K.S.Viruthambal v. The Special Tahsildar(LA) Krishna Water Supply ProjectTrivellore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.07.2008CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANA.S.No.36 of 1998 and C.M.P.No.1026 of 2008K.S.Viruthambal.. Appellant/Claimant-vs-The Special Tahsildar(LA) Krishna Water Supply ProjectTrivellore..Respondent/Referring OfficerThis appeal is filed under Section 54 of the Land Acquisition Actagainst the award passed in L.A.O.P.No.327 of 1986 by the learnedSubordinate Judge, Trivellore, dated 15.4.1997.For appellant : : Mr.M.S.Subramanian,Advocate For respondent : : V.Ravi, Spl.Govt.PleaderJUDGMENT This appeal has been directed against the award passed inL.A.O.P.No. 327 of 1986 on the file of the learned Land AcquisitionTribunal / The Subordinate Judge, Trivellore. About 1 acre 27 centsof land in S.Nos.16/1,17/1,19/1,19/2A at Ponthavakkam Village wasacquired by the Government for the purpose of forming a canal underthe Krishna Water Scheme.2. After following the procedure contemplated under the LandAcquisition Act (hereinafter referred to as "Act"), a notice underSection 4(1) of the Act was published in the gazette on 30.11.1983 bythe Land Acquisition Officer. On the basis of the data land,the LandAcquisition Officer has fixed the compensation for the above saidlands at the rate of Rs.85 per cent and passed an award 5/85-86 dated16.5.1985. The data land, taken into consideration for fixing thecompensation for the land acquired as Rs.85/- per cent, was dated10.5.1983 under which 50 cents of land in Survey 46/1 was sold for asale consideration of Rs.4,250/-. Not satisfied with the compensationawarded by the Land Acquisition Officer, the claimant had filed herobjection claiming that the Land Acquisition Officer ought to havefixed the compensation for the lands acquired as Rs.750/- per cent.The Land Acquisition Officer has referred the claim made by theclaimant under Section 18 of the Act to the Land AcquisitionTribunal. https://hcservices.ecourts.gov.in/hcservices/

3. Before the Land Acquisition Tribunal, the son of the claimantin L.A.O.P.No.345 of 1986 was examined as C.W 1 and Exs C1 and C2were marked on the side of the claimant. No oral evidence was let inon the side of the Referring Officer/respondent. The village maprelating to Ponthavakkam village was marked by consent as Ex R1.After scanning the evidence both oral and documentary , the learnedLand Acquisition Tribunal has come to a conclusion that thecompensation fixed by the Land Acquisition Officer for the landacquired is meagre, has enhanced the same on the basis of Ex C1 saledeed dated 30.9.1983 and fixed as Rs.230/- per cent. Aggrieved by theaward passed by the learned Land Acquisition Tribunal, the claimantin L.A.O.P.No.327 of1986 has preferred this appeal.4. C.M.P.No.1026 of 2008 was filed by the claimant under Order41, Rule 27 of CPC to receive the sale deed dated 2.9.1982 as anadditional evidence in the appeal. The said sale deed relates tosurvey number 367/28B,367/29 and 367/1 in Ponthavakkam VillageNatham. A perusal of the said sale deed will go to show that theguide line value fixed for one cent of land in S.No.367/28B wasRs.100/-and the guideline value for one cent in S.No.367/29 wasRs.100/- and the guideline value in S.No.367/1 for 7 ½ cents wasfixed as Rs.4,920/-.5. The learned counsel appearing for the appellant would contendthat the Land Acquisition Tribunal ought to have fixed the value forthe acquired land at least as Rs.700/-per cent on the basis of thesaid sale deed. But the said document cannot be received in evidencebecause the lands scheduled to the said sale deed dated 2.9.1982 areall situate in Ponthavakkam Village, Natham whereas the landsacquired are wet lands situate in the midst of the agriculturallands. The claimant before the Land Acquisition Tribunal had filedExs C1 and C2 sale deeds in support of her claim that thecompensation fixed by the Land Acquisition Officer is inadequate andmeagre. The learned Land Acquisition Tribunal, after giving dueconsideration for Ex C1 which relates to S.No.123/3 under which 13cents of lands were sold for Rs.3000/- ie, one cent at the rate ofRs.230/- had enhanced the compensation awarded by the LandAcquisition Officer from one cent at the rate of Rs.85/- to Rs.230/-per cent, has passed the award accordingly in favour of theclaimant. 4(1) Notification under the Act was effected in this caseon 30.11.1983. Ex C1 is dated 30.9.1983 ie., exactly two months priorto 4(1) Notification. Under such circumstances, the claimant is notentitled to the relief under C.M.P.No.1026 of 2008 which is liable tobe dismissed.6. The learned counsel appearing for the appellant/claimant wouldcontend that the Land Acquisition Tribunal has failed to consider thepotentiality of the lands acquired and also the fact that there arebuildings in the lands nearby the lands acquired and while fixing thecompensation, the learned Land Acquisition Tribunal ought to haveproportionately increased and awarded the compensation taking intoconsideration that the lands acquired is having potential value forconstructing building on it. The learned counsel in support of hiscontention would rely on a decision reported in P.Prem Ready-v- LandAcquisition Officer, Hyderabad Urban Development Authority, Hyderabad(1995)2 Supreme Court Cases 305) wherein the ratio decidendi is that https://hcservices.ecourts.gov.in/hcservices/ the "potentiality of the land for constructing the building has tobe decided on the basis of the material placed on record or madeavailable and such material must be supported by reliable documentaryevidence". There is absolutely no material placed before this Courtto show that the lands situate near the lands acquired are having thepotential value for constructing buildings. The document reliedunder C.M.P.No.1026 of 2008(referred to above) is relating to thelands situated in the village natham poramboke. Ex R1 plan does notshow any constructed building in any of the survey number landsituate near the lands acquired. Admittedly, the lands acquired arewet lands for the purpose of providing canal under Krishna Waterscheme. So the facts in P.Prem Ready-v- Land Acquisition Officer,Hyderabad Urban Development Authority, Hyderabad(1995)2 Supreme CourtCases 305) differs from the facts of the case on hand. Relying on aratio in Tribeni Devi-v- The Collector, Ranchi(AIR 1972 SupremeCourt, 1417), the learned counsel appearing for theappellant/claimant would contend that C.W.1, the son of the Claimantin L.A.O.P.No.345 of 1986, in his evidence that the acquired landsare situate appurtenant to Thiruvellore- Chennai Highways and thatUthukottai, a well developed town, is just one kilo metre away fromthe lands acquired and that the lands are wet lands capable ofyielding three crops per year and that near the lands acquired, thereare schools, E.B.Office, cinema Theatres and hospitals and that thelands acquired are having potentiality of the lands available atUthukottai and that the value of one cent at Uthukottai is more thanRs.1,00,000/- and that a plot worth more than Rs.5,00,000/- andaccording to him, the value for one cent at the land acquired will beRs.1000/-. But in the cross examination, he would admit thatUthukottai Town is two kilo metre away from the lands acquired . Tosubstantiate his evidence that there are cinema theatres, hospitals ,High school and Higher Secondary School,there is no document producedon behalf of the claimant/appellant.7. In Ex R1 plan, no building was shown near the lands situatenear the acquired lands. The ratio laid down in Tribeni Devi-v- TheCollector, Ranchi(AIR 1972 Supreme Court, 1417) runs as follows:"In our view, Rs.1,35,000/- per acre would be areasonable rate at which compensation could beawarded to the claimants. The High Court was notjustified in giving 10% towards potential valuebecause that element is inherent in the fixationof the market value of the land and could not beassessed separately. The High Court was also notjustified in disallowing 5% awarded by theJudicial Commissioner, Chhotanagpur ascompensation for severance merely because therewas an entrance to the land. When a portion ofthe land is acquired and a large portion left outthere would be a diminution in the value of theland that is left out for which some compensationhas to be allowed. The 5% allowed by the JudicialCommissioner, Chhotanagpur is reasonable".Relying on the above said ratio, the learned counsel appearing forthe appellant would contend that the lands acquired are all wet landsand even as per the award, in S.No.55/1A out of 1.05 cents 66 cents https://hcservices.ecourts.gov.in/hcservices/ were acquired and the remaining 39 cents was left out. Like that inS.No.66/1A, out of total extent of 48 cents, only 28 cents wereacquired leaving the remaining 20 cents to the claimant. InS.No.66/2A, out of total extent of 24 cents, 14 cents alone wereacquired and the remaining10 cents were left out. In S.No.71/3Bout of total extent of 15 cents only 9 cents were acquired and theremaining 6 cents were left out. In S.No.71/4B, out of total extentof 26 cents only 21 cents were acquired leaving 5 cents to theclaimant. In S.No.72/5 B out of total extent of 50 cents only 22cents were acquired and the remaining 28 cents were not acquired. InS.No.72/1B out of total extent of 76 cents only 63 cents wereacquired leaving 13 cents left to the claimant. So out of theentire 3 acre 44 cents in one Block, only 2.23 acres were acquiredleaving 1 acre 21 cents to the claimant.8. Relying on Section 23 of the Act, the learned counselappearing for the appellant would contend that even though theclaimant had asked for Rs.60,000/- towards severance compensation asprovided under Section 23(1)(thirdly), the Land Acquisition Tribunalhas failed to consider the same and before this Court, the claimanthad restricted her claim under the head of "Severance compensation"as Rs.10,000/- only. Section 23 of the Act reads as follows:"The matters to be considered in determiningcompensation.Firstly. . . . . . . . . .. . . Secondly. . . . . . . . . Thirdly, the damage(if any) sustained by theperson interested , at the time of the Collector'staking possession of the land, by reason ofsevering land from his other land.Fourthly . . . . . . . ...Fifthly. . . . . . . . ."So under the statute, the claimant is entitled to compensation underSection 23(1) (thirdly) of the Act.9. The learned Special Government Pleader would contend that onlyif the lands acquired are severed in to two halves then only theclaimant can make her claim for more compensation under Section 23(1)(thirdly) of the Act. But such an argument has no legs to standbecause severance means, even if the land under acquisition by theGovernment is divided into more than one part then the land owner/claimant is entitled to compensation under Section 23(1)(thirdly) ofthe Act, which in this case, I fix as Rs.10,000/- as claimed by theclaimant. The Land Acquisition Tribunal only on the basis of Ex C1which relates to S.No.123/3 which as per Ex R1 plan is situate juston the east of the land acquired has fixed the compensation asRs.230/- per cent. Ex C2 relates to S.No.293/2 under which 14 ½ centsof wet lands were sold at the rate of Rs.88 per cent and the saidland is situate on the west of the lands acquired and is situateseven survey fields away from the lands acquired on the west. TheLand Acquisition Tribunal on the basis of Ex C1 under which 13 centsof lands in S.No.123/3 were sold for Rs.3,000/- ie., Rs.230 per cent,has enhanced the award passed by the learned Land AcquisitionOfficer in Award No.5/85-86 dated 16.5.1985 to Rs.230 per cent https://hcservices.ecourts.gov.in/hcservices/ with other benefits contemplated under Sections 23 and 34 ofthe Act. I do not find any reason to modify the award passed by theland Acquisition Tribunal/Subordinate Judge, Trivellore, inL.A.O.P.No.327 of 1986 except the compensation under Section 23(1)(thirdly), which I fix as Rs.10,000/-.10. In fine, the appeal is allowed in part and theappellant/claimant is awarded a sum of Rs.10,000/- (Rupees Tenthousand) only towards severance of compensation under Section 23(1)(Thirdly) of the Land Acquisition Act over and above the award passedby the Land Acquisition Tribunal in L.A.O.P.No.327 of 1986 on thefile of the Land Acquisition Tribunal/Subordinate Judge, Trivellore.In other aspects, the award of the Land AcquisitionTribunal/Subordinate Judge, Trivellore in L.A.O.P.No.327 of 1986 isconfirmed. The benefits of the above said compensation will beworked out in accordance with the provisions contained in Sections 23and 34 of the Act. NO costs. C.M.P.No.1026 of 2008 is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sgTo1. The Subordinate Judge, Trivellore2. The Record Keeper, V.R.Section, High Court, Madras.+ 1 CC To Mr.M.S.Subramanian, Advocate SR NO.36320+ 1 CC to the Government Pleader SR NO 35705A.S.NO.36/1998 andC.M.P.No.1026/2008RA(CO)SRA(17/07/2008)