IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
08. 10.2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.No.92 of 2002 C.M.P No.10383 of 2002 The Land Acquisition and Special Tahsildar. (Adi Dravidar Welfare) Housing Scheme, Dharmapuri. ... Appellant Vs Kannammal, W/o. T.P. Govindasamy, 8, Chattram Nel Street, Dharmapuri. ... Claimant PRAYER:- This appeal has been preferred by the appellant/respondent under Section 54 of the Land Acquisition Act, against the award dated 23.04.1999 in LAOP No.86/89 on the file of Sub Court, Dharmapuri. For appellant : Mr. V. Ravi Additional Government Pleader (A.S) For respondent : No Appearance.
For the purpose of providing house sites to Arunthathiars and Adi Dravidars of Dharmapuri town and village, Dharmapuri Taluk and Dharmapuri District and extent of land measuring the 5 acres and 14 cents situated in the village of Vellagoundampalayam in the Taluk of Dharmapuri in the registration Sub-District of Dharmapuri, in the district of Dharmapuri registered in the name of or occupied by the persons mentioned in the award No.1/85-86 dated 25.11.1985 were acquired after the issuance of notification under Section 4(1) of the Land Acquisition Act.
2. The Arunthathiars and Adidravidars of Seshaneri, Narassiyarkulam, Ambedhkar Colony and Madhikonpalayam of Dharmapuri town are residing in Survey No.256/4 and 279/01 of Vellagoundampalayam village. There are 98 surplus schedule caste families (Adidravidars 71 families and Arunthathiars 27 families) have to be provided with separate house site as they are leaving in great congestion, for which an extent of 5.14 acres of land has been required the details of which run as follows: A.C. 1.House site at the rate of 0.03 acre each to 2.94 98-Schedule Caste Families. 2.For streets 50% of column 1. (There is already 0.96 a pathway the extent of which is 0.61 cents) 3.For communal purpose 25% of column. 1 0.73 4.For reservation 10% of col. 1=2+3 0.51 ----- Total 5.14 acres ----- 3. The lands have been selected for acquisition since no poramboke land have been available at the disposal of the Government and hence, the under mentioned lands have been selected for acquisition. S.No.Classification Total Extent Extent Acquired 570/2A Govt. dry 2.58 acres 2.32 acres 571/2 -do- 1.82 acres 1.57 acres 572/1A -do- 0.87 acres 0.87 acres 572/2A -do- 0.38 acres 0.38 acres ------------ Total 5.14 acres ------------ 4. The aforesaid lands have been found suitable for the formation of colony to Arunthathiars and Adidravidars and as a matter of fact these lands are close to the existing Arunthathiars colony.
5. The compensation allowed for the aforesaid lands has been determined at Rs.3,09,928.10/-, as seen in the award No.1/85-86 dated 25.11.1985. Out of the total extent of 1.82 acres in Survey No.571which stands registered jointly in the names of (1) Nagaraja Chetty (2) Kaliappa Gounder (3) Maariammal (4)T.C.Chinasamy (5) M.Gawri, the same has been sub-divided as survey nos. 571/1 and 2 and an extent of 1.57 acres in survey no 571/2 has been acquired. As seen from the award it is mentioned that the Pattadar Kaliappa Gounder has expired and G.Maariammal and kannammal have appeared in the award enquiry and others have not appeared for enquiry though notices have been served on them and therefore it has been construed that they have no interest over this land. As a matter of fact Maariammal has stated that he is entitled to an extent of 0.49 acres out of the total extent of 1.57 acres under acquisition and that it is her self acquired property and has requested to make payment of compensation to her in respect of the said 0.49 acres and she has been willing to receive the compensation determined for these lands viz., a sum of Rs.28,7775.20/- under protest. The major sons of Maariammal namely, Chinnakolandai, Gopal and D.K.Ranganathan has consented disbursement of compensation due to the aforesaid land to their mother Maariammal.
6. The present appeal A.S.No.92/02 relates to the land in survey No.571/2 measuring an extend of 1.08 acres purchased by Kannammal wife of D.P. Govindasamy. The said Kannammal has appeared in the award enquiry and has stated that she has been enjoying an extent of 1.08 acres in survey no.571/2 which has been purchased by her from Nagaraja Chetty as per sale deed dated 23.03.1980 and further separate patta has also been issued in her name by Special Tahsildar, updating the registry Dharmapuri in patta no.101 dated 24.11.1984 and she is willing to receive the compensation amount of Rs.63,422.90/- determined for these land under protest and her husband Govindasamy has also consented for making payment of the compensation amount to her.
7. In the instant case Notification as per Section 4(1) of the Land Acquisition Act has been approved in G.O.Ms.No.237 S.W.D. Dated 6.2.85 published at page No.3 and 4 of the part II Section 2 (issue No.37) of Extra ordinary issue of Tamil Nadu Government gazette of 06.02.1985. The same has also been published in para 18 of Tamil Edition and Dina Thanthi dated 08.02.1985 and in English at page 11 of Indian Express newspaper dated 11.02.1985. The substance of the notification has also been published for the village on 09.02.1985 and errata has been proposed in this office Roc.1692/83(A) dated 08.02.1985 which has been approved by the Government in the letter No.143854/ADW VIII/85-1 dated 25.02.1985 and the same has been published at page 5 of Tamil Nadu Government gazette Part II Sec II dated 13.03.1985. The notices in Form-3 (the notice under Section 4(1) of the Land Acquisition Act I of 1894) and in form 3A under Section 55(1) of the Act have been issued, served and published on the land owners as per rules. The enquiry as per Section 5A of the Land Acquisition Act has been conducted on 02.03.1985 at 11.00 A.M. In the office of the Special Tahsildar (Adi dravidar Welfare), Dharmapuri. At the time of enquiry the land owners who has taken part in the enquiry have reportedly consented to part with their lands under acquisition. The other land owners who have not attended the Section 5A enquiry have not filed any objection petitions or raised any objections through anyone. The draft declaration notification under Section 6 of the Land Acqusition Act has been approved in G.O.Ms.No.1682 AWD dated 16.08.1985 and published at page No.26, supplement to part II Section 2 of the Tamil Nadu Government Gazette dated 28.08.1985. The notification as per Section 6 Land Acquisition Act has been published at page 2 of 'Dhina thanthi' in Tamil on 18.09.1985, as well as at page no.23 of 'The Hindu' in English dated 18.09.1985. The substance of the notification has been published in the locality on 18.09.1985 etc., and the award enquiry has been conducted on 25.11.1985 at 03.00 P.M. In the office of Tahsildar (Adi dravidar) Dharmapuri.
8. The land acquisition officer has determined the compensation in survey no.571/2 for 1.08 acres at Rs.45,173/- per acre amounting to Rs.48,786.84/- and has granted 30% solatium amount of Rs.14,636.05/-, thus awarding a total sum of Rs.63,422.90/-. The land owner Kannammal has been dissatisfied with the compensation determined by the Land Acquisition Officer and has received the compensation under protest and requested for enhancement of compensation and therefore as per Section 18 of the Land Acquisition Act a reference has been made to the Tribunalnamely Sub-Court Krishnagiri.
9. The Tribunal in its award in LAOP No.86/89 dated 23.04.1999 after carefully analysing the oral and documentary evidences adduced on respective sides has enhanced to fix the compensation at Rs.1,97,588/- and has granted 30% solatium amount of Rs.59,276/- and in all has awarded a sum of Rs.2,56,864/- to the claimant. Further, the tribunal has directed to deduct a sum of Rs.63,422.90/- which has been already received under protest and the balance amount of Rs.1,93,441.10/- has been ordered to be paid to the claimant with 9% interest for one year from 06.01.1986 being the date of taking possession of the land and also granted subsequent interest at the rate of 15% per annum till the date of deposit and the amount has been directed to be paid by the appellant/respondent within three months. Added further, the tribunal has ordered to deduct a sum of Rs.7.50/- being the Court process fee from and out of the award amount.
10. The point that arises for consideration in this appeal is whether the award passed by the Tribunalin LAOP No.86/89 is liable to be set aside for the reasons assigned for the memorandum of appeal ?.
11. This Court has heard the arguments of the learned Additional Government Pleader (A.S) appearing for the appellant/Land Acquisition Officer and perused the available materials on record.
12. At this juncture, this Court pertinently points out before the Tribunal that a common award has been passed in LAOP No.80/89 to 87/89 on 23.04.1999. Evidence has been recorded in LAOP No.80/89 wherein witnesses CW1 to CW3 have been examined and Exs.C1 to C4 and Exs.R1 to R3 have been marked. On the side of appellant/Land Acquisition Officer no one has been examined as a witness. Discussions, Contentions and Findings:
13. The learned Additional Government Pleader (A.S) for the appellant/Land Acquisition Officer urges before this Court that the Tribunalhas committed an error in increasing the market value of the land exorbitantly from Rs.45,173/- per acre to Rs.6 per sq. ft. in disregard to the procedures prescribed under the Land Acquisition Act and further the Tribunal has not taken note of the fact that the acquired lands are undeveloped ones at the time of publication of Section 4(1) notification and fixed at Rs.6 per sq. ft. in an arbitrary and excessive fashion and added further, it has placed reliance on Ex.A1 sale deed dated 18.06.1984 which is a small extent of land sold for a fancy price and also the Tribunal instead of deducting 40% to 65% towards development charges has deducted only 50% on a small extent of land and in any event the reasons assigned by the Tribunal for enhancing the compensation are arbitrary, unreasonable, excessive and unsustainable in the eye of law and therefore, prays for allowing the present appeal in the interest of justice.
14. In Ex.R1, award proceedings dated 25.11.1985 passed by the Land Acquisition Officer, Dharmapuri in page 6, it is inter-alia mentioned that Nagarajan son of D.H.Sidhaveerappa Chettiyar has appeared for award enquiry and has stated that he has given 1.08 acres land to Kannammal (claimant) for a consideration of Rs.6,200/- as per document dated 28.03.1980 subject to the condition that she should resale the property when the amount of Rs.6,200/- is paid to her and therefore has requested that out of the compensation to be paid for the land, a sum of Rs.6,200/- alone should be paid to Kannammal and the balance amount should be paid to him only and he has objected to the payment of the entire amount to Kannammal and hence the compensation due for an extent of 1.08 acres shall be deposited into Court as per Section 31(2) and a reference under Section 30 of the Land Acquisition Act shall be made to the Court. However, a reference has been made under Section 18(1) of the Land Acquisition Act in respect of survey no.571/2 measuring an extent of 1.08 acres mentioning that Kannammal (claimant) is the person interested in the matter in issue and the Special Tahsildar (A.W.) Dharmapuri has specifically assigned the reason for reference that the land owner Kannammal has agreed to receive the compensation under protest and therefore a reference under Section 18 of the Land AcquisitionAct has been made to the Sub-Court Krishnagiri.
15. Be that as it may, it is the evidence of CW1 (claimant in LAOP8389) that his land of 16 cents in Vellagoundampalayam village bearing survey No.570/1A has been acquired for the purpose of Arunthathiars colony in the year 1985 by the appellant. Other claimants lands have been acquired in LAOP No.80/89,81/89,82/89, 84/89, 85/89,86/89, 87/89 and per acre a compensation has been determined at Rs.45,000/- and they have received the compensation amount under protest and in the year 1965 the Dharmapuri District has been separated and in 20 years there has been marked development in the city of Dharmapuri and therefore, they pray for a compensation to be fixed at the rate of Rs.5 lakhs per acre and as per Ex.C1 sale deed dated 18.06.1984 one, Rajan has sold in survey No.542/1A an extent of 2,120 sq. ft. at the rate of Rs.6.13 per sq. ft and he has sold for Rs.13 per sq. ft. and he has sold for Rs.13,000/- and in Ex.C2 sale deed dated 31.10.1983 one, Rangaswami Chettiyar @ Dhanashekaran has sold to one K.Gopal an extent of 1000 sq.ft. in survey no.529 for Rs.9,500/- at the rate of Rs.9.50 per sq.ft. and Ex.C3 is the sale deed dated 06.05.1982 executed by Kullammal and her heirs to and in favour of Ezhilmani an extent of 1,600 sq. ft. in survey No.528 for Rs.2,800/- at the rate of Rs.13 per sq. ft. and the acquired lands are not agricultural lands and they are plots and the acquired lands are now annexed to the Dharmapuri Municipality and from the District Headquarters Hospital at a distance of it for long State Bank and Vijay Vidhyalaya School are situated and further District Headquarters Hospital is a a distance of 45 feet from the acquired land and therefore, they pray for fixing a higher compensation of Rs.5 lakhs in regard to the lands in question.
16. CW.2 Rajan in his evidence has deposed that he has sold an extent of 2000 sq. ft. in survey no.542 of Vellagoundampalayam village at a consideration of Rs.13,000/- on 18.06.1984 between Dakshina and Xerox copy of the sale deed is Ex.C1 and the registration copy of the same has been marked in LAOP No.77/89 and that he has sold the property in Ex.C1 sale deed dated 18.06.1984 for himself and also for and on behalf of his minor sons and this property has been ancestral one, and even though land per square feet has been sold at Rs.10 during the time of land acquisition he has sold the same at a reduced price because of the involvement of minus interest on the property and from the period of acquisition near that area many houses have been built and there have been electricity facility and road facility and after Dharmapuri city has become a District Headquarters the city has developed in the area of acquired land.
17. CW.3 Ezhilmani in his evidence has stated that he has purchaed Ex.C3 property as per sale deed dated 06.05.1982 from Kullammal in survey no.528 measuring an extent of 1600 sq. ft. (house site) at a price of Rs.2,800/- and when he has purchased the Ex.C3 property the acquired lands and the purchase land at that time have remained as house sites, and at the time of his purchase of the property as per Ex.C3 sale deed in that region there have been houses situated in a helter skelter fashion.
18. On the side of the appellant/Land Acquisition Officer no one has been examined as a witness before the Land Acquisition Tribunal. However, on the side of the appellant/Land Acquisition Officer Ex.R1 award dated 25.11.1985 passed by the Land Acquisition Officer, Dharmapuri Ex.R2, 3S sales statistics and Ex.R3 Vellagoundampalayam village sketch have been marked.
19. It is to be borne in mind that the crucial date for fixing the market value of the acquired land is date of publication of Section 4(1) Notification. In regard to the valuation of market value the factors like opinion of experts, price paid within reasonable time of purchasing land or land acquired possessing similar advantages and potential value or capitalisation method i.e., whether the land is close to the developed or developing colonies, road etc., will have to be considered for the purpose of valuation. Further, in determining the compensation the value of small plots of lands cannot be applied to the lands covering a very large tract and that large area of land cannot possibly fetch price at the same rate at which small plots are sold.
20. Also rise in prices of lands in near about developing town is almost a continuos and unending phenomenon and Courts while determining market value of acquired lands will have to take judicial notice of the same.
21. The mode of valuation is not governed by any uniform rule and must be left to the discussion of the collector and the Court having regard to the nature of the property. Indeed, a Court of Law cannot loose sight of the fact that so far prices of the land are concerned that there have been an overall upward trend. The continuos rising inflation and rising land value are to be taken note of judicially in the considered opinion of this Court. A land owner is entitled to the best price available as per evidence on record for his acquired land.
22. In the decision Manipur Tea Company Pvt. Ltd. v. Collector of Hailakandi (1997) 1 LACC365(S.C) : (1997) 9 SCC673 the Hon'ble Supreme Court has observed that "the sale statistics relied on by the Land Acquisition Officer are not a proof unless persons connected with sale deeds and document also made part of the record, are examined and therefore, the sales statistics cannot ipso facto form a basis to determine the compensation.
23. A law presumes that an owner makes the best use of his property i.e., in his worldly affairs and in fact he exercises Exacta Diligentia (Vigilance) of a prudent individual of business (Diligens Pater Familias) as per phraseology of the Roman Law. In State of Madras v. Sita Ramammal and another AIR1972Madras 170 it is held that "sale deeds bearing the highest value should be preferred to the rest as exemplars unless there are strong circumstances justifying a different course". But at the same time it is to be noted that price cannot be fixed merely by conjunctures as per decision VS. Subramaina Chettiyar v. State of Madras AIR1953Madras 943.
24. Be that as it may, certainly there is an element of guess-work inherent in most cases involving the determination of the market value of the acquired land, but this in the very nature of things cannot be helped. Generally speaking, the market value means the price that a willing purchaser would be to a willing seller for the property, having due regard to its existing conditions with all its existing advantages and its beneficial possibilities when laid down in most advantageous fashion excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired. It is a well accepted principle that a tribunal while assessing compensation may take into account not only the present purpose, or the present use, to which the land is applied, but also any other more beneficial purpose to which, in the course of events, it might within a reasonable time be applied, just as an owner might do if he were bargaining with a purchaser in the market but regard can be had to the prevailing conditions and what is likely to arise soon after the relevant date for valuation, though not to what might happen in the distant future.
25. It is true that it cannot be laid down as an absolute rule that the rates determined for the small plots cannot be a foundation for determination of the rate. But, whether there is no other material in appropriate cases and it is open to the tribunal to make comparison of the prices paid for small plots of land, ofcourse necessary deductions will have to be made while fixing the prices in the considered opinion of this Court.
26. The element of speculation can be reduced to a minimum if the following principles of fixation of market value with reference to comparitive sales are made: (a) when sale is within a reasonable time of the date of notification under section 4(1); (b) it must be a bona fide transaction; (c) it should be of the land acquired or of the land adjacent to the land acquired. (d) it must possess similar advantages and only if these factors are seen, then it can merit a consideration as a comparable case as per decision of Hon'ble Supreme Court Special Land Acquisition Officer v. Adinarayan Setty AIR1959SC429and as highlighted in the decision of Hon'ble Supreme Court Ravinder Narain v. Union of India (2003) 4 SCC481 27. In regard to the deduction to be made in respect of the development charges the same cannot be established by means of any straitjacket formula and it depends upon the facts and each and every case as opined by this Court.
28. As far as the present case is concerned, the witnesses examined on the side of the Respondent/Claimant have clearly spelt out the potential value of the acquired land in issue in clear terms. The acquired land is also said to be situated straight west of the railway station and in the northern direction of the acquired land an Aluminium factory and Pidamaneri village are situated. Also one cannot brush aside an important fact that the Dharmapuri city has developed a lot after its separation in the year 1965. It is the categorical evidence of CW.1 that the acquired lands are fit to be used for construction of houses. In short, the evidence of witnesses CW.1 to CW.3 are unimpeachable ones and they have not been displaced on the side of appellant/Land Acquisition Officer. Significantly, the Section 4(1) Notification in the present case has been issued on 11.02.1985. The Ex.C1 sale deed dated 18.06.1984 shows that in survey no.542/1A out of 6 acres and 20 cents, 2,180 sq. ft. of vacant land with mamool right of pathway etc., has been sold out for Rs.13,000/-. Added further, the land in Ex.C1 sale deed 18.06.1984 is situated near the acquired lands and this it is quite evident that a square feet of land has been sold out at a price of Rs.6/-. Therefore, by placing reliance on Ex.C1 sale deed dated 18.06.1984 in all fairness, equity, good conscience and even as a matter of prudence in respect of the acquired lands the compensation can safely be fixed at Rs.6/- per sq. ft. and resultantly, the compensation determined by the Land Acquisition Officer valuing the land at Rs.45,173/- per acre is incorrect in the considered opinion of this Court. As regards the deduction to be made towards development charges the Land Acquisition Officer in his Ex.R1 award proceedings dated 25.11.1985 at page 4 has excluded 30% of the value for providing rates and common facilities and has fixed the rate per acre of the land at Rs.45,173/- (64,533-19360=45,173), and since, the deduction of 30% towards development charges in the present case is a reasonable one the same is not interfered with by this Court. On a conspectus of the entire matter this Court opines that the determination of compensation at the rate of Rs.6/- per sq. ft. and fixing the value of the land at Rs.2,61,360/- and deducting 30% towards development charges as Rs.78,408/- (from and out Rs.2,61,360) are a reasonable and fair one etc. Suffice it, for this Court to point out that looking at from any angle, the award passed in LAOP No.86/89 on the file of the Tribunal viz. Sub Court, Dharmapuri does not require any interference in the hands of this Court since there is no infirmity or illegality in the award passed and consequently the appeal fails.
29. In the result the appeal is dismissed, leaving the parties to bear their own costs. Consequently, the award passed by the Tribunal viz. Sub Court Dharmapuri in LAOP No.86/89 is affirmed by this Court for the reasons assigned in this appeal. C.M.P.No.10383 of 2002 is closed. Having regard to the facts and circumstances of the case the parties are directed to bear their own costs. 08.10.2009 Index : Yes/No Internet : Yes/No prm To The Sub Court, Dharmapuri, M.VENUGOPAL, J.
prm PRE DELIVERY JUDGMENT
in A.S.No.92 of 2002 CMP No.10383 of 2002 08.10.2009