Siddanna S/O. Mallappa Desai vs The Special Land Acquisition ...
2022 Latest Caselaw 7499 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 26TH DAY OF MAY 2022

                            BEFORE

  THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                MFA No.31521/2012 (LAC)

BETWEEN:

Siddanna S/o Mallappa Desai,
Aged about 69 years,
R/o Jainapur, Tq. & Dist. Bijapur.
                                                   ... Appellant

(By Sri. Ameet Kumar Deshpande, Sr. Advocate for
    Sri. Ganesh S. Kalburgi, Advocate)

AND:

The Special Land Acquisition Officer,
Upper Krishna Project, Almatti,
Bijapur District.
                                              ... Respondent

(Smt. Maya T.R., HCGP)

       This MFA is filed under Section 54(1) of the Land
Acquisition Act, praying to allow the appeal and set aside the
judgment and award dated 30.11.2010 passed in LAC
No.29/2003 by the II Addl. Senior Civil Judge, Bijapur and
award enhanced compensation by determining market value at
the rate of not less than Rs.2,00,000/- per acre, with all
statutory benefits and to pass appropriate orders.
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       This appeal coming on for final hearing this day, the Court
delivered the following:

                          JUDGMENT

This appeal is filed under Section 54(1) of the Land

Acquisition Act (hereinafter referred to as 'L.A. Act' for

short) , challenging the order dated 30.11.2010 passed by

the II-Addl. Senior Civil Judge, Bijapur (hereinafter

referred to as 'the Reference Court' for short) in LAC

No.29/2003, whereby the Reference Court has partly

allowed the Reference Application under Section 18(2) of

the L.A. Act by awarding compensation at the rate of

Rs.40/- per gunta towards Phot Kharab land measuring 4

acres 19 guntas in RS No.40/1 of Jainapur village along

with other statutory benefits.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Reference Court.

3. The facts leading to the case are that, the

claimant is owner of land bearing RS No.40/1

measuring 4 acres 19 guntas situated at Jainapur

village and the said land was acquired under a 4(1)

notification dated 22.07.2000 by passing an award on

17.10.2001 without awarding any compensation. The

matter was referred to the Reference Court and the

Reference Court, after appreciating the evidence has

awarded compensation at the rate of Rs.40/- per

gunta along with other statutory benefits on the

ground that it is a Phot Kharab land. Being aggrieved

by this order, the claimants have filed this appeal.

4. Heard the arguments advanced by the

learned Senior Advocate appearing on behalf of the

appellant and the learned High Court Government

Pleader appearing for the respondent-State and

perused the records.

5. Sri Ameet Kumar Deshpande, learned

Senior Advocate appearing on behalf of the appellant

would contend that the Reference Court has

committed an error in relying on the certified copy of

the judgment in LAC No.3/2003 without considering

whether the said land is situated in the same vicinity

or not. Further he would contend that the SLAO did

not hold any enquiry under Section 11 of the L.A. Act

regarding the market value of the land and he

presumed that since it is a Phot Kharab land, the

entire land belongs to State Government. He would

also contend that the Reference Court has failed to

consider any of these aspects and in a mechanical way

by placing reliance on the decision in LAC No.3/2003

passed by the learned Senior Civil Judge, B.Bagewadi

has awarded compensation at the rate of Rs.40/- per

gunta, which is on the lower side and as such, he has

sought for enhancement. He would also contend that

no proper enquiry was held under Section 11 of the

L.A. Act and the Reference Court also did not proceed

to hold proper enquiry and as such, he has sought for

remanding the matter for holding an enquiry

regarding market value.

6. Per contra, the learned High Court

Government Pleader would support the judgment and

award of the Reference Court contending that it is a

Phot Kharab land and the claimant has failed to

establish that he is cultivating the said land and

getting any yield. Hence, she seeks for dismissal of

the appeal.

7. Having heard the arguments and perusing

the records, now the following point arose for my

consideration:

Whether the Reference Court is justified in awarding compensation at the rate of Rs.40/- per gunta towards Phot Kharab land measuring 4 acres 19 guntas in RS No.40/1 of Jainapur village?

8. It is an undisputed fact that the claimant is

the owner of the acquired land. The Reference Court

has specifically held that the land acquired falls within

the category of Rule 21(2)(a) of the Karnataka Land

Revenue Rules and claimant is the owner of the

acquired land. However, the order of the SLAO

disclose that he did not venture to hold any enquiry

under Section 11 of the L.A. Act and straight away on

presumption has held that since the land is Phot

Kharab land, no compensation is required to be paid.

However, the Reference Court based on the decision

in LAC No.03/2003 passed by the Senior Civil Judge,

B.Bagewadi has simply awarded compensation at the

rate of Rs.40/- per gunta on the ground that it is a

Phot Kharab land. The Reference Court did not

consider the fact as to whether the said land is

situated within the same vicinity and the quality of the

land. The Reference Court could have consider these

aspects before relying on the decision in LAC

No.03/2003.

9. In this context, the learned counsel for the

appellant has placed reliance on a decision of the

Division Bench of this Court in W.A.No.50107 and

50128-154 of 2013 (LA-RES) dated 07.08.2013

(Sidramappa Shivappa Birakabbi and others vs.

Government of Karnataka and others), wherein in

similar circumstances, the Division Bench has held

that it was the duty of the SLAO to hold an enquiry

under Section 11 of the L.A. Act and pass an

appropriate award. But, in the instant case, admittedly

no such steps were taken by the SLAO. On similar set

of facts, he has also placed reliance on a decision of

this Court in Writ Petition No.7540 and 9155-

9204/2001, decided on 26.08.2003 in the case of

Sadashivaiah and Ors. Vs. State of Karnataka and

Ors.

10. The learned High Court Government

Pleader would contend that the Reference Court has

assessed the evidence and there is no need for

holding an enquiry under Section 11 of the L.A. Act.

However, it is evident that though the evidence was

led and the Reference Court though discussed the

evidence, but did not considered it. On the contrary,

straight away on the basis of award passed in LAC

No.03/2003, proceeded to award the compensation at

the rate of Rs.40/- per gunta since it is Phot Kharab

land. The Reference Court did not venture to enquire

as to whether the said land is situated in the same

vicinity and the quality of the land. An enquiry ought

to have been held in this regard. But, the Reference

Court has failed to do so. Under these circumstances,

in the absence of the proper evidence and in the

absence of any material regarding market value of the

land, this Court is not in a position to award any

compensation and as such, the matter requires to be

remitted back to the Reference Court for holding a

fresh enquiry regarding market value of the land by

giving opportunity to both the parties. Considering all

these aspects, the point under consideration is

answered in the negative. Hence, I proceed to pass

the following:

ORDER

i. The appeal is allowed.

ii. The impugned judgment and award dated 30.11.2010 passed in LAC No.29/2003 by the Reference court is set aside.

iii. The matter is remitted back to the Reference Court with a specific direction to give opportunity to both the parties to lead further evidence for determination of the market value of the acquired land and pass appropriate order.

iv. Considering the old nature of the matter, the Reference Court is directed to dispose of the matter within an outer limit of one year from the date of receipt of Trial Court Records.

v. Under the circumstances, there is no order as to costs.

vi. The Court Fee paid be refunded to the claimant as per law.

vii. In view of disposal of the appeal, all pending I.As. stand disposed of.

viii. Send back the Trial Court records to the Reference Court with the copy of this order for compliance.

Sd/-

JUDGE

LG