Appeal Suit No.539 of 2002 The Land Acquisition Officer and Revenue Divisional Officer Vellore – 9 ...Appellant/Referring Officer Vs. 1.C.Munisamy 2.The Executive Engineer Public Works Department Mordhana Reservoir Dam Scheme Mordhana ... Respondents/Claimants & Respondents Prayer: Appeal filed under Section 54 of the Land Acquisition Act against the judgment and award of the learned Subordinate Judge of Gudiyatham in L.A.O.P.No.37 of 1999 dated the 21st day of November 2000. For Appellant : Mr.Ravi Additional Govt. Pleder (AS) For Respondents : No Appearance JUDGMENT This appeal has been preferred against the decree passed by the learned Subordinate Judge, Gudiyatham on 21.11.2000 in L.A.O.P.No.37 of 1999, a case instituted on a reference made under Section 18 of the Land Acquisition Act to the Court. 2.An extent of 37.76.5 Hectares of land comprised in several survey numbers in Mordhana Village was acquired by the Government for the Mordhana Reservoir Scheme. The area thus acquired by the Government for the above said public purpose includes an extent of 0.50.5 Hectares of un-irrigated dry land comprised in S.No.245/3 belonging to the respondent/claimant. The Land Acquisition Officer took a sale which took place in respect of 1.16 acres in S.No.34 of https://hcservices.ecourts.gov.in/hcservices/ the said village on 04.3.1993 as the basis for determining the market value of the property belonging to the respondent/claimant acquired by the Government for the above said purpose. Based on the sale price reflected in the said sale deed, the Land Acquisition Officer fixed the market value of the property acquired from the respondent/claimant at Rs.9678.35 calculated at the rate of Rs.19165/Hectare. Adding 30% Solatium and additional market value calculated at the rate of 12%p.a from the date of 4(1) notification till the date of award and an interest at the rate of 9% from the date of taking possession for a period of one year and 15% thereafter, the Land Acquisition Officer awarded a total sum of Rs.19804/- as compensation to the respondent/claimant. 3.As the respondent/claimant was of the view that the value fixed for the acquired land was low and that the amount awarded as compensation was insufficient, he received the amount awarded by the Land Acquisition Officer as compensation under protest and made a request to the Land Acquisition Officer to make a reference under Section 18 of the Land Acquisition Act in the Court for fixing a reasonable amount as compensation for the land compulsorily acquired from the respondent/claimant. The said reference was taken on file by the Court below as L.A.O.P.No.37 of 1999. 4.After the parties were given opportunity to put in their pleadings, the Court below conducted trial in which two witnesses were examined as CW1 and CW2 and one document was marked as Ex.C1 on the side of the respondent herein /claimant. On the side of the appellant herein/Referring Officer, one witness was examined as RW1 and four documents were marked as Exs.R1 to R4. 5.The learned Subordinate Judge, at the conclusion of trial, considered the materials on record on the basis of the arguments advanced on either side and upon such consideration, came to the conclusion that the respondent herein /claimant was entitled to enhanced compensation. The learned Subordinate Judge took the sale deed dated 04.3.1993, a copy of which has been marked as Ex.C1 as the basis for fixing the market value of the land compulsorily acquired from the claimant and fixed the market value of the acquired land at the rate of Rs.240/- per cent (Rs.24,000/- per acre). The Court has also directed payment of 30% Solatium and 12% additional market value from the date of 4(1) notification till the date of award and interest on the award amount from the date on which possession was taken for a period of one year at the rate of 9% p.a and for the subsequent period at the rate of 15%p.a. Thus, as per the decree passed by the trial Court, a sum of Rs.13172/- was directed to be paid as the enhanced compensation along with an interest aforesaid. The correctness of the said decree passed by the trial Court is challenged in this appeal by the appellant/Referring Officer on various grounds set out in the memorandum of appeal. https://hcservices.ecourts.gov.in/hcservices/ 6.The arguments of Mr.Ravi, learned Additional Government Pleader appearing on behalf of the appellant were heard. The materials available on record were also perused. 7..The points that arise for consideration in this appeal are: "1)Whether the amount fixed by the Court below as market value of the acquired land is erroneous? 2)Whether the amount awarded by the Court below as enhanced compensation is excessive requiring downward revision? " Points 1 and 2:- 8.Admittedly, the publication of the notification under Section 4 (1) of the Land Acquisition Act for acquiring the land in question for Mordhana Reservoir Scheme was effected on 13.5.1993 whereas the possession of the property was taken by the Government on 16.3.1993 itself viz., 2 months prior to the date of publication of notification under Section 4(1) of the Land Acquisition Act. The award enquiry was concluded and an award was passed by the Land Acquisition Officer on 14.8.1995. There is no dispute regarding the extent of land and the classification of land compulsorily acquired from the respondent/claimant. An extent of 0.50.0 Hectares of land comprised in S.No.245/3 of Mordhana village, Gudiyatham Taluk, Vellore District was the acquired land which is the subject matter of the case on hand. There is no controversy regarding the method of calculation of compensation made by the Land Acquisition Officer excepting the fixation of market value. The Land Acquisition Officer chose to fix the market value of the acquired land at the rate of Rs.19165/- per Hectare. The same was done relying on a sale deed dated 03.3.1993 in respect of S.No.34 of the said village. However, the respondent/claimant claimed fixation of market value at the rate of Rs.1000/- cent as per the statement made by the Land Acquisition Officer. But when a reference was made to the Court under Section 18 of the Land Acquisition Act, the respondent/claimant chose to put in a claim statement claiming fixation of the market value at the rate of Rs.4000/- per cent. The same would undoubtedly reflect the avarice on the part of the respondent herein/claimant and such a claim made in excess of what was claimed before the Land Acquisition Officer cannot be sustained. 9.However, the learned Additional Government Pleader representing the appellant/Referring Officer would contend that the sale deed relied on by the Land Acquisition Officer for fixing the market value of the acquired land was the one which came into existence in close proximity in point of time with the publication of notification under Section 4(1) of the Land Acquisition Act; that the data land, the https://hcservices.ecourts.gov.in/hcservices/ sale in respect of which was taken as the basis of valuation of the acquired land by the Land Acquisition Officer is nearer to the acquired land than the property regarding which the sale deed relied on by the respondent herein/claimant came to be executed. On the other hand it was contended on behalf of the respondents that the proximity in point of time and the proximity in distance with the data land alone shall not be the criterions for the selection of the sale as data sale and that it should have been proved that the sale deed relied on by the particular party did in fact reflect the real market value viz., the price for which a willing purchaser shall be ready to purchase and a willing vendor will be ready to sell. There can be no controversy over the correctness of the above said submission regarding the principle of law relied on by the learned counsel for the respondent. 10.In the said background, let us consider the documents relied on by both the parties. A reference under Section 18 of the Land Acquisition Act shall not be construed to be an appeal against the award of the Land Acquisition Officer. Nor shall the Court to which the reference has been made be construed to be a appellate forum having appellate powers. The reference under Section 18 of the Land Acquisition Act is akin to a suit wherein the claimant occupies the position equal to that of a plaintiff and the Referring Officer occupies the position as that of a defendant and as such the market value of the property has got to be determined only on the basis of the evidence adduced by the claimant and the rebuttal evidence adduced by the Referring Officer. This has been held so in AIR 1996 SC 1170 [U.P.Jai Nigam, Lucknow thorugh its Chairman and Another Vs. M/s.Kalra Properties (P) Ltd., Lucknow & Others]. In the case on hand, the respondent herein/claimant relies on Ex.C1 as the data sale reflecting the market value of the acquired land. Ex.C1 is the certified copy of a sale deed dated 26.10.1990 in respect of 2.44 acres of land comprised in S.Nos.150/2 and 3 in Mordhana village. The claimant who figured as CW1 has deposed in clear terms that the property sold under the original of Ex.C1 was equal in quality and fertility to the acquired land. He has also stated in his evidence that the market value of the acquired land should be fixed at least in accordance with the market value reflected in Ex.C1. Though, one Krishnamoorthy, Village Administrative Officer of Kundapalli comprising Mordhana Village has been examined as CW2 to prove that money crops like ground nut, Dhal, caster and red gram were grown in the acquired land as rain fed crops and that the property was yielding considerable income, the said attempt has ended in utter failure as he has admitted during cross examination that he was not the Village Administrative Officer of the said group during the period of acquisition; that he was not deposing based on documents and that he was giving the figures approximately. In the said circumstances, the Court below has rightly rejected the evidence of CW2. https://hcservices.ecourts.gov.in/hcservices/ 11.On the other hand, no reason has been assigned, except the fact that a document relating to a property which was situated nearer to the acquired land was selected as the data sale, for rejecting Ex.C1 as the one reflecting the correct market value of the acquired land. From Ex.A4- Village map it can be ascertained that S.No.34 regarding which the original of Ex.B2 sale deed was executed is situated nearer to the acquired land comprised in S.No.245/3 whereas the distance between the acquired land and the subject matter of Ex.C1 sale deed which is comprised in S.No.150 is longer than the distance between the acquired land and S.No.34. But whether the said factor alone shall be enough to reject Ex.C1 and accept Ex.B2 to be the document reflecting the correct market value of the acquired land? The answer shall be in the negative. Though Ex.B2 was in close proximity in terms of time with the date of notification under Section 4(1) of the Land Acquisition Act and the property sold under the original of Ex.B2 is situated nearer to the acquired land when compared with the property sold under Ex.C1, unless the transaction under Ex.B2 is proved to be a genuine one and that the rate quoted therein reflects the real and correct market value, no reliance can be made on it. In this case, except producing a xerox copy of the sale deed as Ex.B2, no evidence has been adduced on the side of the appellant herein/Referring Officer to prove the genuineness of the document and the correctness of the market value reflected in the said document. In fact when a certified copy of the registered document can be produced, the appellant herein/Referring Officer has chosen to produce a xerox copy which is inadmissible. It is the evidence of RW1 that the said document was made available to the Referring Officer by the Village Administrative Officer of the concerned village. Neither the said Village Administrative Officer nor any one of the parties to the document was examined on the side of the appellant herein/Referring Officer to prove the genuineness of the transaction and also the correctness of the market value quoted therein. Therefore, this Court finds no defect or infirmity in the choice made by the trial Court to reject the said document as not reflecting the correct market value of the acquired land. Yet another aspect can also be added in support of the above said decision. The market value of the land sold under Ex.B2 has been quoted to be Rs.13340/- whereas the said land was stated to be sold for a sum of Rs.9000/- only. If at all there is a slight variation between the market value and the sale price, the same can be ignored. In this case, the sale price quoted in the document is only 2/3rd of the market value quoted in that document itself. In the said sale deed itself, there are materials to show that the property was under litigation and hence the same had been sold for a lesser price than the actual market value. It has been recited in the document that the property belonged to one of the vendors therein in accordance with a decree passed by the District Munsif Court, Gudiyatham. The particulars regarding the case number, nature of dispute and the date of decree are not furnished. Therefore, it can be inferred that soon https://hcservices.ecourts.gov.in/hcservices/ after a decree was passed in the Munsif Court, with a view to get rid of the botheration of further litigation in appeal or otherwise, the vendors therein had chosen to sell the property for a lesser price than the actual market value. Therefore, the said document cannot be the basis on which the market value of the acquired land could be determined. The Court below has rightly rejected the said document Ex.B2 as unreliable for the purpose of fixing the market value of the acquired land. 12.When the said document (Ex.B2) is excluded from the purview of consideration, the only document available for taking into consideration for the purpose of fixing the market value of the acquired land shall be Ex.C1. It is the certified copy of the sale deed dated 26.10.1990. It does not suffer from the defect of inadmissibility as that of Ex.B2. CW1 has also clearly spoken about the genuineness of the transaction that took place under the original of Ex.C1. Therefore, the Court below has not committed any error in selecting the sale under Ex.C1 to be the data sale for fixing the market value of the acquired land as on the date of 4(1) notification. It shall be worth mentioning that there is an admission by RW1 that the Land Acquisition Officer has fixed the market value of the entire land acquired for Mordhana Reservoir Scheme which extents to a distance of 3 km from one end to other end, at uniform rate. When the said admission is taken into consideration, there shall be no problem in fixing the market value reflected in Ex.C1 to be the market value of the acquired land. It has also been admitted by RW1 that the acquired land and the land concerned in Ex.C1 are equal in soil quality. Therefore, this Court comes to the conclusion that the Court below cannot be found fault with for selecting the sale under Ex.C1 to be the data sale reflecting the market value of the acquired land. 13.As per Ex.C1, 2.44 acres of land comprised in S.Nos.150/2 and 3 in Mordhana village was sold for a sum of Rs.55,000/-. There is a marginal difference of Rs.3560/- between the market value quoted in the document and the sale price quoted in the same. Market values are quoted in documents based on the guideline value for the purpose of calculation of stamp duty. In this regard, the Hon'ble Supreme Court has pointed out in AIR 1996 SC 1170[U.P.Jai Nigam, Lucknow thorugh its Chairman and Another Vs. M/s.Kalra Properties (P) Ltd., Lucknow & Others], cited supra that the valuation should not be determined on the basis of guideline value fixed under the Stamp Act for the calculation of Stamp duty. Therefore, the Court below has rightly arrived at a conclusion that the sale price quoted in Ex.C1 was the correct market value and that the same market value has to be adopted for the acquired land also. 14.The rate for which the land was sold under Ex.C1 comes to Rs.225.40 per cent. This has been correctly found by the Court below in paragraph 11 of its judgment. However, without assigning any https://hcservices.ecourts.gov.in/hcservices/ reason, the Court below has chosen to fix the market value of the acquired land at a higher rate viz., Rs.240/- per cent. Though, there is a possibility of holding that the land value would be appreciating year by year and such a marginal increase could be allowed, there is no evidence in this case that there was upward trend in the market value of the land between the date on which the sale under Ex.C1 took place and the date of notification under Section 4(1) of the Land Acquisition Act. In the absence of any such plea and evidence, there is no justification in allowing any increase over the rate reflected in the document relied on by the respondent/claimant viz. Ex.C1. Therefore, the market value fixed by the Court below deserves interference and reduction to Rs.225.40 per cent in stead of Rs.240/- per cent. 11.Accordingly, this Court comes to the conclusion that the appeal deserves to be partly allowed and the enhanced compensation awarded by the Court below should be reduced by taking the market value of the property at Rs.225.40 per cent in stead of Rs.240/-per cent. In all other respects, subject to the above said modification, the decree of the Court below deserves to be confirmed. By way of clarification is offered that the statuary benefits like solatium, additional market value and interest shall be calculated at the rates and for the periods stipulated in the decree of the Court below on the total market value to be reckoned at the rate of Rs.225.40 per cent (Rs.22540 per acre). 12.In the result, the appeal is allowed in part and the decree of the Court below is modified by fixing the market value of the acquired land as on the date of 4(1) notification at Rs.225.40 per cent. In all other respects, but subject to the above said modification regarding the market value the decree of the Court below shall stand confirmed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gpa To The Subordinate Judge Gudiyatham Judgment in Appeal Suit No.539 of 2002 RSM (CO) RH (9.7.10) https://hcservices.ecourts.gov.in/hcservices/