Louis Fernandes vs The Special Land Acquisition ...
2022 Latest Caselaw 1961 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF FEBRUARY, 2022

                         PRESENT
       THE HON'BLE MR. JUSTICE P S DINESH KUMAR
                             AND
     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
                MFA.NO.46 OF 2016(LAC)

BETWEEN:

1.   LOUIS FERNANDES
     S/O LATE JOHN FERNANDES
     AGED 77 YEARS
     RESIDING AT NEERALA HOUSE
     NEAR VAMANJOOR CHURCH
     BONDANTHILA POST
     MANGALURU

2.   SMT. RADHA BHAT
     W/O LATE MADHAVA BHAT
     AGED 76 YEARS

     APPELLANT NO.2 SINCE DEAD BY HER LR'S
     REPRESENTED BY THE LEGAL HEIRS
     APPELLANT NO.3 TO 7
     AMENDED BY THE ORDERS
     OF THE HON'BLE COURT DTD:10.01.2022

3.   RAJENDRA BHAT
     S/O LATE MADHAVA BHAT
     AGED 52 YEARS

4.   RAMESH BHAT SINCE DECEASED BY HIS LR'S

     4(A) SMT. VANAJA R. BHAT
     W/O LATE RAMESH BHAT
     AGED 39 YEARS

     4(B) KUM. ANUSHA
     D/O LATE RAMESH BHAT
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     AGED 16 YEARS

     4(C) MASTER ANIRUDH
     S/O LATE RAMESH BHAT
     AGED 11 YEARS

     APPELLANTS 4(B) AND 4(C) REPRESENTED BY
     THEIR NEXT FRIEND AND NATURAL GUARDIAN
     MOTHER SMT. VANAJA R. BHAT

5.   RAJESH BHAT
     S/O LATE MADHAVA BHAT
     AGED 47 YEARS

6.   RAGHURAM BHAT
     S/O LATE MADHAVA BHAT
     AGED 45 YEARS

7.   RAVINDRA BHAT
     S/O LATE MADHAVA BHAT
     AGED 55 YEARS

     APPELLANTS 2 TO 7 ARE
     RESIDING AT "MANDARA HOUSE"
     KUDUPU VILLAGE , MANGALURU-575 028
                                            ...APPELLANTS

(BY SRI. NARAYANA BHAT.M, ADVOCATE)

AND:

1.     THE SPECIAL LAND ACQUISITION OFFICER
       MANGALORE CITY CORPORATION
       MANGALURU
       D.K. DISTRICT-575 003

2.     MANGALORE CITY CORPORATION
       REPRESENTED BY ITS COMMISSIONER
       MANGALURU
       D.K. DISTRICT-575 003

       AMENDED VIDE ORDER DTD: 18.11.2016

                                          ...RESPONDENTS
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(BY SRI. K.N. NITISH, ADVOCATE FOR
    SRI. K.V. NARASIMHAN, ADVOCATE FOR R1 & R2)

     THIS MFA IS FILED U/S 54(1) OF LAND ACQUISITION
ACT AGAINST THE JUDGMENT AND DECREE DATED:
31.08.2015, PASSED IN LAC.NO.31/2007, ON THE FILE OF THE 1ST
ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE, D.K.,
DISMISSING THE REFERENCE PETITION FOR COMPENSATION
AND ETC.


     THIS MFA COMING ON FOR HEARING, THIS DAY,
P.S.DINESH KUMAR J., DELIVERED THE FOLLOWING:

                           JUDGMENT

The appellants are land owners of Sy.No.27/5 of

Kudupu village, Mangalore Taluk, Mangalore measuring

12.71 acres. The said land was acquired by exercising power

under Section 17 of the Land Acquisition Act, 1894 (the 'Act'

for short).

2. For the sake of convenience parties shall be

referred as per their status before the Tribunal.

3. The appellants' case is, respondent has acquired

two pieces of land one belonging to appellants and the other

land measuring 25.40 acres which is adjacent contiguous

with appellants' land. The award in respect of other lands

was passed by consent on 01.01.2005 awarding a

compensation of Rs.13.75 lakhs per acre. Claimants received

a notice dated 16.03.2006 to produce documents for

appellants having consented for a 'consent award' at the rate

of Rs.13.75 lakhs per acre. The appellants claim that they

have filed all necessary documents such as indemnity bond,

affidavit etc., In the meanwhile, there was change of SLAO.

Without considering the documents filed by the appellants,

an award was passed on 30.10.2006 awarding Rs.5,92,600/-

per acre. First appellant filed an application before the

Reference Court. The other appellants also got themselves

impleaded in that case. By the impugned judgment and

decree, the reference under Section 18(1) of the Act has

been dismissed. Hence, this appeal.

4. Sri.Narayana Bhat, learned advocate for the

appellants submitted that appellants' land and the abutting

lands measuring 25.40 acres are contiguous lands. In

respect of the adjacent lands, respondents have paid

Rs.13.75 lakhs per acre as per consent award as early as on

01.01.2005. Though claimants had filed all necessary papers,

for extraneous considerations, the consent award was not

passed in their case.

5. He further submitted that while fixing the

compensation at Rs.13.75 lakhs per acre in respect of

adjacent lands, the SLAO has considered the value of the

land in Sy.No.27/5 during January 2005, whereas while

considering appellants' case, the SLAO has considered the

value of the land in Sy.No.98 which is more distant than

Sy.No.27. He submitted that the land was acquired by the

respondent for dumping the garbage. After passing the

award in respect of the adjacent lands on 01.01.2005,

respondent issued notification under Section 4(1) of the Act

in respect of appellants' land on 07.04.2005.

6. He further submitted that remaining pieces of

adjacent lands also got submerged by the garbage. A writ

petition has been filed by the Legal Service Authority in this

Court and interim compensation has been given in respect of

those lands.

7. In substance, Sri.Narayana Bhat, submitted that

claimants have been grossly discriminated while awarding

compensation for extraneous considerations.

8. Sri.K.N.Nitesh submitted that the land owners of

the adjacent lands had come forward and given consent for

the award, whereas the appellants though claimed that they

had agreed for the consent award, have not produced any

documents. Therefore, the respondents have passed the

general award on 30.10.2006.

9. He further submitted that with regard to

consideration of two different lands while computing the

compensation, the Land Acquisition Officer has examined the

factual matrix of each cases and accordingly, passed the

award as per his best knowledge. With these submissions, he

prayed for dismissal of this appeal.

10. We have carefully considered the rival

contentions and perused the records.

11. Undisputed facts of the case are, the lands

acquired by consent vide order dated 01.01.2005 and

appellants lands, are contiguous lands. Notice dated

16.03.2006 has been placed on record in the appeal papers.

It shows that after giving consent on 30.12.2005, appellants

were called upon to produce necessary documents. Photo

copies of the documents such as indemnity bond dated

17.03.2006 and an agreement dated 05.04.2006, which the

appellants claim to have furnished with the SLAO are also

placed on record. The stamp paper upon which the

agreement dated 05.04.2006 has been typed was purchased

on 04.04.2006 in State Bank of Mysore. These documents

prima-facie shows that the appellants had given consent for

acquisition.

12. The learned Reference Court has framed following

points for its consideration:

(1) Whether the petitioners have made out the case that Award passed by Special Land Acquisition Officer in LAQ:SR:8/2004-05 and Award No.5/05-06 dated 30.10.2006 is inadequate and it requires to be enhanced?

(2) Whether the petitioners are entitled for enhanced compensation? If so, how much?

(3) What Order or Award?

13. It has answered points No.1 and 2 in negative

and ultimately dismissed the reference, holding that the

claimants have to prove the amount awarded by LAO needs

enhancement after adducing proper evidence. It is further

recorded that in the absence of any proof, the amount

awarded by the LAO has to be accepted as correct. In

substance, the ground for dismissal of the reference

application is that the appellants have not produced any

proof to establish that the amount fixed by the LAO is

inadequate.

14. Sri.Narayana Bhat, asserted that the appellants

have produced all necessary documents.

15. The facts narrated herein above prima-facie

establish that for the adjacent lands acquired vide award

dated 01.01.2005, compensation of Rs.13.75 lakhs per acre

has been awarded, whereas for the lands belonging to the

appellants, acquired vide award dated 30.10.2006,

compensation of Rs.5,92,600/- lakhs has been given. The

notice issued by the LAO prima-facie shows that the

appellants had agreed for consent award. Therefore, we are

of the considered view that the judgment and decree passed

in LAC No.31/2007 dated 31.08.2015 is unsustainable and

matter requires reconsideration. Hence, the following:

ORDER

The judgment and award dated 31.08.2015 passed in LAC No.31/2007 by the I Additional Senior Civil Judge, Mangalore is set aside.

Matter is remitted to the I Additional Senior Civil Judge, Mangalore for fresh consideration of the reference application in LAC No.31/2007 in accordance with law.

The appellants shall be at liberty to produce the documents, if any, before the Reference Court.

In view of the date of acquisition, the Reference Court shall dispose of the matter as expeditiously as possible subject to the load on its board. Insofar as costs are concerned, in view of the facts of the case recorded herein above, we are of the view that appellants are entitled for costs of this appeal.

Appellants are entitled for refund of the Court fee under Section 64 of the Karnataka Court Fees and Suit Valuation Act.

Sd/-

JUDGE

Sd/-

JUDGE

NS