Karnataka High Court

Basavaraj S/O Shivabasappa ... vs Divisional Controller And Anr on 25 October, 2021

Author: M.G.S.Kamalpresided Bymgskj

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 25TH DAY OF OCTOBER, 2021

                      BEFORE

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

            MFA No.200709/2015 (LAC)
                       C/W
            MFA Nos.200708/2015 (LAC)
                        &
            MFA No. 200710/2015 (LAC)

MFA NO.200709/2015

BETWEEN

BASAVARAJ S/O SHIVABASAPPA SAJJAN
AGE: MAJOR, OCCU:AGRICULTURE,
R/O BASAVAN BAGEWADI, DIST:BIJAPUR
                                       ...APPELLANT

(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)

AND

1.    DIVISIONAL CONTROLLER
      KSRTC, BIJAPUR

2.    ASST. COMMISSIONER AND
      LAND ACQUISITION OFFICER, BIJAPUR
                                     ...RESPONDENTS

(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R1;
R2 SERVED)
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     THIS MFA IS FILED UNDER SECTION 54(1) OF THE
LAND ACQUISITION ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD PASSED BY THE CIVIL JUDGE
SENIOR CIVIL JUDGE AT BASAVAN BAGEWADI DATED
12.02.2015 IN LAC NO.13/2007 AND FIX MARKET VALUE
AT THE RATE OF `6/- PER SQ. FT. AND AWARD ALL
STATUTORY BENEFITS AND GRANT ANY OTHER RELIEF,
WHICH THIS HON'BLE COURT DEEMS FIT IN THE
CIRCUMSTANCES OF THE CASE.

MFA NO.200708/2015

BETWEEN

SHRISHAIL SHIVABASAPPA SAJJAN
AGE: MAJOR, OCCU:AGRICULTURE,
R/O BASAVAN BAGEWADI, DIST:BIJAPUR
                                       ...APPELLANT

(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)

AND

1.    DIVISIONAL CONTROLLER
      KSRTC, BIJAPUR

2.    ASST. COMMISSIONER AND
      LAND ACQUISITION OFFICER, BIJAPUR
                                     ...RESPONDENTS

(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R1;
R2 SERVED)

     THIS MFA IS FILED UNDER SECTION 54(1) OF THE
LAND ACQUISITION ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD PASSED BY THE CIVIL JUDGE
SENIOR CIVIL JUDGE AT BASAVAN BAGEWADI DATED
12.02.2015 IN LAC NO.14/2007 AND FIX MARKET VALUE
AT THE RATE OF `6/- PER SQ. FT. AND AWARD ALL
                          3




STATUTORY BENEFITS AND GRANT ANY OTHER RELIEF,
WHICH THIS HON'BLE COURT DEEMS FIT IN THE
CIRCUMSTANCES OF THE CASE.

MFA NO.200710/2015

BETWEEN

SHANTAPPA S/O. SHIVABASAPPA SAJJAN
AGE: MAJOR, OCCU:AGRICULTURE,
R/O BASAVAN BAGEWADI, DIST:BIJAPUR
                                       ...APPELLANT

(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)

AND

1.    DIVISIONAL CONTROLLER
      KSRTC, BIJAPUR

2.    ASST. COMMISSIONER AND
      LAND ACQUISITION OFFICER, BIJAPUR
                                     ...RESPONDENTS

(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R1;
R2 SERVED)

     THIS MFA IS FILED UNDER SECTION 54(1) OF THE
LAND ACQUISITION ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD PASSED BY THE CIVIL JUDGE
SENIOR CIVIL JUDGE AT BASAVAN BAGEWADI DATED
12.02.2015 IN LAC NO.12/2007 AND FIX MARKET VALUE
AT THE RATE OF `6/- PER SQ. FT. AND AWARD ALL
STATUTORY BENEFITS AND GRANT ANY OTHER RELIEF,
WHICH THIS HON'BLE COURT DEEMS FIT IN THE
CIRCUMSTANCES OF THE CASE.

     THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
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                             JUDGMENT

These appeals are filed under Section 54(1) of the

Land Acquisition Act, 1894 (for short 'L. A. Act') by the

claimants aggrieved by the common judgment and order

dated 12.02.2015 passed in LAC Nos.12/2007, 13/2007

and 14/2007 on the file of Senior Civil Judge at Basavana

Bagewadi.

2. Brief facts leading up to filing of the present

appeals are that the land bearing R.S.No.1632/4/1632

measuring 2 acres subject matter of LAC No.12/2007, land

bearing R.S.No.1632/3/1632 measuring 2 acres subject

matter of LAC No.13/2007 and land bearing

R.S.No.1632/2/1632 measuring 2 acres subject matter of

LAC No.14/2007 proposed to be acquired for the purpose

of construction of Bus depot at Basavana Bagewadi in

terms of the notification issued under Section 4(1) of the

L.A. Act published on 29.10.2001. Thereafter, on

18.06.2002, the Special Land Acquisition Officer has fixed

the market value of the acquired properties in question at

`73,394/- per two acres inclusive of all statutory benefits.

Being dissatisfied with the same, the claimants/appellants

sought reference of the matter to the Civil Court.

Accordingly, the matters were referred to the Civil Court

and same were registered as LAC Nos.12/2007, 13/2007

and 14/2007.

3. Before the Reference court, the claimants

contended that the Assistant Commissioner, Vijayapur had

not given any notice as required under Section 6(1) and

9(1) of the L.A.Act. That the claimants received the

amount under protest. That the acquired lands are

situated within the municipal limits of Basavana Bagewadi.

That the acquired land ought to have been considered as

non-agricultural lands as they are situated abutting

Basavana Bagewadi town having potentiality of forming

residential layout. That the said town is very well

developed with all educational institutions and Government

offices. That the Basavana Bagewadi is coming under the

Kudala Sangam development authority. That at the time

of acquisition of neighbouring lands, the owners had sold

their land at `200/- to `250/- per square feet. That the

valuation of acquired land should have been paid

considering the land as non-agricultural. That the sale

transaction of agricultural lands taken in determining the

market value of the acquired land was not correct. Hence,

sought for enhancement of compensation.

4. On service of notice, respondent appeared and

filed statement of objection contending that the contents

of the application were false and frivolous. It was

contended that the claimants received the compensation

and were not entitled for seeking enhancement that the

joint measurement was done before passing the award and

that there was no error. Requisite notices were personally

served on the claimants fullest opportunity was afforded

before passing the award. The compensation amount was

just and proper and reasonable. Sale deeds of

neighbouring lands were produced to evidence that the

land was sold at `2,10,000/- per acre in the year 2007 and

so on.

5. The reference Court based on the pleadings of

the parties, framed issues and recorded evidence. The

claimant in LAC No.12/2007 has been examined as PW.1

and exhibited 12 documents as Exs.P1 to P12. On behalf

of the respondents, three witnesses have been examined

as RW.1 to RW.3 and exhibited 21 documents as Exs.R1 to

R21.

6. The reference court, on consideration of the

material placed before it, dismissed the claim petitions.

The sole consideration for dismissal of the claim petition is

that the claimants herein had purportedly entered into

agreements with the collector and had given consent

thereon.

7. Aggrieved by the same, the

appellants/claimants are before this Court.

8. Sri Harshvardhan R. Malipatil, learned counsel

for the appellants/claimants reiterating the grounds urged

in the memorandum of appeals submitted that the

reference Court has grossly erred in dismissing the claim

petitions on completely erroneous and unjustified premise

that there were agreements between the claimants and

the beneficiary. Drawing the attention of this Court to

Exs.R1 to R3(a), he submitted that the said documents

were seriously disputed by the claimants as the

respondents had obtained the signature of the claimants

on blank bond papers. However, the respondents had

subsequently filled the details therein. He further submits

that even if the said documents presumed to have been

executed, on a perusal of the same, it reveals that the said

documents bear the date as 19.08.2000. He further

submits that the said documents and the purported

agreements had never been acted upon as the notification

under Section 4(1) of the L.A.Act came to be issued much

subsequent to the alleged documents i.e., on 29.10.2001.

Therefore, reliance placed by the reference Court on the

said exhibits to come to a conclusion that there were

agreements and consent is erroneous. He placed reliance

on the judgment of a coordinate Bench of this Court

reported in 2006 (1) KCCR 315 in the case of The

Executive Engineer, O and M, KPTCL , Baithongal and

Another vs. Irappa Ningappa Gaddi and Another.

Hence, he seeks for allowing of the appeals.

9. The learned counsel for the respondent No.1

on the other hand does not dispute the fact that the said

agreements were entered into between the parties much

prior to issuance of the notification under Section 4(1) of

the L. A. Act. However, the learned counsel for the

respondent No.1 submits that since there were

agreements between the parties, the reference Court was

justified in dismissing the claim petitions as the parties

could not retract from the agreements entered into

between them and the beneficiaries.

10. On a thoughtful consideration of the

submissions made by the learned counsel for the parties,

the point that arises for consideration is:

"Whether the reference Court was justified in dismissing the claim petitions on the premise that there were agreements/consent entered into between the claimants and the respondent No.1 in terms of Exs.R1 to R3(a)?

11. There is no dispute with regard to the fact that

the claimants are the owner of the lands in question. It is

also not in dispute that the lands of the claimants were

acquired for the purpose of construction of bus depot by

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

dated 29.10.2001. There is also no dispute with regard to

the fact that the Special Land Acquisition Officer has fixed

the market value of the subject lands at `77,394/- per two

acres inclusive of all statutory benefits. Interestingly, the

Special Land Acquisition Officer has not taken into

consideration the alleged agreements produced at Exs.R1

to R3(a) for the purpose of determination of the market

value. Even in the statement of objections, there is no

ground urged by the respondents that the compensation

was either paid or accepted in terms of the agreement or

the consent allegedly given by the claimants. This being

the factual aspect of the matter, the reference court erred

in dismissing the claim petitions on the premise of the

claimant having taken the compensation in terms of

alleged agreement/consent.

12. At paragraph Nos.13, 14 and 15 of the

impugned judgment, the reference Court has reasoned as

under:

"13. In the argument also the respondent No.2 advocate to many questions raised by the claimant in his written argument clearly stated that the claim is time barred. The lands have been purchased and sold after 7 years passing after 4(1) notification. Therefore the lands and the sale deeds produced by the claimants are not tenable. The respondent No.2 has also produced the sale deeds apart from that the claim had executed the agreement agreeing to execution of land in the reference and awarding of compensation tot he respondent No.2. Even though the claimant has stated that he has executed a blank stamp. But in the cross examination he admitted that he will not signed blank stamp paper and award paper.

Therefore the agreement made by the claimant is with consent. Hence it is not binding, in order to support the respective claim he has produced the 1971 SC 465 (Mathura Prasad Rajgharia and Other vs. State of West Bengal). The Land Acquisition Act. 1994 Section 11-Award of compensation by Collector - Agreement between parteis can be treated as good evidence of market value - and also 2007 (1) KCCR 99 (DB) Karnataka High Court: but a person who opts for passing of a consent award and accepts the compensation amount under Section 11(2) of the Act, cannot make an application either under Section 18 of the Act or Under Section 28-A of the Act with a request to make reference to the Civil Court for determination of proper compensation amount payable to the lands acquired or for redetermination. Similarly in AIR 2008 SC 399 and AIR 1996 SC 1616, AIR 1998 Gujarat 114."

14. On the other hand it is clearly reported in 2011(1)LACC 400 Karnataka by Shri.V.G.Sabahit page caption(b) Sec.12(2) and 18 compromise award which 2 reference. Where the landowners had agreed in writing to accept the compensation determined by the Land Acquisition Authority, agreement is conclusive and binding, dis entitling landowners to seek reference to the Civil Court for enhancement of compensation.

Held: By order dated 30.07.2004 has held the question of referring the applications for reference to the Civil Court seeking for enhancement of compensation would not arise as no reference would lie for enhancement of compensation in respect of consent award and accordingly held that the writ petitioners are not entitled to the aid prayer.

The claimants have not filed any appeal being aggrieved by the rejection of the prayer for referring the matter to the Civil Court seeking enhancement of compensation and for have

awarding any interest on any other amount except interest on solatium as held by the learned Single Judge in para No.6.

15. So under these circumstances the present claimant has already in writing and he has taken amount in the public function and also accepted the donations and handed over the possession with consent. Hence the claimant have not at all made any case to enhance the compensation as he has taken the amount with consent and has not filed any appeal or revision that to in the public function. Hence the claim petitions are to be rejected and I answered the points in the Negative."

13. The acquisition of subject lands has been made

in terms of the provision of the Land Acquisition Act by

virtue of the notification issued under Section 4(1) of the

L. A. Act and published on 29.10.2001. Once the state

machinery under the Land Acquisition Act is set in motion,

understanding or agreement, if any, prior to initiating the

process of acquisition under the Act is deemed to have

been waived or same would be rendered infructuous. As

noted earlier, in the instant case, it is not the case of

respondents that they fix the compensation on the basis of

alleged agreement. Therefore, the reference Court has

committed an error in not taking into consideration this

aspect of the matter even while relying on Exs.R1 to R3(a)

and dismissing the claim petitions.

14. The reference court has however referred to

Section 11(2) of the L. A. Act to justify the reasoning given

in paragraph No.13 of the impugned judgment as

extracted herein above. Section 11 (2) of the Land

Acquisition Act reads as under:

"11.(2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement."

15. It is pertinent to refer to Rule 10(b) of the

Karnataka Land Acquisition Rules, 1894, which prescribes

the form of agreement, which needs to be entered into

between the claimants and the Deputy Commissioner.

Section 11 (2) of the L. A. Act and Rule 10 (b) of the

Karnataka Land Acquisition Rules contemplate entering

into such agreement/consent only post issuance of

notification. In the instant case, Exs.R1 to R3(a)

purported to have been executed prior to issuance of

notification under Section 4(a) of the L.A Act. Besides, the

same are not in compliance with the requirement of law.

Therefore, this Court is of the considered view that the

reference Court ought not to have taken into consideration

Exs.R1 to R3(a) to come to a conclusion that there were

agreements/consent between the claimants and the

respondent No.1. A co-ordinate Bench of this Court in the

case of The Executive Engineer (Supra), held as under:

"3. The contention of the KPTCL is untenable. Upon the offer made by the claimant, no consent award is passed as required under Section 11(ii) of the Land Acquisition Act. The land is acquired by exercise of the State power envisaged under Sections 4 and 6 of the Land Acquisition Act. When there is no consent award passed under section 12(2), it is deemed that volunteer offer is impliedly rejected. The claimant is entitled to reference under Section 18 of the Land Acquisition Act for enhancement of the compensation."

16. For the foregoing analysis, the impugned

Judgment and order is unsustainable and therefore,

required to be set aside. The point for consideration is

answered accordingly.

17. Having held as above, in view of the fact that

the reference Court has not assessed/determined the

compensation payable in respect of the acquired lands, it

is just and necessary that the matters be relegated to the

reference Court for determination of the compensation

payable in respect of the acquired lands belonging to the

claimants. Since the matter is of the year 2007 and the

present appeals are filed in the year 2015 pending