IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.940 of 1997 The Special Tahsildar (Land Acquisition) Adi Dravidar Welfare Wallajah ... Appellant/Referring Officer Vs. R.Nagabooshanam ... Respondent/Claimant This First Appeal has been filed under Section 54 of the Land Acquisition Act as against the Judgment and Decree of the learned Subordinate Judge, Ranipet made in L.A.O.P.No.48/1994 dated 04.07.1996 For Appellant : Mr.V.Ravi Special Govt Pleader (AS) For Respondents : Mr.P.Mani JUDGMENT This appeal is directed against the judgment and decree (award) dated 04.07.1996 of the learned Subordinate Judge, Ranipet made in L.A.O.P.No.48/1994. 2. The State has filed the appeal through the Special Tahsildar (Land Acquisition), Adhi Dravidar Welfare, Wallajah, (the Referring Officer) against the award of the said court directing payment of enhanced compensation. 3. The land owner whose land was acquired by the Government for a public purpose viz. providing house sites to the Adhi Dravidas, at whose instance a reference was made under Section 18 of the Land Acquisition Act, 1894 to the court below is the respondent herein. An extent of 0.39.5 hectare (0.97 acre) of land belonging to the respondents herein/claimants and comprised in Survey Nos.132/7A, 132/7B, 132/7C, 132/4A in Velithangipuram Village, Arakkonam Taluk, North Arcot Ambedkar District (now Vellore District) was acquired by the Government for the above said https://hcservices.ecourts.gov.in/hcservices/ public purpose. The notification under Section 4(1) of the Land Acquisition Act was approved by the Government on 13.02.1990 and was published in the Tamil Nadu Government Gazette on 11.04.1990. The same was published in the local vernacular daily on 16.04.1990 and area publication was made on 30.04.1990. After necessary enquiry under Section 5A, the proposal to acquire the land was confirmed and the declaration under Section 6 of the Land Acquisition Act was approved by the Government in G.O.No.(34) 506 dated 02.05.1991. The same was published in the Tamil Nadu Government official Gazette on 03.05.1991. Thereafter award enquiry was conducted by the Land Acquisition Officer. The Land Acquisition Officer considered particulars of twenty sales that had taken place in and around acquired land within 3 years prior to the date of publication of notification under Section 4(1) of the Land Acquisition Act. Nineteen sale deeds included in the sales statistics were discarded as not reflecting the correct market value of the acquired property for various reasons cited in the award of the Land Acquisition Officer. A sale deed dated 23.09.1987 bearing document No.568/87 of the concerned Sub-Registrar office where under an extent of 18 cents in Survey No.404/3 had been sold for a sum of Rs.2,000/- was taken as the sample sale reflecting the correct market value of the acquired property. On the basis of the said document the Land Acquisition Officer took the market value of the acquired land as Rs.11,111/- per acre. Accordingly, the Land Acquisition Officer fixed the total compensation at Rs.38,453/- with the following split-up particulars: Cost of land measuring (0.39.5 hectares = 0.97 acres) at the rate of Rs.11,111/- per acre : Rs.10,777.00 Value of half share in the well : Rs.12,388.00 Solatium at 30% : Rs. 6,949.00 Additional market value calculated at the rate of 12% per annum from the date of 4(1) notification till the date of award : Rs. 8,339.00 ------------ TOTAL Rs.38,453.00 ------------ 4. Not satisfied with the quantum of compensation awarded by the Land Acquisition Officer, the respondent herein/claimant received the amount under protest and requested for a reference being made to the court under Section 18 of the Land Acquisition Act. Accordingly a reference was made to the court below under Section 18 of the Land Acquisition Act for fixing the correct and reasonable amount of compensation to which the appellants herein/claimants would be entitled. https://hcservices.ecourts.gov.in/hcservices/ 5. Before the Land Acquisition Officer and before the court below, the respondent herein/claimant wanted the market value of the acquired property to be fixed at the rate of Rs.2,000/- per cent. On the other hand, the Referring Officer had contended before the court below that what was awarded by the Land Acquisition Officer was perfectly reasonable and no enhanced compensation should be awarded. Based on the said pleadings, the court below conducted trial in which two witnesses, including the respondent/claimant, were examined as C.W.1 and C.W.2 and Ex.C1 was marked on the side of the respondent herein/claimant. On the side of the appellant herein/ Referring Officer, only one witness was examined as RW1 and no document was marked. At the conclusion of trial, the learned Subordinate Judge, Ranipet considered the evidence and allowed the claim for enhancement of compensation in part. While rejecting the claim of the respondent herein/claimant for awarding of compensation taking the market value of the property at Rs.2,000/- per cent, the learned Subordinate Judge also came to the conclusion that the market value reflected in the sale deed relied on by the Land Acquisition Officer as the data sale would be taken as the basis on which the market value of the acquired land as on the date of publication of Section 4(1) notification could be ascertained. At the same time, the learned Subordinate Judge held that since the said sale took place 2 years prior to the date of 4(1) notification, it was appropriate to fix the market value of the acquired property as on the date of 4(1) notification by allowing an increase in the value reflected by the data sale relied on by the Land Acquisition Officer. Thus, the learned Subordinate Judge fixed the market value of the acquired property at Rs.500/- per cent (Rs.50,000/- per acre) and on that basis awarded enhanced of compensation. 6.Aggrieved by the enhancement of compensation, the appellant herein/Referring Officer has approached this court by way of the present appeal. 7.The point that arises for consideration is: "Whether the court below without any basis arbitrarily fixed the market value at Rs.500/- per cent? Whether the compensation awarded by the court below is excessive and liable to be reduced? 8. The learned Special Government Pleader, advancing arguments on behalf of the appellant submitted that the order of the court below was not sustainable either in law or on facts; that the court below committed an error in not fixing the market value either on the basis of the sale deed produced by the appellant herein/Referring Officer or on the basis of the document produced by the respondent herein/claimant; that the court below committed an error in fixing arbitrarily an amount as market value; that the court below should have either accepted the evidence adduced on behalf of the claimant or the evidence adduced on behalf of the https://hcservices.ecourts.gov.in/hcservices/ appellant/Referring officer; that in case the evidence adduced on behalf of the respondent herein/claimant was not acceptable, the learned subordinate judge should have held that the respondent herein/claimant had not proved his entitlement to claim enhancement of compensation and dismissed the claim made by him and that in any event, the judgment and award passed by the learned Subordinate Judge could not be sustained in so far as the market value of the property has been fixed at a higher rate than what has been reflected in the documents produced and relied on by the appellant herein and the documents produced by the respondent herein/claimant. 9.The learned counsel for the the respondent herein/ claimant, on the other hand would contend that when the court below had to reject the documents produced on either side as not reflecting the market value, there was no other alternative except to fix the market value according to the best judgment of the court below; that the court below could not be found fault with for fixing the market value at the rate of Rs.500/- per cent and that the amount awarded as compensation by the court below should be sustained as the same, according to the respondent herein/claimant was perfectly reasonable and not excessive. This court gave its anxious considerations to the said submissions made on either side. 10. A reference made under Section 18 of the Land Acquisition Act to the court for determination of the reasonable compensation for the compulsory acquisition of land shall not be construed to be an appeal against the award passed by the Land Acquisition Officer and the court to which such a reference is made does not sit on appeal over the award of the Land Acquisition Officer. The reference made to the Court is a original proceeding equivalent to a original suit in which the claimants occupy the position of plaintiffs and the Referring Officer occupies the position of defendant. The amount awarded as compensation by the Land Acquisition Officer shall not be treated as the decree amount. On the other hand, the same is nothing but an offer made by the State as compensation for the compulsory acquisition of the land. That is why Section 25 of the Land Acquisition Act mandates that the compensation to be awarded by the court shall not be less than the amount of compensation awarded by the Collector/Land Acquisition Officer. A reading of the judgment of the court below shows that this important principle of law governing the proceedings in LAOP has not been properly appreciated by the court below and that the court below assumed appellate power over the award of the Land Acquisition Officer. As pointed out supra, the proceedings in LAOP before the lower court is nothing but a original proceedings equivalent to a suit. When both the parties have adduced evidence and the court is not inclined to accept the evidence adduced on either side, unless there is an admission made on behalf of the Referring Officer, the court below cannot allow enhancement of compensation as the onus is on the claimant to prove that the market value is much higher than the valuation made by the Land Acquisition Officer. The court below seems to have committed the following mistakes:- https://hcservices.ecourts.gov.in/hcservices/ 1) It proceeded on the assumption that the initial onus is on the Referring Officer to prove that the amount awarded by him as compensation was reasonable; 2) Having chosen not to adopt the market value reflected in the document relied on by the appellant herein/Referring officer, the court below either should have accepted the evidence adduced on the side of the respondent herein/claimant and fixed the market value in accordance with the documents relied on by him. The court below has fixed the market value arbitrarily at Rs.500/- per cent. 3) In any event, the court below should not have fixed the market value above the value reflected either in the document relied on by the respondent herein/claimant or in the document relied on by the appellant/Referring Officer. 11. In this case, the only document relied on by the respondents herein/claimants to prove the market value as on the date of 4(1) notification is a certified copy of the sale deed dated 05.03.1990 marked as Ex.C1. The claimant wanted the market value to be fixed on the basis of the said document. Though several lands comprised in several survey numbers have been sold under said document, the respondent herein/claimant relied on the sale effected in Survey No.181/1. 41 cents of the land in the said Survey number has been valued at Rs.7,380/- which works out to Rs.180/- per cent under Ex.C1, both wet lands and dry lands had been sold. Only the rate at which the dry lands were sold under Ex.C1 shall be adopted for fixing the market value of the acquired land which was admittedly a dry land as on the date of 4(1) notification. All the dry lands sold under Ex.C1 were sold at the rate of Rs.180/- per cent. If at all the respondent's herein/claimant's claim for enhanced compensation had to be accepted the same should have been based on Ex.C1 alone and the market value at best would have been fixed at the rate of Rs.180/- per cent. As rightly pointed out by the learned Special Government Pleader, absolutely there is no basis whatsoever to fix the market value at the rate of Rs.500/- per cent and hence the computation of market value of acquired property at the rate of Rs.500/- per cent, made by the learned Subordinate Judge, can be termed definitely defective, infirm and hence unsustainable. This court in exercise of the appellate powers shall definitely interfere with the same. It shall be just and reasonable besides supported by the documentary evidence in Ex.C1 to fix the market value of the acquired land at Rs.180/- per cent as against Rs.500/- per cent fixed by the court below. 12. Accordingly, the appeal succeeds to the extent indicated above. The award of the decree shall stand modified as follows: The market value of the acquired land shall be fixed at the rate of Rs.180/- per cent (Rs.18,000/- per Acre) and enhanced compensation over and above the amount awarded by the Land Acquisition Officer shall be calculated accordingly. As nothing https://hcservices.ecourts.gov.in/hcservices/ has been canvassed on either side regarding the valuation of trees, buildings and well, the amount fixed by the Land Acquisition Officer and confirmed by the court below shall remain unaltered. 30% solatium on the market value under Section 23(2) and increased market value at the rate of 12% per annum from the date of 4(1) Notification till the date of award shall also be calculated under Section 23(1-A) and added to the total amount of compensation. From the said amount, the amount awarded by the Land Acquisition Officer, namely Rs.38,453/- shall be deducted and the balance amount shall be paid as enhanced compensation. The said amount shall carry an interest at the rate of 9% per annum from 02.08.1993, the admitted date of taking possession for a period of one year and thereafter at the rate of 15% per annum till realisation of payment. In case the amount as per the award (decree) of the court below has already been deposited, the above said amount alone shall be paid to the claimants and the balance amount shall be withdrawn by the Government (Land Acquisition Officer) / Referring Officer. In case the amount has already been received by the claimant, then he shall return the balance within a period of two months. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar asr To 1.The Subordinate Judge, Ranipet. 2.The Section Officer, V.R.Section, High Court, Madras 1 cc To The Government Pleader, SR.33059 A.S.No.940 of 1997 ka [co] gkg/6.9 https://hcservices.ecourts.gov.in/hcservices/