Panneerselvam2.Pugalendhi v. Special Tahsildhar Adi Dravida Welfare

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :01.07.2009CORAMTHE HONOURABLE MR.JUSTICE M.VENUGOPALA.S.NO.30 OF 20021.Panneerselvam2.Pugalendhi .. Appellants/Claimants Vs.The Special Tahsildhar Adi Dravida Welfare,Vellore-1. ... Respondent/Referring OfficerAppeal suit filed under Section 54 of the Land Acquisition Act,against the judgment and decree dated 24.08.2001 in L.A.O.P.No.2 of2000 on the file of the Sub Court, Vellore.For appellants: Mr.V.BalasubramanianFor respondent: Mr.V.Ravi Special Government Pleader J U D G M E N TThis appeal arises out of an award dated 24.8.2001 passed inL.A.O.P.No.2 of 2000 by the learned Sub Judge, Vellore.2.The dry land in Survey No.133/3 measuring 0-74-0 Hect. or 1.83acres has been acquired by the Government in Virupakshipuram Villagefor the purpose of providing house sites to the Most Backward Classpeople.3.Under Section 4(1) of the Land Acquisition Act for the acquiredland G.O.3D No.21 Backward class and Most Backward Class Departmentdated 20.2.1996 has been approved and the said Notice has beenpublished in the Tamil Nadu Gazette No.12A first page on 27.3.1996.The substance of the Notice has been published on 29.3.1996 in theDaily Makkalkural and Kumarimurasu. The said publication Notice in theVillage of Virupakshipuram village panchayat building has been affixedand publicity was made through tom-tom on 30.4.1996. The 5(A) enquiryhas been conducted in the office of Special Tahsildhar (Adi DravidaWelfare) on 3.10.1996 at about 11.00 a.m. https://hcservices.ecourts.gov.in/hcservices/

4.After complying with the procedural formalities, the LandAcquisition Officer has published a notification on 21.4.1997 in theTamil Nadu Government Gazette No.17, Backward Class and Most BackwardClass Department after approving the same on 15.4.1997 and alsopublished the Notice in the Tamil Daily Dinathoothu dated 25.4.1997and in Malaimurasu dated 26.4.1997. The Land Acquisition Officer inhis award proceedings dated 07.1.1998 has fixed a compensation ofRs.1,04,859/- as land value for the land acquired in issue and alsogranted 30% solatium of Rs.31,698/- and also awarded 12% additionalamount of Rs.21,410/- and further granted a sum of Rs.800/- being thevalue of coconut tree and in all, he has granted a total compensationof Rs.1,58,767/-. The Land Acquisition Officer has fixed and awardedthe compensation at Rs.57,300/- for one acre. Dissatisfied with theaward passed by the Land Acquisition Officer, the claimant has filedhis objection before him, who in turn has referred the same as perSection 18 of the Act to the Land Acquisition Tribunal viz., the SubCourt, Vellore.5.Before the Land Acquisition Tribunal, the claimant has examinedhimself as C.W.1 and marked Ex.A.1 sale deed dated 1.9.94. On the sideof the Referring Officer R.W.1 has been examined and Ex.R.1 has beenmarked.6.The learned Tribunal has awarded a compensation of Rs.700 percent in respect of the acquired land and has also awarded Rs.2000/-for four coconut trees at the rate of Rs.500/- per tree etc.7.The point that arises for consideration in this appeal iswhether the award dated 24.8.2001 passed by the Land AcquisitionTribunal in L.A.O.P.No.2 of 2000 is liable to be set aside for thereasons ascribed in the memorandum of appeal?8.Contention, discussion and finding:The learned counsel for the appellants/plaintiffs contends thatthe Tribunal after having accepted the value mentioned in Ex.A.1 xeroxcopy of the sale deed dated 1.9.1994 which is Rs.43,645/- per centshould have fixed the compensation at Rs.5000/- per cent taking noteof the fact that the acquisition is two years after the execution ofthe data sale deed and further the Tribunal has not taken note of thefact that the appellants have installed a deep bore well with anelectric pump at a cost of Rs.2,00,000/- and moreover, the respondenthas acquired a portion of the property owned by the appellants bydeliberately omitted the area covered by bore well and pumpset with anintention to avoid paying compensation in respect of the bore well andthis shows the malafide intention of the respondent in depriving theappellants of their legitimate dues and these aspects of the matterhave not been looked into by the Tribunal in a proper perspective andtherefore, prays for setting aside the award of the Tribunal insofar https://hcservices.ecourts.gov.in/hcservices/ as it relates to the appellants and enhance the compensation at therate of Rs.400/- per cent and the solatium and interest in accordancewith law and resultantly allow the appeal in the interest of justice.9.It is to be noted that under Section 23 of the Land AcquisitionAct compensation which is payable to the claimants is the market valueof the land on the date of publication of notification as per Section4(1) of the Act. In arriving at a rate for the purpose ofcompensation, the Tribunals/Courts have to determine the market prizewhich a willing purchaser will be prepared to pay to a willing seller.As a matter of fact, the best method of determination of market prizeof plots of land is to rely on the instances of sale of the same landor portion of it only about the date of notification under Section 4(1). Another method is to take into consideration the instances ofsale of the adjacent land made shortly before or after thenotification. While assessing the compensation for the property, salesthat has taken place in the locality proximate in time and place arequite relevant. As a general principle, the valuation of a pettyextent cannot be made to govern the valuation for acquisition of largeareas of land and vice versa, for it is known that when a large areahas to be sold, it cannot be possibly fetch a prize at the same rateat which small plots can be sold. Indeed, the sale deeds bearing thehighest value must be preferred to the rest as exemplars unless thereare strong circumstances justifying a different course. It is equallyaccepted by and which that the Tribunal assessing the compensationmade take into consideration not only the present purpose, or thepresent use, to which the land is applied, but also any other morebeneficial purpose to which the land, in the course of events, itmight within a reasonable time be applied, just as an owner might doif he were bargaining with an individual purchaser in the market, butthe existing conditions will have to be taken into account and what islikely to arise soon after the relevant date for valuation, though notto what may happen in the near future. No wonder, the compensationcannot be fixed on any conjecture or speculation as the likelihood ofthe use to which the land may be put at distant future, or to anyincrease to the value of the land acquired, likely to accrue from theuse to which it will be put when acquired. If there is a reasonableperiod the same cannot be ignored in assessing its values. If the landinvolved in the award is comparable land in the reasonable proximityof the acquired land, the rates found in the said documents will be areliable material to form the basis for determination of thecompensation at a later date (compensation awarded in respect of landof same village valid basis).10.This Court recalls the observation of Hon'ble Supreme Court inthe decision Parameswari Devi (dead) by L.R.s etc. V. Punjab StateElectricity Board and another AIR 1994 SC 1142 at 1143 wherein it isobserved that 'it is the duty of claimant to prove sale deeds byadducing evidence either of vendor or vendee or attesting witness of https://hcservices.ecourts.gov.in/hcservices/ passing of the consideration under the sale deed, to prove that thesale transactions are genuine transactions between the willing welfareand willing vendee; that the consideration had in fact been passedunder the document duly registered, represent the prevailing marketvalue; and also the lands under acquisition and the lands concerningthe sale or similarly situated and possessed of same or similarnature, advantages etc.'11.It appears that as per village accounts of Virupakshipuram inrespect of the acquired land the patta No.739 stands jointly in thename of Panneerselvam S/o.Punyakoti and Pugalendi S/o.Ramalingam.S.No.133/3 2.705 hectare land belongs to Panneerselvam as ancestralproperty, as observed by the Special Tahsildhar (ADW), Vellore in hisaward proceedings dated 7.1.1998. During interregnum of the LandAcquisition Proceedings on 15.6.1995 as per Document No.3817, 0.55acres of land has been purchased by Pugalendhi and therefore, the saidPugalendhi's name has been jointly entered in the patta. The LandAcquisition Officer in the award dated 7.1.1998 has observed that the55 cents of land purchased by the said Pugalendhi has not been enjoyedby him by means of separate boundaries and therefore, the purchasedportion under the sale deed dated 15.6.1995 has not been determined.In the acquired portion there are four coconut trees and threevalueless neem trees and in the acquired land, there is no well and abuilding.12.P.W.1/the first appellant who has deposed on behalf of thesecond appellant before the trial Court has stated that his land hasbeen acquired on 7.1.1998 for the purpose of providing free house sitepatta to the people belonging to the Adi Dravida Community and that inthe acquired land there were coconut trees and that Mullai flowerplant has been raised in the acquired land and that the acquired landis situated in an important place in Vellore and around the acquiredlands Dhanapakkiyam Women College, Krishnasami Higher SecondarySchool, Government Muthurangam Arts College, Clay Factory and HousingTenements, Commercial Establishments and Blue Theatre are all situatedand that at the time of acquisition the market value of their land persquare feet has been at Rs.100/- and this has not been taken note ofby the concerned authority and through yielding flowers he has earnedan income of Rs.1000/- per day and flowers will yield for six monthsand in the acquired land paddy and other grains are raised and in theacquired land well and pumpset have not been acquired and he hasincurred an expense of Rs.2,00,000/- towards the well and the pumpsetand after acquisition of the land, the well and the pumpset havebecome useless and that he prays for a compensation of Rs.3,000/- percoconut tree and for the land per square feet prays a compensation ofRs.5000/- and that the sale deed dated 1.9.1994 executed by Sekar infavour of Subramanian is Ex.A.1 and since his land has been acquiredfor providing house site he prays for a compensation to be fixed onthe basis of house site and also the solatium amount. https://hcservices.ecourts.gov.in/hcservices/

13.R.W.1 (Assistant in the office of the Special Tahsildhar AdiDravidar Welfare Department) during his examination has deposed thatthe 4(1) Notice has been issued on 30.4.1996 for the acquired land inquestion and that the data land in Survey No.169/1A2 has been takeninto account for the purpose of determining the compensation andaccordingly per acre the compensation has been fixed at Rs.57,300/-and that the possession of the acquired land has been taken on10.3.1999 and Ex.B.1 is the plan indicating the acquired and the dataland.14.R.W.1 in his cross examination has specifically stated thatSurvey No.160 is situated near the Survey No.169/A1, the data land andit is not correct to state that in the acquired land Jasmine andMullai plant have been in existence and that it is yielded a monthlyincome of Rs.5000/-. Significantly, R.W.1 has stated that he does notknow personally around the acquired land Dhanapakiyam Women College,Krishnasami Higher Secondary School, Blue Cinema Theatre andGovernment Muthurangam Arts College and Housing Tenements have been inexistence.15.Ex.A.1 is the certified copy of sale deed dated 1.9.1994executed by C.Sekar and four others to in favour of C.Subramanian fora sum of Rs.15,000/- in respect of a vacant land. Ex.A.1 sale deedrelates to Virupakshipuram Village Government punja S.No.160/1B,165/3A, 166/1A, 167 mixedly and in the aforesaid land, the plots havebeen formed and being sold out and in that plot No.31 to an extent of1,500/- square feet vacant land has been sold out for Rs.15,000/-. Toput it specifically in east west an extent of 50 feet and north south30 feet, in all 1500 square has been sold out as seen from Ex.A.1 saledeed.16.Ex.B.1 is the Composite Plan (photo copy) in respect of No.116N.A. District, Vellore Taluk, Virupakshipuram.17.It is to be borne in mind that the owner/claimant of anacquired land must not be put to loss by means of under valuation. Butat the same time Public Exchequer should not be put to undue burden bymeans of an excess valuation. It is the statutory duty of a Court oflaw to maintain the balance between diverse factors and interests. Atthis stage, it is pertinent to point out that a Reference Court mustbe circumspect, pragmatic and careful in evaluating the evidence andarriving at a just and fair market value of the lands underacquisition which could be fetched on the date of notification.18.The Land Acquisition Tribunal has observed that the ‘4(1)Notice under the Land Acquisition Act has been issued in the year 1996and on the same day the data land has been sold and therefore, it hascome to the conclusion that choosing S.No.169 as data land cannot befound fault with’. https://hcservices.ecourts.gov.in/hcservices/

19.In the instant case on hand, admittedly the sale deed inrespect of data land has not been filed into the Tribunal/trial Court.The date of sale of the data land is on 18.1.1996. After three monthsand 11 days from the date 18.1.1996, the 4(1) Notice has been issuedon 30.4.1996.20.On a careful perusal of the award passed by the LandAcquisition Tribunal, it is quite evident that the Tribunal has fixeda sum of Rs.700/- per cent as compensation towards the acquired land.It has also awarded for four coconut trees a sum of Rs.2000/-, in allcalculating Rs.500/- per tree.21.It is true that there is an element of guesswork inherent inlarge number of cases involving determination of the market value ofthe acquired land. But if there is lack of reasoning as to how theTribunal has come to the conclusion in fixing a compensation ofRs.700/- per cent then such decision cannot be accepted in the eye oflaw and on that score a remand is justifiable and an essential one.22.It is relevant to make a mention that admittedly the data saledeed relied on the side of the respondent has not been produced beforethe Tribunal. Therefore, it is quite clear that the Tribunal has notbeen in a position to know and what circumstance the data sale deedhas come into existence. In short, there is no record to establish hasto the character and nature of the data land in the present case onhand.23.As far as the present case is concerned, suffice it for thisCourt to point out the observation of the Land Acquisition Tribunalinter alia stating that ‘it can fix slightly a higher compensation tothe acquired land and accordingly fixing compensation of Rs.700/- percent’ is based on assumption or presumption and on conjecture and thesaid reasoning is not a sufficient one in the eye of law since thesame is not based on a material placed before it, while determiningthe compensation to be fixed for the acquired land in issue andtherefore, this Court, on the basis of Equity, Fair play, GoodConscience and as a matter of prudence, sets aside the award passed bythe Tribunal in furtherance of substantial cause of justice and allowsthe appeal to prevent an aberration of justice.24.In the result, the appeal is allowed. The award passed by theTribunal viz. Sub Court, Vellore dated 24.8.2001 is set aside for thereasons assigned by this Court in this appeal. The matter is remandedback to the Land Acquisition Tribunal for fresh consideration of theentire gamut of the matter in issue. The Court Fee paid by theappellants in this appeal is ordered to be refunded. It is open to therespective parties to adduce further oral and documentary evidence bymeans of examination of additional witnesses as the case may be and https://hcservices.ecourts.gov.in/hcservices/ the Tribunal shall permit them to do so in this regard. Liberty isgiven to the appellants/claimants to file an application forappointment of a Commissioner to determine the extent of 55 centspurchased by the second appellant/ second claimant as per sale deeddated 01.9.1994 by defining/de-marketing the boundaries thereto and inthe event of said application being filed on the side ofappellants/claimants, the Land Acquisition Tribunal shall provide anopportunity to the respondent/Referring Officer to file his counter ifany and to pass orders on merits in the manner known to law and inaccordance with law. The appellants/claimants shall pay remunerationto the Commissioner on being appointed by the Tribunal and theTribunal shall fix the remuneration to the Commissioner as it deemsfit and proper. The Tribunal, while considering the matter afresh,shall take into consideration the Commissioner’s report with necessaryplan along with the objections if any filed by the respondent and passan award in any event within a period of five months from the date ofreceipt of copy of this order without fail. Considering the facts andcircumstances of the case, there shall be no order as to costs. Sd/- Asst.Registrar/True Copy/ Sub.Asst.Registrarsgl To.1. The Sub Court, Vellore.2. The Section Officer, Judicial Department(for Watching report) High Court, Madras.3. The Section Officer, V.R.Section, High Court, Madras.+ 1 cc to Mr.V.Balasubramanian and Associates,SR.27533+ 1 cc to Government Pleader,SR.27877A.S.No.30 of 2002PUR(CO)EM/23.7.09