STATE OF KERALA v. KRISHNA UDAYAR — 1984 DIGILAW 103 (KER)

Judgment :- 1. An extent of 62 cents of land in Puthusseri Village of Palghat Taluk, belonging to the respondent-claimant, was acquired by the Government for the purpose of widening the National Highway No. 47. The requisite notification under S.3(1) of the Kerala Land Acquisition Act (hereinafter referred to as the Act) was published in the Gazette dated 19-4-1971. The Land Acquisition Officer passed an award on 6-3-1972 as per which land value was fixed at the rate of Rs. 80/- per cent, (Rs. 9,476 93 per Hectare) and value of the buildings acquired was fixed at Rs. 52,228.40. The land acquired takes in a shop building with six shop rooms, part of a rice mill and its drying yard and a drying yard in front of a match factory. The Land Acquisition Officer awarded compensation for the portion of the rice mill and the drying yards acquired. There was no compensation awarded for severance and injurious affection. In his objections, the claimant had prayed for acquisition of the entire buildings of the rice mill and the match factory. But the acquisition was confined to two office rooms and the main hall of the rice mill building and its drying yard in front. The drying yard in front of the match factory was acquired leaving the main building unacquired. On reference under S.20 of the Act, the lower court has enhanced land value to Rs. 200/- per cent, and has also granted enhanced compensation for the shop building acquired. Compensation for severance and injurious affection was granted with respect to the rice mill and the match factory. It is against this that the State has come up in appeal. 2. Learned Government Pleader has challenged the enhancement of land value from Rs. 80/- to Rs. 200/-per cent. The Land Acquisition Officer had fixed land value at Rs. 80/- per cent on the basis of Ext. Al sale deed. The Land Acquisition Officer examined as Pw.1 has admitted that Ext. Al sale is in respect of a property situated in a different amsom about two kilometres away from the acquired property. Pw.1 has also admitted that the acquired property is in a commercially important locality in the Village and is situated on the side of the National Highway. It is also admitted that the acquired land is fit for use as a building site. The court below has relied on Ext. Pw.1 has also admitted that the acquired property is in a commercially important locality in the Village and is situated on the side of the National Highway. It is also admitted that the acquired land is fit for use as a building site. The court below has relied on Ext. B3 sale deed dated 16-5-1968 relating to two cents of land on the side of the main road about seven furlongs away from the acquired land sold at a price of Rs. 1,000/-. It has also relied on Ext. B4 judgment of the lower court in LAR. No. 178 of 1972 relating to another piece of land acquired for the purpose of National Highway. It was noticed that the property involved in Ext. B4 proceedings was not situated in a commercial locality. The value of land fixed was at the rate of Rs. 500/- per cent. Considering the importance of the locality and the value of land in Exts. B3 and B4, the court below has awarded compensation for the land acquired at the rate of Rs. 200/- per cent as claimed by the respondent. We find the land value fixed is not in any way excessive, and we confirm the decision of the court below fixing land value at Rs. 200/- per cent. 3. Objection is raised in regard to the value fixed for the shop building in the acquired land. The Land Acquisition Officer had fixed the value of the shop building at Rs. 7,240.00. According to Pw.1, the Land Acquisition Officer, the value of the building was fixed on the basis of the valuation arrived at by the P.W.D. Engineer. The P.W.D. Engineer is not examined in the case. There is also no material placed before the Court to consider the basis on which the P. W. D. Engineer is said to have valued the building. Under these circumstances, the court below was perfectly right in not accepting the valuation said to have been effected by the P.W.D. Engineer. The court below has valued the building on the basis of its rental income capitalised at 16 times. The rental income was found at Rs. 250/- per month. Two months rent was deducted towards the annual repairs and maintenance. The court below has valued the building on the basis of its rental income capitalised at 16 times. The rental income was found at Rs. 250/- per month. Two months rent was deducted towards the annual repairs and maintenance. The building was found to be in good condition, though constructed ten years prior to the acquisition, and depreciation was deducted at 5 percent of the present value of the building, and compensation was fixed at Rs. 38,000/-. According to the learned Government Pleader, valuation based on capitalisation of income cannot be accepted as a proper method for fixing the value of buildings and the only acceptable method is to value the materials used for the construction of the building as on the date of acquisition and to arrive at the present value by deducting depreciation depending on the age of the building. We are not able to accept the submission made by the learned Government Pleader that capitalisation of income can in no circumstance be a method of valuation of land with buildings. The decision of a Full Bench of this Court in Parukutty & Others v. Special Tahsildar and Land Acquisition Officer. Kozhikode, (1973 KLT. 573) relied on by the learned Government Pleader, does not lay down the proposition as urged by him. Isaac J. who worte the leading judgment stated at page 575: "It would be unwarranted to lay down any universal rule or principle for the fixation of the market value of any class of property including land with buildings. And we would not have seriously considered the proposition canvassed for by the appellants' counsel that capitalisation of the income is the only method of determining the market value of a land with buildings, but for the fact it is sought to be supported by certain passages contained in the judgment of the Supreme Court in State of Kerala v. Hassan Koya (AIR. 1968 SC 1201)." It is clear from the above passage that the Full Bench was concerned with the question posed before it as to whether capitalisation of income was the only method for determining market value of land with buildings. After quoting two passages from the decision in Hassan Koya's case Isaac J. stated as follows: "We are not prepared to find any contradiction in the above two passages. After quoting two passages from the decision in Hassan Koya's case Isaac J. stated as follows: "We are not prepared to find any contradiction in the above two passages. The sentence relied on by the appellants' counsel from the first passage was an expression of opinion on the particular facts of the case before the court, while the second passage lays down the general proposition of law; and from this passage it is clear that the market value of the land with buildings deponds on a variety of circumstances, and that the method of capitalisation of income in only a method which may be resorted to in appropriate cases." The learned judge after referring to the decision of the Supreme Court in Tribeni Devi v. Collector, Kanchi (AIR. 1972 SC. 1417), stated thus at page 577: "In the above case, the court determined the market value of the land by taking into consideration its value on the basis of capitalisation of income as well as on the basis of the value of similar lands in the locality; and the market value was fixed at a figure between the two amounts arrived at by the different methods of valuation. This decision clearly shows that no bard and fast rule can be applied for determining the market value of a property. The court must use such method or methods as would best suit to ascertain the market value. As stated by the Privy Council in Gajapatiraja v. Revenue Divisional Officer AIR. 1939 PC. 98 there is not in general any market for land in the sense one speaks of market for shares or commercial goods. In the case of land, one has to ascertain from the available materials as best as it can be done what a willing vendor might reasonably expect to obtain from a willing purchaser for the land in that particular position. In other words the market value of a land cannot be determined with mechanical or arithmetical precision; it is always a best judgment assessment on the facts of the case". The learned judge concluded at page 580 as follows: "We have already discussed in detail the various principles to be applied in determining the market value. Capitalisation of annual income is only one of the methods. The learned judge concluded at page 580 as follows: "We have already discussed in detail the various principles to be applied in determining the market value. Capitalisation of annual income is only one of the methods. Whether it is a suitable method in a given case, and if so, at what multiple of the annual income the market value can be fixed would depend on a variety of circumstances. To put it briefly, the object is to ascertain what a willing vendor might reasonably accept to obtain from a willing purchaser and the method that should be adopted to arrive at that amount Should be the one most appropriate on the date and circumstances of the case". Subramonian Poti, J. (as he then was) in a concurring judgment stated thus at page 583: "It may sometimes happen that the application of the method of capitalisation of income may not be a proper approach to find out the market value as in the case of a land with a substantial building on it away from any town, where rental value may be quite low. So would; be the case of a break-up value method in the case of land with a building in a city having an inherent potential of yielding income quite disproportionate to the investment. It is evident therefore that there can be no straight-jacketed formula as to the method to be applied uniformly in all cases of acquisition of lands with buildings". Again at page 584 the learned judge stated: "We have been taken through some decisions of the Supreme Court by counsel for the appellants in the case before us in an attempt to show that the court has frowned upon the method of determining the market value of lands with buildings thereon, by adding the break-up values. Particular reference is made to the decision in AIR. 1968 SC. 1201 and AIR. 1970 SC. 564. We fail to find in these decisions any such categorical statement of the law, as rightly pointed out by my learned brothers Isaac and Viswanatha Iyer JJ. The passage in the decision of the Supreme Court in Tribeni Devi v. Collector, Ranchi (AIR. Particular reference is made to the decision in AIR. 1968 SC. 1201 and AIR. 1970 SC. 564. We fail to find in these decisions any such categorical statement of the law, as rightly pointed out by my learned brothers Isaac and Viswanatha Iyer JJ. The passage in the decision of the Supreme Court in Tribeni Devi v. Collector, Ranchi (AIR. 1972 SC 1417) which has been referred to by me earlier, on the other hand, categorically approves of the adoption of any one or other of the methods and even a combined application of those methods to determine land value". The same view was expressed by Viswanatha Iyer J. at page 584: "One contention urged on behalf of the appellants is that the land and building must be valued as a single unit and not separately. There is no invariable rule like that. Ordinarily the valuation must be on that basis. Decisions of the Supreme Court, namely, Abdulla Jan Mohammed Jangee v. The State of Bihar (1967 (1) SCWR. 214) and State of Kerala v P. P. Hassan Koya (AIR. 1963 SC. 1201) only show that the land and the building should not ordinarily be regarded as separate units. If there is no evidence to find out the value of the land and the building as a composite property on the basis of the value of similar and comparable properties in the neighbourhood or if the capitalisation of the rent or other income received put of the property will not be a proper method in the particular facts and circumstances of the case, determination of the value on the basis that the land add the building as separate units cannot be said to be wrong and it cannot be said that the value so determined is not a fair market value". A later Full Bench of this Court in the decision in State of Kerala v. Chacko (1977 KLT. 850) stated thus at page 852: "One of the methods and probably the best, to determine the market value is to ascertain the value of land similarly situate. But sometimes such evidence may not be available. Even when evidence of transactions relating to property in the neighbourhood is available the property may not be similarly situate for reasons such as existence of building in it or considerable differences in the advantages of such properties. But sometimes such evidence may not be available. Even when evidence of transactions relating to property in the neighbourhood is available the property may not be similarly situate for reasons such as existence of building in it or considerable differences in the advantages of such properties. When the property is one which yields a regular income the determination of market value on the basis of such income is a well accepted method". A Division Bench of this Court in the decision in State of Kerala v. Purushothaman (1978 KLT. 825) stated at page 827: "The compensation payable to the owner of the land is the market value which is determined by reference to the price which a seller might reasonably expect to obtain from a willing purchaser, but as this may not be possible to ascertain with any amount of precision, the authority charged with the duty to award compensation is bound to make an estimate judged by an objective standard. It is on that basis that it had been held that the potential value of the property should be taken into account, This is because a willing purchaser in fixing the price will take into account the condition of the property not only at the time when it is being purchased, but its potentialities. No doubt the rent which an owner was actually receiving at the relevant point of time or the rent which the neighbouring lands of similar nature are fetching can be taken into account and the value can be fixed by capitalising such rent at certain multiple which should be determined according to the economic factors, like prevailing rate of interest. In many cases this court has held that in the present circumstances 16 times the annual net income would be a reasonable method in fixing the value. However, it has to be noted that this is not a conclusive method". 4. It is clear from these authorities that capitalisation of income is an accepted method of valuation of land and buildings, for ascertaining the market value of the same. In the present case the shop building is situated in a commercial locality in a village on the side of the National Highway. The building is in good condition. It is only ten years old. There are six shop rooms all occupied by traders who pay rent to the claimant. In the present case the shop building is situated in a commercial locality in a village on the side of the National Highway. The building is in good condition. It is only ten years old. There are six shop rooms all occupied by traders who pay rent to the claimant. The Land Acquisition Officer examined as Pw.l has admitted that the shop building was tenanted at the time of its acquisition. The court below has accepted the evidence of the claimant examined as Pw.l and the tenants examined as Rws. 4 to 7, who were the occupants of four out of the six shop rooms, to determine the rental income of the building at Rs. 250/- per month. Pw.l admits that he inspected the property for the purpose of the award enquiry but had not made any enquiry regarding the rental income available from the shop building. The claimant even at the earliest opportunity had stated that he is getting a monthly rent of Rs. 250/- per month from the shop building. The court below has found that the rent at Rs. 250/- per month for the shop building with six shop rooms all occupied by tenants and situated in a commercial locality is reasonable. The evidence of Rws. 4 to 7 was accepted as reliable in fixing the rent of the building at Rs. 250/- per month. There is no contra evidence relating to the rental yield of the building, nor is there anything in the cross-examination of Rws. 4 to 7 to discredit their testimony. After deducting two months rent for repairs and maintenance, the annual income of the building was capitalised at sixteen times to arrive at its market value Five percent deduction was allowed for depreciation, and the market value of the shop-building on the date of the S.3(1) notification is fixed at Rs.38,000/-. In having fixed the market value on the basis of capitalisation of income the court below was however wrong in awarding separate value for the land on which the building stands. It is only reasonable to infer that an extent of 2cents of land can be taken as the land occupied by the shop building and its appurtenant site. In having fixed the market value on the basis of capitalisation of income the court below was however wrong in awarding separate value for the land on which the building stands. It is only reasonable to infer that an extent of 2cents of land can be taken as the land occupied by the shop building and its appurtenant site. The court below should have therefore deducted a sum of Rs.400/- in fixing the market value of the building and the same can be fixed at Rs.37,600/- or in otherwords the amount of Rs.38,000/- fixed should be taken as the market value of the two cents of land and the building standing thereon. A Commission issued by the court below had valued the shop building at Rs. 35,709.90 as per his report of valuation marked as Ext. C1 in the case. There is only a marginal difference, if the material value as found by the Commissioner is also taken into consideration. We therefore accept the mode of valuation adopted by the court below, subject to the modification, that the value of Rs. 38,000/- arrived at should be taken as the market value not merely of the shop building but also of the two cents of land on which the building stands. 5. The next point urged relates to the compensation fixed under the head, Thirdly and Fourthly in S, 25 of the Kerala Land Acquisition Act. A substantial portion of the rice mill building including two office rooms, the main hall and the drying yard was acquired. The claimant had constructed additional structures to make the remaining portion of the building fit for use as a rice mill. What was acquired was the drying yard and the front portion of the rice mill. The evidence shows that the claimant had to fill up the rear portion to make it useful as a drying yard, and paddy brought to the rice mill in lorry loads had to be brought to the rear drying yard by head loads. The court below has fixed compensation for injurious affection on account of the acquisition of the drying yard and the front portion of the building where the rice mill is housed at Rs. The court below has fixed compensation for injurious affection on account of the acquisition of the drying yard and the front portion of the building where the rice mill is housed at Rs. 1,500/- In view of the fact that the claimant had to put up additional structures and had also to make a drying yard, we are of the view that the sum of Rs. 1,500/ -fixed as compensation for severance and injurious affection to the remaining extent of property on account of the acquisition of the front yard and a portion of the rice mill is not in any way excessive. The court below has also awarded a sum of Rs. 6,000/- as compensation for injurious affection of the claimant's earning falling under the clause Fourthly in S.25 of the Act. In arriving at this figure, the court below has relied on Exts. XI and X2 the account books maintained by the Palghat Marketing Society for the period 1971-72 and 1973-74 respectively. Exts. XI and X2 show that the Society was entrusting paddy to the claimant for hulling. Exts. XI (a), XI (b) and X2 (a) entries show that paddy was entrusted to the claimant for hulling during the levy seasons in 1971-72 and 1973-74. Exts. XI and X2 would indicate that the claimant was getting a profit of not less than Rs. 6,000/- from the work of hulling paddy entrusted by the Palghat Marketing Society. pw. 2 is the Manager of the Society. His evidence is that the Society was entrusting paddy to the claimant for hulling ever since the procurement by levy Order had come into force. The rice mill of the claimant was being approved by the Collector every year as the huller and other equipments were of good quality. pw. 2 has categorically stated that during the period 1972-73 no paddy was entrusted to the claimant for hulling. The evidence of the claimant shows that he could not undertake hulling during 1972-73 for the reason that the rice mill had to be reconstructed after the acquisition before it could be put to use as a rice mill. Because of the acquisition the claimant had lost the profit that he would have otherwise earned by working the rice mill during the year 1972-73. The quantum of profit fixed is based on Exts. XI and X2 and the evidence of pw. 2. Because of the acquisition the claimant had lost the profit that he would have otherwise earned by working the rice mill during the year 1972-73. The quantum of profit fixed is based on Exts. XI and X2 and the evidence of pw. 2. Compensation for the loss of earning is admissible under clause fourthly in S.25 of the Act. We do not see any valid ground to interfere with this part of the finding by the court below. 6. The next question urged before us by the teamed Govt. Pleader relates to the correctness of the award of condensation by the court below for severance and injurious affection on account of the acquisition of the drying yard in front of the match factory. It is admitted that a drying yard is essential for the working of a match factory. It is at the drying yard, matches are dried and later packed into match boxes. It is also conceded that on account of the acquisition of the drying yard, the building is rendered incapable of use as a match factory. According to the claimant, he had leased the match factory to one Madhavan Nair as per Exts. B1 and B2 on a monthly rent of Rs. 250/-. The court below has not accepted Exts. B1 and B2 and the claimant's case that it was let out on a monthly rent of Rs. 250/-is not accepted. The Land Acquisition Officer examined as pw.1 had however admitted that the match factory would have fetched a monthly rent of Rs. 80/-. Accepting this as the rental income of the match factory and deducting two month's rent for maintenance and repairs, the court below has capitalised the annual income sixteen times and, after deducting 10 per cent for depreciation a sum of Rs. 11,520.00 is awarded as compensation for severance and injurious affection for the reason of the acquisition of the drying yard of the match factory. The compensation thus awarded is the market value of the land and building where the match factory was functioning prior to the acquisition of the drying yard. The claimant in his evidence has stated that the building of the match factory is now being used as a bobbin factory as it can no longer be used as a match factory. The compensation thus awarded is the market value of the land and building where the match factory was functioning prior to the acquisition of the drying yard. The claimant in his evidence has stated that the building of the match factory is now being used as a bobbin factory as it can no longer be used as a match factory. The question before us is as to whether the court below was right in granting the total value of the land and building as compensation for severance and injurious affection. 7. The principle of compensation under the heads Thirdly and Fourthly of S.25 of the Act is that where part only of an owner's property is acquired he is entitled to compensation not only for the loss of the part taken but also for severance and other injury which may result to his other land formerly held together. The owner is entitled to compensation not only for the value of the land taken but also for all other loss he may suffer consequent on the acquisition (vide Horn v. Sunderland Corpn. (1941 (2) E.B. 26). Injury due to severance is the probable depreciation in value where lands formerly owned and occupied as one property are separated from one another consequent on the acquisition. The remaining property may suffer depreciation in value by reason of the fact that it can no longer be occupied and enjoyed as one compact holding. One of the methods adopted in awarding compensation in such cases is to value the unacquired portions of the property as it stood before and after the acquisition, and to award the depreciation in value as compensation for severance and injurious affection. The owner of the land will also be entitled to compensation for loss of earnings, directly consequent on the acquisition. By this method it may be possible to assess the damages suffered by the owner by reason of the. acquisition injuriously affecting the unacquired portion of the property. If the unacquired portion can be put to the same use as before its severance the expenses that the owner may have to incur for such alteration or addition can be assessed and fixed as compensation for severance and injurious affection. acquisition injuriously affecting the unacquired portion of the property. If the unacquired portion can be put to the same use as before its severance the expenses that the owner may have to incur for such alteration or addition can be assessed and fixed as compensation for severance and injurious affection. Unless the unacquired portion of the land is rendered incapable of profitable use the owner will not be entitled to the market value of the unacquired portion as compensation for severance and injurious affection. In the decision in Government v. The Century Spinning and Manufacturing Co. Ltd. (AIR. (29) 1942 Born. 105) Beaumont C. J., stated thus at page 116: "Suppose, for example, Government were acquiring the rest of the frontage, that is to say, the whole frontage to the sixty feet road, so that the land not acquired had no frontage at all, it is obvious that the loss in value to the land retained would be more than would be allowed for the frontage acquired. I think, having regard to the large proportion of frontage being acquired in this case, and the relatively small amount of frontage which is left with the claimants, that they are entitled to some compensation in respect of severance. I would deduct four annas from the amount allowed by the learned judge in respect of the argument advanced above, and would allow Re.1 per square yard as compensation for severance." Sen J. agreed with Beaumont C. J. and stated thus at page 118. "There is no doubt that the piece of the land left with the Claimants has suffered in its market value on account of the fact that its frontage has been considerably reduced, that it has been converted into an ackward shape and that compared with the frontage it has a large depth." A Division Bench of the Karnataka High Court in the decision in Spl. Land Acquisition Officer, Mangalore, v. Piadade Fernandes (AIR. 1977 Karnataka 28) stated the principle thus at Para.3: " The principles governing the assessment of damages consequent on severance of a land left out have been laid down by the High Court of Bombay in Government v. Century Spinning and Manufacturing Co. Ltd (AIR 1942 Bom. 105). Land Acquisition Officer, Mangalore, v. Piadade Fernandes (AIR. 1977 Karnataka 28) stated the principle thus at Para.3: " The principles governing the assessment of damages consequent on severance of a land left out have been laid down by the High Court of Bombay in Government v. Century Spinning and Manufacturing Co. Ltd (AIR 1942 Bom. 105). According to the said decision, the true principle is to see as to what would be the market value of the portion of the land left out both before and after severance. In M. F. A. No. 669 of 1971 (Kant.), the ratio of the said decision was accepted by a Division Bench of this Court as laying down the correct law. In the treatise on Valuation and Compensation by R. M. Shah and H. R. Saha (1975 Edition), the learned Authors have stated at page 221 under the heading "Measure of Damage" thus: "The measure of damage caused by the injurious affection is the difference between the market value before the injury and the market value after the injury".' The relevant date with reference to which such damages has to be assessed is not the date of publication of preliminary Notification under S.4(1), but the date of taking possession of the acquired land consequent on which the actual severance takes place and the remaining land is injuriously affected. That is clear from the several clauses of sub-sec. (1) of S.23 of the Land Acquisition Act." In Ratanlal Majumdar v. Alfred Earnest Young (AIR. 1959 Calc. 64) a Division Bench of the Calcutta High Court stated thus at page 69: "It remains now to consider the award under the head of "loss of earnings." Without the least hesitation we reject the State's extreme argument that the respondent-claimant is not entitled to any compensation under this head. It is argued that the land acquired, including the fixture machineries etc., is being fully paid for and thus the claimant is getting the capitalised value of their income. Removable machineries have been removed by the claimant and they retain their income-producing capacity. There is, therefore, no question of any loss of earnings and no question of any compensation for the same. The argument is inherently fallacious. Removable machineries have been removed by the claimant and they retain their income-producing capacity. There is, therefore, no question of any loss of earnings and no question of any compensation for the same. The argument is inherently fallacious. The compensation for the land and the fixture machineries is not the same thing as compensation for loss of the business or even of the factory with its actual and potential income value. The income which the claimant was deriving from his factory or business was not simply the product of the machineries not to speak of the fixture machineries alone. It was also the product of labour, skill etc. The loss of that income is certainly not compensated by paying for the machineries alone. This is not a case where the income is derived from only the land acquired without the assistance of any other factor so as to be fully covered by the compensation paid for the land. There the income arises wholly or totally from the land acquired and the compensation determined on the market value of the land under the clause firstly of S 23 sufficiently includes the loss of that income. The loss of earning, has however, with which we are concerned here is of a different character, the income or earning arising not merely from the land acquired (including the fixture machineries) but from other factors as well, namely, labour, skill etc. Such loss of earning does not obviously come under the clause firstly of S 23 which compensates only the loss of the acquired land but would fall under the clause fourthly of that section. Taking into consideration the award of Rs. 4,000/- under the head of cost of removal under the next clause fifthly (which should be kept in mind in the above connection in the circumstances of the present case), we do think that the claimant respondent is entitled to get under the head of loss of earnings a sum of Rs. 15,000/- in place of Rs. 10,000/-, awarded by the Collector, and the enhanced figure of Rs. 18,000/- of the Tribunal. In calculating as above, we have duly taken into consideration the claimant's inability to get a suitable site for re-establishing his business as also the extension of time, granted to him by the Collector to vacate the old site. 15,000/- in place of Rs. 10,000/-, awarded by the Collector, and the enhanced figure of Rs. 18,000/- of the Tribunal. In calculating as above, we have duly taken into consideration the claimant's inability to get a suitable site for re-establishing his business as also the extension of time, granted to him by the Collector to vacate the old site. We have practically accepted the Tribunal's basis of calculation, namely, two years' loss of earnings at the rate of Rs. 9,000/- per annum, and made suitable deduction for the extension period of 3 to 4 months which the claimant obtained from the Collector for delivery of possession. We think that will be a fair assessment of the loss of earnings or the compensation therefor which the claimant can legitimately claim in the circumstances of this case. We assess it accordingly." 8. We have already adverted to the fact that the building which had been used as a match factory is now being used as a bobbin factory. It cannot therefore be said that there is a total loss of earning from the factory for the reason of the acquisition of its drying yard in front. The principles discussed above are not adverted to by the court below in awarding compensation for severance and injurious affection with respect to the acquisition of the drying yard in front of the match factory. We therefore set aside this part of the decision of the court below and remand the case for fresh consideration of the question of compensation for severance and injurious affection relating to the match factory in the light of the observations and directions contained in this judgment. 9. The learned Govt. Pleader submits that the court below was wrong In awarding solatium on the compensation awarded for severance and injurious affection. There is no such point raised in the memorandum of appeal, nor is court-fee paid for such relief. We therefore decline to entertain the plea raised for the first time in arguments without there being an appeal properly constituted for such relief. 10. The result therefore is we confirm the decision of the court below in regard to the land value. Compensation awarded for the shop building by the court below will take in also the value of 2 cents of land on which the the building stands. 10. The result therefore is we confirm the decision of the court below in regard to the land value. Compensation awarded for the shop building by the court below will take in also the value of 2 cents of land on which the the building stands. We confirm also the quantum of compensation fixed for severance and injurious affection for the reason of the acquisition of a portion of the rice mill and its front yard. We set aside the decision of the court below in so far as it relates to the award of compensation for severance and injurious affection relating to the match factory and remand the case to that court for fresh disposal in the light of the observations and directions contained in this judgment. The parties are allowed to adduce evidence on the point remanded for fresh consideration. The appeal is allowed to the extent indicated above and dismissed in other respects. The respondent is entitled to proportionate costs to the extent we have confirmed the decision of the court below, and the appellant State will suffer its costs in this appeal.