JUDGMENT
A.S. Venkatachalamoorthy, J.
1. The above appeals can be disposed of by a Common Judgment since the same have been preferred only against the Judgment in LAOP 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 Section 4(1) of the Land Acquisition Act was issued on 30.11.1982. In fact, possession was taken much earlier that was on 16.02.1981. 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 Section- 18 of the Land Acquisition Act. The reference was taken on file by the learned Subordinate Judge, Dharapuram, and numbered as LAOP 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 & 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 Section 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 LAOP 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 Section- 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 LAOP 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 LAOP 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 LAOP 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 Section 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 LAOP No. 17/86 (ie., earlier acquisition for locating housing colony), the State of Tamil Nadu issued the Notification under Section 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. The Court proceeded on the basis that small extent of lands were sold prior to Section 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 & 4 other survey numbers, owned by 16 persons.
There is no dispute that Section 4(1) Notification with reference to the acquisition in question was three months subsequent to the 4(1) Notification with reference to LAOP 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 LAOP 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 LAOP 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 (LAO).
There are cases, where the Supreme Court has upheld the deduction of 20% as correct.
( Refer:- – Spl. Land Acquisition Officer, BYDA , Bangalkot vs. Mohd. Hanif Sahib).
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 totlly 1.70 acres ie., 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), 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 LAOP 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 LAOP 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, Section 4(1) Notification in this case was in fact three months subsequent to the 4(1) Notification in the other LAOP viz., LAOP 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 LAOP No. 17 of 1986. It is not as if, after the judgment in LAOP No. 17/86 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. 411/86 and 401/03 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.
As already mentioned, the land owners parted with possession on 16.2.1981 and the Notification under Section 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) PWD Schemes vs. M.A.Jabbar)
(ii) (Union of India vs. Budh Singh)
(iii) (Siddappa Vasappa Kuri vs. Special Land Acquisition Officer)
for the purpose of calculating the compensation payable under Section 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. 1345/1995, 411/1996, 401/2003 and 73/1997 are allowed to the extent indicated above.