The Land Acquisition Officer and Revenue Divisional Officer, Coimbatore v. Palaniappan Chinnasamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.02.2010CORAM :THE HONOURABLE Mrs.JUSTICE R.BANUMATHIandTHE HONOURABLE Mr.JUSTICE A.ARUMUGHASWAMYA.S.Nos.123 to 130, 133 and 134 of 2007&589 to 595/2006 and 649 to 655 of 2006The Land Acquisition Officerand Revenue Divisional Officer,Coimbatore.... Appellant in all AS. /Referring Officervs.PalaniappanChinnasamy.. Respondents in AS.123/07RamathalLoganayagiRamesh.. Respondents 1 to 3 in AS.124/07R.Vijayakumar.. 1st Respondent in AS.125/07PalanichamyNanjammalThulasiammalChinnammalAndal.. Respondents 1 to 5 in AS.126/07(Claimants)LoganayagiR.Ramesh.. Respondents 1 & 2 in AS.127/07(Claimants)RamachandranSubbathal.. Respondents 1&2 in AS.128/07Karthikeyan RaveendranSethumadhavanG.Michael.. Respondents 1 to 3 in AS.129/07R.ParamasivamA.Aruchamy.. Respondents 1 & 2 in AS.130/07P.MadhavagopalLakshmiSankaran https://hcservices.ecourts.gov.in/hcservices/ K.AnuradhaK.PrabhakaranR.DassMichael Arokia SheelaDevamalarMartin Anthonyraj.. Respondents 1 to 9 in AS.133/07N.K.PonnuswamyRamaswamyA.Masanam.. Respondents 1 to 3 in AS.134/07S.Arumugam(died)Chinnappa(died)SubbathalM.ShanmugamM.KandasamyMani @ IndiraniM.RamasamyRangathalM.KrishnaswamyS.RajamaniSasikumarS.Ramesh KumarS.PoovathalPalanisamy(RR14 & 15 brought on record as LRsof the deceased 2nd respondent videorder dt.10.7.07 in MP.1 to 7/07in AS.589/06)SarassammalDhanabackiyamS.A.MahalingamR.Shanthi .. Respondents in AS.589/06(RR16 to 19 impleased as LRs of thedeceased R1 vide order dt.22.4.09 made in MP.1/09 in AS.589/06)S.Chinnappa GounderSubbathalM.ShanmugamM.KandasamyMani @ IndiraniM.RamasamyRangathalM.KrishnasamyS.RajamaniS.SasikumarS.RameshkumarS.PoovathalPalanisamy.. Respondents in AS.590/06 https://hcservices.ecourts.gov.in/hcservices/ (RR13 & 14 brought on recordsas LRs of the deceased 1st respondent vide order dt.10.7.07made in MP.No.1 to 3/07 in in AS.No.590/06)M.Ramasamy.. 1st Respondent in AS.591/06MaragathamNatarajanKanakarajKavithaValliammal.. Respondents 1 to 5 in AS.592/06KaruppathalM.ShanmughanathanM.Duraisamy.. Respondents 1 to 3 in AS.593/06R.Jaganathan.. 1st Respondent in AS.594/06R.Ayyasami.. 1st Respondent in AS.595/06M.Palanisamy.. 1st Respondent in AS.649/06Chinnappa Gounder(deceased)S.PoovathalPalaniswamy.. Respondents in AS.650/06RR3 & 4 brought on record asLRs of the deceased 1st respondentvide order 10.7.07 made in MP.No.1 to 3/07 in AS.650/06Subbin.. 1st Respondent in AS.651/06Ramanna Gounder(died)GopalsamySubbathalKaruppasamyRajeswari.. Respondents in AS.652/06(RR4 to 6 impleaded as LRs of thedeceased 1st respondent vide order 19.8.09 in AS.652/06)Venkatachalam.. 1st Respondent in AS.653/06N.Venkatachalam.. 1st Respondent in As.654/06Karuppa GounderNanjukuttiR.PonnuswamyN.VenkatachalamNanjammalThulasiammalManguthai https://hcservices.ecourts.gov.in/hcservices/ S.AruchamyRajamani @ Ramathal.. Respondents 1 to 9 in AS.655/06The Controller of Aerodrome, Civil Aerodrome/Airport Director,Peelamedu,Coimbatore Airport. .. 3rd Respondent in As.123/07,127/07,128/07,130/07 & 652/064th Respondent in As.124/07,129/07,134/07 & 593/062nd Respondent in AS.125/07,591/06,594/06,595/06,649/06,650/06,651/06,653/06,654/066th Respondent in As.126/07,592/0710th Respondent in As.133/07,655/07 respectively.13th Respondent in As.589/0612th Respondent in AS.590/06respectively.Prayer: Appeals filed under Section 54 of Land Acquisition Actagainst the Common Judgment made in L.A.O.P.Nos.128 to130,132,133,134,143,135,144,149 of 1996 and 111 to 117/1996,119,118,122 to 125 and 127/1996 respectively dated 29.10.2004 onthe file of I Additional Subordinate Judge, Coimbatore.For Appellant : Mr.V.Raviin all cases Special Government Pleader [AS]For Respondents/Claimants in all cases: Mr.C.R.Prasanan, Mr.D.Sivakumaran, Mr.Satish Parasaran, Mr.K.Kalyanasundaram Mr.T.T.RavichandranFor Acquisition Body/Beneficiary in all : Mr.T.A.Srinivasan forcases M/s. Sree and Associates. COMMON JUDGMENTR.BANUMATHI,JBeing aggrieved by enhancement of compensation for the landsacquired for extension of existing run-way of Coimbatore Airport,Land Acquisition Officer has filed these Appeals. https://hcservices.ecourts.gov.in/hcservices/

2. Since, all the Appeals arise out of common Judgment, allthe Appeals were taken up together and shall stand disposed of bythis Common Judgment.3. At the instance of the Senior Aerodrome Officer,Coimbatore Airport, acquisition proceedings were initiated foracquisition of an extent of 18.16.5 Hectares comprised inS.F.No.601/1A2 etc. measuring 7.43.5 Hectares of Kalapattyvillage in Coimbatore and in S.F.No.316/5B etc. measuring 19.68.0Hectares of Uppilipalayam village of Coimbatore under urgencyclause of Land Acquisition Act to wit for the use of extension ofexisting run-way of Coimbatore Airport and providing approachlighting system. As the land acquisition proceedings in this casewere initiated under urgency clause, enquiry under Sec.5(A) ofLand Acquisition Act was withheld. The Draft Declaration underSec.6 of the Act was approved in G.O.Ms.No.3145, Transport dated01.07.1992. Award enquiry under Sec.11 of the Act were conductedon 04.7.1994, 06.7.1994 and 08.7.1994 respectively. Salesstatistics were gathered for the proceeding one year from thedate of publication of Sec.4(1) notification i.e. 29.05.1992.Among such sales, the sale of the land that took place inS.F.No.712 of Kalapatty village was taken as data land for fixingthe land value for the acquisition fields. As per DocumentNo.1721 dated 12.3.1992, in S.F.No.712 of Kalapatty village, anextent of 1.73 acres was sold for Rs.1,78,500/- which comes toRs.1,03,179.19 per acre or Rs.2,54,853.00 per Hectare which wastaken by the Land Acquisition Officer for comparison.S.F.No.712 of Kalapatty village was taken as data land as it lieswithin 1.5 K.M. distance from the acquisition fields and the LandAcquisition Officer felt that both data land and the acquisitionfields are similar in all aspects.4. On objection raised by the land owners, Sec.18 referencewas made. In the Reference Court, Claimants Vijayakumar andRamachandran were examined as CW1 and CW2 respectively. Exs.C1to C13 were marked on the side of Claimants. On the side ofReferring Officer, one Nararayanamurthy was examined as RW1 andExs.R1 to R4 were marked. On the side of AcquisitionBody/Beneficiary, one Gopalakrishnan was examined and 10documents were marked. 5. Based on Exs.C1 and C2-Layouts and Ex.C4 [05.05.1989]and Ex.C5 [11.9.1991] sale deeds, Reference Court had observedthat the market value of the acquired lands would fetchRs.20,00,000/- per Hectare. Giving 60% deduction, Court hasarrived at the value at Rs.7447/- per cent. However, pointingout that before the Land Acquisition Officer, Claimantsthemselves have asked only for Rs.10,00,000/- per Hectare,Reference Court fixed the market value at Rs.5000/- per cent. Inso far as, LAOP.No.137/1996, Court has fixed the market value atRs.8000/- per cent which was ordered by separated from this Batchof cases. Reference Court also ordered 30% solatium and interest https://hcservices.ecourts.gov.in/hcservices/ at 9% for one year from 26.06.1992 to 25.6.1993 and thereafterinterest at the rate of 15% p.a. till the date of realisation.6. Challenging the enhancement of compensation, Mr.V.Ravi,learned Special Government Pleader has submitted that ReferenceCourt erred in taking Exs.C4 and C5 sale deeds as the comparablesale deeds and the properties sold under those sale deeds arevery far away from the acquired lands and the enhancement ofcompensation of Rs.5000/- per cent made by the Reference Court ison the higher side.7. We have heard Mr.C.R.Prasannan, Mr.D.Shivakumaran,Mr.K.Kalyanasundaram, Mr.S.Satish Parasaran, andMr.T.T.Ravichandran learned counsels appearing for Claimants/Landowners respectively. We have also heard Mr.T.A.Srinivasan,learned counsel for Acquisition Body/Beneficiary. 8. Learned counsel for Respondents/Claimants submitted thatthe acquired lands are in Kalapatty and Uppilipalayam village andare situated in the midst of developed area and the compensationfixed by the Reference Court at Rs.5000/- per cent is very lessamount warranting no interference.9. As pointed out earlier, S.F.No.712 of Kalapatty villagewas found similar in all respects. As per Document No.1721 dated12.3.1992, an extent of 1.73 acre was sold for Rs.1,78,500/-.Based on which, the Land Acquisition Officer had fixed the valueat Rs.1,03,179.19 per acre or Rs.2,54,853/- per Hectare. It hasbeen brought in evidence that the acquired lands are surroundedby Airport, Railway Station, Residential colony and various multispeciality hospitals. When the acquired lands are in the midstof developed area, Land Acquisition Officer was not justified intaking Document No.1721 dated 12.03.1992 for comparison in whichlarge extent of land was sold as agricultural land.10. In a catena of decisions, the Supreme Court has laiddown the governing principles for determination of market valueand the amount of compensation. The positive as well as negativefactors to be taken into consideration for arriving at thecorrect market value. In (2005) 4 SCC 789 [Viluben JhalejarContractor v. State of Gujarat], the Supreme Court held asunder:-"18. One of the principles for determination of theamount of compensation for acquisition of land would bethe willingness of an informed buyer to offer the pricetherefor. It is beyond any cavil that the price of theland which a willing and informed buyer would offerwould be different in the cases where the owner is inpossession and enjoyment of the property and in thecases where he is not.19. Market value is ordinarily the price the propertymay fetch in the open market if sold by a willing https://hcservices.ecourts.gov.in/hcservices/ seller unaffected by the special needs of a particularpurchase. Where definite material is not forthcomingeither in the shape of sales of similar lands in theneighbourhood at or about the date of notificationunder Section 4(1) or otherwise, other sale instancesas well as other evidences have to be considered.20. The amount of compensation cannot be ascertainedwith mathematical accuracy. A comparable instance hasto be identified having regard to the proximity fromtime angle as well as proximity from situation angle.For determining the market value of the land underacquisition, suitable adjustment has to be made havingregard to various positive and negative factors vis-a-vis the land under acquisition by placing the two injuxtaposition. The positive and negative factors areas under:-Positive factorsNegative factors(i) smallness of size(i) largeness of area(ii) proximity to a roaddistance(ii) situation in the interiorat a from the road(iii) frontage on a road(iii) narrow strip of land withvery small frontage compared todepth(iv) nearness to developedarea(iv) lower level requiring thedepressed portion to be filledup(v) regular shape(v) remoteness from developedlocality(vi) level vis-a-vis landunder(vi) some specialdisadvantageous acquisitionfactors which would deter apurchaser(vii) special value for anowner of an adjoiningproperty to whom it mayhave some very specialadvantage21. Whereas a smaller plot may be within the reach ofmany, a large block of land will have to be developedpreparing a layout plan, carving out roads, leavingopen spaces, plotting out smaller plots,waiting forpurchasers and the hazards of an entrepreneur. Such https://hcservices.ecourts.gov.in/hcservices/ development charges may range between 20% and 50% ofthe total price.11. On the side of Claimants, Cws.1 and 2 were examined.Acquired lands are access both from Avinashi Road and TrichyRoad. Several educational institutions are situated in andaround the acquired lands. That apart, multi specialityhospitals are also situated nearby. SITRA and other Mills arealso situated in the surrounding of the acquired lands. In theirevidence, Claimants have further stated that the acquired landsbeing situated in the midst of developed area surrounded byeducational institutions, multi speciality hospitals and Millshas higher market value. Claimants have further stated thatKalapatty and Uppilipalayam are in the centre of Coimbatore andthe layouts have been formed and lands are only sold as houseplots.12. The oral evidence adduced by the Claimants isstrengthened by Exs.C1 to C3-Layouts formed in the surroundingarea. As seen from Ex.C4 sale deed dated 05.05.1989 wherein anextent of 0.65¾ cents in S.F.No.297/2 was sold forRs.10,00,000/- [Rs.15,159/- per cent]. Like wise, in Ex.C5[11.9.1991], an extent of 3600 sq.ft. in Plot No.20 of AlameluNagar Layout was sold for Rs.1,81,836/- [Rs.21,800/- per cent].Exs.C4 and C5 are the sale deeds of the year 1989 and 1991respectively, atleast two years prior to the acquisition. Whenthe lands were acquired invoking urgency clause dispensing withenquiry under Sec.5(A) of the Act, the Land Acquisition Officerought to have been more reasonable in fixing the market value. 13. For determining the amount of compensation payable inrespect of the lands acquired by the State, market value thereforis to be ascertained. The expression 'market value' has been thesubject matter of consideration by the Supreme Court in severalcases. Market value is the price that the willing purchaserwould pay to the willing seller for the property having dueregard to its existing condition with all its existing advantagesand its potential possibilities. In considering the 'marketvalue' the guiding factor would be the conduct of hypotheticalwilling vendor who would offer the land and a purchaser in normalhuman conduct would be willing to buy as a prudent man in normalmarket conditions. For ascertaining the market value of theland, the area of the land, nature thereof and advantages anddisadvantages occurring therein amongst others would be relevantfactor for determining the actual market value of the property.That apart, potentiality of the acquired land should also betaken into consideration. 14. Considering the factors whether the land has gotpotential value or not, in (2008) 3 MLJ 806 (SC) [Atma Singh(died) through LRs and others v. State of Haryana and Another],the Supreme Court has held as under:- https://hcservices.ecourts.gov.in/hcservices/ "5. For ascertaining the market value of the land,the potentiality of the acquired land should also betaken into consideration. Potentiality meanscapacity or possibility for changing or developinginto state of actuality. It is well settled thatmarket value of a property has to be determinedhaving due regard to its existing condition with allits existing advantages and its potential possibilitywhen led out in its most advantageous manner. Thequestion whether a land has potential value or not,is primarily one of fact depending upon itscondition, situation, user to which it is put or isreasonably capable of being put and proximity toresidential, commercial or industrial areas orinstitutions. The existing amenities like, water,electricity, possibility of their further extension,whether near about Town is developing or has prospectof development have to be taken into consideration.See Collector Raigarh v. Hari Singh Thakur, AIR 1979SC 472, Raghubans Narain v. State of U.P., AIR 1969SC 465 and Administrator General, W.B. v. CollectorVaranasi (supra). It has been held in Kaushalya Deviv. L.A.O. Aurangabad, AIR 1984 SC 892 and SureshKumar v. T.I.Trust, AIR 1980 SC 1222 that failing toconsider potential value of the acquired land is anerror of principle."15. As is seen from the oral and documentary evidence,acquired lands are situated in the midst of developed area. Whenthe acquired lands are in the midst of developed area havingaccess from both two main roads, the Land Acquisition Officer wasnot justified in taking the data sale deed in S.F.No.712 in whichan extent of 1.73 acre [agricultural land] was sold atRs.1,78,500/-.16. We have gone through the Topo sketch. Even though,S.F.No.297/2 [Ex.C4] and Plot No.20 of Alamelu Nagar Layout areslightly far away from the acquired lands, the potentiality ofthe acquired lands have to be kept in view. In his evidence,RW1-Land Acquisition Officer himself has admitted that theacquired lands are situated in the midst of developed area. RW1has further deposed that the acquired lands are having accessfrom main Roads and near to the City. Being near to the cityand in the midst of developed area, the acquired lands are inadvantageous position having potentiality of development. Whilefixing the market value, the Land Acquisition Officer is requiredto consider the location of property, its advantages as well aspotentiality. Existing amenities that the acquired lands havingaccess to two main Roads and its potentiality to residential,commercial and educational institutions and its proximity toCoimbatore City, the prospect of future development have to betaken into consideration. As per Exs.C4 and C5 sale deeds, themarket value per cent is Rs.15,159/- and Rs.21,800/- https://hcservices.ecourts.gov.in/hcservices/ respectively. When nearby area the Plots were sold as houseplots, in our considered view, the Land Acquisition Officer hasnot kept in view the potentiality of the land and prospect fordevelopment and the compensation given was meagre amount.17. Statistics show that most of the acquisitions relate tolands held by small farmers, whose livelihood depends upon theacquired lands. As held by the Supreme Court in (2009) 4 MLJ 137(SC) [Special Land Acquisition Officer, U.K.Project v. Mahabooband another], even though the land is taken purportedly inaccordance with law by resorting to acquisition proceedings, theCollector is supposed to offer a fair compensation by taking allrelevant circumstances relating to market value into account.The Supreme Court further held that the Land Acquisition Officersseldom make reasonable offer and they tend to err on the saferside and invariably assess very low compensation.18. Even though, based upon Exs.C4 and C5-sale deeds,Reference Court has taken the market value at Rs.20,000/- percent, but the Reference Court has made 60% deduction fordevelopment charges and taken Rs.7447/- per cent. Pointing outthat the land owners themselves have asked for onlyRs.10,00,000/- per Hectare. There again, Reference Courtrestricted to Rs.5000/- per cent. We are of the view that theReference Court was very conservative in fixing the market valueat Rs.5000/- per cent. We are of the opinion that ReferenceCourt ought not to have restricted Rs.5000/- per cent. However,since Claimants have not preferred any appeal or Cross-Objectionfor enhancement, the matter has to be left there. The marketvalue fixed by the Reference Court itself is very low, we find noreason for further deduction. We therefore confirm the marketvalue of the land fixed by the Reference Court at Rs.5000/- with30% solatium and 12% additional market value for 792 days[19.5.1992 to 29.7.1994]. In so far as interest, Tribunal hasawarded interest on the enhanced amount with 30% solatium i.e. atthe rate of 9% for one year period from 26.06.1992 and thereafterat 15% p.a. till the date of deposit, the same is also confirmed.19. It is stated that part of the compensation amount alongwith accrued interest and proportionate solatium was deposited inall the appeals and Claimants have also withdrawn part of theamount so deposited.20. A.S.Nos.123 to 130, 133, 134/2007 & 589 to 595 and 649to 655/2006:- In the result, all the Appeals are dismissed. The Appellant is directed to deposit entire balancecompensation amount along with solatium and accrued interestwithin a period of eight weeks from the date of receipt of thecopy of this Judgment. Claimants are permitted to withdraw thebalance compensation along with solatium and accrued interest https://hcservices.ecourts.gov.in/hcservices/ thereon.In the circumstances of the case, there is no order as tocosts in all these Appeals. Connected Miscellaneous Petitions areclosed.Learned Special Government Pleader shall be entitledseparate fee in each of the Appeal.Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarbbrTo1. The I Additional Sub-Judge, Coimbatore.2. The Record Keeper, V.R.Section, High Court, Madras.3. The Land Acquisition Officer andRevenue Divisional Officer, Coimbatore.+ 13 CCs to Mr.D.Shivakumar, Advocate,SR.11979,11977,11978+ 1 cc to Government Pleader,SR.11931+ 6 cc to M/s.Sree and Associatess,SR.11855,11856,11854+ 2 cc to Mr.M.Kalyanasundaram,Advocate,SR.12558,12559+ 1 cc to Mr.C.R.Prasanan,Advocate,Sr.12138 A.S.Nos.123 to 130 133 and 134 of 2007&589 to 595/2006 and 649 to 655 of 2006MBS(CO)EM/17.3.10