IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :01.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.NO.30 OF 2002 1.Panneerselvam 2.Pugalendhi .. Appellants/Claimants Vs. The Special Tahsildhar Adi Dravida Welfare, Vellore-1. ... Respondent/Referring Officer Appeal suit filed under Section 54 of the Land Acquisition Act, against the judgment and decree dated 24.08.2001 in L.A.O.P.No.2 of 2000 on the file of the Sub Court, Vellore. For appellants : Mr.V.Balasubramanian For respondent : Mr.V.Ravi Special Government Pleader J U D G M E N T This appeal arises out of an award dated 24.8.2001 passed in L.A.O.P.No.2 of 2000 by the learned Sub Judge, Vellore. 2.The dry land in Survey No.133/3 measuring 0-74-0 Hect. or 1.83 acres has been acquired by the Government in Virupakshipuram Village for the purpose of providing house sites to the Most Backward Class people. 3.Under Section 4(1) of the Land Acquisition Act for the acquired land G.O.3D No.21 Backward class and Most Backward Class Department dated 20.2.1996 has been approved and the said Notice has been published in the Tamil Nadu Gazette No.12A first page on 27.3.1996. The substance of the Notice has been published on 29.3.1996 in the Daily Makkalkural and Kumarimurasu. The said publication Notice in the Village of Virupakshipuram village panchayat building has been affixed and publicity was made through tom-tom on 30.4.1996. The 5(A) enquiry has been conducted in the office of Special Tahsildhar (Adi Dravida Welfare) on 3.10.1996 at about 11.00 a.m. https://hcservices.ecourts.gov.in/hcservices/ 4.After complying with the procedural formalities, the Land Acquisition Officer has published a notification on 21.4.1997 in the Tamil Nadu Government Gazette No.17, Backward Class and Most Backward Class Department after approving the same on 15.4.1997 and also published the Notice in the Tamil Daily Dinathoothu dated 25.4.1997 and in Malaimurasu dated 26.4.1997. The Land Acquisition Officer in his award proceedings dated 07.1.1998 has fixed a compensation of Rs.1,04,859/- as land value for the land acquired in issue and also granted 30% solatium of Rs.31,698/- and also awarded 12% additional amount of Rs.21,410/- and further granted a sum of Rs.800/- being the value of coconut tree and in all, he has granted a total compensation of Rs.1,58,767/-. The Land Acquisition Officer has fixed and awarded the compensation at Rs.57,300/- for one acre. Dissatisfied with the award passed by the Land Acquisition Officer, the claimant has filed his objection before him, who in turn has referred the same as per Section 18 of the Act to the Land Acquisition Tribunal viz., the Sub Court, Vellore. 5.Before the Land Acquisition Tribunal, the claimant has examined himself as C.W.1 and marked Ex.A.1 sale deed dated 1.9.94. On the side of the Referring Officer R.W.1 has been examined and Ex.R.1 has been marked. 6.The learned Tribunal has awarded a compensation of Rs.700 per cent in respect of the acquired land and has also awarded Rs.2000/- for four coconut trees at the rate of Rs.500/- per tree etc. 7.The point that arises for consideration in this appeal is whether the award dated 24.8.2001 passed by the Land Acquisition Tribunal in L.A.O.P.No.2 of 2000 is liable to be set aside for the reasons ascribed in the memorandum of appeal? 8.Contention, discussion and finding: The learned counsel for the appellants/plaintiffs contends that the Tribunal after having accepted the value mentioned in Ex.A.1 xerox copy of the sale deed dated 1.9.1994 which is Rs.43,645/- per cent should have fixed the compensation at Rs.5000/- per cent taking note of the fact that the acquisition is two years after the execution of the data sale deed and further the Tribunal has not taken note of the fact that the appellants have installed a deep bore well with an electric pump at a cost of Rs.2,00,000/- and moreover, the respondent has acquired a portion of the property owned by the appellants by deliberately omitted the area covered by bore well and pumpset with an intention to avoid paying compensation in respect of the bore well and this shows the malafide intention of the respondent in depriving the appellants of their legitimate dues and these aspects of the matter have not been looked into by the Tribunal in a proper perspective and therefore, prays for setting aside the award of the Tribunal insofar https://hcservices.ecourts.gov.in/hcservices/ as it relates to the appellants and enhance the compensation at the rate of Rs.400/- per cent and the solatium and interest in accordance with law and resultantly allow the appeal in the interest of justice. 9.It is to be noted that under Section 23 of the Land Acquisition Act compensation which is payable to the claimants is the market value of the land on the date of publication of notification as per Section 4(1) of the Act. In arriving at a rate for the purpose of compensation, the Tribunals/Courts have to determine the market prize which a willing purchaser will be prepared to pay to a willing seller. As a matter of fact, the best method of determination of market prize of plots of land is to rely on the instances of sale of the same land or portion of it only about the date of notification under Section 4 (1). Another method is to take into consideration the instances of sale of the adjacent land made shortly before or after the notification. While assessing the compensation for the property, sales that has taken place in the locality proximate in time and place are quite relevant. As a general principle, the valuation of a petty extent cannot be made to govern the valuation for acquisition of large areas of land and vice versa, for it is known that when a large area has to be sold, it cannot be possibly fetch a prize at the same rate at which small plots can be sold. Indeed, the sale deeds bearing the highest value must be preferred to the rest as exemplars unless there are strong circumstances justifying a different course. It is equally accepted by and which that the Tribunal assessing the compensation made take into consideration not only the present purpose, or the present use, to which the land is applied, but also any other more beneficial purpose to which the land, in the course of events, it might within a reasonable time be applied, just as an owner might do if he were bargaining with an individual purchaser in the market, but the existing conditions will have to be taken into account and what is likely to arise soon after the relevant date for valuation, though not to what may happen in the near future. No wonder, the compensation cannot be fixed on any conjecture or speculation as the likelihood of the use to which the land may be put at distant future, or to any increase to the value of the land acquired, likely to accrue from the use to which it will be put when acquired. If there is a reasonable period the same cannot be ignored in assessing its values. If the land involved in the award is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents will be a reliable material to form the basis for determination of the compensation at a later date (compensation awarded in respect of land of same village valid basis). 10.This Court recalls the observation of Hon'ble Supreme Court in the decision Parameswari Devi (dead) by L.R.s etc. V. Punjab State Electricity Board and another AIR 1994 SC 1142 at 1143 wherein it is observed that 'it is the duty of claimant to prove sale deeds by adducing evidence either of vendor or vendee or attesting witness of https://hcservices.ecourts.gov.in/hcservices/ passing of the consideration under the sale deed, to prove that the sale transactions are genuine transactions between the willing welfare and willing vendee; that the consideration had in fact been passed under the document duly registered, represent the prevailing market value; and also the lands under acquisition and the lands concerning the sale or similarly situated and possessed of same or similar nature, advantages etc.' 11.It appears that as per village accounts of Virupakshipuram in respect of the acquired land the patta No.739 stands jointly in the name of Panneerselvam S/o.Punyakoti and Pugalendi S/o.Ramalingam. S.No.133/3 2.705 hectare land belongs to Panneerselvam as ancestral property, as observed by the Special Tahsildhar (ADW), Vellore in his award proceedings dated 7.1.1998. During interregnum of the Land Acquisition Proceedings on 15.6.1995 as per Document No.3817, 0.55 acres of land has been purchased by Pugalendhi and therefore, the said Pugalendhi's name has been jointly entered in the patta. The Land Acquisition Officer in the award dated 7.1.1998 has observed that the 55 cents of land purchased by the said Pugalendhi has not been enjoyed by him by means of separate boundaries and therefore, the purchased portion under the sale deed dated 15.6.1995 has not been determined. In the acquired portion there are four coconut trees and three valueless neem trees and in the acquired land, there is no well and a building. 12.P.W.1/the first appellant who has deposed on behalf of the second appellant before the trial Court has stated that his land has been acquired on 7.1.1998 for the purpose of providing free house site patta to the people belonging to the Adi Dravida Community and that in the acquired land there were coconut trees and that Mullai flower plant has been raised in the acquired land and that the acquired land is situated in an important place in Vellore and around the acquired lands Dhanapakkiyam Women College, Krishnasami Higher Secondary School, Government Muthurangam Arts College, Clay Factory and Housing Tenements, Commercial Establishments and Blue Theatre are all situated and that at the time of acquisition the market value of their land per square feet has been at Rs.100/- and this has not been taken note of by the concerned authority and through yielding flowers he has earned an income of Rs.1000/- per day and flowers will yield for six months and in the acquired land paddy and other grains are raised and in the acquired land well and pumpset have not been acquired and he has incurred an expense of Rs.2,00,000/- towards the well and the pumpset and after acquisition of the land, the well and the pumpset have become useless and that he prays for a compensation of Rs.3,000/- per coconut tree and for the land per square feet prays a compensation of Rs.5000/- and that the sale deed dated 1.9.1994 executed by Sekar in favour of Subramanian is Ex.A.1 and since his land has been acquired for providing house site he prays for a compensation to be fixed on the basis of house site and also the solatium amount. https://hcservices.ecourts.gov.in/hcservices/ 13.R.W.1 (Assistant in the office of the Special Tahsildhar Adi Dravidar Welfare Department) during his examination has deposed that the 4(1) Notice has been issued on 30.4.1996 for the acquired land in question and that the data land in Survey No.169/1A2 has been taken into account for the purpose of determining the compensation and accordingly per acre the compensation has been fixed at Rs.57,300/- and that the possession of the acquired land has been taken on 10.3.1999 and Ex.B.1 is the plan indicating the acquired and the data land. 14.R.W.1 in his cross examination has specifically stated that Survey No.160 is situated near the Survey No.169/A1, the data land and it is not correct to state that in the acquired land Jasmine and Mullai plant have been in existence and that it is yielded a monthly income of Rs.5000/-. Significantly, R.W.1 has stated that he does not know personally around the acquired land Dhanapakiyam Women College, Krishnasami Higher Secondary School, Blue Cinema Theatre and Government Muthurangam Arts College and Housing Tenements have been in existence. 15.Ex.A.1 is the certified copy of sale deed dated 1.9.1994 executed by C.Sekar and four others to in favour of C.Subramanian for a sum of Rs.15,000/- in respect of a vacant land. Ex.A.1 sale deed relates to Virupakshipuram Village Government punja S.No.160/1B, 165/3A, 166/1A, 167 mixedly and in the aforesaid land, the plots have been formed and being sold out and in that plot No.31 to an extent of 1,500/- square feet vacant land has been sold out for Rs.15,000/-. To put it specifically in east west an extent of 50 feet and north south 30 feet, in all 1500 square has been sold out as seen from Ex.A.1 sale deed. 16.Ex.B.1 is the Composite Plan (photo copy) in respect of No.116 N.A. District, Vellore Taluk, Virupakshipuram. 17.It is to be borne in mind that the owner/claimant of an acquired land must not be put to loss by means of under valuation. But at the same time Public Exchequer should not be put to undue burden by means of an excess valuation. It is the statutory duty of a Court of law to maintain the balance between diverse factors and interests. At this stage, it is pertinent to point out that a Reference Court must be circumspect, pragmatic and careful in evaluating the evidence and arriving at a just and fair market value of the lands under acquisition which could be fetched on the date of notification. 18.The Land Acquisition Tribunal has observed that the ‘4(1) Notice under the Land Acquisition Act has been issued in the year 1996 and on the same day the data land has been sold and therefore, it has come to the conclusion that choosing S.No.169 as data land cannot be found fault with’. https://hcservices.ecourts.gov.in/hcservices/ 19.In the instant case on hand, admittedly the sale deed in respect of data land has not been filed into the Tribunal/trial Court. The date of sale of the data land is on 18.1.1996. After three months and 11 days from the date 18.1.1996, the 4(1) Notice has been issued on 30.4.1996. 20.On a careful perusal of the award passed by the Land Acquisition Tribunal, it is quite evident that the Tribunal has fixed a sum of Rs.700/- per cent as compensation towards the acquired land. It has also awarded for four coconut trees a sum of Rs.2000/-, in all calculating Rs.500/- per tree. 21.It is true that there is an element of guesswork inherent in large number of cases involving determination of the market value of the acquired land. But if there is lack of reasoning as to how the Tribunal has come to the conclusion in fixing a compensation of Rs.700/- per cent then such decision cannot be accepted in the eye of law and on that score a remand is justifiable and an essential one. 22.It is relevant to make a mention that admittedly the data sale deed relied on the side of the respondent has not been produced before the Tribunal. Therefore, it is quite clear that the Tribunal has not been in a position to know and what circumstance the data sale deed has come into existence. In short, there is no record to establish has to the character and nature of the data land in the present case on hand. 23.As far as the present case is concerned, suffice it for this Court to point out the observation of the Land Acquisition Tribunal inter alia stating that ‘it can fix slightly a higher compensation to the acquired land and accordingly fixing compensation of Rs.700/- per cent’ is based on assumption or presumption and on conjecture and the said reasoning is not a sufficient one in the eye of law since the same is not based on a material placed before it, while determining the compensation to be fixed for the acquired land in issue and therefore, this Court, on the basis of Equity, Fair play, Good Conscience and as a matter of prudence, sets aside the award passed by the Tribunal in furtherance of substantial cause of justice and allows the appeal to prevent an aberration of justice. 24.In the result, the appeal is allowed. The award passed by the Tribunal viz. Sub Court, Vellore dated 24.8.2001 is set aside for the reasons assigned by this Court in this appeal. The matter is remanded back to the Land Acquisition Tribunal for fresh consideration of the entire gamut of the matter in issue. The Court Fee paid by the appellants in this appeal is ordered to be refunded. It is open to the respective parties to adduce further oral and documentary evidence by means of examination of additional witnesses as the case may be and https://hcservices.ecourts.gov.in/hcservices/ the Tribunal shall permit them to do so in this regard. Liberty is given to the appellants/claimants to file an application for appointment of a Commissioner to determine the extent of 55 cents purchased by the second appellant/ second claimant as per sale deed dated 01.9.1994 by defining/de-marketing the boundaries thereto and in the event of said application being filed on the side of appellants/claimants, the Land Acquisition Tribunal shall provide an opportunity to the respondent/Referring Officer to file his counter if any and to pass orders on merits in the manner known to law and in accordance with law. The appellants/claimants shall pay remuneration to the Commissioner on being appointed by the Tribunal and the Tribunal shall fix the remuneration to the Commissioner as it deems fit and proper. The Tribunal, while considering the matter afresh, shall take into consideration the Commissioner’s report with necessary plan along with the objections if any filed by the respondent and pass an award in any event within a period of five months from the date of receipt of copy of this order without fail. Considering the facts and circumstances of the case, there shall be no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sgl To. 1. The Sub Court, Vellore. 2. The Section Officer, Judicial Department(for Watching report) High Court, Madras. 3. The Section Officer, V.R.Section, High Court, Madras. + 1 cc to Mr.V.Balasubramanian and Associates,SR.27533 + 1 cc to Government Pleader,SR.27877 A.S.No.30 of 2002 PUR(CO) EM/23.7.09 https://hcservices.ecourts.gov.in/hcservices/