IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-12-2009 Coram THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA and THE HONOURABLE MR. JUSTICE B. RAJENDRAN Second Appeal Nos. 1003 and 1004 of 2008 Civil Revision Petition Nos. 1766 and 1974 of 2008 Writ Petition No. 12424 and 14814 of 2008 S.A. No. 1003 of 2008 1. The Land Acquisition Officer (Special Tahsildar, Adi Dravidar Welfare) Harur 2. The District Collector Dharmapuri .. Appellants/Respondents Land Acquisition Officer. Versus 1. Radhakrishnan Chetty 2. Loganathan @ Logadasan .. Respondents/Appellants Claimants S.A. No. 1004 of 2008 1. The Land Acquisition Officer (Special Tahsildar, Adi Dravidar Welfare) Harur 2. The District Collector Dharmapuri .. Appellants/Respondents Land Acquisition Officer. Versus Singaram .. Respondent/Appellant Claimant CRP No. 1766 of 2008 1. The Land Acquisition Officer Special Tahsildar, ADW Harur 2. The District Collector Dharmapuri Now District Collector ..Petitioners/Respondent/ Krishnagiri Respondents https://hcservices.ecourts.gov.in/hcservices/ Versus 1. Radhakrishnan Chetty 2. Loganathan @ Logadasan .. Respondents/Appellants Petitioners CRP No. 1974 of 2008 1. The Land Acquisition Officer Special Tahsildar, ADW Harur 2. The District Collector Dharmapuri Now District Collector Krishnagiri ..Petitioners/Respondents Respondents Versus Singaram ..Respondent/Appellant/ Petitioner WP No. 12424 of 2008 and W.P.No.14814/08 1. Radhakrishna Chetty 2. Loganathan @ Logadasan ..Petitioners in W.P.No. 12424 of 2008 A. Singaram Petitioner in W.P.No.14814 of 2008 ..Petitioner in W.P.No. 14814 of 2008 Versus 1. The State of Tamil Nadu rep. by its Secretary to Government Adi Dravida Welfare and Schedule Tribes Welfare Department (Ni.A.2) St. George Fort, Chennai 2. The Land Acquisition Officer cum The Special Tahsildar Adi Dravida Welfare Department Harur, Krishnagiri 3. The District Collector Dharmapuri Now District Collector Krishnagiri .. Respondents in both the petitions S.A. No.1003 of 2008: Appeal under Section 13 of the Tamil Nadu Acquisition of Land for ADW Schemes Act 31/78 read with Section 100 of CPC against the Judgment and Decree made in C.M.A. (L.A.) No. 1 of 2002 dated 08.03.2004 on the file of the Principal Sub Court, Krishnagiri modifying the Award No.5/97-98 dated 23.12.1997 passed by The Special Tahsildar cum Land Acquisition Officer, Harur. https://hcservices.ecourts.gov.in/hcservices/ S.A. No.1004 of 2008: Appeal under Section 13 of the Tamil Nadu Acquisition of Land for ADW Schemes Act 31/78 read with Section 100 of CPC against the Judgment and Decree made in C.M.A. (L.A.) No. 2 of 2002 dated 08.03.2004 on the file of the Principal Sub Court, Krishnagiri modifying the Award No.3/97-98 dated 15.10.1997 passed by The Land Acquisition Officer (Special Tahsildar, ADW) Harur. CRP No. 1766 of 2008: Petition filed under Section 115 of CPC against the decreetal order dated 23.04.2008 made in REP No. 73 of 2005 in CMA No. 1 of 2002 on the file of Sub Court, Krishnagiri CRP No. 1974 of 2008: Petition filed under Section 115 of CPC against the decreetal order dated 23.04.2008 made in REP No. 74 of 2005 in CMA No. 1 of 2002 on the file of Sub Court, Krishnagiri WP No. 12424 of 2008: Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the impugned G.O. dated 03.04.2008 in A.AA.(3p) No.19 Adi Dravida and Schedule Tribes Welfare Department (Ni.A.2) issued by the first respondent and quash the same and consequently direct the respondents to disburse the amount as awarded to them under Award dated 23.12.1997 in No.5/1997-1998 as confirmed by Judgment and Decree dated 08.03.2004 in CMA (LA) 1/2002 on the file of the learned Sub Judge, Krishnagiri. WP No. 14814 of 2008: Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the impugned G.O. dated 06.06.2008 in G.O.(4p) No.2 Adi Dravida and Schedule Tribes Welfare Department (Ni.A.2) and quash the same and consequently direct the respondents to disburse the amount as awarded to them under Award dated 15.10.1997 in No.3/1997-1998 as confirmed by Judgment and Decree dated 08.03.2004 in CMA (LA) 2/2002 on the file of the learned Sub Judge, Krishnagiri. S.A. No. 1003 & 1004 of 2008 For Appellants : Mr. S. Veeraraghavan Additional Advocate General assisted by Mrs. Bhavani Subbarayan Special Government Pleader For Respondents : Mr. V.R. Shanmuganathan CRP Nos. 1766 & 1974 of 2008 For Petitioners : Mr. Veeraraghavan Additional Advocate General assisted by Mrs. Bhavani Subbarayan Special Government Pleader For Respondents : Mr. V.R. Shanmuganathan WP Nos. 12424 and 14814 of 2008: https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr. V.R. Shanmuganathan For Respondents : Mr. Veeraraghavan Additional Advocate General assisted by Mrs. Bhavani Subbarayan Special Government Pleader COMMON JUDGMENT B. RAJENDRAN, J Second Appeal Nos. 1003 and 1004 of 2008 arise out of the Judgment and Decree made in C.M.A. (L.A.) Nos. 1 and 2 of 2002 dated 08.03.2004 on the file of the Principal Sub Court, Krishnagiri. 2. CRP Nos. 1766 and 1974 of 2008 arise out of the order dated 23.04.2008 made in REP No. 73 and 74 of 2005 in CMA Nos. 1 and 2 of 2002 on the file of Sub Court, Krishnagiri. 3. Writ Petition Nos. 12424 and 14814 of 2008 have been filed challenging the orders passed by the Government on 03.04.2008 and 06.06.2008 withdrawing the very acquisition proceeding itself. 4. Since all the matters are inter-connected and relate to the very same acquisition proceedings, by consent of both sides, all the cases are taken up together and disposed of by this common judgment. 5. We have heard the counsel for both sides and perused the material records placed. At the outset, the learned counsel for both sides fairly submitted that subsequent to the filing of the Writ Petitions, the Government passed G.O. (3P) No.15 dated 01.09.2009 cancelling the earlier two Government Orders dated 03.04.2008 and 06.06.2008, which are challenged in the above writ petitions. Therefore, the relief sought for in the writ petitions have become infructuous and hence, the writ petitions are dismissed as infructuous. No costs. 6. As far as the Revision Petitions are concerned, the Reference Court passed orders in C.M.A. Nos. 1 and 2 of 2002, filed by the claimants, fixing the valuation of the land at Rs.47/- per sq.ft., in respect of the lands acquired at Sunnalampatty Village and Rs.13/- per sq.ft., in respect of the lands acquired at Thandiappanoor Village. Thereafter, the claimants have filed R.E.P. No.73 of 2005 in C.M.A. No. 1 of 2002 and R.E.P. No. 74 of 2005 in C.M.A. No. 2 of 2002 to execute the decrees. The Executing Court has also passed orders of attachment. Challenging the same, the present Revision Petitions have been filed by the Government. 7. At the time of admission of the Revision Petitions, this Court granted interim stay on 08.05.2008 and the same was in force till 25.06.2008 and thereafter, the interim stay was not extended. On 25.06.2008, both the Civil Revision Petitions were ordered to be posted along with the Second Apeals. According to the claimants, even before the granting of interim stay, orders for attachment was passed and effected. Therefore the issue involved in the Civil https://hcservices.ecourts.gov.in/hcservices/ Revisions can be decided based on the outcome of the Second Appeal Nos. 1003 and 1004 of 2008. 8. The following common substantial questions of law arises for determination in the above second appeals. i) Whether the reliance placed by the Court below on Ex.A1 is not in contravention of judgment of the Apex Court reported in AIR 1995 (5) SCC 426 where the Apex Court has prescribed the guideline that small extent of land cannot be relied upon for determination of compensation for large extent of land. ii) Whether the court below had erred in not making necessary deduction towards development charges especially in view of law laid down by the Apex Court in the judgment reported in 2003 (12) SCC 334 where under the Apex Court prescribed the percentage of deduction at 53%? iii) Whether the court below had erred in not appreciating the provision of Section 8 of the Act 31/78 which clearly stipulate the nature and classification of land under acquisition as on date of 4 (1) notification is the criteria for fixation of market value and not the probable usage of the said land? iv) Whether the court below had failed to appreciate that the respondent/claimant ought to have paid advolerum court fee as prescribed under Section 51 of the Tamil Nadu Court Fee and Suit Valuation Act, 1955 and not a nominal fee under Section 3 (1) (B) of Schedule II of the said Act. 9. As far as S.A. No. 1003 of 2008 is concerned, the Government proposed to acquire the lands in Sunnalampatty Village, Uthankarai Taluk by invoking the provisions of Harijan Welfare Act, 1978 for the purpose of allotting housing sites to Adi Dravidas. . Accordingly, the notification under Section 4 (1) of the Act was issued on 07.11.1997 and the enquiry under Section 5(1) of the Act was conducted on 02.12.1997 for acquisition of the lands of the first respondent namely Radhakrishnan Chetty in Sunnalampatty Village in S.No. 16/1 to an extent of 0.89.0 Hectares and the lands of the second respondent in the very same Sunnalampatty Village in S.No.22/1 to an extent of 2.09.0 Hectares. After complying with the formalities, the Land Acquisition Officer passed an Award in No.5/1997-1998 determining the value of the acquired lands at Rs.1,23,500/- per hectare or Rs.50,000/- per acre. 10. As per the award, the Land Acquisition Officer has taken into consideration data sale statistics in respect of 151 sale deeds in and around the area, which were registered three years prior to the issuance of notification under Section 4 (1) of the Act i.e., between 06.10.1994 to 07.11.1997, considered the value reflected therein, rejected 136 sale deeds on the basis of quality and https://hcservices.ecourts.gov.in/hcservices/ location, rejected 11 sale deeds on the ground that they were sold as house sites and also situate more than 2 kilometers away from the acquired lands. Ultimately, taking into consideration the sale deed under Secial No.131, which is in respect of lands comprised in Survey No. 21/2 having an extent of 0.06. acres and it was sold for a sum of Rs.30,000/- by means of a sale deed dated 02.02.1995 registered as document No. 173, the Land Acquisition Officer fixed the value for the acquired lands at Rs.50,000/- per acre or Rs.1,23,500/- per hectare together with 15% solatium. Ultimately, the first respondent namely Radhakrishnan was given a compensation of Rs.1,26,402/- and the second respondent Loganathan @ Logadhasan was given a compensation of Rs.2,96,832/- for having acquired their land to a total extent of 7.36 acres. Aggrieved against the meager compensation, the respondents herein have filed C.M.A. (LA) Nos. 1 of 2002 before the Principal Subordinate Judge, Krishnagiri. 11. Before the Appellate Court, the claimants contended that the acquired lands are situate within the Uthangarai Town Panchayat 6th ward, very near to Sri Vidya Mandir School near Salem-Vellore Road, the entire area is a fast developing one and it has got the potential for rapid improvement in future. Furthermore, the acquired lands are situate just 500 meters away from the main bus stand. The area in which the acquired lands are situate is having all the amenities such as roads, drainage, water and electricity. According to the claimants, the sale price of the lands in the area ranges from Rs.50/- to Rs.60/- per sq.ft., besides that the lands are sold as housing plots. Therefore, the Land Acquisition Officer ought not to have arrived at the value of the acquired lands on hectare or acre basis . 12. Before the appellate Court, the appellants have taken a stand that acquired lands are only manavari punja lands, it is not a cultivable land, the income that would fetch from the acquired lands is less than Rs.2000/- per year. Contra, the data lands are situate just 50 meters away from the acquired lands. Therefore, the claim of the claimants to treat the acquired lands as housing plots and to award a sum of Rs.50 to Rs.60/- per square feet is baseless and the acquired lands cannot be equated with that of the housing sites. 13. Before the Appellate Court, the claimants herein have produced three sale deeds, which were marked as Ex.C2 dated 16.07.1997, Ex.C3 dated 27.03.1997 and Ex.C4 dated 26.02.1997 in which the lands are sold as house sites at the rate of Rs.53/-, Rs.47/- and Rs.45/- per square feet respectively. According to the claimants, in asmuch as the above sale deeds are much prior to the notification issued under Section 4 (1) of the Land Acquisition Act and that too they were sold on square feet basis, they were rightly considered by the Appellate Court and the value has been arrived at. In such circumstance, the value arrived at by the court below is valid and proper. 14. The learned Additional Advocate General appearing for the appellants submitted that the court below simply accepted the documents produced by the claimants and fixed the value at Rs.47/- https://hcservices.ecourts.gov.in/hcservices/ per square feet without assigning any valid reasons and also without giving any deduction. Further, the court below has not given any reasons for arriving at the value at Rs.47/- per square feet. The court below failed to take into consideration that the lands acquired from the claimants are vast lands to an extent of 7.36 acres and they are admittedly classified as Manavari Punja lands. It is common knowledge that when government acquires such huge extent of land for the purpose of providing house sites to houseless persons, definitely huge expenditure would be incurred for providing roads, drainage, water, electricity and other amenities. The court below, without taking into consideration these aspects, which requires deduction to be given, simply arrived at the value at Rs.47/- per square feet which is legally not sustainable. Even otherwise, the value cannot be compared with that of the smaller extent of land, that too when they were sold as house sites. The court below fixed the value based on the documents produced by the claimants where under smaller extent of lands have been sold. Furthermore, there is no basis at all for the court below to fix the value at such exorbitant rate and enhancing it from Rs.50,000/- per acre to Rs.47/- per square feet, which would come to Rs.22,08,100/- per acre which is unimaginable. As per the evidence of the claimants before the Court below, there are house sites near the acquired lands and therefore the properties are being sold at Rs.50/- to Rs.60/- per sq.ft., especially when the acquired lands are situate within 500 meters away from the bus stand, which is factually incorrect. It was further contended by the claimants that even though the acquired lands are agricultural lands, they have the potential for conversion into house sites and therefore prayed for enhanced compensation. Contra, the learned Additional Advocate General stated that the acquired lands are Manavari Punja lands even as per the evidence of the claimants, therefore, the value fixed by the court below is excessive. 15. We have carefully considered the submission of the counsel for both sides. In the cross-examination of PW1, Radhakrishnan, he would categorically admit that "tPl;Lkid nghltpy;iy/ tptrha kidahfnt ,Ue;jJ/ epyj;jpy; fliyfha; Kjypait gaph;bra;J tUlj;jpw;F U:/3000-?f;F nky; tUk;/ nkl;L epyk; vd;gjhy; tPl;L kidfshf ghtpf;ff;TlhJ vd;W brhd;dhy; rhpay;y/ v';fs; epyk; Mh;$pjk; bra;a[k;nghJ gf;fj;J epyj;jpy; jhd; khjphp epyk; vLj;jhh;fs;/ " Therefore, the claimant himself admitted that the data land is situate adjoining to the acquired lands and that the acquired lands are classified as Manavari Punja lands. It was further admitted in the cross- examination that even after cultivation, he may get only Rs.3,000/- per acre per year from the acquired lands. Whereas, in the evidence of RW1, the Officer examined on behalf of the appellant, it was categorically staed that the distance between the acquired lands and the bus stand is more than 1 kilo meter. 16. Now we consider the documents produced by the claimants. Under Ex.C2. Sale deed dated 16.07.1997 the lands to an extent of 1533 sq.ft., in Survey No.34/1A was sold for Rs.82,500/-. Under Ex.C3, sale deed dated 27.03.1997, the lands to an extent of 1690 sq.ft., in Survey No.42/2 has been sold for Rs.80,000/-. Under Ex.C4, sale deed dated 26.02.1997, the lands to an extgent of 1188 sq.ft., in S.No.45/1B has been sold for a sum of Rs.49,500/-. On consideration of the above documents, it would clearly prove that the https://hcservices.ecourts.gov.in/hcservices/ lands under Exs. C2, C3 and C4 were sold as house sites and the extent of the area conveyed is smaller. Therefore, the above said sale deeds cannot be compared for arriving at the correct value for the acquired lands. Moreover, the acquired lands are admittedly Manavari Punja lands and therefore, Exs. C2 to C4, under which the lands were sold as house sites, cannot be taken for comparision with that of the acquired lands. Above all, the court below has not given necessary deductions . The reasons for not giving any deduction or how the value of Rs.47/- per sq.ft., for the acquired lands has been arrived at has not been mentioned in the impugned judgment of the court below. As stated supra, after acquisition of the lands, the Government has to incur expenditures for providing roads, drainage, electricity, water amenity and public space for convenient enjoyment of the property by the people for whom the housing plots are to be allotted. In this connection, necessarily, deductions have to be given, but the Court below mechanically arrived at the sum of Rs.47/- per sq.ft., for the acquired lands without any basis. 17. The Honourable Supreme Court in the decision reported in (Special Land Acquisition Officer, Bangalore vs. V.T. Velu and others) (1996) 2 SCC 538 held that for determining the compensation of acquisition of larger extent of lands (1 acres and 6 gunthas), awarding compensation at square foot basis is not proper. Further, when agricultural lands are converted, definitely deductions must be given. In that case, the Honourable Supreme Court granted 53% deduction towards development charges. In Para No.5 of the said judgment, it was held as follows:- "5. ....Determination of market value on square foot basis would be arbitrary and is an irrational principle of law. It is now settled by a series of judgments of this Court that determination of the compensation on square feet basis is a wrong principle of law, particularly when large extents of lands are sought tobe acquired for public purpose. Therefore, the High Court has proceeded on a wrong premises to determine the compensation on the basis of square foot." 18. The Honourable Supreme Court in the decision reported in (K.S. Shivadevamma and others vs. Assistant Commissioner and Land Acquisition Officer and another) 1996 2 SCC 62 held that when the lands are situated in a developing area, but no development has taken place as on the notification under Section 4 (1) of the Act in the acquired lands or in that area, even though the land possessed of the potential value for building purpose, but not capable of putting it into immediarte use for building purpose, definitely, deductions for development charges depends upon the development needed in each case. In that case, the Honourable Supreme Court categorically held that deduction of 53% under the building Rules and further deduction towards development charges at 33 ½ % ordered by the High Court are found to be correct. In Para No.8 and 10 of the said judgment, it was held as follows:- "8. Shri. Javali contended that since acquisition was only for the purpose of bus https://hcservices.ecourts.gov.in/hcservices/ stand, the High Court has committed grievous error in deducting 53% for developmental charges. The High Court has noted that if the lands are to be used for building purposes necessarily under the Building Rules the land owner has to leave out 53% area for roads, open space and other public amenities. In addition, the owner is required to expend money for development andconstruction of the roads, water supply mains and electrical lines etc., and that this requires considerable expansion and improvement. If the compensation is determined on the basis of yardage, theowner cannot put the entire land to use unless he leaves out the land for the above purposes and also expend money for developmental purpose. Merely because land is acquired for establishment of bus stand, that use is irrelevant in determining market value. 10. It is then contended that 53% is not automatic but depends upon the nature of the development and the stage of development. We are inclined to agree with the learned counsel that the extent of deduction depends upon development need in each case. Under the Building Rules 53% of land is required to be left out. This Court has laid as a general rule that for laying the roads and other amenities 33-1/3% is required to be deducted. Where the development has already taken place, appropriate deduction needs tobe made. In this case, we do not find any development had taken place as on that date. When we are determining compensation under Section 23 (1), as on the date of notification under Section 4 (1), we have to consider the situation of the land development, if already made, and other relevant facts as on that date. No doubt, the land possessed potential value, but no development had taken place as on the date. In view of the obligation on the part of the owner to hand over the land to the City Improvement Trust for roads and for other amenities and his requirement to expend money for laying the roads, water supply mains, electricity etc., the deduction of 53% and further deduction towards development charges @ 33-1/3% as ordered by the High Court was not illegal. 19. The Honourable Supreme Court in the decision reported in (Basavva (Smt) and others vs. Spl. Land Acquisition Officer and others) (1996) 9 SCC 640 held that if the value is fixed on the basis of sale deed of smaller extent of land situated at a distance of more than one kilometer, deduction between 33 to 53% from the market value for development charges and additional deduction of 12% given by the https://hcservices.ecourts.gov.in/hcservices/ High Court, totalling 65% was held to be proper and correct. The said Judgment was rendered following the decision rendered in (K. Vasundara Devi vs. Revenue Divisional Officer (LA) (1995) 5 SCC 426. 20. A Division Bench of this Court in the decision reported in (Special Tahsildar, Neighbourhood Scheme, Erode, Erode District vs. Jaganathan Gounder and another) 2009 5 MLJ 2, after referring to various decisions of the Honourable Supreme Court as well as this Honourable Court held that if the value of the acquired lands has been arrived at without giving any deduction towards development charges, 40% of deduction on the value of the acquired lands can be given. Further, if the value has been arrived at based on the smaller extent of lands, a further deduction of 20% can be given, thus, totalling 60% deduction can be given. In Para Nos. 27, 28, 35, 36, 37 and 38, it was held as follows:- "27. Even though as per Exhibit C-8 dated 08.02.1991, the property was sold at the rate of Rs.30/- per sq.ft., the said transaction relates to a smaller extent. However as per the subject notification larger extent of property was acquired and as such the value as shown in Exhibit C-8 cannot be taken in its entirety for arriving at the market value. The Housing Board has to develop the property for housing purposes. It is in evidence that the acquired property was only an agricultural property and it has no potential as a housing site. No evidence was placed on the side of the claimants to show that they have been getting substantial income from the property or it has got high potential as a house-site. Therefore, we are of the view that necessary deduction has to be made towards development charges. Deduction Towards Development charges: 28. While fixing the market value, it is permissible for the Land Acquisition Officer to