A.S.No.243 OF 2007 This appeal is directed against the award passed by the lower Court in LAOP No.10 of 2005 preferred by the Land Acquisition Officer, Mahe.
A.S.No.244 OF 2007 This appeal is directed against the award passed by the lower Court in LAOP No.11 of 2005 preferred by the Land Acquisition Officer, Mahe.
A.S.No.245 OF 2007 This appeal is directed against the award passed by the lower Court in LAOP No.12 of 2005 preferred by the Land Acquisition Officer, Mahe.
Cross Objection No.32 OF 2007 The present cross objection is directed against the quantum of compensation awarded by the lower Court in LAOP No.10 of 2005 preferred by the Claimant for enhancement of compensation.
Cross Objection No.29 OF 2007 The present cross objection is directed against the quantum of compensation awarded by the lower Court in LAOP No.11 of 2005 preferred by the Claimant for enhancement of compensation.
CRP (NPD) No.956 OF 2007 The Revision Petition is filed against the order passed by the lower Court in I.A. No.11 of 2007 in LAOP No.10 of 2005 in dismissing the review petition filed by the Claimant.
CRP (NPD) No.957 OF 2007 The Revision Petition is filed against the order passed by the lower Court in I.A. No.12 of 2007 in LAOP No.11 of 2005 in dismissing the review petition filed by the Claimant.
The lands (i) in R.S.No.97/1-B of an extent of 0.17.30 hectares; (ii) in R.S.No.97/2-A/2 of an extent of 0.12.50 hectares; (iii) in R.S.No.97/4 of an extent of 0.10.00 hectares; and (iv) in R.S.No.100/16 of an extent of 0.10.00 hectares of the Revenue Village of Mahe in the Registration District of Mahe in the Pondicherry District were acquired by the Government of Pondicherry through the publication made in the State Gazette No.8 dated 25.02.2003 in G.O.Ms.No.08 for the purpose of further expansion/development of the Government General Hospital, Mahe. The Claimant in LAOP No.10 of 2005 was the owner of the aforesaid first item; the Claimant in LAOP No.11 of 2005 was the owner of the aforesaid fourth item; and the Claimant in LAOP No.12 of 2005 was the owner of 0.04.01 hectares in the third item of the aforesaid properties.
2. The 4(1) notification issued under the Act was dated 28.10.2002. The Land Acquisition Officer had considered 59 documents of sale effected in the said Mahe Village immediately prior to 4(1) notification and had rejected 55 documents of sale on the reason that the lands comprised therein were located either far away or dissimilar to the land acquired. In the remaining four documents of sale, the Land Acquisition Officer had rejected item No.55 of sales as it was effected only for an extent of 0.00.20 hectare. Among the three documents of sale left, he had considered item no.5, 17 and 49, as documents showing the market value of the said properties at Rs.1,054 per square metre, Rs.517/- per square metre and Rs.519/- per square metre respectively and he had selected item no.5 of the document of sale which was the higher in price at Rs.1,054/- per square metre. However, he had reduced the market rate from Rs.1,054/- to Rs.870/- per square metre as per the approval given by Revenue Department of Pondicherry vide its letter No.2699/REV-B1/2002 dated 25.02.2003. The Land Acquisition Officer had also fixed the value for the trees standing in the properties and had also ordered 30% solatium and additional market value at 12% per annum from the date of 4(1) notification till the date of passing the award. However, he had not calculated the interest for the said valuation as per the statute, namely The Land Acquisition Act, 1894.
3. Aggrieved by the offer made by the Land Acquisition Officer for the acquired lands the Claimants in LAOP Nos.10 of 2005, 11 of 2005 and 12 of 2005 had requested the Land Acquisition Officer to refer the matter to the Sub Court, Mahe for fixing the market value of the acquired lands as on the date of 4(1) notification. Accordingly, they were referred to the said Court and they were taken on file as LAOP Nos.10 to 12 of 2005.
4. The learned Special Judicial Officer for land acquisition (Sub Judge) at Mahe had taken up all the three cases together since the market value of the properties belonging to the Claimants in all the three LAOP's were under a single award made in 1 of 2005 dated 28.01.2005 by the Land Acquisition Officer. The lower Court had examined PW-1 to PW-5 on the side of the Claimants and admitted Ex.P-1 to P-4 as documentary evidence. Similarly, the Land Acquisition Officer had examined DW-1 and had produced Ex.R-1 to R-7 in support of the award passed by him. After going through the evidence adduced before the lower Court, the market value of the acquired lands was fixed at Rs.1,450/- per square metre with 30% solatium and 12% as additional value from the date of 4(1) notification and till the passing of the award and with an interest at 9% per annum from the date of taking possession upto one year and thereafter at 12% per annum at the enhanced amount till the amount is made into Court as contemplated under Section 28 of the Act.
5. Against the said fixation of market value at Rs.1,450/- per one square metre, the Land Acquisition Officer had preferred all the three appeals.
6. The Claimants in LAOP Nos.10 of 2005 and 11 of 2005 had preferred Cross Objections on the ground that the lower Court had fixed the market value of the acquired lands on the date of Ex.P-1 in the year 1999 but failed to fix the market value on the date of 4(1) notification dated 28.10.2002 and had sought for enhancement of the fixation of the market value at Rs.1,600/- per square metre.
7. The Claimants in LAOP Nos.10 of 2005 and 11 of 2005 had filed applications in I.A.Nos.11 of 2007 and 12 of 2007 respectively before the lower Court for reviewing its judgments pronounced in the LAOP Nos.10 of 2005 and 11 of 2005 against the failure to grant interest for the 30% solatium awarded by the lower Court. The lower Court had dismissed the said applications holding that the said request of the Claimants could be made and be decided only by the way of appeal and not through filing any review petition before the lower Court. Against the said orders, the Claimants have preferred the aforesaid revisions respectively.
8. For convenience, the ranks of parties before the lower Court are maintained in this judgment. The reference as to Claimants will indicate all the claimants in LAOP Nos.10, 11 and 12 of 2005.
9. Heard Mr.P.Murugesan, learned senior counsel / learned Government Pleader (Pondicherry) for appellants / Cross Appeal respondents and respondents in revision petitioners and M/s.K.Raja Srinivas, learned counsel for the respondents / Cross appellants and for review petitioners.
10. On a careful perusal of the evidence of parties, the judgment passed by the lower Court and the arguments advanced, the following points have emerged for my consideration in these appeals, cross appeals and review petitions:
i. Whether the market value for the acquired lands as fixed by the lower Court at Rs.1,450/- per one square metre is correct?
ii. Whether the market value fixed by the lower Court at Rs.1,450/- per one square metre has to be further enhanced to Rs.1,600/- per one square metre as asked for by the cross appellants?
iii. Whether the Claimants are entitled to interest on 30% solatium also?
iv. To what relief the appellants in Appeal Nos.243, 244 and 245 of 2007 are entitled to?
v. To what relief the cross appellants in 32 and 29 of 2007 are entitled to?
vi. To what relief the revision petitioners in CRP (NPD) Nos.956 and 957 of 2007 are entitled to?
11. Points No.i and ii - The lands in Mahe village in Survey Nos.(i) in R.S.No.97/1-B of an extent of 0.17.30 hectares; (ii) in R.S.No.97/2-A/2 of an extent of 0.12.50 hectares; (iii) in R.S.No.97/4 of an extent of 0.10.00 hectares; and (iv) in R.S.No.100/16 of an extent of 0.10.00 hectares; were acquired for the purpose of development and expansion of the Government General Hospital at Mahe and the Land Acquisition Officer had conducted enquiries and had fixed the market value at Rs.870/- per one square metre with solatium and additional value. They were questioned by the Claimants in LAOP Nos.10 to 12 of 2005 after they were referred to the Sub Judge, Mahe under Section 18 of the Act, who in turn conducted enquiry and had fixed the market value of the said acquired lands at Rs.1,450/- per square metre. Against which these appeals and cross appeals have been preferred.
12. The learned Senior Counsel / Government Pleader Mr.P.Murugesan would submit in his arguments that the lower Court had fixed the market value of the acquired lands at Rs.1,450/- per square metre which is far more than the value fixed by the Land Acquisition Officer at Rs.870/- per square metre. He would further submit that the lower Court had been apparently lead by its earlier decision and it had adopted the value fixed by the Court in an earlier occasion which was not at all applicable to fix the market value of the lands acquired and the three sale deeds which were produced on the side of the acquisition officer were neither discussed nor followed and the said three sale deeds should have been either accepted or rejected by the lower Court. He would further submit in his arguments that the lower Court had considered that the land acquired in Ex.P-1 was lying far away from the lands acquired, but had subsequently accepted the earlier award passed by the Court and made it applicable to the present case which is not sustainable. He would also submit in his arguments that there is no dispute that the interest could be awarded on solatium. However, he would request the Court that the value fixed by the Land Acquisition Officer at Rs.870/- per one square metre is justifiable and the interest on the solatium of 30% may be awarded and to that extent the lower Court award can be modified and the appeals may thus be allowed and the Cross Objections may be dismissed and the revision petition may accordingly be ordered.
13. The learned counsel for the cross appellants and respondents in the appeals would submit in his arguments that the acquired lands were situated at the heart of the Mahe town and it is very near to the Salem Steel Plant Bye-pass road which branches from Salem and Cuddalore main road and the schools and other industries which are situated within a distance of one furlong. He would also draw the attention of the Court that the witnesses examined on the side of the Claimants would speak to the effect that the lands acquired are located north to a tar road by name Choodikotta road and also at a distance of 20 metres from NH17 Road and 500 metres away from Mahe Railway Station and 250 metres away from Sri Krishna Temple. He would further submit that RW-1 himself had admitted the said facts in his evidence and that the Mahe Municipality, Sub Court, Mahe and PW Office are also situated within 200 metres away from the acquired property and it was also a commercial locality and therefore, the lower Court ought to have added additional value to the acquired lands when it decided to apply the market value of the property located far away from the acquired lands, despite the nature and amenities available in the said land were very poor, when compared with the acquired lands. He would further submit in his arguments that the reliance made by the lower Court on Ex.P.-1 award made in LAOP No.5 of 1999 dated 13.02.2001 should have been done properly since the 4(1) notification of the said acquisition was in the year 1999 and three years lapsed from the said date of notification for the present acquisition of these lands and therefore, the additional value of the lands should have been considered for the passage of three years on its potentiality and suitable addition of value should have been made on the award Ex.P-1. If suitable percentage is given over the value of the said award Ex.P-1 it would be more than the claim of the cross appellants made at Rs.1,600/- per square metre and therefore the market value fixed by the lower Court may be enhanced to Rs.1,600/- per square metre. He would also submit in his arguments that the lower Court had failed to award interest on 30% solatium awarded which is erroneous in law. In support of his argument, the learned counsel for the cross appellant would cite a judgment of Apex Court reported in (2001) 7 SCC 211 in between Sunder v/s Union of India, to the effect that the claimants who are entitled to compensate is also entitled to get interest not only on the aggregated amount but also on solatium. He would request the Court that as per law 9% interest per annum till one year and thereafter at 15% per annum should have been ordered by the lower Court but it failed to act in accordance with law. He would also submit that the lower Court did not correct its mistake when it was requested by the Claimants by way of Review Petitions. Therefore, he would also request the Court to award interest on the 30% solatium awarded in accordance with law and thereby to allow the Cross objections and the Civil Revision Petitions and also to dismiss the appeals preferred by the Land Acquisition Officer.
14. On my anxious consideration given to the arguments advanced on either side I could see that the market value fixed at Rs.1,450/- was made on the basis of Ex.P-1, an award passed in LAOP No.5 of 1999 for the land situated in the same village by the lower Court. The Claimants have produced Ex.P-2 to P-4 in order to substantiate that the value fixed by the Land Acquisition Officer was very low and the market value fixed by the Court is not adequate and the said value should have been enhanced from Rs.1450/- per square metre. According to the grievance of both sides Ex.P-2 to P-4 were not considered by the lower Court while fixing the market value. When I go through Ex.P-2 and P-4, both the documents were prepared in Malayalam language. Their true translations were made available before the lower Court by the learned Government Pleader, for comparison; when those documents Ex.P-2 to P-4 are perused with the help of the translated copies, it is found that those documents were made for smaller extent, with buildings constructed in the said properties. Similarly, when we go through the translated copies of R-3 to R-5 produced by the Land Acquisition Officer, they were effected prior to three years to the 4(1) notification for an extent of 0.03.75 hectares in R.S.No.101/7 at Mahe village; for an extent of 0.05.20 hectares in R.S.No.99/12 in Mahe village; and for an extent of 0.02.02 hectares in R.S.No.105/8 of Mahe village for a consideration of Rs.1.94,000/-, Rs.2,70,000/- and Rs.2,13,000/- respectively. When these documents are satisfied, I could see that the sale price was at Rs.517/-; Rs.519/-; and Rs.1,054/- per square metre respectively as the value of the properties. I could also see that all these documents were considered by the Land Acquisition Officer for the purpose of fixing the market value. When he has fixed the market value at Rs.1,054/- per one square metre on the basis of Ex.P-4, it was reduced to Rs.870/- as per the intervention of the Revenue Department, Pondicherry. As rightly pointed out by the lower Court, the reason for such reduction was not explained by the Land Acquisition Officer in his evidence. Under what guidelines it had been reduced was also not spoken. Therefore, the reduction of the market value from Rs.1,054/- to Rs.870/- was found to be without any basis. However, the lower Court had come to a conclusion for fixing the market value at Rs.1,450/- per one square metre after comparing with an earlier order passed by the said Court, which is more than Rs.1,054/- as mentioned in Ex.P-4.
15. The lower Court had come to a conclusion that the acquired lands were situated in the heart of the town Mahe and it was a commercial area as per evidence. It also decided that it had a high potential value. No doubt the purpose of acquisition of these lands was for the development and extension of the Government General Hospital, Mahe and therefore the acquired land should have been situated adjacent to Government General Hospital of Mahe. Therefore, the valuation fixed by the Land Acquisition Officer without considering the potentiality of the acquired lands is certainly not justifiable. As already discussed the lower Court had not accepted those documents Ex.R-2 to R-4 but had considered the award passed in respect of some acquired lands in Mahe town, in LAOP No.5 of 1999 even though it had been located far away from the present acquired lands to fix the market value of the acquired lands. Even according to the evidence available in this case, the said property was located in a hillock and there was no water facility for the said land. The purpose of acquisition of the said land was for establishing a school. However, the said land was compared and the market value of the said land was fixed in respect of the acquired lands, since the documents relied upon by the Land Acquisition Officer in Ex.R-2 to R-5 were not considered by the Land Acquisition Officer in correct perspective and the value available through other records namely the award passed in LAOP No.5 of 1999 was higher in value on the date of 4(1) notification.
16. Admittedly there was no appeal preferred by the Government against the award passed in LAOP No.5 of 1999 produced in Ex.P-1. Therefore, it is certainly binding upon the appellants who were parties in the said case. Therefore, I am entirely in agreement with the lower Court regarding the adaptation of the value arrived at in Ex.P-1 award.
17. It is also not in dispute that the acquired land in LAOP No.5 of 1999 was somewhat away from the lands acquired in this acquisition. It has been already found that the properties acquired in this acquisition were highly potential properties. Moreover, the lands acquired in LAOP No.5 of 1999 were found to have been valued at Rs.1,450/- per one square metre prior to three years. Considering the potentiality of the land and its important location at the Mahe town, the lower Court ought to have ordered more value than that of the value mentioned in Ex.P-1. The suggestion of the learned counsel for cross appellant that 5% increase in value per one year from the date of 4(1) notification of Ex.P-1 to the date of 4(1) notification in this case (i.e. for three years) appears to be sound. When we use the said percentage on the value fixed by the lower Court at Rs.1,450/- an addition of 15% of its value should be added. On such calculation it comes to Rs.1,667/-, whereas the cross appellants have asked for the fixation of the market value of the acquired lands at Rs.1,600/- per one square metre.
18. The lower Court ought to have fixed the value at Rs.1,600/- as prayed for by the claimants before it. However it had fixed only at Rs.1,450/- without taking note of its potentiality, even though it had rejected the fixation of market value at Rs.870/- per one square metre, by the Land Acquisition Officer. Therefore, it has become necessary for me to allow the claim of the cross appellants. Accordingly, both these points are decided in favour of the cross appellants and against the appellants.
19. Point No.iii While submitting the argument in the earlier issues, the learned counsel for the cross appellants/revision petitioners would submit that the section 28 of the Land Acquisition Act, 1894 has given the benefit of interest on the outstanding sum payable under the said Act and the said claim of interest were not granted by the lower Court to the claimants, which is not in accordance with law. He has cited the judgment of Apex Court reported in (2001) 7 SCC 211 in between Sunder v/s. Union of India which reads as follows:
"The proviso to Section 34 of the Act makes the position further clear. The proviso says that "if such compensation" is not paid within one year from the date of taking possession of the land, interest shall stand escalated to 15% per annum from the date of expiry of the said period of one year "on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry". It is inconceivable that the solatium amount would attract only the escalated rate of interest from the expiry of one year and that there would be no interest on solatium during the preceding period. What the legislature intended was to make the aggregate amount under
Section 23 of the Act to reach the hands of the person as and when the award is passed, at any rate as soon as he is deprived of the possession of his land. Any delay in making payment of the said sum should enable the party to have interest on the said sum until he receives the payment. Splitting up the compensation into different components for the purpose of payment of interest under Section 34 was not in the contemplation of the legislature when that section was framed or enacted."
20. He would also draw the attention of the Court that under Section 28 of the Land Acquisition Act, the interest on the solatium amount should have been ordered for one year from the date of taking possession at 9% per annum and thereafter at 15% on the said amount till the date of payment. For the best understanding it has become necessary to extract under Section 28 of the Land Acquisition Act, 1894:
"Collector may be directed to pay interest on excess compensation - If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of (nine per centum) per annum from the date on which he took possession of the land to the date of payment of such excess into Court:
(Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.)"
21. On a careful perusal of the aforesaid judgment of our Apex Court and the ingredients of Section 28 it could be understood that the interest is payable on the entire compensation awarded and not merely on the market value of the land. The actual meaning of word compensation in Section 28 will include the entire compensation comprising solatium etc., or the some equivalent thereto. Therefore, in this case the word entire compensation would mean the solatium also and accordingly, the interest awardable under Section 28 of the Act should have been ordered including the solatium as directed by the statute. Therefore, it could be easily understood that the provisions of Section 28 of the Act warrant and authorise the grant of interest on solatium as well. The learned Government Pleader had, in the course of arguments, fairly conceded that the payment of interest on solatium and other outstanding amount of compensation are the benefits given under the Act, to the claimants. The lower Court was erroneous in not ordering interest on the solatium amount arrived on the market value. The lower Court ought to have reviewed its judgment since it had erred in law, under the wrong impression that an appeal would do. Therefore, the orders passed by the lower Court are also liable to be set aside in these revisions. Accordingly, this point is also decided in favour of the Claimants.
22. Point No.iv In view of my findings reached in Point No.i to iii that the market value fixed by the lower Court are liable to have been enhanced and are not liable to be reduced, the appeals preferred by the Land Acquisition Officer seeking to set aside the said awards are not sustainable. Accordingly, all the appeals are dismissed.
23. Point No.v In view of the discussion held in Point No.i to iii that the market value fixed by the lower Court was liable to be enhanced from Rs.1,450/- to Rs.1,600/- per square metre with proportionate 30% solatium and additional market value with interest as per law and with costs, the cross appeals preferred by the respondents/claimants in A.S.Nos.243 and 244 of 2007 in Cross Objections Nos.32 and 29 of 2007 are allowed.
24. Point No.vi In view of the finding reached in Point No.iii that the revision petitioners are entitled for interest on 30% solatium and the lower Court had also not considered their request in the review applications, the finding of the lower Court is found to be erroneous in law and set aside. Accordingly the Civil Revision Petitions are allowed.
V.PERIYA KARUPPIAH, J.
sri
25. In fine, the appeals are dismissed and the cross appeals are allowed and the Civil Revision Petitions are allowed. In the peculiar circumstances, the parties are directed to bear their respective costs, in these proceedings.
29.01.2009 Index : Yes Internet : Yes PD JUDGMENT IN A.S. Nos.243, 244&245/2007 and Cross Objections Nos.32&29/2007 and CRP (NPD) Nos.956&957/2007 29.01.2009