IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.07.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.36 of 1998 and C.M.P.No.1026 of 2008 K.S.Viruthambal .. Appellant/Claimant -vs- The Special Tahsildar (LA) Krishna Water Supply Project Trivellore ..Respondent/ Referring Officer This appeal is filed under Section 54 of the Land Acquisition Act against the award passed in L.A.O.P.No.327 of 1986 by the learned Subordinate Judge, Trivellore, dated 15.4.1997. For appellant : : Mr.M.S.Subramanian,Advocate For respondent : : V.Ravi, Spl.Govt.Pleader JUDGMENT This appeal has been directed against the award passed in L.A.O.P.No. 327 of 1986 on the file of the learned Land Acquisition Tribunal / The Subordinate Judge, Trivellore. About 1 acre 27 cents of land in S.Nos.16/1,17/1,19/1,19/2A at Ponthavakkam Village was acquired by the Government for the purpose of forming a canal under the Krishna Water Scheme. 2. After following the procedure contemplated under the Land Acquisition Act (hereinafter referred to as "Act"), a notice under Section 4(1) of the Act was published in the gazette on 30.11.1983 by the Land Acquisition Officer. On the basis of the data land,the Land Acquisition Officer has fixed the compensation for the above said lands at the rate of Rs.85 per cent and passed an award 5/85-86 dated 16.5.1985. The data land, taken into consideration for fixing the compensation for the land acquired as Rs.85/- per cent, was dated 10.5.1983 under which 50 cents of land in Survey 46/1 was sold for a sale consideration of Rs.4,250/-. Not satisfied with the compensation awarded by the Land Acquisition Officer, the claimant had filed her objection claiming that the Land Acquisition Officer ought to have fixed the compensation for the lands acquired as Rs.750/- per cent. The Land Acquisition Officer has referred the claim made by the claimant under Section 18 of the Act to the Land Acquisition Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 3. Before the Land Acquisition Tribunal, the son of the claimant in L.A.O.P.No.345 of 1986 was examined as C.W 1 and Exs C1 and C2 were marked on the side of the claimant. No oral evidence was let in on the side of the Referring Officer/respondent. The village map relating to Ponthavakkam village was marked by consent as Ex R1. After scanning the evidence both oral and documentary , the learned Land Acquisition Tribunal has come to a conclusion that the compensation fixed by the Land Acquisition Officer for the land acquired is meagre, has enhanced the same on the basis of Ex C1 sale deed dated 30.9.1983 and fixed as Rs.230/- per cent. Aggrieved by the award passed by the learned Land Acquisition Tribunal, the claimant in L.A.O.P.No.327 of1986 has preferred this appeal. 4. C.M.P.No.1026 of 2008 was filed by the claimant under Order 41, Rule 27 of CPC to receive the sale deed dated 2.9.1982 as an additional evidence in the appeal. The said sale deed relates to survey number 367/28B,367/29 and 367/1 in Ponthavakkam Village Natham. A perusal of the said sale deed will go to show that the guide line value fixed for one cent of land in S.No.367/28B was Rs.100/-and the guideline value for one cent in S.No.367/29 was Rs.100/- and the guideline value in S.No.367/1 for 7 ½ cents was fixed as Rs.4,920/-. 5. The learned counsel appearing for the appellant would contend that the Land Acquisition Tribunal ought to have fixed the value for the acquired land at least as Rs.700/-per cent on the basis of the said sale deed. But the said document cannot be received in evidence because the lands scheduled to the said sale deed dated 2.9.1982 are all situate in Ponthavakkam Village, Natham whereas the lands acquired are wet lands situate in the midst of the agricultural lands. The claimant before the Land Acquisition Tribunal had filed Exs C1 and C2 sale deeds in support of her claim that the compensation fixed by the Land Acquisition Officer is inadequate and meagre. The learned Land Acquisition Tribunal, after giving due consideration for Ex C1 which relates to S.No.123/3 under which 13 cents of lands were sold for Rs.3000/- ie, one cent at the rate of Rs.230/- had enhanced the compensation awarded by the Land Acquisition Officer from one cent at the rate of Rs.85/- to Rs.230/- per cent, has passed the award accordingly in favour of the claimant. 4(1) Notification under the Act was effected in this case on 30.11.1983. Ex C1 is dated 30.9.1983 ie., exactly two months prior to 4(1) Notification. Under such circumstances, the claimant is not entitled to the relief under C.M.P.No.1026 of 2008 which is liable to be dismissed. 6. The learned counsel appearing for the appellant/claimant would contend that the Land Acquisition Tribunal has failed to consider the potentiality of the lands acquired and also the fact that there are buildings in the lands nearby the lands acquired and while fixing the compensation, the learned Land Acquisition Tribunal ought to have proportionately increased and awarded the compensation taking into consideration that the lands acquired is having potential value for constructing building on it. The learned counsel in support of his contention would rely on a decision reported in P.Prem Ready-v- Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad (1995)2 Supreme Court Cases 305) wherein the ratio decidendi is that https://hcservices.ecourts.gov.in/hcservices/ the "potentiality of the land for constructing the building has to be decided on the basis of the material placed on record or made available and such material must be supported by reliable documentary evidence". There is absolutely no material placed before this Court to show that the lands situate near the lands acquired are having the potential value for constructing buildings. The document relied under C.M.P.No.1026 of 2008(referred to above) is relating to the lands situated in the village natham poramboke. Ex R1 plan does not show any constructed building in any of the survey number land situate near the lands acquired. Admittedly, the lands acquired are wet lands for the purpose of providing canal under Krishna Water scheme. So the facts in P.Prem Ready-v- Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad(1995)2 Supreme Court Cases 305) differs from the facts of the case on hand. Relying on a ratio in Tribeni Devi-v- The Collector, Ranchi(AIR 1972 Supreme Court, 1417), the learned counsel appearing for the appellant/claimant would contend that C.W.1, the son of the Claimant in L.A.O.P.No.345 of 1986, in his evidence that the acquired lands are situate appurtenant to Thiruvellore- Chennai Highways and that Uthukottai, a well developed town, is just one kilo metre away from the lands acquired and that the lands are wet lands capable of yielding three crops per year and that near the lands acquired, there are schools, E.B.Office, cinema Theatres and hospitals and that the lands acquired are having potentiality of the lands available at Uthukottai and that the value of one cent at Uthukottai is more than Rs.1,00,000/- and that a plot worth more than Rs.5,00,000/- and according to him, the value for one cent at the land acquired will be Rs.1000/-. But in the cross examination, he would admit that Uthukottai Town is two kilo metre away from the lands acquired . To substantiate his evidence that there are cinema theatres, hospitals , High school and Higher Secondary School,there is no document produced on behalf of the claimant/appellant. 7. In Ex R1 plan, no building was shown near the lands situate near the acquired lands. The ratio laid down in Tribeni Devi-v- The Collector, Ranchi(AIR 1972 Supreme Court, 1417) runs as follows: "In our view, Rs.1,35,000/- per acre would be a reasonable rate at which compensation could be awarded to the claimants. The High Court was not justified in giving 10% towards potential value because that element is inherent in the fixation of the market value of the land and could not be assessed separately. The High Court was also not justified in disallowing 5% awarded by the Judicial Commissioner, Chhotanagpur as compensation for severance merely because there was an entrance to the land. When a portion of the land is acquired and a large portion left out there would be a diminution in the value of the land that is left out for which some compensation has to be allowed. The 5% allowed by the Judicial Commissioner, Chhotanagpur is reasonable". Relying on the above said ratio, the learned counsel appearing for the appellant would contend that the lands acquired are all wet lands and even as per the award, in S.No.55/1A out of 1.05 cents 66 cents https://hcservices.ecourts.gov.in/hcservices/ were acquired and the remaining 39 cents was left out. Like that in S.No.66/1A, out of total extent of 48 cents, only 28 cents were acquired leaving the remaining 20 cents to the claimant. In S.No.66/2A, out of total extent of 24 cents, 14 cents alone were acquired and the remaining 10 cents were left out. In S.No.71/3B out of total extent of 15 cents only 9 cents were acquired and the remaining 6 cents were left out. In S.No.71/4B, out of total extent of 26 cents only 21 cents were acquired leaving 5 cents to the claimant. In S.No.72/5 B out of total extent of 50 cents only 22 cents were acquired and the remaining 28 cents were not acquired. In S.No.72/1B out of total extent of 76 cents only 63 cents were acquired leaving 13 cents left to the claimant. So out of the entire 3 acre 44 cents in one Block, only 2.23 acres were acquired leaving 1 acre 21 cents to the claimant. 8. Relying on Section 23 of the Act, the learned counsel appearing for the appellant would contend that even though the claimant had asked for Rs.60,000/- towards severance compensation as provided under Section 23(1)(thirdly), the Land Acquisition Tribunal has failed to consider the same and before this Court, the claimant had restricted her claim under the head of "Severance compensation" as Rs.10,000/- only. Section 23 of the Act reads as follows: "The matters to be considered in determining compensation. Firstly. . . . . . . . . .. . . Secondly. . . . . . . . . Thirdly, the damage(if any) sustained by the person interested , at the time of the Collector's taking possession of the land, by reason of severing land from his other land. Fourthly . . . . . . . ... Fifthly. . . . . . . . ." So under the statute, the claimant is entitled to compensation under Section 23(1) (thirdly) of the Act. 9. The learned Special Government Pleader would contend that only if the lands acquired are severed in to two halves then only the claimant can make her claim for more compensation under Section 23(1) (thirdly) of the Act. But such an argument has no legs to stand because severance means, even if the land under acquisition by the Government is divided into more than one part then the land owner/ claimant is entitled to compensation under Section 23(1)(thirdly) of the Act, which in this case, I fix as Rs.10,000/- as claimed by the claimant. The Land Acquisition Tribunal only on the basis of Ex C1 which relates to S.No.123/3 which as per Ex R1 plan is situate just on the east of the land acquired has fixed the compensation as Rs.230/- per cent. Ex C2 relates to S.No.293/2 under which 14 ½ cents of wet lands were sold at the rate of Rs.88 per cent and the said land is situate on the west of the lands acquired and is situate seven survey fields away from the lands acquired on the west. The Land Acquisition Tribunal on the basis of Ex C1 under which 13 cents of lands in S.No.123/3 were sold for Rs.3,000/- ie., Rs.230 per cent, has enhanced the award passed by the learned Land Acquisition Officer in Award No.5/85-86 dated 16.5.1985 to Rs.230 per cent https://hcservices.ecourts.gov.in/hcservices/ with other benefits contemplated under Sections 23 and 34 of the Act. I do not find any reason to modify the award passed by the land Acquisition Tribunal/Subordinate Judge, Trivellore, in L.A.O.P.No.327 of 1986 except the compensation under Section 23(1) (thirdly), which I fix as Rs.10,000/-. 10. In fine, the appeal is allowed in part and the appellant/claimant is awarded a sum of Rs.10,000/- (Rupees Ten thousand) only towards severance of compensation under Section 23(1) (Thirdly) of the Land Acquisition Act over and above the award passed by the Land Acquisition Tribunal in L.A.O.P.No.327 of 1986 on the file of the Land Acquisition Tribunal/Subordinate Judge, Trivellore. In other aspects, the award of the Land Acquisition Tribunal/Subordinate Judge, Trivellore in L.A.O.P.No.327 of 1986 is confirmed. The benefits of the above said compensation will be worked out in accordance with the provisions contained in Sections 23 and 34 of the Act. NO costs. C.M.P.No.1026 of 2008 is dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sg To 1. The Subordinate Judge, Trivellore 2. The Record Keeper, V.R.Section, High Court, Madras. + 1 CC To Mr.M.S.Subramanian, Advocate SR NO.36320 + 1 CC to the Government Pleader SR NO 35705 A.S.NO.36/1998 and C.M.P.No.1026/2008 RA(CO) SRA(17/07/2008) https://hcservices.ecourts.gov.in/hcservices/