1. The above three appeals arise under the Land Acquisition Act. hereinafter called the Act. They have been preferred by the Special Land Acquisition Officer, Port, Mangalore, against a common award made by the learned Second Additional Civil Judge at Mangalore. South Kanara, in Original Petitions Nos. 501, 1220 and 1240 of 1965. Since the claimant is common in all these appeals, and the lands are situated in one locality, these appeals are also disposed of by a common judgment. Since there are cross-objections preferred by the respondent in all these appeals, they are also disposed of by this judgment.
2. The lands under acquisition in these cases, as can be seen from the award made by the Special Land Acquisition Officer, are situate at about six miles from Mangalore Town. They are in the interior, about half a mile from the main road, and within a valley in between a stretch of hills and are interspersed with huge rocks. Except for a private road formed specifically for the purpose of transporting granite 'jelly', there is no other well-laid road affording easy access to them. The details regarding each of these appeals, particularly with reference to their extent, nature and the claims of the Claimant, awards made by the Land Acquisition Officer and the Court, are furnished in the following tabular form:
3. The relevant notifications of acquisitions under Section 4 of the Act are separate and independent in each of these appeals and it is sufficient to mention that they relate to the years 1963 and 1964. It may be mentioned that nothing turns in these appeals on the particular dates of such notifications and no arguments were addressed in that behalf.
No. of the case before L.A.0.
No. of O. P. before Civil Judge.
Nature and Extent.
Claim before L. A. O.
4. In regard to the above M. F. A. No. 86/69, two special features may be noticed. In S. No. 73/7A. a dry land, there is a rock from which granite is said to have been extracted at the time of the acquisition. In regard to this, the claimant has claimed Rs. 30,000/-. The court has awarded Rs. 24,000/- only on this account independently of the value of the land on which such rock is said to be situated. Another feature arising in this appeal is regarding compensation awarded to the claimant by virtue of the fact that he was compelled to divert a channel running on his lands to a length of 300 ft. The compensation awarded by the Court in this regard is Rs. 500/-.
M. F. A. No.144/71.
No. of the case before L.A.O.
No. of O. P. before Civil Judge.
Nature and extent.
Claim before L. A. O.
O. P. 1220/65
M. F. A. No.145/71.
No. of the case before L.A.O.
No. of O. P. before Civil Judge.
Nature and extent.
Claim before L. A. O.
Road 850' x2' x 10'
*Compound wall 1000 cft.
In this case, the claim as regards the erection of a compound wall in order to protect the remaining portion of the property, still in the possession of the claimant, has been made, and the Court has awarded Rs. 500/- in this behalf.
5. Apart from the claims specified in the above statements, there was a claim as regards the compensation payable to a private road running on this land, used for the purpose of transporting granite jelly from the rock aforementioned. The learned Civil Judge has awarded a sum of Rs. 3,060/- in all. The measurements of the road have been mentioned as 850' x 10' x 2'.
6. In all the above appeals, the respondent has preferred cross-objections in regard to compensation awarded for dry, garden and wet-I lands. He has claimed that the compensation for these lands should have been awarded at the rate of Rs. 6,000/- per acre, Rs. 5,500/-per acre and Rs. 8,000/- per acre respectively. It may be mentioned at this stage that the cross-objections were confined only to the dry and the wet-I lands, In the course of arguments.
7. On behalf of the appellant in all these appeals. Sri Annadanayya Puranik, the learned High Court Government Pleader, urged the following contentions:--
(1) that the compensation awarded for the dry land at the rate of Rupees 4,000/- per acre was excessive;
(2) that compensation for the private road ought not to have been awarded having regard to the nature and use of such road and also the absence of evidence as to the expenses incurred in the preparation of such a road;
(3) that the principle adopted in the evaluation of the market value of the granite cannot be supported in the eve of law, and the Court was in error in placing reliance on Ex. C-2 and Ex. C-3 in support of its conclusion as regards compensation payable on this account; and
(4) that separate valuation of the land and the quarry was impermissible in law, and the Court should have determined the value of the land as a whole taking into consideration the special potentialities of the land for quarrying purposes.
8. We shall now proceed to consider the above contentions, in the Order they have been set out. The first contention relates to the compensation determined as payable to the dry lands under acquisition. The claim made on behalf of the respondent in regard to the dry land concerned is Rs. 6,000/- per acre except as regards S. No. 73/7B2, measuring 10 cents only, in respect at which the 'claim is Rs. 7,000/- per acre. The Land Acquisition Officer has awarded compensation at the rate of Rs. 1,000/- per acre. In regard to S. Nos. 73/7-A and 99/1C2, which measure only 2 cents, the compensation awarded by him in regard to them is Rs. 2,000/- and Rs. 4,000/- per acre respectively. On a reference to the Court of the Civil Judge, the compensation in regard to all these lands has been awarded at a uniform rate of Rs. 4,000/-per acre. In arriving at this figure, the Court has depended on a sale deed, Ex. C-1, dated 15-11-1902 under which, an extent of 4 acres and 61 cents of land has been sold for Rs. 18,500/- to a firm known as 'Quality Clay Works'.
9. The argument on behalf of the appellant was that the sale evidenced by Ex. C-l cannot at all afford a basis of determination of the value of the lands under acquisition. According to him, the land sold under Ex. C-1 was situated 3 to 4 furlongs away from the lands in question and that there are two quarry pits therein, the existence of which was a clear indication that that land was of special value to the purchaser therein. We are unable to accept this contention. We have earlier noticed that the lands under acquisition are situated in the interior far away from the road. The fact that the land sold under Ex. C-1 was 3 to 4 furlongs away from the lands under acquisition, in our view, would not show-that there is any difference in the quality of the land concerned in such sale and the lands under acquisition. The fact that there are quarry pits in the land sold under Ex. C-1, if anything, is a draw-back tending to reduce the value of the land. We see no reason, therefore, to interfere with the conclusion of the lower Court based at it was on Ex. C-1. According to the sale evidenced by Ex. C-1, the value of the land would work put to Rs. 4,000/- per acre. It is accordingly confirmed.
10. The next contention relates to the compensation awarded for the road. (After discussing the evidence the judgment concluded):
We see, therefore, no reason, to interfere with this conclusion of the Lower Court and the compensation awarded, therefore, has to be confirmed.
11. The remaining two contentions relate to the award of compensation in regard to the land and the quarry situated thereon separately. The lower Court has accepted the evidence of a retired Civil Engineer. M. U. Samithe, C. W. 5. who has spoken to the fact of having issued the certificate, Ex. C-2. Reliance has also been placed on Ex. C-3, an agreement entered into between one Kittappa, C. W. 6, and the Claimant in regard to the lease of the quarry in question. The argument on behalf of the appellant is that the Court was not justified in acting on Ex. C-3, whose genuineness is in doubt. Attention, in this regard, was invited to the fact that the stamp paper has not been purchased by any of the parties to that agreement, the implication being that it is a document got up to suit the case of the Claimant. That agreement shows that the quarry had been leased to the said Kittappa on payment of a premium of Rs. 100/- per month. It is further pointed out that the, evidence of Koraga Mooli, C. W. 4, a witness on behalf of the Claimant himself, who has spoken to the fact of paying-only Rs. 325/- per year as rent on a quarry lease taken from one Keshava Master, should have been accepted and acted upon in adopting the capitalisation method to determine the value of the quarry. An argument was also addressed that while determining the market value of the land on which the quarry is situated, namely Survey Number 73/7-A, it should not have been determined by separately assessing the value of the land and the granite standing thereon.
12. The learned Civil Judge has separately assessed the value of the land treating it as dry and has awarded compensation to the entire extent of the S. No. 73/7-A at Rs. 4,000/- per acre, notwithstanding the fact that nearly 1 and one-eighth acre, as submitted by Sri Karanth, was covered by the quarry in question. Furthermore, he has approached the question of assessment of the value of the quarry from the point of view of the total quantity of granite available and the possible profit that the claimant would have made if the same had been fully quarried for commercial purposes. On that basis, he arrives at a sum of Rs. 3,70,000/- as just and reasonable compensation payable on account of quarry. Only by way of comparison, in the light of the specific claim of Rs. 30,000/- made by the Claimant, he has examined the question from the point of view of Ex. C-3, referred to earlier. Lastly, he limits the compensation to Rs. 24,000/- as payable on account of the quarry, because of a submission made by the learned Counsel for the Claimant. The procedure followed by the learned Civil Judge is clearly erroneous and the contention urged on behalf of the appellant in this behalf has to be accepted as correct. We Shall advert to this question once again with reference to authority, after dispensing of the cross-objections filed on behalf of the respondent.
13. We turn now to the cross-objections. We have earlier referred to the fact that in regard to such cross-objections only the compensation awarded in regard to the dry and wet-I lands was pressed before us. The only argument addressed in support of these objections is based on a decision of this Court in M. F. A. No. 131/70, rendered on 18-2-1972, wherein the dry and wet-I lands had been awarded compensation at the rate of Rs. 5,000/- and Rs. 9,000/- per acre respectively. The further argument of Sri Karanth was that the lands concerned in the said appeals were situated in Kodavi village which adjoins the village in which the present lands are situated. We are unable to accept this argument.
14. It is now fairly established that in matters relating to land acquisition, a judgment of a Court in regard to similar lands or properties would be a relevant piece of evidence. This is not to say that such a judgment is binding as a precedent. The award in a L. A. case is essentially a decision on a question of fact depending on the facts and circumstances of such case, unless a question of law or principle has been settled therein. Whenever such a judgment is sought to be used as a piece of evidence, it must satisfy the usual test of relevancy and application to the facts and circumstances of the case in which it is relied on.
15. In the instant case, no material has been placed on record pointing to the similarities between these lands and the lands concerned in the appeal the judgment in which is relied upon on behalf of the respondent. In these circumstances, it is difficult to equate the lands under acquisition with those concerned in M. F. A. No. 181/70. particularly with reference to the advantages and disadvantages possessed by the lands concerned in the respective acquisitions. We, therefore, reject the cross-objections.
16. We shall revert now to the last two contentions urged on behalf of the appellant. The principle governing assessment of the value of quarries situated on lands under acquisition has been laid down in a decision of this Court in Swarni Satyanand Saraswathi v. State of Mysore, (1967) 1 Mys LJ 159. In the said case, this court has referred to the enunciation made by Lord Romer in the case of Vyricherla Narayana Gajapatiraju V. Revenue Divisional Officer. . The enunciation occurs at P. 179, and reads thus:
'For these reasons, their Lordships have come to the conclusion, that, even where the only possible purchaser of the land's potentiality is the authority that has obtained the compulsory powers, the arbitrator in awarding compensation must ascertain to the best of his ability the price that would be paid by a willing purchaser to a willing vendor of the land with its potentiality, in the same way that he would ascertain it in a case where there are several possible purchasers and that he is no more confined to awarding the land's 'poramboke' value in the former case than he is in the latter'. (Underlining is ours).
17. After referring to the above enunciation, at page 180, this is what the learned Judges say:
'It will be observed that the quantification of compensation in these cases depended upon their own facts and circumstances. The true rule which should in the case before us guide the determination of the compensation, is, that enunciated by Lord Romer in Vyricherla Narayana Gajapati Raju's case. 66 Ind App 104 = (AIR 1939 PC 93). If the decisions on which Mr. Manik Rao depended can be understood as expounding a principle at variance with that so clearly emerging from the Privy Council decision, we should in my opinion dissent from it'.
18. The learned Judges in the above case, were specifically dealing with a case of acquisition of land on which a granite hillock was situated. The question of assessment of the compensation payable for the hillock which could have been used for quarrying purpose, was directly in issue. What emerges from the above enunciation is that in such a situation what has to be evaluated is the land with all its potentialities for being used as a quarry. Although several decisions were referred to on both sides, only a few of them were read to us, and we consider it sufficient to refer only to the following cases.
19. In Secretary of State for India in Council v. Shanmugaraya Mudaliar, (1893) ILR 16 Mad 369, the Privy Council was concerned with an award of compensation for a land which has 'special adaptability' for use as a quarry. In that case, method of capitalisation of income had been adopted by the Arbitrator as well as the Courts below. The District Judge, to whom a reference had been made, found that the only evidence available to him of the value of the ownership was a lease by which the Zamindar has granted the right of quarrying over portions of the hills for five years at the rent of Rs. 140/- a year. He found that at the same rate a right of quarrying over the whole area might command a rent of Rs. 200/-. On this sum he allowed twenty-five years' purchase, bringing out the sum of Rs. 5,000/-as the value of the stone. A further sum of Rs. 124-15-0 was added for some small plots, the price of which was not in dispute. It was also agreed that the zamindar's 'peshcush' should be reduced, and that he should have liberty to remove the trees growing on the ground.
The District Judge's award proceeded on these grounds. The High Court, on appeal, altered the award of the District Judge. On appeal to Privy Council, this is what their Lordships observed:--
'It appears to their Lordships that the District Judge was right in estimating a rent for the whole of the lands instead of taking the rent actually received for part. It was the best, if not the only, method he had for getting at the market value of the ownership. As regards the number of years' purchase, though it seems large, no reasons are given why it was fixed on, nor why the High Court took a much smaller period, and their Lordships see no cause for departing from the opinion of the District Judge, who had all the parties and their agents before him. They therefore agree with the District Judge as regards the value of the zamindar's interest calculated on the footing of the rental'.
20. It is seen from the above enunciation of the Privy Council that the principle of capitalisation of the rental derived by the landlord of the land with a Quarry has been adopted. We think that in the facts and circumstances of the case that should be the method that should have been adopted by the lower Court while determining the value of the land and not on the basis of the total quantity of granite actually available on the land.
21. It is relevant to notice that in determining the compensation payable to the owner of a land acquired under the provisions of the Act, the authorities should be guided by the provisions contained in Sections 23 and 24 of the Act. It is clear from a reading of the above provisions, what has to be determined is, the value of the land with all its potentialities, quite apart from the provisions relating to damages on account of damage sustained by the land owner on account of standing crops or trees or any injurious affection to the property belonging to the Claimant. With reference to the above statutory provisions, the Privy Council in the case of has stated the general principles thus:--
'The compensation must be determined, therefore, by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. The disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy must alike be disregarded. Neither must be considered as acting under compulsion. This is implied in the common saying that the value of the land is not to be estimated at its value to the purchaser. But this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded ..... In the case of land, its value in general can also be measured by a consideration of the prices that have been obtained in the past for land of similar quality and in similar positions, and this is what must be meant in general by 'the market value' in Section 23, But sometimes it happens that the land to be valued possesses some unusual, and it may be, unique features, as regards its position or its potentialities. In such a case the arbitrator in determining its value will have no market-value to guide him, and he will have to ascertain, as best he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser for the land in that particular position and with those particular potentialities .....'Underlining is ours).
22. In the case of Daya Khushal v. Asst. Collector, Surat, ILR 38 Bom 37 = (AIR 1914 Bom 284), the High Court of Bombay was concerned with an acquisition of land possessing the 'special adaptability' for quarrying. The Land Acquisition Officer had refused to award any compensation on the ground that the appellants therein had not secured the requisite permission from the Government to quarry the rock therein under Section 65 of the Land Revenue Code, in force at the relevant time. This is what the learned Judges have observed at page 40 of the report:
'.....80 here, it seems to us that the special adaptability of this land for quarrying is a matter which ought to be considered. In the result it may or may not be that the market value of the land will be held to be enhanced owing to the special adaptability. But the question is one which, we think, ought to be included in and not excluded from, consideration. What the Court has to determine is the market value of this land, and it may be that a willing purchaser would increase the price otherwise payable for the land by reason of its adaptability for use as a quarry, and that the price so offered would still be an increase on the ordinary agricultural price .....'
23. It is clear from the above enunciations that the potentialities for quarrying possessed by the land should be taken into account in assessing the market value of the land. It is further to be seen that what has to be assessed under the Act is, the market value of the land after taking into consideration the special adaptability of the land for being used as a quarry. It seems to us, therefore, that even if the value of the quarry, situated on the land under acquisition, is assessed separately, in truth and substance what is being assessed is the market value of the land.
24. In another case of the High Court of Bombay in the Collector v. Manager. Kurla Estate, AIR 1926 Bom 223, the Court was concerned with lands which were situated at different levels. One of the contentions urged therein was that the Claimant would have derived profit from the land situated at the higher level, as while it was being levelled for building purposes, he would have been able to sell the earth so removed. This is what the Court has observed at page 225:--
'.....But we still adhere to the opinion we 'have expressed in other reference that this method of first valuing the land, and then giving an additional amount as compensation because some of the land happens to be of higher elevation and the purchaser may sell the stone or earth, removed for the purpose of levelling the land is not a proper method of valuation.....'
25. Although, the facts of that case are not in pari materia with those of the cases with which we are concerned at present, it seems to us that the principle enunciated above is of general application. The enunciations referred to earlier, clearly point to the fact that what the authorities are concerned with in an acquisition is the determination of the market value of the land with all its 'special adaptabilities'. If the land possesses advantage of a quarry, the value thereof to the owner of such land, would have to be ultimately included as the market value of the land as such.
26. We may usefully refer to two decisions of the Supreme Court, which have a bearing on the principles of valuation to be followed in land acquisition cases.
27. In the State of Kerala v. P. P. Hassan Koya AIR 1968 SC 1201. Shah, J. (as he then was) has observed, at para S of the above reports, thus:
'We agree with the trial court and the High Court that the method adopted by the Land Acquisition Officer for determining compensation payable for extinction of the interest of the holder of the land and of the buildings separately was unwarranted. In determining compensation payable in respect of land with buildings, compensation cannot be determined by ascertaining the value of the land and the 'break-up value' of the building separately. The land and the building constitute one unit, and the value of the entire unit must be determined with all its advantages and its potentialities. Under Section 23 of the Land Acquisition Act compensation has to be determined by taking into consideration the market value of the land at the date of the publication of the notification under Section 4(1) and the damage, if any, sustained by the persons interested under any of the heads mentioned in secondly to sixthly in Section 23(1) of the Land Acquisition Act'.
28. Although the above enunciation hag a direct reference to valuation of buildings, we are inclined to think that the principle stated would be equally applicable to valuation of a land with special adaptability for being used as a quarry, as in the case on hand.
29. In Chaturbhuj Pande v. Collector, Raigarh. : 1SCR412 . Hegde, J. in the context of interpreting Section 23(2) of the Land Acquisition Act. in Para 8 of the above report has observed thus:
'The High Court in our opinion was wrong in disallowing the statutory allowance permitted by Section 23(2) over the value of the trees. The High Court erred in thinking that the value of the trees falls under the second clause of Section 23(1). The first clause of Section 23 provides for determining the market value of the land acquired. Section 3(a) prescribes that 'the expression 'land' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the erath'. Therefore, the trees that were standing on the land were a component part of the land acquired. The High Court failed to notice that what was acquired are not the trees but the land es such. The value of the trees was ascertained only for the purpose of fixing the market value of the land. On the value of the land as determined, the Court was bound to allow the 15 per cent., allowance provided by Section 23(2) of the Act'.
30. It is clear from the above enunciation that in determining the total compensation payable for lands acquired, what has to be determined is the value of the land and it includes the value of trees and such other fixtures which were merely the component parts of the land acquired. In the instant cases, therefore, even if the value of the quarry were to be assessed independently, such assessment of value becomes a part of the compensation payable to land.
31. But, the learned Civil Judge has computed the value of the land and the quarry separately little realising that the value of that portion of the land on which the quarry is situated consists entirely of the value of such quarry to the owner. It seems to us that it is clearly an erroneous approach to the question, judged in the light of the enunciations referred to above. If a land has a granite quarry on it, it cannot be an agricultural land at the same time. In this view, the lower Court was clearly in error in estimating the value of the land and quarry separately thus awarding compensation in regard to both.
32. We think this fact of the problem relating to the estimate of market-value of the quarry in Question, could be viewed from another angle. The learned Civil Judge has estimated the value of the quarry to the owner at Rs. 3,70,000/- on the basis of the evidence of a retired Civil Engineer and the profits earned by a person who had taken a quarry on lease. In fact, the said estimate is based on the profits he might have derived by working the quarry by himself. Assuming that this would be the correct and proper method to determine the market value of a quarry, it seems to us that the result arrived at on that basis would be highly misleading. Several imponderable factors will have to be taken note of while adopting such a method. To earn the amount of Rupees 3,70,000/- which represents profits according to the learned Judge, the quarry has to be exhausted by working over a continuous and unbroken period running possibly into decades. The wherewithal by way of finance and skill for working it and marketing the product must be available with the owner. Even if it is worked by a lessee or a licensee, the owner of the quarry will not be getting anything out of the profits made by such a lessee or licensee. What he will get is only the rent. A further assumption must be made that one would be able to work it continuously for several years and find a market for gravel or stones so produced. Furthermore, to exhaust the entire granite available, the work in later stages will have to be done at lower levels if not in deep pits, which in their turn bring on problems of accumulation of water and increased risk and cost of working such a quarry. It is also a matter of common experience that rarely will a quarry be worked to the point of complete exhaustion of the rock. Above all, there is an inherent fallacy in estimating the profits in the manner done by the learned Civil Judge. Assuming that such a large profit could be made, albeit it is only a quarry spread over a land with an area of only 1-1/8th of en acre and situate at a distance of nearly 6 miles away from the only possible market of Mangalore Town, such profit In its entirety has to be spread over a hypothetical period of time that would be taken up to work and exhaust the quarry. It seems to us that, if allowances are made for the imponderables referred to earlier, which are by no means exhaustive, it would be well nirh impossible to predicate with any degree of certainty the time that may have to be spent in earning such profits, to say nothing about making such a huge profit as the learned Civil Judge would have us believe. Then a further Question will arise that, in the event of the entire estimated profits being paid over in advance, as representing the value of such quarry, allowance will have to be made for payment of what is commonly styled as 'counter-interest' in respect of such amount, taking into account the number of years that it will take to earn such profits.
33. For the above reasons also, we hold that the method adopted by the learned Civil Judge in estimating the value of the quarry in question on the basis of quantum of metal available, is highly impracticable and unreasonable, besides producing a grossly misleading and anamolous result, as in the instant case.
34. For the above reasons, we set aside that portion of the award of the learned Civil Judge, which has reference to S. No. 73/7-A. both as regards its value as a dry land and the quarry.' This question has arisen only in M. F. A. No. 86 of 1969. The said appeal is, therefore, partly allowed to the extent indicated herein.
35. Briefly summarised our conclusions are as follows:--(1) The award made by the lower Court in regard to compensation payable in respect of the garden and wet lands, the road, diversion of the channel and the wall is confirmed; (2) the award in regard to the compensation payable to dry land, is also confirmed, except as regards S. No. 73/7-A; (3) The cross-objections of the respondent in all the appeals are. dismissed; and (4) the compensation payable in regard to dry land, bearing S. No. 73/7-A. is set aside both as regards the land and the quarry,
36. In the result. Miscellaneous First Appeals Nos. 144 and 145 of 1971 are dismissed. Miscellaneous First Appeal No. 86 of 1969, arising from O. P. No. 1240 of 1965, is partly allowed as indicated above. The cross-objections of the respondent are dismissed.
37. We, however, think that the case in O. P. No. 1240/65 (concerned in M. F. A. No. 86/69) should be remanded to the Court of the Civil Judge at Mangalore. for a fresh determination of the compensation payable in respect of S. No. 73/7-A. in accordance with law and in the light of the observations made herein. The learned Civil Judge will proceed to restore O. P. No. 1240/65 to his file and determine the compensation payable in respect of the said land. and after such determination, modify the award made in the said case, only in regard to this aspect, accordingly. The parties are at liberty to adduced such other evidence as they may be advised.
38. In the circumstances of the cases, we direct that the parties do bear their own costs in these appeals.