IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.06.2010 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Appeal Suit Nos.327 and 328 of 2002 Appeal Suit No.327 of 2002 The Special Tahsildar Adi Dravidar Welfare Maduranthagam ...Appellant/Referring Vs. Ramanathan ... Respondent/Claimant Prayer: Appeal filed under Section 54 of the Land Acquisition Act, 1894 against the judgment and award of the learned Additionall Subordinate Judge of Chengalpattu in L.A.O.P.No.106 of 1992 dated 29th April 1994. Appeal Suit No.328 of 2002: The Special Tahsildar Adi Dravidar Welfare Maduranthagam ... Appellant Vs. Jeyaraman ... Respondent Prayer: Appeal filed under Section 54 of the Land Acquisition Act against the judgment and award dated 29.4.1994 and made in L.A.O.P.No.110 of 1992 on the file of Principal Subordinate Judge, Chengalpattu For Appellant : Mr.Ravi Special Govt. Pleader For Respondents : M/s.C.Sanjai Babu https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT These two appeals have been filed under Section 54 of the Land Acquisition Act, 1894 against the award of the learned Additional Subordinate Judge, Chengalpattu made in L.A.O.P.Nos.106 and 110 of 1992. The Referring Officer is the appellant herein in both the appeals and the claimants in the respective L.A.O.Ps are the respondents in the appeals. 2.Along with other lands adjoining the survey number concerned in these appeals, an extent of 0.15.5 Hectares of land comprised in S.No.7/2 at Solathangal village, Maduranthagam Taluk, Chengalpattu District belonging to the respondent in A.S.No.327 of 2002/claimant in L.A.O.P.No.106 of 1992 and another extent of 0.13.5 Hectares of dry land comprised in S.No.7/3A belonging to the respondent in A.S.No.328 of 2002/claimant in L.A.O.P.No.110 of 1992 were acquired by the Government under the Central Act viz., Land Acquisition Act, 1894 for the purpose of providing house sites to the members of Adi Dravidar Community. After taking a decision to proceed with the acquisition according to law, the Land Acquisition Officer viz., the appellant herein conducted award enquiry and fixed the market value of the lands under acquisition concerned, in these appeals taking the sale deed dated 29.7.1989 where under a dry land comprised in S.No.3/18A was sold at the rate of Rs.196/- per cent as the data sale reflecting the market value of the both the land. The Land Acquisition Officer passed the award on 13.11.1991 in Award No.3/91- 92. The Land Acquisition Officer also calculated Solatium at the rate of 30% of the market value under Section 23(2) and additional market value at the rate of 12% p.a from the date of 4(1) notification till the date of award. Thus the Land Acquisition Officer arrived at the total amount of compensation as follows; L.A.O.P.No.106 of 1992 Market value of 0.15.5Hectares of Land Comprised in S.No.7/2 @ Rs.196/- per cent - Rs.7448.00 Solatium @ 30% of the market value - Rs.2234.00 Additional Market Value @ 12% p.a from the date of 4(1) notification till the date of Award (2.5.1990-31.11.91) - Rs.1415.00 Total Rs.11097.00 L.A.O.P.No.110 of 1992 Market value of 0.13.5 Hectares of dry land comprised in S.No.7/3A @ Rs.196/- per cent - Rs.6468.00 https://hcservices.ecourts.gov.in/hcservices/ Solatium @ 30% of the market value - Rs.1940.00 Additional Market Value @ 12% p.a from the date of 4(1) notification till the date of Award (2.5.1990-31.11.91) - Rs.1229.00 Total Rs.9637.00 Thus, the Land Acquisition Officer awarded a sum of Rs.11097/- as compensation to the respondent in A.S.No.327 of 2002/claimant in L.A.O.P.No.106 of 1992 and a sum of Rs.9637/- to the respondents in A.S.No.328 of 2002/claimants 1 to 3 in L.A.O.P.No.110 of 1992. As they were of the view that the amounts awarded as compensation were insufficient, they received the amount under protest and and made a request to the Land Acquisition Officer for making a reference under Section 18 of the Land Acquisition Act to the Court for fixing a reasonable amount as compensation. Thus, a reference in each case was made by the appellant herein/Referring Officer under Section 18 of the Land Acquisition Act, 1984 to the Court of the Additional Sub Judge Chengalpattu. The reference made in respect of S.No.7/2 was taken on file as L.A.O.P.No.106 of 1992 and the reference made in respect of S.No.7/3A was taken on file as L.A.O.P.No.110 of 1992. 3.After giving an opportunity to the parties to put in their pleadings, the learned Additional Subordinate Judge, Chengalpattu conducted a joint trial in both the L.A.O.P.s viz., L.A.O.P.No.106 and 110 of 1992 in which only one witness was examined as CW1 and two documents were marked as Exs.C1 and C2 on the side of the claimants in both the L.A.O.Ps and no witness was examined, but only one document was marked as Ex.R1 on the side of the Referring Officer. 4.The learned Subordinate Judge at the conclusion of trial considered the evidence in the light of the arguments advanced on either side and upon such consideration, came to the conclusion that the claimants in both the L.A.O.Ps were entitled to enhanced amount of compensation. The learned Additional Subordinate Judge relying on an award passed in L.A.O.P.No.107 of 1992 on the file of the said Court, fixed the market value of the acquired land at Rs.1000/- and awarded enhanced compensation with other statutory benefits like Solatium Under Section 23(2), Additional market value under Section 23(1A) and interest under Section 28 of the Land Acquisition Act. Thus a sum of Rs.45,549/- and a sum of Rs.39,556.60 were awarded as enhanced compensation to the claimants in L.A.O.P.No.106 of 1992 and L.A.O.P.No.110 of 1992 respectively. For the said amounts of enhanced compensation, interest at the rate of 9% p.a from 02.12.1991, the admitted date of taking possession, for a period of one year and thereafter till the date of deposit at the rate of 15% p.a was also directed to be paid. https://hcservices.ecourts.gov.in/hcservices/ 5.Complaining that the market value fixed by the learned Additional Subordinate Judge to the acquired lands as on the date of Section 4(1) notification and consequently, the amount awarded in each one of the L.A.O.Ps as enhanced amount of compensation was excessive and exorbitant and seeking reduction of the same, the appellant/Referring Officer has come forward with A.S.No.327 of 2002 against the award passed in L.A.O.P.No.106 of 1992 and A.S.No.328 of 2002 against the award passed in L.A.O.P.No.110 of 1992 on various grounds set out in the respective memorandum of appeal. 6.Since joint trial was conducted before the Court below and the L.A.O.Ps were disposed by a common order, these two appeals have also been taken up for joint hearing and are being disposed of by this common judgment. 7.The points that arise for consideration in these appeals are as follows: 1) Whether the market value fixed for the acquired land by the Court below in both the L.A.O.Ps deserves interference? 2) Whether the enhanced compensation awarded in L.A.O.P.No.106 of 1992 and L.A.O.P.No.110 of 1992 are excessive requires downward revision? 8.The arguments advanced by Mr.Ravi, learned Additional Govt. Pleader (AS) on behalf of the appellant/Referring Officer in both the appeals and that of Mr.C.Sanjau Babu, learned counsel for the respondents/claimants in both the appeals were heard. The entire materials available on record were also perused. Points 1 and 2:- 9.Aggrieved by the fixation of the market value of the acquired land by the Land Acquisition Officer at Rs.196/- per cent relying on a sale deed dated 29.7.1989, the respondents in the appeals/ claimants in the L.A.O.Ps caused the references under Section 18(1) of the Land Acquisition Act to be made to the Court below which were taken on file as L.A.O.P.Nos.106 and 110 of 1992. Though the appellant herein/the Referring Officer chose to produce the file relating to the acquisition of the land concerned in these appeals as Ex.R1, he has not chosen to examine any witness on his side. However, the mere absence of evidence on the side of the Referring Officer shall not entitle the claimant to get an award for enhancement of compensation in a reference under Section 18 of the Land Acquisition Act. Such reference under Section 18 of the Land Acquisition Act is equivalent to a suit, wherein the claimant shall occupy the position of the plaintiff and the Referring Officer shall occupy the position of the defendant. A plaintiff in a suit, unless the law cast the burden on the other side, shall either succeed or https://hcservices.ecourts.gov.in/hcservices/ fail in his attempt to get the relief sought for based on the evidence adduced by him. 10.In this case, the claimant in L.A.O.P.No.106 of 1992 alone figured as the sole witness on the side of the claimants in both the L.A.O.Ps. Besides his interested testimony, he has produced two documents: "1) A reference made by the Sub-Registrar, Maduranthagam under Section 47-A(1) of Indian Stamp Act to the Special Deputy Collector (Stamps) informing under valuation in respect of a document dated 16.7.1990 registered as Document No.1218 of 1990. 2) A certified copy of the Judgment pronounced in L.A.O.P.No.107 of 1992 on the file of the Additional Sub- Judge, Chengalpattu. " 11.It is the evidence of CW1 that he purchased the properties comprised in S.No.21/2 at the rate of Rs.300/- per cent under a sale deed dated 16.7.1990 and that the Registering Authority fixed the market value for collection of stamp duty at Rs.1744/- per cent, taking the land that was conveyed under the said sale deed was to be valued as house site and not as an agricultural land. In order to support his version, he has produced Ex.A1. Ex.A2 is a certified copy of the award (decree) passed in L.A.O.P.No.107 of 1992. In the said award the value of the land comprised in S.No.21/2B at Solathangal Village was fixed by the Court at Rs.1000/- per cent. Though the claimants have chosen to produce the certified copy of the said award (decree), a certified copy of the judgment containing the reasons for the conclusion was not produced. However, the learned Additional Government Pleader representing the appellants in these appeals has chosen to produce a xerox copy of a judgment passed by the learned Single Judge of this Court on 01.7.2008 in A.S.No.289 of 1995 preferred against the award of the Additional Subordinate Judge, Chengalpattu dated 16.7.1993 passed in L.A.O.P.No.107 of 1992. A consideration of paragraph No.7 of the judgment of the learned Single Judge in A.S.No.289 of 1995 will show that the learned Subordinate Judge taking note of the fact that under a sale deed dated 29.3.1990, 13 cents of land was sold for a sum of Rs.22,500/- i.e., 1740 per sq.ft and the further fact that 10 years prior to the said sale deed viz., in the year 1980, a property was sold at the rate of Rs.330/- per cent, had taken a decision that the market value of acquired land had to be arrived at in between the two and thus, the learned Sub- Judge fixed the market value of the land concerned in the said L.A.O.P at Rs.1000/- per cent. The same was reversed by the above said judgment of the learned Single Judge of this Court and the market value of the said land was fixed based on a sale deed dated 20.6.1989 wherein 0.50 acres of wet land in S.No.15/3 and 4 cents of https://hcservices.ecourts.gov.in/hcservices/ dry land in S.No.16/1 were sold for a sum of Rs.51.280, which amount works out a rate of Rs.322.98 per cent. However, the learned Single Judge of this Court chose to allow a deduction of 20% from the market value reflected in the sale deed selected as sample sale towards developmental charges and fixed the net market value per cent at Rs.266.38 and thus reduced the enhanced compensation proportionately. Relying on the said judgment of the learned Single Judge of this Court which was passed in an appeal preferred against the award passed in L.A.O.P.No.107 of 1992, which award was relied on by the learned Additional Subordinate Judge in this case as the basis on which the land under acquisition concerned in these appeals are to be valued, the learned Additional Government Pleader argued that the market value fixed by the Court below at Rs.1000/- per cent should be reduced to Rs.266.38 per cent. 12.On the other hand, it is the contention of the learned counsel for the respondents/claimants that the said judgment of the learned Single Judge of this Court made in A.S.No.289 of 1995 shall not be binding on the respondents herein/claimants. It is the further submission made by the learned counsel for the respondents/claimants that the award passed by the reference court in L.A.O.P.No.107 of 1992 was sought to be relied on by the respondents/claimants only in support of their claim that the market value of the land under acquisition concerned in these appeals should be fixed at the rate of 1748/- per cent and that in view of the fact that the rate has been reduced in the appeal, the respondents/claimants shall withdraw their reliance on Ex.C2 award; that under such circumstances, the market value of the lands should have been fixed in accordance with Ex.A1 and that since the amount fixed by the Court below as the market value of the land is much below the rate per cent reflected in Ex.A1, the amount awarded as enhanced compensation to the respondents in these appeals /claimants should be held quite reasonable warranting no interference. In addition to the above said submission, the learned counsel for the respondents/claimants also contended that in A.S.No.289 of 1995, the method of assessing the value of an agricultural land when compared with another land sold as agricultural land was not in tune with the well recognized principles of valuation adopted by the Apex Court. 13.The learned counsel for the respondents would also contend that the very approach made by the leaned Single Judge in Special Tahsildar (L.A), Adi Dravidar Welfare, Madhuranthagam Vs. Sundaralakshmi Ammal in A.S.No.289 of 1995 was not in line with the views of the Supreme Court and hence the same can be brushed aside as per incuriam. It is trite that only when an agricultural land is sought to be valued as a house site or industrial site on the basis of its potentiality and adaptability of being converted into a house site or industrial site, deductions are to be made for developmental charges. To allow such a deduction, the rate applicable to a house site or industrial site, as the case may be, should have been applied https://hcservices.ecourts.gov.in/hcservices/ as the rate at which the market value of the property under acquisition is to be valued. On the other hand, if the nature of the land under acquisition and the nature of the land, the sale deed in respect of which is taken as the sample sale for fixing the market value of the acquired land are same, then there shall be no question of deducting any percentage towards developmental charges. When the method of comparing sales that took place in the vicinity of the property under acquisition is applied to fix the market value of the acquired property, then the question of allowing deduction for developmental charges shall arise only if the sale under the document selected as data sale reflecting the market value was made in respect of a land as a house site or industrial site, whereas the property under acquisition remains on ground an agricultural land. This is so because when large area used as agricultural land is converted into house sites or industrial sites, a portion of the land has to be set apart for streets and public use and some amount also is to be expanded for the conversion of the agricultural land into house sites or industrial sites by forming a lay out. The said deduction for developmental charges is made only when the value of the properties assessed considering the potentiality of the property for being adopted as house sites or industrial sites. No one shall be prepared to convert a property into a house sites or industrial sites from agricultural land when the sale price as such house site or industrial site shall be less than what he would get as a sale price if the property is sold as an agricultural land. In the judgment relied on by the learned Special Government pleader, the learned Single Judge has chosen to assume that in all cases where the property under acquisition possess potentiality for being developed into house sites, deduction of developmental charges should be made at a certain percentage irrespective of the fact that the sale deed selected as data sale reflecting the market value of the property purported to convey the property as an agricultural land and not as a house site. Only in cases where the acquired land is an agricultural land on ground and the sale deed selected as a data sale was effected in respect of a property as a house site or industrial site certain percentage has to be deducted towards developmental charges. This was not noticed by the learned Single Judge in the judgment relied on by the Additional Government Pleader. Therefore, this Court is of the considered view that the said judgment relied on by the Special Government Pleader does not reflect the correct position of law in this regard. In normal circumstances, when the view of a co-equal bench of the Court is sought to be deviated from, the question shall be referred to a large bench. But when the subsequent bench forms an opinion that the view expressed by an earlier co-equal bench is per incuriam, then such a course of referring to a large bench need not be adopted. For the reasons stated above, this Court is of the view that this Court is not bound to follow either the procedure adopted by this Court in A.S.No.289 of 1995 or the rate fixed therein as market value reflecting the market value of the property under acquisition concerned in these https://hcservices.ecourts.gov.in/hcservices/ appeals. Therefore, the arguments advanced by the learned Special Government Pleader on the strength of the judgment of the learned Single Judge of this Court in A.S.No.289 of 1995 deserves rejection as untenable. 14.However, since the award passed by the trial Court in L.A.O.P.No.107 of 1992 was admittedly modified by the appellate Court, Ex.A2 cannot be relied on and the market value of the land under acquisition concerned in these appeals cannot be fixed based on Ex.A2. When Ex.A2 is removed from the purview of consideration, then the resultant position is that the only document that remains to be considered shall be Ex.A1. The respondents/claimants relied on Ex.A1 in support of their contention that the market value of the land under acquisition concerned in these appeals should have been fixed at the rate of Rs.1740/- per cent. Ex.A1 is not a sale deed, but the same is a certified copy of the reference made by the Sub- Registrar to the Special Deputy Collector (Stamps) under Section 47-A (1) of the Indian Stamps Act in respect of a document registered as Document No.1280 of 1990 on 16.7.1990 on the file of Sub-Registrar, Maduranthagam opining that there was under valuation. A perusal of Ex.A1 will show that an extent of 36 cents comprised in S.No.21/2 at Solathangal village was sold as a wet land for a sum of Rs.12,000/- citing the market value as Rs.12,060/-. However, the Registering Authority, taking note of the guideline rate, formed an opinion that the property should have been valued as house site at Rs.4/- per sq.ft and hence made such a reference under Section 47-A (1) of the Indian Stamps Act. The very reference under Ex.A1 was made on the footing that the property had the potentiality of being developed into house sites. However, as rightly pointed out by the learned Additional Government Pleader, Ex.A1 does not evidence final adjudication of the correctness of the valuation and sufficiency of the stamp duty paid in the document concerned. The learned Additional Government pleader also contended that since a large extent of 36 cents was sought to be sold under Ex.A1 and its valuation was sought to be made by the Registering Authority as a house site adopting sq.ft as the unit of valuation, deductions should have been allowed for developmental charges and that since no deductions had been shown under Ex.A1, the same could not be taken as the basis on which the land under acquisition can be valued for computing compensation. 15.The learned Additional Government Pleader also pointed out the fact that the evidence adduced on the side of the respondents/claimants through CW1 is to the effect that the purchaser under the sale deed concerned in Ex.A1 was none other than CW1, who has deposed to the effect that he purchased the said land concerned in Ex.A1 at the rate of Rs.300/- per sq.ft. In fact the rate quoted by CW1 as the rate at which the property concerned in Ex.A1 was purchased by him was only an approximate one. As per the https://hcservices.ecourts.gov.in/hcservices/ particulars found in Ex.A1, 36 cents of land was sought to be sold for a sum of Rs.12,000/- i.e., at the rate of Rs.333.33 per cent. Therefore, it is obvious that the rate quoted by CW1 in his evidence as the rate reflected in the sale deed concerned in Ex.A1 is only an approximate rate. However, the fact remains that the property under the sale deed concerned in Ex.A1 was sold at the rate of Rs.333.33 per cent. As such, the contention of the respondents/claimants that the market rate of the property under acquisition concerned in these appeals should be fixed based on the market value at which stamp duty was sought to be collected under Ex.A1 deserves to be rejected as untenable. 16.In this regard, the observation made by the Hon'ble Supreme Court in U.P.Jai Nigam, Lucknow thorugh its Chairman and Another Vs. M/s.Kalra Properties (P) Ltd., Lucknow & Others reported in 1996 3 SCC 124 shall be worth mentioning. In the said case the Hon'ble Supreme Court has observed that the market value shall be determined only on the basis of the evidence adduced by the claimants and rebuttal evidence adduced thereon by the State and that determination of the market value based on valuation maintained under Stamp Act for collection of Stamp duty is not proper. In the light of the above said judgment of the Supreme Court, the contention raised on behalf of the respondents/claimants that the market value could have been fixed based on the value for which stamp duty was sought to be collected under Ex.A1 and since the market rate fixed by the Court below at Rs.1000/- per cent was less than the said rate no interference could be made at the instance of the appellant/Referring Officer deserves to be discountenanced. As such it shall be proper to assess the market value of the land under acquisition concerned in these appeals on the basis of the actual price quoted in the sale deed concerned in Ex.A1. That is so because there is no contra evidence adduced on the side of the respondent to show that the rate fixed by the Land Acquisition Officer viz., at the rate of Rs.196/- per cent was based on a genuine sale transaction. Therefore, this Court comes to the conclusion that the market rate of the land under acquisition concerned in these appeals, as on the date of 4(1) notification, shall be fixed at the rate of Rs.333.33 per cent. Point No.2 17.Though earlier there was controversy as to whether the claimant shall be entitled to an interest in respect solatium and an additional market value calculated under Sections 23(2) and 23(1A) respectively, the controversy has been set at rest by the constitutional Bench of Hon'ble Supreme Court in Sundar Vs.Union if India reported in (2001) 7 SCC 211, wherein it has been held that the claimant shall be entitled to get interest on the aggregate amount calculated under all the sub clauses of Section 23 of the Land Acquisition Act. Therefore, the learned Subordinate Judge rightly https://hcservices.ecourts.gov.in/hcservices/ held the claimant entitled to get interest at the rate of 9% for a period of one year from the date on which possession was taken