IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 13.08.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.582 of 1994 1.The Union of India, rep.by the Secretary to Government, Revenue Department, Pondicherry. 2.Deputy Collector(LA), Pondicherry. ... Appellants/Respondents vs. D.Ramapathira Reddiar ... Respondent /Petitioner Appeal against the judgement and decree of the learned Principal District Judge, Pondicherry, passed in LAOP No.7 of 1993 dated 22.2.1994. For appellant : Mr.R.Natarajan For respondents : Mr.U.Karunakaran JUDGMENT The appeal is focussed as against the judgement and decree dated 22.2.1994 in LAOP No.7 of 1993 passed by the learned Principal District Judge, Pondicherry. For the sake of convenience, the parties are referred to here under according to their litigative status before the trial Court. 2. Heard the learned counsel appearing for the parties. 3. The nut-shell facts, which are absolutely necessary and germane for the disposal of these appeals would run thus: The Government vide Notification dated 22.1.1987 made under Section 4 (1) of the Land Acquisition Act, intended to acquire the land measuring an extent of 46 ares in R.S.No.54/3-B in Karaiyampathoor (Sooramangalam Village) for the purpose of construction of a Government Dispensary. After complying with the procedures, the Land Acquisition Officer acquired the land and passed an award dated 8.12.88 assessing the compensation in a sum of Rs.269/- per are. 4. Being aggrieved by such awarding of the compensation, the land owner got the matter referred to the Sub Court under Section 18 https://hcservices.ecourts.gov.in/hcservices/ of the Land Acquisition Act . 5. During enquiry, before the trial Court the plaintiff examined himself as P.W.1 and Ex.A1 and Ex.A5 were marked. On the side of the respondent, the land Acquisition Officer one G.Ragesh Chandra was examined as RW1 and Ex.B1 to B8 were marked on the side of the respondent. Ultimately the Sub Court enhanced the compensation from Rs.269/- per are to Rs.2802/- per are. 6. Being dissatisfied with such awarding of enhancement, the Land Acquisition Officer has preferred this appeal on various grounds, the pith and marrow of them would run thus: (a) The judgement and decree passed by the reference Court is against law and weight of evidence; (b) the Sub Court erroneously placed reliance on Ex.A2 -the Photocopy of the Award in LAOP.No.63/83; (c) the Sub Court wrongly took into account Ex.A5-the sale particulars, which emerged long after the issuance of Section 4(1) Notification; 7. The point for consideration is as to whether the Sub Court was justified in enhancing the compensation from Rs.269/- per are to Rs.2802/- per are? 8. The learned Government Advocate would reiterate the grounds of appeal and contend that there is disproportionate enhancement, which cannot be countenanced as correct and furthermore, the reference Court has not even deducted any amount towards development charges. Whereas, the learned counsel for the land owner would submit that the evidence on record and more specifically the deposition of the Land Acquisition Officer would exemplify that the land acquired is at the same level as that of the nearby main road and no expenditure would be required to make the land fit for constructing the hospital. It is also the contention of the land owner that the area is a well developed one in all aspects. 9. No doubt the evidence on record would demonstrate that the land acquired is not in a low lying one and the vicinity is a developed one, over which there is no controversy. The core question arises as to whether any amount has to be deducted towards development charges. Before probing into the question of deducting amounts towards development charges, it has to be seen as to that whether the reference Court was justified in placing reliance on Ex.A4 and Ex.A5-the copies of the notices issued by the Land Acquisition Officer, informing the compensation assessed relating to some other land in the same village. https://hcservices.ecourts.gov.in/hcservices/ 10. The perusal of the judgement of the lower Court would exemplify that it had taken a cue from Ex.A4 and Ex.A5 and also took into account one unmarked Sale Deed dated 2.12.1987, which was relied on by the land owner before the Land Acquisition Officer during award enquiry and as per which an extent of 4 are 53 ca was sold at the rate of Rs.3,200/-. The reason given by the lower Court was that the prayer of the petitioner for awarding compensation in a sum of Rs.1,500/- per kuzhi would amount to paying for compensation of Rs.2,802/- per are and that sum is, in between the compensation contemplated under Ex.A4 and Ex.A5 on the one side and the compensation contemplated under the unmarked Sale Deed dated 2.12.2007. Accordingly, the Sub Court fixed the compensation in a sum of Rs.2802/- per are. 11. The learned Government Advocate would convincingly and correctly argue that such reliance on the unmarked sale deed dated 2.12.1987, is ex facie and prima facie wrong as it emerged long after the date of Section 4(1) Notification, dated 22.1.1987, and as such, the same should not be taken into consideration by the reference Court. 12. I am in full agreement with such an argument for the reason that Section 4(1) Notification was published in the gazette on 22.1.1987 so as to say at the beginning of the year, but the unmarked Sale Deed, which the reference Court relied on was emerged at the fag end of the year i.e. On 2.12.1987. Furthermore, the said document, namely, Sale Deed dated 2.12.1987 was not exhibited during enquiry before the reference Court. It is a trite proposition of law that blindly such unmarked document, which emerged long after the publication of Section 4(1) Notification should not be relied on. However, I could see some reason in the judgement of the reference Court in placing reliance on Ex.A4 and Ex.A5, which are relating to some other land acquisition proceedings and which emerged anterior to Section 4(1) Notification, admittedly, as per the deposition of R.W.1-the Land Acquisition Officer. In the absence of any other clinching evidence, such reliance on Ex.A4 and Ex.A5 could be upheld as correct. The land owner should not be prejudiced by taking the lowest value out of the two exhibits, namely, Ex.A4 and Ex.A5. The highest value is contemplated under Ex.A4, which would demonstrate that per are was assessed in a sum of Rs.2560/-. As such, reverting back to the discussion relating to deduction towards development charges, I would like to refer to the precedents cited by the learned Government Advocate as under:- "(i) An excerpt from the decision reported in AIR 2004 Supreme Court 2006- kiral tandon v. Allahabad Development Authority and another would run thus: "16. Shri Gupta has submitted that when the Reference Court had not made any deduction in the compensation https://hcservices.ecourts.gov.in/hcservices/ amount on account of internal development, there was no justification for the High Court to allow 20 per cent deduction on that account. According to the learned counsel the land situate in a developed area where electricity supply, road and sewer lines were already in existence and as such there was no occasion for any further deduction from the market value of the land. Normally, the principle is that when a large area is acquired and the area is not fully developed a deduction of about 33 per cent from the market value is made. This view has been taken in Vijay Kumar Motilal v. State of Maharashtra, AIR 1981 SC 1632, Sahib Singh Kalha v. 940 and Special Tehsildar, Land Aquisition v. A.Mangla Gowri, AIR 1992 SC 666. The evidence on record indicates that the acquire land is situate in a developed area and approach road to the land and also power lines are available. However, in construction of multi storeyed residential flats as considerable portion of the land has to be left out for internal roads, sever line, open space etc. In such circumstances the High Court was justified in directing deduction of 20 per cent from the market value of the land. (ii) An excerpt from the precedent reported in 2008(1) L.W.117 – Lucknow Development Authority vs. Krishna Gopal Lahoti and others would run thus: "22. It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for roads and other civic amenities to develop the land so as to make the plots for residential or commercial purposes. A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; may be the land is situated in the midst of a developed area all around but that land may have a hillock or may be low-lying or may be having deep ditches. So the amount of expenses that may be incurred in developing the area also varies. A claimant who claims that his land is fully developed and nothing more is required to be done for developmental purposes, must show on the basis of evidence that it is such a land and it is so located. In the absence of such evidence, merely saying that the area adjoining his land is a developed area, is not enough particularly when the extent of the acquired land is large and even if a small https://hcservices.ecourts.gov.in/hcservices/ portion of the land is abutting the main road in the developed area, does not give the land the character of a developed area. In 84 acres of land acquired even if one portion on one side abuts the main road, the remaining large area where planned development is required, needs laying of internal roads, drainage, sewer, water, electricity lines, providing civil amenities et. However, in cases of some land where there are certain advantages by virtue of the developed area around, it may help in reducing the percentage of cut to be applied, as the developmental charges required may be less on that account. There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, may be in some cases it is more than 1/3rd and in some cases less than 1/3rd. It must be in some remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly, when vast tracts are acquired, as in this case, for development purpose." From the perusal of the above cited two judgements, it is crystal clear that there should necessarily be deduction towards development charges, but it would fluctuate depending upon the facts and circumstances involved in each and every case. At this juncture my mind is redolent with the following other decisions of the Honourable Apex Court: (1) AIR (2007) Supreme Court 740 [Deputy Director, Land Acquisition vs. Malla Atchinaidu] (2) (2003) 4 SCC 481 [Ravinder Narain and another vs. Union of India] (3) (2007) 9 SCC 447 [Nelson Fernandes and others vs. Special Land Acquisition Officer, South Goa and others] (4) (1996) 9 SCC 640 [Basavva (smt) and others vs. Special Land Acquisition Officer and others]. As such, the cumulative effect of the aforesaid decisions would clearly highlight that there should be deduction towards development charges in cases of this nature. Here, the perusal of the deposition of RW1-the Land Acquisition Officer would unambiguously indicate that the land acquired is situated on par with the level of the main road, https://hcservices.ecourts.gov.in/hcservices/ namely, Suramangalam Main Road and the purpose of acquisition is for putting up a Primary Health Centre in that area. Taking advantage of the deposition of R.W.1, the learned counsel for the land owner would submit that no deduction at all is required because straight away construction could be put up thereon in the land acquired; if at all there should be any expenditure incurred for earth filling or levelling the ground then naturally there should be deduction towards development charges; but in this case, such requirements are not warranted. The ratio decidendi which could be deducted from the aforesaid catena of decisions would leave no doubt in the mind of this Court that from the point of view of the land owner the issue should not be decided, but the Court has to look into the object or purpose of acquisition, and if the compensation is awarded taking into account the plot value of the land, naturally there should be deduction towards development charges. Unless the area acquired it cannot be put into beneficial use, for which the land is acquired to wit for establishing a dispensary there. 13. In this case, the land acquired is not for carving out plots for habitation purpose and if so several roads should be laid and drainage facilities in large scale also has to be provided but here for dispensary purpose much development charges might not be required. Considering all the above facts and circumstances, I would like to hold that 20% deduction would meet the ends of justice. 14. Accordingly, the point is decided to the effect that 20% towards development charges should be deducted from Rs.2561/. As such, the compensation awarded by the Sub Court at Rs.2561/- per are is reduced to Rs.2049/- per are. The claimant/land owner is entitled to solatium and interest on the solatium, in accordance with law. 15. With the above modification, this appeal is partly allowed. However, there shall be no order as to costs. msk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1 The Principal District Judge, Pondicherry, 2 The Record Keper, V.R.Section, High Court Madras 1 cc To Mr.T.P.Manohaan, Advocate, SR.No.44905 1 cc To The Government Pleader,Pondicherry SR.No.44794 A.S.No.582 of 1994 KA(CO) SRA 22/10/2008 https://hcservices.ecourts.gov.in/hcservices/