PART 4 Page 721 To 903
PART 4 Page 721 To 903
PART 4 Page 721 To 903
721 (Mad)]
MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
ADHIKESAVAN ...Petitioner
Versus
KALAVATHI ...Respondent
[C.R.P. (NPD) No. 20 of 2008 and M.P.No. 1 of 2008, decided on 19 February, 2008]
th
Limitation Act, 1963—Section 5—Civil Procedure Code, 1908—Order IX, Rule 13—
Condonation of delay—Ex parte decree—Delay of 460 days in setting aside ex-parte decree
—After receiving summons applicant went out of city for eking his livelihood and suffered
jaundice and took native treatment—In mean time ex parte order passed—Could not file
application for 460—Earlier also case was proceeded ex parte—However in view of facts of
case delay condoned on cost—Trial Court directed to dispose of suit within 4 months.
(Para 8 to 10)
Counsel.—Mr. S. Umapathy, for the petitioner; Mr. V. Meenakshi Sundaram, for the
respondent.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioner is the defendant in O.S.No.36 of 1999
on the file of the Sub-Court, Cheyyar, Thiruvannamalai District.
2. The revision petitioner/applicant/defendant has filed an I.A.No.269 of 2003 in
O.S.No.36 of 1999 under Section 5 of the Limitation Act praying to condone the delay of 460
days in setting aside the ex parte decree dated 11.03.2002. In the application filed by the civil
revision petitioner/applicant in I.A.No.269 of 2003, the applicant has inter alia averred that,
during August Amin from Court giving summons directing him to appear in Court on 05.09.2002
and that the next day, he went to Bangalore for eking his livelihood and he suffered jaundice and
took native treatment and that the said treatment continued and that after meeting his counsel, he
came to know that the matter was posted to 11.02.2002 and thereafter, an ex parte decree was
passed and therefore, he could not file an application in time and there was a delay of 460 days in
filing the application to condone the delay.
3. The respondent/plaintiff in the counter has taken a specific plea that on 11.03.2002, an
ex parte order was passed and till 05.09.2002, the petitioner was in station and there is no
explanation on the side of the civil revision petitioner as to why he could not appear during the
period from 11.03.2002 till 05.09.2002 and therefore, the application is false and not
maintainable in law.
4. The learned Subordinate Judge, Cheyyar has dismissed I.A.No.269 of 2003 without
costs on 24.11.2003 inter alia observing for each and every days delay under Section 5 of the
Limitation Act and explanation has to be furnished and that the reasons assigned by the revision
petitioner/applicant in his application are not acceptable etc.
5. No doubt the revision petitioner/applicant has not produced any evidence to show that
he suffered from jaundice. It transpires that as against the revision petitioner/defendant in
E.P.No.77 of 2002 an order of arrest was issued and the same is pending for long time, as
observed by the learned trial Judge in his order in I.A.No.269 of 2003 dated 24.11.2003.
Furthermore, the learned trial Judge has observed that in I.A.No.269 of 2003 in O.S.No.36 of
1999 for the revision petitioner/applicant’s Advocate Thiru.R.Manivannan has filed Vakalat
and appeared and before that for the civil revision petitioner/applicant already
Thiru.P.Chandran appeared and that the revision petitioner has not obtained said Advocates’
consent and filed new Vakalat and the revision petitioner for every occasion is in the habit of
engaging different counsels with a view to drag on the case. Earlier on 17.07.1996, an ex parte
decree was passed against the revision petitioner/applicant and an I.A.No.204 of 1996 was filed
by the revision petitioner/applicant and by means of an order dated 25.04.1997, the said ex parte
decree dated 17.07.1996 was set aside by the trial Court and again the case was taken up for trial.
Later on the revision petitioner/applicant did not appear on 11.03.2002 and onceagain an ex parte
decree was passed against him.
6. It is to be pointed out that a party does not stand to benefit by not appearing before the
Court and refusing to condone the delay can result in a good case being thrown out at the earliest
stage and cause of justice being defeated. As against this, when delay is condoned, highest that
can happen is that a cause would be decided on merits after hearing the parties. The term “Every
day’s delay should be explained” should not be viewed in a pedantic way, and the approach of the
Court must be in a common pragmatic manner, in the considered opinion of this Court.
7. Furthermore, when substantial justice and technical considerations are pitted against
each other, cause of substantial justice deserves to be preferred for the other side cannot claimed
to have vested right any injustice being done because of a non deliberate delay. As a matter of
fact, a litigant does not stand to benefit by adopting dilatory tactics. On the contrary, he runs a
serious risk it can be said that judiciary is respected not on account of its power to legalize
injustice on technical grounds, but because it is capable of removing injustice and is expected to
do so.
8. As far as the present case is concerned, the reasons assigned by the revision
petitioner/applicant after receipt of summons from the Court Amin, he went to Bangalore for
eking his livelihood and there he suffered jaundice and took treatment etc. Even though or
not, satisfactory and cannot be accepted at the face value yet the factum of non-
production of any evidence for jaundice and not producing the certificate for medical
treatment as to his said illness or treatment affecting the case of the revision petitioner in
entirety. At the same time, one cannot ignore the fact that prior to 11.03.2002, as against the civil
revision petitioner, there was an ex parte decree passed on 17.07.1996 and the same was set aside
on 25.04.1997, in the orders passed in I.A.No.204 of 1996. Therefore, it is evident that the
revision petitioner/applicant/defendant is not efficaciously and diligently conducting the
proceedings before the trial Court.
9. Admittedly, the suit laid by the respondent/plaintiff is for recovery of a sum of
Rs.32,358.25/- based on a pro-note made-over by the Rama Gounder in favour of the plaintiff on
15.05.1994 for due consideration and the said borrowal is stoutly denied by the revision
petitioner/defendant in the written statement for the various reasons assigned therein. Generally,
in a delay condonation matters, a liberal view is to be taken by Courts of law and there is no hard
and fast rule or straight jacket formula in this regard. However, the cost will be the penalty/
compensation. No wonder the length of delay is immaterial.
10. Inasmuch as the substantial justice will have to be meted out to the parties overriding
the technical considerations, this Court having regard to the facts and circumstances of the case,
allows the civil revision petition with a condition that the civil revision petitioner shall remit a
sum of Rs.600/- towards costs to the Tamil Nadu Mediation and Conciliation Centre, Chennai
within a period of two weeks from the date of receipt of a copy of this order and produce the
receipt before the registry failing which, the civil revision petition shall stand dismissed
automatically without any further reference. Since the original suit is of the year 1999, the trial
Court is directed to dispose of the same within a period of four months from the date of receipt of
a copy of this order. In the facts and circumstances of the case, the parties are directed to bear
their own costs. Consequently, connected miscellaneous petition C.M.P.No.13645 of 2004 is
closed.
Revision allowed.
Civil Procedure Code, 1908—Order VII, Rule 11—Rejection of suit for non-
prosecution—Summons suit to applicant but returned with note that defendant had left
address but repeatedly summons were sent to said address—No step taken for 10 years—
After 10 years summons served personally—Defendant applicant sought rejection of plaint
on ground of delay—Held, due to work load of Court case was not taken up by Court for
which plaintiff cannot suffer—Thus, Court below rightly rejected application of
defendant—Petition dismissed.
(Paras 9 to 11)
Case law.—AIR 2004 SC 2093—referred.
Counsel.—Mr. T. Poornam, for the appellant; Mr. R. Arumugham, for the respondent.
JUDGMENT
S.J. MUKHOPADHAYA, J.—This appeal has been preferred by the appellant, M/s. Apollo
Tyres Ltd., who is the 1st defendant in the suit, against order dated 12th June, 2007, passed by
learned Judge in Application No. 2309/06 in C.S. No.1226/93.
The appellant/1st defendant preferred an application under Order VII, Rule 11 read with
Section 151 of the Code of Civil Procedure to dismiss the suit for non-prosecution, but learned
Judge rejected such application.
2. The suit was preferred by the respondent, M/s.Transport Corporation of India,
Madras, for a decree against the 1st defendant to pay the plaintiff a sum of Rs.44,38.576/- with
interest at the rate of 12% p.a., registered as C.S. No.1226/93 in the Original Side of this Court.
Judges summons were sent and number of times returned and having ultimately served on the 1st
defendant in 2006 and on appearance, the 1st defendant filed the aforesaid application under
Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure to dismiss the suit for
non-prosecution.
3. Counsel appearing on behalf of the appellant submitted that the suit was filed on 23rd
July, 1993, specifically showing the address of the 1st defendant as that of registered office, but
the respondent/plaintiff failed to take summons to the registered office inspite of the fact that the
process server returned the summons on number of occasions stating that the 1st defendant could
not be found at the address given in the summons, as the 1st defendant has vacated. In fact,
no step was taken for about 13 years. As there is inordinate, inexplicable and inexcusable delay
of 13 years in prosecuting the suit diligently and grave injustice and prejudice have been caused
to the 1st defendant, the suit should have been dismissed for non-prosecution.
Learned counsel referred to the factual aspect to suggest the manner in which the
plaintiff tried to drag the matter. It was submitted by learned counsel for the appellant that the
plaintiff, while clearly mentioned that the registered office of the 1st defendant is at 6th Floor,
Shanmugam Road, Cochin, Kerala 682032, as also at No.45, Giri Road, Madras-17, from the
perusal of the Court record it will be evident that the summons were sent to its address at No.45,
Giri Road, Madras-17 only. The first summons was returned unserved on 18th November, 1994,
followed by another summons, which were also returned unserved on 23rd January, 1996, 16th
July, 1996 and 11th December, 1996. It was contended that all the time though the summons
were returned with note that the defendant had left the address, but, repeatedly, summons were
sent to the said address. After December, 1996, after about ten years, no step was taken till 13th
February, 2006, when counsel for the plaintiff sought permission for private notice for service on
the 1st defendant, which was ultimately served.
4. The grievance as made on behalf of the appellant is that because of the callous attitude
on the part of the plaintiff, who tried to delay and drag the matter, now the 1st defendant will not
be in a position to trace the documentary evidence and may be in a disadvantageous position to
produce its witnesses, many of the employees as may have left the company in the meantime,
who had knowledge of occurrence of fire as took place in 1993. It was further submitted that the
1st defendant being a company could get the details of the facts and information with regard to
incident alleged to have taken place in 1993 only through its employees posted at Madras, many
of whom may have left by this time. If the summons would have been served as back as in 1993-
94, according to counsel, the appellant could have atleast kept track of the employees, who were
posted on the relevant date at Chennai.
5. Learned counsel appearing on behalf of the respondent/plaintiff submitted that no case
is made out to dismiss the suit under Order VII, Rule 11 or Section 151 of the Code of Civil
Procedure. In fact, none of the clause of Order VII, Rule 11 could be invoked in the present case.
On the other hand, according to counsel for the appellant, if power is not there under Order
VII, Rule 11, the Court has inherent jurisdiction under Section 151 of the Code of Civil
Procedure to notice the delaying attitude of the plaintiff and to dismiss the suit for non-
prosecution. Reliance was placed on Supreme Court decision in Shipping Corporation of
India Ltd. v. Machado Brothers reported in AIR 2004 SC 2093, wherein Supreme Court
explained the inherent power of the Court under Section 151 of the Code of Civil Procedure.
6. We have heard the parties, noticed the record and the judgments as referred to by the
counsel for the parties.
7. Order VII, Rule 11 empowers the Court to reject a plaint under the following
circumstances:—
“11. Rejection of plaint.—The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by
the Court to correct the valuation within a time to be fixed by the Court, fails to
do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be fixed by the Court, fails to
do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9.
Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-papers shall not be extended unless
the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented
by any cause of an exceptional nature from correcting the valuation or
supplying the requisite stamp papers, as the case may be, within the time fixed by
the Court and that refusal to extend such time would cause grave injustice to the
plaintiff.”
The present suit of the respondent being not covered by any of the clause of Order VII,
Rule 11 of the Code of Civil Procedure, there was no occasion for learned Judge to dismiss the
plaint.
8. So far as the inherent power of Court under Section 151 of the Code of Civil Procedure
is concerned, in the case of Shipping Corporation of India Ltd. (supra), the Supreme Court made
the following observation:—
“20. From the above, it is clear that if there is no specific provision which
prohibits the grant of relief sought in an application filed under Section 151 of
the Code, the Courts have all the necessary powers under Section 161, CPC to
make a suitable order to prevent the abuse of the process of Court. Therefore, the
Court exercising the power under Section 151, CPC first has to consider whether
exercise of such power is expressly prohibited by any other provisions of the
Code and if there is no such prohibition then the Court will consider whether
such power should be exercised or not on the basis of facts mentioned in
the application.”
9. In the present case, though there is no express prohibition by any other provisions of the
Act to dismiss the suit for non-prosecution, but the question raise is whether such power should
have been exercised or not on the basis of the facts of the case.
10. It is true that the summons were issued three times between 1994 and 1996, but when
the fourth time the summons returned unserved, it appears that the matter was never placed
before the Court immediately. It is not the case of the appellant/respondent that the case was
listed after 11th December, 1996 and before January, 2006 and the report of the process server
was brought to the notice of the plaintiff or its counsel and inspite of the same, no steps were
taken for fresh summons on the 1st defendant. If about ten years have passed and due to the work
load of the Court the case was not taken up by the Court, as it appears from record, the plaintiff
cannot be held guilty nor can suffer for the same. In this background, if learned Judge refused to
entertain the application as was preferred by the 1st defendant, no interference is called for with
such order.
11. There being no merit, the appeal is dismissed. Consequently, connected miscellaneous
petition is also dismissed. But there shall be no order as to costs.
Appeal dismissed.
Civil Procedure Code, 1908—Order II, Rule 2—Suit to include whole claim—Suit for
recovery of certain amount—No specific pleading was originally made with regard to
present claim in earlier suit—Both transactions appears to have taken place out of same
cause of action—If doubt has been raised and single Judge was of prima facie view that
subsequent suit attracted Order II, Rule 2, this Court not inclined to interfere with finding
—Appeal dismissed. (Paras 7 and 8)
Counsel.—Mr. S. Subbaiah, for the appellant; Mr. M.S. Krishnan, for M/s. Sarvabhauman
Associates, for the respondents.
JUDGMENT
S.J. MUKHOPADHAYA, J.—In these two appeals, the plaintiff/ appellant has
challenged common order dated 5th November, 2004, by which applications for temporary
injunction and for furnishing security were rejected by learned Judge.
2. Plaintiff/appellant has preferred the suit in question, C.S. No.479/03 directing the
defendant/respondent to pay plaintiff a sum of Rs. 30,81,500/- together with further interest on
Rs.20 lakhs at the rate of 18% per annum from the date of plaint till the date of realisation apart
from cost of the suit. In the said suit, O.A. No.619/03 was preferred by plaintiff/appellant for
interim injunction restraining the defendant/ respondent from alienating the property measuring
61 cents situate in No.15, Vadakarai Village, Saidapet Taluk and another application No.2911/03
was also filed by plaintiff/appellant for furnishing security to the tune of Rs.35 lakhs failing
which to attach property measuring 61 cents in No.15, Vadakarai Village, Saidapet Taluk. Both
the applications were rejected by learned single Judge, as stated above.
3. The plaintiff/appellant claimed that the respondent borrowed a sum of Rs.25 lakhs
promising to pay with interest at the rate of 36% per annum within one year from 23rd June,
1998. A deed of undertaking is stated to have been executed by the respondent on the said date,
i.e., 23rd June, 1998. Further sum of Rs.20 lakhs was also borrowed by respondent from him. A
letter of understanding stated to have been executed by respondent in this regard on 31st March,
2000 undertaking that the payment of Rs.20 lakhs would be paid on or before 10th June, 2000.
4. Before the trial Court, the plaintiff/appellant submitted that the respondent was
attempting to alienate the property in favour of other parties and if he is allowed to do so, the
plaintiff cannot enjoy the fruits of the decree as may be passed in the suit. It was further
submitted that the respondent had already transferred most of the properties in the names of the
members of his family with a view to defeat the rights of the plaintiff/applicant and,
therefore, unless interim order is passed, the plaintiff’s right would be defeated.
On the other hand, it was submitted on behalf of the respondent that the plaintiff/applicant
had chosen to file earlier a suit, C.S. No.904/00 before this Court in November, 2000 for recovery
of certain amounts. In the said suit, though the plaintiff/applicant had alleged default of Rs.20
lakhs during June, 2000 due and payable to the plaintiff/applicant, no statement was made with
regard to the present claim of Rs.25 lakhs as made in the suit. No details were furnished in the
said suit and, thereby, the present suit, C.S. No.479/03 itself is not maintainable under Order II,
Rule 2 of the Code of Civil Procedure, the plaintiff/applicant having not obtained leave of the
Court. It was also brought to the notice of the Court that the property in question had already
been mortgaged to Tamil Nadu Mercantile Bank by the respondent in respect of which a civil
suit, O.S. No.55/99 is pending on the file of Sub Court, Madurai.
5. In reply, it was contended on behalf of the plaintiff/applicant that the amount involved
in the suit preferred by Tamil Nadu Mercantile Bank is about Rs.4.5 lakhs only and,
thereby, there is every possibility on the part of the respondent to alienate the property. Learned
single Judge, having noticed the submission and on perusal of the plaint of C.S. No.904/00, came
to a conclusion that the present suit, C.S. No.479/03, prima facie not maintainable in view of
Order II, Rule 2 of the Code of Civil Procedure and that the plaintiff/applicant has come with
clean hands.
6. Similar argument was advanced by learned counsel for the parties before this Court.
We have also noticed the plaint of C.S. No.904/00, present suit, C.S. No.479/03 and C.S.
No.844/03, which has also been preferred by the plaintiff/appellant against the present respondent
claiming Rs.11 lakhs towards compensation for criminal complaint.
7. In the earlier suit, C.S. No.904/00, the parties are same with similar position, appellant
is the plaintiff therein and the respondent is the defendant. Though certain amendment in the
prayer has been made subsequently, it appears that no specific pleading was originally made with
regard to the present claim in the earlier suit. Both the transactions appears to have taken place
out of the same cause of action. In the aforesaid circumstances, if a doubt has been raised and
learned single Judge was of prima facie view that the subsequent suit attracted Order II, Rule 2 of
the Code of Civil Procedure, we are not inclined to interfere with such prima facie finding or to
give a specific finding in this regard at this stage as such issue has to be determined in the suit by
the trial Court.
We have also tried to find out whether a prima facie case is made out on behalf of the
plaintiff/appellant for interim injunction for furnishing security as claimed for in two applications
in question. We are of the view that no such ground has been made atleast before us to grant
temporary injunction or to direct the respondent to furnish security as sought for.
8. There being no merit, both the appeals are dismissed. But there shall be no order as to
costs.
Appeals dismissed.
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960— Section 10 (2)(ii) (a)
—Sub-letting—Eviction—Landlord let out premises to tenant—Tenant sub-let it to his
sister—Concurrent finding recorded against tenant—Hence this revision—Held, from
material on record there is nothing which could show that sub-tenant is in occupation
in building as sub-tenant—Thus finding liable to be interfered with—Petition allowed.
(Paras 8 and 9)
Case law.—1985 (1) MLJ 53; 1984 (1) MLJ 366; 1963 (1) MLJ 125—referred.
Counsel.—Mr. T.S. Sivagnanam, Advocate, for the petitioner; Mr. S.I. Samiullah,
Advocate, for the respondent.
Judgment
A.C. Arumugaperumal Adityan, J.—This revision has been preferred against the
concurrent findings of the learned Rent Controller (XV Judge) Court of Small Causes, Chennai in
R.C.O.P.No.298 of 2006 which was confirmed by the learned Rent Control Appellate Authority
(VIII Judge,) Court of Small Causes, Chennai in R.C.A.No.744 of 2006. The second respondent
in R.C.O.P.No.298 of 2006 is the revision petitioner herein. R.C.O.P.No.298 of 2006 was
filed by one Mohamed Akbar Badsha against one Noorul Islam and Naseema Begum/revision
petitioner herein under Section 10(2)(ii)(a) of Tamil Nadu Buildings (Lease and Rent
Control)Act(hereinafter referred to as “the Act”).
2. According to the landlord/respondent herein, the petition schedule building at Door
No.40/42, Venkatesa Naicken First Street, Mount Road, Chennai-2 was leased out by the
petitioner Mohamed Akbar Badsha to Noorul Islam for rent. It is the case of the petitioner that the
first respondent Noorul Islam had sub-let the said premises to the second respondent Naseema
Begum, who is none other then his own sister. The said petition was resisted by Naseema
Begum/revision petitioner/second respondent in R.C.O.P.No.298 of 2006 on the ground that even
in an earlier petition filed by the landlord Mohamed Akbar Badsha in R.C.O.P.No.501 of 2002
which was filed against her mother Fathima Bi and her son Noorul Islam (first respondent in
R.C.O.P.No.298/2006) for eviction and during the pendency of R.C.O.P.No.501 of 2002, the
mother of Noorul Islam and Naseema Begum viz., Mrs. Fathima Bi died on 7.12.2002 and the
second respondent Mrs. Naseema Begum and Mrs,Haseena were impleaded as legal
representatives of the deceased Fathima Bi in R.C.O.P.No.501 of 2002 and on contest, the said
R.C.O.P.No.501 of 2002 was dismissed. Against the findings in R.C.O.P.No.501 of 2002, an
appeal in R.C.A.No.116 of 2004 was preferred by the landlord Mohamed Akbar Badsha and the
said R.C.A.No.116 of 2004 was also dismissed on 13.11.2007. After the dismissal of the said
R.C.A.No.116 of 2004, the landlord Mohamed Akbar Badsha had filed the present
R.C.O.P.No.298 of 2006 claiming that the first respondent let out the premises to the second
respondent without the permission of the landlord and that he is liable to be evicted under Section
10(2)(ii)(a) of the Act which cannot be sustainable.
3. Before the Rent Controller, the landlord has examined himself as P.W.1 and Exs. P1 to
P4 were marked. The second respondent Naseema Begum had examined herself as R.W.1 and Ex
R1 was marked on her side. After going through the evidence and after hearing the submissions
made by both counsels, the learned Rent Controller has allowed the R.C.O.P. giving two months
time to the tenant to vacate and hand over the vacant possession to the landlord.Aggrieved by the
said order, the second respondent/revision petitioner has preferred an appeal in RCA No.744 of
2006 before the Rent Control Appellate Authority, who had also dismissed the appeal confirming
the order passed in R.C.O.P, which necessitated the second respondent in R.C.O.P.No.298 of
2006 to prefer this revision.
4. The only point to be decided in this revision is that whether the sub-tenancy in favour of
the second respondent by the first respondent Noorul Islam has been proved beyond any doubt.
The learned Rent Controller relying on the evidence of R.W.1 as to the effect that after her
marriage, she went and lived with her husband in her father-in-law’s house and after her mother-
in-law’s death, she came to the petition schedule building, since the first respondent had left
for abroad and his wife had also left for her mother’s house for delivery. She would admit that her
ration card stands for door No.40/42 at Venkatesa Naicken First Street, Second lane, Chennai-2.
The learned Rent Control Appellate Authority relying on the evidence of R.W.1 in
R.C.O.P/revision petitioner herein as to the effect that after the marriage , the revision petitioner
had left for her mother-in-law’s house at Door No.43 and after her demise, she came to the
petition schedule building since the first respondent’s wife had left for her mother’s house for
delivery. Only on the basis of the said piece of evidence as to the fact that the second
respondent is residing in the petition schedule building, both the Courts below have come to a
conclusion that the first respondent viz., Noorul Islam had sub let the premises to the second
respondent Naseema Begum/revision petitioner herein.
5. The learned counsel appearing for the revision petitioner would contend that even in the
earlier R.C.O.P.No.501 of 2002, the second respondent has been impleaded as the legal
representative of Fathima Bi, the first respondent therein as her daughter. Along with her, the first
respondent and other two sisters of the second respondents have also been impleaded as Legal
representatives of the deceased Fathima Bi in R.C.O.P.No.501/2002. R.C.O.P.No.501 /2002 was
also filed by the same landlord Mohamed Akbar Badsha in respect of the same building on the
ground of owner’s occupation. But the said R.C.O.P. was dismissed and an appeal preferred
against the order in R.C.O.P.No.501/2002 under R.C.A.No.116 of 2004 was also dismissed. The
learned counsel has relied on the said Judgment in R.C.O.P.No.501 of 2002 to show that both the
first respondent and the second respondent are the children of the deceased Fathima Bi and
that they are brother and sister respectively.
6. The learned counsel appearing for the respondent relying on a decision reported in
M.V.Swami v. Ameer Basha, 1985 (1) M.L.J. 53, would contend that if it is proved that the person
to whom the premises was let out was not residing there and in his place if it is shown that
another person is living, then the inference will be that the tenant had sub let the premises without
the permission of the landlord and on that score the tenant is liable to be evicted under Section
10(2)(ii)(a) of the Act. The facts of the said case in brief relevant for the purpose of deciding this
revision are that the alleged sub tenant second respondent, according to the landlord therein was
conducting a type-writing institute in the premises let out to the tenant/first respondent. There
was evidence like name board of the type writing Institute coupled with the admission of the
petitioner that the licence for the institute stands in the name of the wife of the second respondent
and the attachment proceedings under Ex.P5 clearly established that the premises let out to the
petitioner was under the occupation of the second respondent herein . So in that case, there was
material to show that the second respondent was running a type writing institute in the premises
which was originally let out to the first respondent. Since the sub-letting has been established by
overwhelming evidence, the learned Judge of this Court has held that the tenant is liable to be
evicted under Section 10(2)(ii)(a) of the Act. Further it is pertinent to note that the second
respondent in that case is no way related to the first respondent/original tenant. But in the case
on hand, the first respondent and the second respondent are own brother and sister
respectively and their mother was Mrs.Fathima Bi, the first respondent in R.C.O.P.No.501 of
2002. It is in evidence that the first respondent/revision petitioner’s brother viz., Noornul Islam is
in abroad and his wife had gone to her mother’s house for delivery. It is not in evidence that the
revision petitioner/second respondent in R.C.O.P.No.298 of 2006 is residing in the petition
schedule building with her husband. Admittedly, her husband’s house is at Door No.43/3,
Venkatesa Naicken First Street, Mount Road, Chennai-2. The petition schedule building is door
No.40/42 in the same Venkatesa Naicken First Street, Mount Road, Chennai-2.
7. The other dictum in Rupalochani Saraswathi Ammal v. Sundaranarayanan, 1984 (1)
M.L.J. 366, relied on by the learned counsel appearing for the respondent is also of no use to the
respondent because there was evidence to show that the building in question was let out to the
tenant for non-residential purpose i.e., to run a x-ray clinic. But the tenant had sub-let the
premises to the third parties for residential purpose. Only on that ground, eviction was
ordered under Section 10(2)(ii)(a) of the Act. But the case on hand, the property was let out to the
first respondent for residential purpose and there was no material to show that the second
respondent, who is none other than the sister of the first respondent is a tenant under the first
respondent and who was put in occupation of the petition schedule building without the
permission of the landlord.
8. The learned counsel appearing for the revision petitioner relying on a decision
reported in V.Venkatarama Chettiar v. M.Duraiswami Mudaliar and Co., by Managing Partner
Rathnavelu Mudaliar, 1963 (1) M.L.J.125, and contended that an order of eviction under sub-
letting shall be passed only if the sub-letting is established beyond any reasonable doubt. The
exact observation in the said Judgment runs as follows:
“It will be seen from the record that on the date when the application for eviction was
filed admittedly the respondent was not the owner of any business premises in Madras
City. It is alleged that he had entered into an agreement for purchasing the building in
which he is now carrying on his business of printer and publisher at the time when he
filed the application for eviction. The date when he filed the application for eviction was
21st November 1960. The date of agreement of purchase was 11th October,1960. The
sale deed was actually obtained on 26th November 1960. The order of eviction was
passed sometime after 26th November 1960. Mr.Venkatarama Iyer’s contention is that
before the Controller could order eviction of a tenant at the instance of a landlord, who
alleged that he did not own any non-residential building of his own in the City of Madras
for carrying on his business, the Controller ought to have been satisfied on the date
when he passed the order of eviction that that condition was continued to be fulfilled
by the petitioner. The point is not covered by any specific provision in the Madras
Buildings (Lease and Rent Control) Act. The section merely speaks of a right of a
landlord to apply for eviction on this ground and in defining this right it merely reads as
though he was entitled to this right provided he did not own a building of his own on the
date when he applied to the Controller for eviction. The requirement as to bona fides,—
Mr.Venkatarama Iyer’s contention was—implied that this condition must continue to
exist right down to the date when the order of eviction was passed.”
Relying on the above said decision, the learned counsel appearing for the revision
petitioner would contend that there is no bona fide on the part of the landlord. The landlord’s
intention is to get possession in one way or other. Having failed in the previous attempt in
R.C.O.P.No.501 of 2002, the landlord has come forward with the R.C.O.P.298 of 2006 with a
frivolous motive. It is a settled law that while exercising the power of revision, this Court
normally will not interfere with concurrent findings of the Courts below. But if it is proved that
the findings of the learned Rent Control Appellate Authority is perverse in nature and not based
on any acceptable evidence then this Court has got every power to interfere with the concurrent
findings too. Since there is no material to show that the revision petitioner is in occupation of
the petition schedule building as a sub tenant, this Court has necessarily to interfere with the
findings of the learned Rent Control Appellate Authority in R.C.A.No.744 of 2006.
9. In fine, this revision petition is allowed and the judgment in R.C.A.No.744 of 2006 on
the file of VIII Judge, Court of Small Causes/Rent Control Appellate Authority, Chennai is
hereby set aside and the R.C.O.P.No.298 of 2006 on the file of XV Judge, Court of Small
Causes/Rent Controller, Chennai is hereby dismissed. The parties are directed to bear their own
costs.
Petition allowed.
4. The gist and kernel of the contention of the appellant/Tamil Nadu State Transport
Corporation as stood exposited from the memorandum of appeal could be set out thus:
The Tribunal fixed the entire responsibility on the driver of the appellant/Tamil Nadu State
Transport Corporation bus, even though on the middle of the Tirunelveli-Tenkasi road the
accident occurred due to the collision of two vehicles viz., the vehicle belonging to the
appellant/Tamil Nadu State Transport Corporation and the lorry belonging to R7. The contention
of the appellant/Tamil Nadu State Transport Corporation is that but for the rash and negligent
driving of the driver of the lorry, the accident would not have happened.
5. The point for consideration is as to whether the drivers of both the vehicles contributed
for the accident or it occurred due to the rash and negligent driving of anyone of the drivers only?
6. On point:
Heard the learned counsel appearing for the appellant as well as the learned counsel
appearing for the respondent Nos.1 to 6/claimants.
7. The learned counsel for the appellant/Tamil Nadu State Transport Corporation by
drawing the attention of this Court to the First Information Report, the rough sketch and the
relevant portion of the judgment of the Tribunal would develop his arguments to the effect that
the Tribunal fell into error in understanding as though the lorry was proceeding in front of the bus
and that the bus dashed the lorry from behind and accordingly in assessing 100% responsibility
on the driver of the appellant/Tamil Nadu State Transport Corporation, even though the fact
remains that the bus was proceeding from east to west and the lorry was proceeding from west to
east in the same road.
8. As such according to the learned counsel for the appellant/Tamil Nadu State Transport
Corporation, this is a case of head on collision even though damage to the lorry was at its rear
portion and the damage to the bus was on its right portion.
9. The learned counsel for the respondent Nos.1 to 6/claimants is having no much say in
the matter in view of the fact that the appellant/Tamil Nadu State Transport Corporation is not
questioning the quantum of compensation awarded by the Tribunal.
10. Ex.P-1 the copy of the First Information Report and Ex.P-5 the copy of the rough
sketch would clearly demonstrate that the accident had occurred only in the way that the learned
counsel for the appellant/ Tamil Nadu State Transport Corporation detailed and delineated supra.
The Tribunal at paragraph No.8 of its judgment misunderstood as though the lorry was
proceeding in front of the bus and at that time alone owing to the rash and negligent driving of the
bus driver, the accident occurred by hitting the lorry from behind. I am of the considered opinion
that the Tribunal simply assumed as though the driver of the bus was at fault because of the
damage was caused to the rear portion of the lorry. In fact, it so happened that the lorry and the
bus were proceeding in opposite directions; and that the accident occurred in the middle of the
said highway. Now it has become the run of the mill proposition that each of the drivers in
such circumstances should be fixed with the responsibility at the rate of 50% and accordingly the
liability of the Tamil Nadu State Transport Corporation on the one side and the owner of the lorry
along with the insurer of the lorry should bear the responsibility.
11. The learned counsel for the appellant/ Tamil Nadu State Transport Corporation
made an extempore submission that the entire award amount was deposited before the Tribunal
and out of that 50% was already withdrawn by the claimants. In such a case, I am of the
considered opinion that the Tamil Nadu State Transport Corporation is entitled to withdraw the
remaining 50% of the award amount, however the eighth respondent Insurance Company is
directed to deposit relating to its liability, 50% of the award amount with necessary accrued
interest within a period of two months.
12. With the above observations, this civil miscellaneous appeal is disposed of. No costs.
Appeal disposed of.
5. The gist and kernel of the grounds of appeal as stood exposited from the memorandum
of appeal could be set out thus:
The Tribunal failed to take into consideration the fact that the deceased lady aged about 40
years old died in unmarried state leaving behind her mother aged about 72 years. Her married
sister and the married sister’s children are not at all to be taken into consideration for assessing
the compensation. Accordingly, the learned counsel for the appellant/Insurance Company prays
for modifying the award.
6. The point for consideration is as to whether the Tribunal awarded ‘just compensation’?
The Point:
7. The learned counsel for the appellant/Insurance Company would submit that the
deceased undoubtedly died as a Hindu and as per the Hindu Succession Act, the mother is the
class I heir/legal representative and in her absence her sister could be treated so; however by no
such imagination the married sister’s children could be taken as legal representatives/
dependants of the deceased lady. I could see considerable force in the submission made by the
learned counsel for the appellant/Insurance Company. However, one fact which I want to
highlight is that even a married sister to some extent could claim compensation towards loss
of social support, however her children can never be considered as persons eligible to claim
compensation because the deceased sister’s children should be looked after by their parents and
not by the deceased lady.
8. The learned counsel for the appellant Insurance Company would correctly submit that
since the deceased lady died in unmarried state, her mother’s age should be taken for choosing
the multiplier. Undoubtedly and indubitably the first respondent/first claimant, the mother of the
deceased was 72 years old as on the date of the death of the deceased lady even as per the version
in the petition. As such, the multiplier 5 would be appropriate.
9. The Tribunal assessed the income of the deceased at Rs.3,000/- (Rupees three thousand
only), which requires no interference as nothing has been highlighted by the appellant/Insurance
Company to modify it. Deducting one-third (1/3) out of Rs. 3,000/- (Rupees three thousand only)
towards the expenditure which the deceased would have incurred for maintaining herself had she
been alive irrespective of the fact whether the deceased led the life of a Bohemian or that of a
Spartan, the monthly dependency would come to Rs.2,000/- (Rupees two thousand only). Hence,
the compensation under the head ‘loss of income’ shall be re-fixed at Rs.1,20,000/- [Rs.2000 x
12 x 5 = Rs.1,20,000/-] (Rupees one lakh and twenty thousand only).
10. Towards loss of love and affection, the respondent Nos.1 and 2/claimant Nos.1 and 2
could be considered and each one of them is entitled to a sum of Rs.10,000/- (Rupees ten
thousand only).
11. Towards funeral expenses a sum of Rs.2,000/- (Rupees two thousand only) was
awarded, which could be enhanced to Rs.5,000/- (Rupees five thousand only).
12. Towards transport expenses no amount was awarded and hence a sum of Rs.5,000/-
(Rupees five thousand only) could be awarded under that count. Accordingly, the compensation
is modified as under:
For loss of income -Rs.1,20,000/-
For loss of love and
affection -Rs. 20,000/-
For funeral expenses -Rs. 5,000/-
For transport expenses -Rs. 5,000/-
Total -Rs.1,50,000/-
13. In the result, this civil miscellaneous appeal is partly allowed and the award of the
Tribunal is reduced from Rs.4,10,000/- (Rupees four lakhs and ten thousand only) to
Rs.1,50,000/- (Rupees one lakh and fifty thousand only) which shall carry interest at the rate of
7.5% as directed by the Tribunal. Out of that Rs.1,50,000/- (Rupees one lakh and fifty thousand
only), the first respondent/first claimant, the mother of the deceased is entitled to a sum of
Rs.1,40,000/- (Rupees one lakh and forty thousand only) and the remaining shall be given to the
second respondent/second claimant, the sister of the deceased. The claim against the other
claimants is dismissed. No costs. Consequently, the connected M.P. is closed.
Appeal partly allowed.
10. In the result, the civil miscellaneous appeal is partly allowed, reducing the total
compensation from Rs.3,03,000/- (Rupees Three Lakhs and Three Thousand only) to
Rs.2,00,000/- (Rupees Two Lakhs only). In other respects, the rest of the award passed is
confirmed. Consequently, connected miscellaneous petitions are closed. No costs.
Appeal partly allowed.
16. The Tribunal awarded 12% interest p.a.; considering the prevailing rate at that
time, the interest awarded is reduced to 9% p.a. in view of the long delay in filing appeal half of
the delay period shall be excluded from calculating interest.
17. In the result, this civil miscellaneous appeal is partly allowed and the award of the
Tribunal is enhanced from Rs.1,10,400/-(Rupees one lakh ten thousand and four hundred only) to
Rs.1,50,400/- (Rupees one lakhs fifty thousand and four hundred only) which shall carry interest
at the rate of 9% from the date of M.C.O.P. till deposit and half of the delay period shall be
excluded from computing the interest. The second appellant/Insurance Company is directed
to pay the award amount and recover it from the owner of the vehicle without initiating any
separate fresh proceedings, but by executing this judgment directly. Proportionately there will be
variation in the allotments in favour of each of the claimants depending upon the variation in the
total compensation awarded herein. No costs.
Appeal allowed.
[2008 (1) T.N.C.J. 863 (Mad) (MB)]
MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
THE SPECIAL TAHSILDHAR,
LAND ACQUISITION, THANJAVUR ...Appellant
Versus
RAJASWARI AND ANOTHER ...Respondents
[A.S.Nos. 116 and 117 of 2008 and M.P. (MD) Nos. 2 and 2 of 2008 in A.S. Nos. 116 and 117 of
2008, decided on 28th February, 2008]
Land Acquisition Act, 1894—Sections 4, 6, 18 and 21— Compensation—
Determination—Vast land acquired for Air Force Station—Normally sample sale deed
should relate to a land in same vicinity and near place where lands are acquired—
Notification published relating to one block of land for setting up Air Force Station—In
such cases taking into account the purpose of acquisition i.e., only one purpose, one of same
type of valuation can be taken up and there need not be any discrimination—Considering
developed area around land of acquisition assessment comes to Rs. 1744/- per cent—Land
required deduction of development charges—Accordingly 53% deducted—Claimant also
entitled to statutory benefit—Appeal disposed off.
(Paras 17, 18, 20 and 24 to 27)
Case law.—1994 (4) SCC 180; Supreme Court Judgments on Land Acquisition (1994-
2004) Vol. II p. 2053; 1996 (9) SCC 640; 2006 (2) LW 102—referred.
Counsel.—Mr. So. Paramasivam, Additional Govt. Pleader, for the appellant; Mr.
Palanisamy and Mr. M.K. Ramakrishnan Senior Panal Counsel for Central Government, for the
respondents 1 and 2 respectively.
JUDGMENT
G. RAJASURIA, J.—These appeals have been filed to get set aside the judgment and decree
passed in L.A.O.P.Nos.594 of 1997 and 136 of 1996 dated 02.03.2007 and 02.04.2007
respectively by the learned Additional District Judge, Fast Track Court No.I, Thanjavur.
2. The facts giving rise to the filing of these batch of appeals would run thus:
The publication of the notifications under Section 4(1) of the Land Acquisition Act were
made as under:
Sl.No. A.S.Nos. R.C.No. Date of 4(1) Notification Award Land Value
No.& Dated Fixed by the
FTC-1, Thanjavur.
(Per Cent)
1 116 of 2008 132/91 09.09.1992 10/94 - 03.10. 1994 Rs.1,000/-
2 117 of 2008 64/91 18.12.1991 11/91 - 18.11.1994 Rs.1,000/-
for acquiring a vast tract of a land for setting up Air Force Station at Thanjavur.
Consequently, necessary steps were taken as per law for acquiring the lands and ultimately, the
relevant awards emerged.
3. Being aggrieved by and dissatisfied with, such passing of awards, quantifying the
compensation various references under Section 18 of the Land Acquisition Act, have been made
to the learned Additional District Judge, Fast Track Court No.I, Thanjavur. Consequently, the
learned Additional District Judge assessed the value of the land and ultimately, enhanced the
compensation to the tune of Rs.1,000/- (Rupees One Thousand only) per cent in
L.A.O.P.Nos.594 of 1997 and 136 of 1996 from the one assessed by the Land Acquisition
Officer.
4. Consequently, the Land Acquisition Officer preferred several appeals before this Court
and this Court vide judgments dated 23.03.2001, in A.S.Nos.519 and 520 of 1999 and in
A.S.Nos.416 to 418 of 1999, confirmed the judgment of the learned Sub-Judge in assessing
the value of the land at Rs.1,176/- per cent ultimately. The Government preferred Special Leave
Petitions vide Nos.24578-24579 of 2004 before the Honourable Apex Court and in that the
Honourable Apex Court passed order as under:
“ ... Mr.N.N.Goswamy, learned senior counsel, appearing on behalf of the petitioner
submitted before us that though he is not in a position to challenge the statements
contained in the impugned judgments of the High Court, which make it apparent that
the judgments and orders were passed on concession or by consent, there are large
number of other cases of acquisition where the quantum awarded by the Reference Court
has been challenged before the High Court. Those matters are still pending before the
High Court and if the same principle of valuation is applied, the petitioner will suffer
great injustice. His contention is that the lands in respect of which cases are still pending
before the High Court are situate far away from the land in respect of which sale-deed
had been produced as Annexure A-9, as an exemplar as well as the lands subject-matter
of the impugned judgments. The law is fairly well settled that the Court must value the
land acquired having regard to its value applying the statutory guidelines. Lands lying
far away from the lands in respect of which sale deed is produced by way of evidence,
cannot have the same value. The value of such lands may be more or less depending
upon their potentiality and location and having regard to other relevant
considerations which the Court has to keep in mind under the provisions of the Land
Acquisition Act.
We appreciate the submission urged on behalf of the petitioner and, therefore, we clarify
that in all matters still pending before the High Court, it will be open to the petitioner to
challenge the Award of the Reference Court of such grounds as it may be advised, and
without anything more, the impugned judgments in these special leave petitions will not
be treated as a precedent.”
5. These appeals pending before this Court were not the subject-matter of the special leave
petition before the Honourable Apex Court. The Government by way of precaution made
representation before the Honourable Apex Court and got direction as aforesaid that what the
High Court decided on the earlier cited judgments need not be followed as precedents for
deciding the present appeals.
6. The learned counsel for the respondents/land owners would submit that the present
appeals cannot be treated as a separate group from that of the appeals decided as per the aforesaid
cited judgments of the High Court and that there should not be any discrimination among the
equals.
7. The perusal of the judgment of the Honourable Apex Court would demonstrate that it is
not a mere decision of the Honourable Apex Court on facts concerning a different type of case,
but specifically in relation to existing appeals now under consideration before this Court, such
directions were issued to the effect that these appeals shall be dealt with independently de hors
the judgments passed by this Court earlier as cited supra. Hence, in such a case, this Court has to
make an independent approach in these appeals.
8. Accordingly, heard both sides.
9. The Land Acquisition Officer preferred appeals on the following main grounds:
The lower Court committed an error in fixing the market value on Sq. ft basis, even
though, the lands acquired are situated at panchayat limit. The land value should not be assessed
on cent basis also. The lower Court relied on sample sale deeds relating to smaller extent of lands
sold for exorbitant price. There is nothing to show that the house plots sold under the sale deeds
were relied on by the claimants. Those sale deeds were not proved by examining the vendor and
the vendee concerning those sale deeds. The Reference Court has not properly made deductions
towards development charges. The charge has not followed the belt system also. A mere reading
of grounds of appeal would clearly demonstrate that the Land Acquisition Officer never adverted
to the fact that the property is situated in a developing area.
10. At this juncture, I would like to highlight that the grounds of appeal are one sided as
they are oblivious to the existing facts and situations which prevailed at the time of the Land
Acquisition in this case and the fact that the large mass of land was acquired en block for setting
up Air Force Station.
11. The gist and kernel of the earlier approach by this Court was to the effect that the Court
took into account Ex.C.14, the sale deed dated 01.03.1991 executed by one Balusamy in favour of
Dhanalakshmi, in R.S.No.168/8 tranferring an extent of 2,400 sq.ft as a plot for a sum of
Rs.10,800/- (Rupees Ten Thousand and Eight Hundred only). In other words as per Ex.C.14, the
land to an extent of one cent was valued at Rs.1,960/- and out of that 40% was deducted towards
development charges and the land value was arrived at Rs.1,176/- per cent and consequently, the
awards were passed with usual statutory entitlements.
12. The topo sketch relating to the entire land concerned marked in different colours, was
relied on by both sides to highlight the location and other features. In fact, Ex.C-14, which was
taken as a basic document for assessing the value and passing the award, is situated in
S.No.168 just some what nearer to the Thanjavur - Pudukkottai State Public Highway. The said
Ex.C-14, is obviously dated 01.03.1991 whereas in the same year, Section 4(1) notifications were
made as aforesaid. As such, there is some force in the contention of the learned Government
Pleader that Ex.C-14 might have been emerged for such smaller extent purely for the purpose of
getting higher compensation.
13. Furthermore, I am of the view that Ex.C-14 is referred to a smaller extent referring as
plot, but the area intended to be acquired is a vast piece of agricultural land for Air Force Station
at Thanjavur. Hence, in such a case, the normal rule is that when a sale deed referring to a similar
extent of plot is taken as sample one with regard to the vast agricultural land, some reduction
should be made from that sample value. Since there is weighty objections put forth on the
Government side as against Ex.C-14, I am of the considered opinion that Ex.C-13, the sale deed
dated 13.03.1989 which emerged almost two years anterior to such Section 4(1) notifications,
could be relied on. Keeping these factors in mind, on scrutiny of records, it is found that among
the documents already marked, Ex.C-13 dated 13.03.1989 appears to be a document which
would be beyond controversy for the reason that it emerged almost two years anterior to Section
4(1) notifications. Hence, on the side of the Government, there cannot be any objection to it as
though it is a cooked up document for getting higher compensation.
14. Ex.C-13, relates to the sale of a plot of 2,400 sq. feet for a sum of Rs.9,600/- so to say,
at the rate of Rs.4/- per sq.ft in the S.No.168/1 which forms part of the vast land acquired and
accordingly, if worked out as per Ex.C-13, the value per cent of land would come to Rs.1,744/-
(Rupees One Thousand Seven Hundred and Forty-four only). As such two years had elapsed after
the emergence of Ex.C-13 and then only, Section 4(1) notifications emerged. It is therefore
clear that during the year 1991, the value of the land in all probabilities might have got escalated.
A mere perusal of the sketch and the relevant available records speaks that it is a fast developing
area. Considering the purpose of acquisition for setting up the Air Force Station, having the entire
land as the one block, there need not be any discrimination relating to the various portions of the
same one block of land. It is also evident and obvious that the land acquired had the potentiality
of becoming plots as the sample sale deeds filed on the side of the claimants itself would
demonstrate the same. The fact also remains that Tamil University is already existing in the
vicinity and the National Highway namely Thanjavur – Pudukkottai road is cutting across the
huge mass of land acquired by the Government under these land acquisition proceedings.
15. The Sub-Court in its common judgment relied on the earlier judgment of this Court
dated 23.03.2001, in A.S.Nos.519 and 520 of 1999, in fixing the value at Rs.1,17,000/- per acre
in connection with the appeals filed by some land owners relating to the same area which
happened to be the subject matter of one and the same set of notification.
16. The Sub-Court relied on Ex.C-3, the copy of the judgment of this Court dated
23.03.2001. De hors that, independently the Sub-Court also gave its finding that the land
acquired is in a developing area as the State Highway is running across the said land; Tamil
University is situated very near to it and the Tamil Nadu Paddy Research Institute are all
situated. This Court in the judgment dated 23.03.2001, in A.S.Nos.519 and 520 of 1999, at
paragraph No.7 held as under:
“7. It is evident from a perusal of the records that Tamil University, Paddy
Processing Research Centre, Thanjavur Textiles, Tantex, Kamala Subramaniam
Matriculation School and the present Air Force Station, apart from other
residential areas are very nearer to the acquired lands which situate in the main
road referred to above. The said facts would lead to conclude that there is
potentiality for the acquired lands from the claimants, by the Government of
Tamil Nadu. The market value has to be arrived at not only taking into
consideration of the potentiality of the land but also the purpose for which the
said lands were acquired. As already pointed out, the piece of land sold under
Ex.A.9 dated 01.03.1991 had fetched Rs.4.50 per square foot.”
17. The Land Acquisition Officer also in the counter filed before the Sub Court would
state that the aforesaid Institutions along with Matriculation Schools and Industrial Workers
Quarters are all situated about 2 - 3 Kms away from the land acquired and that the land acquired
is situated 5 Kms from the Thanjavur Municipal area. Even assuming for argument sake, what
the Land Acquisition Officer has stated is true, a distinction is sought to be made by the Land
Acquisition Officer relating to the land acquired from the developed area cannot be treated
as adverse factors. The land acquired is a vast tract of land and in such a case, the developed
areas which are allegedly 2 - 3 Kms away from the land acquired, cannot be taken as adverse
factors. Thanjavur Municipality is situated with 5 Kms and that should be taken as a plus point in
favour of the appellant and not an adverse one.
18. The Sub-Court as well as the High Court clearly and categorically pointed out that the
sample deeds relied on by the Land Acquisition Officer for assessing the market value are having
no proximity to the land acquired and that the fixation of Rs.220/- per cent was totally without
any basis. The alleged thirty sample sale deeds which emerged within three years anterior to
Section 4(1) notifications, as per the findings of the Sub-Court as well as the High Court
were not reflecting the true market value. Those thirty sale deeds as per the earlier findings
were ignored. Even during arguments before me, on the Government side, it has not been
shown as to how the value arrived at by the Land Acquisition Officer was in order and that too
ignoring the sale deeds relied on by the claimants. As such, the increase in the value of land
would have been more during the year, 1991 from that of the year, 1989 to which Ex.C-13
relates. Robust common sense warrants to take the value for smaller extent in the year, 1989, as
to yardstick for assessing larger extent in the year, 1991 in the same vicinity. If in the year, 1989,
the yardstick must be lesser than what is contemplated in Ex.C-13 for assessing larger extent, but
for choosing the yardstick in the year, 1991, for larger extent, no lesser amount need be taken in
view of increase in value of smaller extent. As such, accordingly if worked out, per cent it
comes to the same value of Rs.1,744/- for assessing the larger extent in the year, 1991 during
which Section 4(1) notifications were published.
19. Both sides are not in a position to point out that there are other sale deeds in the same
vicinity which would reflect the true market value of the land before the publication of Section
4(1) notifications. Even though there is larger extent of land situated to the east of the said Public
Highway, clinching documents are not available and documents relating to S.No.168 situated to
the west side of the road alone are available and among those documents, Ex.C-13 is chosen,
whereas earlier Ex.C-14, was chosen by this Court while delivering judgments as aforesaid and
that turned out to be no more precedent in view of the direction of the Honourable Apex Court as
set out supra.
20. This Court is fully aware of the fact that normally sample sale deed should relate to a
land in the same vicinity and near the place where the lands are acquired. Here, all the aforesaid
notifications were published relating to one block of land for setting up Air Force Station
and in such a case, taking into account the purposes of acquisition, i.e., only one purpose, one of
the same type of valuation can be taken up and there need not be any discrimination. In fact, the
land in S.No.168 forms part of the aforesaid Section 4(1) notifications. Hence, in such a big mass
of land, when the area covered under the sample sale deed Ex.C-13 has also been acquired as part
of the larger area, then there cannot be any plausible objection.
21. In this connection, the learned counsel for the claimants would cite the decision of the
Honourable Apex Court in K. Periasami v. Sub Tehsildar (Land Acquisition) reported in (1994) 4
SCC 180 and develop his argument to the effect that there should not be any discrimination in
awarding the compensation between two Benches of the same High Court. Such an argument
cannot be countenanced in view of the order of the Honourable Apex Court in Special Leave
Petition Nos.24578-24579 of 2004, referred to supra.
22. The learned Counsel for the claimants could cite the decision of the Honourable Apex
Court in Smt. Lila Ghosh (dead) through LRs. v. The State of West Bengal reported in Supreme
Court Judgments on Land Acquisition (1994-2004) Volume II page No.2053. An excerpt from it,
would run thus:
“5. We are of the opinion that this was not a fit case for application of the belting
method. The acquisition was of land on which a film studio stood. The
acquisition was for the purposes of the film studio. It was a compact block of
land which was acquired for a specific purposes. The land was not acquired for
development into small plots where the value of plots near the road would have a
higher value whilst those further away from may have a compact blocks is
acquired the belting method would not be the correct method.”
As such, it is clear that the aforesaid observations made by the Honourable Apex Court is
squarely applicable to this case also.
23. The catena of decisions relating to the compensation in land acquisition cases would
mandate that the sales relating to small pieces of lands, if they are genuine and reliable and
comparable to the land acquired, the same could be relied on. In this regard, the decision of
the Honourable Apex Court in Basavva v. Spl. Land Acquisition Officer reported in (1996) 9
SCC 640, could rightly be relied on as cited by the learned counsel for the claimants. An excerpt
from it, would run thus:
“3. Having given our consideration, the question that arises for consideration is
whether the High Court has committed any error of law in fixing the
compensation at the rate of Rs.56,000/- per acre? On the principle of deductions
in the determination of the compensation, this Court in K.Vasundara Devi v.
Revenue Divisional Officer, LAO, (1995) 5 SCC 426, has considered the entire
case law and has held that the Court, in the first instance, has to consider
whether sales relating to smaller pieces of lands are genuine and reliable and
whether they are in respect of comparable lands. In the event the Court finds that
such sales are genuine and reliable and the lands have comparable features,
sufficient deduction should be made to arrive at the just and fair market value of
large tracts of land. The time-lag for real development and the waiting period for
development are also relevant consideration for determination of just and
adequate compensation. Each case depends upon its own facts. For deduction of
development charges, the nature of the development, conditions and nature of
land, the land required to be set apart under the building rules for roads,
sewerage, electricity, parks, water etc. and all other relevant circumstances
involved are to be considered. In this case, the facts recorded by the High Court
are that Ex.P-10 sale deed is dependable sale but it is in respect of a small plot of
land situated at a distance of more than 1 Km. It is also found that the land in the
area is not developed and there is no development in those lands though the lands
are capable of being used for non-agricultural purpose. On those findings the
High Court held that the market value under Ex.P-10 cannot form the sole basis
but keeping in view the developments the lands are capable of fetching
compensation at the rate of Rs.56,000 after deducting 65%. For developmental
charges, that deduction between 33-1/3 to 53% was held to be valid by this Court
in several judgments. In Vasundara Devi case 63% deduction was upheld. In
view of the fact that development of land would have taken years, the High Court
has deducted another 12%. Obviously, the High Court kept in view the fact that
the lands under Ex.P-10 were situated at far-flung places from the lands under
acquisition and since the land takes long time for development it has given
additional deduction of 12%, i.e. 53 + 12% = 65% in determination of the
compensation. On the basis of the rationale referred to above, the principle
adopted by the High Court cannot be said to be illegal. Thus considered, we hold
that there is no justification for interference in the finding recorded by the High
Court or to further increase the compensation.”
24. Relating to the deduction is concerned, previously 40% was deducted towards the
developmental charges. While the Court exercising the power to effect deduction towards
development expenditure, it should take into account the purpose for which the land is being
acquired and it has become a trite proposition of law over which there is no controversy. For
setting up the Air Force Station, the ground should be levelled and the major part of the area
should be cemented and various other amenities should be installed before putting that land
into use as Air Force Station.
25. Hence, in this view of the matter, adhering to the decision of the Honourable Apex
Court in Basavva v. Spl. Land Acquisition Officer reported in (1996) 9 SCC 640, I am of the
considered opinion that 53% should be deducted from the value of the land arrived at Rs.1,744/-
per cent. As such, the following formula emerges:
The value of the
land acquired - Rs.1,744.00 per cent
(-)
53% deduction towards
development charges - Rs. 924.32 per cent
The net value of the land
for awarding compensation - Rs. 819.68 per cent
26. Accordingly, the net value of the land for awarding compensation after deducting 53%
towards developmental charges, is arrived at Rs.819.68/- per cent which could be rounded to
Rs.820/- per cent (Rupees Eight Hundred and Twenty only). Accordingly, if worked out, the net
value of the land per acre would come to Rs.82,000/- (Rupees Eighty-two Thousand only).
27. The claimants are also entitled to statutory entitlements over which there is no dispute.
For the enhanced amount in the award, the claimants are entitled to get solatium as well as
interest on the additional amount.
28. The learned counsel for the claimants cited the decision of the Division Bench of this
Court in Sub-Collector, Padmanabhapuram v. R.S. Raveendran reported in 2006 (2) LW 102 and
an excerpt from it, would run thus:
“10. It is also relevant to note that Section 53 of the Land Acquisition Act, 1894
makes it clear that the provisions of Code of Civil Procedure, 1908 are
applicable to all proceedings initiated under the said Act (Land Acquisition
Act). In view of the same, it is not in dispute that Order XLI, Rule 33, C.P.C. is
applicable to the land acquisition proceedings. Inasmuch as the appeal is also
continuation of the original proceedings, the said provisions are applicable
to the appeals also and in view of the law laid down by the Apex Court as well as
this Court in Sunder v. Union of India, interest is payable for the solatium
amount, and in order to render substantial justice, we accept the request of the
counsel for respondents/claimants and hold that the solatium amount also carries
interest at the same rate as applicable to the enhanced compensation and
additional amount.”
29. As such, adhering to the aforesaid decision, the claimants are entitled to appropriate
interest on the solatium as well as the additional amount awarded. Accordingly, these appeals are
disposed off by this common judgment. The Government shall deposit the amount in the
interest of both sides within a period of six months from this date. No costs. Consequently,
connected miscellaneous petitions are closed.
Appeals disposed off.
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