Madras High Court
The Special Tahsildar (La) vs Vadivel ... 1St on 12 March, 2010
Author: R.Banumathi
Bench: R.Banumathi, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.03.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE M.VENUGOPAL A.S.Nos. 825 to 835/2005; 837 to 844/2005; 845 to 861/2005; 862 to 883/2005 and 884 to 894/2005 The Special Tahsildar (LA), Unit-IV, Tamil Nadu Housing Board Scheme, Nandanam, Chennai-35. ... Appellant in all appeals. vs. Vadivel ... 1st Respondent in A.S.No.825/2005 Poongothai ... 1st Respondent in A.S.No.826/2005 C.Saroja ... 1st Respondent in A.S.No.827/2005 Meganathan ... 1st Respondent in A.S.No.828/2005 Damodaran Naicker ... 1st Respondent in A.S.No.829/2005 Devaki ... 1st Respondent in A.S.No.830/2005 M.Venu ... 1st Respondent in A.S.No.831/2005 Chinna Ponnammal ... 1st Respondent in A.S.No.832/2005 Krishnappa Naicker ... 1st Respondent in A.S.No.833/2005 Rathinavelu ... 1st Respondent in A.S.No.834/2005 Vijayalakshmi ... 1st Respondent in A.S.No.835/2005 Durai ... 1st Respondent in A.S.No.837/2005 Chinnaponnammal ... 1st Respondent in A.S.No.838/2005 Kesavan ... 1st Respondent in A.S.No.839/2005 Thulasi ... 1st Respondent in A.S.No.840/2005 Panjalai ... 1st Respondent in A.S.No.841/2005 Shanthi ... 1st Respondent in A.S.No.842/2005 Karpagam ... 1st Respondent in A.S.No.843/2005 M.Venu ... 1st Respondent in A.S.No.844/2005 Duraisamy ... 1st Respondent in A.S.No.845/2005 Saradammal ... 1st Respondent in A.S.No.846/2005 Kuppammal ... 1st Respondent in A.S.No.847/2005 Duraisamy ... 1st Respondent in A.S.No.848/2005 Soori ... 1st Respondent in A.S.No.849/2005 Kesavan ... 1st Respondent in A.S.No.850/2005 Mani ... 1st Respondent in A.S.No.851/2005 Krishnan ... 1st Respondent in A.S.No.852/2005 Kanniyammal ... 1st Respondent in A.S.No.853/2005 G.Natarajan ... 1st Respondent in A.S.No.854/2005 G.Kanniyappan ... 1st Respondent in A.S.No.855/2005 V.Prema ... 1st Respondent in A.S.No.856/2005 Amutha ... 1st Respondent in A.S.No.857/2005 Elumalai ... 1st Respondent in A.S.No.858/2005 Kamatchi ... 1st Respondent in A.S.No.859/2005 Raghavakilari ... 1st Respondent in A.S.No.860/2005 Rani ... 1st Respondent in A.S.No.861/2005 Chinnammal ... 1st Respondent in A.S.No.862/2005 Ranganathan ... 1st Respondent in A.S.No.863/2005 Kathuri ... 1st Respondent in A.S.No.864/2005 P.Ranganathan ... 1st Respondent in A.S.No.865/2005 Vijayakumari ... 1st Respondent in A.S.No.866/2005 Arumugam ... 1st Respondent in A.S.No.867/2005 Balakrishnan ... 1st Respondent in A.S.No.868/2005 Elumalai ... 1st Respondent in A.S.No.869/2005 Appadurai ... 1st Respondent in A.S.No.870/2005 Subramani ... 1st Respondent in A.S.No.871/2005 Devan ... 1st Respondent in A.S.No.872/2005 Munusamy Naicker ... 1st Respondent in A.S.No.873/2005 Yesotha ... 1st Respondent in A.S.No.874/2005 Deenadayalan ... 1st Respondent in A.S.No.875/2005 Venkatraman ... 1st Respondent in A.S.No.876/2005 S.Venu ... 1st Respondent in A.S.No.877/2005 Kathuri ... 1st Respondent in A.S.No.878/2005 Nukkalammal ... 1st Respondent in A.S.No.879/2005 K.Sankar ... 1st Respondent in A.S.No.880/2005 Jagathammal ... 1st Respondent in A.S.No.881/2005 Manickammal ... 1st Respondent in A.S.No.882/2005 Muthu ... 1st Respondent in A.S.No.883/2005 P.Ravi ... 1st Respondent in A.S.No.884/2005 Rajendran ... 1st Respondent in A.S.No.885/2005 Suriyaprakasam ... 1st Respondent in A.S.No.886/2005 P.Mohana ... 1st Respondent in A.S.No.887/2005 Meenakchi ... 1st Respondent in A.S.No.888/2005 Ramachandran ... 1st Respondent in A.S.No.889/2005 P.Loganathan ... 1st Respondent in A.S.No.890/2005 Subramani ... 1st Respondent in A.S.No.891/2005 Jegatha ... 1st Respondent in A.S.No.892/2005 Kamala ... 1st Respondent in A.S.No.893/2005 Kannayiram ... 1st Respondent in A.S.No.894/2005 The Chairman, Tamil Nadu Housing Board, Nandanam, Chennai. ... 2nd Respondent in all the appeals. Prayer: Appeals filed under Section 54 of Land Acquisition Act against the Common Judgment made in a Batch of cases dated 30.09.2004 on the file of Additional District Judge [Fast Track Court No.III], Poonamallee. For Appellant : Mr.V.Ravi in all appeals Special Government Pleader [AS] For 1st Respondent : Mr.G.Karthikeayan in all appeals For 2nd Respondent : Mr.D.Veerasekaran in all appeals COMMON JUDGMENT
R.BANUMATHI,J Feeling aggrieved by the enhancement of compensation from Rs.720/- per cent to Rs.7000/- per cent in respect of the lands acquired in Parvatharajapuram village, Poonamallee Taluk for implementation of Satellite Town by the Tamil Nadu Housing Board, the Special Tahsildar [Land Acquisition], Tamil Nadu Housing Board Scheme has filed these Appeals. Since, all the Appeals arise out of common Judgment, all the Appeals were taken up together and shall stand disposed of by this Common Judgment.
2. An extent of lands measuring 44.37.0 Hectares in Wet S.No.5, 6, 93 etc., situated in No.29, Parvatharajapuram village [Block IV], Poonamallee Taluk were acquired for public purpose i.e. for the implementation of Satellite Town by the Tamil Nadu Housing Board, Nandanam, Chennai-35. Sec.4(1) Notification was published on 01.12.1999. Sec.5-A enquiry was conducted on 14.03.2000, 16.03.2000 and 16.06.2000 respectively. 9 sale deeds were gathered from 01.08.1996 to 31.12.1999. From out of the sales statistics, the Land Acquisition Officer [LAO] has taken S.Nos.113/1B1, 114/2 and 115/1 as data land opining that the said land is the same tharam and quality of the acquired lands. Under sale deed dated 28.01.1997 [Document No.45] an extent of 1.86 acres [S.Nos.113/1B1 0.67 cents; 114/2 0.46 cents and 115/1 0.73 cents] of Parvatharajapuram village was sold for Rs.1,34,000/-. Based on which, LAO has fixed the market value of the acquired lands at Rs.720/- per cent with 30% solatium. LAO has also ordered 12% additional market value for 1075 days from 17.12.1999 to 25.11.2002 and passed the Award under four Awards viz., Award Nos.5, 6, 7 and 8/2002 respectively.
3. On objection raised by the land owners, reference under Sec.18 of the Act was made. Before the Reference Court, in respective Awards, the Claimants were examined as CW1. On the side of Claimants, Exs.C1 to C3 were marked. One Gopinathan, Special Tahsildar [Land Acquisition] was examined as RW1 and one Azhagirisamy, Executive Officer-cum-Administrative Officer, Tamil Nadu Housing Board, K.K.Nagar Division was examined as RW2. On the side of Referring Officer, Ex.R1-Award was marked.
4. Based upon Ex.C2 sale deed [14.09.1998], Reference Court fixed the value at Rs.10,000/- per cent. After giving 1/3rd deduction for development charges, Reference Court has fixed the market value at Rs.7,000/- per cent. Reference Court also ordered (i) 12% additional market value for the enhanced compensation from 17.12.199 to 25.11.2002 [1075 days]; (ii) 30% solatium on the enhanced compensation; (iii) interest at the rate of 9% for a period of one year from 25.11.2002 and (iv) interest at the rate of 15% p.a. thereafter till the date of realisation.
5. Details of the lands acquired and the extent, amount awarded by LAO and enhancement by Reference Court are as under:-
A.S.No. LAOP No. Award No. & Date S.No. and Extent Market value fixed by LAO [per cent] Rs.
Enhancement by Court Rs.
825/2005 98/2003 6/2002 dt. 25.11.1999 54 0.37.0 Hec.720 7000
826/2005 140/2003 6/2002 dt. 25.11.1999 61/1 0.06.5 Hec.720 7000
827/2005 145/2003 6/2002 dt. 25.11.1999 50/2, 50/3A1, 50/3A2, 50/3A3A, 51 0.27.5 Hec.720 7000
828/2005 149/2003 6/2002 dt. 25.11.1999 28/2A, 28/3A 0.19.5 Hec.720 7000
829/2005 107/2003 6/2002 dt. 25.11.1999 50/3B 0.50.0 Hec.720 7000
830/2005 106/2003 6/2002 dt. 25.11.1999 53 0.38.5 Hec.720 7000
831/2005 259/2003 6/2002 dt. 25.11.1999 26, 27/1, 27/2, 28/1, 63, 64 1.37.0 Hec.720 7000
832/2005 260/2003 6/2002 dt. 25.11.1999 61/C 0.06.0 Hec.
720 7000833/2005 261/2003 6/2002 dt. 25.11.1999 57/1, 57/3 0.30.5 Hec.
720 7000834/2005 262/2003 6/2002 dt. 25.11.1999 34/1B 0.20.5 Hec.
720 7000835/2005 276/2003 6/2002 dt. 25.11.1999 50/1, 52 0.50.5 Hec.
720 7000837/2005 267/2003 8/2002 dt. 25.11.1999 105/5B, 105/6A 0.43.5 Hec. [= share] 720 7000 838/2005 268/2003 8/2002 dt. 25.11.1999 105/5B, 105/6A 0.43.5 Hec. [= share] 720 7000 839/2005 269/2003 8/2002 dt. 25.11.1999 111/1 0.04.5 Hec.
720 7000840/2005 270/2003 8/2002 dt. 25.11.1999 98/1A, 101/1 0.33.0 Hec. [< share] 720 7000 841/2005 271/2003 8/2002 dt. 25.11.1999 98/1A, 101/1 0.33.0 Hec. [< share] 720 7000 842/2005 272/2003 8/2002 dt. 25.11.1999 98/1A, 101/1 0.33.0 Hec. [< share] 720 7000 843/2005 273/2003 8/2002 dt. 25.11.1999 98/1A, 101/1 0.33.0 Hec. [< share] 720 7000 844/2005 277/2003 8/2002 dt. 25.11.1999 97 0.22.5 Hec. [< share] 720 7000 845/2005 100/2003 7/2002 dt. 25.11.1999 70, 78/1A 0.41.5 Hec.
720 7000846/2005 102/2003 7/2002 dt. 25.11.1999 85/1, 85/2B 0.42.5 Hec.
720 7000847/2005 103/2003 7/2002 dt. 25.11.1999 84 0.42.5 Hec.
720 7000848/2005 104/2003 7/2002 dt. 25.11.1999 77/1 0.47.5 Hec.
720 7000849/2005 108/2003 7/2002 dt. 25.11.1999 85/2A 0.13.5 Hec.
720 7000850/2005 127/2003 7/2002 dt. 25.11.1999 78/1B [Part] 0.04.0 Hec.
720 7000851/2005 134/2003 7/2002 dt. 25.11.1999 86/2 etc. 0.12.5 Hec.
720 7000852/2005 136/2003 7/2002 dt. 25.11.1999 74 0.38.0 Hec.
720 7000853/2005 137/2003 7/2002 dt. 25.11.1999 78/2 0.62.5 Hec.
720 7000854/2005 263/2003 7/2002 dt. 25.11.1999 78/1B 0.04.0 Hec. [= share] 720 7000 855/2005 264/2003 7/2002 dt. 25.11.1999 78/1B 0.04.0 Hec. [= share] 720 7000 856/2005 265/2003 7/2002 dt. 25.11.1999 72/1 0.36.5 Hec.
720 7000857/2005 266/2003 7/2002 dt. 25.11.1999 76/1 0.25.0 Hec.
720 7000858/2005 136/2003 7/2002 dt. 25.11.1999 85/3B 0.19.0 Hec.
720 7000859/2005 109/2003 7/2002 dt. 25.11.1999 75/1C 0.05.5 Hec.
720 7000860/2005 112/2003 7/2002 dt. 25.11.1999 85/3A 0.09.5 Hec.
720 7000861/2005 105/2003 7/2002 dt. 25.11.1999 76/4 0.50.0 Hec.
720 7000862/2005 96/2003 5/2002 dt. 25.11.1999 8/1 etc. 0.28.5 Hec.
720 7000863/2005 97/2003 5/2002 dt. 25.11.1999 3/1A 0.08.5 Hec.
720 7000864/2005 102/2003 5/2002 dt. 25.11.1999 14/2 0.43.5 Hec.
720 7000865/2005 110/2003 5/2002 dt. 25.11.1999 11 etc. 0.23.0 Hec.
720 7000866/2005 111/2003 5/2002 dt. 25.11.1999 9/1A 0.38.5 Hec.
720 7000867/2005 128/2003 5/2002 dt. 25.11.1999 3/1B 0.28.0 Hec. [1/3 share] 720 7000 868/2005 129/2003 5/2002 dt. 25.11.1999 2/3 etc. 0.83.0 Hec.
720 7000869/2005 130/2003 5/2002 dt. 25.11.1999 3/1B 0.28.0 Hec.
[1/3 share] 720 7000 870/2005 131/2003 5/2002 dt. 25.11.1999 3/1B 0.28.0 Hec.
[1/3 share] 720 7000 871/2005 132/2003 5/2002 dt. 25.11.1999 12/3B 0.20.5 Hec 720 7000 872/2005 133/2003 5/2002 dt. 25.11.1999 12/1B 0.24.0 Hec.
720 7000873/2005 135/2003 5/2002 dt. 25.11.1999 2/1B etc. 0.40.5 Hec.
720 7000874/2005 139/2003 5/2002 dt. 25.11.1999 4/1B 0.14.0 720 7000 875/2005 146/2003 5/2002 dt. 25.11.1999 13/2 0.08.0 Hec.
[1/3 share] 720 7000 876/2005 147/2003 5/2002 dt. 25.11.1999 13/2A 0.08.0 1/3 share] 720 7000 877/2005 148/2003 5/2002 dt. 25.11.1999 12/2A 0.24.5 Hec.
720 7000878/2005 151/2003 5/2002 dt. 25.11.1999 13/2A 0.08.0 Hec.
720 7000879/2005 152/2003 5/2002 dt. 25.11.1999 13/1 0.26.5 Hec.
720 7000880/2005 153/2003 5/2002 dt. 25.11.1999 12/1C 0.24.5 Hec.
720 7000881/2005 257/2003 5/2002 dt. 25.11.1999 9/1B 0.37.0 720 7000 882/2005 258/2003 5/2002 dt. 25.11.1999 15 etc. 0.47.0 Hec.
720 7000883/2005 234/2003 5/2002 dt. 25.11.1999 12/1A 0.25.0 Hec.
720 7000884/2005 277/2003 6/2002 dt. 25.11.1999 50/1, 52 0.50.5 Hec.
[1/8 share] 720 7000 885/2005 278/2003 6/2002 dt. 25.11.1999 50/1, 52 0.50.5 Hec.
[1/8 share] 720 7000 886/2005 279/2003 6/2002 dt. 25.11.1999 50/1, 52 0.50.5 Hec.
[1/8 share] 720 7000 887/2005 280/2003 6/2002 dt. 25.11.1999 50/1, 52 0.50.5 Hec.
[1/8 share] 720 7000 888/2005 281/2003 6/2002 dt. 25.11.1999 50/1, 52 0.50.5 Hec.
[1/8 share] 720 7000 889/2005 282/2003 6/2002 dt. 25.11.1999 50/1, 52 0.50.5 Hec.
[1/8 share] 720 7000 890/2005 283/2003 6/2002 dt. 25.11.1999 34/1B 0.28.5 Hec.
[< share] 720 7000 891/2005 284/2003 6/2002 dt. 25.11.1999 34/1B 0.28.5 Hec.
[< share] 720 7000 892/2005 285/2003 6/2002 dt. 25.11.1999 34/1B 0.28.5 Hec.
[< share] 720 7000 893/2005 284/2003 6/2002 dt. 25.11.1999 34/1B 0.28.5 Hec.
[< share] 720 7000 894/2005 334/2003 6/2002 dt. 25.11.1999 34/2 0.25.0 Hec.
720 70006. Mr.Ravi, learned Special Government Pleader appearing for the Appellant-Referring Officer submitted that LAO has taken the relevant sale deed which is prior to Sec.4(1) notification and has rightly fixed the market value at Rs.720/- per cent and while so, Court below erred in relying upon Ex.C2-sale deed [14.09.1998] without any basis.
7. Mr.Veerasekaran, learned counsel appearing for 2nd Respondent-Tamil Nadu Housing Board submitted that LAO has taken the relevant sale deed which is in the midst of the acquired lands and which is also prior to Sec.4(1) notification and has rightly fixed the market value of acquired lands at Rs.720/- per cent. It was further submitted that the data sale in S.Nos.113/1B1, 114/2 and 115/1 are of the same taram and quality of the acquired lands and while so, Court below erred in relying upon Ex.C2 sale deed (14.09.1998) without any basis. Placing reliance upon (2009) 5 MLJ 2 [Special Tahsildar, Neighbourhood Scheme, Erode, Erode District v. Jaganathan Gounder and another], it was contended that the trend of various Judgments of the Supreme Court indicates deduction on account of development charges in the range of 33% 50% and while so, Reference Court erred in giving 1/3rd deduction. It was further contended that when small extent was taken for comparison and the acquired lands being Wet lands not fit for forming layout, Reference Court ought to have deducted atleast 50% for development charges.
8. Mr.Karthikeyan, learned counsel appearing for the Claimants submitted that the acquired lands are situated in between two National Highways i.e. in between Chennai-Tirupati and Chennai-Bangalore and situated very near to Poonamallee and the acquired lands have potential for future development. It was submitted that as per Exs.C1 and C3-sale deeds, value of the lands would be very much higher and the Reference Court has conservative approach in taking Ex.C2 sale deed [14.09.1998] as comparable instance. It was further submitted that as per the well settled principle, Reference Court has given 1/3rd deduction for development charges and the enhancement by the Court below is very less warranting no interference.
9. According to the Appellant, the data land in S.Nos.113/1B1, 114/2 and 115/1 is of the same taram and quality of the acquired lands and LAO has opined that the acquired lands are only agricultural lands and that they are not suitable for developing as 'house plots' and LAO has rightly taken the data land in S.Nos.113/1B1, 114/2 and 115/1 which are in the midst of the acquired lands for fixing the market value. Case of Appellant is that when large extent of about 44.37.0 Hectares were acquired, rightly larger extent of data land which is in the midst of the acquired lands was taken as of the same taram and quality.
10. Principles for determination of market value:-
For determining the amount of compensation payable in respect of the lands acquired by the State, market value therefor is to be ascertained. The expression 'market value' has been the subject matter of consideration by the Supreme Court in several cases. Market value is the price that the willing purchaser would pay to the willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities. In considering the 'market value' the guiding factor would be the conduct of hypothetical willing vendor who would offer the land and a purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions. For ascertaining the market value of the land, the area of the land, nature thereof and advantages and disadvantages occurring therein amongst others would be relevant factor for determining the actual market value of the property. That apart, potentiality of the acquired land should also be taken into consideration.
11. In a catena of decisions, the Supreme Court has laid down the governing principles for determination of market value and the amount of compensation. The positive as well as negative factors and potentiality of the land to be taken into consideration for arriving at the correct market value. In (2005) 4 SCC 789 [Viluben Jhalejar Contractor v. State of Gujarat], the Supreme Court held as under:-
"18. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not.
19. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered.
20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under:-
Positive factors Negative factors
(i) smallness of size
(i) largeness of area
(ii) proximity to a road distance
(ii) situation in the interior at a from the road
(iii) frontage on a road
(iii) narrow strip of land with very small frontage compared to depth
(iv) nearness to developed area
(iv) lower level requiring the depressed portion to be filled up
(v) regular shape
(v) remoteness from developed locality
(vi) level vis-a-vis land under
(vi) some special disadvantageous acquisition factors which would deter a purchaser
(vii) special value for an owner of an adjoining property to whom it may have some very special advantage
21. Whereas a smaller plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots,waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price.
12. In (2008) 2 SCC 568 [Atma Singh v. State of Haryana], the Supreme Court reiterated the legal position that in considering the market value, the guiding star would be the conduct of hypothetical willing vendor and willing purchaser and not an anxious dealing at arms length.
13. In (2009) 1 SCALE 545 [Revenue Divisional Officer-cum-L.A.O. v. Shaik Azam Saheb], the positive as well as negative factors indicated in Viluben Jhalejar Contractor's case (supra) as factors germane for consideration for the purpose of deterining the market value was reiterated thus:
"11. Determination of market value of a land acquired in terms of the provisions of the said Act depends upon a large number of factors, the first being the nature and quality of the land, i.e., whether agricultural land or homestead land. Apart from nature and quality of land in the event the agricultural lands are acquired the other factors relevant therefor are also required to be considered, namely, as to whether they are irrigated or non-irrigated, extent of facilities available for irrigation, location of the land, closeness thereof from any road of highway, the evenness of land, its position in different seasons particularly in rainy season, existence of any building or structure as also the development in and around the area. A host of other factors will also have a bearing on determining the valuation of land.
12. The mode and manner in which determination of such valuation are to be carried out would also depend upon the facts and circumstances of each case, namely, whether any deed of sale executed in respect of similarly situated land near about the date of issuance of notification under Section 4(1) of the Act is available, or in absence of any such exemplars whether the claim can be determined on yield basis or in case of an orchard on the basis of the number of fruit bearing trees and the yield therefrom.
13. One other important factor which also should be borne in mind is that it may not be safe to rely only on an award involving a neighbouring area irrespective of the nature and quality of the land. For determination of market value again, the positive and negative factors germane therefor should be taken into consideration, as laid down by this Court in Viluben Jhalejar Contractor v. State of Gujarat (supra)."
14. Keeping in view, the above principles governing determination of market value, we have considered the submissions and the evidence on record. By perusal of Topo sketch, we find that the data land taken by the LAO is in the midst of the property acquired. In the Award, it is stated that the sale in S.Nos.113/1B1, 114/2 and 115/1 is reasonable sale as it reflects the real market value. The data land situated at a distance between 200 meters from the residential area of Parvatharajapuram village. As such the sale was considered to be the best reasonable sale in the vicinity. In his evidence, RW1-LAO has stated that the acquired lands is full of thorny bushes and not fit for forming layout and much amount is to be spent for development charges and therefore, value fixed by him is reasonable.
15. By perusal of sales statistics mentioned in the Award, we find that item No.4 [sale deed dated 30.04.1997], land in S.No.118 0.45 cents was sold for Rs.90,000/- i.e. per cent value Rs.2,000/-. Like wise, we find from item No.7 [sale deed dated 03.7.1998], land in S.No.11/2 0.47 cents was sold for Rs.1,17,500/- i.e. per cent value Rs.2,500/-. Sale in item No.4 was discarded by the LAO on the ground that the said land is situated at a distance beyond 1 K.M. on the western side of the acquired lands. In so far as, item No.4, LAO has formed an opinion that the sale was "abnormal fancy sale". In our considered view, the opinion of the LAO that item No.4 sale dated 30.04.1997 was "abnormal fancy sale" is not convincing. Item No.4 sale was long before Sec.4(1) notification. When the Dry land was sold for Rs.2,000/- per cent, the acquired lands being Wet lands raising crops would fetch more. More so, the developed area is within 200 300 meters. In their evidence Claimants have stated that the acquired lands are Wet lands irrigated from lake and that they have also well with water sources used for irrigation. In their evidence, Claimants have also stated that they would raise 2 3 crops and would earn not less than Rs.50,000/- per annum from their lands. Admittedly, the acquired lands are very near to Poonamallee situated in between two National Highways i.e., Chennai-Tirupati and Chennai-Bangalore. From the evidence of Claimants, it is seen that there are number of Engineering Colleges, Mahendra van company and Thirumazhisai SIDCO are very nearby. Jayendra Swamigal Ayurvedic College is also situated nearby. As is seen from the evidence of Claimants [CW1], there is all round development in the nearby area. Evidence of Claimants [CW1]reads as under:-
@Mh;$pj epy';fs; g{e;jky;yp jhYf;fhit nrh;e;j epy';fs;/ g{e;jky;yp g!; epiyaj;jpy; ,Ue;J v';fSila Mh;$pj epy';fs; tiuapy; bjhlh;e;J gy fl;ol';fSk;. fy;Y}hpfSk;. bjhHpw;rhiyfSk;. filfSk;. bjhlh;e;J cs;sd/ Mh;$pj epy';fs; g{e;jky;yp efuj;jpy; xU tsh;r;rp gFjp vd;nw brhy;yyhk;/ Mh;$pj epy';fs; tPLfs; fl;Ltjw;fhd kzy; kw;Wk; fspkz; fye;j epy';fs; MFk;/ Mh;$pj epy';fs; ey;y FoePh; trjpa[k;. fl;olk; fl;Ltjw;fhd jFjp tha;e;j epy';fs; MFk;/ Mh;$pj epy';fis Rw;wpa[k;. mUfpYk; gy fl;ol';fs; fy;Y}hpfs; cs;sd/ /////// v';fSila Mh$pj epy';fSk; tPl;Lkidfshft[k;. bjhHpw;rhiyfshft[k;. fy;Y}hpfshft[k; khWtjw;F Vw;w epy';fshFk;/ /////// v';fSila Mh;$pj epyj;jpy; ey;;y FoePh; trjpa[k;. beL";rhiy kw;Wk; Cuf rhiy trjpa[k;. gs;spf;Tl';fSk;. 3 fpnyh kPl;lh; J}uj;jpy g{e;jky;yp g!; epiyaKk;. gy filfSk; cs;s ,lk; vd;gjhy;. tPl;L kidfSf;F kpf jFjp tha;e;j rpwg;g[ mk;r';fs; cs;s fhuzj;jpdhy; jhd; tPl;L trjp thhpak; nrl;iyl; lt[d; mikg;gjw;fhf Mh;$pjk; bra;Js;sdh;/@
16. In his evidence, RW1-LAO has also admitted that the acquired lands are situated in between two National Highways. RW1 has also admitted that Educational Institutions, Factories and Companies and SIDCO are situated nearby the acquired lands. In his evidence, RW1 has categorically admitted that the acquired lands are fertile lands having potential in future use. As to the development in the neighbouring area and the potential for future development, we may usefully refer to the evidence of RW1 which reads as under:-
@Mh;$pj epy';fis Rw;wp gy fy;Y}hpfs;. jpUkHpir rpl;nfh epWtdk;. nkYk; gy bjhHpw;rhiyfs; fk;bgdpfs; cs;sJ vd;W brhd;dhy; rhpjhd;/ Mh;$pj epy';fs; midj;Jk; tptrha epy';fs; vd;W mthh;onyna Fwpg;gplg;gl;L cs;sJ vd;W brhd;dhy; rhpjhd;/ tptrha epy';fs; vd;W brhd;dhy; ePh;ghrd trjpa[k; tptrhaj;jpw;nfw;w kz; juKk; cs;s epy';fis kl;Lk; jhd; tptrha epy';fs; vd;W brhy;y Koa[k; vd;W brhd;dhy; rhpjhd;/ mjhtJ Mh;$pj epy';fs; vjph; fhyj;jpy; mjpntfkhf tsh;r;rpailaf;Toa gFjp vd;W brhd;dhy; rhpjhd;/@ It is clearly brought in evidence that the acquired lands are surrounded by Engineering Colleges, Factories, Companies and the nearby area are developed. Admittedly, the acquired lands are situated in between two National Highways having good access to main roads and have potential for future development. While so, LAO was not justified in fixing the market value at Rs.720/- per cent.
17. Coming to the documentary evidence, the Claimants have produced Exs.C1 to C3. The details of Exs.C1 to C3 are as follows:-
Exhibits No. S.No. and Extent Sale Value in Rupees Per cent/sq.ft. value in Rupees Ex.C1 dt. 10.07.1996 S.No.96/2 3051 sq.ft.S.No.96/6
1864 = sq.ft.
Rs.1,52,381/-
Rs.14,000/- per cent Ex.C2 dt.14.09.1998 S.No.114/3 0.06 cent S.No.114/2 0.14 cent [Total 0.20 cent] Rs.2,01,066/-
Rs.10,000/- per cent Ex.C3 dt.16.09.1998 S.No.96/2 1764 sq.ft.
Rs.75,852/-
Rs.19,000/- per cent
18. Under Exs.C1 and C3, the land was sold as Plot and Reference Court has not taken into consideration Exs.C1 and C3. Under Ex.C2 sale deed, an extent of 0.06 cent in S.No.114/3 and 0.14 cents in S.No.114/2 totalling 0.20 cents was sold for Rs.2,01,066/- and the same was taken as comparable sale by the Reference Court and Reference Court has taken value of Rs.10,000/- per cent. Learned counsel for Appellant contended that Reference Court was not right in taking Ex.C2 sale deed as comparable instance. Learned counsel for Appellant would further submit that Exs.C1 and C3 is in Narasingapuram village which is far away from the acquired lands. In the Award, northern boundary of the acquired lands is stated as 'Narasingapuram village'. When the northern boundary of the acquired lands stated as 'Narasingapuram village', it cannot be said that the Reference Court committed an error in taking Ex.C2 sale deed. Sec.4(1) notification was on 01.12.1999. In fact, Ex.C2 is dated 14.09.1998 and in our considered view, Ex.C2 sale deed being proximate from time angle and proximity from situation angle was rightly taken as comparable instance. The value taken by the Reference Court at Rs.10,000/- per cent cannot be said to be exorbitant or on the higher side.
19. Deduction towards Development charges:-
Placing reliance upon (2009) 5 MLJ 2 [Special Tahsildar, Neighbourhood Scheme, Erode, Erode District v. Jaganathan Gounder and another], Mr.Ravi, learned Special Government Pleader and Mr.Veerasekaran, learned counsel for Tamil Nadu Housing Board submitted that 40% deduction should be made towards development cost and 20% on account of small size of plot taken as basis to arrive at the market value. It was further submitted that having regard to the nature of small size of plot, Reference Court was not right in making 1/3rd deduction and more deduction ought to have been made.
20. After fixing the value at Rs.10,000/- per cent, Reference Court has made 1/3rd deduction for development charges i.e. for formation of road, sewer and other development charges. While fixing the market value, necessary deduction are to be made towards development charges. In such cases, the LAO must record reasons about the disadvantage of the land acquired and the purpose for which the land was sought to be acquired as well as the percentage of land necessary for providing developments like provision of roads, electricity, water and sewerage and other facilities. The extent of deduction cannot be put in a straitjacket formula and it varies from case to case. The Supreme Court had time and again indicated the factors to be considered by the LAO for making deduction towards development charges as well as percentage of deduction. Such deduction is also not automatic unless there is a factual finding that deduction was absolutely necessary in the facts of the case by taking into consideration the ground situation. In case the property has already been developed, there would be no requirement of deduction towards development.
21. In 2008 (13) SCALE 202 [Naganath (dead) by LRs. v. Assistant Commissioner and Land Acquisition Officer and another], the Supreme Court observed that the trend of the various Judgments of the Supreme Court indicates deduction on account of development charges in the range of 1/6th to 33%.
22. The Supreme Court in Atma Singh v. State of Haryana [(2008) 3 MLJ 806 (SC)] referred to an earlier decision relating to deduction towards development charges, in Bhagwathula Samanna v. Special Tahsildar & Land Acquisition Officer, AIR 1991 SC 2298 : (1991) 4 SCC 506 : (1992) 1 MLJ 9, wherein it was held as follows:-
"9. ..... In fixing the market value of a large property on the basis of a sale transaction for smaller property, generally a deduction is given taking into consideration the expenses required for development of the larger tract to make smaller plots within that area in order to compare with the small plots dealt with under the sale transaction. However, in applying this principle of deduction it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition which is the only relevant factor. If smaller area within the large tract is already developed and situated in an advantageous position suitable for building purposes and have all amenities such as roads, drainage, electricity, communications, etc. then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified."
23. Necessary deduction for the extent of land is required for formation of roads and other civic amenities. Expenses of development of sites by laying down roads, drain, sewers, water and electricity lines. The concept of deducting development cost was considered by the Supreme Court in AIR 1988 SC 943 [Administrator General of West Bengal v. Collector, Varanasi] wherein it has been held as follows:-
"It is trite proposition that prices fetched for small plots 'cannot form safe bases for valuation of large tracts of land as the two are not comparable properties. The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its proper perspective. The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued ........... is ripe for use for building purposes, that building plots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of hypothetical lay out could with justification be adopted, then in valuing such small, lay out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant. In such a case, necessary deductions for the extent of land required for the formation of roads and other civil amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc. are to be made. In Sahib Singh Kalha v. Amritsar Improvement Trust (1982) 1 SCC 419, this Court indicated that deductions for land required for roads and other developmental expenses can, together, come up to as much as 53 per cent. But the prices fetched for small plots cannot directly be applied in the case of large areas, for the reasons that the former reflects the 'retail' price of land and the later the 'wholesale' price.
This Court referred to and relied upon several earlier decisions including three Judge Bench decisions in Mizra Nausherwan Khan v. Collector (Land) Acquisition, Hyderabad, AIR 1974 SC 2247 : (1975) 1 SCC 238 and Padma Uppal v. State of Punjab, AIR 1977 SC 580 : (1977) 1 SCC 330."
24. The principle of deduction was elaborately considered by the Supreme Court in (2009) 8 SCC 979 [Subh Ram and others v. Haryana State and another]. Referring to various decisions, the Supreme Court held as under:-
"12.2. In Chimanlal Hargovinddas v. Special Land Acquisition Officer, AIR 1988 SC 1652 : 1988 (3) SCC 751, this Court held:
" ..... a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an enterpreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately, between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will, to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of entrepreneur would be locked up, will be longer or shorter and the attendant hazards."
It should be noted that deduction of 20% to 50% referred to therein is only in regard to the land to be earmarked for roads, community areas, etc. and does not refer to the further deduction towards the expenses of development. 12.3. In K.S.Shivadevamma v. Asstt. Commissioner & Land Acquisition Officer, AIR 1966 SC 2886 : 1996 (2) SCC 62, this Court held:
"It is then contended that 54% is not automatic but depends upon the nature of the development and the stage of development. We are inclined to agree with the learned counsel that the extent of deduction depends upon development need in each case. Under the Building Rules 53% of land is required to be left out. This Court has laid as a general rule that for laying the roads and other amenities 33 1/3% is required to be deducted. Where the development has already taken place, appropriate deduction needs to be made. In this case, we do not find any development had taken place as on that date. When we are determining compensation under Section 23(1), as on the date of notification under Section 4(1), we have to consider the situation of the land development, if already made, and other relevant facts as on that date. No doubt, the land possessed potential value, but no development had taken place as on the date. In view of the obligation on the part of the owner to hand over the land to the City Improvement Trust for roads and for other amenities and his requirement to expend money for laying the roads, water supply mains, electricity, etc., the deduction of 53% and further deduction towards development charges @ 33 1/3%, as ordered by the High Court was not illegal."
25. It is true that deduction for development charges ought to be adequately provided for, but it varies from place to place, area to area and amount of development which are required to be carried out and thus there cannot be any fixed amount of deduction towards development charges.
26. In this case, large extent of lands measuring 44.37.0 Hectares were acquired for implementation of Satellite Town by Tamil Nadu Housing Board. In his evidence, RW2-Executive Engineer, Tamil Nadu Housing Board has stated that the acquired lands were full of thorny bushes and need to reclaimed for forming layouts. In his evidence, RW2 further stated that for formation of road, laying water and electricity lines, Tamil Nadu Housing board has to spend huge amount. In his evidence, RW2 has also stated that access roads are also to be formed from the main road for which huge amount will have to be spent. Evidence of RW2 would clearly show that the acquired lands are only agricultural lands and huge amount has to be spent for development cost. Even though the lands possess potential for further development, no development had taken place in the acquired lands. Large block of land will have to be developed by preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots and also forming access roads. Tamil Nadu Housing Board will have to wait for purchasers and in the mean while, the invested money will be blocked up. These factors can be balanced by making a deduction by way of allowance at an appropriate rate ranging approximately between 20% to 50% to account for the land required to be set apart for carving out lands and plotting out small plots. To make up for the area of the land which is used in providing civic amenities and the waiting period, a deduction of 40% would be appropriate. As pointed out earlier, the value taken by the Reference Court at Rs.10,000/- per cent is maintained. Deducting 40%, the value of the acquired land is enhanced to Rs.6,000/- from Rs.720/- fixed by the LAO, value fixed by the Reference Court is reduced from Rs.7,000/- to Rs.6,000/- per cent.
27. In the result, enhancement of compensation made by the Reference Court is reduced from Rs.7,000/- to Rs.6,000/- per cent. In so far as, 12% additional market value for 1075 days [17.12.1999 to 25.11.2002], 30% solatium, 9% interest for one year period [25.11.2002 to 24.11.2003] and interest at the rate of 15% p.a. thereafter till the date of deposit is confirmed for the modified compensation of Rs.6,000/- per cent and these Appeals are partly allowed.
It was stated before us in some of the LAOPs, 25% of the enhanced compensation was deposited and in some of the LAOPs the enhanced compensation is yet to be deposited. Appellant is directed to deposit the balance compensation amount along with the accrued interest in those of the LAOPs where 25% of enhanced compensation was already deposited. In those of the LAOPs where enhanced compensation amount was not deposited, Appellant is directed to deposit the entire compensation amount along with accrued interest within a period of eight weeks from the date of receipt of copy of this Judgment. On such deposit, the Claimants are entitled to withdraw the entire compensation amount along with accrued interest.
The learned Special Government Pleader and learned counsel for Tamil Nadu Housing Board shall be entitled to separate fees in each of the Award in the Appeals.
Consequently, connected M.Ps. are closed. In the circumstances of the case, there is no order as to costs in this Appeal.
[R.B.I.,J] [M.V.,J]
12.03.2010
bbr
Index: Yes/No
Internet: Yes/No
To
The Additional District Judge,
Fast Track Court No.III,
Poonamallee.
R.BANUMATHI, J.
and
M.VENUGOPAL, J.
bbr
Common Judgment in
A.S.Nos.825 to 835, 837 to 844; 845 to 861; 862 to 883 and 884 to 894/2005
12.03.2010
A.S.Nos.825 to 835, 837 to 844, 845 to 861, 862 to 883
and 884 to 894 of 2005
R.BANUMATHI, J.
and
M.VENUGOPAL, J.
(Order of the Court was made by R.BANUMATHI, J.)
The above appeals were disposed of by judgment dated 12.03.2010. At the instance of the learned Special Government Pleader, this matter was listed under the caption 'for being mentioned'.
2.The penultimate paragraph in the judgment dated 12.03.2010 is ordered to be modified as under:
Learned Special Government Pleader and the learned counsel for the Tamil Nadu Housing Board shall be entitled to separate fees in each of the appeals.
(R.B.I.J.) (M.V.J.) 19.03.2010 mmi Note: Office is directed to issue fresh order copy R.BANUMATHI, J.
And M.VENUGOPAL, J.
A.S.Nos.825 to 835 of 2005 etc., batch 19.03.2010