Varghese Chacko v. State — 1997 DIGILAW 39 (KER)

JUDGMENT P. K. Balasubramanyan, J. 1. An extent of 0.2340 hectres in RS No. 741/14 of Muttil Village belonged to the Government and was in its possession. It is clear from the materials that the various authorities concerned would have been easily aware of the fact that this land would be required for the purpose of the Karapuzha Irrigation Project. Notwithstanding this position, the land was assigned to the appellant claimant on 22.2.1977. The patta issued to him has been withheld by the claimant from the court. Two years after that assignment, the State notified the land for acquisition under S.3(1) of the Kerala Land Acquisition Act. The notification was published on 30.10.1979. The claimant contended that he was the absolute owner of the property and was entitled to compensation for the land at the market rate as on the date of the notification and he was also entitled to compensation for the improvements standing in the property. All these claims were conceded though not as demanded by the claimant and a sum of Rs. 12,714.91 was awarded by the Awarding Officer. The property was taken possession of on 25.2.1980. Being not satisfied with the compensation awarded the claimant sought a reference under S.18 of the Land Acquisition Act. Before the court he claimed that the compensation awarded was too low, that in response to S.9(3) of the Act he had preferred a claim for Rs. 87,000/- as compensation and that he was entitled to get it. He claimed before the court that the income adopted by the land Acquisition Officer was too low and the valuation of the various improvements had been made without any necessary date or material and hence the award could not be sustained. The claim was opposed by the State contending that fair and reasonable compensation had been paid to the claimant. The garden land was valued on the basis of the improvements and the improvements were valued with reference to their age and yield. 2. In support of his claim, the claimant examined himself and examined a Commissioner who had visited the property at this instance. He also marked the price list of coffee issued by the Coffee Board for the periods 1978 - 79 to 1980 - 81. On the side of the State Special Revenue Inspector was examined as R.W.1. Though the report of the Commissioner is seen marked as Ext. He also marked the price list of coffee issued by the Coffee Board for the periods 1978 - 79 to 1980 - 81. On the side of the State Special Revenue Inspector was examined as R.W.1. Though the report of the Commissioner is seen marked as Ext. C1 in the evidence the same has not been included in the appendix to the judgment of the court below. The court below on an appreciation of the circumstances, held that the list of total improvements furnished in the award made by the Awarding Officer was correct. It also found that the value of coffee assessed by the Land Acquisition Officer has to be treated as fair and reasonable. It also found fair and reasonable, the yearly yield estimated by the Land Acquisition Officer for pepper vines. It also found that the Land Acquisition Officer had applied an exorbitant multiplier and the multiplier to be applied is only 10. It therefore held that the claimant was not entitled to get enhancement of compensation on any head but that he was entitled to get enhancement of solatium at 30% on the amount fixed by the Land Acquisition Officer as provided under S.23(2) of Act 68 of 1984, less the amount as fixed by the Land Acquisition Officer as provided under S.23(1)(a) of the Act. Being dissatisfied with the refusal of the court below to award him enhancement of compensation the claimant has approached this court. 3. The court below has found that the yield assessed and the market value adopted by the Land Acquisition Officer was reasonable and fair and the evidence adduced by the claimant did not entitle him to claim any enhancement on that ground. It also found that in adopting a multiplier of 16 the Land Acquisition Officer has erred on the side of the claimant since the proper multiplier to apply was only 10. Learned counsel for the claimant submitted that for determining the compensation due for the coffee plants the price of coffee as published by the Coffee Board must be adopted and the report of the Commissioner should have been made the basis for assessing the yield to find a higher compensation for the claimant. Learned counsel for the claimant submitted that for determining the compensation due for the coffee plants the price of coffee as published by the Coffee Board must be adopted and the report of the Commissioner should have been made the basis for assessing the yield to find a higher compensation for the claimant. The court below refused to rest its award on the report of the Commissioner for the obvious reason that the Commissioner had visited the property seven years after the date of S.3(1) notification and he would have had no opportunity either to assess the yield of the trees and the plants that were actually lost or of trees and plants that existed on the date of the notification under S.3(1) of the Act. I am not satisfied that in so doing, the court below has committed any error warranting interference by this court. 4. I find a serious infirmity in the claim of the appellant for enhancement of compensation for the trees in the property. The claimant appellant was granted an assignment of the land only on 22.2.1977. If the claimant was a trespasser into the property belonging to the Government before the assignment in his favour, he would not be entitled to any value for the trees standing on the land as on 22.2.1977. The notification under S.3(1) of the Land Acquisition Act was published on 29.2.1979. It is settled law that improvements planted by a trespasser in the land belonging to another, belongs to the owner of the soil. The maxim quid plantatur solo cedit applies in such cases. (See the decision in Rev. Fr. K. C. Alexander v. State of Kerala ( 1965 KLT 666 ) and the decision of the Supreme Court in Rev. Fr. K. C. Alexander v. State of Kerala (AIR 1975 SC 2496) affirming that decision). Therefore, any tree or plant that would have been planted by the claimant prior to 22.2.1977 would belong to the Government and there would be no question of paying any compensation in respect of those trees. Fr. K. C. Alexander v. State of Kerala (AIR 1975 SC 2496) affirming that decision). Therefore, any tree or plant that would have been planted by the claimant prior to 22.2.1977 would belong to the Government and there would be no question of paying any compensation in respect of those trees. From that point of view, the very award made for value of improvements said to have been effected by the claimant is unjustified, nor can the value of the land be determined on the basis of the capitalisation of income in such a case unless the claimant is able to establish that the trees were also assigned to him. I am therefore not in a position to accept the contention of learned counsel for the claimant that the claimant is entitled to further enhancement of the compensation. Moreover, it is clear that there was no acceptable evidence adduced by the claimant to establish that he was entitled to anything more than what was awarded by the Land Acquisition Officer towards the Compensation due to him. 5. The patta that was granted to the claimant on 22.2.1977 was not produced by the claimant. The land was assigned under the Land Assignment Act. Under S.5 of that Act, the land could be assigned subject to any rules that may be made by the Government in that behalf. Under R.8 of the Land Assignment Rules the Government could impose conditions while assigning the land. Under R.10, the land value is liable to be paid by the assignee. R.10(3) provides that the assignee was also to be liable to pay the value of trees, plants and vines if any, specified in parts A and B of appendix III of the Rules, standing on the land at the time of the assignment at such rates as may by order, be specified, by the Government. There is nothing on the side of the claimant to show that he had also taken assignment of the trees, plants and vines that were existing in the land on the day of his assignment in terms of R.10(3) of the Land Assignment Rules or that R.10(3)(b) applied to the case on hand. R.9(2) of the Land Assignment Rules provides that in cases where registry is made, patta shall be granted, in the form appendix II to these Rules. R.9(2) of the Land Assignment Rules provides that in cases where registry is made, patta shall be granted, in the form appendix II to these Rules. Condition No. 1 of the patta provides that the full right over all the trees within the grant and specified in the schedule vests in the Government. That means no tree specified in the schedule, namely, forest trees, can be assigned to the assignee. The trees referred to in part A and part B of Schedule III could be assigned in terms of R.10(3) of the Rules. Part B of Appendix III would indicate that coconut, arecanut, rubber, coffee, tea, pepper vine etc. could be assigned in that manner. In these case, it was for the claimant-appellant to clearly show that the trees, plants and vines had been assigned to him on 27.2.1977 in terms of R.10 of the Land Assignment Rules. The claimant has suppressed the order of assignment in his favour. In fact I gave a number of opportunities to the claimant to produce the order of assignment and the patta issued to him atleast in this court by adjourning the hearing of the appeal on a number of occasions. Still, claimant failed to produce the relevant documents. It can therefore only be taken that the trees, plants and vines had not been assigned to the claimant in terms of R.10(3) of the Land Assignment Rules. I therefore see no reason to award any enhanced compensation to the claimant. 6. The learned Government Pleader submitted that the award in this case was passed on 30.1.1980 and therefore, the claimant was not entitled to the benefit of S.23(1A) of the Land Acquisition Act as amended in 1984 since that Act was extended to Kerala only on 30.4.1982. He also pointed out that possession was also taken on 25.2.1980 before the amended Act was extended. In the light of the decision of the Supreme Court in State of Kerala v. Betty (1995 Supp (2) SCC 706) the learned Government Pleader contended that the court below was wrong in awarding the benefit of S.23(1A) of the Land Acquisition Act. Though I see force in this contention on behalf of the State, in the absence of any appeal or Memorandum of Cross Objection by the State, I do not think it proper to interfere with the award made by the court below in that behalf. Though I see force in this contention on behalf of the State, in the absence of any appeal or Memorandum of Cross Objection by the State, I do not think it proper to interfere with the award made by the court below in that behalf. But this aspect does show that the claimant has already obtained compensation which he might not really deserve by the adoption of capitalisation method, and also by way of the benefit under S.23(1A) of the Act. There is therefore no justification for awarding any further enhanced compensation. The appeal has only to be dismissed. 7. I cannot leave this judgment without referring to a disturbing aspect that has emerged in this case. The land was acquired for the purpose of the Karapuzha Irrigation Project. Naturally, the proposal for such a project would have been long in the anvil and the scope and needs of that project would have been clearly known to the officers concerned. It can be noted that the notification under S.3(1) of the Land Assignment Act was published on 30.10.1979. The land was assigned in this case to a trespasser into the Government land, on 22.2.1977, just two years before the date of the notification. It is difficult to imagine that as on 22.2.1977, the authorities concerned or the State, was not aware of the need for these lands for the purpose of the proposed Karapuzha Irrigation Project. Of course, there is no clear evidence in this case as to when exactly that project was launched and when exactly the plan was finalized. But taking note of what happens generally in such cases, I have no difficulty in taking it, that as on 22.2.1977, the State and the authorities concerned, would have been clearly aware that the land in question was also needed for the project. Instead of making use of the land which was already available with the Government, what was done in this case was to assign away to the land on registrary under the Land Assignment Act to a trespasser, on 22.2.1977. After making such an assignment, within two years, it was again acquired paying to the said person, substantial compensation for the acquisition. It is disturbing to find that the authorities concerned did not exclude the land needed for the project from the lands included in the proposal for assignment. After making such an assignment, within two years, it was again acquired paying to the said person, substantial compensation for the acquisition. It is disturbing to find that the authorities concerned did not exclude the land needed for the project from the lands included in the proposal for assignment. A little foresight would have saved the State a lot of money in this regard. It is quite possible that not only this extent of land but various other similar extents might have been assigned away on the eve of the acquisition for the project and by assigning away the land in this manner, substantial loss must have been incurred by the State. I think that those in the helm of affairs should apply their minds to such situation and curb the favour to assign away available Government lands to unauthorised occupants to the detriment of the State. If the lands had not been assigned away there would have been substantial saving and the cost of the project would have been considerably less. At least when a project is conceived, the authorities ought to exclude the lands that might be needed for the purpose of the project from those earmarked for assignment, in public interest and in the interests of the State. Though I sought the necessary details in this regard from the Government Pleader regarding Karapuzha Irrigation Project and when the project was commissioned, when it came into existence, when it was planned and so on, he was apparently not in a position to furnish any of those details. I am therefore not pursuing further this aspect, but I would like to remind the State and its officers that when the lands in the possession of the Government are needed or likely to be needed for a public purpose like the establishment of an Irrigation Project, they would desist from assigning away such lands and would not indulge in an assignment first and an acquisition afterwards. It would be proper for the Government to issue appropriate directions in that behalf atleast for the future. Similarly, for awarding compensation in such cases, the value of these tress which are not taken in by the assignment might also be wrongly taken into account by the authorities under the Land Acquisition Act. It would be proper for the Government to issue appropriate directions in that behalf atleast for the future. Similarly, for awarding compensation in such cases, the value of these tress which are not taken in by the assignment might also be wrongly taken into account by the authorities under the Land Acquisition Act. So as to enable the Government to issue proper directions regarding those aspects, I think it appropriate to direct that a copy of this judgment be communicated to the Chief Secretary to the Government for issuing appropriate directions in that regard. I thus find no merit in the appeal. The appeal is dismissed.