IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.807 of 1997 and C.M.P.No.14492/1997 Sarangapani Vivekanandan ... Appellants/Claimants Vs. The Special Tahsildar Adhi Dravidar Welfare Gudiyatham Taluk North Arcot Ambedkar District ... Respondent/Referring Officer This First Appeal has been filed under Section 54 of the Land Acquisition Act as against the Judgment and Decree of the learned Subordinate Judge, Vellore made in L.A.O.P.No.6/1993 dated 31.07.1996 For Appellant : Mrs.Rita Chandrasekar for M/s.Aiyar and Dolia For Respondent : Mr.V.Ravi Special Govt Pleader (AS) JUDGMENT This appeal is directed against the judgement and decree (award) dated 31.07.1996 of the learned Subordinate Judge, Vellore made in L.A.O.P.No.6/1993. 2. The land owners whose land was acquired by the Government for a public purpose for providing house sites to the Adhi Dravidas, at whose instance a reference was made under Section 18 of the Land Acquisition Act, 1894 to the court below are the Appellants herein. An extent of 0.81.0 hectare land belonging to them and comprised in Survey No.56/3B2A of Mudinampattu Village, Gudiyatham Taluk, North Arcot Ambedkar District (now Vellore district) was acquired by the Government for the above said public purpose. Notification under Section 4(1) of the Land Acquisition Act was approved by the Government on 27.11.1990 and was published in the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Government Gazette on 26.12.1990. The same was published in the area on 05.01.1991. After necessary enquiry under Section 5A, the proposal to acquire the land was confirmed and the declaration under Section 6 of the Land Acquisition Act was approved by the Government in G.O.3D.No.1204 A.D. & T.W.Dept. Dt.27.12.1991 and published in the Tamil Nadu Government official Gazette on 28.12.1991. Thereafter award enquiry was conducted by the Land Acquisition Officer in which the Land Acquisition Officer considered particulars of six sales that had taken place in and around acquired land within 3 years prior to the date of publication of notification under Section 4(1) of the Land Acquisition Act. Discarding five sale deeds included in the sales statistics as not reflecting the correct market value of the acquired property for various reasons cited in the award of the Land Acquisition Officer, a sale deed dated 13.12.1998 bearing document No.3999/1998 of the Office of the Sub-Registrar, Katpadi under which an extent of 0.08.0 hectare of well irrigated dry land comprised in Survey No.56/5B including 1/6th share in the well, pump-set and channel had been sold for a sum of Rs.11,500/- was taken as the data sale reflecting the correct market value of the property acquired. The said sale deed had been shown as item 4 in the sales statistics collected by the Land Acquisition Officer. The Land Acquisition Officer deducted a sum of Rs.1,500/- noted as the value of the 1/6th share in the well, pump-set and channel from the above said amount and took the value of 0.08.0 hectares (20 cents) of land as Rs.10,000/- and fixed the market value of the acquired property at Rs.50,000/- per acre (Rs.500/- per cent). Accordingly, for the above said acquired land of 0.81.0 hectare, which is equivalent to 2 acres, the market value was fixed at Rs.1,00,000/-. A sum of Rs.30,000/- representing 30% solatium and a sum of Rs.18,295/- representing the increase in the market value from the date of publication of 4(1) notification till the date of award was also added and in all, a sum of Rs.1,48,495/- was awarded as compensation. 3. Not satisfied with the quantum of compensation awarded by the Land Acquisition Officer, the appellants herein/ claimants received the amount under protest and requested for a reference being made to the court under Section 18 of the Land Acquisition Act. Accordingly a reference was made to the court below under Section 18 of the Land Acquisition Act for fixing the reasonable amount of compensation to which the appellants herein/claimants would be entitled. 4. Before the Land Acquisition Officer and before the court below, the appellants herein/claimants claimed that the market value of the acquired property should be fixed at the rate of Rs.2,000/- per cent and on that basis enhanced compensation should be awarded. On the other hand, the Referring Officer had contended before the court below that the amount awarded by the Land Acquisition Officer was perfectly reasonable and no enhancement of compensation should be ordered. 5. Based on the said pleadings, the court below conducted trial in which two witnesses including the first appellant/first claimant https://hcservices.ecourts.gov.in/hcservices/ were examined as CW1 and CW2 and Ex.C1 was marked on the side of the appellants herein/claimants. On the side of the respondent/referring officer, only one witness was examined as RW1 and no document was marked. At the conclusion of trial, the learned Subordinate Judge, Vellore considered the evidence and allowed the claim for enhancement of compensation in part. While rejecting the claim of the appellants herein/claimants for awarding of compensation taking the market value of the property at Rs.2,000/- per cent, the learned Subordinate Judge came to the conclusion that the market value reflected in the sale deed relied by the Land Acquisition Officer as the data sale would be taken as the basis on which the market value of the acquired land as on the date of publication of Section 4(1) notification could be ascertained. At the same time, the learned Subordinate Judge held that since the said sale took place 2 years prior to the date of 4(1) notification, it was appropriate to fix the market value of the acquired property as on the date of 4(1) notification by allowing an increase of 10% from the value reflected in the data sale relied on by the Land Acquisition Officer. Thus, the learned Subordinate Judge fixed the market value of the acquired property at Rs.550/- per cent (Rs.55,000/- per acre) and on that basis awarded enhanced compensation. As against the disallowed portion of the claim and claiming further enhancement of compensation, the appellants herein/ claimants have approached this court by way of the present appeal. 6. The point that arises for consideration is: "Whether the market value fixed by the court below is too low? Whether the appellants shall be entitled to any amount over and above the amount awarded by the court below as enhanced compensation?" 7. This court heard the submissions made by Mrs.Rita Chandrasekar, the learned counsel for the appellants / claimants and Mr.V.Ravi, the learned Special Government Pleader (AS) representing the State and also perused the materials available on record. 8. The land owners whose land was acquired for a public purpose, namely for the purpose of providing house sites to the Adhi Dravidas, have come forward with this present appeal contending that the compensation awarded by the court below is too low and claiming that the same must be enhanced. The Land Acquisition Officer fixed the market value of the land at Rs.500/- per cent and awarded compensation. There is no grievance regarding the rate of solatium and the rate of increased market value adopted by the Land Acquisition Officer in arriving at the total compensation. However, the fixation of the market value of acquired land as on the date of 4 (1) notification was challenged by the appellants herein/ claimants before the court below. The first appellant/ first claimant besides examining himself as CW1, examined one Ekambaram as CW2. The only document produced on the side of the appellants/claimants before the court below is Ex.C1, certified copy of a sale deed dated 12.02.1990. Under the said document, an extent of 0.29 acres of land in Survey No.46/1 in the said village had been sold for a sum of Rs.75,000/- on 12.02.1990. As per the said document, the land was sold at the rate https://hcservices.ecourts.gov.in/hcservices/ of Rs.2,586/- (approximately) per cent. 9. The learned counsel for the appellants would contend that the said sale deed came into existence around 10 months prior to the date of 4(1) notification and hence the same should have been selected as the data sale to fix the market value of the acquired land and that selection of a sale deed dated 13.12.1988 i.e., a sale deed which came into existence 2 years prior to the date of 4(1) notification was inappropriate. In between the two, the sale deed Ex.C1 alone could reflect the correct market value as on the date of 4(1) notification, the learned counsel contended. The learned Special Government Pleader submitted that the said submission of the learned counsel for the appellants should be rejected in so far as unassailable reasons have been assigned by the court below for rejecting Ex.C1 as the data sale reflecting the correct market value of the acquired property. The learned counsel for the appellants would also contend that in the absence of the production of an authenticated copy of the sale deed relied on by the Land Acquisition Officer and when the only document produced in the LAOP is Ex.C1 - sale deed, the same should have been accepted as the data sale reflecting the correct market value of the acquired property and that the rejection of the said sale deed by the court below in the absence of contra evidence should be held against law. 10. As a reply to the said contention raised by the learned counsel for the Appellant, the learned Special Government Pleader contended that LAOP should not be considered as an appeal against the award of the Land Acquisition Officer; that the amount awarded as compensation by the Land Acquisition Officer should be taken as the offer made by the Government which shall be obvious from Section 25 which mandates that the amount of compensation awarded by court shall not be less than the amount awarded by the Collector (Land Acquisition Officer) under Section 11; that subject to the above condition that the amount to be awarded by the court shall not be less than the amount awarded by the Collector, the claim of enhanced compensation made by the claimants had got to be substantiated by materials by the claimants and that since the appellants herein/claimants had not substantiated their contention that the market value of the property was not less than 2,000/- rupees as claimed by them, the decree/award passed by the court below fixing the market value at 10% over and above the market value adopted by the Land Acquisition Officer could not be held either erroneous or illegal, capable of being interfered with in this appeal. It is true that court cannot rely on a sale deed as reflecting the market value of the acquired property when the original or an authenticated copy of the said document has not been produced in evidence. In the instant case, the sale statistics collected and the data sales perused by the Land Acquisition Officer might have been referred to in the award of the Land Acquisition Officer. They were matters for his personal satisfaction based on which the amount of compensation could have been fixed by him. But, when the matter has been referred to the court for determining the reasonable compensation for the https://hcservices.ecourts.gov.in/hcservices/ compulsory acquisition of the property, the decision of the Referring Officer is nevertheless the decision of a litigating party before the court. In a reference made under Section 18 of the Land Acquisition Act, the Referring Officer shall be in the position of a defendant, whereas the claimant shall be in the position of plaintiff. It is obvious that the claimants are making a claim for enhancement of compensation showing their dissatisfaction with the offer made by the Government in the form of the award of the Land Acquisition Officer. When the claimants stand in the position of the plaintiff, they have to lead sufficient evidence to prove their case. In this case, the only document relied on by the appellants/claimants, namely Ex.C1 has been rightly rejected by the court below as not reflecting the correct market value of the acquired land. The fertility, utility, soil quality, rate of assessment etc., of the land concerned in Ex.C1 and of the acquired land are not comparable. The land sold under Ex.C1 was a wet land, whereas the acquired land was a dry land receiving irrigation from a well. Under such circumstances, this court finds no defect or infirmity in the finding of the court below that Ex.C1 could not be relied on as data sale reflecting the correct market value of the acquired land. When such is the case, the court below could have very well rejected the claim for enhancement of compensation and confirmed the offer made by the Government based on the award of the Land Acquisition Officer to be reasonable. 11. However, the learned Subordinate Judge chose to take into consideration the fact that the Land Acquisition Officer relied on a sale deed, which came into existence 2 years prior to the date of 4 (1) notification and expressed a view that within the said period of 2 years, the land value should have increased at least by 10%. In consonance with the said view expressed, the learned Subordinate Judge has given an increase of 10% over the market value adopted by the Land Acquisition Officer and awarded enhanced compensation. As against the said course adopted by the learned Subordinate Judge, the respondent herein/Referring Officer has not filed any separate appeal or cross-objection. The said course adopted by the learned Subordinate Judge in fixing the market value of the acquired land by allowing a marginal increase of 10% from the market value adopted by the Land Acquisition Officer seems to be quite reasonable. That is why no appeal has been preferred and no cross-objection has been filed by the respondent herein/Referring Officer. 12. Taking into account all the above said facts and circumstances, this court comes to the conclusion that there is no scope, whatsoever, to interfere with the said finding of the court below fixing the market value of the acquired land at Rs.550/- per cent. More specifically, the claim of the appellants for fixing a higher rate than the rate fixed by the Land Acquisition Officer (at Rs.500/- per cent) as the market value of the acquired property cannot be countenanced and the same deserves to be rejected as not substantiated by evidence. 13. The Learned counsel for the appellants contended further https://hcservices.ecourts.gov.in/hcservices/ that the failure to award severance compensation was unjustified and a reasonable amount should be awarded on the above said head. The total extent of land comprised in Survey No.56/3B2, before acquisition and consequential sub-division, was 1.11.5 hectares equivalent to 2.78 acres. The extent of the land acquired was 0.81.0 hectares (2 acres). So, the extent of land left with the appellants herein/claimants is 0.78 acres. The portion in which well had been dug has not been acquired, as the same comes within the left out land of 78 cents. According to the contention of the appellants, since the well was used for irrigating the entire 2.78 acres, because of the acquisition of 2 acres out of the said land, use of the well had been greatly diminished and hence severance compensation should be awarded. There is no clear-cut evidence adduced on the side of the appellants herein/claimants that due to the acquisition of 2 acres out of 2.78 acres, the remaining extent has become uncultivable or that the remaining extent lost any of the amenities. Severance compensation is possible only for the lose of amenities and diminution in utility of the severed land still available with the claimant after acquisition. In this case, severance compensation seems to have been claimed on the ground that the area that got irrigation from the well has been reduced because of the acquisition of a portion of the said area. It is not the case of the appellants herein/ claimants that the well has become totally useless and hence the value of the well should have been ascertained and awarded as compensation. There is no evidence showing the number of crops raised in the acquired land before acquisition using the well water. Suppose it is proved that 2 or 3 crops were raised in a year in the entire land getting irrigation from the well and no additional crop can be raised in the left out land after acquisition, then there may be substance in the contention of the appellants herein/claimants that they should be paid severance compensation. The appellants/ claimants have not chosen to produce the adangal extract to show how many crops were raised in the entire land before acquisition and how many crops are being raised in the left out land after acquisition. Under such circumstances alone, the court below has held that after the acquisition of 2 acres of land, the well water could could be more profitably used for irrigating the remaining land, namely 78 cents and that hence no severance compensation as claimed by the appellants/ claimants could be awarded. This court sees no reason to differ from the said view expressed by the learned Subordinate Judge and hence the submissions made by the learned counsel for the appellant in this regard also has got to be discountenanced. https://hcservices.ecourts.gov.in/hcservices/ 14. For all the reasons stated above, this court comes to the conclusion that there is no merit in the appeal and the same deserves to be dismissed. Accordingly, the appeal is dismissed and there shall be no order as to cost. Consequently, the connected miscellaneous petition is also closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar asr To The Subordinate Judge, Vellore. Copy to The Section Officer, VR Section, High Court, Madras. +1cc to Govt. Pleader Sr 29733 SSK (CO) km/12.7. A.S.No.807 of 1997 https://hcservices.ecourts.gov.in/hcservices/