IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.01.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU A.S.Nos.1007 to 1010 of 2004 and C.M.P.Nos.16584 to 16587 of 2004 The Special Tahsildar & Land Acquisition Officer (L.A.) Salem-Karur Broad Gauge, Railway Line Project, Namakkal ... Appellant in all appeal suits/ Referring Officer vs. Mallan ... 1st respondent in A.S.No.1007/2004/ Claimant Sarasu ... 1st respondent in A.S.No.1008/2004/ Claimant V.Sengoda Gounder ... 1st respondent in A.S.No.1009/2004/ Claimant Paramasivam ... 1st respondent in A.S.No.1010/2004/ Claimant 2.The Deputy Chief Engineer (Construction) Salem-Karur Broad Gauge Railway Line Project, Southern Railway, Salem-636 005. ...2nd Respondent in all appeal suits/ Beneficiary These four appeal suits have been preferred under Section 54 of the Land Acquisition Act, against the judgment and decree made in LAOP Nos.306, 307, 308 and 309 of 2000, dated 29.11.2002 on the file of the learned Subordinate Judge, Namakkal. For Appellant : Mr.V.Ravi, Spl.G.P.(AS) For Respondents : Mr.R.Saseetharan for R-1 Mr.V.G.Sureshkumar for R-2 C O M M O N J U D G M E N T Heard. https://hcservices.ecourts.gov.in/hcservices/ 2. All the four Appeal Suits were filed under Section 54 of the Land Acquisition Act, 1894, by the Special Tahsildar cum Land Acquisition Officer, Namakkal, challenging the judgment and decree dated 29.11.2002 passed by the Sub-Judge, Namakkal in LAOP Nos.306 to 309 of 2000. 3.The lands of the respondents/land owners were acquired for the purpose of formation of Salem - Karur Railway Broad Gauge Railway Line Project. The land owners' lands were situated in Kadanthapatty Village at Namakkal Taluk. The total land acquired in respect of the village was 1.50.0 hectares. After due procedure, an Award came to be passed in Award No.1/99 dated 07.06.1999 by the Acquiring Authority. The Acquiring Authority fixed the market rate of compensation for the acquired lands at the rate of Rs.331/- per Cent and worked out the compensation along with other statutory dues payable under the Land Acquisition Act. 4.The respondents/Claimants were not satisfied with the market rate fixed by the authority. Hence, the issue was referred for determination of the market value by the jurisdictional Reference Court. The references were assigned to the decision of the Sub-Judge, Namakkal, who registered all the four references as LAOP Nos.306 to 309 of 2000. 5. Before the reference Court (i.e. the Court below) on behalf of the claimants, C.W.1 to C.W.4 were examined as their witnesses. The first respondent in A.S.No.1007 of 2004 - Mallan was examined as C.W.4 and one Sengoda Gounder, the first respondent in A.S.No.1009 of 2004 was examined as C.W.3. The first respondent in A.S.No.1010 of 2004 was examined as C.W.1. Apart from three persons, one Shanmugam, Engineer was examined as C.W.2. On the side of the claimants, 7 documents were filed and marked as Exs.A.1 to A.7. On the side of the Acquiring Authority, the then Tahsildar was examined as R.W.1. On their side, 5 documents were filed and marked as Exs.B.1 to B.5. 6. The Reference Court on an analysis of the evidence (both oral and documentary) placed before it arrived at the market rate of compensation as Rs.2997/- per cent by its common judgment and decree dated 29.11.2002. 7. Pending the appeals, by an order dated 28.12.2004, a conditional order came to be passed. 8. The contention raised by the appellant was that enhanced compensation passed by the Reference Court was exorbitant and contrary to the guidelines prescribed under Section 23 of the Land Acquisition Act. The acquired land is a barren land and not situated in potential area for appreciation. The acquired lands were situated far away from the developed lands. The Court below was wrong in accepting Ex.A1 which is an exemplar of small plot of land. https://hcservices.ecourts.gov.in/hcservices/ 9. The Acquiring Authority for the purpose of arriving at the market rate of the lands gathered statistics from various sale transactions that took place from 03.12.1995 to 02.12.1998, in the Office of the Sub-Registrar, Puduchatram, Namakkal Taluk. During the relevant period, 9 sale transactions had taken place in Kadanthapatty village and all the 9 documents were rejected on the ground that they were all sale of house site plots. Therefore, the Authority took note of the transaction from the Kadiranallur Village for the same period. It was found that during that period, there were 36 sales in that village and it adopted the valuation by taking note of the land as Manavari Dry lands. The Authority took note of the transaction based on the sale in S.No.185/1 in Document No.870 dated 09.05.1997 i.e. Sl.No.12 as data land and fixed the compensation at Rs.331/- per cent. The Authority rejected the other transactions in respect of the same village by stating either they do not reflect the correct market value or they were situated far away from the land in question or some of the sales were done along with the well. Further, some of the transactions were rejected on the ground that they were wet land or the sale was among relatives. Three sale transactions were rejected on the ground that they were sold as house site plots. 10. The Reference Court framed 7 issues. The Reference Court on a perusal of the Topo sketch Ex.B2 found that the data land is situated far away from the neighbouring village Kadiranallur. Even the date of sale was 09.05.1997, whereas the advertisement for 4(1) notification was given on 27.11.1998 that is after a period of one year and 6 months. It also found that Ex.A1 sale deed situated in S.No.7/2B is more comparable in respect of soil, taram and that document in Ex.A1 is shown as Sl.No.8 in the statistical data furnished by the appellant themselves and marked as Ex.B3 before the Reference Court. In Ex.A1, lands were sold as housing plots and rate was fixed at Rs.6.88/- per sq.ft. With reference to Ex.A2, sale deed, the Court below found that in the said land, there was a tiled house. Therefore, it placed reliance upon Ex.A1 sale deed dated 27.08.1998. It also found that Ex.A1 is more comparable. In respect of Ex.A1 since the sale had taken place at Rs.6.88 per sq.ft, the question of deducting any development charges will not arise. It is in that view of the matter, the Court below had granted the enhanced compensation. 11. The learned Special Government Pleader contended that the rate fixed by the Reference Court was exorbitant and fancy compensation cannot be awarded without any basis. It is no doubt true that if no comparable lands are available in the relevant period, the details for the neighbouring village can be taken note of for the purpose of fixation of compensation. But in the present case, outright rejection of the sale transaction in the village in which lands were acquired cannot be accepted. Though it was contended that the purpose of acquisition cannot be used for enhancing the compensation, but in the present case because of the laying of railway line, some of the land owners' land were vivisected which greatly affected the potentiality of the land. https://hcservices.ecourts.gov.in/hcservices/ Further, the reason found by the Reference court that Ex.A1 is more comparable cannot be found fault with. 12. Though the purpose of acquisition may not be a relevant factor, yet the Supreme Court in its judgment in Nelson Fernandes v. Special Land Acquisition Officer reported in (2007) 9 SCC 447, while dealing with the question of development charges gave certain guidelines. In that case, the Supreme Court held that if the land was acquired for the purpose of laying railway line, the question of development of the land may not arise. In paragraph 30 it was observed as follows: "30. We are not, however, oblivious of the fact that normally 1/3rd deduction of further amount of compensation has been directed in some cases. However, the purpose for which the land is acquired must also be taken into consideration. In the instant case, the land was acquired for the construction of new BG line for the Konkan Railways. This Court in Hasanali Khanbhai & Sons v. State of Gujarat and Land Acquisition Officer v. Nookala Rajamallu had noticed that where lands are acquired for specific purposes, deduction by way of development charges is permissible. In the instant case, acquisition is for laying a railway line. Therefore, the question of development thereof would not arise. Therefore, the order passed by the High Court is liable to be set aside." 13. The argument that potential value can have no bearing on the question of compensation also cannot be accepted because the Supreme Court in more than one judgment has held that potential value of the land can also be a relevant factor in determining the market rate as has been done in the case of Sangunthala Vs. Special Tahsildar (Land Acquisition) and others reported in 2010 (3) SCC 661. In paragraphs 24 to 26 and 34, the Supreme Court held as follows: "24.In the light of the above material facts this Court feels that the presence of a number of buildings on the lands acquired and the said lands being occupied by the buildings are to be treated as house sites. The basic purpose that has been traced out in the evidence and as admitted by the RWs is that the lands were acquired for the purpose of putting up residential quarters. As a portion of the land is being considered as house site, the adjoining lands have the potential of being put in better use as house sites in the near future. 25.The other important factor is the proximity of the plots to two residential colonites i.e. Anna Nagar and Gandhi Nagar. As it has come on record that Anna Nagar Colony has about 50-60 houses and https://hcservices.ecourts.gov.in/hcservices/ Gandhi Nagar Colony has about 150 houses, as such it is reasonable and proper to conclude that the present lands under dispute were near the residential colonites. 26.It should also be taken into consideration that the disputed lands were situated near the factory premises and further were adjoining the main road which connects Tanmag Road. As such the aforesaid lands are potential house sites. ..... 34.In view of the admitted case that the lands acquired were potential house sites we do not agree with the views taken by the High Court while calculating the compensation. R-13 and R-15 are the two sale deeds containing particulars of the sale transactions held three years prior to the Section 4(1) notification. The Reference Court after close perusal of the aforesaid documents held that the same disclose that out of more than 100 sales, a number of sales in respect of the lands were sold as house sites in Thathaiyangarpatti Village and the adjacent survey numbers in Thekkampatty Village were also sold as house sites." 14. If the Acquiring Authority omitted to take into account the relevant consideration, it is open to the Reference Court to disregard the data land as the basis for compensation and can grant compensation on the basis of any credible material, which in the present case is Ex.A1. Therefore, no fault can be found in respect of compensation awarded by the Reference Court . 15. In the light of the above, all the four appeals will stand dismissed. However, parties are allowed to bear their own costs. 16. It is made clear though a common judgment is pronounced in respect of all the four appeals, the learned Special Government Pleader (AS) appearing for the appellant is entitled to get separate set of fees in respect of each of the Appeal Suit. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To 1. The Subordinate Judge, Namakkal https://hcservices.ecourts.gov.in/hcservices/ 2.The Deputy Chief Engineer (Construction) Salem-Karur Broad Gauge Railway Line Project, Southern Railway, Salem-636 005. 3.The Special Tahsildar & Land Acquisition Officer (L.A.) Salem-Karur Broad Gauge, Railway Line Project, Namakkal Copy to The Section Officer, VR Section, High court, Madras 2 ccs To Mr.R.Saseetharan, Advocate, SR.3306 4 ccs To Mr.V.G.Sureshkumar, Advocate, SR.3342,3343,3344,3345 JUDGMENT IN A.S. Nos.1007 to 1010 of 2004 CK, PKB (CO) RH (4.2.11) https://hcservices.ecourts.gov.in/hcservices/