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Appu Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 84 of 1973
Judge
Reported inAIR1977Ker78
ActsKerala Land Acquisition Act, 1962 - Sections 3, 9, 20, 25, 27 and 27(1)
AppellantAppu
RespondentState of Kerala and ors.
Appellant Advocate O.V. Radhakrishnan and; K. Radhamani Amma, Advs.
Respondent AdvocateGovt. Pleader
DispositionAppeal dismissed
Cases ReferredState of Kerala v. Parvathi Amma
Excerpt:
property - compensation - sections 3, 9, 20, 25, 27 and 27 (1) of kerala land acquisition act, 1962 - under section 11 land acquisition officer to award compensation - claimant to establish compensation awarded was not proper - in case of dispute court determines appropriate compensation on reference under section 20 - court not to award anything more than what claimant stated as proper compensation in answer to notice under section 9. - - that the statement filed by the claimant in answer to notice under section 9 (3) did not specify the amount of compensation claimed by him, and that even on merits the claimant failed to substantiate his claim for land value at rs. sub-section (3) of section 27 enables the court to award more than the amount awarded by the collector, even in cases..........the sy. no. of the land acquired is t. s. no. 43 of katcheri village, kozhikode taluk. the land acquisition officer fixed the land value at rs. 220/- per cent and on an apportionment of the compensation payable in respect of the acquired land awarded rs. 14,000/- to him. the claimant requested for reference to the civil court as provided for in section 20 of the land acquisition act, 1961, claiming land value at the rate of rs. 1000/- per cent. the lower court dismissed the reference on two grounds, viz. that the statement filed by the claimant in answer to notice under section 9 (3) did not specify the amount of compensation claimed by him, and that even on merits the claimant failed to substantiate his claim for land value at rs. 1000/- per cent.2. under sub-sections (1) and.....
Judgment:

George Vadakkel, J.

1. This appeal is by the claimant in the lower court. He is the jenmi of 1 acre (according to him 1 acre and 39 cents) of garden land acquired by the respondent-State for the purpose of constructing a railway siding to the Gwalior Rayons at West Hill in Kozhikode. The Sy. No. of the land acquired is T. S. No. 43 of Katcheri Village, Kozhikode Taluk. The Land Acquisition Officer fixed the land value at Rs. 220/- per cent and on an apportionment of the compensation payable in respect of the acquired land awarded Rs. 14,000/- to him. The claimant requested for reference to the civil court as provided for in Section 20 of the Land Acquisition Act, 1961, claiming land value at the rate of Rs. 1000/- per cent. The lower court dismissed the reference on two grounds, viz. that the statement filed by the claimant in answer to notice under Section 9 (3) did not specify the amount of compensation claimed by him, and that even on merits the claimant failed to substantiate his claim for land value at Rs. 1000/- per cent.

2. Under Sub-sections (1) and (2) of Section 9 of the Kerala Land Acquisition Act, 1961, the Collector has to cause public notice to be given at convenient place calling upon all persons interested in the land proposed to be acquired to state 'the nature of their respective interests in the land, and the amount and particulars of their claims to compensation for such interests, and their objections, if any, to the measurements made under Section 8'. Under Section 9 (3) of the aforesaid Act, the Collector has also to serve a notice to the same effect on the occupier, if any, of such land and on all such persons known or believed to be interested in the land proposed to be acquired or to be entitled to act for persons so interested. Another provision that has to be noticed is Section 27. That section occurs in Part III of the Act relating to 'Reference to court and procedure thereon'. Section 27 prescribes the upper limits of compensation that could be awarded by the court as also the lower limit. Under Sub-section (1) of that section, when the applicant has made a claim to compensation pursuant to any notice given under Section 9, the amount awarded to him by the court shall not exceed the amount so claimed; that sub-section also states that the amount awarded by the Court shall not be less than the amount awarded by the Collector as per his award under Section 11. Sub-section (2) of that section states that when the applicant has refused to make such claim or has omitted without sufficient reason to make such claim, the amount awarded by the court shall not exceed the amount awarded by the Collector. Sub-section (3) of Section 27 enables the court to award more than the amount awarded by the Collector, even in cases where the applicant has omitted to make a claim in answer to notice under Section 9, provided the court is satisfied that such omission was for sufficient reason.

3. The provisions discussed above in our opinion, are clear enough and they require the claimant to specify the amount claimed as compensation in the statement given by him in answer to the notice under Section 9 of the Act. That in answer to the notice under Section 9 of the Act the claimant has to advance a claim for a specific amount by way of compensation is clear, and that is so in view of Section 27 (1) of the Act whereby the court is prohibited from awarding any amount in excess of 'the amount so claimed', that is to say, the amount claimed in answer to the notice under Section 9 of the Act. Unless a sum certain is claimed, or unless on the basis of the claim-statement, end that alone. i.e., without the court embarking upon any enquiry, the sum certain, if any, claimed can be ascertained and quantified, it would not be possible for the court to restrict its award 'to the amount so claimed'.

4. We find support for this view in three decisions of this Court, Kuriakose v. State of Kerala (ILR (1963) 1 Ker 398). State of Kerala v. Krishnaru (1965 Ker LT 975) and Pareed v. Spl. Deputy Collector (1973 Ker LT 996). In the first of these cases Mathew J. (of this Court as he then was) said that a mere reference to certain sale deeds in the claim-statement would not be sufficient and that the amount claimed as compensation for the land must be specified in that statement. In the second case Govindan Nair J. (as he then was) said on behalf of the Bench that the object of the statutory requirement under Section 9 of the Act that the hearing date should be beyond 15 days of publication of the notice under Sub-section (2) or of receipt of notice under Sub-section (3) (such a requirement was read into this sub-section because of the words 'to the same effect' in that sub-section) was to afford the claimant sufficient time to gather materials so as to enable him to put forward a specific claim for a specific or definite amount. And, in the last of the above-mentioned cases Nambiyar J. on behalf of another Bench of this Court upheld the dismissal of a reference under Section 20 of the Act on the ground that no claim for any specific amount of compensation was made by the claimants.

5. The Bench decision in State of Kerala v. Kunhamed Koya Haji (1970 Ker LT 1065) relied on behalf of the appellant, 35 we understand it, does not go counter to the above stated principle in any manner. In that case the claimant claimed compensation on the basis of income derived from the property, stating what the income was; the total compensation claimed could be worked out and quantified on the basis of the income so stated, be it that he derived that much income or not from the property, and so the upper limit of the quantum- of compensation beyond which the court cannot award, could be determined and fixed without any enquiry in that behalf.

6. The learned counsel for the appellant also brought to our notice three unreported decisions of this Court in A. S. Nos. 337 of 1967 and 338 of 1967 and L. A. A. Nos. 29, 34 and 40 of 1975 (Ker). In the first of the aforementioned cases on behalf of the Bench Nambiyar J. pointed out that the claimants stated in answer to the notice under Section 9 of the Act that 'according to the then prevailing rates, the property would be worth more than Rs. 100/- per cent'. In the second of the aforementioned cases a Bench of this Court found as a matter of fact that the lower court was in error in thinking that no definite claim was made. And in the batch of cases which were disposed of by the common judgment thirdly mentioned above this Court noticed that the claimants had 'set out the actual and potential value of the property and had compared it with other properties in the vicinity'. In view of the findings entered in the respective judgments mentioned above that specific claims were advanced by the concerned claimant or claimants in the concerned case we do not think that these decisions are of any assistance to the appellant.

7. The learned counsel for the appellant placed much reliance on Mohamed Salim v. Special L. A. Officer (II) Nasik (AIR 1975 Bom 53) in support of the proposition that the claimant is not bound to specify the amount of compensation in answer to the notice under Section 9 of the Act. In that case the lower court relying on the principle that it was not necessary for the claimant to specify definite amount of compensation in respect of each of the six sub-heads mentioned in Section 23 of the Land Acquisition Act, 1894 (Section 25 of the Kerala Act) enhanced damages awarded by the Land Acquisition Officer under the subheads 'severance' and 'injurious affection', despite the fact that the claim under those sub-heeds was only for 'reasonable compensation' and not for any specific amount. The correctness of the principle on which the lower court had relied, a principle enunciated in Secretary of State v. Dinshaw (AIR 1933 Sind 21), appears to have been doubted by Tendolkar J. in an earlier decision of that court, Special Land Acquisition Officer v Kalyanji ((1955) 57 Bom LR 934 at pp. 936-937). This case was distinguished by the learned Acting Chief Justice who decided the later Bombay case stating that in the earlier case the claimants merely asked the price at a flat rate and that in that case there was no claim at all advanced on account of severance or injurious affection. It is not necessary in the case on hand to examine as to whether in such circumstances the court would be in a position to enhance the compensation claimed under one subhead, but so as not to exceed the total amount of compensation claimed. We are also not called upon in this case to decide the question as to whether the words 'particulars of their claims to compensation' occurring in Sub-section (2) of Section 9 of the Act, and which words have to be read into the third sub-section also in view of the words 'to the same effect' obtained therein envisage specification of the amount of compensation in respect of such of the six subheads stated in Section 25 of the Act under which compensation is claimed.

8. It was then argued that the appellant in answer to the notice under Section 9 of the Act claimed compensation in accordance with the 'present market rate' (vila ennathe market nirakka-nusarichh anuvathikkanna mennapashikkunnu) and that therefore the Land Acquisition Officer was bound to offer (award) compensation on that basis; the contention is that he failed to award compensation on the basis of market value, that therefore, the court can examine whether the Land Acquisition Officer has awarded compensation on that basis, and if he has not, the court can enhance compensation in tune with the market value. This argument needs only to be mentioned to be rejected. The Land Acquisition Officer need only award 'the compensation which in his opinion shall be allowed for the land'. See Section 11 (ii) of the Act. In cases of dispute, it is for the court to determine proper compensation on a reference to it under Section 20 of the Act. And, under Section 25 of the Act the Court has to take into consideration the market value of the land prevailing on the date of publication of the notification under Section 3 of the Act. Even so, the court could not award anything more than what the claimant has stated as proper compensation in answer to the notice under Section 9 of the Act, and in cases where he has refused or omitted to state so, nothing in excess of the amount awarded by the Land Acquisition Officer unless the court is satisfied that the omission was for sufficient reason.

9. We hold that the lower court was right in rejecting the reference on the first ground.

10. We are also in agreement with the lower court which held that on the merits also the claimant had not made out a case. Exts. A1 and A2, two of the documents relied on by the claimant are sale deeds. P.W. 3 purchased 20 cents of land for Rs. 10,000/- as per Ext. A1 and 41/2 cents of land for a consideration of Rs. 4000/- under Ext. A2. These transactions were on 25-10-1962 and 1-11-1962 respectively. Ext. A1 property was purchased by P.W. 3 for installing an ice factory and Ext. A2 property was purchased by him for a pathway to Ext. A1 property. The lower court observed, and rightly so that the price of land which works out so far as Ext. A1 transaction is concerned at Rs. 500/- per cent and so far as Ext. A2 sale is concerned at Rupees 1000/- per cent is not of any assistance to fix the land value of the acquired property since P.W. 3 was keen on purchasing these properties. Ext. A3 and Ext. A4 are certified copies of the judgment and decree in L.A.O.P. No. 170 of 1965 on the file of the Sub-Court, Kozhikode. The lower court rejected those documents for the reason that the date of acquisition as also the date of notification in that case, were different. The lower court also considered the evidence of P.W. 2 who proved those documents and deposed that the property involved in Exts. A3 and A4 case was near the property in question; but however, the lower court was not prepared to accept his evidence for the reason that except for asserting that Exts. A3 and A4 property was near the acquired property, P.W. 2 was not able to give any information about the nature and character of the two properties. We are in agreement with the lower court in holding that Exts. A3 and A4 could not be acted upon for determining the price of the land acquired in this case.

11. The learned counsel for the appellant submitted that the claimant had also produced Ext. A5 before the lower court; it is a certified copy of a sale deed dated 20-1-1962 in respect of 2 1/2 cents of land. The lower court has not adverted to that document. The learned counsel is right in pointing out that the lower court failed to advert to the same. We have however examined the evidence furnished by Ext. A5 as also the evidence in respect of the land sold under Ext. A5 sale deed. It is necessary to point out that that document has not been properly proved. That document was proved only by the claimant who was examined as P.W. 1. In view of the Bench decision of this Court in State of Kerala v. Parvathi Amma (1973 Ker LT 1019), according to which the court is not entitled to act upon copies of the registered sale deeds without the evidence of persons who are parties to the transaction, Ext. A5 could not be acted upon. Even otherwise the only evidence regarding the property involved in Ext. A5 sale deed is that of P.W. 1 according to whom there were improvements on that property. P.W. 1 admitted that he has no information about Ext. A5 transaction. P.W. 1 was not able to deny the suggestion put to him in cross-examination that the property was purchased by the vendee under Ext. A5 paying a fancy price. Ext. A5 is not therefore of any help to the claimant.

12. Then the learned counsel for the appellant submitted that the respondent State also failed to prove Ext. B1 document dated 18-11-1965 which was the basic document relied on by the Collector. On that basis she requested that the case be remanded so that Ext. B1 document may be properly proved. We do not think that we would be justified in remanding the case for that purpose. At any rate, the Land Acquisition Officer has acting upon Ext. B1 document fixed the compensation for the acquired land and therefore it is for the claimant to establish that the compensation awarded for the land acquired is not proper. In the reference court, the burden was upon the claimant in so far as, as is evident from the note to the award, the Land Acquisition Officer has discussed Ext. B1 document. We see no reason to accede to the request for remand advanced on behalf of the claimant-appellant.

13. The result of the above discussion is the lower court is right in holding that on the merits also the claimant-appellant has failed to make out a case for enhancement of land value.

14. We dismiss the appeal. In the circumstances of the case, there will be no order as to costs.

15. The appeal has been filed in forma pauperis. The appellant has failed in the appeal. It is therefore necessary to direct him to pay the court-fee payable on the appeal memorandum. We direct so. The same shall be done within a period of three months from today. Send a carbon copy of the judgment and decree in this case to the Collector of Kozhikode for appropriate action.


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