A.S.(MD)No.247 of 2008 arises against the judgment and decree in L.A.O.P.No.12 of 2000 on the file of Sub-Court, Kulithurai. The notification under Section 4(1) of the Land Acquisition Act, was issued on 28-08-1998 for acquiring an extent of 0.07.5 Hectares(19 3/4 cents) in R.S.No.225/10A 2B of Kulapuram Village, Vilavancode Taluk, Kanyakumari District, for the purpose of establishment of Wide Band Digital Microwave Tower and Building for Microwave Communication link between Madurai and Trivandrum. The Land Acquisition Officer, the second respondent herein fixed the value of the land at Rs.1,100/- per cent and 30% solatium. The first respondent/claimant claimed Rs.75,000/- per cent of land, solatium and Rs.50,000/- for trees. Two witnesses were examined on the side of the claimants and R.W.1 was examined on the side of the respondents in L.A.O.P. The Advocate Commissioner was examined as C.W.1. The trial Court awarded Rs.60,000/- per cent and 30% solatium. The first respondent/claimant has also filed Cross Objection (MD)No.58 of 2009 for enhancing the compensation for the land and for awarding higher compensation for the rubber trees by enhancing from Rs.4,500/- per cent to Rs.50,000/-.
A.S.(MD)No.248 of 2008 arises against the judgment and decree in L.A.O.P.No.13 of 2000 on the file of Sub-Court, Kulithurai. The notification under
Section 4(1) of the Land Acquisition Act, was issued on 28-08-1998 for acquiring an extent of 0.03.5 Hectares(8 3/4 cents) in R.S.No.225/8B of Kulapuram Village, Vilavancode Taluk, Kanyakumari District, for the purpose of establishment of Wide Band Digital Microwave Tower and Building for Microwave Communication link between Madurai and Trivandrum. The Land Acquisition Officer, the second respondent herein fixed the value of the land at Rs.1,100/- per cent plus 30% solatium. The first respondent/claimant claimed Rs.65,000/- per cent plus solatium. Five witnesses were examined on the side of the claimants and RW.1 was examined on the side of the respondents in a L.A.O.P. The Advocate Commissioner was examined as CW.1. The trial Court awarded Rs.40,000/- per cent, Rs.8,000/- for levelling the land, Rs.34,939/- for trees and Rs.12,000/- for compound and basement constructed in the land and also awarded 30% solatium.
A.S.(MD)No.249 of 2008 arises against the judgment and decree in L.A.O.P.No.15 of 2000 on the file of Sub-Court, Kulithurai. The notification under
Section 4(1) of the Land Acquisition Act, was issued on 28-08-1998 for acquiring an extent of 0.05.0 Hectares(12 1/2 cents) in R.S.No.225/10B of Kulapuram Village, Vilavancode Taluk, Kanyakumari District, for the purpose of establishment of Wide Band Digital Microwave Tower and Building for Microwave Communication link between Madurai and Trivandrum. The Land Acquisition Officer, the second respondent herein fixed the value of the land at Rs.1,100/- per cent. The first respondent/claimant claimed Rs.65,000/- per cent of land, 30% solatium and Rs.50,000/- for levelling the land. Five witnesses were examined on the side of the claimants and RW.1 was examined on the side of the respondents in a L.A.O.P. The Advocate Commissioner was examined as CW.1. The trial Court awarded Rs.40,000/- per cent, Rs.40,000/- for trees and 30% solatium.
A.S.MD)No.254 of 2008 arises against the judgment and decree in L.A.O.P.No.14 of 2000 on the file of Sub-Court, Kulithurai. The notification under
Section 4(1) of the Land Acquisition Act, was issued on 28-08-1998 for acquiring an extent of 0.09.0 Hectares(22 1/2 cents) in R.S.No.225/9A 2A of Kulapuram Village, Vilavancode Taluk, Kanyakumari District, for the purpose of establishment of Wide Band Digital Microwave Tower and Building for Microwave Communication link between Madurai and Trivandrum. The Land Acquisition Officer, the second respondent fixed the value of the land at Rs.1,100/- per cent, Rs.2,705/- for tress and 30% solatium. The first respondent/claimant claimed Rs.65,000/- per cent of land, Rs.8,000/- for levelling the land, Rs.3,49,880/- for trees and 30% solatium. Two witnesses were examined on the side of the claimants and RW.1 was examined on the side of the respondents in a L.A.O.P. The Advocate Commissioner was examined as CW.1. The trial Court awarded Rs.40,000/- per cent, Rs.8,000/- for levelling the land, Rs.3,49,888/- for trees, Rs.12,000/- for compound and basement situated in the land and 30% solatium.
2.In all these appeals, the second respondent in the L.A.O.P is the appellant. The first respondent is the claimant and the second respondent is the Land Acquisition Officer.
3.The issues involved in all the four appeals are one and the same and the appeals having been filed against the valuation fixed by the Reference Court (viz) Sub-Court,Kulithurai, they have been taken up together for hearing.
4.The first appeals in A.S.(MD)Nos.248,249 and 254 of 2008 have been preferred, challenging the common judgment and decrees of the reference Court, wherein the Court below has enhanced the value of the land from Rs.1,100/- (Rupees One Thousand One Hundred only) per cent to Rs.40,000/-(Rupees Forty Thousand only) per cent. In the first appeal, A.S.(MD)No.247 of 2008, the value of the land has been enhanced from Rs.1,100/-(Rupees One Thousand One Hundred only) per cent, to Rs.60,000/-(Rupees Sixty Thousand only) per cent. The lands were acquired for the purpose of establishing a Wide Band Digital Microwave Tower and Building for Microwave Communication link between Madurai and Trivandrum.
5.In A.S.(MD)No.247 of 2008, an extent of 19 3/4 cents in R.S.No.225/10A 2B of Kulapuram Village, Vilavancode Taluk, Kanyakumari District was acquired. In A.S.(MD)No.248 of 2008, an extent of 8 3/4 cents in R.S.No.225/8 of Kulapuram Village, Vilavancode Taluk, Kanyakumari District was acquired. In A.S.(MD)No.249 of 2008, an extent of 12 1/2 cents in R.S.No.225/10B of Kulapuram Village, Vilavancode Taluk, Kanyakumari District was acquired. In A.S.(MD)No.254 of 2008, an extent of 22 1/2 cents in R.S.No.225/9A2A of Kulapuram Village, Vilavancode Taluk, Kanyakumari District was acquired.
6.Notification under
Section 4(1) of the Land Acquisition Act, for acquiring the above mentioned lands were issued on 28-08-1998 and the award was passed on 27.08.1999. The second respondent, the Land Acquisition Officer while determining the value of the land, took into consideration Ex.R2 sale deed dated 01-02-1996 wherein, 15 cents of land in R.S.No.225/12 was sold for Rs.16,500/-. Therefore, as per the said document, the value of the land per cent was Rs.1,100/-. The second respondent relying upon the said document fixed the value of the land at Rs.1,100/- per cent. Apart from the land value, the second respondent also awarded 30% solatium and 12% additional market value from the date of
Section 4(1) notification till the date of passing of the award. The second respondent also fixed the value for the trees standing in the land and awarded compensation for the same.
7.Aggrieved over the award of the second respondent, at the instance of the first respondent/claimants the matters were referred to the Reference Court viz., Sub-Court, Kulithurai. Before the Reference Court the first respondent/claimants produced Ex.C4 and Ex.C5 Sale Deeds dated 23-12-2004 and 28-04-1999 respectively (marked as C1 and C2 in LAOP 12/2000)to show that the value of the land was more than what was fixed by the second respondent. Though the Reference Court rejected the two sale deeds for the reason that they are subsequent to
Section 4(1) notification but relying upon the reports of the Advocate Commissioner enhanced the value of the land from Rs.1,100/- per cent to Rs.40,000/- per cent in L.A.O.P.Nos.13,14 and 15 of 2000 and to Rs.60,000/- per cent in L.A.O.P.No.12 of 2000. The first respondent claimant produced sale deeds dated 23.12.2004 and 28.04.1999 which are subsequent to the notification under
Section 4(1) which was issued on 28.08.1998. Ex.C5, sale deed dated 28- 04-1999 is about eight months after the issuance of
Section 4(1) notification. The Data Land sale deed relied upon by the second respondent is dated 01-02-1996 i.e., about two and half years prior to the issuance of
Section 4(1) notification.
8.The learned counsel appearing for the appellant submitted that the Reference Court had enhanced the value of the land multi-fold without any acceptable evidence and according to the learned counsel for the appellant, value fixed by the second respondent, the Land Acquisition Officer, is just and proper. In support the contentions raised by the learned counsel for the appellant, the learned counsel relied upon the judgment in State of West Bengal
-vs- Lohit Kumar Roy reported in AIR 1996 SCC 3482, wherein the Honourable Apex Court held that the sale deeds having been executed after the notification cannot be relied on. The learned counsel for the petitioner also relied upon the judgment in Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun through its Secretary -vs- Bipin Kumar reported in (2004) 2 SCC 283. In the above judgment, the Honourable Apex Court held in para 8 as follows: "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."
9.Per contra, countering the submissions made by the learned counsel for the appellant, the learned counsels for the first respondent, submitted that the judgment and decree of the Reference Court is just and proper and prayed for dismissal of the appeals. In support of the contentions of Mr. K.N.Thambi, learned counsel for the first respondent relied upon the judgment in State of U.P -vs- Major Jitendra Kumar and others reported in AIR 1982 SC 876. In the above judgment of the Honourable Apex Court it could be seen that the notification under Section 4 and a sale deed dated 11-07-1951 where-under the Co-operative Society had itself purchased land in the neighbourhood of the land for which enhancement of compensation was claimed though the sale deed was of a date three years later than the Notification under Section 4 of the Act. The said judgment is not applicable to the facts and circumstances of the case on hand for the reason that the Co-operative Societies itself purchased the land under the said sale deed. Further there was no fluctuation in the market rate from 1948 onwards till 1951. The learned counsel for the first respondent relied on the judgment in V.Sreekantan and another -vs- The Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District reported in (2001) T.L.N.J 179 wherein, this Court held that the Advocate Commissioner can be appointed to ascertain the market value of the land in land acquisition matters. In K.Krishna Reddy and Others -vs- Special Deputy Collector, Land Acquisition Unit, II, LMD, Karim Nagar, Andhra Pradesh reported in 1988 4 SCC 163 the Apex Court held that the Advocate Commissioner can be appointed for ascertaining the market value in the land acquisition matters. Further, the Honourable Apex Court held that the Advocate Commissioner can take the assistance of experts like Surveyors, Engineers etc., for giving a report regarding the nature of the land, the location of the land and its value. In the case on hand there is nothing on record to show that the Advocate Commissioner fixed the value of the land based on any acceptable evidences. The learned counsel for the first respondent relied on S.A.Jain College Trust & Managing Society -vs- State of Haryana and another reported in (1995) 3 SCC 74. In the above judgment the Honourable Apex Court held that for fixing the value of the land, the Court should take into consideration the importance of locality, the potential value of the land and the user to which it can be put. The learned counsel for the first respondent also relied on a judgment in (Kanchumatri) Venkata Krishnayya Garu -vs- Secretary of State reported in AIR 1928 Madras 89 wherein it is held as follows:
"In estimating, however, the value with reference to the special adaptability of the property and to its future user, the Court should estimate the future utility of the land by prudent business calculations and not by mere speculation and impractical imagination."
10.On a careful consideration of the submissions made by the respective Counsel, it could be seen that the Reference Court had enhanced the value of the land from Rs.1,100/- per cent to Rs.40,000/- per cent in L.A.O.P.Nos.13,14 and 15 of 2000 and enhanced the value of land to Rs.60,000/- per cent in L.A.O.P.No.12 of 2000. However, the Reference Court enhanced the compensation solely relying upon the report of the Advocate Commissioner for fixing the value of the land. Even the Advocate Commissioners who inspected the land, gave a finding with regard to the value of the land based on some hear-say statements. The Advocate Commissioner, fixed the value on the basis of hear-say statements which cannot be relied upon. The value of the land can be fixed by documentary evidences and not solely by oral evidences. Further, the first respondent/claimant also failed to produce any documents to prove that the value of the land was much more than Rs.1,100/- per cent on the date of Section 4(1) Notification. The Reference Court though rejected Exs. C4 and C5 (Exs. C1 and C2 in L.A.O.P.No.12 of 2000) sale deeds holding that the sale deeds are subsequent to the date of Section 4(1) Notification, erroneously relied upon the reports of the Advocate Commissioner for enhancing the value of the land. The Reference Court ought not to have relied upon the Reports of the Advocate Commissioner for fixing the value of the land. Ex.R2 data land sale deed dated 01.02.1996 is about two and half years prior to the issuance of Section 4(1) Notification. The value of the land as on 01-02-1996 was Rs.1,100/- per cent. Though Exs.C5(Ex.C2 in L.A.O.P.No.12 of 2000) sale deed dated 28-04-1999 is about eight months after the issuance of Section 4(1) Notification,the value of the land as per Ex.C5(Ex. C2 in L.A.O.P.No.12 of 2000) sale deed per cent is Rs.40,000/- per cent. Since the Reference Court had increased the value of the land from Rs.1,100/- per cent to Rs.40,000/- per cent in L.A.O.P.Nos.13,14 and 15 of 2000) and Rs.60,000/- per cent in L.A.O.P.No.12 of 2000, solely, relying upon the report of the Advocate Commissioner, we are of the opinion that the judgments and decrees of the Reference Court cannot be sustained and are liable to be set aside. As per the reports of the Advocate Commissioner, it could be seen that the acquired lands have great potentiality. According to the Advocate Commissioner, the acquired lands are abetting the main road and there are buildings adjacent to the land. The Advocate Commissioner also found that the land is very near to the Hospital and junction. Therefore, from the reports of the Advocate Commissioner and the evidences of CWs and RW it could be seen that the acquired land has got high potentiality. Since Ex.R2 data land sale deed dated 01-02-1996 is about two and half years prior to Section 4(1) Notification, we are of the view that the value of the land would be more than Rs.1,100/- per cent on the date of Section 4(1) Notification. The value of the land as per Ex.C5(Ex.C2 in L.A.O.P.No.12 of 2000) sale deed dated 28-04-1999 is Rs.40,000/- per cent. It is well settled principle of law that the value of the land covered in a sale deed which is beneficial to the claimants will have to be taken into consideration. However the extent of land sold under Ex.C5 (Ex.C2 in L.A.O.P.No. 12 of 2000) Sale Deed was only three cents. Further the Sale Deed is also about eight months after the issuance of Section 4(1) Notification. Therefore, the value of the lands mentioned in Ex.C5(Ex.C2 in L.A.O.P.No.12 of 2000) can not be taken into consideration. Since the Ex.R2 data land sale deed is about two and half years prior to Section 4(1) Notification, following the judgment reported in 2004(2)SCC 283 we are of the view that 15% enhanced value can be fixed per annum over and above the value found in the said document. Therefore, applying the 15% enhancement per year, the value of the land can be enhanced by 45% over and above Rs.1,100/- per cent, which comes to Rs.1,595/- per cent. However, taking into consideration the high potentiality of the land and the locality of the land we fix the value of the land at Rs.2,000/- per cent.
11.Therefore, the judgment and decree of the Reference Court is modified by fixing the valuation of the land acquired at Rs.2,000/- per cent instead of Rs.40,000/- in L.A.O.P.Nos.13,14 and 15 of 2000 and Rs.60,000/- per cent in L.A.O.P.No.12 of 2000. Insofar as the other relief granted by the Reference Court are concerned they are confirmed. Accordingly, the above appeals are allowed to the extent mentioned above. The Cross-objection (MD)No.58 of 2009 in A.S.No.247 of 2008 stands dismissed. There will be no order as to costs. Consequently, connected M.P(MD)No.2 of 2008 in A.S.No.247 of 2008, M.P(MD)No.2 of 2008 in A.S.No.248 of 2008, M.P(MD)No.2 of 2008 in A.S.No.249 of 2008 & M.P(MD)No.2 of 2008 in A.S.No. 254 of 2008 are closed.
12.In view of the disposal of the first appeal in A.S.(MD)No.254 of 2008, Review Application No.51 of 2009 is closed.
Gsr To: The Land Acquisition Claims Tribunal, (Sub-Court)Kulithurai.