State of Kerala vs Gopinathan Nair

B.N. Patnaik, J.—State has preferred this appeal against the judgment in L.A.R. No. 176/84 on the file of the Sub Judge, Pathanamthitta. By the impugned judgment, learned sub judge has awarded an enhanced compensation of Rs. 10,000/- per are as against the award of Rs. 4,427/- per are by the Land Acquisition Officer. He has also awarded a sum of Rs. 10,000/- as compensation for severance of land though the Land Acquisition Officer did not award any such compensation. An extent of 10.60 ares of dry land in Sy. No. 340/14 of Thonnalloor Village in Adoor Taluk was acquired for the purpose of Kallada Irrigation Project. Notification under S.3(1) of Kerala Land Acquisition Act was published on 27-8-1981. Possession of the land was taken on 14-7-1982. Land Acquisition Officer passed the award on 6-1-1982.

Learned Government Pleader has contended that the award of compensation is excessive and compensation awarded on account of severance of land is unwarranted.

The claimant has stated that the acquired land is situated in the centre of Pandalam town. There are several public and private institutions, educational institutions, places of worship, banks, commercial and industrial concerns within the radius of 1 km. of the acquired land. The acquired property has also a road frontage on three sides. Under the same notification, Ext.A3 was acquired for the same purpose. The land in Exts.A1 and A2 documents are comparable with the acquired land. Ext.R1 document on which the Land Acquisition Officer based his finding does not show that the land therein is comparable with the acquired land and as such cannot be relied upon.

The claimant did not make any claim for compensation for the severance of land either before the Land Acquisition Officer or in the reference court.

The learned Sub Judge rejected Exts.R1, A1 and A2 documents as the lands mentioned therein are not comparable with the acquired land. He rejected the valuation given in Ext.A3 judgment on the ground that it is based on Ext.A2 document, which, in his opinion, is not the proper document to be relied upon for the purpose of assessing the land value. However, by taking into consideration the importance and the location of the land, he came to the conclusion that the land value would be Rs. 10,000/- per acre.

So far as the award of compensation for the land value is concerned, we find that there is no infirmity in the finding of the learned Sub Judge. He has rightly rejected Exts.A1, A2, A3 and R3 documents by giving cogent reasons. The finding on this aspect is neither perverse nor unreasonable.

So far as the award of compensation for severance of the land is concerned, we find that learned Sub Judge has committed an error of law. Although no evidence was adduced to prove the damage and no such compensation was claimed by the claimant either under S.9 of the Land Acquisition Act or in the reference petition filed by him, learned Sub Judge suo motu granted it. Learned counsel for the claimant contended that the court has the jurisdiction to grant it if it is satisfied that the severance of land resulted in the unacquired portion becoming practically useless thereby lowering its market value considerably, even if no specific evidence is produced on this fact. We are unable to accept this contention for the following reason.

Clauses 3 and 4 of Sec.23(i) of the Land Acquisition Act lays down as follows: 23. Matters to be considered in determining compensation.--

(i) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration--

First,.....

Secondly,......

Thirdly, the damage (if any) sustained by the person interested, at the time of the Collector''s taking possession of the land, by reason of severing such land from his other land;

Fourthly, the damage (if any) sustained by the person interested at the time of the Collector''s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;

Fifthly,......

Sixthly......

It appears that compensation for severance of land or by reason of the fact that acquisition has injuriously affected his other property, can be awarded only when the claimant has suffered some damage on account of it. In both the clauses it is clearly laid down that compensation can be awarded only if any damage is sustained. In the absence of any such evidence or pleading, there is no scope for the court to infer if any such damage was sustained. Facts must be proved to show the extent of damage sustained so as to enable the court to quantify it. Compensation under this head cannot be calculated by mere guess. We, therefore, set aside the award of compensation of Rs. 10,000/- under this head.

For the reasons stated above, the appeal is allowed in part. The award of compensation of Rs. 10,000/- together with proportionate interest under clauses 3 and 4 of sub-section (1) of S.23 of the Land Acquisition Act is set aside. In other respects, the judgment is confirmed. No costs.