Karnataka High Court
Shivappa Gangappa Badardinni vs The Spl Lao, Ukp on 19 November, 2012
Author: B.S.Patil
Bench: B.S.Patil
WP.80549/2012
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 19TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.80549/2012 (LA-RES)
BETWEEN:
Shivappa Gangappa Badardinni,
Age: 51 years,
Occ: Agriculture,
R/o Shikalawadi, now residing at
Chimmalagi Part-2,
Basavan Bagewadi Taluk,
Bijapur District 586 101. ... PETITIONER
(By Sri P.S.Patil, Adv.)
AND:
The Spl. LAO., UKP,
Alamatti,
Basavan Bagewadi Taluk,
Bijapur District - 586 101. ... RESPONDENT
(By Sri Shivakumar R.Tengli, Adv.)
This Petition is filed under Articles 226 & 227 of the
Constitution of India praying to issue a writ in the nature of
mandamus directing the respondent to consider the request of
the petitioner as per the representation dated 08.11.2011 and
to pay compensation for fruit bearing trees standing in the land
bearing R/Sy.No.90/1A measuring 1 acre 17 guntas as per the
6(1) Notification, vide Annexure-B.
This petition coming on for Preliminary Hearing 'B'
Group, this day, the Court made the following:
WP.80549/2012
2
ORDER
1. In this writ petition, petitioner is seeking a writ of mandamus directing the respondent - Special Land Acquisition Officer, Upper Krishna Project, Almatti, to consider the representation made by him on 08.11.2011 and pay compensation for the fruit bearing trees which were in existence in the lands bearing RS.No.90/1A measuring 1 acre 17 guntas situated at Sikalawadi Village, Basavan Bagewadi Taluk as was evident from the Final Notification issued under Section 6(1) of the Land Acquisition Act (for short, 'the Act') vide Annexure-B and pay compensation along with the statutory amount payable in respect of the same.
2. It is the case of the petitioner that the land in question was absolutely owned by him. He had grown fruit bearing trees in the land. Acquisition proceedings were initiated to acquire the said land for Upper Krishna Project for the purpose of laying a canal. The Preliminary Notification under Section 4(1) of the Act was issued and the same was published in the Official Gazette on 21.06.2008. The Final Notification under Section 6(1) of the Act was published in the Official Gazette on 08.12.2008. A consent award came to be passed fixing the WP.80549/2012 3 compensation to the irrigated lands at Rs.1,40,400/- per acre and the respondent agreed to pay separate compensation for the trees after the receipt of the report from the Senior Assistant Director of Horticulture Department, Basavan Bagewadi.
3. It is contended by the petitioner that spot inspection had been indeed conducted by the Officer of the Horticulture Department and photographs were taken which disclosed the existence of structure and trees in the land in question. However, at the time of passing of the award on 11.10.2010, the respondent awarded only a sum of Rs.1,40,400/- per acre in respect of the land in question and did not award any compensation to the fruit bearing trees and also the structure. It is alleged in the writ petition that the petitioner was under
the impression that the respondent will pass a separate award for fruit bearing trees. It is also contended that the petitioner repeatedly approached the respondent who assured him that action would be taken to pay compensation for fruit bearing trees. However, ultimately, during October, 2011 he was informed that as per the award already passed, petitioner was not entitled for any compensation for fruit bearing trees. WP.80549/2012 4 Thereafter, petitioner claims to have obtained the copy of the award and found to his surprise that even statutory amount such as 30% solatium and 12% additional market value was not awarded and a finding was recorded stating that there were no fruit bearing trees in the land in question as per the report of the Senior Assistant Director of Horticulture Department, Basavana Bagewadi.
4. Learned counsel for the petitioner, at the outset, contends that no such consent has been indeed given by the petitioner for passing a consent award. He also contends that at the time of joint measurement and when the Final Notification under Section 6(1) was issued, it has been specifically recorded by the authorities that several fruit bearing trees were in existence and therefore there was absolutely no reason for the respondent not to award any compensation to the fruit bearing trees. He further contends that the report of the Senior Assistant Director of Horticulture Department which is believed by the respondent was not furnished to the petitioner, nor was he heard while passing the impugned award declining the compensation to the fruit bearing trees. In support of his contention, counsel for the petitioner has relied WP.80549/2012 5 upon the orders passed by this Court in the case of HANAMAWWA Vs. STATE OF KARNATAKA in W.P.No.12099/2007 disposed of on 01.04.2010 and in the case of INDIRA BAI Vs. STATE OF KARNATAKA in W.P.Nos.24286-24299/2001 disposed of on 23.07.2001.
5. It is submitted by the counsel that a direction may be issued to the respondent to consider at least the request made by the petitioner for grant of compensation to the fruit bearing trees in terms of the joint measurement report which discloses the existence of fruit bearing trees and the structure.
6. Learned Additional Government Advocate opposed the relief sought contending inter alia that having consented for the award, the petitioner cannot go back from the same. He further points out that if the petitioner had not given his consent to the award, he ought to have filed a petition under Section 18 of the Act seeking reference of the matter to the Civil Court for adjudication of proper market value.
7. Upon hearing the learned counsel for the parties and on consideration of the respective contentions, I find that the petitioner cannot be permitted to contend that he did not WP.80549/2012 6 consent for passing any award. The award determining the compensation at Rs.1,40,400/- per acre treating the land in question as irrigated land has to be regarded as a consent award, particularly because even in this writ petition there is no grievance made with regard to the fixation of compensation treating the land as irrigated land. But, as regards the fruit bearing trees, as rightly contended by the learned counsel for the petitioner, if the joint measurement report and the Notification issued under Section 6(1) of the Act disclose the existence of fruit bearing trees, there is no reason why the petitioner should be deprived of a fair and reasonable compensation keeping in mind the existence of such fruit bearing trees.
8. If the Assistant Director of Horticulture department has inspected the land after the issue of Notification under Section 4(1) of the Act and has submitted a report behind the back of the petitioner, it has be stated that the respondent could not have acted upon the said report ignoring other relevant materials. Therefore, to the extent the petitioner is denied of the benefit of compensation in respect of fruit bearing trees standing in the land in question, the respondent has to pass a WP.80549/2012 7 fresh award after notifying and hearing the petitioner. The respondent has to take note of all the relevant materials including the report prepared at the time of joint measurement and the contents of the Notification issued under Section 6(1) of the Act for determining the value of fruit bearing trees and arriving at the entitlement of the petitioner for compensation in respect of fruit bearing trees. If it is held that the petitioner is entitled for any such compensation, it goes without saying that the petitioner will be entitled for the statutory amount payable including the interest on the said amount. This exercise shall be undertaken and completed by the respondent within a period of four months from the date of receipt of a copy of this order. Writ Petition is accordingly disposed of.
Sd/-
JUDGE PKS