Madras High Court
The Land Acquisition Officer vs G. Chakravarthy (Deceased) on 19 December, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19.12.2012
Coram:
THE HON'BLE MR. JUSTICE P.R.SHIVAKUMAR
S.A. No. 1274 of 2010
and
M.P. Nos. 1/2010, 2 & 3 of 2012
The Land Acquisition Officer
(Special Tahsildar, Adi Dravidar Welfare)
East Pandy Road
Villupuram. ... Appellant
..vs..
1. G. Chakravarthy (Deceased)
2. Susheela
3. Seenuvasan
4. Prabu ... Respondents
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree made in L.A.C.M.A. No. 12 of 2001 dated 30.11.2004 on the file of the I Additional Sub Court, Villupuram modifying the award made in Award No.3/2000-2001 dated 23.3.2001 passed by the Land Acquisition Officer (Special Tahsildar, Adi Dravidar Welfare), Villupuram.
For Appellant ... Mr. S. Pattabiraman, Govt. Advocate
For Respondents ... Mr. M. Rajaraman for R2 to R4
J U D G E M E N T
The Land Acquisition Officer (Special Tahsildar, Adi Dravidar Welfare), Villupuram, the respondent in L.A. 12/2001 on the file of the First Additional Subordinate Judge, Villupuram is the appellant herein.
2. The property of the first respondent G. Chakravarthy (since deceased) was acquired for Harijan Welfare Scheme, to provide house sites to the members of the Adi Dravidar Community. An extent of 4.84 acres of land comprised in S. No.150/7A, 150/7B, 150/8 and 150/10, a total extent of 1.96.0 hectares was acquired for the above said public purpose under the provisions of Tamil Nadu Acquisition of Land for Harijan Welfare Scheme [Act 31/78]. After conducting enquiry under section 4(2) of the Act the land came to be acquired by issuing notification under section 4(1) of the Act in the proceedings of the District Collector bearing No. M/10/26177/00 dated 05.10.2000 and the same was also published in the Villupuram District Gazette dated 13.10.2000. The Land Acquisition Officer fixed the market value of the acquired land at the rate of Rs.60,416/- per acre [Rs.1,49,228/- per hectare] based on a sale deed dated 24.03.1999 registered as Document No.400/99 on the file of the Sub Registrar, Vikravandy in respect of S. No. 49/1-B of Pappampatti village, within the boundaries of which village the acquired properties situate. The Land Acquisition Officer fixed the total market value of the land at Rs.2,92,487/- and the value of the trees at Rs.2904/-, allowed solatium at 15% of the market value and awarded a total sum of Rs.3,39,264/- as compensation vide Award No.3/2000-2001 dated 23.3.2001 for the land compulsorily acquired from the first respondent herein.
3. Not satisfied with the quantum of compensation and complaining that the compensation awarded by the Land Acquisition Officer was insufficient, the first respondent filed an appeal in L.A.C.M.A. No. 12 of 2001 on the file of the First Additional Sub Court, Villupuram under section 9 of the said Act. Learned First Additional Subordinate Judge, Villupuram, after hearing, allowed the appeal holding that the market value fixed by the Land Acquisition Officer was not correct and awarded enhancement of compensation fixing the market value of the property at Rs.1800/- per cent based on a sale deed dated 23.06.1997 in respect of 5-1/3 cents of land being part of land comprised in 256/8 in Vettukadu Village. Without causing any change in the value of the trees, the learned First Additional Subordinate Judge, Villupuram calculated the statutory benefits, namely solatium @ 15% and interest on the enhanced amount of compensation @ 6% per annum and passed a decree directing payment of the enhanced amount of compensation with interest.
4. The said decree dated 30.11.2004 passed by the learned First Additional Subordinate Judge, Villupuram in L.A.C.M.A. No. 12 of 2001 is challenged in the present second appeal by the Land Acquisition Officer under Section 13 of the Tamil Nadu Acquisition of land for Adi Dravidar Welfare Schemes Act 31/78 r/w Section 100 of CPC. Since the original claimant G. Chakravarthy died after the filing of the Second Appeal with a delay, his legal representatives have been brought on record as respondents 2 to 4.
5. At the time of admission the following questions were framed as substantial questions of law involved in the Second Appeal:-
1.Whether the Court below had erred in placing reliance on Ex. A4 where under a small extent of land classified as house site was conveyed where as the land acquired is classified as agricultural land and measuring an extent of 2.00.0 hectare ?
2. Whether the Court below had erred in not making necessary deduction towards development charges especially in view of law laid down by the Apex Court Judgment reported in 2003 (12) SCC 334 where under the Apex Court prescribed the percentage of deduction at 53% ?
3. Whether the Court below had erred in not appreciating the provision of Section 8 of the Act 31/78 which clearly stipulates that nature and classification of land under acquisition as on date of 4(1) notification is the criteria for fixation of market value and not the probable usage of the said land ?
6. The arguments advanced by Mr. S. Pattabiraman, learned Government Advocate and by Mr. M. Rajaraman, learned counsel for the respondents were heard. The judgments of the court below and the other materials available on record were also considered.
7. Learned Government Advocate has argued that though the Land Acquisition Officer selected a sale that took place in respect of a land situated near the acquired land, the property sold under Ex.A4 comes within the boundary of another village and hence preference of the sale made under Ex.A4 to that of the sale under Ex.A1 selected by the Land Acquisition Officer a data sale was not proper and hence the decree of the court below awarding an enhanced compensation is liable to be set aside.
8. Per contra, learned counsel for the respondents has contended that though the land sold under Ex.A1, which was taken as a sample sale by the Land Acquisition Officer, is situated within the boundary of the village in which the acquired land is situated and the property sold under Ex.A4 comes within the boundary of the neighbouring village, the property sold under Ex.A4 is more proximate than the property sold under Ex.A1 to the acquired land. It is the further submission of the learned counsel for the respondents that only a road divides the acquired land and the property sold under Ex.A4 and hence the Land Acquisition Officer himself ought to have taken the same as the sample sale for the fixation of the market value of the acquired land. The further contention of the learned counsel for the respondents is that as the sale made under Ex.A4 was made in 1997 itself and that the said sale deed, in the absence of any proof that there was a decline in the market value from the date of Ex.A4 upto the date of 4(1) notification, the Land Acquisition Officer ought not to have omitted to take into consideration Ex.A4 and that hence the preference made by the learned Judge of the lower court is perfectly in order and no interference can be made in the Second Appeal.
9. Now it has been well established that while the State acquires the land of individuals using its eminent domain, the owner of the land must be compensated with a reasonable compensation and such a compensation should not be a pittance. It is also an established principle that the Land Acquisition Officer is not supposed to search for a document showing the least amount as value and that when there are a number of documents reflecting different market values, the document reflecting the higher value should be preferred as the basis of valuation, unless it is proved that the price quoted in such document was not the correct market value and it had been escalated due to some other reasons including a special interest shown by the purchaser to purchase such property at any cost. Hence, this court comes to the conclusion that the court below has rightly selected the sale under Ex.A4 as the data sale and no interference in this regard is required.
10. The learned Government Advocate arguing further for the appellant submitted that a sale deed in respect of a small extent of land classified as house site was taken as data sale by the lower court for fixing the market value of the acquired land having a larger extent, namely 1.96.0 hectares and that even while doing so the court below failed to take into account the principles regarding the deductions to be made when the value of the larger extent of land is be assessed based on the sale price of a similar extent of land as a house site, on the premise that the larger extent had the potential to be developed into house sites. According to the submission made by the learned Government Advocate, for development charges and for the areas to be left for street and public purposes certain percentage should have been deducted. But the learned lower court Judge failed to allow any deduction and simply fixed the market value on par with the land which had been sold under Ex.A4. Exactly, the said contention has been formulated as substantial question nos. 1 and 2.
11. As an answer to the above said contention of the learned Government Advocate, Mr. M.Rajaraman, learned counsel for the respondents would submit that the above said contention raised on behalf of the appellant has been made on a misconception that no deduction had been allowed for development charges and for the space to be left for roads and public purposes, while converting a larger extent of land into house sites, when the sale price of a smaller extent of land sold as house site is taken as the basis for such valuation and hence the said contention raised on behalf of the appellant should be rejected as factually incorrect.
12. Learned counsel for the respondents taking the court through the judgment of the court below and the sale deed relied on by the court below as the data sale, namely Ex.A4, has pointed out the fact that the sale consideration as per the sale deed was a sum of Rs.23,000/- and the extent of land conveyed therein was 5-1/3 cents; that the same works out at Rs.4312.50 per cent; that the said amount was not fixed by the lower court as the market rate for the acquired land and on the other hand only a sum of Rs.1800/- per cent was taken as the market value of the acquired land and that hence the balance amount of Rs.2512.50 was the deduction made by the court below on the ground that the sale in respect of a smaller extent of land was taken as data sale for assessing the market value of a larger extent of land having the potential for development as house sites. Learned counsel for the respondents has argued that normally the deductions shall be between 20% to 40% or at the maximum 50% and in this case more than 50% deduction had been allowed by the learned Judge of the lower court and that hence the fixation of the market value of the acquired land at the rate of Rs.1800/- per cent can, at no stretch of imagination, be held to be either excessive or exorbitant and on the other hand there is a possibility of holding that the amount fixed is below the reasonable rate. The said submission made by the learned counsel for the respondents is well founded.
13. As per the Ex.A4 which was taken as the data sale by the court below, 5-1/3 cents of land in a dry land was sold for a sum of Rs.23,000/-. The said land was admittedly sold as a vacant house site classified as dry land Punjai Patta Kalimanai. As rightly pointed out by the learned counsel for the respondents, the rate found in Ex.A4 works out to Rs.4,31,250/- per acre (Rs.4312.50 per cent), whereas the learned Judge of the lower court has fixed the market value of the acquired land at the rate of Rs.1,80,000/- per acre (Rs.1800/- per cent). It shows that more than 58% has been deducted from the value reflected in Ex.A4. Hence, this court comes to the conclusion that the above said contention of the learned Government Advocate on behalf of the appellant is factually incorrect and the same deserves rejection. In this regard the contention of the appellant that the deduction towards developmental charges should have been made on the basis of the judgment of the Apex court in Land Acquisition Officer, Kammarapally Village vs. Nookala Rajamallu and Ors., reported in 2003 (12) SCC 334 at the rate of 53%, is also bound to be rejected on the ground of being factually incorrect. As pointed out supra, the deductions made by the court below comes to a little above 58% whereas as per the judgment relied on by the learned Government Advocate, the Apex Court has made a deduction at 53%. Learned counsel for the respondents point out the fact that even if deduction at the rate of 53% as contended by the appellant is to be made, the rate would be more than Rs.1800/- per cent as claimed by the appellant/ claimant before the court below. The court below, considering the fact that the claimant had made a claim for enhancement of compensation at a lesser rate than the amount that can be fixed as market value, has awarded enhanced compensation as claimed by the respondents. Further more, we cannot fix the deductions allowed in a particular case as the standard scale of deduction for each and every case. It depends upon the facts and circumstances of each case. Properties already having amenities like road approach and evenly levelled land require less amount to be spent for being converted into a pukka layout of house sites. In such cases, the deduction that can be made, as rightly contended by the learned counsel for the respondents, shall not be the maximum and it may even be the minimum. The question of reducing the deduction made by the Court below does not arise in this case because there is no appeal by the respondents claiming further enhancement of compensation. Suffice to hold that the amount deducted by the court below is the maximum. Hence, the claim of the appellant for deduction of a higher percentage is bound to be rejected.
14. The court below has rightly allowed solatium at the rate of 15% as per Section 7(2) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes and interest on the excess compensation at the rate of 6% as per Section 12 of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes. For all the reasons stated above, this Court answers all the three substantial questions of law against the appellant and in favour of the respondents. Accordingly, this court holds that there is no merit in the appeal and the same deserves to be dismissed with cost.
15. Accordingly, the Second Appeal is dismissed with costs, with the result that the decree passed in L.A.C.M.A. No. 12 of 2001 dated 30.11.2004 on the file of the I Additional Sub Court, Villupuram stands confirmed. Consequently, the connected M.Ps are closed.
19.12.2012 Index: Yes/No. Internet: Yes/No. avr To The First Additional Subordinate Judge, Villupuram P.R.SHIVAKUMAR J., avr S.A. No. 1274 of 2010 and M.P. Nos. 1/2010, 2 & 3 of 2012 19.12.2012