Shri.Madhukar Dattu Jadhav vs The Asst Commissioner
2023 Latest Caselaw 4178 Kant

                                                     -1-
                                                             MSA No. 100236 of 2015



                          IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 10TH DAY OF JULY, 2023

                                                  BEFORE
                              THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                        MISCELLANEOUS SECOND APPEAL NO. 100236 OF 2015

                        BETWEEN

                               SHRI. MADHUKAR DATTU JADHAV
                               AGE: 76 YEARS,
                               OCC: AGRICULTURE,
                               R.O: UGAR KHURD-591316,
                               TAL: ATHANI,
                               DIST: BELAGAVI.
                                                                         ...APPELLANT

                        (BY SRI. ANAND ASHTEKAR, ADVOCATE)

                        AND

                        1.     THE ASST COMMISSIONER
                               THE ASSISTANT COMMISSIONER AND
           Digitally
           signed by
                               LAND ACQUISITION OFFICER,
           YASHAVANT
YASHAVANT  NARAYANKAR
NARAYANKAR Date:
                               CHIKODI-591201,
           2023.07.13
           12:00:14 -          DIST:BELAGAVI.
           0700




                        2.     THE DIVISIONAL ENGINEER
                               GAUGE CONVERSION SOUTH WESTERN RAILWAYS,
                               KESHWAPUR,
                               HUBBALLI-580020,
                               DIST: DHARWAD.
                                                                   ...RESPONDENT

                        (BY SRI. M.H.PATIL-HCGP FOR R1;
                        SRI. SHIVARAJ BELLAKKI FOR R2, ADVOCATES)

                              THIS MSA IS FILED U/O.54(2) OF LA ACT 1894, AGAINST THE
                        JUDGMENT AND DECREE DATED: 01.08.2015, PASSED IN LACA
                        NO.370/2011 ON THE FILE OF THE VII ADDITIONAL DISTRICT AND
                        SESSIONS JUDGE, BELAGAVI SITTING AT CHIKODI, DISMISSING
                        THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:
                        18.12.2010, PASSED IN LAC.NO.100/2005, ON THE FILE OF THE
                        SENIOR CIVIL JUDGE ATHANI, PARTLY ALLOWING THE REFERENCE
                        APPLICATION FILED U/S.18(1) OF LA ACT.
                                 -2-
                                           MSA No. 100236 of 2015



     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
28.06.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY COURT
DELIVERED THE FOLLOWING.


                          JUDGMENT

This Miscellaneous Second Appeal is filed under

Section 54(2) of the Land Acquisition Act, 1894

challenging the judgment and award passed by the

learned Senior Civil Judge, Athani, in LAC No.100/2005

and confirmed in LACA No.370/2011 by the learned VII

Additional District and Sessions Judge, Belagavi sitting at

Chikkodi.

2. For the sake of convenience, the parties herein

are referred with the original rankings assigned to them

before the Reference Court.

3. Brief facts of the case are as under:

3.1. That an extent of land measuring 0-30 guntas

belonging to claimant in Sy.No.184/1B of Ugar Khurd

Village in Athani Taluka has been acquired by the

respondents for Meeraj-Londa Broadguage conversion of

Railway Line. The preliminary notification was issued on

02.09.2004 and the date of award is 17.06.2005.

MSA No. 100236 of 2015

Respondent No.1 after holding an enquiry has passed the

award fixing the compensation in respect of acquired land

at the rate of Rs.50,325/- per acre on the ground that the

acquired land is a dry land. Aggrieved by the said award,

respondent No.1/claimant has sought for reference under

Section 18 of the Land Acquisition Act and respondent

No.1 has also made reference. The claimant has claimed

that the acquired land was N.A. potential land and the

market value of acquired land is more than Rs.30,000/-

per gunta and hence, he has sought enhancement.

4. The claim of the claimant was objected by the

respondents and it is denied that the land acquired was a

N.A. potential land and asserted that the compensation

awarded by respondent No.1 is proper. The claimant was

got examined himself as PW.1 and placed reliance on 10

documents marked at Ex.P1 to P10. The respondent did

not lead any evidence. However, Ex.R1 and Ex.R2 were

marked on behalf of respondents.

5. The Reference Court allowed the reference by

fixing the marked value of the acquired land at

Rs.15,000/- per gunta and further granted other statutory

MSA No. 100236 of 2015

benefits including solatium and 12% additional market

value as well as interest from date of 4(1) notification.

6. Being dissatisfaction with this award, the

claimant has approached the learned VII Additional District

and Sessions Judge, Belagavi sitting at Chikkodi, in LACA

No.370/2011. The learned District Judge, after

re-appreciating the oral as well as documentary evidence,

has dismissed the appeal by confirming the judgment and

award passed by the Reference Court. Being aggrieved by

this award of the Appellate Court, this Miscellaneous

Second Appeal is filed.

7. Heard the arguments advanced by the learned

counsel for appellant and learned counsel for the

respondents. Perused the records.

8. Learned counsel for the appellant would

contend that both the Courts below have failed to

appreciate the oral and documentary evidence in proper

perspective and have wrongly rejected the claim of the

appellant for enhancement of the compensation at the rate

of Rs.30,000/- per gunta. It is also submitted that the

MSA No. 100236 of 2015

deduction of 53% towards civic amenities is not permitted

as land is not acquired for any housing purpose. He would

also assert that granting of interest from the date of 4(1)

notification is improper and interest ought to have been

granted from the date of taking possession. He would

further contend that as per Ex.P.5 on 15.07.2004 an

adjoining plot measuring 54X54 was sold at the rate of

Rs.48,000/- and if the same norm is applied, then

compensation ought to have been awarded at the rate of

30,000/- per gunta. Hence, he would seek for allowing the

appeal by admitting the same.

9. Per contra, learned counsel appearing for the

respondents submitted that the arguments regarding 53%

deduction towards civic amenities cannot be accepted as

the judgment does not disclose deduction at 53% as

submitted. He would assert that small piece of land was

acquired and it cannot be compared with a plot which is

fully developed as referred in the sale deed. He would

assert that even if the claim of the appellant as per Ex.P.5

is taken note of, then that plot is measuring 54X54 which

is nearly 2 guntas and it is sold for 48,000/-. He would

MSA No. 100236 of 2015

also contend that if deduction of civic amenities are taken

note of, then the value of the plot will be too low and in

fact the Reference Court has awarded Rs.15,000/- per

gunta which is on higher side itself. Hence, he would seek

for dismissal of the appeal.

10. Having heard the arguments and perusing the

records, it is evident that 0-30 guntas of land belonging to

the claimant situated in Ugar khurd Village, Athani Taluka

was acquired for Meeraj-Londa Broadguage conversion.

Further it is an admitted fact that the land acquired was an

agricultural land. The claimant is mainly relying on Ex.P5-

sale deed dated 15.07.2004 wherein a site measuring

54X54 feet was sold for a sum of Rs.48,000/-. It is evident

that the said plot was nearly measuring just less than 2

guntas. However, the escalation of Rs.48,000/- is based

on development expenses and the said site has undergone

civic amenities but in the instant case, admittedly the area

acquired was an agricultural land. Even if this Ex.P.5 is

taken into consideration and if 53% deduction is taken

note of towards civic amenities, the base value of the site

will be around Rs.23,000/- to Rs.24,000/-. It is nearly 2

MSA No. 100236 of 2015

guntas, but in the instant case, 0-30 gunta was acquired

for Rs.15,000/- which itself is on the higher side. The

Reference Court in paragraph Nos.15 and 16 of its

judgment has discussed this aspect in detail and has

rightly come to a conclusion that the market value of the

0-30 gunta of land can be taken at Rs.15,000/- per gunta

which would be valued at Rs.6,00,000/- per acre which is

more than reasonable.

11. Learned counsel for the appellant has placed

reliance on a decision of this Court in MFA No.5845/2001

and MFA CROB. No.113/2003 dated 28.03.2005 (The

Special Land Acquisition Officer vs. Vyjanath) but

there in the said case 53% deduction was made towards

civic amenities. This Court has held that the deduction

towards civic amenities is to be made when the land is

acquired for housing purpose, but when the land acquired

is fully utilized, the deduction is not permissible. But the

citation is not applicable to the case in hand, as in the

instant case 53% deduction is not at all made in respect of

the acquired land as contended. Hence, the said ground

holds no water at all.

MSA No. 100236 of 2015

12. The other contention raised by the learned

counsel for the appellant is regarding interest. Learned

counsel for the appellant would contend that interest

ought to have been awarded from the date of taking actual

possession. In this context, he placed reliance on a

decision reported in ILR 2007 KAR 1462 (The

Commissioner Rehabilitation and Resettlement and

Another vs. Smt. Jayashree A. Kotti and Others). But

this issue has been covered by the decision of the Apex

Court reported in (2002) 1 SCC 142 (Siddappa

Vasappa Kuri and Another vs. Special Land

Acquisition Officer and Another) wherein the Hon'ble

Apex Court has observed as under:

"Land Acquisition Act, 1894 - S. 23(1-A) - Additional compensation- Held, if possession is taken prior to publication of S. 4 notification, additional compensation under S. 23(1-A) is payable for period starting from date of publication of S. 4 notification up to date of award - The starting point for purpose of calculating amount payable remains the date of publication of the notification, whether the possession is taker prior to it or later - On facts held, High Court rightly found that appellants were entitled to additional compensation for the period from 8-3-1991 (date of notification) up to 6-2-1993 (date of award) and not

MSA No. 100236 of 2015

from 1-6-1977 when possession was taken - Interpretation of Statures - Subsidiary rules - Equitable construction - Held, applicable only if provision is ambiguous."

13. In the instant case admittedly, the possession is

taken prior to the publication of 4(1) notification and

hence, as per the mandate of the Apex Court, the interest

is required to be paid from the date of 4(1) publication.

The Reference Court has awarded interest from the

publication of 4(1) notification with a liberty to the

appellant to claim damages from the date of possession till

the date of 4(1) notification. Hence, the said ground is also

not available to the appellant. Learned counsel for the

respondents has also placed reliance on the Division Bench

decision of this Court in the case of Parappa S/o

Basappa Vanarotti and Another vs. Special Land

Acquisition Officer and Another in MFA

No.10034/2007 (LAC) dated 20.01.2014 wherein the

Division Bench of this Court has considered the deduction

of development factor to be made with reference to the

price of the small plot in a developed layout and to arrive

at a cost of undeveloped land, it will be far more than

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MSA No. 100236 of 2015

deduction with reference to the price of a small plot in an

unauthorized private layout or an industrial layout. Hence,

the records disclose that the Reference Court has made

proper guess work and considering Ex.P.5 and on the basis

of development cost of civic amenities pertaining to plot

under Ex.P.5 and considering the area sold under Ex.P.5

has rightly fixed a reasonable market value at Rs.15,000/-

per gunta by enhancing the same from Rs.11,435/- fixed

by the LAO. Further he has also awarded 30% solatium +

12% additional market value as per statute with interest

at the rate of 9% for first year and 15% subsequently with

a liberty to claim damages.

14. Under such circumstances, looking to these

facts and circumstances, the judgment and award passed

by the Reference Court and confirmed by the District

Judge cannot be said to be erroneous or arbitrary so as to

call for any interference by this Court. Hence, there are no

grounds forthcoming for admitting the appeal and appeal

being devoid of any merits does not survive for

consideration. Accordingly, I proceed to pass the

following:

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MSA No. 100236 of 2015

ORDER

The appeal stands dismissed.

No order as to costs.

In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are disposed of accordingly.

Sd/-

JUDGE SSP