This appeal preferred under Section 54 of the Land Acquisition Act is directed against the judgment and award of the Subordinate Judge, Namakkal made in L.A.O.P.No.80 of 1992 dated 29.11.1995. The Land Acquisition Officer, namely the Special Tahsildar, Adi Dravidar Welfare, Namakkal is the appellant herein. The claimant before the court below in the LAOP is the respondent.
2. An extent of 0.98.0 hectare dry land (equivalent to 2.42 acre) comprised in Survey No.155/2 in Sircarpalayapalayam Village, Namakkal Taluk, the then Salem District was acquired by the Government following the procedure prescribed in the Land Acquisition Act (Central Act) for providing house sites/pathway to the Arunthathiars of Sircarpalayapalayam village. The notification under
Section 4(1) of the Land Acquisition Act, 1894 for acquiring the said land was approved by the Government in G.O.Ms.No.1186 AD & TW Dept. dated 11.07.1990 and the same was published in the Government Gazette part II, Section - 2 supplement page-6 issue No.31A dated 08.08.1990. The same was published in Tamil daily news papers Murasoli and Viduthalai on 14.08.1990 and 10.08.1990 respectively.
3. After hearing the objections and overruling the same, the Government decided to proceed with acquisition and the declaration under Section 6 of the Land Acquisition Act, 1894 was approved by the Government in G.O.(3D) No.727 A.D. & TW Dept dated 31.07.1991. The same was also published in the Gazette on 21.08.1991 and the Tamil daily news papers "Malaimalar" and "Thinathoothu" on 23.08.1991. It was also published in the locality on 26.08.1991. After award enquiry, the Referring Officer passed an award on 23.03.1992 in his proceedings Roc.No.3601/89 fixing the compensation at Rs.86,557/- for the above said land, taking the market value of the property as on the date of notification under
Section 4(1) of the Land Acquisition Act at Rs.23,529/- per acre. The Referring Officer relied on a sale deed dated 06.08.1988 registered as document No.438/1988 in the office of the Sub Registrar, Erumaipatti. The total amount of compensation was arrived as follows:
4. Not satisfied with the amount of compensation awarded by the Referring Officer, the appellant herein/claimant chose to receive the said amount under protest and with a request for making a reference to the Court under Section 18 of the Land Acquisition Act, 1894 for fixing a reasonable amount as compensation for the acquired land. Accordingly a reference was made by the Referring Officer under Section 18 of the Land Acquisition Act to the Sub-court, Namakkal. The same was taken on file by the Sub-Court, Namakkal on its file as LAOP No.80/1992. Claim statement of the respondent herein/claimant and the objections of the Referring Officer to the claim statement were filed. In the trial before the court below, including the respondent herein/claimant, two witnesses were examined as P.W.1 and 2 and one document was marked as Ex.A1 on the side of the claimant. No witness was examined and no document was marked on the side of the appellant herein/Referring officer.
5. At the conclusion of trial, after hearing the arguments advanced on either side, the court below came to the conclusion that the acquired land had the potential for being developed into house sites and hence it must be valued taking a sq.ft. as the unit for valuation. The court below relied on the only document produced on the side of the respondent herein/claimant and marked as Ex.A1 and on the basis of the valuation found in the said document, fixed the market value of the acquired land as on the date of notification under
Section 4(1) of the Land Acquisition Act at Rs.6/- per sq.ft. However, since the sale deed in respect of a small extent of land, namely 7500 sq.ft. land sold as a house site, was taken as the data sale reflecting the market value of the acquired land, to make the acquired land comparable with the said land, the court below chose to deduct 25% of the total extent as the area required for development like road, public area, open space etc. and calculated the value for the rest of the area alone. Thus, out of the total extent of 1,05,415 sq.ft. Which is equivalent to 0.98.00 hectare, deducting an extent of 25% for developmental purposes, the balance extent alone, namely 79,062 sq.ft. alone was valued at the rate of Rs.6/- per sq.ft. Accordingly, the valuation was made and compensation was assessed by the court below in the following terms:-
Total extent of land acquired : 1,05,415 sq.ft.
25% deduction for developmental purposes : 26,353 sq.ft.
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Balance to be valued at Rs.6/-
per sq.ft. : 79,062 sq.ft.
The value of the land @ Rs.6/-
sq.ft. as on the date of 4(1) notification : Rs.4,74,372.00 Solatium @ 15% on the market value : Rs. 71,155.80 ---------------- Grand Total Rs.5,45,527.80
Fixing the total compensation at the above said amount, the court below directed the Government to pay a sum of Rs.4,60,722.80 as the enhanced compensation after deducting the amount awarded by the Referring Officer, namely Rs.84,805/- from the total amount of compensation. The court below also directed payment of interest @ 6% per annum from the date on which possession was taken by the Government, namely 25.03.1992.
6. Aggrieved by the said award and contending that the amount of compensation awarded by the court below is highly excessive and exorbitant, the appellant herein/Referring Officer has come forward with the present appeal on various grounds set out in the Memorandum of Appeal.
7. The points that arise for consideration in this appeal are
1) Whether the amount awarded by the court below as compensation is excessive requiring downward revision?
2) To what relief the parties are entitled?
8. Mr.V.Ravi, learned Special Government Pleader representing the appellant herein argued that the court below committed an error in comparing a small piece of land measuring 7500 sq.ft. to a larger extent of land, namely 2.42 acres to assess the market value of the acquired land; that the court below committed an error in assessing the market value of the acquired land taking a sq.ft. as the unit of assessment when the acquired land was on ground dry land as on the date of 4(1) notification and that even if it is assumed that the acquired land did have the potential to be developed into house sites, a larger percentage should have been deducted as area required for developmental purposes. Based on the above said contentions, the learned Special Government Pleader has argued that the award of the court below is infirm and defective requiring interference by this court and that the compensation awarded by the court below should be drastically reduced.
9. Unfortunately, in this case, the respondent herein/claimant has not chosen to contest the appeal. Therefore, this court has to decide the case only after hearing the submissions made by learned Special Government Pleader representing the appellant herein/Referring Officer and after perusing the materials available on record.
10. Admittedly, notification under
Section 4(1) of the Land Acquisition Act, 1894 was published in the Tamil Nadu Government Gazetted dated 08.08.1990 and the same was again published in the daily news papers 'Murasoli' and 'Viduthalai' on 14.08.1990 and 10.08.1990 respectively. Since the notification under
Section 4(1) was not published in the vernacular language, again the same as published in the Tami dailies 'Malai Malar' and 'Dinathoothu' on 23.08.1991. However, the Referring Officer took the date of Section 6 declaration as the relevant date from which the additional market value should be calculated under Section 23(1-A) of the Land Acquisition Act. The said mistake was not at all adverted to by the learned Subordinate Judge who tried the LAOP. On the other hand, the learned Subordinate Judge seems to have totally ignored the provision found in Section 23(1-A) of the Land Acquisition Act which mandates that an additional market value @ 12% per annum from the date of publication of notification under
Section 4(1) of the Land Acquisition Act till the date of award of the Referring Officer or the date of taking possession whichever is earlier should be added.
Section 23(2) of the Land Acquisition Act was amended in 1984 itself by Act 48 of 1984 prescribing 30% of the market value to be calculated as solatium. The acquisition proceedings in this case itself started much later than the date on which the said amendment was brought into force. The learned Subordinate Judge in utter disregard of or ignorance of the said amendment has chosen to award solatium @ 15% percent alone. Even the Referring Officer, in his award has calculated 30% on the market value as solatium. It is very unfortunate to note that the learned Subordinate Judge did not even think of how 30% solatium happened to be calculated by the Referring Officer. Had the learned Subordinate Judge put such a question to himself or to the parties litigating before him, he would have been enlightened by brining the amendment introduced in 1984 to his notice.
11. The learned Subordinate Judge has also failed to calculate the additional market value in terms of Section 23(1-A) of the Land Acquisition Act and include it in the total amount of compensation. As per Section 23(1-A) of the Land Acquisition Act, 1894, additional market value at the rate of 12% per annum from the date of publication of
Section 4(1) notification till the date of award or the date on which possession was taken by the Government whichever is earlier should be calculated and added to the compensation amount. The Referring Officer, in his award has chosen to apply the said provision for assessing additional market value. However, the learned Subordinate Judge who dealt with the LAOP, omitted to do so. Apart from the above said defects and infirmities found in the judgment of the court below, yet another mistake is also noticed by this court. The interest on excess compensation has been enhanced by the legislature by the above said Amending Act of 1984. Previously, it was 6%. By virtue of the said amendment, now the interest to be allowed on excess compensation is 9% per annum for a period of one year from the date on which possession was taken by the Government and 15% per annum thereafter.
12. All the above said defects found in the judgment of the court below show that the learned Subordinate Judge was lacking in legal knowledge and was not even aware of the change of law which was brought into effect 11 years prior to the date on which he pronounced his judgment in the LAOP. As the errors and defects pointed in the judgment of the court below are not regarding the factual issues but are relating to the application of correct provision of law, this court is of the considered view that it is one of the exceptional cases in which this court has to invoke its powers under Order 41 Rule 33 and set-right the mistakes committed by the court below. Rule 33 of Order 41 gives wide powers enabling the Appellate Court to pass any order or decree to meet the ends of justice. But it is a judicial discretion to determine all questions in order to render complete justice between the parties. Exercise of such discretion should not be refused on mere technicalities as held by the Hon'ble Supreme Court in AIR 1988 (SC) 54. However, it must be noted that ordinarily the appellate court should not vary or reverse the decree or order in favour of a party who has not preferred any appeal despite the presence of Order 41 Rule 33 in the Code. However, the Hon'ble Supreme Court in AIR 1998 (SC) 3118 has held that in exceptional cases the rule enables the appellate court to pass such a decree or order which ought to have been passed even if such decree would be in favour of parties who have not filed any appeal and that such a power of the appellate court though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeal or cross-objection. As a flagrant violations of the statutory provisions are found in the judgment and decree of the court below, it is one such exceptional case in which this court has to exercise its power under Order 41 Rule 33 to pass a decree which shall incorporate the statutory benefits available to the claimants under Sections 23(1-A), 23(2) and 28 of the Land Acquisition Act, 1894 (as amended by the Amending Act of 1984).
13. Therefore, while accepting the contention of the learned Special Government Pleader that it is a fit case in which 50% deduction should be made for developmental purposes from the market value of the land arrived at on the basis of the rate found in Ex.C1, this court also comes to the conclusion that the decree of the court below deserves to be interfered with and modified by directing the addition of statutory benefits under Sections 23(1-A) and 23(2) to the market value to arrive at the total amount of compensation, in exercise of its power under Order 41 Rule 33 of Civil Procedure Code. Accordingly, the total compensation and enhanced compensation are arrived at as follows:
Total extent of land acquired : 1,05,415.50 sq.ft.
50% of the said extent liable to be deducted for develop-
mental purposes : 57,007.50 sq.ft.
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Balance to be valued @ Rs.6/-
per sq.ft. : 57,007.50 sq.ft.
Value of the said extent @ Rs.6/-
sq.ft. 57007.5 x 6 : Rs.3,42,045.00 30% solatium on the market value thus arrived at : Rs.1,02,613.50 Increase in market value @ 12% at Rs.3,42,045/- from the date of 4(1) notification till the date on which the possession was taken whichever is earlier. Date of 4(1) notifica- tion published in the gazette on 08.08.1990. Date of award 25.03.1992 (admitted to be the date of taking possession). Totally 594 days : Rs. 66,797.17 ---------------- Total amount of compensation : Rs.5,11,455.67 Rounded to: Rs.5,11,456.00 Amount already awarded by the Land Acquisition Officer : Rs. 84,805.00 Excess compensation to which the respondent/claimant shall be entitled : Rs.4,26,651.00
For the said amount, as per Section 28 of the Land Acquisition Act, the respondent herein/claimant shall be entitled to claim interest at the rate of 9% per annum for a period of one year from the date on which possession was taken by the Government and thereafter (after the period of above said one year) @ 15% per annum till the amount is deposited.
14. For all the reasons stated above, this appeal is partly allowed and the market value of the acquired land is assessed at the rate of Rs.6/- sq.ft. after allowing a deduction of 50% from the total extent for developmental purposes and the total market value of the acquired property as on the date of 4(1) notification is reduced to Rs.3,42,045/- from Rs.4,74,372/-. However, exercising the power of the appellate court under Order 41 Rule 33, the decree of the court below is further modified as follows:-
a) A sum of Rs.1,02,613.50 being 30% of the market value is awarded as solatium under
Section 23(2) of the Land Acquisition Act.
b) A sum of Rs.66,797.17 is awarded as additional market value calculated @ 12% per annum on the market value from the date of 4(1) notification till the date of award.
c) The total amount of compensation, (market value + solatium + additional market value) is fixed at Rs.5,11,456.00
d) After deduction the amount awarded by the Land Acquisition Officer as compensation as per his award, the enhanced compensation to which the respondent herein/claimant is entitled is fixed at Rs.4,26,651/-
e) On the enhanced amount of compensation, the respondent herein/claimant shall be entitled to an interest @ 9% per annum from the date on which the Government took possession of the land, namely 25.03.1992 for a period of one year and thereafter at the rate of 15% per annum till the amount is deposited.
f) The appellant shall also be liable to pay proportionate cost of the respondent herein/claimant in the LAOP.
And
g) There shall be no order as to cost in this appeal.
asr To
1) The Additional Subordinate Judge, Salem
2) The Special Tahsildar (LA) (Adi Dravidar Welfare) Salem