The Special Tahsildar Adi Dravidar Welfare Tirupattur, N.A.A.District v. J.P. Kannan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.10.2011C O R A MTHE HONOURABLE MR.JUSTICE K.MOHAN RAMANDTHE HONOURABLE MR.JUSTICE G.M.AKBAR ALISecond Appeal No.225 of 2003and C.M.P.No.2113 of 2003The Special TahsildarAdi Dravidar WelfareTirupattur, N.A.A.District... Appellant/Land AcquisitionOfficer-Vs.-J.P.Kannan... Respondent/Claimant Prayer:- Second Appeal filed under Section 13 of the Tamil NaduAcquisition of Land for Harijan Welfare Schemes Act, 1978 (Act 31 of1978 read with Section 100 of the CPC) against the judgment anddecree, dated 06.04.1998 made in L.A.A.No.4 of 1997 on the file of thelearned Subordinate Judge, Tirupattur, reversing the award made inAward No.25 of 1996-97 dated 27.03.1997 made by the Special Tahsildar(ADW), Tirupattur.For Appellant : Mr. M.Raja, Govt Advocate (CS)For Respondents : Mr. A.Sivaji- - -J U D G M E N T(JUDGMENT OF THE COURT WASDELIVERED BY JUSTICE K.MOHAN RAMBeing aggrieved by the judgment and decree, dated 06.04.1998, madein L.A.A.No.4 of 1997 on the file of the learned Subordinate Judge,Thirupattur, reversing the award made in Award No.25 of 1996-97 dated27.03.1997 made by the Special Tahsildar (ADW), Thirupattur, VelloreDistrict, has filed the above appeal.2. The brief facts, which are necessary for the disposal of theabove appeal, are as follows:-Under a notification, issued under Section 4 (1) of the Tamil NaduAcquisition of Land for Harijan Welfare Schemes Act, 1978 (Act 31 of1978) (hereinafter referred to as “the Act”) which was published inthe Gazette, dated 06.03.1997, an extent of 1.18.0 hectares, out of1.15.5 hectares, comprised in Survey No.59/17 and an extent of 0.70.0 https://hcservices.ecourts.gov.in/hcservices/ hectares comprised in Survey No.59/18, totally an extent of 1.85.5hectares = 4.55 acres, situated in Sankarakuppam village in NorthArcot Ambedkar District (now Vellore District), belonging to therespondent, was acquired for providing house-sites to harijans of thatlocality. After an enquiry, the appellant passed an award, dated27.03.1997, fixing Rs.480/- per cent, as the market value. After theaward, the acquired lands were taken possession on 10.04.1997. Beingnot satisfied with the quantum of compensation awarded, the respondentpreferred an appeal before the Sub Court, Thirupattur, in L.A.A.No.4of 1997.3. Before the Sub-Court, on the side of the land owner / therespondent herein, besides examining himself as P.W.1, three otherwitnesses were examined and Exs.C-1 and C-2 were marked and on theside of the appellant herein, the Special Tahsildar was examined asR.W.1 and Exs.R-1 to R-3 were marked. On a consideration of the oraland documentary evidence available on record, the Sub Court, fixed thecompensation at Rs.3,600/- per cent and awarded other statutorybenefits. Being aggrieved by the enhancement of compensation, theappellant has filed the above appeal. 4. While admitting the above second appeal, the followingsubstantial questions of law have been framed:-“a) Whether the Court below is right in determiningthe market value for the lands acquired in accordance withlaw under the Act 31 of 1978? b) Whether the Court below is right in relying uponthe Exhibit A2, in determining the market value of theland, since it is only a small extent of land, and whichcannot be considered for fixing the market value of thevast area of the acquired lands as ruled by the HSC New asreported in 1997 (1) CTC 127? c) Whether the Court below is right in awardinginterest on solatium in contrary to the provisions of theRuling of the H.S.C.New as reported in 1997 (1) CTC 249? d) Whether the Court below is right in not acceptingthe documents relied on by the Acquisition Officer indetermining the market value of the lands without proper,valid and acceptable reason thereof? ”5. Heard the learned counsel on either side.6. Learned Government Advocate (CS) appearing for the appellantsubmitted that the Court below has committed an error in relying uponEx.C-2, which relates to a very smaller extent of land for fixing themarket value of the larger extent of land; it has not been provedunder what circumstances and for necessity the small portion of landwas sold by the vendor and under what circumstances the same waspurchased by the vendee under Ex.C-2; the Court below has notproperly appreciated the evidence of R.W.1. He further submitted that https://hcservices.ecourts.gov.in/hcservices/ while the acquired lands are agricultural lands, the lands conveyedunder Ex.C-2, dated 26.05.1993, relates to a house-site and therefore,the land conveyed under Ex.C-2 cannot be compared with the acquiredland. He further submitted that the decision of the Court below iscontrary to the decision of the Apex Court reported in 1997 (I) CTC127 (Sri Saunu v. Collector, Land Acquisition) wherein, in paragraph2, the Apex Court has laid down as follows:-“2. .... The question, however, arises: whether it isa case for further enhancement? The appellant relied uponfive sales instances of a small extent of land rangingbetween 6 biswas and 18 biswas spoken to by the witnessesas discussed by the High Court. These lands are situatedin Abadi, namely, village itself. Under thosecircumstances, those sales deeds do not form any reasonablebasis to determine higher compensation for the vast extentof 221 bighas of land....”7. Countering the said submissions, the learned counsel for therespondent made the following submissions:-The land acquired is situated within Jolarpet Town PanchayatLimits; it has been proved by evidence that the quality of the landsold under Ex.C-2 and the acquired land is same; ThiruppatturVaniyambadi Main Road runs just 200 ft away from the acquired land;further through the acquired land, several buses are passing to Kuppamand Natarampalli Sugar Factory; Police Station, cinema theater,school are located within the distance of 200 mts and the RailwayStation is also situated very nearby; R.W.1 has also admitted theaforesaid facts; further, R.W.1 has admitted that the distancebetween the acquired land and the data land is 400 mts and while theacquired land is situated in Sankarakuppam Village, the data land issituated in Mettu Sankarakuppam village. He submitted that on thebasis of the evidence adduced, the Court below has recorded a findingthat in and around the acquired land, several facilities are availableand the distance between the acquired land and the data land is more;the Court below has also pointed out that while Ex.C-2 is dated26.05.1993 and Ex.R-2 is dated 24.01.1996 and as per Ex.C-2, an extentof 1751 ½ s.ft of land has been sold for Rs.25,000/-, which works outto Rs.6,250/- per cent, as per Ex.R-2, dated 24.01.1996 an extent of25 cents have been sold at Rs.480/- per cent; taking intoconsideration all the relevant factors like the situation andadvantages of the acquired land, the distance between the land coveredby Ex.C-2 and the land covered by Ex.R-2, the Court below has rightlyrelied upon Ex.C-2, but, according to the learned counsel, the Courtbelow failed to take into consideration the escalation in the pricesof the urban and semi-urban lands, while Ex.C-2 is dated 26.05.1993,the date of the 4 (1) notification is dated 06.03.1997 and thereforefor the interregnum period of four years 10% escalation in the marketvalue should have been taken into consideration and that also whilecalculating the market value 10% escalation should be calculatedcumulatively. He further submitted that the trial court erred indeducting twice from the value reflected in Ex.C-2. He further https://hcservices.ecourts.gov.in/hcservices/ submitted that the Court below erred in not granting severancecompensation. According to the learned counsel, in Survey No.59/17out of the total extent of 1.15.5 hectares, only an extent of 1.18.0hectares was acquired and the balance extent of 0.02.5 hectares isstill with the land owner; such a small extent of land cannot be putto cultivation so it has become waste and therefore compensationshould have been paid for the said extent of 0.02.5 hectares on thesame rate fixed by the Court below.8. Learned counsel for the respondent further submitted thatthough the respondent has not filed any cross-objection, as laid downin the decisions reported in 2006-2-L.W.102 (Sub Collector,Padmanabhapuram v. R.S.Raveendran), 1992 T.L.N.J. 194 (M.Bari Sultanv. The Special Tahsildar (Land Acquisition) Project, Madurai, an un-reported decision of a Division Bench of this Court, dated 29.04.2002in A.S.Nos.840 of 1987 batch cases and (1985) 3 Supreme Court Cases737 (BHAG SINGH v. UNION TERRITORY OF CHANDIGARH), this Court canaward higher compensation to the land owner / the respondent herein,if this Court ultimately comes to the conclusion that the market valueof the land fixed by the Court below is less. He further submittedthat as per the decision reported in (2003) 1 M.L.J. 124 (SpecialTahsildar (Land Acquisition), Adi Dravidar Welfare, Srivilliputhur v.Chinna Ramaswami) if the acquired land is severed and the un-acquiredportion is smaller in extent and the same could not be put to anyproper use, then the land owner is entitled for severancecompensation.9. We have considered the aforesaid submissions made by thelearned counsel on either side and perused the materials available onrecord.10. As far as the contention of the learned Government Advocate(CS) that the Court below has not considered the evidence of R.W.1 andExs.R-1 to R-3 is concerned, it has to be pointed out that the Courtbelow has fully considered the evidence of R.W.1 and Exs.R-1 to R-3.In the decision reported in 1997 (I) CTC 127 (referred to supra) theApex Court has held that sales instances of small extent of land donot form any reasonable basis to determine higher compensation for thevast extent of land. Similar view has been taken by the Hon 'ble ApexCourt in the decision reported in AIR 1988 SC 943 = 1988 (2) SCC 150(Administrator General of W.B. v. Collector, Varanasi) and AIR 1984 SC892 = 1984 (2) SCC 324 (Kausalya Devi Bogra v. Land AcquisitionOfficer) if no sale of lands of a larger extent have taken place justprior to the 4 (1) notification and the only sale deed availablerelates to a smaller extent of land, then it is permissible for theCourt to rely upon such a sale deed and while fixing the market valueof the larger extent, proper deduction should be made in the price ofthe smaller extent of land. But, in this case, Ex.R-2-sale deed,dated 24.01.1996, has been marked by the appellant and which is thedata sale deed relied upon by the appellant for fixing the market https://hcservices.ecourts.gov.in/hcservices/ value, but it has to be seen whether the land covered by Ex.C-2 orEx.R-2 is nearer to the acquired land and whether the land covered byEx.C-2 or Ex-R-2 is comparable with the acquired land, the relativelocational advantages available to the aforesaid lands, etc., have tobe considered before deciding to rely upon the particular document.11. In this case, even R.W.1 has admitted in his evidence thatthe distance between the data land and the acquired land is 400 mts,whereas as per P.W.1's evidence the distance between the acquired landand the land covered by Ex.C-2 is 1000 ft i.e., 300 mts. It has to bepointed out that R.W.1 has not stated that the data land possessessimilar locational advantages as that of the acquired land. When theacquired land has got more locational advantages and the land coveredby Ex.C-2 is nearer to the acquired land, the Court below is right intaking into consideration Ex.C-2 for fixing the market value of theacquired land. 12. The trial court, while relying upon Ex.C-2, has observed thatas per Ex.C-2 the market value per cent will work out to Rs.6,250/-,but having observed so, the Court below has taken the land value percent at Rs.5,400/- and thereafter has deducted 1/3rd, namely,Rs.1,800/- and arrived at the market value per cent at Rs.3,600/-. Ithas further observed that from Rs.6,250/-, 40% could be deducted andthus has fixed the market value at Rs.3,600/- per cent. As rightlysubmitted by the learned counsel for the respondent, the Court belowis not justified in deducting twice from Rs.6,250/-. Since underEx.C-2-sale deed, only 1751 ½ sq.ft., of land alone has been sold andadmittedly it relates to a smaller extent and towards developmentalcharges 30% alone could have been deducted. If so deducted, the valuewill come to Rs.4,375/- per cent.13. Learned counsel for the respondent basing reliance on thedecision of the Apex Court reported in (2009) 2 MLJ 78 (SC) = 2008(14) SCC 745 (G.M., ONGC v. Rameshbhai Jivanbhai Patel) submitted thatconsidering the escalating prices of urban lands 10% per year shouldbe taken as the escalating cost and it should be calculatedcumulatively. In the said decision, the Apex Court has laid down asfollows:-“14. In this case, the acquisition was in a ruralarea. There was no evidence of any out of the ordinarydevelopments or increases in prices in the area. We are ofthe view that providing an escalation of 7.5% per annumover the 1987 price under Ext. 15, would be sufficient andappropriate to arrive at the market value of acquiredlands. Whether the increase should be at a cumulative rateor a flat rate? 15. The increase in market value is calculated withreference to the market value during the immediatepreceding year. When market value is sought to be https://hcservices.ecourts.gov.in/hcservices/ ascertained with reference to a transaction which tookplace some years before the acquisition, the method adoptedis to calculate the year to year increase. As thepercentage of increase is always with reference to theprevious year's market value, the appropriate method is tocalculate the increase cumulatively and not applying a flatrate. The difference between the two methods is shown bythe following illustration (with reference to a 10%increase over a basic price of Rs 10 per square metre):Year By flat rate increase method By cumulative increasemethod1987(Base year) 10.0010.00198810 + 1 = 11.0010.00 + 1.00 = 11.00198911 + 1 = 12.0011.00 + 1.10 = 12.10199012 + 1 = 13.0012.10 + 1.21 = 13.31199113 + 1 = 14.0013.31 + 1.33 = 14.64199214 + 1 = 15.0014.64 + 1.46 = 16.1016. We may also point out that application of a flatrate will lead to anomalous results. This may bedemonstrated with further reference to the aboveillustration. In regard to the sale transaction in 1987,where the price was Rs 10 per square metre, if the annualincrease to be applied is a flat rate of 10%, the increasewill be Rs 1 per annum during each of the five years 1988,1989, 1990, 1991 and 1992. If the price increase is to bedetermined with reference to sale transaction of the year1989 when the price was Rs 12 per square metre, the flatrate increase will be Rs 1.20 per annum, for the years1990, 1991 and 1992. If the price increase is determinedwith reference to a sale transaction of the year 1990 whenthe price was Rs 13 per square metre, then the flat rateincrease will be Rs 1.30 per annum for the years 1991 and1992. It will thus be seen that even if the percentage ofincrease is constant, the application of a flat rate leadsto different amounts being added depending upon the marketvalue in the base year.”According to the learned counsel, admittedly the acquired land comeswithin Jolarpet Town Panchayat and therefore it should be consideredas an urban area or at least as a semi urban area, but a perusal ofthe evidence adduced on the side of the respondent does not revealthat there is faster development and demand for land is high and thereis construction activity all around, in such circumstances, theincrease in market value cannot be taken at 10% or 15%, but it couldbe taken only at 7.5%. In the very same decision, the Apex Court hasheld that the logical, practical and appropriate method is to applythe increase cumulatively and not at a flat rate. 14. If the said principle is applied, in this case, at 7.5%cumulative rate per year, on the rate arrived at by this Court on the https://hcservices.ecourts.gov.in/hcservices/ basis of Ex.C-2, namely, Rs.4,375/-, works out as follows:-YearBy cumulative increase method IRs.4,375/- + Rs.328/-=Rs.4,703/- IIRs.4,703/- + Rs.353/-= Rs.5,056/- IIIRs.5,056/- + Rs.379/-=Rs.5,435/- IVRs.5,435/- + Rs.408/-=Rs.5,843/-Thus the market value of the acquired land as on the date ofacquisition is fixed at Rs.5,843/- per cent.15. As far as the severance compensation is concerned, it has tobe pointed out that there should be clear evidence on record to showthat because of the acquisition there was severance and the unacquiredportion cannot be put to any use. P.W.1, in his evidence has onlystated as follows:-“Mh;$pj g{kpapy; tPLfs; fl;otpl;lhy; kPjKs;s vdJ g{kp ML khLfs;nka;e;J ec;&lk; Vw;gLj;Jk; tptrhaj;jpw;F jz;zPh; ghahJ.”Except the aforesaid evidence, there is no evidence to show that theunacquired portion measuring 0.02.5 hectares could not be put to anyother use. Even according to the respondent, the acquired land couldbe used as house-sites and only on that basis, he has claimed theenhanced compensation. The land itself has been acquired only for thepurpose of providing house-sites for the harijans of that locality.Therefore, the remaining extent could be used as house-sites or couldbe sold as house-sites by the respondent. Therefore, in ourconsidered view, the respondent is not entitled to claim any severancecompensation.16. The Court below has fixed the market value of the acquiredland at Rs.3,600/- per cent and only being aggrieved by that, theabove appeal has been filed by the appellant / land acquisitionofficer. It is the contention of the learned counsel for therespondent that though the respondent has not filed any separateappeal or cross-objection, yet the respondent is entitled for justcompensation, if this Court arrives at the market value higher thanthe one fixed by the Court below. In support of the said contention,the learned counsel based reliance on an unreported decision, dated29.04.2002 rendered in A.S.Nos.840 to 842 of 1987, etc., batch cases.In that decision, it has been held that even though the respondentshave not filed any cross-objections claiming enhanced compensation,they may be permitted to pay necessary court fee within the timeprescribed by the Court and on compliance they could be entitled toreceive the enhanced compensation. A similar view has also been takenby a Division Bench of this Court in the decision reported in 2006-2-L.W.102 (referred to supra), and by another Division Bench of thisCourt in the decision reported in (1985) 3 Supreme Court Cases 737(referred to supra) and therefore, the respondent is entitled to claim https://hcservices.ecourts.gov.in/hcservices/ the enhanced market value for the acquired land.17. We are of the considered view that this is a fit case, wherethis court should invoke Order 41 Rule 33 of the Code of CivilProcedure, and permit the respondent / land owner, who has not filedcross-objection to claim the enhanced market value and hence he isentitled to the sum of Rs.5,843/- per cent, the market value fixed bythis Court, on condition of his paying necessary court fee on theenhanced compensation amount. The necessary Court fee shall be paidby the respondent within a period of four weeks from the date ofreceipt of a copy of this judgment. The respondent is also entitledto claim all the consequential statutory benefits on the aforesaidmarket value fixed by this Court.18. For the aforesaid reasons, the substantial questions of laware answered against the appellant and the second appeal standsdismissed. However, there will be no order as to costs.Consequently, the connected CMP is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarsrkTo1.The Subordinate Judge,Tirupattur.2.The Special Tahsildar (ADW)Tirupattur.+1cc to the Additional Govt. Pleader Sr 64706+1cc to Mr.A.Sivaji, Advocate Sr 64891NG(CO)km/31.10.Second Appeal No.225 of 2003and C.M.P.No.2113 of 2003