Karnataka High Court
Basavaraj S/O Nagappa vs The Special Land Acquisition Officer ... on 6 June, 2024
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MSA No. 200055 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
MISCL SECOND APPEAL NO. 200055 OF 2017 (LAC)
BETWEEN:
BASAVARAJ S/O NAGAPPA
AGE: 62 YEARS, OCC: AGRICULTURE
R/O. SULEPETH VILLAGE,
TQ. CHINCHOLI, DIST: KALBURGI.
...APPELLANT
(BY SRI SAKRY K. S., ADVOCATE)
AND:
1. THE SPECIAL LAND ACQUISITION OFFICER
M & M.I.P. KALBURGI-585102.
Digitally signed
by SWETA 2. DEPUTY COMMISSIONER
KULKARNI
VIKAS SOUDHA,
Location: High
Court of KALBURGI-585102.
Karnataka
3. THE EXECUTIVE ENGINEER
KNNL LMP DIV.1, KALABURAGI.
...RESPONDENTS
(BY SRIRAJKUMAR A. KORWAR, HCGP FOR R1AND R2;
SRI SUDARSHAN M., ADV. FOR R3)
THIS MSA IS FILED UNDER SEC. 54(2) OF LAND
ACQUISITION ACT, ALLOW THE APPEAL WITH COSTS. AND THE
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MSA No. 200055 of 2017
IMPUGNED JUDGMENT AND AWARD DATED.07.01.2015
PASSED BY THE III ADDL. DISTRICT JUDGE, KALBURGI IN
LACA NO.15/2011 TO BE MODIFIED BY ENHANCING THE
AMOUNT OF COMPENSATION AT RS.1,72,629/- PER ACRE
WITH ALL STATUTORY BENEFITS AND WITH PROPORTIONATE
COST AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The claimants are before this Court seeking enhancement
challenging the judgment and award in LACA No.15/2011
modifying the judgment and award in LAC No.536/2001 and
awarding enhance compensation of Rs.1,11,600/- per acre as
against Rs.36,000/- per acre awarded by the Reference Court
with all Statutory benefits.
2. The claimants/appellant is the owner of land
Sy.No.43/3 measuring 1 acre 20 guntas situated Sulepeth
village of Chincholi taluka, Kalaburagi District, under 4(1)
Notification of Land Acquisition Act (for short "Act) dated
12.09.1996 for the purpose of Lower Mullamari Project
respondents have acquired the said land. The SLAO-
respondent No.1 determined the market value and passed
award at Rs.21,200/- per acre, as dry land. On protest the
claimant/appellant preferred reference under Section 18(1) of
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the Act and the matter was referred to the Civil Court in LAC
No.536/2001.
3. The Reference Court enhanced the compensation of
the acquired land at Rs.36,000/- per acre as dry land with all
statutory benefits. Appeal was preferred in LACA No.15/2011
seeking further enhancement of compensation by the
claimants. The First Appellate Court determined and enhanced
the compensation @ of Rs.1,11,600/- per acre for the dry land.
Seeking further enhancement, the claimants are before this
Court.
4. Heard Sri Sakry K S., learned counsel for the
claimants/appellant, Sri Sudarshan M., learned counsel for
respondent No.3 and Sri Rajkumar A Korwar., learned HCGP for
the State.
5. Learned counsel for the appellant/claimant placed
reliance on the decision of Co-ordinate Bench of this Court in
MFA No.13424/2007 disposed on 04.02.2018 in the case of
Gangadhar s/o Manikappa Vs. The Special Land
Acquisition Officer(Gangadhar) and the decision of the
Division Bench of this Court in MSA No.8170/2007 in
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Niranjappa s/o Channa Mallappa Vs. The Special Land
Acquisition Officer (Niranjappa) to contend that in respect
of the similar lands this Court has awarded the compensation
by fixing the market value of lands Rs.1,61,120/- per acre.
6. Per contra learned counsel for the respondents
fairly submits that decision of Gangadhar and Niranjappa's
case squarely applies and the claimants are entitled for
enhanced the compensation of Rs.1,61,121/- per acre.
7. Learned counsel for the respondents placed reliance
on the decision of the Apex Court in the case of Manoj Kumar
and Others Vs. State of Haryana and others1(Manoj
Kumar) has held at paragraph Nos.12 to 17 as under:
"12. We have come across several decisions
where the High Court is adopting the previous
decisions as binding. The determination of
compensation in each case depends upon the nature
of land and what is the evidence adduced in each
case, may be that better evidence has been adduced
in later case regarding the actual value of property
and subsequent sale deeds after the award and
before preliminary notification under Section 4 are
also to be considered, if filed. It is not proper to
ignore the evidence adduced in the case at hand. The
compensation cannot be determined by blindly
following the previous award/judgment. It has to be
(2008) 13 SCC 96
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considered only a piece of evidence, not beyond that.
The court has to apply the judicial mind and is
supposed not to follow the previous awards without
due consideration of the facts and circumstances and
evidence adduced in the case in question. The
current value reflected by comparable sale deeds is
more reliable and binding for determination of
compensation in such cases award/judgment relating
to an acquisition made before 5 to 10 years cannot
form the safe basis for determining compensation.
13. The awards and judgment in the cases of
others not being inter partes are not binding as
precedents. Recently, we have seen the trend of the
courts to follow them blindly probably under the
misconception of the concept of equality and fair
treatment. The courts are being swayed away and
this approach in the absence of and similar nature
and situation of land is causing more injustice and
tantamount to giving equal treatment in the case of
unequals. As per situation of a village, nature of
land, its value differ from distance to distance, even
two to three kilometre distance may also make the
material difference in value. Land abutting highway
may fetch higher value but not land situated in
interior villages.
14. The previous awards/judgments are the only
piece of evidence on a par with comparative sale
transactions. The similarity of the land covered by
previous judgment/award is required to be proved
like any other comparative exemplar. In case
previous award/judgment is based on exemplar,
which is not similar or acceptable, previous
award/judgment of court cannot be said to be
binding. Such determination has to be outrightly
rejected. In case some mistake has been done in
awarding compensation, it cannot be followed; on
the ground of parity an illegality cannot be
perpetuated. Such award/judgment would be wholly
irrelevant.
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15. There is yet another serious infirmity seen in
following the judgment or award passed in
acquisition made before 10 to 12 years and price is
being determined on that basis by giving either flat
increase or cumulative increase as per the choice of
individual Judge without going into the factual
scenario. The said method of determining
compensation is available only when there is absence
of sale transaction before issuance of notification
under Section 4 of the Act and for giving annual
increase, evidence should reflect that price of land
had appreciated regularly and did not remain static.
The recent trend for last several years indicates that
price of land is more or less static if it has not gone
down. At present, there is no appreciation of value.
Thus, in our opinion, it is not a very safe method of
determining compensation.
16. To base determination of compensation on a
previous award/judgment, the evidence considered
in the previous judgment /award and its acceptability
on judicial parameters has to be necessarily gone
into, otherwise, gross injustice may be caused to any
of the parties. In case some gross mistake or
illegality has been committed in previous
award/judgment of not making deduction, etc.
and/or sufficient evidence had not been adduced and
better evidence is adduced in case at hand, previous
award/Judgment being not inter partes cannot be
followed and if land is not similar in nature in all
aspects it has to be outrightly rejected as done in the
case of comparative exemplars. Sale deeds are on a
par for evidentiary value with such awards of the
court as court bases its conclusions on such
transaction only, to ultimately determine the value of
the property.
17. To rely upon judgment/award in case it does
not form part of evidence recorded by the Reference
Court, an application under Order 41 Rule 27 is to be
filed to adduce evidence and if it is allowed, opposite
party has to be given opportunity to lead evidence in
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rebuttal. The award/judgment cannot be taken into
consideration while hearing arguments unless they
form part of evidence in the case. A three-Judge
Bench of this Court has considered the value of
previous award and sale exemplar in City
Improvement Trust Board v. H. Narayanaia the
judgment of the Court was accepted as relevant
evidence under Order 41 Rule 27 by the High Court,
though, appeal was pending against it. This Court
held that there could be no res judicata. In such
cases, as the previous judgment was not inter
partes, the opposite party was not given opportunity
by the High Court to show that land was different.
The decision of the High Court was held to be against
the provisions of the Evidence Act, which regulate
admissibility of all evidence including judgments.
Such judgments are in personam. This Court has
observed: (SCC pp. 19-20, paras 26-29)
"26. It is apparent that Section 43 enacts
that judgments other than those falling under
Sections 40 to 42 are irrelevant unless they fall
under some other provision of the Evidence
Act; and, even if they do fall under any such
other provision, all that is relevant, under
Section 43 of the Evidence Act, is "the
existence" of such judgment, order, or decree,
provided it is a fact in issue, or is relevant
under some other provision of this Act'. An
obvious instance of such other provision is a
judgment falling under Section 13 of the
Evidence Act. The illustration to Section 13 of
the Evidence Act indicates the kind of facts on
which the existence of judgments may be
relevant.
27. In LAO v. Lakhamsi Ghelabhai Shelat, J.
held that judgments not inter partes, relating
to land acquired are not admissible merely
because the land dealt with in the judgment
was situated near the land of which the value is
to be determined. It was held there that such
judgments would fall neither under Section 11
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nor under Section 13 of the Evidence Act.
Questions relating to value of particular pieces
of land depend upon the evidence in the
particular case in which those facts are proved.
They embody findings or opinions relating to
facts in issue and investigated in different
cases. The existence of a judgment would not
prove the value of some piece of land not dealt
with at all in the judgment admitted in
evidence. Even slight differences in situation
can, sometimes, cause considerable differences
in value. We do not think it necessary to take
so restrictive a view of the provisions of
Sections 11 and 13 of the Evidence Act as to
exclude such judgments altogether from
evidence even when good grounds are made
out for their admission. In Khaja Fizuddin v.
State of A.P., a Bench of three Judges of this
Court held such judgments to be relevant if
they relate to similarly situated properties and
contain determinations of value on dates fairly
proximate to the relevant date in a case.
28. The Karnataka High Court had, however,
not complied with provisions of Order 41 Rule
27 of the CPC which require that an appellate
court should be satisfied that the additional
evidence is required to enable it either to
pronounce judgment or for any other
substantial cause. It had recorded no reasons
to show that it had considered the
requirements of Rule 27 Order 41 of the CPC.
We are of opinion that the High Court should
have recorded its reasons to show why it found
the admission of such evidence to be necessary
for some substantial reason. And if it found it
necessary to admit it, an opportunity should
have been given to the appellant to rebut any
inference arising from its existence by leading
other evidence.
29. The result is that we allow these appeals
and set aside the judgment and order of the
Karnataka High Court and direct it to decide
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the cases afresh on evidence on record, so as
to determine the market value of the land
acquired on the date of the notification under
Section 16 of the Bangalore Act. It will also
decide the question, after affording parties
opportunities to lead necessary evidence,
whether the judgment, sought to be offered as
additional evidence, could be admitted."
(emphasis supplied)
8. The Apex Court in the case of Manoj Kumar stated
supra has held that the award/judgment cannot be taken into
consideration while hearing the arguments unless they form
part of the evidence in the case and further that the
award/judgment in case it does not form part of evidence
recorded by the Reference Court, an application under Order 41
Rule 27 is to be filed to adduce evidence and if it is allowed,
opposite party has to be given opportunity to lead the evidence
in rebuttal.
9. In the instant case, as the respondents have not
rebutted that the present appeal is squarely covered by the
decision of the Co-ordinate and Division Bench of this Court in
the case of Gangadhar and Niranjappa. The question of
filing an application under Order 41 Rule 27 seeking to produce
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the judgment as part of the evidence does not arise in the
instant case.
10. The year of notification in the instant case is
12.09.1996, for the construction of Lower Mullamari Project,
the land acquired is a dry land, the situation of the land is at
Sulepeth village of Chincholi taluka Kalaruragi District. The
Appellate Court while enhancing the compensation @ of
Rs.1,11,600/- per acre for dry land placed reliance on the
decision of this Court in MSA No.532/2010.
11. Under the notification dated 30.05.1991, for
similarly placed lands, wherein, the compensation of
Rs.1,15,086/- was awarded in MSA No.674/2011 in case of
Srikanth Vs. The Special Land Acquisition Officer. In
Gangadhar's case for the notification dated 30.05.1996 by
taking acquisition under notification dated 30.05.1991
pertaining to Yelmamadi village Chincholi Taluka Kalburagi
District, applying formula of escalation enhanced compensation
of the dry land at Rs.16,1,120/- per acre. In the instant case,
the enhancement sought for is in respect of the land acquired
for Lower Mullamari Project, the land situated at Sulepeth
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village of Chincholi taluka notification of the year 1996, the
decision placed by the appellant's counsel in the case of
Niranjappa and Gangadhar are squarely applicable. The
appellant is entitle for compensation of Rs.1,61,120/- per acre
with all statutory benefits. Accordingly, this Court pass the
following:
ORDER
I. The appeal stands allowed in part.
II. The judgment and award of the First appellate
Court is modified the compensation is enhanced
from Rs.1,11,600/- to Rs.1,61,120/- per acre. The
claimants are entitled for all the statutory benefits.
III. The deficit Court fee, if any, to be paid by the
appellant within a period of 8 weeks.
IV. The period of delay before the First Appellate Court
and this Court, the claimants are not entitled for
interest for the said period.
Sd/-
JUDGE
AT
CT: VD
