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Judgment
A.S. Venkatachalamoorthy, J.—The above appeal has been preferred by the State of Tamilnadu represented by the Special Tahsildar,
Land Acquisition, Nagercoil, being aggrieved by the decree and judgment of the learned Subordinate Judge, Padmanabhapuram dated 28.8.1990
in L.A.O.P. No. 11 of 1985, fixing the market value of the acquired land at Rs. 1,000/- per cent.
An extent of 1.96 acre comprised in survey No. 590/4 in Athur village, Kalkulam Taluk was acquired by the State for providing house sites for
Adi Dravidas. The notification u/s 4(1) of the Land Acquisition Act was published on 7.8.1984. The award enquiry was conducted by the Land
Acquisition Officer in compliance with the provisions of the Land Acquisition Act and all persons interested, participated in that enquiry. The said
Officer, on the basis of the materials available before him, came to the conclusion that the market value of the land can be fixed at Rs. 200/- per
cent. The land owners, being aggrieved by such fixation, sought for reference to the Civil Court u/s 18 of the Land Acquisition Act.
The reference was taken on file by the learned Subordinate Judge, Padmanabhapuram as L.A.O.P. 11 of 1985. Before the reference Court, the
4th Claimant by name Antony T. Moreas was examined to substantiate the case of the land owners. Documentary evidence Exs.A-1 to A-5 were
also filed before the Court. On the side of the revenue, the Land Acquisition Officer by name Gnanaprakasam was examined and two documents
including a sale deed of the year 1983 were marked.
Before the reference Court, the Claimants filed I.A. 100 of 1987 in L.A.O.P. 11 of 1985 under Order 26 Rule 9 of the Code of Civil
Procedure, praying the Court to appoint an Advocate-Commissioner to ascertain the value of the property by local investigation. The reference
Court, by its order dated 22.4.1987, appointed one Jayakumaran Thampi as Commissioner to assess the value of the property as on the date of
Section 4(1) notification. The report filed by the said Commissioner dated 30.10.1987 has also been exhibited before the reference Court. The
reference Court, after considering the oral and documentary evidence, came to the conclusion that the market value of the property can be fixed at
Rs. 1,000/- per cent. The present appeal has been filed by the State represented by the Land Acquisition Officer, questioning the correctness of
the same.
Mr. M.C. Swamy, Special Government Pleader contended before this Court that the reference Court fixed the market value of the land solely
on the basis of the report of the Advocate-Commissioner when the said Commissioner filed the same not on the basis of any document and that
being so, no reliance should have been placed on the said report. According to the learned counsel, the Commissioner should have placed all
materials before the Court on the basis of which he has opined that the market value has to be fixed at the minimum of Rs. 1,500/- per cent.
Drawing the attention of this Court to Ex.B-2, the learned Special Government Pleader contended that under the said document an extent of 41/2
cents comprised in R.S. No. 473 was sold for a sum of Rs. 900/- and that the said survey number is two survey numbers away from the acquired
lands and that both the lands are similar and similarly placed. That being so, the Court should have adopted the value as reflected under Ex.B-2
and fixed the market value at Rs. 200/- per cent.
Mr. T.R. Rajaraman, learned counsel appearing for the land owners would contend that the data land is situated far away from the acquired
land and that being so, the sale transaction under Ex.B-2 cannot be taken into consideration. That apart, it is also contended, while the acquired
land abuts the road, the data land is interior and that apart, nearby the acquired lands, there are important land marks such as Church, School,
Shops, etc., and that the acquired lands are superior in every respect.
With regard to the Commissioner''s report, the learned counsel would contend that the Commissioner has given cogent and convincing reasons to
arrive at the market value at Rs. 1,500/- per cent. Even though copy of the said report was served to the Government through the Government
Pleader in the reference Court, no objection was filed, which should mean that the State has not disputed the correctness of the conclusion arrived
at by the Advocate-Commissioner. The learned counsel would further emphasis that when there are no comparable sale transaction in that area,
there is nothing wrong in the Court relying on the Commissioner''s report, who is an Officer of the Court.
Even though both the parties have let in oral and documentary evidence, we find that ultimately we have the only following evidence, which
would be useful for this Court for deciding the value of the property. They are,
(a) Oral evidence of 4th Claimant,
(b) Oral evidence of the Land Acquisition Officer,
(c) Exs.B-1 and B-2 viz., Topo sketch and sale transaction, which took place on 28.2.1983,
(d) Report of the Commissioner dated 13.10.1987.
The documents Exz.A-1 to A-5 filed by the respondents/land owners which are only patta book and receipts evidencing payment of house tax,
cannot in any way help this Court in arriving at the market value of the property. Ex.B-1 is the topo sketch. With the help of the sketch, we can
notice that the acquired land comprised in S.No.590/4 is on the western side of Valvachagoshtam - Athur Road and it abuts the road. Just north to
it is S.No.608 where admittedly there is a Church and School. Further north of the said survey number, on the other side of the road, i.e, on the
eastern side of the road, is S. No. 473, wherein the data land Ex.B-2 is situated. North of S. No. 473 is S. No. 474, where there is a hospital and
bus terminus. From the topo sketch it is fairly clear that the said School and Church are located somewhat in between these two lands i.e, acquired
land and the land under Ex.B-2. The Land Acquisition Officer has categorically admitted that the acquired land is fit for construction purposes.
Obviously so since the very purpose of the acquisition is to provide house sites to Adi Dravidas. While the respondents/Land Owners would claim
that the acquired land abuts the road and that the land that is subject matter of Ex.B-2 is situated interior, the Official examined on behalf of the
revenue would contend that the distance between the road and Ex.B-2 is only 30 feet. According to him, there are two buildings, in between the
road and the said site in S. No. 473. From the plan also it is clear that the acquired site is somewhat interior from the road. The Land Acquisition
Officer has also admitted that opposite to the acquired lands there are number of houses.
From the above discussion, it is clear that, (a) the acquired land and the land under Ex.B-2 are similar, (b) the acquired land abuts the road,
whereas the land under Ex.B-2 is interior, (c) very close to the land under Ex.B-2 there is hospital and bus terminus, but whereas they are about
three furlongs from the acquired land. So if we consider the above aspects, it could be seen that by and large, both the lands are almost similar and
similarly placed. Of course, the acquired lands have an edge over the other land because they abut the road with wide frontage.
Then the next question is, what is the value to be fixed for the acquired lands, is it by taking the price as reflected in Ex.B-2 the value has to be
fixed or is it that the Court has to take into consideration the Commissioner''s report and fix the market value.
Section 23 of the Land Acquisition Act sets out the matters to be considered in determining the market value. The said section is to the effect
that the market value of the land at the date of the publication of the notification u/s 4, sub-section (1) has to be taken note of for the purpose of
arriving at the market value.
Section 53 of the said Act is to the effect that save in so far as they may be inconsistent with anything contained in the Land Acquisition Act, the
provisions of CPC shall apply to all proceedings before the Court.
Order 26 Rule 9 of the CPC is to the effect that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose
of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual
net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the
Court.
Hence there can be no dispute that a Commissioner can be appointed for estimating the value of the land, etc. (Refer: Hussain Sasan Saheb
Kaladgi Vs. State of Maharashtra, ), (2002) 1 L.W 620 (Sreekantan v. The Revenue Divisional Officer)).
If the Commissioner is appointed only to note the physical features such as the existence of a building, details with regard to standing trees and
location, there is no difficulty for the Commissioner to visit the property in the presence of both parties and file his report. Of course, the parties
can file their objections to the Commissioner''s report. Even without filing objections they can let in evidence contra to the Commissioner''s report
and in which case the Court is expected to examine the Commissioner, who is an Officer of the Court, as a witness so that the parties can cross-
examine the Commissioner so also the Court.
Suppose if the Commissioner is called upon to give the age and value of the building and as to whether the soil is fit for construction purpose, then
obviously he has to seek the assistance of an expert viz., a Civil Engineer. While the Commissioner files his report, he has to file the details of
calculation furnished by the expert. In such case also it will be open to the parties to file their objections. Here again, even if they have not filed
objection, they can let in oral and documentary evidence to substantiate the same and which may be contra to the Commissioner''s and expert''s
report, in which case the Court has to examine the Commissioner and the expert as Court witness. In fact the Supreme Court has ruled that the
report of the expert can be accepted if the same is based on relevant factual data or material and further he should be examined before the Court
The Special Land Acquisition Officer and another etc. etc. Vs. Sri Siddappa Omanna Tumari and others etc., .
In both the above cases, even if the parties fail to file their objections and also examine witnesses to substantiate their stand, the Court is duty
bound to examine the report of the Commissioner and satisfy itself about the correctness and acceptability of the same. It is not as if that the Court
has to accept the report automatically and mechanically on the ground that no objections have been filed to the Commissioner''s report and no
contra evidence has been let in.
When the Commissioner is called upon to value the property, he has to necessarily consider various sale transactions and give his opinion,
which must be in consonance with the recognised method of valuation, by the various decisions of the Court. Along with the report he must also file
certified copies of sale transactions and other documents relied on by him. In such an event, the parties filing objections to the report really may not
arise. The parties can always point out the errors if any even at the time of final arguments. The Commissioner when he submits his report, he must
also furnish the materials on the basis of which he formed his opinion. Both the parties can let in contra evidence and demonstrate before the Court
that the opinion given by the Commissioner is wrong for one reason or the other with regard to the market value of the property. Really in such
case, the necessity of Court examining the Commissioner may not arise always.
There may be yet another situation like the present one, where the Commissioner gives his opinion/report not on the basis of any document,
but only on the basis of his examining some citizens of that area. Then it would be a case wherein he is giving his opinion merely on what he heard
from them. Section 60 of the Indian Evidence Act is to the effect that the oral evidence must be direct. Of course, the Land Acquisition Act, 1984
does not speak about the applicability or otherwise of the provisions of Indian Evidence Act. The Court has to proceed on the basis that the
provisions of the Indian Evidence Act also would apply at least the basic principles, so long they are not inconsistent with the provisions of the
Land Acquisition Act. The other aspect of the matter to be noticed is, the Commissioner has examined some citizens of that locality, who have not
been subjected to any cross examination. When the Supreme Court has ruled in U.P. Jal Nigam, Lucknow through its Chairman and another Vs.
M/s. Kalra Properties (P) Ltd. Lucknow and others, that the valuation register maintained under Indian Stamps Act cannot be the basis for
determining the market value of the land, a serious question would arise as to whether the market value can be decided on the basis of the report
of the Commissioner, which in turn only refers and relies on some opinion expressed by citizens of an area. In our considered view, the answer is
to be only in the negative. We reiterate that simply because parties (in this case the revenue) have not filed any objection to the Commissioner''s
report, the Court should not blindly accept the report. Relevant to point out that when the claim by the respondent itself is at the rate of Rs.1,000/-,
the Commissioner has opined that the value of the property will be minimum of Rs.1,500/- on the relevant date.
Coming to the present case, the Commissioner, while giving his report has examined one Kanagaraj, Panchayat President of Cherukole, Rev.
Fr. Hillary, Parish Priest and four more persons. It is also to be pointed out that the Commissioner has not even recorded their statements and filed
them before Court.
For the foregoing reasons, the report of the Commissioner cannot be relied upon.
As already discussed earlier, the acquired property is similar and similarly situated, when compared with the land under Ex.B-2. One
advantage is, that it abuts the road with wide frontage. Secondly, Section 4(1) notification in this case is one year after the transaction under Ex.B-
2 and during that period certain developmental activities were going on. But the minus factor is that the acquired property is nearly two acres,
whereas the subject matter under Ex.B-2 is only 41/2 cents. We have to strike a balance and do some guess work. Taking into consideration the
facts and circumstances in this case, we are of the view that the market value can be fixed at Rs. 400/- per cent.
In the result, the appeal is allowed in part. The market value of the acquired lands is fixed at Rs. 400/- per cent. Needless to mention that the
respondents/Land owners are entitled to all eligible statutory benefits. No costs.