Sagunthala(Dead) Thr. Lrs vs Special Tahsildar (L.A.) & Ors

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

3 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.

6

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:

7

"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,

8 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

11 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.

16

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 1= 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

19 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:

20

"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

27