Bouravva W/O Girimallappa ... vs The Special Land Acquisition ...
2021 Latest Caselaw 5806 Kant

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        IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

   DATED THIS THE 9TH DAY OF DECEMBER, 2021

                      BEFORE

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

               MSA No.200161/2018

BETWEEN

BOURAVVA W/O GIRIMALLAPPA GALAGAI
AGE: MAJOR, OCC: H.HOLD WORK,
R/O HALASANGI, TQ. INDI, &
DIST. VIJAYAPUR, BY HER GPA HOLDER
SIDRAMAPPA S/O GIRIMALLAPPA GALAGAI,
AGE: 56 YRS. CC: AGRICULTURE,
TQ. INDI & DIST. VIJAYAPUR-586207
                                         ...APPELLANT

(BY SRI B. M. ANGADI, ADVOCATE)

AND

THE SPECIAL LAND ACQUISITION OFFICER
UKP, INDI, 586209. TQ. INDI,
DIST. VIJAYAPUR-586209
                                       ...RESPONDENT

(BY SMT. MAYA T. R., HCGP)

     THIS MSA IS FILED UNDER SECTION 54(2) OF THE
LAND ACQUISITION ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD PASSED BY JUDGMENT AND
AWARD BY THE SENIOR CIVIL JUDGE AND JMFC, INDI IN
LAC NO.02/2009 DATED 07.08.2013 AND THE JUDGMENT
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AND AWARD PASSED BY THE III ADDITIONAL DISTRICT
JUDGE,   VIJAYAPUR   IN  LACA    NO.7/2015  DATED
20.09.2016 IN RESPECT OF AGRICULTURAL LAND
BEARING SY.NO.366/2 OF HALASANGI VILLAGE, TQ: INDI
FOR AN EXTENT OF 0.31 GUNTAS, HAVING 129 BER FRUIT
TREES, ALONG WITH ALL STATUTORY BENEFITS AS
CLAIMED BY THE APPELLANT AND TO PASS ORDERS FOR
ANY OTHER RELIEF AS DEEMED FIT BY THIS COURT.

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

                            JUDGMENT

The present appeal is filed by the claimant under

Section 54(2) of the Land Acquisition Act (for short 'L. A.

Act) being aggrieved by the judgment and award dated

20.09.2016 passed in LACA No.7/2015 on the file of III

Additional District Judge, Vijayapur at Vijayapur (for short

'first appellate Court').

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

that the appellant herein is the absolute owner of the land

measuring 31 guntas farming part of Survey No.366/2 of

Halasangi village, Indi taluka. That the appellant was

growing ber fruits and was having 129 trees on the said

property. That by notification dated 12.11.1998 issued

under Section 4(1) of the L. A. Act, the respondent sought

to acquire the aforesaid land of the appellant. The Land

Acquisition Officer passed an award on 27.01.2009

determining the compensation payable for the said 129 ber

trees spread over 31 guntas of the land. Aggrieved by the

same, the claimant sought reference of the matter before

the reference Court. Before the reference Court, the

matter was taken up in LAC No.2/2009 on the file of Senior

Civil Judge and JMFC, Indi, who by its order dated

07.08.2013 enhanced the market value to the tune of

Rs.8,13,990/- for 129 ber trees. Being dissatisfied with

the said award, the respondent - State has preferred an

appeal in LACA No.7/2015 and the appellant herein had

preferred cross objection under Order 41 Rule 22 of CPC

seeking enhancement of the compensation. By the

impugned judgment and order, the first appellate Court

has dismissed both the appeal and the cross objection by

confirming and upholding the order passed by the

reference Court. Aggrieved by the same, the

appellant/claimant is before this Court.

3. The learned counsel for the appellant/claimant

reiterating the grounds urged in the appeal memorandum

submitted that the reference Court as well as the first

appellate Court grossly erred in awarding compensation

without taking into consideration the material evidence and

the factual aspect of the matter. He submits that

admittedly the appellant had planted 129 ber trees on the

land acquired and was harvesting 100 to 150 kgs. of ber

fruits from each tree. That the value of the ber fruit during

the year 1998 was Rs.12.62ps./- per kg and the yield

expectancy was over 30 years. Therefore, he submits that

the reference Court as well as the first appellate Court

committed error in not taking this aspect of the matter

while applying in capitalization method for determining the

compensation.

4. Further referring to a judgment and order

dated 20.12.2018 passed in LAC No.85/2013 connected

with LAC No.86/2013 on the file of II Additional Senior

Civil Judge, Vijayapur, where the reference Court therein

had applied multiplier of '20' in respect of lemon trees and

coconut trees and in respect of which an opinion dated

10.01.2020 was given by the Commissioner for Land

Acquisition, Navanagar, Bagalkot, not to prefer an appeal

against the said order, learned counsel submits that in the

instant case as well, the reference Court and first appellate

Court ought to have applied multiplier '20' instead of '10'

considering the expectancy of the yield. Therefore, he

submits that the reference Court and the first appellate

court were in clear error in not awarding just

compensation.

5. He also relies upon the judgment of the Apex

Court in the case of State of T.N. vs. Rev. Brother

Joseph reported in AIR 1973 SC 2463, wherein the Apex

Court under the facts and circumstances of the said case

had held that where the fruit bearing trees are likely to

yield for more than 20 years, capitalization of the net

income at 20 years purchase is not improper. Thus, based

on the above material evidence and the precedents, the

learned counsel submits that in the instant case, the

appellant be awarded compensation by applying the

multiplier of '20'.

6. On the other hand, the learned High Court

Government Pleader appearing for the respondent submits

that the award of compensation by the reference Court

and the first appellate Court is just and proper. She

submits that to apply the multiplier of '20', the appellant

has to establish the yield for the next 20 years and in the

absence of said material and anything that less than said,

multiplier '10' is proper and the same cannot be found

fault with. She relied upon the judgment of the Apex

Court in the case of Assistant Commissioner-cum-Land

Acquisition Officer, Bellary vs. S.T.Pompanna Setty

reported in 2005(2) Kar. L.J.370(SC), wherein, the Apex

Court has applied the multiplier of '10' and has considered

the same to be proper. Hence, sought for dismissal of the

appeal.

7. Heard the learned counsel for the parties.

8. On considering the submissions made by the

learned counsel for the parties, the point that arises for

consideration is:

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

9. The land in Survey No.366/2 of Halasangi

village, Indi taluka is belonging to the appellant is not in

dispute. It is also not in dispute that the appellant had

planted 129 ber trees, which were fruit yield. The

appellant in her affidavit evidence filed in lieu of chief

examination before the reference Court at paragraph No.3

has deposed that the expected age of the ber fruit trees is

40 years. At the time of issuance of notification for

acquisition of the said land, the age of the fruit bearing

trees was about six years and that from the date of the

notification, the expected yield of the fruit was minimum

30 years and that the acquisition of land has deprived her

of the said yield. The said evidence on record has not

been discredited by the respondent by leading any rebuttal

evidence. Nothing has been elicited in the cross

examination disputing the age of the fruit bearing trees as

stated by the appellant/claimant in the affidavit evidence.

Thus, the age of the trees is approximately being six years

at the time issuance of notification stands fortified.

10. The Apex Court in the case of State of T.N.

(Supra) has held that where the fruit bearing trees are

likely to yield for more than 20 years, the capitalization of

the net income at 20 years purchase is not improper. In

the case of Assistant Commissioner (Supra), the Apex

Court has applied multiplier of '10' as there was no

material evidence with regard to the age of the trees and

yield expectancy. There cannot be any dispute with regard

to the aforesaid principles of law in respect of application

of multiplier '10' in the case of expectancy is below 20

years and application of multiplier '20' is above 20 years.

In the instant case, the appellant/claimant is an

agriculturist has asserted and deposed by way of an

affidavit that the age of the fruit bearing trees being six

years at the time of issuance of notification and yield

expectancy was minimum of 30 years. It is just and

proper that the multiplier of '20' be applied while

calculating the net income. The said method would be in

consonance with the law laid down by the Apex Court and

also the judgment and order dated 20.12.2018 rendered in

LAC No.85/2013 connected with LAC No.86/2013 on the

file of II Additional Senior Civil Judge, Vijayapur, to which

the respondent herein has given opinion not to prefer any

appeal thereon. Thus, there is considerable force in the

submission made by the learned counsel for the

appellant/claimant for enhancement of compensation.

11. The reference Court as well as the first

appellate Court have merely applied the multiplier of '10'

without assigning any reason for application of said

multiplier. Therefore, this Court is of the considered view

that the said judgments require interference. For the

aforesaid reasons and analysis, the compensation payable

shall be recalculated, as per the letter at Ex.P3, inasmuch

as, except the application of multiplier, the other material

evidence relied upon by the reference Court and the first

appellate Court are held as just and proper. Therefore,

upon the calculation made at paragraph No.13 of the

judgment of the reference Court, the modification is made

only to the extent of applying the multiplier '20' instead of

'10'. The said paragraph is extracted hereunder for

reference:

"13. Ex.P3 a letter showing the average yields of bari trees as 50Kg to 150Kg per year and the average price of bari fruits as per Ex.P5 is Rs.12.62 per Kg. So average yield of Bari trees is taken as100 Kg per tree. So, the income of each bari fruit comes to Rs.1262. As the lands in question are fruit bearing lands, 50% of the said income shall be deducted towards cultivation costs it comes to Rs.631/-per tree, and if the same is taken in to consideration and multiplied with net income it will comes to Rs.631x10=6310 as net market value of each bari tree and as there were 129 bari trees the total market

value of all 129 trees comes to Rs.8,13,990/-."

12. Thus, calculated as Rs.631 x 20 (multiplier)=

Rs.12,620/- per ber tree, the net market value of each ber

trees would be Rs.16,27,980/- (12,620 x 129). Hence, the

appellant/claimant is entitled for enhanced compensation

of Rs.16,27,980/- together with all incidental benefits.

Hence, the following:

ORDER

a. The appeal filed by the appellant/claimant is

allowed in part with cost.

b. The judgment and order passed by the first

appellate Court in LACA No.7/2015 is modified.

c. The appellant/claimant is entitled for enhanced

compensation of Rs.16,27,980/- with all

incidental benefits.

Sd/-

JUDGE Srt