IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2010 CORAM: THE HON'BLE MR.JUSTICE M.VENUGOPAL A.S. No.506 of 2002 1.Muthu Goundar (Deceased) 2.S.Duraisamy 3.S.Jayagopal (Appellants 2 and 3 were brought on record as L.Rs. of the Deceased Sole Appellant vide order of this Court dated 25.08.2010 in CMP Nos.1035 to 1037 of 2009) ...Appellants/Claimants Versus The Land Acquisition Officer, and Special Tahsildar, (HW) Sankari ...Respondent/Respondents PRAYER: Appeal filed under Section 54 of the Land Acquisition Act 1894 against the judgment and Decree made in L.A.O.P.No.27 of 1980 dated 30.04.1983 on the file of the Learned First Additional Sub Judge, Salem. For Appellants : Mr.T.L.Thirumalaisamy for Sarvabhauman Associates For Respondent : Mr.V.Ravi Addl. Government Pleader (AS) J U D G M E N T The Appellant/Claimant (Since Deceased) has projected this Appeal as against the Award dated 30.04.1983 in LAOP No.27 of 1980 passed by the Learned First Additional Sub Judge, Salem. 2. The Government have acquired an extent of 1.60 Acres of Dry land in S.No.90/1B1 of Munjanur Village in Thiruchencode Taluk belonging to the Appellant/Claimant (Since Deceased) for providing house sites to Devendrar's (Harijans). After complying with the necessary formalities, the notification under Section 4(1) of the Land Acquisition Act for an extent of 1.60 Acres of Dry land in S.No.90/1B1 of Munjanur Village has been approved in G.O.Rt.No.1029 Social Welfare Department dated 08.11.1978. The said notification https://hcservices.ecourts.gov.in/hcservices/ was published in the Supplement to Part-II, Section 2 of the Tamil Nadu Government Gazette No.47.A dated 06.12.1978 at page 36 as Item No.II (2)/SW/6542/78 appointing the Special Tahsildar (H.W.), Sankari to perform the function of a Collector under Section 5-A of the Land Acquisition Act. The Section 5-A Enquiry was conducted on 08.01.1979. Before that, for the proposed acquisition, objections were called for and due service and publication of notices were effected properly, as per rules framed under Section 55(1) of the Land Acquisition Act. The declaration under Section 6 and direction under Section 7 of the Land Acquisition Act were duly approved in G.O. No.565 Social Welfare Department dated 09.03.1979 in respect of 1.60 Acres of Dry land in Munjanur Village and they were published in Part II, Section 2 of the Tamil Nadu Government Gazette Extraordinary No.77 dated 10.03.1979 at page No.5 as Item Nos.II(2)/SW/1458(g-13)/ 79 and II(2)/SW/1458(g-14)/79 respectively. 3. The land under acquisition in S.No.90/1B was surveyed and sub divided as S.No.90/1B1 measuring 1.60 Acres by the Special Deputy Surveyor (H.W.), Sankari. Further, notices as per Section 9(1) and 10 and 9(3) and 10 of the Land Acquisition Act were issued on 10.03.1979 and the Award enquiry was posted to 26.03.1979. The notices under section 9(1) and 10 of the Land Acquisition Act were duly published on 10.03.1979. The notices as per section 9(3) and 10 were duly served on all the interested persons on 10.03.1979 as per the rules. 4. The land under acquisition is the ancestral property of the Appellant/Claimant (Since Deceased). In the land under acquisition there is one abandoned well. The Appellant/Claimant (Since Deceased) is the pattadar of the land in S.No.90/1B. The Land Acquisition Officer in his Award proceedings No.12/78-79 dated 26.03.1979 has stated that though the Appellant/Claimant (Since Deceased)'s son Arthanari Gounder and one Sengoda Gounder names do not find a place in the Chitta, they have got right over the abandoned well in question. The pattadar of the land in S.No.90/1B has also accepted their claim over the well, but they have no right over the land. The Land Acquisition Officer has determined the cost of acquisition at Rs.16,269.40 and the breakup figure of the same is as follows: a) Value of 0.15 Acre of Irrigated Dry land at the rate of Rs.6,522/- per Acre : Rs. 978.30 b) Value of 1.45 Acres of Unirrigated Dry land at the rate of Rs.6,000/- per Acre : Rs. 8,700.00 c) Estimated value for the dilapidated well : Rs. 4,469.00 Total : Rs.14,147.30 ADD 15% Solatium : Rs. 2,122.10 Grand Total : Rs.16,269.40 https://hcservices.ecourts.gov.in/hcservices/ 5. The Land Acquisition Officer in his Award has stated that the well in the acquired land belongs to the following three persons. (1)Muthu Gounder S/o. Sengoda Gounder ... 4/6 share (Appellant/Claimant (Since Deceased)) (2)Arthanari Gounder S/o. Muthu Gounder ... 1/6 share (3)Sengoda Gounder S/o. Rengasamy Gounder ... 1/6 share. The extent of land and well owned by each one of them and the compensation due to each of them are as follows: 1.Muthu Gounder S/o. Sengoda Gounder: Land: S.No. Irrigated Unirrigated extent in Acres extent in Acres 90/1B1 0.15 1.45 Land Value: a) 0.15 Acre of Irrigated Dry land at Rs.6,522/- per Acre : Rs. 978.30 b) 1.45 Acres of Unirrigated Dry land at Rs.6,000/- per Acre : Rs. 8,700.00 c) 4/6th share value of well : Rs. 2,979.34 Total : Rs.12,657.64 ADD 15% Solatium : Rs. 1,898.65 : Rs.14,556.29 Total compensation due : Rs.14,556.30 2.Arthanari Gounder S/o. Muthu Gounder Land Value : Nil 1/6th share value of well : Rs.744.83 ADD 15% Solatium : Rs.111.72 Total compensation due : Rs.856.55 The said Arthanari Gounder's two sons have agreed that the payment of compensation may be awarded to their father Arthanari Gounder. 3.Sengoda Gounder S/o. Rengasamy Gounder: Land Value : Nil 1/6th share value of well : Rs.744.83 ADD 15% Solatium : Rs.111.72 Total compensation due : Rs.856.55 The Land Acquisition Officer has awarded compensation to the aforesaid individuals as referred to earlier in his Award dated 26.03.1979 in Proceedings No.12/78-79. 6. As far as the present appeal is concerned, this Court is concerned with the Appellant/Claimant (Since Deceased) only. The Appellant/Claimant (Since Deceased) has received the compensation amount of Rs.14,556.30 under protest and because of his objection, https://hcservices.ecourts.gov.in/hcservices/ the Land Acquisition Officer has referred the matter before the Tribunal viz., the Learned First Additional Sub Judge, Salem as per Section 18 of Land Acquisition Act. 7. Before the Learned First Additional Sub Judge, Salem, on the side of Appellant/Claimant (Since Deceased), witnesses P.Ws.1 and 2 have been examined and Ex.A1 Sale Deed document dated 04.09.1978 has been marked. On the side of the Respondent/Referring Officer, witness RW1 has been examined and Exs.B1-B5 have been marked. 8. The Tribunal, viz., the Learned First Additional Sub Judge, Salem, on an appreciation of oral and documentary evidence available on record has come to the resultant conclusion that the Respondent/Land Acquisition Officer has determined the compensation for the land in a just and reasonable manner and consequently dismissed the original petition without costs. 9. The point that arises for rumination in this appeal is: Whether the Tribunal viz., Learned First Additional Sub Judge, Salem, is right in dismissing the petition LAOP No.27 of 1980 by means of an Award dated 30.04.1983? 10. The Contentions, Discussions and Finding on point: According to the Learned counsel for the Appellant/Claimant (Since Deceased), the classification of the land as Irrigated Dry land and Unirrigated Dry land of the Land Acquisition Officer is an incorrect one and as a matter of fact, the Land Acquisition Officer ought to have found the entire land under acquisition as an Irrigated land, when there is a big well. 11. It is the further contention of the Learned counsel for the Appellant/Claimant (Since Deceased) that the well of wider dimension is a sufficient proof to establish that the entire land under acquisition has been an Irrigated Dry land, but this aspect of the matter has not been properly adverted by the Tribunal, which has resulted in serious miscarriage of justice. 12. A plea is taken on the side of the Appellant/Claimant (Since Deceased) that the Tribunal has wrongly come to the conclusion that the Appellant/Claimant (Since Deceased) is estopped from disputing the classification of land as per Section 25 of the Land Acquisition Act, because of the simple fact that the ingredients of the said Section will not apply to the classification of the land. 13. The stand of the Appellant/Claimant (later Deceased) is Ex.A1, sale deed dated 04.09.1978 is nearer to the date of Section 4 (1) notification Viz., 09.12.1978 and indeed the Tribunal ought to have accepted the value mentioned in Ex.A1, because the sale is a genuine one, which reflects the market value of the acquired land. When the lands covered in Exs.B1 and B2 Sale deeds dated 27.02.1976 https://hcservices.ecourts.gov.in/hcservices/ and 12.03.1976 are faraway and all the more when Ex.A1, Sale deed dated 04.09.1978 is very near to the land in question, the Tribunal in all fairness should have accepted the value mentioned in Ex.A1, Sale deed dated 04.09.1978, but the same has not been taken into account properly by the Tribunal. 14. Lastly, the Learned counsel for the Appellant/Claimant (Since Deceased) contends that the Tribunal should have taken into account an important fact that Exs.B1 and B2 Sale deeds are long prior to section 4(1) notification of the act, which is of the year 1978. 15. The pith and substance of the contention of the Learned counsel for the Appellant/Claimant (Since Deceased) is that the Trial court has not adverted to the material facts, etc., in a right and proper legal perspective and therefore prays for allowing this appeal in the interest of justice. 16. Contending contra, the Learned Additional Government Pleader (AS) submits that the Tribunal viz., the Learned First Additional Sub Judge, Salem, while dismissing the LAOP No.27/80 by means of an Award dated 30.04.1983 has taken note of all the relevant facts and attendant circumstances of the case in an integral fashion and arrived at the right conclusion of dismissing the petition without costs and the same need not be interfered with by this Court, at this distance of time. 17. From Ex.B5, Inspection notes of the Land Acquisition Officer, dated 08.01.1979, it is quite clear that "the land proposed to be acquired in an extent of 1.60 Acres is on the western side of this preceding field No.90/1B and it has a north frontage on the western side and that there are no structures or trees in the portion proposed for acquisition and that the standing crops in the land proposed to be acquired are cholam by name in an extent of about 0.90 Acre, Horse- gram by name in an extent of about 0.50 Acre, Black gram Dry waste in an extent of about 0.15 Acre. The remaining portion is covered by one dilapidated well and other waste lands. There is no water in the dilapidated well and it is not in use. An extent of 1.45 Acres has to be treated as Unirrigated Dry land and an extent of 0.15 Acre has to be treated as Irrigated Dry land as mentioned above for the purpose of valuation." 18. The Appellant/Claimant in his B4 statement, tendered at the time of Award enquiry notice has stated that 0.15 Acre in the acquired land has been Irrigated through water and 1.45 Acres is Unirrigated Dry land and he has come to know about this classification. https://hcservices.ecourts.gov.in/hcservices/ 19. In short, the classification of 1.45 Acres in the acquired land as Unirrigated Dry land and an extent of 0.15 Acre as irrigated Dry land made by the Land Acquisition Officer for the purpose of valuation has not been challenged by the Appellant/Claimant any time before the passing of the Award by the Land Acquisition Officer by means of his Award proceedings dated 26.03.1979. When the Land Acquisition Officer and Special Tahsildar (H.W.), Sankari has taken the B4 statement of the Appellant/Claimant on 26.03.1979 in regard to the classification of acquired land into two categories, i.e., 0.15 Acre as Irrigated Dry and 1.45 Acres as Unirrigated Dry, the Appellant/Claimant has consciously affixed his signature in the statement without any demur or protest and as such it is not open to the Appellant/Claimant at a later point of time to turn around and take a different plea that the classification of land into two types as referred to above made by Land Acquisition Officer/Reffering Officer is not correct and infact the Appellant/Claimant is estopped in this regard. 20. PW1 has deposed that he has sold the property mentioned in Ex.A1 sale deed dated 04.09.1978 for Rs.35,000/-, but a perusal of the document shows that the amount is described as Rs.21,000/-. More over the Land Acquisition Officer in his evidence as RW1 has stated that the Data land is 2 furlongs away from the acquired land and that for the Unirrigated Dry land (1.45 Acres in the acquired land), he has fixed the value per Acre at Rs.6,000/- and for the Irrigated Dry land (0.15 Acre in the acquired land), he has fixed the value at Rs.6,522/- per Acre and he has rejected the Ex.A1, Sale deed for reasons and has fixed the market value for the acquired land taking into account the sale deeds Exs.B1 and B2 and upon conducting enquiry. 21. As a matter of fact, RW1 has considered 20 sales in the village during the period from 07.12.1975 to 06.12.1978 being the three years period preceding the date of publication of Section 4(1) notification. He has inspected the land in item Nos.7, 19, 2 and 4 and in the Award he has mentioned that item No.2, sale deed dated 27.02.76 (Document No.237), an extent of 0.45 Acre of land in S.No.31/E of Munjanur Village classified as government Dry measuring 9.85 Acres of land has been sold for Rs.2,700/- and this land is at a distance of about 4 furlongs from the land under acquisition and in that land there are no wells, structures, trees and the Data land and the land under acquisition are similar in many respects and it has all the amenities of the land to be acquired and it is an Unirrigated Dry land and the price paid for this land S.No.31/E is found to be a fair and reasonable one according to the market rate prevailing in this area for an Unirrigated Dry land and the rate per Acre which comes to Rs.6,000/- per Acre is a genuine price and therefore, he has accepted the sale as genuine and fixed the market value of Unirrigated Dry land at Rs.6,000/- per Acre. https://hcservices.ecourts.gov.in/hcservices/ 22. Further, the Land Acquisition Officer in the Award under the caption item No.4 has stated as follows: "the remaining item is the date sale for Irrigated Dry land. In this sale, an extent of 1.38 Acre of land in S.No.182/1 of Munjanur village, classified as government Dry measuring 11.03. Acres has been sold for Rs.9,000/- as per Document No.321 dated 16.03.78 (the correct date is 12.03.1976, as per Ex.B2, Sale Deed as observed by this Court). The soilwar classification of the land is 7-1-3 with an assessment of Rs.2.25 per Acre. Though this land differs from the soilwar classification etc., of the land under acquisition, it is similar in many respects on ground. I inspected this land. This land has been partly ploughed up and partly sown with cotton by the well water. There are no wells or structures or trees in it. The rate per Acre works out to Rs.6,522/-. It is within a distance of about 2½ furlongs from the land to be acquired. Considering the potentiality of the land and the local market price, the rate of Rs.6,522/- per Acre arrived at from this sale is reasonable and reflects the true market value prevailing. The sale is between the willing seller and a willing purchaser and they are not related to each other. The Village Officers of the village also agree that the land under acquisition is similar in many respects with the Data sale land and the rate of Rs.6,522/- per Acre for Irrigated Dry land arrived at is reasonable. I agree with the Village Officers and accordingly fix and adopt the above rate for valuing the land under acquisition, ....". To put it precisely, the Respondent/Land Acquisition Officer, for 0.15 Acre of Irrigated Dry land, has fixed the value at Rs.6,522/- per Acre. 23. Ex.B1 Sale deed dated 27.02.76 (Document No.237/76) is the document mentioned in Item No.2 of the Award by the Respondent/Land Acquisition Officer, which has been taken into consideration by the Land Acquisition Officer for fixing the market value of the Unirrigated Dry land acquired under acquisition. Ex.B2 Sale deed dated 12.03.76 (Document No.321/78) is the one mentioned as item No.4 of the Award of the Respondent/Land Acquisition Officer, which has been taken into consideration by the Land Acquisition Officer for fixing the market value of the Irrigated Dry land acquired under acquisition. https://hcservices.ecourts.gov.in/hcservices/ 24. In the instant case, the Respondent/Land Acquisition Officer has assigned cogent, coherent and convincing reasons while passing the Award for adopting the value mentioned in Exs.B1 and B2 Sale deeds. On behalf of the Appellant/Claimant (Since Deceased) though, Ex.A1, Sale deed dated 04.09.1978 has been marked before the Tribunal, the price stated in the said Sale deed viz., Rs.21,000/- in respect of items mentioned therein will be below Rs.8,500/- per Acre, leaving the value for the well. The claim of the Appellant/Claimant (Since Deceased) in his evidence as PW1 is that, he requires a compensation of Rs.20,000/- per Acre for the acquired land and he requires Rs.8,000/- for the well as compensation, are nothing but an exorbitant and excessive one in the considered opinion of this Court. 25. Be that as it may, it is to be borne in mind that the appropriate 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, as per decision JAGATH SINGH V. HARYANA STATE, (1996) LAC 60 (P&H). 26. This Court in TAMIL NADU ELECTRICITY BOARD V. R.KANDHASWAMY, (2003)2 LACC 396 (MADRAS), has held that ".. the crucial date for determining the market value of the acquired land is on the date of publication of Section 4(1) notification". 27. The acid test for determining the market value of the land is to sit in the arm chair of willing vendor would offer to an intending willing purchaser, taking into 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 the date of notification. 28. There is no two opinion of the fact that a claimant or an owner ought not to be put to loss because of under valuation of his property. Equally, it is important that the public exchequer should not be put to undue burden by excess valuation. It is the important duty of a Court of law to strike the balance between the two interest as opined by this Court. 29. On a careful consideration of respective contentions, this Court is of the considered view that the value determined for the Irrigated Dry land at Rs.6,522/- per Acre and for the Unirrigated Dry land at Rs.6,000/- per Acre by the Respondent/Land Acquisition Officer in respect of acquired land in issue are a Fair, Just and https://hcservices.ecourts.gov.in/hcservices/ Equitable one and the same on an overall assessment of the entire gamut of the matter does not suffer from any serious illegality or patent irregularity in the eye of law and infact the Tribunal viz., Learned First Additional Sub Judge, Salem has rightly dismissed the LAOP No.27/80 by means of an Award dated 30.04.1983 and resultantly this appeal fails. 30. Before parting with the case, this Court quotes Rule 12 of the Legal Practitioner's Fees Rules 1973, which runs as follows: R.12. (1) In the High Court in appeals from original or appellate decrees in suits for money, effects or other personal property, or for land or other immovable property of any description, fees are payable on the same scales under Rule 3(2)(b). Provided that when the appeal is compromised, settled withdrawn or dismissed for default (a) before the appeal gets into the ready board, the fee shall be one-fourth of the fee prescribed under Rule 3(2)(b) and (c) after the appeal stands on the ready board the fee shall be one-half of the fee prescribed under Rule 3(2)(b) subject to this, in all the above cases, the minima prescribed in Rule 14 shall apply: (Provided further that when the appeal is from an award or from any part of an award of a Court in a land acquisition case, as between the collector and the claimant or claimants the maximum fee shall be Rs.2,000.00.) (2) When the amount or value of the claim in the appeal exceeds Rs.2,000 an additional fee calculated at one-third of the fee allowable under clause (1) shall be payable to junior Practitioner engaged with a senior Practitioner: Provided that the junior was on record at least from the last of the dates fixed for the appearance of the respondent. Provided further that in any case, where a junior's fee is payable under this rule or under Rule 19, the Court shall have a discretion to fix that fee at half the senior's fee instead of one-third. (3) The fees for the junior legal Practitioner for settling of documents for translation and or printing in first appeals shall be a minimum of Rs.25 and a maximum of Rs.50 subject to the discretion of the taxing officer." https://hcservices.ecourts.gov.in/hcservices/ 31. In view of the aforesaid rules, this Court fixes the fees for the Learned Additional Government Pleader (AS) in terms of Rule 12 of the Legal Practitioner's Fees Rules, 1973, based on the facts and circumstances of the instant case. 32. In the result, the appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Award of the Tribunal viz., Learned First Additional Sub Judge, Salem in LAOP 27/80 dated 30.04.1983 is confirmed by this Court, for the reasons assigned in this appeal. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ars To 1. The First Additional Sub Judge, Salem. Copy to: The Section Officer VR Section, High Court, Madras. + 1 cc to M/s. Saravabhavan, Advocate SR.63018 + 1 cc to Mr. Special Government Pleader Sr.63372 A.S. No.506 of 2002 MSM(CO) Eu 7.11.10 https://hcservices.ecourts.gov.in/hcservices/