Citation Codes

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Case Number

App No. 796 of 1969

Attorney(S)

The Addl. Goverment Pleader for Applt.
M/s. T. Vadivel and S. Rajaram, and Peter Francis for Respts.

Judges

Ramaprasada Rao & Sathar Sayeed, JJ.

Acts

LAND ACQUISITION ACT
S. 48(1) of the Land Acquisition Act.
S. 18(1) of the Land Acquisition Act
S. 25(2) of the Land Acquisition Act,
S. 25(1) of the Land Acquisition Act,
S. 4 (1) of the Land Acquisition Act
S. 23 of the Land Acquisition Act

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Smart Summary

Judgment Summary — Ramaprasada Rao, J.

Factual and Procedural Background

The State appealed against a judgment of the Principal Subordinate Judge, Ramanathapuram at Madurai. The record was scanty due to delay; counsel assisted the Court to assemble necessary facts for disposal.

An extent of 2.18 acres (S. No. 289-1B in Rajapalayam village) was part of land acquired for the public purpose of providing house sites for Katta Naickers. A notification under S. 4(1) of the Land Acquisition Act was issued on 11 November 1964. On 17 November 1965 the Government issued a notification under S. 48(1) withdrawing a portion of the originally notified land because an odai (stream) made parts unsuitable for house sites.

The Land Acquisition Officer found the subject land to be dry agricultural land and relied on sales statistics from nearby S. No. 161/3 (three sales in 1963 at Rs. 10,888, Rs. 8,000 and Rs. 6,667 per acre). The LAO adopted Rs. 6,667 per acre for the award, which was passed on 21 September 1966. The owner (Sri Pethayanallur Mayuranathasami Devastanam) did not make a quantified claim before the LAO, though the Executive Officer said he would give details after a trust board meeting.

The Devastanam sought a reference under S. 18(1) for enhancement of compensation; the Civil Court (Subordinate Judge) held that valuation should be as of 17 November 1965 (treating that date as a fresh relevant date) and raised compensation to Rs. 15,000 per acre. The State challenged that decision in this appeal.

Legal Issues Presented

Whether the Civil Court could enhance compensation beyond the amount awarded by the Land Acquisition Officer when the claimant had not made a quantified claim before the LAO and no written application under S. 25(2) was on record to show sufficient cause for that omission.
Whether a notification under S. 48(1) withdrawing part of the originally notified land operates as, or is equivalent to, a fresh notification under S. 4(1) for purposes of fixing the date on which compensation must be valued.
What is the correct market value per acre (and consequential compensation) of the acquired land consistent with the applicable valuation date and the sales evidence on record.

Arguments of the Parties

Government (Appellant) — Smt. Vimala

Because the claimant did not make a quantified claim before the Land Acquisition Officer and did not file a written application under S. 25(2) showing sufficient reason for that omission, the Civil Court lacked jurisdiction to grant compensation in excess of the LAO's award.
The Civil Court had no basis (nothing in the Act) to call upon the claimant to make a claim for increased compensation and, in the absence of such a process, it should not have increased the award suo motu.
These contentions touch the jurisdiction of the Civil Court and therefore can be raised in the appellate court even if not explicitly taken below.
On facts and law, the lower court erred in valuing the land as on 17 November 1965 by treating the S. 48(1) withdrawal as tantamount to a fresh S. 4(1) notification.

Respondent / Claimant — Mr. Peter Francis

Where the Civil Court granted excess compensation, it may be reasonably presumed that a request for increased compensation was made and that formalities (such as a written application) should be condoned in the circumstances.
Formality of a written application for condonation should be treated flexibly given the facts, and the Civil Court can be presumed to have such information before it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ramaswami Reddiar v. Special Tahsildar, Harijan Welfare, Tindivanam (A.S. No. 31 of 1975, d. 9-1-1978)	Consideration of equitable principles where omission to make a claim before the LAO may be condoned or examined by the Civil Court; analogous circumstances previously considered.	The Court referred to Padmanabhan, J.'s consideration of similar circumstances and accepted that equitable principles support a Civil Court's enquiry into whether omission/refusal to claim before LAO was with sufficient cause.
State of Kerala v. Ranga Iyengar Veera-Raghava Iyengar (opinion of Vaidialingam, J.)	The principle that in the absence of an issue framed on the aspect of omission to claim before the LAO, the question is not a pure point of law and the Civil Court vested with jurisdiction may consider whether omission/refusal was for sufficient cause and give the party an opportunity to satisfy the court.	The Court relied on this statement to support the view that where the Civil Court had jurisdiction by reference, it could investigate and be satisfied about sufficient cause, and that governmental silence in the lower court was an indicium that the court was so satisfied.

Court's Reasoning and Analysis

The Court examined the contest on two principal axes: (A) jurisdiction of the Civil Court to award compensation in excess of the Land Acquisition Officer's award when the claimant had not made a quantified claim before the LAO; and (B) the correct valuation date and quantum of compensation.

(A) Jurisdiction and omission to claim before the LAO

The Court acknowledged the statutory principle in S. 25(1) that the Civil Court has no jurisdiction to grant an amount in excess of the LAO's award where a claimant has refused to make a claim or omitted to give sufficient reasons for omission (to be allowed by the judge).
On the record (admittedly incomplete), the Court could not conclude that the claimant had refused to make any claim. The LAO recorded that the Executive Officer said he would give compensation details after the trust board meeting, but no formal claim was made before the LAO prior to the award.
The Court considered whether the omission had "sufficient cause." It observed that the Government did not object in the lower court to enquiry into enhanced compensation — a passive position which suggested that the lower court might have been orally informed of a request and satisfied that there was sufficient cause for condonation.
The Court referred to authorities (Padmanabhan, J.'s treatment of Ramaswami Reddiar and Vaidialingam, J.'s dicta in State of Kerala v. Ranga Iyengar) supporting the proposition that where the reference vests jurisdiction in the Civil Court, the court may consider whether omission was for sufficient cause and afford an opportunity to explain.
The Court declined to decide the broader legal question whether a written application is always necessary for condonation; it found it unnecessary to go further because the Government had not taken the specific objection at the relevant earlier stages or in its memorandum of grounds of appeal.

(B) Valuation date and quantum of compensation

The Court held that S. 48(1) is an independent provision and does not operate as a fresh S. 4(1) notification. The power under S. 48(1) to withdraw a portion of land from acquisition is separate and does not change the valuation date fixed by the original S. 4(1) notification.
Consequently, the Court found the Subordinate Judge's assumption — that the S. 48(1) withdrawal amounted to re-issuance of S. 4(1) and justified valuation as on 17 November — to be incorrect and set aside that conclusion. The correct valuation date for the subject land remained 11 November 1964 (the original S. 4(1) date).
Regarding comparable sales evidence, the Court accepted the lower court's rejection of Exs. A2–A7 (on grounds that those sales were not comparable: abutting trunk road, west of railway, or in built-up areas). The only comparable sales left on the record were the three sales in S. No. 161/3 (1963) forming Ex. B.2 and related evidence.
The three sales in 1963 showed prices of Rs. 6,667; Rs. 8,000; and Rs. 10,888 per acre; the arithmetic average of these sales is Rs. 8,500 per acre. The Court found Rs. 15,000 per acre (as awarded by the lower court) could not be justified on the available evidence.
Considering the lapse of time between the sales (August 1963 for Ex. B.2) and the correct valuation date (11 November 1964) and the finding that prices had an upward trend, the Court fixed the proper market value at Rs. 8,500 per acre. The Court also took into account that the subject acquisition was 2.18 acres while the comparables were smaller parcels when sold, and adjusted the figure accordingly to Rs. 8,500 per acre for the acquired land.
Finally, the Court ordered solatium (the usual allowance) and interest at 4% on the enhanced portion of compensation from the date of taking possession until payment.

Holding and Implications

Final Disposition: The appeal is allowed in part.

Core Rulings:

The notification under S. 48(1) withdrawing part of originally notified land does not amount to or operate as a fresh S. 4(1) notification; therefore the valuation date remains the date of the original S. 4(1) notification (11 November 1964 in this case).
The Civil Court's enhancement of compensation to Rs. 15,000 per acre was set aside; the Court fixed the proper value at Rs. 8,500 per acre based on the comparable sales evidence on record.
Compensation shall be paid on the basis of Rs. 8,500 per acre together with the usual solatium and interest at 4% on the enhanced compensation from the date of taking possession until payment.
No costs were ordered; the appeal is allowed in part and dismissed in respect of the remainder of the claim (as recorded by the Court).

Practical consequences for the parties: The award of the Civil Court increasing compensation to Rs. 15,000/acre is reduced to Rs. 8,500/acre, with solatium and 4% interest. The State's appeal succeeds in part; the claimant receives enhanced compensation relative to the LAO's award but not to the extent ordered below.

Note: The Court addressed certain jurisdictional/contention issues (e.g., whether a written condonation application is always necessary) but expressly declined to decide that broader legal question on the present record.

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The Special Tahsildar (R.W.L.A) Srivilliputtur v. Sri Pethavanallur Mayuranathasami Temple, Rajapalayam Through Its Executive Officer.

Ramaprasada Rao, J.

1. This appeal by the State is against the judgment of the Principal Subordinate Judge, Ramanathapuram at Madurai. As to the reason why this appeal was in the shelf of the High Court for nearly one decade it cannot be explained. It is however resurrected and brought before us, but with scanty record and with no sufficient typed papers for a Division Bench, yet with the assistance of counsel, we could gather the necessary facts for the disposal of this appeal.

2. An extent of 2.18 acres of agricultural land in S. No. 289-1B in Rajapalayam village was acquired along with some more extent of land for the public purpose of providing house sites for Katta Naickers. The notification under S. 4(1) of the Land Acquisition Act was made on 11th November 1964. An year later, a portion of the above notified land was withdrawn from acquisition by the Government issuing a notification under S. 48(1) of the Land Acquisition Act. This withdrawal became necessary as the acquiring authorities were of the view that a portion of the land which was originally notified for acquisition was unsuitable for house sites because there was an cdai running in the middle of the land. Such a notification for withdrawal of the excess land not required for the public purpose was made on 17th November 1965. In so far as the lie of the land which is acquired and which is the subject matter of acquisition is concerned, it is common ground that it is surrounded by the roads formed by the Rajapalayam Municipality. The Land Acquisition Officer enquired into the value of the land and whilst doing so found that the land sought to be acquired is Government dry land and was registered as such in the records of the Rajapalayam village. The description as given by the Land Acquisition Officer thus establishes that the land was dry land and was classified as agricultural land. He evaluated the land with the assistance of the sales statistics gathered by him. In the sales statistics referred to by him, he took into consideration the sales of small extents of land in the vicinity of the acquired land. In particular he relied upon such sales which took place in S. No. 161/3. In sales particulars given by the Land Acquisition Officer, we find three such particulars on record. The first sale in S. No. 161/3 of the year 1963 gave a price of Rs. 10,888 per acre. The second sale in the same survey number, but of the month of July 1963 gave a price of Rs. 8000 per acre. The third sale which was in the month of August 1963, gave a price of Rs. 6667 per acre. The Land Acquisition Officer adopted the last price fetched for a portion of the land sold in S. No. 161/3 and he was of the view that would be the rate at which the fair price of the acquired land should be evaluated. He found that the said data lands are only about one furlong from the land to be acquired and in respect of the tharam, soil and fertility, both S. No. 161/3 and S. No. 289-1-B are comparable land. When he took up the enquiry, the owner who is Sri Pethayanallur Mayuranathasami Devastanam, Rajapalayam did not prefer a claim about the quantum of compensation in spite of notice having been served on the Devastanam to make such a claim. Finally, at the time of the award enquiry, the Executive Officer of the Devastanam, not only failed to make a claim but did not give the rate of compensation at least, which he thought would be the scale for assessing the just compensation for the acquired land. In these state of affairs, the Award was passed by the Land Acquisition Officer on 21st September 1966, but without any claim as such for compensation having been made by the Devastanam before the said Officer. But the Devastanam, however, sought for a reference under S. 18(1) of the Land Acquisition Act for enhancement of the compensation awarded. On such an application, the subject matter was referred to civil court and the learned Subordinate Judge was of the view that the acquired land has to be valued as on 17th November 1965 and not as on 11th November 1964 since, according to him, a revised notification under S. 4(1) has been published or reissued on 17th November 1965. We have already referred to the fact that the Government decided to take out of consideration and compulsory acquisition one portion of the originally notified land for the public purpose aforesaid and such a notification under S. 48(1) was made on 17th November 1965. The learned Subordinate Judge was of the view that that ought to be the date on which the property has to be valued. He relied upon Ex. B.2 which the Land Acquisition Officer himself took into consideration in fixing the value of the required land. Whilst the, Land Acquisition Officer fixed the value at Rs. 6667 per acre, the court below raised the compensation to Rs. 15,000 per acre on two grounds. Firstly, it thought that the date of notification on which the property had to be evaluated should be 17th November 1965, and secondly, the same being two years after the date on which the sale took place under Ex. B-2, and also giving such due weightage to the lapse of time between the date of sale under Ex. B-2, and the date on which, according to the lower court, the property has to be evaluated, it granted a compensation at the rate of Rs. 15,000 per acre. It is as against this the State has preferred the present appeal.

3. Smt. Vimala, learned counsel for the Government, raised three contentions before us. Firstly, she would say that in the absence of any statement by the claimant either in the shape of quantified claim or at least in the nature of a claim setting forth the rate at which the owner sought for compensation and no application in writing having been made under S. 25(2) of the Land Acquisition Act, to show that there was sufficient reason for not making such a claim before the Land Acquisition Officer, the grant of compensation in excess of that awarded by the Land Acquisition Officer is without jurisdiction. Secondly, the contention was that in the absence of anything under the provisions of the Land Acquisition Act, which prompted the Civil Court to call upon the claimant before it to make such a claim for increased compensation and show unjustifiable reasons for not having made such a claim before the Land Acquisition Officer, the court below suo motu ought not to have increased the compensation. Thirdly, it is said that as the above two contentions are matters inextricably connected with the jurisdiction of a Civil Court, it could be raised in this court, even though such a plea either expressly or by necessary implication was taken before the learned Subordinate Judge of Ramanathapuram. Lastly, the contention more or less bordering partly on facts and partly on law is that the lower court was wrong in having evaluated the property as on 17th November, 1965 on the assumption that a notification issued under S. 48(1) of the Land Acquisition Act tantamounts to a fresh notification under S. 4(1) of the Act.

4. On the other hand, Mr. Peter Francis would say that as the lower court granted an excess compensation it shall be reasonably presumed that there was such a request for an increased grant and the formality of a written application for showing such need for an increased compensation before the Land Acquisition Officer ought to be condoned, or in any event, ought to be presumed on the facts and circumstances of the case. Government counsel would, however, say that there is no duty cast on Civil Courts to help a litigant who by his indolence did not conform to law.

5. It is no doubt true that under S. 25(1) of the Land Acquisition Act, the Civil Court has no jurisdiction to grant an amount in excess of the amount granted by the Land Acquisition Officer when a claimant has refused to make a claim or has omitted to give sufficient reasons (to be allowed by the Judge) to make such a claim. On a fair appraisal of the record which as we prefaced earlier, is not full and complete, because of the lapse of time, we are unable to say that the claimant has refused to make a claim in this case. Even the Land Acquisition Officer would record that at the time of the award enquiry, the Executive Officer stated that he would give the details about the compensation after the meeting of the trust board. However, no such claim was made before the Land Acquisition Officer before the passing of the award.

6. The question is whether in the circumstances there has been an omission with sufficient cause to make such a claim. It is pertinent to observe that in the lower court no objection was taken by the Government regarding the enquiry into the grant of excess compensation, in the sense, in excess of the compensation granted by the Land Acquisition Officer. This passive attitude by the State in the lower court at a time when it ought to have objected to an enquiry into the grant of compensation in excess of the amount granted by the Land Acquisition Officer is a pointer to the fact that the Court might have been apprised orally of a request for such enhanced compensation and that the court might have been satisfied that there was sufficient cause or reason for condoning the omission. We are not called upon in this case to answer the contention raised by Smt. Vimala that in all such cases where an increased compensation is asked for, a written application should be made by the claimant and that would be the only process which would qualify a Civil Court to entertain an application for the grant of increased compensation. Whilst there is some force in this contention, we are not inclined to go into it for the reason that neither at the stage when the State Government ought to have acted and pleaded, nor at the time when it came to this court in 1969 with a memorandum of grounds of appeal, the specific objection was taken by the Government that the Civil Court had no jurisdiction to grant a compensation higher than that given by the Land Aquisition Officer, except that there was no written application for condonation of the indolence on the part of the claimant.

7. In fact, Padmanabhan, J. had occasion to consider a similar circumstance while dealing with Ramaswami Reddiar v. Special, Tahsildar, Harijan Welfare, Tindivanam . A.S No. 31 of 1975. d. 9-1-1978. and he accepts generally the equitable principles touched upon by Vaidialingam, J. in State of Kerala v. Ranga Iyengar Veera-Raghava Iyengar (died)2 who said that in the absence of any issue having been framed on this aspect before the Civil Court that aspect cannot be squarely treated as a pure question of law (sic) so long as jurisdiction is vested in the court before whom the reference for enhanced compensation is made to consider the question as to whether even if there had been an omission or refusal to make a claim before the Land Acquisition Officer, (sic) that refusal or omission was without sufficient cause, and a party is given, so to say, an opportunity to satisfy the court that such omission or refusal was for sufficient reason. We are inclined to agree with this and hold that the very fact that the Government did not object to an enquiry into the grant of an increased compensation before the Civil Court is sufficient indicia that the Civil Court was by necessary implication satisfied that the omission to make a claim was with sufficient reasons. We have expressed already that for the purpose of this case, it is not necessary to Speak any more on this legal contention raised by Smt. Vimala.

8. We may also add, however, that as this objection has not been taken in the memorandum of grounds of appeal, we are not inclined to lay greater accent on this objection at this stage but feel satisfied by expressing our view that the Government never intended to oppose the grant of excess compensation if really such a grant was justified on the facts and circumstances of the case.

9. The next point urged, of course, has real force and has to be sustained. S. 48(1) of the Land Acquisition Act is an independent provision which acts on its own without reference to S. 23 of the Land Acquisition Act or any other provision thereunder. Under S. 48(1) the Parliament makes it clear that completion of acquisition as notified is not compulsory and it is left to the discretion of the Government to withdraw from the acquisition of any land of which possession has not been taken. The expression of ‘any land’ obviously means any portion of the land, If, therefore, the Government has the liberty to withdraw from the acquisition any portion of the land which was the subject matter of the notification made originally under S. 4 (1) then it is not open to the claimant to say that the notification issued under S. 48(1) tantamounts to or is equivalent, to a fresh notification issued under S. 4 (1) of the Land Acquisition Act with reference to the left out portion. It is common ground that the totality of the land which was to be compulsorily acquired for the public purpose of providing house sites for Katta Naickers in Rajapalayam was undertaken by the Government and according to the process so put into action, two S. Nos. 288/2 measuring about 14 cents and 289-1-B measuring about 3.01 acres, were to be acquired. Later it was discovered that there was an odai running in the middle of S. No. 288/2, and in consequence a portion of S. No. 289-1-B also could not be fruitfully utilised for the public purpose, and therefore, a notification under S. 48(1) was issued withdrawing from the acquisition S. No. 288/2 and portion of S. No. 289-1-B as both those portions of land were unsuitable for use as house sites because of the presence of an odai running in the middle of those portions. It was in the above circumstances that the extent of land originally notified was reduced by the subsequent issuance of the notification under S. 48 (1). As the power exercisable by the State under S. 48 (1) is independent and not referable to the original power under which it could act, it issued a notification under S. 48 (1) and it cannot be said that an order under S. 48(1), withdrawing a portion of land originally notified as being unfit for a public purpose under S. 4 (1) should be understood and interpreted as a fresh notification under S. 4 (1), and the property revaluated as on the date of the alleged fresh notification. This assumption on the part of the learned Subordinate Judge that the order made on 17th November, 1963 withdrawing a portion of the land from acquisition would amount to re-issuance of a notification under S. 4 (1) is incorrect and has to be set aside. We accept the argument of Smt. Vimala that the withdrawal of a part of the land under orders of the Government under S. 48 (1) would not impinge upon the date on which the lands originally notified under S. 4 (1) of the Act have to be valued under S. 23 of the Act.

10. If, therefore, the land hat to be valued as on 11th November, 1964 only then, what would be the reasonable compensation payable, is the question. We are unable to agree with the court below that a sum of Rs. 15,000 per acre ought to be granted as compensation for the land in question. The lower court rightly rejected Exs. A2 to A7, which were filed by the claimant for the first time before the Civil Court. Exs. A2 to A5 relate to sales of land abutting the trunk road and are to the west of the railway line besides being far away from the acquired lands. Exs. A. 7 and A. 8 lands are in the midst of built up area, and therefore, those sales were rightly not taken by the court below for the purpose of comparing. We are, therefore, again left with Ex. B. 2. We have already referred to the fact that the Land Acquisition Officer noted the sales in S. No. 161/3 in the year 1963. One of such sales related to the hypothesis provided for under Ex. B.2 There were three such sales in the year 1963. The price paid thereunder ranged between Rs. 6667 per acre, as in Ex.B.2 to Rs. 8000 and Rs. 10,888. The average price fetched by these sales amounts to Rs. 8500. The grant of Rs. 15,000, per acre cannot certainly be justified. Having regard to the lapse of time as between August 1963 when the sale under Ex. B.2 took place and November 1964 which is the month of the Notification which ought to be taken for the purpose of evaluation and in the light of the finding of the court below that the prices of land in the locality have been showing a definite upward trend, we fix the value of the acquired land at Rs. 8500 per acre. We have also borne in mind that the land acquired is of an extent of 2.18 acres while the compared lands are much smaller in extent at the time when they were sold. Taking all such factors into consideration, the price for the compulsorily acquired land is reduced to Rs. 8500 per acre and compensation shall be granted on that basis together with the usual solatium and the interest at 4 per cent on the enchanced compensation from the date of taking possession till date of payment. The appeal is, therefore, allowed in part. No costs. As regards the rest of the claim, the appeal is dismissed. No costs.

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The Special Tahsilda... v. Sri Pethavanallur Ma...