Union of India v. S. Vivekanandan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 24.07.2008CORAMTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANA.S.No.853 of 19981.Union of India rep. by Secretary to Government, Revenue Department, Pondicherry.2.The Deputy Collector (Rev) – cum - Land Acquisition Officer, Karaikal... Appellants / RespondentsVs.S.Vivekanandan .. Respondent / ClaimantPrayer:-This appeal has been filed under section 54 of the LandAcquisition Act against the decree and judgment dated 19.08.1998 inLAOP.No.19 of 1996 on the file of the Additional District Judge,Pondicherry.For Appellants:Mr.R.Natrajan, Additional Government Pleader, PondicherryFor Respondent : Mr.S.Rajendaran , AdvocateJUDGMENTThis appeal has been directed against the judgment inLAOP.No.19 of 1996 on the file of the Court of Additional DistrictJudge, Pondicherry at Karaikal.2.The Government of Pondicherry have acquired 12 acres 76 Ares00 Ca of land in Kelaiyur Village of Karaikal Taluk comprised inS.Nos.56/1, 56/2, 56/3, 56/4, 56/5, 56/6, 57/1, 57/2, 57/3, 57/4,57/5, 57/6, 57/7, 71/1, 71/2, 71/3, 71/4, 74, 75/2, 75/3, 76/4,76/5 & 76/6 for the purpose of setting up a Gas Power Plant byElectricity Department, Kariakal, at Kelaiyur Village. https://hcservices.ecourts.gov.in/hcservices/

3. The Land Acquisition Officer, after following theformalities, had published notification under Section 4(1) of theLand Acquisition Act (hereinafter referred to as the 'Act') in theGazette on 22.05.1991. On the basis of the data land, the LandAcquisition Officer has fixed the compensation at Rs.5,250/- perAre for the dry land and at Rs.3,200/- per Are for the wet landacquired by the Government for the purpose of setting up Gas PowerPlant by electricity department at Kelaiyur Villat in Karaikal.Not satisfied with the compensation awarded by the Land AcquisitionOfficer, the claimant had preferred objections before him, whichwas referred to the Land Acquisition Tribunal under Section 18 ofthe Act. 4.Before the Land Acquisition Tribunal the claimant wasexamined as P.W.1 and Ex.A.1 to Ex.A.3 were marked on the side ofthe claimant. On the side of the respondents, the SpecialTahsildar Mr.S.Nagarajan was examined as R.W.1 and Ex.R.1 to Ex.R.4were marked. After scanning the evidence both oral and documentaryand after giving due deliberations to the submissions made by thelearned counsel for the claimants as well as the learned counselfor the respondents, the Land Acquisition Tribunal on the basis ofEx.A.1 to Ex.A.3 – sale deeds taking into consideration thepotentiality of the lands acquired and having come to theconclusion that the lands that were sold under Ex.A.1 to Ex.A.3 inthe year 1990 ie., before the Notification under Section 4(1) ofthe Act, and the lands acquired by the Government are similar innature, has raised the compensation awarded by the Land AcquisitionOfficer from Rs.3,200/- per Ares to Rs.4,000/- per Ares. Aggrievedby the findings of the Land Acquisition Tribunal, the Governmenthas preferred this appeal.5.Heard the learned Additional Government Pleader(Pondicherry) and also the learned counsel appearing for therespondent and considered their respective submissions.6.The learned Additional Government Pleader confined hisargument only in respect of deduction regarding developmentalcharges. The learned Additional Government Pleader would contendthat admittedly the lands acquired are not well developed one andare used for agricultural purposes and the Government had acquiredthe land for setting up Gas Power Plant for the ElectricityDepartment and for that lot of improvements to be made in the landsby the Government and towards that some deduction ought to havebeen made by the Land Acquisition Tribunal while awarding thecompensation. In support of this contention the learned AdditionalGovernment Pleader would rely on 2008(2) CTC 171 (The SpecialTahsildar (Land Acquisition), Adi Dravidar Welfare, Vridhachalam https://hcservices.ecourts.gov.in/hcservices/ Vs. Sornambal @ Sornasundari an another). The short facts of theabove said ratio are that about 2.63 acres of land inR.S.No.24/3 and 1 acre 37 cents of land in R.S.No.24/6 in BudhamurVillage, Vridhachalam, were acquired by the Land AcquisitionOfficer for the purpose of providing house sites for houselessdhobies and barbers. But the Land Acquisition Officer has fixed thecompensation at Rs.90/- per cent (9026 per Acre). On appeal theLand Acquisition Tribunal has enhanced and fixed the compensationat Rs.700/- per cent. Both the Government as well as theclaimants have preferred appeal and cross-objection respectivelybefore this Court. The learned Special Government Pleader for theGovernment in that case would contend that atleast 25% deductionshould be made from the compensation amount of Rs.7,000/- per acre(Rs.700/- per cent) towards development charges. Relying on aration decidendi in AIR 2004 SC 2006 (Kiran Tandon Vs. AllahabadDevelopment Authority and another), this Court has allowed 20%deduction towards development charges. 7.The learned Additional Government Pleader (Pondicherry)would also based his reliance for the same proposition of law on2005(9) SCC 594 (Land Acquisition Officer and Revenue DivisionalOfficer Vs. Ramanjulu and others), and would contend that in acase where lands were acquired by the Government for expansion ofindustrial estate, the Honourable Apex Court has held that 15%deduction towards development charges to be made. In the said casealso both the claimants as well as Land Acquisition Officer havepreferred appeal before the Honourable Apex Court. In that case,the learned Government Advocate for the Land Acquisition Officerbefore the Honourable Apex Court has contend that there was nomaterial placed before the Court to show as to what should be therate of escalation in price and that 20% escalation given is notjustified and that while determining the market value of the landacquired, they being agricultural land, proper deduction shouldhave been made towards developmental charges. Accepting thecontention of the learned Government Advocate for the LandAcquisition Officer, the Honourable Apex Court has held asfollows:-"Admittedly, the lands acquired areagricultural lands. It is on record that these landshave potentialities for conversion into house sites.They are acquired for the third phase of expansion ofindustrial estate. In these circumstances, certainamount has to be deducted towards developmental charges.Ordinarily, one-third deduction towards developmentalcharges would be made, but in these cases, having regardto the facts and circumstances, particularly taking noteof the fact that the lands are acquired for expansion ofindustrial estate, that too for the third phase, and also https://hcservices.ecourts.gov.in/hcservices/ taking note of the fact that the lands acquired arelevelled lands adjoining to developed lands for Phase Iand Phase II of industrial estate, we think it is justand appropriate to deduct fifteen per cent towardsdevelopmental charges."In the case on hand also the lands acquired are both dry and wetlands and the Land Acquisition Tribunal has fixed the compensationat Rs.4,000/- per Are on the basis of Ex.A.1 to Ex.A.3, under whichagricultural lands were sold. The Government has acquired thelands from the claimants taking into consideration that they arefit to set up Gas Power Plant for the Electricity Department. Thelearned Additional Government Pleader (Pondicherry) would contendthat the lands acquired by the Government in this LAOP are all wetlands and that necessary developmental measures are to be taken tomake the land fit for setting up Gas Power Plant for theElectricity Department. Under such circumstances, applying thesame yardstick taken by the Honourable Apex Court in 2005(9) SCC594 (Land Acquisition Officer and Revenue Divisional Officer Vs.Ramanjulu and others), I hold that 15% deduction is to be madetowards developmental charges from the compensation amount ofRs.4,000/- per Are awarded by the Land Acquisition Tribunal.8.The learned counsel for the respondent would contend thatfor the first time before this Court the appellants-Government haveraised the point that some deduction shall be given in the awardamount towards developmental charges. But even in the ratiodecidendi relied on before this Court the stand of deductiontowards developmental charges has been raised only before theappellate Court ie., before the High Court as well as before theApex Court and the same was considered for the first time beforethe appellate Court. Under such circumstances, the objectionraised by the learned counsel appearing for the respondent holds nowater.9.In fine, the appeal is allowed in part and the decree andjudgment in LAOP.No.22 of 1996 on the file of the AdditionalDistrict Judge, Pondicherry, is modified and the compensation forthe land acquired by the Government is fixed as Rs.3,400/- per Areinstead of Rs.4,000/- per Are as fixed by the Land AcquisitionTribunal. The claimant is entitled to the said compensation amountof Rs.3,200/- per Are with solatium, interest on solatium andadditional compensation as permissible under the Land AcquisitionAct. It is seen from the Order of this Court in CMP.No.19693 of1998 in A.S.No.864/1998 the entire award amount (as per thejudgment of the Land Acquisition Tribunal) was deposited before theTribunal and that the claimant was permitted to withdraw 50% of theaward amount without furnishing any surety. The claimant isentitled to withdraw the balance from out of the remaining 50% of https://hcservices.ecourts.gov.in/hcservices/ the award amount in deposit after adjusting the same with thepresent award amount passed in this appeal with accrued interest.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo,1. The Additional District Judge, Pondicherry.2. The Section OfficerVR Section,High Court, Madras1 cc to Sr. Government Pleader, cum Public Prosecutor forPondicherry, SR. 39803A.S.No.853 of 1998MDR (CO)kk 4/3