1. These are an appeal and a cross-appeal, preferred by the Special Land Acquisition Officer, West Coast Road, Mangalore (hereinafter referred to as L. A. O.) and the claimant respectively. They are directed against an award made in O. P. No. 115 of 1963, on 28-11-1966. by the principal Civil Judge, Man-galore, they are therefore, disposed of by a common judgment.
2. By a Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the L. A. Act) published on 9-2-1961, 54 cents of dry land in S. no. 43/6-A- 1-B of Kanakandy village was acquired for the purpose of construction of an approach road to Nethravathi bridge near Mangalore. There were also some buildings on the land whose total extent, in the ownership of the claimant, was 1 acre 20 cents and formed a part of the southern portion of the aforesaid number. It is not in dispute that the said land was sloping and really formed part of a small hill, and the village of Kanakandy. in which the said land is situate, was situated lust outside the Municipal limits of Mangalore Town.
3. Before adverting specifically to the compensation awarded by the Court in regard to various heads of claims, it will be necessary to set out the claims made by the claimant, in response to the notice issued under Section 9, and in his application for a reference under Section 18 of the L. A. Act. in order to appreciate the contentions urged on behalf of the parties. It is relevant to note that some of the claims relative to severance and injurious affection are mostly based on the proposed road lying about 40' (feet) below the level of the remaining portions of the above survey number. By the formation of the said road the land became divided into two strips the eastern portion having an area of 16 cents and the western portion 56 cents. It seems to us prima facie that the formation of such a road by the acquiring authority cannot be made a basis for determination of damages payable under the L. A. Act It is clearly a case of exercise of a right of ownership vested in the acquiring authority, and. if at all, it may give rise to a cause of action in tort, arising subsequent to such acquisition. We however, do not propose to express any concluded opinion on this question, as the compensation awarded in regard to some of these lands is either small or clearly not supported by an appropriate claim made before the L. A. p., and, therefore, the questions arising in this behalf can be disposed of otherwise.
4. Before the L. A. O., the Claimant claimed compensation for land at the rate of Rs. 50,000/- per acre, and for value of improvements and damages for severance, injurious affection and loss ofearnings', as follows: (1) Rs. 1200/- towards 2 pillars and gates; (2) Rs. 1, 700/-towards loss of use of an approach road; (3) Rs. 2,700/- towards compound wall;
(4) Rs. 9,000/- towards cost of a well;
(5) Rs. 11.000/- towards cost of 'whole building' although a small portion only of such buildings was affected; (6) Rs. 260/- towards expenditure incurred for digging pits for planting cocoanut sapling; (7) Rs. 1,000/- towards the increased cost of labour, for digging another well (8) Rs. 10,000/- towards 'loss of earnings'.
5. In addition to the above, a claim for injurious affection caused on account of the cutting off of the eastern bit of land of an extent of 16 cents, has been advanced alternatively. It is in the claimant's own words, as follows:--
'The claimant, therefore, submits the Government is either bound to acquire the said eastern block of land with the buildings etc.. and pav the claimant the value etc.. thereof, or pay an amount equal to the value thereof as damages.' In this connection it is pertinent to note that the first part of the claim has relevance to the application of the provisions of Section 49 of the L. A. Act. and the second part nowhere specifies the sum claimed in concrete terms. But it seems to us that the absence of reference to any specific sum is not of much materiality if we were to look at the other circumstances of the case. There is a specific claim as regards the value of the land in another part of the claim. Therefore, it is reasonable to predicate that the claim in this behalf has also to be computed at that rate either as value of land or damages for such severance or incurious affection. We have referred to this aspect as it has relevance to a point sought to be made out on behalf of the L. A. O.
6. We now turn to the claim as can be gathered from the application under Section 18 of the Act. The compensation claimed herein is as follows (1) Rs. 50,000/- per acre towards land f2) Rs. 11,000/- towards the cost of the 'whole building' standing on the 'eastern block' f3) Rs. 1700/- towards the approach road (4) Rs. 10,000/- towards injurious affection as a result of the claimant having to sink two wells; (5) Rs. 10,000/- for 'loss of earnings'; (6) Rs. 10,000/- for severance; (7) Rs. 15,000/- for another building; and f8) Rs. 25,000/- ostensibly towards expenses for starting the piggery and poultry business elsewhere. It is clear from the above that the compensation as claimed before the L. A. O. by way of damages for severance and injurious affection, has been considerably improved upon and supplemented in some respects, which is clearly impermissible in law.
7. The learned Civil Judge, after a reference to Court, determined the compensation as follows:--
(1) Rs. 4,000/- per acre for land;
(2) Rs. 26,640/- towards the value of buildings;
(3) Rs. 4.000/- per acre for 16 cents of land comprised in the 'eastern block';
(4) Rs. 3.346-25 for compound wall and injurious affection in regard to 'western block'. No compensation has been awarded in regard to 'loss of earnings' and other items.
8. Aggrieved by the said award, the claimant has preferred M. F A. No. 110/67 and the L. A, O. M, F. A. No. 216/67.
M. F. A. No. 110 of 1967.
9. It is convenient to dispose of M. F. A. No. 110/67 first On behalf of the claimant-appellant Sri D'sa. the learned counsel pressed two contentions before us. The contentions are that compensation for land should have been awarded at the rate of Rs. 15,000/- per acre and towards 'loss of earnings' at least Rs. 5,000/-.
10. In regard to the claim for 'loss of earnings' the learned Civil Judge has come to the conclusion that there was no evidence to support. He has incidentally no doubt observed that the claimant could start a business somewhere else with the help of the compensation awarded in respect of the buildings. The criticism levelled by the learned Counsel relative to the latter observation is fully justified. It cannot at all be made a ground for reflecting a claim on account of 'loss of earnings'. But that apart, we are satisfied that there is no credible evidence placed on record on this; point. This head of claim ordinarily has relevance to diminution of profits from a business brought about as a consequence of acquisition. Any claim on this account has to be established by adducing evidence pointing to efforts made to secure an alternative premises, loss of goodwill on account of fall in the customers, the difference in the profits hitherto made and likely to be made in the new premises and whether the present premises are so wholly unsuitable as to compel him to change the premises. These are but a few of the considerations that should weigh in determining the compensation payable under the head of 'loss of earnings'. In the instant case, there is no such evidence at all Moreover, it seems to us that this kind of injury is nothing but a species of injurious affection, resulting from an acquisition of a trading or commercial premises. In the case on hand there is evidence to show that only a small portion of one of the buildings is affected by the acquisition. It is no doubt true that the coition of the land on which such Piggery' and poultry are situated has only an area of 16 cents. Apart from the interested testimony of the claimant himself, we find it difficult to accept the position that the business cannot be profitably carried on merely because of a difficulty of access to the bits of land left over after acquisition and in the possession of the claimant. We therefore, reject this contention,
11. We turn now to the enhancement claimed in regard to compensation for land. Before us, in addition to relying On the oral and documentary evidence adduced on behalf of the appellant, attention was invited to a decision of this Court in M F. A. No. 143 of 1965 and M. F. A. No. 6 of 1968 (Mys.) the common judgment in which was rendered on 12-2-1971. It is clear from the said decision that in M. F..A. No. 6 of 1968 (Mys). the land concerned was a portion of the same survey No. 43/6-A 1-B 2. as the one dealt with in the present case. The L. A. O. therein had appealed against the determination of compensation for land at Rs. 15,000/- per acre. The Notification of acquisition in the said case is dated 9-2-1961. and is the same as the one in the case on hand. This Court confirmed the award and dismissed M. F. A. No. 6/ 68. In view of the circumstances referred to above, we think that it is just and proper that the compensation for land be fixed in the present case also at the same rate.
12. M. F. A. No. 110/67, is therefore, partly allowed to the extent indicated above. The compensation for the land acquired, namely 54 cents will, therefore, have to be awarded at the rate of Rs. 15,000/- per acre. The claimant will be entitled to statutory allowance of15 Per cent on such enhanced amount and Interest on the aggregate of the said sums at 6 per cent per annum from the date of possession to the date of payment.
M. F. A. No. 216/67
13. This appeal Is by the L. A. O.
On behalf of the appellant. Sri B. K. Ramachandra Rao. the learned Additional Government Advocate, urged the following contentions: (11 That the lower Court was in error in awarding compensation to the portion of the land, with an area of16 cents, comprised in the eastern block; which had not at all been notified for acquisition (2) that the lower Court further erred in awarding compensation for a building in regard to which no specific claim had been made before the L. A. O., and the land on which it was standing had not been acquired; (3) that the lower Court was not justified in determining the full value of the buildings as compensation payable when only a portion was effected by the acquisition ascan be seen from the sketch and other evidence available in the case; (4) that at any rate, compensation in excess of Rs. 11,000/- which was the claim before the L. A. O. in respect of the 'whole of the building' could not have been awarded, albeit the claim in this behalf has been considerably improved upon in the application under Section 18 of the L. A. Act; (5) that with regard to the western block' of the land, left over with the claimant, the Court was not Justified in awarding compensation on the ground of injurious affection, when there was no claim in regard to it and (6) that no damages or compensation could have been awarded in regard to the compound wall in the absence of a claim by the claimant before the L. A. O.
14. We shall now proceed to deal with the above contentions. It is convenient to deal with contentions 1 to 4 together.
15. The learned Civil Judge in awarding compensation to the unacquired land and buildings, comprised in the eastern block, has mainly relied on an order made by him on an interlocutory petition. I. A, 852/64. preferred by the claimant on 15-4-1965. By the said application the claimant requested for compensation being determined in regard to the whole of the land and the building comprised in the eastern block, after directing the Government to acquire them, as it had become wholly useless for him. The Court allowed the application and proceeded to determine the compensation accordingly. We are clearly of opinion that the procedure followed by the learned Civil Judge cannot be supported in law.
16. Section 49 of the L. A. Act provides that the provisions of the Act shall not be put in force for the purpose of acquiring apart only of a house manufactory or other building, if the owner desires that the whole of such premises shall be acquired. It further provides for the withdrawal of such expressed desire by the claimant before an award is made. Provision has also been made for a reference to a Civil Court in case a question were to arise whether the land proposed to be taken does or does not form part of a house or such other premises as aforesaid. Sub-section (2) of that section provides for the exercise of an option to acquire the whole of the land if compensation claimed for severance under the clause 'thirdly' of Section 23(1) is excessive or unreasonable. Sub-section (3) of the section provides for dispensing with the necessity of following the procedure enjoined by the provisions of Sections 6 to 10 in case the Government decides to acquire the whole of the land as per Section 49(2) aforesaid.
17. It is therefore, clear from a combined reading of the above provisions that if any question relative to the above matters were to arise, a reference, within the scope and ambit of the above provisions, can be asked for ordinarily before an award under Section 11 is actually made. Not having asked for such a reference, the Court has no jurisdiction to allow it to be raised for the first time in a reference under Section 18 of the Act. Moreover, it seems to us, the provisions of Section 49(1) and Sub-clause (4) of Section 23(1) refer to alternatives, which are open to a claimant to adopt. It is no doubt true that the claimant in the instant case has indicated that the land and building comprised in the eastern block should be so acquired. But this plea, as we have earlier set out, has been urged in the alternative, the alternative being that he should be awarded damages in respect of the land and building remaining based on their market value. The Land Acquisition Court is bound to consider it in the light of the relevant clause relative to severance and injurious affection. But this is not equivalent to saying that their market value should be determined treating them as under acquisition.
18. But what the court has proceeded to do in the instant case is to award compensation treating the land and building in question as under acquisition. We are unable to see that such a procedure is warranted by law. Hence the award relating to compensation for the 16 cents comprised in the eastern block and the buildings standing thereon cannot be sustained. The contention urged in this behalf, on behalf of the L. A. O., therefore has to be accepted.
19. In this context it is useful to make one more observation which has relevance to the procedure to be adopted in awarding compensation for injurious affection or severance within the meaning of the relevant clauses of Section 23 of the L. A. Act. If a building is injuriously affected by an acquisition, what a court has to see as whether the building left standing can be utilised at all by effecting suitable repairs or otherwise. If it is possible to repair and restore its utility, the cost of effecting such repairs together with the actual loss of value on account of the portion acquired would ordinarily afford sufficient compensation for the loss suffered bv a claimant. If the subject-matter is land, the diminution in the value of land, left with the claimant, when compared with the value of the land acquired, could form the basis for compensation for severance. It is no doubt true that this might involve an estimation of the market value of the land so left out independently and sucha course would further involve an element of guess work on the part of the court as well as the claimant. But this cannot be helped. It is sufficient to observe that it has to be an educated (adjudicated?) and therefore ought to be based on some reasonable material.
In the result, the portion of the award under appeal. relating to the compensation awarded in regard to buildings and the 16 cents of land facing the eastern block, which was not under acquisition, has to be set aside. The award stands modified accordingly. But it is to be seen that a portion of the building is in interests of justice (sic) we remand the case to the lower court for a fresh determination of the question of compensation payable in regard to injurious affection and severance, in accordance with law and in the light of the observations made therein. The learned Civil Judge, after the determination of this question will modify the award in the light of such a decision, such modification being limited only to the aspect mentioned herein, and determine the total compensation payable, including statutory allowances and interest. We wish further to observe that we express no opinion on the question whether the claimant would be entitled to compensation in regard to buildings in excess of Rs. 11,000/- claimed by him before the L. A. O. This question Is left open for consideration by the Lower Court.
20. The next two contentions relate to the damages awarded for injurious affection and compound wall of the Western block, with an extent of 56 cents. Both items together have been awarded Rs. 3.146.25. The argument on behalf of the appellant is that there is no specific sum claimed by way of compensation before the L. A. O. and, therefore, the claimant would not be entitled to _any compensation. It is true that the claimant has not claimed any specific sums by way of compensation in his statement before the L. A. O. and no compensation has been awarded by the L. A. O. on that account. It is settled law that in land acquisition cases, a court cannot award compensation in excess of what is claimed pursuant to a notice under Section 9, and it would always be open to such a claimant to reduce such a claim at any stage. If no specific claim is made before the L. A. O. end the L. A. O. in his award has not awarded any compensation it would not be open to a court to award any compensation, unless perhaps, the matter has been first dealt with under Sub-section (2) of Section 25 of the Act. In the instant case, the court has merely proceeded on the ground that the claim in this behalf was legitimate and awarded compensation accordingly. This isclearly impermissible. It can be seen from the statement of claim before the L. A. O., that the only reference to such injurious affection and severance, in regard to western block, is found in para. 6 of such statement and it is as follows:--
'The remaining plots on either side will have to be bounded with high masonry walls to prevent from falling down 40 feet below.'
This statement is neither here nor there. It cannot also be correlated to any other part relating to injurious affection relative to western block. Therefore, it has to be held that there is no claim et all by the claimant in this behalf. Moreover, if a compound wall was already existing and compensation has been awarded on that account, a claimant would not be entitled to further compensation for putting up a wall. Such a course, in our view, would amount to payment of compensation twice over. But in view of our earlier conclusion that in the absence of a claim under these heads; the court could not award compensation on that score, the contentions of the appellant in this behalf deserve to be upheld. We accordingly set aside the portion of the award relative to these items. The Award under appeal, therefore, stands modified to the extent indicated herein.
21. Briefly summarised, our findings are:
1. The compensation payable in regard to the 54 cents of land acquired must be computed at Rs. 15,000/- per acre and the award modified accordingly. The claimant in M. F. A. No. 110/67 would also be entitled to statutory allowance on such enhanced compensation and 6 per cent interest on the aggregate of the said sums, computed from the date of possession to date of payment.
2. The compensation awarded in regard to the land and buildings in regard to the 16 cents of land, comprised in eastern block, is set aside and the award modified accordingly.
3. The compensation awarded in regard to the western block respecting compound wall and on account of severance is also set aside, such amount together being Rs. 3.146.25 (Rs. 1,120 plus 2,026.25). The award stands modified accordingly.
4. Except for the above modifications, the award stands confirmed.
22. In view of the second of the above conclusions, the matter stands remitted to the court of the Civil Judge, Mangalore, and the learned Civil Judge will proceed to restore C. P. No. 115/63 to his file and redetermine the compensation payable for severance and injurious affection in regard to eastern block.
measuring 16 cents, and after such determination proceed to modify the award accordingly, only as regards this aspect of the case.
23. In the result, both M F A. Nos. 110/67 & M. F, A. 216/67 are partly allowed to the extents indicated above. Since the matter stands remanded as indicated above, we direct that the parties should be at liberty to adduce such further evidence as they may be advised, on the limited question raised herein.
24. In the circumstances, parties are directed to bear their own' costs in these appeals.