JACOB Vs. STATE OF KERALA

JUDGEMENT

(1.) THE claimant in L. A. R. No. 50 of 1987 on the file of the court of the Additional Subordinate Judge, Irinjalakuda is the appellant. THE appeal is directed against the judgment and decree in LAR No. 50 of 1989 to the extent it is against the appellant. Appellant is the owner of 19. 5 cents of land with a building, out-house and other structures comprised in Survey Nos. 620/4-6 and 621/1 of Vadama Village in Mukuhdapuram Taluk, which was acquired for the purpose of running a Post Office at Mala Junction. THE Post Office is functioning in the said building located in the acquired property since 1964. S. 3 (1) notification for acquisition of the property for running the post office was issued on 31. 8. 1979 and published in the Gazette dated 13. 10. 1979. THE appellant-claimant claimed the land value at the rate of Rs. 30,000. 00 per cent before the Awarding Officer as well as before the Reference Court . He claimed Rs. 2,00,000. 00 for the building, Rs. 25,000/- for compound wall, Rs. 5,000/-for the well, Rs. 25,000/- for the out-house and Rs. 14,000/- for coconut trees. However the Land Acquisition Officer passed an award dated 15. 4. 1986 granting a sum of Rs. 43,192. 14 towards land value at the rate of Rs. 2,310. 00 per cent ie. at the rate of Rs. 5,115/- per Acr e. He has given Rs. 300/- towards value of trees and Rs. 51,761. 00 towards value of structures. Appellant received the amount under protest and the matter was eventually referred to the Reference Court under S. 18 of the Land Acquisition Act, 1894 (for short the act) for determination of the enhanced compensation. THE Reference Court has enhanced the land value from Rs. 2,310/- to 3,000/- per cent and rejected the claim for enhanced value of structures and improvements. Aggrieved by the judgment and decree, the appellant-claimant has filed the present appeal. In this appeal, the appellant-claimant has limited the land value at the rate of rs. 10,000/- per cent, claiming a total amount of Rs. 1,30,886. 00. He has limited the claim of compensation for structures and improvements to Rs. 50,339/ -. THE total compensation claimed in the appeal is Rs. 1,87,125/ -.

(2.) HEARD counsel on both sides. The question to be considered is whether the appellant is entitled to get enhanced compensation and whether the compensation already granted is fair and reasonable.

(3.) ON the other hand a perusal of Ext. A5, we are satisfied that it can be accepted as a safe criterion in fixing the value of the property acquired. Under Ext. A5 dated 17. 6. 1983 an extent of 4 cents of land with a building thereon was conveyed for a sum of Rs. 45,000/ -. Ext. A5 property was again sold in 1991 as per Ext. Aft. document for a sum of Rs. 40,000/- without the building. PW5 who was examined to prove Exts. A5 and A6 has deposed that the acquired property is located in a more important locality than the property conveyed by Exts. A5 and A6 as it has road frontage on both sides whereas Ext. A5 property has road frontage only on one side. Nothing has been brought out in cross-examination to discredit this witness. No doubt, learned government Pleader argued that no reliance can be placed on Exts. A5 and A6 as they are post notification documents. We do not agree. There is no inflexible rule that invariably in all cases post notification documents cannot be looked into to a certain the market value of the property acquired. The test to be applied in such a case is to find out whether after the publication of the notification, the price of the lands in the locality has increased which has to be determined on the facts proved in the case and the onus to prove such facts is on the party who objects to the consideration of such sale transactions and where there is no such proof, they can be taken into consideration. The Apex Court in Chimanlal v. Special. Land Acquisition Officer, Poona (AIR 1988 SC 1652) ruled that even post notification documents can be taken into account if the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. In the decision reported in Mehta Ravindrarai ajitrai v. State of Gujarat (AIR 1989 SC 2051) the Supreme Court reiterated the principle that where the sale of land adjacent to acquired land was cited as instance for determination of market value, the same could not be altogether ignored merely because it was a post-acquisition sale when there was no evidence indicating that there was sharp or speculative rise of the land after acquisition. If the post-notification document aforesaid viz. , Ext. A5 is accepted, the appellant-claimant is entitled to enhanced compensation. The claim of the appellant is also fortified by Ext. Cl Commission report which shows that the property acquired is situated in a very important locality. It has not come out in evidence that as a result of the acquisition of the property, there was spurt in the value of the land in the locality. In the absence of such evidence relating to hike in the price of the land, we do not find any reason to ignore Ext. A5 altogether in fixing the market value of the land. Of course, some deductions from the price indicated in Ext. A5 sale deed has to be made taking into account factors such as rise in the price of land after acquisition. Accordingly, taking note of the principles laid down by the supreme Court and having regard to the totality of the facts and circumstances of the case brought to our notice, we fix the land value of the property acquired at Rs. 7,500/- per cent instead of Rs. 3,000/- per cent fixed by the reference Court. ON the question of claim of the appellant for enhanced compensation to the building, the compound wall, well, out-house and coconut trees we are of the view that the amount awarded is fair and reasonable and the same does not call for any enhancement. In the result, we allow the appeal and set aside the judgment and decree of the court below in so far as it is against the appellant by enhancing the land value from Rs. 3,000/ -to Rs. 7,500/-per cent. The appellant will also been titled to get all the statutory benefits under Ss. 23 (1a), 23 (2)and 28 of the Land Acquisition Act, 1894, as amended by Act 68 of 1984 on the amount of compensation enhanced by us, as per this judgment. However, we would make it clear that interest under S. 28 of the Act cannot be claimed on the amount of solatium. Additional compensation for structures stands rejected. Appeal is allowed in part to the extent indicated above with costs. . .