IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :19.04.2011 Coram The Honourable Mr.Justice G.RAJASURIA S.A.No.231 of 2009 Land Acquisition Officer and Special Tahsildar (ADW) Kallakurichi. .. Appellant/Respondent/ Acquiring Officer vs Varadhan .. Respondent/Appellant/ Land Owner-Claimant This second appeal is filed against the judgment and decree dated 05.08.2008 passed by the learned Subordinate Judge, Kallakurichi in C.M.A.No.3 of 2002 modifying the award passed by the Land Acquisition Officer/Special Tahsildar (ADW), Kallakurichi in Award No.1/2001-02 dated 10.01.2002. For Appellant : Mrs.R.Revathi Government Advocate (CS) For Respondent : Mr.T.P.Manoharan JUDGMENT Animadverting upon the enhanced compensation awarded by the Appellate Court, viz., the Sub Court, Kallakurichi vide its judgment and decree dated 05.08.2008 in C.M.A.No.3 of 2002 modifying the award passed by the Land Acquisition Officer/Special Tahsildar (ADW), Kallakurichi in Award No.1/2001-02 dated 10.01.2002, the Land Acquisition Officer has filed this second appeal. 2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: a] The Government effected Notification under Section 4(1) of the Land Acquisition Act on 26.02.2000 intending to acquire an extent of 0.84.5 hectares of land in Veerasozhapuram(East), Kallakurichi for the purpose of carving out the said area into house sites and allot the same https://hcservices.ecourts.gov.in/hcservices/ in favour of the landless Adi Dravidar people. Out of the said larger extent, the claimant/respondent's land measured an extent of 0.65.5 hectares. The Land Acquisition Officer gathered as many as 38 sample sale deeds and ultimately took as exemplar documents, only the sale deeds relating to agricultural lands. Accordingly, awarded compensation treating the acquired land only as agricultural land, by assessing its value in a sum of Rs.64,220/- with other statutory entitlements. Ultimately, the award was passed in a total sum of Rs.73,853/- including solatium and interest as per law in favour of the land owner/ respondent. b] Being aggrieved by the said award, the land owner preferred appeal before the appellate authority, viz., the learned Subordinate Judge, Kallakurichi. c] During enquiry, the land owner Varadhan examined himself as PW1 along with P.Ws.2 and 3 and marked Exs.P1 to P4. On the side of the Land Acquisition Officer no one was examined and no document was marked. Ultimately the Sub Court enhanced the compensation at the rate of Rs.19,760/- per are and awarded the total compensation in a sum of Rs.14,77,060/-. 3. Challenging and impugning the enhancement of the compensation awarded by the Appellate Authority, this second appeal has been preferred by the Government on various grounds and also suggesting the following substantial questions of law: 1. Whether the court below erred in not appreciating the provisions of Section 8 of Act 31/1978 inasmuch as the section specifically provides that the future usage of the land shall not be taken into consideration for the fixation of market value? 2. Whether the court below had erred in not appreciating the fact that the Land Acquisition Officer had placed reliance on Ex.P1, the data sale deed since the land conveyed under the said document and the land acquired were similar in nature and classification? 3. Whether the court below had erred in placing reliance on Ex.P1 to P4 for fixation of market value without any discussion or finding as to the similarity in the nature of land conveyed under the said sale deed and the land acquired? 4. Whether the court below erred in not making any deduction towards the development charges especially when the fixation of market value was placed upon sale deed Ex.P1 to P4 where under a small extent of land classified as house site had been conveyed? (extracted as such) 4. My learned predecessor, while admitting the second appeal https://hcservices.ecourts.gov.in/hcservices/ virtually adapted the aforesaid substantial questions of law Nos.1 to 3 as such. 5. The learned Government Advocate appearing for the appellant/Land Acquisition Officer would set forth and put forth her arguments thus: i) The appellate authority without any rhyme or reason simply assumed as though the land owner prayed for awarding a lesser compensation of Rs.8,000/- per cent, which was below the actual market value and accordingly assessed the compensation per are in a sum of Rs.19,760/-. None of the documents filed on the side of the land owner would justify the findings given by the appellate authority. ii) The appellate court has erred in placing reliance on Ex.P4, which is only a "Form I Notice" sent by the Special Tahsildar/Deputy Collector Stamps. Absolutely, no deduction was made towards development charges while placing reliance on Ex.P1 and Ex.P4 by the appellate authority. iii) It is settled law that if a sale deed relating to a small piece of plot/ house is taken as exemplar document, necessary deductions should be made as per the decisions of the Hon'ble Apex Court; but, no such deduction was made by the appellate authority even though the land acquired from the land owner was only an agricultural land. Accordingly, she prays for setting aside the judgment and decree of the appellate authority. 6. In a bid to torpedo and pulverise and to take the edge off the arguments of the learned Government Advocate, the learned counsel for the land owner/respondent would put forth and set forth his arguments, which could tersely and briefly be set out thus: a) The area just adjacent to the land acquired, is a well developed site comprised of housing plots. The survey Number 208 was divided into various plots and were sold also long prior to the publication of Section 4(1) Notification. b) Exs.P1 to P3 would establish and evidence, demonstrate and display that those are sale deeds concerning plots sold for higher price even long prior to the publication of Section 4(1) Notification and the appellate authority, did not take into account Ex.P3 the sale deed dated 25.05.2004, which emerged after the publication of Section 4(1) Notification. However, the appellate authority correctly placed reliance on Ex.P1 the sale deed dated 11.02.1997 and also Ex.P4 and assessed the valuation. https://hcservices.ecourts.gov.in/hcservices/ c) The purpose of acquisition is only for carving out the land acquired into plots and for allotting the same to Adi Dravida Community people as house sites and in such a case, the court below was justified in enhancing the compensation and no interference in this regard is required. 7. All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with one another. 8. At the outset itself, I would like to fumigate my mind with the recent decision of the Hon'ble Apex Court reported in (2010) 5 SCC 708 – The SPECIAL LAND ACQUISITION OFFICER vs. KARIGOWDA AND OTHERS and certain excerpts from it would run thus: "What method should be adopted for determining the fair market value of the acquired land 70. To examine what method could be adopted for determining the market value of land and criticism of the method adopted by the Land Acquisition Collector, by the courts, that the same is not in accordance with law, we must notice various methods which are normally adopted by the courts for determining the fair market value of the land and which of the method can be more properly applied in the facts and circumstances of this case. 71. Sections 23 and 24 of the Act spell out the have and have-nots, applicable to the scheme of awarding compensation by the Collector but do not describe the methodology which should be adopted by the courts in determining the fair market value of the land at the relevant time. By development of law, the courts have adopted different methods for computing the compensation payable to the landowners depending upon the facts and circumstances of the case. The courts have been exercising their discretion by adopting different methods, inter alia the following methods have a larger acceptance in law: (a) Sales statistics method.—In applying this method, it has been stated that, sales must be genuine and bona fide, should have been executed at the time proximate to the date of notification under Section 4 of the Act, the land covered by the sale must be in the vicinity of the acquired land and the land should be comparable to the acquired land. The land covered under the sale instance should have similar potential and occasion as that of the acquired land (Faridabad Gas Power Project, NTPC Ltd. v. Om Prakash12, Shaji Kuriakose v. Indian Oil Corpn. Ltd.13 and Ravinder Narain v. Union of India14). https://hcservices.ecourts.gov.in/hcservices/ (b) Capitalisation of net income method.—This method has also been applied by the courts. In this method of determination of market value, capitalisation of net income method or expert opinion method has been applied (Union of India v. Shanti Devi15, Executive Director v. Sarat Chandra Bisoi16 and Nelson Fernandes v. Land Acquisition Officer8). (c) Agricultural yield basis method.—Agricultural yield of the acquired land with reference to revenue records and keeping in mind the potential and nature of the land—wet (irrigated), dry and barren (banjar). 72. Normally, where the compensation is awarded on agricultural yield or capitalisation method basis, the principle of multiplier is also applied for final determination. These are broadly the methods which are applied by the courts with further reduction on account of development charges. In some cases, depending upon the peculiar facts, this Court has accepted the principle of granting compound increase at the rate of 10% to 15% of the fair market value determined in accordance with law to avoid any unfair loss to the claimants suffering from compulsive acquisition. However, this consideration should squarely fall within the parameters of Section 23 while taking care that the negative mandate contained in Section 24 of the Act is not offended. How one or any of the principles aforestated is to be applied by the courts, would depend on the facts and circumstances of a given case. It is quite obvious that the judgment rendered by the appellate court is far from satisfactory. Without adhering to the well established principles in assessing the compensation, the appellate authority simply assumed as though the claim of the land owner in a sum of Rs.8000/- per cent was far below the actual market value of the land prevailed at the time of publication of Section 4(1) Notification. In fact, Section 4 (1) Notification was dated 26.02.2000 as found exemplified from the award itself; but the appellate authority assumed as though the cut off date for assessing the value should be 29.10.2001. 9. I would like to point out that the Land Acquisition Officer was not justified in blindly placing reliance on the exemplar documents relating to agricultural land. Indubitably and indisputably, unarguably and unassailably, survey No.208/8, which is adjacent to the land acquired was already converted into plots as revealed by Exs.P1 to P4 and in such a case, I am at a loss to understand as to how the land acquisition officer was justified in awarding compensation to the land acquired in S.No.208/3B and 208/6 treating it only as agricultural land but without treating it as an area capable of being converted into plots. It is also quite axiomatic that the Government itself is going to divide the land acquired into plots. Wherefore, I am having no https://hcservices.ecourts.gov.in/hcservices/ hesitation in holding that the Land acquisition officer was not justified in placing reliance on the documents concerning agricultural lands and in assessing the compensation. 10. The core question arises as to whether the first appellate court was justified in simply relying on Ex.P1 and Ex.P4, without in any manner applying the formula relating to assessment of agricultural land as potential house sites. In the process of valuing agricultural land as potential house sites, the cited decision supra would unambiguously and unequivocally, highlight and spotlight the fact that necessary deduction should be made. But the appellate court did not choose to apply the above said formula and award the compensation,warranting interference in the second appeal. In fact, the approach of the appellate authority was obviously perverse and illegal and it should necessarily be interfered with. 11. Ex.P4 is only a "Form I notice" sent by the Special Tahsildar/Deputy Collector (stamps) and it cannot be relied on as an exemplar document. Further more, Ex.P4 refers to a document relating to the year 1999, which emerged shortly before the publication of Section 4 (1) Notification and as such, no reliance could be placed on the same and further more Ex.P4 is not an exemplar document at all but it is only a notice, wherefore it should not have been relied on by the appellate court for any purpose. 12. Ex.P3 sale deed is dated 25.05.2004, which emerged long after the publication of Section 4 (1) Notification and that also cannot be taken into account. Ex.P2 is the sale deed dated 15.01.1994, which is relating to Survey No.267/9, which and it is not anywhere near to the land acquired and as such that also cannot be relied taken as an exemplar document. 13. Ex.P1 the sale deed dated 11.02.1997, is the only document, which could be relied on, because, it is relating to the land situated in Survey No.208/8, which is adjacent to the land acquired. It refers to a housing site measuring a total extent of 2 ½ cents, which was valued in a sum of Rs.10,900/-, so to say, at the rate of Rs.4,360/- per cent. Section 4 (1) Notification was dated 26.02.2000. As such, three years anterior to the emergence of Section 4 (1) Notification, Ex.P1 emerged and it can be relied upon. By no stretch of imagination it could be labelled or dubbed as a document deliberately brought about for obtaining higher compensation. 14. While holding so, I am of the view that for the three years' period, enhancement has to be given and accordingly, at the rate of 10% increase per year, so to say, totally 30% increase if given, the value comes to Rs.5,668/- per cent. In view of the decision of the Hon'ble Apex Court referred to supra, the court has to offset the price because the exemplar document refers to a smaller extent of house site, whereas https://hcservices.ecourts.gov.in/hcservices/ the land acquired was an agricultural land, which is having the potentiality of being converted into plots. Hence, 20% should be deducted by way of offsetting the price. 15. It is quite obvious that the vast extent of land acquired should be converted into house sites by the Government by providing streets and also other amenities and as per the well established and recognised principles, 33 ½% has to be deducted towards such development charges. As such, totally the deduction comes to 53 ½ % and it could be rounded off to 53%.. 16. Accordingly, the compensation should be assessed adhering to the following formula:- Value of land per cent – Rs.4,360/- Enhancement at the rate of 10% per year for 3 years (436 x 3) - Rs.1,308/- Total value per cent - Rs.5,668/- Rs. 5668 x 2.46 cents [ Rs.13,943.28 per are] Deduction at 53% on Rs.13,943/- - Rs.7,390/- Net value per are - Rs. 6553/- Rs.6,553 x 65.5 are Rs.4,29,221.50 Rounded off to Rs.4,29,222/- In the result, along with the aforesaid amount of Rs.4,29,222/- [Rupees four lakhs twenty nine thousand two hundred and twenty two only] the land owner is entitled to other statutory entitlements like solatium and interest. 17. Accordingly, the substantial question of law No.1 is decided to the effect that the appellate court erred in not appreciating the provisions of Section 8 of Act 31/1978 in fixing the market value. 18. The substantial question of law No.2 is decided to the effect that the court below has not erred in placing reliance on Ex.P1, the data sale deed since the land conveyed under the said document and the land acquired were similar in nature and classification. 19. The substantial question of law No.3 is decided to the effect that even though the court below placed reliance on Ex.P1 for fixation of market value, it failed to apply the correct formula in assessing the compensation. https://hcservices.ecourts.gov.in/hcservices/ 20. Accordingly, this second appeal is partly allowed as above, by modifying the judgment and decree of the appellate court. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vj2 To The Subordinate Judge, Kallakurichi +1cc to Mr.Spl.Govt. Pleader (CS) Sr 27210 +1cc to Mr.T.P.Manoharan, Sr 27471 KM(CO) km/1.6. S.A.No.231 of 2009 https://hcservices.ecourts.gov.in/hcservices/