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PETITIONER: KOYAPPATHODI M. AYISHA UMMA

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT13/08/1991

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KASLIWAL, N.M. (J)

CITATION:  1991 AIR 2027            1991 SCR  (3) 548  1991 SCC  (4)   8        JT 1991 (6)   105  1991 SCALE  (2)332

ACT:     Kerala     Land    Acquisition    Act,     1961--Section 11--Award--Land  with fruit bearing  trees--Valuation--Meth- ods--Pendency  of  appeal whether  attracts  application  of Section 30(2) read with Section 23(2), Land Acquisition Act, 1894.     Code  of Civil Procedure, 1908--Order 41,  Rule  27--Re- mand--Whether  to  be made to adduce.  fresh  evidence  when opportunity not utilised.

HEADNOTE:     The  notification  under section 3 of  the  Kerala  Land Acquisition Act, 1961 (Act 21 of 1962) was published in  the Gazette on February 28, 1967 acquiring six acres of land  to construct staff quarters of P & T of Govt. of India.     The  Land  Acquisition Officer  awarded  compensation  @ Rs.2.30 per cent and also the value of the trees by capital- isation  method  in a sum of Rs.2,69,421.55 p.  towards  the land  improvement together with 15 per cent solatium  and  4 per cent interest.     On reference, the Civil Court enhanced the market  value at Rs.500 per cent, i.e., in total Rs.3,00,000 towards  land value and confirmed the award of the Land Acquisition  Offi- cer  of 2,69,421.55 p. towards land improvement.  making  in all 5,69,421.55 p. with solatium at 15 per cent and interest at 4 per cent from the date of dispossession. The appeal by the State was allowed by the High Court.     Calling  in  question the reversing decree of  the  High Court, this appeal has been filed by the claimant contending that there was an intensive cultivation in the acquired land not  only of the fruit hearing trees therein but also  using the  vacant space for other short term crops  to  establish, which  the  appellant sought remand to the  Civil  Court  to adduce  additional evidence under Order 41 of Rule 27  etc., which request the High Court had wrongly rejected; that  the appellant was entitled to 30 per cent solatium under section 23(2) of the Land Acquisition 549 Act,  1894 as amended under the Land  Acquisition  Amendment Act  68  of 1984; and that the land and the  trees  together constitute  the  value  of the acquired lands  and  so  were

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separately  valued  which would reflect the  correct  market value, which method the Civil Court had correctly adopted.     The State contended that the lands and. the trees cannot be  valued  separately; and that the Laud  Acquisitiou  Act, 1894 and 1984 Amendment Act have no application since acqui- sition  proceedings were admittedly taken under. the  Kerala Land ACquisition Act.     On the question, what is the proper method of  valuation of the land, this Court, allowing the claimant’s appeal,      HELD.1.  The  methods of valuation to  be  adopted   in ascertaining the market value of the land as on the date  of the notification are: (i) opinion of experts, (ii) the price paid  within a reasonable time in bona fide  transaction  of the  purchase  or sale of the lands acquired  or  the  lands adjacent to the lands acquired and possessing similar advan- tages, and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired. These methods, however, do not ’preclude the court from taking any other special circumstances obtained in an appropriate  case into consideration. As the object being always to arrive  as near  as  possible  in an estimate of the  market  value  in arriving  at  a reasonable correct market value, it  may  be necessary to take even two or all those matters into account inasmuch as the exact valuation is not always possible as no two lands may be.the same either in respect of the situation or the extent or the potentiality nor is it possible in  all cases  to have reliable material from which  that  valuation can be accurately determined. [553B-D]     2.  In  evaluating  the market  value  of  the  acquired property,  namely, ’land and the building or the lands  with fruit  bearing trees standing thereon, value of  both  would not  constitute  one unit; but separate.units; it  would  be open to the Land Acquisition Officer or the court either  to assess the lands with all its advantages as potential  value and fix the market value thereof or where there is  reliable and  acceptable evidence available on record of  the  annual income  of  the fruit bearing trees the  annual  net  income multiplied  by appropriate capitalisation of 15 years  would be the proper and fair method to determine the market  value but not both. [555A-C] State  of Kerala V.P.P. Hassan Koya, [1968] 3 SCR 459;  Spe- cial 550 Land  Acquisition Officer v.P. Veerabhadarappa,  etc.  etc., [1984] 2 SCR 386 and Admn. General of West Bengal v. Collec- tor, Varanasi, [1988] 2 SCR 1025, referred to.     3.  SectiOn 30 sub-section (1) of the  Land  Acquisition Amendment  Act 68 of 1984 would reveal the  legislative  in- tendment  that  the transitional provisions could  apply  to every  proceeding  for  acquisition of any  land  under  the principal Act, namely, ’Act 1 of 1894 (Central Act), pending on  the 30th day of April, 1982, namely, the date of  intro- duction  of the Land Acquisition (Amendment) Bill,  1982  in the House of the People; in which no award has been made  by the  Collector  before that date or the award  made  by  the Civil  Court at the date of the Amendment Act. It  is  clear that the Amendment Act 68 of 1984 including sub-section  (2) of  section 23 per se is inapplicable to the acquisition  of the  land under the Kerala Land Acquisition Act,  1961.  The pendency  of the appeals against the award  made  preceeding the dates in the High Court or this Court would not  attract the  application of section 30(2) and that,  therefore,  en- hanced solatium under section 30(2) read with section  23(2) is inapplicable. [556H-557B, 557H-558B]     Kanthimathy  Plantation Pvt. Ltd. v. State of  Kerala  &

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Ors., [1989] 4 SCC 650, referred to.     Union  of India & Ors. v. Filip Tiago De Gama, [1990]  1 SCC 277, distinguished.     Union of India & Anr. v. Raghubir Singh (dead) by  Lrs., [1989] 2 SCC 754, followed.     4. On the totality of the facts and circumstances, total sum  of Rs. 10,000 would be reasonable compensation  towards the  value of the total trees as fire wood or as for use  of other purposes after deducting salvage expenses. The  appel- lant iS not entitled to enhanced solatium at 30 percent: but is  entitled  to Rs.3,10,000 as enhanced  compensation  with 15per  cent solatium and interest at 4 per cent on  enhanced market value from the date of dispossession. [556A-B,  558B- C]     5.  Remand under order 41 Rule27, C.P.C. cannot be  made to adduce fresh evidence, when though available but was  not adduced; [551H-552A]

JUDGMENT:  CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  1036  of 1976. 551     From  the  Judgment  and Order dated  11.6.1975  of  the Kerala High Court in Appeal Suit No. 764 of 1972. T.T. Kunhikannan for the Appellant. S. Padmanabhan and E.M.S. Anam for the Respondent. The Judgment of the Court was delivered by     K. RAMASWAMY, J. This appeal by special leave is against the judgment and decree of the Kerala High Court dated  June 11,  1975  made in A.S. No. 764 of  1972.  The  notification under  section  3 of the Kerala Land Acquisition  Act,  1961 (Act  21 of 1962) was published in the Gazette  on  February 28, 1967 acquiring six acres of land in the city Of  Calicut to construct staff quarters of P & T of Govt. of India.  The Land  Acquisition Officer by award dated February  29,  1969 awarded compensation @ Rs.230 per cent and also the value of the   trees   by   capitalisation  method  in   a   sum   of Rs.2,69,421.55 p. towards the land improvement together with 15 per cent solatium and 4 per cent interest. On  reference, the  Civil Court enhanced the market value by  judgment  and award  dated  February 9, 1972 at Rs.500 per cent  i.e.,  in total Rs.3,00,000 towards land value and confirmed the award of  the Land Acquisition Officer of 2,69,421.55  p.  towards land improvement making in all 5,69,421.55 p. with  solatium at 15 per cent and interest at 4 per. cent from the date  of dispossession.  In the appeal by the State against  the  en- hanced  compensation, it was contended that the Civil  Court committed  grave error in fixing market value separately  to the  land and the trees on capitalisation basis to  make  up the compensation. That contention was found favour with  the High Court and it set aside the award of the Civil Court  of the value of the land of Rs.3,00,000 and confirmed the award of Rs.2,69,421.55. Calling in question the reversing  decree of the High Court, this appeal has been filed.     Two  contentions have been raised by  Shri  Padmanabhan, the  learned  senior counsel for the appellant.  Firstly  he argued  that  there is an intensive cultivation in  the  ac- quired land not only of the fruit bearing trees therein  but also  using the vacant space for other short term  crops  to establish  which  the appellant sought remand to  the  Civil Court  to adduce additional evidence under Order 41 of  Rule 27 etc. The High Court had wrongly rejected the request  for additional evidence. we find no force in the contention.  It

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was not the case that the appellant was prevented to  adduce evidence in this behalf. Remand 552 under order 41 Rule 27, C.P.C cannot be made to adduce fresh evidence, when though available but was not adduced.     Even  otherwise it was further argued that the land  and the  trees  together constitute the value  of  the  acquired lands  and so are separately valued which would reflect  the true and correct market value. The Civil Court has correctly adopted  the  method and the High Court  is  unjustified  in interfering  with.the award of the Civil Court; It  is  also further contended that the land possessed of potential value as building sites and, therefore, the reliance by the  Civil Court  on Ex. A. 1 dated February 19, 1964 which worked  out at  Rs.400  per cent and Ex. A. 2 dated  February  17,  1967 under  which 14 were purchased worked out at Rs.556  percent and  award  of market value @ Rs.500 per cent by  the  Civil Court was not illegal. Ex. B. 1 under which Rs.230 per  cent accepted  as claimed by the State cannot be relied  upon  as the document dated June 3, 1966 does not relate to the lands in  the  neighbourhood.  Admittedly they  are  situated  six furlongs  away from the limits of Calicut city and one  mile from the acquired lands. On the other hand, the lands  under Ex. A. 1 and A. 2 are situated one furlong from the acquired lands.  Therefore,  they provide the  comparable  sales  for fixation of market value. The second contention is that  the appellant is entitled to 30 per cent solatium under  section 23(2) of the Land Acquisition Act 1 of 1894 as amended under the  Land Acquisition Amendment Act 68 of 1984. The  learned counsel  appearing  for the State has resisted  the  conten- tions.  He  argued that Ex. A. 1 and A. 2  relate  to  small extent  of 5 cents and 14 cents together with the  buildings situated  therein.  Therefore, when a large  extent  of  six acres  was  acquired they offer no comparable  price.  Small plots  always fetch higher price and that,  therefore,  they cannot form same basis to fix the market value at Rs.500 per cent. He also further contended that the lands and the trees cannot  be  valued separately. The court should  adopt  only either  the value of the, land or income of the  trees  with suitable multiplier but not both. The High Court is,  there- fore,  well  justified in rejecting the sale deeds  and  the total  valuation and confirmed the capitalisation method  of valuation. He also contended that the Land Acquisition  Act, 1894 and 1984 Amendment Act have no application since acqui- sition  proceedings were admittedly taken under  the  Kerala Land Acquisition Act.     The  crucial question, therefore, is what is the  proper method  of  valuation  of the land in  question.  The  total extent  of the land is six acres consisting of 1130  coconut trees;  65  arecanut trees and 45 pepper  wines.  The  Civil Court fixed the market value of the lands at 553 Rs.3,00,000.  Admittedly,  the appellant did  not  file  any cross  objections in the High Court seeking any higher  com- pensation.  Accordingly the market value of the lands  fixed at  Rs.3,00,000  became final. The fixation  of  the  market value  on  capitalisation method also became  final.  It  is settled  law that the methods of valuation to be adopted  in ascertaining the market value of the land as on the date  of the notification are: (i) opinion of experts (ii) the  price paid  within a reasonable time in bona fide  transaction  Of the  purchase  or sate of the lands acquired  or  the  lands adjacent to the lands acquired and possessing similar advan- tages and (iii) a number of years purchase of the actual  or immediately prospective profits of the lands acquired. These

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methods, however, do not preclude the court from taking  any other special circumstances obtained in an appropriate  case into consideration. As the object being always to arrive  as near  as  possible  in an estimate of the  market  value  in arriving  at  a reasonable correct market value, it  may  be necessary to take even two or all those matters into account inasmuch  as the exact valuation is not always  possible  as tow lands may be the same either in respect of the situation or the extent or the potentiality nor is it possible in  all cases  to have reliable material from which  that  valuation can  be  accurately determined. In State  of  Kerala  v.P.P. Hassan Koya, [1968] 3 SCR 459 the question arose whether the separate valuation of the land and building would be  proper method  to be adopted to determine the market value  of  the acquired  property.’ This Court held that "the land and  the building  constitute one unit" and the value of "the  entire unit must be determined with all its advantages" and  poten- tialities.  When  the property is sold with building  it  is often  difficult to have sale of single land  with  building approximately  in  time  to the date  of  the  notification. Therefore, the, method which is to be adopted in determining the value of the land and building is the method of capital- isation of return actually received or which might  reasona- bly  be  received  from the land or  the  building  separate valuation of the land and building was not approved and  the annual  rent  received with the  proper  capitalisation  was adopted  by the courts below was approved by this Court.  In Special  Land Acquisition Officer v.P. Veerabhadrappa,  etc. etc.,  [1984] 2 SCR 386 this court held that the  method  of valuation  by capitalisation should not be resorted to  when other methods are available. However, where definite materi- al is not forthcoming either in the shape of sales of  simi- lar  lands  in the neighbourhood at or about  the,  date  of notification  under s. 4(1) or otherwise,. the court has  no other  alternative but to fall back on the method of  valua- tion  by capitalisation. In valuing land or an  interest  in land for purposes of land acquisition proceedings, the  rule as to number of years purchase is not a theoretical or legal rule but depends 554 upon economic factors such as the prevailing rate of  inter- est in money investments. The return which an investor  will expect from an investment will depend upon the  characteris- tic of income-as compared to that of idle security. The main features  are: (1) security of the income; (2)  fluctuation; (3)  chances of increase; (4) cost of collection;  etc.  The traditional  view  of capitalised value  being  linked  with gilt-edged  securities, no longer be. rigorous when  invest- ment  in  fixed deposits with nationalised  banks,  National Savings Certificates, Unit’ Trusts and other forms of  Govt. securities  and  even  in the share market  command  a  much greater-return  are available. The capital  in  agricultural lands  normally  when the rate of return on  investment  was 8.25per cent in the years. 1971-72, the proper multiplier to be applied for the purpose of capitialisation would not,  in any event, exceeding 10 per cent. In that case the State had agreed  to  apply 12-1/2 per cent capitalised value  of  the lands, this court upheld capitalisation of the value of land at 12-1/2 per cent     In Admn. General of West Bengal v. Collector,  Varanasi, [1988]  2  SCR 1025 this’ Court held that usually  land  and building  there9n constitute one unit. Land is one  kind  of property;  land and building’ together constitute  an  alto- gether  different kind of property. They must be  valued  as one unit. But where, however, the property comprises  exten-

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sive  land and the structure standing thereon, do  not  show that full utilization of potential of the land realised,  it might not be impermissible to value the property  estimating separately  the market value of the land with  reference  to the  date of the preliminary notification and to add  to  it the value of the structures as at that time. In this method, building  value is estimated on the basis of the prime  cost or replacement cost less depriciation. The rate of depricia- tion,  generally,  arrived at by dividing the cost  of  con- struction ’(less the salvage valued at the end of the period of utility) by the number of years of utility of the  build- ing.  The factors that prolong the life and the  utility  of the  building, such as good maintenance, necessarily  influ- ence  and bring down the rate of depreciation. In that  case larger  extent  of  23.66 acres together  with  building  of 25,000  sq.  feets  comprises of 35  rooms,halls  and  other appurtenances,  and 43 1 fruit bearing and 13  timber  trees and  12 bamboo clumps situated in the city of Varanasi  were acquired. With regard to the value of the trees, this  Court held  that  where the land is valued with reference  to  the potentiality  for  building purposes the trees on  the  land cannot be valued independently on the basis of its horticul- tural value or-with reference to the value of the yield  but this  principle  does not come in the way  of  awarding  the timber value after deducting costs for cutting and  removing them from the lands as salvage value. 555     It  is  thus settled law that in evaluating  the  market value of the acquired property, namely, land and the  build- ing or the lands with fruit bearing trees standing  thereon, value  of both would not constitute one unit;  but  separate units;  it would be open to the Land Acquisition Officer  or the court either to assess the lands with all its advantages as potential value and fix the market value thereof or where there  is  reliable and acceptable’ evidence  available,  on record  of the annual income of the fruit bearing trees  the annual  net income multiplied by appropriate  capitalisation of 15 years would be the proper and fair method to determine the market value but not both. In the former case the  trees are to be separately valued as timber and to deduct  salvage expenses to cut and remove the trees from the land. In  this case  the award of compensation was based on both the  value of the land and trees. Accordingly the determination of  the compensation  of the land as well as the trees  is  illegal. The High Court laid the law correctly.     It  is  seen that Ex. B. 1 relied on by  the  State  was rejected by both the courts and, therefore, it cannot  offer any reasonable basis to fix the market value of the land. It is  ’equally  seen that Ex. A. 1 and A. 2  relate  to  small extent  of  land together with buildings  standing  thereon. Therefore, they too do not also form any reasonable basis Or guide to determine market value of large extent of six acres of  the acquired land. The High Court rightly did not  place reliance  therein.  But from the evidence it  is  clear,  as found by the Civil Court, that the lands possessed of poten- tial  value as building sites as the lands are  situated  in the city itself. There was all round development around  the lands.  The lands are situated half a furlong from the  Bom- bay-Kanyakumari National Highway. It also abutts the road to Naduvattom,  a busy bus route within the Corporation,  Cali- cut. It is situated nearby the industrial area. The  Western India Steel Mill, the Premier Steel Mills, Arts and  Science College,  Cinema Theatre, Police Station and  other  offices are  situated  in  close proximity to the  lands  and  that, therefore,  the lands are possessed of potential  value  but

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unfortunately  the appellant did not place any  material  of the prevailing prices as house sites. However, the value  of the  land as fixed at Rs.3,00,000 became final.  The  market value of the income from the trees with 15 years  multiplier was’ worked out at Rs.2,69,42 1.55 p. by the Civil Court and the  High Court accepted to be the correct valuation and  it was also not questioned. But it is lesser than the value  of the land. Being higher in value the appellant is entitled to the  value  of the land as determined by the Civil  Cout  at Rs.3,00,000  (three lakhs) in total. The value of the  trees as  fire wood shall be determined towards  compensation.  We have  noted  the number of coconut trees  etc.  The  learned counsel has left to this Court 556 to  fix any reasonable compensation and On the  totality  of the facts and circumstances we are of the opinion that total sum  of Rs. 10,000 would be reasonable compensation  towards the  value of the total trees as fire wood or as for use  of other purposes after deducting salvage expenses. Accordingly we hold that the appellant is entitled to total cOmpensation of Rs.3,10,000.     Admittedly, the appellant is entitled to solatium at  15 percent and 4 per cent interest under the Kerala Land Acqui- sition Act. Section 30 sub-section (1) of the Land  Acquisi- tion Amendment Act 68 of 1984 reads thus:               "Transitional  Provisions--(1) the  provisions               of sub-section (1A) of s. 23 of the  Principal               Act,  as  inserted by Clause (a) of s.  15  of               this Act, shall apply, and shall be deemed  to               have applied, also to, and in relation to,               (a)  every proceeding for the  acquisition  of               any  land under the principal Act  pending  on               the  30th  day  of April, 1982  (the  date  of               introduction  of the Land Acquisition  (Amend-               ment) Bill, 1982, in the House of People),  in               which no award has been made by the  Collector               before that date;               (b)  every proceeding for the  acquisition  of               any  land  under the principal  Act  commenced               after  that date, whether or not an award  has               been  made  by the Collector before  the  com-               mencement of this Act".               (2) "The provisions of sub-section, (2) of  s.               23 and s. 28 of the principal Act, as  amended               by  CI.  (b) of s. 15 and s. 18  of  this  Act               respectively, shall apply, and shall be deemed               to  have applied, also to, and in relation to,               any award made by the Collector or Court or to               any order passed by the High Court or  Supreme               Court in appeal against any such award’  under               the  provisions of  the, principal  Act  later               the  30th  day of April, 1982.  (the  date  of               introduction  of the Land Acquisition  (Amend-               ment) Bill, 1932, in the House of the  People)               and before the commencement of this Act".      A  reading of the provisions would reveal the  legisla- tive intendment that the transitional provisions could apply to  every proceeding for acquisition of any land  under  the principal Act, namely, Act 1 of 1894 (Central Act),  pending on the 30th day of April, 1982, 557       namely, the date of introduction of the Land  Acquisi- tion  (Amendment) Bill, 2982 in the House of the People;  in which  no award has been made by the Collector before.  that date  or the award made by the. Civil Court at the  date  of

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the Amendment Act, namely, September 24, ,1984.. Thus it  is clear  that  ’the Amendment Act 68 of  1984  including  sub- section (2) s. 23 per se is inapplicable to the  acquisition of the land under the Kerala Land Acquisition Act, 1961.  In Kanthitnathy  Plantation  Pvt. Ltd. v. State.  of  Kerala  & Ors., [1989] 4 SCC 650 this Court held that,by operation  of the  Land Acquisition (Amendment) Act 68 of 1984  read  with Art  254  of the Constitution, the Kerala  Land  Acquisition Act,  1961 by necessary implication stood repealed,  in  its application to the State of Kerala and that the Land  Acqui- sition  Act 1 of 1984 as amended by Central Act 68  of  1984 stands  applicable.  Therefore, the proceedings’  under  the Kerala Act being pending proceedings would be continued from the   stage  at  which  they  stood  at.  Shri   Padmanabhan then.contends  that  the ratio in Union of India &  Ors.  v. Filip Tiago De Game of Veden Vasco De Gama, [1990] 1 SCC 277 would  attract the facts in this case and the  appellant  is entitled  to 30 per cent solatium under the amended Act.  We are afraid  we cannot accede to this contention. The  admit- ted  facts in this case are that the award was made  by  the Collector  on February 29, 1969. On    reference  the  Civil Court  made the award on February 9, 1972. In Filip  Tiago’s case the award was made on March 5, 1969 and the Civil Court on  reference  under section 18 made its award  on  May  28, 1985. In the light of those facts, this Court by  processual interpretation of transitional provision of s. 30(2) avoided injustice  by  eschewing literal construction  and  advanced justice  by mending the law. The ratio is   clearly  distin- guishable.  In  Union  of India &  Anr.  v.  Raghubir  Singh (dead)  by Lrs. etc., [1989] 2 SCC 754 a Constitution  Bench of  this Court, to resolve the conflict of decisions  as  to the ’applicability of the   Amendment Act to pending appeals in  the High Court and in this  Court, held  authoritatively that the award made by the Collector referred to in s. 30(2) is an award made under section 11 of the Parent Act  and the award  made by the Principal Civil Court of original  juris- diction  under  section 23 of the Parent Act,  on  reference made  to it by the Collector under section 18 of the  Parent Act. There can, therefore, be  no doubt that the benefit  of enhanced  solatium intended by s. 30(2) is in respect of  an award  made  by  the Collector between April  30,  1982  and September  24,  1984. Likewise the benefit of  the  enhanced solatium  is  extended by s. 30(2) to the case of  an  award made by the Civil Court between April 30, 1982 and September 24,  1984  even though it be upon reference from  the  award made before April 30, 1982. Thus it was held that the  pend- ency of the appeals against the 558 award  made preceding the aforestated two dates in the  High Court or this Court would not attract the application of  s. 30(2)  and that, therefore, enhanced solatium under  section 30(2)  read  with  s. 23(2) is  inapplicable.  Thereby,  the appellant  is  not entitled to enhanced solatium at  30  per cent. As regards interest is concerned it is fairly conceded that the claimant is entitled only to 4 per cent as  awarded by the courts below.     Accordingly we allow the appeal, set aside the  judgment of the High Court and hold that the appellant is entitled to Rs.3,10,000 as enhanced compensation with 15 per cent  sola- tium  and  interest at 4 per cent on enhanced  market  value from  the date of dispossession. The appeal  is  accordingly allowed with costs of this Court. V.P.R.                                          Appeal   al- lowed. 559

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