T. Ramaprasada Rao, J.
1. These five appeals arise out of a common judgment rendered by the First Additional Subordinate Judge, Madurai, on references made to the Court by the aggrieved parties-claimants under Section 18 of the Land Acquisition Act, hereinafter to be referred as 'the Act'. For the construction of a maternity home in Sundararajapuram area in Madurai town an extent of 31,467 sq. ft. in the first instance and an additional extent of 4,588 sq. ft. in S. No. 2003/1 was acquired pursuant to a notification under Section 4(1) of the Act dated 22nd September, 1965, and a Government Memorandum dated 16th March, 1970, issued by the Government under Section 49(2) of the Act. We shall in the course of our judgment consider the necessity for the Government to act under Section 49(2) of the Act. Pursuant to the notification under Section 4(1) of the Act, the original extent of 31,467 sq. ft. in the above survey number was acquired and it is in consequence of the memorandum dated 16th March, 1970, communicated to the respondents on 9th April, 1970, that the additional extent of 4,588 sq. ft. was acquired. Each respondent has an interest in one-fifth of the compulsorily acquired land. The Land Acquisition Officer, after due enquiry, passed an award on 30tii May, 1970, and awarded a compensation at the rate of Rs. 1.04 per sq. foot, uniformly for the acquired area and evaluated the same as on 22nd September, 1965. On a reference by the claimants, the civil Court in its judgment appealed against, evaluated that portion of the land of an extent of 31,467 sq. ft. in T.S. No. 2003/1-A-2 at Rs. 5 per sq. foot as on 22nd September, 1965, and the other additional extent of 4,588 sq. ft. in T.S. No. 2003/1-A-1 at Rs. 7 per sq. ft. as on 16th March, 1970. The State aggrieved by the grant of compensation made by the Court below has preferred the above five appeals. The claimants, as respondents, have filed cross-objections in each of the appeals and are claiming compensation at the rate of Rs. 6 per sq. foot for the area comprised in T.S. No. 2003/1-A-2 and at the rate of Rs. 10 per sq. foot for the area comprised in T.S. No. 2003/1-A-1.
2. At the initial stage when the notification under Section 4(1) of the Act was made, it was proposed to acquire a part of the portion in T.S. No. 2003/1 out of which was carved out T.S. No. 2003/1-A-2 of an extent of 31,467 sq. ft. By the said proposal, an extent of 4.588-sq. ft. now comprised in T.S. No. 2003/1-A-1 was left out. The owners raised an objection that the severed bit of 4,588 sq. ft. would be of no use to them and therefore they demanded that the entire extent should be acquired. In order to avoid any excessive claim for severance compensation, the Government, on the advice of the appropriate and concerned authorities, issued orders on 16th March, 1970, invoking Section 49(2) of the Act directing the acquisition of the left-over area. This order of the Government was duly served on the owners on 9th April, 1970. After issuing due notices for enquiry, the Land Acquisition Officer fixed the valuation as above and which was increased by the civil Court on a. reference.
3. It is common ground that each of the respondents is entitled to 7,211 sq. ft. in the acquired land. They filed various statements of objections before the civil Court and contended that the Land Acquisition Officer was wrong in having uniformly valued the land which is the subject-matter of the acquisitions and he ought to have made a distinction, between the land originally acquired pursuant to the notification under Section 4(1) of the Act and the land subsequently directed to be acquired by the Government memorandum dated 16th March, 1970, under Section 49(2) of the Act. They sought for a distinct and separate valuation of the lands accordingly as on the two dates referred to above. On merits, their contention was that the market value fixed by the Land Acquisition Officer was very low.
4. In so far as the lie of the property is concerned, it is not in dispute that the acquired property is a building site in the midst of a thickly populated residential area and it is also very close to industrial establishments. It is within the Corporation limits of Madurai town and not far away from the Grand Southern Trunk Road which is a National Highway and it also abuts two municipal roads on two sides. There are many industries such as Rice Mills, Textile Mills and Saw Mills near the acquired land. Several Educational Institutions like Polytechnic and College are very near them. On the basis of such a location, the request was to fix compensation at a rate higher than that awarded by the Land Acquisition Officer. The Court below accepted the contention of the claimants that 31,467 sq. ft. has to be valued as on 22nd September, 1965 and the additional extent of 4,588 sq. ft. has to be valued as on 16th March, 1970. On the question of valuation, the Court below, on a consideration of certain documents referred to by it in the judgment, fixed the value of the larger extent at Rs. 5 and the smaller extent at Rs. 7 per sq. foot.
5. Before us Selvi Vimala, learned Government Advocate, raised two contentions, firstly, she would say that there is no legal basis for the Court below to distinctly and separately value the two extents of land on the supposition that the order passed under Section 49(2) of the Act would give the clue as well as the jurisdiction to the civil Court on a reference under Section 18 of the Act to value, the leftover land and which was subsequently added on to the initially compulsorily acquired land as on the date of the order of the Government under Section 49(2) of the Act. After referring to the scheme of the Act with particular reference to Sections 4, 5-A, 6, 7, 8, 9, 10, 11, 16, 23 and 49 of the Act, Selvi Vimala's contention is that the order under Section 49(2) of the Act is made with the purpose and intention of saving or preventing any damage that might accrue to the claimants in the event of the slicing of the land for the purpose of acquisition and leaving out a portion of it without being acquired. She would say that an order under Section 49(2) of the Act cannot, by any sense, be equated to a fresh notification under Section 4(1) of the Act for Section 49(2) of the Act is only an application of the earlier notification for acquisition under a contingency provided for by the statute itself. On the scheme of the Act, Selvi Vimala's contention is that it contemplates two contingencies, compensation for acquisition and 'compensation for severance. In a case where the authority finds that the claim for severance compensation under Clause 3 of Section 23(1) of the Act, is excessive or unreasonable, then the State has the option to act under Section 49(2) of the Act and acquire the entire land without leaving any portion of the totality of the land unacquired. As an order under Section 49(2) of the Act is not meant to give the claimants any right to prefer fresh claims, such an order cannot be a substitute for notification under Section 4(1) of the Act. As the vested power in the Government to invoke Section 49(2) of the Act in the contingency referred to above dispenses with the prescribed procedure under Sections 6 to 11 of the Act, it should be taken that the legislative intent is that an order under Section 49(2) of the Act has no independent legal force or connotation of its own, but acts only as complement to the notification under Section 4(1) of the Act. Secondly she would also say that the method of evaluation adopted by the Court below is wrong and would urge for the reduction of the compensation amount.
6. Mr. K. Manickavasagam, learned Counsel for the respondents, in all these appeals as also the cross-objectors, while seeking a higher compensation, desires to maintain the distinction in the method of evaluation adopted by the Court below. According to him Section 49(2) of the Act acts on its own without reference to Section 4(1) of the Act and the other provisions in the Act and thus understood the portion of the land which was acquired or added on to the main acquisition pursuant to the exercise of power by the Government under Section 49(2) of the Act should be evaluated as on the date of the order under Section 49(2) of the Act.
7. We entirely agree with the legal contentions of Selvi Vimala on the question that there cannot be two dates for evaluating the two bits of properties acquired for a common public purpose by reason of two propelling occasions, one, because of a notification under Section 4(1) of the Act and the other by reason of an order made by the Government under Section 49(2) of the Act. It is indisputable that lands which are compulsorily acquired by the State in exercise of their prerogative right to take private property for a public purpose, have to be compensated for and such compensation has to be fixed as on the date of the publication of the notification under Section 4(1) of the Act. There is no one provision in the Act which speaks of the evaluation of compulsorily acquired land under a different methodology. Sections 5-A, 6, 7, 8, 9, 10, 11 and 16 of the Act deal with follow-up action which the appropriate authority should take in the matter of publication of the declaration of the intended acquisition after hearing objections, marking the land to be acquired, enquiring into the claims for compensation that might be preferred by the aggrieved persons whose lands have been notified for such an acquisition and ultimately for the passing of the award by the Collector and for taking possession of the acquired land. Section 23 of the Act which deals with the matters to be considered in determining compensation and which in so far as is relevant for our purpose speaks of severance compensation in the following terms. 'In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration (thirdly) the damage (if any) sustained by the person interested at the time of the Collector taking possession of the land by reason of severing such land from his other lands.' This is what is usually termed as severance compensation. If such severance compensation is made by a person as in this case, and if it appears to the appropriate Government that the claimant's claim for damages on account of the severing of the land to be acquired from his other lands is unreasonable or excessive, it may under Section 49(2) of the Act direct the Collector or the Land Acquisition Officer to acquire the whole of the land of which the land first sought to be acquired formed a part.
8. We may also refer to an observation made by the Supreme Court in H.D.B.K. Das v. F.L.A. Collector, wherein the Court said that if a claim under the third clause of Section 23(1) of the Act is made, the requirement, of Section 49(2) of the Act is satisfied and that Section 49(2) of the Act gives the option to the Government only where the claim under the third clause of Section 23(1) of the Act is excessive.
9. Under Section 49(3) of the Act it is expressly provided that no fresh declaration or other proceedings under Sections 6 to 10 both inclusive shall be necessary. But the only obligation on the part of the Collector is that he shall without delay furnish a copy of the order of the appropriate Government to the person interested and shall thereafter proceed to make his award under Section H of the Act.
10. Mr. Manickavasagam would say that Section 49(3) of the Act has not been strictly complied with as the order made under Section 49(2) of the Act was communicated to the claimants on 9th April, 1970 and there was considerable delay in the matter of such communication. It is said that as there has been a delay in furnishing the copy of the order under Section 49(2) of the Act to the respondents in the appeals, it should be held that the order under Section 49(2) of the Act dated 16th March, 1970, in so far as the additional area of 4,588 sq. ft. is concerned, is an independent order which has the force of a notification under Section 4(1) of the Act. We are unable to agree. The purpose of an order under Section 49(2) is twofold. It is meant to save the claimants from suffering loss due to severance and concurrently it also saves the authority from suffering an excessive or unreasonable payment towards such severance compensation. Section 49(2) of the Act has no field of operation of its own. But it is dependent upon a notification under Section 4(1) of the Act issued earlier and the order under Section 49(2) issued by the Government, as rightly stated by Selvi Vimala, is not meant to give the claimants any right to prefer a fresh claim. If only such a right is available, as is available to an interested person when he was served with a notice under Section 9 of the Act, it could at least be comprehended that an order under Section 49(2) of the Act projects a distinct and separate right in the claimants to prefer a fresh claim without reference to and without having regard to the claim already made regarding the acquisition of the major portion of the land of an extent of 31,467 sq. ft. which as already seen was the result of a notification under Section 4(1) of the Act. A special signification is attached to the content and purpose of Section 49(3) of the Act. Under Sub-clause 3 of the Section 49 of the Act, the processing of the subject-matter under Sections 6 to 11 of the Act has been dispensed with. Section 11 of the Act contemplates an enquiry by the Land Acquisition Officer and the passing of an award by him. If this is dispensed with, should it mean that no award could be passed by the Collector and no compensation be paid for the land which has to be added on to the parent land compulsorily processed? In our view this is not the intention of the Legislature at all, for private property cannot be taken away without payment of just compensation. Under Section 49(2) of the Act, the State Government is the sole authority to decide whether the damages claimed under the head of 'severance compensation' is excessive or unreasonable. When once it chooses to exercise its jurisdiction under Section 49(2) of the Act and issued a direction to the Land Acquisition Officer to acquire the whole of the land of which the land first sought to be acquired formed a part, then such subjective satisfaction of the appropriate Government is not open to challenge, and as a result of the exercise of such a power, the land which was left out of the area of the compulsory process, automatically gets into it by a legal fiction and becomes part and parcel of the land to be acquired pursuant to the notification under Section 4(1) of the Act. The option is vested in the Government either to accept the severance compensation claimed or to view it as excessive. The accretion of the left-over land with the land originally sought to be acquired being unquestionable, it follows that while awarding compensation. The entirety of the land has to be acquired as if the notification under Section 4(1) of the Act enfolds within its mischief not only the land originally notified, put also the land subsequently added. We are unable to accept the contention of the learned Counsel for the respondents that the two bits of land have to be valued on two different dates as was done by the Court below, as the principles of awarding compensation will not brook such an interpretation so as to give a lever to the claimants to take undue advantage against the acquiring authority. Invariably there would be some time lag between the notification under Section 4(1) of the Act and the order under Section 49(2) of the Act, when in a given case such a contingency arises for consideration by the Government. This would not involve therefore the payment of compensation at two different rates and presumably at a higher rate for the land subsequently directed to be added on to the earlier notified land for it is axiomatic that by passage of time the unearned increment would add as an additional value to the land sought to be latterly acquired. For all the reasons as above, we agree with Selvi Vimala on the first contention and we hold that the claimants cannot seek for two different methods of valuation of the two different parcels of land as above and ask for their evaluation on two different dates.
11. The surviving point is as to what is the just compensation for the entirety of the land consisting of 31,467 sq. ft., comprised in T.S. No. 2003/1-A-2 and 4,588 sq. ft., in T.S. No. 2003/1-A-1. The property has to be valued as on 22nd September, 1965, which is the date of the notification under Section 4(1) of the Land Acquisition Act. The Land Acquisition Officer 1 relied upon Exhibit B-1 dated 26th August, 1964, whilst the civil Court on a reference relied upon Exhibits A-4, A-2, and A-3 and awarded the compensation at different rates; he fixed the market value at Rs. 5 per sq. foot for the larger extent of land and at Rs. 7 per sq. foot for the smaller extent of land. In the view that we have expressed already, the property has to be uniformly valued. What then is the just compensation? The documents relied on by the Land Acquisition Officer relate to sales of land in Mallakulam village and not in relation to the lands within the municipal limits of Madurai. There is also necessary information from the records that the land comprised in Exhibit B-l is land locked and no road is provided. The rest of the land cannot be built upon under the town-planning scheme in operation. As far as the acquired land is concerned they have access through pre-existing roads and is situate in more important locality and inside the town. We are unable to, therefore, rely upon the data sales in Exhibit B-1 or B-2. The Court below relied upon a judgment of the High Court in A.S. No. 248 of 1965. Abdul Mazid-Appellant v. The Special Tahsildar for Land Acquisition, Municipal Cases Madurai-Respondent which concerned itself with land in T.S. No. 1937 which is not far away from the acquired land. The notification for acquiring the land in the above appeal was made on 25th April, 1962. A. compensation of Rs. 4.50 per sq. foot was granted in that case. Taking into consideration that the notification in the instant case is about three years after the notification in the other appeal, the Court below granted Rs. 5 per sq. foot as compensation, though and attempt was made to refer to post-notification sales which we are not inclined to consider Selvi Vimala strongly relies upon a sale under Exhibit A-6 which relates to a portion of the property acquired. Under this document, a price at Rs. 3-25 per sq. foot was secured for the land sold under it. But on an examination of the recitals in the sale deed, we find that the sale was in the year 1966 by the natural guardian of two minors as also the father. It is not clear from the date whether it was joint family property. In the absence of any order of Court under the Hindu. Minority and Guardianship Act, 1956, it would not be safe to rely upon the price fetched under this document as the sole guide for valuation. But the price of Rs. 3.25 paid under it, though a few months after the date of the notification, can be one of the considerations for evaluation. It is in the light of this that reliance could be had on the value granted by the High Court for T.S. No. 1937, which is not far away from the acquired land. The High Court fixed the compensation at Rs. 4.50 per sq. foot for this land, as is seen from Exhibit A-3. One other argument of the learned Government advocate is that the area of the acquired land is more than 10 grounds and this largeness in extent should be borne in mind while evaluating the lands. We have already stated that the post notification sales sought to be relied upon by the claimants-respondents, which need not be set out in detail herein, cannot, in the circumstances, form or provide any guidelines for fixing the market value. Basing our conclusion on the value fixed by the High Court in Exhibit A-3 but in relation to the land in the vicinity under which a compensation of Rs. 4.50 per sq. foot was given to similar land but outside the municipal limits, in the year 1962, we fix the compensation as was done by the Court below at Rs. 5 per sq. foot for the entirety of the area. As we are unable to grant a higher compensation to the additional extent of 4,588 sq. ft. as was done by the Court below, the appeal of the State has to be allowed to that extent.
12. In the result, the compensation payable to the claimants in proportion to their entitlement is fixed at the rate of Rs. 5 per sq. foot and each of the respondents, in each of these appeals would be entitled to compensation at that rate. They would be also entitled to the 15 per cent solatium thereon and interest at the rate of 4 per cent from the date of taking over possession till the date of payment of such compensation amount, if it has not already been paid.
13. The appeals are, therefore, allowed to the extent indicated above. But there will be no order as to costs.
14. In the light of this, memorandum of cross-objections in each of these appeals are dismissed. There will be no order as to costs.