Aggrieved by the enhancement of the compensation amount from Rs.1,050/- to Rs.2,500/- per Cent, by the learned First Appellate Judge, the Special Tahsildar (ADW) / Land Acquisition Officer, Thakkalay, Padmanabhapuram and the District Revenue Officer, Kanniyakumari District, Nagercoil, are before this Court.
2. A notification, under
Section 4(1) of the Land Acquisition Act, was published in the Government Gazette, on 25.10.1997, for the acquisition of lands, comprised in Survey No.493/7 of Kothanalloor Village, Kalkulam Taluk, measuring an extent of 4.74 Acres, belonging to one Sethumadhavan Thambi, for the purpose of allotting housing plots to Adi Dravidars, who do not have any housing plots.
3. The Land Acquisition Officer / Special Tahsildar determined the compensation at Rs.1,050/- per Cent.
4. Dissatisfied with the compensation amount determined by the Land Acquisition Officer, the claimants, who are the legal representatives of the deceased Sethumathavan Thambi preferred appeal in L.A.A.No.2 of 1999, before the learned Sub Judge, Padmanabhapuram.
5. In the enquiry before the First Appellate Court, on the side of the appellants P.Ws.1 and 2 were examined and Exs.A1 and A2 were marked and on the defendants side, D.W.1 was examined and Exs.B1 and B2 were marked.
6. Hearing both sides and appreciating the evidence on record the learned First Appellate Judge came to the conclusion that what was fixed by the Land Acquisition Officer is not a just and fair compensation and therefore, revised the compensation at the rate of Rs.2,500/- per Cent.
7. Aggrieved, the Department has directed the present second appeal.
8. At the time of admission, the following substantial questions of law were framed for consideration:
(i) Whether the lower appellate Court is correct in allowing the respondent to let in oral evidences and also marking document in the appellate Court especially when Section 9 of the Act does not contemplate taking any evidence and also when the application of the provisions of C.P.C., are explicitly barred?
(ii) Whether the lower appellate Court was not right in deducting the 1/3rd amount of the market value towards development charges as held by the Apex Court reported in AIR 1990 SC 1028? And
(iii) Whether the lower appellate Court was right in enhancing the compensation on the basis of Ex.A1, which relates to a smaller extent of 5 + cents described as plot without assigning any reasons?
9. The admitted factual matrix of the case are as follows: One Sethumathavan Thambi is the owner of the land comprised in R.S.No.493/7, measuring an extent of 4.74 Acres of Garden land situated at Kodhanallur Village. As the Government has taken steps to acquire the said land to provide house sites to Adi Dravida people, he filed a writ petition in W.P.No.12262 of 1987, before this Court for setting aside the land acquisition proceedings. However, the same was dismissed on 28.02.1997. Thereafter, the said land has been acquired by the Government. After the death of the said Sethumathavan Thambi, the respondents herein, who are his legal representatives, are entitled to equal share in the compensation.
10. The Government of Tamil Nadu had issued 4(1) Notification on 25.10.1997 and thereafter, after holding enquiry as required under the Land Acquisition Act, passed an Award, dated 21.02.1998. The Land Acquisition Officer had taken into consideration of 112 sale documents that were effected in respect of sale of lands within the four furlong radius from the acquired land and reliance was placed upon 82nd document, namely, Sale Deed, dated 13.08.1997, registered as document No.1747, on the file of the Sub-Registrar, Thackalay and accordingly, fixed the value of the land at Rs.1,050/- per Cent.
11. Aggrieved against the fixation of compensation at a very low price, the respondents, who are the legal representatives of the deceased Sethumathavan Thambi, preferred an appeal for enhancement of compensation before the Sub Court, Padmanabhapuram, designated for the land acquisition cases on the ground that the acquired land is situated on the other side of Thackalay- Kulasekaram Road and already the area has been developed into house sites and Busstand, Shops, Temple and School are situated nearby and the prevailing market value is very high and referred to a Sale Deed effected in the recent past in respect of the land lies very close proximity to the land in question.
12. Before the Sub Court, the wife of Sethumathavan Thambi was examined as P.W.1 and on behalf of the land owners, Exs.A1 and A2, Sale Deeds dated 04.08.1997 and 04.03.1997 have been marked. The purchaser under Ex.A1 Sale Deed, namely, Neelakanda Pillai was examined as P.W.2. On behalf of the Department, the Special Tahsildar and Land Acquisition Officer was examined as D.W.1 and he has marked xerox copy of the Sale Deed, dated 03.08.1997 as Ex.B1.
13. After going into the rival contentions, the learned Sub Judge has come to the conclusion that the land covered under the specimen Sale Deed Ex.B1 is situated far away from the land acquired and it is a rocky area, while the land covered under Ex.A1 is situated in Survey No.492, which is more closure and very adjacent to the subject land in Survey No.493/7. Further, the date of sale under Ex.A1 is also 04.08.1997, which is close proximity to the date of 4(1) notification and accordingly, the Sub Judge has arrived at Rs.2,500/- per Cent and enhanced the compensation. Aggrieved against the enhancement of compensation, the Department has preferred this appeal stating that Exs.A1 and A2 are not relevant documents and the land covered under Exs.A1 and A2 cannot be taken as data land and there is no legal basis to arrive at the compensation of Rs.2,500/- per Cent.
14. As stated supra, the second appeal has been admitted on the above said three substantial questions of law.
15. The learned Additional Government Pleader appearing for the appellants has drawn the attention of this Court to the third substantial question of law that whether the learned Special Sub Judge was right in enhancing the compensation based upon Ex.A1, since it is relating to a smaller extent of 5 + Cents and therefore, it has to be eschewed from consideration.
16. On perusal of Ex.A1, this Court is unable to affix the approval of the view expressed by the learned Additional Government Pleader for more than one reason. Though the lands covered under Exs.A1 and A2 are to an extent of 7 + Cents and 5 + Cents respectively, that cannot be a sole criteria for eschewing those documents from consideration. It is a settled proposition of law that comparative sales statistics have to be collected by the Department and based upon the same, compensation has to be fixed for the land acquired.
17. In the instant case, as stated supra, the Government has collected 112 sales statistics and relied upon 82nd document and arrived at the compensation at Rs.1,050/- per Cent and that was enhanced by the learned Special Judge under the impugned Judgment. The specimen Sale Deed relating to the land in question can be relied upon and looked into subject to the criteria that (i) nature and use of the land, (ii) proximity between the data land and land acquired and (iii) other attending circumstances that whether the neighbouring lands are developed, under developed or vacant land. Keeping the above principles in mind, let us consider the facts on record.
18. It is seen from the records that the land measuring 4.74 Acres was acquired in Survey No.493/7 and Exs.A1 and A2 marked before the Trial Court are relating to Survey No.492 and as per Ex.B1, the data land under Exs.A1 and A2 lies close proximity to the present land in dispute in Survey No.493/7. Therefore, this Court finds that there is no error in relying upon Exs.A1 and A2. Merely because the extent of lands conveyed under Exs.A1 and A2 are only 7 , Cents and 5 + Cents respectively, that cannot be a sole criteria for rejecting the above said documents, since they are not only adjoining to the subject matter of land and also from the evidence of P.W.2, the sale is found to be bona fide and true. Further, the land under Ex.B1 is far away from the acquired land in question. Exs.A1 and A2 have been marked through the purchaser, namely, P.W.2 and hence, this Court finds no infirmity in Judgment and Decree of the Special Sub Court and accordingly, the substantial question of law No.3 is negatived and held against the appellant / Department and the Trial Court is quite right in relying upon Exs.A1 and A2.
19. The Trial Court, after considering the evidence of P.Ws.1 and 2 and D.W.1 and also relying upon Ex.B1, has come to the conclusion that adjacent to the land in question, school and main road are situated very nearby and it is very closure to Thackalay-Kulasekaram Main Road and as per the written statement of D.W.1, busstand, temple and school are situated within + furlong distance from the acquired land, and the above mentioned particulars clearly establish that the land acquired is a developed area and it will fetch more amount and the said conclusion is supported by oral and documentary evidence and hence, the same cannot be interfered with in the second appeal and hence, the substantial question of law No.2 does not arise for consideration in view of the factual findings given by the Special Sub Court, which is based upon the independent evidence of P.W.2 and D.W.1 Departmental witness and Ex.B1.
20. After going into the records, this Court finds that the substantial question of law No.1 does not arise for consideration, since the learned Sub Judge in order to arrive at the fair and reasonable amount of compensation, has recorded the statement of witness, namely, D.W.1 and marked Ex.B1 certified copy of the Sale Deed and hence, the substantial question of law No.1 is also negatived against the appellant.
21. After going through Exs.A1 and A2 Sale Deeds relating to the data land in Survey No.492, which is situated in a close proximity to the land acquired in Survey No.493/7, the First Appellate Court has granted a minimum compensation of Rs.2,500/- per Cent and it is just and reasonable and the same does not warrant any interference of this Court, since it is neither be termed as arbitrary nor exorbitant. Accordingly, the amount of compensation fixed by the First Appellate Court is just and fair and 15% solatium and 6% interest are in terms of the provisions of law and there is no merit in the second appeal and hence, it is devoid of merits and it is liable to be dismissed.
22. Pending appeal, part payment of compensation along with interest has been deposited by the appellants on 03.06.2008. The claimants have sofar withdrawn a portion of the deposited amount with interest and the balance amount is now lying to the credit of this case in the Civil Court. The appellants are directed to deposit the balance compensation amount along with interest, if any, within a period of twelve weeks from the date of receipt of a copy of this order. M.P.(MD) No.1 of 2009 has been filed by the claimants to withdraw the remaining deposited amount. In view of the findings of the second appeal, M.P.(MD) No.1 of 2009 is allowed and the claimants are permitted to withdraw the balance amount now lying in the credit of this case before the Civil Court.
23. In the result, the second appeal is dismissed and the Judgment and Decree, dated 01.10.2001, made in L.A.A.No.2 of 1999, by the learned Sub Judge, Padmanabhapuram, modifying the Award, dated 21.02.1998, made in Award No.7/97-98, by the Special Tahsidar (ADW), Padmanabhapuram, are confirmed. No costs.
To:
The Sub Judge, Padmanabhapuram..