KOYAPPATHODI M AYISHA UMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal by special leave is against the judgment and decree of the Kerala High Court dated June 11, 1975 made in A.S. No. 764 of 1972. The notification under Section 3 of the Kerala Land Acquisition Act, 1961 (Act 21 of 1962) was published in the Gazette on February 28, 1967 acquiring six acres of land in the city of Calicut to construct staff quarters of P and T of Govt. of India. The Land Acquisition Officer by award dated February 29, 1969 awarded compensation .Rs. 230 per cent. and also the value of the trees by capitalisation method in a sum of Rs. 2,69,421.55 p. towards the land improvement together with 15 per cent. solatium and 4 per cent. interest. On reference, the Civil Court enhanced the market value by judgment and award dated February 9, 1972 at Rs. 500 per cent. i.e., in total Rs. 3,00,000 towards land value and confirmed the award of the Land Acquisition Officer of 2,69,421.55 p. towards land improvement making in all 5,69,421.55 p. with solatium at 15 per cent. and interest at 4 per cent. from the date of dispossession. In the appeal by the State against the enhanced compensation, it was contended that the Civil Court committed grave error in fixing market value separately to the land and the trees on capitalisation basis to make up the compensation. That contention has found favour with the High Court and it set aside the award of the Civil Court of the value of the land of Rs. 3,00,000 and confirmed the award of Rs. 2,69,421.55. Calling in question the reversing decree of the High Court, this appeal has been filed.

(2.) Two contentions have been raised by Shri Padmanabhan, the learned senior counsel for the appellant . Firstly he argued that there is an intensive cultivation in the acquired land not only of the fruit bearing trees therein but also using the vacant space for other short term crops to establish which the appellant sought remand to the Civil Court to adduce additional evidence under 0. 41 of Rule 27 etc. The High Court had wrongly rejected the request for additional evidence. We find no force in the contention. It was not the case that the appellant was prevented to adduce evidence in this behalf. Remand under 0. 4 1, R. 27, C. P. C. cannot be, made to adduce fresh evidence, when though available but was not adduced.

(3.) Even otherwise it was further argued that the land and the trees together constitute the value of the acquired lands and so are separately valued which would reflect the true and correct market value. The Civil Court has correctly adopted the method and the High Court is unjustified in interfering with the award of the Civil Court. It is also further contended that the land Possessed of potential value as building site and, therefore, the reliance by the Civil Court on Ex. A.1 dated February 19, 1964 which worked out at Rs. 400 per cent and Ex. A.2 dated February 17, 1967 under which 14 cents were purchased worked out at Rs. 556 per cent and award of market value . Rs. 500 per cent by the Civil Court was not illegal. Ex. B.1 under which Rs. 230 per cent accepted as claimed by the State cannot be relied upon as the document dated June 3, 1966 does not relate to the lands in the neighbourhood. Admittedly they are situated six furlongs away from the limits of Calicut city and one mile from the acquired lands. On the other hand, the lands under Exs. A.1 and A.2 are situated one furlong from the acquired lands. Therefore, they provide the comparable sales for fixation of market value. The second contention is that the appellant is entitled to 30 per cent solatium, under S. 23(2) of the Land. Acquisition Act 1 of 1894 as amended under the Land Acquisition Amendment Act 68 of 1984. The learned counsel appearing for the State has resisted the contentions. He argued that Ex. A. 1 and A. 2 relate to small extent of 5 cents and 14 cents together with the buildings situated therein. Therefore, when a large extent of six acres was acquired they offer no comparable price. Small plots always fetch higher price and that, therefore, they cannot form safe basis to fix the market value at Rs. 500 per cent. He also further contended that the lands and the trees cannot be valued separately. The Court should adopt only either the value of the land or income of the trees with suitable multiplier but not both. The High Court is, therefore, well justified in rejecting the sale deeds and the total valuation and confirmed the capitalisation method of valuation. He also contended that the Land Acquisition Act 1894 and 1984 Amendment Act have no application since acquisition proceedings were admittedly taken under the Kerala Land Acquisition Act.