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2003 DIGILAW 931 (MAD)

M. v. Sadagopal Naicker and others VS Revenue Divisional Officer, Dharapuram

2003-06-27

A.S.VENKATACHALA MOORTHY, R.BANUMATHI

body2003
A.S.Venkatachalamoorthy, J.: The above appeals can be disposed of by a common judgment since the same have been preferred only against the judgment in L.A.O.P. No.13 of 1991 on the file of the Subordinate Court, Dharapuram. 2. The State of Tamil Nadu, represented by the Revenue Divisional Officer, Dharapuram, acquired lands in Chitharavuthanpalayam village, situated within Dharapuram Municipal Limits, for the purpose of formation of Dharapuram bypass road. Notification under Sec.4(1) of the Land Acquisition Act was issued on 30.11.1982. In fact, possession was taken much earlier that was on 16.2.1981. Not being satisfied with the fixation of market value of the lands by the Land Acquisition Officer, the land owners/claimants sought for reference under Sec.18 of the Land Acquisition Act. The reference was taken on file by the learned Subordinate Judge, Dharapuram, and numbered as L.A.O.P. No.13 of 1991. Though the land owners claimed market value at the rate of Rs.10,000 per cent in respect of the acquired lands, the learned Subordinate Judge fixed the market value only at Rs.2,750 per cent. 3. Appeal Suit No.1345 of 1995 has been filed by claimants 1 to 3, who are the owners of an extent of 1.63 acres and 1.48 acres in S. Nos.371/2 and 384/2 respectively. A.S. No.411/96 has been filed by claimants 39 to 48, who are the land owners of an extent of 1.70 acres comprised in S.Nos.171/2, 173/2 and 169/1. A.S. No.401 of 2003 has been filed by the claimants 23 to 36, 38 and 49, who are the land owners of an extent of 2.48 acres comprised in S. Nos.372/3B, 373/2B, 373/36/B2, B3 and G1-A. Appeal Suit No.73 of 1997 has been filed by the State, questioning the correctness of fixation of market value by the Reference Court at Rs.2,750 per cent. 4. Before this Court, the land owners would claim compensation at Rs.7,000 per cent as the market value of the land. 5. Learned counsel appearing for the land owners/appellants mainly contended that the land adjacent to the acquired lands viz., an extent of 5.44 acres comprised in S. No.372/2, was acquired by the State for the formation of an housing colony and in that case Sec.4(1) Notification was issued three months prior to the one now in question and with reference to that, the Reference Court, by Judgment in L.A.O.P. No.17 of 1986 dated 30.4.1987, fixed the market value at Rs.4,000 per cent. According to the learned counsel, as against the said order, the Government had not preferred any appeal and that being so, there can be no justification whatsoever for the reference Court to fix the market value at Rs.2,750 per cent. It is also contended that the sale transactions in respect of similar and similarly situated lands prior to Sec.4(1) Notification, such as Exs.C-7, C-8 and C-20, fetched a sum of Rs.5,000 and above per cent and that even if a deduction of 20% is made, the market value would come to Rs.4,000. Much reliance is placed on Ex.C-8 sale transaction, wherein a sum of Rs.5,490 was paid by way of sale price per cent in respect of a land measuring 3200 sq.ft. comprised in S.No.75. 6. Learned Additional Advocate General appearing for the State contended that in L.A.O.P. No.17 of 1986, the learned Subordinate Judge has committed an error in proceeding on the basis that towards largeness of the area and developmental charges, it would be sufficient that a deduction of 20% is made from the sale consideration in respect of the lands similar and similarly situated. According to the learned Additional Advocate General, the Court should have made a deduction of at least 60% and fixed the market value at Rs.2,000. It is also submitted that simply because no appeal was filed as against the judgment in L.A.O.P. No.17 of 1986, which was delivered in the year 1987, questioning the correctness of the same, it would not prevent the State from agitating in this Appeal particularly when the judgment in this L.A.O.P. was delivered only in the year 1995. Certainly, it would be open to the State to question the correctness of the same in the light of the various rulings of the Supreme Court. Learned Additional Advocate General would further submit that only after the Sec.4(1) Notification, the value of the acquired lands went up because of the subsequent location of the bus-stand, school and private hospital. 7. As regards L.A.O.P. No.17 of 1986 (i.e., earlier acquisition for locating housing colony), the State of Tamil Nadu issued the Notification under Sec.4(1) of the Land Acquisition Act on 25.08.1982 and acquired an extent of 5.44 acres comprised in S.No.372/2 in Chitharavuthanpalayam village. In that case, totally there were 15 claimants. The Reference Court fixed the market value at Rs.4,000 per cent. In that case, totally there were 15 claimants. The Reference Court fixed the market value at Rs.4,000 per cent. The Court proceeded on the basis that small extent of lands were sold prior to Sec.4(1) Notification at the rate of Rs.5,000 per cent and after giving a deduction of 20%, which would represent the space to be allotted for formation of road and for other expenses, fixed the market value at Rs.4,000 per cent. 8. As far as the present appeals of the land owners are concerned, the extent involved is, (a) 3.11 acres comprised in S.Nos.371/2 and 384/2 owned by 3 land owners; (b) 1.70 acres comprised in S.Nos.169/1, 171/2 and 173/2, owned by 10 persons; and (3) 2.48 acres comprised in S.Nos.372/3B and 4 other survey numbers, owned by 16 persons. There is no dispute that Sec.4(1) Notification with reference to the acquisition in question was three months subsequent to the 4(1) Notification with reference to L.A.O.P. No.17 of 1986. 9. We perused the plan Ex.B-3 in A.S. No.1345 of 1995 and we find that the Survey Numbers, which are the subject matter of the above appeals, are adjacent to S.No.372/2, which is the subject matter of L.A.O.P. No.17 of 1986. It is not the case of the State that these Survey Numbers are in any way inferior than the one viz., in S.No.372/2. It may be straight away stated at this juncture that it is not the claim of the State that similar and similarly situated lands, but of a small area like 3000 sq. ft. or so, fetched less than Rs.5,000 per cent. The only submission with reference to Ex.C-1 is that the Reference Court, in L.A.O.P. No.17 of 1986, has erred in deducting only 20% out of Rs.5,000. 10. Time and again, the Supreme Court of India has pointed out that what is the deduction to be made for largeness of the area and developmental charges, depends upon each case. (Refer:K.Vasundra Devi v. Revenue Divisional Officer (L,A.O.), (1995)5 S.C.C. 426 ). There are cases, where the Supreme Court has upheld the deduction of 20% as correct. (Refer:Special Land Acquisition Officer, BYDA, Bangalkot v. Mohd. Hanif Sahib, A.I.R. 2002 S.C. 1558). So also there are cases, where the Supreme Court has upheld the deduction of 60% by the High Court as reasonable. There are cases, where the Supreme Court has upheld the deduction of 20% as correct. (Refer:Special Land Acquisition Officer, BYDA, Bangalkot v. Mohd. Hanif Sahib, A.I.R. 2002 S.C. 1558). So also there are cases, where the Supreme Court has upheld the deduction of 60% by the High Court as reasonable. What we are endeavouring to focus is that, what is the deduction to made depends upon each case. 11. Now, the question is whether in fact the lands acquired can be considered as larger in extent. At the risk of repetition, we would like to point out that, in A.S. No.1345 of 1995, there are three land owners, owning about 3 acres, that is to say, one acre each. in A.S. No.411 of 1996, there are 10 land owners, owning totally 1.70 acres i.e., 17 cents each. in A.S. No.401 of 2003, there are 16 land owners, owning 2.48 acres, that is to say, 15 cents each. In the decision reported in Thakarsibhai Devjibhai v. Executive Engineer, (2001)9 S.C.C. 584 , the Supreme Court of India has ruled that while taking into consideration the area acquired for the purpose of fixation of market value, the lands of the persons cannot be clubbed together and that being so, it can be only taken that what was acquired by the State is only a small bit of land from each of the land owners except with reference to A.S. No.1345 of 1995, where the extent acquired is one acre from each of the land owners and even that cannot be said to be a large area. In these circumstances, it cannot be said that a deduction of only 20% by the reference Court in L.A.O.P. No.17 of 1986 was very much on the lower side and the same cannot be adopted. 12. We have yet another reason to point out. When the State failed to file an appeal against the Judgment in L.A.O.P. No.17 of 1986, it has to be taken that the State had no grievance in the Court fixing the market value of the land at Rs.4,000 per cent. As already pointed out, Sec.4(1) Notification in this case was in fact three months subsequent to the 4(1) Notification in the other L.A.O.P. viz., L.A.O.P. No.17 of 1986. As already pointed out, Sec.4(1) Notification in this case was in fact three months subsequent to the 4(1) Notification in the other L.A.O.P. viz., L.A.O.P. No.17 of 1986. In the Memorandum of grounds of appeal, nothing is mentioned as to why the State did not file an appeal against L.A.O.P. No.17 of 1986. It is not as if, after the judgment in L.A.O.P. No.17 of 1986 that was on 30.04.l987, there has been a change in the legal position by virtue of any amendment of the Act or by pronouncement of judgments of the Supreme Court. That being so, if the State now agitates that with reference to this case, the deduction must be more, then, it is nothing but the State applying different standards to the persons similarly placed. Certainly, the State cannot be permitted to do so. 13. The learned Additional Advocate General put forward a submission that this Court may not proceed on the basis that the lands acquired are only smaller in extent since it is unlikely that 10 land owners and 16 land owners respectively in A.S. Nos.411 of 1986 and 401 of 2003 would come to an understanding to plot out the land. We are not prepared to accept this submission. So long as it is possible that the land owners can come to an understanding, this Court has to proceed only on that basis in respect of that issue. 14. Learned counsel appearing for the land owners contended that the market value of the land has to be fixed at Rs.7,000 per cent. We do not see any merit in this contention. Ex.C-7 is the document most favourable to the land owners, which is dated 21.11.1981. In the said transaction, an extent of 7 cents comprised in S. No.371/2 was sold at the rate of Rs.5,100 per cent. When compared to that, here, the area acquired is more and certainly certain space has to be earmarked for the formation of road etc. and fixation of Rs.4,000 per cent as market value cannot be said to be on the lower side. 15. In the result, we hold that the market value with reference to the acquired land is Rs.4,000 per cent. The land owners shall be entitled for solatium at 30%. Interest is payable on solatium as well. and fixation of Rs.4,000 per cent as market value cannot be said to be on the lower side. 15. In the result, we hold that the market value with reference to the acquired land is Rs.4,000 per cent. The land owners shall be entitled for solatium at 30%. Interest is payable on solatium as well. As already mentioned, the land owners parted with possession on 16.2.1981 and the Notification under Sec.4(1) came to be passed on 30.11.1982. In view of the rulings of the Supreme Court reported in, (i) Special Tahsildar (LA) P.W.D. Schemes v. M.A.Jabbar, (1995)2 S.C.C. 142 ; (ii) Union of India v. Budh Singh, (1995)6 S.C.C. 233 ; (iii) Siddappa Vasappa Kuri v. Special Land Acquisition Officer, (2002)1 S.C.C. 142 for the purpose of calculating the compensation payable under Sec.23(1-A), only 30.11.1982 shall be taken (as starting point) and not 16.2.1981 when possession was taken. For the period between 16.2.1981 and 29.11.1982 the land owners have to approach the Government seeking compensation. Once they approach the government, the latter shall consider the same sympathetically and pass orders. 16. All the appeals viz., A.S. Nos.1345 of 1995, 411 of 1996, 401 of 2003 and 73 of 1997 are allowed to the extent indicated above.