STATE OF KERALA & ANOTHER Vs. KRISHNA UDAYAR

JUDGEMENT

(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 Section 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 Section 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. Learned Government Pleader has challenged the enhancement of land value from Rs. 50/ - to Rs. 200/ - per cent. The Land Acquisition officer had Fixed land value at Rs. 40/ - per cent on the basis of Ext. A1 sale deed. The Land Acquisition Officer examined as P.W. 1 has admitted that Ext. A1 sale is in respect of a property situated in a different amsom about two kilometres away from the acquired property. P.W. I 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 l6 -3 -68 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 L.A.R. No. 178 of 1978 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 was fixed 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.

(2.) 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 P.W.I, 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 building was found to be in good condition, though constructed ten years prior to the acquisition, and depreciation was deducted at 5% 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 Parukutti & Others v. Special Tahsildar and Land Acquisition Officer, Kozhikode, (1973 K.L.T. 573) relied on by the learned Government Pleader, does not lay down the proposition as urged by him. Issac, J. who wrote the leading judgment stated at page 575.

(3.) THE next point urged relates to the compensation fixed under the Head Thirdly and Fourthly in Section 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 till 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 on the front portion of the building where the rice mill is based 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. l,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 Section 25 of the Act. In arriving at this figure, the court below has relied an Exts. XI and X2 the account books maintained by the Palghat Marketing Society for the period 1971 -72 and 1973 -74 respectively. Exts X1 and X2 show that the Society was entrusting paddy to the claimant for hulling. Ext. X1 (a), X1 (b) and X2 (a) entries show that the paddy was entrusted to the claimant for hulling during the levy seasons in 1971 -72 and J 973 -74. Exts. X1 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. P.W. 2 is the Manager of the Society. His evidence is that the Society was entrusting paddy to the claimant for hulling eversince 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. P.W.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 P.W. 2. Compensation for the loss of earning is admissible under clause fourthly in Section 25 of the Act. We do not see any valid ground to interfere with this part of the finding by the court below.