IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 13.9.2010 CORAM THE HONOURABLE MR.JUSTICE M. VENUGOPAL A.S Nos.1090 of 2001 and 243 of 2002 The Special Tahsildar, Land Acquisition, Adi Dravidar Welfare, Vellore. .. Appellant in A.s.No.1090 of 2001 in Respondent Appeal No.243/02 (Referring Officer) vs. Babybai .. Respondent in Appeal No.1090/01 and Appellant in A.S.No.243 of 2002 Claimant Appeals filed under Section 54 of the Land Acquisition Act against the Award dated 27.06.2001 passed in L.A.O.P.No.21 of 1997 on the file of the Subordinate Judge, Vellore. For Appellant : Mr.V.Ravi Special Government Pleader(AS) (Appellant in A.S.No.1090 of 2001 and Respondent in A.S.No.243 of 2002) For Respondent : Mr.Anand Jain for Mr.Spl.Palaniappa (Respondent in A.S.No.1090 of 2001 and Appellant in A.S.No.243 of 2002) JUDGMENT The Appellant/Referring Officer has filed the appeal in A.S.No.1090 of 2001 as against the Award dated 27.06.2001 in L.A.O.P.No.21 of 1997 passed by the Learned Subordinate Judge, Vellore. https://hcservices.ecourts.gov.in/hcservices/ The Appellant/Claimant has filed the appeal in A.S.No.243 of 2002 for enhancement of compensation as against the Award dated 27.06.2001 in L.A.O.P.No.21 of 1997 passed by the Learned Subordinate Judge, Vellore. 2.The Government have acquired a total extent of 0.06.5 Hectares of land i.e. 2 Acres and 63 cents including an extent of 0.75 cents in Survey No.309/1A classified as Government dry land, situated in the village of Malemanavour Taluk, Vellore in North Arcot Ambedkar District for the purpose of providing House sites to Adi Dravidars of Prasad Nagar, Vellore Taluk, North Arcot District. 3.After complying with the necessary formalities, the Land Acquisition Officer published the notification under Section 4(1) of the Land Acquisition Act 1894(hereinafter referred to as the Act) in the Government Gazette on 23.12.1987. The said notice has been published in Tamil Dailies, i.e Dhina Thanthi and Dina Malar on 24.12.1987. Apart from that, the gist of the notice has been advertised in Malemanavour on 25.1.1988. The enquiry under Section 5 (A) was conducted in the office of the Special Tahsildar, Adi Dravidar Welfare at Sankaranpalayam, Vellore on 30.5.1988. Section 6 Declaration was notified on 13.1.1989 in the Tamil Nadu Government Gazette No.35, Part 2, Section 2 at page 1 and also, the Declaration notified was published in newspapers i.e. Dina Thoothu and Daily Thanthi on 20.1.1989. The said gist was advertised in the village on 23.1.1989. For the continuation of the Land Acquisition works, orders were issued and the same was published on 15.3.1989 in Tamil Nadu Government Gazette. 4.The Land Acquisition Officer in the Award proceedings dated 4.1.1991 for the total area of the land acquired viz., 2 Acres and 63 Cents or 1.06.5 Hectares has awarded a compensation of Rs.65,688/- for the market value of the land, subject to the full assessment peshkash or ground-rent as the case may be and in the case of House site held free its market value as such exclusive in all cases of trees, buildings and standing crops at Rs.14,918/-per acre vide B.S.O.No.90 paragraph 14 (i)(i), the same has been fixed at Rs.39,234/-. For the valuation in respect of the trees, the land, crops etc. two Mango trees and one Nona tree in Survey No.309/1A a sum of Rs.100/- was awarded . 30% amount of Rs.11,800/- was awarded in respect of Kudyaram interest as well as for the valuation of trees etc. The 12% additional amount on market value from the date of publication of Section 4(1) notification to the date of Award i.e from 24.12.1987 to 10.1.1991 for the period of 37 months a sum of Rs.14,554/- was awarded as damages. In all a sum of Rs.65,688/- was awarded. 5.As far as the Respondent/Claimant (Appellant in A.S.No.243 of 2002) a sum of Rs.18,851/- was awarded as compensation in respect https://hcservices.ecourts.gov.in/hcservices/ of 75 cents of lands in Survey No.309/1A (which was acquired as the land value of Rs.11,100/-). 6.The Respondent/Claimant (Appellant in A.S.No.243 of 2002) was dissatisfied with the value of compensation determined by the Land Acquisition Officer and because of her objection, the matter was referred to the Tribunal viz., the Learned Subordinate Judge, Vellore as per Section 18 of the Land Acquisition Act, 1894. 7.Before the Tribunal, on behalf of the respondent/claimant (Appellant in A.S.No.243 of 1992) her husband was examined as witness C.W.1 and Exs.A.1 and A.9 were marked. On behalf of the Appellant/Respondent (Land Acquisition officer), Exs.B.1 to B.3 were marked. 8.The Tribunal viz., the Learned Subordinate Judge, Vellore, on an appreciation of oral and documentary evidence available on record had passed an Award by fixing the market value of the acquired land at Rs.599/- per cent and for four trees awarded a compensation of Rs.200/- per tree and granted 30% solatium to the enhanced compensation and also granted 12% interest from the date of notice 23.10.1987 till date of the Award 4.1.1991 and further granted 9% interest from the date of taking compensation viz., 22.2.1991 till the date of 21.2.1992 (for the period of one year) and also granted 15% interest till the date of amount being paid. CONTENTIONS, DISCUSSIONS AND FINDINGS in A.S.No.1090 of 2001 and 243 of 2002: 9.According to the Learned Special Government Pleader (A.S) appearing for the Appellant/Referring Officer, the award of the Tribunal viz., the Learned Subordinate Judge, Vellore has committed an error in increasing the market value excessively from Rs.149.19 per cent to Rs.599/- per cent in disregard to the procedure laid down under the Land Acquisition Act 1894 and in fact, Ex.A.2 sale deed dated 30.10.1987 was registered very nearer to the Section 4 (1) notification of the Act. 10.Advancing his arguments, it is the further contention of the Learned Special Government Pleader(A.S) appearing for the Appellant/Referring Officer, that Ex.A.2, sale deed dated 30.10.1987 was not proved by examining either the vendor or vendee and therefore, it could not be relied upon, but these aspect of the matter was not looked into by the Tribunal viz., the Learned Subordinate Judge, Vellore in proper perspective. 11.That apart, the Learned Special Government Pleader(A.S) appearing for the Appellant/Referring Officer urges before this Court that the Tribunal viz., Learned Subordinate Judge, Vellore was not https://hcservices.ecourts.gov.in/hcservices/ correct in granting interest of solatium and additional amount in violation of the Ruling of the Hon'ble Supreme Court reported in 1997 I SCC 249. 12.A plea is also put forward on the side of the Appellant/Referring Officer that the Tribunal should have rejected the Section 18 reference under Land Acquisition Act for want of evidence, since the burden of proof was fixed on the claimant in Land Acquisition cases as per decision 1996 (3) SCC 766. 13.In short, the contention of the Learned Special Government Pleader (A.S) appearing for the Appellant/Referring Officer is that the Tribunal viz., Learned Subordinate Judge, Vellore has determined the compensation in the Award in an excessive and arbitrary fashion and the same needs to be rectified by this Court in the interest of justice by allowing the appeals. 14.The learned counsel for the Respondent/Claimant (Appellant in A.S.No.243 of 2002) contends that the Tribunal viz., Learned Subordinate Judge, Vellore had not appreciated the purpose of acquisition for forming Adi Dravidar Housing Colony which implied that the nature of the land being only House site and not an agricultural land. 15.Expatiating his arguments, the learned counsel for the Respondent/Claimant (Appellant in A.S.No.243 of 2002) submits that the Tribunal had committed an error in holding that though the agreement for sale Ex.A.1 dated 24.8.1987 and the sale deed Ex.A.2 dated 30.10.1987 were earlier in point of time and before the date of Section 4 (1) notification viz., 23.12.1987, the demand of stamp duty penalty was notified only on 4.1.1988 after Section 4 (1) notification, the said document could not be relied upon for determining market value of the acquired land and moreover, the observation of the Tribunal that the demand of stamp duty penalty for sale deed Ex.A.2 was not proved through the concerned officer was not correct in the eye of law. 16.Proceeding further, the learned counsel for the Respondent/claimant (Appellant in A.S.No.243 of 2002) submits that just because no other affected individual had paid stamp duty penalty in the acquired land area was not a basis to reject Ex.A.3 Form I notice dated 4.1.1988 issued by the Special Deputy Tahsildar (Stamp duty), Vellore, but this was not appreciated by the Tribunal viz., the Learned Subordinate Judge, Vellore in a proper perspective which had resulted in miscarriage of justice. 17.The learned counsel for the Respondent/Claimant (Appellant in A.S.No.243 of 2002) contends that Ex.A.4 registered sale agreement dated 24.7.1987 and Ex.A.9 sale deed dated 19.10.1987 were not taken into account by the Tribunal viz., the Learned Subordinate Judge, https://hcservices.ecourts.gov.in/hcservices/ Vellore when it pertaining to the adjacent land in Survey No.310/2, which was not acquired by the Government. 18.It is the further submission of the learned counsel for the Respondent/Claimant (Appellant in A.S.No.243 of 2002) that Ex.A.5 notice dated 9.11.1987 in Form I notice was issued by the Special Deputy Tahsildar (Stamp Duty) was not a public document to prove the contends of the same because of its character as a public document, but this was not looked into by the Tribunal in a real perspective. 19.In short, the contention of the learned counsel for the Respondent/Claimant (Appellant in A.S.No.243 of 2002) is that the Tribunal ought to have determined the market value of the acquired land as per the guide line value fixed therein, when it had relied upon by Ex.A.2 sale deed dated 30.10.1987 and determined the compensation in the manner in issue. 20.Lastly, it is the submission of the learned counsel for the Respondent/Claimant (Appellant in A.S.No.243 of 2002) since the land acquired and the adjacent land belonging to the Respondent/Claimant where it was proposed to have Ajith Electrical Factory and the remaining land could not be utilised for constructing a factory for Ajith Electricals as per Ex.A.6 Small Scale Industries certificate dated 27.4.1988. 21.It is useful for this Court to refer to the evidence of C.W.1 (husband of the Respondent/Claimant) and the evidence of R.W.1 (Revenue Inspector of Vellore, Adi Dravidar Welfare, Special Tahsildar Office). 22.C.W.1(husband of the Respondent/Claimant) in his evidence before the Tribunal has deposed that his wife is the claimant and the acquired land is situated in Malemanavour village in Survey No.309/1A measuring 0.30.5 Hectares and that the acquired land is situated on the southern side adjoining the Vellore – Bangalore National Highway and his wife (Respondent/Claimant) has purchased the acquired land from Alraj Gounder in the year 1989 and before that an agreement has been registered on 24.7.1987 viz., Ex.A.1 and on that basis Ex.A.2 sale deed dated 30.10.1987 has been registered in favour of his wife and that the acquired land had been purchased for a sale consideration of Rs.3,25,000/- but, in Ex.A.1 and Ex.A.2 sale agreement and sale deed it is mentioned as Rs.45,000/- and only for lowering the value of stamp duty it has been mentioned like that. 23.It is the further evidence of C.W.1 that Ex.A.3 notice dated 4.1.1988 has been issued to his wife and in the said notice, the land value has been mentioned as Rs.2,79,040/- and the balance stamp duty to be paid has mentioned as Rs.27,739/- and that he has https://hcservices.ecourts.gov.in/hcservices/ purchased a land for the purpose of constructing a factory near the acquired land on 24.7.1987 and the sale agreement is Ex.A.4 and that he has purchased the land by paying the sale consideration of Rs.3,20,000/- and in the agreement as well as in the sale deed it is mentioned as Rs.45,000/- and that he received Ex.A.5 notice dated 9.11.1987 wherein the value of the land purchased by him has been mentioned as Rs.2,29,300/- and the difference in stamp duty to be paid comes to Rs.22,116/- for which Ex.A.5 notice has been issued to his wife and he has paid the deficit stamp duty amount but, the land he has purchased in the second time has not been acquired and in the two lands he has been selling the Electrical Articles and he has purchased the land for the purchase of constructing PVC pipes and wire manufacturing company as per Ex.A.6 Small Scale Industries Certificate and Ex.A.7 is the plan for the land purchased by him where construction is to be raised and estimate for the cost of construction of the building is Ex.A.8 and since the land has been acquired, he has not been in a position to construct the Electrical Articles manufacturing factory and even in the adjacent land he has not been in a position to raise any building and unacquired land which stands in his name is kept as fallow. 24.As a matter of fact, C.W.1 has stated in his evidence that the compensation for the acquired land per cent has been claimed at Rs.5,000/- per tree and in the acquired land for the 4 Neem trees, per tree a claim of Rs.5,000/- has been made. 25.In short, C.W.1 in his cross examination has categorically stated that he has not produced any documents to show that the acquired land is higher value one and further, he has also not produced any document to show that the acquired land had been situated near National Highway and moreover, for the claim of Rs.5,000/- per tree he has not produced any document and in Ex.A.9 sale deed dated 19.10.1987 which is in the name of his wife viz., the Respondent/Claimant has signed as a witness. 26.The evidence of R.W.1 (Revenue Inspector) is that Ex.B.1 is the sale statistics details register and Ex.B.2 is the Registration copy of sale deed dated 13.2.1985 pertaining to the data land and the Respondent/Claimant has been paid the compensation rate of Rs.14,918/- per acre and Ex.B.3 is the combine sketch showing acquired land and the data land. 27.Significantly, R.W.1 (Revenue Inspector) in his examination has admitted that the acquired land is situated adjacent to Vellore - Bangalore Road and further, he has stated in categorical terms that I.T.I is situated near the acquired land and the Data land is situated at a distance of one furlong from the Main Road and he has not taken the land adjacent to Main Road as Data land and no Data land has been taken in respect of the period from 1990 – 1993. https://hcservices.ecourts.gov.in/hcservices/ 28.In the claim statement before the Tribunal in L.A.O.P.No.21 of 1997, the Respondent/Claimant has among other things stated that near the acquired land, Industries like Sedhu shoes, Vellore Shoes, Duncon Industries, R.S.L. Leather industrial Raju Plastics are situated and near the acquired land there are 25 Small Scale Industries and Commercial Institutions like Abdullapuram I.T.I and P.A.T.C workshop are situated very near to the acquired property and indeed, the acquired land is situated in an industrial area and therefore, the value of the properties is very high, which has to be calculated at the rate of squire feet and as such, the compensation paid per cent is not a correct one. 29.The Tribunal viz., Learned Subordinate Judge, Vellore in the Award in L.A.O.P.No.21 of 1997 dated 27.6.2001 has observed that ' it cannot be denied that Ex.A.1 Punja land sale agreement dated 24.7.1987 and Ex.A.2 Punja land sale deed dated 30.10.1987 are before the date of Section 4(1) notification dated 23.12.1987 but, Ex.A.3 notice dated 4.1.1988 has been issued after the date of Section 4(1) notification and furthermore, the claim has not been established on that basis Ex.A.3 notice has been issued in respect of the acquired land by examining the officers concerned. 30.Besides the above, the tribunal viz., the Learned Subordinate Judge, Vellore has also in his award as opined that there is a possibility of knowing about the factum of his land being acquired and therefore, Ex.A.3 notice has been arranged to be issued. Even in Ex.B.1 Sales Statistics Register apart from the Respondent/Claimant, no one has paid additional stamp duty saying that the value of the land has been high. Suffice it for this Court to point out that the Tribunal has candidly observed that the Respondent/Claimant has not made an endeavour to examine the concerned person from the office who issued Ex.A.3 notice. 31.At this juncture, it is not out of place for this Court to make a relevant mention that the Tribunal in the Award has held that in Ex.A.7 building plan and Ex.A.8 construction cost estimate, no seal of the Government is affixed and therefore, the plea of the Respondent/Claimant is that these documents are only with reference to the establishment of a factory cannot be accepted and it appears that they have been created for the purpose of the case with ulterior motive. 32.The Tribunal viz., the Learned Subordinate Judge, Vellore has placed reliance on Ex.A.2 sale deed dated 30.10.1987 wherein the sale consideration has been mentioned as Rs.47,900/- and accordingly he has determined the market value of the acquired land per cent at Rs.599/-. https://hcservices.ecourts.gov.in/hcservices/ 33.Admittedly, relevant date for date for determining the market value of the acquired land is on the date of notification as per Section 4 of the Land Acquisition Act, vide decision JAGATH SINGH V. HARYANA STATE, (1996) LAC 60 (PUNJAB & HARYANA). 34.This Court aptly points out the decision of the Hon'ble Supreme Court SPECIAL LAND ACQUISITION OFFICER BANGALORE V. ADI NARAYAN SHETTY, AIR 1956 SUPREME COURT 429, wherein it is observed that 'in awarding the compensation under the Act the Court has to ascertain the market value of the land on the date of notification under Section 4(1) of the Act. It is also observed that there are several methods of valuation such as i) opinion of Expert ii) price paid within a reasonable time in bona-fide transactions of purchase of the land acquired or the lands adjacent to the lands acquired and possessing similar advantages iii) a number of years of purchase of the actual or immediately prospective profits of the land acquired. Also the potential value whether the land is close to developed or developing colonies, road etc., will also be taken note of by a Court of law'. 35.It is true that a market value of a land cannot be calculated with Arithmetical Accuracy. Little amount of conjecture is permissible, but a Court of law cannot stretch too far in this regard. 36.The relevant test is that sitting in Arm Chair of a willing vendor would offer to a willing purchaser, taking all relevant prevailing conditions of the normal market, fertility of land, location suitability of purpose it was purchased, its existing potentialities and likely use to which in same condition would offer to pay the price as on date of notification. It cannot be lost sight of an important fact that a Claimant/owner of the land ought not to be put at loss by means of under valuation. Equally, one must borne in mind by an excess valuation, public exchequer should not be put to a burdensome one. Further, it is the duty of a Court of law to strike a balance between the two interests as opined by this Court. 37.It is worth for this Court to recall the decision of the Hon'ble Supreme Court SPECIAL LAND ACQUISITION OFFICER U.K. PROJECT V. MAHABOOB AND ANOTHER (2009) 4 M.L.J 137 (S.C) wherein it is observed that 'eventhough the land is taken purportedly in accordance with law by resorting to acquisition proceedings, the Collector is supposed to offer fair compensation by taking all relevant circumstances relating to market value into account but the land acquisition officers seldom make reasonable offers and they tend to err on the safer side and invariably assess very low compensation.' 38.On behalf of the Appellant/Referring Officer, the Learned Special Government Pleader (A.S) relies on the decision of the https://hcservices.ecourts.gov.in/hcservices/ Hon'ble Supreme Court HOOKIYAR SINGH AND OTHERS V. SPECIAL LAND ACQUISITION OFFICER, MORADABAD AND ANOTHER (1996) 3 SCC 766 at page 768 wherein, it is observed as follows: "It is settled law that the burden of proof of market value prevailing as on the date of publication of Section 4(1) notification is always on the claimants. Though this Court has time and again pointed out the apathy and blatant lapse on the part of the acquiring officer to adduce evidence and also improper or ineffective or lack of interest on the part of the counsel for the State to cross-examine the witnesses on material facts, it is the duty of the Court to carefully scrutinise the evidence and determine just and adequate compensation. If the sale deeds are found to be genuine, the market value mentioned therein must be presumed to be correct. If the genuineness is doubted, it cannot be relied upon. Proper tests and principles laid down by this Court must be applied to determine compensation. Since the LAO as well as the High Court placed reliance on the sale deed which commanded market value of a maximum of Rs.15,000/- and odd, the question is: what would be the just and adequate compensation to be paid in respect of the lands? The court must not indulge in feats of imagination but, sit in the armchair of a prudent purchaser in open market and to put a question to itself whether as a prudent purchaser it would offer the same price in the open market as is to be determined? This should be the acid test. The District Court was not right in holding that the lands are possessed of future potentiality as public purpose is industrial development. Section 24 clause fifthly prohibits taking into consideration future user to which the land will put when acquired. Considered from the fluctuation in the prices placed on record and large area involved in the acquisition, situation of the lands, actual user of the lands as agricultural lands on the totality of the facts in this case, treating all the lands as agricultural lands, we are of the considered view that the market value of the land per acre would be Rs.35,000/-. The claimants are accordingly entitled to this amount. It is no ground for the claimants to contend that as they are required to refund the difference of the compensation amount, the amount determined by the High Court or Reference Court should be confirmed. If that contention is given acceptance in no case proper compensation can be fixed by the appellate court". https://hcservices.ecourts.gov.in/hcservices/ 39.He also relies the decision of the Hon'ble Supreme Court TEHRI HYDRO DEVELOPMENT CORPORATION V. S.P. SINGH AND OTHERS (1997) 1 SUPREME COURT CASES 249 wherein the Hon'ble Supreme Court had held that ' the claimants are not entitled to interest on solatium and on additional amount under Section 23(1-A) of the Land Acquisition Act'. 40.In the decision of Hon'ble Supreme Court UNION OF INDIA AND OTHERS V. SUNIL CHANDRA SAHA AND ANOTHER (1995) 5 SCC 311 the Hon'ble Supreme Court has held that 'the examination of vendor or vendee is necessary to provide the relevant and material evidence in regard to the sale deeds that came to be executed, the distance between the lands and their nature etc.' 41.It is evident from Ex.A.2 sale deed dated 30.10.1987 in favour of the Respondent/Claimant executed by Alraj Gounder and two others wherein an extent of 80 cents out of 2 acres and 64 cents in Government Punja land Survey No.309/1 has been sold for a price of Rs.47,900/-. In clear terms, there is a reference in Ex.A.3 that the land value of Rs.2,79,040/- balance stamp duty which has to be paid is Rs.27,739/-. Ex.A.3 Form I notice dated 4.1.1988 has been issued by the Special Deputy Collector (Stamp duty), Vellore who has affixed his signature thereto and the same bas been addressed to the Respondent/Claimant. Likewise, Ex.A.5 Form I notice dated 9.11.1987 has been issued to the Respondent/Claimant by the Special Deputy Collector (Stamp duty) in and by which the Respondent/Claimant has been required to pay the difference in stamp duty amount of Rs.22,116/-. Here again, the guideline value has been mentioned as Rs.2,29,300/- and the value has been mentioned in the document is Rs.45,000/- and the stamp duty paid is only Rs.5,400/- and the stamp duty payable is Rs.27,516/-. 42.Before the trial Court,