Very recently, the Supreme Court in Sangunthala Vs. Special Tahsildar (Land Acquisition) and others reported in 2010 (3) SCC 661 considered the scope of Section 23 and after referring to its previous decisions, in paragraphs 24 to 26 and 34 held as follows: .In the light of the above material facts this Court feels that the presence of a number of buildings on the lands acquired and the said lands being occupied by the buildings are to be treated as house sites. The basic purpose that has been traced out in the evidence and as admitted by the RWs is that the lands were acquired for the purpose of putting up residential quarters. As a portion of the land is being considered as house site, the adjoining lands have the potential of being put in better use as house sites in the near future.
Madras High Court
The Special Tahsildar vs Valliammal on 23 July, 2010
Heard the arguments of Mr.V.Ravi, learned Special Government Pleader (AS) and Mr.T.Murugamanickam, learned counsel for respondents. Pleadings set was printed and original records were summons and they were perused.
2.This is an appeal filed by the Special Tahsildar, Adi Dravidar Welfare, Erode aginat the judgment and decree made in LAOP No.5/1994, dated 23.3.2001 on the file of the learned I Additional Subordinate Judge, Erode.
3.The land of the original respondent Viswanatha Gounder to an extent of 3.90 acres in Survey No.490/1A was taken over for the purpose of providing house sites to the member of barber community of Surampatti area. The lands were acquired under the Land Acquisition Act 1/1894. After due procedure, an Award was passed in Award No.2/87. The acquiring authority fixed the compensation at the rate of Rs.3/- per sq.ft. On reference, it was enhanced to Rs.9/- per sq.ft, though claimant sought for compensation at the rate of Rs.20/- per sq.ft. Along with compensation, 30% solatium and interest at the rate of 9% was also directed to be paid. It is against this judgment and decree, the present appeal was filed.
4.The grounds raised by the appellant was that increasing the valuation was exorbitant. The court below ought not to have taken reliance upon documents, i.e.Exs.A.13, A.14 and A15 filed by the claimants. The decision of the court below was contrary to the guidelines prescribed by the Supreme Court in Union of India and others Vs. Sunil Chandra Saha and another reported in 1995 (5) SCC 311 and Hookiyar Singh and others Vs. Special Land Acquisition Officer, Moradabad and another reported in 1996 (3) SCC 766. It was also claimed that deduction of 40% for development charges was not correct and it should be 60%. The documents relied on by the claimant were the lands which are having smaller extent and it is not comparable.
5.Before the court below, on the side of the claimants, 16 documents were filed and they were marked as Exs.A.1 to A.16. Four witnesses were examined as C.W.1 to C.W.4. While the fifth respondent was examined as C.W.1, there were other three witnesses. On the side of the appellant, five documents were filed and they were marked as Exs.B.1 to B.5 and two witnesses were examined. The trial court held that the place where the land is situated belonged to Kasipalayam Panchayat and it comes under Erode District, which was bifurcated from Coimbatore in the year 1979. It included in the Erode Corporation and it became urbanite. The lands were plotted out and layout was made for building. The land is situated in the most important area and it was just adjacent to the District Collectorate. The potential value of the land will be very high. The present land is situated adjacent to various built-up houses. Even witnesses for the appellant had agreed that all the important urban area are within 1 Km. radius. From the documents produced in Exs.A.13, 14 and 15, it is found that the value of the land was Rs.5/- to Rs.17/- per sq.ft. It was also spoken to by C.Ws.2 to 4. In fact the value of the land was much more than what was shown in the sale deeds. Subsequently after formation of new District, the land cost had come up. The exemplar in Exs.A.13 to 15 are more reliable. The evidence placed by the appellant cannot be worth consideration. It also distinguished the judgment relied on by the appellant. After arriving at a conclusion that the value may be to an extent of Rs.15/- per sq.ft., the Reference Court reduced 40% for development charges and fixed the rate at Rs.9/- per sq.ft.
6.The learned Special Government Pleader (AS) contended that valuation was on the high side and the exemplars found in Exs.A.13 to 15 are not reliable. Further, the court below should have fixed more amount as development charges and fixing of 40% is also not correct.
7.The Supreme Court in its decision in Painder Singh and others Vs. Union of India and others reported in (1995) 5 SCC 310, has held that it is for the claimant to prove the prevailing market value by placing reliance upon documents covered by sale transactions bearing similar or same potentialities or advantageous features.
8.In Hookiyar Singh's case (cited supra), the supreme Court held that the Reference court cannot take into account the future potentiality. Section 24 clause fifthly prohibits taking into consideration future use to which the land will be put when acquired. The court must not indulge in feats of imagination but sit in the armchair of a prudent purchaser in open market and to put a question to itself whether as a prudent purchaser it would offer the same price in the open market as is to be determined?
9.The Supreme Court in Kanta Devi v. State of Haryana reported in (2008) 15 SCC 201 held that deduction of development charge of 1/3rd of market value will be a normal rate. Therefore, deduction of 40% was more than what is required.
10.In Rishi Pal Singh v. Meerut Development Authority reported in (2006) 3 SCC 205, the Supreme Court held that even if there are vast tract of land are acquired, even exemplar of small plots can be considered for determining the market value and if such exemplar of small plots are considered, then adequate discount can also be given. The following passage found in paragraph 5 may be usefully extracted herebelow: "5. On merits the learned counsel submits with reference to the impugned judgment of the High Court that only two reasons have been given by the High Court for setting aside the order of the Reference Court and remanding the case back to it. First reason is that exemplars relied upon by the Reference Court are of small plots of land whereas the acquisition is of a large tract of land i.e. about 180 acres. The second reason given in the impugned judgment for remand is that exemplars filed by the acquiring authority i.e. the appellants (sic respondent) before us, were not considered by the Reference Court. The learned counsel for the appellants has taken us through the judgment of the Reference Court to show that both the reasons given by the High Court in its impugned order are factually incorrect. With respect to the first reason, that is, exemplars of small plots have been taken into consideration by the Reference Court, in the first instance our attention was invited to some judgments of this Court to urge that there is no absolute bar to exemplars of small plots being considered provided adequate discount is given in this behalf. Thus there is no bar in law to exemplars of small plots being considered. In an appropriate case, specially when other relevant or material evidence is not available, such exemplars can be considered after making adequate discount. This is a case in which appropriate exemplars are not available. The Reference Court has made adequate discount for taking the exemplars of small plots into consideration. It appears that the attention of the High Court was not drawn to this part of the judgment of the Reference Court which has resulted in the High Court completely overlooking the relevant discussion in the judgment of the Reference Court."
11.Very recently, the Supreme Court in Sangunthala Vs. Special Tahsildar (Land Acquisition) and others reported in 2010 (3) SCC 661 considered the scope of Section 23 and after referring to its previous decisions, in paragraphs 24 to 26 and 34 held as follows: "24.In the light of the above material facts this Court feels that the presence of a number of buildings on the lands acquired and the said lands being occupied by the buildings are to be treated as house sites. The basic purpose that has been traced out in the evidence and as admitted by the RWs is that the lands were acquired for the purpose of putting up residential quarters. As a portion of the land is being considered as house site, the adjoining lands have the potential of being put in better use as house sites in the near future.
25.The other important factor is the proximity of the plots to two residential colonites i.e. Anna Nagar and Gandhi Nagar. As it has come on record that Anna Nagar Colony has about 50-60 houses and Gandhi Nagar Colony has about 150 houses, as such it is reasonable and proper to conclude that the present lands under dispute were near the residential colonites.
26.It should also be taken into consideration that the disputed lands were situated near the factory premises and further were adjoining the main road which connects Tanmag Road. As such the aforesaid lands are potential house sites. .....
34.In view of the admitted case that the lands acquired were potential house sites we do not agree with the views taken by the High Court while calculating the compensation. R-13 and R-15 are the two sale deeds containing particulars of the sale transactions held three years prior to the Section 4(1) notification. The Reference Court after close perusal of the aforesaid documents held that the same disclose that out of more than 100 sales, a number of sales in respect of the lands were sold as house sites in Thathaiyangarpatti Village and the adjacent survey numbers in Thekkampatty Village were also sold as house sites."
12.Again, the Supreme Court in Land Acquisition Officer v. Karigowda reported in (2010) 5 SCC 708 in paragraph 91 held as follows:
"91. It is a settled rudiment of law that the court, in given facts and circumstances of the case and keeping in mind the potentiality and utility of the land acquired, can award higher compensation to ensure that injustice is not done to the claimants and they are not deprived of their property without grant of fair compensation. Reference, in this regard, can be made to the judgment of this Court in Land Acquisition Officer v. Kamadana Ramakrishna Rao20. Whileadopting the average sale method as the formula for awarding compensation to the claimants, we are also of the considered view that in the peculiar facts and circumstances of the case and the fact that the land is being compulsorily acquired, the claimants should be awarded a higher compensation. The compensation at the rate of Rs.2,30,000 per acre for the wetland and at the rate of Rs.1,53,400 per acre for the dry land would be just and fair compensation and would do complete justice between the parties. This element of increase had not been added by the SLAO which ought to have been done."
13.If these yardsticks are applied, there is no difficulty in upholding the judgment and decree passed by the Reference Court. Hence, the Appeal suit will stand dismissed. However, the parties are allowed to bear their costs. vvk
To
I Additional Subordinate Judge,
Erode
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