IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :10.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.NO.410 OF 2004 Maninathan ... Appellant Vs. The District Revenue Officer, Vellore. ... Respondent Appeal suit filed under Section 54 of the Land Acquisition Act, against the judgment and decree dated 31.08.2001 in L.A.O.P.No.3 of 1998 on the file of the Sub Judge, Vellore. For appellant : Mrs.V.J.Latha For respondent : Mr.V.Ravi Additional Government Pleader J U D G M E N T This appeal is filed against the award dated 31.8.2001 passed in L.A.O.P.No.3 of 1998 by the Land Acquisition Tribunal viz., Sub Judge, Vellore. 2.The Government have acquired a total extent of 553 1/2 sq.ft. of land in different survey numbers situated in North Vellore in the Taluk of Vellore registered in the name/occupy by concerned persons for the purpose of widening the Vellore, Katpadi Road near Palace Cafe by Highways and Rural Works Department, North Vellore Town. 3.The total extent of 553 1/2 sq.ft. of acquired land belonging to various individuals in different survey numbers are as follows: (a) Deivasigamani Mudaliar Trustee 1160/2 Dry 196 89,516.00 (b)Nayeena Rehena 1161/2 Dry 175 1/2 78,810.00 W/o.R.G.Abdul Kaliq (c)Thiru.Maninathan S/o.Late Duraisamy 1162/2 Dry 182 84,104.00 ------------------------------- 553 1/2 2,52,430.00 ------------------------------- and the compensation of Rs.2,52,430/- has been granted. Out of the total extent of 553 1/2 sq.ft. of land, we are concerned with the respondent/ claimant's land in S.No.1162/2 Dry admeasuring an extent of 182 sq.ft. to which a compensation of Rs.84,104/- has been granted. 4.Section 4(1) Notification has been issued on 09.12.1994. The 5(A) enquiry notice has been served on the appellant/claimant requiring him to appear on 27.2.1995 in connection with the enquiry in the office of Revenue Divisional Office. The 'B' notice has been issued to the appellant/claimant and he has sent a petition dated 18.2.1995 through his counsel stating that he has entered into the land earlier and that he prays for compensation of Rs.5,000/- per sq. ft. and also prayed for Rs.500/- per sq. ft. to the building. Section 6 notice and a report have been sent and the same has been approved on 09.11.1995 in G.O.No.933 Public Works (HP 2) Department and the same has been published in the Tamil Nadu Gazette Supplement Part 2, Section 2 at page 4 on 29.11.1995. In the Tamil dailies, Dailythanthi, Kumarimurasu, the same has been published on 01.12.1995. The Land Acquisition Officer, insofar as the appellant/claimant land is concerned, has awarded a compensation of Rs.23,368.80/- in respect of 182 sq. ft. of land calculating per square feet at the rate of Rs.128.40 and has granted a sum of Rs.819/- towards the value of the building and in all, has awarded a sum of Rs.24,187.80 and also granted 30% solatium amount of Rs.7,256.34 paise and granted a sum of Rs.8,406.75 towards 12% additional amount and further granted 9% interest from 27.3.1985 to 26.3.1986 for a period of one year amounting to Rs.2,176.90 and thereafter, 15% interest from 27.3.1986 to 31.10.1997 amounting to Rs.42,076/- and in all awarded a total compensation of Rs.84,104/-. 5.The appellant/claimant has received the compensation. However, dissatisfied with the award passed by the Land Acquisition Officer, the appellant/claimant has filed his objection before the said officer, who in turn has referred the same as per Section 18 of the Land Acquisition Act to the Land Acquisition Tribunal. 6.Before the Tribunal, the appellant/claimant has examined himself as C.W.1 and has marked Ex.A.1 sale deed dated 13.3.1996. On the side of the respondent/Referring Officer, R.W.1 has been examined and Exs.B.1 to B.4 have been marked. The Tribunal, on an appreciation of oral and documentary evidence and after analysing the available material on record, has resultantly fixed the compensation of Rs.256/- per square feet for the acquired land and valued the building at Rs.50/- per square feet and has awarded a sum of Rs.9,100/- and also granted a severance of Rs.10,000/- etc. and further has granted a 30% solatium amount and further from the date of issuance of notice dated 09.12.1994 till the award dated 30.10.1997 an interest of 12% has been awarded and also it has granted 9% interest per annum from the date of taking possession from 27.3.1985 to 26.3.1986 and also granted future interest at 15% per annum for the period from 27.3.1986 to 08.12.1994 and also granted interest at 15% from the date 01.11.1997 till date of payment of amount. 7.Before this Court the appellant/claimant has preferred this appeal dissatisfied with the award passed by the Tribunal. 8.The point that arises for determination in this appeal is: Whether the award dated 31.08.2001 passed by the Land Acquisition Tribunal in L.A.O.P.No.3 of 1998 is a correct and a proper one in the eye of law, if so whether the appeal preferred by the appellant praying for enhancement of compensation has to be allowed? 9.Contentions, Discussions and Findings: The learned counsel for the appellant/claimant contends that the Tribunal has committed an error in determining a meagre compensation for the acquired land in issue and further it has not taken into account of the fact that the building in the acquired land is situated in a commercial area and further as per sale deed Ex.A.1 dated 13.3.1996, the market value of the property per square feet is Rs.1628/- and this aspect of the matter has been overlooked by the Tribunal and for putting up a construction of 182 square feet the cost will work out to Rs.90,000/- at the rate of Rs.500/- per square feet and for the demolished portion of the property a compensation of Rs.9,000/- alone has been awarded and in view of the demolition of the frontage of the building, the value of the same has gone down considerably and these aspects of the matter have not been properly appreciated by the Tribunal resulting in miscarriage of justice and therefore, prays for allowing the appeal in the interest of justice. 10.Per contra, the learned Additional Government Pleader appearing for the respondent submits that the award passed by the Tribunal is valid and a reasonable one and further, the Tribunal has taken into account the overall assessment of the facts and circumstances of the case and as such, the same need not be interfered by this Court in appeal. 11.As a matter of fact, the respondent/claimant before the Land Acquisition Officer through a petition dated 18.2.1995 has prayed for a compensation of Rs.5,000/- per square feet and for the building prayed for fixation of Rs.500/- per square feet. Indeed, before the Tribunal, the appellant/ claimant in his claim statement has taken a plea that the acquired portion is the front portion of a larger building and the balance portion lies behind the acquired portion and further that not a single square feet in that area is available for sale and that one tenant by name Bombay Air Fridge is occupying the ground floor and he is dealing with electrical goods like Fridge, Air Cooler, Heaters, T.V. and similar electronic goods and there is an underground floor also for a tenant to store his goods and he has been paying heavy rent for the two stories in the upstairs and there have been several offices occupied by Advocates, Auditors, Engineers and also by other shops and further that the building has lost its frontage and elevation and because of that the appellant/claimant in order to reset the building has spent more than Rs.40,000/- towards repair and that the shops which have been reconstructed have become small and narrow and has lost its importance on account of the acquisition and that the building is at the junction of Bangalore Road, Katpadi Road, C.M.C. Hospital and Arcot Road and by the side old bus stand and Mundy street and every inch of the space is very costly and as it is a commercial place and thickly populated area etc. It appears that the claimant has claimed Rs.1,00,000/- towards severance compensation which includes Rs.40,000/- which has been spent for reconstruction and refacing of the front portion and has also claimed interest at 18% from the date of taking possession i.e. 27.3.1985 and also a solatium of 30%. In short, the appellant/claimant has prayed for interest at 18% per annum from the date of taking possession and till the date of payment. 12.It is to be noted that the market value of the property and to be taken as from the date of the notification issued in respect of the land covered by it. The market value of the land has to be determined as prevailing on the date of notification under Section 4(1) of the Act. In order to fix the market value, diverse factors like the size and shape of the land, its situation, the tenure, the utility to which it is put, its potential value and the rise and fall of demand for the land will have to be taken into account by a Tribunal. Generally speaking, the market value is not capable of ascertainment with an arithmetical accuracy. A little element of conjecture is inevitable, though a Tribunal/Court of law ought to guard against going too far in this direction. The value to be placed, at a given period on a plot of land, which is not in the market or the subject of bargain and sale, but owes a large part of value it possesses to the prospective results of development work to be undertaken thereafter at an uncertain time and at an estimated cost, is not only, in its essence, a question of fact but is one upon which, almost above any other, opinions will differ without its being possible to give irrefragable reasons for any particular conclusion. In judicial valuation or otherwise, there is a scope for inference and inclinations of an opinion which is more or less a conjecture is difficult to reduce to exact reasoning or to explain to others. Determination of valuation involves an inquiry abounding in uncertainties and where there is more than ordinary guesswork, it is unfair to require an exact exposition of the reasons behind the conclusions. Thus, the method for obtaining the market value of an agricultural land will not be the same as the method of obtaining the market value of a building site. In a given case, the Court or a Tribunal must look at the use to which the Proprietor is putting the property, the limitations that attached to that use, and the income that he has been making out of it if he has been making any income and other aspects, according to the facts and circumstances of each case. The Land Acquisition Officer is obliged to assess the market value of the lands after taking into account the nature and the tenure of the land. By the very nature of the problem in determining the valuation of an acquired land or property it must be presumed that a conclusion cannot be reached with a mathematical accuracy and a little speculation is permissible. 13.The best evidence available to establish what a willing purchaser will pay for the land under acquisition will be the evidence of genuine sales, effected about the time of the notification for the acquisition either in respect of the land under acquisition or any portion thereof or of the same of the sale of the lands precisely parallel in all circumstances to the land in issue. In computing the market value for a particular property a sale deed situated in the vicinity and the comparable advantage which it has, provide a rough and ready method of computing the market value. The nearer the acquired land the better for the purpose of comparison the claimant will have to prove the sale is a genuine one. Further, if evidence of sales of a similar land in the locality with similar advantage is available, then the market value can be determined with reference to the price mentioned in the document. A sale transaction, near the date of notification provided a proper criterion for determination of the market price of the land in dispute. 14.C.W.1 in his evidence has deposed that the building in the acquired land is situated near Vellore- Katpadi Road and very near to the acquired land C.M.C. Hospital, Palace Cafe, Mandy Street Junction etc., are situated and his building is a three storied building and in the ground floor there is Bombay Air Fridge and Electrical show room and in the upstairs of the building, Auditors, Advocates are occupying on rental basis and for widening the road the acquired land has been taken over by the Government and totally the Government has taken 182 Sq. ft. and the 182 Sq. ft. building along with the front portion has been demolished and that he has reconstructed the same after expending a sum of Rs.40,000/- and in the acquired place, the price of the land per square feet can go up to Rs.5,000/-. 15.It is the further evidence of C.W.1 that since the front portion has been demolished, the value of the building in the back portion has got demolished and therefore, he prays for a total compensation of Rs.2,00,000/-. 16.R.W.1 in his evidence has deposed that the 4(1) Notification has been issued on 09.12.1994 and that for determining the compensation, the sales statistics 3 years prior to Section 4(1) Notification has been taken into account and that the sales statistics list Xerox copy-Ex.B.1 and that in Serial No.6 T.S. No.1158 bearing Document No.173/1992 dated 23.01.1992 has been taken into account at the rate of Rs.128.40 for determining the land value and for the building made of brick and cement in Survey No.1162/2 the same has been fixed at Rs.819/- and Ex.B.3 is the plan showing the three acquired lands in T.S.Nos.1160, 1161, 1162 and that Ex.B.4 relates to the plan in Survey No.1162. 17.It is not out of place to point out that R.W.1 in his cross examination has specifically stated that he does not know directly about Ex.B.2 document and in Ex.B.1 data land the 6th item viz., T.S. Survey.No.1158 has been taken into account and that the data land is situated in the intersection of Vellore-Katpadi Road in a small lane and from the acquired land what is the distance of data land he cannot say and that the lane is situated near the Palace Cafe and further that the acquired land is abutting the main road and the acquired land is situated just in front of C.M.C. Hospital and the acquired land is in the meeting point of four Roads and that whether the demolished building belongs to the category of Madras terrace or storied building or RC construction building is not aware of the same and totally he does not know about the condition of the building. 18.In Ex.A.1 sale deed Xerox copy dated 13.03.1996 the schedule of the property is mentioned as Ward No.1, T.S.No.1093 Part, Municipal Block No.14, Dharmaraja Koil Street (Katpadi Road), in this vacant site, east of Katpadi west of drainage canal, south of Stock Tax Kuppusamy Mudaliar Shop, north of the shops bearing Door No.40/3 and 40/2 allotted to Duraisamy Mudaliar, father of the vendor etc., and the vacant site sold is measuring east to west 62 1/4 and north to south 25 1/2 measuring a total extent of 1587.37 sq. ft. and the market value of the property as per guideline is mentioned as Rs.5,24,785/- i.e. at Rs.330.60 per sq. ft. and that the C.M.C. Vellore Association is purchasing the property for Rs.26,00,112/- at Rs.1638/- per sq. ft. owing to absolute necessity of opening a gateway on the western side of the hospital in Katpadi road for the convenience of the staff and the patients. 19.By placing reliance on Ex.A.1 xerox copy of sale deed dated 13.3.1996 the appellant/claimant cannot ask for determining of compensation at the rate of Rs.1,638/- per sq. ft. in respect of the acquired land because of the fact that the sale deed has come into existence owing to necessity in providing a way to the patients of C.M.C. hospital. 20.It is the presumption of law that an owner makes the best use of his property in his worldly affairs and certainly he exercises vigilance of a prudent homo-sapien of business (diligens pater familias). For determination of future potentiality of land acquired, nearness of land to the capital city is an important consideration. Where there is a reasonable possibility of the land being put to a more profitable use within a reasonable period, the same cannot be ignored in assessing its value. However, the amount awarded should not exceed the same which a prudent owner in claimant's position would have accepted. 21.One cannot ignore an important fact that the acquired land is situated in prime locality of Vellore and that the data land from the road is situated in a lane and the Tribunal has fixed a compensation of Rs.256/- per sq. ft. The Engineer who has issued Ex.B.2 before the Tribunal has not been examined. At this juncture, it is useful to refer to the evidence of R.W.1 that he has not seen the demolished building and the remaining portion of the building and that he is not aware of the valuation statement of Ex.B.2. A perusal of Ex.B.2 valuation statement (xerox copy) shows that "Bombay Electricals T.S.No.1162 building has been constructed with a Madras terrace roofing 3 courses of flat tiles 3 cooks of line mortar to top and bottom and that the brick work in cement mortar in 1:5 including using country bricks including cost and conveyance of all materials and stacking (at site including labour and curing charges etc., complete) has been mentioned and also the plastering with cement mortar 1:4 12 mm thick including cost and conveyance of all materials and including curing labour charges etc. complete has been valued at 3497/- and the present estimate of the valuation of the building has been assessed at Rs.7,899/- and after providing the depreciation value of the building after 36 years a compensation of Rs.819/- has been arrived at and the land value of 203 sq. ft. has been determined at Rs.25/- per sq. ft. at Rs.5,075/- and in all, a sum of Rs.5,894/- has been assessed. To repudiate Ex.B.2 valuation report, no one Engineer or any other competent person has been examined on the side of the appellant/claimant. After acquisition of the 182 sq. ft. by the Land Acquisition Officer, the remaining portion in the acquired land has lost its value as ever before and accordingly, the appellant/claimant certainly would have suffered and therefore, in this regard the Tribunal has granted Rs.10,000/- as severance compensation. 22.The Data land Survey.No.1158 is not situated at a distance of one kilometre from the acquired land. But the acquired land is in Vellore-Katpadi Road. However, the data land is situated in a lane from the Vellore-Katpadi Road. R.W.1 in his evidence has stated that for the land abutting the road the value of the same is higher. In the instant case, Section 4(1) notice has been issued after three years from the date of data sale deed dated 23.1.1992. 23.In as much as the acquired land and the building standing thereon is situated Vellore-Katpadi Road at Door No.1 near Palace Cafe and further that the C.M.C. Hospital, Palace Cafe and Mandi Street Junction are situated and since the area of the acquired land is a commercial area, the determination of compensation at Rs.256/- per sq. ft. determined by the Tribunal is a proper, prudent and an equitable one and per contra, the compensation of Rs.128.40 per square feet fixed by the Land Acquisition Officer is not fair and just, in the considered opinion of this Court. Added further, in regard to the demolished building the fixation of compensation at Rs.50/- per sq. ft. and fixing the same at Rs.9,100/- and also fixation of Rs.10,000 towards severance compensation and the solatium and interest amounts determined by the Tribunal are all a reasonable and equitable one based on the facts and circumstances of the case and even though, the appellant/claimant has prayed for an enhanced compensation in this appeal, this Court is of the considered view that the available facts and circumstances of the case and the evidence on record, do point out that the award passed by the Tribunal is a reasonable one and in short, the appellant/claimant has not made out a case for enhancement of compensation to the subjective satisfaction of this Court and viewed in this perspective, the appeal preferred by the appellant/claimant has no merits and the same is dismissed in furtherance of substantial cause of justice. 24.In fine, for the foregoing reasons, the Appeal is dismissed. The judgment and decree of the trial Court made in L.A.O.P.No.3 of 1998 dated 31.8.2001 are affirmed by this Court in this appeal. Considering the facts and circumstances of the case, there shall be no order as to costs. sgl To The Sub Judge, Vellore