IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 14.07.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.1000 of 1991 The Special Deputy Collector and Land Acquisition Officer (LA) Madras, Madras 1. .. Appellant Vs. 1.Dr.M.S.Gopalakrishnan 2.M.S.Venkataraman .. Respondents Appeal against the judgment and decree of the learned 10th Assistant Judge, City Civil Court, Madras and made in LAOP No.12 of 1982 dated 5.4.1988. For appellant : Mr.V.Ravi Special Government Pleader (AS) For respondents : Mr.A.Venkatesan JUDGMENT
This appeal is focussed as against the judgment and decree dated 5.4.1988 in LAOP No.12 of 1982 passed by the learned 10th Assistant Judge, City Civil Court, Madras in enhancing the compensation. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2.Heard the learned counsel appearing for the parties.
3.The nut-shell facts, which are absolutely necessary and germane for the disposal of this appeal would run thus:
The Government vide the Notification dated 26.5.1973 made under Section 4 (1) of the Land Acquisition Act, intended to acquire the land measuring an extent of 86 sq.ft. in Survey No.356/4 and an extent of one ground and 733 sq.ft in Survey No.362/28 in Mc.Nichols Road, for the purpose of widening the road. After complying with the procedures, the Land Acquisition Officer acquired the land in respect of Survey Nos.356/4 and 362/28 and passed an award dated 6.9.1979 as detailed below:
S.No.356/4 R.S.No.362/28
Value of the land Rs. 680.83 Rs.25,119.58
Value of Superstructure Rs.1,661.00 Rs. 5,332.54
Value of the Trees – Rs. 40.00
Compensation Rs. 351.27 Rs. 4,573.78
————– ————
Total Rs.2,693.10 Rs.35,065.70
Being aggrieved by the said assessment, the owners of the land and buildings got the matter referred to the Court under Section 18 of the Land Acquisition Act, the gist and kernel of it would run thus:
4. During enquiry, before the trial Court, one of the claimants M.S.Venkatraman examined himself as P.W.1 along with one Mr.K.Narayana Iyengar, a retired Engineer as P.W.2 and marked Exs. P1 to P6. On the side of the respondent, the land Acquisition Officer one T.Samuel was examined as RW1 and Exs.R1 to R3 were marked. Ultimately the Reference Court enhanced the compensation at Rs.88,278/- as follows:
1.Loss of frontage, Rs.10,000/- damages caused 2.Gate Pillars Rs. 2,000/- 3.Enamel Board Rs. 750/- 4.G.I.Sheet and Rs. 1,800/- Gate Structure 5.A.C.Sheet Rs. 1,661/- covered rost 6.Watch Room Rs. 2,847/- 7.Cow Shed Rs.1,305/- 8.Trees Rs. 40/- 9.Value of the Land Rs.67875/-
6.Being dissatisfied with such awarding of enhancement, the Land Acquisition Officer has preferred this appeal on various grounds, the pith and marrow of them would run thus:
The Reference Court simply adopted the valuation as set out in Ex.P1 relating to the building value and awarded the enhanced compensation. There are also various other irregularities, which warrant interference of this Court.
7.The points for consideration are as to:-
(a)whether the Reference Court assessed the compensation for the land as per law ? (b)whether Reference Court assessed the compensation for superstructure adhering to the well settled principles in assessing the Buildings ? and (c)whether there is any infirmity in the Judgement and Decree of the Reference Court ? POINT No.1
8. At the outset, the learned Additional Government Pleader (AS) would advance his argument to the effect that Ex.P1, the order of the Assistant Commissioner under Section 10(2) of the Tamil Nadu Urban Land Tax Act should not have been relied on by the Reference Court as it did not reflect the true value of the land acquired as on the date of Section 4(1) Notification.
9. However, the learned counsel for the land owners would convincingly and correctly highlight the fact that the order passed by the said Assistant Commissioner does have the binding effect on the Government which cannot have double standard, one under the Tamil Nadu Urban Land Tax Act and another under Land Acquisition Act.
10.I could see considerable force in the submission made by the learned counsel for the owners for the reason that the perusal of Ex.P1 dated 1.7.1971 would reveal that the Statutory authority, namely, the Assistant Commissioner under the Tamil Nadu Urban Land Tax Act assessed the market value of the land concerned, whereas section 4(1) Notification in this connection was published on 26.5.1973. Hence, it is apparent that the Land Acquisition Officer should have relied upon Ex.P1, but for no good reason he discorded it. However, the Reference Court correctly relied on Ex.P1. Therefore, it is crystal clear that there is nothing wrong in the assessment made by the Reference Court placing reliance on Ex.P1.
11.The learned counsel for the land owners would cite the following decision of the Hon’ble Apex Court in Tenneti Kamesam vs. Land Acquisition Officer reported in (2008) 5 MLJ 371 (SC) an excerpt from it would run thus:
“5. In the impugned order itself, it has been mentioned that there was no dispute with regard to the fact that the land in question was situated in a well-developed town surrounded by several structures, residential buildings and other commercial establishments, apart from being located near a railway station and other facilities. It is, therefore, evidence that the land was already situated in a developed area and the question of deduction of development charges did no, therefore, arise”.
A perusal of the aforesaid Judgment would reveal that if land acquired is already a developed land, the question of deducting any amount towards development charges would not arise. However, at this juncture, my mind is redolent with the following decisions of the Hon’ble Apex Court :
(1) AIR (2007) Supreme Court 740 [Deputy Director, Land Acquisition vs. Malla Atchinaidu]
(2) (2003) 4 SCC 481 [Ravinder Narain and another vs. Union of India]
(3) (2007) 9 SCC 447 [Nelson Fernandes and others vs. Special Land Acquisition Officer, South Goa and others]
(4) (2008) 1 SCC 554 [Lucknow Development Authority vs. Krishna Gopal Lahoti and others]
(5) (1996) 9 SCC 640 [Basavva (smt) and others vs. Special Land Acquisition Officer and others]
A perusal of the aforesaid decisions would amply highlight the fact that there should be at least some deductions towards development charges. In fact in the Hon’ble Apex Court decision reported in LUCKNOW DEVELOPMENT AUTHORITY Vs. KRISHNA GOPAL LAHOTI AND OTHERS reported in (2008) 1 SCC 554, it is found highlighted, that there is a subtle distinction between an already developed area and the area, which is yet to be developed. Their Lordships, went to the extent of detailing and delineating the facts to the effect that simply because the surrounding lands are developed ones, one cannot jump to the conclusion that the land acquired also should be treated on par with the same.
12.The pith and marrow of the dictum of the Hon’ble Apex Court is that the Court concerned should concentrate in finding out as to whether development took place in the land acquired itself. Hence, keeping this in view and also the one other decision of the Hon’ble Apex Court cited supra by the learned counsel for the land owners, it is crystal clear that so far as the land acquired is concerned, it had already been a developed land. In fact shops and residential buildings were there in Survey No.356/4 as on the date of Section 4(1) notification, whereas in Rs.NO.362/28, as on the date of that Notification, there were no buildings and therefore correctly the Land Acquisition Officer ignored the superstructure thereon for assessment of compensation. Even then it is clear that both those Survey Numbers were developed by the land owners themselves and they are abutting the already existing main road. In such a case there is no doubt at all that the land acquired in both these Survey Numbers were developed ones and in view of the ratio decidendi in both the decisions referred to supra, there is no necessity to reduce any amount from the market value towards development charges.
13.The learned Government Advocate would draw the attention of this Court to para No.23 of the printed Judgment of the Reference Court and develop his argument that absolutely there was no rhyme or reason on the part of the Reference Court in awarding a sum of Rs.10,000/- towards damages for the alleged loss of frontage to the buildings concerned.
14.In paragraph No.17 of the Judgment of the Reference Court, there is reference to the fact that the land owners expressed their grievance to the effect that because of portion of their front of the building was severed from the rest, they lost the facade of the building.
15.What this Court could understand from the sketch marked as Ex.R3, is that the land and building acquired from the land owners are forming the front portion of their properties abutting the already existing road. Hence, it is obvious and apparent that because part of the front portion of their properties were taken away, naturally they would have suffered loss of the facade of the building and there resulted shrinkage in the enjoyment of their property. Having that in view, presumably the Reference Court awarded a sum of Rs.10,000/-, which warrants no interference. Accordingly, this point is decided in favour of the land owners and as against the Government and the findings of the Reference Court on this count is confirmed.
16.The learned Government Advocate would draw the attention of this Court to paragraph Nos.18, 19, 20 and 21 of the Printed Judgment of the Reference Court and develop his argument to the effect that simply without any reason, the compensation was enhanced from Rs.400/- to Rs.2,000/- towards demolition of the Gate Pillars and a sum of Rs.750/- was awarded by enhancing it from Rs.300/- towards Enamel Board.
17.A mere perusal of the Judgment of the Reference Court would reveal that without citing any reason, simply the Reference Court arrived at such a conclusion and enhanced the compensation under those sub heads. Even in the report Ex.P5 of the retired Engineer who was examined on the side of the land owners, nothing is found delineated relating to the value of those items.
18.Hence, I am of the considered opinion that Reference Court was not justified in enhancing the compensation over and above what was awarded by the Land Acquisition Officer in his award relating to the superstructures. Hence under that count, the compensation awarded relating to superstructures by the Land Acquisition Officer shall stand restored and the Reference Court findings thereon and the enhancement for the superstructures shall stand deleted.
19. With the above modification, this appeal is partly allowed. However, there shall be no order as to costs.
14.07.2008
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G.RAJASURIA,J.,
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To
The 10th Assistant Judge, City Civil Court, Madras.
A.S.No.1000 of 1991
14.07.2008