State of Kerala v. Mrs John Mariakutty — 1981 DIGILAW 21 (KER)

JUDGMENT 1. The State of Kerala as well as the claimant in L. A. R. No. 40 of 1977 on the file of the Sub Court, Kottayam, aggrieved by the decision of that court, have preferred these appeals. 2. Twenty one cents (8.49 ares) out of 50 cents in Sy. No. 723/1 (demarcated separately as subdivision 1/3) of Kuravilangad Village, Meenachil Taluk, Kottayam District, belonging to the claimant, namely, the appellant in L. A. A. 135 of 1979, and the respondent in L. A. A. 132 of 1979 was acquired under the provisions of the Kerala Land Acquisition Act, 1961 (that is, Act 21 of 1962) for the purpose of establishing a taxi stand by the Kuravilangad Panchayat. S.3(1) notification was published in the Gazette dated 18th December 1973 and the objections filed by the claimant were overruled. This was followed by a declaration under S.6 of the Act. Notice under S.9(3) of the Act was served on the claimant and others on 13th October 1975 while public notice was given as contemplated under S.9(1) of the Act and published in the gazette dated 14th October 1975 as contemplated under S.9(5) of the Act. The claimant authorised her husband to appear before the Land Acquisition Officer to file statements, make claims and produce documents. He appeared before the Land Acquisition Officer on 28th October 1975 but did not file any written statement or produce any document. The enquiry was adjourned to 3rd December 1975 and on that day the claimant's husband produced title deeds, but did not file any written statement or claim. The Land Acquisition Officer on the basis of the basic document Ext. B3 fixed the land value at Rs. 600 per cent. The total land value was fixed at Rs. 12,582.18 and improvements were valued at Rs. 330. Including solatium, the total compensation awarded was Rs. 14,849. The Award No. 3 of 1976 was passed on 21st February 1976 and possession was taken on 2nd March 1976. On 5th March 1976 the claimant filed an application for reference under S.20 of the Act regarding the amount of compensation. Reference was duly made on 19th January 1977. 3. Before the Land Acquisition Court, namely, the Sub Court, Kottayam, claimant filed a written statement claiming land value at Rs. 4,000 per cent and also claiming a sum of Rs. 1,500 as compensation for severance. Reference was duly made on 19th January 1977. 3. Before the Land Acquisition Court, namely, the Sub Court, Kottayam, claimant filed a written statement claiming land value at Rs. 4,000 per cent and also claiming a sum of Rs. 1,500 as compensation for severance. The State did not file any written statement. On behalf of the claimant, Exts. A1 to A3 were marked and PWs. 1 to 3 were examined. On behalf of the State, Exts. B1 to B4 were marked and D.Ws. 1 to 5 were examined. Examination of DWs. 3 and 4 was completed on 7th October 1978. Thereafter an oral Submission was made on behalf of the State that the claim for enhanced compensation is barred under S.27(3) of the Act on the ground that before the Land Acquisition Officer claimant did not lay claim to any particular amount as compensation. Thereupon the claimant on 18th October 1978 filed I.A. No. 3509 of 1978 under S.27 of the Act contending that she had made an oral claim before the Land Acquisition Officer and in any event, the omission to make a written claim was for a sufficient reason. The State opposed this application. The Land Acquisition Court in a common judgment allowed I.A. 3509 of 1978 and awarded the land value at the rate of Rs. 1,500 per cent but negatived the claim for cost of construction of the compound wall in between the acquired property and the remaining property. Both sides are aggrieved by this order. 4. So far as the quantum of land value awarded is concerned, both sides are aggrieved. State would also contend that in view of the fact that the claimant did not make a written claim regarding any amount as land value in response to notice under S.9 of the Act, she could not have been awarded any amount in excess of that allowed by the Land Acquisition Officer, on account of the bar contained in S.27(3) of the Act. 5. S.9 of the Act reads thus: "9. Notice to persons interested.” (1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intend to take possession of the land and that claims to compensation for all interests in such land may be made to him. S.9 of the Act reads thus: "9. Notice to persons interested.” (1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intend to take possession of the land and that claims to compensation for all interests in such land may be made to him. (2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections, if any, to the measurements made under S.8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent. (3) The Collector shall also serve notice to the same effect on the occupier, if any, of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate. (4) In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by registered post in a letter addressed to him at his last known residence, address or place of business. (5) The notice shall also be published in the Gazette and shall be deemed to be sufficient notice to all persons interested in the land as between the Government and such persons." S.27 of the Act reads thus: "27. Rules as to amount of compensation.” (1) When the applicant has made a claim to compensation, pursuant to any notice given under S.9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under S.11. Rules as to amount of compensation.” (1) When the applicant has made a claim to compensation, pursuant to any notice given under S.9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under S.11. (2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector. (3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may, exceed, the amount awarded by the Collector." 6. There is no dispute that public notice under S.9(1) of the Act was given, individual notice under S.9(3) was served on the claimant and the public notice was published in the gazette as contemplated under S.9(5) of the Act. It is admitted that the claimant did not prefer any written statement before the Land Acquisition Officer claiming any amount as land value. A feeble attempt was made before the Land Acquisition Court to contend that the claimant's husband made an oral claim regarding the land value before the Land Acquisition Officer. But such a case was not even spoken to by the claimant's husband examined as P.W. 3. We can therefore proceed on the basis that before the Land Acquisition Officer the claimant did not state that she is entitled to land value at a particular rate. If the notices under S.9 of the Act are to be treated as proper notices, there can be no doubt that the claim for any amount in excess of what was awarded by the Land Acquisition Officer would be barred under S.27 of the Act. But the claimant contends and this contention found favour with the Land Acquisition Court, that the notices are defective and not in accordance with the statute and this by itself constitutes sufficient reason for the omission to make a claim before the Land Acquisition Officer and therefore under S.27(3) of the Act, an amount in excess of the amount awarded by the Land Acquisition Officer could be awarded by the Land Acquisition Court. 7. 7. S.9(2) of the Act contemplates that the notice shall require the interested persons to appear before the Collector (that is the Land Acquisition Officer) at a time and place therein mentioned and that such time should not be earlier than 15 days after the date of publication of the notice. In other words, there must be clear 15 days notice given to the interested persons. When such is the case, time has to be computed excluding the date of service of notice and the date fixed for appearance. The same yardstick must be adopted in computing the time allowed in the public notice which is given by way of publication in the gazette. The records show that the date for appearance was fixed as 28th October 1975, the individual notice was served on the claimant on 13th October 1975 and the gazette publication was made on 14th October 1975. It follows that clear 15 days was wanting in this case, since the date fixed was earlier than 15 days after the date of notice and the publication of the notice. In this view, the notices under S.9 of the Act are clearly defective. The question is how far such a defect will absolve the claimant from her duty of putting forward her claim regarding the amount of compensation due and how far the defect could be treated as sufficient reason within the meaning of S.27 of the Act. 8. In the decision reported in Tara Prasad v. Secretary of State (AIR 1930 Cal. 471) it was found that notice of 15 clear days was wanting and the claimant did not put forward the claim before the Collector. Dealing with the manner in which the provisions of the Act are to be construed the Division Bench of the Calcutta High Court observed as follows: "Now, it is well settled that where special provisions are made by the Legislature for compulsory acquisition of property belonging to a person, the provisions of the law must be strictly complied with ...." Dealing with the effect of the bar under S.25 of the Land Acquisition Act (which is pari materia with S.27 of the Kerala Land Acquisition Act), the Court held as follows: "The only question is whether the claimant has the right to ask the Court to take his evidence as regards the proper compensation to be paid according to the market value. In my judgment, as the provisions of the law have not been strictly complied with, it is not possible to apply the penal provisions of S.25, Land Acquisition Act, in order to prevent him from putting forward his claim before the learned Judge.................................................. but, in my opinion, if the provisions of S.9, Land Acquisition Act, have not been strictly followed as regards the service of notice, then it would be absolutely wrong to prevent the claimant from asking for proper compensation on a reference made by the Collector before the learned Judge under the Land Acquisition Act." We notice that the court relied on certain earlier decisions of the Calcutta High Court. 9. The same view has been taken by a Division Bench of the Madras High Court in the decision reported in Venkitarama Iyer v. Collector of Tanjore (AIR 1930 Madras 836). In that case also clear 15 days notice was wanting. Dealing with this aspect the Madras High Court observed as follows: "It seems to me that the spirit of the Act is that a person should have a reasonable notice served upon him in order to give him time to formulate his claim ................" Beasley, C. J., proceeded to consider the views taken by the Allahabad High Court, the Calcutta High Court and the earlier decisions of the Madras High Court and observed as follows: "I entirely agree with the views expressed by the Calcutta High Court and the Allahabad High Court in Krishna Sah v. Collector of Bareilly [1917 (39) All, 534], and this High Court in Collector of Chingleput v. Khader Mohidin Sahib (AIR 1926 Mad. 732). The stringent provisions of S.25(2) of the Act can only be applied after a notice which is strictly in compliance with S.9 sub-s.(2) and (3) has been served upon the landowner". 732). The stringent provisions of S.25(2) of the Act can only be applied after a notice which is strictly in compliance with S.9 sub-s.(2) and (3) has been served upon the landowner". (p-840) In a concurring judgment, Curgenven, J., observed as follows: "If a person makes no claim at all and the notice issued to him is found to have offended against the 15 days' rule he may be deemed to have had sufficient reason for the omission, ....................Where an officer whose duty it is to apply the provisions of an Act such as the Land Acquisition Act commits an error of procedure I think that every presumption should be made in favour of the party likely to have been prejudiced by the error .....................Expressed in general terms, the conclusion I would reach is therefore that although it may be doubtful whether the insufficiency in the notice and the defectiveness of the statement were related as cause and effect, the presumption that this must have been so has not been successfully rebutted...................................................................The claim contemplated in each of the three sub-sections of that section (S.25) is to be 'pursuant to any notice given under S.9', and whereas here the notice issued is in some respect in contravention of the terms of S.9, I think the only logical conclusion is that the penalty which S.25(2) imposes cannot be taken advantage of by the Government". 10. This Court had occasion to consider the question in the decision reported in Pappammal alias Krishnammal v. Special Tahsildar, L. A. Officer and another (1963 (1) KLR 414). This Court, following the view taken by the High Court of Madras, Calcutta and Orissa, held that where clear 15 days' notice was not given to the claimant, the bar under S.27 of the Kerala Act (S.25 of the Land Acquisition Act) cannot be applied. The same view was followed in the decision reported in State of Kerala v. Krishnaru ( 1965 KLT 975 ). In that case though the notice was defective for want of 15 days' time, the party accepted, the notice and filed a statement claiming compensation but without specifying the amount. Dealing with the question, Govindan Nair, J., (as he then was) speaking for the Bench, observed as follows: "The provision in S.9, we consider, is imperative. In that case though the notice was defective for want of 15 days' time, the party accepted, the notice and filed a statement claiming compensation but without specifying the amount. Dealing with the question, Govindan Nair, J., (as he then was) speaking for the Bench, observed as follows: "The provision in S.9, we consider, is imperative. The object is to provide sufficient time to the parties to collect information and materials necessary and to draw up the statement so as to enable them to put forward a specific claim for a specific amount. If the imperative provision is not complied with, we think that would be sufficient reason for not having put forward a specific claim for a definite amount. In fact the Madras High Court in the decision referred to as well as the Calcutta High Court have taken the view that the failure to grant 15 days' time would be a sufficient reason for the failure to put forward a specific claim. We follow the decisions and hold that the lower court has acted properly in granting enhanced compensation". 11. As against these decisions, the learned Government Pleader placed reliance on the decision reported in The Land Acquisition Officer, Malappuram v. Manavikraman Thirumulpad ( 1957 KLJ 825 ). That was a case where the notice was otherwise proper but was served on an employee of the land owner who was not authorised to receive the notice on behalf of the master. But in pursuance of the notice the landlord appeared and made his claim wherein he admitted that notice had been served upon him on a particular date (that is the date on which it was served on the employee) and this Court observed that assuming that there was some irregularity in the service, the land owner had appeared pursuant to the notice and the provisions as to notice had been sufficiently complied with. This decision cannot help the Government Pleader to get over the effect of the other decisions referred to above. The case is clearly distinguishable on facts. 12. The same question came up for consideration at the hands of a Full Bench of this Court in the decision in State of Travancore - Cochin v. Mathai and others ( 1957 KLJ 893 ). The case is clearly distinguishable on facts. 12. The same question came up for consideration at the hands of a Full Bench of this Court in the decision in State of Travancore - Cochin v. Mathai and others ( 1957 KLJ 893 ). In this case, no data was placed before the court to show the date on which the notice was served or published or the date on which the claimant was called upon to appear. On the date of the appearance, the rough valuation statement was also not ready. Under those circumstances, the Full Bench held as follows: "........... We are inclined to think that these are preeminently fit cases where the learned Judge below could have exercised his discretion in holding that there was 'sufficient reason' for the claimant's failure to make a proper claim as required by law rather than seek to decide the question of law as to whether a notice under S.9 (3) required the same period of fifteen days mentioned in S.9(2) ................................................. we hold here that the claimant was precluded by sufficient reason for making a proper claim before the Land Acquisition Authorities and that therefore the penal consequences of his failure should not be visited upon him. .................." 13. Thus, we see that the consensus of judicial opinion more or less favours the view that a defective notice under S.9 of the Act would be a sufficient reason for allowing a claimant to make an enhanced claim under S.27 of the Act. This view appears to be reasonable also. But for S.27 of the Act, a claimant would have the right to adduce evidence before the Land Acquisition Court to prove the correct amount of compensation due. Such a right would vest in the claimant where a reference is made under S.20 of the Act. It has to be remembered that a reference under S.20 of the Act can be made only on the written application of the aggrieved person as in this case. This right of the claimant to adduce the evidence and get the proper compensation due, is denied or curtailed by the provisions of S.27 of the Act. It has to be remembered that a reference under S.20 of the Act can be made only on the written application of the aggrieved person as in this case. This right of the claimant to adduce the evidence and get the proper compensation due, is denied or curtailed by the provisions of S.27 of the Act. According to S.27 of the Act, the Land Acquisition Court cannot award any amount to the claimant in excess of either the amount claimed by him where he has made a claim before the Land Acquisition Officer or the amount awarded by the Land Acquisition Officer where there has been an omission to make a claim in response to notice under S.9 of the Act. When such a restriction is imposed on the right of a claimant, the provisions dealing with the restrictions have to be construed strictly. Viewing the matter strictly, it must follow that the restrictions under S.27 of the Act would apply only where the provisions of S.9 of the Act have been strictly complied with. S.9 of the Act requires notice to be given to a claimant in such manner that he gets 15 days' time to appear before the Land Acquisition Officer and put forward his claim regarding the amount of compensation and other matters. The statute requires the claimant to be given 15 days' time, evidently to enable him to collect all necessary information and material to draw up a statement of claim. It may be that in a given case lesser number of days would be sufficient to enable the claimant to collect the material and draw up a statement. But when the statute lays down that at least 15 days' time should be given, there cannot be any presumption that lesser number of days would be sufficient for the purpose. When time granted to the claimant falls short of 15 days, the court is entitled to presume that the claimant did not have sufficient time to make his preparation and make a claim and that he has been prejudiced by the error committed by the Land Acquisition Officer. It is not necessary for the claimant to allege and prove that because the time granted to him fell short of 15 days, he has suffered prejudice. Prejudice, in the circumstances of the case, is a matter of presumption to be drawn by the court. It is not necessary for the claimant to allege and prove that because the time granted to him fell short of 15 days, he has suffered prejudice. Prejudice, in the circumstances of the case, is a matter of presumption to be drawn by the court. We therefore follow the consistent view taken by the various courts and hold that where notice issued under S.9 of the Act does not give clear 15 days time for the claimant to appear and make his claim, that would be sufficient reason for his omission to make a claim before the Land Acquisition Officer and consequently the bar under S.27 of the Act will not apply. 14. The next question relates to the correctness of the amount of compensation awarded by the Land Acquisition Officer and fixed by the Land Acquisition Court. 21 cents out of 50 cents belonging to the claimant has been acquired. According to the claimant, without constructing a compound wall between the acquired land and the remaining land, the remaining land cannot be enjoyed properly. She therefore claimed the cost of construction of the compound wall. But she did not seek appointment of a commissioner to estimate the cost of construction of the compound wall nor did she adduce other acceptable evidence to assist the court in coming to a conclusion regarding the amount. Therefore we find that the Land Acquisition Court was right in rejecting this claim. 15. The more important dispute relates to the land value due to the claimant. The Land Acquisition Officer fixed the land value at Rs. 600 per cent. This was increased to Rs. 1,500 per cent by the Land Acquisition Court. Ext. B3 is the basic document relied on by the Land Acquisition Officer. It relates to 8 cents in Sy. No. 692/2, the sale price being Rs. 5,000. This property is situate 700 metres south of the Kuravilangad junction where the M. C. Road from Kottayam and the road from Kuruppamthara meet. The property acquired is almost at the junction. Therefore, it cannot be said that the land purchased as per the basic document and the land acquired are similar in nature. There is also doubt regarding the correctness of the sale consideration shown in Ext. B3. The vendee examined as D.W. 4 has clearly stated that the entire sale consideration paid by him was not shown in the document. Therefore, it cannot be said that the land purchased as per the basic document and the land acquired are similar in nature. There is also doubt regarding the correctness of the sale consideration shown in Ext. B3. The vendee examined as D.W. 4 has clearly stated that the entire sale consideration paid by him was not shown in the document. For these reasons, we find the Land Acquisition Court was right in not placing reliance on the basic document and the Land Acquisition Officer erred in adopting rates shown in Ext. B3. 16. Two other documents were placed before the Land Acquisition Court, namely, Ext. A3 and Ext. B1. Ext. A3 is the sale deed dated 7th July 1979 relating to 6 cents of land containing trees and building sold for Rs. 18,500. The publication of S.3(1) notification in this case was on 18th December 1973. There is no data before the court regarding the value of the trees and building involved in Ext. A3. Under these circumstances the lower court was right in not accepting Ext. A3 for the purpose of computing the land value. 17. Ext. B1 is a sale deed in favour of DW 1 for four cents of land by the side of M.C. Road. Though the document is dated 21st July 1973, the evidence adduced shows that the price was fixed and paid in 1967 and possession was given also in 1967. For these reasons, the Land Acquisition Court rightly declined to place any reliance on Ext. B1 for the purpose of finding out the land value in 1973. 18. The only other material available before the court relates to a prior land acquisition in regard to a portion of Sy. No. 721 of Kuravilangad Village. In regard to that land, the Land Acquisition Officer had fixed the land value at the rate of Rs. 800 per cent. On a reference made to the Land Acquisition Court in L. A. R. No. 3 of 1972, the court increased the land value to Rs. 3,200 per cent as per Ext. A1 judgment and A2 decree. The State took up the matter in appeal to this court, and the appeal in this court was pending when the Land Acquisition court decided the present case. Because Ext. A1 finding was not final and because Ext. 3,200 per cent as per Ext. A1 judgment and A2 decree. The State took up the matter in appeal to this court, and the appeal in this court was pending when the Land Acquisition court decided the present case. Because Ext. A1 finding was not final and because Ext. A1 property is in a more important locality than the property acquired in this case, the Land Acquisition Court adopted Rs. 1,500 per cent as the proper land value in this case. It is admitted that the appeal pending against Ext. A1 has since been decided; a copy of the judgment is placed before us; it is dated 18th September 1979 in L. A. A. No. 33 of 1975. This court fixed the land value as Rs. 2,500 per cent. Admittedly, this judgment has become final. 19. A reading of the judgment of the lower court shows that some weight was attached by it to Ext. A1 judgment where land value was fixed at Rs. 3,200 per cent. But it was reduced to Rs. 1,500 per cent on the ground that the judgment has not become final and because Ext. A1 property is in a more important locality. Ext. A1 property is situate 120 feet of the south of the Kuravilangad junction by the side of the M. C. Road. The property acquired in the present case is a portion of Sy. No. 723/1. Sy. No. 723/1 lies partly by the side of M. C. Road and partly by the side of Kuruppamthara road. But the portion acquired did not touch the M. C. Road but it touched only the Kuruppamthara road. Therefore, it cannot be said that the position and nature of the two properties are identical or exactly similar. It can be said the property involved in Ext. A1 is slightly superior in location and more advantageous than the property involved in this case. But then it has to be remembered that the relevant date with reference to which the land value was fixed in L. A. A. No. 33 of 1975 is 1966 while the relevant date in this case is 1973. In other words, if the relevant date in this case is 1966, the land value to be fixed for the land involved in this case ought to be something less than Rs. 2,500. It is well known that land prices have increased between 1966 to 1973. In other words, if the relevant date in this case is 1966, the land value to be fixed for the land involved in this case ought to be something less than Rs. 2,500. It is well known that land prices have increased between 1966 to 1973. Therefore we are inclined to hold that the proper land value in this case would be Rs. 2,500 per cent. To that extent the judgment of the Land Acquisition Court has to be modified. In the result the decree of lower court is modified by fixing the additional land value payable as Rs. 39,900 together with 15 per cent of the same as solatium. These amounts will carry interest at 4 per cent per annum from 2nd March 1976 till date of payment. L. A. A. 132 of 1979 is dismissed, but under the circumstances without costs. L. A. A. 135 of 1979 is allowed in part as indicated above with proportionate costs.