IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED:15.10.2009 CORAM: THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH A.S.No.391 of 2000 and C.M.P.No.8521 of 2002 The Special Tahsildar, Adi Dravidar Welfare Thirupathur North Arcot District .. Appellant/Referring Officer vs 1. Saman (died) 2. Chinnathai (died) 3. Shanmugam (RR2 and 3 have been brought on record as LRs of the deceased first respondent vide order dated 30.8.2000.) (R3 recorded as LR of deed R2 vide order dated.16.6.09 .. Respondents/Claimants Appeal against the judgment and decree dated 21.12.1994 in L.A.O.P.No.52 of 1991 on the file of the learned Subordinate Judge of Thiruppathur. For Appellant : Mr.V.Ravi Special Govt.Pleader (A.S.) For Respondent : Mr.P.S.Kothandaraman JUDGMENT This appeal by the Land Acquisition Officer is focussed as against the judgment and decree dated 21.12.1994 passed by the learned Subordinate Judge of Thirupathur in L.A.O.P.No.52 of 1991. For convenience, the ranks of the parties before the lower Court are maintained in this judgment. 2. The brief facts which are necessary for the disposal of this appeal are as follows: The Government published Section 4(1) Notification under the Land Acquisition Act for acquiring the lands measuring an extent of 0.15.0 hectares in S.No.415/2C, 0.20.0 hectares in S.No.415/3, O.40.5 hectares in S.No.416/2, 0.21.5 hectares in S.No.417 /1 and 0.25.0 hectares in S.No.418/1A in Peddur Village, Vaniyambadi Taluk for the purpose of providing housing sites for https://hcservices.ecourts.gov.in/hcservices/ the Adi Dravidar personnel. After complying with the procedures, the Land Acquisition Officer passed an award in Award No.5/90-91 dated 5.2.1991 assessing a sum of Rs.11,000/- per acre towards compensation. Being aggrieved by such awarding of the compensation, the matter was got referred to the Sub Court under Section 18 of the Land Acquisition Act. 3. During enquiry before the Sub Court, claimant was examined as P.W.1. On the side of the respondent, R.W.1 was examined and Exhibits B1 to B3 were marked. 4. The trial Court, ultimately enhanced the compensation from Rs.11,000/- per acre to Rs.3.33/- per sq.feet. 5. Being aggrieved by and dissatisfied with such enhancement, the Government filed this appeal on various grounds. 6. Heard Mr.V.Ravi, the learned Special Government Pleader (A.S) appearing for appellant and Mr.P.S.Kothandaraman, the learned counsel appearing for the respondent. 7. Learned Special Government Pleader would submit in his argument that the lower court had wrongly fixed the value at Rs.3.33 per sq.ft, where as the acquired lands were punja lands and the principle of fixing the value for punja lands at square feet rate is prohibited by the principle laid down by the Hon'ble Apex court. He would further submit in his argument that the enhancement of compensation fixed by the Land Acquisition Officer at Rs.11,000/- per one acre has been wrongly enhanced by the lower court. He would further submit in his argument that the judgment of the Hon'ble Apex court reported in 1995 Supp (4) SCC 219 (INDUMATI CHITALEY vs. GOVT. OF INDIA AND ANOTHER) for the principle that fixing of market price at square feet basis for larger extent of lands is not sustainable in law. He would again submit in his argument that the data land as described in Ex.B2 is a punja land with all features similar to the lands acquired. He would also submit that lower court did not assign any reasons for relying upon Ex.A1- a sale deed in respect of house site which cannot be applied to the present case. He would also submit that the claimant had only asked for a compensation of Rs.40,000/- per one acre but the lower court had awarded more than Rs.1000/- per one cent by fixing value at Rs.2.66/- per sq.ft which is highly excessive. He would also submit that the said award of compensation is against the principles laid down in the Section 28 of the Land Acquisition Act. He had also cited a judgment of Hon'ble Apex Court reported in 1997 1 SCC 249 (TEHRI HYDRO DEVELOPMENT CORPN. vs. S.P. SINGH AND OTHERS) to the said proposition of law. He would therefore request the court that the market value fixed by the Land Acquisition Officer is perfectly alright and the enhancement of compensation by the Tribunal is beyond all propositions and it is more than 10 times the value fixed by the Land Acquisition Officer and therefore it is liable to be set aside. He would also request that the appeal be allowed https://hcservices.ecourts.gov.in/hcservices/ after setting aside the enhancement of compensation allowed by the lower court and to fix the market value in consonance with the finding reached by the Land Acquisition Officer. 8. The learned counsel for the respondents/claimants would submit in his argument that the lower court was correct in fixing the value at Rs.2.66/- per one sq.ft based on the valuation in the Ex.A1 even though the lower court has to fix the actual sales price entered into Ex.A1. He would further submit in his argument that the sale entered into between the third parties sufficiently prior to the date of notification would certainly apply to the present case and the fixing of the market value by the Land Acquisition Officer was very low which is not applicable to the present case. He would further submit in his argument that Land Acquisition Officer has searched for the lowest price and had fixed the market value at Rs.11,000/- per one acre which is far beyond all proportions of the actual value of the land. The value mentioned in the said sale deed produced as Ex.B2 was away from the acquired land as well as from Peddur village where as the land comprised in Ex.A1 is the adjacent land and it was sold as house site and therefore the lower court was very much depending upon the said document as the data sale in Ex.B2 was not applicable to fix the market value of the lands acquired. He would submit in his argument that the lower court also deducted 20% of the value at Rs. 3.33 per square foot as mentioned in Ex.A1 towards the development charges fixed though the acquired lands were taken away from the claimants for the purpose of providing house sites to the houseless Adi Dravidar community people. It has been recommended by the Hon'ble Apex court in a judgment reported in AIR 2007 SC 740 (THE DEPUTY DIRECTOR, LAND ACQUISITION v. MALLA ATCHINAIDU & ORS.) that the deduction towards the development charges at 35% is not justified and 1/5th of the value mentioned in the document would be sufficient for assessing the correct value. He would also submit that the lower court had adopted the value mentioned in Ex.A1 since no other document was very much suitable for fixing the value of the land acquired and therefore the calculation at square feet basis was opted by the lower court and it is in no way prejudicial to the appellant. Therefore the facts of the case mentioned in the Apex court as cited by the learned Special Government Pleader would not be applicable to the facts of the present case. He would again submit in his argument that the Land Acquisition Officer had not properly enquired prior to the passing of the award but had come to a conclusion without gathering the data of sales in and around the lands acquired including Ex.A1 sale. He would also submit that the claimant is always entitled to the actual market value, despite he has claimed less. As per the judgment of our Apex court reported in 2008 10 SCC 797 between (BHIMASHA vs. SPECIAL LAND ACQUISITION OFFICER AND ANOTHER). He would also draw the attention of the court to the judgment of Hon'ble Apex court reported in 1969 1 MLJ SC 45 in between ( SRI RANI M. VIJAYALAKSHMAMMA RAO BAHADUR, RANEE OF VUYYUR vs. THE COLLECTOR OF MADRAS) to the principle that wheb different transactions were https://hcservices.ecourts.gov.in/hcservices/ collected by the Government, the transaction involving highest value should be preferred to the rest unless there are strong circumstances justifying different modes. Therefore he would request the court that the fixing of market value by the lower court is perfectly alright and the potentiality of the land is also implied since it was taken for the purpose of providing house to the houseless Adi-Dravidar community people and the acquired land is lying adjacent to the house sites near the Peddur village. Therefore he would ask for dismissal of the appeal and to confirm the judgment and award passed by the lower court. 9. I have given anxious thoughts to arguments advanced on either side . 10. The point for consideration is that whether the judgment and award passed by the lower court in fixing the market value at square feet rate for the acquired lands would be sustainable or not. 11. The acquired lands were belonging to the 1st respondent/ claimant at Peddur village in S.No.415/2C of an extent of 0.15.0 hectare; in S.No.415/3 of an extent of 0.26.0 hectare; in S.No.416/2 of an extent of 0.40.5 hectare; in S.No.417/1 of an extent of 0.21.5 hectare and in S.No.418/1A of an extent of 0.25.0 hectare and for a total extent of 1.28.0 hectare and they were acquired along with other lands for the purpose of providing house sites to the house less Adi-Dravidar community people. The 4(1) notification was issued in the Government Gazette on 10.08.1988 where as it was published in the village only on 12.08.1988. However the Land Acquisition Officer had gathered data sales in between 12.08.1987 and 11.08.1988. Accordingly 39 datas were collected and 39th data sale deed dated 28.07.1988 under which one acre of punja land in S.No.256/2 was sold for a sum of Rs.11,000/- was selected for fixing the value. The other datas contained in the said data sales produced as Ex.B1 were rejected by the Land Acquisition Officer as not applicable to the land acquired. How ever the lower court had after going through the evidence produced on either side came to the conclusion of rejecting the value fixed by the land acquistion officer on the basis of Ex.B2 the data sale and had relied upon Ex.A1 produced by the claimant. 12. The land acquisition office who was examined as RW1 had categorically admitted that several documents showing higher value for the said lands were not relied upon but he had considered that the data sale in S.No.39 of Ex.B1 (Ex.B2 sale deed) and relied upon the same for fixing the value at Rs.11,000/- per one acre. It is the dictum of our Apex court reported in 1969 1 MLJ (SC) 45 in between SRI RANI M. VIJAYALAKSHMAMMA RAO BAHADUR, RANEE OF VUYYUR vs. THE COLLECTOR OF MADRAS that the highest value should be preferred. The relevant passage would run thus: https://hcservices.ecourts.gov.in/hcservices/ "... Whatever that may be, it seems to us to be only fair that where sale deed pertaining to different transactions are relied on behalf of the Government, that representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. In any case we see no reason why an average of two sale deeds should have been taken in this case." In view of the dictum laid down by the Hon'ble Apex court the highest value found in the data sales should have been adapted by the Land Acquisition Officer and if he wants to deviate from adapting higher value then there must be a strong reason for justifying the different quotes. We go through the award passed by the Land Acquisition Officer he has not even described why he has come to the conclusion of adapting the value Ex.B2. As we had already discussed that he had admitted in his evidence as RW1 that he had rejected the circumstance values found in the data sales for no reasons. Therefore the value fixed by the Land Acquisition Officer at Rs.11,000/- per one acre cannot be accepted. 13. As regards the reliance placed by the lower court Ex.A1 is concerned we have to firstly see whether the said land could be compared for fixing the lands acquired. Ex.A1 was produced by PW2 who had entered into the transaction. The said sale was dated 05.01.1988 prior to 4(1) notification. The said sale was calculated for a sum of Rs.10,000/- for an extent of 2400 sq.ft. In S.No.412/1 out of 2 acres 68 cents. There is no dispute that the land comprised in Ex.A1 sale deed was punja land but it has been sold on square feet basis. The smaller extent of land measuring 5.5 cents equal to 2400 sq.ft was sold. When once a smaller extent is sold the value mentioned in the said document should have been applied with necessary deductions. Before that we have to see whether the said document could be applied in preference to other documents especially Ex.B2. There is no dispute that the land comprised in Ex.A1 was adjacently located to the acquired land. When the village Map Ex.B3 is perused we could see that the land in Ex.A1 is seen located next to the acquired lands where as the land comprised in s.No.39 of Ex.B1 (the land in Ex.B2) was located far away on the northern side of Peddur village. The other data sales and are also not very near to the lands acquired and therefore the appropriate land should be the land comprised in Ex.A1 for the purpose of fixing the value of acquired lands. In the said circumstances, we could see the arguments advanced by the learned Government pleader that the lower court was wrong in adopting Ex.A1. The land in fixing the value is not sustainable. Ex.A1 land was sold as a house site and therefore, the acquired lands lying adjacent to the said land are having such higher potential value. However the said land comprised in Ex.A2 was a smaller one for which we have to fix value for the larger extent of the acquired lands. When the value https://hcservices.ecourts.gov.in/hcservices/ of smaller extent of the land has been applied for the large extent of land, deduction should be made towards development charges. As rightly pointed by the learned counsel for respondents/claimants 20% of the deduction for ascertaining the correct value of the acquired lands could be allowed as per the dictum of our Apex court laid down in AIR 2007 SC 740 between THE DEPUTY DIRECTOR, LAND ACQUISITION v. MALLA ATCHINAIDUR & ORS. "Moreover, the High Court has failed to take into consideration Ex.A-5, A-6 and A-17, which are agreements of sale wherein the rate per acre was between 2 lakhs to 2 ½ lakhs per acre. The reference court, held that recitals in Ex.A-1, A-5 to A-7 and A-15, A-16 and A-18 go to establish that there were willing purchasers for the lands of the claimants at rupees more than 2 lakh and the recitals in Ex.A-13 further go to show that even a wet land which is not fit for using it as house sites was agree to be purchased at Rs.1000/- per cent." The lower court had in conformity with the judgment of Hon'ble Apex court had come to the conclusion of deducting 20% of the value fixed by it on the basis of Ex.A1. Lower court was conscious about fixing the market value of Rs.8000/- for the said 2400 sq.ft inspite of fixing the value at Rs.10,000/- is agreed in between two parties. Actually the market value would be the value agreed to pay by a willing purchaser to a willing seller. The said principle has been enumerated in various judgments of our Apex court. Therefore, according to the wishes of both seller and buyer in Ex.A1, the value of the property should have been fixed at Rs.10,000/- for 2400 sq.ft. However the lower court had taken the valuation at Rs.8000/- only and it arrived at the value to be fixed at Rs.3.33/- per one square feet. It had reduced 20% from the said value towards the deduction charges as contemplated in the judgment of our Apex court for ascertaining the value of larger extent by deducting towards development charges. Accordingly it was fixed at Rs.2.66 per sq.ft. 14. The contention of the learned Government pleader would be that the fixing of market value for the agricultural lands on square feet basis is illegal as per the judgment of our Apex court reported in 1995 Supp (4) SCC 219 (INDUMATI CHITALEY vs. GOVT. OF INDIA AND ANOTHER. The relevant passage would be as follows:- "..Though alternative method had been adopted to use it as plots for building purposes which was also adopted by the High court, we think that the alternative method adopted by the reference court as well as by the High court is not correct on the facts of this case." https://hcservices.ecourts.gov.in/hcservices/ When we compare the facts of the present case we could see that the lands acquired were only for non agricultural purpose of providing house sites to the land less Adi-Dravidar community people. We have also seen that the adjacent land even though punja land was sold as house site and therefore the lands acquired were having potential value. According to the judgment of our Apex court reported in (1985) 1 SCC 469 (SPECIAL Land Acquisition Officer, BANGALORE vs. B.M. KRISHNAMURTY) we could see the dictum laid by our Apex court thus "4. Though the compensation awarded for agricultural lands is not directly in issue in Civil Appeal 1127 of 1974 and SLP 3450 of 1974, it is necessary to consider the same in determining the compensation to be awarded for lands whose use for non-agricultural purposes has been sanctioned. In considering the compensation to be awarded for agricultural lands the High court took notice of the circumstance that the lands had great potential value for building purposes on account of their excellent location." "5.....Taking that into account and making a provision for a 20% rise in price on the basis of the documentary evidence produced before the court, the High court thought that compensation at the rate of Rs.22,000 per acre was adequate and reasonable for land the user of which had been permitted to be converted from agricultural to non- agricultural. We think that the conclusion of the high court is unassailable." Since the conversion of agricultural land into non agricultural purpose is set out through the acquisition. The facts discussed in these judgment of our Apex court 1995 Supp (4) SCC 219 (INDUMATI CHITALEY vs. GOVT. OF INDIA AND ANOTHER) not applicable to the present case. 15. Therefore, I could see that the lower court was justified in adopting the method of fixing the market value on thebasis of the sale of smaller extent made in Ex.A1. The lower court could have calculated the value based on cent basis instead of square feet basis. But it had resorted to on the available square feet furnished in Ex.A1. If it is calculated on cent basis one cent of land as per Ex.A1 would be valued at Rs.1454.54/- and on reduction of 20% we could see one cent of land would cost at Rs.1164/-. The value fixed at Rs.2.66/- per one square feet would also cost Rs.1164/- for one cent if it is multiplied by 436 sq.ft. The property sold through Ex.A1 was described and sold as agricultural land but with a lesser extent with the measurement given in square feet. Merely because it has been mentioned in square feet which will not change the character of the property, sold under Ex.A.1. Therefore, the calculation made by the lower https://hcservices.ecourts.gov.in/hcservices/ court for fixing the market value on square feet basis is not attracted by the judgment of our Apex court as put forth by the learned Government pleader are not applicable to the present case. 16. For the foregoing discussions, I am of the considered view that the lower court was right in fixing the market value on the basis of Ex.A1 and its arrival to the fixing of market value on the sound principles laid down for deduction of development charges as mentioned in the judgment of Hon'ble Apex court reported in AIR 2007 SC 740 (THE DEPUTY DIRECOR, LAND ACQUISITION v. MALLA ATCHINAIDU & ORS.) 17. In view of the said judgment of Hon'ble Apex court reported in 2008 10 SCC 797 between (BHIMASHA v. SPECIAL Land Acquisition Officer AND ANOTHER) there is no bar for the claimant be awarded with higher compensation than he claimed. Accordingly the judgment and award passed by the lower court are confirmed. 18. In fine, the appeal is dismissed by confirming the judgment and award passed by the lower court. There will be no order as to costs. Connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1. The Subordiante Judge, Thirupatthur. 2.The Record Keeper, V.R.Section, High Court, Madras. + 1 cc to Mr.P.S.Kothandaraman,Advocate,SR.54203 A.S.No.391 of 2000 and C.M.P.No.8521 of 2002 KSJ(CO) EM/27.1.10 https://hcservices.ecourts.gov.in/hcservices/