K.A.A. RAJA AND ORS. ~ ' v. STATE OF KERALA AND ANR.

APRIL 26, 1994

B

• • Kera/a land Acquisition Act. 1962 : S.3( 1}-Acquisition of cardamom plantation Capitalisation method used in determining market value of the land so acquired-Determination of appropriate multiplier. c The respondent proposed to acquire 52.88 acres of cardamom plan ta- tion by a Notification issued under Sec.3(1) of the Kerala Land Acquisition Act, 1962, for Periyar Tiger Reserve. The possession was handed over to the State and the Land Acquisition Officer determined the market value of the said land in a sum ofRs.14,75,385.25. On reference under Sec.18 of the Act, D the Subordinate Judge enhanced the market value to 1,97,77,772.60. The appeal by the State was allowed by the High Court and the High Court determined the market value of the said land at Rs. 23,73,967.70.

·· Joginder Singh Saini v. State of Horyana, AIR (1990) SC 1219 and ., Periyar and Pareekanni Rubbers Ltd. v. State of Kera/a, AIR (1990) SC 2192, H referred to. 740

K.A.A. RAJ A v. STATE 0 F KER ALA. 741

2. The Court equally has duty on an overall consideration of facts and circumstances available in particular case on hand, keeping in view the number of trees, their ages, their yield and the price fetched or likely to fetch in the open market should apply appropriate multiplier in deter- mining the market value of the pla!ltation. 7 years multiplier for purpose of capitalisation of net income would he proper multiplier though income may vary depending on evidence. Calculating on the aforesaid basis, the appellant would be entitled to the market value in a sum Rs. 36 lakhs for the total extent of 32 acres 88 cents and usual benefits of 30% solatium on the enhanced market value and interest at 9% for the first year from the date of taking possession and 15% interest from the date of expiry of one year till date of making payment of compensation. However, the entitle- C ment with regard to the payments of the interest under Sec. 23(1-A) would depend upon the decision to be rendered by the Constitution Bench in K.S. Paripoomam's case. [744-E·F, 745-A·C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2001 of D 1992.

From the Judgment and Order dated 21.1.91 of the Kerala High Court in L.A.A. No. 226 of 1990.

M.R. Thyagarajan, M.A. Chinnasamy and M.K. Krishnamoorthy for E the Appellants.

M.T. George for the Respondents.

The following.Order of the Court was delivered :

This appeal by special leave arises from the judgment of the Division F Bench of the Kerala High Court dated January 21 1991 in L.A.A. No 226/90 and cross-objections. The appellants are the claimants. The Govern- ment of Kerala proposed to acquire 52.88 acres of Cardamom plantation situated in Mappara village in Peermade Taluk of Idukki district of Kerala State by a notification issued under s.3(1) of the Kerala Land Acquisition G Act, 1961, Act 21 of 1962, for short 'the Act' and published in the State Gazette on January 10, 1984, for Periyar Tiger reserved forest. Possession was taken on May 7, 1984 and the same was handed over to the Forest .,, ~ Department on June 8, 1984. The Land Acquisition Officer by his award dated October 10, 1985 detenpined the market value of the said land in a H

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A sum of Rs. 14,75,385.25. On reference under s.18 of the Act, the Land Acquisition Court (Subordinate Judge) enhanced the market value of the said land by his judgment and decree dated February 22, 1990 to Rs.1,97,77,772.60. On consideration of the appeal by the State and also the cross-objections filed therein, the High Court while allowed the appeal of B the State, dismissed the cross objections. It determined the market value of the said land at Rs. 23,73,967.74. Dissatisfied therewith, the appellants have filed this appeal seeking enhanced market value of the lands a.:quired.

The contention of the learned counsel for the appellants was that the High Court had committed grievous error in accepting Ex. B-4 and B-5(a) C in fixing the average of the yield at 100 Kgs. per hectare and also the price per kilogram at Rs. 220 per kg. The learned counsel has taken us through the evidence and the findings recorded by the Land Acquisition Court(Subordinate Judge) as well as the High Court. As seen from its judgment, the high Court has committed gross mistakes in compnting the income from the estates acquired. Ex. B-4 is a statement made by the Reserved Forest Officials on June 16, 1984 to the effect that the plantation was not properly maintained and that on the date of taking over, there was considerable damage to the crop. There is no reason to dispute the same. Ex.B-5(a) is the certified copy of the record relating to assessment of agricultural income secured by the Land Acquisition Officer. It was marked in the Civil Court by consent of the parties and the Government has relied upon it. We find therefrom that for the years 1980-81, 1981-82 and 1982-83, the appellants have submitted nil income returns for the assessments of the income derived from the lands but the Agricultural Income Tax Officer had assessed the income by best of judgment. Therein F the Agricultural Income-tax Officer had relied upon the statement made by the eight sets of claimants in the assessments. They concluded that total land was 52.88 acres and the yield for the year 1982-83 was 3079 .5 kg. which we have rounded at 3089 kg. Though the learned counsel sought to rely upon the auction sales held in the year 1983 at the relevant time for Rs. 4,459 of 6.3. kg. and Ex.B-13 Rs. 472.81 for auction held on December 13, G 1983 and Rs. 483.22 for the auction held on December 6, 1983 and the average was worked out by the Civil Court at Rs. 471.87 per kg. The High Court has rightly rejected the working out the average at the aforesaid rate for valid reasons. It had determined at the rate of Rs. 220 per kg. as the reasonable prevailing price taking into account the prevailing price for H

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three years prior to the year 1982-83 and worked it out at the average and determined the price at Rs. 220 per kg. The method adopted by the High Court is fair and just, and that it meets the exigencies of the situation. The High Court also found that there was 8 hectare of the plantation where five years old plants were found, in 7 hectare of the plantation where six years old plants were found and 6.14 hectare plant~tion where 9 years old plants were found. It was agreed that maximum period which the plants would yield Cardamom would be 15 years. On that basis the learned Judges worked out the capitalised value at 10 years, 9 years and 6 years yields • respectively and determined the market value evolving multipliers for those years. It worked out to average yield at 100 kgs. per hectare. This principle adopted was not correct since actual yield as assessed by the Asst!. lncome- c tax Department for the purpose of income-tax was there and it had attained finality. The State produced and relied upon this assessment order as evidence It is clear that the income assessed by the Agricultural Income-tax Officer, as having been derived by the appellants from the lands in question during the relevant years, was accepted by the appellants and suffered the tax. For the relevant years 1982-83 the Income-tax Officer estimated the total yield of the Cardamom as 3080 kgs. If it is multiplied by Rs. 220 per kg. Rs. 6,77,600 would be estimated gross income derived by the appellants. High Court also found that the expenditure incurred by the appellants was Rs. 3036 per acre which worked out to be for 53 acres at Rs. 1,60,590.00 Thus after deducting the expenditme from the gross income the net income would be Rs. 5,17,000. The question then is what would be the appropriate multiplier that would be applied in a case like this. ·

That long delay would occur from the date of the proposal to acquire a particular land for a public purpose till final decision in that behalf is taken and a notification under s.4(1) of the Land Acquisition Act is issued and published in the gazette. In the meanwhile it would become a matter of common knowledge, in particular, the o~ners will come lo ~,;iown that their lands will be proposed for acquisition. Instances are not uncommon where attempts will be made to boost up the value of the ·acquired lands. Some times fruit bearing trees are planted and reports are obtained of the existence of the trees \vith reference to their specific ages. This case itself establishes from the record that, but for the report of the Forest Officer, the report given by the Subordinate Officers of the Revenue Department .-"' - ..... would have persuaded the courts to accept the report of the Revenue Officers that the plantation maintained was of high standards and in good H

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A conditions which wa.' belied by the report of the Forest Officials, as accepted by the High Court, Therefore, it would be necessary in every case to place a correct report before the reference court, the true state of affairs regarding the number of trees, their ages, their yield, in particular where capitalisation method is to be adopted to determine the market value of the acquired land. In Joginder Singh Saini v. State of Haryana, AIR (1990) B SC 1219 this court held that the mother trees are to be valued as wood and the nursery plants are not to be separately valued, but with a direction to be taken away by the owner. In Periyar and Pareekanni Rubbers Ltd. v. State of Kera/a, AIR (1990) SC 2191 = [1990] Suppl. SCR 362, this court held that it is the duty of the court to determine just and fair market value and C the conduct of the Land Acquisition Court or officer in that behalf, if found to be a misconduct, lhe officer was amendable to disciplinary proceedings for misconduct. That apart the claimants should produce necessary evidence on the value of 'and since the burden of proof is on them to establish the higher compensation claimed. Equally the Officer-in-Charge D has responsibility and duty to place all material and relevant evidence in rebuttal of the enhanced claim. As a part thereof the condition of the trees, the ages of the trees their number and the total yield derived from the trees being material and relevant facts to adjudge not only the value of the produce, but also to apply suitable multiplier to rletermine the market value as compensation. The court equally has duty, on an overall consideration of the facts and circumstances available in the particular case on hand, while determining the number of trees, their ages, the yield and the price fetched or likely to fetch in the open market should apply appropriate multiplier in determining the market value of the grove or plantation etc. In any case for want of appropriate evidence as to multiplier adduced by either party, we take seven years' multiplier for purpose of capitalisation of net income, though income may very depending on evidence.

We have seen from the evidence the nature of the trees and their yield accepted by the Income-ta.x authorities and the price fixed by the High Court. On an overall consideration of the prevailing prices though for one year there may be higher prices, but on an average it was found that the price would be at Rs. 220 per kg. To apply the capitalisation method, on the facts and circumstances, we consider that in assessing the market value of the plantation of a large extent of the lands acquired in the notification, the suitable and proper multiplier could be taken as 7 .. H years.

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Therefore, applying the 7 years multiplier with reference to the year of acquisition for the propose of capitalising the net income we consider that the just and proper market value would be round figure of 36 lakhs. The appellants, therefore, would be entitled to the market value of sum of Rs. 36 lakhs of the total extent of 52 Acres 88 Cents. Therefore, the appellants are entitled to the market value of Rupees thirty six lakhs for their lands with everything thereon and usual benefits of 30% solatium on the enhanced market value and interest at 9% for the first year from the date of taking possession and 15% interest from the date of expiry of one • year till date of makiog payment of compensation. The entitlement with regard to the payment of the interest under s.23(1-A) would depend upon the decisions to be rendered by the Constitution Bench in KS. C Paripooman's case and the auth_ority depending upon the judgment would work out that benefit also.

The appeal is allowed to the above e;,ient. But in the circumstances, the parties are directed to bear their own costs. D S.S.H.R. Appeal allowed.