IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED:09.06.2010 CORAM: THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH A.S.No.241 of 2000 The Land Acquisition Officer and Sub-Collector Hosur .. Appellant vs H.A.Subbaiachetty .. Respondent Appeal against the judgment and decree dated 20.7.1998 in L.A.O.P.No.764 of 1996 on the file of the learned Subordinate Judge of Hosur. For Appellant : Mr.V.Ravi Special Govt.Pleader (A.S.) For Respondent : Mr. D.shivakumaran JUDGMENT
This appeal by the Land Acquisition Officer is directed against the judgment and decree dated 20.7.1998 passed by the learned Subordinate Judge of Hosur in LAOP No.764 of 1996. For convenience, the ranks of the parties before the lower Court are maintained in this judgment.
2. The brief facts which are necessary for disposal of this appeal are as follows:
The land in S.No.868/2 measuring an extent of 0.01.5 Hec and also the land in S.No.970/2 measuirng an extent of 0.22.5 Hec in Chennathur Village, Hosur Taluk of Krishnagiri District were acquired by the Land Acquisition Officer for the purpose of formation of Hosur inner Ring Road around Hosur town along with other lands. The 4(1) Notification was also issued along with the said land and the Land Acquisition Officer had also passed an award in Award No.3/92 dated 15.9.1992. In the said award, the market value of the acquired land was fixed by the Land Acquisition Officer at Rs.61,750/- per one Hectare. Aggrieved by the same, the claimant had requested the Land Acquisition Officer to refer the matter to the Sub Court, Hosur, for the fixation of market value. Accordingly, the said case was referred to the Sub Court/land Tribunal, Hosur and the land Tribunal has taken the case on file in L.A.O.P.No.764 of 1996 and a full-fledged enquiry was conducted. After going through the evidence adduced on either side, the said Court had fixed the market value at Rs.3,76,133/- per one acre along with solatium and additional value and interest accrued over the said compensation amount. The Land Acquisition Officer, who was aggrieved by the said decision of the lower Court, had preferred the present appeal on various grounds.
3. During enquiry before the Sub Court, the claimant was examined as C.W.1 and one A.M.Santhirappa was examined as C.W.2 and Exhibits C1 and C2 were marked. On the side of the respondent, Exhibit R1 was marked.
4. Heard Mr.V.Ravi, the learned Special Government Pleader (A.S) appearing for appellant and Mr. D.Shivakumaran, the learned counsel appearing for respondent.
5. On perusal of the papers and records of the lower court, the evidence adduced on either side, judgment and award passed by the lower court, grounds raised in the memorandum of appeal and the arguments advanced on either side, the following points emerged for consideration in this appeal:
1. Whether the reference considered by the lower court cannot be sustainable?
2. Whether the market value as fixed by the lower court at Rs.3,76,133/- per one acre is correct?
3. Whether the market value fixed by the lower court is excessive?
4. Whether the judgment and award passed by the lower court are liable to be set aside and is the appeal allowable?
5. To what relief the appellant is entitled for?
6. Learned Spl. Government Pleader (AS) appearing for the appellant would submit in his argument that the lower court erred in enhancing the market value as fixed by the Land Acquisition Officer at Rs.61,750/- per hectare to Rs.3,76,133/- per one acre in violation of procedures and all canons of law. He would further submit in his argument that the earlier judgment produced before the lower court in Ex.C.1 was not finally decided by any court, however it was relied upon by the lower court for fixing the market value, which is not correct. He would further submit in his argument that the lower court ought to have found that the claimant has not discharged his burden of proof cast upon him, with acceptable evidence and therefore the reference u/s. 18 has to be rejected. He would rely upon the judgment of the Hon’ble Apex court reported in (1996) 3 SCC 766 in between Hookiyar Singh and others vs. Special Land Acquisition Officer, Moradabad and another. in support of his argument.
7. He would further submit in his argument that the lower court had not referred any sale deed produced by the claimant but had simply followed the judgment of the said court in some other cases without any discussion. He would also submit that the lands in acquisition referred in Ex.C.1 judgment was entirely different from the land acquired in this case. He would also submit that the Land Acquisition Officer had considered data sales numbering more than 400 and had rejected all the data sales except only one which is very much similar to the land acquired and had fixed the market value but it was not appreciated by the lower court. He would also submit that the lower court had awarded more than the compensation, what the claimant had asked for, before the Land Acquisition Officer. He would further submit in his argument that the reference was made before the lower court without any requisition made by the claimant u/s. 18 (1) of the Act and the reference was also made after a long delay despite the award was passed on 15.09.1992. He would draw the attention of the court to an unreported judgement of full bench made in W.A.No.2899 of 2001 dated 24.07.2007 in between N.Rajaraman (Died) and 5 ors. vs. The Special Tahsildar (Adi Dravidar Welfare) Gingee for the said proposition of law. He would again draw the attention of the court to yet another unreported judgment of the court made in A.S.No.945 and 946 of 2004 dated 02.03.2007 in between The Special Tahsildar & Land Acquisition Officer Tamil Nadu Housing Scheme, Nandanam vs. Thilagam and others for the proposition that the award passed by the lower court is nullity when a reference was not made in accordance with sec.18(1) of the Act. He would therefore request the court that the reference made before the lower court is not sustainable either in law or on facts and therefore the judgment and award passed by the lower court are liable to be set aside and thereby the market value fixed by the Land Acquisition Officer should have been confirmed.
8. Learned counsel for the respondent/claimant would submit in his argument that the lower court had correctly come to a conclusion of fixing the market value at Rs.3,76,133/- per one acre with statutory benefits considering the facts and circumstances culled out from the evidence adduced before it. He would also submit that there is no bar for the claimant to claim more compensation than that of he claimed before the Land Acquisition Officer and the argument advanced by the learned Spl. Government Pleader (AS) to the contrary is not sustainable. He would cite a judgment of the Division Bench of this court reported in 2000 (IV) CTC 440 in between The Special Tahsildar (Land Acquisition) Krishna Water Supply project Scheme, Tiruvallur vs. G. Natesan and 13 others in support of his case. He would further submit in his argument that the reference was made by the Land Acquisition Officer within three years period of time on the statement submitted by the claimant before him and it is not correct to say that the applicant had not filed any statement or request for sending the same to the reference. Moreover, he would submit in his argument that the protest made by the claimant was referred to by the Land Acquisition Officer in his proceedings and he had omitted to send the requisition statement seeking for sending the same to the court for deciding the case and it has been sent accordingly to the court and the lower court had also taken cognizance of the same. In the said circumstances the judgment cited by the learned Spl.Govt. Pleader will not be applicable to the present case. He would further submit in his argument that the lower court had applied its mind in seeing that the earlier judgment produced in Ex.C.1 was decided on the same award for the same acquisition in respect of lands in survey numbers and therefore, it had adopted the same valuation. He would further submit in his argument that the lands acquired were more than Rs.15 lakhs per one acre but the Land Acquisition Officer had wantonly fixed the values at Rs. 61750/- per one hectare (i.e) at Rs.250/- per one cent of land acquired by the Government for the purpose of inner ring road. He would also submit that the lands acquired were having potentiality, since they were very near to Hosur housing board houses and near Royakottai road. He would further submit in his argument that the potentiality of the land was not considered for fixing the market value. He would further submit in his argument that the lower court had come to a conclusion of adopting the said market value fixed in the connected case produced in Ex.C.1 and therefore the said market value or the value fixed by the lower court may not be interfered. He would further submit that even though the value of the land is more than five lakhs the claimant has not asked for more than the market value fixed by the lower court and therefore the claim of the Referring Officer has to be disallowed. He would further request the court to dismiss the appeal and to confirm the judgment and award passed by the lower court.
9. I have given anxious thoughts to the arguments advanced on either side.
10. For convenience sake the rank of both parties before lower court are being maintained in this discussion.
11. The claimant representing his family members had sought for higher compensation and had received the compensation fixed by the Land Acquisition Officer under process for the lands acquired in S.No.868/2 an extent of 0.01.5 hectare and in S.No. 870/2 an extent of 0.21.0 hectare in Chennathur village, Hosur Taluk for the purpose of formation of inner ring road by the National Highways around Hosur town. The valuation for the said lands was fixed by the Land Acquisition Officer as seen from his award Ex.R.1 for a sum of Rs.61,750/- per one hectare with statutory benefits. For arriving to the said value for the lands acquired the Land Acquisition Officer had considered 498 data sales, registered within one year prior to the date of 4(1) Notification published on 03.11.1989. According to his conclusion in the award Ex.R.1 the data sale in S.No.163 was alone suitable for comparing the value with the lands acquired. He would also give reasons for rejecting other data sales for example S.Nos.352,442,443 and 492 were discarded for smaller extents sold for higher value, similarly other two data sales S.Nos. 366 and 367 were rejected by the Land Acquisition Officer since they were purchased with higher value for merging with other adjacent properties. However the selected data land in S.No.163 said to be smaller to the lands acquired but the soil classification of the sample land differ from the lands under acquisition. When it is clearly a different one the Land Acquisition Officer ought not to have adopted the value of the said land for fixing the market value. The rejection of the higher value of properties but taking the value on different by classified land would render the valuation done by the Land Acquisition Officer as an is incorrect one.
12. Nextly when we go into the fixation of market value by the lower court if the reference is taken as valid, the lower court had adopted the market value of the land fixed by the said court in L.A.O.P.No.764/1996 and the said judgment is produced as Ex.C.1 a common judgment rendered by the lower court along with other cases on 20.07.1998. No doubt it is true that the lands acquired under this land acquisition proceedings are the same 4(1) notification and the award passed by the Land Acquisition Officer also same. The award questioned in the said judgment is none other than Ex.R.1 award. In the said judgment, the lower court had followed another judgment made in L.A.O.P.No.635/1996 and other cases dated 05.01.1998. While discussing about the the judgment regarding the land acquisition proceedings, the lower court had mentioned that the land comprised in Ex.C.1 and C.2 filed in that case were away from the acquired lands and therefore the previous judgment in Ex.C.3 had been followed.
13. On careful perusal of the evidence produced in this case, Ex.C.2 produced in this case was also produced as Ex.C.2 in the Ex.C.1 case. The village map showing the lands acquired as well as the sample lands and other lands mentioned in Ex.C.2 were not produced by the Land Acquisition Officer. In the said judgment Ex.C.1 it has been mentioned that the land in Ex.C.2 was 150 feet away from the lands acquired. The said evidence produced on the side of the claimant was not controverted by the Land Acquisition Officer by producing any other documentary or oral evidence. Therefore, we could see that Ex.C.2 was very near to the lands acquired the property sold in Ex.C.2 was for an extent of 3 cents sold for Rs.16,000/-. The same was mentioned as C.W.2. His evidence would be clinching to prove that a sum of Rs.16,000/- was paid by the intending purchaser to the intending seller of the said land for only 3 cents. There is no other acceptable documents produced contrary to Ex.C.2. Even though the said extent mentioned in Ex.C.2 is small, we have to adopt a proper method for fixing the value of the property acquired by the Government. The said document is dated 01.02.1989, eight months prior to the date of acquisition. An unreported judgment of this court made in A.S.Nos.192 to 200 of 1999 dated 29.11.2001 in between The Special Tahsildar (L.A) Housing Scheme, Hosur vs M.G. Ramaiya and another was produced and in the said judgment it has been categorically mentioned as to when the value of smaller extent of property can be applied for a larger extent of land with a proper deduction is followed. In the said judgment it has been categorically mentioned that 30% could be applied, for such deduction towards the value fixed for larger extent from the value of smaller extent apart from that yet another 30% was ordered to be deducted in respect of development charges for purpose of using the lands acquired as house sites. As far as this case is concerned the purpose of acquisition was only in respect of formation of inner ring road around the Hosur town. Therefore, a 30% deduction for fixing the value of smaller extent to the land of larger extent is sufficient, and the value in Ex.C.2 can be taken for fixing the market value in the present case.
14. In the judgment of this court reported in 2000 (IV) CTC 440 in between The Special Tahsildar (Land Acquisition) Krishna Water Supply Project Scheme, Tiruvallur vs. G. Natesan and 13 others , it has been held as follows:
“18. In the result, we hold that the claimants/landowners notwithstanding the fact that they made a lesser claim before the Land Acquisition Officer in response to the notice under Section 9 of the Land Acquisition Act can make a higher claim before the Reference Court for the first time.”
15. As already discussed the value mentioned in Ex.C.2 was sufficiently prior to the date of 4(1) notification and the genuiness of the sale deed was also proved by the evidence of C.W.2. Therefore, there is no impediment for this court to fix the value in accordance with Ex.C.2 with the guide lines of this court made in A.S.Nos.192 to 200 of 1999. Accordingly when 30% is calculated from the value of 3 cents for Rs.16,000/- it comes to Rs.4800. On deduction of the said value, it comes to Rs.11,200/- out of the value, the value of 1 cent would be Rs.3733.33ps. Since the said sale deed was 10 months prior to the date of 4(1) notification, the normal escalation would be 7.5% per year and for these 10 months, we could apply 5% for the value and when we add this value it would be Rs.3919/-. If it is calculated for one acre it would be Rs.3,91,900/-. The lower court had followed the earlier judgment made in Ex.C.1 and fixed the value at Rs.3,76,133/- only. But the proper calculation would show that it is certainly more than the value fixed by the lower court. Therefore, fixation of market value by the lower court cannot be disturbed since there is no cross objection filed by the respondent for enhancement.
16. As regards the maintainability of reference, it has been categorically mentioned in the judgment of full bench of this court made in W.A. 2899 of 2001 dated 24.07.2007 as follows:
“10. In view of the foregoing discussion, we hold that for making a reference under section 18 of the Act, a written application after the award is passed is mandatory and such application is required to be made within the period of limitation prescribed under section 18 of the Act. The reference is answered accordingly. The Registry is directed to place the papers before the Division bench for disposal of the matters in accordance with law.”
Similarly the judgment of the Division bench made in A.S.Nos.945 and 946 of 2004 dated 02.03.2007 would categorically mention thus:
“7.29. Therefore, the claim of the landowners/respondents for enhancement of compensation is a nullity in the sense that (a) there was no written application, and (b) barred by limitation, which are basic ingredients of section 18(1) of the Act to maintain an application for enhancement of award.”
17. According to the aforesaid judgment of this court we could easily understand that for making reference written application is necessary under section 18 (1) of the Act. There is no quarrel that the case in a case in which the written application has not been submitted by the claimant the reference itself becomes a nullity.
18. So far as this case is concerned the learned Spl. Government Pleader contended that there was no written application filed by the claimant for referring the case to the land Tribunal for fixing the market value. On a careful perusal of the lower court records we could see that the reference letter written by the Land Acquisition Officer had been referring to the fact that the claimant had received the compensation under protest and at his request it was referred to the Land Tribunal (i.e) to the lower court for fixing the market value. The evidence of C.W.1 would also go to show that he has received the compensation fixed by the Land Acquisition Officer under protest. He would depose:-
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19.Apart from the cross examination the C.W.1 claimant would state that he has filed a written objection before the Referring Officer
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20. Such evidence of C.W.1, was not denied of there was no contra evidence that he had not filed any objection or requisition for referring the matter to the court for fixing the market value. The Referring Officer was not examined on the side of the respondent for clarifying all these points. The lower court had enquired into the reference and during the cross examination of witnesses or enquiry nothing was suggested to C.W.1 about the said objection statement. Per contra in conformity with the requisition the reference was sent to the referring court. Moreover, the appellant has not stated in his ground of appeal about the alleged basic defect in making the reference. Even it is not necessary it ought to have been shown or established before the court, that the claimant had not filed any application before the Referring officer u/s. 18(1) of the Act for referring the matter to the court. Therefore, it is a case in which the claimant had filed an objection statement regarding the fixing of market value by the Land Acquisition Officer. Therefore, it is for the Referring Officer to explain the said objection was not in relation to the requirement u/s. 18 (1) of the Act. But he failed to do so. Therefore, the facts discussed in the aforesaid judgment are not applicable to the present case.
21. In the aforesaid circumstances, the alleged infirmity in not filing objection or requisition to send the reference to court before the Land Acquisition Officer is not established nor available to the appellant. For the foregoing discussion the aforesaid points are ended against the appellant.
22. Points 4 and 5:
In view of the finding reached in the above said points the judgment passed by the lower court is liable to be confirmed. The appeal preferred by the appellant deserves dismissal. Accordingly the appeal is dismissed confirming the judgment and award passed by the lower court with costs.
09.06.2010 kpr Index : Yes/No Internet: Yes/No To The Subordiante Judge, Tirupattur. V.PERIYA KARUPPIAH, J. kpr A.S.No.241 of 2000 09.06.2010
