Karnataka High Court
Smt. Sumalatha Nath vs The Special Land Acquisition Officer on 6 August, 2024
Author: V Srishananda
Bench: V Srishananda
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MSA No. 17 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 17 OF 2022 (LA)
BETWEEN:
1. SMT. SUMALATHA NATH
W/O LT. COL. M H NATH
AGED ABOUT 92 YEARS
R/AT D NO.4-3-298/42
5TH CROSS, KODIALGUTHU ROAD
KODIALBAIL
MANGALURU-575003, D.K.
BY HER P A HOLDER
SRI PRAKASH ALVA
AGED ABOUT 68 YEARS
R/AT 4-3-298/42, 5TH CROSS
KODIALGUTHU ROAD, MANGALURU-575003
SINCE DEAD REPRESENTED BY LEGAL
REPRESENTATIVES
1(a) SRI NAVEEN NATH
S/O LATE LT. COL.M.H.NATH
AGED ABOUT 70 YEARS
Digitally
signed by RESIDING AT 4-3-298/42
MALATESH 5TH CROSS, KODIALBAIL ROAD
KC MANGALURU -575 003
Location:
HIGH 1(b) MRS.PAMELA NATH ALVA
COURT OF W/O MR.PRAKASH ALVA K.T
KARNATAKA
AGED ABOUT 58 YEARS
RESIDING AT 4-3-298/42
5TH CROSS, KODIALGUTHU ROAD
KODIALBAIL
MANGALURU - 575 003
...APPELLANTS
(BY SRI SANATHKUMAR SHETTY K, ADVOCATE)
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MSA No. 17 of 2022
AND:
1. THE SPECIAL LAND ACQUISITION OFFICER
MANGALURU CITY CORPORATION
MANGALURU-575003.
...RESPONDENT
(BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE)
THIS MSA IS FILED UNDER SECTION 54(2) OF LAND
ACQUISITION ACT, 1894, AGAINST THE JUDGMENT DATED
01.09.2021 PASSED IN MA NO.11/2013 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K,
MANGALORE, PARTLY ALLOWING THE APPEAL AND MODIFYING
THE JUDGMENT AND AWARD DATED 12.12.2012 PASSED IN
LAC.NO.55/2008 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM, MANGALORE. ACCEPTED AND PARTLY
ALLOWING THE REFERENCE APPLICATION U/S 18 OF THE LAND
ACQUISITION ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Sanath Kumar Shetty K, learned counsel for the
appellant and Sri Pavan Chandra Shetty H., learned counsel for
the respondent.
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2. Claimant who lost the land for the purpose of
construction of underground drainage is the appellant.
3. Facts which are not in dispute are that the land of
the appellant has been acquired after following necessary
formalities. Respondent was given the project of construction
of underground drainage water under A.D.B. scheme for the
City Corporation of Mangalore.
4. The Land Acquisition Officer fixed the compensation
at the rate of Rs.50,000/- per cent after considering the
relevant aspects of the matter. Nine cents of the land of the
claimant has been acquired.
5. Being not satisfied with the quantum of
compensation awarded by the Land Acquisition Officer,
claimant filed reference under Section 18 of the Land
Acquisition Act, which was registered in LAC No.55/2008.
6. Learned Judge in the reference Court after
considering the oral and documentary evidence placed on
record, allowed the reference and enhanced the compensation
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in a sum of Rs.70,000/- per cent with consequential and
statutory relief.
7. Being not satisfied with the enhancement, the
claimant further filed an appeal before the District Court in
M.A.No.11/2013.
8. Learned Judge in the First Appellate Court based on
the material placed on record, re-appreciated the material
evidence and took into consideration the value of the land, sold
in the vicinity and adopted the sale sampler method and
enhanced the compensation from Rs.70,000/- per cent to
Rs.84,000/- per cent.
9. Being not satisfied with the said enhancement,
claimant is before this Court
10. Sri Sanath Kumar Shetty K., learned counsel for the
claimant/appellant reiterating the grounds urged in the appeal
memorandum contended that by the said acquisition, potential
use of the land has been diminished after the nine cents of the
land has been utilized for the construction of the underground
drainage and on the severance of the land, the First Appellate
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Court has awarded a sum of Rs.84,000/- per cent as the
compensation after taking note of the value of the land as per
sale sampler method which is on the lower side and sought for
reasonable enhancement.
11. He also pointed out that both the Courts failed to
consider that the sale deed produced and marked at Ex.P.2 for
the value of the land was sold in a sum of Rs.1,40,000/- per
cent and therefore, awarding of the compensation in a sum of
Rs.84,000/- per cent by the First Appellate Court is on the
lower side.
12. He further contended that the acquired land is
situated 300 meters away from the land that was subject
matter of the sale under Ex.P.2. Therefore, the reference Court
as well as the First Appellate Court were not justified in
awarding meager compensation to the claimant and sought for
reasonable enhancement.
13. In support of his contentions Sri Sanath Kumar
Shetty, learned counsel for the appellant placed reliance on the
judgment of the Hon'ble Apex Court in the case of Digamber
and others v. State of Maharashtra and others, reported in
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AIR 2013 SC 3532, wherein in paragraphs 19 to 21, their
lordships have held as under:
"19. The judgment of the Bombay High Court
extracted in Sabhia Mohammed Yusuf Abdul Hamid
Mulla case [Sabhia Mohammed Yusuf Abdul Hamid
Mulla v. Land Acquisition Officer, (2012) 7 SCC 595 :
(2012) 4 SCC (Civ) 290] , and the principles laid down
by this Court would clearly go to show that the relevant
consideration for determination of market value of the
acquired land is virtually identical. The nearby land of
the land under reference fetched market value of Rs 25
per square metre. In the judgment referred to supra it
is held that judicial notice can be taken of the fact that
the industrial growth in and around Bombay has
started with rapid strides from the year 1965 onwards.
In fact, the growth is by leaps and bounds in
magnitude as well as number of industries and virtually
all the industries of the country are represented on the
industrial estates scattered on this highway.
20. The sale instances in relation to the small
residential plots covered in the sale deeds, Exts. 20-21
are situated in the same area, which sales were prior to
the issuance of the preliminary notification i.e. before
14-6-1990 and they have similar topographical and
physical characteristics and the fact is that the land of
the appellants is acquired for the purpose of industrial
development, which has got the potentiality for
development of the land as industrial estate and to
carve out industrial plots in it. That the acquisition of
the land is for commercial purpose should be the
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relevant criterion for determining the market value by
both the Land Acquisition Officer and the Reference
Court placing reliance upon the sale instances even in
relation to small plots of land, though it is shown from
the records that the acquired land on the date of
notification is an agricultural land. But the acquired
land has got non-agricultural potentiality as the said
land was proposed by the District Collector after
identifying the land for acquisition and stated that it is
suitable for the purpose of industrial development.
Therefore, the principles laid down at para 16 of Sabhia
Mohammed Yusuf Abdul Hamid Mulla case [Sabhia
Mohammed Yusuf Abdul Hamid Mulla v. Land
Acquisition Officer, (2012) 7 SCC 595 : (2012) 4 SCC
(Civ) 290] and the principles laid down in Viluben
Jhalejar Contractor case [Viluben Jhalejar
Contractor v. State of Gujarat, (2005) 4 SCC 789]
referred to supra lay down the criteria for
determination of the market value of the acquired land.
21. Also, in Atma Singh case [Atma Singh v. State
of Haryana, (2008) 2 SCC 568 : (2008) 1 SCC (Civ)
621] it was stated that in the criteria for the
determination of the market value, the potentiality of
the acquired land should also be taken into
consideration which has been explained stating that
potentiality means capacity or possibility for changing
or developing into a state of actuality. Further, the
legal principles laid down in Atma Singh [Atma
Singh v. State of Haryana, (2008) 2 SCC 568 : (2008)
1 SCC (Civ) 621] at para 5 which portion is extracted
above, give us the criteria to be followed for
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determination of the market value of a property
keeping in view its existing condition with all its
existing advantages and its potential possibility when
let out in its most advantageous manner. The various
criteria laid down in the abovereferred case, namely,
the existing amenities like water, electricity, possibility
of their further extension, whether nearabout the
acquired land, town is developing or has prospect of
development in future, have to be taken into
consideration by both the Land Acquisition Collector
and the courts for determination of the market value.
The aforesaid advantages are very much abundantly
available in respect of the acquired land as the said
land is within the proximity of New Venkateshnagar
Layout, wherein residential sites are formed, and it is
on record and there is a school and college near the
highway. Therefore, the principles laid down in the
aforesaid case are aptly applicable to the fact situation
of the case in hand."
14. Per contra, Sri Pavana Chandra Shetty H.,
representing the respondent supported the impugned
judgment.
15. He further contended that the land in question that
was subject matter at Ex.P.2 is a converted land and therefore,
both the Courts have judiciously enhanced the compensation by
adopting the sale sampler method and sum of Rs.84,000/- per
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cent compensation awarded by the First Appellate Court is
justified in the facts and circumstances of the case on hand.
Thus sought for dismissal of the appeal.
16. Having heard the parties, this Court perused the
material on record meticulously.
17. On such perusal of the material on record, it is not
in dispute that nine cents of the land of the claimant has been
acquired for the purpose of underground drainage under A.D.B.
scheme.
18. The compensation fixed by the Land Acquisition
Officer is in a sum of Rs.50,000/- per cent.
19. Learned Judge in the reference Court, has dealt in
detail and has taken into consideration the land value in the
adjoining areas and also took into consideration value of land
sold as per Ex.P.2 and distinguished with the acquired land by
supplying proper and adequate reasons that the acquired land
is not a converted land and there was no material placed on
record to show that it was non agricultural potential land,
enhanced the compensation from Rs.50,000/- per cent to
Rs.70,000/- per cent.
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20. Thereafter the claimant approached the First
Appellate Court praying for enhanced compensation.
21. Learned Judge in the First Appellate Court took into
the consideration various aspects of the matter including the
severance of the land usage and following the dictum of the
Hon'ble Apex Court on that point, has further enhanced the
compensation from Rs.70,000/- per cent to Rs.84,000/- per
cent.
22. While so enhancing the compensation, the prime
reason that has been assigned by the First Appellate Court is
that the value of land that has been sold under Ex.P.2 cannot
be adopted for determination of the compensation to the case
on hand, especially when the claimant has sought for awarding
of adequate compensation on the basis of sale sampler method
inasmuch as in Ex.P.2, subject matter of the land was a non
agricultural land (converted land).
23. In the case on hand, even though material evidence
is placed on record that the acquired land stated above is 300
meters away from the land that was involved in Ex.P.2, there is
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no material evidence on record to establish the fact of non
agricultural potential nature of the land in question.
24. However, taking note of the fact that the land is in
Kadri village which is situated about 5 to 6 kilometers from the
heart of the city, only on the ground that the land was not a
converted land, the compensation determined by the First
Appellate Court cannot be accepted as just compensation,
having regard to the fact that once the land is lost for the
claimant it is lost for ever.
25. Therefore, in the considered opinion of this Court,
because of the fact that the acquired land was not converted
land, taking note of the value in Ex.P.2 and applying the said
sampler method, the acquired land is valued in a sum of
Rs.90,000/- per cent as against Rs.50,000/- per cent awarded
by the Land Acquisition Officer, enhanced by the reference
Court in a sum of Rs.70,000/- per cent and further enhanced
by the First Appellate Court in a sum of Rs.84,000/- per cent,
would meet ends of justice.
Accordingly, following:
ORDER
(i) Appeal is allowed in part.
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(ii) The land value is determined at the rate of
Rs.90,000/- per cent with all statutory benefits.
Sd/-
(V SRISHANANDA)
JUDGE
MR
