The Land Acquisition Officerand Special Tahsildar(ADW)Dharmapuri v. Subramaniam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.07.2009CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALA.S.No.160 of 2002The Land Acquisition Officerand Special Tahsildar(ADW)Dharmapuri .. Appellant/Referring Officer-vs-Subramaniam .. Respondent/claimantThis appeal is filed under Section 54 of Land Acquisition Act,against the Judgment and Decree dated 30.4.2002 made inL.A.O.P.No.2/96 on the file of Additional District Judge,Dharmapuri.For appellant : : Mr.V.Ravi,Spl.Govt.PleaderFor respondent : : Mr.I.C.Vasudevan for V.R. Anna Gandhi.J U D G M E N T This appeal arises out of an Award dated 30.4.2002 passed inL.A.O.P.No.2/96 by the learned Additional District Judge (LandAcquisition Tribunal) Dharmapuri.2. The Government have acquired a total extent of 0.06.0Hectares and 1.16.0 Hectares of Punja Lands in S.Nos. 275/2B and276/1 respectively in Nallampalli Village, Dharmapuri District forthe purpose of providing house sites to the Vannar communitypeople, who do not possess any house sites.3. After following the procedures and formalities, the landacquisition officer has published Notification under Section 4(1) ofthe Tamil Nadu Land Acquisition Act( Hereinafter referred to as"Act")in the Government Gazette on 6.7.1988 and also published the noticein the vernacular dailies viz., Dinamani and Dinathanthi on 7.7.1988.The gist of the said notice has been published in the acquiredvillage on 10.10.1988. 5(A) Enquiry has been conducted on 5.9.1989.On the basis of the data lands Exs B3 and B4, the Land AcquisitionOfficer has determined and awarded the Compensation at Rs.17,000/-per acre for the lands acquired. Not satisfied with the award, theclaimant has filed his objection before the Land Acquisition Officer, https://hcservices.ecourts.gov.in/hcservices/ who in turn has referred the same as per Section 18 of the Act to theLand Acquisition Tribunal.4. Before the Land Acquisition Tribunal, respondent/claimant hasexamined himself as P.W.1 and Ex.A1 was marked on the side of theClaimant and on the side of appellant/referring Officer, The SpecialTahsildar(ADW)/Land Acquisition Officer was examined as R.W.1 andExs B1 to B4 were marked. 5. On an overall appreciation of an oral and documentaryevidence adduced on both sides and after providing due opportunitiesto the respective parties, the Land Acquisition Tribunal, viz., Thelearned Additional District Judge, Dharmapuri, has passed an awarddetermining the compensation of Rs.4.95ps per sq.ft for the acquiredland in issue and has made a deduction of 25% towards developmentcharges ie. Rs.1.23ps per sq.ft and after deducting the said amountof Rs.1.23ps per sq.ft has resultantly fixed the compensation ofRs.3.72ps. Per sq.ft and has awarded a total sum of Rs.4,87,078.20psalong with 30% solatium amount of Rs.1,46,123.40ps and also granted12% interest of Rs.1,14,656.80ps and in all awarded a sum ofRs.7,47,858.40ps and also directed a deduction of Rs. 78,566/- whichhas already been received by the respondent/claimant and for thebalance of amount of Rs.6,69,292.40ps has been directed to be paidwithin three months and interest at 9% from 8.10.1990 to 7.10.1991and thereafter interest at 15% from 8.10.91 etc.6.Contentions, Discussions and Findings:According to the learned Special Government Pleader(AS),theTribunal has committed an error in increasing the market valueexorbitantly from Rs.17,000/- per acre(ie., Rs 39 per sq.ft) toRs.1,62,043/- per acre (ie, 3.72 per sq ft.) in violation of theprocedure enshrines under the Land Acquisition Act and the acquiredlands are only undeveloped one at the time of 4(1)Notification andtherefore, the determination of compensation at Rs.3.72 ps per sq.ftby reducing only 25% development charges from the original rate ofRs.4.95ps per sq.ft is arbitrary one besides being exorbitant andfurther the Tribunal has placed reliance of Ex A1 sale deed which isa sale of smaller extent sold for a fancy price and added further theTribunal has instead of making a deduction of 40% to 65% towardsdevelopment charges as only deducted 25% and in any event, themarket value determined by the Court is arbitrary, unreasonable andan excessive one and therefore prays for allowing the appeal in theinterest of justice.7. Per contra, the learned counsel for the respondent/claimantsubmits that the acquired land in issue is abutting Salem-DharmapuriNational Highway and therefore, the same is situated in a vital placeand therefore the acquired land has a potential value not only forthe present and future and the Tribunal after taking into account ofthe facts and circumstances of the case, has ultimately fixed thecompensation of Rs.3.72ps per sq.ft and awarded a fair, reasonable,and equitable compensation and the same may not be interfered with bythis Court in appeal. https://hcservices.ecourts.gov.in/hcservices/

8. The point arises for determination in this appeal is"Whether the award dated 30.4.2002 passed by theLand Acquisition Tribunal in L.A.O.P.No.2 of 1996is fair and proper?"9. Heard the learned Special Government Pleader(AS) forappellant and Mr.I.C.Vasudeven, learned counsel for respondent andthis Court has paid its anxious consideration to the argumentsadvanced on either sides.10.It is to be noted that the best available evidence to provethat what a willing purchaser will pay for the land underacquisition will be the evidence of genuine sales, effected aboutthe time of the Notification for acquisition either in respect of theland under acquisition or any portion thereof or of the sale of thelands precisely parallel in all circumstances to the land , inquestion. The sale deeds of the lands situated in and around theacquired land and the comparable advantages and the benefits whichthey have furnished a rough and ready method of computing the marketvalue.11. P.W.1/Claimant in his evidence has deposed that on the northof the acquired land, the cement pipe factory of Pachaiappan issituated and the village Nallampalli is at distance of 10 Km fromDharmapuri and the acquired land is fit for house site situated athigher portion and that in the acquired land place per cent willfetch Rs.8,000/- to Rs.10,000/- and further that the data land andthe acquired land is not one and the same and that Ex A1 is thecertified copy of the sale deed dated 29.2.1988 in favour ofPalaniappan executed by Appannan in respect of S.No.194/4 wherein asquare feet has been sold at Rs.5/- and that the soil, classificationand the sand of the land in S.No.194 and acquired land is one and thesame.12. R.W.1 in his evidence has deposed that for the acquiredland, the value has been fixed at Rs.17,000/- per acre and theclaimant has received the same under protest and further that thesale statistics list is Ex B2 and the Nallampatti topo sketch is ExB3 and Ex B4 is the plan showing the acquired and the data lands.Admittedly, the data land is by means of document No.1551 dated23.11.1987 in respect of Ex B2 in Sl.No.1. It is not out of place topoint out that R.W1 in his cross examination has specifically statedthat in Ex B2, the sale that is taken place on 24.2.1988 has not beenmentioned and the sale dated 24.2.1988 refers to Nallampalli villageand that the data land and the acquired land is of same type and moreover, he does not know that the acquired land has a road facility onthree sides.13. The learned counsel for the respondent/claimant informs thisCourt that he has filed a memo dated 6.7.2009 stating that the dataland is far away from more than 750 mts from the acquired land andwhereas Ex A1 sale deed dated 28.2.1988 relied on by the Tribunal inarriving at a compensation is very nearer to the acquired land viz.,less than 500 mts from the acquired land and in fact Ex A1 sale deed https://hcservices.ecourts.gov.in/hcservices/ relied on by the Tribunal is a house plot measuring 1311 sq.ft onlyand the said document shows that the acquired land is also fit forhousing plots and on that basis the Tribunal has fixed thecompensation and per contra, the Land Acquisition Officer hasdeliberately omitted to consider Ex A1 sale deed furnished by therespondent/claimant. However the learned Additional GovernmentPleader(AS) has raised his objection saying that Ex A1 sale deedrelied on by the Tribunal is not a correct one and the land in Ex A1sale deed ought not to have been taken into account by the Tribunalin arriving at a compensation and determining the same.14. It is not out of place to point out that R.W.1 during hiscross examination (before the Tribunal) has categorically stated thathe has not seen the acquired land till date and that he does not knowwhether the acquired lands are developed one and that further in theacquired village Nallampalli, there is a panchayat union, schools,and further it is not correct to say that Nallampalli village is adeveloped town. In short, the evidence of R.W.1 is not very much ofassistance helpful to the appellant/referring Officer.15. A perusal of Ex A1 shows that it is in respect of S.No.194/4A out of 2 acres and 17 cents in Nallampalli Village, a portion of1311 sq.ft vacant land has been sold out. Even though the learnedAdditional Government Pleader(AS) has contended that a deduction of40% to 60% ought to have been made towards development charges by theTribunal and not 25% as done by the Tribunal and he relies on thedecision of Hon'ble Supreme Court Gafar and others V. MoradabadDevelopment Authority and another (2007) 7 SCC 614 wherein it isinter alia held that 'sale instance produced before Reference Courtrelated to developed lands with various facilities which the landunder acquisition lacked and a reduction of 35% to 60% is made forthe values shown.' He also cites the decision of Hon'ble SupremeCourt in Kammarapally Village V. Nookala Rajamallu AIR 2004 S.C. 1031at page 1032 wherein it is observed that 'While fixing the value ofthe land in question deduction for development etc. was to be madefrom value indicated in sale deed relied upon.' 16.However, the learned counsel for the respondent/claimantrelies on the decision of Hon'ble Supreme Court in 2007 (1) LACC atpage 445 The Deputy Director Land Acquisition V. Malla Atchinaidu andothers wherein it is held that 'for determining market value of largeextent of land High Court relied on sale instance of small piece ofland and no fault could be found with the order of High Court whorelied on sale instance of smaller area as the Court has taken intoaccount all material facts.17.In this connection, this Court opines that what is the exactpercentage of deduction must be made towards development charges is aquestion of fact to be decided on the facts and circumstances of eachcase and the same is not a rigid and inflexible rule and in that viewof the matter, this Court comes to the conclusion that 25% deductionmade by the Tribunal towards development charges based ondevelopment need of the acquired land is a just and a fair proper oneand this Court in agreement with such finding of the Tribunal. https://hcservices.ecourts.gov.in/hcservices/

18. Equally, the Tribunal has fixed the compensation atRs.4.95ps sq.ft for the acquired land in issue and has deducted a sumof Rs.1.23ps.per sq.ft towards development charges and resultantlyfixed the compensation at Rs.3.72ps per sq.ft. and the same is aproper and a prudent one in the considered opinion of this Court.19. In land acquisition cases,the Land Acquisition Tribunal isempowered to indulge in certain amount of conjectures, presumptionsand guess work and in arriving at an exact compensation, no straightjacket cast iron formula can be adopted. However, one cannot loosesight of an important fact that the locality of the lands wherein itis situated, its potentiality value, value which will increase infuture and other various decisive factors will go a long way indetermining the compensation. But there shall not be an undueburden on the public coffer while determining the compensation. Inshort the Court/Tribunal has to strike a balance between the two andto determine just compensation based on the above principles in mindand taking note of the facts and circumstances of the case, in acumulative fashion and on an appreciation of oral and documentaryevidence on record, this Court ultimately comes to the inevitableconclusion that the compensation of Rs.4.95ps per sqft fixed by theTribunal and making a deduction of Rs.1.23ps per sq.ft towards 25%development charges is a reasonable and equitable one and resultantlythe higher compensation of Rs.4,87,078.20ps along with usual solatiumamount and interest awarded by the Tribunal etc. are all valid andfair in the eye of law and the same do not suffer from any materialirregularity or patent illegality, since it has taken into accountall material factors they are not to be interfered with by this Courtand resultantly the appeal has no merits and the same is dismissed infurtherance of substantial cause of justice.20. In fine, for the foregoing reasons, the appeal is dismissedand the award of the Tribunal is confirmed. Having regard to thefacts and circumstances of the case, there shall be no order as tocosts.sgSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo The Additional District Judge, Dharmapuri+ 1 cc to MR. R. Raja Ramani Advocate SR.291323.+ 1 cc to Government Pleader S.R. NO. 28938.A.S.No.160/2002BKY(CO)EU 29.7.2009.