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The State of Madras Vs. Mohamed Mustafa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 228 of 1966
Judge
Reported inAIR1971Mad213
ActsLand Acquisition Act, 1894 - Sections 4(1)
AppellantThe State of Madras
RespondentMohamed Mustafa
Cases ReferredState of Madras v. Balaji Chettiar
Excerpt:
.....to the interested person under the head injurious affection is opposed to law,; held, under the land acquisition act i of of 1894 the court, while determining the amount of compensation tobe awarded for lands acquired under the act, shall take into consideration the market value of he land on the date of the publication of the notification under section 4 and in addition thereto, the court shall in every case award a sum of rs. 15 per centum on such market value in consideration of the compulsory nature of the acquisition. the word market value appears in clause (1) of sub-section (1) of section 23. it again reappears in sub-section (2) of section 23. in sub-section (2) of section 23, the solatium, as it is commonly called is awardable on such market value. the word such in..........the respondent as and towards the market value of the lands acquired under the provisions of the land acquisition act (act 1 of 1894). by a notification under section 4(1) of the act, dated march 7, 1962, an extent of 7 grounds 75 sq. ft. in s. no. 34/3 in the village of puliyur near kodambakkam, was acquired for the construction of a sewage pumping station. the land acquisition officer, after due notice to parties, granted a compensation at the rate of rs. 4,587/- per ground. he also awarded a compensation at the rate of rs. 5/- per tree and there were 39 such trees. in addition thereto, a claim was made before the land acquisition officer on the ground that the unacquired portion of land has been injuriously affected by reason of the acquisition of the acquired land which is a.....
Judgment:
1. In this appeal which is against the judgment and decree of the learned Fourth Assistant Judge of the City Civil Court, Madras, the question relates to the sufficiency of compensation granted to the respondent as and towards the market value of the lands acquired under the provisions of the Land Acquisition Act (Act 1 of 1894). By a notification under Section 4(1) of the Act, dated March 7, 1962, an extent of 7 Grounds 75 sq. ft. in S. No. 34/3 in the village of Puliyur near Kodambakkam, was acquired for the construction of a sewage pumping station. The Land Acquisition Officer, after due notice to parties, granted a compensation at the rate of Rs. 4,587/- per ground. He also awarded a compensation at the rate of Rs. 5/- per tree and there were 39 such trees. In addition thereto, a claim was made before the Land Acquisition Officer on the ground that the unacquired portion of land has been injuriously affected by reason of the acquisition of the acquired land which is a roadside land. The case of the respondent before the Land Acquisition Officer was that the roadside lands were acquired and the balance of his holding has been left out practically as hinderland and it has access only through a passage 56 feet in width and about 200 feet in length, which passage leads on to the interior lands. The Land Acquisition Officer negatived the claim for such injurious affection. On a reference under S. 18 of the Land Acquisition Act, the Court confirmed the award of the Land Acquisition Officer in so far as it related to the market value of the acquired land.

The Court, however, increased the compensation by Rs. 2/- per tree and granted damages under the head of injurious affection, to the tune of Rs. 3,000/-. Whilst granting such damages, the Court also awarded solatium thereon at 15 per cent, evidently under the view that solatium has to be given even in cases where the interested person is granted compensation as and towards damages for injurious affection. The State is the appellant before us and it questions the grant of the solatium in the manner stated above, but has also added in the Memorandum of Grounds of Appeal, an objection to the grant of the additional compensation for trees. The respondent has filed Cross-Objections and he claims that the Court failed to appreciate the real market value of the acquired land and that it ought to have granted a compensation at the rate of Rs. 5,000/- per ground.

2. We may at the outset reject the appeal in so far as it relates to the additional grant made by the Court below for Palmyrah trees as it is not even seriously pressed and there is no evidence to disturb the finding.

3. The next and the most formidable objection raised by the appellant is that the grant of 15 per cent solatium as an annex to the damages awarded to the interested person under the head "injurious affection" is opposed to law. Under the Land Acquisition Act, the Court, while determining the amount of compensation to be awarded for lands acquired under the Act, shall take into consideration the market value of the land at the date of the publication of the notification under S. 4 and in addition thereto, the Court shall in every case award a sum of Rs. 15/- per centum on such market value in consideration of the compulsory nature of the acquisition. The word "market-value" appears in clause (i) of sub-section (1) of S. 23. It again reappears in sub-section (2) of S. 23. In sub-section (2) of S. 23, the solatium, as it is commonly called, is awardable on such market value. The word ''such'' in sub-section (2) of S. 23 has to be given its full weight as it has a special signification. It has reference to the market value determined by the Court under cl. (i) of sub-section (1) of S. 23. The other clauses appearing in sub-section (1) of S. 23 relate to various heads totally unconnected with the market value of the land. For example cl. (iv) of sub-section (1) of S. 23 provides the head of damage which an interested person may sustain at the time of the acquisition and by reason thereof resulting in his other property moveable or immoveable, being injuriously affected.

The Section and Cls. Nos. (iii) and (vi) specifically speak of and provide for, damage resulting from and consequential upon compulsory acquisition. Even cl. (v) is an item which is very much akin to damage, for it provides for the payment of such reasonable expenses to the interested person if he is compelled to change his residence or place of business in consequence of the acquisition. Here again, there is no question of any market value of the land being assessed or touched upon. It therefore follows that it is only in the first clause in sub-section (1) of S. 23, that the words "market value of the land'' appear, and it is to this phrase is interlaced the solatium which is expressly provided for in sub-section (2) of S. 23. It therefore follows that if any damage is awarded by Court under the head of injurious affection within the meaning of cl. (iv) of sub-section (1) of S. 23, then such amount or such damage granted has no relation to the market value of the land and the solatium which is awardable only as a necessary annexure to market value cannot be awarded and annexed to such damage as well. This is what the lower Court has done in the instant case. The learned counsel for the respondent, however, invited our attention to two decisions, one of the Bombay High Court and the other of our Court, and contends that such grant of solatium is sustainable.

In Vakratunda Chintaman Deo v. Special Land Acquisition Officer, Poona, AIR 1960 Bom 232, the Court was concerned with the evaluation of certain benefits which arose from the land, but which belonged to the interested person. While doing so, they emphatically observed that the compensation so reckoned as a substitute for the benefits acquired, tantamounts to the determination of the market value of the property. In that view, solatium also was granted. That is not the case here. The ratio in State of Madras v. Balaji Chettiar, has no application at all, because there the Court was primarily concerned with the vires of Act XXXVII of 1950, whereunder the grant of solatium was abolished. Incidentally, the question which arose before the Division Bench in that case was whether the market value within the meaning of S. 23(1) was integrated with the solatium awardable under S. 23(2). Their Lordships expressed the view that the two are separable. But, the ratio in that case, however does not touch upon the issue before us as to whether the solatium has to be necessarily granted in a case where damages for injurious affection under cl. (iv) of S. 23(1) are granted and whether such a grant is a necessary attribute even in the case of grant of damages. We have already expressed the view that in cases where damages qua damages are awarded, the question of the interested person gaining solatium as if it is a statutory right, does not at all arise. It is only in cases where the Court determines the market value of the land or the benefits or rights arising thereunder, which in fact is only a substitute for the reckoning of market value of the land, then and in only such circumstances solatium gets integrated with it and can be granted under S. 23(2).

4. The appeal, therefore, has to be allowed in part.

5. As regards the memorandum of cross-objections, the learned counsel for the objector states that the Court below ought to have relied upon Ex. C-1 and granted an increased compensation and ought not to have mechanically confirmed the compensation awarded by the Land Acquisition Officer. In this case, only two sale deeds were noticed and they were only pressed before us by either side in support of their respective contentions. Whereas the learned Government Pleader would rely upon Ex. R-16, the cross-objector would place considerable reliance on Ex. C-1. Both are sale deeds relating to sales of developed lands abutting Choolaimedu Road, which in turn abuts the acquired land as well. Under Ex. C-1, a small extent of about half a ground of land was sold, and the ultimate price fetched thereunder was Rs. 7,777/- per ground. Under Ex. R-16, an extent of 1-5/8 grounds of land was sold at the rate of Rs. 4, 923/- per ground. Ex. R-16 relates to a sale which took place about three months before the date of the notification whereas Ex. C-1 relates to a sale, a few days after the notification under S. 4(1). It is no doubt well settled that a post-notification sale ought not to be lightly brushed aside, particularly when the time factor is negligible. It is this aspect that is pressed into service by the learned counsel for the respondent. But, the land sold under Ex. C-1 abuts not only the Choolaimedu Road, but also another road to its east, viz, the Ganga Amman Koil Street. It is a corner plot. Further, the extent conveyed under Ex. C-1 was only about 1200 sq. ft. All these factors taken into consideration, do not prompt us to place sole reliance on Ex. C-1, as it cannot be said to be comparable data for fixation of the just compensation in the instant case. The land covered by Ex. R-16 is a land which abuts Choolaimedu Road and is in a developed locality nearer the acquired land and it fetched a price of Rs. 4,923/-.

It may be noticed that the respondent himself has limited his claim in this appeal to Rs. 5000/- per ground. The Court below, after accepting the oral evidence let in before it, had to deduct a sum of Rs. 336/- per ground as and towards the expenses or charges which are to be incurred for purposes of raising the acquired lands, which were admitted by the respondent's witnesses to be lower in level than the road-side land. The contention of the learned counsel for the respondent is that there is no clinching evidence regarding such low level of the acquired land. We do not agree. R. W. 1, who was examined on the side of the respondent, himself admitted that the acquired land is in a lower level than the Choolaimedu Road. In contrast thereto, the land covered by Ex. R-16 is said to be on a level with the Choolaimedu Road. This being the factual position, the deduction of Rs. 336/- per ground from the totality of the price secured under Ex. R-16, appears to us to be reasonable. The market value as determined by the Court below at Rs. 4,587/- per ground represents the fair market value per ground of the land acquired. The cross-objections, therefore, fail and they are dismissed.

6. In the result, the appeal is allowed in part and the cross-objections are dismissed. But, there will be no order as to costs in either.

7. Appeal partly allowed.


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