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Judgment
N. Kirubakarana, J.—The appeal has been preferred by the Government against the enhancement of compensation from Rs. 14.75 to Rs. 103/-per cent.
The facts of the case are as follows:
(i) The land comprised in Survey No. 347/1, situated at Thiruvaleeswaram Village, Ambasamudram Taluk, Tirunelveli District was acquired for the purpose of Burial ground for Adi Dravidars by virtue of u/s 4(1) Notification, dated 11.07.1990. The Land Acquisition Officer relying upon the sale statistics under Ex.R-3 determined the compensation at Rs. 14.75 per cent. On reference, the Tribunal relying upon Ex.P1 sale deed dated 23.03.1990, enhanced the compensation Rs. 103/-per cent. The said award is being challenged in this Appeal.
Mr. M. Rajarajan, learned Government Advocate submitted that a smaller extent of land was conveyed through Ex.P1 and the same cannot be basis for determining the value of the vast extent of land namely 0.40.5 Hec., i.e., 90 cents. Secondly he submitted that there is no deduction towards development charges.
A perusal of the records, evidence and the award would show that the acquisition is for the purpose of Burial ground for Adi-dravidars. Section 4(1) Notification was issued on 11.07.1990. The Tribunal rejected the award passed by the Land Acquisition Officer, who relied upon the sale deed dated 28.07.1988 which conveyed the land comprised in Survey No. 353/2, whereas the acquired land is comprised in Survey No. 347/1. Moreover, Ex.R3 Topo plan would make it clear that the data land conveyed through sale deed dated 28.07.1988, is away from the acquired land and also the data sale deed transactions was much prior to u/s 4(1) Notification. Therefore, the said transaction cannot be taken into account. As far as, the claimants document is concerned, Ex.P1, dated 23.03.1990, which conveyed an extent of 90 cents comprised in Survey No. 350/5. The Tribunal found that the sale transaction is closer to the date of Section 4(1) Notification and the land conveyed in Ex.P1 lies closer to the acquired land and determined the market value of the acquired land at Rs. 103/-per cent. The compensation determined by the Tribunal based on Ex.P1 is as per the evidence available and the same cannot be interfered with.
The claimants made a plea before the Tribunal that remaining 77 cents could not be used for cultivation as these lands were acquired for Burial ground. It is common knowledge that the land surrounding the Burial ground cannot be used for any other purpose. However, the claimants claim that entire extent of 77 cents cannot be set to be not cultivable and therefore out of the remaining 77 cents about 35 cents are found to be not useful for cultivation. If the remaining land is not useful for severance compensation has to be awarded for non use of the said land.
Mr. M. Rajarajan, learned Government Advocate would oppose the awarding of compensation stating that there is no evidence available in this regard. The claimant P.W.1 categorically deposed before the Tribunal that remaining part of the land measuring about 77 cents could not be used effectively for cultivation, due to location of the Burial ground. Based on the evidence of P.W.1, this Court is not inclined to grant severance compensation for the entire remaining extent of 77 cents, and awards severance compensation only for 35 cents. The Division Bench of this Court in The Special Tahsildar (Land Acquisition), Adi Dravidar Welfare, Srivilliputhur v. Chinnaramaswami and Ors. reported in (2003)1 MLJ 124 held as follows:
If one piece was compulsorily taken, the owner would, as a general rule, be entitled to compensation for damage for severance and injurious affection to the remainder and the true measure of compensation when part of an entire area is taken is the depreciation in value of the remaining area. Let us quote the relevant portions from the judgment of a Division Bench of the Bombay High Court in Government v. Century Spinning and Manufacturing Company A.I.R 1942 Bom 105 which read thus:
The lands under acquisition and the remaining land having been owned by the same person and being near to each other were so situated that the possession and control of each would give an enhanced value to all of them, so that, as pointed out by Halsbury, Hailsham Edn., Vol.6, para 46 at Page 48 if one piece was compulsorily taken, the owner would, as a general rule, been titled to compensation for damage for severance and injurious affection to the remainder: see also (1889) A.C. 1537 at 167. The true measure of compensation when part of an entire area is taken is the depreciation in value of the remaining area.
After relying upon the judgment of Division Bench of Bombay High Court in Government Vs. The Century Spinning and Manufacturing Co., Ltd., and the judgment of the Panjab and Hariyana High Court in State of Panjab v. Amarnath and Ors. reported in 1988 L.A. 310, this Court awarded 50% severance compensation viz., Rs. 50/-per cent. In this case admittedly, there is reduction in the value of the property because of the location of the Burial ground and therefore for the remaining property, this Court awards compensation at Rs. 50/-per cent viz., Rs. 50/-of the market value. The land which is eligible for severance compensation is 35 cents and severance compensation would be 35 x Rs. 50/-= Rs. 1750/-. Therefore, this Court holds that;
(i) Market value of the acquired land shall be at Rs. 103/-per cent.
(ii) The Respondents/land owners are entitled to severance compensation in respect of 35 cents at Rs. 50/-per cent totally 35 x 50 = Rs. 1750/-.
(iii) On severance compensation also the land owners are entitled for solatium, interest on solatium, additional amount u/s 23 of the land Acquisition Act.
The above amount is awarded on re-appreciating the evidence by invoking under Order 41 Rule 33 of the Code of Civil Procedure. Except the above modification, in all other aspects the award of the Tribunal is confirmed. The appeal is disposed of as stated above. There will be no order as to costs.