Madras High Court
The Special Tahsildar (La) vs Tmt.Kalamani ... 1St on 20 April, 2010
Author: N.Kirubakaran
Bench: N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20/04/2010
CORAM
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
A.S.(MD)No.100 of 2006
A.S.(MD)No.101 of 2006
A.S.(MD)No.102 of 2006
A.S.(MD)No.103 of 2006
and
M.P.(MD) Nos.2 of 2006 in A.S.(MD)Nos.100 to 103 of 2006
The Special Tahsildar (LA),
Neighbourhood Housing Scheme,
Sivakasi. ... Appellant/
Referring Officer
in all Appeals
vs
Tmt.Kalamani ... 1st Respondent/ Claimant
in A.S.No.100/2006
Tmt.Janakiammal ... 1st Respondent/ Claimant
in A.S.No.101/2006
Tmt.Mariyammal ... 1st Respondent/ Claimant
in A.S.No.102/2006
1.Tmt.Dhanapackiam
2.Saravanakumar
3.Tmt.Kaleeswari
4.Tmt.Parasakthi
5.Tmt.Korthikeya
6.Tmt.Sankareswari ... Respondents 1 to 6/
Claimants in A.S.No.103/2006
The Executive Engineer and
Administrative Officer,
Tamil Nadu Housing Board,
Special Division,
Madurai -10 ... Beneficiary/1st Respondent
in A.S.Nos.100 to 102/2006 and
7th Respondent in A.No.103 of 2006
Common Prayer
Appeals filed under Section 54 of the Land Acquisition Act, to
set aside the judgment and decree passed in L.A.O.P.No.109, 107, 110 and 146 of
2001 dated 05.04.2004 on the file of the Sub-Court, Aruppukottai.
!For Appellant ... Mr.M.Rajarajan
Government Advocate.
^For Respondents ... Mr.D.Sakaravarthi for
1st Respondent in
A.S.Nos.100 to 102/2006
Mr.S.Venkatesh for
Mr.A.Sivaji for
2nd Respondent in
A.S.No.103/2006
Mr.P.Thilakkumar for
2nd Respondent in
A.S.Nos.100 to 102/2006 and 7th Respondent
in A.S.No.103 of 2006
No appearance for
Respondents 1, 3 to 6
in A.S.No.103/2006
* * * * *
:COMMON JUDGMENT
These appeals have been preferred against the common judgment passed in L.A.O.P.Nos. 109, 107, 110 and 146 of 2001 dated 05.04.2004, by the Land Acquisition Tribunal (Sub Court), Aruppukottai.
2. As the matter arises out of a common judgment, which decided the compensation for the lands acquired in Villipathiri Village, Aruppukottai Taluk, Virudhunagar District, comprised in S.Nos.296/1, 296/2, 296/3 and 298/1E and as the points involved are one and the same, all the appeal suits are disposed by this common judgment.
3.The lands referred to above were acquired by virtue of Section 4(1) Notification dated 10.07.1991, for the construction of houses under Neighbourhood Housing Scheme, Aruppukottai. The Land Acquisition Officer relying upon item No.49 of the sale statistics, which was marked as Ex.R.2, fixed the compensation at Rs.66/- per cent. The extent of land, which was conveyed through the above said data sale deed was 4 Acre 40 cents. Aggrieved by the award of the Land Acquisition Officer determining the compensation at Rs.66/- per cent, a reference was made to the civil Court under Section 18 of the Land Acquisition Act for enhancement of compensation at the instance of the aggrieved land owners.
4.Before the Tribunal, on the side of the claimants, as many as seven witnesses were examined and Exs.C.1 to C.9 were marked. On behalf of the Government, two witnesses were examined as R.Ws.1 and 2 and Exs.R1 to R5 were exhibited.
5.On appreciation of the pleadings and evidence available on record, the Tribunal determined the value of the land at Rs.2,952/- per cent, after making a deduction of 35% per cent towards development charges, relying upon Ex.C.8, sale deed dated 21.09.1987. Challenging the same only, the present appeals have been preferred by the Government.
6.Mr.M.Rajarajan, learned Government Advocate assailed the award for having determined the compensation at Rs.2,952/- per cent relying upon Ex.C.8. The learned Government Advocate pointed out that Ex.C.8 conveyed only 3.44 cents, whereas the acquired land is to the extent of 11 acres. He submitted that the value of the smaller extent of the land cannot form basis for determination of the value of the vast extent of land. To substantiate the said contention, he relied upon the decisions of the Hon'ble Supreme Court in Mummidi Apparao (D) through Lrs. v. Nagarjuna Fertilizers and Chemicals Limited reported in 2008(72) AIC 58, Collector of Lakhimpur v. Bhupan Chandra Datta reported in AIR 1971 Supreme Court 2015, Prithvi Raj Taneja (dead) by Lrs. v. State of Madya Pradesh and others reported in AIR 1977 Supreme Court 1560 and Smt.Kausalya Devi Bogra and others v. Land Acquisition Officer, Avurangabad and another reported in AIR 1984 Supreme Court 892 and the judgment of the Single Judge of Bombay High Court in State of Goa, through Special Land Acquisition Officer (North) Mapasu, Goa and Another v. Smt.Prisca Fernandus E.Ferrairo reported in 2007(52) AIC 793 (Bombay) and the judgment of this Court in The Revenue Divisional Officer, Periyar District, Erode v. Athappa Gounder (died) and others reported in 2004(3) CTC 329.
7.Secondly, the learned Government Advocate submitted that the Tribunal deducted 35% of the value of the land towards development charges and pleads for more deduction. The learned Government Advocate pointed out that if the value of smaller extent of land is relied upon, then sufficient deductions have to be made. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in Mummudi Apparao (D) through L.Rs. v. Nagarjuna Fertilizers and Chemicals Limited reported in 2008(72) AIC 58. In that case, a document namely Ex.C.2 was relied upon for determining the market value. As the land conveyed through Ex.C.2 was a smaller extent, the Andhra Pradesh High Court considering the undevelopment of the land at the time of acquisition of land deducted 50% of the market value on the basis of Ex.C.2. The said judgment was appealed against by the claimants therein and the Hon'ble Supreme Court dismissed the SLP stating that deduction of half of the market value of Ex.C.2 is correct and proper. In this case only 35% of the amount was deducted and therefore, the learned Government Advocate sought for enhancement in the deduction for having relied upon smaller extent of land.
8.Mr.P.Thilakkumar, learned counsel appearing for the Housing Board viz., the sponsoring authority supported the contentions of Mr.M.Rajarajan, the learned Government Advocate.
9.Mr.D.Sakaravarthi, the learned counsel for the claimants submitted that the Hon'ble Supreme Court does not prohibit reliance upon the sale deeds conveying the smaller extent of land and it only prescribes that suitable deductions have to be made towards development charges, especially when vast extent of land was acquired. The learned counsel supported the award of the Tribunal relying upon the judgment of the Hon'ble Supreme Court in Atma Singh (D) through Lrs. v. State of Haryana and another reported in AIR 2008 Supreme Court 709. He relied upon the judgment of the Hon'ble Supreme Court in Bhagwathula Samanna v. Special Tahsildar and Land Acquisition Officer, Visakapattinam reported in 1991 (4) SCC 506, Kasthuri and others v. State of Haryana reported in 2003(1) SCC 354, Administrative General of West Bengal v. Collector Varanasi reported in AIR 1988 Supreme Court 943, Chimanlal Hargovinddas v. the Special Land Acquisition Officer, Poona and another reported in AIR 1988 Supreme Court 1652, Basant Kumar v. Union of India and others reported in 1996 (11) SCC 542, K.Vasundara Devi v. the Revenue Divisional Officer (LAO) reported in 1995(5) SCC 426 and Himachal Pradesh Housing Board v. Bharat S.Negi reported in 2004(2) SCC 184. The learned counsel pointed out that in the above cases, even the value of smaller extent of land was relied upon and proper deductions were made. Therefore, the learned counsel submitted that what is important is the deduction from the value when the sale deeds relating to smaller extent are relied upon. He further submitted that the Tribunal rightly deducted 35% towards development charges and therefore, it cannot be stated that deduction is less.
10.This Court considered the rival submissions made by the learned counsel on either side and perused the pleadings and the evidence on record.
11.It is seen that the lands are situate abutting Aruppukottai - Virudhunagar Road, which was admitted by R.W.2, the officer himself. R.W.2, the officer admitted that the acquired property is surrounded by Housing Colonies, Educational Institutions like Polytechnic, Arts College, Hostels and the said developments were made even before 30 years of the 4(1) Notification. The Tribunal also relied upon the admission made by the officer in the evidence that on the southern side of the acquired land housing colonies of Muthuraman Patti and Allampatti are situate. The Tribunal observed that the acquired land is situate in between two housing colonies and therefore, the Tribunal rightly found that the acquired land at the time of acquisition had the potentiality of becoming housing site and they were meant for housing purposes only. The findings given by the Tribunal would undoubtedly prove that the acquired lands have already become housing plots.
12.The purpose of acquiring the land is for extension of the Virudhunagar Municipality and the properties are situate on the eastern side of the Virudunagar Town, which was also admitted by R.W.2, the Officer. Therefore, the Tribunal rightly rejected the valuation based on Ex.R4, document. Moreover, Ex.R4 land was situated away from the acquired land and it is situated in an undeveloped area and therefore, there was no relevance between the land under Ex.R.4 and the acquired land.
13.Though as many as 9 sale deeds were relied upon by the claimants, the lands covering Exs.C.6 and C.7 were rejected as they are situate about 1.6 kms. away from the land acquired. Ex.C8 and C9 are the lands which forms part of the acquired land. Ex.C8 document is dated 21.09.1987 and it conveyed 3.44 cents. As the property conveyed under Ex.C.8 forms part of the acquired land, that was rightly relied upon by the Tribunal to determine the market value of the property and no infirmity could be found in relying upon the said document.
14.The Tribunal noted that the lands conveyed under Ex.C.8 is a smaller extent of land and the same cannot form basis to determine the market value of the large track of land and therefore, sufficient deductions have to be made to arrive at just and fair market value and therefore, it deducted 35% for determining the compensation.
15.No doubt, Mr.Rajarajan, learned Government Advocate strenuously argued and pointed out that the land conveyed under Ex.C.8 is only 3.44 cents and whereas the acquired land is 11 acres and therefore, more deduction should be made towards expenditures for making developments. The Hon'ble Supreme Court in Atma Singh (D) through Lrs. v. State of Haryana and another reported in AIR 2008 Supreme Court 709 held that value of smaller piece of land can be relied upon and what is required is that proper deduction for development charges. The Hon'ble Supreme Court after referring and thoroughly discussing the previous judgments rendered by the Hon'ble Supreme Court, held that 10% deduction was required to be made for establishing Sugar Factory in that case. In Kasturi and others v. State of Haryana reported in 2003(1) SCC 354, considering the location of the property and potentiality of the acquired land for construction of the residential and commercial building, 20% deductions were made towards development charges. In Chimanlal Hargovinddas v. the Special Land Acquisition Officer, Poona and another reported in AIR 1988 Supreme Court 1652, it was held that 20 to 50% deductions are required to be deducted towards development charges. In Basant Kumar v. Union of India and others reported in 1996 (11) SCC 542, K.Vasundara Devi v. the Revenue Divisional Officer (LAO) reported in 1995(5) SCC 426 and Himachal Pradesh Housing Board v. Bharat S.Negi reported in 2004(2) SCC 184 deductions of 33% were made towards development charges. In Tenneti Kamesan vs. Land Acquisition Officer reported in 2008(5) MLJ 371(SC), no deduction for development charge was made, as the property acquired was already situate in developed area. 50% deduction was made in Mummudi Apparao (D) through Lrs. v. Nagarjuna Fertilizers and Chemicals Limited reported in 2008(72) AIC 58. Though deductions were made depending upon the location and the advantages attached to the property, the normal rule is that 33.% is to be deducted for development charges.
16.A Three Judges Bench of the Hon'ble Supreme Court has recently in Karnataka Urban Water Supply and Drainage Board etc., vs. K.S.Gangadharappa & Another etc., reported in 2010 (1) LW 1001 held as follows: " 17.The deduction to be made towards development charges cannot be proved in any straight jacket formula. It would depend upon the facts of each case." Therefore, there cannot be any straight jacket formula towards deduction and what is required to be seen is the location of the property and the other requisites as stated in Ravinder Narain v. Union of India reported in (2003) 4 Supreme Court Cases 481, wherein the following principle has been enunciated:
"9. It can be broadly stated that the element of speculation is reduced to a minimum if the underlying principles of fixation of market value with reference to comparable sales are made:
(i) when sale is within a reasonable time of the date of notification under Section 4(1);
(ii) it should be a bona fide transaction;
(iii) it should be of the land acquired or of the land adjacent to the land acquired; and
(iv) it should possess similar advantages."
17.One another important aspect of the case is that the date of 4(1) notification is 10.07.1991 whereas the date of Ex.C.8 is 21.09.1987. Almost 4 years after the date of execution of sale deed Ex.C.8, Section 4(1) notification was issued. It is common knowledge that every year the value of the land gets appreciated. The Hon'ble Supreme Court in Krishi Udpadan Mandi Samiti Vs. Dipinkumar reported in 2004(2) SCC 283 held that 15% of the value would get increased every year. The said judgment of the Hon'ble Supreme Court was referred to and relied upon by the Division Bench of this Court in V.R.Venkatesalu and others v. Special Tahsildar, Land Acquisition, Housing Scheme - II, Coimbatore-18 and another reported in 2010(2) MLJ 153 and determined the appreciation at 15% per year. Applying the said principle in this case, the value of the land as on Section 4(1) notification has to be determined. The value of the land as per Ex.C.8 Sale Deed dated 21.09.1987 is Rs.4,542/- per cent. The gap between 4(1) notification and the Ex.C.8 sale deed would approximately come to 4 years. However, for the purpose of calculation 3. years is taken into consideration. One year appreciation is 15% and for 3. years 52.% of the value is required to be added as appreciation to the Ex.C.8 value to arrive at the market value of the land.
(1) 52.% value of Ex.C.8 = Rs.4,542 x 52.5/100 = Rs.2,361/-.
(2) The market value is Rs.4,542/- + Rs.2,361/-
= Rs.6,903/-. Therefore, Rs.6,903/- will be the market value as on the date of 4(1) notification.
18.As already noticed by this Court, it is held in Karnataka Urban Water Supply and Drainage Board etc., vs. K.S.Gangadharappa & Another etc., reported in 2010 (1) LW 1001, there cannot be any straight jacket formula for deductions. In this case, the acquired property is already located in a residential area and it has got the many location advantages and development. However, considering the fact that Ex.C8 sale deed relating to a smaller extent of land was relied upon to determine the market value, this Court deducts 55% of Ex.C.8 value towards development charges. If accordingly worked out, the compensation payable to the petitioners would be Rs.6,903/- - 55% deduction is Rs.6,903/- x 55/100 = Rs.3,796.50/-.
Market value of the land = Rs.6,903.00 55% Deduction towards development charges = Rs.3,796.50 = Rs.3,106.50
The above compensation is arrived at taking into consideration the difference between the Ex.C.8 sale deed and 4(1) notification and also re-appreciation of evidence on record invoking XLI Rule 33 read with Section 151 C.P.C., following the decision of the Division Bench of this Court in Sub Collector, Padmanabhapuam, Thakkalai Village Vs. R.S.Raveendran reported in 2006-2-L.W.102. Therefore, considering the factual aspects of this case, this Court even without any appeal or cross appeal by the claimant enhances compensation as stated above.
19.In the result, the appeal suits filed by the Government are disposed of by enhancing the compensation from Rs.2,952/- to Rs.3,106/-. In all other aspects, the award of the Tribunal is confirmed. No costs. Consequently, connected Miscellaneous Petitions are closed.
sj To The Subordinate Judge, Aruppukottai.