IN THE HIGH COURT OF JUDICATURE AT MADRAS Date : 10.12.2009 THE HONOURABLE Mrs.JUSTICE R.BANUMATHI S.A.No.892 of 2007 The Special Tahsildar Adi Dravidar Welfare Sathiyamangalam ... Appellant / Respondent/ Land Acquisition Officer Vs. 1.Kandasamy 2.Chandra 3.Thangarasu 4.Manickam ... Respondents/ Appellants/ Claimants Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree made in C.M.A.No.23 of 1977 dated 11.07.2006 on the file of Principal Sub Court, Gobichettipalayam modifying the award made in Award No.9/1996-1997 dated 13.3.1997 passed by the Special Tahsildar. (Adi Dravidar Welfare). Sathyamangalam. For Appellant : Ms. Bhavani Subbarayan Special Government Pleader (CS) For Respondents: Mr.R.T.Doraisami JUDGMENT This Second Appeal arises out of Judgment in C.M.A.No.23 of 1997 dated 11.07.2006 on the file of Principal Sub Court, Gobichettipalayam enhancing market value of the acquired land from Rs.19,044/- per acre to Rs.1,25,000/- per acre. 2.Brief facts which led to the filing of Second Appeal are that an extent of 1.41.0 Hectare of land situate in S.No.18/4c and an extent of 0.45.05 Hectare of land situate in New S.No.18/5A, and 0.45.5 Hectare of land situate in new Survey No.18/5B and thus totalling to 1.30.5 Hectare = 3.22 acres of land at Kondayampalayam Village was acquired for the purpose of providing house sites to homeless Adi Dravidars in Thuraiyampalayam Village under the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Acquisition of Land for Harijan Welfare Schemes Act 1978 (hereinafter shortly called as Act 31/78), under the provision of the Act 31/78 and awarded compensation of Rs.70,520/- for the extent of 3.22 acres acquired. Section 4(1) notification was published on 02.03.1996. After due adherence to all statutory provisions under the Act 31/78 passed an award in Award No.9/1996-1997, dated 18.3.1997. In the said award, the market value for the land acquired was fixed at Rs.19,044/- per acre. In arriving at the said market value, the Competent Authority had taken the data sale deed Ex.R2 dated 28.8.1995 registered as Document No.729/95 under which one acre of land was sold for Rs.19,044/-. 3.Being aggrieved by the fixation of market value at Rs.19,044/-, respondent filed an appeal in C.M.A.No.23 of 1997. Lower Court has taken Ex.A1 sale deed (dt.29.3.1995) for 1388 Sq.ft sold at Rs.22,746/- as document for comparison. Pointing out that location of acquired land is near to schools and shops, Court enhanced the compensation to Rs.1,25,000/- per acre. For the total extent of 3.22 acres, Court awarded enhanced compensation of Rs.4,02,500/- and 15% solatium was awarded plus interest at the rate of 6%. 4.Being aggrieved by fixation of market value at Rs.1,25,000/- per acre, government preferred this Second Appeal. The following substantial questions of law arise for consideration:- "A. Whether the court below had erred in not appreciating the provision of Sec.8 of the Act 31/78 wherein it is made clear that in the fixation of determining the amount of compensation, the purpose for which the land acquired shall not be a criteria and nature of land on the date of 4(1) notification shall be a criteria for determining the compensation. B.Whether the Court below had erred in not deducting 1/3rd amount of the market value towards developmental charges are held by the Apex Court reported in 1990 SC 1028, 1998 (2) SCC 150 and 1995 (5) SCC 426 and 2003 (12) SCC 334?" 5.The learned Additional Government Pleader Ms.Bhavani Subbarayan contended that based on comparable sale deed for land of similar nature under Ex.R2, Land Acquisition Officer fixed the market value at Rs.19,044/- per acre. While so, Court below erred in placing reliance upon Ex.A1 sale deed (dt.29.3.1995), wherein the extent of land sold was only 1338 sq.ft, whereas the extent of land acquired is more than one acre. It was further argued that as per the various decisions in (2003) 12 Supreme Court Cases 334 [Land Acquisition Officer, Kammarapally Village, A.P Vs. Nookala Rajamallu and Others] and other decisions, Court below ought to https://hcservices.ecourts.gov.in/hcservices/ have deducted 1/3rd amount of the market value towards development charges and the market value fixed at Rs.1,25,000/- per acre is on the higher side. 6.The learned counsel for respondent /claimant submitted that Court below rightly taken Ex.A1 sale deed (dt.29.3.1995) for fixing the market value of the lands and having regard to the location of the acquired lands, market value fixed at Rs.1,25,000/- cannot be said to be on the higher side. The learned counsel would further submit that since surrounding area of the acquired land has already been developed, no deduction need be made. 7. An extent of 1.30.5H was acquired. Based upon Serial No.2 in Ex.R2, sale deed (dt.28.8.1995), Acquisition Officer fixed the market value at Rs.19,044/- per acre. In Ex.R2, Serial No.7 relates to sale deed dated 05.03.1996 under which 0.40 acre in Survey Nos.18/4c, 18/5A and 18/5B was sold by Senniappan and others to one Durai for Rs.50,000/-. The market value of the land is Rs.1,25,000/- per acre. By perusal of Ex.R2, it is seen that Serial No.7 sale deed relating to Survey Nos.18/4c, 18/5A and 18/5B was sold for reasonable price as seen from the remarks column "epahakhd fpuak;. tpiy kjpg;gPLf; fhiyahf njh;e;bjLf;fg;gLfpwJ". As against serial No.7, even though it is stated that it is a reasonable sale, sale price and can be taken as data sale deed, Land Acquisition Officer has not so taken the said document as data sale deed. Ex.R2 – certificate prepared by Special Revenue Inspector contains list of sale deeds between 01.01.1995 to 15.03.1996. Serial No.2 was taken as data sale deed. Ex.R2 does not contain the sale deed dated 05.03.1996. 8.Determination of market value of acquired land depends upon the location of lands and potentiality for development has to be taken into consideration. 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. The question whether the 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. 9.Considering the question of market value, in (2009) 9 SCC 427 [Bhagat Singh v. Union of India], the Supreme Court held as under:- "8. Determination of the market value of the land may also depend upon the facts and circumstances of each case, amongst them, however, would be the price of land, amount of consideration mentioned in a deed of sale executed in respect of similarly situated land near about the date of issuance of notification under Section 4 (1) of the Act; https://hcservices.ecourts.gov.in/hcservices/ in the absence of any such exemplars the market value can be determined on yield basis or in case of an orchard on the basis of number of fruit-bearing trees. 9. It is also well settled that for price determination purposes, the courts would be well advised to consider the positive and negative factors, as has been laid down by this Court in Viluben Jhalejar Contractor v. State of Gujarat (2005) 4 SCC 789, namely: "Positive factors Negative factors (i) smallness of size (i) largeness of area (ii) proximity to a road (ii) situation in the interior at a distance 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 acquisition (vi) some special disadvantageous 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." 10. This Court in Union of India v. Pramod Gupta (2005) 12 SCC 1 on the question of determination of market value opined: "24. While determining the amount of compensation payable in respect of the lands acquired by the State, the market value therefor indisputably has to be ascertained. There exist different modes therefor. 25. The best method, as is well known, would be the amount which a willing purchaser would pay to the owner of the land. In absence of any direct evidence, the court, however, may take recourse to various other known methods. Evidences admissible therefor inter alia would be judgments and awards passed in respect of acquisitions of lands made in the same village and/or neighbouring villages. Such a judgment and award, in the absence of any other evidence like the deed of sale, report of the expert and other relevant evidence would https://hcservices.ecourts.gov.in/hcservices/ have only evidentiary value. 26.Therefore, the contention that as the Union of India was a party to the said awards would not by itself be a ground to invoke the principles of res judicata and/or estoppel. Despite such awards it may be open to the Union of India to question the entitlement of the respondent claimants to the amount of compensation and/or the statutory limitations in respect thereof. It would also be open to it to raise other contentions relying on or on the basis of other materials brought on record. It was also open to the appellant to contend that the lands under acquisition are not similar to the lands in respect whereof judgments have been delivered. The area of the land, the nature thereof, advantages and disadvantages occurring therein amongst others would be relevant factors for determining the actual market value of the property although such judgments/awards, if duly brought on record, as stated hereinbefore, would be admissible in evidence." 10.In the light of aforementioned principles let us consider the facts of the present case. Acquired land is situated near the main road leading to Bhavani, Erode and Coimbatore. At about 1 km from acquired land Kallipatti village is situated ; at about 100 feet Kondayampalam is situated. Near the acquired lands, houses, shops, schools and markets are situated. Ex.A2 is the sale deed (dt.29.1.1997) executed by one Saroja in favour of Arumugam and his wife Easwari selling 1338 sq.ft for Rs.28,746/-. One Uthamaputhiran signed as witness to the sale document was examined as CW2. In his evidence, CW2 has spoken about the developments around the acquired lands. Since the acquired land is in the midst of developed area, Court has rightly taken Serial No.7 sale deed (dt.05.03.1996) in Ex.A3 for fixing the market value at Rs.1,25,000/- per acre. The market value fixed cannot be said to be on the higher side. 11.The learned Additional Government Pleader contended that as per Ex.A2, 1338 sq.ft was sold for Rs.22,746/-. It was therefore contended that when large tracks are acquired, the transaction in respect of small extent of properties do not offer a proper guideline. It was therefore contended that when transaction in respect of small properties are taken into account for determining the market value of a large property, a suitable deduction are to be made. 12.The principle that evidence of market value on sales of small, developed plots is not a safe guide in valuing large extent https://hcservices.ecourts.gov.in/hcservices/ of land has to be understood in its proper prospective. In applying the principle it is necessary to consider all the facts. Observing that it is not in every case deduction is to be allowed in (1991) 4 SCC 506 [Bhagwathula V.Spl.Tahsildar and Land Acquisition Officer] Supreme Court has held as under:- "The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land. If the larger tract of land because of advantageous position is capable of being used for the purpose for which the small plots are used and is also situated in a developed area with little or no requirement of further development, The principle of deduction of the value for purpose of comparison is not warranted." In 2003 10 SCC 525 [Tejumal Bhojwani v. State of U.P], Supreme Court has held as under:- "It is true that the deduction for development charges ought to be adequately provided for, but it varies from place to place, area to area and amount of developments which are required to be carried out and thus there cannot be any fixed amount of deduction towards development charges." 13.Where neighbouring areas are already developed and houses have been constructed and the acquired land has potential value for being used as building sites, no deduction need be made. As discussed earlier, in the present case, the acquired land is situated on the main road. The area around the acquired land is developed and situated within 100 feet of Kondayampalam. Since the acquired area is already in the midst of developed area, applying the ratio of the above decisions, no deduction need be made. That apart the award was passed in 1997. For all these years, the claimant had benefit of enhanced compensation. As per the interim order claimant could only withdraw 50% of the enhanced compensation. Having regard to the various factors, at this distant point of time, this Court is not inclined in making deduction for development charges. 14.Under Section 7 (2) Solatium to be awarded at 15% Solatium ordered by the Court is in accordance with Section 7(2). Under Section 12 of Harijan Welfare Schemes Act, 6% p.a is the prescribed rate of interest. Learned Subordinate Judge awarded interest at 6% p.a on the enhanced compensation amount. Based upon Serial No.42 sale deed (dt.12.06.2000)-Ex.R2 and having regard to the potentiality of the acquired lands, learned Principal Subordinate Judge rightly enhanced the compensation of Rs.19,044/- to https://hcservices.ecourts.gov.in/hcservices/ Rs.1,25,000/- per acre. No justifiable grounds are made out in the Second Appeals warranting interference. 14.As per order in M.P.No.1 of 2007, appellant was directed to deposit 50% of the amount awarded with accrued interest. Out of the said amount, respondents were also permitted to withdraw Rs.2,50,000/-. 15.In the result, the judgment and decree made in C.M.A.No.23 of 1977 dated 11.07.2006 on the file of Principal Sub Court, Gobichettipalayam enhancing the compensation and award of interest and solatium are confirmed and the Second Appeal is dismissed. Claimants/ respondents are entitled to withdraw the entire amount deposited to the credit of C.M.A.No.23 of 1997 on the file of Principal Sub Court, Gobichettipalayam immediately on receipt of copy of this judgment. Balance amount payable has to be deposited by the Special Tahsildar, Adi Dravidar Welfare Sathiyamangalam within a period of twelve weeks from the date of receipt of copy of this judgment. On such deposit of balance amount, the claimants are entitled to withdraw the balance amount so deposited. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. gpa To 1.The Principal Sub Court, Gobichettipalayam 2.District Munsif Court, Sirkali 3. The Special Tahsildar Adi Dravidar Welfare Sathiyamangalam 4. The Section Officer VR Section, High Court, Madras 1 cc to Mr.R.T. Doraisamy, Advocate, SR. 67832 1 cc to Special Government Pleader (CS) SR. 67722 S.A.No.892 of 2007 PVR (CO) kk 7/1 https://hcservices.ecourts.gov.in/hcservices/