Karnataka High Court

Dr S Shobha vs The Land Acdquisition Officer on 23 December, 2021

Bench: P.S.Dinesh Kumar, P.Krishna Bhat

                                          MFA No.3442/2020
                                      C/W MFA No.2179/2020

                              1
      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF DECEMBER, 2021

                           PRESENT

        THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                            AND
         THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


       MISCELLANEOUS FIRST APPEAL No.3442 OF 2020
                          C/W
     MISCELLANEOUS FIRST APPEAL No.2179 OF 2020 (LAC)

IN MFA No.3442 OF 2020

BETWEEN :

1.     THE LAND ACQUISITION OFFICER
       BRUHATH BENGALURU
       MAHANAGARA PALIKE
       N.R.SQUARE
       BENGALURU-01

2.     THE COMMISSIONER
       BRUHATH BENGALURU
       MAHANAGARA PALIKE
       N.R.SQUARE
       BENGALURU-01                       ... APPELLANTS

(BY SHRI. H. DEVENDRAPPA, ADVOCATE)

[THROUGH VIDEO CONFERENCE]

AND :

DR. S. SHOBHA
W/O LATE DR. D. JANARDHANA MURTHY
AGED ABOUT 62 YEARS
                                             MFA No.3442/2020
                                        C/W MFA No.2179/2020

                              2
        TH
No.5, 17 MAIN
MUNESHWARA BLOCK
SRINAGAR
BENGALURU-560 026                            ... RESPONDENT

(BY DR. S. SHOBHA, [PARTY-IN-PERSON])
                            ....
      THIS MFA IS FILED UNDER ORDER 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DATED
03.01.2020, PASSED IN LAC. NO.19/2018, ON THE FILE OF THE
II-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-17), PARTLY ALLOWING THE REFERENCE PETITION FILED
U/SEC.18 OF LAND ACQUISITION ACT, 1894.

IN MFA No.2179 OF 2020
BETWEEN :

DR. S. SHOBHA
W/O LATE D.S. JANARADHANAMURTHY
AGED ABOUT 60 YEARS
No.5, 17TH MAIN
MUNESHWARA BLOCK
SRINAGAR
BENGALURU-560 026                           ... APPELLANT

(BY DR. S. SHOBHA, [PARTY-IN-PERSON])
AND :

1.   THE LAND ACQUISITION OFFICER
     BRUHATH BENGALURU
     MAHANAGARA PALIKE
     N.R.SQUARE
     BENGALURU-01
2.   THE COMMISSIONER
     BRUHATH BENGALURU
     MAHANAGARA PALIKE
     N.R.SQUARE
     BENGALURU-01                           ... RESPONDENTS

(BY SHRI. H. DEVENDRAPPA, ADVOCATE)

[THROUGH VIDEO CONFERENCE]
                                                         MFA No.3442/2020
                                                    C/W MFA No.2179/2020

                                         3

      THIS MFA IS FILED UNDER ORDER 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DATED
03.01.2020, PASSED IN LAC. NO.19/2018, ON THE FILE OF THE
II-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH No.17), PARTLY ALLOWING THE REFERENCE MADE BY THE
SLAO/RESPONDENT NO.1 UNDER SECTION 18 OF LAND ACQUISITION
ACT, 1894.

     THESE MFAs, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.11.2021 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, P.S.DINESH KUMAR. J, PRONOUNCED THE
FOLLOWING:-



                                  JUDGMENT

These two appeals are presented by the Land

Acquisition Officer1, Bruhat Bengaluru Mahanagara Palike2

and Dr. S. Shobha (party-in-person) challenging the

Judgment and Award dated January 3, 2020 in

LAC No.19/2018 on the file of II Additional City Civil and

Sessions Judge, Bengaluru.

2. We have heard Shri. H. Devendrappa, learned

Advocate for BBMP and Dr. S. Shobha, party-in-person.

3. For the sake of convenience, parties are referred

to as per their status before the Reference Court.

'LAO' for short

'BBMP' for short MFA No.3442/2020 C/W MFA No.2179/2020

4. BBMP acquired 80.70 sq. ft. land in property

bearing No.140/126 (CTS No. 810, PID No.53-29-26)

situated in Srinagara, Ward No.156, Dasarahalli, Bengaluru

for development of Road by issuing preliminary Notifications

dated October 31, 2011 and September 22, 2010 under

Section 4(1) of the Land Acquisition Act. An Award was

passed on April 25, 2013 fixing the market value at

Rs.1,713/- per sq. ft. A total compensation of Rs.2,80,705/-

was awarded and a sum of Rs.2,52,550/- was paid to the

claimant after deducting income tax. The claimant received

the compensation under protest. Hence, the LAO referred

the case to the Reference Court.

5. Claimant has filed application under Section

18(1) of the Land Acquisition Act,3 1894 contending inter

alia that her father-in-law had purchased property

measuring 40 ft. X 60 ft. BBMP had utilized 648.25 sq. ft.

for formation of road and footpath. She has referred to

various cases filed by her in this Court. In substance, she

'LA Act' for short MFA No.3442/2020 C/W MFA No.2179/2020

claimed Rs.6.90 Crores towards illegal acquisition of land

and other hardship that she has suffered.

6. On consideration of material on record and after

hearing the parties, Reference Court has awarded

compensation for 257 sq. ft. at the rate of Rs.4,617/- per

sq. ft. with interest and statutory benefits.

7. Shri. Devendrappa for BBMP, assailing the

impugned Judgment and Award submitted that the lease-

cum-sale agreement executed by the CITB4 is in respect of

land measuring 1,950 sq. ft. During 1996, when the

building plan was sanctioned, the area of land was shown as

1,753 sq. ft. Therefore, compensation could not have been

awarded for 257 sq. ft.

8. In substance, the case of BBMP is, claimant had

shown 1,753 sq. ft. as the area of land at the time of

sanction of the building plan. BBMP has acquired only 80.7

City Improvement Trust Board MFA No.3442/2020 C/W MFA No.2179/2020

sq. ft. for development of the road. Therefore, the Award

for 257 sq. ft. is unsustainable in law.

9. Dr. Shobha, the claimant and party-in-person

urged several contentions. She submitted that BBMP had

demolished the Nursing Home belonging to her. After

prolonged litigation in various cases, she was assured of an

alternative site measuring 50 ft. X 80 ft. Insofar as the

Award is concerned, she submitted that while calculating

the additional amount, learned Reference Court has

committed a serious error because, the interest is awarded

from November 24, 2011 to April 25, 2013. She submitted

that claimant was dispossessed on April 4, 1998. Therefore,

the additional amount ought to have been awarded from

the date of dispossession.

10. Shri. Devendrappa submitted that the claimants

plea cannot be considered in the appeal filed by her

because, she has not paid Court fees for the excess

additional amount claimed by her.

MFA No.3442/2020 C/W MFA No.2179/2020

11. We have carefully considered rival contentions

and perused the records.

12. Learned Judge of the Reference Court has

recorded in para 14 of the judgment that P.W.1, Dr. S.

Shobha has admitted in her cross-examination that as per

Ex.P45, the property measured 1,950 sq. ft.

13. He has further recorded in para 25 that as per

the order passed in W.P. No.8426/2010, the Court

Commissioner, an Assistant Executive Engineer, BBMP had

measured the property on June 1, 2011 and found the

actual measurement as 1,692.75 sq. ft. Therefore, actual

measurement of the land lost by the claimant works out to

257.25 sq. ft6. The learned Judge has further recorded that

BBMP has not denied the measurement in the Report filed

by the Court Commissioner in W.P. No.8426/2010.

Original Sale deed dated January 29, 1998 executed by the BDA in favour of her husband Dr. S. Janardhana Murthy

(1950-1692.75=257.25 sq. ft.) MFA No.3442/2020 C/W MFA No.2179/2020

Accordingly, he has held that the total area of land acquired

as 257.25 sq. ft.

14. It is relevant to note that the BBMP has not

contested the measurement of site done by its Engineer as

1,692.75 sq. ft. and the Sale deed executed by the BDA

shows the area as 1,950 sq.ft. Therefore, no exception can

be taken to the finding recorded by the learned Judge of the

Reference Court that the land acquired by BBMP is 257.25

sq. ft.

15. The claimant is right in her submission that while

computing the additional amount, the learned Judge of the

Reference Court has awarded interest from November 24,

2011 to April 25, 2013. It is the specific case of the

claimant that the demolition of the building occurred on

April 4, 1998. The same is recorded in the Award, which

reads as follows:

"It is further ordered that the claimant is entitled for the additional market value u/s.23(1-A) of L.A. Act, at the rate of 12% p.a., on an enhanced market value from the date of publication of preliminary notification (24/11/2011) u/s.

MFA No.3442/2020 C/W MFA No.2179/2020

4(1) of L.A. Act till the date of dispossession (04/04/1998) or the date of award (25/04/2013), which-ever is earlier." (sic)

16. However, while calculating, the additional

amount has been awarded for the period between

November 24, 2011 and April 25, 2013. We are of the

opinion that this is a clerical error and requires correction.

The objection of Shri. Devendrappa that Court fee is not

paid on the excess amount, which the claimant may get due

to correction ordered by this Court, is untenable because, it

is a clerical error and there is no enhancement as such.

17. In view of the above, the following:

ORDER