Karnataka High Court
Smt. Sundarbai W/O Balabhim Ingale vs The Executive Engineer (Elcl) (O And M) ... on 16 September, 2020
Bench: Krishna S.Dixit, P.N.Desai
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR.JUSTICE P.N.DESAI
MFA CROB NO.200011/2014
C/w
MFA No.31274/2013, MFA No.31275/2013
AND MFA CROB NO. 200012/2014 (LAC)
IN MFA CROB No.200011/2014:
Between:
1. Smt. Sundarabai W/o Balabhim Ingale
Since deceased by her LRs
1. (a) Balbhim S/o Banudas Ingale
Aged about 60 years, Occ: Agri.
1. (b) Vittalo S/o Banudas Ingale
Aged about 38 years, Occ: Agri.
1. (c) Pundalik S/o Banudas Ingale
Aged about 36 years, Occ: Agri.
1. (d) Dasharat S/o Banudas Ingale
Aged about 34 years, Occ: Agri.
2
All are R/o Indi, Tq. Indi, Dist. Bijapur.
... Cross Objectors
(By Smt. Ratna N. Shivayogimath, Advocate)
And:
1. The Executive Engineer,
(ELCL), (O & M), Karnataka Power
Transmission Corporation Ltd.,
Bagalkot Division, Bagalkot - 587 101.
2. The Assistant Commissioner,
Land Acquisition Officer,
Indi - 586 209.
... Respondents
(By Sri, Sanganagouda V. Biradar, Advocate for R1,
Smt. Archana P. Tiwari, AGA for R2)
This Miscellaneous First Appeal of Cross Appeal is
filed under order 41 rule 11 of the civil Procedure code
praying to call for the records and allow this Cross-Objection
by modifying the judgment and award dated: 21.11.2012
passed by the learned II Addl. Senior Civil Judge, Bijapur in
L.A.C.No.42/2012 and award compensation as prayed for in
the interest of justice and equity.
IN MFA No.31274/2013
Between:
The Executive Engineer,
(ELCL), (O & M), Karnataka Power
Transmission Corporation Ltd.,
3
Bagalkot Division, Bagalkot - 587 101.
(Now The Executive Engineer, (ELCL),
(TL & SSM) Division KPTCL
Vijayapur Division, Vijayapur
... Appellant
(By Sri. Sanganagouda V. Biradar, Advocate)
And:
1. Smt. Sundarabai W/o Balabhim Ingale
Since deceased by her LRs
1. (a) Balbhim S/o Banudas Ingale
Aged about 60 years, Occ: Agri.
1. (b) Vittal S/o Balbhim Ingale
Aged about 38 years, Occ: Agri.
1. (c) Pundalik S/o Balbhim Ingale
Aged about 36 years, Occ: Agri.
1. (d) Dasharat S/o Balbhim Ingale
Aged about 34 years, Occ: Agri.
All are R/o. Indi,
Tq. Indi, Dist. Vijayapur
2. The Assistant Commissioner
Cum LAO, Indi
Tq. Indi, Dist. Vijayuapur-586 101
... Respondents
(By Smt. Ratna N. Shivayogimath, Advocate for R1,
Smt. Archana P. Tiwari, AGA for R2)
This Miscellaneous First Appeal is filed under section
54(1) of the Land Acquisition Act praying to call for the
records and hear the parties and modify the judgment and
4
award dated:21.11.2012 in LAC No.42/2012 of the II Addl.
Senior Civil Judge at Bijapur and re-determine and award
the correct compensation by allowing the appeal in the
interest of justice and equity.
IN MFA No.31275/2013
Between:
The Executive Engineer,
(ELCL), (O & M), Karnataka Power
Transmission Corporation Ltd.,
Bagalkot Division, Bagalkot.
Now The Executive Engineer, (ELCL),
(TL & SSM) Division
KPTCL Bijapur Division Bijapur.
... Appellant
(By Sri. Sanganagouda V. Biradar, Advocate)
And:
1. Ajit S/o. Tukaram Ingale
Age: 37 years, Occ: Driver,
R/o. Hanuman Circle,
Hallad Oni, Indi, Tq. Indi,
Dist. Bijapur - 586 101.
2. The Assistant Commissioner,
Cum LAO, Indi, Tq. Indi,
Dist. Bijapur - 586 101.
... Respondents
(By Smt. Ratna N. Shivayogimath, Advocate for R1,
Smt. Archana P. Tiwari, AGA for R2)
This Miscellaneous First Appeal is filed under section
54(1) of the Land Acquisition Act praying to call for the
5
records and hear the parties and modify the judgment and
award dated:21.11.2012 in LAC No.43/2012 of the II Addl.
Senior Civil Judge at Bijapur and re-determine and award
the correct compensation by allowing the appeal in the
interest of justice and equity.
IN MFA CROB No.200012/2014
Between:
Ajit S/o. Tukaram Ingale
Age: 37 years, Occ: Driver,
R/o. Hanuman Circle,
Hallad Oni, Indi, Tq. Indi,
Dist. Bijapur - 586 101.
... Cross Objector
(By Smt. Ratna N. Shivayogimath, Advocate)
And:
1. The Executive Engineer,
(ELCL), (O & M), Karnataka Power
Transmission Corporation Ltd.,
Bagalkot Division
Bagalkot - 587 101.
2. The Assistant Commissioner,
Land Acquisition Officer,
Indi - 586 209.
... Respondents
(By Sri, Sanganagouda V. Biradar, Advocate for R1,
Smt. Archana P. Tiwari, AGA for R2)
This Miscellaneous First Appeal of Cross Appeal is
filed under order 41 rule 11 of the civil Procedure code
6
praying to call for the records and allow this Cross-Objection
by modifying the judgment and award dated: 21.11.2012
passed by the learned II Addl. Senior Civil Judge, Bijapur in
L.A.C.No.43/2012 and award compensation as prayed for in
the interest of justice and equity.
These appeals are coming on for final hearing this day,
Krishna S. Dixit J., delivered the following:-
JUDGMENT
The appeals in MFA Nos.31274/2013 and 31275/2013 are by the beneficiary of acquisition. The appeals in MFA CROB No.200011/2014 relatable to first MFA and the appeal in MFA CROB No.200012/2014 relatable to second MFA are by the land-losers. The beneficiary of the acquisition lays the challenge to the common Judgment & Award dated 21- 11-2012 entered by the learned II Addl. Senior Civil Judge, Bijapur on the ground that, the compensation awarded is too much on the higher side; the challenge by the land-losers per contra is on the complaint that 7 what has been awarded as compensation is too much on the lower side.
2. The brief version of the parties:
The land in survey No.1011/1, measuring 09
acres 30 guntas and the land in survey No.1011/2 measuring 9 acres 29 guntas, both situate at Indi village are the subject matter of the acquisition; the preliminary notification was issued on 10-11-2006; the Land Acquisition Officer had awarded compensation at the rate of Rs.30,000/- per acre; the land-losers not being happy with the same, sought reference in LAC Nos.42/2012 and 43/2012; both sides had adduced evidence; based upon the pleadings of the parties and the evidentiary material on record, the Reference Court by the impugned common judgment & award has enhanced the compensation which is complained to be on the higher side by the acquiring body and whereas the land-losers grieve it to be on the lower side.8
3. Having heard the learned counsel for the parties and having perused the appeal papers along with original Trial Court Records, we are not inclined to grant indulgence in both the sets of challenge for the following reasons:
i) The principles relating to the determination of the market value of lands are fairly well settled by a catena of decision of the Apex Court and of this court;
some of the fundamental principles have been enumerated in the case of Chimanlal Harigovinddas Vs. Special Land Acquisition Officer [(1988) 3 Supreme Court Cases 751]. Seventeen basic principles have been broadly laid down for determining the market value of the lands in acquisition as under: -
"....The following factors must be etched on the mental screen:
(1) A reference under section 18 of the Land Acquisition Act is not an appeal against the 9 award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to suit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under sec. 4 of the Land Acquisition Act (dates of Notifications under secs. 6 and 9 are irrelevant).10
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under sec. 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land). (9) Even post notification instances can be taken into account (1) if they are very proximate,(2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
(l0) The most comparable instances out of the genuine instances have to be identified on the following considerations:
(i) proximity from time angle,
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors 11 vis-a-vis land under acquisition by placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has there after to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:
Plus factors Minus factors
1. smallness of 1. largeness of area.
size.
2. proximity to a 2. situation in the
road. interior at a distances
from the Road.
3. frontage on a 3. narrow strip of
road. land with very small
frontage compared to
death.
4. nearness to 4. lower level
developed area. requiring the
depressed portion to
be filled up.
5. regular shape. 5. remoteness from
developed locality.
6. level vis-a-vis 6. some special
land under disadvantageous
acquistion. factor which would
deter a purchaser.
12
7. special value
for an owner
of an adjoining
property
to whom it may
have some
very special
advantage.
(15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule.
Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l000 sq. yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be looked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own facts pattern bearing in mind all these factors as a 13 prudent purchaser of land in which position the Judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense.
4. The Apex Court in Vithal Rao and another Vs Spl. Land Acquisition Officer WITH Annappa, since dead by his Lrs., and others Vs Special Land Acquisition Officer 2017 Supreme Court 3330 has also thrown light on these principles and their invocability; the paragraph No.29 therein reads as under:
"29. In addition to these principles, this Court in several cases have also laid down that while determining the true market value of the acquired land and especially when the acquired land is a large chunk of undeveloped land, it is just and reasonable to make appropriate deduction towards expenses for development of acquired land. It has also been consistently held that at what percentage the deduction should be made vary from 10% to 86% and, therefore, the deduction should be made keeping in mind the nature of the land, area under acquisition, whether the land is developed or not and, if so, to what extent, the purpose of acquisition, etc. It has also been held that while determining the market value of the large chunk of land, the value of smaller piece of land can be taken into consideration after making proper deduction in the value of lands and when sale deeds of larger 14 parcel of land are not available. This Court has also laid down that the Court should also take into consideration the potentiality of the acquired land apart from other relevant considerations. This Court has also recognized that the Courts can always apply reasonable amount of guesswork to balance the equities in order to fix a just and fair market value in terms of parameters specified under Section 23 of the Act. (See Trishala Jain & Anr. Vs. State of Uttaranchal & Anr., (2011) 6 SCC 47)"
iii) Keeping in mind these principles the value of the lands has been re-determined by the Reference Court at Rs.19,66,000/- per acre becomes evident by paragraph-25 of the impugned judgment which reads as under:
"So in the instance case also Ex.P25 is sale deed in respect of NA plot to extent of 1161.31 sq. ft. and as per principle laid down by the apex court 65% of valuation is deducted towards cost of development charges. So net market value of acquired property comes to Rs.19,66,734/- per acre to acquired property i.e. rounded to Rs.19,66,000/- per acre. So claimants approves that MV which is determined by the LAO at Rs.30,000/- is too meager and inadequate. When lands are having NA potentiality the claimants are entitled to determine market value at Rs.19,66,000/- along with all the statutory benefits. Hence, I answer this point partly in affirmative. "15
iv. It is pertinent to note that after ascertaining the value of a small N.A. plot admeasuring 1161.31 sq. ft. the court has given due consideration to the Sale Deed dated 19-01-2005 (ExP.25); the contention of the beneficiary that the land in which the subject plot is situate is much away from the lands in question may be true to some extent; but it does not make much difference for the purpose of valuation since the person examined from the side of the acquiring body namely, R.W.1-Suresh S. Umadi, Executive Engineer, has specifically admitted in his cross-examination that these lands are adjacent to the National Highway No.13 and proximate to Indi town; he has also not denied that these lands have got conversion potential to non- agriculture user.
v. The contention of the land owners that the land prices have escalated throughout the country and this aspect has not been borne in mind either by the Land 16 Acquisition Officer or by the Reference Court is bit difficult to countenance; in fact, arguably some marginal excess value appears to have been granted for these lands, on the contrary; however, that per se will not make the impugned Judgment & Award vulnerable for challenge; the exercise which the learned reference Judge has undertaken in re-determining the market value of these lands is perfectly in consonance with the principles laid down by the Apex Court in the aforesaid two decisions, as already stated above.
In the above circumstances, the challenge by the beneficiary of the acquisition and also by the land-losers fail; the costs having been made easy.
The amount in deposit along with Trial Court Records shall be transmitted to the Reference Court so that the same shall be disbursed to the land-losers, forthwith.
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The appellant-beneficiary of the acquisition is directed to deposit the remaining amount of enhanced compensation before the Reference Court within a period of three months, and delay in making the deposit shall carry additional interest of 2% per month.
The reference court shall take all necessary steps for retrieving the amount if in bank deposit and to make payment thereof to the claimants, at the earliest.
Sd/-
JUDGE Sd/-
JUDGE MNS/BL