V. Sreekantan and Another vs The Revenue Divisional Officer

K. Sampath, J.—The civil revision petition has been filed against the order of the learned Subordinate Judge, Kuzhithuri, dismissing the

application in I.A. No. 381 of 1997 in L.A.O.P. No. 9 of 1997 on his file. The application itself was for the appointment of an Advocate

Commissioner under Order 26, Rule 9 read with Section 151 of the CPC for the purpose of ascertaining the following facts:

(1) Prepare a plan of the acquired land separately showing the areas acquired from the shares of first claimant and the second claimant with

reference to the sketch filed by the claimants in Court and as per the marks made on the requisition body;

(2) Estimate the value of the building bearing door No. 9/35-A and the trees standing on the acquired land from the share of the first claimant;

(3) Estimate the value of the land, building bearing door No. 9/35, the compound wall and other structures falling within the acquired land from the

share of the second claimant;

(4) Estimate the value of land at Kuzhithurai in the open market;

(5) Note whether the acquired land is situated very close to the Kuzhithurai Junction, Devikumari Women''s College, Training School, Banks and

other public offices; and

(6) Note such other matters at the request of the claimants at the spot.

The L.A.O.P. is for enhancement of compensation. The allegations in the affidavit filed in support of the application for the appointment of a

Commissioner are that the Land Acquisition Officer fixed a pitiably inadequate compensation for the land and building acquired from the revision

petitioners, that it is absolutely necessary to appoint a Commissioner to note the advantages and potentiality of the acquired land and its proximity

to the commercial area, educational institutions, public offices and to assess the value of the building with the aid of a building expert.

The respondent/State opposed the application contending that the Land Acquisition Officer correctly fixed the compensation as per the rules

and regulations of the Government after analysing the data land equivalent to the acquired land, that the case is not a civil suit and that it is not

necessary to have the assistance of a Commissioner.

The learned Subordinate Judge dismissed the application holding that the Advocate Commissioner is not competent to fix the value and there is

absolutely no ground to appoint any Advocate Commissioner.

As against the dismissal, the present revision petition has been filed.

Mr. K. Sreekumaran Nair, learned Counsel for the revision petitioners, submitted that the provisions of the CPC are made applicable to

proceedings before the Court by virtue of Section 53 of the Land Acquisition Act (Act I of 1894) and that the application for the appointment of

an Advocate Commissioner ought to have been allowed. Section 53 of the Land Acquisition Act (Act I of 1894). The learned Counsel also relied

on the following decisions in support of his contentions:

(1) K. Krishna Reddy and Others Vs. Special Deputy Collector, Land Acquisition Unit II, Lmd Karimnagar, Andhra Pradesh, and

(2) Satheeshkumar v. Special Tahsildar (L.A.) (2000) 1 K.L.T. 416.

Mr. M. Dhandapani, learned Government Advocate, opposed the stand of the revision petitioners and contended that the Land Acquisition

Officer had analysed all the available evidence such as sale details, documents, nature of land assessment and the village accounts and it is not

possible for an Advocate Commissioner to fix the value, that the lower Court has rightly rejected the application and that no interference is called

for.

Section 53 of the Land Acquisition Act provides that so far as they are not inconsistent with anything contained in the Land Acquisition Act, the

provisions of the CPC shall apply to all proceedings before the Court under the Land Acquisition Act. Section 18 is the provision under which

reference is made to Court. When the person interested does not accept the award, he can make an application in writing to the Collector

requiring the latter to refer the matter for determination by the Court. The objection of the person interested may relate to the measurement of the

land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested.

There is a time limit fixed for applying for reference.

In the statement filed by the revision petitioners, it is set out in detail as to how the value fixed by the Land Acquisition Officer is inadequate. It is

not necessary to refer in extenso to the particulars given in the application for reference. Suffice it to say that the petitioners are thoroughly

dissatisfied with the compensation awarded by the Land Acquisition Officer.

Order 26, Rule 9 is clear that for ascertaining the market value of any property a Commission may be issued.

It has been held in Parameshwari Devi (dead) by L.Rs. etc. Vs. Punjab State Electricity Board and Another, , that,

the burden regarding the market value of land lies on the claimant/land owner and if he fails to discharge the burden and he did not make any effort

in this direction by letting in proper evidence, then he would ultimately suffer.

In fact, the Supreme Court has held that,

it is the duty of the claimant to prove sale deeds by adducing evidence either by vendor or vendee or attesting witness of passing of the

consideration under the sale deed to prove that the sale transactions are genuine transactions between the willing vendor and willing vendee, that

the consideration had in fact been passed under the document duly registered, represent the prevailing market value and also the lands under

acquisition and the lands concerning the sale are similarly situated and possessed of same or similar nature, advantages, etc.

It has been held in K. Krishna Reddy and Others Vs. Special Deputy Collector, Land Acquisition Unit II, Lmd Karimnagar, Andhra Pradesh,

, that,

the award in land acquisition matters must be given without loss of time as with rising inflation, delayed payment might lose all charm and utility of

the compensation.

In that case, Commissioner was indeed appointed to go to the spot and after taking the relevant matters into consideration, give a report regarding

the nature of the land, the location of the land and its value. Thus the appointment of an Advocate Commissioner in references arising u/s 18 of the

Land Acquisition Act is now settled. It is not necessary that such an Advocate Commissioner should be an expert. He can always take the

assistance of experts like Surveyors, Engineers, etc. Appointment of Commissioners will also save the time of the Court, in such matters.

In Satheeshkumar v. Special Tahsildar (L.A.) (2000) 1 K.L.T. 416, it has been held by S. Marimuthu, J. of the Kerala High Court that,

an Advocate Commissioner can be appointed for ascertaining the market value of any property in land acquisition matters and the Court can rightly

act upon the report of such an Advocate Commissioner.

For all the reasons stated above, the order of the lower Court cannot be sustained and the same is set aside and the application filed by the

revision petitioner in I.A. No. 381 of 1997 in L.A.O.R No. 9 of 1997 will stand allowed and an Advocate Commissioner will be appointed by the

lower Court for ascertaining the market value of the property subject matter of the land acquisition proceedings. The civil revision petition is

allowed. The stay petition C.M.P. No. 8504 of 1999 is closed. There will be no order as to costs.