Basanna S/O Fakirappa And Anr vs The Chief Engineer Mi And Ors
2021 Latest Caselaw 6054 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 14TH DAY OF DECEMBER 2021

                           PRESENT

          THE HON'BLE MR.JUSTICE R. DEVDAS
                              AND
 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

     MISCELLANEOUS FIRST APPEAL No.200524/2016 (LAC)


BETWEEN:

1.      Bassanna S/o Fakirappa
        Age: Major, Occ: Agri.
        R/o Balluragi, Tq. Afzalpur
        Dist. Kalaburagi

2.      Mallanna S/o Fakirappa
        Age: Major, Occ: Agri.
        R/o Balluragi, Tq. Afzalpur
        Dist. Kalaburagi
                                          ... Appellants

(By Sri Shivanand Patil, Advocate)

AND:

1.      The Chief Engineer, MI
        North Zone, Vijayapur-586 101

2.      The Executive Engineer,
        MI Division, Kalaburagi-586 102
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3.    The Special Land Acquisition Officer
      M & MIP, Kalaburagi-585 102

                                              ... Respondents
(By Sri Shivakumar R. Tengli, AGA)

     This MFA is filed under Section 54(1) of the Land
Acquisition Act, praying to hear the parties and modify the
judgment and award dated 15.09.2012 in LAC No.15/2009
of Senior Civil Judge at Afzalpur and re-determine and
award the correct compensation by allowing the appeal.

     This appeal coming on for           Hearing,   this   day,
R. Devdas J., delivered the following:

                       JUDGMENT

R. DEVDAS J., (ORAL):

The appellants have preferred this miscellaneous

first appeal under Section 54(1) of the Land Acquisition

Act (for short, 'the L.A. Act') to re-determine the award

passed by the reference Court in LAC No.15/2009.

2. A notification dated 15.11.2006 was passed

under Section 4(1) of the L.A. Act expressing the

intention of the State Government to acquire about 25

acres 25 gunts of lands situated at Balluragi village,

Afzalpur Taluk, Kalaburagi District, for the purpose of

establishing a percolation tank. The final declaration

under Section 6(1) of the L.A. Act was made on

09.11.2007 in respect of 23 acres 13 guntas only. The

Special Land Acquisition Officer determined the

compensation at the rate of Rs.25,000/- per acre in

respect of dry lands and Rs.37,500/- per acre in respect

of the wet lands and passed an award accordingly, on

14.01.2008. The appellants herein filed protest petition

for referring the matter to the Civil Court on the ground

that the Special Land Acquisition Officer had not

properly assessed the market value. It was contended

before the reference Court that the lands were very

fertile, irrigated lands, growing crops such as

sugarcane, banana, wheat, groundnut, vegetables and

toor by using the water from a well. During the course

of the proceedings before the reference Court the

appellants herein placed reliance on Exs.P.14, 15 and

17 to buttress their contention that the award passed

by the Special Land Acquisition Officer was far meager

than the market value. The reference Court accepted

the contentions of the appellants and placing reliance

on Ex.P.17 which is a judgment and award passed in

LAC No.5/2010, noticed that the notification under

Section 4(1) of the L.A. Act was issued barely a week

after the notification was issued in the present case.

The 4(1) notification was issued in LAC No.5/2010 on

23.11.2006. The award had been enhanced to

Rs.3,55,200/- per acre in LAC No.5/2010. Having

noticed all these aspects, the reference Court enhanced

the compensation to Rs.3,55,200/- per acre in respect

of the entire holdings of the appellants which were

notified for acquisition.

3. The contention of the learned counsel for the

appellants is that no doubt the reference Court accepted

the contention of the appellants while placing reliance

on Ex.P.17, which is a judgment and award passed in

LAC No.5/2010 and had enhanced the compensation.

However, during the course of these proceedings, an

application under Order XLI Rule 27 of CPC was filed at

the hands of the appellants to produce two documents

namely, a judgment and award in LAC No.232/2012

and the average rate or price list dated 08.03.2016

issued by the Secretary, Agricultural Produce Marketing

Committee, Kalaburgi. The learned counsel would

contend that the reference Court in LAC No.232/2012

considered enhancement of compensation based on

capitalization method. The learned counsel submits

that in order to buttress his contention that if

capitalization method was adopted, then having regard

to the price list date 08.03.2016, the appellants herein

would have been awarded better compensation.

4. It is submitted that for the year 2006-07, as

per the price list, one quintal of banana would fetch a

minimum of Rs.600/- and maximum of Rs.700/-. It is

pointed out from the judgment and award passed in

LAC No.232/2012 that the reference Court had rightly

assessed the market price for one quintal banana at

Rs.700/- and based on the inputs given by the APMC,

the reference Court arrived at Rs.140/- per bunch and

therefore having regard to the fact that in 01 acre of

land, 1200 banana plants could be grown, it assessed

the yield at Rs.1,68,000/-. By deducting 50% towards

cost of cultivation, the reference Court arrived at

Rs.84,000/- per acre. Further, having regard to the

decision of the Hon'ble Supreme Court in the case of

Airport Authority of India vs. Satya Gopal Roy &

Ors., reported in 2002 (3) SCC 527, multiplier of '8'

was adopted and the reference Court arrived at the

market value of Rs.6,72,000/- based on the

capitalization method. This was determined as the real

market value. The learned counsel would therefore

submit that as per the information given by the APMC,

this Court should re-determine the award taking

Rs.600/- as the rate for one quintal of banana. It is the

submission of the learned counsel that even according

to Special Land Acquisition Officer, the entire 09 acres

25 guntas are irrigated lands and since banana was the

main crop grown by the appellants, the same method

used in LAC No.232/2012 should be applied and the

compensation should be re-determined.

5. Per contra, learned Additional Government

Advocate would submit that when the reference Court

has considered the best evidence submitted by the

appellants herein i.e., Ex.P.17, which is a judgment and

award passed in LAC No.5/2010, this Court should not

allow the appellants to seek further enhancement of the

award based on another judgment and award passed in

respect of a notification issued 04 years subsequent to

the notification issued in the present case. Moreover, it

is submitted that there is no material on record to

substantiate the contention of the appellants that the

entire 09 acres 25 guntas were irrigated lands and that

banana was grown in the entire area.

6. We have heard the learned counsel for the

appellants, learned Additional Government Advocate

and have perused the original records. We have given

our anxious consideration to the submissions at the

Bar.

7. We find substance in the submission of the

learned Additional Government Advocate, that the

appellants herein having furnished three judgments and

awards in the form of Exs.P.14, 15 and 17 and the

reference Court having considered the best of the

compensation as determined in Ex.P.17, which was

closest in terms of the difference in the duration of the

notification namely, only one week, we are not

impressed with the submission of the learned counsel

for the appellants to re-consider the award based on a

judgment and award passed in another land acquisition

case wherein the notification was issued 04 years later.

We also find from the impugned judgment and award

that due consideration was also given to the contentions

of the appellants who had produced the yield certificate

at Ex.P.23, certified copy of the price list at Ex.P.24, etc.

Out of three judgments and awards in the three land

acquisition cases that were relied upon by the

appellants before the reference Court, the reference

Court has accepted the best of the three judgments and

awards and consequently the reference Court enhanced

the compensation from Rs.37,500/- to Rs.3,55,200/-.

8. It is also required to be noticed that inspite

of the finding of the SLAO that only 07 acres of the

lands belonging to the appellants were irrigated and

therefore considered as wet lands, while 02 acres 25

guntas of lands were dry lands, however, the entire 09

acres 25 guntas have been taken as wet lands or

irrigated lands and a uniform compensation of

Rs.3,55,200/- per acre has been awarded by the

reference Court in respect of the entire 09 acres 25

guntas. Such being the case, we do not agree with the

appellants that the impugned judgment and award

suffers from any lacuna. Merely because a higher

compensation has been granted by the reference Court

in respect of lands from the neighboring village, it does

not entail the appellants to seek enhancement of the

compensation. As noticed earlier, in LAC No.232/2012

the 4(1) notification was issued on 15.04.2010, while in

the present case the 4(1) notification was issued on

15.11.2006. There is a difference of about 04 years in

the issuance of the 4(1) notification. We are of the

considered view that the reference Court having re-

determined the compensation by taking into

consideration judgment and award passed in LAC

No.5/2010 wherein the notification was issued barely 7

days after the notification was issued in the present

case, more so as the said judgment and award in LAC

No.5/2010 was relied upon by the appellants herein, it

would be unreasonable to re-determine the

compensation on the basis of the another judgment and

award in respect of a notification which was issued 4

years later.

9. For the reasons stated above, we hold that

there is no merit in the appeal. Accordingly, the appeal

stands dismissed confirming the judgment and award

passed by the reference Court in LAC Nos.15/2009.

Ordered accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

BL