B. B. Madaya vs Power Grid Corporation Of India ...
2022 Latest Caselaw 735 Kant

                                           W.P.51643/2016
                               1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17TH DAY OF JANUARY, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

          WRIT PETITION No.51643/2016 (GM-CPC)

BETWEEN:

1.     B. B. MADAYA
       AGED ABOUT 73 YEARS,
       S/O. BOPAIAH M.B.,

2.     BELLIAPPA
       AGED ABOUT 70 YEARS,
       S/O. BOPAIAH M.B.,

3.     P.D. APPAIAH
       AGED ABOUT 80 YEARS,
       S/O. P.N. DEVAYA,

       ALL ARE RESIDENTS OF
       BALALE VILLAGE,
       SOUTH KODAGU-571 219.          ... PETITIONERS

(BY SRI.KRISHNAMURTHY G. HASYAGAR, ADV.)

AND:

POWER GRID CORPORATION OF INDIA LTD.,
(GOVERNMENT OF INDIA ETNERPRISES),
MAIDANAHALLI, MYSURU-571 130,
REPRESENTED BY ITS CHIEF MANAGER,
MR. A. VENKATAHARI.                   ... RESPONDENT

(BY SRI.JOSHUA SAMUEL, ADV.)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE ANNEXURE-F
THE IMPUGNED ORDER DATED 18.07.2016 PASSED BY THE IV
ADDL. SENIOR CIVIL JUDGE, AT MYSURU ON THE I.A. FILED BY
THE RESPONDENT UNDER SECTION 47 READ WITH SECTION 151
                                                     W.P.51643/2016
                                 2


OF C.P.C IN EX.P.NO.172/2014 AND CONSEQUENTLY DISMISS
THE SAID I.A.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The petitioners have filed this writ petition

challenging the order dated 18th July 2016 passed by the

court of IV Additional Senior Civil Judge at Mysore in

Execution No.172/2014.

2. The brief facts of the case that would be relevant

for the purpose of disposal of this petition as revealed from

the records are:

3. The petitioners were the joint owners of 9 acres 2

guntas of agricultural land in Sy.No.134 of Koorgalli

Village, Mysore Taluk. The said land was acquired by the

State Government for the purpose of Karnataka Power

Transmission Corporation Limited (KPTCL) and the

preliminary notification was issued on 03.10.1996. The

acquisition was for the purpose of setting up a Sub-Station

at Basthipura, Yelawala Hobli, Mysore Taluk. The project W.P.51643/2016

has been already commissioned in the land in question.

An award was passed in respect of the land acquired on

08.07.1999 and the decree holders had filed an application

seeking reference with a prayer to enhance the

compensation under Section 18 of the Land Acquisition

Act. The Reference Court had passed judgment and award

dated 16.8.2013 enhancing the compensation amount

awarded by the Land Acquisition Officer directing the

judgment debtor to pay interest on the enhanced

compensation from the date of preliminary notification.

The said judgment and award was questioned by the

judgment debtor before this court in M.F.A.No.1415/2014

contending that the Reference Court ought not to have

granted interest on the enhanced compensation amount

from the date of preliminary notification and the land-

losers are entitled for the compensation only from the date

on which the possession of the acquired land was taken

from them.

4. This court vide its order dated 09.12.2015

disposed of the said M.F.A. reserving liberty to the W.P.51643/2016

judgment debtor to file an application before the Executing

Court with documentary evidence to substantiate its case

that the possession of the land in question was taken on

14.08.2000. The judgment debtor thereafterwards has

filed an application under Section 47 read with Section

151 of CPC before the Executing Court to determine the

exact date for awarding interest on the enhanced amount

of compensation. The Executing Court has held an

enquiry on the said application and during the course of

enquiry, the decree holders examined one witness as PW-1

and got marked three documents as Exs.P1 to P3, while

one witness was examined as RW-1 on behalf of the

judgment debtor and 7 documents were marked as Exs.R1

to R7. The executing court thereafterwards has allowed

the said application filed by the judgment debtor under

Section 47 read with Section 151 of CPC and has held that

the decree holders/execution petitioners are entitled for

interest on the enhanced compensation amount in

L.A.C.No.179/2004 from the date of their dispossession W.P.51643/2016

i.e., from 14.08.2000. Being aggrieved by the same, the

decree holders are before this court in this petition.

5. Learned counsel for the petitioners submits that

the possession of the properties were taken much prior to

the preliminary notification and therefore, the executing

court was not justified in holding that the decree holders

were entitled for interest on the enhanced amount of

compensation from 14.08.2000. He has strongly relied

upon the sale deed Ex.P1, which is produced as Annexure-

E in the present writ petition and contends that from the

averments made in the said sale deed, it would be very

clear that the possession of the acquired lands was taken

much prior to the preliminary notification. He relied upon

Clauses-3, 4, 5 and 6 of the said document and submits

that a mention is made in the sale deed that immediately

after acquisition, the possession of the properties was

taken. He also submits that a reading of the said clause

would also make it clear that the entries were also made in

the revenue records of the acquired land in the name of

KPTCL, which would go to show that the possession was W.P.51643/2016

taken over by the KPTCL immediately after the preliminary

notification. In this regard, he has also referred to

Sections 127 to 129 of the Karnataka Land Revenue Act.

6. Per contra, learned counsel appearing for the

respondent/judgment debtor submits that the writ petition

is not maintainable having regard to the fact that the order

impugned has been passed under Section 47 of the CPC.

He submits that there is no material placed on record by

the decree holders to show that the possession of the land

in question has been taken prior to the preliminary

notification. He further submits that there cannot be any

presumption as such to the date of possession when the

documentary evidence is available on record to show that

the possession of the acquired lands were taken on

14.08.2000. He submits that the judgment debtor is

required to pay interest on the enhanced compensation

amount and therefore, when there are documents to show

that the possession of the acquired lands were taken on

14.08.2000, no adverse presumption can be drawn.

W.P.51643/2016

7. In reply, learned counsel for the petitioners/decree

holders has submitted that the decree holders are not

parties to the document as per Exs.R1 and R2, which has

been relied upon by the executing court to arrive at a

conclusion that the possession of the acquired land was

taken on 14.08.2000.

8. I have carefully appreciated the rival arguments

addressed on both sides and also perused the material

evidence available on record.

9. It is not in dispute that the lands in question have

been acquired for the purpose of KPTCL under preliminary

notification dated 03.10.1996 and subsequently the

acquisition proceedings has been completed and the

project for which the lands were acquired have also been

commissioned. The award in respect of the acquired land

granting compensation amount was passed on 08.07.1999

and subsequently on the application filed by the decree

holders for enhancement of compensation amount, the

reference court has passed a judgment and award on W.P.51643/2016

16.08.2013 enhancing the compensation amount and the

interest on the enhanced compensation amount was

directed to be paid from the date of preliminary

notification.

10. It is a settled position of law that the land-losers

are entitled for interest in respect of the acquired land

from the date of they losing possession and not from the

date of preliminary notification. It is only in cases where

the decree holders prove before the court that the

possession of the acquired lands have been taken by the

acquiring authority even prior to the issuance of the

preliminary notification, then in such cases, the land-

losers are entitled for interest from the date of preliminary

notification. The law in this regard is settled by the

Hon'ble Supreme Court in the case of Chanabasappa -vs-

Karnataka Neeravari Nigam Limited and Another 1 .

11. In the case on hand, on the application filed by

the judgment debtor, an enquiry has been held by the

(2020) 11 SCC 370 W.P.51643/2016

executing court and during the course of enquiry, in

support of his case, the judgment debtor has examined

one witness as RW-1 and also has produced Exs.R1 and

R2 which are the certified copies of the notice issued under

Section 16(2) of the Land Acquisition Act and also the

certified copy of the mahazar which has been drawn at the

time of taking possession of the land in question. The

executing court on the basis of the oral and documentary

evidence available on record has arrived at a conclusion

that the possession of the land in question was taken on

14.08.2000. Reliance has been placed by the executing

court on Exs.R1 and R2 along with other material on

record to arrive at such conclusion. Though the learned

counsel for the decree holders/petitioners has strongly

relied upon Ex.P1-the sale deed executed by KPTCL in

favour of Power Grid Corporation of India Limited on

07.08.2007, so as to put forward his case that the

possession of the property in question was taken

immediately after the acquisition notification was issued,

reading of the averments made in the said document do W.P.51643/2016

not specifically say so. Learned counsel for the petitioners

has relied upon Sections 127 to 129 of the Karnataka Land

Revenue Act and having regard to the averments made in

the sale deed that the mutation in respect of the acquired

lands were changed, has contended that it has to be

presumed that the possession of the land in question has

been taken as on the date of change of entries in the

revenue records of the land in question. It is needless to

state here that even after the preliminary notification is

issued under Section 4(1) of the Land Acquisition Act,

necessary entries will be made in the revenue records of

the lands, which are subject matter of the acquisition.

Therefore, merely for the reason that the entries have been

made in the revenue records of the lands which are subject

matter of the acquisition, it cannot be presumed that the

possession of the said lands have been taken as on the

date of notification. The Land Acquisition Act specifically

provides for a procedure to take possession of the acquired

land and in the case on hand, such a notification has been

issued under Section 16(1) of the Land Acquisition Act W.P.51643/2016

which is followed by a mahazar which are available at

Exs.R1 and R2. Therefore, in the absence of any other

material on record to show that the possession of the

acquired lands have been taken prior to the preliminary

notification or immediately after the preliminary

notification, the executing court has rightly relied upon

Ex.R1, notice issued under Section 16(2) of the L.A.Act

and the mahazar which has been drawn thereafter. The

mahazar is signed by local witnesses and therefore, it is

not open for the petitioners to contend at this belated stage

that they are not parties to Exs.R1 and R2 and therefore,

the same is not binding on them.

12. Since the decree holders have failed to prove

either before executing court or before this court that the

possession of the acquired lands have been taken prior to

the issuance of preliminary notification, I am of the

considered view that the order impugned passed by the

executing court on the application filed by the judgment

debtor under Section 47 read with Section 151 of CPC

does not suffer from any illegality or irregularity which W.P.51643/2016

calls for interference by this court in exercise of its power

under Article 227 of the Constitution of India. Therefore, I

decline to entertain this petition. Accordingly, the petition

is dismissed.

Sd/-

JUDGE

KNM/-