State vs Kumaranalloor Devaswom and Another

Joseph Vithayathil, J.—The State is the Appellant in these appeals, The appeals relate to Land Acquisition References, A.S. No. 417 of 1954 is from L.A.R. No. 14 of 1953 of the Kottayam District Court, the Loud Acquisition Case being No. 216 of 1953 before the Special Land Acquisition Officer for Railway, Kottayam. A.S.No. 418 of 1954 is from L.A.R. No. 30 of 1953 (Land Acquisition Case. No. 217 of 1953); A.S. No. 419 of 1954 is from L.A.R. No. 29 of 1553 (L.A. Case No. 215 of 1953).

A.S. No. 420 of 1954 is from L.A.R. No, 23 of 1953 (L.A. Case No. 223 of 1953). The properties involved in the four cases were acquired for the purpose of the Quilon-Ernakulam Railway. The date of declaration is 24-2-1953. The properties belonged to the Kumaranalloor Devaswom, Plaintiff 1 in the Court below, and were demised on kanam to one Varkey, Plaintiff 2 who is now dead. Respondent 2 to 6 are the legal representatives of Plaintiff 2.

L.A. Case No. 216 of 1953 related to 28.40 cents of land in S. No. 962/1 of Ettumanoor Pakuthy. L.A. Case No. 217 of 1953 related to 28.848 cents, L.A. Case No. 215 of 1953 to 10.35 cents, and L.A. Case No. 223 of 1953 to 7.26 cents in the same survey number. All the four references were tried together and evidence was taken in L.A.R. No. 30 of 1953 (L.A. Case No. 217 of 1953).

At first only Plaintiff 2 in the Court below, i.e., the tenant entered appearance before the Lana Acquisition Officer. He filed statements in all the cases claiming land value at Rs. 30 percent, in L.A. cases Nos. 215, 216 and 217 of 1953 and rupees 40 percent in L.A. Case No. 223 of 1953. Subsequently a joint statement was filed by both the Plaintiffs on 27-4-1953 in which Plaintiff 1, the landlord, claimed one-half of the compensation amount and. the second Plaintiff, the tenant, claimedthe other half.

The Land Acquisition Officer awarded land value at the rate at Rs. 12/- percent in L.A. cases Hun, 215, 216 and 217 of 1953 and Es. 20/- percent in L.A. case No. 223 of 1953. The first Plaintiff was awarded one-half of this amount and Plaintiff 2 the other half. Plaintiff 2 alone applied for reference to the District Court claiming enhanced compensation, and reference was made only as regards his objection.

Notice of the reference was, however, given to Plaintiff 1 also, and both the Plaintiffs together filed a statement in the District Court on 1-10-1953 claiming land value at the rate of Rs. 30/- percent in L.A.R. Nos. 14, 29 and 30 of 1953 and Rs. 40/- percent in L.A.R. No. 23 of 1953. The learned District Judge awarded land value at the rate of Rs. 20/- percent in L.A.R. Nos. 14, 29 and 30 of 1953 and Rs. 25/- percent in L.A.R. No. 23 of 1953.

In these appeals the State has taken objection to the enhancement of land value by the District Judge. Objection is also taken to the award of enhanced compensation to Plaintiff 1 who had not applied for a reference. Another ground urged in the appeals is that, in the decrees prepared in the cases, interest was calculated even on the amount deposited by the State and drawn by the Plaintiffs.

In A.S. No. 418 of 1954 Respondents 2 to 6 have filed a memorandum of objection claiming compensation at the rate of Rs. 30 percent as regards their one-half share in the property acquired in L.A.R. No. 30 of 1958.

The three questions that arise for decision in the appeals are: (1) Whether the land value awarded by the Court below in the four L.A. References is excessive; (2) had the Court below jurisdiction to award enhanced compensation to Plaintiff 1 who had not applied for a reference; and (3) whether the Court below has gone wrong in awarding interest on the amount deposited by the State and drawn by the parties?

As regards the first point, we find no reason to hold that the land value awarded by the learned District Judge is in any way excessive. Exhibit A is a sale-deed dated 19-5-1953 for 11 cents of land in S. No. 96/3. P.W. 1 is the vendee of the property. The price shown in Ex. A is Rs. 1,000. There was a building in the property which, according to P.W. 1, was worth only Rs. 100. The property covered by Ex, A is near the plots acquired in these cases. But it is close to the Main Central Road and is situated near a tile factory.

The learned District Judge did not, therefore, give the properties acquired in these cases the value that was fetched by Ex. A. property. At the same time, it cannot be disputed that Ex. A gives some indication as to the value of property in the locality. Exts. I and II relied on by the State show that the properties covered by them were valued at about Rs. 12 percent in the year 1951. Those properties are not near the plots acquired in these cases and arc away from the public road.

The plots acquired are situate near the junction of the Main Central Road branching to Athirampuzha. There an also some shops in the neighbourhood. It was after taking into account all then circumstances that the learned District Judge awarded Rs. 20 percent for the plots acquired in L.A. Cases Nos. 215, 216 and 217 of 1953 and Rs. 25 percent, for the land acquired in L. A. Case No. 223 of 1953.

We find no reason to disagree with the finding of the learned District Judge as regards land value. There is also no reason to allow the memorandum of objection filed by Respondents 2 to 6 in A.S. No. 418 of 1954 claiming land value at the rate of Rs. 30 percent.

The main point urged on behalf of the State was that the Court below had no jurisdiction to award enhanced compensation to Plaintiff 1 who had not applied for a reference who tenant. They filed a joint statement before the Land Acquisition Officer each agreeing to take one-half of the compensation amount. The tenant; I alone applied for reference u/s 18 claiming enhanced compensation.

Notice of the reference was, however, given to the jenmi also, and both the Plaintiffs filed Joint statement before the District Court claiming enhanced compensation. In awarding enhanced compensation the learned District Judge did not make any distinction as regards the shares of the jenmi and the tenant. In the written statement filed by the State it was only contended that no additional amount could be awarded as compensation.

It was not contended that, in any case, the first Plaintiff was not entitled to claim enhanced compensation. But, it is argued by learned Government Pleader that the Court below Lad no jurisdiction to award enhanced compensation to Plaintiff 1 who had not applied for reference u/s 18 Land Acquisition Act.

According to learned Counsel for Plaintiff 1, Plaintiff 1 could take advantage of the application for reference made by Plaintiff 2 especially in view of the fact that both the Plaintiffs together filed a statement in the District Court claiming enhanced compensation.

Section 18(1), Travancore Land Acquisition Act provides:

Any person interested who has not accepted the award, may, by written application to the Division Peishkar, require that the matter be referred to the Division Peishkar for the determination of the District Court within whose jurisdiction the land is situated, whether his objection be to the measurement of the land, the amount of compensation, persons to whom it is payable, or the apportionment of compensation among the persons interested.

Sub-section (2) provides that the applicant shall state the grounds on which objection to the award is taken. The proviso to the Sub-section prescribes the period of limitation for making the application for reference. Section 19 prescribes the manner in which the Division Peishkar should make the reference.

Section 20 provides that the District Court shall give notice of the reference to all persons interested in the objection except such of them as have consented without protest to receive payment of the compensation awarded and also to the Diwan. Section 21 prescribes the scope of the enquiry by the District Court. It, reads:

The scope of the enquiry in every such proceeding shall be restricted to a consideration of the interest of the persons affected by the objection and every such proceeding shall take place in open Court.

In AIR 1930 64 (Privy Council) the Privy Council held that in the case of a reference u/s 18, Land Acquisition Act the Jurisdiction of tip Court is confined to a consideration of the objection raised in the written application for reference. Their Lordships said:

Their Lordships have no doubt that the jurisdiction of the Courts under this Act is a special one and is strictly limited by the terms of these sections. It only arises when a specific objection has been taken to the Collector''s award, and it is confined to a consideration of that objection. Once therefore, it is ascertained that the only objection taken is to the amount of compensation that alone is the ''matter'' referred and the Court has no power to determine or consider anything beyond it.

Their Lordships made special reference to the wording of Section 21 which restricts the scope of the enquiry by the District Court to a consideration of the interest of the persons affected by the objection.

In ''Abubacker v. Peary Mohan'' 34 Cal 451 (B) the Calcutta High Court held that, a party who raises no objection to the apportionment of the compensation made by the Collector must be taken to have accepted the award in that reaped and that under Sections 18, 20 and 21 Acquisition Act the District Court can only deal with the objection referred to it and cannot go into a question raised by a party who had not applied for a reference u/s 18.

This decision was followed in ''Govinda Kumar v. Devendra Kumar'' 12 Cal. W.N. 98 (C), ''Mohomed Saft v. Haran Chandra'' 12 Cal. W.N. 985 (D), ''Prabhal Chandra v. Peary Mohun'' 12 Cal. W.N. 987 (E), and ''Gangadliara Sastri v. Deputy Collector of Madras'' 22 M.L.J. 379 (F).

(10) In Rohan Lal Vs. Collector of Etah, the land-lord alone applied for a reference u/s 18 and the tenant did not. In the District Court the land-lord claimed for himself the whole of the enhanced compensation amount. Mukherjee and Niamatullah, JJ., observed:

As regards the contention of the learned Counsel that the occupancy tenants not having chosen to contest the award, the Zemindar should get the entire market value of the land minus the amount paid to the occupancy tenants, it is sufficient to say that this contention is not sound. The fact that the occupancy tenants have accepted the compensation awarded to them amounts to this, that there is no consent as between the Collector and the occupancy tenants.

If by the award the Government happens to be the gainer, that gain is entirely the Government''s and the Zemindar has no right to share in that gain. If the compensation awarded to the tenants had been too large, the Zemindar would not have been precluded from saying that whatever the Collector may choose to give to the tenants, he, the Zemindar, was entitled to a fair compensation for himself. On principle, therefore, the Appellant cannot get anything more than what fairly should be awarded to him.

The learned Judges relied on the language of Section 21 in support of this view.

The principle laid down in this decision was accepted by the Privy Council in AIR 1932 102 (Privy Council) Lord Russel observed:

The only objection ever taken by the Appellant was to the amount awarded as compensastion. No objection was ever made to the award as to the apportionment; the apportionment accordingly stands and the Appellant must be held bound thereby. There can, therefore, be no foundation for the Appellant''s claim to be entitled to the extra amount it which the tenants might have received if they had not by agreement accepted three-quarters of a lower valution. All that the Appellant can claim is his awarded proportion of Rs. 20 per sq. yard. The gain is a gain of the Municipality which acquired the land, as it was held to be in the case of Rohan Lal Vs. Collector of Etah, .

This decision was followed by the Calcutta High Curt in the ''Collector of Dacca v. Gholam Kuddus Choudhury'' AIR 1936 Cal. 088 V 23 (I). It was observed as follows in that case:

Where in proceedings under the Land Acquisition Act the owner of the land has objected u/s 18 to the amount awarded, but has not objected to the apportionment between them, the owner is not entitled to an increased amount resulting from his objection less the compensation accepted by the tenants, but only to such proportion of the increased amount as accords with the proportionment awarded; the Government and not the owner is entitled to the benefit arising from the tenants having accepted compensation upon a lower value.

To the same effect is the decision of the Madras High Court in ''Gajapati v. Annapurniwrm'' 1!) AIR 41 Mad 160 V. 28 (J). The question that those for consideration in that case was weather the District Court has jurisdiction to determine the amount of compensation due to the melvnramdar and give a decree for anything more than what was awarded by the Land Acquisition Officer in the absence of any reference made to Die Court by the Land Requisition Officer at the instance of the melvaramdar.

The reference in that case was at the instance of the Zemindar, it was held that the Court had no jurisdiction to award enhanced compensation to the melvaramdar.

Learned Counsel for Respondent 1 relied on the decision of the Patna High Court in Tikait Nagendra Nath Sahi and Another Vs. Bhagwati Prasad Narayan Sahi and Others, in support of the position that the landlord can take advantage of a reference made at the instance of the tenant. That was a case in which the dispute related to the apportionment or compensation between the Zemindar and three mukarraridars.

The Zemindar and one mukarraridar applied within time for reference u/s 18. The application of the other two mukarridars was barred by limitation. The District Court determined the claims of all the parties. In appeal to the High Court it- was contended that the claim of the two mukarraridars who did not apply for- reference within time ought not to have been enquired into by the District Court.

The High Court held, that the application of the Zemindar and one mukarraridar necessitated a reference u/s 18 and that the District Court having seisin of the reference was empowered u/s 20 to direct appearance before it of all persons interested either in supporting or opposing the applicant for reference and to investigate their claims.

It was, therefore, held that the claims of the two mukarraridars who had not applied for reference within time could not be lost sight of or left undermined in valuing the interest of the proprietor of the co-sharer mukarraridar who had applied for reference within time. We do not think that this decision supports the position contended for on behalf of Respondent 1.

What, was held in the case was only that in determining the value of the interest of the Zemindar who had applied for a reference the claims of the two mukarraridars who had not applied for reference in time should also be taken into account. It was not held in that case that the two mukarrnridars who had not applied for reference within time were entitled to get enhanced compensation.

Another case relied on by learned Counsel, for Respondent 1 is ''Diwan of Travancore v. Krishnankutty'' 37 Trav. L.R. 273 (F. B.) (sic). In that case, of the three persons who claimed the compensation amount, claimants Nos. 1 and 2 were entitled to one-half of the amount and the third claimant to the other half, The application to reference was made only by the third claimant. The majority of the Judges held that the District Court was not competent to vary the award in respect of the share of claimants Nos. 1 and 2.

Sesha Ayyar, J. took the view that the District Court had jurisdiction to consider the interest of claimants Nos. 1 and 2 also and to award them enhanced compensation on the reference made by the third claimant. The view taken by the majority of the Judges being consistent with the view taken in the cases cited above we find no reason why we should not follow it.

Another case referred to by learned Counsel for Respondent l is ''Bijoy Chand v. P.P.K.K. Mozumdar'' 9 Ind. Cas. 582 (Cal) (M). Mukherjee and Carnduff, JJ. Observed as follows in that case:

It may be conceded that the ordinary rule, as pointed out by this Court in the case of ''34 Cal. 451 (R)'', is that in a proceeding under the Land Acquisition Act a party who has raised no objectes to apportionment of compensation made by the Collector must be taken to have accepted l he award in that respect and such person, upon a reference made by some other party who considers himself aggrieved by the award of the Collector, is not entitled to have it varied for his own benefit.

In other words, as explained in the case of ''Promotha Nath v. Rakhal Das'' 11 Cal. L. J. 420 (N), the Civil Court is restricted to an examination of the question which has been referred by the Collector for decision, and the scope of the enquiry cannot be enlarged at the instance of parties who have not obtained any order for reference. The present case, however, is clearly distinguishable and the principle in question has no application. This award of the Collector made on 28-8-1906 shows/conclusively that up to that date there had been no apportionment between the Zemindar1 and the patnidar.

This view is fortified by the written statement of the patnidar filed in the Civil Court, on 9-11-1906. His contention in that written statement was that ryots were bound to pay to the superior land-lords thirty times the annual rent and it was added that if this sum was realised from ryots the patnidar was prepared to leave for his own Zemindar thirty times the patni rent.

It is thus fairly clear that the scope and object of the reference obtained by the patnidar was not to settle any question of apportionment as between himself and his superior Zemindar, but merely to obtain from the ryots a higher amount than that allowed by the Collector for the joint benefit of himself and his superior land-lord. It follows that the Court below had jurisdiction to allow the Zemindar thirty times the patni rent and we are of opinion that such order ought now to be made.

We do not think that this decision also helps Respondent 1. The decision is based on the fact that there was no apportionment of the compensation between the Zemindar and the patnidar and that the application for reference by the patnidar was for the joint benefit of himself and the Zemindar. In the present case, the land-lord, and the tenant apportioned the compensation between them by mutual agreement and separate amounts were awarded to thorn by the Land Acquisition Officer.

It was next argued for Respondent 1 that the properties acquired in these cases are kanam properties coming within the purview of the Travancore Jenmi and Kudiyan Act, that under that Act as amended in 1108 the kanam tenant is the full owner of the property, the Jenmi being entitled only to jenmikaram, and that, therefore, the tenant alone was competent to apply for a reference for enhancement of compensation.

But, the properties acquired in these cases are Pardarapatlem properties and not jenmam properties coming within the purview of the Jenmi and Kudiyan Act. There is, therefore, no basis for this contention.

On the authority of the decision cited at the outset we hold that the Court below had no jurisdiction to award enhanced compensation to Plaintiff 1 on the basis of the reference made on the application of Plaintiff 2. The reference can ensure only to the benefit of Plaintiff 2 who is entitled only to one-half of the compensation amount. Plaintiff 2 will, therefore, be entitled to one-half of the amount awarded by the Court below as enhanced compensation with proportionate solatium and interest.

As for the objection regarding the award of interest on the amount deposited by the State and drawn by the Plaintiffs, it is clear that no interest can be claimed on that amount from, the date on which it was drawn by the parties.

In the result, we modify the decrees of the Court below in all the four cases by disallowing the claim of the first Plaintiff-devaswom to enhanced compensation. The legal representatives of Plaintiff 2 will be entitled to one-half of the amount awarded by the Court below as enhanced compensation with proportionate solatium and- interest at six percent per annum from 10-3-1953. The amount deposited by the State and drawn by the parties will cease to carry interest from the date on which it was drawn.

As for costs, the Appellant-State will pay one-half the costs of Plaintiff 2 in the Court below and the full costs of Respondents 2 to 6 in this Court in all the four appeals. In view of the fact that the State did not contend in the Court below that Plaintiff 1 was not entitled to claim enhanced compensation on the basis of the reference made on the application of Plaintiff 2 we direct the State and Plaintiff 1 to bear their respective costs both here and in the Court below. The appeals are allowed to the extent mentioned above and dismissed in other respects. The memorandum of objection in A. S. No. 418 of 1954 is also dismissed casts.