IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.08.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.526 of 1997 and Cross Objection No.19 of 1999 A.S.No.526 of 1997 Land Acquisition Officer and the Special Tahsildar (ADW) Tiruttani ... Appellant/Referring Officer Vs. M.R.Subramaniam ... Respondent/Claimant This appeal suit filed under Section 54 of the Land Acquisition Act as against the judgment and decree of the learned Subordinate Judge of Kancheepuram in L.A.O.P.No.1/88 dated 25.06.1993. For Appellant : Mr.V.Ravi, Special Govt. Pleader (AS) For Respondent : Mr.S.D.N.Vimalanathan Cross Objection No.19 of 1999 M.R.Subramaniam ... Cross Objector/ Claimant Vs. Land Acquisition Officer and the Special Tahsildar (ADW) Tiruttani ... Respondent/Appellant This cross objection petition filed under Order 41 Rule 22 CPC to modify the lower court judgment and decree dated 25.06.1993 made in L.A.O.P.No.1/88 on the file of Sub-Court, Kanchipuram and enhance the compensation to Rs.1,100/- per cent at least and confirm the judgment in all other respects. https://hcservices.ecourts.gov.in/hcservices/ For Cross Objector/ Claimant : Mr.S.D.N.Vimalanathan For Respondent/ Appellant :Mr.V.Ravi, Special Govt. Pleader (AS) J U D G M E N T This appeal preferred under Section 54 of the Land Acquisition Act is directed against the judgment and award of the Subordinate Judge, Kanchipuram made in L.A.O.P.No.1 of 1988 dated 25.06.1993. The Land Acquisition Officer, namely the Special Tahsildar, Adi Dravidar Welfare, Tiruttani is the appellant herein. The claimant before the court below in the LAOP is the respondent herein. 2. An extent of 1.63 acres of land comprised in Survey No.30/1A, 1B situated in Kakkalur village in Pettai Kandigai group, Pallipet Taluk, Kanchipuram District was acquired by the government for allotment of house sites to Adhi Dravidars. The Referring Officer, namely the appellant herein, collected 11 data sales, selected a sale deed dated 25.06.1985 in respect of 1.86 acres of land comprised in Survey Nos.33/4B, 33/8 and 33/10 as the sample sale reflecting the market value of the acquired property and based on the same, fixed the market value of the property under acquisition at the rate of Rs.80/- per cent. The referring officer calculated the total market value of the property under acquisition at Rs.13,040/-, added Rs.3,912/- as solatium, and granted Rs.1,907.75P towards additional value @ 12% per annum for 445 days and thus awarded a total sum of Rs.18,850.75P as total amount of compensation. 3. As the respondent herein/claimant felt the amount awarded as compensation was inadequate, he received the said amount under protest and made a request for making a reference under Section 18 of the Land Acquisition Act to the court to fix a reasonable compensation for the land acquired. Consequently, the appellant herein/Referring officer made a reference under Section 18 of the Land Acquisition Act to the trial court which took it on file as LAOP No.1/1988. After receiving the claim statement of the claimant and the objection statement of the Referring Officer, the trial court conducted trial in which one witness each on the side of the respondent herein/claimant and the appellant herein/Referring officer was examined. Three documents were marked on the side of the claimants as Ex.C1 to C3 and two documents were marked on the side of the Referring officer as R1 and R2. 4. The learned Subordinate Judge, Kanchipuram (the judge of the court of reference) framed necessary point for consideration, considered the evidence in the light of the arguments advanced on https://hcservices.ecourts.gov.in/hcservices/ either side and upon such consideration, fixed the market value of the acquired property at Rs.932/- per cent relying on a sale deed dated 24.11.1986, a copy of which was marked as Ex.C2 and fixed the total amount of compensation to which the claimant was entitled at Rs.1,51,916/-. The court below has deducted the amount awarded by the land acquisition officer, namely Rs.13,040/-, from the said amount and directed payment of the balance, namely Rs.1,39,976/- as the enhanced compensation. The trial court also awarded additional market value @ 12% per annum from 03.01.1986 to 20.03.1987, solatium @ 30% and interest @ 9% from the date of taking possession for one year and thereafter @ 15% per annum till realisation. 5. The correctness of the judgment and decree of the court below is questioned by the appellant herein/Referring officer on various grounds set out in the Memorandum of appeal. Similarly, the respondent in the appeal/claimant has filed a cross-objection claiming further enhancement of compensation on various grounds set out in the grounds of cross-objection. 6. The points that arise for consideration in the appeal and the cross-objection petition are as follows: i)Whether the compensation awarded by the court below deserves any downward revision as claimed by the appellant/Referring officer? and ii)Whether the compensation awarded by the court below requires upward revision as claimed by the respondent/cross objector/claimant? 7. The arguments advanced on either side were heard. The materials available on record were also perused. 8. As rightly pointed out by the Special Government Pleader (AS) appearing for the appellant herein/Referring officer, the compensation awarded by the Land Acquisition Officer should be construed to be an offer and a reference made to the court under Section 18 of the Land Acquisition Act at the request of the claimant should not be construed to be an appeal over the award of the Land Acquisition Officer. A reference under Section of the Land Acquisition Act numbered as LAOP, is akin to a suit as the same is an original proceeding and not an appeal proceeding. The claimant shall be in the position of a plaintiff, whereas the Referring officer and the requisitioning department, if any, shall be in the position of the defendants. Therefore, it shall be wrong to assume the powers of an appellate forum to test the correctness and legality of the award passed by the Land Acquisition Officer. On the other hand, the court dealing with the LAOP under Section 18 of the Land Acquisition Act has to decide the issue before it in the light of the pleadings made and the evidence adduced before it. https://hcservices.ecourts.gov.in/hcservices/ 9. In this case, as rightly pointed out by the learned Special Govt. Pleader, the court below has gone to the extent of saying that the procedure adopted by the Land Acquisition Officer was not in accordance with the provisions of the act. The court below has also expressed its conclusion that the very approach made by the Land Acquisition Officer in passing the award was erroneous. The scope of the power available to the court dealing with the Land Acquisition Original Proceedings under Section 18 of the Land Acquisition Act is restricted to giving a finding as to whether the offer made by the government as compensation in the form of the award of the Land Acquisition Officer is insufficient and if so, what should be the reasonable amount to be fixed as compensation. In this regard, though the judgment of the court below has not been happily worded, we can treat it as an expression of the court below regarding the sufficiency of the amount awarded as compensation by the Land Acquisition Officer. Such a conclusion can be arrived at only after considering all the evidence brought before the court below. Before ever taking up the evidence regarding the market value of the property to fix quantum of compensation, no view can be expressed as to the sufficiency or otherwise of the offer made by the government in the form of the award of the Land Acquisition Officer. It seems, the court below before taking up such evidence for discussion, has commented upon the procedure adopted by the Land Acquisition Officer and expressed a conclusion that such a procedure was not proper. In this regard, the reason assigned by the court below is also not sound in this regard. 10. The learned Subordinate Judge has made an observation in paragraph 9 of his judgment as if it is provided in Section 23(1) of the Land Acquisition Act that the sales statistics for a period of three years prior to the date of notification under Section 4(1) of the said Act should be considered and on the basis of the same, the market value of the acquired land should be ascertained. The learned Subordinate Judge has found fault with the Land Acquisition Officer for considering documents, which came into existence within a period of one year prior to the date of notification under Section 4(1). On a search being made, this court failed to come across any such provision found in Section 23(1) of the Land Acquisition Act. On the other hand, it simply states that the market value of the land as on the date of publication of the notification under Section 4(1) shall be taken into consideration. It is by way of interpretation to the said provision, the courts have directed consideration of the documents pertaining to lands situated within a particular distance from the acquired land that have come into existence within three years prior to the date of Section 4(1) notification. It is not a hard and fast rule that the scope of consideration should necessarily extend to the entire three years period or should be mandatorily restricted to the three years period prior to the date of 4(1) notification. In appropriate cases, wherein developments have taken place within a period of one year or two years prior to the date of 4(1) notification causing an increase in the market value of the lands in the neighbour-hood of the acquired property, it will be of futile exercise to consider the documents that came into existence prior to such development. https://hcservices.ecourts.gov.in/hcservices/ The documents that came into existence subsequent to such development would reflect a higher value. Even it is not impermissible to consider post 4(1) notification sales if there were no reliable sales on the pre 4(1) notification sales reflecting the market value and the post 4(1) notification sales were not influenced by the developments made in the acquired land after the acquisition proceedings started. It is obvious that the court below was aware of these propositions, as it has relied on a document which came into existence subsequent to the date of Section 4(1) notification as the data sale for fixing the market value of the property. The fact that the Land Acquisition Officer has considered documents that came into existence within a period of one year prior to the date of 4(1) notification and failed to consider the documents that might have come into existence beyond that period of one year but within a period of three years prior to the date of 4(1) notification, will be of no consequence if it is not shown that any such document which was not taken into consideration reflected a higher market value. 11. In this case, the learned Subordinate Judge has relied on Ex.C2 as the data sale for fixing the market value of the acquired property. Ex.C2 is nothing but a xerox copy of a sale deed dated 24.11.1986 bearing document No.930/1986 on the file of Sub- Registrar, Pallipattu, whereunder a pucca house site measuring 1,634 sq.ft. had been sold for a sum of Rs.3,500/-. Based on the said document, the court below has fixed the market value of the property at Rs.932/- per cent. This court wants to point out the fact that the calculation itself is some what faulty. If correctly calculated, the market value reflected by the said document will come to Rs.925.93P. Apart from the same, all the documents, namely Ex.C1 to C3 relied on by the claimants, were only xerox copies of sale deeds. They have been admitted in evidence disregarding the rules relating to admission of secondary evidence. They were xerox copies of registered sale deeds. Certified copies of registered sale deeds are allowed. When certified copies are allowed, no other form of secondary evidence shall be admissible as per Section 65 of the Evidence Act. 12. Apart from the question relating to the admissibility of the said documents, there is absence of evidence to prove that the same reflected actual price paid for the transaction. The sole witness examined on the side of the claimant is the claimant himself. He was not a party to the said document. He was not even an attestor of the document. Nobody connected with the said transaction under Ex.C2 has been examined. No evidence has been adduced to prove that Ex.C2 is the true copy of the original sale deed. The person who took the xerox copy was not examined. Receipt for taking such xerox copy also was not produced. Therefore, this court has to accept the contention of the learned Special Government Pleader that no reliance can be made on Ex.C2 and the market value cannot be fixed on the basis of Ex.C2. The observations made in respect of C2 shall mutatis mutandis apply to Ex.C1 and Ex.C3 also. https://hcservices.ecourts.gov.in/hcservices/ 13. Perhaps sensing trouble, the respondent/claimant has come forward with an application in C.M.P.No.723/2008 for reception of additional documentary evidence. Certified copies of: 1) a settlement deed dated 11.12.1985 bearing document No.897/1985 on the file of Sub-Registrar, Pallipattu and 2) a sale deed dated 06.02.1984 bearing document No.98/1984 on the file of Sub- Registrar, Pallipattu are the additional documents sought to be produced. Though the Referring Officer was examined as RW-1 and the sale data collected by him and the master plan of the village have been produced as Ex.R1 and R2, nobody connected with the sale transaction which was taken as the sample sale by the Land Acquisition Officer was examined on the side of the appellant/Referring officer. The only witness examined on the side of the appellant/Referring officer did not have any personal knowledge of the sale transaction covered by the sale deed taken as the sample sale. Apart from that, the Referring Officer has also failed to produce an authenticated copy of the sale deed relied on by him as the data sale reflecting the market value of the acquired property. That being so, this court is able to find a vacuum in the evidence regarding the market value of the acquired property as on the date of 4(1) notification. Under such circumstances, this court felt that the additional documents sought to be relied on by the respondent/claimant filed along with C.M.P.No.723/2008 could be received as additional evidence and hence an order was also passed in this regard allowing the said CMP. 14. So far as the proof of those documents are concerned, the respondent therein/appellant herein conceded the genuineness of the transaction and gave consent for marking those documents. Hence, they were marked as Ex.C4 and C5 respectively. The said documents stand proved by consent. Therefore, this court comes to the conclusion that it shall be proper to fix the market value based on any one of the said documents. Under Ex.C4-Settlement deed, an extent of 5,640 sq.ft vacant site was gifted quoting its market value to be Rs.8,460/-. The said document came into existence a couple of months prior to the date of Section 4(1) notification. The market value reflected by Ex.C4 is Rs.650/- per cent. As per Ex.C5, namely document No.98/84, 576 sq.ft., of land valued at Rs.749/- and a tamarind tree valued at Rs.624/- (total value Rs.1373) was sold for a sum of Rs.1,000/-. The said amount was even less than the market value reflected in Ex.C4. When more than one reliable sales have taken place, the market value of the acquired property shall be fixed on the basis of the sale deed which reflects a higher market value. Therefore, this court is of the considered view that it shall be just and reasonable to fix the market value of the acquired land on the basis of Ex.C4. Besides holding that the market value fixed by the trial court is not only erroneous but also excessive, this court holds that the market value of the acquired property should be fixed at the rate of Rs.650/- per cent relying on Ex.C4. The land sold under the data sale was a small extent of 13 cents and it was sold as a developed house site. If the same is to be compared with a larger extent of property acquired, considering the potentiality of the acquired property for being developed into house sites, certain percentage https://hcservices.ecourts.gov.in/hcservices/ of deduction is to be allowed from the total extent towards developmental charges. Such deductions may normally range from 20% to 40%. We can take the minimum rate of deduction, namely 20% in this case. Deducting 20% from the market value calculated for the entire extent, the balance amount alone shall be taken as the total market value of the acquired land as on the date of Section 4(1) notification. The total compensation is worked as follows: The total market value of the acquired land after allowing a deduction of 20% for developmental purposes 163 x 650 = Rs.1,05,950/- minus 20% = Rs.84,760.00 Respondent/claimant shall be entitled to 30% of the above said amount as solatium under Section 23(2) of the Land Acquisition Act, which is = Rs.25,428.00 In addition to that an additional market value calculated @ 12% per annum from the date of 4(1) notification to the date of award of the collected or date of taking possession of land whichever is earlier (for 442 days from 03.01.86 to 20.03.87) = Rs. 12,316.00 ---------------- Total amount of compensation = Rs.1,22,504.00 The amount awarded by the Referring officer as compensation and paid to the respondent/ claimant was = Rs.18,850.75P --------------- It should be noticed that the trial court committed an error in deducting a sum of Rs.13,040/- as the amount awarded by the Land Acquisition Officer, whereas the actual amount awarded by the Land Acquisition Officer was Rs.18,850.75P The enhanced compensation which is payable to the respondent/ claimant is = Rs.1,03,653.25 R/o : Rs.1,03,653.00 As per Section 28 of the Land Acquisition Act, the respondent/claimant shall be entitled to an interest at the rate of 9% per annum from 20.03.1987, the admitted date on which possession was taken, for a period of one year and a further interest at the rate of 15% per annum after the above said period of one year till realisation. https://hcservices.ecourts.gov.in/hcservices/ 15. In the result, this appeal is allowed in part and the decree of the trial court is modified by reducing the total compensation from Rs.2,06,837.10P to Rs.1,22,504.00. From the said amount, the amount awarded by the Land Acquisition Officer, namely Rs.18,850.75P shall be deductedand the balance amount should be paid as enhanced compensation. The respondent/claimant shall be entitled to an interest @ 9%per annum for the enhanced compensation for a period of one year from 20.03.1987, the date on which Government took possession of the acquired land and thereafter at the rate of 15% per annum till realisation. The Cross-Objection No.19 of 1999 is dismissed. 16. There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar asr To 1) The Subordinate Judge of Kancheepuram 2) Land Acquisition Officer and the Special Tahsildar (ADW) Tiruttani 3) The Section Officer, VR Section, High Court, Madras. 1 cc To The Special Government Pleader (A.S), SR.36216 1 cc To Mr.S.D.N.Vimalanathan, Advocate, SR.36141 A.S.No.526 of 1997 CKN(CO) SRA(23/9/2009) https://hcservices.ecourts.gov.in/hcservices/