Madras High Court
The Land Acquisition Officer vs Palaniappan on 23 February, 2010
Author: R.Banumathi
Bench: R.Banumathi, A.Arumughaswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE A.ARUMUGHASWAMY
A.S.Nos.123 to 130, 133 and 134 of 2007
&
589 to 595/2006 and 649 to 655 of 2006
A.S.No.123 of 2007:
The Land Acquisition Officer
and Revenue Divisional Officer,
Coimbatore. ... Appellant/Referring Officer
vs.
1. Palaniappan
2. Chinnasamy ... Claimants |
|
3. The Controller of Aerodrome, |Respondents
Civil Aerodrome, Peelamedu, |
Coimbatore. ... Beneficiary |
Prayer: Appeals filed under Section 54 of Land Acquisition Act against the Common Judgment made in L.A.O.P.Nos.128 to 136, 144, 149 of 1996 and 111 to 117/1996, 118, 119, 122 to 125 and 127/1996 dated 29.10.2004 on the file of I Additional Subordinate Judge, Coimbatore.
For Appellant : Mr.V.Ravi
in all cases Special Government Pleader [AS]
For Respondents/Claimants
in all cases : Mr.C.R.Prasanan, Mr.D.Sivakumaran, Mr.Satish Parasaran,
Mr.K.Kalyanasundaram
Mr.T.T.Ravichandran
For Acquisition Body/
Beneficiary in all : Mr.T.A.Srinivasan
cases for
M/s. Sree and Associates.
COMMON JUDGMENT
R.BANUMATHI,J Being aggrieved by enhancement of compensation for the lands acquired for extension of existing run-way of Coimbatore Airport, Land Acquisition Officer has filed these Appeals.
2. 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.
3. At the instance of the Senior Aerodrome Officer, Coimbatore Airport, acquisition proceedings were initiated for acquisition of an extent of 18.16.5 Hectares comprised in S.F.No.601/1A2 etc. measuring 7.43.5 Hectares of Kalapatty village in Coimbatore and in S.F.No.316/5B etc. measuring 19.68.0 Hectares of Uppilipalayam village of Coimbatore under urgency clause of Land Acquisition Act to wit for the use of extension of existing run-way of Coimbatore Airport and providing approach lighting system. As the land acquisition proceedings in this case were initiated under urgency clause, enquiry under Sec.5(A) of Land Acquisition Act was withheld. The Draft Declaration under Sec.6 of the Act was approved in G.O.Ms.No.3145, Transport dated 01.07.1992. Award enquiry under Sec.11 of the Act were conducted on 04.7.1994, 06.7.1994 and 08.7.1994 respectively. Sales statistics were gathered for the proceeding one year from the date of publication of Sec.4(1) notification i.e. 29.05.1992. Among such sales, the sale of the land that took place in S.F.No.712 of Kalapatty village was taken as data land for fixing the land value for the acquisition fields. As per Document No.1721 dated 12.3.1992, in S.F.No.712 of Kalapatty village, an extent of 1.73 acres was sold for Rs.1,78,500/- which comes to Rs.1,03,179.19 per acre or Rs.2,54,853.00 per Hectare which was taken by the Land Acquisition Officer for comparison. S.F.No.712 of Kalapatty village was taken as data land as it lies within 1.5 K.M. distance from the acquisition fields and the Land Acquisition Officer felt that both data land and the acquisition fields are similar in all aspects.
4. On objection raised by the land owners, Sec.18 reference was made. In the Reference Court, Claimants Vijayakumar and Ramachandran were examined as CW1 and CW2 respectively. Exs.C1 to C13 were marked on the side of Claimants. On the side of Referring Officer, one Nararayanamurthy was examined as RW1 and Exs.R1 to R4 were marked. On the side of Acquisition Body/Beneficiary, one Gopalakrishnan was examined and 10 documents were marked.
5. Based on Exs.C1 and C2-Layouts and Ex.C4 [05.05.1989] and Ex.C5 [11.9.1991] sale deeds, Reference Court had observed that the market value of the acquired lands would fetch Rs.20,00,000/- per Hectare. Giving 60% deduction, Court has arrived at the value at Rs.7447/- per cent. However, pointing out that before the Land Acquisition Officer, Claimants themselves have asked only for Rs.10,00,000/- per Hectare, Reference Court fixed the market value at Rs.5000/- per cent. In so far as, LAOP.No.137/1996, Court has fixed the market value at Rs.8000/- per cent which was ordered by separated from this Batch of cases. Reference Court also ordered 30% solatium and interest at 9% for one year from 26.06.1992 to 25.6.1993 and thereafter interest at the rate of 15% p.a. till the date of realisation.
6. Challenging the enhancement of compensation, Mr.V.Ravi, learned Special Government Pleader has submitted that Reference Court erred in taking Exs.C4 and C5 sale deeds as the comparable sale deeds and the properties sold under those sale deeds are very far away from the acquired lands and the enhancement of compensation of Rs.5000/- per cent made by the Reference Court is on the higher side.
7. We have heard Mr.C.R.Prasannan, Mr.D.Shivakumaran, Mr.K.Kalyanasundaram, Mr.S.Satish Parasaran, and Mr.T.T.Ravichandran learned counsels appearing for Claimants/Land owners respectively. We have also heard Mr.T.A.Srinivasan, learned counsel for Acquisition Body/Beneficiary.
8. Learned counsel for Respondents/Claimants submitted that the acquired lands are in Kalapatty and Uppilipalayam village and are situated in the midst of developed area and the compensation fixed by the Reference Court at Rs.5000/- per cent is very less amount warranting no interference.
9. As pointed out earlier, S.F.No.712 of Kalapatty village was found similar in all respects. As per Document No.1721 dated 12.3.1992, an extent of 1.73 acre was sold for Rs.1,78,500/-. Based on which, the Land Acquisition Officer had fixed the value at Rs.1,03,179.19 per acre or Rs.2,54,853/- per Hectare. It has been brought in evidence that the acquired lands are surrounded by Airport, Railway Station, Residential colony and various multi speciality hospitals. When the acquired lands are in the midst of developed area, Land Acquisition Officer was not justified in taking Document No.1721 dated 12.03.1992 for comparison in which large extent of land was sold as agricultural land.
10. 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 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.
11. On the side of Claimants, Cws.1 and 2 were examined. Acquired lands are access both from Avinashi Road and Trichy Road. Several educational institutions are situated in and around the acquired lands. That apart, multi speciality hospitals are also situated nearby. SITRA and other Mills are also situated in the surrounding of the acquired lands. In their evidence, Claimants have further stated that the acquired lands being situated in the midst of developed area surrounded by educational institutions, multi speciality hospitals and Mills has higher market value. Claimants have further stated that Kalapatty and Uppilipalayam are in the centre of Coimbatore and the layouts have been formed and lands are only sold as house plots.
12. The oral evidence adduced by the Claimants is strengthened by Exs.C1 to C3-Layouts formed in the surrounding area. As seen from Ex.C4 sale deed dated 05.05.1989 wherein an extent of 0.65> cents in S.F.No.297/2 was sold for Rs.10,00,000/- [Rs.15,159/- per cent]. Like wise, in Ex.C5 [11.9.1991], an extent of 3600 sq.ft. in Plot No.20 of Alamelu Nagar Layout was sold for Rs.1,81,836/- [Rs.21,800/- per cent]. Exs.C4 and C5 are the sale deeds of the year 1989 and 1991 respectively, atleast two years prior to the acquisition. When the lands were acquired invoking urgency clause dispensing with enquiry under Sec.5(A) of the Act, the Land Acquisition Officer ought to have been more reasonable in fixing the market value.
13. 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.
14. Considering the factors whether the land has got potential value or not, in (2008) 3 MLJ 806 (SC) [Atma Singh (died) through LRs and others v. State of Haryana and Another], the Supreme Court has held as under:-
"5. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like, water, electricity, possibility of their further extension, whether near about Town is developing or has prospect of development have to be taken into consideration. See Collector Raigarh v. Hari Singh Thakur, AIR 1979 SC 472, Raghubans Narain v. State of U.P., AIR 1969 SC 465 and Administrator General, W.B. v. Collector Varanasi (supra). It has been held in Kaushalya Devi v. L.A.O. Aurangabad, AIR 1984 SC 892 and Suresh Kumar v. T.I.Trust, AIR 1980 SC 1222 that failing to consider potential value of the acquired land is an error of principle."
15. As is seen from the oral and documentary evidence, acquired lands are situated in the midst of developed area. When the acquired lands are in the midst of developed area having access from both two main roads, the Land Acquisition Officer was not justified in taking the data sale deed in S.F.No.712 in which an extent of 1.73 acre [agricultural land] was sold at Rs.1,78,500/-.
16. We have gone through the Topo sketch. Even though, S.F.No.297/2 [Ex.C4] and Plot No.20 of Alamelu Nagar Layout are slightly far away from the acquired lands, the potentiality of the acquired lands have to be kept in view. In his evidence, RW1-Land Acquisition Officer himself has admitted that the acquired lands are situated in the midst of developed area. RW1 has further deposed that the acquired lands are having access from main Roads and near to the City. Being near to the city and in the midst of developed area, the acquired lands are in advantageous position having potentiality of development. While fixing the market value, the Land Acquisition Officer is required to consider the location of property, its advantages as well as potentiality. Existing amenities that the acquired lands having access to two main Roads and its potentiality to residential, commercial and educational institutions and its proximity to Coimbatore City, the prospect of future development have to be taken into consideration. As per Exs.C4 and C5 sale deeds, the market value per cent is Rs.15,159/- and Rs.21,800/- respectively. When nearby area the Plots were sold as house plots, in our considered view, the Land Acquisition Officer has not kept in view the potentiality of the land and prospect for development and the compensation given was meagre amount.
17. Statistics show that most of the acquisitions relate to lands held by small farmers, whose livelihood depends upon the acquired lands. As held by the Supreme Court in (2009) 4 MLJ 137 (SC) [Special Land Acquisition Officer, U.K.Project v. Mahaboob and another], even though the land is taken purportedly in accordance with law by resorting to acquisition proceedings, the Collector is supposed to offer a fair compensation by taking all relevant circumstances relating to market value into account. The Supreme Court further held that the Land Acquisition Officers seldom make reasonable offer and they tend to err on the safer side and invariably assess very low compensation.
18. Even though, based upon Exs.C4 and C5-sale deeds, Reference Court has taken the market value at Rs.20,000/- per cent, but the Reference Court has made 60% deduction for development charges and taken Rs.7447/- per cent. Pointing out that the land owners themselves have asked for only Rs.10,00,000/- per Hectare. There again, Reference Court restricted to Rs.5000/- per cent. We are of the view that the Reference Court was very conservative in fixing the market value at Rs.5000/- per cent. We are of the opinion that Reference Court ought not to have restricted Rs.5000/- per cent. However, since Claimants have not preferred any appeal or Cross-Objection for enhancement, the matter has to be left there. The market value fixed by the Reference Court itself is very low, we find no reason for further deduction. We therefore confirm the market value of the land fixed by the Reference Court at Rs.5000/- with 30% solatium and 12% additional market value for 792 days [19.5.1992 to 29.7.1994]. In so far as interest, Tribunal has awarded interest on the enhanced amount with 30% solatium i.e. at the rate of 9% for one year period from 26.06.1992 and thereafter at 15% p.a. till the date of deposit, the same is also confirmed.
19. It is stated that part of the compensation amount along with accrued interest and proportionate solatium was deposited in all the appeals and Claimants have also withdrawn part of the amount so deposited.
20. A.S.Nos.123 to 130, 133, 134/2007 & 589 to 595 and 649 to 655/2006:-
In the result, all the Appeals are dismissed.
The Appellant is directed to deposit entire balance compensation amount along with solatium and accrued interest within a period of eight weeks from the date of receipt of the copy of this Judgment. Claimants are permitted to withdraw the balance compensation along with solatium and accrued interest thereon.
In the circumstances of the case, there is no order as to costs in all these Appeals. Connected Miscellaneous Petitions are closed.
Learned Special Government Pleader shall be entitled separate fee in each of the Appeal.
bbr To The I Additional Sub-Judge, Coimbatore