For the purpose of providing house sites to Arunthathiars and Adi Dravidars of Dharmapuri town and village, Dharmapuri Taluk and Dharmapuri District and extent of land measuring the 5 acres and 14 cents situated in the village of Vellagoundampalayam in the Taluk of Dharmapuri in the registration Sub-District of Dharmapuri, in the district of Dharmapuri registered in the name of or occupied by the persons mentioned in the award No.1/85-86 dated 25.11.1985 were acquired after the issuance of notification under Section 4(1) of the Land Acquisition Act.
2. The Arunthathiars and Adidravidars of Seshaneri, Narassiyarkulam, Ambedhkar Colony and Madhikonpalayam of Dharmapuri town are residing in Survey No.256/4 and 279/01 of Vellagoundampalayam village. There are 98 surplus schedule caste families (Adidravidars 71 families and Arunthathiars 27 families) have to be provided with separate house site as they are leaving in great congestion, for which an extent of 5.14 acres of land has been required the details of which run as follows:
A.C.
S.No. Classification Total Extent Extent Acquired 570/2A Govt. dry 2.58 acres 2.32 acres 571/2 -do- 1.82 acres 1.57 acres 572/1A -do- 0.87 acres 0.87 acres 572/2A -do- 0.38 acres 0.38 acres ------------ Total 5.14 acres ------------ 4. The aforesaid lands have been found suitable for the formation of colony to Arunthathiars and Adidravidars and as a matter of fact these lands are close to the existing Arunthathiars colony.
5. The compensation allowed for the aforesaid lands has been determined at Rs.3,09,928.10/-, as seen in the award No.1/85-86 dated 25.11.1985. Out of the total extent of 2.58 acres in Survey No.570/2, an extent of 2.32 acres (Survey No.560/2A) only, has been acquired and it appears that the said land jointly stands registered in the name of (1) Periapayyan (2) Samikannu (3) Chinnapappa @ Lakshmi (4) Thankaraj (5) Vadivel and the said has been under an effective possession and enjoyment of Periapayyan and his brother Samikannu according to the family registered partition deed dated 25.02.1953. Further, the manager of the family, one, Vadivel son of D.C. Marimuthu Gounder has appeared in the award enquiry and has stated that himself and his mother Chinnapappa @ Lakshmi and his brother Thankaraj have no right over the portion under acquisition and only their maternal uncles Periapayyan and Samikannu are entitled to an entire extent of 2.32 acres under acquisition and has consented to make the payment of the compensation for the land in question to Periapayyan and Samikannu.
6. Before the Land Acquisition Officer Periapayyan and Samikannu have appeared in the award enquiry and have stated that out of 2.32 acres, Periapayyan is entitled for 1.50 acres and his brother Samikannu is entitled for 0.82 acres. As a matter of fact in the portion under acquisition there is also one well, and they have claimed half share each in the well and they have consented to receive the compensation under protest and the compensation for 2.32 acres has been determined as follows.
1.Periapayyan S/o Marimuthu Gounder:
Land Value at Rs.45,173/- per acre for 1.50 acres : Rs.67,7759.59/-
Add half the value of the well (Rs.6,217.00) : Rs.3,108.50/-
as per the estimate prepared by the Junior Engineer Junior Engineer (ADW), Dharmapuri ------------------ Rs.70,868.00/- Add: 30% Solatium : Rs.21,260.40/- -------------------- Rs.92,128.40/- -------------------- 2.Samikannu S/o. Marimuthu Gounder: Land value at Rs.45,173/- per acre for 0.82 acre : Rs.37,041.86/- Add half the value of the well (Rs.6217.00) as per the estimate prepared by the Junior Engineer (ADW) Dharmapuri. : Rs.3,108.50/- ------------------- Rs.40,150.36/- Add: 30% Solatium Rs.12,045.11/- ------------------- Rs.52,195.47/- (or) Rs.52,195.50/- -------------------
7. Since the present A.S.No.91 of 2002 is arising out of LAOP No.85/89 filed originally by the claimant Samikannu (later died) his heir Marimuthu has been added as a party to the proceedings before the tribunal as per order dated 03.03.1988 passed in I.A.No.138 of 1988. As a matter of fact, the notification as per
Section 4(1) of the Land Acquisition Act has been approved in G.O.Ms.No.237 S.W.D. Dated 6.2.85 published at page No.3 and 4 of the part II Section 2 (issue No.37) of Extra ordinary issue of Tamil Nadu Government gazette of 06.02.1985. The same has also been published in para 18 of Tamil Edition and Dina Thanthi dated 08.02.1985 and in English at page 11 of Indian Express newspaper dated 11.02.1985. The substance of the notification has also been published for the village on 09.02.1985 and errata has been proposed in this office Roc.1692/83(A) dated 08.02.1985 which has been approved by the Government in the letter No.143854/ADW VIII/85-1 dated 25.02.1985 and the same has been published at page 5 of Tamil Nadu Government gazette Part II Sec II dated 13.03.1985. The notices in Form-3 (the notice under
Section 4(1) of the Land Acquisition Act I of 1894) and in form 3A under
Section 55(1) of the Act have been issued, served and published on the land owners as per rules. The enquiry as per Section 5A of the Land Acquisition Act has been conducted on 02.03.1985 at 11.00 A.M. In the office of the Special Tahsildar (Adi dravidar Welfare), Dharmapuri. At the time of enquiry the land owners who has taken part in the enquiry have reportedly consented to part with their lands under acquisition. The other land owners who have not attended the Section 5A enquiry have not filed any objection petitions or raised any objections through anyone. The draft declaration notification under Section 6 of the Land Acqusition Act has been approved in G.O.Ms.No.1682 AWD dated 16.08.1985 and published at page No.26, supplement to part II Section 2 of the Tamil Nadu Government Gazette dated 28.08.1985. The notification as per Section 6 Land Acquisition Act has been published at page 2 of 'Dhina thanthi' in Tamil on 18.09.1985, as well as at page no.23 of 'The Hindu' in English dated 18.09.1985. The substance of the notification has been published in the locality on 18.09.1985 etc., and the award enquiry has been conducted on 25.11.1985 at 03.00 P.M. In the office of Tahsildar (Adi dravidar) Dharmapuri.
8. The Land Acquisition Officer has fixed the compensation in survey no.570/2A at Rs.45,173/- per acre amounting to Rs.37,041.86/- and has awarded a sum of Rs.3,108.50 towards the half value of the well as per estimate prepared by the Junior Engineer (ADW Dharmapuri) thus awarding a sum of Rs.40,150.36/- and also granted further sum of Rs.12,045.11/- being the 30% solatium and thus awarded a total sum of Rs.52,195.50/-. Not satisfied with the compensation fixed by the Land Acquisition Officer the claimant has consented to receive the compensation under protest and requested for enhancement of compensation, which has been referred to as per Section 18 of the Land Acquisition Act by the Land Acquisition Officer to the Tribunal.
9. The Tribunal in its award in LAOP 85/89 dated 23.04.1999 after carefully analysing the oral and documentary evidences adduced on respective sides has enhanced to fix the compensation at Rs.1,50,020/- and has awarded 30% solatium amount of Rs.45,006/- and also granted Rs.3,108.50/- towards half value of well and in all granted and amount of Rs.1,98,134.50/- to the claimant. Moreover, the Tribunal has directed to deduct a sum of Rs.52,195.50/- which has been already received under protest and the balance sum of Rs.1,45,939/- has been ordered to be paid to the legal heirs of the claimant in equal terms and it has also granted an interest for the sum of Rs.1,50,020/- at the rate of 9% for one year from 06.01.1986 being the date of taking possession of the land and also granted subsequent interest at 15% per annum till the date of deposit and the amount has been directed to be paid by the appellant/respondent within 3 months. Also, the Tribunal has ordered to deduct a sum of Rs.7.50/- being the Court process fee from and out of the award amount.
10. The point that arises for consideration in this appeal is whether the award passed by the Tribunal in LAOP No.85/89 is liable to be set aside for the reasons assigned in the memorandum of appeal ?
11. This Court has heard the arguments of the learned Additional Government Pleader (A.S) appearing for the appellant/Land Acquisition Officer and perused the available materials on record.
12. At this juncture, this Court pertinently points out before the Tribunal that a common award has been passed in LAOP No.80/89 to 87/89 on 23.04.1999. Evidence has been recorded in LAOP No.80/89 wherein witnesses CW1 to CW3 have been examined and Exs.C1 to C4 and Exs.R1 to R3 have been marked. On the side of appellant/Land Acquisition Officer no one has been examined as a witness.
Discussions, Contentions and Findings:
13. The learned Additional Government Pleader (A.S) for the appellant/Land Acquisition Officer urges before this Court that the Tribunal has committed an error in increasing the market value of the land exorbitantly from Rs.45,173/- per acre to Rs.6 per sq. ft. in disregard to the procedures prescribed under the Land Acquisition Act and further the Tribunal has not taken note of the fact that the acquired lands are undeveloped ones at the time of publication of
Section 4(1) notification and fixed at Rs.6 per sq. ft. in an arbitrary and excessive fashion and added further, it has placed reliance on Ex.A1 sale deed dated 18.06.1984 which is a small extent of land sold for a fancy price and also the Tribunal instead of deducting 40% to 65% towards development charges has deducted only 50% on a small extent of land and in any event the reasons assigned by the Tribunal for enhancing the compensation are arbitrary, unreasonable, excessive and unsustainable in the eye of law and therefore, prays for allowing the present appeal in the interest of justice.
14. It is the evidence of CW1 (claimant in LAOP 83/89) that his land of 16 cents in Vellagoundampalayam village bearing survey No.570/1A has been acquired for the purpose of Arunthathiars colony in the year 1985 by the appellant. Other claimants lands have been acquired in LAOP No.80/89, 81/89, 82/89, 84/89, 85/89, 86/89, 87/89 and per acre a compensation has been determined at Rs.45,000/- and they have received the compensation amount under protest and in the year 1965 the Dharmapuri District has been separated and in 20 years there has been marked development in the city of Dharmapuri and therefore, they pray for a compensation to be fixed at the rate of Rs.5 lakhs per acre and as per Ex.C1 sale deed dated 18.06.1984 one, Rajan has sold in survey No.542/1A an extent of 2,120 sq. ft. at the rate of Rs.6.13 per sq. ft and he has sold for Rs.13 per sq. ft. and he has sold for Rs.13,000/- and in Ex.C2 sale deed dated 31.10.1983 one, Rangaswami Chettiyar @ Dhanashekaran has sold to one K.Gopal an extent of 1000 sq.ft. in survey no.529 for Rs.9,500/- at the rate of Rs.9.50 per sq.ft. and Ex.C3 is the sale deed dated 06.05.1982 executed by Kullammal and her heirs to and in favour of Ezhilmani an extent of 1,600 sq. ft. in survey No.528 for Rs.2,800/- at the rate of Rs.13 per sq. ft. and the acquired lands are not agricultural lands and they are plots and the acquired lands are now annexed to the Dharmapuri Municipality and from the District Headquarters Hospital at a distance of it for long State Bank and Vijay Vidhyalaya School are situated and further District Headquarters Hospital is a a distance of 45 feet from the acquired land and therefore, they pray for fixing a higher compensation of Rs.5 lakhs in regard to the lands in question.
15. CW.2 Rajan in his evidence has deposed that he has sold an extent of 2000 sq. ft. in survey no.542 of Vellagoundampalayam village at a consideration of Rs.13,000/- on 18.06.1984 between Dakshina and Xerox copy of the sale deed is Ex.C1 and the registration copy of the same has been marked in LAOP No.77/89 and that he has sold the property in Ex.C1 sale deed dated 18.06.1984 for himself and also for and on behalf of his minor sons and this property has been ancestral one, and even though land per square feet has been sold at Rs.10 during the time of land acquisition he has sold the same at a reduced price because of the involvement of minus interest on the property and from the period of acquisition near that area many houses have been built and there have been electricity facility and road facility and after Dharmapuri city has become a District Headquarters the city has developed in the area of acquired land.
16. CW.3 Ezhilmani in his evidence has stated that he has purchaed Ex.C3 property as per sale deed dated 06.05.1982 from Kullammal in survey no.528 measuring an extent of 1600 sq. ft. (house site) at a price of Rs.2,800/- and when he has purchased the Ex.C3 property the acquired lands and the purchase land at that time have remained as house sites, and at the time of his purchase of the property as per Ex.C3 sale deed in that region there have been houses situated in a helter skelter fashion.
17. On the side of the appellant/Land Acquisition Officer no one has been examined as a witness before the Tribunal. However, on the side of the appellant/Land Acquisition Officer Ex.R1 award dated 25.11.1985 passed by the Land Acquisition Officer, Dharmapuri Ex.R2, 3S sales statistics and Ex.R3 Vellagoundampalayam village sketch have been marked.
18. It is to be borne in mind that the crucial date for fixing the market value of the acquired land is date of publication of Section 4(1) Notification. In regard to the valuation of market value the factors like opinion of experts, price paid within reasonable time of purchasing land or land acquired possessing similar advantages and potential value or capitalisation method i.e., whether the land is close to the developed or developing colonies, road etc., will have to be considered for the purpose of valuation. Further, in determining the compensation the value of small plots of lands cannot be applied to the lands covering a very large tract and that large area of land cannot possibly fetch price at the same rate at which small plots are sold.
19. Also rise in prices of lands in near about developing town is almost a continuos and unending phenomenon and Courts while determining market value of acquired lands will have to take judicial notice of the same.
20. The mode of valuation is not governed by any uniform rule and must be left to the discussion of the collector and the Court having regard to the nature of the property. Indeed, a Court of Law cannot loose sight of the fact that so far prices of the land are concerned that there have been an overall upward trend. The continuos rising inflation and rising land value are to be taken note of judicially in the considered opinion of this Court. A land owner is entitled to the best price available as per evidence on record for his acquired land.
21. In the decision Manipur Tea Company Pvt. Ltd. v. Collector of Hailakandi (1997) 1 LACC 365 (S.C) : (1997) 9 SCC 673, the Hon'ble Supreme Court has observed that "the sale statistics relied on by the Land Acquisition Officer are not a proof unless persons connected with sale deeds and document also made part of the record, are examined and therefore, the sales statistics cannot ipso facto form a basis to determine the compensation.
22. A law presumes that an owner makes the best use of his property i.e., in his worldly affairs and in fact he exercises Exacta Diligentia (Vigilance) of a prudent individual of business (Diligens Pater Familias) as per phraseology of the Roman Law. In State of Madras v. Sita Ramammal and another AIR 1972 Madras 170 it is held that "sale deeds bearing the highest value should be preferred to the rest as exemplars unless there are strong circumstances justifying a different course". But at the same time it is to be noted that price cannot be fixed merely by conjunctures as per decision VS. Subramaina Chettiyar v. State of Madras AIR 1953 Madras 943.
23. Be that as it may, certainly there is an element of guess-work inherent in most cases involving the determination of the market value of the acquired land, but this in the very nature of things cannot be helped. Generally speaking, the market value means the price that a willing purchaser would be to a willing seller for the property, having due regard to its existing conditions with all its existing advantages and its beneficial possibilities when laid down in most advantageous fashion excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired. It is a well accepted principle that a tribunal while assessing compensation may take into account not only the present purpose, or the present use, to which the land is applied, but also any other more beneficial purpose to which, in the course of events, it might within a reasonable time be applied, just as an owner might do if he were bargaining with a purchaser in the market but regard can be had to the prevailing conditions and what is likely to arise soon after the relevant date for valuation, though not to what might happen in the distant future.
24. It is true that it cannot be laid down as an absolute rule that the rates determined for the small plots cannot be a foundation for determination of the rate. But, whether there is no other material in appropriate cases and it is open to the tribunal to make comparison of the prices paid for small plots of land, ofcourse necessary deductions will have to be made while fixing the prices in the considered opinion of this Court.
25. The element of speculation can be reduced to a minimum if the following principles of fixation of market value with reference to comparitive sales are made:
(a) when sale is within a reasonable time of the date of notification under section 4(1);
(b) it must be a bona fide transaction;
(c) it should be of the land acquired or of the land adjacent to the land acquired.
(d) it must possess similar advantages and only if these factors are seen, then it can merit a consideration as a comparable case as per decision of Hon'ble Supreme Court Special Land Acquisition Officer v. Adinarayan Setty AIR 1959 SC 429 and as highlighted in the decision of Hon'ble Supreme Court Ravinder Narain v. Union of India (2003) 4 SCC 481.
26. In regard to the deduction to be made in respect of the development charges the same cannot be established by means of any straitjacket formula and it depends upon the facts and each and every case as opined by this Court.
27. As far as the present case is concerned, the witnesses examined on the side of the Respondent/Claimant have clearly spelt out the potential value of the acquired land in issue in clear terms. The acquired land is also said to be situated straight west of the railway station and in the northern direction of the acquired land an Aluminium factory and Pidamaneri village are situated. Also one cannot brush aside an important fact that the Dharmapuri city has developed a lot after its separation in the year 1965. It is the categorical evidence of CW.1 that the acquired lands are fit to be used for construction of houses. In short, the evidence of witnesses CW.1 to CW.3 are unimpeachable ones and they have not been displaced on the side of appellant/Land Acquisition Officer. Significantly, the Section 4(1) Notification in the present case has been issued on 11.02.1985. The Ex.C1 sale deed dated 18.06.1984 shows that in survey no.542/1A out of 6 acres and 20 cents, 2,180 sq. ft. of vacant land with mamool right of pathway etc., has been sold out for Rs.13,000/-. Added further, the land in Ex.C1 sale deed 18.06.1984 is situated near the acquired lands and this it is quite evident that a square feet of land has been sold out at a price of Rs.6/-. Therefore, by placing reliance on Ex.C1 sale deed dated 18.06.1984 in all fairness, equity, good conscience and even as a matter of prudence in respect of the acquired lands the compensation can safely be fixed at Rs.6/- per sq. ft. and resultantly, the compensation determined by the Land Acquisition Officer valuing the land at Rs.45,173/- per acre is incorrect in the considered opinion of this Court. As regards the deduction to be made towards development charges the Land Acquisition Officer in his Ex.R1 award proceedings dated 25.11.1985 at page 4 has excluded 30% of the value for providing rates and common facilities and has fixed the rate per acre of the land at Rs.45,173/- (64,533-19360=45,173/-), and since, the deduction of 30% towards development charges in the present case is a reasonable one the same is not interfered with by this Court. On a conspectus of the entire matter this Court opines that the determination of compensation at the rate of Rs.6/- per sq. ft. and fixing the value of the land per acre at Rs.2,61,360/- and deducting 30% towards development charges as Rs.78,408/- (from and out Rs.2,61,360) are a reasonable and fair one. However, half a value of well fixed at Rs.3,108.50/- as per estimate prepared by the Junior Engineer (ADW Dharmapuri) is not disturbed by this Court. Suffice it, for this Court to point out that looking at from any angle, the award passed in LAOP No.85/89 on the file of the Tribunal viz. Sub Court, Dharmapuri does not require any interference in the hands of this Court since there is no infirmity or illegality in the award passed and consequently the appeal fails.
28. In the result the appeal is dismissed, leaving the parties to bear their own costs. Consequently, the award passed by the Tribunal viz. Sub Court Dharmapuri in LAOP No.85/89 is affirmed by this Court for the reasons assigned in this appeal. C.M.P.No.10382 of 2002 is closed. Having regard to the facts and circumstances of the case the parties are directed to bear their own costs.
08.10.2009 Index : Yes/No Internet : Yes/No prm To The Sub Court, Dharmapuri, M.VENUGOPAL, J. prm PRE DELIVERY JUDGMENT in A.S.No.91 of 2002 CMP No.10382 of 2002 08.10.2009