IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.12.2009 CORAM THE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA AND THE HON'BLE MR.JUSTICE T.S.SIVAGNANAM Appeal Suit No.668 of 1998 & Cross Objn.No.75 of 2002 A.S.Nos.926 of 2005, 963 of 2005, 1123 of 2004, 780 of 2005 and 973 of 2005 Appeal Suit No.668 of 1998 & Cross Objn.No.75 of 2002 1. V.R.Venkatesalu 2. V.Govindarajulu 3. V.Ashok Kumar 4. Sreelatha 5. V.Jayalakshmi 6. Ammulu Ammal (died) (2nd appellant is recorded as L.R. Of the deceased 6th appellant as per order dated 26.8.2003 in CMP No.4926 of 2003) ..Appellants/ Claimants in A.S.668/98 & respondents in Cross Obj. Vs. 1.The Special Tahsildar Land Acquisition Housing Scheme III Coimbatore-18. ..I respondent/ Referring Officer in A.S.668/98 & Petitioner in Cross Objection 2.The Executive Engineer, Special Division-VI Tamil Nadu Housing Board, Peelamedu, Coimbatore-4. ..2nd Respondent in A.S.668/98 7th Respondent in Cross Objection 75/02 (R2 impleaded as per order of Court dated 31.10.2002 made in C.M.P.Nos.14279 and 1480/02) https://hcservices.ecourts.gov.in/hcservices/ A.S.No.926 of 2005 The Special Tahsildar Land Acquisition Housing Scheme, Unit 3 Coimbatore-18. ..Appellant/ Referring Officer Vs 1. KRISHNASAMARAJ ..I Respondent / Claimant 2 THE EXECUTIVE ENGINNER TAMIL NADU HOUSING BOARD COIMBATORE HOUSING UNIT COIMBATORE. ..2nd Respondent/ Beneficiary A.S.963 of 200 The Special Tahsildar Land Acquisition Housing Scheme I Coimbatore-18. ..Appellant/ Referring Officer Vs 1 N.KRISHNASAMARAJ, 2 R.KOUSALYA, 3 K.NATARAJAN, 4 K.NARAYANASAMY NAIDU, 5 K.KAMALAM, 6 RAJAMMAL, 7 SAROJINI @ KUTTIYAMMAL, 8 N.BALASUBRAMANIAM, 9 S.GIRIDHARAN, 10 G.RAGHURAM, 11 G.JAYARAM, 12 N.KRISHANSAMYRAJ, 13 MUTHULAKSHMI, 14 MAZITHA VIJAYAKUMAR, 15 B.INDHIRANI, (The initial of the 15th respondent amended vide order of court dated 31.8.2006 made in C.M.P.No.3959/06, order dated 23.3.2006 recalled vide order of court dated 31.3.2006 made in CMP.3959/06) https://hcservices.ecourts.gov.in/hcservices/ 16 THANGAMMAL, 17 RAMESH, 18 SUMATHI, 19 RAVI, 20 MALLIKA, 21 SHANMUGAVALLI, 22 SUBBULAKSHMI, 23 MANJULA, 24 MALATHY, 25 PRABHAKARAN, 26 SELVI THULASIYAMMAL, .. Respondents 1 to 26,/Claimants 2,5,7 to11,13 to 31 27 THE EXECUTIVE ENGINEER, TNHB, COIMBATORE. ..27th respondent/ beneficiary AS.1123/04 The Special Tahsildar Land Acquisition Housing Scheme III Coimbatore. ..Appellant/ Referring Officer Vs 1. K.PALANISWAMY, (DIED) 2 K.RENGASWAMY ...RESPONDENTS 1 AND 2/ CLAIMANTS 1 AND 2 3 THE EXECUTIVE ENGINEER, I.U.T.P SCHEME HOUSING UNIT COIMBATORE ...3RD RESPONDNET/ BENEFICIARY 4. INDIRA MANI 5. V. KRISHNAVENI 6.R.K. JAYANTHI 7. P. SRIHARI (RESPONDENTS 4 TO 7 BROUGHT ON RECORD AS LEGAL REPRESENTATIVES OF THE DECEASED FIRST RESPONDENT VIDE ORDER OF COURT DATED 17.3.2005 IN C.M.P.NO.1482 OF 2005) https://hcservices.ecourts.gov.in/hcservices/ A.S.780 OF 2005 The Special Tahsildar Land Acquisition Housing Scheme III Coimbatore-18. ..1ST APPELLANT/ Referring Officer 2. THE EXECUTIVE ENGINEER TAMILNADU HOUSING BOARD COIMBATORE HOUSING UNIT COIMBATORE ...R4 TRANSPOSED AS RECORD APPELLANT VIDE ORDER OF COURT DATED 21.3.2007 MADE IN C.M.P.NO.734 TO 731/07 VS 1. N.KRISHNASAMARAJ 2. MUTHULAKSHMI 3. MAZITHA VIJAYAKUMAR ...RESPONDENTS 1 TO 3/ CLAIMANTS 2 TO 4 A.S.973 OF 2005 THE LAND ACQUISITION OFFICER AND SPECIAL TAHSILDAR (LAND ACQUISITION) HOUSING SCHEME UNIT.1 COIMBATORE ...1st appellant/ referring officer 2. THE EXECUTIVE ENGINEER AND ADMINISTRATIVE OFFICER COIMBATORE HOUSING UNIT TAMILNADU HOUSING BOARD TATABAD, COIMBATORE-12 ...R11 TRANSPOSED AS 2ND APPELLANT VIDE ORDER OF COURT DATED 24.4.2007 MADE IN C.M.P.NO.1416 AND 1417/07 VS 1 N.SUNDARARAJ, 2 N.BALAKRISHNAN 3 K.R.PONNUSAMY NAIDU, 4 K.JANAKIAMMAL (DIED), 5 V.SARASWATHIAMMAL 6 K.R.SUNDARAM @ SUNDARARAJAN https://hcservices.ecourts.gov.in/hcservices/ 7 MANICKAM, 8 INDIRA, 9 CHITRA, 10 JAYASREE, ...RESPONDENTS 1 TO 10/ CLAIMANTS 2 TO 6 & 8 TO 12 11 KANDASAMY NAIDU 12 P.K. VENKATESAN 13 K.DEVARAJAN 14 K. KANNAPPAN 15 K.RAJAMANI 16 K. SELVARAJ 17 PREMA ... R11 TO 17 BROUGHT ON RECORD AS LRS OF THE DECEASED R4 VIDE ORDER OF COURT DTED 16.9.2008 AND 14.11.2008 MADE IN C.M.P.NOS.716 TO 718 OF 2008 Appeal filed under Section 54 of the Land Acquisition Act, against the judgment and Decree dated 19.8.1997, 29.4.2005, 29.4.2005,, 26.9.2003, 5.1.2005, 28.4.2005 made in L.A.O.P. Nos.245 of 1990 , L.A.O.P. No.117/1992, L.A.O.P. No.244 of 1990, L.A.O.P. No.299/91, L.A.O.P. No.118/92, L.A.O.P. No414/1994 respectively on the file of the I Additional Subordinate Judge, Coimbatore. For appellant in A.S.NO.668/1998 & for R.1 in A.S.926 & 963/2005 : Mr.M.S.Krishnan Senior Counsel. For M/s. Sarvabhuman Associates For appellant in A.S.NOs.926, 963 of 2005, 1123/04 & 780/05 & 973/05 & in Cross Objn.75/2002 & for R.1 in A.S.668/1998 : Mr.V.Ravi, G.A. For 2nd appellant in A.S.926/05, 780 & 973 of 2005, R.2 in A.S.668/1998, for R7 Cross Objn.75/2002 & R.27 in A.S.963/005 & R.3 in A.S.1123/2004: Mr.D.Veerasekaran for TNHB. For R.22, R.24 to R.26 in A.S.963/2005, R.1, R.2, R4 to R7 in A.S.1123/2004 : Mr.N.Manokaran R.10 and R.11 in A.S.963/2005 : Mr.V.Venkatasamy R.3, R4 & R.6 in A.S.963/2005 : Mr.V.Nicholas https://hcservices.ecourts.gov.in/hcservices/ For R.7 in A.S.963/2005 : Mr.K.Doraisamy, Senior Counsel for Mr.R.Sreerangan For R2, R4 to R7 in A.S.1123/2004 R.8 in A.S.963/2005 : M/s.Muthumani Doraisamy For R11 to R17 in A.S.973/2005 R1 to R3 in A.S.780 of 2005 : Mr.S.Parthasarathy, Senior Counsel for Mr.J.Ramakrishnan For R.15 Caveator in A.S.963 of 2005 : Mr.J.Pothiraj COMMON JUDGMENT (Made by F.M.IBRAHIM KALIFULLA,J.) In all these appeals and the connected cross objection, the challenge relates to the order of the Land Acquisition Tribunal in having revised the market value for the acquired land, which was the subject matter of acquisition by the Tamil Nadu Housing Board, Coimbatore Housing Unit, in a place called Ganapathy village. The total acquisition was in respect of 176.56 acres in the said village for housing development under the World Bank Scheme. These six appeals and the connected cross objection relate to 80 acres of land covered by the said acquisition. As the fixation of the market value is depended upon the acceptance or otherwise of any particular sale as adopted by the Land Acquisition Tribunal, in our considered opinion, consideration of the decision rendered by the Tribunal in the judgment impugned in A.S.No.668 of 1998 and the connected Cross Appeal No.75 of 2002 would be more appropriate and any conclusion made with reference to the said case can be applied in all other cases inasmuch as the land which are acquired and are covered by these appeals are located in S.Nos.1 to 53. For the sake of convenience, we give the following details of the concerned appeal numbers, the location of concerned land in relation to those appeals, the area of acquisition, the relevant date of 4(1) notification, the rate fixed by the Land Acquisition Officer based on the data land and the rate fixed by the Tribunal in the impugned judgments. https://hcservices.ecourts.gov.in/hcservices/ A.S.No. (LAOP No.) S.F.Nos. Involved in LAOP Extent covered in LAOP (in acres) Date of 4 (1) notificat ion Award No. & Date Rate fixed by LAO for Data land (rate per cent) Rate fixed by Sub Court (rate per cent) 963/2005 (244/90) 37, 38/1, 2, 46, 48, 49, 52, 53 25.95 18.8.83 3/87 6.5.87 Rs.200 Rs.6000 668/98 & Cross Appeal 75/2002 (245/90) 29, 31 9.53 25.2.83 10/89 1.9.89 Rs.200 Rs.400 1123/04 (299/91) 4/2, 5/2, 6/2, 10/2 10.49 7/3/83 1/88 22.1.88 Rs.200 Rs.6000 926/05 (117/92) 33/2, 34, 35 11.32 25.2.83 3/88 7.3.88 Rs.200 Rs.6000 780/05 (118/92) 36 6.58 25.2.83 3/88 7.3.88 Rs.200 Rs.6000 973/05 (414/94) 45, 46, 47, 50 20.75 18.8.83/ 7.9.83 5/88 25.11.88 Rs.200 Rs.7000 2. The following issues arise for consideration in these appeals:- 1. What is the market value to be fixed for the purpose of arriving at the compensation? 2. What is the rate of deduction to be applied while fixing the market value? 3. To what other reliefs, the parties are entitled? Point No.1: 3. In A.S.No.668 of 1998 and the connected Cross Appeal No.75 of 2002, the relevant Survey Numbers are 29 and 31, the total extent of lands were 9.53 acres and the date of 4(1) notification was 25.2.1983. By Award No.10/89 dated 1.9.1989, the Land Acquisition Officer fixed the land value at Rs.200/= per cent by relying upon a document dated 10.2.1983. Ex.R.3 is the list of the instances of sale considered by the Land Acquisition Officer. In https://hcservices.ecourts.gov.in/hcservices/ that Ex.R.3, the Land Acquisition Officer relied on a document mentioned in Serial No.391, which was a sale of a land for Rs.20,000/= per acre. Thus, the market value was fixed by him at the rate of Rs.200/= per cent. The Land Acquisition Tribunal, however, held that in the very same Ex.R.3, in Serial No.393, there was a sale in respect of a land in Survey No.62, where the sale was of a land on a sale consideration of Rs.40,000/= per acre. The Land Acquisition Tribunal chose to adopt the value of the said sale and fixed the market value at Rs.400/- per cent. 4. On behalf of the claimants/land owners, reliance was placed upon Exs.C.3 and C.4. In fact, Exs.C.2 and C.3 were also instances of sale considered by the Land Acquisition Officer. As far as Ex.C.3 was concerned, the sale was in respect of the land which was part of the acquired land and the date of the sale was on 2.4.1982. Insofar as the sale under Ex.C.3 was concerned, the sale was on 4.12.1981 by one Manickam in favour of one Ramdev. The total extent of land conveyed under Ex.C.3 was 5 cents and 222 sq.ft for a sale consideration of Rs.11,000/=. Ex.C.4 was a sale deed dated 15.12.1983 between M.R.M.Palaniappan and Rajalakshmi. That was also a sale of 5-1/2 cents for Rs.3636/= per cent. Therefore, while under Ex.C.3, the land in S.Nos.24 and 25 were sold for a value of Rs.2,200/- per cent in December 1981, under Ex.C.4, the land under S.Nos.125 and 126 came to be sold for a sale value of Rs.3636/= per cent. 5. Mr.S.Parthasarathy, learned senior counsel appearing for the respondent in A.S.No.780/2004, in his submissions, pointed out that the court below relied upon Serial No.123 in Ex.R.2. Learned senior counsel pointed out that the said sale was in respect of the land in S.No.59 and the sale was also on 30.09.1981 conveying 20 cents of lands for a sum of Rs.1,71,211/-. Learned senior counsel therefore contended that when in a part of the acquired land viz., the land in S.No.59, there was a sale more than one year prior to the acquisition and with reference to the said sale when there was no dispute, there was every justification in the court below having adopted the value of the said sale for the purpose of arriving at the market value to pay the compensation. We examined Ex.R.2. As against Serial No.123, we find that while the document number is 219/28, the sale was on 28.01.1981 and the Survey number was 58. The sale value was Rs.20,000/- and the value per acre was Rs.8,000/-. The total extent of land was 2 acres and 50 cents. On further examination, we find that in Serial No.124, there was a sale of land in S.No.226 on 30.09.1981 by Document No.256. That was a sale of 50 cents of land for a value of Rs.1,21,212/-, which works out to Rs.6,06,060/- per acre. In fact, there appears to have been an obvious mistake committed by the court below while referring to the details of the sale mentioned in Serial No.123. https://hcservices.ecourts.gov.in/hcservices/ Though Serial No.123 related to S.No.58, which is part of the acquired lands, which has been correctly noted by the court below, the court below seems to have recorded the sale mentioned in Serial No.124 and even while recording the purchase value, the court below seem to have committed an error in that, instead of mentioning Rs.1,21,212/-, it has mentioned Rs.1,71,211/-. We are therefore convinced that the reference to Ex.R.2 and the details mentioned in Serial No.123 were obvious mistakes and therefore we are not inclined to accept any conclusion reached by the court below on that basis. 6. As far as the sale deed under Ex.C.4 is concerned, the same was dated 15.12.1983 while the 4(1) notification was dated 25.2.1983. Therefore, no fault can be found with the approach of the court below in not having taken the value of Ex.C.4. Moreover, that related to a sale of a land situated in S.Nos.125 and 126 while the acquired lands are situated in S.Nos.1 to 53. However, we do not find any justifiable reason for the court below to reject Ex.C.3, which was 1 year and 2 months earlier in point of time as compared to the 4(1) notification dated 25.2.1983. Moreover, the lands conveyed under Ex.C.3 were located in S.Nos.24 and 25 and the extent of land sold was also 5-1/2 cents. Therefore, the reasoning of the court below in having rejected the said document on the ground that such documents could have come into existence out of competition, in our consideration, has no basis at all. Therefore, we are convinced that in respect of the acquisition of lands covered in these appeals, which were situated in S.Nos.1 to 53, the application of the value mentioned in Ex.C.3 dated 4.12.1981 would have been more appropriate than any other document, since on perusal of Ex.R.2, the village map of Ganapathy village, we found that S.Nos.1 to 53 were all contiguous and were lying in one small block. Therefore, what applies to S.Nos.24 and 25 can be conveniently applied in respect of the other acquired lands. In fact, S.Nos.24 and 25 themselves were part of the acquired land. Hence, it will be much more justifiable to any one to apply the value of the said lands for the purpose of determining the market value. It is also relevant to state that at the instance of the Land Acquisition Officer or the Requisitioning Body, viz., the Housing Board, there was any allegation made to state that the sale covered by Ex.C.3 was not genuine or came to be made with an eye on future legal remedies. Therefore, we have no hesitation to accept Ex.C.3 instead of the sale instances relied on by the court below for fixation of the market value. 7. Going by Ex.C.3, it is common ground that the value found therein was Rs.2,200/= per cent. Once we are steer clear as to the document to be relied upon for the purpose of determining the market value, the next question that arise for consideration is https://hcservices.ecourts.gov.in/hcservices/ whether the said value can be merely adopted for working out the compensation or does it call for any further increase. The the fact remains that there was more than a year as between the date of the said document and the 4(1) notification. In this context, we wish to be guided by the decision of the Hon'ble Supreme Court reported in (2004) 2 SCC 283 (Krishi Utpadan Mandi Samiti v. Bipin Kumar) relied upon by the counsel for some of the claimants. In the said decision, the Hon'ble Supreme Court has laid down a principle as to how increase in the land value can be considered. Paragraph No.8 of the said judgment can be usefully referred to, which reads as under:- "8. However, there is evidence of high potentiality. The increase of 15% given by the High Court cannot, therefore, be said to be unreasonable. Of course, the 15% increase has to be on Rs .15.40 which is the figure shown in the sale deed. It cannot be on Rs.120 as wrongly taken by the High Court. The High Court also erred in considering only three years’ increase whereas in fact there is four years’ difference between the respondent’s sale deed and the acquisition proceedings. Thus taking an increase of 60% over the price of Rs.15.40 per sq yard, the value comes to Rs.24.64 per sq yard. We, accordingly, set aside the orders of the Reference Court and the High Court and fix the value at the rate of Rs.24.64 per sq yard. The respondent will also be entitled to solatium and other statutory benefits under the Land Acquisition Act, 1894." 8. In that decision, the Hon'ble Supreme Court was concerned with the acquisition of a land wherein the sale instance relied on was four years before Section 4(1) notification. The Hon'ble Supreme Court thought it fit to increase the said value by 60% for arriving at the appropriate market value. Applying the said principle, we are of the view that at least an increase of 30% would be just and proper in order to work out the market value for the purpose of fixing the just compensation. Accordingly, when the value of Rs.2,200/- per cent is improved by 30% increase, the value works out to Rs.2860/=. Therefore, we hold that the land value can be conveniently fixed at a sum of Rs.2,860/= per cent. Point No.1 is answered accordingly. Point No:2 9. One other issue which is to be dealt with is as to the application of deduction of development charges. On this aspect, we heard the learned Special Government Pleader as well as the Standing Counsel for the Housing Board and also the learned counsel for the claimants. On the side of the claimants, a decision https://hcservices.ecourts.gov.in/hcservices/ reported in (1991) 4 SCC 506 [Bhagwathula Samanna v. Special Tahsildar and Land Acquisition Officer] was relied upon to contend that where there is already enough development in the area in which the acquired lands are situated, the development charges can be fixed at the minimum of 20% and not beyond. In that context, the learned counsel for the claimant placed reliance upon paragraph Nos.11 and 12 of the judgment, which are to the following effect:- "11. The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land. In applying the principle it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition which is the only relevant factor. Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position. If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications etc. then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified. 12. The national highway runs very near to the proposed Port Trust colony. The lands acquired already for the South Eastern Railway Staff Quarters lie to the southern side of the land under acquisition. The town planning trust road runs on the northern side of the land under acquisition. The colony is in the fast developing part of the municipal town. The plot of Ac. 1.68 cents in Survey No. 2/2A acquired for the formation of the diversion road is adjacent to built-in area. The land involved in these cases is of even level and fit for construction without the necessity of levelling or reclamation. The High Court has itself concluded on the evidence that the lands covered by the acquisition are located by the side of the National Highway and the Southern Railway Staff Quarters with the town planning trust road on the north. The neighbouring areas are already developed ones and houses have been constructed, and the land has potential value for being used as building sites. Having found that the land is to be valued only as building sites and having stated the advantageous position in which the land in question lies though forming part of the larger area, the High Court should not have applied the principles of deduction. It is not in every case that such deduction is to be https://hcservices.ecourts.gov.in/hcservices/ allowed. Where the acquired land is in the midst of already developed land with amenities of roads, electricity etc., the deduction in the value of the comparable land is not warranted." 10. However, on the side of the State and the Housing Board, heavy reliance was placed upon the decisions reported in (1996) 2 SCC 62 [K.S. Shivadevamma v. Asstt. Commr. and Land Acquisition Officer] and (1996) 9 SCC 640 [Basavva V. Special Land Acquisition Officer]. The learned counsel contended that as against the decision reported in (1991) 4 SCC 506 [Bhagwathula Samanna v. Special Tahsildar and Land Acquisition Officer], the Supreme Court has now taken a consistent view that wherever the acquisition of lands for housing purposes or other purposes are made, the Acquisition Body, by way of City Improvement Trust, has to incur heavy expenses for laying roads and other amenities, such as water supply mains, electricity, street lights, etc. and therefore, there should be a deduction of minimum of 33.3% to 53%. Heavy reliance was placed on paragraph No.10 of the decision reported in (1996) 2 SCC 62 [K.S. Shivadevamma v. Asstt. Commr. and Land Acquisition Officer], which is to the following effect:- "10. It is then contended that 53% is not automatic but depends upon the nature of the development and the stage of development. We are inclined to agree with the learned counsel that the extent of deduction depends upon development need in each case. Under the Building Rules 53% of land is required to be left out. This Court has laid as a general rule that for laying the roads and other amenities 33-1/3% is required to be deducted. Where the development has already taken place, appropriate deduction needs to be made. In this case, we do not find any development had taken place as on that date. When we are determining compensation under Section 23(1), as on the date of notification under Section 4(1), we have to consider the situation of the land development, if already made, and other relevant facts as on that date. No doubt, the land possessed potential value, but no development had taken place as on the date. In view of the obligation on the part of the owner to hand over the land to the City Improvement Trust for roads and for other amenities and his requirement to expend money for laying the roads, water supply mains, electricity etc., the deduction of 53% and further deduction towards development charges @ 33-1/3%, as ordered by the High Court, was not illegal." https://hcservices.ecourts.gov.in/hcservices/ 11. Having considered the rival submissions of the learned counsel as well as the other evidence placed before the Court, we find that the lands under acquisition were in respect of a place called Ganapathy village in Coimbatore which falls within the Corporation limits of Coimbatore. It is also stated that though the acquired lands were all barren lands at the time of acquisition, the Housing Board had to allocate 1/3rd of the land for public purposes, such as laying road, parks and other infrastructure facilities. However, it has to be noted that having regard to the location of the lands, which is easily accessible to various other facilities, like railway station, bus stand, market, etc., it cannot be held that there is a total lack of facilities or amenities relating to the land. In fact, the evidence let in before the Court below disclose that in the vicinity of the acquired land, there were lot of industries and other educational institutions. Therefore, for the provision of roads, street lights, water facilities, power supply and other allied amenities in the acquired lands for the purpose of development of a Housing Colony, we are of the considered opinion that deduction of a minimum of 33.3% would sub-serve the interest of justice. On that basis, we arrive at the value of the lands after allowing a deduction of 33.3%, for the purpose of fixing the compensation, at Rs.1,908/- per cent. We are of the view that rounding of the figure to Rs.2,000/= would be the just value for working out the compensation. We, therefore, partly allow the appeals by fixing the market value for the acquired lands in all these appeals at Rs.2,000/= per cent with 30% solatium and other statutory benefits payable to the claimants. Point No.2 is answered in the above manner. 12. In the result, the appeals are allowed in part, dismissing the Cross Objection, with the following directions:- (a)the land value in all these appeals are fixed at Rs.2,000/- per cent with 30% solatium; (b)the appellants/claimants are entitled to an additional amount of 12% per annum, from the date of notification issued under Section 4(1) of the Land Acquisition Act, till the date of