IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2010 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL A.S.No.723 of 2010 and M.P.Nos.1 & 2 of 2010 The Special Tahsildar (LA) Salem – Karur Broad Gauge, Railway Scheme, Salem. ... Appellant/Referring Officer Vs. 1.Parvathy 2.Mani 3.Chellamuthu 4.Rangasamy 5.Krishnan 6.Duraisamy ... Respondents/Claimants 7.The Deputy Chief Engineer (Construction) South Railway, Salem-5, Salem-Karur Broad Gauge, Railway Scheme. ... Respondent/Beneficiary Appeal suit filed under Section 54 of the Land Acquisition Act, to set aside the Decree passed in L.A.O.P.No.293 of 2002 dated 19.05.2003 on the file of the Additional District Sessions Court, (Fast Track Court-I), Salem. For Appellant : Mr.V.Ravi, Special Govt. Pleader (AS) For 7th Respondent : Mr.V.G.Suresh Kumar JUDGMENT The Appellant/Referring Officer has projected the instant Appeal before this Court as against the Award dated 19.05.2003 in L.A.O.P.No.293 of 2002 passed by the Learned Additional District Sessions Judge, (Fast Track Court-I), Salem. 2.Since the subject matter of the present Appeal is covered by the Judgment of the Division Bench of this Court in A.S.Nos.430 to 454 of 2007, 472 to 481 and 597 to 604 of 2008, dated 16.07.2009, this Court to avoid an avoidable delay dispenses with the issuance of notice to Respondents 1 to 6/Claimants. 3.The Appellant/Referring Officer has acquired the lands for the purpose of laying Railway track from Salem to Karur to an extent of 2.01.0 hectares of land in various Survey Numbers including the Survey No.58/14A4 measuring an extent of 325 Square Metre (1st Respondent measuring an extent of land 124.4 Square Metre, 2nd and 3rd Respondents sons of Muthusamy measuring an extent of land 124.4 Square Metre, 4th Respondent measuring an extent of land 27.23 Square Metre, 5th Respondent measuring an extent of land 11.22 Square Metre and 6th Respodent measuring an extent of land 37.75 Square Metre) belonging to the Respondents/Claimants in https://hcservices.ecourts.gov.in/hcservices/ Amanikondalampatti Village, Salem Taluk, by applying the exigency provision of the Land Acquisition Act, 1894. The 7th Respondent is the Requisitioning Body/Beneficiary viz., Railways. 4.The Notification as per Section 4(1) of the Act has been issued on 23.02.1999. The said Notification has been published in Tamil Dailies in Malai Murasu dated 25.02.1999 and in Dinakaran dated 26.02.1999 and 08.03.1999 in the locality the said notification has been published. Section 6(1) Declaration under the Land Acquisition Act, 1894 has been published on 17.03.1999 at Page 6 to 8, Part II, No.224, dated 17.03.1999. After complying with the necessary formalities laid down under the Land Acquisition Act, an Award has been passed on 28.10.1999 by the Special Tahsildar/Land Acquisition Officer. In the Award, the acquired land has been classified into three categories by the Land Acquisition Officer i.e., (1)an extent of 1.36.0 hectares as dry agricultural land (2)an extent of 5480.5 Square Metre, as house sites (3)994.5 Square Metre, as Natham. 5.The Land Acquisition Officer as regards the dry agricultural land fixed the compensation at Rs.46,359/- per Acre, which comes to Rs.1.06 per Square Feet The compensation in respect of the first category in aggregate has been awarded at Rs.1,55,706.40p.However, the second and third categories have been considered together and a sum of Rs.140.70 per Square Metre, has been determined which comes to Rs.13.83 per Square Feet. The compensation in aggregate fixed under the two categories works out to Rs.7,66,885.35p. 6.The 1st Respondent and 5 others have been granted the compensation of Rs.95,700/-, Rs.25,355/- (2nd and 3rd Respondents), Rs.32,557/-, Rs.25,104/- and Rs.33,496/- respectively including the compensation for Thatched shed, Mangalore Tiled House, etc., and aggregating in all a sum of Rs.2,12,213/- in respect of the acquired lands, by the Land Acquisition Officer. The Respondents/Claimants have objected to the value of compensation awarded to them and being dissatisfied and because of their objection, the Appellant/Referring Officer has referred the matter before the Tribunal as per Section 18 of the Land Acquisition Act, 1894. 7.The Respondents 1 to 6 have prayed for the enhancement of compensation, dissatisfied with the quantum of compensation awarded by the Land Acquisition Officer in his Award. 8.Before the trial Court viz., the Learned Additional District Sessions Judge, (Fast Track Court No.I), Salem, L.A.O.P.Nos.247 to 299 of 2002 have been taken up for trial and a Common Award has been passed on 19.05.2003 determining the market value of the land acquired at Rs.125/- per Square Feet, irrespective of the classifications made by the Land Acquisition https://hcservices.ecourts.gov.in/hcservices/ Officer by considering all the lands on par with each other. For the Claimants whose lands have been severed from their remaining land, a compensation at 25% of the value has been granted. As regards the individuals whose houses have been acquired, 25% of the value has been awarded. 9.The Tribunal has granted a sum of Rs.36,500/- to the 1st Respondent as compensation in respect of the Mangalore tiled house and in respect of hut house, granted a sum of Rs.52,000/- and for the RCC basement granted a sum of Rs.28,890/- and in respect of the 6th Respondent/Claimant's Mangalore house, a compensation of Rs.77,340/- has been awarded, in respect of the 5th Respondent/Claimant's Mangalore tiled house, a compensation of Rs.60,000/- has been granted, in respect of the 4th Respondent/Claimant's basement building, a sum of Rs.69,500/- has been granted and apart from the above, the Tribunal has granted the statutory benefits. 10.Before the Tribunal viz., the Learned Additional District Sessions Judge, (Fast Track Court-I), Salem in the common Award in L.A.O.P.Nos.247 to 299 of 2002, dated 19.05.2003, on behalf of Claimants witnesses C.W.1 to C.W.10 have been examined and Exs.C.1 to C.88 have been marked. On the side of the Appellant/Land Acquisition Officer, witness RW1 (Special Tahsildar) has been examined and Exs.R.1 to R.8 have been marked. 11.Being aggrieved against the Award dated 19.05.2003 passed by the Tribunal viz., the Learned Additional District Sessions Judge, (Fast Track Court No.I), Salem in L.A.O.P.No.293 of 2002, the Appellant/Referring Officer has filed the present Appeal before this Court. 12.The point that arises for consideration in this Appeal is: Whether the Award in L.A.O.P.No.293 of 2002 dated 19.05.2003 passed by the Learned Additional District Sessions Judge, (Fast Track Court-I), Salem is an Excessive one in the eye of law? The Contentions, Discussions and Findings on Point No.1: 13.According to the Learned Special Government Pleader (AS), the Tribunal viz., the Learned Additional District Sessions Judge, (Fast Track Court-I), Salem while enhancing the compensation exorbitantly for the land from Rs.1,14,490/- per Hectare to Rs.125/- per Square Feet, and he, also in respect of the trees, building, structures, compound, factory, well, motor pumpsets, etc., has not followed the procedures prescribed under the Land Acquisition Act, 1894 and indeed the Land Acquisition Officer has given the proper value of Rs.1,15,490/- per Hectare in respect of the acquired land after carefully scrutinising the sale which has taken place in the locality and prior to the date of Section 4(1) Notification for acquisition of land etc. 14.The Learned Special Government Pleader (AS) urges before this Court that the Tribunal has granted the compensation https://hcservices.ecourts.gov.in/hcservices/ excessively in respect of the trees without any evidence of the experts in the field or the documents for the same to justify the enhanced claim and in short, the Tribunal has rested its conclusion based on conjectures and surmises and apart from the above, the other reasons assigned by it in the Award are not tenable legally and therefore, prays for allowing the Appeal in furtherance of substantial cause of justice. 15.At this juncture, the Learned Special Government Pleader (AS) brings it to the notice of this Court that in A.S.Nos.430 to 454 of 2007, 472 to 481 and 597 to 604 of 2008, this Court by a Judgment dated 16.07.2009 has determined the value of the land at Rs.100/- per Square Feet, after deducting Rs.25/- per Square Feet, and the said Common Judgment in the aforesaid Appeal squarely applies to the facts and circumstances of the present case. 16.This Court worth recalls the decision of the Honourable Supreme Court Sangunthala (Dead) through LRs V. Special Tahsildar (Land Acquisition) and others (2010) 3 Supreme Court Cases 661 at page 662, whereby and whereunder it is laid down as follows: "While determining value of the property acquired the fact whether the land has got building potentiality to be used for building purposes in immediate or in near future needs to be considered. Evidence of C.Ws established that the lands were near the residential housing colonies and well connected to roads. High Court ignored materials on record and relied only on depositions of C.Ws 1 and 6 who admitted that initially all the acquired lands were agriculture lands. It thus, fell into an error in concluding that the acquired lands were agriculture lands and erroneously reversed the conclusions arrived at by the Reference Court." 17.Further, this Court aptly quotes the observation of the Honourable Supreme Court Thakur Kuldeep Singh (Dead) through LRs and others V. Union of India and others (2010) 3 Supreme Court Cases 794 at 795 whereby it is observed thus: "While fixing compensation, it is the duty of the Land Acquisition Collector and the Court to take into consideration the nature of the land, its suitability, nature of the use for which the lands are sought to be acquired on the date of notification, income derived or derivable from or any other special distinctive feature which the land is possessed of, the sale transactions in respect of land covered by the same notification are all relevant factors to be taken into consideration in determining the market value. It is equally relevant to consider the suitability of neighbourhood lands as are possessed of similar potentiality or any advantageous features or any special characteristics available. The Collector as well https://hcservices.ecourts.gov.in/hcservices/ as the court should always keep in their mind that the object of assessment is to arrive at a reasonable and adequate market value of the land. While doing so, imagination should be eschewed and mechanical assessment of evidence should be avoided. More attention should be on the bona fide and genuine sale transactions as guiding star in evaluating the evidence. The relevant factor would be that of the hypothetical willing vendor would offer for the land and what a willing purchaser of normal human conduct would be willing to buy as a prudent man in normal market conditions prevailing in the open market in the locality in which the acquired lands are situated as on the date of notification under Section 4(1) of the Act. The Judge who sits in the armchair of the willing buyer and seeks an answer to the question whether in the given set of circumstances as a prudent buyer he would offer the same market value which the court proposed to fix for the acquired lands in the available market conditions. The market value so determined should be just, adequate and reasonable. In view of the purpose for which the "circle rates" have been notified by the Ministry of Urban Affairs and Employment, market value of a plot cannot be determined solely on the basis of the circle rates. However, it cannot be ignored in toto. If other materials are available, government rates can also be considered as corroborative evidence. The nature of the land plays an important role. Likewise, market conditions prevailing as on the date of notification are also relevant. Sale price in respect of a small piece of land cannot be the basis for determination of market value of a large stretch of land." 18.Also in Special Land Acquisition Officer V. Karigowda and others (2010) 5 Supreme Court Cases 708 at page 710, the Honourable Supreme Court has held thus: "Keeping in mind the facts and circumstances of the case, it will also be just and fair to adopt some liberal approach with some element of guesswork to provide the claimants with just and fair market value of the land in question. It must be remembered that the entire land was acquired for the purpose of submerging the lands because of the water coming from Hemavathi Dam. In view of the cumulative discussion referred to above it will be just, fair, equitable and in consonance with Sections 23 and 24 of the Act that the market value of the land on 4-4-2002 can safely be taken as https://hcservices.ecourts.gov.in/hcservices/ Rs.2,30,000/- per acre in the case of garden land (instead of Rs.5,00,000/- per acre awarded by the High Court) and, applying the accepted principle of reducing the said compensation in the case of dry land (instead of Rs.2,53,4000 per acre awarded by the High Court) keeping in view the peculiar facts and circumstances of the present case and the evidence on record." 19.It is to be noted that fixing of compensation by a Court of Law is not an exact science. The significant thing to be taken note of by a Court of Law is to consider all relevant factors as per decision Baboo Ram V. State of Uttar Pradesh AIR 1980 All. 324 (DB). 20.All the potentialities of the land viz., advantages which the land has, present or future in the hands of an owner will have to be taken into account as held in Cedars Rapids Manufacturing and Power Company V. Lacoste 1914 AC 569. 21.Moreover, a land is to be valued merely by reference to the use to which it is being put, but, also by reference to the use which it is reasonably capable of being put in future subject, of course, to the limitations mentioned in Section 24 of the Act as held in V.S.Subramania Chettiar V. State of Madras AIR 1953 Madras 943. 22.If a land has been acquired compulsorily as per the Land Acquisition Act, the value to be paid for it, is the value of the owner as it existed on the date of Notification as per Section 4 of the Act and not the value of the taker as per decision Manmatha Nath V. Secretary of State 83 IC 442. 23.The locational advantages, the potential value, its future prospects all these factors go a long way when a Court of Law fixes a compensation amount in respect of the acquired land. 24.Be that as it may, this Court pertinently quotes the observations may by the Division Bench of this Court in the Judgment in A.S.Nos.430 to 454 of2007, 472 to 481 and 597 to 604 of 2008, dated 16.07.2009 which runs below: "8.As contended by the learned counsel for the second respondent, the sales that took place in and around the land under acquisition, which are 615 in number, were sold on sq. ft. basis as house sites for the purpose of putting up the construction of building. That is the reason for the counsel for the second respondent to concede that they cannot object for determination of the compensation by square feet basis. 9.We also find, on facts, that almost all the 615 sales were made on the basis of sq. ft. only. It is seen from paragraph 9 of the judgment of the Reference Court, wherein it has https://hcservices.ecourts.gov.in/hcservices/ categorically been admitted by the appellant – Special Tahsildar, who deposed as DW1 that the lands which are the subject matter of LAOP NO.252, 257, 281 to 285, 287, 288 of 2002 were all house sites. He further admitted that the lands under acquisition, though differently classified in the revenue records, they are house sites only and the lands in and around the acquired lands have been sold as house sites only. The claimants, who deposed before the Reference Court, have also spoken to about this fact that though the land in Survey No.19/3A1A has been classified as agricultural dry and natham, the sales that were effected during the period were on the sq. ft., basis treating the lands as house sites. Hence, on the basis of the documents supported by the evidence adduced by as many as 10 claimants which has been supported by the evidence of DW1, the Special Tahsildar, we can safely come to the conclusion that the action of the Reference Court in determining the compensation at sq. ft., basis is correct and cannot be stated to be faulty. 10.In respect of the value determined by the Reference Court, it is true that before the Reference Court, Sl.No.476 a document dated 15.04.1998 in which land has been sold at Rs.100.55 per sq. ft., has not been marked by the claimant, but the fact remains that the very document was available before the Reference Court as it was taken as one of the several data lands. By taking into the totality of the circumstances of the case, as to the lie of the land suitable for immediate construction and that Sl.No.476 document is also one of the several documents gathered by the Land Acquisition Officer for the purpose of determining the value of the land, which on par with the acquired land in all aspects, is more suitable for determining the value of the subject land. As already stated, under that document, a square foot has been sold at Rs.100.55. On that basis, the Reference Court has determined the value at Rs.125/- per sq. ft., by enhancing the value by Rs.25/-. 11.We are not able to sustain the argument of the learned counsel for the second respondent, that the enhancement of Rs.25/- over and above the value of the land in Sl.No.476, because Sl.No.476 was sold on 15.04.1998, but the 4(1) notification is dated 23.02.1999. Hence, there must be some escalation in the price of the house sites. As per Section 23 of the Land Acquisition Act, the value has to be determined by taking into consideration the market value of the land on the date of publication of the notification under https://hcservices.ecourts.gov.in/hcservices/ Section 4(1) of the Act. As the date of the notification under Section 4(1) of the Act is nearly one year after the date of sale of land under Sl.No.476, the enhancement of Rs.25/-, in our view, would reflect the fair market value. If that be so, we are of the view that the determination of the value of the land at Rs.125/- per sq. ft., is a fair market value of the land and it cannot be regarded as on the higher side. An attempt was made to contend that no amount was deducted from the value determined towards development charges, by relying on the supreme Court decisions in the cases of Basavva V. Spl. Land Acquisition Officer, (1996) 9 SCC 640 and Land Acquisition Officer, Kammarapally Village V. Nookala Rajamallu, AIR 2004 SC 1031. Here again, we are not able to concur with the argument. The public purpose for which the land was acquired in the present case is for formation of railway track from Salem to Karur, which require no development except strengthening the track land and laying the rail track. It is apt, we think to quote certain observations made by the Apex Court in the case of Nelson Fernandes V. Special Land Acquisition Officer, 2007 (9) SCC 447: "We are not, however, oblivious of the fact that normally 1/3rd deduction of further amount of compensation has to be directed in some cases. However, the purpose for which the land acquired must also be taken into consideration. In the instant case the land was acquired for the construction of new B.G. Line for Konkan Railway. This Court, in Hasanali Khanbahi & sons V. State of Gujarat, (1995) 2 SCC 422 and Land Acquisition Officer V. Nookala Ramamallu, 2003(12) SCC 334 had, noticed that where lands are acquired for specific purposes deduction by way of development charges is permissible. In the instant case, acquisition is for laying a railway line. Therefore, the question of development charges thereof would not arise." But the Reference Court has not taken into consideration the largeness of the area which has been acquired, while arriving at the value with reference to small piece of land in Sl.No.476. The extent of lands sold by document dated 15.04.1998 in S.No.476 is 398 sq.mt., (4187 sq.ft.), whereas the land acquired is an extent of 2.01.0 hectares. Hence, definitely certain percentage in the value has to be deducted towards the largeness of the area acquired. https://hcservices.ecourts.gov.in/hcservices/ 12.In all reasonableness, a deduction of Rs.25/- per sq. ft., in our view, would meet the ends of justice. If such a deduction is given, the value of the land would be Rs.100/- per sq. ft. Thus, the value of the land is determined at Rs.100/- per sq. ft." 25.Since the subject matter of the present Appeal A.S.No.723 of 2010 is covered by a Common Judgment of the Division Bench of this Court in A.S.Nos.430 to 454 of 2007, 472 to 481 and 597 to 604 of 2008, dated 16.07.2009, this Court follows the same and after deducting a sum of Rs.25/- per Square Feet fixes the market value of the acquired land at Rs.100/- per Square Feet and accordingly, allows the Appeal in part, without costs. 26.In other respects, the Award of the Tribunal viz., the Learned Additional District Sessions Judge, (Fast Track Court-I), Salem dated 19.05.2003 made in L.A.O.P.No.293 of 2002 is not interfered with by this Court. 27.The fees of the Learned Special Government Pleader (AS) is determined by this Court as per Rule 12 of Legal Practitioner's Fees Rules, 1973 based on the present facts and circumstances of the case. 28.In the result, the Appeal is allowed in part, leaving the parties to bear their own costs. Consequently, the Award passed by the trial Court in L.A.O.P.No.293 of 2002 dated 19.05.2003 stands modified. In other respects, the Award of the Trial Court is affirmed. Consequently, the connected miscellaneous petitions are closed. Sd/ Asst. Registrar /True Copy/ Sub Asst.Registrar va To 1 The Additional District Sessions Court, (Fast Track Court-I), Salem. 2 The Section Officer, VR Section, High Court, Chennai 104. +1 CC to Government pleader (SR No.80750) GV(CO) DD 07/12/2010 A.S.No.723 of 2010 and M.P.Nos.1 & 2 of 2010 https://hcservices.ecourts.gov.in/hcservices/