Land Acquisition Special Tahsildar v. P.Mariammal & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15.09 .2011CORAM :THE HONOURABLE Mrs.JUSTICE K. MOHAN RAMandTHE HONOURABLE Mr.JUSTICE G.M. AKBAR ALIA.S.No.960 of 2008 andCross Objection No.48 of 2010A.S.No.960 of 2008The Land Acquisition Special Tahsildar,Salem-Karur Broadgauge Railway ProjetSalem-1 ... Appellant/Referring Officer/Respondentvs1.P.Mariammal2.P.Sengodan3.P.Palaniappan4.S.Venkatesh...Respondent/Claimants5.S.Rajesh6.The Deputy Chief Engineer (Construction) Salem-Karur Broadgauge Railway Project Southern Railway, Salem-5... Respondent/ResondentCross Objection No.48 of 20101.P. Mariammal2.P.Sengodan3.P.Palaniappan4.S.Venkatesh5.S.Rajesh6.P. Athayee Ammal(impleaded as 6th Cross Objector as per order of this Court datd 14.12.2010 in MP No.1 of 2010 in Cross.Objn.No.48/10) .. Cross Objectorsvs1. The Land Acquisition Special Tahsildar, Salem-Karur Broadgauge Railway Projet Salem-12. The Deputy Chief Engineer (Construction) Salem-Karur Broadgauge Railway Project Southern Railway, Salem-5 ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Appeal filed under Sec.54 of the Land Acquisition Actagainst the judgment and decree of the Additional SubordinateJudge, Salem in LAOP No.3 of 2007 dated 17.4.2008.Cross Objection filed under Order 41 Rule 22 of CPC againstthe judgment and decree of the Additional Subordinate Judge, Salemin LAOP No.3 of 2007 dated 17.4.2008.For appellant in &: Mr.S. Pasupatheswaran Spl GP (AS) Assisted by Mr.P. GunasekaranA.S.No.960/08 AGP (AS)R.1 in Cross Obj.48/10For R.1 to R.5 : Mr.M. Venkatachalapathy Senior Counsel for Mr.M. SriramFor R.6 in A.S. : Mr.V.G. Suresh KumarNo.960/08 & R.2 in Cross.Obj.No.48/10 COMMON JUDGMENTG.M. AKBAR ALI,J.,Appeal Suits filed under Section 54 of the Land AcquisitionAct against the judgment and decree of the learned AdditionalSubordinate Judge, Salem in LAOP No.3 of 2007 dated 17.4.2008.Cross Objection filed under Order 41 Rule 22 of CPC againstthe judgment and decree of the learned Additional SubordinateJudge, Salem in LAOP No.3 of 2007 dated 17.4.2008.2. An extent of 3.00.5 hectres of land in S.No.21/11A, 53and its sub divisions, 58/1A, 59/8A, 68, 69/1A, 74/2B, subdivisions of 91 to 93 situate at Pallipatti (Kandampatti village),Salem was acquired for the purpose of Salem Karur BroadgaugeRailway Line. Sec.4(1) Notification was issued on 23.2.1999 underG.O.Ms.No.63 and the same was published in the Government Gazetteon 25.2.1999. As it was acquired invoking urgency provisions underSec.17 of the Act, enquiry was dispensed with and declarationunder Sec.6 was issued on 17.3.1999.3. The lands in S.No.91/3D2 and 92/2B , a total extent of1.07.5 hectres belong to the respondents 1 to 5. They filed awrit petition challenging the acquisition. The writ petition wasallowed. The Land Acquisiton Officer filed an appeal in WA No.162and 188 of 2000. On 5.9.2007, orders were passed in the writappeal permitting the claimants to withdraw the writ petition withliberty to proceed for an enhancement of compensation under Sec.18of the Land Acqusiiton Act. https://hcservices.ecourts.gov.in/hcservices/

4. Meanwhile, the Land Acquisition Officer passed an awardon 4.8.1999 fixing the value of the acquired land at Rs,1,82,963/-per hectre. The claimant‘s reference was made to the ReferenceCourt in LAOP No.3/2007. In the same acquisition, there were manyreferences and in LAOP Nos.65 to 78 of 2002, the reference Courthad enhanced the compensation to Rs.100/-per sq.ft.. Therefore, inLAOP No.3/2007 also the Reference Court has fixed the marketvalue at Rs.100/-per sq.ft.5. Aggrieved by such enhancement, the Land AcquisitionOfficer has preferred the present appeal. The claimants have filedcross objection for further enhancement.6. Mr.Gunasekar, the learned Additional Government Pleader(A.S) would submit that the enhancement by the reference Court ison the higher side. The learned Additional Government Pleaderpointed out that the Land Acquisition Officer had considered morethan 122 data sale deeds and has disregarded those sale deedswhich relates to house sites and developed areas and sales forfancy prices and has considered a sale deed dated 11.11.1998 whichrelates to S.No.16 where 0.54 acres of land was sold for a sum ofRs.40,000/- which works out to Rs.1.71 per sq.ft. The learnedAdditional Government Pleader would further point out that beforethe Reference Court, the claimants in LAOP No.65/2 had relied on asale deed dated 24.12.1998 where S.No.103 was sold at Rs.240/-persq.ft. According to the Additional Government Pleader, the saledeed considered by the reference Court does not reflect thecorrect value on the date of 4(1) Notification and pleaded thatthe value fixed by the Land Acqusition officer has to beconfirmed.7. On the contrary, Mr.M. Venkatachalapathy, the learnedSenior counsel who appeared for the claimants would point out thatthe claimants preferred Writ Petition No. 6112 of 1999 in theyear 1999 and the same came to be allowed and the Governmentfiled writ appeal and the same was disposed of in the year 2007with liberty to the claimants to seek a reference under Section 18(1) of the Act. The learned Snior counsel pointed out that thewrit appeal having been disposed of on a compromise in the year2007, it should be construed that 4(1) Notification is of the year2007. The learned Senior counsel pointed out that the claimantshave produced Exs.A.9 and 10 dated 24.2.2006 under which the landhas been sold at Rs.297/-and Rs.279/-per sq.ft respectively.According to the learned counsel that the value of the land shouldbe more than Rs.1,500/-, but the claimants have restricted theirclaim to Rs.300/-per sq.f.t. The learned Senior Counsel alsopointed out that since the lands were acquired for the purpose oflaying railway line, no development charges could be deducted.Therefore, the learned counsel pointed out that the enhancedcompensation should be for a sum of Rs.2,34,41,800/-.8. The learned Senior counsel relied on a decisionreported in (1992) (1) SCC 328 Ujjain Vikas Pradhikaran vsRajkumar Johri and Others). It is a case where the Madhya PradeshHigh Court, Indore Bench annuled the Notificatiion issued under https://hcservices.ecourts.gov.in/hcservices/ Sec.4(1) of the Act and on appeal, the Hon'ble Supreme Courtfound that if notification is cancelled at that stage, and noacquisition made, land owners would enjoy usual benefits of theirland on account of the development of the neighbouring areas, andif re-acquisition is made, there would be claim for highercompensation and under those circumstances, the date ofNotification was postponed from 1985 to 1988 and the market valueof the land was directed to be determined with reference to thelater date, as if the 4(1) notificatioin is issued only in theyear 1988.9. The learned Senior counsel also relied on a decisionreported in JT 2005 (10) SC 50 (Competent Authority vs BarangoreJute Factory) It is also a case where the acquisition waschallenged and the High Court had quashed the acquisition and onconsidering whether the High Court was correct in quashing theacquisition, the Apex Court has held as follows:`Normally, compensation is determiinedas per the market price of land on thedate of issuance of the Notificationregarding acquisitiion of land. Thereare precedents by way of judgments ofthis Court where in similar situationsinstead of quashing the impugnedNotification, this Court shifted thedate of the Notification so that theland owners are adequately compensated.In that direction the next step is whatshould bethe crucial date in the factsof the present case for determining thequantum of compensation. We feel thatthe relevant date in the present caseought to be the date when posession ofthe land was taken by the respondentsfrom the writ petitioners. This dateadmittedly is 19th February, 2003. We,therefore, direct that compensationpayable to the writ petitioners bedetermined as on 19th February, 2003,the date on which they were deprived ofpossession of their lands.10. The learned counsel further relied on a decisionreported in 2002 (3) SCC 533 (Padma Sundara Rao (Dead) and othersvs State of T.N and Others), wherein, the Apex Court held thus:` The purpose for providing theperiod of limitation under the firstproviso to Section 6(1) seems to bethe avoidance of inconvenience to aperson whose land is sought to beacquired. Compensation gets peggedfrom the date of notification underSection 4(1). Section 11 providesthat the valuation of the land has tobe done on the date of publication ofnotification under Section 4(1). https://hcservices.ecourts.gov.in/hcservices/ Section 23 provides that the marketvalue of the land is to be fixed withreference to the date of publicationof the notification under Section 4(1) of the Act. The prescription oftime-limit in that background is,therefore, peremptory in nature. Thestipulation regarding the urgency interms of Section 5-A of the Act hasno role to play when the period oflimitation under Section 6 isreckoned“.11. In 2010 (Indlaw) SCO 150 = 2010 (12) SCC 51 (UdhoDass vs State of Haryana and Others), the Apex Court held`Be that as it may, we must assumethat the land owners were entitledto the compensation fixed by theHigh Court on the date of the awardof the Collector and had this amountbeen made available to thelandowners on that date, it wouldhave been possible for them torehabilitate their holdings in someother place. This exercise has beendefeated for the simple reason thatthe payment of compensation has beenspread over almost two decades. Inthis view of the matter, we are ofthe opinion that a landowner isentitled to say that if thecompensation proceedings continuedover a period of almost 20 years asin the present case, the potentialof the land acquired from him mustalso be adjudged keeping in view thedevelopment in the area spread overthe period of 20 years if theevidence so permits and cannot belimited to the near future alone.We, therefore, feel that in thecircumstances, the appellants hereinwere fully entitled to say that thepotential of the acquired land hadnot been fully recognized by theHigh Court or by the ReferenceCourt“.12. The learned Senior counsel would also point out thatthe reference Court had not taken into consideration thepotential value of the land and the post notification sale deed ofthe adjacent land can also be considered. He relied on a decisionreported in 2010 (9) SCC 118 (A. Natesam Pillai s SpecialTahsildar, Land Acquisition, Trichy) for that preposition.13. The decision reported in 2007 (9) SCC 447 (Nelson https://hcservices.ecourts.gov.in/hcservices/ Fernandes and Others vs Special Land Acquisition Officer, SouthGoa and Others) also relied wherein the Supreme Court hasconsidered the deduction of developmental charges for the landsacquired for laying of Railway lines and held that in this casethe question of the development of the land would not arise. Healso relied on a decision reported in 2010 (6) CTC 327 (A.Natesam Pillai s Special Tahsildar, Land Acquisition, Trichy)where the Supreme Court has considered the building potentialityof the acquired land while fixing the market value.14. Mr.V.G. Suresh Kumar, the learned counsel who appearedfor the Southern Railway would contend that the acquired landshave no potentiality to be developed into house sites andtherefore, reliance of a sale deed relating to a house site by thereference court is erroneous.15. We have considered the rival contentions advanced oneither side and perused the materials available on record.16. The claimants lands in S.No.91/3D2 and S.No.92/2B of2.65 acres out of 10.5 acres was acquired invoking urgencyprovision under Sec.17 of the ACT. 4(1) Notification dated23.2.1999 was challenged by the claimants in WP No.6112 of 1999.The learned single Judge of this Court had allowed the writpetition and quashed the Notification. Writ appeals were filed bythe Government of Tamil Nadu and the Special Tahsildar of Salem-Karur Broadgauge line, in W.A.No.162 and 188 of 2000. On5.9.2007, this Court disposed of the Writ appeals by passing thefollowing judgment,`These appeals arise out of the orderpassed by the learned Single Judge in WPNo.6112 of 1999. Learned counselappearing for respondents4 to 8 inW.A.No.162 of 2000, who are the legalheirs of the original writ petitioner,seeks leave to withdraw the writ petitionwith liberty to file a reference underSection 18 of the Land Acquisition Actfor enhanced compensation, within aperiod of two weeks from today. If suchreference is filed, the Civil Court shallconsider the reference on merits anddispose of the same within a period ofthree months from the date of receipt ofthe reference. In view of withdrawal ofthe writ petition, the writ appeals donot survive and the same are closed. We,however, make it clear that the ReferenceCourt shall not take into account theundertaking given by the Petitioners tothe authorities while deciding the amountof compensation. Consequently, theconnected miscellaneous petiitons arealso closed“ https://hcservices.ecourts.gov.in/hcservices/

17. By that time, the Land Acquisition Officer had alreadypassed an award fixing the land value at Rs.1,82,963/-per hectre(Rs.1.70 per sq.ft.). Various claimants in the same acqusiitionobjected and references were made and land acqusition OPS werepending from the year 2002. The respondent’s reference was alsotaken on file. By a common order dated 13.2.2003, in LAOPNo.65/2002, a sum of Rs.75/-was fixed per sq.ft. The claimantsreference was made in LAOP No.3/2007. The reference Court followedthe earlier award and enhanced the compensation at Rs.100/-persq.f.t. The enhanced amount is being challenged by both the landacqusition officer and the claimants have pleaded for furtherenhancement.18. According to the claimants, the 4(1) Notification wasinitially quashed by this court in WP No,6112 of 1999 and the Writappeal having been disposed of on a compromise on 5.9.2007, and nofresh 4(1) Notification having been issued for the purpose offixing the market value of the lands acquired, it should beconstrued that 4(1) Notification is of the year 2007.19. No doubt, market value is determined as per themarket value of the land on the date of issuance of 4(1)Notification. In the cases where the impugned notification beingchallenged, the Apex Court, on considering the long pendency ofthe judicial proceedings and also considering the fact thatpossession of the land was taken long before and the lands werealso put in use for the purpose for which it was acquired, heldthat since the purpose had already been achieved, there is nopoint in quashing the Notification. Though there are severalreasons to quash the notification , the Apex Court had shiftedthe date of Notification to a later date so that the land ownersare adequately compensated. This principle is laid down in thefollowing cases:(1992 (1) SCC 328 Ujjain VikasPradhikaran vs Rajkumar Johri andOthers).2002 (3) SCC 533 (Padma Sundara Rao(Dead) and others vs State of T.N andOthers)JT 2005 (10) SC 50 (Competent Authorityvs Barangore Jute Factory)2010 (12) SCC 51 (Udho Dass vs State ofHaryana and Others)20. By referring the above decision the learned SeniorCounsel submitted that in the present case also the benefit shouldbe given to the claimants as the notification was questioned andWrit appeals was disposed of with liberty to seek a referenceunder Section 18(1) of the Act. https://hcservices.ecourts.gov.in/hcservices/ However we are not in agreement of thearguments by the learned Senior Counsel. The Principle isapplicable in the cases were the notification for the acquisitionwas liable to be quashed but not quashed for the reason that thethe possession had already been taken and the land so acquired hasalso been utilised for the purpose for which it was acquired. Inthe case on hand, no doubt, initially the notification was quashedby an order dated 16.12.1999 in WP No.6112 of 1999. The Governmenthad filed the writ appeals. The order that came to be passed on5.9.2007 which has already been extracted above would show thatthe claimants have sought permission to withdraw the writ petitionitself with liberty to seek a reference under Sec.18 of the Actfor enhanced compensation. 21. In view of the withdrawal of the writ petition, thewrit appeals were disposed of and there is no indication orobservation by the Division Bench that the notification is liableto be quashed and in fact it was not quashed and there is noobservation that the claimants are entitled for the postponementof the date of 4(1) Notification. The main difference between thedecisions cited supra and the case on hand is that in those cases,the Hon'ble Supreme Court had almost decided to quash the impugnednotification and instead of quashing the same and taking intoconsideration the long lapse of time, the court had shifted thedate of notification so that the land owners are adequatelycompensated.22. In the present case, the impugned notification thoughquased in the writ petition, by withdrawal of writ petition, thestatus-quo ante was restored i.e., Notification stands revived ason 23.2.1999.23. Therefore, we are unable to accept the contentions ofthe learned Senior counsel that it has to be construed that 4(1)notiication is of the year 2007 and not 1999. Therefore reliancecan not be placed on the two sale deeds produced by the claimantswhich are of the year 2006.24. As far as the compensation is concerned, the LandAcquisition Officer has fixed the market value as Rs.1.70/-persq.ft.which is Rs.1,82,963/-per hectre which is on the basis of asale of S.No.106. The Reference Court has enhanced the amount byfixing the market value at Rs.100/-per sq.ft. This was based on anaward passed in LAOP NO.65 of 2002 which was marked as Ex.B.7before the Reference Court. A sum of Rs.80/-per sq.ft was awardedin the above said LAOP. However, considering the conversion oflands into house plots, the Tribunal has fixed the market value asRs.100/-per sq.ft. The Tribunal has also considered the severanceof the land into two parts and has granted a sum of RS.2,00,000/-as severance compensation. It had also observed that due to thefiling of the writ proceedings, the respondent has not takenpossession of the land until the disposal of the writ appeal sothe rate of interest at 9% was awarded from 23.10.2000 with otherstatutory reliefs. https://hcservices.ecourts.gov.in/hcservices/

25. A perusal of Ex.B.7 would show that in LAOP No.65 of2002 the Referece court had taken into account of Ex.A.6, a saledeed dated 24.12.1998, under which a house plot was sold atRs.240/-per sq.ft. in S.No.103. The same document has also beenproduced before the Refence Court as Ex.A.6. Ex.A.7 is also a saledeed dated 7.10.1998. Under Ex.A.6, the land was valued only atRs.136/-per sq.ft. Since there was a building, the total value ofthe sale was fixed at Rs.1,60,000/-. Unfortunately, the Courtbelow had considered the value at Rs.240/- per sq.ft. (1,60,000/-divided by 650 sq.ft = Rs.240/-). The document itself would showkidepyj;jpd; gug;gst[ 650 sq.ft. rJu mo gug;g[ Rs.136/- bkhj;jkjpg;g[ Rs.88,400/-. Therefore, the value of the land is to be fixedonly at Rs.136/-per sq.ft.26. As per the principle laid down in Konkan Railways,reported in 2007 (9) SCC 447, Nelson Fernandez and Others vsSpecial Land Acqusiition and others, in the case of acquisitionfor laying railway line, the question of development thereof wouldnot arise. Therefore, the deduction for development charges bythe Reference Court is not correct. However, considering the landsold under Ex.A.6 is for a smaller extent of 650 sq.ft., we are ofthe considered view that a deduction at 20% has to be made whichwill be Rs.27.20/-. Therefore, it will be around Rs.108.80.27. Considering the document is of the year 1998 and theacquisition being 1999, a 10% appreciation value is to be addedwhich would be Rs.10.80 Thus, the market value will come toRs.119.60 which is rounded to Rs.120/-per sq.ft.28. Therefore, the market value of the acquired land as on23.2.1999, the date of notification is fixed at Rs.120/-sq.ft.29. As far as the severance compesnation is concerned,the petitioner's land in S.No.91/3D2 and in S.No.92/2B has beenacquired. As per the sketch submitted by the respondents that theproposed railway line cut across both the lands and thereby asmall portion in 91/3D1 and a small portion in 92/2A is severdfrom the main portion. According to the respondents, landsmeasuring about 2.5 acres in S.No.91 becomes waste due toseverance.30. In 2002 (2) TNLJ 249 (Special Tahsildar(LandAcquisition), Adi Dravidar Welfare, Srivilliputhur vs ChinnaRamaswami and others a Division Bench of this Court has held thatwhen a part of land is acquired, the remaining extent may be cutdown into two parts, say for an instance, when the acquisition isa strip of land for formation of railway line or a channel. Itmay be that only a portion of a land is acquired but the leftover area may not be suitable for the purpose to which it was ormight have been used“ and further held ` as we have alreadypointed out the left over area (unacquired lands) cannot becultivated in the sense, it would not be profitable to cultivatethe lands“. Taking into consideration the Division bench had fixeda sum of Rs.200/-per cent in respect of unacquired lands by wayof severance compensation. https://hcservices.ecourts.gov.in/hcservices/

31. Therefore, we are of the considered view that a sum ofRs.60/-per sq.ft may be fixed in respect of unacquired lands byway of severance compensation.32. It is admitted that possession was taken only on23.10.2000 as the writ proceedings were pending. Therefore, theclaimants are entitled for 9% interest only from the date ofactual taking over possession on 23.10.2000.33. In the result, A.S.No.960 of 2008 stands dismissed andCross Objection No.48 of 2010 is partly allowed and the marketvalue is enhanced to Rs.120/-per sq.ft with statutory benefits.However, interest at 9% is payable only from 23.10.2000. TheSpecial Government Pleader shall be entitled to claim separatefees of Rs.2000/- (Rupees two thousand only) in the appeal andcross objections. No costs.srSd/-Deputy Registrar//True Copy//Sub Asst. RegistrarToThe Additional Subordinate Judge, Salem+ 1 cc to Mr. V.G. Suresh Kumar, Advocate SR No.57825+ 1 cc to Mr. M. Sriram, Advocate SR No.57026+ 1 cc to Spl Government Pleader, SR No.57509EV(CO)SR/18.11.2011 Judgment in A.S.No.960 of 2008 andCross Objection No.48 of 2010