The Special Tahsildar, Adi Dravidar Welfare Thirupathur North Arcot District v. Saman (died) & Ors.

IN THE HIGH COURT OF JUDICATURE OF MADRASDATED:15.10.2009CORAM:THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAHA.S.No.391 of 2000andC.M.P.No.8521 of 2002The Special Tahsildar,Adi Dravidar WelfareThirupathurNorth Arcot District .. Appellant/Referring Officervs1. Saman (died)2. Chinnathai (died)3. Shanmugam(RR2 and 3 have been brought on record as LRs of the deceasedfirst respondent vide order dated30.8.2000.)(R3 recorded as LR of deed R2 videorder dated.16.6.09 .. Respondents/ClaimantsAppeal against the judgment and decree dated 21.12.1994in L.A.O.P.No.52 of 1991 on the file of the learned SubordinateJudge of Thiruppathur.For Appellant: Mr.V.Ravi Special Govt.Pleader (A.S.)For Respondent : Mr.P.S.Kothandaraman JUDGMENT This appeal by the Land Acquisition Officer is focussedas against the judgment and decree dated 21.12.1994 passed by thelearned Subordinate Judge of Thirupathur in L.A.O.P.No.52 of1991. For convenience, the ranks of the parties before the lowerCourt are maintained in this judgment.2. The brief facts which are necessary for the disposalof this appeal are as follows:The Government published Section 4(1) Notification underthe Land Acquisition Act for acquiring the lands measuring anextent of 0.15.0 hectares in S.No.415/2C, 0.20.0 hectares inS.No.415/3, O.40.5 hectares in S.No.416/2, 0.21.5 hectares inS.No.417 /1 and 0.25.0 hectares in S.No.418/1A in Peddur Village,Vaniyambadi Taluk for the purpose of providing housing sites for https://hcservices.ecourts.gov.in/hcservices/ the Adi Dravidar personnel. After complying with the procedures,the Land Acquisition Officer passed an award in Award No.5/90-91dated 5.2.1991 assessing a sum of Rs.11,000/- per acre towardscompensation. Being aggrieved by such awarding of thecompensation, the matter was got referred to the Sub Court underSection 18 of the Land Acquisition Act.3. During enquiry before the Sub Court, claimant wasexamined as P.W.1. On the side of the respondent, R.W.1 wasexamined and Exhibits B1 to B3 were marked.4. The trial Court, ultimately enhanced the compensationfrom Rs.11,000/- per acre to Rs.3.33/- per sq.feet.5. Being aggrieved by and dissatisfied with suchenhancement, the Government filed this appeal on various grounds.6. Heard Mr.V.Ravi, the learned Special GovernmentPleader (A.S) appearing for appellant and Mr.P.S.Kothandaraman,the learned counsel appearing for the respondent.7. Learned Special Government Pleader would submit in hisargument that the lower court had wrongly fixed the value atRs.3.33 per sq.ft, where as the acquired lands were punja landsand the principle of fixing the value for punja lands at squarefeet rate is prohibited by the principle laid down by the Hon'bleApex court. He would further submit in his argument that theenhancement of compensation fixed by the Land Acquisition Officerat Rs.11,000/- per one acre has been wrongly enhanced by thelower court. He would further submit in his argument that thejudgment of the Hon'ble Apex court reported in 1995 Supp (4) SCC219 (INDUMATI CHITALEY vs. GOVT. OF INDIA AND ANOTHER) for theprinciple that fixing of market price at square feet basis forlarger extent of lands is not sustainable in law. He would againsubmit in his argument that the data land as described in Ex.B2is a punja land with all features similar to the lands acquired.He would also submit that lower court did not assign any reasonsfor relying upon Ex.A1- a sale deed in respect of house sitewhich cannot be applied to the present case. He would also submitthat the claimant had only asked for a compensation ofRs.40,000/- per one acre but the lower court had awarded morethan Rs.1000/- per one cent by fixing value at Rs.2.66/- persq.ft which is highly excessive. He would also submit that thesaid award of compensation is against the principles laid down inthe Section 28 of the Land Acquisition Act. He had also cited ajudgment of Hon'ble Apex Court reported in 1997 1 SCC 249 (TEHRIHYDRO DEVELOPMENT CORPN. vs. S.P. SINGH AND OTHERS) to the saidproposition of law. He would therefore request the court that themarket value fixed by the Land Acquisition Officer is perfectlyalright and the enhancement of compensation by the Tribunal isbeyond all propositions and it is more than 10 times the valuefixed by the Land Acquisition Officer and therefore it is liableto be set aside. He would also request that the appeal be allowed https://hcservices.ecourts.gov.in/hcservices/ after setting aside the enhancement of compensation allowed bythe lower court and to fix the market value in consonance withthe finding reached by the Land Acquisition Officer.8. The learned counsel for the respondents/claimantswould submit in his argument that the lower court was correct infixing the value at Rs.2.66/- per one sq.ft based on thevaluation in the Ex.A1 even though the lower court has to fix theactual sales price entered into Ex.A1. He would further submit inhis argument that the sale entered into between the third partiessufficiently prior to the date of notification would certainlyapply to the present case and the fixing of the market value bythe Land Acquisition Officer was very low which is not applicableto the present case. He would further submit in his argument thatLand Acquisition Officer has searched for the lowest price andhad fixed the market value at Rs.11,000/- per one acre which isfar beyond all proportions of the actual value of the land. Thevalue mentioned in the said sale deed produced as Ex.B2 was awayfrom the acquired land as well as from Peddur village where asthe land comprised in Ex.A1 is the adjacent land and it was soldas house site and therefore the lower court was very muchdepending upon the said document as the data sale in Ex.B2 wasnot applicable to fix the market value of the lands acquired. Hewould submit in his argument that the lower court also deducted20% of the value at Rs. 3.33 per square foot as mentioned inEx.A1 towards the development charges fixed though the acquiredlands were taken away from the claimants for the purpose ofproviding house sites to the houseless Adi Dravidar communitypeople. It has been recommended by the Hon'ble Apex court in ajudgment reported in AIR 2007 SC 740 (THE DEPUTY DIRECTOR, LANDACQUISITION v. MALLA ATCHINAIDU & ORS.) that the deductiontowards the development charges at 35% is not justified and 1/5thof the value mentioned in the document would be sufficient forassessing the correct value. He would also submit that the lowercourt had adopted the value mentioned in Ex.A1 since no otherdocument was very much suitable for fixing the value of the landacquired and therefore the calculation at square feet basis wasopted by the lower court and it is in no way prejudicial to theappellant. Therefore the facts of the case mentioned in the Apexcourt as cited by the learned Special Government Pleader wouldnot be applicable to the facts of the present case. He wouldagain submit in his argument that the Land Acquisition Officerhad not properly enquired prior to the passing of the award buthad come to a conclusion without gathering the data of sales inand around the lands acquired including Ex.A1 sale. He would alsosubmit that the claimant is always entitled to the actual marketvalue, despite he has claimed less. As per the judgment of ourApex court reported in 2008 10 SCC 797 between (BHIMASHA vs.SPECIAL LAND ACQUISITION OFFICER AND ANOTHER). He would also drawthe attention of the court to the judgment of Hon'ble Apex courtreported in 1969 1 MLJ SC 45 in between ( SRI RANI M.VIJAYALAKSHMAMMA RAO BAHADUR, RANEE OF VUYYUR vs. THE COLLECTOROF MADRAS) to the principle that wheb different transactions were https://hcservices.ecourts.gov.in/hcservices/ collected by the Government, the transaction involving highestvalue should be preferred to the rest unless there are strongcircumstances justifying different modes. Therefore he wouldrequest the court that the fixing of market value by the lowercourt is perfectly alright and the potentiality of the land isalso implied since it was taken for the purpose of providinghouse to the houseless Adi-Dravidar community people and theacquired land is lying adjacent to the house sites near thePeddur village. Therefore he would ask for dismissal of theappeal and to confirm the judgment and award passed by the lowercourt.9. I have given anxious thoughts to arguments advanced oneither side .10. The point for consideration is that whether thejudgment and award passed by the lower court in fixing the marketvalue at square feet rate for the acquired lands would besustainable or not.11. The acquired lands were belonging to the 1strespondent/ claimant at Peddur village in S.No.415/2C of anextent of 0.15.0 hectare; in S.No.415/3 of an extent of 0.26.0hectare; in S.No.416/2 of an extent of 0.40.5 hectare; inS.No.417/1 of an extent of 0.21.5 hectare and in S.No.418/1A ofan extent of 0.25.0 hectare and for a total extent of 1.28.0hectare and they were acquired along with other lands for thepurpose of providing house sites to the house less Adi-Dravidarcommunity people. The 4(1) notification was issued in theGovernment Gazette on 10.08.1988 where as it was published in thevillage only on 12.08.1988. However the Land Acquisition Officerhad gathered data sales in between 12.08.1987 and 11.08.1988.Accordingly 39 datas were collected and 39th data sale deed dated28.07.1988 under which one acre of punja land in S.No.256/2 wassold for a sum of Rs.11,000/- was selected for fixing the value.The other datas contained in the said data sales produced asEx.B1 were rejected by the Land Acquisition Officer as notapplicable to the land acquired. How ever the lower court hadafter going through the evidence produced on either side came tothe conclusion of rejecting the value fixed by the landacquistion officer on the basis of Ex.B2 the data sale and hadrelied upon Ex.A1 produced by the claimant. 12. The land acquisition office who was examined as RW1had categorically admitted that several documents showing highervalue for the said lands were not relied upon but he hadconsidered that the data sale in S.No.39 of Ex.B1 (Ex.B2 saledeed) and relied upon the same for fixing the value atRs.11,000/- per one acre. It is the dictum of our Apex courtreported in 1969 1 MLJ (SC) 45 in between SRI RANI M.VIJAYALAKSHMAMMA RAO BAHADUR, RANEE OF VUYYUR vs. THE COLLECTOROF MADRAS that the highest value should be preferred. Therelevant passage would run thus: https://hcservices.ecourts.gov.in/hcservices/ "... Whatever that may be, it seems tous to be only fair that where sale deedpertaining to different transactions are reliedon behalf of the Government, that representingthe highest value should be preferred to therest unless there are strong circumstancesjustifying a different course. In any case wesee no reason why an average of two sale deedsshould have been taken in this case."In view of the dictum laid down by the Hon'ble Apex courtthe highest value found in the data sales should have beenadapted by the Land Acquisition Officer and if he wants todeviate from adapting higher value then there must be a strongreason for justifying the different quotes. We go through theaward passed by the Land Acquisition Officer he has not evendescribed why he has come to the conclusion of adapting the valueEx.B2. As we had already discussed that he had admitted in hisevidence as RW1 that he had rejected the circumstance valuesfound in the data sales for no reasons. Therefore the value fixedby the Land Acquisition Officer at Rs.11,000/- per one acrecannot be accepted.13. As regards the reliance placed by the lower courtEx.A1 is concerned we have to firstly see whether the said landcould be compared for fixing the lands acquired. Ex.A1 wasproduced by PW2 who had entered into the transaction. The saidsale was dated 05.01.1988 prior to 4(1) notification. The saidsale was calculated for a sum of Rs.10,000/- for an extent of2400 sq.ft. In S.No.412/1 out of 2 acres 68 cents. There is nodispute that the land comprised in Ex.A1 sale deed was punja landbut it has been sold on square feet basis. The smaller extent ofland measuring 5.5 cents equal to 2400 sq.ft was sold. When oncea smaller extent is sold the value mentioned in the said documentshould have been applied with necessary deductions. Before thatwe have to see whether the said document could be applied inpreference to other documents especially Ex.B2. There is nodispute that the land comprised in Ex.A1 was adjacently locatedto the acquired land. When the village Map Ex.B3 is perused wecould see that the land in Ex.A1 is seen located next to theacquired lands where as the land comprised in s.No.39 of Ex.B1(the land in Ex.B2) was located far away on the northern side ofPeddur village. The other data sales and are also not very nearto the lands acquired and therefore the appropriate land shouldbe the land comprised in Ex.A1 for the purpose of fixing thevalue of acquired lands. In the said circumstances, we could seethe arguments advanced by the learned Government pleader that thelower court was wrong in adopting Ex.A1. The land in fixing thevalue is not sustainable. Ex.A1 land was sold as a house siteand therefore, the acquired lands lying adjacent to the said landare having such higher potential value. However the said landcomprised in Ex.A2 was a smaller one for which we have to fixvalue for the larger extent of the acquired lands. When the value https://hcservices.ecourts.gov.in/hcservices/ of smaller extent of the land has been applied for the largeextent of land, deduction should be made towards developmentcharges. As rightly pointed by the learned counsel forrespondents/claimants 20% of the deduction for ascertaining thecorrect value of the acquired lands could be allowed as per thedictum of our Apex court laid down in AIR 2007 SC 740 between THEDEPUTY DIRECTOR, LAND ACQUISITION v. MALLA ATCHINAIDUR & ORS."Moreover, the High Court has failed to take intoconsideration Ex.A-5, A-6 and A-17, which areagreements of sale wherein the rate per acre wasbetween 2 lakhs to 2 ½ lakhs per acre. Thereference court, held that recitals in Ex.A-1,A-5 to A-7 and A-15, A-16 and A-18 go to establishthat there were willing purchasers for the landsof the claimants at rupees more than 2 lakh andthe recitals in Ex.A-13 further go to show thateven a wet land which is not fit for using it ashouse sites was agree to be purchased at Rs.1000/-per cent." The lower court had in conformity with the judgment ofHon'ble Apex court had come to the conclusion of deducting 20% ofthe value fixed by it on the basis of Ex.A1. Lower court wasconscious about fixing the market value of Rs.8000/- for the said2400 sq.ft inspite of fixing the value at Rs.10,000/- is agreedin between two parties. Actually the market value would be thevalue agreed to pay by a willing purchaser to a willing seller.The said principle has been enumerated in various judgments ofour Apex court. Therefore, according to the wishes of both sellerand buyer in Ex.A1, the value of the property should have beenfixed at Rs.10,000/- for 2400 sq.ft. However the lower court hadtaken the valuation at Rs.8000/- only and it arrived at the valueto be fixed at Rs.3.33/- per one square feet. It had reduced 20%from the said value towards the deduction charges ascontemplated in the judgment of our Apex court for ascertainingthe value of larger extent by deducting towards developmentcharges. Accordingly it was fixed at Rs.2.66 per sq.ft.14. The contention of the learned Government pleaderwould be that the fixing of market value for the agriculturallands on square feet basis is illegal as per the judgment of ourApex court reported in 1995 Supp (4) SCC 219 (INDUMATI CHITALEYvs. GOVT. OF INDIA AND ANOTHER. The relevant passage would be asfollows:-"..Though alternative method had been adopted to useit as plots for building purposes which was alsoadopted by the High court, we think that thealternative method adopted by the reference court aswell as by the High court is not correct on thefacts of this case." https://hcservices.ecourts.gov.in/hcservices/ When we compare the facts of the present case we couldsee that the lands acquired were only for non agriculturalpurpose of providing house sites to the land less Adi-Dravidarcommunity people. We have also seen that the adjacent land eventhough punja land was sold as house site and therefore the landsacquired were having potential value. According to the judgmentof our Apex court reported in (1985) 1 SCC 469 (SPECIAL LandAcquisition Officer, BANGALORE vs. B.M. KRISHNAMURTY) we couldsee the dictum laid by our Apex court thus"4. Though the compensation awarded foragricultural lands is not directly in issue inCivil Appeal 1127 of 1974 and SLP 3450 of 1974, itis necessary to consider the same in determiningthe compensation to be awarded for lands whose usefor non-agricultural purposes has been sanctioned.In considering the compensation to be awarded foragricultural lands the High court took notice ofthe circumstance that the lands had great potentialvalue for building purposes on account of theirexcellent location.""5.....Taking that into account and making aprovision for a 20% rise in price on the basis ofthe documentary evidence produced before the court,the High court thought that compensation at therate of Rs.22,000 per acre was adequate andreasonable for land the user of which had beenpermitted to be converted from agricultural to non-agricultural. We think that the conclusion of thehigh court is unassailable." Since the conversion of agricultural land into nonagricultural purpose is set out through the acquisition. Thefacts discussed in these judgment of our Apex court 1995 Supp (4)SCC 219 (INDUMATI CHITALEY vs. GOVT. OF INDIA AND ANOTHER) notapplicable to the present case.15. Therefore, I could see that the lower court wasjustified in adopting the method of fixing the market value onthebasis of the sale of smaller extent made in Ex.A1. The lowercourt could have calculated the value based on cent basis insteadof square feet basis. But it had resorted to on the availablesquare feet furnished in Ex.A1. If it is calculated on cent basisone cent of land as per Ex.A1 would be valued at Rs.1454.54/- andon reduction of 20% we could see one cent of land would cost atRs.1164/-. The value fixed at Rs.2.66/- per one square feet wouldalso cost Rs.1164/- for one cent if it is multiplied by 436sq.ft. The property sold through Ex.A1 was described and sold asagricultural land but with a lesser extent with the measurementgiven in square feet. Merely because it has been mentioned insquare feet which will not change the character of the property,sold under Ex.A.1. Therefore, the calculation made by the lower https://hcservices.ecourts.gov.in/hcservices/ court for fixing the market value on square feet basis is notattracted by the judgment of our Apex court as put forth by thelearned Government pleader are not applicable to the presentcase.16. For the foregoing discussions, I am of the consideredview that the lower court was right in fixing the market value onthe basis of Ex.A1 and its arrival to the fixing of market valueon the sound principles laid down for deduction of developmentcharges as mentioned in the judgment of Hon'ble Apex courtreported in AIR 2007 SC 740 (THE DEPUTY DIRECOR, LAND ACQUISITIONv. MALLA ATCHINAIDU & ORS.) 17. In view of the said judgment of Hon'ble Apex courtreported in 2008 10 SCC 797 between (BHIMASHA v. SPECIAL LandAcquisition Officer AND ANOTHER) there is no bar for the claimantbe awarded with higher compensation than he claimed. Accordinglythe judgment and award passed by the lower court are confirmed. 18. In fine, the appeal is dismissed by confirming thejudgment and award passed by the lower court. There will be noorder as to costs. Connected miscellaneous petition is closed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarTo1. The Subordiante Judge,Thirupatthur.2.The Record Keeper, V.R.Section, High Court, Madras.+ 1 cc to Mr.P.S.Kothandaraman,Advocate,SR.54203 A.S.No.391 of 2000 andC.M.P.No.8521 of 2002KSJ(CO)EM/27.1.10