Madras High Court
The Special Tahsildar (L.A) vs T.Bagalon ... 1St on 14 December, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/12/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.(MD)No.631 of 2011 and A.S.(MD)No.632 of 2011 and M.P(MD)Nos.3 and 3 of 2011 A.S.(MD)No.631 of 2011: The Special Tahsildar (L.A), Neighbourhood Housing Scheme, Sivakasi, Virudhunagar District. ... Appellant/ Referring Officer Vs. 1.T.Bagalon ... 1st Respondent/Claimant 2.The Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Madurai Special Division, Madurai - 10. ... 2nd Respondent/Beneficiary Prayer Appeal filed under Section 54 of the Land Acquisition Act, against the judgment and decree dated 05.04.2004 passed in L.A.O.P.No.80 of 2011 by the Land Acquisition Tribunal cum Subordinate Judge, Aruppukottai. !For Appellant ... Mr.S.Kumar, Govt. Advocate ^For Respondents... Mr.K.Sekar for R.1 No appearance for R.2 * * * * * A.S.(MD)No.632 of 2011: The Special Tahsildar (L.A), Neighbourhood Housing Scheme, Sivakasi, Virudhunagar District. ... Appellant/ Referring Officer Vs. 1.K.Sugumaran ... 1st Respondent/Claimant 2.The Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Madurai Special Division, Madurai - 10. ... 2nd Respondent/Beneficiary Prayer Appeal filed under Section 54 of the Land Acquisition Act, against the judgment and decree dated 05.04.2004 passed in L.A.O.P.No.81 of 2011 by the Land Acquisition Tribunal cum Subordinate Judge, Aruppukottai. For Appellant ... Mr.S.Kumar, Govt. Advocate For Respondents... Mr.K.Sekar for R.1 No appearance for R.2 * * * * * :COMMON JUDGMENT
A.S.(MD)Nos.631 and 632 of 2011 have been filed against the judgments and decrees dated 05.04.2004 passed in L.A.O.P.Nos.80 and 81 of 2011 by the Land Acquisition Tribunal cum Subordinate Judge, Aruppukottai.
2. A recapitulation and re'sume' of facts absolutely necessary for the disposal of these appeals would run thus:
The Land Acquisition Officer published the notification under Section 4(1) of the Land Acquisition Act, 1894 on 26.09.1990 so as to acquire a vast tract of land including the claimants' lands in S.Nos.41/10 and 41/11 respectively. After complying with the formal procedures, the award was passed by the Land Acquisition Officer granting Rs.8,620/- per acre.
3. Being aggrieved by and dissatisfied with the same, the claimants/land owners/land losers got the matters referred under Section 18 of the Land Acquisition Act, to the Sub Court, Aruppukottai, which after hearing both sides, passed the judgment and decree enhancing the compensation from Rs.8,620/- per acre to Rs.3,400/- per cent.
4. Challenging and impugning the judgment and decree of the Sub Court, Aruppukottai, the Land Acquisition Officer preferred these appeals on various grounds inter alia thus:
(i) The Sub Court took into account the exemplar document Ex.P.2 which is not reflecting the true value of the land acquired because it refers to only a small extent of the plot area and not a comparable area; whereas the lands acquired are agricultural lands meant for housing purpose, so as to enable the Housing Board to carve it out into the plots and allot them to various persons.
(ii) The Sub Court deducted only 35% from the value assessed which is also against law. The learned Government Advocate placing reliance on the above, would pray for setting aside the judgment and decree of the Sub Court and to uphold the award passed by the Land Acquisition Officer.
5. In a bid to torpedo and pulverise the contentions as put forth and set forth by the learned Government Advocate, the learned Counsel for the claimants/land owners/land losers would pilot his arguments, the gist and kernel of them, would run thus:
(i) The fact remains that the vast tract of land was acquired by the Government including the lands of the claimants herein. The Sub Court passed the judgments in respect of the major part of the areas acquired by the Government and thereby, those claimants also got the compensation as per the judgments of the Sub Court, so to say, the enhanced compensation was already received by the claimants/land owners/land losers. The Government in respect of those cases preferred the appeals belatedly with the petitions to get the delay condoned, but this Court earlier dismissed those applications, whereby finality has been achieved regarding the claims of those claimants and they got the enhanced compensation as per the judgments of the Sub Court.
(ii) However, so far these claimants/land owners/ land losers herein are concerned, they are so unfortunate that they have to face these appeals because the Government preferred these appeals after getting the enormous delay condoned as the judgment of the Sub Court emerged subsequent to the earlier judgments referred to supra. In fact, the Sub Court in those earlier judgments, deducted only 30% towards development charges, whereas at present, the same Sub Court deducted 35% and in such a case, there could be no justification on the part of the Government in preferring these appeals. The Government being common to all, should not view the present claimants/land owners/land losers differently from others. Accordingly, the learned Counsel for the claimants/land owners/land losers would pray for the dismissal of these appeals.
6. The points for consideration are as under:
(i) Whether the Sub Court was justified in taking Ex.P.2, the sale deed dated 09.04.1990 as an exemplar even though it emerged hardly five months anterior to the publication of the notification under Section 4(1) of the Land Acquisition Act and whether such value for the small plot of land in Ex.P.2 could be taken as the criterion for assessing the compensation to be awarded in favour of the claimants/land owners/land losers?
(ii) Whether 35% deduction towards development charges in the facts and circumstances of this case was justified or not?
(iii) Whether there is any perversity or illegality in the judgment and decree of the Sub Court, Aruppukottai?
7. All these points are taken together for discussion as they are inter- linked and inter-woven, inter-connected and entwined with one another.
8. At the outset itself, I would like to refer to the decisions cited on both sides.
9. The learned Government Advocate appearing for the appellants would rely on the decision of the Honourable Apex Court in Karnataka Urban Water Supply and Drainage Board, etc. v. K.S.Gangadharappa and another etc., reported in 2009 (2) T.N.C.J.789 (SC). An excerpt from it, would run thus:
"It is a 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 does not admit of and is ripe for use for building purposes; that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of hypothetical layout could with justification be adopted, then in valuing such small, laid 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 Brig. 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%. But the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the 'retail' price of land and the latter the 'wholesale' price."
10. The learned Counsel for the claimants/land owners/land losers would place reliance on the following decisions:
(i) Sardar Jogendra Singh v. State of U.P. reported in (2008) 17 Supreme Court Cases 133. An excerpt from it, would run thus:
"15. Learned counsel for the Parishad submitted that out of the rate determined with reference to Ext.C-141 a deduction of at least 30% should be made towards development charges. He attempted to draw support from the decision of this Court in Viluben Jhalejar Contractor v. State of Gujarat [(2005) 4 SCC 789]. The said decision is not relevant. It does not lay down any proposition that while calculating the market value of an acquired land, with reference to market value determined by courts/tribunal for similar land, any deductions should be made for development cost. Therefore, we reject the contention that 30% should be deducted."
(ii) Executive Engineer, Karnataka Housing Board v. Land Acquisition Officer, Gadag and others reported in (2011) 2 Supreme Court Cases 246. Certain excerpts from it, are extracted hereunder:
"8. There is clear evidence that the plot sold under Ext. P-2 was very near to the acquired lands whereas there is no such specific evidence in regard to the proximity of the plot sold under Ext. P-19, though that plot was also in the vicinity. Further, though both Exts. P-2 and P-19 relate to developed plots, Ext. P-19 relates to a comparatively small plot of 150 sq m whereas Ext. P-2 refers to a larger plot of 329 sq m. Having regard to the proximity of location and the size, we are of the view that the Reference Court was justified in relying upon the sale transaction under Ext. P-2 and the High Court was not justified in ignoring Ext. P-2 and relying upon the transaction under Ext. P-19. We may also note that the general rule that the highest of the comparable sales should be relied upon will not apply, where the sale transactions relied upon are auction-sales, for the reasons mentioned in paras 5 and 6 above.
* * * * *
10. We may now consider what should be the proper compensation with reference to Ext. P-2. The sale price disclosed by the said auction-sale on 2-1- 1989 is Rs. 37,600 for 329 sq m. On that basis the value of one acre of land works out to Rs. 4,62,494. We have already held that a deduction of 20% has to be made to offset the impact of competitive hike involved in the auction-sale. On such deduction of 20%, the market value per acre as on 2-1-1989 would be Rs. 3,69,995. The relevant date for determination of compensation in this case is 6- 2-1992 and there is a gap of three years for which appropriate appreciation has to be provided for. Having regard to the fact that the acquired lands were within the municipal limits with considerable development potential, adopting a cumulative increase of 10% per annum for three years, would enable us to arrive at the market value as on 6-2-1992. By applying such increase, the market value as on 6-2-1992 will be Rs. 4,92,460 per acre.
11. Evidence shows that the acquired lands were situated within the municipal limits, though on the outskirts of Gadag-Betegeri within a distance of one kilometre from Gadag Railway Station and the bus-stand; and that there were several residential colonies and colleges in the surrounding areas. Therefore though the lands were agricultural, they could be classified as lands having urban development potential. Having regard to the partial access to infrastructural facilities, we are of the view that a deduction of 40% towards the cost of development would meet the ends of justice. On the facts and circumstances, the cut of 53% applied by the Reference Court is too high and the cut of 33% applied by the High Court is low. On applying a cut of 40%, the rate per acre for the acquired land as on 6-2-1992 would be Rs. 2,95,476 (rounded off to Rs. 2,95,500)."
(iii) Valliyammal and another v. Special Tahsildar (Land Acquisition) and another reported in (2011) 8 Supreme Court Cases 91. An excerpt from it, would run as under:
"25. We may have sustained 20% deduction keeping in view the smallness of the plots which were sold vide sale deeds dated 4-9-1990 and 8-2-1991, but, in the peculiar facts of the case, we think that it will be wholly unjust to allow such deduction. Majority of the appellants have been deprived of their entire landholding and they have waited for 14 to 20 years for getting the compensation. It appears that in compliance with the interim orders passed by the Court, some of the appellants did get 25% and one of them got 35% of the compensation, but majority of them have not received a single penny towards compensation and at this distant point of time, it will be wholly unjust to deprive them of their legitimate right by approving the 20% deduction made by the High Court. In such matters, the Court cannot be oblivious of the fact that the landowners have been deprived of the only source of livelihood, the cost of living has gone up manifold and the purchasing power of rupee has substantially declined."
11. At this juncture, I would also like to refer to the following decisions of the Honourable Apex Court:
(i) Chandrashekar v. Land Acquisition Officer reported in 2011(13) SCALE
48. Certain excerpts from it, would run thusly:
"18. Having given our thoughtful consideration to the analysis of the legal position referred to in the foregoing two paragraphs, we are of the view that there is no discrepancy on the issue, in the recent judgments of this Court. In our view, for the "first component" under the head of "development", deduction of 33-1/3 percent can be made. Likewise, for the "second component"
under the head of "development" a further deduction of 33-1/3 percent can additionally be made. The facts and circumstances of each case would determine the actual component of deduction, for each of the two components. Yet under the head of "development", the applied deduction should not exceed 67 percent. That should be treated as the upper benchmark. This would mean, that even if deduction under one or the other of the two components exceeds 33-1/3 percent, the two components under the head of "development" put together, should not exceed the upper benchmark.
19. In Lal Chand's case (supra) and in Andhra Pradesh Housing Board's case (supra), this Court expressed the upper limit of permissible deductions as 75 percent. Deductions upto 67 percent can be made under the head of "development". Under what head then, would the remaining component of deductions fall? Further deductions would obviously pertain to considerations other than the head of "development". Illustratively a deduction could be made keeping in mind the waiting period required to raise infrastructure, as also, the waiting period for sale of developed plots and or built-up areas. This nature of deduction may be placed under the head "waiting period". Illustratively again, deductions could also be made in cases where the exemplar sale transaction, is of a date subsequent to the publication of the preliminary notification. This nature of deduction may be placed under the head "de-escalation". Likewise, deductions may be made for a variety of other causes which may arise in different cases. It is however necessary for us to conclude, in the backdrop of the precedents on the issue, that all deductions should not cumulatively exceed the upper benchmark of 75 percent. A deduction beyond 75 percent would give the impression of being lopsided, or contextually unreal, since the land loser would seemingly get paid for only 25 percent of his land. This impression is unjustified, because deductions are made out of the market value of developed land, whereas, the acquired land is undeveloped (or not fully developed). Differences between the nature of the exemplar land and the acquired land, it should be remembered, is the reason/cause for applying deductions. Another aspect of this matter must also be kept in mind. Market value based on an exemplar sale, from which a deduction in excess of 75 percent has to be made, would not be a relevant sale transaction to be taken into consideration, for determining the compensation of the acquired land. In such a situation the exemplar land and the acquired land would be uncomparable, and therefore, there would be no question of applying the market value of one (exemplar sale) to determine the compensation payable for the other (acquired land). It however needs to be clarified, that even though on account of developmental activities (under the head "development"), we have specified the upper benchmark of 67 percent, it would seem, that for the remaining deduction(s), the permissible range would be upto 8 percent. That however is not the correct position. The range of deductions, other than under the head "development", would depend on the facts and circumstances of each case. Such deductions, may even exceed 8 percent, but that would be so only, where deductions for developmental activities (under the head "development") is less than 67 percent, i.e., as long as the cumulative deductions do not cross the upper benchmark of 75 percent. We therefore hold, that the range for deductions, for issues other than developmental costs, would depend on the facts and circumstances of each case, they may be 8 percent, or even the double thereof, or even further more, as long as, cumulatively all deductions put together do not exceed the upper benchmark of 75 percent.
20. Before applying deductions for ascertaining the market value of the undeveloped acquired land, it would be necessary to classify the nature of the exemplar land, as also, the acquired land. This would constitute the second step in the process of determination of the correct quantum of deductions. The lands under reference may be totally undeveloped, partially developed, substantially developed or fully developed. In arriving at an appropriate classification of the nature of the lands which are to be compared, reference may be made to the developmental activities referred to by us in connection with the "first component", as also, the "second component" (in paragraph 17 above). The presence (or absence) of one or more of the components of development, would lead to an appropriate classification of the exemplar land, and the acquired land. Comparison of the classifications thus arrived, would depict the difference in terms of development, between the exemplar land and the acquired land. This exercise would lead to the final step. In the final step, the absence and presence of developmental components, based on such comparison, would constitute the basis for arriving at an appropriate percentage of deduction, necessary to balance the differential factors between the exemplar land and the acquired land.
* * * * *
27. Our conclusions in respect of the quantum of permissible deductions have been recorded in paragraphs 18 and 19 hereinabove. While determining the validity of individual deductions, it is also imperative to examine whether or not the total deductions put together fall within legal parameters. We have upheld 55 percent deduction accorded by the High Court towards "development". We have also individually upheld deduction of 10 percent on account of "de- escalation", as also, the deduction of 5 percent on account of "waiting period". Cumulatively these deductions would amount to 70 percent (55+10+5=70). The outer benchmark for deductions laid down by this Court in Lal Chand's case (supra) and in Andhra Pradesh Housing Board's case (supra) is 75 percent. Cumulatively also the deduction allowed by the High Court, fall well within the parameters laid down by this Court. We therefore find no infirmity in the quantum of accumulated deductions applied by the High Court during the course of making an assessment of the market value of the acquired land."
(ii) Subh Ram and others v. State of Haryana and another reported in (2010) 1 Supreme Court Cases 444. Certain excerpts from it, would run thus:
"27. Administrator General of W.B. v. Collector, Varanasi [(1988) 2 SCC 150]contains a precise statement as to the concept of deducting development cost. This Court stated: (SCC p. 157, para 12) "12. 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 lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of hypothetical layout could with justification be adopted, then in valuing such small, laid 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 Brig. 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 reason that the former reflects the 'retail' price of land and the latter the 'wholesale' price."
(emphasis supplied) This Court referred to and relied upon several earlier decisions including three-Judge Bench decisions in Mirza Nausherwan Khan v. Collector (LA)[(1975) 1 SCC 238] and Padma Uppal v. State of Punjab[(1977) 1 SCC 330].
28. In Chimanlal Hargovinddas v. Special Land Acquisition Officer [(1988) 3 SCC 751], this Court held: (SCC pp. 755-56, para 4) "4. (15) . a large block of land will have to be developed by preparing a layout, 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 entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent 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 the 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 further deduction towards the expenses of development.
29. In K.S. Shivadevamma v. Asstt. Commr. & Land Acquisition Officer [(1996) 2 SCC 62] this Court held: (SCC p. 65, para 10) "10. It is then contended that 53% 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."
30. In Atma Singh v. State of Haryana [(2008) 2 SCC 568] this Court reiterated the settled principles regarding deductions thus: (SCC p. 576, para
14) "14. The reasons given for the principle that price fetched for small plots cannot form safe basis for valuation of large tracts of land, according to cases referred to above, are that substantial area is used for development of sites like laying out roads, drains, sewers, water and electricity lines and other civic amenities. Expenses are also incurred in providing these basic amenities. That apart it takes considerable period in carving out the roads making sewers and drains and waiting for the purchasers. Meanwhile the invested money is blocked up and the return on the investment flows after a considerable period of time. In order to make up for the area of land which is used in providing civic amenities and the waiting period during which the capital of the entrepreneur gets locked up a deduction from 20% onward, depending upon the facts of each case, is made."
31. The legal position is therefore clear and well settled. But in Atma Singh, after reiterating the said principle regarding deduction of development cost, this Court made an observation that no deduction need be made having regard to the purpose of acquisition, which requires to be clarified. We extract the relevant portion below: (SCC pp. 576-77, para 15) "15. The question to be considered is whether in the present case those factors exist which warrant a deduction by way of allowance from the price exhibited by the exemplars of small plots which have been filed by the parties. The land has not been acquired for a housing colony or government office or an institution. The land has been acquired for setting up a sugar factory. The factory would produce goods worth many crores in a year. A sugar factory apart from producing sugar also produces many byproducts in the same process. One of the byproducts is molasses, which is produced in huge quantity. Earlier, it had no utility and its disposal used to be a big problem. But now molasses is used for production of alcohol and ethanol which yield lot of revenue. Another by-product begasse is now used for generation of power and press mud is utilised in manure. Therefore, the profit from a sugar factory is substantial. Moreover, it is not confined to one year but will accrue every year so long as the factory runs. A housing board does not run on business lines. Once plots are carved out after acquisition of land and are sold to public, there is no scope for earning any money in future. An industry established on acquired land, if run efficiently, earns money or makes profit every year. The return from the land acquired for the purpose of housing colony, or offices, or institution cannot even remotely be compared with the land which has been acquired for the purpose of setting up a factory or industry. After all the factory cannot be set up without land and if such land is giving substantial return, there is no justification for making any deduction from the price exhibited by the exemplars even if they are of small plots. It is possible that a part of the acquired land might be used for construction of residential colony for the staff working in the factory. Nevertheless, where the remaining part of the acquired land is contributing to production of goods yielding good profit, it would not be proper to make a deduction in the price of land shown by the exemplars of small plots as the reasons for doing so assigned in various decisions of this Court are not applicable in the case under consideration."
32. The above observations in Atma Singh no doubt seem to suggest that where the acquisition is for a residential layout, deduction towards development cost is a must, but if the acquisition is for an industry which does not require forming a layout of sites, the market value of small residential plots may be adopted without any cuts towards development cost. The said observations are made with reference to the special facts of that case. If they are read out of context to support a contention that the purpose of acquisition is a relevant factor to avoid the deduction of development cost in valuation, it may then be necessary to consider the said observations as having been made per incuriam, as they overlook a mandatory statutory provision-Section 24 (clause Fifthly) of the Act and the series of decisions of larger Benches of this Court which hold that when value of large tracts of undeveloped lands is sought to be determined with reference to small residential plots in developed area, it is mandatory to deduct an appropriate percentage towards development cost. But it may be unnecessary to consider whether the observations are per incuriam as para 15 of the decision makes it clear that what is stated therein, is with reference to the special facts of that case, with a view not to disturb the smaller deduction of 10% by the High Court, and not intended to be statement of law."
12. A mere poring over and a bare perusal of the aforesaid precedents would unambiguously and unequivocally highlight and spotlight the following formula:
Whenever the value of a developed small plot of land is taken into account for assessing an agricultural land or an undeveloped land, then certainly there should be deductions as under:
(i) towards road and for providing spaces for other amenities - 33-1/3 %
(ii) for developing the said area for being used as habitation area - not exceeding 33-1/3 % and for other purposes like waiting charge and de-escalation etc., - 8%. As such, the deduction should not exceed 75%.
13. The aforecited precedents would also indicate and exemplify that the Honourable Apex Court laid down the law that the deductions can be from 20% to 75%, which refers to a wide margin and so the duty of the Court is onerous in fixing the correct percentage of deduction which might differ from case to case and there could be no straight jacket formula.
14. Keeping all these salient features in mind, I would like to analyse the evidence on record and also the judgment of the Sub Court.
15. The Sub Court took into account Ex.P.2, the sale deed dated 09.04.1990 as an exemplar even though it emerged hardly five months anterior to the notification under Section 4(1) of the Land Acquisition Act.
16. A question might arise as to why such a document should be chosen and not some other document which might have emerged long prior to the notification under Section 4(1) of the Land Acquisition Act.
17. The award passed by the Land Acquisition Officer and the judgment of the Sub Court would unambiguously and unequivocally highlight the fact that the sale deeds relating to agricultural lands alone are available in abundance, but those sale deeds cannot be taken as an exemplar documents for the obvious reason that admittedly and indisputably, indubitably and unarguably, the lands acquired are having the potentiality of being used as housing plots and the lands are situated in Palayampatti which is a Town in Panchayat area, now, it has become a municipal area as informed by the learned Counsel for the claimants/land owners/land losers, which fact without being contradicted by the learned Government Advocate. The evidence on record bespeaks and betokens that the Sub Court also adverted to the said fact. Hence, the Sub Court was justified in not placing reliance on those earlier sale deeds relating to the agricultural lands.
18. The Honourable Apex Court repeatedly cautioned that whenever a small area of developed plot is taken as a comparable land for assessing the value of the agricultural land which has got the potentiality of being used as plots, necessarily there should be adequate deduction as set out supra.
19. Admittedly, the lands acquired are only the agricultural lands, but they unassailably and indubitably got the potentiality of being used as plots. In such a case, 1/3rd deduction should necessarily be made for the purpose of providing roads and other amenities.
20. The question might arise as to why Ex.P.2, the sale deed should be chosen instead of any other documents. There are as many as six documents i.e., Exs.P.1 to P.6 marked before the Sub Court as under:
Ex.P.1 - Sale deed dated 07.06.1990 S.No.120/2A69 per cent Rs.4,550/-
Ex.P.2 - Sale deed dated 09.04.1990 S.No.33/486 per cent Rs.5,568/-
Ex.P.3 - Sale deed dated 28.03.1990 S.No.151/1A per cent Rs.5,344/-
Ex.P.4 - Sale deed dated 27.09.1990 S.No.115/5 per cent Rs.10,900/-
Ex.P.5 - Sale deed dated 07.09.1990 S.No.133/7 per cent Rs.6,618/-
Ex.P.6 - Sale deed dated 05.09.1990 S.No.127/6 per cent Rs.5,194/-
21. Among the above exhibits, the land relating to Ex.P.2 is nearer to the lands acquired than the lands referred to in other documents cited supra. The lands acquired are situated in S.Nos.41/10 and 41/11, whereas Ex.P.2 the sale deed is relating to the land in S.No.33/486 which is very nearer to the lands acquired, whereas the other details as contained in other documents would connote and denote that the lands acquired are situated somewhat away. As such, the Sub Court was justified in choosing Ex.P.2 as an exemplar and it is confirmed.
22. Now, the core question arises as to what should be the deduction.
23. The Sub Court simply deducted 35% without adhering to any formula, wherefore this Court ignoring the judgments of the Honourable Apex Court cannot simply confirm it. Inasmuch as the lands acquired are admittedly agricultural lands and for that, the compensation has to be assessed treating them as plot areas, necessarily 33-1/3% should be deducted towards leaving space for road and other amenities and then, as mandated by the Honourable Apex Court, for the expenditure for developing such 1/3rd area meant for roads and other amenities upto a maximum of another 33-1/3% has to be deducted and it is not necessary that blindly and mechanically such another 33-1/3% has to be deducted from the compensation in all cases and it could be even lesser depending upon the circumstances.
24. The next question arises as to how much would be the proper deduction towards expenditure for developing that 1/3rd area meant for road and other amenities.
25. The learned Counsel for the claimants/land owners/land losers would strenuously argue that at the most, some 7% can be deducted for that purpose and the total deduction could be rounded to 40% which would meet the ends of justice in the event of this Court deciding to interfere with the judgment of the Sub Court.
26. Whereas the learned Government Advocate appearing for the appellants, placing reliance on the aforesaid decisions of the Honourable Apex Court, would submit that for spending money to develop 1/3rd area, absolutely such meagre amount of 7% would not be sufficient and it should be another 33-1/3% and according to him, the exemplar document in Ex.P.2 sale deed dated 09.04.1990 emerged only five months anterior to the notification under Section 4(1) of the Land Acquisition Act which itself is not acceptable and in such a case, necessarily another 33-1/3% has to be deducted.
27. Certainly, this Court has to strike a balance between the two and a middle of the road view has to be taken. Even though Ex.P.2 emerged only five months anterior to the said notification under Section 4(1) of the Land Acquisition Act, there is nothing to display and demonstrate that it is a cooked up document, because in the same vicinity, a lot of sales emerged relating to the plots. It is a fast developing area. In the meantime, there is also nothing to indicate that the plot referred to in Ex.P.2 is situated in an area where all amenities were provided already and in such a case, while this Court taking up the said value as contained therein as the basis for assessing the compensation of the lands acquired, the amount towards expenditure for developing 1/3rd area meant for the roads and other amenities need not be deducted to the extent of 33-1/3 % and it could be lesser.
28. I recollect the earlier rule that 1/3rd should be deducted for the roads and other amenities and another 20% should be earmarked for offsetting the price found in the sale deed relating to a small plot and accordingly, the total deduction would come to 53-1/3%.
29. Here, the learned Counsel for the claimants/land owners/land losers would echo the cri de coeur of his clients that already the other land owners because of the inaction on the part of the Government in preferring the appeal, have got the higher compensation without any deduction, to the extent of 53- 1/3%, but only at the rate of 30% deduction and in such a case, this Court may not view these cases so strictly. In my opinion, no doubt, this factor should also be noted and trite as it is, equals should be treated alike. However even simply because of the inaction on the part of the Government in preferring the appeal earlier, the other land owners perhaps got the compensation after only 30% deduction, this Court cannot be called upon to decide these appeals on the aforesaid line. Independently this Court should decide the appeals within the frame work of law and the mandates as contained in the precedents of the Honourable Apex Court. Wherefore by way of striking a balance in the form of offsetting the price as contained in Ex.P.2 concerning the small extent of land and providing for the expenditure to develop the 1/3rd area meant for the roads and other amenities, 17% could be deducted additionally. Consequently, the total deduction would be 50-1/3% [33-1/3% + 17% = 50-1/3%] rounded to 50% which would meet the ends of justice. I am of the view that the Sub Court failed to apply the law as laid down by the Honourable Apex Court and hence, interference is warranted. Accordingly, the points are decided.
30. On balance, A.S.(MD)Nos.631 and 632 of 2011 are partly allowed and the claimants/land owners/land losers are entitled to the other statutory entitlements as per law. Consequently, the connected Miscellaneous Petitions are closed. It has been brought to the knowledge of this Court that already 50% of the amount awarded was deposited before the Sub Court. By way of disambiguating the ambiguity if any, I would like to specify that based on this judgment, the entire compensation should be assessed and after deducting the amount already deposited, the remaining amount should be deposited within a period of two months from the date of receipt of a copy of this judgment. The Registry shall make proper calculation and incorporate in the decree.
rsb To
1.The Land Acquisition Tribunal cum Subordinate Judge, Aruppukottai.