The Special Tahsildar (LA), Salem-Karur Broad Gauge, Railway Scheme, Salem v. Chellamuthu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 25.10.2010CORAMTHE HONOURABLE MR. JUSTICE M. VENUGOPALA.S.No.751 of 2010andM.P.No1 of 2010The Special Tahsildar (LA),Salem-Karur Broad Gauge,Railway Scheme,Salem.... Appellant/Referring OfficerVs1.Chellamuthu2.Selvaraj...1& 2 Respondents/Claimants 3.The Deputy Chief Engineer(Construction),Southern Railway,Salem-Karur Broad Gauge,Railway Scheme,Salem-5 ...3rd Respondent/Beneficiary PRAYER: Appeal filed under Section 54 of the Land Acquisition Act asagainst the Judgement and Decree dated 19.05.2003 made inL.A.O.P.No.247 of 2002 on the file of Learned Additional DistrictSessions Judge, (Fast Track Court No.I), Salem.For Appellant: Mr.V.Ravi, Special Government Pleader (AS)For Respondents: Mr.A.R.Suresh for R1 and R2 Mr.V.G.Suresh Kumar for R3 JUDGMENTThe Appellant/Referring Officer has filed the present Appeal asagainst the Award dated 19.05.2003 in L.A.O.P.No.247 of 2002 passedby the Learned Additional District Sessions Judge, (Fast Track CourtNo.I), Salem. 2.The Appellant/Referring Officer has acquired the lands for thepurpose of laying Railway track from Salem to Karur to an extent of https://hcservices.ecourts.gov.in/hcservices/

2.01.0 hectare of land in various Survey Numbers including the SurveyNos.19/3A1A and 19/3A4B measuring an extent of 01.06.750 hectarebelonging to the Respondents/Claimants in Amanikondlampatti Village,Salem Taluk, by invoking the urgency provision of the LandAcquisition Act, 1894. The Third Respondent is representing theRequisitioning body viz., Railways.3.The Notification as per Section 4(1) of the Act has beenissued on 23.02.1999. Section 4(1) Notification has been publishedin Tamil Dailies in Malai Murasu dated 25.02.1999 and in Dinakarandated 26.02.1999 and 08.03.1999 in the locality the said notificationhas been published. Section 6(1) Declaration has been published on17.03.1999 at Page 6 to 8, Part II, No.224, dated 17.03.1999. Aftercomplying with the necessary formalities prescribed under 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 the LandAcquisition Officer i.e., (1)an extent of 1.36.0 hectares as dryagricultural land (2)an extent of 5480.5 sq. mt., as house sites (3)994.5 sq. mt., as natham.4.The Land Acquisition Officer as regards the dry agriculturalland fixed the compensation @ Rs.46,359/- per acre, which comes toRs.1.06 per sq. ft. The compensation in respect of the firstcategory in aggregate has been awarded as Rs.1,55,706.40. However,the Second and third categories have been considered together and asum of Rs.140.70 per sq.mt. has been determined which comes toRs.13.83N.P. per sq.ft. The compensation in aggregate fixed underthe two categories comes to Rs.7,66,885.35.5.The Respondents/Claimants (brothers) have been granted thecompensation of Rs.14,789/- as compensation in respect of theiracquired lands. The Respondents/Claimants have objected to the awardof compensation of Rs.14,789/- and at their instance, theAppellant/Land Acquisition Officer has referred the matter before theTribunal. 6.Before the trial Court viz., Learned Additional DistrictSessions Judge, (Fast Track Court No.I), Salem, L.A.O.P.Nos.247 to299 of 2002 have been taken up for trial and a Common Award has beenpassed on 19.05.2003 determining the market value of the landacquired @ Rs.125/- per sq. ft., irrespective of classification madeby the Land Acquisition Officer by considering all the lands on parwith each other. For the Claimants whose lands have been severedfrom their remaining land, a compensation @ 25% of the value has beengranted. As regards individuals whose houses have been acquired, 25%of the value has been awarded. 7.Before the trial Court in the Common Award in L.A.O.P.Nos.247to 299 of 2002, dated 19.05.2003, on behalf of Claimants Witnesses https://hcservices.ecourts.gov.in/hcservices/ CW1 to CW10 have been examined and Ex.C.1 to Ex.C.88 have beenmarked. On the side of the Appellant/Land Acquisition Officerwitness RW1 (Special Tahsildar) has been examined and Ex.R1 to Ex.R8have been marked.8.Feeling aggrieved against the Award dated 19.05.2003 passed bythe Tribunal viz., Learned Additional District Sessions Judge, (FastTrack Court No.I), Salem in L.A.O.P.No.247 of 2002, theAppellant/Referring Officer has projected the present Appeal beforethis Court.9.The Point that arises for determination in this Appeal is"Whether the Award dated 19.05.2003 in L.A.O.P.No.247of 2002 passed by the Learned Additional District SessionsJudge, (Fast Track Court No.I), Salem, is an excessive orexorbitant one in the eye of law?10.The Contentions, discussions and findings on Point No.1:The Learned Special Government Pleader (AS) urges before thisCourt that the Tribunal viz., Learned Additional District SessionsJudge, (Fast Track Court No.I), Salem, while increasing thecompensation excessively for the land from Rs.1,14,490/- per hectareto Rs.125/- per sq.ft. and he also for the trees, building,structures, compound, factory, well motor, pumpset, etc., has notfollowed the procedures enshrined under the Land Acquisition Act,1894 and as a matter of fact, the Land Acquisition Officer hasgranted a proper value of Rs.1,14,490/- per hectare in respect of theacquired lands after careful scrutnising the sale which has takenplace in the locality and prior to the date of 4(1) Notification foracquisition of land etc.11.It is the contention of the learned Special GovernmentPleader (AS) that the trial Court has awarded compensationexorbitantly for trees without any evidence of the experts or thedocuments for the same to justify their enhanced claim and indeed thetrial Court has come to the conclusion based on surmises andconjectures and also the other reasoning furnished by the trial Courtin its Award are all an unsustainable one in the eye of law andtherefore prays for allowing the Appeal in the interest of justice. 12.However, the Learned Counsel for the Claimants brings it tothe notice of this Court that in A.S.Nos.430 to 454 of2007, 472 to481 and 597 to 604 of 2008, this Court by a Judgment dated 16.07.2009has fixed the value of the land @100/- per sq.ft. after deductingRs.25/- per sq. ft and the said Common Judgment in the aforesaidAppeal applies to the facts of the present case. https://hcservices.ecourts.gov.in/hcservices/

13.At this stage, this Court recalls the observation ofHonourable Supreme Court in the decision Thakur Kuldeep Singh (Dead)through LRs and Others v. Union of India and Others, (2010) 3 SupremeCourt Cases 794, at Page 795 whereby and whereunder, it is observedas follows:"While fixing compensation, it is the duty of the LandAcquisition Collector and the court to take intoconsideration the nature of the land, its suitability,nature of the use for which the lands are sought to beacquired on the date of notification, income derived orderivable from or any other special distinctive featurewhich the land is possessed of, the sale transactions inrespect of land covered by the same notification are allrelevant factors to be taken into consideration indetermining the market value. It is equally relevant toconsider the suitability of neighbourhood lands as arepossessed of similar potentiality or any advantageousfeatures or any special characteristics available. TheCollector as well as the court should always keep in theirmind that the object of assessment is to arrive at areasonable and adequate market value of the land. Whiledoing so, imagination should be eschewed and mechanicalassessment of evidence should be avoided. More attentionshould be on the bona fide and genuine sale transactions asguiding star in evaluating the evidence. The relevantfact6or would be that of the hypothetical willing vendorwould offer for the land and what a willing purchaser ofnormal human conduct would be willing to but as a prudentman in normal market conditions prevailing in the openmarket in the locality in which the acquired lands aresituated as on the date of notification under Section 4(1)of the Act. The Judge who sits in the armchair of thewilling buyer and seeks an answer to the question whetherin the given set of circumstances as a prudent buyer hewould offer the same market value which the court proposedto fix for the acquired lands in the available marketconditions. The market value so determined should be just,adequate and reasonable.In view of the purposoe for which the "circle rates"have been notified by the Ministry of Urban Affairs andEmployment, market value of a plot cannot be determinedsolely on the basis of the circle rates. However, itcannot be ignored in toto. If other materials areavailable, government rates can also be considered ascorroborative evidence. The nature of the land plays animportant role. Likewise, market conditions prevailing ason the date of notification are also relevant. Sale price https://hcservices.ecourts.gov.in/hcservices/ in respect of a small piece of land cannot be the basis fordetermination of market value of a large stretch of land."14.In Sangunthala (Dead) through LRs. v. Special Tahsildar (LandAcquisition) and Others, (2010) 3 Supreme Court Cases 661, at Page662, the Honourable Supreme Court has held thus:"While determining value of the property acquired thefact whether the land has got building potentiality to beused for building purposes in immediate or in near futureneeds to be considered. Evidence of CWs established thatthe lands were near the residential housing colonies andwell connected to roads. High Court ignored materials onrecord and relied only on depositions of Cws 1 and 6 whoadmitted that initially all the acquired lands wereagriculture lands. It thus, fell into an error inconcluding that the acquired lands were agriculture landsand erroneously reversed the conclusions arrived at by theReference Court."15.In Special Land Acquisition Officer v. Karigowda and Others,(2010) 5 Supreme Court Cases 708, at Page 710, the Honourable SupremeCourt has held that"... Keeping in mind the facts and circumstances of thecase, it will also be just and fair to adopt some liberalapproach with some element of guesswork to provide theclaimants with just and fair market value of the land inquestion etc."16.Further, this Court aptly quotes the observations of theDivision Bench in the Judgment in A.S.Nos.430 to 454 of2007, 472 to481 and 597 to 604 of 2008, dated 16.07.2009 in Paragraph 8 to 12which run as follows:"8.As contended by the learned counsel for the secondrespondent, the sales that took place in and around theland under acquisition, which are 615 in number, were soldon sq. ft. basis as house sites for the purpose of puttingup the construction of building. That is the reason forthe counsel for the second respondent to conceded that theycannot object for determination of the compensation bysquare feet basis.9.We also find, on facts, that almost all the 615sales were made on the basis of sq.ft. only. It is seenfrom paragraph 9 of the judgment of the Reference Court,wherein it has categorically been admitted by the appellant– Special Tahsildar, who deposed asDW1 that the lands whichare the subject matter of LAOP NO.252, 257, 281 to 285,287, 288 of 2002 were all house sites. He further admittedthat the lands under acquisition, though differentlyclassified in the revenue records, they are house sitesonly and the lands in and around the acquired lands have https://hcservices.ecourts.gov.in/hcservices/ been sold as house sites only. The claimants, who deposedbefore the Reference Court, have also spoken to about thisfact that though the land in Survey No.19/3A1A has beenclassified as agricultural dry and natham, the sales thatwere effected during the period were on the sq. ft., basistreating the lands as house sites. Hence, on the basis ofthe documents supported by the evidence adduced by as manyas 10 claimants which has been supported by the evidence ofDW1, the Special Tahsildar, we can safely come to theconclusion that the action of the Reference Court indetermining the compensation at sq. ft., basis is correctand cannot be stated to be faulty. 10.In respect of the value determined by the ReferenceCourt, it is true that before the Reference Court,Sl.No.476 a document dated 15.04.1998 in which land hasbeen sold at Rs.100.55 per sq. ft., has not been marked bythe claimant, but the fact remains that the very documentwas available before the Reference Court as it was taken asone of the several data lands. By taking into the totalityof the circumstances of the case, as to the lie of the landsuitable for immediate construction and that Sl.No.476document is also one of the several documents gathered bythe Land Acquisition Officer for the purpose of determiningthe value of the land, which on par with the acquired landin all aspects, is more suitable for determining the valueof the subject land. As already stated, under thedocument, a square foot has been sold at Rs.100.55. Onthat basis, the Reference Court has determined the value atRs.125/- per sq. ft., by enhancing the value by Rs.25/-. 11.We are not able to sustain the argument of thelearned counsel for the second respondent, that theenhancement of Rs.25/- over and above the value of the landin Sl.No.476, because Sl.No.476 was sold on 15.04.1998, butthe 4(1) notification is dated 23.02.1999. hence, theremust be some escalation in the price of the house sites.As per Section 23 of the Land Acquisition Act, the valuehas to be determined by taking into consideration themarket value of the land on the date of publication of thenotification under Section 4(1) of the Act. As the date ofthe notification under Section 4(1) of the Act is nearlyone year after the date of sale of land under Sl.No.476,the enhancement of Rs.25/-, in our view, would reflect thefair market value. If that be so, we are of the view thatthe determination of the value of the land at Rs.125/- persq. ft., is a fair market value of the land and it cannotbe regarded as on the higher side. An attempt was made tocontend that no amount was deducted from the valuedetermined towards development charges, by relying on thesupreme Court decisions in the cases of Basavva v. Spl.Land Acquisition Officer, (1996) 9 SCC 640 and Land https://hcservices.ecourts.gov.in/hcservices/ Acquisition Officer, Kammarapally Village v.NookalaRajamallu, AIR 2004 SC 1031. Here again, we are not ableto concur with the argument. The public purpose for whichthe land was acquired in the present case is for formationof railway track from Salem to Karur, which require nodevelopment except strengthening the track land and layingthe rail track. It is apt, we thing to quote certainobservations made by the Apex Court in the case of NelsonFernandes v. Special Land Acquisition Officer, 2007 (9) SCC447:"We are not, however, oblivious of the fact thatnormally 1/3rd deduction of further amount ofcompensation has to be directed in some cases.However, the purpose for which the land acquiredmust also be taken into consideration. In theinstant case the land was acquired for theconstruction of new B.G. Line for Konkan Railway.This Court, in Hasanali Khanbahi & sons v. Stateof Gujarat, (1995) 2 SCC 422 and Land AcquisitionOfficer V.Nookala Ramamallu, 2003(12) SCC 334had, noticed that where lands are acquired forspecific purposes deduction by way of developmentcharges is permissible. In the instant case,acquisition is for laying a railway line.Therefore, the question of development chargesthereof would not arise."But the Reference Court has not taken into considerationthe largeness of the area which has been acquired, whilearriving at the value with reference to small piece of landin Sl.No.476. The extent of lands sold by document dated15.04.1998 in 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 value has to bededucted towards the largeness of the area acquired.12.In all reasonableness, a deduction of Rs.25/- persq. ft., in out view, would meet the ends of justice. Ifsuch a deduction is given, the value of the land would beRs.100/- per sq. ft. Thus, the value of the land isdetermined at Rs.100/- per sq. ft."17.Inasmuch as the subject matter of the present AppealA.S.No.751 of 2010 is covered by the Common Judgment of the DivisionBench of this Court in A.S.Nos.430 to 454 of2007, 472 to 481 and 597to 604 of 2008, dated 16.07.2009, this Court follows the same andafter deducting a sum of Rs.25/- per sq. ft. fixes the market valueof the acquired land @100/- per sq. ft and accordingly allows theAppeal in part without costs.18.This Court determines the Fees of the Learned SpecialGovernment Pleader (AS) as per Rule 12 of Legal Practitioners Fees https://hcservices.ecourts.gov.in/hcservices/ Rules, 1973 based on the facts and circumstances, in the instant caseon hand.In the result, the Appeal is allowed in part leaving the partiesto bear their own costs. Resultantly, the Award passed by the LearnedAdditional District Sessions Judge, (Fast Track Court No.I), Salem inL.A.O.P.No.247 of 2002 dated 19.05.2003 stands modified. In otherrespects, the Award of the trial Court is confirmed by this Court.Consequently, connected Miscellaneous Petition is closed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmpsTo1. The Additional District Sessions Judge, (Fast Track Court No.1) Salem1 cc To Mr.A.R.Suresh, Advocate, SR.765791 cc To The Government Pleader, SR.766801 cc To Mr.V.G.SureshKumar, Advocate, SR.76960A.S.No.751 of 2010andM.P.No1 of 2010MS (CO)RH (26.11.10)