Madras High Court
The Land Acquisition And Special ... vs Kamaraj
S.A. No. 263 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment reserved on Judgment pronounced on
29.09.2021 17.12.2021
Coram :
THE HONOURABLE MRS. JUSTICE S.KANNAMMAL
Second Appeal No. 263 of 2019
and
CMP No.3901 of 2019
1. The Land Acquisition and Special Tahsildar
Adi Dravidar Welfare
Dharmapuri.
2. District Adi Dravidar Welfare Officer
Dharmapuri.
3. The District Collector
Dharmapuri. .. Appellants
Versus
Kamaraj ... Respondent
This Appeal is filed under Section 13 of Tamil Nadu Acquisition of land
for Adi Dravidar Welfare Schemes Act, 31/78 r/w. Section 100 CPC against
the judgment and decree dated 18.11.2016 made in CMA (LA) No.29 of 2004
on the file of Sub-Court, Dharmapuri, reversing the award No.4/ADW/2000-
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S.A. No. 263 of 2019
2001, Na.Ka.No.1450/2001, dated 05.03.2001 on the file of Special Tahsildar
(ADW) and Land Acquisition Officer, Dharmapuri.
For Appellants : Dr..S.Suriya
Additional Government Pleader
For Respondent : Mr.V.R.Annagandhi
JUDGMENT
This Appeal is filed challenging the judgment and decree dated 18.11.2016 made in CMA (LA) No.29 of 2004 on the file of Sub-Court, Dharmapuri, reversing the award No.4/ADW/2000-2001, Na.Ka.No.1450/2001, dated 05.03.2001 on the file of Special Tahsildar (ADW) and Land Acquisition Officer, Dharmapuri.
2. The brief facts of the case, leading to the filing of this appeal, are as follows:-
Section 4(1) Notification of the Land Acquisition Act was published in Dharmapuri District Government Gazette on 16.02.2001 for acquiring land to provide free house sites to the landless poor Adi-dravidar people of 2/13 https://www.mhc.tn.gov.in/judis S.A. No. 263 of 2019 Balajanganamahalli village, Dharmapuri District. Accordingly, an extent of 2.38 acres (0.96.5 Hectare) land in Survey No.431/6 of Balajanganamahalli village, Dharmapuri District was acquired, as per the order of Land Acquisition Officer/Special Tahasidar (Adi-dravidar Welfare) dated 05.03.2001 in No.4/ADW/2000-2001- Na.KA.No.1450/2020, under Harijan Welfare Act 1978, to provide free house site to landless poor Adi-dravidar people. Out of the said acquired land, 0.83 acres (0.33.5 Hectare) was possessed by the claimant/respondent herein and an award was passed fixing compensation of Rs.1,23,500/- per hectare and Rs.47,578/- was awarded as compensation to the respondent herein for the land acquired from him. Against which, respondent herein preferred CMA.(LA).No.29 of 2004 before the Sub-
Court, Dharmapuri seeking enhancement of compensation.
3. Before the Sub-Court, respondent herein - claimant examined himself as PW1 and two other witnesses as PW2 and PW3 and marked three sale deeds as Exs.P1 to P3. First Appellant herein - Land Acquisition Officer/Special Tahsildar (ADW) examined himself as RW1 and marked Exs.R1 to R3.
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4. The learned Subordinate Judge, Dharmapuri, after considering the oral and documentary evidence adduced, fixed the compensation at Rs.15.50 paise per sq. ft. and fixed compensation of Rs.5,59,191/- for 0.83 acre (0.33.5 Hectare or 36076.82 Sq.ft.) land acquired from the respondent herein and also fixed 15% Solatium at Rs.83,879/- and awarded total compensation of Rs.5,95,492/- with interest at 6% per annum from the date of possession i.e., 05.03.2001 till the date of deposit and the said amount was ordered to be deposited within two months. Against the said judgment, this Second Appeal is preferred.
5. At the time of admission, the following substantial questions of law were framed for consideration of the Second Appeal :-
(1) Whether the learned Judge is justified in enhancing the award passed by the appellant based on the documents relied upon by the respondent when those documents related to lands of smaller extent ? 4/13
https://www.mhc.tn.gov.in/judis S.A. No. 263 of 2019 (2) Whether the learned Judge is justified in holding that the enhancement of award can be made based on the sale deed document which pertains to a house site and small extent when the acquired land is agricultural land and larger extent ?
(3) Whether the learned Judge has erred by rejecting the document based on which the appellants fixed the value of the acquired land, without any valid reasons ?
(4) Whether the potentiality, classification of the acquired land and the sample document are one and the same ?
6. Learned Additional Government Pleader, appearing for the appellants, submitted that the judgment and decree of the Court below are incorrect and improper, as the matter involves substantial questions of law for adjudication, and that the Court below wrongly concluded that the acquired land is a house site, but as per the revenue records and Referring Officer's orders, the acquired land is an agricultural dry land. He further submitted that the Court below ought to have allowed deduction towards developmental charges especially in view of law laid down by the Hon'ble Apex Court in 5/13 https://www.mhc.tn.gov.in/judis S.A. No. 263 of 2019 judgment reported in 2003 (12) SCC 324, wherein the Hon'ble Apex Court prescribed the percentage of deduction at 53%. According to him, the Court below erred in not appreciating the provisions of Section 8 of the Act 31/78, which clearly stipulate the nature and classification of land under acquisition as on the date of 4(1) Notification in the criteria for fixation of market value and not the probable usage of the said land. He would further submit that the Court below ought not to have placed reliance on the sale deeds filed by the respondent in contravention of judgment of the Hon'ble Apex Court reported in AIR 1995 (5) SCC 426, wherein the Hon'ble Apex Court has prescribed the guideline that the small extent of land cannot be relied upon for determination of compensation for larger extent of land.
7. Per contra, learned counsel for the respondent has submitted that the Court below, after going through the material available on record, has rightly enhanced the award amount based on the evidence, both oral and documentary, and, therefore, the judgment and decree passed by the Court below do not warrant any interference by this Court.
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8. I have heard the learned counsel for the parties and also gone through the records, including the judgment impugned herein.
9. Section 4 (1) Notification for acquisition of land in question was in the year 2001 i.e., on 16.02.2001 and the award was passed on 05.03.2001. However, the impugned order was passed in the year 2016 i.e., on 18.11.2016, which was after a long gap of nearly 15 years. Though some sale deeds were relied upon by the learned Judge to arrive at a conclusion in enhancing the award, it is not clear as to whether the lands, which were sold through the said sale deeds, were germane to the land acquired herein. In other words, it is evident from the judgment impugned herein that both the lands have same potentiality and classification. It is also the primary contention of the learned counsel for the appellant that the subject land is an agricultural land whereas the lands sold through the sale deeds, relied upon by the learned Judge, were house sites. This Court feels that the learned Judge probably determined the value of the land as per the prevailing rate as on the date of passing of the judgment and may be with some compassion. Therefore, the finding of the learned Judge that enhancement of award can be made based on the sale deeds, 7/13 https://www.mhc.tn.gov.in/judis S.A. No. 263 of 2019 which pertain to house sites and small extent, is not sustainable, as the acquired land herein is an agricultural land and a larger extent.
10. In matters of acquisition of land by Government, the value of house sites cannot be adopted to agricultural dry lands. Otherwise, Government will be a major loser, by being saddled with heavy expenditure to its exchequer. In this case, admittedly, the land acquired is an agricultural dry land. The Special Tahsildar-cum-Land Acquisition Officer has passed the award fixing the price of Rs.1,23,500/- per hectare and, accordingly, calculating the same for 0.83 acre of land belonging to the respondent, awarded Rs.41,372/- and also fixed solatium of 15% at Rs.6,206/-, relying on the documents pertaining to that period. However, the learned Judge, enhanced the said award mammothly to Rs.5,59,191/- taking into consideration of Rs.15.50 ps. per square foot, relying upon the sale deeds produced by the respondent, without comparing and ascertaining the potentiality and classification of the said lands with the acquired land in question, and also fixed solatium of 15% at Rs.83,879/-, thereby awarding Rs.6,43,070/- in all for 0.83 hectare, belonging to the respondent. 8/13 https://www.mhc.tn.gov.in/judis S.A. No. 263 of 2019
11. The Hon'ble Supreme Court in K.Vasundara Devi v. Revenue Divisional Officer (LAO), AIR 1995 (5) SCC 426, relying on its earlier decision in Administrator General of West Bengal vs. Collector, Varanasi, AIR 1988 SC 943, has applied the test of deduction towards developmental charges and held that 50% of the deduction should be made when the sale transactions relating to smaller extent of the lands were found to be genuine and relied on to determine the market value of a large track of land. It is also held therein that when genuine and reliable sale deeds of small extents were considered to determine market value, the same will not form sole basis to determine market value of large track of lands and sufficient deduction should be made to arrive at the just and fair market value of large track of land.
12. In the case on hand, as could be seen from Exs.P-1 to P-3, which were relied upon by the Court below for determining the value of the land, they were small pieces of land, measuring 1320 sq.ft., 255 sq.ft., and 1085 sq.ft., which were sold at Rs.15.66, Rs.15.15 and Rs.15.50 per square foot, respectively. So, the same rate cannot be applied to the land in question, as it is a larger extent and the nature of land also is different. 9/13 https://www.mhc.tn.gov.in/judis S.A. No. 263 of 2019
13. In the given situation, though I am inclined to interfere with the judgment and decree impugned herein in entirety, I refrain from doing so, for the reason that this Court, while admitting the Second Appeal on 19.02.2019, granted interim stay, subject to the condition that the appellants shall deposit 50% of the enhanced compensation within a period of twelve weeks from that day. It was also stated therein that on deposit of such amount, the respondent/landlord is permitted to withdraw the amount without furnishing any security. It is relevant to extract the said order, dated 19.02.2019, passed in C.M.P.No.3901 of 2019, as under :
''Mr.V.R.Annagandhi, learned counel, takes notice for the respondent.
2. There shall be an order of interim stay on condition that the petitioners/appellants shall deposit 50% of the enhanced compensation within a period of twelve (12) weeks from today. On deposit of such amount, the repsondent/landlord is permitted to withdraw the amount without furnishing any security. If the petitioners fail to comply with the condition, the stay granted shall stand automatically vacated without any further reference to this Court.'' 10/13 https://www.mhc.tn.gov.in/judis S.A. No. 263 of 2019 Therefore, this Court opines, that by efflux of time, the appellants have deposited the said amount and the respondent has also withdrawn the same.
Accordingly, this Court feels it appropriate to interfere with the impugned judgment to the limited extent of 50% of the enhanced amount, in view of the interim order of this Court earlier, as extracted above, but not in toto.
14. In such view of the matter, this Second Appeal is allowed to the extent indicated above. No costs. Consequently, the connected C.M.P.No.3901 of 2019 is closed.
Index :Yes 17-12-2021
Internet : Yes
Speaking Order
mra/dixit
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S.A. No. 263 of 2019
To
1.Sub-Court,
Dharmapuri.
2.V.R.Section,
High Court,
Madras.
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S.A. No. 263 of 2019
S.KANNAMMAL, J
mra/dixit
S.A. No. 263 of 2019
17.12.2021
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