Karnataka High Court
The Special Land Acquisition Officer, ... vs Balappa on 13 August, 2002
Equivalent citations: ILR2002KAR3880, 2003(2)KARLJ390
Author: Tirath S. Thakur
Bench: Tirath S. Thakur, D.V. Shylendra Kumar
JUDGMENT Tirath S. Thakur, J.
1. All these appeals arise out of a common order made by the Additional Civil Judge (Senior Division), Jamkhandi whereby L.A.C. Nos. 3 to 12 of 2000 have been partly allowed and compensation payable to the respondents-landowners enhanced to Rs. 1,16,000/- per acre as against Rs. 17,400/- per acre for dry lands and Rs. 26,100/- per acre for wetlands awarded by the Land Acquisition Officer.
2. A large extent of land situated in different survey numbers of Takkalaki Village in Bilagi Taluk was notified for acquisition under Section 4 of the Land Acquisition Act in connection with the construction of the Almatti reservoir. This included an area measuring around twenty acres notified in March 1996 which was meant to submerge in the backwaters of the reservoir. The Land Acquisition Officer made an award by which he determined Rs. 17,400/- per acre as compensation for dry lands and Rs. 26,100/- per acre for wetlands. This assessment was based on sale statistics which did not satisfy the landowners. At their instance, land acquisition references were made to the Civil Judge at Jamkhandi. The Reference Court has by the judgment impugned in this appeal held that the entire extent of land forming the subject-matter of the aforementioned references was irrigated land. It has further found that the market value of the land determined by the capitalisation method was not less than Rs. 1,16,000/- per acre. The references were accordingly disposed of enhancing compensation with statutory benefits like solatium and additional market value. Interest at the rate of 9% per annum on the enhanced market value for the first year and 15% per annum for the subsequent years has also been awarded. The present appeals call in question the correctness of the said judgment as noticed earlier.
3. Mr. Ashok Kumar, learned Government Advocate appearing for the appellant in all these appeals contended that the Reference Court was not justified in holding that the entire extent of land acquired from the respondents was irrigated land. He urged that the evidence on record did not support that conclusion. Alternatively, he submitted that the Reference Court had fallen in error in holding that the market value of the land in question was Rs. 1,16,000/- per acre. The yield and the income from the same were not according to the learned Counsel determined correctly.
4. We have given our anxious consideration to the submission made by Mr. K.P. Ashok Kumar, but find it difficult to accept the same. The Reference Court has while holding that the entire extent of land acquired from the owners was wetland placed reliance upon the evidence that was assembled before it by the parties. It has on the basis of the said material including the revenue records, come to the conclusion that the land in question was situated on the banks of Krishna river and had the advantage of irrigation facilities. The statements made by the landowners, the revenue entries and evidence relating to installation of irrigation pumpsets have been properly appreciated by the Court below. We have therefore no hesitation in affirming the finding that the entire extent of land acquired from the respondents was wetland. The first limb of the argument advanced by Mr. Ashok Kumar accordingly fails.
5. Coming then to the alternative submission made by the learned Counsel that the determination of the amount of compensation has not been proper, we find that the Reference Court has on the basis of the depositions of the owners and the material produced by them come to the conclusion that the owners were growing sunflower or onion as the first crop and groundnut or cotton as the second crop. The Court has, relying upon Ex. P. 20 issued by the APMC, Bagalkot, come to the conclusion that the average rate of sunflower during the relevant period was Rs. 1,0867- per quintal. In arriving at that conclusion, the Court below has taken into consideration the rates that were prevalent for the years 1995-96 to 1998-99.
6. Insofar as the onion crop is concerned, the Court below has relied upon the material placed before it held that the average price of one quintal of onion during the relevant period was Rs. 654/-. In the case of groundnut, the Court has, relying upon the material placed before it, come to the conclusion that the rate per quintal for groundnut during the relevant period was Rs. 966/-. As regards the price of cotton during the relevant period, the Court below has on the basis of the rates available for the year 1995-96 held that the same ranged between Rs. 1,401/-to Rs. 1,701/- per quintal.
7. On the question of yield per crop, the Court below has held that since the yield of sunflower from dry lands were four quintals as per Ex. P. 21, the same could be taken as nine quintals per acre in the case of irrigated lands. It has accordingly calculated the gross income on account of sunflower as a crop at Rs. 1,0867- x 9 = Rs. 9,7747- per acre. In the case of groundnut, the yield has been taken as five quintals in the case of dry lands and twelve quintals in the case of irrigated lands. The gross income from cultivation of groundnut has thus been worked out at Rs. 9667- x 12 = Rs. 11,5927- per acre.
8. The yield in the case of cotton has been taken as ten quintals per acre and the gross income from the same determined at Rs. 1,5517- x 10 = 15,510/- per acre. The Court has taken the average of the income from groundnut and cotton i.e., Rs. 11,592/- + Rs. 15,5107- = Rs. 27,102/- and determined a sum of Rs. 13,551/- per acre as gross income from the second crop. To this is added the gross income of Rs. 9,774/- from sunflower which takes the gross income from the two crops to Rs. 23,325/-per acre. After deducting 50% of the said amount towards cost of cultivation as held by Supreme Court in the case of State of Gujarat and Ors. v Rama Rana and Ors., , the Court has determined an amount of Rs. 11,662.50/- to be the net income per acre of the land acquired from the owners. This has been capitalised by applying the multiplier of 10 years purchase value and rounded off to Rs. 1,16,000/-.
9. There is, in our opinion, no error in the method adopted by the Reference Court or in the conclusion drawn by it. The argument of Mr. Ashok Kumar that the Reference Court should not have excluded from consideration income from onion as a crop while determining the gross income from the land has not impressed us. The Reference Court has no doubt referred to the yield from onion as a crop and the prevailing rates, but it has rightly held that the rates of onion fluctuate greatly and that it is unsafe to rely upon the material placed before it by the owners while determining the amount of compensation payable to them. It has in this connection held that if the yield of onions were to be 75 quintals as suggested by landowners, the annual income per acre of onion would come to Rs. 49,050/- taking the income from onion and sunflower as a first crop to Rs. 58,824/-. It is therefore evident that by excluding the onion crop from consideration, the Reference Court has erred in favour of the appellants. The grievance made by the appellants on that basis therefore appears to be wholly misconceived.
10. So also the grievance of the appellants that the yield of sunflower in respect of irrigated lands not having been indicated in Ex. P. 21, the Court was not justified in taking the yield from irrigated lands to be twice the yield from dry lands does not commend itself to us. The yield of sunflower in the case of dry lands has been shown as four quintals per acre. On that basis, the Court below has taken the yield from the irrigated land to be nine quintals per acre. With irrigation facilities being adequate, we do not find any serious flaw in that assessment. The determination of gross income on the basis of that yield cannot therefore be found fault with. The alternative submission made by Mr. Ashok Kumar also fails and is accordingly rejected.
11. This brings us to the submission urged on behalf of the landowners to the effect that the Reference Court having wrongly denied interest to them on the amount representing solatium and additional market value, this Court could even in the absence of an appeal or cross-objections direct the grant of the said statutory benefits. It was urged on the authority of the decision of the Supreme Court in Sunder v Union of India, , that interest was payable even on the amount of solatium awarded to the landowners. It was also contended that the landowners are entitled to the grant of interest on the amount representing additional market value awarded to the landowners under Section 23(1-A) of the Land Acquisition Act, 1894. Support in that regard was borrowed from a Division Bench decision of this Court in the case of Special Land Acquisition, Officer v S.M. Gajendran alias S.M. Gajendra Babu, ILR 2001 Kar. 2404.
12. Before examining the entitlement of the landowners to the grant of interest on the amounts awarded in their favour towards solatium and additional market value we need to examine whether this Court can in the absence of any appeal or cross-objections by the landowners issue any direction or modify the award made by the Reference Court. Order 41, Rule 33 of the Code of Civil Procedure, inter alia provides that the Appellate Court shall have the power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. That power may be exercised by the Court notwithstanding that the appeal is as to a part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
13. The scope of the above provision has been examined by the Supreme Court on numerous occasions. In Panna Lal v State of Bombay and Ors., , the Supreme Court held that the wordings of Order 41, Rule 33 were wide and empowered the Appellate Court to make whatever order it thought fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. The Court could in the absence of any impediment in law while allowing the appeal of the defendant and dismissing the plaintiff's suit against it, give to the plaintiff respondent a decree against any or all the other defendants who are parties to the appeal as respondents.
14. In Rameshwar Prasad and Ors. v Shambehari Lal Jagannath and Anr., , the view taken in Panna Lal's case, supra, was reiterated and the power available to the Appellate Court under Order 41, Rule 33 held to be exercisable only in exceptional cases.
15. In Mahant Dhangir and Anr. v Madan Mohan and Ors., , the Court held that the sweep of power under which Order 41, Rule 33 was wide enough to determine all questions not only between the appellant and the respondent but also between a respondent and his co-respondent. The Court observed:
"The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The Appellate Court could also pass such other decree or order as the case may require. The words "as the case may require" used in Rule 33 of Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of justice. The only constraint on the power are these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of the judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal".
(emphasis supplied)
16. To the same, effect is the decision of the Supreme Court in State of Punjab and Ors. v Bakshish Singh, , where the Court held that while the power available under Order 41, Rule 33 of the CPC was very wide and the Appellate Court competent to pass any order to do complete justice between the parties, the discretion vested in it has to be exercised with care and caution and in cases where an order or decree has been passed which is wholly uncalled for in the circumstances' of the case. The Court also held that whether the power should or should not be exercised depends upon nature and facts of each case.
17. In Nirmala Bala Ghose and Anr. v Balai Chand Ghose and Ors., , the Court declared that even though Order 41, Rule 33 is expressed in wide terms, the same has to be applied with discretion and in cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final, so as to enable the Court to adjust the rights of the parties. This decision narrows down the application of Order 41, Rule 33 only to cases where the Court decides to interfere with the decree at the instance of the appellant which in turn necessitates interference also with the decree which has otherwise attained finality. The subsequent decisions in Mahant Dhangir and Bhakshish Singh's cases, supra, do not however limit the application of Order 41, Rule 33 only to cases where interference in favour of the appellant necessitates interference even with a decree that has otherwise become final. The said two subsequent decisions give to the provisions of Order 41, Rule 33 an interpretation that is free from any constraints like the one imposed in Nirmala Sola's case, supra. The only constraint for the exercise of the power as observed by Jagannath Shetty, J., in Mahant Dhangir's case, supra, is that the parties before the lower Court are also there before the Appellate Court and that the question raised before the Appellate Court properly arises out of the judgment of the lower Court. If those two requirements are satisfied, the Appellate Court could entertain any objection against any part of the decree of the lower Court irrespective of which out of the parties urge the same. Any such objection may in fact be urged by any party to the appeal and even when the power of the Appellate Court under Order 41, Rule 33 is discretionary, it could be properly exercised in order to render complete justice between the parties.
18. A reference may now be made to a few decisions from different High Courts on the subject. In Makkala Narsimlu v. Eaghunandan Rao, , a Division Bench was examining whether the grant of interest in favour of the plaintiff-respondent in the defendant's appeal could be upheld even when the respondent had not preferred any appeal or cross-objection against the decree of the Trial Court refusing such interest. The Court held that the Trial Court ought to have awarded interest on the amount decreed and if it had failed to do so, that failure could be rectified by the Appellate Court even in the absence of any appeal in that regard. The powers available to the Appellate Court under Order 41, Rule 33 were, according to the Court, wide enough-to enable the Court to do so.
19. In State of Uttar Pradesh and Ors. V. Raj Narain Singh and Anr., , also there was no appeal or cross-objection claiming higher rate of solatium and interest. The Appellate Court could, it was observed under Order 41, Rule 33, grant the said relief to the landowners.
20. To the same effect is the decision of Single Bench of the High Court of Andhra Pradesh in Revenue Divisional Officer-cum-Land Acquisition Officer, Chittoor v C. Krishna Swami Naidu and Anr., AIR 1996 A.P. 155, where Ramaswamy, J., as His Lordship then was, relying upon the decision of the Supreme Court in Koksingh v Smt. Deokabai, , held that the failure to file an appeal or cross-objection against the non-grant of solatium would not prevent the Appellate Court from exercising powers under Order 41, Rule 33 of the CPC to grant such a relief even when the appeal filed by the State against the Order of the Reference Court was dismissed. The Court declared that Section 23 of the Land Acquisition Act, 1894, made it mandatory and the Reference Court was under an obligation to award solatium at the prescribed rate for compulsory nature of the acquisition. The non-grant of such statutory benefit could be rectified by the Appellate Court even in the absence of any appeal or cross-objection by the landowners. A Single Bench of this Court has taken the same view in Erappa v. State through Special Land Acquisition Officer, Upper Krishna Project, Aurad, Gulbarga District, 1997(2) Kar. L.J. 534.
21. A reference may also be made to a Division Bench decision of this Court in . Jay Karnataka News Printers Limited and Ors., v. Syndicate Bank and Ors., ILR 2001 Kar. 312, where the scope of Order 41, Rule 33 was discussed and the power reserved under the same invoked to award interest at the contractual rate even when the plaintiff had not preferred any appeal against the refusal of the same.
22. A conspectus of the above pronouncements establishes a broad unanimity insofar as the scope of Order 41, Rule 33 is concerned. Three distinct aspects that permeate the pronouncements may be summarised thus: (i) That even when the power conferred under Order 41, Rule 33 is wide, the discretion vested in the Court has to be exercised cautiously and only in rare cases where the Court considers the exercise of the said power to be absolutely necessary for doing complete justice between the parties; (ii) The power may be legitimately exercised where interference in appeal requires interference even with that part of the decree which has attained finality. This could be done to adjust equities or to mould the relief to which the parties or any one of them may be entitled; and (iii) The power may also be exercised in situations where benefits that flow from statutory provisions like solatium and interest under the Land Acquisition Act, are denied to a party without any justification.
23. The case of the respondents-landowners is that the statutory benefit of interest on solatium and additional market value determined under Section 23(2) and 23(1-A) of the Act respectively has been unjustifiably denied to them by the Reference Court and that this Court could rectify the award to that extent. The Reference Court has while enhancing the market value of the land to Rs. 1,16,000/- per acre awarded interest on the said amount at the rate of 9% p.a. for the first year and 15% p.a. for the subsequent years, It has in the process made no award on account of interest on the amount of additional market value payable under Section 23(1-A) and on solatium under Section 23(2) of the Act. The question whether interest is payable even on the amount of solatium awarded under Section 23(2) of the Act was referred to a Constitution Bench of the Supreme Court in Sunder's case, supra. The reference has become necessary on account of a conflict in the pronouncements of the Supreme Court on the said question.
24. Answering the reference in the affirmative, the Court held that interest under Sections 34 and 28 of the Land Acquisition Act was payable on the amount of compensation determined by the Land Acquisition Officer or the Reference Court. The expression 'compensation' was however comprehensive enough to include not only the total sum arrived at as payable under Section 23(1) of the Act, but the amounts payable under the remaining Sub-sections thereof also. The following paragraph is in this connection relevant:
"In deciding the question as to what amount would bear interest under Section 34 of the Act, a peep into Section 31(1) of the Act would be advantageous. That Sub-section says:
"31(1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next subsection".
The remaining Sub-sections in that provision only deal with the contingencies in which the Collector has to deposit the amount instead of paying it to the party concerned. It is the legal obligation of the Collector to pay "the compensation awarded by him" to the party entitled thereto. We make it clear that the compensation awarded would include not only the total sum-arrived at as per Sub-section (1) of Section 23 but the remaining Sub-sections thereof as well. It is thus clear from Section 34 that the expression "awarded amount" would mean the amount of compensation worked out in accordance with the provisions contained in Section 23, including all the Sub-sections thereof.
(emphasis supplied)
25. In the light of the above, there is no gainsaid that the interest payable to the landowners is not only on the amount determined under Section 23(1) but also the amount of additional market value determined under Section 23(1-A) and solatium under Section 23(2) of the Act. It is noteworthy that a Division Bench of this Court has in Special Land Acquisition Officer's case, supra, held that the term 'compensation' is of a wider import than the term 'market value' and would include any amount awarded under Section 23(1-A) and 23(2) of the Act. That was a case where the question whether the Court fee payable on the amount awarded to or claimed by the landowners under Section 23(1-A) was being examined. Answering the same in the affirmative, the Court held that the term 'compensation' will include amounts awardable under the provisions both under Section 23(1-A) and 23(2) of the Act.
26. In the circumstances therefore the denial of interest on the amount that was held payable to the landowners under Section 23(1-A) and 23(2) of the Land Acquisition Act is not justified. That benefit being statutory in nature ought to have been awarded by the Reference Court and inasmuch as there is no direction to that effect we consider it to be a fit case in which the power vested in this Court under Order 41, Rule 33 of the Code of Civil Procedure could be exercised and an appropriate modification ordered.
27. In the result, these miscellaneous first appeals fail and are hereby dismissed. In exercise of powers vested under Order 41, Rule 33 of the CPC, we direct that the amount payable to the landowners towards additional market value under Section 23(1-A) and solatium under Section 23(2) shall earn interest at the rates stipulated by the Reference Court in the order passed by it. The said order shall therefore stand modified but only to that extent. No costs.