Smt. Kamlabai W/O Chitanand ... vs The State Through And Anr
2021 Latest Caselaw 6827 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 20TH DAY OF DECEMBER, 2021

                      BEFORE

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

             MFA No.200039/2014 (LAC)

BETWEEN

SMT. KAMLABAI W/O CHITANAND KARDALE
AGE: MAJOR, OCC. HOUSEHOLD AND AGRICULTURE
R/O VILLAGE AMDABAD TQ. BHALKI DIST. BIDAR
                                       ...APPELLANT

(BY SRI SANJEEV KUMAR C. PATIL, ADVOCATE)

AND

1.     THE STATE THROUGH
       ASST. COMMISSIONER/SPECIAL
       LAND ACQUSITION OFFICER,
       ZILHA PANCHAYAT BIDAR

2.     THE EXECUTIVE ENGINEER
       PANCHAYAT RAJ ENGINEERING (Z.P.)
       DIVISION, BIDAR
                                     ...RESPONDENTS

(BY SRI. PRASHANT S. KUMMAN, ADVOCATE FOR R2;
SMT. MAYA T. R., ADVOCATE FOR R2)

    THIS MFA FILED U/S. 54(1) OF LAC ACT, AGAINST
THE JUDGMENT AND AWARD DATED 11.07.2013 PASSED
IN LAC NO.133/2010 ON THE FILE OF THE SENIOR CIVIL
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JUDGE AT BHALKI, PARTLY ALLOWING THE CLAIM
PETITION   AND   SEEKING   ENHANCEMENT  OF
COMPENSATION.

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

                              JUDGMENT

This appeal is filed by the appellant/claimant under

Section 54(1) of the Land Acquisition Act ( for short 'L. A.

Act') aggrieved by the judgment and order dated

11.07.2013 passed in LAC No.133/2010 (in a common

judgment passed in LAC Nos.131/2010, 133/2010,

134/2010 and 136/2010) on the file of the Senior Civil

Judge, Bhalki (for short 'reference Court').

2. The subject matter of the present appeal is the

land bearing Survey No.12/2B measuring 1 acre 35 guntas

of Amadabad village, Bhalki taluka and Bidar district. The

respondents - Government proposed to acquire the said

land in terms of notification dated 31.01.2008 issued

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

construction of percolation tank. The Special Land

Acquisition Officer (for short 'SLAO') has passed an award

fixing the market value of the land at `18,606/- per acre

for dry lands and `23.257/- per acre for wet lands

respectively. Being dissatisfied with the same, the

appellant/claimant has sought reverence of the matter to

the Civil Court for adjudication.

3. Thereupon, the matter was taken in LAC

No.133/2010 on the file of the reference Court. The

respondents upon notice, filed statement of objections

contending that the lands have been acquired after

conducting a detailed enquiry and compensation awarded

is just and proper. That the appellant/claimant has not

produced any document to show the number of crops

grown, actual yield and net income that was being

received by the appellant/claimant prior to the notification

issued under Section 4(1) of the L. A. Act. and that the

claim of the claimant was hypothetical without any basis.

4. The appellant/claimant examined himself as

PW.2 and common documents have been produced as

Exs.P1 to P24. No witness has been examined on behalf of

the respondents and no document is marked. The

reference Court after appreciation of the material

evidence, allowed the said reference along with other

matters as noted above fixing the compensation at

`1,93,725/- per acre for the acquired land with interest at

12% per annum along with all benefits as per the

provisions of the law by its judgment and award dated

11.07.2013. Being dissatisfied with the said judgment and

award, the appellant/claimant is before this Court in this

appeal.

5. The learned counsel for the appellant

reiterating the grounds in the appeal memorandum

submits that the appellant/claimant was growing Mulberry

crop on the acquired land. That the acquired land being

wet land was capable of growing sugarcane and other

crops. He submits that the reference Court without taking

into consideration the potentiality of the land capable of

growing crops like, sugarcane, has awarded compensation,

which is very low. Drawing the attention of this Court to

the inspection report referred to in the award passed by

the SLAO dated 31.12.2009 at page No.4, he submits that

the very finding of the SLAO after inspecting the land

personally, held that the crops like, vegetables, sugarcane,

rice and wheat were being grown on the subject land.

Thus, he submits that the aforesaid material evidence even

as relied upon by the SLAO would establish the fact that

the land was being capable of growing sugarcane and

therefore, the same has to be taken into consideration.

Learned counsel relied upon the judgment passed by the

co-ordinate Bench of this Court in MFA No.30804/2013,

wherein this court taking into consideration the

compensation payable in respect of the lands situated in

the same taluka and district acquired for the purpose of

formation of railway lane between Bidar to Kalaburagi

under the notification of the year 2003, has fixed the

compensation payable at `2,87,100/- per acre. Thus, he

submits that the present notification is dated 31.01.2008

i.e., about four years subsequent to the notification that

was subject matter of the aforesaid MFA No.30804/2013,

an escalation be provided at 10% and compensation be

fixed thereon. Hence, he sought for allowing of the

appeal.

6. On the other hand, the learned High Court

Government Pleader appearing for respondent No.1 and

the learned counsel appearing for respondent No.2 submit

that the compensation awarded by the reference Court is

just and proper and same does not warrant any

interference. They submit that in the absence of material

evidence produced by the appellant/claimant with regard

to the actual nature of the crop being grown, the reliance

cannot be made on the precedents, which are passed

based on the crop like, sugarcane. They further submit

that assuming the appellant/claimant is entitled for the

compensation payable on the basis of the judgment of this

Court in MFA No.30804/2013, the notification subject

matter of the said decision is of the year 2003 and the

present notification is of the year 2008, therefore, it is

submitted that the escalation cannot be at 10% as claimed

by the appellant/claimant and it has to be at 5%. Hence,

seek for dismissal of the appeal.

7. Considering the rival submissions of the

parties, the point that arises for consideration in this

appeal is:

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

8. The fact that the subject land belonged to the

appellant/claimant is not in dispute. It is also not in

dispute that the subject land was sought to be acquired for

the purpose of construction of percolation tank in terms of

the notification dated 31.01.2008. There is also no dispute

about the fact that Mulberry crops were being grown on

the acquired land with irrigation facilities. As rightly

pointed out by the learned counsel for the

appellant/claimant, the SLAO while determining the

compensation, at page No.4 of the award, has held as

follows:

"¸ÀܼÀ ¥Àj²Ã®£É PÁ®PÉÌ PÉ®ªÀÅ ªÀiÁgÁlªÁzÀ d«ÄãÀÄUÀ¼À ¸ÀܼÀ vÀ¤SÉ ªÀiÁqÀ¯Á¬ÄvÀÄ. ¸Àzj À d«ÄãÀÄUÀ¼ÀÄ ºÁUÀÆ ¸Áé¢Ãü £À¥r À ¹PÉƼÀĪ î À d«ÄãÀÄUÀ¼ÀÄ MAzÉà vÉÃgÀ£ÁV ªÀÄvÀÄÛ ¨É¼A É iÀÄĪÀ ¨É¼U É ¼À ÀÄ d«Ää£À ¥s® À ªÀvÀÛvÉ EªÉ®ªè ÀÅUÀ¼£À ÀÄß MAzÉÃvÉÃgÀ£ÁV PÀAqÀÄ §A¢gÀĪÀzj À AzÀ ªÀiÁgÁlªÁzÀ RÄ¶Ì d«ÄãÀÄUÀ¼ÀÄ ¸ÀgÁ¸Àj ¨É¯É ¥Àwæ JPÀjUÉ gÀÆ.18606/- ªÀÄvÀÄÛ ¤ÃgÁªÀj d«ÄäUÉ gÀÆ.23257/- ªÀÄvÀÄÛ ¸À.£ÀA.10/1©, 10/3© ªÀÄvÀÄÛ 12/© gÀ°è ¤ÃgÁªÀj ¸Ë®¨sÀå¢AzÀ vÀgPÀ Áj, PÀ§Äâ, PÀ¼« À , UÉÆâü ¨É¼A É iÀÄÄwÛgÀĪÀÅzÁV PÀAqÀÄ §A¢gÀĪÀÅzÀjAzÀ ¸Àzj À d«ÄãÀÄUÀ½UÉ RÄ¶Ì d«ÄãÀÄUÀ¼À ¸ÀgÁ¸Àj d«Ää£À ¨É¯U É É ±Éà 25% ºÉaU Ñ É ¸ÉÃj¹ CAzÀgÉ gÀÆ. 18,606+4651=23257 JAzÀÄ ¤UÀ¢¥Àr¸À®Ä ¸ÀÆPÀª Û ¤É ¸ÀÄvÀz Û .É CzÀgA À vÉ ¸Áé¢Ãü £À¥r À ¹PÉƼÀÄîªÀ RÄ¶Ì d«ÄãÀÄUÀ½UÉ ¥Àæw JPÀgU É É QªÀÄävÀÄ gÀÆ. 18606/-(ºÀ¢£ÉÃAlÄ ¸Á«gÀzÀ DgÀÄ£ÀÆgÁ DgÀÄ gÀÆ¥Á¬Ä ªÀiÁvÀ)æ ¤UÀ¢¥Àr¹".

9. From the aforesaid material evidence on

record, more particularly the inspection report by the SLAO

himself that the lands in Survey Nos.10/1B, 10/3B and

12/2B were having irrigation facilities and crops like,

vegetables, sugarcane, paddy and wheat were being

grown, would justify the claim of the appellant/claimant

that the subject land is capable of growing sugarcane.

This finding regarding the nature of subject land by the

SLAO dated 31.12.2009 is not disputed by the

respondents. Thus, it can be safely concluded that the

subject land is capable of growing sugarcane. Therefore

the compensation determined by the co-ordinate bench of

this Court in MFA No.30804/2013 in respect of land

situated in the same district is taken into consideration.

10. Adverting to determination of compensation,

the Coordinate Bench of this Court in MFA No.30804/2013

dated 28.07.2021, which is taken into consideration in

MSA No.200041/2017 by this Court in its judgment and

order dated 18.12.2021 and connected matters, wherein

the lands situated within Bhalki taluka of Bidar district

acquired for the purpose of formation of railway lane under

notification of the year 2003, has been assessed and fixed

the market value at `2,87,100/- per acre. For the purpose

of maintaining the parity and to avoid any discrimination

and in view of the fact that the lands are situated in the

same taluka and district, they acquired for different

purposes, the compensation has to be determined taking

that aspect of the matter as well. The notification subject

matter of the present acquisition is of the year 2008 i.e.,

21.01.2008. The subject matter of acquisition of land in

MFA No.30804/2013 is of the year 2003. Thus, there is

proximity of time in acquisition of property of about four

years. Therefore, it would be just and proper that the

same value to be adopted in instant case as well.

However, in view of notification in respect of the acquired

land being dated 31.01.2008, which is four years

subsequent to notification being subject matter of MFA

No.30804/2013, escalation should be provided at the rate

of 8% per year on the awarded sum of `2,87,100/-.

Calculated as above, the appellant/claimant would entitled

for enhanced compensation of `3,78,972/- pre acre

(`2,87,100 x 4 x 8%=91,872 + 2,87,100).

11. It is necessary to note at this juncture that it is

not mere precedent in the nature of order passed in MFA

No.30804/2013 is being relied upon for the purpose of

enhancement of compensation, the material evidence in

the nature of the crops being grown even as recorded by

the SLAO in respect of the very same lands is taken into

consideration.

12. In view of the above, the point raised above is

answered accordingly and following:

ORDER

a) The appeal filed by the appellant/claimant is allowed

in part with proportionate cost.

b) The judgment and award passed by the reference

Court in LAC No.133/2010 dated 11.07.2013 is

modified.

c) The appellant/claimant is held entitled for enhanced

compensation of `3,78,972/- per acre together with

interest at 12% per annum from the date of

notification or acquisition of the subject land,

whichever is earlier.

Page No.11 is replaced vide Court Order dt.25.03.2022

d) *The appellant/claimant is also entitled for 30%

solatium as per Section 23(2) of the Land Acquisition

Act.

e) *The appellant/claimant is also entitled for 9%

interest per annum on enhanced market value for a

period of one year from the date of dispossession

and thereafter 15% per annum till the date of

realization on the enhanced compensation as per the

Section 28 of the Land Acquisition Act.

Sd/-

JUDGE

Srt

*Page No.12 - Para (d) and (e) inserted and this page is replaced vide Court Order dt.25.03.2022