The Special Tahsildar,(A.D.W.),Salem v. Duraisamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:28.04.2008CORAMTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMARA.S.No.735 of 1997The Special Tahsildar,(A.D.W.),Salem. ... Appellant /Respondents -Versus-1.Duraisamy2.Ponnusamy3.Chinnakannu4.Lakshmi5.Muthan6.Chinnakannu7.Palanaiappan8.Samikannu9.Palaniappan10.S.Ponnusamy11.Ramachandran12.Ananthayee13.Minor Santhia14.Minor Nithianantham (Minors 13 & 14 rep. by Guardian and mother Ananthayee) ... Respondents/Claimant https://hcservices.ecourts.gov.in/hcservices/ Appeal suit filed under Section 54 of the Land Acquisition Actagainst the judgement and decree of the learned Subordinate Judge ofSalem in LAOP.No.8 of 1992 dated 31.10.1995. For Appellant : Mr.V.Ravi Special Govt. Pleader(AS)For Respondents : Mr.R.Srinivasan for RR 1 to 4 and RR.6 to14 R5 No appearance.JUDGEMENTThis appeal is directed against the judgement and decree (award)dated 31.10.1995 made by the learned Principal Subordinate Judge,Salem in L.A.O.P.No.8 of 1992. 2. An extent of 1.25 acres comprised in S.No.3/2E, 3/2F, 3/2G,3/4A, 3/4B, 3/5A and 3/5B in Ariyagoundampatti village, Salem Taluk,Salem District was acquired by the Government for allotment of housesites to the needy members of Adidravidar community. Notificationunder Section 4(1) of the Land Acquisition Act was lastly publishedon 8.8.1990. After hearing the objections, the decision to acquirethe land was confirmed and necessary declaration (under Section 6)was published. The Special Tahsildar, ADW, Salem in his capacity asLand Acquisition Officer, conducted award enquiry and passed an awardon 30.3.1992. The Land Acquisition Officer has fixed the market valueon the basis of a sale deed dated 27.2.1989, which was included asitem No.9 in the sales statistics prepared by him. The same wasrelating to an extent of 31 cents of dry land in SF.No.7/16B of thesame village. Taking the said sale as the data sale reflecting thecorrect market value as on the date of 4(1) notification, the LandAcquisition Officer fixed the market value for the acquired land atRs.41,935/- per acre. After calculating the market value, theadditional market value was calculated from the date of 4(1)notification till the date of award as possession was admittedlytaken subsequent to the award as per Section 23(1)(a) of the Act. Therespondents herein/claimants, who were the owners of the landsacquired by the Government for the said public purpose, did not haveany objection for the manner in which total compensation was arrivedat. But at the same time, they are aggrieved by the fixing of marketvalue of Rs.41,935/- per acre. Therefore, they received the amountunder protest and gave statements to the Land Acquisition Officer torefer the matter to the court under Section 18 of the Act for fixingthe reasonable amount of compensation. https://hcservices.ecourts.gov.in/hcservices/

3.The court below to which the reference was made, considered theclaim made by the respondents herein/claimants and the objectionsmade by the appellant, the Referring Officer. Before the court below,on the side of the respondents herein/claimants, two witnesses wereexamined as CW1 and CW2 and two documents were marked as Exs.C1 andC2 and on the side of the appellant/Referring Officer, no witness wasexamined, but three documents were marked as Exs.R1 to R3.Considering the above said evidence, the learned Subordinate Judge,Salem came to the conclusion that certified copy of the sale deeddated 5.2.1990 produced and marked on the side of the claimants asEx.C2, was only the document available to reflect the market value ofthe acquired property and that taking into consideration the saleunder the sale deed as the sample sale, the market value of theacquired property had to be assessed. Taking into account the factthat a small extent of 200 square feet was sold under Ex.C2 forRs.5000/-, which worked out at Rs.25/- per square feet, the learnedPrincipal Subordinate Judge, Salem decided to give some reductionwhen same had to be compared with the acquired property having alarger extent. Thus the learned Principal Subordinate Judge fixed themarket value of the acquired property at the rate of Rs.15/- persquare feet and awarded enhanced compensation with the otherconsequences like proportionate addition in the market value,increase in solatium etc. The leaned Principal Subordinate Judge hasalso enhanced the value of yielding palmyrah trees at the rate ofRs.200/- per tree as against Rs.40/- and in respect of young palmyrahtrees, at the rate of Rs.75/- per tree as against Rs.40/-. Interesthas also been awarded for the excess compensation at the rate of 9%from the date of taking possession for one year and thereafter at therate of 15% in accordance with Section 28 of the Land Acquisition Act. 4. Aggrieved by the said enhanced compensation awarded by thelearned Principal Subordinate Judge, Salem, the State throughReferring Officer has come forward with this appeal.5.The point that arises for consideration in this appeal is"whether the compensation awarded by the court below is excessiverequiring reduction?" 6.This court heard the submissions made by the learned SpecialGovernment Pleader (AS) for appellant and also the learned counselfor the respondents/claimants. The materials available on record werealso perused.7.The short point in controversy is whether the market value ofthe land fixed by the court below is reasonable? As pointed out suprain the foregoing paragraphs, the Land Acquisition Officer relied on asale deed dated 27.2.1999 in respect of SF.NO.7/16B and has taken itas the data sale reflecting the correct market value of the acquired https://hcservices.ecourts.gov.in/hcservices/ land. As per the said sale, the market value had been fixed by theLand Acquisition Officer at the rate of Rs.41,935/- per acre. On theother hand, the learned Principal Subordinate Judge, while dealingwith the reference made under Section 18 of the Land Acquisition Act,relied on a sale deed dated 5.9.1987 in respect of S.No.271/1 of thevery same village, a certified copy of which has been marked asEx.C2, as the sale deed based on which the market value of theacquired land could be reasonably fixed. The Notification underSection 4(1) of the Land Acquisition Act was lastly published on8.8.1990. To ascertain the market value of the acquired land, saledeeds pertaining to similar lands in the vicinity of the acquiredland which came to be registered within three years prior to the dateof Section 4(1) notification have to be considered. In fact, thedocument relied on by the Land Acquisition Officer and the documentrelied on by the lower court were very well within the said period.In such cases, the normal course adopted by the Reference Court is toadopt the highest value and not to search for documents containingthe least value. Yet another aspect to be taken into consideration isthe comparability of the land sold under the data sale with theacquired land. When such test is applied to the above said two saledeeds, one relied on by the Land Acquisition Officer and the other bythe court below, according to the submissions made by the learnedSpecial Government Pleader the sale deed dated 27.2.1989 pertainingto the S.No.7/16B should have been accepted by the court below asreflecting the correct market value, because apparently the said landwas closer to the acquired land than the land sold under Ex.C2 reliedon by the court below. It is the contention of the learned SpecialGovernment Pleader that the property sold under Ex.C2 was a puccasite, which can be used for building purpose, whereas the acquiredland is a vast agricultural land and the comparison made by the courtbelow is not correct.8.Per contra, the learned counsel for the respondents/claimantswould contend that though the Land Acquisition Officer has collectedso many sale particulars and relied on one such sale as reflectingthe market value of the acquired property the award passed by theLand Acquisition Officer could not be accepted by the court ofReference unless the said sale is proved to be genuine. It is thefurther contention of the learned counsel for therespondents/claimants that the appellant herein/Referring Officer didnot choose to produce any authenticated copy of sale deed relied onby him and no witness was examined on the side of the ReferringOfficer. In such circumstances, on the face of the interestedtestimony of the Referring Officer, that in such circumstances, noreliance can be made on such sale deed in a reference under Section18 of the Land Acquisition Act. 9.Upon considering the rival submissions made on either side, thecourt comes to the conclusion that contention made on the side of theappellant could not be sustained, whereas there is force and https://hcservices.ecourts.gov.in/hcservices/ substance in the submissions made by the counsel for the respondents.No authenticated copy of the sale deed relied on by the LandAcquisition Officer has been produced. Therefore there is nothingwrong in relying on the only document exhibited by the claimants asreflecting market value of the acquired land. Yet another aspectshowing the reasonableness of the procedure adopted by the courtbelow is that while relying on Ex.C2 to fix the value of the acquiredland the court below considered the fact that a small extent of 200sq.ft. was sold for a sum of Rs.5000/- at the rate of Rs.25/- persquare feet under Ex.C2 and the same had to be compared with theacquired property having a larger extent namely 1.25 acres. The courthas taken a clear view that some portions are to be left open as openspace, and when larger extent is to be developed into house sites andsome amount is to be spent for such development. For the above saidreason, the court below has chosen to reduce the rate to Rs.15/- persquare feet as against Rs.25/- per square feet reflected in Ex.C2.This court finds no defect in the procedure adopted by the courtbelow. The procedure adopted by the court below seems to be quitereasonable and hence there is no scope for interfering with the same.10.It shall not be out of place to mention here that though theSurvey numbers of the acquired lands and data lands selected by theLand Acquisition Officer may, at the outset, suggest that the saiddata lands could be closed to the acquired land than S.No.27/1 inrespect of which Ex.C2 sale had been executed, the topo sketch of thevillage produced on the side of the claimants and marked as Ex.C1 andthe same annexed sales statistics marked on the side of theappellant/Referring Officer as Ex.R2 would show that in factS.No.27/1 is close to the acquired land than the data land selectedby the land acquisition officer comprised in S.No.7/16B as the sameis far away from the acquired land. In fact, in between the acquiredland and the data lands selected by the land acquisition officerthere is a big lake called as Arigounderpatti tank. Under suchcircumstances, this court does not feel that there is any defect orinfirmity in the judgement and decree (award) of the court below infixing the market value of the acquired land at the rate of Rs.15/-per square feet. There is no scope, whatsoever, to interfere with thesame in this appeal and hence the same has got to be confirmed.11.As far as the award of compensation for the standing trees isconcerned, the Land Acquisition officer had calculated their valueuniformly at the rate of Rs.40/- per tree. However, the court belowhas made reasonable classification between yielding palmyrah treesand young palmyrah trees and fixed their values at the rate ofRs.200/- and Rs.75/- respectively. This court does not find anyinfirmity in the same also. Of course, the learned Special GovernmentPleader representing the appellant, has also submitted that theappellant does not have any serious objection regarding the fixing ofmarket value of the palmyrah trees. Therefore, the value of thepalmyrah trees fixed by the court below has got to be confirmed. The https://hcservices.ecourts.gov.in/hcservices/ additional market value calculated under Section 23(1) (a) of theAct, solatium calculated at the rate of 30% on the market value underSections 23(a) and 23(2) of the Act and interest for the excesscompensation awarded by the court below at 9% per annum for one yearas per Section 28 of the Act also cannot be assailed. No challengehas also been made in respect of those aspects. There is also nodiscrepancy in the decree passed by the court below and hence thedecree (award) passed by the court below has to be confirmed as itis. However, this court feels that no order need be passed regardingthe costs as it is not pressed for. 12.In the result, the appeal fails and the same is dismissed.There shall be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar 8vkTo1)The Principal Subordinate Judge, Salem.2) The Section Officer, VR section High Court, Madras.+ 1 CC To Mr.R.Srinivasan Advocate SR NO.24381+ 1 CC to the Government Pleader SR NO.24950 A.S. No.735 of 1997bv(co)pmk/25.6.08