The Special Tahsildar (LA) Salem – Karur Broad Gauge, Railway Scheme, Salem v. Parvathy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.11.2010CORAMTHE HONOURABLE MR. JUSTICE M. VENUGOPALA.S.No.723 of 2010and M.P.Nos.1 & 2 of 2010The Special Tahsildar (LA)Salem – Karur Broad Gauge,Railway Scheme,Salem. ... Appellant/Referring OfficerVs.1.Parvathy2.Mani3.Chellamuthu4.Rangasamy5.Krishnan6.Duraisamy ... Respondents/Claimants7.The Deputy Chief Engineer (Construction) South Railway, Salem-5, Salem-Karur Broad Gauge, Railway Scheme. ... Respondent/BeneficiaryAppeal suit filed under Section 54 of the Land AcquisitionAct, to set aside the Decree passed in L.A.O.P.No.293 of 2002dated 19.05.2003 on the file of the Additional District SessionsCourt, (Fast Track Court-I), Salem.For Appellant : Mr.V.Ravi, Special Govt. Pleader (AS)For 7th Respondent : Mr.V.G.Suresh KumarJUDGMENTThe Appellant/Referring Officer has projected the instantAppeal before this Court as against the Award dated 19.05.2003 inL.A.O.P.No.293 of 2002 passed by the Learned Additional DistrictSessions Judge, (Fast Track Court-I), Salem.2.Since the subject matter of the present Appeal is coveredby the Judgment of the Division Bench of this Court in A.S.Nos.430to 454 of 2007, 472 to 481 and 597 to 604 of 2008, dated16.07.2009, this Court to avoid an avoidable delay dispenses withthe issuance of notice to Respondents 1 to 6/Claimants. 3.The Appellant/Referring Officer has acquired the landsfor the purpose of laying Railway track from Salem to Karur to anextent of 2.01.0 hectares of land in various Survey Numbersincluding the Survey No.58/14A4 measuring an extent of 325 SquareMetre (1st Respondent measuring an extent of land 124.4 SquareMetre, 2nd and 3rd Respondents sons of Muthusamy measuring an extentof land 124.4 Square Metre, 4th Respondent measuring an extent ofland 27.23 Square Metre, 5th Respondent measuring an extent of land11.22 Square Metre and 6th Respodent measuring an extent of land37.75 Square Metre) belonging to the Respondents/Claimants in https://hcservices.ecourts.gov.in/hcservices/ Amanikondalampatti Village, Salem Taluk, by applying the exigencyprovision of the Land Acquisition Act, 1894. The 7th Respondent isthe Requisitioning Body/Beneficiary viz., Railways.4.The Notification as per Section 4(1) of the Act has beenissued on 23.02.1999. The said Notification has been published inTamil Dailies in Malai Murasu dated 25.02.1999 and in Dinakarandated 26.02.1999 and 08.03.1999 in the locality the saidnotification has been published. Section 6(1) Declaration underthe Land Acquisition Act, 1894 has been published on 17.03.1999 atPage 6 to 8, Part II, No.224, dated 17.03.1999. After complyingwith the necessary formalities laid down under the LandAcquisition Act, an Award has been passed on 28.10.1999 by theSpecial Tahsildar/Land Acquisition Officer. In the Award, theacquired land has been classified into three categories by theLand Acquisition Officer i.e., (1)an extent of 1.36.0 hectares asdry agricultural land (2)an extent of 5480.5 Square Metre, ashouse sites (3)994.5 Square Metre, as Natham.5.The Land Acquisition Officer as regards the dryagricultural land fixed the compensation at Rs.46,359/- per Acre,which comes to Rs.1.06 per Square Feet The compensation inrespect of the first category in aggregate has been awarded atRs.1,55,706.40p.However, the second and third categories havebeen considered together and a sum of Rs.140.70 per Square Metre, has been determined which comes to Rs.13.83 per SquareFeet. The compensation in aggregate fixed under the two categoriesworks out to Rs.7,66,885.35p.6.The 1st Respondent and 5 others have been granted thecompensation of Rs.95,700/-, Rs.25,355/- (2nd and 3rd Respondents),Rs.32,557/-, Rs.25,104/- and Rs.33,496/- respectively includingthe compensation for Thatched shed, Mangalore Tiled House, etc.,and aggregating in all a sum of Rs.2,12,213/- in respect of theacquired lands, by the Land Acquisition Officer. TheRespondents/Claimants have objected to the value of compensationawarded to them and being dissatisfied and because of theirobjection, the Appellant/Referring Officer has referred the matterbefore the Tribunal as per Section 18 of the Land Acquisition Act,1894.7.The Respondents 1 to 6 have prayed for the enhancement ofcompensation, dissatisfied with the quantum of compensationawarded by the Land Acquisition Officer in his Award.8.Before the trial Court viz., the Learned AdditionalDistrict Sessions Judge, (Fast Track Court No.I), Salem,L.A.O.P.Nos.247 to 299 of 2002 have been taken up for trial and aCommon Award has been passed on 19.05.2003 determining the marketvalue of the land acquired at Rs.125/- per Square Feet,irrespective of the classifications made by the Land Acquisition https://hcservices.ecourts.gov.in/hcservices/ Officer by considering all the lands on par with each other. Forthe Claimants whose lands have been severed from their remainingland, a compensation at 25% of the value has been granted. Asregards the individuals whose houses have been acquired, 25% ofthe value has been awarded. 9.The Tribunal has granted a sum of Rs.36,500/- to the 1stRespondent as compensation in respect of the Mangalore tiled houseand in respect of hut house, granted a sum of Rs.52,000/- and forthe RCC basement granted a sum of Rs.28,890/- and in respect ofthe 6th Respondent/Claimant's Mangalore house, a compensation ofRs.77,340/- has been awarded, in respect of the 5thRespondent/Claimant's Mangalore tiled house, a compensation ofRs.60,000/- has been granted, in respect of the 4thRespondent/Claimant's basement building, a sum of Rs.69,500/- hasbeen granted and apart from the above, the Tribunal has grantedthe statutory benefits.10.Before the Tribunal viz., the Learned AdditionalDistrict Sessions Judge, (Fast Track Court-I), Salem in the commonAward in L.A.O.P.Nos.247 to 299 of 2002, dated 19.05.2003, onbehalf of Claimants witnesses C.W.1 to C.W.10 have been examinedand Exs.C.1 to C.88 have been marked. On the side of theAppellant/Land Acquisition Officer, witness RW1 (SpecialTahsildar) has been examined and Exs.R.1 to R.8 have been marked.11.Being aggrieved against the Award dated 19.05.2003passed by the Tribunal viz., the Learned Additional DistrictSessions Judge, (Fast Track Court No.I), Salem in L.A.O.P.No.293of 2002, the Appellant/Referring Officer has filed the presentAppeal before this Court.12.The point that arises for consideration in this Appealis:Whether the Award in L.A.O.P.No.293 of2002 dated 19.05.2003 passed by the LearnedAdditional District Sessions Judge, (Fast TrackCourt-I), Salem is an Excessive one in the eye oflaw?The Contentions, Discussions and Findings on Point No.1:13.According to the Learned Special GovernmentPleader (AS), the Tribunal viz., the Learned Additional DistrictSessions Judge, (Fast Track Court-I), Salem while enhancing thecompensation exorbitantly for the land from Rs.1,14,490/- perHectare to Rs.125/- per Square Feet, and he, also in respect ofthe trees, building, structures, compound, factory, well, motorpumpsets, etc., has not followed the procedures prescribed underthe Land Acquisition Act, 1894 and indeed the Land AcquisitionOfficer has given the proper value of Rs.1,15,490/- per Hectare inrespect of the acquired land after carefully scrutinising the salewhich has taken place in the locality and prior to the date ofSection 4(1) Notification for acquisition of land etc.14.The Learned Special Government Pleader (AS) urges beforethis Court that the Tribunal has granted the compensation https://hcservices.ecourts.gov.in/hcservices/ excessively in respect of the trees without any evidence of theexperts in the field or the documents for the same to justify theenhanced claim and in short, the Tribunal has rested itsconclusion based on conjectures and surmises and apart from theabove, the other reasons assigned by it in the Award are nottenable legally and therefore, prays for allowing the Appeal infurtherance of substantial cause of justice.15.At this juncture, the Learned Special Government Pleader(AS) brings it to the notice of this Court that in A.S.Nos.430 to454 of 2007, 472 to 481 and 597 to 604 of 2008, this Court by aJudgment dated 16.07.2009 has determined the value of the land atRs.100/- per Square Feet, after deducting Rs.25/- per Square Feet,and the said Common Judgment in the aforesaid Appeal squarelyapplies to the facts and circumstances of the present case. 16.This Court worth recalls the decision of the HonourableSupreme Court Sangunthala (Dead) through LRs V. Special Tahsildar(Land Acquisition) and others (2010) 3 Supreme Court Cases 661 atpage 662, whereby and whereunder it is laid down as follows:"While determining value of the propertyacquired the fact whether the land has gotbuilding potentiality to be used for buildingpurposes in immediate or in near future needs tobe considered. Evidence of C.Ws established thatthe lands were near the residential housingcolonies and well connected to roads. High Courtignored materials on record and relied only ondepositions of C.Ws 1 and 6 who admitted thatinitially all the acquired lands were agriculturelands. It thus, fell into an error in concludingthat the acquired lands were agriculture landsand erroneously reversed the conclusions arrivedat by the Reference Court."17.Further, this Court aptly quotes the observation of theHonourable Supreme Court Thakur Kuldeep Singh (Dead) through LRsand others V. Union of India and others (2010) 3 Supreme CourtCases 794 at 795 whereby it is observed thus:"While fixing compensation, it is theduty of the Land Acquisition Collector and theCourt to take into consideration the nature ofthe land, its suitability, nature of the use forwhich the lands are sought to be acquired on thedate of notification, income derived or derivablefrom or any other special distinctive featurewhich the land is possessed of, the saletransactions in respect of land covered by thesame notification are all relevant factors to betaken into consideration in determining themarket value. It is equally relevant to considerthe suitability of neighbourhood lands as arepossessed of similar potentiality or anyadvantageous features or any specialcharacteristics available. The Collector as well https://hcservices.ecourts.gov.in/hcservices/ as the court should always keep in their mindthat the object of assessment is to arrive at areasonable and adequate market value of the land.While doing so, imagination should be eschewedand mechanical assessment of evidence should beavoided. More attention should be on the bonafide and genuine sale transactions as guidingstar in evaluating the evidence. The relevantfactor would be that of the hypothetical willingvendor would offer for the land and what awilling purchaser of normal human conduct wouldbe willing to buy as a prudent man in normalmarket conditions prevailing in the open marketin the locality in which the acquired lands aresituated as on the date of notification underSection 4(1) of the Act. The Judge who sits inthe armchair of the willing buyer and seeks ananswer to the question whether in the given setof circumstances as a prudent buyer he wouldoffer the same market value which the courtproposed to fix for the acquired lands in theavailable market conditions. The market value sodetermined should be just, adequate andreasonable.In view of the purpose for whichthe "circle rates" have been notified by theMinistry of Urban Affairs and Employment, marketvalue of a plot cannot be determined solely onthe basis of the circle rates. However, it cannotbe ignored in toto. If other materials areavailable, government rates can also beconsidered as corroborative evidence. The natureof the land plays an important role. Likewise,market conditions prevailing as on the date ofnotification are also relevant. Sale price inrespect of a small piece of land cannot be thebasis for determination of market value of alarge stretch of land."18.Also in Special Land Acquisition Officer V. Karigowdaand others (2010) 5 Supreme Court Cases 708 at page 710, theHonourable Supreme Court has held thus: "Keeping in mind the facts andcircumstances of the case, it will also be justand fair to adopt some liberal approach with someelement of guesswork to provide the claimantswith just and fair market value of the land inquestion. It must be remembered that the entireland was acquired for the purpose of submergingthe lands because of the water coming fromHemavathi Dam. In view of the cumulativediscussion referred to above it will be just,fair, equitable and in consonance with Sections23 and 24 of the Act that the market value of theland on 4-4-2002 can safely be taken as https://hcservices.ecourts.gov.in/hcservices/ Rs.2,30,000/- per acre in the case of garden land(instead of Rs.5,00,000/- per acre awarded by theHigh Court) and, applying the accepted principleof reducing the said compensation in the case ofdry land (instead of Rs.2,53,4000 per acreawarded by the High Court) keeping in view thepeculiar facts and circumstances of the presentcase and the evidence on record."19.It is to be noted that fixing of compensation by a Courtof Law is not an exact science. The significant thing to be takennote of by a Court of Law is to consider all relevant factors asper decision Baboo Ram V. State of Uttar Pradesh AIR 1980 All. 324(DB).20.All the potentialities of the land viz., advantageswhich the land has, present or future in the hands of an ownerwill have to be taken into account as held in Cedars RapidsManufacturing and Power Company V. Lacoste 1914 AC 569. 21.Moreover, a land is to be valued merely by reference tothe use to which it is being put, but, also by reference to theuse which it is reasonably capable of being put in future subject,of course, to the limitations mentioned in Section 24 of the Actas held in V.S.Subramania Chettiar V. State of Madras AIR 1953Madras 943.22.If a land has been acquired compulsorily as per the LandAcquisition Act, the value to be paid for it, is the value of theowner as it existed on the date of Notification as per Section 4of the Act and not the value of the taker as per decision ManmathaNath V. Secretary of State 83 IC 442.23.The locational advantages, the potential value, itsfuture prospects all these factors go a long way when a Court ofLaw fixes a compensation amount in respect of the acquired land.24.Be that as it may, this Court pertinently quotes theobservations may by the Division Bench of this Court in theJudgment in A.S.Nos.430 to 454 of2007, 472 to 481 and 597 to 604of 2008, dated 16.07.2009 which runs below:"8.As contended by the learned counsel forthe second respondent, the sales that took placein and around the land under acquisition, whichare 615 in number, were sold on sq. ft. basis ashouse sites for the purpose of putting up theconstruction of building. That is the reason forthe counsel for the second respondent to concedethat they cannot object for determination of thecompensation by square feet basis.9.We also find, on facts, that almost allthe 615 sales were made on the basis of sq. ft.only. It is seen from paragraph 9 of the judgmentof the Reference Court, wherein it has https://hcservices.ecourts.gov.in/hcservices/ categorically been admitted by the appellant –Special Tahsildar, who deposed as DW1 that thelands which are the subject matter of LAOP NO.252,257, 281 to 285, 287, 288 of 2002 were all housesites. He further admitted that the lands underacquisition, though differently classified in therevenue records, they are house sites only and thelands in and around the acquired lands have beensold as house sites only. The claimants, whodeposed before the Reference Court, have alsospoken to about this fact that though the land inSurvey No.19/3A1A has been classified asagricultural dry and natham, the sales that wereeffected during the period were on the sq. ft.,basis treating the lands as house sites. Hence, onthe basis of the documents supported by theevidence adduced by as many as 10 claimants whichhas been supported by the evidence of DW1, theSpecial Tahsildar, we can safely come to theconclusion that the action of the Reference Courtin determining the compensation at sq. ft., basisis correct and cannot be stated to be faulty. 10.In respect of the value determined bythe Reference Court, it is true that before theReference Court, Sl.No.476 a document dated15.04.1998 in which land has been sold atRs.100.55 per sq. ft., has not been marked by theclaimant, but the fact remains that the verydocument was available before the Reference Courtas it was taken as one of the several data lands.By taking into the totality of the circumstancesof the case, as to the lie of the land suitablefor immediate construction and that Sl.No.476document is also one of the several documentsgathered by the Land Acquisition Officer for thepurpose of determining the value of the land,which on par with the acquired land in allaspects, is more suitable for determining thevalue of the subject land. As already stated,under that document, a square foot has been soldat Rs.100.55. On that basis, the Reference Courthas determined the value at Rs.125/- per sq. ft.,by enhancing the value by Rs.25/-. 11.We are not able to sustain the argumentof the learned counsel for the second respondent,that the enhancement of Rs.25/- over and above thevalue of the land in Sl.No.476, because Sl.No.476was sold on 15.04.1998, but the 4(1) notificationis dated 23.02.1999. Hence, there must be someescalation in the price of the house sites. Asper Section 23 of the Land Acquisition Act, thevalue has to be determined by taking intoconsideration the market value of the land on thedate of publication of the notification under https://hcservices.ecourts.gov.in/hcservices/ Section 4(1) of the Act. As the date of thenotification under Section 4(1) of the Act isnearly one year after the date of sale of landunder Sl.No.476, the enhancement of Rs.25/-, inour view, would reflect the fair market value. Ifthat be so, we are of the view that thedetermination of the value of the land at Rs.125/-per sq. ft., is a fair market value of the landand it cannot be regarded as on the higher side.An attempt was made to contend that no amount wasdeducted from the value determined towardsdevelopment charges, by relying on the supremeCourt decisions in the cases of Basavva V. Spl.Land Acquisition Officer, (1996) 9 SCC 640 andLand Acquisition Officer, Kammarapally Village V.Nookala Rajamallu, AIR 2004 SC 1031. Here again,we are not able to concur with the argument. Thepublic purpose for which the land was acquired inthe present case is for formation of railway trackfrom Salem to Karur, which require no developmentexcept strengthening the track land and laying therail track. It is apt, we think to quote certainobservations made by the Apex Court in the case ofNelson Fernandes V. Special Land AcquisitionOfficer, 2007 (9) SCC 447:"We are not, however, oblivious of thefact that normally 1/3rd deduction offurther amount of compensation has to bedirected in some cases. However, thepurpose for which the land acquired mustalso be taken into consideration. In theinstant case the land was acquired forthe construction of new B.G. Line forKonkan Railway. This Court, in HasanaliKhanbahi & sons V. State of Gujarat,(1995) 2 SCC 422 and Land AcquisitionOfficer V. Nookala Ramamallu, 2003(12)SCC 334 had, noticed that where lands areacquired for specific purposes deductionby way of development charges ispermissible. In the instant case,acquisition is for laying a railway line.Therefore, the question of developmentcharges thereof would not arise."But the Reference Court has not taken intoconsideration the largeness of the area which hasbeen acquired, while arriving at the value withreference to small piece of land in Sl.No.476. Theextent of lands sold by document dated 15.04.1998in S.No.476 is 398 sq.mt., (4187 sq.ft.), whereasthe land acquired is an extent of 2.01.0 hectares.Hence, definitely certain percentage in the valuehas to be deducted towards the largeness of thearea acquired. https://hcservices.ecourts.gov.in/hcservices/

12.In all reasonableness, a deduction ofRs.25/- per sq. ft., in our view, would meet theends of justice. If such a deduction is given,the value of the land would be Rs.100/- per sq.ft. Thus, the value of the land is determined atRs.100/- per sq. ft."25.Since the subject matter of the present AppealA.S.No.723 of 2010 is covered by a Common Judgment of the DivisionBench of this Court in A.S.Nos.430 to 454 of 2007, 472 to 481 and597 to 604 of 2008, dated 16.07.2009, this Court follows the sameand after deducting a sum of Rs.25/- per Square Feet fixes themarket value of the acquired land at Rs.100/- per Square Feet andaccordingly, allows the Appeal in part, without costs.26.In other respects, the Award of the Tribunal viz., theLearned Additional District Sessions Judge, (Fast Track Court-I),Salem dated 19.05.2003 made in L.A.O.P.No.293 of 2002 is notinterfered with by this Court.27.The fees of the Learned Special Government Pleader(AS) is determined by this Court as per Rule 12 of LegalPractitioner's Fees Rules, 1973 based on the present facts andcircumstances of the case.28.In the result, the Appeal is allowed in part, leavingthe parties to bear their own costs. Consequently, the Awardpassed by the trial Court in L.A.O.P.No.293 of 2002 dated19.05.2003 stands modified. In other respects, the Award of theTrial Court is affirmed. Consequently, the connected miscellaneouspetitions are closed.Sd/Asst. Registrar/True Copy/Sub Asst.RegistrarvaTo1 The Additional District Sessions Court, (Fast Track Court-I), Salem.2 The Section Officer,VR Section, High Court, Chennai 104.+1 CC to Government pleader (SR No.80750)GV(CO)DD 07/12/2010A.S.No.723 of 2010and M.P.Nos.1 & 2 of 2010