Mrs. Agnee D''Souza and Another vs The Special Land Acquisition Officer

Srinivasa Iyengar, J.—The appeal is by the claimants against the award and decree made by the 2nd Addl. Civil Judge, Mangalore, in O.P. No. 1229/65. Parcels of land comprised in S. Nos. 74/4A, 74/12 and 74/15 in Panambur village were acquired for the purpose of Mangalore Harbour Project. The notification u/s 4 of the Land Acquisition Act was published in the Mysore Gazette on 27-7-1963. The claim before the Land Acquisition Officer by claimant No. 1 was in regard to the value of the land and certain improvements effected on them. The improvements in particular were, a house, well and other trees. The Land Acquisition Officer made an award in regard to Survey No. 74/4A which was treated as Wet II at Rs. 5,000/- an acre, in regard to S. No. 74/12 which was treated as garden land the award was at Rs. 4,000/- an acre; regarding S. No. 74/15 which was treated as Wet III the compensation awarded was Rs. 4,000/- an acre. Feeling dissatisfied with the award made by the Land Acquisition Officer, the claimants sought a reference to the Civil Court. The first claimant was a chalgeni tenant and the second claimant was one of the co-owners of the property. The learned Civil Judge determined the market value of the Wet II land and Wet III land at Rs. 7,500/- and Rs. 6,000/- an acre respectively. In regard to the garden land, he came to the conclusion that no enhancement was justified. In regard to the improvement also he was of the opinion that the award made by the Land Acquisition Officer was adequate. However, he ultimately rejected the reference on the basis that claimant No. 1 was only a chalgeni tenant and claimant No. 2 had not made a claim before the Land Acquisition Officer pursuant to the notice u/s 9 of the Land Acquisition Act. Feeling aggrieved by the rejection of the reference and the determination of the market value of the lands and the improvements, the claimants have appealed.

So for as the wet lands are concerned, the learned Civil Judge valued the lands on the basis of the value of the yield from the lands. The basis adopted by him was the net income of 15 muras of rice in respect of Wet II and 12 muras of rice in respect of Wet III. There is no evidence on record justifying modification of the basis in any manner. We are, therefore, of the opinion that in regard to the market value determined by the learned Civil Judge in respect of the wet lands, no modification is called for. Similarly, with regard to the garden land, the learned Civil Judge proceeded on the basis of the yield, namely, the annual rental of Rs. 200/-. There is no other basis to determine the market value. Accordingly, the claim for enhancement in regard to the garden land also must be rejected.

So for as the improvements are concerned, it is urged that a valuation statement prepared by an Engineer had been filed into Court and the Engineer was also examined as C.W. 4 and the evidence afforded by the same should not have been rejected altogether. Ext. C-5 is his valuation statement and Ext. C-6 is a plan of the building. The learned Civil Judge did not act upon the valuation statement given by C.W. 4 on the ground that it was unilateral and had not been prepared after notice to the Land Acquisition Officer. It is admitted that no notice of the inspection to be made by the Engineer or the valuation he was going to make had been given to the Land Acquisition Officer. This is an infirmity which the learned Civil Judge was entitled to take note of. The more material circumstance in the case is that the claimant was not examined and there was no account maintained in regard to the cost of construction of the building C.W. 1 Saturine D''Souza who is a close relation of claimant No. 2 Lawrence D''Souza stated that he was in charge of the construction but he could not give any particulars about the cost of construction of the building and as to how it has been met. In these circumstances, the valuation as given by the Engineer cannot be accepted on its face value. But, in our opinion, it could not altogether have been ignored because he has given evidence in support of his valuation statement and the valuation statement also gives the rates adopted by him, on the side of the Land Acquisition Officer, no one had been examined. The officials of the P.W. Department who had prepared an estimate of the value of the construction had not been cited or examined as witnesses. Considering the entire circumstances, in our opinion, the value of the building can reasonably be estimated at Rs. 15,000/-. We accordingly modify the market value in regard to the building at Rs. 15,000/-. In other respects, the award of the learned Civil Judge will stand.

The learned Civil Judge''s action in rejecting the reference cannot be supported. Claimant No. 1 had preferred a claim pursuant to the notice u/s 9 of the Act. It also transpires that the statement of claimant No. 2 had also been recorded at an earlier time before the Revalue Inspector. Claimant No. 1 was a chalgeni tenant and he had an interest in the land. A claim by such a person would enure to the benefit of the other persons holding different interests in the property. We therefore hold that the rejection of the reference by the learned Civil Judge was not correct. It has been stated before us that so for as the land value is concerned, it has been agreed between the parties that the entire compensation should go to claimant No. 2. There shall be an order accordingly. In regard to the improvements, the entire value of the improvements should go to claimant No. 1, including the enhanced amount now made in this judgment. The statutory allowance of 15% on the increased amount shall also be paid to claimant No. 1. In the result, the appeal is allowed in part. Parties shall bear their own costs.