IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.12.2009 CORAM THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN W.P.No.7892 of 2003 and W.P.M.P.No.43419 of 2003 S. Rajendran .. Petitioner Vs. 1. The Commissioner, City Municipal Corporation, Madurai. 2. The Revenue Divisional Officer, Madurai. 3. The District Revenue Officer, Madurai. ... Respondents The Writ Petition has been filed Under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, to call for the records in Na.Ka.No.262/2003/H dated 13.02.2003 on the file of the second respondent and quash the same and further directing the third respondent to conduct an enquiry for fixing the compensation in respect of the land in Survey No.5/2A2,5/2B1, Thiruvengadapram, Alwapuram, Madurai Town to be payable by the first respondent. For Petitioner : Mr.S.V.Jayaraman Senior Counsel for J.Antony Jesus For Respondents: Mr.P.Srinivas for R1 Mrs.D.Geetha Additional Government Pleader for R2 & R3 ORDER The property comprised in Survey No.5/2, Thiruvengadapuram, Alwarpuram, Madurai town belonged to his father by virtue of the Sale Deeds dated 29.03.1947 and 15.06.1949 and he was in possession of the properties. On 31.12.1969 the petitioner's father settled the entire property in favour of the petitioner and the Municipal https://hcservices.ecourts.gov.in/hcservices/ Corporation acquired an extent of 7.25 cents. The remaining land, to an extent of 32.75 cents was sub divided as Survey Nos.5/2A2 and 5/2B1 and as such the petitioner was in possession of the land to the extent of 32.75 cents. 2. The petitioner challenged the order of the second respondent with regard to fixing of the value of the petitioner's land at Rs.389/- per sq.ft. The facts of the case are as follows:- 3. As the Municipal Corporation, Madurai tried to block the frontage of his property, the petitioner filed a suit in O.S.No.840/1986 on the file of the District Munsif Court for permanent injunction restraining the Corporation officials from interfering with petitioner's possession and enjoyment of the property, by way of obstructing the frontage of his property by storing of garbage materials and the District Munsif Court granted a decree on 23.02.1988. 4. During August 2000, the first respondent officials demolished the compound wall of his property and laid road on the petitioner's property. Hence, the petitioner was compelled to file W.P.No.15591/2000 for issuance of a writ of Mandamus forbearing the first respondent from proceeding with the laying of the road in the property comprised in Survey No.5/2B1 and 5/2A2. The first respondent disobeyed the order of the interim injunction granted by this Court, resulting in filing of Contempt Application No.88/2002. In the counter filed in the contempt application, the first respondent stated that the petitioner's property is located on the river poramboke and that the same was an encroachment and therefore it was demolished. By another affidavit dated 13.06.2002 the first respondent admitted that an extent of 498.28 sq.ft. was taken up for laying the road and the said land belonged to the petitioner. It was stated therein that on account of the mistake occurred in the Town Survey Register, showing the petitioner's lands as river puramboke and thereafter the same was rectified. It is further stated in the counter affidavit that the respondent agreed to compensate for the land and the value of the land was fixed at Rs.389/- per sq.ft. and the land value in total fixed at Rs.18,63,302/-. 5. By an order dated 03.12.2002 this Court while disposing of W.P.No.15591/2000 directed the Revenue Divisional Officer, to consider all the documents that may be filed by the petitioner and fix the appropriate and fair compensation in respect of the land taken over by the first respondent Corporation. On 03.01.2003 the petitioner submitted a representation giving the details stating that the fair and just compensation payable would be around Rs.854/- per sq.ft. and produced the two sale deeds dated 30.03.2000 and 27.03.2002. As per the report of the Tahsildar which stated that the guideline value of the property is Rs.389/- https://hcservices.ecourts.gov.in/hcservices/ per sq.ft. Revenue Divisional Officer fixed the value at Rs.389/- per sq.ft. by way of an order dated 13.02.2003. The said order is impugned before this Court in this Writ Petition. 6. Mr.S.V.Jaya Raman, the learned senior counsel appearing for the petitioner submitted that this Court had already come to the conclusion that the land value was not properly fixed at Rs.389/- and that was the reason why the petitioner was directed to give a representation along with documents. Pursuant to the orders, the petitioner gave a detailed representation and copies of registered sale deeds dated 30.03.2000 and 27.03.2002 and made claim of Rs.854/- per sq.ft. Without considering those documents in proper perspective, the first respondent again reiterated the value at Rs.384/- per sq.ft which was earlier fixed. No proper reason was given by the second respondent to come to the conclusion in fixing the value at Rs.389/- except the report of the Tahsildar. 7. Mr.P.Srinivasan, the learned counsel for the first respondent submitted that the petitioner's property is in river puramboke and property conveyed through the two sale deeds relied on by the petitioner are all situated in commercial area and therefore, the value given in the two sale deeds cannot be stated to be reflecting the value of the petitioner's land and therefore, he submitted that the valuation was correctly fixed based on the guideline value. 8. A perusal of the records would show that this Court by order dated 03.12.2002 in W.P.No.15591/2000 did not accept the value fixed at Rs.389/- and the Court accepted the contention of the petitioner that the valuation of Rs.389/- did not reflect the fair market value and that was a reason why, by the order dated 03.12.2002, this Court directed the second respondent to consider all the documents filed by the petitioner and fix the fair compensation. Pursuant to the orders, two sale deeds were given. The property conveyed through those sale deeds are from the same locality where petitioner's property is situated and therefore the potentiality of the petitioner's land could be ascertained from the lands which were conveyed through the aforesaid sale deeds. That factor could not be denied by the respondent. 9. Guideline value is only a value fixed by the Registering Authorities for the purpose of calculating stamp duty from the parties conveying the property. At best the guide line value could be the minimum market value and the authorities cannot value the properties below the said guideline value. Therefore, the guideline value cannot be considered as market value. To prove the market value, along with either documents the aforesaid two sale deeds dated 30.03.2000 and 27.03.2002 were filed by the petitioner. Without considering those documents, the second respondent again took the guideline value which is not appropriate https://hcservices.ecourts.gov.in/hcservices/ and is not in consonance with the order passed by this Court on 03.12.2002 in Writ Petition No.15591/2000. 10. With regard to guideline value, the Hon'ble Supreme Court in R.Saibharathi vs. J.Jayalalitha and others reported in 2003 (4) CTC 577 held that it is the guideline fixed by the authority under the Stamp Act for determining the true market value of the property disclosed in the instrument requiring payment of stamp duty and that the guideline value fixed is not a final but only a prima facie value prevailing in specified area and that it is open to the registering authority as well as the persons seeking registration to prove actual market value of the property. It was further held that the guideline value is not sacrosanct, but only a factor to be taken note of. 11. In Ranvirsingh and another versus Union of India reported in 2005 12 SCC 59, the Hon'ble Supreme Court held that the notification issued by Union of India cannot form the basis for determining the market value of the acquired land. It was held in Land Acquisition Officer (Revenue Divisional Officer) vs. Marisetty Sathyanarayana and others reported in 2002 (10) SCC 570 that the sale deed pertaining to the portion of the lands which are subject to acquisition would be the important piece of evidence for assessing the market value of the acquired lands. It was held that for the purpose of determining the market value, even market conditions prevailing as on the notification are rrelevant. A Full Bench of this Court in Sakthi and Co. through its partner Veeranan vs. Shree Desigachari reported in 2006 (2) CTC 433 held that guideline is fixed for determining of amounts payable by way stamp duty and that guideline is fixed for locality and not for a particular survey number. It was categorically held in that decision that market value is the value as described in the sale deed. 12. In view of of the aforesaid settled position of law, the guideline value adopted by the authorities to fix the value of the petitioner's property encroached by the first respondent cannot be accepted. As per the aforesaid judgements the authorities are bound to determine the market value based on the two sale deed dated 30.3.2000 and 27.3.2002 produced by the petitioner and calculate the value and pay the amount to the petitioner. 13. The first respondent attempted to lay road which was proposed to be laid on the petitioner's property saying that the lands were in river puramboke. When the petitioner questioned the same by way of writ petition, the first respondent admitted that by mistake they entered into the property and the said mistake was rectified by them. That would only go to show that the first respondent entered upon the petitioner's property without following the law. If the said act of the first respondent was committed by a private party it would have attracted various provisions of https://hcservices.ecourts.gov.in/hcservices/ Indian Penal Code. As, the lands were encroached by the first respondent, the provisions of Land Acquisition Act is not applicable and in view of that the petitioner was effectively denied a reference to Civil Court under Section 18 of the Land Acquisition Act for enhancement of compensation. In view of that the petitioner has to be paid reasonable amount which reflects the market value. 14. As the petitioner already filed Writ Petition No.15591/2000 and contempt application wherein the first respondent stated by mistake the land was marked as river puramboke they entered upon the property and subsequently confirmed that the land belongs to the petitioner. A direction given by this Court on 03.12.2002 was not properly considered while deciding and fixing the market value. If the matter is remanded to the respondent, the petitioner will be compelled to face another ground of litigation. The road was laid on the petitioner's property as early as in August 2000 and after a lapse of 9 years, remanding the matter again to the authorities for reconsideration of valuation would not be of any use to the party. It would amount to denial of justice to the petitioner. Having deprived of his property, the petitioner has not been paid adequate compensation so far. 15. Apart from that, as stated above the relief of reference to Civil Court for enhancing of compensation under land acquisition is also not available to the petitioner. Considering all these factors, this Court, relying upon the two sale deeds dated 30.03.2000 registered as document No.792/2000 on the file of the Sub Registrar, Thalakulam, Madurai and sale deed dated 27.03.2002 registered as document No.853/2002, fixes the value of the petitioner's property at Rs.854/- per sq.ft. The value as per the sale deed dated 30.03.2000 is Rs.854/- and as per the sale deed dated 27.03.2002 the value is Rs.907/-. Thus considering the land value of the two sale deeds, Rs.854/- per sq.ft. is fixed as the value of the petitioner's land. 16. The petitioner's land as stated in the affidavit is measuring to an extent of 4789.98 sq.ft., and described in paragraph 3 of the writ affidavit. The said extent is not denied in the counter filed by the second and third respondents and no counter has been filed on behalf of the first respondent. In view of that, it is clear that the extent is occupied by the first respondent is 4789.98 sq.ft. If Rs.854/- is taken as value, the total value of the property comes about 4789.98 x 854 =40,90,642.92. 17. Out of Rs.40,90,642.92, the petitioner represents that a sum of Rs.18,63,302.00 was already paid and the balance amount of Rs.22,27,340.92 is payable by the first respondent. Though the petitioner is entitled to interest for the aforesaid amount, this https://hcservices.ecourts.gov.in/hcservices/ Court is not granting any amount towards interest and accordingly the first respondent is directed to pay a sum of Rs.22,27,340.92 to the petitioner along with interest at the rate of 6% from the date of encroachment viz. August, 2000 within eight weeks from the date of receipt of a copy of this order. 18. Right to property is a Constitutional Right enshrined in Article 300-A of the Constitution of India. By dictum of the Hon'ble Supreme Court, it is recognised as human right. When that is the position, petitioner's property was encroached by the respondents illegally apart from denying reasonable compensation. The approach and actions of the respondent is nothing but highhanded, illegal and unlawful to be deprecated and condemned. 19. Accordingly the writ petition is allowed. However there will be no order as to costs. Consequently, the connected miscellaneous petition is closed. ssj/vk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Commissioner, City Municipal Corporation, Madurai. 2. The Revenue Divisional Officer, Madurai. 3. The District Revenue Officer, Madurai. + 2 ccs to Mr. J. Antony Jesus, Advocate SR No.69719 + 1 cc to Mr. P. Srinivas, Advocate SR No.69447 JRG(CO) SR/11.10.2010 W.P.No.7892 of 2003 https://hcservices.ecourts.gov.in/hcservices/