The Special Tahsildar, Adi Dravidar Welfare, Erode v. 1.Valliammal2.Sulochana3.Rathinam @ Nagarathinam4.Chinnasamy Gounder (died)5.Manickasundaram6.C.Manicasundaram

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.07.2010CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUA.S.No.131 of 2002The Special Tahsildar,Adi Dravidar Welfare,Erode. ..Appellant (Referring Officer)Vs.1.Valliammal2.Sulochana3.Rathinam @ Nagarathinam4.Chinnasamy Gounder (died)5.Manickasundaram6.C.Manicasundaram (R-6 brought on record as LRs of deceased R-4 vide order dt.10.6.2010 in CMP No.1333/2009) ..Respondents (Claimants)This appeal suit has been preferred under Section 54 of theLand Acquisition Act against the judgment and decree of the learnedI Additional Subordinate Judge, Erode in LAOP No.5 of 1994 dated23.03.2001.For Appellant: Mr.V.Ravi, Spl.GP (AS)For Respondents: Mr.T.MurugamanickamJUDGMENTHeard the arguments of Mr.V.Ravi, learned Special GovernmentPleader (AS) and Mr.T.Murugamanickam, learned counsel forrespondents. Pleadings set was printed and original records weresummons and they were perused.2.This is an appeal filed by the Special Tahsildar, AdiDravidar Welfare, Erode aginat the judgment and decree made in LAOPNo.5/1994, dated 23.3.2001 on the file of the learned I AdditionalSubordinate Judge, Erode.3.The land of the original respondent Viswanatha Gounder toan extent of 3.90 acres in Survey No.490/1A was taken over for thepurpose of providing house sites to the member of barber community of https://hcservices.ecourts.gov.in/hcservices/ Surampatti area. The lands were acquired under the Land AcquisitionAct 1/1894. After due procedure, an Award was passed in AwardNo.2/87. The acquiring authority fixed the compensation at the rateof Rs.3/- per sq.ft. On reference, it was enhanced to Rs.9/- persq.ft, though claimant sought for compensation at the rate of Rs.20/-per sq.ft. Along with compensation, 30% solatium and interest at therate of 9% was also directed to be paid. It is against this judgmentand decree, the present appeal was filed.4.The grounds raised by the appellant was that increasing thevaluation was exorbitant. The court below ought not to have takenreliance upon documents, i.e.Exs.A.13, A.14 and A15 filed by theclaimants. The decision of the court below was contrary to theguidelines prescribed by the Supreme Court in Union of India andothers Vs. Sunil Chandra Saha and another reported in 1995 (5) SCC311 and Hookiyar Singh and others Vs. Special Land AcquisitionOfficer, Moradabad and another reported in 1996 (3) SCC 766. It wasalso claimed that deduction of 40% for development charges was notcorrect and it should be 60%. The documents relied on by the claimantwere the lands which are having smaller extent and it is notcomparable. 5.Before the court below, on the side of the claimants, 16documents were filed and they were marked as Exs.A.1 to A.16. Fourwitnesses were examined as C.W.1 to C.W.4. While the fifth respondentwas examined as C.W.1, there were other three witnesses. On the sideof the appellant, five documents were filed and they were marked asExs.B.1 to B.5 and two witnesses were examined. The trial court heldthat the place where the land is situated belonged to KasipalayamPanchayat and it comes under Erode District, which was bifurcatedfrom Coimbatore in the year 1979. It included in the ErodeCorporation and it became urbanite. The lands were plotted out andlayout was made for building. The land is situated in the mostimportant area and it was just adjacent to the District Collectorate.The potential value of the land will be very high. The present landis situated adjacent to various built-up houses. Even witnesses forthe appellant had agreed that all the important urban area are within1 Km. radius. From the documents produced in Exs.A.13, 14 and 15, itis found that the value of the land was Rs.5/- to Rs.17/- per sq.ft.It was also spoken to by C.Ws.2 to 4. In fact the value of the landwas much more than what was shown in the sale deeds. Subsequentlyafter formation of new District, the land cost had come up. Theexemplar in Exs.A.13 to 15 are more reliable. The evidence placed bythe appellant cannot be worth consideration. It also distinguishedthe judgment relied on by the appellant. After arriving at aconclusion that the value may be to an extent of Rs.15/- per sq.ft.,the Reference Court reduced 40% for development charges and fixed therate at Rs.9/- per sq.ft. https://hcservices.ecourts.gov.in/hcservices/

6.The learned Special Government Pleader (AS) contended thatvaluation was on the high side and the exemplars found in Exs.A.13 to15 are not reliable. Further, the court below should have fixed moreamount as development charges and fixing of 40% is also not correct. 7.The Supreme Court in its decision in Painder Singh andothers Vs. Union of India and others reported in (1995) 5 SCC 310,has held that it is for the claimant to prove the prevailing marketvalue by placing reliance upon documents covered by sale transactionsbearing similar or same potentialities or advantageous features. 8.In Hookiyar Singh's case (cited supra), the supreme Courtheld that the Reference court cannot take into account the futurepotentiality. Section 24 clause fifthly prohibits taking intoconsideration future use to which the land will be put when acquired.The court must not indulge in feats of imagination but sit in thearmchair of a prudent purchaser in open market and to put a questionto itself whether as a prudent purchaser it would offer the sameprice in the open market as is to be determined?9.The Supreme Court in Kanta Devi v. State of Haryana reportedin (2008) 15 SCC 201 held that deduction of development charge of1/3rd of market value will be a normal rate. Therefore, deduction of40% was more than what is required. 10.In Rishi Pal Singh v. Meerut Development Authority reportedin (2006) 3 SCC 205, the Supreme Court held that even if there arevast tract of land are acquired, even exemplar of small plots can beconsidered for determining the market value and if such exemplar ofsmall plots are considered, then adequate discount can also be given.The following passage found in paragraph 5 may be usefully extractedherebelow:"5. On merits the learned counsel submitswith reference to the impugned judgment of the HighCourt that only two reasons have been given by theHigh Court for setting aside the order of theReference Court and remanding the case back to it.First reason is that exemplars relied upon by the Reference Court are of small plots of land whereasthe acquisition is of a large tract of land i.e.about 180 acres. The second reason given in theimpugned judgment for remand is that exemplars filedby the acquiring authority i.e. the appellants (sicrespondent) before us, were not considered by theReference Court. The learned counsel for theappellants has taken us through the judgment of theReference Court to show that both the reasons given https://hcservices.ecourts.gov.in/hcservices/ by the High Court in its impugned order are factuallyincorrect. With respect to the first reason, that is,exemplars of small plots have been taken intoconsideration by the Reference Court, in the firstinstance our attention was invited to some judgmentsof this Court to urge that there is no absolute barto exemplars of small plots being considered providedadequate discount is given in this behalf. Thus thereis no bar in law to exemplars of small plots beingconsidered. In an appropriate case, specially whenother relevant or material evidence is not available,such exemplars can be considered after makingadequate discount. This is a case in whichappropriate exemplars are not available. TheReference Court has made adequate discount for takingthe exemplars of small plots into consideration. Itappears that the attention of the High Court was notdrawn to this part of the judgment of the ReferenceCourt which has resulted in the High Court completelyoverlooking the relevant discussion in the judgmentof the Reference Court."11.Very recently, the Supreme Court in Sangunthala Vs. SpecialTahsildar (Land Acquisition) and others reported in 2010 (3) SCC 661considered the scope of Section 23 and after referring to itsprevious decisions, in paragraphs 24 to 26 and 34 held as follows:"24.In the light of the above material facts thisCourt feels that the presence of a number ofbuildings on the lands acquired and the said landsbeing occupied by the buildings are to be treated ashouse sites. The basic purpose that has been tracedout in the evidence and as admitted by the RWs isthat the lands were acquired for the purpose ofputting up residential quarters. As a portion of theland is being considered as house site, the adjoininglands have the potential of being put in better useas house sites in the near future.25.The other important factor is the proximity of theplots to two residential colonites i.e. Anna Nagarand Gandhi Nagar. As it has come on record that AnnaNagar Colony has about 50-60 houses and Gandhi NagarColony has about 150 houses, as such it is reasonableand proper to conclude that the present lands underdispute were near the residential colonites. https://hcservices.ecourts.gov.in/hcservices/

26.It should also be taken into consideration thatthe disputed lands were situated near the factorypremises and further were adjoining the main roadwhich connects Tanmag Road. As such the aforesaidlands are potential house sites......34.In view of the admitted case that the landsacquired were potential house sites we do not agreewith the views taken by the High Court whilecalculating the compensation. R-13 and R-15 are thetwo sale deeds containing particulars of the saletransactions held three years prior to the Section 4(1) notification. The Reference Court after closeperusal of the aforesaid documents held that the samedisclose that out of more than 100 sales, a number ofsales in respect of the lands were sold as housesites in Thathaiyangarpatti Village and the adjacentsurvey numbers in Thekkampatty Village were also soldas house sites."12.Again, the Supreme Court in Land Acquisition Officer v.Karigowda reported in (2010) 5 SCC 708 in paragraph 91 held asfollows:"91. It is a settled rudiment of law that thecourt, in given facts and circumstances of the caseand keeping in mind the potentiality and utility ofthe land acquired, can award higher compensation toensure that injustice is not done to the claimantsand they are not deprived of their property withoutgrant of fair compensation. Reference, in thisregard, can be made to the judgment of this Court inLand Acquisition Officer v. Kamadana RamakrishnaRao20. While adopting the average sale method as theformula for awarding compensation to the claimants,we are also of the considered view that in thepeculiar facts and circumstances of the case and thefact that the land is being compulsorily acquired,the claimants should be awarded a highercompensation. The compensation at the rate ofRs.2,30,000 per acre for the wetland and at the rateof Rs.1,53,400 per acre for the dry land would bejust and fair compensation and would do completejustice between the parties. This element of increasehad not been added by the SLAO which ought to havebeen done."13.If these yardsticks are applied, there is no difficulty inupholding the judgment and decree passed by the Reference Court. https://hcservices.ecourts.gov.in/hcservices/ Hence, the Appeal suit will stand dismissed. However, the parties areallowed to bear their costs. sd/- Asst.Registrar/True copy/ Sub.Asst.RegistrarvvkTo The I Additional Subordinate Judge, Erode.+ 1 c.c. to Mr. T. Murugamanikkam, Advocate. S.R.No.53294.+ 1 c.c. to The Government Pleader. S.R.No.53890. A.S.No.131 of 2002MBS (CO)GSK 20.08.2010.