Shanthappa Bhandary vs Soham Phalguni Renewable Energy ...
2022 Latest Caselaw 5545 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF MARCH, 2022

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

               W.A.No.3845/2019 (GM - RES)

BETWEEN :

SHANTHAPPA BHANDARY
S/O NARAYANA BHANDARY
AGED ABOUT 64 YEARS,
R/AT MUGERU PADU HOUSE,
SANGABETTU VILLAGE,
SIDDAKATTE POST
BANTWAL TALUK,
D.K.DISTRICT - 574 144.                        ...APPELLANT

                 (BY SRI S.RAJASHEKAR, ADV.)

AND :

1.      SOHAM PHALGUNI RENEWABLE
        ENERGY PVT. LTD.,
        IRUVAIL, MULIBETTU, IRUVAIL POST
        PUCHEMOGARU VILLAGE
        MANGALORE TALUK
        D.K. DISTRICT - 574 237
        REP BY ITS CHAIRMAN
        K.SADANANDA SHETTY

2.      STATE OF KARNATAKA
        REP BY ITS CHIEF SECRETARY,
        VIDHANA SOUDHA,
        Dr. B.R.AMBEDKAR VEEDHI,
        BENGALURU - 560 001.
                                 -2-




3.      DEPUTY COMMISSIONER
        D.K.DISTRICT, MANGALORE - 01.

4.      ASSISTANT COMMISSIONER
        MANGALORE TALUK,
        D.K. DISTRICT - 01.

5.      TAHASILDAR
        BANTWAL TALUK
        D.K. DISTRICT- 16.

6.      THE DEPUTY DIRECTOR
        HORTICULTURE DEPARTMENT
        DAKSHINA KANNADA DISTRICT
        MANGALORE - 575 002.                  ...RESPONDENTS

                (BY SRI AJAY J.N., ADV. FOR R-1;
         SRI JEEVAN J. NEERALGI, AGA FOR R-2 TO R-6.)

     THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 18.09.2019 PASSED BY THE LEARNED SINGLE
JUDGE OF THIS HON'BLE HIGH COURT IN W.P.NO.7874/2019
(GM-RES) AND ALLOW THE WRIT PETITION WITH COSTS AS
PRAYED FOR UNDER THE FACTS AND CIRCUMSTANCES OF
THE CASE.

      THIS APPEAL COMING ON FOR HEARING, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                       JUDGMENT

This intra Court appeal is filed against the order

dated 18.09.2019 passed in W.P.No.7874/2019

whereby the Writ Petition filed by the respondent No.1

herein - Soham Phalguni Renewable Energy Pvt. Ltd.,

has been disposed of, with a direction to the respondent

No.1 to disburse the sum of Rs.26,00,000/- to the

appellant deducting the amount which has already been

disbursed within a period of one week from the date of

receipt of certified copy of the order.

2. This case has a checkered history. This is

the third round of litigation before this Court.

3. The appellant claims to be the absolute

owner in possession and enjoyment of the property

bearing Sy.No.66/1, measuring 2.90 acres, Sy.No.66/2,

measuring 0.58 acres and Sy.No.66/2, measuring 0.39

acres of Sangabettu village, Bantwal Taluk. The

appellant claims that a house and hatti kottige were

constructed in the said property in addition to effecting

improvement in the said property by planting arecanut,

coconut and other plantation and digging a borewell

with the pumpset installed therein. The appellant

states that the hard earned money was invested for

improving the properties besides availing loan from the

nationalized bank.

4. It transpires that in the year 2004-2005, the

respondent No.1 was allotted the work of construction

of mini hidel project for power generation across

Phalguni river in Dakshina Kannada District. The

appellant and some of the neighbouring land owners

filed a suit for permanent prohibitory injunction in

OS.No.28/2005 on the file of the Civil Judge (Jr.Dn),

Bantwal. Subsequently, during the pendency of the

said suit, the parties to the suit entered into an

agreement dated 10.4.2007 which was registered on

11.4.2007, wherein in terms of clause 2 of the said

agreement, it was agreed that in the event of any

damage or loss of crop, the amount of compensation of

Rs.12.00 lakhs for coconut and arecanut plantation and

Rs.7.00 lakhs per acre for wet land and Rs.3.00 lakhs

per acre for dry land would be paid by the Respondent

No.1. In view of the said agreement entered into between

the parties, the suit filed by the appellant and other

neighbouring land owners in OS.No.28/2005 was

withdrawn on 27.5.2008.

5. Subsequently, W.P.No.5379/2016 was filed

by the appellant before this Court seeking for a direction

to pay the compensation amount pursuant to the letter

dated 30.9.2015 addressed by the Tahsildar, Bantwal

Taluk, Dakshina Kannada District and considering the

report dated 28.12.2015 addressed by the appellant to

the Deputy Commissioner, Dakshina Kannada District,

Mangaluru. The said writ petition came to be disposed

of on 22.2.2017 reserving liberty to the appellant to

make a representation along with all supporting

documents with respondent Nos.1, 3 and 5 herein and

directing the said respondents to hold a joint inspection

in terms as indicated in W.P.No.55938/2015 and allied

matters, decided on 1.3.2016 and take a decision in the

matter in an expedite manner, but not later than three

months from the date on which a fresh representation

submitted by the appellant. Pursuant to the

representation submitted by the appellant on

16.3.2017, an inspection was held on 20.7.2017. The

assessment report dated 28.7.2017 was prepared fixing

the compensation and an award dated 21.8.2017 was

passed.

6. Being aggrieved by the said determination of

compensation and award made by the Deputy

Commissioner, W.P.No.56199/2017 was filed by the

respondent No.1 herein, which came to be disposed of

on 26.2.2018 observing that the Deputy Commissioner

ought to have taken into account the registered

agreement entered into between the parties dated

10.4.2007 (registered on 11.4.2007) while determining

the amount of compensation payable to the appellant,

the exact measurements of land adversely affected by

the submergence with the construction raised by

respondent No.1 company and also the crops adversely

affected of the appellant. But the same having not been

done, directed the Deputy Commissioner to decide the

case afresh by the end of October, 2018, after holding a

joint survey in the presence of both sides - parties, in

the month of September/October 2018 setting aside the

order of the Deputy Commissioner determining the

compensation - award at Rs.36,78,213/-. Pursuant to

the said order, the Deputy Commissioner has passed

the order dated 18.1.2019 reiterating the decision taken

earlier and determining the compensation at

Rs.36,78,213/-. Being aggrieved by the same, the

respondent No.1 had preferred W.P.No.7874/2019,

which came to be disposed of, as stated hereinabove.

Hence, this writ appeal by the appellant/claimant.

7. Learned counsel appearing for the appellant

inviting the attention of the Court to paragraph 5 of

W.P.No.5379/2016 submitted that the factum of

OS.No.28/2005 filed by the appellant and the

neighbouring land owners before the learned Civil Judge

(Jr.Dn), Bantwala, the agreement entered into between

the parties during the pendency of the said suit and

withdrawal of the said suit by the appellant and other

land owners indeed was narrated in the memorandum

of writ petition. It was the grievance of the appellant

that even after the disposal of the said suit, the

respondent No.1 has not paid any amount as

compensation. That being the position, the learned

Single Judge giving a finding that this factual aspect of

having entered into the registered agreement with the

respondent No.1 on 11.4.2007 was suppressed and an

order was obtained by playing fraud, is wholly

unjustifiable. The learned Single Judge considering the

identical matters disposed of in W.P.No.55938/2015

and allied matters, disposed of W.P.No.5379/2016. As

such, it cannot be held that fraud was played by the

appellant.

8. Nextly, the learned counsel submitted that

the damage caused to the appellant has been rightly

assessed by the Deputy Commissioner having

considered the ground realities and conducting the joint

survey as directed by this Court in W.P.No.56199/2017

and determined the compensation at Rs.36,78,213/-,

the same ought not to have been reduced by the learned

Single Judge to Rs.26.00 lakhs. Learned counsel

further submitted that though the agreement was

entered into between the parties, the same was not

acted upon by the respondent No.1 inspite of lapse of

more than ten years. The compensation awarded is on

the lower side and the same is to be enhanced by this

Court pursuant to the spot inspection conducted along

with the Joint Director of Agriculture Department,

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Deputy Director of Horticulture Department and other

officials.

9. Learned Counsel appearing for the

respondent No.1 supporting the impugned order

submitted that the learned Single Judge has critically

analyzed the material aspects with respect to the

registered agreement entered into between the appellant

and the neighbouring land owners with respondent No.1

as well as the suppression of material facts made by the

appellant in W.P.No.5379/2016 resulted in the direction

being issued by the writ court (W.P.No.5379/2016)

permitting the appellant to file a fresh representation.

This suppression of material facts was noticed in the

subsequent W.P.No.56199/2017 filed by the respondent

No.1 against the compensation determined and award

dated 21.8.2017 and a categorical direction was issued

to the Deputy Commissioner to redo the joint survey in

the presence of both the parties in the month of

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September/October 2018 keeping in mind the registered

agreement dated 11.4.2007. Despite the specific

direction issued by the writ court in

W.P.No.56199/2017, the Deputy Commissioner has not

complied the same and has reiterated the earlier

determination of compensation made at Rs.36,78,213/-.

10. The learned Single Judge in the present

proceedings has observed breach of the order made by

the Deputy Commissioner in not strictly adhering to the

directions issued insofar as the registered agreement

dated 11.4.2007. Though the Deputy Commissioner

was directed to decide the case after holding a joint

survey, the joint survey was conducted by the Joint

Director of Agriculture, the Deputy Director of

Horticulture, the Assistant Commissioner, Mangaluru

District and the Tahsildar, Bantwal, interpreting the

order of the writ court in W.P.No.56199/2017 in a

different manner. These violations have been considered

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and reproduced in a tabular form by the learned single

Judge in paragraph 7. In this regard, though the

respondent No.1 was liable to pay a sum of Rs.25.25

lakhs by way of compensation, has agreed to pay a sum

of Rs.26.00 lakhs to the appellant towards full and final

settlement of his claim. There was no application of

mind by the Deputy Commissioner to the directions

issued by this Court. The determined compensation of

Rs.36,78,213/- not being in conformity with the

directions issued by the writ court, the learned Single

Judge has rightly directed the respondent No.1 to pay a

sum of Rs.26.00 lakhs agreed by the appellant. The

same being reasonable, requires to be confirmed by this

Court dismissing the writ petition.

11. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the material on record.

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12. The factual aspects narrated hereinabove are

not in dispute. In order to verify whether any

contention was taken by the appellant in

W.P.No.5379/2016 as contended we have secured the

said file i.e., W.P.No.5379/2016 from the registry and

perused paragraph 5 therein which reads thus;

"5. The petitioner further submits that since, the project was made behind the back of the villagers the neighbouring land owners filed a suit for permanent prohibitory injunction in OS No.28 of 2005 on the file of Civil Judge (JD) at Bantwal. Subsequently, during the pendency of the said suit the parties entered into an agreement and petitioner and other land owners had not persuaded the said suit. Even after the disposal of the suit the respondent No.3 has not paid the any amount as compensation. Thereafter, the petitioner was persuading the matter with the respondents and requested them to take action in the matter. The petitioner sent repeated notices to the respondent No.3 to take action in the matter. Subsequently, petitioner issued a legal notice. The petitioner also made representation to respondents No.2 to 5 to take

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action in the matter. True copy of the notice dated 10.7.2015 is produced herewith and marked as ANNEXURE-F. In addition to that the petitioner has addressed yet another notice on 11.8.2015 to the 3rd respondent, which is produced herewith and marked as ANNEXURE-G. Likewise, since there was no action taken by the respondent No.3, the petitioner made representations to the respondents No.2, 4 and 5. It appears that the respondent No.4 directed the 5th respondent to conduct spot inspection and submit a report. True copy of letter dated 25.8.2015 addressed by Assistant Commissioner to Tahasildar is produced herewith and marked as ANNEXURE- H. Subsequent to the said letter the 5th respondent sent a report dated 30.9.2015 to the 3rd respondent vide Annexure-A and sent a copy of the same to the petitioner and 2nd respondent."

13. We are of the considered view that though

this factum was narrated in the pleadings, the same

was not brought to the notice of the Hon'ble Court while

hearing the matter which came to be disposed of placing

reliance on W.P.No.55938/2015. It is significant to note

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that respondent No.1 herein was arrayed as respondent

No.2 in the said proceedings. After hearing both the

sides, the order dated 22.2.2017 was passed in

W.P.No.5379/2016. It was obligatory for both sides to

bring to the notice of the Hon'ble Court inasmuch as the

registered agreement dated 11.4.2007 executed between

the appellant and the neighbouring land owners with

respondent No.1. In the circumstances, there being

lapse on the part of both sides, we cannot subscribe to

the view of the learned Single Judge that a fraud was

played by the appellant in obtaining the order in

W.P.No.5379/2016 on 22.2.2017. It is discernable that

pursuant to the direction issued by this Court in

W.P.No.5379/2016 the Deputy Commissioner has

determined the compensation at Rs.36,78,213/- and

passed the award, which was the subject matter of

W.P.No.56199/2017. The subsequent order of the

Deputy Commissioner pursuant to the remand made in

W.P.No.56199/2017 is not in conformity with the

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specific directions as noticed by the learned single

Judge in paragraph 7 of the order impugned herein.

The directions issued in W.P.No.56199/2017 and the

flaws found in the order of the Deputy Commissioner

are reproduced in the tabular form by the learned Single

Judge, which reads as under;

Sl. Extracts from the order of Extracts from the Order this Hon'ble Court in passed by R-2 at Annexure- No.

WP56199/2017 A 1 "8 Having heard the learned "16. Point No.1: The counsel for the parties, this Agreement between the Court of the opinion that parties Vide No:BNT-4- the learned Deputy 00002-2007-08 dated Commissioner ought to 11.04.2007 was not even have taken into account the brought to the notice of the Registered Agreement learned single judge who between the parties dated passed the order on 11/04/2017 while 22.02.2017 in Writ Petition determining the No:5379/2016 & 9629- compensation payable by 30/2016. The said the petitioner, the exact agreement was brought to measurements of land the notice of this office after adversely affected by the Deputy Commissioner DK submergence due to wrote to the company to pay construction raised by the compensation to Mr. petitioner company and also Shantappa Bhandary on crops adversely affected of 21.08.2017. There is lapse the Respondent. The said from both the side. As per Agreement has not been the agreement, legal notices apparently considered by had been given to the the learned Deputy petitioner for the payment Commissioner. of the compensation, even though the service of

9. It is now brought to the

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notice of the Court by both notices, Petitioner has failed the learned counsels that to make payment and could the fact of the said not act upon the said Registered Agreement dated agreement. Therefore, the 11/04/2017 was not even agreement could not be brought to the notice of the considered at this point learned Single Judge who causing further damage to passed the order on the property of Mr. 22/02/2017. Shantappa Bhandary" (At p.23 of WP)

10. In view of the aforesaid, the present writ petition is Submission: Despite a clear disposed of and the matter direction to consider the is remanded back to the Agreement, R-2 has ignored learned Deputy the Agreement. The Commissioner, Dakshina Agreement fixed the Kannada District, compensation based on Mangalore to decide the extent of land damaged and case again between the not on quantum of crop on parties after giving an the land.

opportunity of hearing afresh"

(at p.159-160 of WP) "13. The learned counsel for "18. Point No.3: As per the the Petitioner further order of the Hon'ble High submitted that the actual Court of Karnataka in WP extent of submergence can 56199/2017, the Joint be determined only during Director Agriculture, the the rainy season, therefore, Deputy Director the period for re- Horticulture, the Assistant determining the Commissioner Mangaluru compensation after and the Tahsildar Bantwal verification of the actual were directed to conduct submerged land and loss of the joint inspection at the crops may be extended up end of September/October to the end of September and once again submit the 2018. report regarding the damage caused due to the

14. The request of the stagned (sic.) water in the learned counsel appears to said land.

be fair and reasonable.

Therefore, the learned Assistant Commissioner

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Deputy Commissioner is along with JD Agriculture, directed to decide the case DD Horticulture again upon remand by the Department, Assistant end of October 2018, after Commissioner Mangaluru holding a joint survey in the and Tahsildar Bantwal and presence of both the sides revenue official visits the in the month of spot on 27-09-2017 and September/October 2018". submitted that, at an outward appearance, it Submission: (1) This appears that the damaged Hon'ble Court directed the (sic.) was caused due to Respondent No.2 to stangned (sic.) water in the personally conduct the said land and due to the survey. The Respondent increase in the level of No.2 neither personally water there may the (sic.) in visited the spot nor flaw of the water in the said conducted the survey. The land. There are total 1041 compensation has been arecanut trees, 61 coconut fixed on assumptions and trees, of which 901 surmises and blindly arecanut trees, 56 are accepting the report of his completely damaged and juniors without application 564 trees were partially of mind.

damaged. All remaining (2) No measurement of trees could be completely extent of land submerged as damaged in the near future, was directed by this Hon'ble and there is no difference in Court. Instead only the report submitted earlier. 'outward appearance was The total value of the considered' and that too damaged coconut and only of the trees. arecanut trees is (3) This Hon'ble Court had Rs.36,78,213/-. The directed R-2 to conduct a Detailed joint survey report fresh joint survey. R-2 has submitted earlier was as relied on the earlier joint follows: (Table is not measurement survey to extracted) award compensation. Hence value of damage Therefore, this Hon'ble determined by the Joint Court's directions have Director Agriculture, The been violated. Deputy Director (4) The Agreement Horticulture Department, (Annexure-B to the WP) at the Assistant Commissioner Mangaluru and the

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Clause 2 (at p.65 - Tahsildar Bantwal and Translated version and p.32 other revenue officials

- Kannada version) fixed the appears to be reasonable. compensation based on 'per It is sure that the trees have acre' basis. As R-6 land is been damaged due to arecanut/coconut stagnant water. Hence the plantation, the level of water in the river is compensation is Rs.12 not the same. There is the lakhs per acre. The total possibility that, the trees extent of damage is around can be damaged completely 2.1 acres, the Respondent by the roots." No.6 is entitled to only (at p.24 of the WP) around Rs.24 lakhs compensation. However, the Respondents 1 to 5 have not considered the extent of land submerged but have fixed compensation on the total number of trees. The petitioner has specifically disputed the extent of trees.

14. These lapses being ex facie apparent and in

breach of the directions issued in W.P.No.56199/2017,

the learned Single Judge in the present proceedings i.e.,

W.P.No.7874/2019 has rightly rejected the

determination of compensation awarded by the Deputy

Commissioner at Rs.36,78,213/-, which is nothing but

the replica of the earlier decision made ignoring the

remand order.

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15. It is not in dispute that under the agreement

the respondent No.1 is entitled to pay a sum of Rs.25.25

lakhs towards the compensation for the actual extent of

submergence of the land of the appellant, wherein

approximately an area of 2.10 acres of land has come

under the submergence area. It appears, on the

submissions made by respondent No.1, on instructions,

wherein the respondent No.1 has agreed to pay a sum of

Rs.26.00 lakhs towards full and final settlement of the

claim of the appellant, the learned Single Judge

proceeded to award the same. It is also not in dispute

that the respondent No.1 has paid a sum of Rs.5.00

lakhs to the appellant on 30.1.2018 and further handed

over a cheque bearing No.843674, dated 22.2.2018,

drawn on State Bank of India, for a sum of

Rs.13,39,000/- in favour of the appellant. Learned

counsel for the respondent No.1 has submitted that the

mini hidel project of power generation was

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commissioned in the year 2015 and the land of the

appellant was submerged for the first time in the year

2016. If these dates are considered, then the appellant

being a farmer is entitled to interest at 9% p.a., on the

amount which was liable to be paid as per the registered

agreement at Rs.25.25 lakhs atleast from the date of the

lands getting submerged. If this aspect is considered

even ignoring Rs.6,86,000/- the balance amount which

was liable to be paid as on 26.2.2018, said to have been

paid subsequent to the disposal of W.P.No.7874/2019

decided on 18.9.2019, if we calculate interest at 9% pa.,

for two years, the appellant would be entitled to a sum

of Rs.4,54,500/-, in addition to Rs.26.00 lakhs. Having

regard to the peculiar facts and circumstances, we have

made this order and it is made clear that it will not be

considered as a precedent and shall not apply to the

other agreement holders/claimants.

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16. For the reasons aforesaid, we modify the

order of the learned single Judge as under;

ORDER

i) The writ appeal is allowed-in-part.

ii) The order of the learned Single Judge dated

18.9.2019 passed in W.P.No.7874/2019

impugned herein is modified.

iii) The direction issued by the writ Court

directing the respondent No.1 to disburse a

sum of Rs.26,00,000/- to the appellant,

deducting the amount which has already

been disbursed within a period of one week

from the date of receipt of the certified copy

of the order is modified, directing the

respondent No.1 to disburse a sum of

Rs.30,54,500/- to the appellant deducting

the amount which has already been

disbursed, i.e., Rs.4,54,500/- within a period

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of four weeks from the date of receipt of

certified copy of this order.

Sd/-

JUDGE

Sd/-

JUDGE

nd