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1975 DIGILAW 299 (KER)

Special Deputy Collector Kozhikode v. Oril Thomas

1975-11-14

G.VISWANATHA IYER

body1975
JUDGMENT G. Viswanatha Iyer, J. 1. These appeals are against a common award in four land acquisition cases passed by the Sub Court, Badagara. A.S. No. 700 of 1974 arises from L.A. O.P. No. 90 of 1969, relating to an acquisition of 84.350 cents in R.S. Nos. 35, 36, 38 and 39 of Kayanna Village. A.S. No. 701 of 1974 arises from L.A, O.P. No. 93 of 1969 relating to the acquisition of 87.628 cents of land comprised in R.S. No. 38 of the same village. A.S. No. 702 of 1974 arises from L.A. O.P. No, 96 of 1969 relating to the acquisition of 67.701 cents of land comprised in R.S. Nos. 34 and 35 of the same village and A.S. No. 715 of 1974 arises from L.A. O.P. No. 91 of 1969 relating to the acquisition of 1 acre 78 cents in R.S. Nos. 36 and 37 of the same village. The acquisition was for the construction of a road to Kuttiadi Hydro-Electric Project and the notification for it is dated 10th June 1964 under section 3 (1) of the Kerala Land Acquisition Act. The claimants claimed Rs. 60 per cent but the Land Acquisition Officer fixed the land value only at Rs. 750 per acre and separately valued the Kuzhikoors and passed an award in each of the cases. Dissatisfied with that the claimants asked for reference and the reference court fixed the land value at Rs. 6,000 per acre. That decision was objected to in appeals before this court. This court remanded the cases for fresh consideration after holding that the evidence let in regarding the sale of similar lands in the locality is not acceptable and also indicating by that there is no satisfactory evidence regarding the income of the land to value the same on the basis of capitalisation of income. On remand the claimants produced one document to show the value of a property sold in the locality and also produced a copy of the report submitted by a Commissioner in another case, namely L.A. O.P. No. 95 of 1969. That Commissioner was also examined and on the basis of this additional evidence the lower court has fixed the compensation at Rs. 60 per cent. This is again objected to in these appeals as excessive. 2. The lower court rightly rejected the evidence furnished by the sale deed, Ext. That Commissioner was also examined and on the basis of this additional evidence the lower court has fixed the compensation at Rs. 60 per cent. This is again objected to in these appeals as excessive. 2. The lower court rightly rejected the evidence furnished by the sale deed, Ext. A-2, for 18 cents of land by the side of a road. P.W.3 who was examined to prove the sale deed, stated that the property covered by that document lies 11/2 miles away from the acquired lands. Even that is not correct will be seen from the evidence of P.W.3 himself. In the cross-examination he stated that Ext.A-2 property is near the 31st mile stone on the Kakkayam-Kozhikode road and the acquired lands are near the 29th mile stone on the same road. Further, that sale deed was for putting up a petrol bunk and as per the description of the property in the sale deed it is bounded on two sides by roads. The area sold is also small when compared to the lands acquired in these cases. Therefore the value given for the sale deed, namely Rs. 4,000 for 18 cents is not a guidance for fixing the value of the lands acquired in these cases. 3. The other evidence let in by the claimants on which the lower court has based its conclusion is the Commissioner report, Ext. A-3, filed in L.A. O.P. No. 95 of 1969. Before I consider that evidence it is necessary to bear in mind the caution given by the Supreme Court in estimating market value on the principle of capitalisation of income. In Raghubans Narain v. Government of U.P. A.I.R. 1967 S.C. 465 at 468 it was observed: "Such a method of valuation by ascertaining the annual value of the produce can and should be resorted to only when no other alternative method is available."� When that method has to be resorted to, the valuation should be based a number of years purchase of the actual or immediately prospective profits of the lands acquired. See S.L.A. Officer v. T.A. Setty A.I.R. 1959 S.C. 429 followed in Tribeni Devi v. Collector, Ranchi A.I.R. 1972 S.C. 1417 at 1420. In the claim statement filed by the respective claimants before the Land Acquisition Officer, they did not state that the acquired lands were being cultivated with tapioca. See S.L.A. Officer v. T.A. Setty A.I.R. 1959 S.C. 429 followed in Tribeni Devi v. Collector, Ranchi A.I.R. 1972 S.C. 1417 at 1420. In the claim statement filed by the respective claimants before the Land Acquisition Officer, they did not state that the acquired lands were being cultivated with tapioca. Even in the statements filed before the court they did not state that the acquired lands were being cultivated with tapioca. According to them, in the land acquired there were rubber trees, pepper vines, fruit bearing trees like jack trees and mango trees and also timber trees. Then they stated the yield they were getting from these improvements. They never even remotely suggested that these lands should be valued on the basis of the income from tapioca. In one statement, namely the statement in L.A. O.P. No. 96 of 1969, it is mentioned that among other improvements in the property tapioca plants more than three months old numbering 416 existed at the time of the acquisition. Even then no claim was put forward that the value should be fixed on the basis of the yield from tapioca cultivation. It is true that the award of the Land Acquisition Officer Ext. A-4 proceeds on the basis that these lands are "occupied dry on ground and appear to be suitable for tapioca cultivation". A perusal of the award, Ext. A-4, shows that these lands were not being used for tapioca cultivation. The award relates to nearly 40 acres, portions of which are involved in these cases. They are stated to be in the possession of various persons. The trees in each survey number are separately valued and paid for. It is seen that the entire area of 40 acres was being used for planting pepper vines and rubber trees. The survey numbers in question contained mainly pepper vines which had not begun to yield any appreciable income. A purchaser may pay the price for a property having due regard to the existing conditions, with all its existing advantages and its potential possibilities when laid out in its most advantageous manner. But when the doctrine of potential value is applied so many questions crop up for an answer. See Raghubans Narain v. Government of U.P. A.I.R. 1967 S.C 465 at 468. It cannot be said that these lands had a potentiality for cultivation of tapioca. But when the doctrine of potential value is applied so many questions crop up for an answer. See Raghubans Narain v. Government of U.P. A.I.R. 1967 S.C 465 at 468. It cannot be said that these lands had a potentiality for cultivation of tapioca. To reckon potential use the area must be specially adapted for it. There must be a pressure for such use and from the use to which the neighbouring areas are put to there must be a likelihood that tapioca cultivation will be extended in the near future to these areas. That is not the case here. To value them as land suitable for tapioca cultivation will be adopting a most artificial method. Then any land in the State can be said to be adapted for such cultivation and if an estimate is prepared on such a hypothetical basis it will not be an estimate which a willing purchaser will have in mind in purchasing the land. The report, Ext. P-3, and the evidence of P.W. 4 are not, thus, of any use in this case. Nine years after the acquisition a Commission was issued to ascertain the tapioca yield of a portion of the property acquired in another case. The Commissioner allowed the party to cultivate the area with tapioca, waited for its full growth and then visited the spot to ascertain the yield. That is not of any help in ascertaining the yield which could have been got from the lands acquired in these cases. 4. In the absence of any other reliable evidence to fix the value the court is entitled to look into the admission of the parties and find out the value of the acquired lands even though that involves some guess work as was done by the Supreme Court in Ahamed Yar Jung v. Collector, L. A. Hyderabad A.I.R. 1974 S.C. 787 at 788 . 5. In all these cases additional statements were filed by the claimants on 10th July 1972 showing the yearly income which each party was getting from the lands. Apparently these statements were filed for apportionment of the compensation between the landlord and tenant as provided for in Act 1 of 1964. The income from the land acquired in L.A. O.P. No. 90 of 1969 is admitted to be above Rs. 80. Apparently these statements were filed for apportionment of the compensation between the landlord and tenant as provided for in Act 1 of 1964. The income from the land acquired in L.A. O.P. No. 90 of 1969 is admitted to be above Rs. 80. In L.A. O.P. No. 91 and 93 of 1969 that was admitted to be over Rs. 100 and in L.A. O.P. No. 96 of 1969 it was admitted to be over Rs. 200. The lands are portions of adjoining survey numbers. The land value is uniformily claimed at Rs. 60 per cent by all the claimants. The cases were jointly tried and disposed of at the request of parties. So the total yearly income admitted for all these lands can be accepted and capitalised to arrive at the land value of the lands acquired in these four cases. Capitalisation at a fixed number of years purpose may not be proper or reasonable for all cases. It will have to be varied. Considering that these lands are situate in a hilly area not easily accessible and away from important commercial places the return from the property cannot be equated with the income from a property in the plains with all modern facilities. So capitalisation at 16 year purchase is not unreasonable. So doing the value of these lands can be estimated at Rs. 7,680 and dividing it by the total area of 417.679 cents value of one cent can be fixed at Rs. 18. Before the Kuttiadi Hydro-Electric Project was thought of and the construction for it began these lands formed part of a hilly tract, a private forest of the Kizhakadathu Kovilakom demised for a nominal rent of eight annas per acre. Considering these factors I think the land value at Rs. 13 per cent will be a fair compensation. The Land Acquisition Officer and the lower court have gone wrong in their conclusion. So in modification of their determination the land value will be fixed as above. 6. In the result these appeals are allowed. The award passed by the lower court in each of the above four cases will be modified as follows: In L.A. O.P. No. 90 of 1969 from which A.S. No. 700 of 1974 arises the claimant will get an enhancement of compensation of Rs. 885.68 only instead of Rs. 4,428.37 awarded by the lower court. The award passed by the lower court in each of the above four cases will be modified as follows: In L.A. O.P. No. 90 of 1969 from which A.S. No. 700 of 1974 arises the claimant will get an enhancement of compensation of Rs. 885.68 only instead of Rs. 4,428.37 awarded by the lower court. In L.A. O.P. No. 93 of 1969 from which A.S. No. 701 of 1974 arises the claimant will get an enhancement compensation of Rs.920.10 instead of Rs. 4,600.47 allowed by the lower court. In L.A. O.P. No. 96 of 1969 from which A.S. No. 702 of 1974 arises the claimant will get an enhancement of compensation of Rs. 820.86 instead of Rs. 3,446.72 awarded by the lower court. In L.A. O.P. No. 91 of 1969 from which A.S. No. 715 of 1974 arises the claimant will get Rs. 1,869 instead of Rs. 9,345 awarded by the lower court. The enhanced amount with solatium of 15 per cent and 4 per cent interest on the aggregate from the date of dispossession will be paid by the State to the claimant failing which they are allowed to recover the same from the State. The parties shall bear their costs in all the appeals.