SAGUNTHALA(DEAD) THR. LRS. Vs SPECIAL TAHSILDAR (L.A.) .
Case number: C.A. No.-006240-006243 / 2001
Diary number: 7454 / 2001
Advocates: M. A. CHINNASAMY Vs
S. THANANJAYAN
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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 6240-6243 OF 2001
Sagunthala (Dead) through Lrs. ..Appellant(s)
Versus
Special Tehsildar (L.A.) & Ors. ..Respondent(s)
WITH Civil Appeal Nos. 6244-6248 of 2001 and
Civil Appeal No. 495-504 of 2002
J U D G M E N T
GANGULY, J.
1.These appeals have been filed challenging the
judgment and order dated 23.1.01 of Madras High
Court.
2.Facts relevant to the present dispute are that
an extent of 196 acres of lands were acquired
1
for the purpose of expansion of Tamil Nadu
Magnesite Limited, a State owned company.
Various notifications under Section 4 (1) of
the Land Acquisition Act, 1894 (hereinafter
referred to as “the Act”) were issued in the
month of February, March and May 1984.
3.In connection with giving compensation for that
acquisition, the Land Acquisition Officer had
fixed the market value at the rate of
Rs.18,000/- per acre for irrigated dry land and
Rs.15,000/- per acre for unirrigated dry land
in Award Nos. 1 to 9 and 11 of 1986.
4.As the claimants felt aggrieved by and
dissatisfied with the awards, they asked for
reference under Section 18 of the Act. The
Reference Court, i.e. the Court of Subordinate
Judge Salem, after considering the documentary
and oral evidence, treated the lands as
potential house sites and fixed the market
value at Rs.1,75,000/- per acre.
2
5.The case as put forward by the claimants before
the Reference Court and this Court was that the
compensation was not fixed by the Collector on
a proper basis and the acquired land is
potential house site and the valuation ought to
have been done on that basis. It was also their
submission that relevant sale deeds were
ignored while fixing up the value and the data
sale deed selected by the Officer was
absolutely unreliable. It was urged that in
several cases, the Officer did not award
compensation for well, cement channel and for
the super structures and trees. While in some
of the cases the Land Acquisition Officer had
not awarded interest for the lands which are
taken possession in advance from the land
owners. Neither was the compensation paid for
the change of residence and place of avocation.
6.Per contra, the respondents urged that the Land
Acquisition Officer had fixed the value after
verifying the records of nearby land owners on
such transactions and after verifying all the
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aspects. It was further submitted that the
value fixed by the Land Acquisition Officer is
correct and the value claimed by the claimants
is very high and there was no objection by the
owners for those lands at the time of
acquisition. So there is no necessity for
enhancement of compensation. It was urged that
the documents relied upon by the claimants are
in no way relevant for fixing the higher
values.
7.The Reference Court taking into account the
admission of R.W. 2 that there are number of
buildings on the land acquired and the plots of
land which are occupied by the building are to
be treated as house sites, held that the
classification of lands into irrigated and
unirrigated lands made by the Land Acquisition
Officer was unreasonable and erroneous. The
Reference Court held that the Officer should
have taken into consideration the proximity of
lands acquired to the other residential
4
colonies, the factories and that the lands
itself was used as housing plots.
8.The Reference Court fixed Rs. 1,75,000/- per
acre as the amount taking note of the fact that
although the lands acquired are situated in
different survey numbers but they are adjacent
to each other and are acquired as one block for
the same purpose.
9.The High Court vide its judgment dated
23.01.2001 passed in Appeal Suit Nos. 134 to
143 of 1997 and C.M.P No. 16081 of 2000 in
Cross Objection Sr. No. 14276 of 1997 while
setting aside the order of Reference Court took
into consideration the fact that plots of lands
acquired were agricultural lands initially and
continued to be so till they were acquired. The
High Court relied on the fact that the
claimants in their representation before the
Land Acquisition Officer have claimed different
amounts and majority of them claimed
compensation only at the rate of Rs. One Lakh
per acre. The High Court held that the 5
Reference Court had given no reason at all for
awarding compensation higher than what had been
claimed. The High Court after taking into note
the existence of 2 housing colonies held that
it could not be concluded that the vast extent
of land acquired in the case would also become
a housing colony on its own and was of the view
that there was no sufficient material to
establish that the lands in dispute could be
converted into a housing site in near future.
10.It was held that lands in question were
valuable agricultural lands where horticulture
and other crops were raised and they were
garden lands, sufficiently irrigated. The
market value was fixed at Rs.75,000/- per acre
uniformly for all the lands involved in the
above acquisition. The award of interest on
solatium and on additional grounds was held to
be contrary to the principles laid down by the
Apex Court.
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11.The claimant(s)/appellant(s) being aggrieved
by the aforesaid order of the High Court
approached this Court.
12.The main bone of contention on behalf of the
appellant is regarding the classification of
lands and their value fixed by the High Court.
It was argued before this Court that the
acquired lands are potential house sites and
that the High Court was not justified in
ignoring the documentary evidence in that
regard.
13. This Court finds that the Reference Court was
right in holding that while determining the
value of the property acquired one has to see
whether the land has got the building
potentiality to be used for the building
purposes in the immediate or in near future. In
P. Ram Reddy and others v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and others (1995) 2 SCC 305, this Court held that:
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“Market value of land acquired under the LA Act is the main component of the amount of compensation awardable for such land under Section 23(1) of the LA Act. The market value of such land must relate to the last of the dates of publication of notification or giving of public notice of substance of such notification according to Section 4(1) of the LA Act.”
This Court went on to further hold that:-
“Such market value of the acquired land cannot only be its value with reference to the actual use to which it was put on the relevant date envisaged under Section 4(1) of the LA Act, but ought to be its value with reference to the better use to which it is reasonably capable of being put in the immediate or near future. Possibility of the acquired land put to certain use on the date envisaged under Section 4(1) of the LA Act, of becoming available for better use in the immediate or near future, is regarded as its potentiality. It is for this reason that the market value of the acquired land when has to be determined with reference to the date envisaged under Section 4(1) of the LA Act, the same has to be done not merely with reference to the use to which it was put on such date, but also on the possibility of it becoming available in the immediate or near future for better use, i.e., on its potentiality……”
(See para 8)
14.The High Court, however, has taken note of the
deposition of C.W. 1 who has admitted that
excepting the plots of land under acquisition,
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all other lands are agriculture lands. The
aforesaid witness also admitted that his land
under acquisition was agriculture land at the
time of notification. C.W.6 has also admitted
that initially all the acquired lands were
agriculture lands. But High Court ignored other
materials on record and fell into an error in
concluding that the acquired lands were
agriculture lands and erroneously reversed the
conclusions arrived by the Reference Court.
15. The High Court relied on the case of Land Acquisition Officer, ELURU and others v. Jasti Rohini (Smt.) and another [(1995) 1 SCC 717], The Collector, Raigarh v. Dr. Harisingh Thakur and another [AIR 1979 SC 472] and Raghubans Narain Singh v. The Uttar Pradesh Government, through Collector of Bijnor, [AIR 1967 SC 465], wherein this court has held that the market
value, on the basis of which compensation is
payable under Section 23 of the Act, means the
price that a willing purchaser would pay to a
willing seller for a property having due regard 9
to its existing condition with all its existing
advantages and its potential possibilities when
laid out in its most advantageous manner,
excluding any advantages due to the carrying
out of the scheme for which the property is
compulsorily acquired.
16.We, however, feel that the view taken by the
learned High Court is not tenable. In our view
the learned Reference Court has rightly
appreciated the evidence in this regard. While
examining the evidence of C.W. Nos. 1, 2, 4, 6,
8 to 14, 17 to 19 and 21 it concluded that they
have categorically stated that the lands were
near the residential housing colonies and
abutting the Itteri road which connects the
Tanmag road and are situated abutting the road
from Thekkampatti village. According to C.W 4
and 6 Gandhi Nagar Colony is at a distance of
100 feet.
17.It will be worthwhile to refer to Section 23
of the Act. Section 23 reads as under: 10
“23. Matters to be considered on determining compensation:- (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration- First, the market- value of the land at the date of the publication of the [notification under section 4, sub- section (1)]; Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops trees which may be on the land at the time of the Collector’s taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of serving such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector' s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change, and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector’s taking possession of the land. 1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the
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publication of the notification under section 4, sub- section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation: - In computing the period referred to in this sub- section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.] (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of [thirty per centum] on such market value, in consideration of the compulsory nature of the acquisition.”
18. This Court in the case of State of Orissa v. Brij Lal Misra and others, [(1995) 5 SCC 203], held that:
“Section 23(1) of the Act charges determination of the amount of compensation for the acquired land taking into account firstly the market value of the land at the date of the publication of the notification under Section 4(1) of the Act. The question, therefore, would be that what would be the market value of the land. The market value prevailing on the date of the notification including potentiality the land possessed of or realisable potentiality existing as on the date of the notification would be the relevant fact for consideration to determine market value.”
(See para 3)
12
19. Further in the case of Viluben Jhalejar Contractor (Dead) by Lrs. v. State of Gujarat, (2005) 4 SCC 789, this Court illustrated some
positive and negative factors that could have a
bearing on the market value of land under
Section 23. [See para 20 pg. 797] While
upholding the aforesaid view it was held in the
case of Attar Singh and another v. Union of India and another, (2009) 9 SCC 289, that determination of market value of the land may
also depend upon the facts and circumstances of
each case.
20.R.W.3 in his evidence stated that about 50
company quarters were constructed on the
acquired land and 6 or 7 factory buildings were
there. The construction made for factory was
within 40 acres and about 30 acres were
constructed for residential quarters. He
admitted that there are houses of
agriculturists in the acquired land. He also
admitted that the acquired land was on the
northern side of the road from Thekkampatti and 13
Anna Nagar Colony was just interior to that
being at a distance of 1 K.M. from interior to
the road. He also said that there may be
terraced buildings on the acquired land.
21.R.W. 2 in his evidence stated that there are
about 50-60 houses at Anna Nagar. He also said
that it was correct to say that there were
lands on both sides of the acquired land which
belong to the agriculturists. He also
categorically admitted that land was acquired
to build quarters for the labourers.
22.R.W. 1 in his evidence admitted that the land
adjacent to the acquired land goes from
Thekkampatti to Sengaradu. According to him
Gandhi Nagar colony has 150 residential houses.
23.As such the evidence of these witnesses
supports conclusion that even at the time of
the notification under Section 4 (1) there were
buildings including the terraced buildings on
the land acquired and they are all abutting the 14
main road and are at a distance of 1 K.M. from
residential colonies like Anna Nagar and Gandhi
Nagar.
24.In the light of the above material facts this
Court feels that the presence of 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 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 colonies i.e. Anna
Nagar and Gandhi Nagar. As it has come on
record that the Anna Nagar colony has about 50-
60 houses and Gandhi Nagar colony has about 150 15
houses, as such it is reasonable and proper to
conclude that the present lands under dispute
were near the residential colonies.
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 the Tanmag road. As
such the aforesaid lands are potential house
sites.
27.In the judgment under appeal, the High Court
took into consideration the fact that in the
representation before the LAO, the claimants
have claimed different amounts ranging from
Rs.80,000/- to Rs. Two Lakhs and the majority
of the claimants have claimed compensation only
at the rate of Rs. One Lakh per acre. The High
Court opined that no reason was given by the
Reference Court for not accepting the claims of
the claimants excepting stating that the
claimants have claimed lesser amount.
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28. It is settled that the burden of
establishing/proving the market value of the
lands is always on the claimants. In Periyar and Pareekanni Rubbers Ltd. v. State of Kerala [AIR 1990 SC 2192], this Court held that it is
the duty of the Court to determine just and
fair market value. It was further held that the
claimants should produce necessary evidence on
the value of land since the burden of proof is
on them to establish the higher compensation
claimed. While agreeing with the judgment in
Periyar and Pareekanni Rubbers Ltd (Supra), this Court in the case of Special Deputy Collector & Another v. Kurra Sambasiva Rao & Others, (1997) 6 SCC 41, held that in a claim for enhancement of compensation the burden of
proof was on the claimants that land was
capable of fetching higher compensation.
Further in the case of Kiran Tandon v. Allahabad Development Authority and another, [(2004) 10 SCC 745], it was held that the
burden of proving that the amount of
compensation awarded by the Collector is 17
inadequate lies upon the claimant and he is in
the position of a plaintiff.
29. The Court, therefore, has to treat the
reference as an original proceeding before it
for determination of the market value afresh on
the basis of the material produced before it.
The claimant in the position of a plaintiff has
to show that the price offered for his land in
the award is inadequate on the basis of the
materials produced in Court. The material
produced and proved by the other side will also
be taken into account for this purpose. [See
Para 10 page 754 of Kiran Tandon (supra)]
30.The claimants have placed reliance on sale
deeds Ex. C 7, 8, 11 and 12 for the purpose of
valuation of land. The Reference Court has
considered that sale deeds as Ex. C 8 & 11 can
be adopted as the basis for acquired lands. Ex.
C8 is in respect of sale of house plots and is
dated 11.03.83 which is nearly one year prior
to the notification under Section 4 (1) and on 18
that basis the value of lands acquired under
notification was fixed at Rs. 1,75,000/- per
acre. It was held by the Reference Court that
though the lands were acquired in different
survey numbers but they were adjacent to each
other and are acquired as one block for the
same purpose.
31.The High Court, however, refused to rely on
the aforesaid documents as the High Court
opined that Ex. C8 was not admissible since the
vendor or the vendee has not been examined. The
High Court held that the sale of 1½ cents of
land on the condition that they should be used
for house sites appears to be unusual. With
respect to the other document i.e. Ex. C11 the
High Court considered the admission of CW 15
that the land was not sold as house sites. It
was also held by the High Court that the
Reference Court was wrong in not deducting
developmental charges from the value arrived.
Basing its conclusion on the facts that the
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lands are agriculture lands the market value
was fixed at Rs. 75,000/ per acre.
32.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 3
years prior to the Section 4 (1) notification.
The Reference Court after close perusal of the
aforesaid documents held that the same
discloses that out of more than 100 sales,
number of sales in respect of the lands is sold
as house sites in village Thathaiyangarpatti
village and the adjacent survey numbers in
Thekkampatty village were also sold as house
sites.
33. This Court in Avinash Dhavaji Naik v. State of Maharashtra, (2009) 11 SCC 171, has observed as following:
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“14. The potentiality of a land for the purpose of development as also for building purposes would depend upon a large number of factors. For the said purpose, the court may not only have to bear in mind the purpose for which the lands were sought to be acquired but also the subsequent events to some extent.
15. In a case of this nature the court may proceed on the presumption that such a vast tract of land viz. 96 villages were sought to be acquired at the same time for construction of New Bombay. We are not unmindful of the fact that development in the entire area was not possible at one point of time. Development of the area must have taken place in phases. We are also not unmindful of the fact that the price of the land may skyrocket depending upon the development as also future potentiality.”
34. In Atma Singh (Dead) through Lrs., and others v. State of Haryana and another, [(2008) 2 SCC 568], it was observed that the expression
“market value” has been the subject-matter of
consideration by this Court in several cases.
The market value is the price that a willing
purchaser would pay to a willing seller for the
property having due regard to its existing
condition with all its existing advantages and
its potential possibilities when let out in
21
most advantageous manner excluding any
advantage due to carrying out of the scheme for
which the property is compulsorily acquired. In
considering market value disinclination of the
vendor to part with his land and the urgent
necessity of the purchaser to buy should be
disregarded. The guiding principle would be the
conduct of hypothetical willing vendor who
would offer the land and that of a purchaser
who, in normal human conduct, would be willing
to buy as a prudent man in normal market
conditions but not of an anxious purchaser
dealing at arm’s length nor a fictitious sale
brought about in quick succession or otherwise
to inflate the market value. The determination
of market value is the prediction of an
economic event viz. a price outcome of
hypothetical sale expressed in terms of
probabilities. [See para 4]
35. It has been further held in Atma Singh (Supra) that the market value of a property has to be
determined having due regard to its existing 22
condition with all its existing advantages and
its potential possibility when let out in its
most advantageous manner. The question whether
a land has potential value or not, is primarily
one of facts depending upon its condition,
situation, user to which it is put and whether
it is reasonably capable of being put and
proximity to residential, commercial or
industrial areas or institutions. The existing
amenities like water, electricity, possibility
of their further extension, whether near about
town is developing or has prospect of
development have to be taken into
consideration. [See para 5]
36.Following those principle laid down by this
Court we hold that the High Court and the Land
Acquisition Officer failed to take into
consideration the advantages and facilities, as
discussed above, which were available in the
acquired land. Moreover, the very purpose for
which the land was being acquired is also a
relevant factor. 23
37. The purpose for which the acquisition is being
made is an important factor. This Court in the
case of Nelson Fernandes and others v. Special Land Acquisition Officer, South Goa and others (2007) 9 SCC 447, held that both the Special
Land Acquisition Officer, the District Judge
and the High Court have failed to notice that
the purpose of acquisition is for Railways and
that the purpose is a relevant factor to be
taken into consideration for fixing the
compensation. [See para 29, page 459]
38.In the present case it has come on evidence
from R.W. 2 that the lands were acquired to
build quarters for the workers of the Company.
39.As such we observe that the Reference Court
rightly fixed the amount of compensation to be
Rs. 1,75,000/- and we are inclined to uphold
the said finding. As far as the question of
grant of higher compensation than what is
claimed by the claimants goes, the Reference 24
Court has observed, and in our opinion rightly
so, that even before the representation before
the Land Acquisition Officer, the claimants had
stated that in event of their being not
satisfied with the award, they reserve the
right to go before the Civil Court for
determination of just and reasonable
compensation.
40. For the reasons above, the judgment of the High
Court is set aside and the order of the
Reference Court is upheld. So far as the claim
of the appellant(s) for solatium, interest and
other benefits under the statute is concerned,
we direct that the same should be governed by
the principles laid down in Sunder v. Union of India, (2001) 7 SCC 211, and the principles laid down in para 26, page 231 of the judgment
be followed. Para 26 of the judgment in Sunder (supra) is set out below:
“Once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the Act forms an integral and statutory part of the compensation
25
awarded to a landowner, then from the plain terms of Section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of Section 28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well.”
41.In so far as the enhanced compensation as
determined by this Court is concerned, the same
should be distributed to the appellant(s) and
concerned parties by the District Judge of
Salem by cheques drawn in their names as early
as possible, preferably within three months
from the date of service of this order on the
District Judge. The respondents are to take
steps accordingly.
42.The appeals are thus allowed with no order as
to costs.
.......................J. (G.S. SINGHVI)
26
.......................J. (ASOK KUMAR GANGULY)
New Delhi February 24, 2010
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