The Land Acquisition Officer and Revenue Divisional Officer, Coimbatore v. P.Palaniammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.03.2010CORAM :THE HONOURABLE Mrs.JUSTICE R.BANUMATHIandTHE HONOURABLE Mr.JUSTICE A.ARUMUGHASWAMYA.S.No132 of 2007The Land Acquisition Officerand Revenue Divisional Officer,Coimbatore.... Appellant/Referring Officervs.1. P.Palaniammal2. P.Kanakaran3. Rajamani4. P.Gunasekaran5. K.Gopal6. K.Murugesh7. R.Mayilathal8. Ashokkumar9. Nithya... Claimants | |10.The Controller of Aerodrome, |Respondents Civil Aerodrome, Peelamedu, | Coimbatore.... Beneficiary |Prayer: Appeals filed under Section 54 of Land Acquisition Actagainst the Common Judgment made in L.A.O.P.No.141 of 2000 dated29.10.2004 on the file of I Additional Subordinate Judge, Coimbatore.For Appellant : Mr.V.Ravi Special Government Pleader [AS]For Respondents/Claimants 5 to 9 : Mr.N.ManoharanFor Acquisition Body/Beneficiary : Mr.T.A.Srinivasanfor M/s. Sree and Associates. For Respondents 1 to 4 : D.Shivakumaran https://hcservices.ecourts.gov.in/hcservices/ 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 this Appeal. 2. At the instance of the Senior Aerodrome Officer, CoimbatoreAirport, acquisition proceedings were initiated for acquisition of anextent of 18.16.5 Hectares comprised in S.F.No.601/1A2 etc. measuring7.43.5 Hectares of Kalapatty village in Coimbatore and inS.F.No.316/5B etc. measuring 19.68.0 Hectares of Uppilipalayamvillage of Coimbatore including S.F.No.324/1A2 – 0.18.0 Hectares andS.F.No.324/1B2 – 0.24.5 Hectares under urgency clause of LandAcquisition Act to wit for the use of extension of existing run-wayof Coimbatore Airport and providing approach lighting system. Asthe land acquisition proceedings in this case were initiated underurgency clause, enquiry under Sec.5(A) of Land Acquisition Act waswithheld. The Draft Declaration under Sec.6 of the Act was approvedin G.O.Ms.No.3145, Transport dated 01.07.1992. Award enquiry underSec.11 of the Act were conducted on 04.7.1994, 06.7.1994 and08.7.1994 respectively. Sales statistics were gathered for theproceeding one year from the date of publication of Sec.4(1)notification i.e. 29.05.1992. Among such sales, the sale of the landthat took place in S.F.No.712 of Kalapatty village was taken as dataland for fixing the land value for the acquisition fields. As perDocument No.1721 dated 12.3.1992, in S.F.No.712 of Kalapatty village,an extent 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 was takenby the Land Acquisition Officer for comparison. S.F.No.712 ofKalapatty village was taken as data land as it lies within 1.5 K.M.distance from the acquisition fields and the Land Acquisition Officerfelt that both data land and the acquisition fields are similar inall aspects.3. On objection raised by the land owners, Sec.18 reference wasmade. In the Reference Court, all the matters relating to theacquisition of lands to wit for the use of extension of existing run-way of Coimbatore Airport were taken up together. Before theReference Court, a batch LAOPs. were taken up together and disposedof by common Judgment including L.A.O.P.No.141/2000. ClaimantsVijayakumar [Claimant in LAOP.No.130/1996] and Ramachandran[1stClaimant in LAOP.No.134/2006] were examined as CW1 and CW2respectively. Exs.C1 to C13 were marked on the side of Claimants.On the side of Referring Officer, one Nararayanamurthy was examinedas RW1 and Exs.R1 to R4 were marked. On the side of AcquisitionBody/Beneficiary, one Gopalakrishnan was examined and 10 documentswere marked. https://hcservices.ecourts.gov.in/hcservices/

4. Based on Exs.C1 and C2-Layouts and Ex.C4 [05.05.1989] andEx.C5 [11.9.1991] sale deeds, Reference Court had observed that themarket value of the acquired lands would fetch Rs.20,00,000/- perHectare. Giving 60% deduction, Court has arrived at the value atRs.7447/- per cent. However, pointing out that before the LandAcquisition Officer, Claimants themselves have asked only forRs.10,00,000/- per Hectare, Reference Court fixed the market value atRs.5000/- per cent. In so far as, LAOP.No.137/1996, Court has fixedthe market value at Rs.8000/- per cent which was ordered by separatedfrom the Batch of cases. Reference Court also ordered 30% solatium,12% additional market value and interest at 9% for one year from26.06.1992 to 25.6.1993 and thereafter interest at the rate of 15%p.a. till the date of realisation.5. 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 comparable saledeeds and the properties sold under those sale deeds are very faraway from the acquired lands and the enhancement of compensation ofRs.5000/- per cent made by the Reference Court is on the higher side.6. We have heard Mr.N.Manoharan, learned counsel appearing forRespondents 5 to 9. We have also heard Mr.T.A.Srinivasan, learnedcounsel for Acquisition Body/Beneficiary. 7. Learned counsel for Respondents 5 to 9/Claimants submittedthat the acquired lands [S.No.324/1A2 – 0.18.0 Hectares andS.F.No.324/1B2 – 0.24.5 Hectares] are in Uppilipalayam village and issituated in the midst of developed area and the compensation fixed bythe Reference Court at Rs.5000/- per cent is very less amountwarranting no interference. Learned counsel for Respondents 5 to 9would also submit earlier by order dated 23.2.2010 in A.S.No.123 of2007 Batch, the Division Bench of this Court confirmed the marketvalue of Rs.5000/- per cent fixed by the Reference Court.8. As pointed out earlier, S.F.No.712 of Kalapatty village wasfound 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/-. Basedon which, the Land Acquisition Officer had fixed the value atRs.1,03,179.19 per acre or Rs.2,54,853/- per Hectare. It has beenbrought in evidence that the acquired lands are surrounded byAirport, Railway Station, Residential colony and various multispeciality hospitals. When the acquired lands are in the midst ofdeveloped area, Land Acquisition Officer was not justified in takingDocument No.1721 dated 12.03.1992 for comparison in which largeextent of land was sold as agricultural land.9. In a catena of decisions, the Supreme Court has laid down thegoverning principles for determination of market value and the amount https://hcservices.ecourts.gov.in/hcservices/ of compensation. The positive as well as negative factors to betaken into consideration for arriving at the correct market value.In (2005) 4 SCC 789 [Viluben Jhalejar Contractor v. State ofGujarat], the Supreme Court held as under:-"18. One of the principles for determination of the amountof compensation for acquisition of land would be thewillingness of an informed buyer to offer the pricetherefor. It is beyond any cavil that the price of the landwhich a willing and informed buyer would offer would bedifferent in the cases where the owner is in possession andenjoyment of the property and in the cases where he is not.19. Market value is ordinarily the price the property mayfetch in the open market if sold by a willing sellerunaffected by the special needs of a particular purchase.Where definite material is not forthcoming either in theshape of sales of similar lands in the neighbourhood at orabout the date of notification under Section 4(1) orotherwise, other sale instances as well as other evidenceshave to be considered.20. The amount of compensation cannot be ascertained withmathematical accuracy. A comparable instance has to beidentified having regard to the proximity from time angleas well as proximity from situation angle. For determiningthe market value of the land under acquisition, suitableadjustment has to be made having regard to various positiveand negative factors vis-a-vis the land under acquisitionby placing the two in juxtaposition. The positive andnegative factors are as 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 landwith very small frontagecompared to depth(iv) nearness todeveloped area(iv) lower level requiring thedepressed portion to be filledup(v) regular shape(v) remoteness from developedlocality(vi) level vis-a-visland under(vi) some specialdisadvantageous acquisitionfactors which would deter apurchaser https://hcservices.ecourts.gov.in/hcservices/ Positive factorsNegative factors(vii) special value foran owner of an adjoiningproperty to whom it mayhave some very specialadvantage21. Whereas a smaller plot may be within the reach of many,a large block of land will have to be developed preparing alayout plan, carving out roads, leaving open spaces,plotting out smaller plots,waiting for purchasers and thehazards of an entrepreneur. Such development charges mayrange between 20% and 50% of the total price.10. Acquired lands are access both from Avinashi Road and TrichyRoad. Several educational institutions are situated in and aroundthe acquired lands. That apart, multi speciality hospitals are alsosituated nearby. SITRA and other Mills are also situated in thesurrounding of the acquired lands. In their evidence, Claimants havefurther stated that the acquired lands being situated in the midst ofdeveloped area surrounded by educational institutions, multispeciality hospitals and Mills has higher market value. Claimantshave further stated that Kalapatty and Uppilipalayam are in thecentre of Coimbatore and the layouts have been formed and lands areonly sold as house plots.11. The oral evidence adduced by the Claimants Vijayakumar andRamachandran is strengthened by Exs.C1 to C3-Layouts formed in thesurrounding area. As seen from Ex.C4 sale deed dated 05.05.1989wherein an extent 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 Alamelu NagarLayout was sold for Rs.1,81,836/- [Rs.21,800/- per cent]. Exs.C4and C5 are the sale deeds of the year 1989 and 1991 respectively,atleast two years prior to the acquisition. When the lands wereacquired invoking urgency clause dispensing with enquiry under Sec.5(A) of the Act, the Land Acquisition Officer ought to have been morereasonable in fixing the market value. 12. For determining the amount of compensation payable inrespect of the lands acquired by the State, market value therefor isto 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 purchaser wouldpay to the willing seller for the property having due regard to itsexisting condition with all its existing advantages and its potentialpossibilities. In considering the 'market value' the guiding factorwould be the conduct of hypothetical willing vendor who would offerthe land and a purchaser in normal human conduct would be willing tobuy as a prudent man in normal market conditions. For ascertaining https://hcservices.ecourts.gov.in/hcservices/ the market value of the land, the area of the land, nature thereofand advantages and disadvantages occurring therein amongst otherswould be relevant factor for determining the actual market value ofthe property. That apart, potentiality of the acquired land shouldalso be taken into consideration. 13. Considering the factors whether the land has got potentialvalue or not, in (2008) 3 MLJ 806 (SC) [Atma Singh (died) through LRsand others v. State of Haryana and Another], the Supreme Court hasheld as under:-"5. For ascertaining the market value of the land, thepotentiality of the acquired land should also be takeninto consideration. Potentiality means capacity orpossibility for changing or developing into state ofactuality. It is well settled that market value of aproperty has to be determined having due regard to itsexisting condition with all its existing advantages andits potential possibility when led out in its mostadvantageous manner. The question whether a land haspotential value or not, is primarily one of factdepending upon its condition, situation, user to which itis put or is reasonably capable of being put andproximity to residential, commercial or industrial areasor institutions. The existing amenities like, water,electricity, possibility of their further extension,whether near about Town is developing or has prospect ofdevelopment have to be taken into consideration. SeeCollector Raigarh v. Hari Singh Thakur, AIR 1979 SC 472,Raghubans Narain v. State of U.P., AIR 1969 SC 465 andAdministrator General, W.B. v. Collector Varanasi(supra). It has been held in Kaushalya Devi v. L.A.O.Aurangabad, AIR 1984 SC 892 and Suresh Kumar v.T.I.Trust, AIR 1980 SC 1222 that failing to considerpotential value of the acquired land is an error ofprinciple."14. As is seen from the oral and documentary evidence, acquiredlands are situated in the midst of developed area. When the acquiredlands are in the midst of developed area having access from both twomain roads, the Land Acquisition Officer was not justified in takingthe data sale deed in S.F.No.712 in which an extent of 1.73 acre[agricultural land] was sold at Rs.1,78,500/-.15. 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 of theacquired lands have to be kept in view. In his evidence, RW1-LandAcquisition Officer himself has admitted that the acquired lands aresituated in the midst of developed area. RW1 has further deposed https://hcservices.ecourts.gov.in/hcservices/ that the acquired lands are having access from main Roads and near tothe City. Being near to the city and in the midst of developedarea, the acquired lands are in advantageous position havingpotentiality of development. While fixing the market value, the LandAcquisition Officer is required to consider the location of property,its advantages as well as potentiality. Existing amenities that theacquired lands having access to two main Roads and its potentialityto residential, commercial and educational institutions and itsproximity to Coimbatore City, the prospect of future development haveto be taken into consideration. As per Exs.C4 and C5 sale deeds, themarket value per cent is Rs.15,159/- and Rs.21,800/- respectively.When nearby area the Plots were sold as house plots, in ourconsidered view, the Land Acquisition Officer has not kept in viewthe potentiality of the land and prospect for development and thecompensation given was meagre amount.16. 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. Mahaboob andanother], even though the land is taken purportedly in accordancewith law by resorting to acquisition proceedings, the Collector issupposed to offer a fair compensation by taking all relevantcircumstances relating to market value into account. The SupremeCourt further held that the Land Acquisition Officers seldom makereasonable offer and they tend to err on the safer side andinvariably assess very low compensation.17. Even though, based upon Exs.C4 and C5-sale deeds, ReferenceCourt has taken the market value at Rs.20,000/- per cent, but theReference Court has made 60% deduction for development charges andtaken Rs.7447/- per cent. Pointing out that the land ownersthemselves have asked for only Rs.10,00,000/- per Hectare. Thereagain, Reference Court restricted to Rs.5000/- per cent. We are ofthe view that the Reference Court was very conservative in fixing themarket value at Rs.5000/- per cent. We are of the opinion thatReference Court ought not to have restricted Rs.5000/- per cent.However, since Claimants have not preferred any appeal or Cross-Objection for enhancement, the matter has to be left there. Themarket value of Rs.5000/- per cent fixed by the Reference Courtitself is very low, we find no reason for further deduction. Wetherefore confirm the market value of the land fixed by the ReferenceCourt at Rs.5000/- with 30% solatium and 12% additional market valuefor 792 days [19.5.1992 to 29.7.1994]. In so far as interest,Tribunal has awarded interest on the enhanced amount with 30%solatium i.e. at the rate of 9% for one year period from 26.06.1992and thereafter at 15% p.a. till the date of deposit, the same is alsoconfirmed. In similar acquisition, earlier by common Judgment dated23.2.2010 in A.S.No.123 of 2007 Batch, the Division Bench of thisCourt [both of us were Members] confirmed the market value fixed by https://hcservices.ecourts.gov.in/hcservices/ the Reference Court. Hence, we are of the view that it would beappropriate to confirm the market value fixed by the Reference Courtand also the other benefits given in its Judgment.18. The main contention of the learned counsel for Respondents 5to 9 is that the compensation amount of Rs.89,740/- in respect ofS.F.No.324/1A1 – 0.18.0 Hectares had not been deposited by the LandAcquisition Officer before the Reference Court and Claimants 5 to 9are entitled to Rs.89,740/- with interest at 12% p.a. from26.06.1992. 19. In Award No.5/1994 dated 29.04.1994, the following landshave been included:"S.F.No.324/1A2, Uppilipalayam village measuring an extentof 0.18.0 Hectares owned by Subbammal, Subbathal, Francisand Chandra.S.F.No.324/1B2, Uppilipalayam village measuring an extentof 0.24.5 Hectares owned by Kappalankarai Gounder and 12others.During Award enquiry, Subbathal appeared. In the Award dated29.4.1994, a sum of Rs.2,11,885/- has been awarded as compensationfor 0.42.5 Hectares. Respondents 5 to 9 are the legalrepresentatives of deceased Subbathal.20. As there were varying as to the deposit of the amount, wehave called for report from the Reference Court [I Additional Sub-Judge, Coimbatore]. The Principal Subordinate Judge in-charge of IAdditional Sub-Court, Coimbatore sent the report which reads asunder:-"In both reference comprises two survey numbers which are324/1A2 and 324/1B2 total award amount of Rs.2,11,885/-for both S.F.Nos. by Referring Officer. But in thiscourt by mistakenly instead of passing entire awardamount for enhancement as stated above only forS.F.No.324/1B2 the amount of Rs.1,22,145/- only enhancedfor a sum of Rs.5,58,309/- in his order in LAOP. 140/2000dt. 24.8.2004 and the same is deposited in court by theReferring Officer dated 22.11.2007 in which a sum ofRs.3,72,191/- received by the Advocate onbehalf ofClaimant No.2 to 5 on 2.6.2008. Balance amount ofRs.1,86,103/- has been deposited on 28.3.2008 in the Bankby this court. Subsequently a sum of Rs.89,740/- wasalso deposited by Referring Officer in this court on12.01.2009. But the said amount was deposited inL.A.O.P.No.141/2000." https://hcservices.ecourts.gov.in/hcservices/

21. It is clear from the report of the Principal SubordinateJudge, Coimbatore that two references were made – (i)L.A.O.P.No.140/2000 under Sec.30 of L.A. Act and (ii)L.A.O.P.No.141/2000 under Sec.18 of L.A. Act for enhancement ofcompensation.22. In both reference comprises two Survey Numbers which areS.F.Nos.324/1A1 – 0.18.0 Hectares and 324/1B2 – 0.24.5 Hectares andthe total award amount is Rs.2,11,885/- for both Survey Numbers. Butthe award amount of Rs.1,22,145/- was deposited only in respect ofS.F.No.324/1B2. The amount in respect of S.F.No.324/1A2[Rs.89,740/-] was not deposited.23. While enhancing the compensation, Court has also passed theJudgment in enhancing the compensation only in respect ofS.F.No.324/1B2 – 0.24.5 Hectares. The enhancement for S.F.No.324/1A2– 0.18.0 Hectares was not specifically indicated.24. To put it shortly:-S.F.No.Name of Land ownersAmount awardedby LandAcquisitionOfficerRemarksEnhancement324/1A2(1) Subbammal(2) Subbathal(3) A.FrancisXavier(4) V.ChandraRs.89,740/- Not depositedinitiallyRs.89,740/-depositedonly on12.01.2009324/1B2(1) KappalankaraiGounder(2) Velumani(3) P.A.Mani(4) Sabastian(5) Krishnan Gutty(6) T.Selvamani(7) R.Mani(8) T.Krishnan(9) Gnanaprakasam(10)Alagupandian(11)P.Selvaraj(12)K.Subramanian(13)K.SelvamaniRs.1,22,145/-DepositedRs.5,58,309/-Out of whichClaimants 2to 5 havewithdrawnRs.3,72,191/- https://hcservices.ecourts.gov.in/hcservices/

25. The enhanced amount for S.F.No.324/1A1 – 0.18.0 Hectares,the Respondents 5 to 9 are entitled to Rs.89,740/- which is not saidto have been deposited on 12.01.2009 for which Claimants are entitledto interest. The Claimants are also entitled to enhancedcompensation along with 30% solatium. 12% additional market value for792 days [19.5.1992 to 29.7.1994] and interest at the rate of 9%forone year period from 26.06.1992 and thereafter at 15% p.a. till thedate of deposit.26. A.S.No.132/2007 [LAOP.No.141/2000]:- In the result, theappeal is dismissed. Appellant is directed to deposit Rs.89,740/-[which was already deposited] along with the entire amount ofenhanced compensation amount plus 30% solatium, 12% additional marketvalue for 792 days [19.5.1992 to 29.7.1994] and interest at the rateof 9% for the entire compensation including Rs.89,740/- for one yearfrom 26.6.1992 and thereafter at 15% p.a. till the date of depositwithin a period of eight weeks from the date of receipt of copy ofthis Judgment. On such deposit, Respondents 5 to 9 are permitted to withdrawtheir respective share of compensation along with solatium andaccrued interest thereon. Consequently, connected all M.Ps. areclosed. In the circumstances of the case, there is no order as to costsin this Appeal.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarbbrTo1.The I Additional Sub-Judge, Coimbatore.2.The Section Officer, V.R.Section, High Court, Madras.1 cc to Mr.N.Manokaran, Advocate, Sr.No.142951 cc to Mr.D.Shivakumaran, Advocate, Sr.No.14173 Judgment in A.S.No.132 of 2007LA {CO}TP/31.3.2010.