IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 1.9.2008 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.155 of 1999 1.Eswaran 2.Sengottaiyan 3.Thirunavukkarasu .. Appellants (Claimants) vs. Revenue Divisional Officer, Gobichettipalayam .. Respondent (Referring Officer) Appeal preferred against the judgment and decree dated 8.9.1997 passed in L.A.O.P.No.49 of 1996 by the Subordinate Judge, Bhavani, Erode District. For Appellants : Mr.Ch.Pandian For Respondent : Mr.V.Ravi,Spl.G.P.(AS) JUDGMENT This appeal is focussed as against the judgment and decree dated 8.9.1997 passed in L.A.O.P.No.49 of 1996 by the Subordinate Judge, Bhavani. For convenience sake, the parties are referred to here under as per 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 this appeal would run thus: The Government vide Notification dated 1.8.1992 made under Section 4(1) of the Land Acquisition Act, intended to acquire the land measuring an extent of 0.01.0 hecters in Survey No.1092/1A, 0.05.0 hecters in Survey No.1096/1A in Periyar District, Bhavani Taluk, Andhiyur Village, for the purpose of Highways Department. After complying with the procedures, the Land Acquisition Officer acquired the land and passed an award dated 24.7.1995 assessing the compensation in a sum of Rs.136/- per cent. 4. Being aggrieved by such awarding of the compensation, the land owners got the matter referred to the Sub Court under Section 18 of the Land Acquisition Act . https://hcservices.ecourts.gov.in/hcservices/ 5. During enquiry, before the trial Court the second claimant examined himself as C.W.1 and marked Ex.C1 to Ex.C3 were marked on claimants side. On the side of the respondent, the land Acquisition Officer one Pauldurai was examined as RW1 and Ex.R1 to Ex.R3 were marked. Ultimately the Sub Court awarded the compensation of Rs.510/- in respect of the land acquired in S.No.1092/1A apart from ordering Rs.1,075/- towards trees and Rs.7,500/- towards sand resources and a sum of Rs.2,956/- in respect of the land acquired in S.No.1096/1A and Rs.1,625/- towards trees. 6. Being dissatisfied with such awarding of enhancement, the claimants preferred this appeal on various grounds, the pith and marrow of them would run thus: (a) The reference Court failed to appreciate even the admitted evidence on the side of the claimants. (b) The reference Court failed to take into consideration the potentiality of the land. (c) the reference Court erred in not taking into consideration the documents marked as Exhibits A1 to A3 on the side of the claimants. Accordingly the appellants prayed for setting aside of the judgment and decree of the trial Court. 7. The point for consideration is as to whether the land owners are entitled to more compensation than what was enhanced by the reference Court? 8. The learned counsel for the land owners would develop his argument that the reference Court, even though had not taken into account Ex.A1 should not have simply enhanced the compensation by 15% only and it should have further enhanced it. 9. Whereas, the learned Government Pleader would submit that the reference Court, even though correctly had not relied on Ex.A3-the sale Deed dated 18.11.1992, which emerged subsequent to the publication of 4(1) Notification, nonetheless arbitrarily enhanced the compensation by 15% and even then no cross-appeal has been filed or any appeal has been filed by the Government. 10. The learned counsel for the land owners also would submit that the reference Court was not right in awarding only a sum of Rs.7,500/- towards the built up portion in the land acquired by the Government. 11. The perusal of the judgment and the relevant records would clearly demonstrate that Ex.A3-the sale Deed dated 18.11.1992 emerged https://hcservices.ecourts.gov.in/hcservices/ subsequent to the publication of 4(1) Notification dated 1.8.1992. There is no basis for relying upon Ex.A1 as the criterion to enhance the compensation. 12. No doubt I am fully aware of the fact that the Honourable Apex Court in the decision reported in AIR 1988 SC 943 = 1988 (2) SCC 150 = 198 (2) SCJ 387 = 1988 (1) JT 529 [Administrator - General of W.B. vs. Collector, Varanasi] held that even the document, which emerged subsequent to 4(1) Notification, could be relied upon under such conditions, certain excerpts from it would run thus: Sale transactions subsequent to preliminary notification in respect of land acquired can be relied upon for determining market value of land under acquisition on proof that market was stable between date of preliminary notification and transaction in question. Burden to prove aforesaid is on party wanting to rely on it.-- "Subsequent transactions which are not proximate in point of time to the acquistion can be taken into account for purposes of determing whether as on the date of acquisition there was an upward trend in the prices of land in the area. Further, under certain circumstances where it is shown that the market was stable and there were no fluctuation in the prices between the date of the preliminary notification and the date of such subsequent transaction, the transaction could also be relied upon to ascertain the market value. But, this principle can be applied to only where there is evidence to the effect that there was no upward surge in the prices in the interregnum. The burden of establishing this would be squarely on the party relying on such subsequent transaction. 13. A mere perusal of the aforesaid judgment would amply make the point clear that so far this case is concerned, the factual position is entirely different. For want of necessary sales particulars alone, the land owners themselves relied upon Ex.A3 and no evidence could be adduced that even before Section 4(1) Notification, the rate as contemplated under Ex.A3 prevailed and it continued to prevail and that there was no upsurge of price after Section 4(1) Notification. But absolutely there is no evidence in that regard. In such a case Ex.A3 cannot be relied upon as a safe document to assess the compensation. 14. My mind is redolent with the trite proposition that even the document, which emerged within a short time before publication of 4 (1) Notification should not be relied on, as there is every likelihood of parties cooking up documents purely for the purpose of boosting the market value so as to get more compensation. https://hcservices.ecourts.gov.in/hcservices/ 15. In these circumstances, I am of the considered opinion that the reference Court was right in its approach in granting 10% increase relating to the value assessed by the land acquisition officer, as the land acquisition officer placed reliance on sale item No.9, which took place on 25.4.1991, more than a year anterior to Section 4(1) Notification. Presumably, the reference Court placed reliance on the judgment of the Apex Court (2004) 6 SCC 533 [Delhi Development Authority vs. Bali Ram Sharma and others]. An excerpt from it would run thus: "6. The lands which are the subject-matter of these appeals are acquired for the same purpose as in the aforementioned appeals, but the notification under Section 4 (1) of the Act was issued on 25.2.1981 i.e. subsequent to Section 4(1) notification dated 17.11.1980. Obviously, there would be escalation of prices in regard to these lands. Hence, we think it just and appropriate to give 5% increase in the market value in respect of the lands in these appeals. In the result these appeals are also allowed and the impugned judgments are modified by reducing the amount of compensation from Rs.345 per sq yard (amounting to Rs.3,45,000 per bigha) to Rs.76,55 per bigha + 5% escalation. The respondents are entitled to statutory benefits available under the Act based on the amount of compensation as modified above. No costs. Civil Appeal No.4157 of 2003 7. The land which is the subject-matter of this appeal is acquired for the purpose as in the aforementioned appeals, but the notification under Section 4(1) of the Act was issued on 24.11.1981 i.e. subsequent to Section 4(1) notification dated 17.11.1980. Obviously, there would be escalation of price in regard to this land. Hence, we think it just and appropriate to give 10% increase in the market value in respect of the land in this appeal. In the result this appeal is allowed and the impugned judgment is modified by reducing the amount of compensation from Rs.345 per sq yard (amounting to Rs.3,45,000 per bigha) to Rs.76,550 per bigha + 10% escalation. The respondent is entitled to statutory benefits available under the Act based on the amount of compensation as modified above. No costs." 16. It is therefore crystal clear that for one year 10% increase should be given and accordingly, the reference Court also granted 10% increase. Over and above that, the reference Court felt that 5% more could be awarded, for which there is no cross-appeal. Hence, I am of the considered opinion that no interference with the assessment of compensation relating to the amount fixed by the reference Court is warranted. https://hcservices.ecourts.gov.in/hcservices/ 17. However, regarding the built up portion of the land is concerned, there was a clear finding by the reference Court that there was a built portion to an extent of 3 feet width and 203 feet length so as to prevent rain water from entering into the land from the road side. The learned counsel for the land owners would appropriately and correctly argue that even after the acquisition, the land owners did construct some structure so as to prevent the rain water from entering into the remaining portion of the land and in that they spent some money. However, there is no specific evidence adduced before the Sub Court in that regard. The trial Court observed that such a built up portion was there in the land acquired and in the absence of any evidence, the trial Court awarded a sum of Rs.7500/- as against the sum of Rs.40,000/- prayed for the structure. 18. Taking into consideration the fact that to an extent of 3 feet width and 203 feet length there was a structure constructed by the land owner to prevent rain water from entering into his land, by applying robust common sense, a sum of Rs.15,000/- should be awarded. No doubt, in the absence of Civil Engineers evidence over and above the sum of Rs.15,000/- compensation cannot be awarded. Accordingly, the appeal is partly allowed by enhancing the compensation relating to built up portion by Rs.7500/- more over and above Rs.7500/- already awarded by the reference Court. 19. With the above modification, the appeal is partly allowed. The rest of the judgment and decree of the trial Court are confirmed. No costs. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar Msk To 1. The Subordinate Judge, Vellore. 2. The Revenue Divisional Officer,' Gobichettipalayam. 3. The Section Officer, VR Section, High Court, Madras. 1 cc To The Government Pleader, SR.49609 1 cc To Mr.Ch.Pandian, Advocate, SR.49495 A.S.NO.155 of 1999 BV(CO) SRA(3/11/2008) https://hcservices.ecourts.gov.in/hcservices/