The Special TahsildarAdi Dravidar WelfareSathiyamangalam v. Kandasamy & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDate : 10.12.2009THE HONOURABLE Mrs.JUSTICE R.BANUMATHIS.A.No.892 of 2007The Special TahsildarAdi Dravidar WelfareSathiyamangalam... Appellant / Respondent/ Land Acquisition OfficerVs.1.Kandasamy2.Chandra3.Thangarasu4.Manickam... Respondents/ Appellants/ ClaimantsPrayer: This Second Appeal is filed under Section 100 of CivilProcedure Code against the judgment and decree made in C.M.A.No.23of 1977 dated 11.07.2006 on the file of Principal Sub Court,Gobichettipalayam modifying the award made in Award No.9/1996-1997dated 13.3.1997 passed by the Special Tahsildar. (Adi DravidarWelfare). Sathyamangalam.For Appellant: Ms. Bhavani Subbarayan Special Government Pleader (CS)For Respondents: Mr.R.T.DoraisamiJUDGMENTThis Second Appeal arises out of Judgment in C.M.A.No.23 of1997 dated 11.07.2006 on the file of Principal Sub Court,Gobichettipalayam enhancing market value of the acquired land fromRs.19,044/- per acre to Rs.1,25,000/- per acre.2.Brief facts which led to the filing of Second Appeal are thatan extent of 1.41.0 Hectare of land situate in S.No.18/4c and anextent of 0.45.05 Hectare of land situate in New S.No.18/5A, and0.45.5 Hectare of land situate in new Survey No.18/5B and thustotalling to 1.30.5 Hectare = 3.22 acres of land at KondayampalayamVillage was acquired for the purpose of providing house sites tohomeless Adi Dravidars in Thuraiyampalayam Village under the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Acquisition of Land for Harijan Welfare Schemes Act 1978(hereinafter shortly called as Act 31/78), under the provision ofthe Act 31/78 and awarded compensation of Rs.70,520/- for the extentof 3.22 acres acquired. Section 4(1) notification was published on02.03.1996. After due adherence to all statutory provisions underthe Act 31/78 passed an award in Award No.9/1996-1997, dated18.3.1997. In the said award, the market value for the landacquired was fixed at Rs.19,044/- per acre. In arriving at the saidmarket value, the Competent Authority had taken the data sale deedEx.R2 dated 28.8.1995 registered as Document No.729/95 under whichone acre of land was sold for Rs.19,044/-.3.Being aggrieved by the fixation of market value atRs.19,044/-, respondent filed an appeal in C.M.A.No.23 of 1997.Lower Court has taken Ex.A1 sale deed (dt.29.3.1995) for 1388 Sq.ftsold at Rs.22,746/- as document for comparison. Pointing out thatlocation of acquired land is near to schools and shops, Courtenhanced the compensation to Rs.1,25,000/- per acre. For the totalextent of 3.22 acres, Court awarded enhanced compensation ofRs.4,02,500/- and 15% solatium was awarded plus interest at therate of 6%.4.Being aggrieved by fixation of market value at Rs.1,25,000/-per acre, government preferred this Second Appeal. The followingsubstantial questions of law arise for consideration:-"A. Whether the court below had erred in notappreciating the provision of Sec.8 of the Act 31/78wherein it is made clear that in the fixation ofdetermining the amount of compensation, the purpose forwhich the land acquired shall not be a criteria and natureof land on the date of 4(1) notification shall be acriteria for determining the compensation.B.Whether the Court below had erred in not deducting1/3rd amount of the market value towards developmentalcharges are held by the Apex Court reported in 1990 SC1028, 1998 (2) SCC 150 and 1995 (5) SCC 426 and 2003 (12)SCC 334?"5.The learned Additional Government Pleader Ms.BhavaniSubbarayan contended that based on comparable sale deed for land ofsimilar nature under Ex.R2, Land Acquisition Officer fixed themarket value at Rs.19,044/- per acre. While so, Court below erredin placing reliance upon Ex.A1 sale deed (dt.29.3.1995), whereinthe extent of land sold was only 1338 sq.ft, whereas the extent ofland acquired is more than one acre. It was further argued that asper the various decisions in (2003) 12 Supreme Court Cases 334[Land Acquisition Officer, Kammarapally Village, A.P Vs. NookalaRajamallu and Others] and other decisions, Court below ought to https://hcservices.ecourts.gov.in/hcservices/ have deducted 1/3rd amount of the market value towards developmentcharges and the market value fixed at Rs.1,25,000/- per acre is onthe higher side. 6.The learned counsel for respondent /claimant submitted thatCourt below rightly taken Ex.A1 sale deed (dt.29.3.1995) for fixingthe market value of the lands and having regard to the location ofthe acquired lands, market value fixed at Rs.1,25,000/- cannot besaid to be on the higher side. The learned counsel would furthersubmit that since surrounding area of the acquired land has alreadybeen developed, no deduction need be made. 7. An extent of 1.30.5H was acquired. Based upon Serial No.2in Ex.R2, sale deed (dt.28.8.1995), Acquisition Officer fixed themarket value at Rs.19,044/- per acre. In Ex.R2, Serial No.7relates to sale deed dated 05.03.1996 under which 0.40 acre inSurvey Nos.18/4c, 18/5A and 18/5B was sold by Senniappan and othersto one Durai for Rs.50,000/-. The market value of the land isRs.1,25,000/- per acre. By perusal of Ex.R2, it is seen thatSerial No.7 sale deed relating to Survey Nos.18/4c, 18/5A and 18/5Bwas sold for reasonable price as seen from the remarks column"epahakhd fpuak;. tpiy kjpg;gPLf; fhiyahf njh;e;bjLf;fg;gLfpwJ". As againstserial No.7, even though it is stated that it is a reasonable sale,sale price and can be taken as data sale deed, Land AcquisitionOfficer has not so taken the said document as data sale deed.Ex.R2 – certificate prepared by Special Revenue Inspector containslist of sale deeds between 01.01.1995 to 15.03.1996. Serial No.2was taken as data sale deed. Ex.R2 does not contain the sale deeddated 05.03.1996.8.Determination of market value of acquired land depends uponthe location of lands and potentiality for development has to betaken into consideration. For ascertaining the market value of theland, the potentiality of the acquired land should also be takeninto consideration. Potentiality means capacity or possibility forchanging or developing into state of actuality. The questionwhether the land has potential value or not, is primarily one offact depending upon its condition, situation, user to which it isput or is reasonably capable of being put.9.Considering the question of market value, in (2009) 9 SCC 427[Bhagat Singh v. Union of India], the Supreme Court held as under:-"8. Determination of the market value of the land may alsodepend upon the facts and circumstances of each case,amongst them, however, would be the price of land, amountof consideration mentioned in a deed of sale executed inrespect of similarly situated land near about the date ofissuance of notification under Section 4 (1) of the Act; https://hcservices.ecourts.gov.in/hcservices/ in the absence of any such exemplars the market value canbe determined on yield basis or in case of an orchard onthe basis of number of fruit-bearing trees.9. It is also well settled that for price determinationpurposes, the courts would be well advised to consider thepositive and negative factors, as has been laid down bythis Court in Viluben Jhalejar Contractor v. State ofGujarat (2005) 4 SCC 789, namely:"Positive factorsNegative factors(i) smallness of size(i) largeness of area(ii) proximity to a road(ii) situation in theinterior at a distance fromthe road(iii) frontage on a road(iii) narrow strip of landwith very small frontagecompared to depth(iv) nearness to developedarea(iv) lower level requiringthe depressed portion to befilled up(v) regular shape(v) remoteness fromdeveloped locality(vi) level vis-a-vis landunder acquisition(vi) some specialdisadvantageous factorswhich would deter apurchaser(vii) special value for anowner of an adjoiningproperty to whom it mayhave some very specialadvantage."10. This Court in Union of India v. Pramod Gupta (2005) 12SCC 1 on the question of determination of market valueopined:"24. While determining the amount of compensationpayable in respect of the lands acquired by the State,the market value therefor indisputably has to beascertained. There exist different modes therefor.25. The best method, as is well known, would be theamount which a willing purchaser would pay to the ownerof the land. In absence of any direct evidence, thecourt, however, may take recourse to various other knownmethods. Evidences admissible therefor inter alia wouldbe judgments and awards passed in respect ofacquisitions of lands made in the same village and/orneighbouring villages. Such a judgment and award, inthe absence of any other evidence like the deed of sale,report of the expert and other relevant evidence would https://hcservices.ecourts.gov.in/hcservices/ have only evidentiary value.26.Therefore, the contention that as the Union ofIndia was a party to the said awards would not byitself be a ground to invoke the principles of resjudicata and/or estoppel. Despite such awards it maybe open to the Union of India to question theentitlement of the respondent claimants to the amountof compensation and/or the statutory limitations inrespect thereof. It would also be open to it toraise other contentions relying on or on the basis ofother materials brought on record. It was also opento the appellant to contend that the lands underacquisition are not similar to the lands in respectwhereof judgments have been delivered. The area ofthe land, the nature thereof, advantages anddisadvantages occurring therein amongst others wouldbe relevant factors for determining the actual marketvalue of the property although such judgments/awards,if duly brought on record, as stated hereinbefore,would be admissible in evidence."10.In the light of aforementioned principles let us considerthe facts of the present case. Acquired land is situated near themain road leading to Bhavani, Erode and Coimbatore. At about 1 kmfrom acquired land Kallipatti village is situated ; at about 100feet Kondayampalam is situated. Near the acquired lands, houses,shops, schools and markets are situated. Ex.A2 is the sale deed(dt.29.1.1997) executed by one Saroja in favour of Arumugam and hiswife Easwari selling 1338 sq.ft for Rs.28,746/-. OneUthamaputhiran signed as witness to the sale document was examinedas CW2. In his evidence, CW2 has spoken about the developmentsaround the acquired lands. Since the acquired land is in the midstof developed area, Court has rightly taken Serial No.7 sale deed(dt.05.03.1996) in Ex.A3 for fixing the market value atRs.1,25,000/- per acre. The market value fixed cannot be said tobe on the higher side.11.The learned Additional Government Pleader contended that asper Ex.A2, 1338 sq.ft was sold for Rs.22,746/-. It was thereforecontended that when large tracks are acquired, the transaction inrespect of small extent of properties do not offer a properguideline. It was therefore contended that when transaction inrespect of small properties are taken into account for determiningthe market value of a large property, a suitable deduction are tobe made.12.The principle that evidence of market value on sales ofsmall, developed plots is not a safe guide in valuing large extent https://hcservices.ecourts.gov.in/hcservices/ of land has to be understood in its proper prospective. Inapplying the principle it is necessary to consider all the facts.Observing that it is not in every case deduction is to be allowedin (1991) 4 SCC 506 [Bhagwathula V.Spl.Tahsildar and LandAcquisition Officer] Supreme Court has held as under:-"The proposition that large area of land cannot possiblyfetch a price at the same rate at which small plots aresold is not absolute proposition and in givencircumstances it would be permissible to take into accountthe price fetched by the small plots of land. If thelarger tract of land because of advantageous position iscapable of being used for the purpose for which the smallplots are used and is also situated in a developed areawith little or no requirement of further development, Theprinciple of deduction of the value for purpose ofcomparison is not warranted."In 2003 10 SCC 525 [Tejumal Bhojwani v. State of U.P], SupremeCourt has held as under:-"It is true that the deduction for development chargesought to be adequately provided for, but it varies fromplace to place, area to area and amount of developmentswhich are required to be carried out and thus there cannotbe any fixed amount of deduction towards developmentcharges."13.Where neighbouring areas are already developed and houseshave been constructed and the acquired land has potential value forbeing used as building sites, no deduction need be made. Asdiscussed earlier, in the present case, the acquired land issituated on the main road. The area around the acquired land isdeveloped and situated within 100 feet of Kondayampalam. Since theacquired area is already in the midst of developed area, applyingthe ratio of the above decisions, no deduction need be made. Thatapart the award was passed in 1997. For all these years, theclaimant had benefit of enhanced compensation. As per the interimorder claimant could only withdraw 50% of the enhancedcompensation. Having regard to the various factors, at thisdistant point of time, this Court is not inclined in makingdeduction for development charges.14.Under Section 7 (2) Solatium to be awarded at 15% Solatiumordered by the Court is in accordance with Section 7(2). UnderSection 12 of Harijan Welfare Schemes Act, 6% p.a is the prescribedrate of interest. Learned Subordinate Judge awarded interest at6% p.a on the enhanced compensation amount. Based upon SerialNo.42 sale deed (dt.12.06.2000)-Ex.R2 and having regard to thepotentiality of the acquired lands, learned Principal SubordinateJudge rightly enhanced the compensation of Rs.19,044/- to https://hcservices.ecourts.gov.in/hcservices/ Rs.1,25,000/- per acre. No justifiable grounds are made out in theSecond Appeals warranting interference.14.As per order in M.P.No.1 of 2007, appellant was directed todeposit 50% of the amount awarded with accrued interest. Out of thesaid amount, respondents were also permitted to withdrawRs.2,50,000/-.15.In the result, the judgment and decree made in C.M.A.No.23of 1977 dated 11.07.2006 on the file of Principal Sub Court,Gobichettipalayam enhancing the compensation and award of interestand solatium are confirmed and the Second Appeal is dismissed.Claimants/ respondents are entitled to withdraw the entire amountdeposited to the credit of C.M.A.No.23 of 1997 on the file ofPrincipal Sub Court, Gobichettipalayam immediately on receipt ofcopy of this judgment. Balance amount payable has to be depositedby the Special Tahsildar, Adi Dravidar Welfare Sathiyamangalamwithin a period of twelve weeks from the date of receipt of copy ofthis judgment. On such deposit of balance amount, the claimants areentitled to withdraw the balance amount so deposited. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.gpaTo1.The Principal Sub Court, Gobichettipalayam2.District Munsif Court, Sirkali3. The Special TahsildarAdi Dravidar WelfareSathiyamangalam4. The Section OfficerVR Section, High Court, Madras1 cc to Mr.R.T. Doraisamy, Advocate, SR. 678321 cc to Special Government Pleader (CS) SR. 67722S.A.No.892 of 2007PVR (CO)kk 7/1