IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
20. - 03 - 2014 CORAM: THE HONBLE TMT. JUSTICE PUSHPA SATHYANARAYANA A.S. Nos. 568 to 580, 985 to 990 and 1034 to 1037 of 2012 and M.P. Nos. 1 of 2012 (23 Nos.) Ayisha Cani (Deceased) represented by her legal heirs and representatives 1. Rahmath Pathima Natchialle 2. Mohamed Gouse Maraicar 3. Abubacker Siddick Maraicar 4. Ummal Baziria Natchialle 5. Mohamed Udhuman @ Mohamed Udhuman Maricar 6. Mohamed Alia Maraicar 1 to 7 represented by their General Power of Attorney and brother Mohamed Badhusha Maraicar 7. Mohamed Badhusha Maraicar .. Appellants in A.S. No.568 of 2012 Govindasamy .. Appellant in A.S. No.569 of 2012 1. Arumugam 2. Packirisamy .. Appellants in A.S. No.570 of 2012 P. Manoharane .. Appellant in A.S. No.571 of 2012 V.S. Ganesh .. Appellant in A.S. No.572 of 2012 Periyasamy .. Appellant in A.S. No.573 of 2012 1. Visvanathan 2. Rajaram @ Ramaiyan .. Appellants in A.S. No.574 of 2012 Rengaiya Madam rep. by the present Administrator Velusamy .. Appellant in A.S. No.575 of 2012 Paramatchi @ Subramanian .. Appellant in A.S. No.576 of 2012 G. Packirisamy .. Appellant in A.S. No.577 of 2012 1. Radhakrishnan 2. Pannerselvam .. Appellants in A.S. No.578 of 2012 Maideen Khan (Deceased) Represented by his legal heirs and Representatives 1. Achaby 2. Mahabouby 3. Kallimoulla Kane 4. Hafisulla Khan 5. Rahamat Kane 6. Shajathi 7. Younous Kane 8. Mounavar Kane 9. Bachite Kane @ Nasar 10. Maimoune Biby 11. Hassina Bevy 12. Nizamoudine Kane 13. Fazamoudine Kane @ Rahiman Kane .. Appellants in A.S. No.579 of 2012 1. Vedarathinam 2. Sivajothi 3. Vijayalakshmi 4. Minor Veera Sankari 5. Minor Veera Manikandan 6. Minor Veeraraghavan 7. Minor Veera Sekaran Minor appellants 4 to 7 are represented by their mother and guardina Mrs. Vijayalakshmi 8. Singaravelu .. Appellants in A.S. No.580 of 2012 1. Lakshminathan 2. Lokeswaran @ Arokiyaraj 3. Dineshchandar @ Ammalorpavam .. Appellants in A.S. No.985 of 2012 1. C. Kannagi @ Poongothai 2. Revathi @ Elaveni 3. Kannika @ Sumathi 4. Mythili @ Sridevi 5. Usha @ Shanmugambigai 6. Chandrika @ Mahalakshmi 7. Sundari @ Thirupurasundari 8. Kanchana @ Jothibai .. Appellants in A.S. No.986 of 2012 Anjammal .. Appellant in A.S. No.987 of 2012 S. Periyasamy .. Appellant in A.S. No.988 of 2012 B. Vasanthi .. Appellant in A.S. No.989 of 2012 Kaliaperumal .. Appellant in A.S. No.990 of 2012 Rahmath Pathuma Natchial Rep. by power Agent Abubacker Siddiq Maricar .. Appellant in A.S. No.1034 of 2012 Mourougou Rettou Coudiar @ Coumaravelou .. Appellant in A.S. No.1035 of 2012 M. Mourougou Saraspapady .. Appellant in A.S. No.1036 of 2012 Velaye @ Selvi .. Appellant in A.S. No.1037 of 2012 vs.
1. Union of India Rep. By the Secretary to Government (Revenue) Pondicherry 2. The Land Acquisition Officer cum - Deputy Collector (Revenue) Karaikal .. Respondents in all Appeals Appeals under Section 54 of the Land Acquisition Act, 1894 read with Section 96 CPC against the orders dated 28.02.2012 passed in L.A.O.P. Nos. 24 of 2011 , 13 of 2011, 15 of 2011, 20 of 2011, 21 of 2011, 32 of 2011, 33 of 2011, 34 of 2011, 40 of 2011, 41 of 2011, 42 of 2011, 43 of 2011 and 44 of 2011 respectively, order dated 22.6.2012 passed in L.A.O.P. No.9 of 2012, order dated 09.7.2012 passed in L.A.O.P. No.10 of 2012, order dated 22.6.2012 passed in L.A.O.P. Nos. 48 of 2011, order dated 09.7.2012 passed in L.A.O.P. Nos. 50 of 2011 and 51 of 2011, order dated 26.6.2012 passed in L.A.O.P. No.60 of 2011, order dated 13.7.2012 passed in L.A.O.P. No.23 of 2011, order dated 22.6.2012 passed in L.A.O.P. No.47 of 2011, order dated 09.7.2012 passed in L.A.O.P. No.55 of 2011 and order dated 21.7.2012 passed in L.A.O.P. No.61 of 2011 respectively on the file of the District Judge, Karaikal. For Appellants : Mr. Bharatha Chakravarthy for M/s Sa, Bharath & Ilan in all Appeals For Respondent : Mrs. N. Mala GP (P) COMMON
JUDGMENTThe claimants have filed these Appeals under Section 54 of the Land Acquisition Act, 1894 [for short, the Act]. challenging the orders dated 28.02.2012, 22.6.2012, 09.7.2012, 26.6.2012, 13.7.2012 and 21.7.2012 passed by the learned District Judge, Karaikal, in L.A.O.P. Nos. 24 of 2011, 13 of 2011, 15 of 2011, 20 of 2011, 21 of 2011, 32 of 2011, 33 of 2011, 34 of 2011, 40 of 2011, 41 of 2011, 42 of 2011, 43 of 2011, 44 of 2011, 9 of 2012, 10 of 2012, 48 of 2011, 50 of 2011, 51 of 2011, 60 of 2011, 23 of 2011, 47 of 2011, 55 of 2011 and 61 of 2011 respectively.
2. By this common judgment, this Court proposes to dispose of the above appeals, which involve similar question of fact and law, as they are result of common notification dated 25.01.2006 issued under Section 4(1) of the Land Acquisition Act, 1894 [for short, 'the Act']. and are based upon similar documentary and oral evidence.
3. Though it will be appropriate to refer to the facts giving rise to the present appeals, since they are out of same Notification, it will not be necessary for this Court to refer to the facts of each case in detail. For the purpose of brevity and in order to avoid repetition, the facts in A.S. No.568 of 2012 are taken up for reference.
4. The relevant facts as arising from the case made out by the parties, leading to the filing of these appeals are that the Union of India issued Notification dated 29.12.2005 under Section 4 (1) of the Act for acquisition of lands for the development of Port in Karaikal, which was published in the Office State Gazette No.7 on 19.01.2006, identifying the land admeasuring 142.84.18 Hectares of land for acquisition for the said purpose in different Survey Numbers situate in Vanjore Revenue Village, T.R. Pattinam Commune, Karaikal. As the lands were acquired invoking the emergency provisions, 5(A) enquiry was dispensed with and Declaration under Section 6 of the Act, was issued by the Department of Revenue and Disaster Management vide G.O. Ms. No.166 dated 29.12.2005 and published in the Official Gazette on 19.01.2006. The last date of Section 4(1) Notification by affixture of Public Notice was made on 25.01.2006.
5. The Acquisition Officer, taking into consideration the data sale deeds in respect of certain Survey Numbers and based on an evaluation inspection, had fixed the market value at the rate of Rs.3804/- per Are after deducting development charges and accordingly, passed Award dated 05.02.2010 in Award No.8729/B1/2010 in all cases. As the claimants felt aggrieved and dissatisfied with the Awards, they had sought for reference under Section 18 of the Act and they were taken on file as L.A.O.P. Nos. 24 of 2011, 13 of 2011, 15 of 2011, 20 of 2011, 21 of 2011, 32 of 2011, 33 of 2011, 34 of 2011, 40 of 2011, 41 of 2011, 42 of 2011, 43 of 2011, 44 of 2011, 9 of 2012, 10 of 2012, 48 of 2011, 50 of 2011, 51 of 2011, 60 of 2011, 23 of 2011, 47 of 2011, 55 of 2011 and 61 of 2011 before the District Judge, Karaikal.
6. From the materials available on record, it is seen that the case as put forward by the claimants before the Reference Court and this Court was that the compensation was not fixed by the Deputy Collector (Revenue) cum Land Acquisition Officer, on proper basis and that the valuation ought to have been done taking into consideration the locality and the area acquired. It is also his submission that the relevant sale deeds produced by the claimants though were discussed, while fixing up the value of the land, had not been considered. According to them, the acquired lands are well-developed and having road facilities and situate in a locality that had already developed into an industrial area. It is stated that there are numerous Small Scale Industries and Large Scale Industry like MRL are situate very near to the land acquired. The further case of the claimants is that Nagore Railway Station is very near to the land acquired and Government of India has laid Railway lines between Nagore to Karaikal Port and further development of Railway Lines upto Karaikal Station is almost over. Based on the above contentions, the claimants had valued their lands at Rs.10,500/- per Are and demanded compensation.
7. Per contra, the Land Acquisition Officer, in his counter statement before the Reference Court as well as this Court, contended that the compensation awarded is reasonable as the same was fixed after considering all the aspects as per the provisions of the Act. It was further contended that the sale statistics of Vanjore Revenue Village for the period of one year immediately preceding the date of 4(1) Notification, were collected and a total number of 24 sales data were gathered. After rejecting 17 sale deeds, he had retained 7 sale data, viz., the Serial Nos. 1, 2, 4, 9, 19, 20 and 23, on the ground that they are very near to the acquired lands. Therefore, the higher Sale rate as per Serial Nos. 20 and 23, was adopted at Rs.4965/- per Are in respect of lands utilised for prawn culture and for other lands, deduction of 23.38% was made as development charges and the value was fixed at Rs.3804/- per Are.
8. In order to prove the case of the claimants, before the Reference Court, the claimant in each case was examined as C.W.1 and Exs. C.1 to C.9 were marked and on the side of the respondent, one M. Murugesan, Tahsildar, was examined as R.W.1 and Exs. R.1 to R.4 were marked.
9. The Reference Court, viz., District Judge, Karaikal, on hearing the parties and after considering the documentary and oral evidence, held that the compensation awarded by the Land Acquisition Officer was inappropriate and, therefore, increased the same to Rs.7000/- per Are after deducting the amount already paid to the claimants. He also awarded other statutory benefits under Section 23 of the Act. The claimants have filed these appeals aggrieved by the said order contending that the compensation awarded is inadequate.
10. Heard Mr. Bharatha Chakravarthy, learned counsel appearing for the appellants and Mrs. N. Mala, learned Government Pleader (Puducherry) representing the respondents and perused the records.
11. Now, questions that have to be decided in the present appeals are as to how this Court should determine the fair market value of the acquired land in the given facts and circumstances and whether the appellants are entitled for enhancement of compensation as prayed for.
12. First of all, this Court need to refer to the evidence that was produced by the parties in support of their respective claims. The principal evidence relied upon by the claimants in all these cases are the two sale instances marked as Exs. C.8 and C.9. These lands are situate in the same area which was acquired under the same Notification.
13. The claimants in different cases examined themselves to prove these sale instances as a whole, as they are the main witnesses and the sale instances were also executed between themselves. According to the claimants, they were entitled to compensation on the basis of the two sale instances that are marked as Exs. C.8 and C.9. On the backdrop of this entire evidence, the claimants contended that the order of the Reference Court is not justified and their claim for compensation in line with the two sale instances proved by them on record is to be upheld. According to them, the sale instances produced by the Land Acquisition Officer were far away from the acquired land and were not relevant or comparable instances.
14. The main bone of contention on behalf of the appellants is regarding the value fixed by the Reference Court. It was argued before this Court that Ex.R.4 sale data dated 23.11.2011 relied on by the Land Acquisition Officer ought to have been excluded from consideration, while determining the market value and that relevant sale deeds were ignored while fixing up the value and the data sale deeds selected by the Officer were absolutely unreliable. As the acquired land got much more potential value, which has been lost sight off by the Reference Court, according to the learned counsel, the compensation awarded is very low and as such, the order passed by the Reference Court is not justified.
15. Learned Government Pleader (Puducherry) would submit 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 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. 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. She further submitted that the compensation awarded to the claimants is reasonable and that the Reference Court had considered the provisions of the Act and the potentiality of the land before fixing the value. Therefore, there is no irregularity in the value fixed by the Reference Court.
16. Before going into the merits of the case, it will be worthwhile to refer to Section 23 of the Act, which reads as follows:- 23. Matters to be considered in 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 or 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 severing 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, if, 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.".
17. From the materials available on record, the undisputed facts in the above appeals are that the acquired land is situated in a locality that had already been developed into an industrial area and that besides a large number of Small Scale Industries in and around the land acquired, Large Scale Industry like MRL is situate very near to the land acquired. The Government has acquired the property for the development of the Port including buildings for office, godowns for storing materials of Import and Export, etc. It is also pertinent to note that Nagore Railway Station is very near to the land acquired and Railway lines between Nagore to Karaikal Port laid by the Government of India is functioning in full swing and further development of Railway Lines upto Karaikal Station is almost over.
18. When the potentiality of the land is to be considered, the Court has to see the purpose for which the property is acquired. When the acquisition is for a public purpose, viz., development of Port Trust, it is quite natural that the same would be constructed considering the approach to the Port by all means of transport. When the basic purpose for acquisition is for such development, it is quite obvious and evident that the adjoining lands will also have the potential of being put to better use in the near future. As such, it is reasonable and proper to conclude that the present land under dispute have potential value.
19. Now, coming to the fixation of value for the acquired land, no doubt, it is a settled legal principle that in a claim for enhancement of compensation, the burden of proof is on the claimants that the amounts awarded to them are inadequate and that the land was capable of fetching higher compensation. As has been observed by the Hon'ble Apex Court in a catena of decisions, the claimants are expected to lead cogent and proper evidence in support of their claim. Onus primarily is on the claimants, which they can discharge while placing and proving on record sale instances. That burden had to be discharged by the claimants and only if the initial burden in that behalf was discharged, the burden is shifted to the State to justify the award. Therefore, the claimants are said to be in the position of the plaintiffs to show that the price awarded for their lands in the Award is inadequate on the basis of the material records available.
20. Every case has to be examined on its own facts and circumstances. In the cases on hand, the claimants have placed reliance on Ex.C.8 sale deed dated 03.11.2005 under which a land situate near the acquired property in R.S. No.73/1 B to an extent of 0.10.20 Ares was sold for Rs.6,20,000/-. Likewise, the claimants also relied on Ex. C.9 sale deed dated 03.11.2005 wherein land in R.S. No.111/53 B to an extent of 0.05.68 Ares, was sold for Rs.87,000/-. It is to be remembered that the date of 4(1) Notification is 25.01.2006. The documents considered by the Land Acquisition Officer based on which the compensation was fixed, were sale deeds relating to Serial Nos. 20 and 23 dated 16.11.2005 and 06.12.2005 respectively.
21. Learned counsel appearing for the appellants / claimants placing reliance on Exs. C.1 to C.9, more particularly, Exs. C.8 and C.9, claimed that the property under the said Exhibits are situate close to the acquired property. Therefore, the comparable sale transaction which fetched maximum price and which is most advantageous to the claimants, alone should be taken into consideration as the guideline for fixing value for any property and what a willing seller will sell.
22. That apart, it is pertinent to point out that the Land Acquisition Officer has rejected 17 data sale deeds out of 24 without any reason. The learned Government Pleader representing the respondents submitted that when the matter comes to Court, the documents should be marked in the manner known to law as otherwise, the same cannot be looked into. Though she took an objection that the sale deeds which were not marked, cannot be looked into by the Court, it is seen that the claimants have relied upon Exs. C.1 to C.9 marked by them. It is also not in dispute that the property covered in the sale deeds rejected by the acquisition authority, are very much similar to the property acquired from the claimants.
23. Learned counsel appearing for the appellants / claimants contended that since the lay out in the present batch of cases is bigger in size, the case of the claimants should be considered. In support of his contention, he placed reliance on the decision of the Hon'ble Supreme Court in Special Land Acquisition Officer vs. Karigowda and others reported in (2010) 5 SCC708 more particularly, relied on paragraphs 75 and 76 of the judgment, which read as under:- ".75. It is a settled principle of law that lands of adjacent villages can be made the basis for determining the fair market value of the acquired land. This principle of law is qualified by clear dictum of this Court itself that whenever direct evidence i.e. instances of the same villages are available, then it is most desirable that the court should consider that evidence. But where such evidence is not available court can safely rely upon the sales statistics of adjoining lands provided the instances are comparable and the potentiality and location of the land is somewhat similar. The evidence tendered in relation to the land of the adjacent villages would be a relevant piece of evidence for such determination. Once it is shown that situation and potential of the land in two different villages are the same then they could be awarded similar compensation or such other compensation as would be just and fair.
76. The cases of acquisition are not unknown to our legal system where lands of a number of villages are acquired for the same public purpose or different schemes but on the commonality of purpose and unite development. The parties are expected to place documentary evidence on record that price of the land of adjoining village has an increasing trend and the court may adopt such a price as the same is not impermissible. Where there is commonality of purpose and common development, compensation based on statistical data of adjacent villages was held to be proper. Usefully, reference can be made to the judgments of this Court to the cases of Kanwar Singh & Ors. v. Union of India, [JT1998(7) SC397 and Union of India v. Bal Ram & Anr. [AIR2004SC3981.".
24. Learned counsel for the appellants also relied on the decision of the Honble Apex Court in Mehrawal Khewaji Trust (Registered), Faridkot and others vs. State of Punjab and others reported in 2012 (5) SCC432wherein in paragraph 17, it has been observed as follows:- ".17. It is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied that it is a bona fide transaction, has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation.".
25. The next case relied on the learned counsel for the appellants is Trishala Jain and another vs. State of Uttaranchal and another reported in 2011 (6) SCC47wherein in paragrpahs 56 to 58, it has been held as under:- ".56. More often than not, it is not possible to fix the compensation with exactitude or arithmetic accuracy. Depending on the facts and circumstances of the case, the court may have to take recourse to some guesswork while determining the fair market value of the land and the consequential amount of compensation that is required to be paid to the persons interested in the acquired land.
57. Guess as understood in its common parlance is an estimate without any specific information while calculations are always made with reference to specific data. Guesstimate is an estimate based on a mixture of guesswork and calculations and it is a process in itself. At the same time guess cannot be treated synonymous to conjecture. Guess by itself may be a statement or result based on unknown factors while conjecture is made with a very slight amount of knowledge, which is just sufficient to incline the scale of probability. Guesstimate is with higher certainty than mere guess or a conjecture per se.
58. The concept of guesswork is not unknown to various fields of law. It has been applied in cases relating to insurance, taxation, compensation under the Motor Vehicles Act as well as under the Labour Laws. All that is required from a court is that such guesswork has to be used with greater element of caution and within the determinants of law declared by the legislature or by the Courts from time to time.".
26. No doubt, it is true that whenever there is no documentary evidence available, some guess work is permissible. But in the given case, there are two types of sale deeds, viz., one produced by the claimants and the other produced by the Land Acquisition Officer for determining the value of compensation which are situate in the same Survey Number and also of contemporaneous in time. Therefore, there is no impediment for the Reference Court to follow the sale deed under which the land was sold for a higher value. Normally, while assessing compensation, the Court can compare the sale instances of similar or comparable lands and fix the value. Whatever the method of determining the compensation is applied by the Court, the result should always be reasonable and just and fair as that is the purpose sought to be achieved by the scheme of the Act. The guess work as laid down by the Honble Apex Court in the Trishala Jain's case (cited supra), can be done only in the absence of any exemplar documents whereas in this case, when the documents are made available and there is difference in value, it is for the Court to consider the other aspects and fix the value, which is in consonance with the statutory law as well as what is stated in the judicial pronouncements. The principle is only to balance between the calculated compensation and the actual compensation the claimant may be entitled to receive as per the facts of each case.
27. At this juncture, it would be relevant to refer to the decision of the Hon'ble Supreme Court in Anjani Molu Dessai vs. State of Goa and Another reported in (2010) 13 SCC710observed in paragraph 20 as under: The legal position is that even where there are several exemplars with reference to similar lands, usually the highest of the exemplars, which is a bona fide transaction, will be considered. 28. Therefore, it is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bona fide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition.
29. From a perusal of the topo sketch produced before this Court, this Court is able to see that the data sale deeds relied on by the Land Acquisition Officer in sale items of 6, 10, 14 and 15 are quite away from the lands acquired whereas serial Nos. 23 and 24 are in the same place where the lands in question are situate. It is also seen that the lands in Survey Numbers in Exs. C.8 and C.9 are situate near the data sale deeds in Serial Nos. 12 and 13. As far as Exs. C.8 and C.9 are concerned, the Reference Court has observed that the properties covered under the said Exhibits are Natham manai abutting Nagore Main Road. The materials placed before the Land Acquisition Officer and the Reference Court show that the land is of great potential value inasmuch as the same being strategically located at a commercial hub abutting main road, Railway Station and surrounded by a large number of Small Scale Industries and Large Scale Industries like MRL. In view of the fact that since there has been a steep increase in the price in the real estate and the location of the acquired land and also the fact the documents also show that the property has got more potential value, more particularly, when none of the contentions of the claimants was disputed by the Land Acquisition Officer or disbelieved by the Reference Court, there is no reason why the data sale deeds relied on by the claimants should not be considered in fixing the compensation.
30. In view of the foregoing discussion, this Court feels that in the place of relying upon the highest exemplars, viz. Exs. C.8 and C.9, the Reference Court erroneously determined the market price for the lands of the appellants by awarding a compensation of Rs.7000/- per Are, which seems to be minuscule. Therefore, I am 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.8,500/- per Are, ie., enhancing the compensation by Rs.1500/- per Are from the value fixed by the Reference Court, would be just and fair compensation and would do complete justice between the parties.
31. Insofar as the deduction towards development charges is concerned, the Honble Supreme Court in Lucknow Development Authority vs. Krishna Gopal Lahoti and others reported in 2008 (1) SCC554held that the deduction towards development charges cannot be made in a straight jacket formula and should depend on the facts of each case.
32. Further, it is to be noted that if the land acquired is from single owner and considerably bigger in size, the same can be followed. Whereas the same yardstick cannot be applied for all. In the case on hand, it is not disputed that the lands in question were acquired from small owners, who have got bits and pieces of land.
33. For better appreciation of the case, it would be useful to re-produce the operative portion of the Award passed by the Land Acquisition Officer, which runs as follows:- ".The sale value taken into account for arriving real market value of the land under acquisition is in respect of the land which was developed as prawn culture and prawn culture was not carried for the past 2 years i.e., after Tsunami. However, the land were used for prawn culture, it would not reflect the real market value of the other lands which are barren and have no potentiality, hence it may be treated as a land that is unusable for any other purpose. Therefore, it is proposed to levy a deduction of 23.38% as development charges on 4965/- and to fix @ Rs.3804/- per Are as the real market value for the land which are under non prawn culture mostly wet and barren. Similarly, it is proposed to levy a deduction of 1.5% as development charges on Rs.4965/- in respect of the lands which were used as prawn culture and to fix rate per Are @ Rs.4891/- this shall reflect the real and correct market value of land under acquisition at Vanjore Revenue Village.".
34. It is the admitted case of respondent that once prawn culture is carried out, it cannot be used for any other purpose. It is also not denied by the respondent that after the Tsunami in the year 2004, the lands are unfit for prawn culture and they are of the same nature. It is not in dispute that a vast extent of land, viz., 142.84.18 Hectares, approximately, 360 Acres, has been acquired for the development of Port in Karaikal. Though the main purpose for acquisition is for development of Port, it may be put to use for different purposes as per need in the future and major portion may be kept only as an open yard.
35. Insofar as the question of deduction from the market value towards development cost is concerned, learned Government Pleader (Puducherry) pressed into service the decision of the Hon'ble Apex Court in Subh Ram and others vs. Haryana State and another reported in 2010 3 L.W. 193 with particular reference to paragraphs 11, 12 and 13 wherein it has been observed as follows:- ".11. Deduction of development cost is the concept used to derive the wholesale price of a large undeveloped land with reference to the retail price of a small developed plot. The difference between the value of a small developed plot and the value of a large undeveloped land is the development cost. Two factors have a bearing on the quantum (or percentage) of deduction in the retail price, as development cost. Firstly, the percentage of deduction is decided with reference to the extent and nature of development of the area/layout in which the small developed plot is situated. Secondly, the condition of the acquired land as on the date of preliminary notification, whether it was undeveloped, or Partly developed, is considered and appropriate adjustment is made in the percentage of deduction to take note of the developed status of the acquired land. The percentage of deduction (development cost factor) will be applied fully where the acquired land has no development. But where the acquired land can be considered to be partly developed (say -for example, having good road access or having the amenity of electricity, water etc.), then the development cost (that is percentage of deduction) will be modulated with reference to the extent of development of the acquired land as on the date of acquisition. But under no circumstances, the future use or purpose of acquisition will playa role in determining the percentage of deduction towards development cost.
12. Section 24 of Land Acquisition Act prohibits the court from taking into consideration any increase to the value of the land acquired, likely to accrue from the use to which it will be put when acquired. A three-judge Bench, of this Court in Tarlochan Singh VS. State of Punjab, 1995 (2) SCC424held : Section 2-4 of the Land Acquisition Act expressly prohibits and puts an embargo on the Court in taking the factors mentioned in section 24 as relevant in determining the market value. Under these circumstances, the future development and potential prospective use of the acquisition etc., are not relevant circumstances. Even the purpose of acquisition is not relevant. (emphasis supplied) The above position was reiterated in Raj Kumar VS. State of Punjab, 1995 (3) SCC121 This Court led: .... . The purpose of acquisition i. e. to establish market and on its account the lands are possessing .. potential value, is irrelevant by operation of section 24 of the Act. 12.1) Administrator General of West Bengal vs. Collector, Varanasi, [1988 (2) SCC150 contains a precise statement as to the concept of deducting development cost. This Court stated: .... In Sahib Singh Kalha, v. Amritsar Improvement Trust, [1982 (1) SCC419, this Court indicated that deductions for land required for roads and other developmental expnses can, together, come up to as much as 53 per cent. But the prices fetched for small plots cannot directly be applied in the case of large areas, for the reasons tha t the former reflects the retail price of land and the latter the wholesale price.(emphasis supplied)". .................... ................... ................... ..................... .................... ................... ................... .....................
13. ........................ ...................... ............................... .................... ................... ................... ..................... The above observations no doubt seem to suggest that where the acquisition is for a residential layout, deduction towards development cost is a must, but i.e the acquisition J..S for an industry which does not require forming a layout of sites, the market value of small residential plots may be adopted without any cuts towards development cost. The said observations are made with reference to the special facts of that case....". Since the present acquisition is also for development of Port Trust in Karaikal, it may not require lay outs as may be required in construction of residential colonies, etc.
36. Reference is also made to Nelson Fernandes and others vs. Special Land Acquisition Officer, South Goa and others reported in 2007 (9) SCC447wherein it is held that while determining the amount towards development charges, the purpose for which the land acquired is relevant to decide as to whether any deduction for development charges at all can be made. In the present case, the lands are acquired for a public purpose, viz., development of Port. Development necessarily means providing indispensable amenities like formation of roads, adjoining pavements, electricity sub-station, street lights, telecommunication tower, educational institution, dispensaries, hospitals, police station, etc. It is not the case of the authorities that the lands will be used for such different purposes. In the case on hand, the land owners themselves have lost heavily on account of compulsory acquisition of lands having potential value. While so, the question of deduction towards development charges should not be burdened on the claimants. Usefully, it can also be noticed at this stage, that when the claimants have filed appeals for further enhancement, the State Government has neither filed any appeal against the judgment of the Reference Court nor any cross objections and hence, they are estopped from making an argument in the appeal filed at the instance of the claimants. The Reference Court has rightly not passed any order on the head of deduction towards development charges and in that aspect, the order of the Reference Court is confirmed. In the result, the appeals filed by the claimants / appellants are allowed in part as indicated above enhancing the value by Rs.1500/- per Are thereby fixing the amount at Rs.8,500/- per Are (ie., Rs.7000/- + Rs. 1500/- = Rs.8,500/-). In all other respects, as regards the other statutory benefits, viz., solatium and interest, the orders of the Reference Court stand confirmed. However, there shall be order as to costs. Consequently, connected Miscellaneous Petitions are closed. 20 03 2014 Index : Yes Internet : Yes gri PUSHPA SATHYANARAYANA, J.
(gri) To 1. Union of India Rep. By the Secretary to Government (Revenue) Pondicherry 2. The Land Acquisition Officer cum - Deputy Collector (Revenue) Karaikal 3. Record Keeper V.R. Section High Court Chennai Pre-Delivery Common Judgment in A.S. Nos. 568 of 2012, etc. batch Delivered on 20 03 2014