Bhimawwa W/O Nagappa Telgeri vs The Asst.Commissioner And Land ...
2021 Latest Caselaw 5519 Kant

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       IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

  DATED THIS THE 06TH DAY OF DECEMBER, 2021

                     BEFORE

      THE HON'BLE MR.JUSTICE M.G.S.KAMAL

             MSA No.1097/2013 (LAC)

BETWEEN

BHIMAWWA W/O NAGAPPA TELGERI
AGE: 72 YEARS, OCC: HOUSEHOLD & COOLIE,
R/O NALWAR VILLAGE, TQ. CHITTAPUR,
DIST: GULBARGA,
                                      ...APPELLANT

(BY SMT. A.M BIRADAR & K S SAKRY, ADVOCATE)

AND

1. THE ASST.COMMISSIONER AND
   LAND ACQUISITION OFFICER
   SEDAM-585222.
   GULBARGA DIST.

2. THE EXECUTIVE ENGINEER
   O & M KPTCL,
   GULBARGA.
                                    ...RESPONDENTS


    THIS MSA IS FILED U/S. 54(2) OF L.A. ACT BEING
AGGRIEVED BY THE JUDGMENT AND AWARD DATED
08.12.2012 PASSED BY THE I ADDITIONAL DISTRICT
JUDGE, GULBARGA IN LACA NO.204/2011 TO BE
                                   2




MODIFIED   BY   ENHANCING     THE  AMOUNT    OF
COMPENSATION AT RS.1,30,000/- PER ACRE WITH ALL
STATUTORY BENEFITS AND WITH PROPORTIONATE COST.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-

                           JUDGMENT

The present Miscellaneous Second Appeal is filed by

the owners aggrieved by the judgment and award dated

08/02/2012 passed in LAC.Appeal No.204/2011 on the file

of the I Additional District Judge, Gulbarga.

2. Brief facts leading up to filing of the appeal are

that the claimant/appellant is the owner of the land

bearing Sy.No.623 measuring 3 acres 39 guntas situated

at Nelwar village, Chittapur Taluk. That the said land was

acquired for the benefit of respondent No.2 by the

Government by issuing a notification under Section 4(1) of

the Land Acquisition Act (for short 'the Act') on

13/01/2000 for the purpose of construction of staff

quarters for KPTCL. The Special Land Acquisition Officer

has fixed the market value at Rs.21,350/- per acre. Being

aggrieved by the same, claimant preferred protest petition

under Section 18(1) of the Act before the Reference Court

and the Reference Court re-assessed the market value and

awarded compensation of Rs.50,400/- per acre. Being

dissatisfied with the same, claimant preferred the appeal in

LACA No.204/2011 in which the LAC First Appellate Court

had awarded compensation of Rs.80,000/- per acre. Being

aggrieved by the same the claimant is before this Court by

way of this Appeal.

3. Learned counsel for the appellant reiterating

the grounds urged in the appeal submits that the LAC

Appellate Court has grossly erred in not awarding

compensation at Rs.1,15,000/- which it had determined in

terms of its reasoning given at para-8 of the order,

wherein the LAC First Appellate Court relying upon the

judgment passed in LAC.No.59/2009 held that the

claimant/appellant herein was entitled for Rs.1,15,000/-

per acre. Having held so, he submits, that the LAC First

Appellate Court ought not to have restricted the

compensation at Rs.80,000/- per acre merely because the

appellant herein has sought for compensation of

Rs.80,000/-. Thus, he submits that the said finding of LAC

First Appellate Court is perverse and against to settled

principle of law, the just compensation needs to be

awarded restriction of the claim made by the claimant.

4. On the other hand, Sri Ravindra Reddy,

learned counsel appearing for the respondent No.2-

beneficiary submits that the order passed by the LAC First

Appellate Court itself is erroneous for the reasons of

relying upon the exemplar in the nature of the judgment

passed in LAC No.59/2009. The Reference Court ought not

to have enhanced the compensation at Rs.80,000/- per

acre. That being the case, he submits that further

enhancement of compensation sought by the

claimant/appellant cannot be awarded. He refers to the

judgment of the Apex Court in the case of

GIRIMALLAPPA VS. SPECIAL LAND ACQUISITION

OFFICER M AND MIP AND ANR reported in AIR 2012

SC 3101 and in the case of CHANDRASHEKAR AND ORS

VS. ADDITIONAL SPECIAL LAND ACQUISITION

OFFICER reported in AIR 2009 SC 3012 and submits

that since the LAC First Appellate Court has not dealt with

the facts and evidence of the matter and has merely relied

upon the judgment passed in another case in

LAC.No.59/2009 the same therefore cannot be accepted.

Hence, he sought for dismissal of the appeal.

5. Heard learned counsel for the parties.

6. On thoughtful consideration of the submissions

of the learned counsel for the parties, the only point that

arises for consideration is:

"Whether the appellant has made out a case for enhancement of compensation"?

7. The acquisition of the land under preliminary

notification under Section 4(1) dated 13/01/2000, for the

purpose of construction of quarters to the staff of

respondent No.2 is not in dispute. The ownership of the

claimant over the property is also not in dispute. The

reference having been made in time is also not in dispute.

At para-8 of the impugned judgment, the LAC First

Appellate Court has held as under.

"8. It appears from the judgment of the trial court that basing on the capitalization method, it has fixed the market value of the acquired land @ Rs.50,400/- per acre. The learned counsel for the appellant has produced the copy of the judgment passed by the IV Addl. District Judge, Gulbarga, in LACA No.59/2009, in a case of Shamsundar Vs. The Assistant Commissioner and LAO, Sedam and others, wherein the IV Addl. District Judge, Gulbarga has enhanced the compensation of Rs.1,00,000/- and in the said case, it is held that the respondents have acquired the land of the claimant for laying the road from Chittapur to Yadgiri under the preliminary notification under Section 4(1) of the L.A. Act dated 21.01.1997. Admittedly, the land in question was acquired under a preliminary notification under Section 4(1) of L.A. Act, dated 13/01/2000 for construction of staff quarters of the KPTCL. It appears from the said judgment that the lands involved in the said case are situated at village Nalwar, Tq: Chittapur of Gulbarga District. Admittedly, the lands in question are situated at village Nalwar, Tq: Chittapur of Gulbarga District. Since, the lands in said LACA were acquired for construction of road and since the land in question was acquired for construction of staff quarters, I have no hesitation to hold that absolutely, there is no impediment to follow the judgment passed by the IV Addl. District Judge, Gulbarga as stated above while fixing the market value in respect of the lands in question. As I have earlier stated, the lands in question were acquired under the preliminary notification under Section 4(1) of L.A. Act dated 13/01/2000 and the lands involved in said LACA case have been acquired under the preliminary notification under Section 4(1) of L.A. Act dated 21/01/1997. Hence, it becomes crystal clear that there is nearly three years difference in between the acquisition of the said lands. The learned counsel for the appellant has relied upon the decision reported in AIR 2004 Delhi 267 in a case of Gaint Ram and others Vs. Union of India. I have gone through the said decision. In the said case, Their Lordships were pleased to consider the escalation at the rate of 12% p.a. In the present case, I feel that if the escalation at 5% per year

is taken into consideration, it will suffice the ends of justice for the reasons that always there is escalation in the prices of the immovable properties from year to year. Hence, by considering the total escalation at 15% in respect of three years out of the market value fixed by the IV Addl. District Judge, Gulbarga in LACA case as stated above, it comes to Rs.1,15,000/- per acre for dry lands (Rs.1,00,000/- X 15% = Rs.15,000/- and the total comes to Rs.1,15,000/-). However, in the present case, the claimant has restricted her claim at Rs.80,000/- per acre. Hence, from my above findings, I have no hesitation to hold that the claimant is entitled for the enhanced compensation of Rs.80,000/- per acre for dry lands, which is proper and correct market value of the lands in question. Hence, from my above findings, it is my considered opinion that by following the judgment passed by the IV Addl. District Judge, Gulbarga as stated above and considering the depreciations as stated supra and the claim made by the claimant, an amount of Rs.80,000/- per acre for dry lands is deserved to be fixed as proper and correct market value".

8. The LAC First Appellate Court though having

assessed the compensation at Rs.1,15,000/- per acre of

dry land has however awarded compensation of

Rs.80,000/- to the appellant merely because the appellant

in the claim petition had restricted his claim for an amount

of Rs.80,000/- per acre for dry land.

9. This Court is of the considered opinion that this

reasoning of the LAC First Appellate Court is erroneous. It

is settled position of law that the best price determined

has to be awarded to the land looser irrespective of lesser

amount claimed by the claimant. If on a just and fair

assessment land looser is entitled for higher compensation

same shall be awarded.

10. The Apex Court in the case of

CHANDRASHEKAR (supra) at paragraphs 13 and 14 has

held under.

"13. From the observations as quoted herein-earlier, we conclude that the decision of the Constitution Bench in Buta Singh (supra) has not reversed the decision in Bhag Singh (supra) and the law laid down in Scheduled Caste Co-op (supra) is materially different from the law established by this Court in Bhag Singh (supra) since both the decisions dealt with different matters and moreover the Scheduled Caste Co-op (supra) decision has in fact recognized the validity of the law laid down in Bhag Singh (supra). Therefore, we are of the opinion that following judgment of Bhag Singh (supra) in the present case shall not be in conflict with the opinion of the Constitution Bench decision in the case of Buta Singh (supra). Thus, in our opinion, it is settled that the High Court should not have deprived the appellants of their rightful claim on the technical ground of want of requisite Court-fees and an opportunity should have been afforded to them for payment of the deficit court fee. This position is also supported by the decision of this Court in a recent case viz Bhimasha v. Special Land Acquisition Officer [(2008 10 SCC 797] wherein it has been held that the High Court should have, after taking note of the facts of the case and the market value determined by it, awarded the higher compensation subject to the payment of the balance court fee.

14. Since we have come to the conclusion that the High Court was not justified in denying the appellants compensation @ Rs.32.10/- per Sq. Ft. after having recorded its finding that the value of the acquired land would be not less than @ Rs.32.10/- per Sq. Ft. on a mere technical ground that the Court-fee paid by the

appellants would entitle them to compensation of only Rs.23/- per Sq. Ft. we now proceed to consider the other submissions of the appellants. The learned counsel for the appellant submitted that since the High Court had awarded compensation @ Rs.100.50/- per Sq. Ft. in MFA. No. 2366/2003 (LAC) C/w MFA CROB No.52/2004 (Asst. Commissioner and the LAO, Bijapur v. Tukaram S/o. Shivaram Zinjade, arising out of LAC No. 180/1998], the appellants should also be awarded compensation at the same rate affording an opportunity to them to pay the deficit Court fee. In this regard our attention was drawn to the decision of this Court in Pal Singh v. UT of Chandigarh (AIR 1993 SC 225"]

11. Therefore, the LAC First Appellate Court has

erred in not granting compensation determined by it at

Rs.1,15,000/- per acre in respect of the said land merely

because of a technical reasons of the claimant for having

been restricted claim for Rs.80,000/-.

12. As regards submission of learned counsel for

the respondent No.2 that the claim for enhancement of

award made by the claimant itself is erroneous and that

the question of enhancement of compensation does not

arise, he refers to the judgment of the Apex Court in the

case of GIRIMALLAPPA (supra), wherein at para-16 of

the judgment the Apex Court made the following

observation.

"16. Mere making a reference in the memo of appeal that the High Court had awarded a higher amount in respect of a land covered by the same Notification under Section 4 of the Act, is not enough. The claimant has to satisfy the court that his land was similar in quality and had same geographical location or was situated in close vicinity of the land covered by the exemplar relied upon by him. In the instant case, no such attempt has ever been made by the petitioner. Thus, it is not that a meritorious case has been thrown out and the cause of justice stood defeated.

Moreso, the exemplar cited first time before the High Court in second Appeal has not been referred to in the First Appeal. In absence thereof, it is beyond imagination as how findings recorded by the Appellate Court could be termed as perverse and be a subject matter of appeal".

13. In the instant case, it is seen that the order

passed by the LAC First Appellate Court relying on the

judgment passed in LACA No.59/2009 is for the reasons

that the lands which were the subject matter of the said

decision were situated in the same village and in the same

district as that off the lands subject matter of the present

appeal. Further the notification which was subject of said

decision was dated 21/01/1997 and the subject matter of

said matter in the present appeal 13/01/2000 which is just

about three years from the date of previous notification.

In view of similarity, situation of lands and the proximity

time of acquisition, applying escalation at 5% p.a. the First

Appellate Court has determined market value at

Rs.1,15,000/-. Even as observed by the Apex Court in the

aforesaid case Girimallappa (supra), there is a reference

and discussion with regard to the subject matter of the

property and also property which was acquired under same

notification and for the same purpose.

14. In the light of the matter, the judgment relied

upon by the respondent No.2 may not be of any avail.

15. For the aforesaid reasons, the appellant

succeeds in this appeal and thus the above point raised is

answered accordingly. Hence, the following:

ORDER

i. The MSA.No.1097/2013 is allowed in part

with costs.

     ii.    The     appellant     is   held   entitled    for

     compensation         of   Rs.1,15,000/-      per    acre

instead of Rs.80,000/- per acre awarded by

the LAC First Appellate Court with all statutory

benefits.

iii. The judgment and award dated

08/02/2012 passed in LACA No.204/2011 is

modified accordingly.

iv. Since there was delay of 368 days in filing

the appeal, appellant is not entitled for the

interest for the said delayed period.

Sd/-

JUDGE MKM