Karnataka High Court
Sri.Mahendra S/O Raosaheb Desai vs The Special Land Acquisition Officer on 16 March, 2023
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MSA No. 100065 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 16TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
MISCELLANEOUS SECOND APPEAL NO. 100065/2018
(LA-)
BETWEEN:
SMT.VIJAYA W/O SURESH MAGADUM
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
R/O: NIPPANI,TQ: CHIKODI,
DIST: BELAGAVI,
...APPELLANT
(BY SRI. RAMESH N MISALE, ADVOCATE)
AND:
THE ASST. COMMISSIONER AND
Digitally
signed by LAND ACQUISITION OFFICER,
ANNAPURNA
CHINNAPPA
ANNAPURNA DANDAGAL BAILHONGAL,DIST: BELAGAVI-59423.
CHINNAPPA
DANDAGAL Location:
HIGH COURT
OF
KARNATAKA
DHARWAD ...RESPONDENT
(BY SRI. RAMESH B CHIGARI, HCGP FOR R1, ADVOCATE)
THIS MSA IS FILED U/SEC.54(2) OF LAND ACQUISITION ACT,
1894, AGAINST THE JUDGEMENT AND DECREE DTD 02.02.2018
PASSED IN LACA.NO 45/2015 ON THE FILE OF THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BELAGAVI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD
31.01.2012 PASSED IN LAC NO.49/2009, ON THE FILE OF THE
SENIOR CIVIL JUDGE, BAILHONGAL, PARTLY ALLOWING THE
PETITION FILED U/SEC.18(1) OF LAND ACQUISITION ACT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MSA No. 100065 of 2018
JUDGMENT
The claimant has preferred this second appeal assailing the judgment and award dated 02.02.2018 in LACA No.45/2015 confirming the judgment and award passed in LAC No.49/2009 dated 31.01.2012 on the file of the Senior Civil Judge, Bailhongal, dismissing the appeal preferred by the claimant.
2. Parties herein are referred to as per their ranking before the reference Court for the sake of convenience.
3. Land of the claimant was taken possession in the year 1988-1989 by the Taluka Panchayat Authorities of Bailhongal for setting up of the village Katri, Daddi an extension of Kulvalli for setting up Government/local establishments under RDPR and for distribution of sites to houseless persons. The Deputy Commissioner informed that the lands would be acquired under Section 3(1) of the Karnataka Acquisition of Land for grant of House Sites Act, 1972 (for short, 'the Act'), in the year 1993. The appellant herein filed W.P.No.22129/2001 before this Court contending that no acquisition proceedings have been -3- MSA No. 100065 of 2018 taken place and the said writ petition came to be disposed of directing the respondent-State to initiate acquisition proceedings within the period of four months. Subsequent to which, a notification under Section 4(1) was published in the Gazette for acquiring 05 Acres 08 Guntas out of 17 Acres 03 Guntas including an area measuring 01 Acre 8 Guntas under Sy.No.217/1 of Kulvalli village. The Assistant Commissioner and Land acquisition officer by his award No.LAQ/SR-142/2006-07 fixed the market value at Rs.19,000/- per acre.
4. Aggrieved by the award of the Assistant Commissioner, claimant preferred reference application and the reference Court in LAC No.49/2009 by its judgment and award, enhanced the market value by Rs.2,04,300/- per acre to the well developed non- agriculture commercial petition land. The claimant preferred appeal before the First Appellate Court. First Appellate Court without considering the application filed by the claimant under similar circumstances has dismissed I.A filed under Order 41 Rule 27 read with Section 151 of C.P.C. and consequently dismissed the appeals confirming -4- MSA No. 100065 of 2018 the judgment and award of the reference Court. Aggrieved by the dismissal of the first appeal, the claimant filed this second appeal.
5. Heard the learned counsel for the appellant and learned counsel for the respondent.
6. Learned counsel for appellant would submit that the Court below has committed a grave error in dismissing the application filed under Order 41 Rule 27 of C.P.C. wherein the documents sought to be produced by the appellant were material documents and would establish the fact similarly placed lands in nearby village could have awarded better compensation as awarded by the reference Court and would contend that the First Appellate Court has dismissed the application on the sole ground that the said documents were not produced by the claimant at the first instance. Learned counsel for appellant would contend that the possession of the land was taken in the year 1989 and acquisition proceedings were initiated in the year 2007-08. In the light of this, learned counsel would contend that claimant was deprived of his legitimate compensation and -5- MSA No. 100065 of 2018 he would have entitled, if the acquisition proceedings were initiated after the possession was taken from the claimant and prayed for allowing the appeal.
7. Per contra, learned HCGP appearing for respondent-State would contend that the First Appellate Court has rightly dismissed the application, since the appellant-claimant did not make an endeavor to file the said documents before the reference Court itself and in light of this, the First Appellate Court was justified in dismissing the application as well as the appeal and same do not call for any interference.
8. Having heard the learned counsel for the parties, perused the material on record.
9. It is not in dispute that the lands were situated at the Kulvalli abutting northern side of Kittur-Alnvar road and the lands were acquired for setting up for revenue village and Kulvalli is adjoining village of Kittur town under Bailhongal taluka situated at about 5 km away from Kittur. The possession of the land was taken by the Deputy Commissioner in the month of January, 1989. The -6- MSA No. 100065 of 2018 revenue village abutting Kulvalli village. On being objected, the Deputy Commissioner in his letter dated 24.09.1993 proposed to acquire the lands under Section 3(1) of the Act. Since no action was taken, the appellant herein filed W.P.No.22129/2001 seeking writ of mandamus directing the respondent-State for acquisition and for payment of compensation. This Court while allowing the writ petition, directed the respondent-State to acquire the lands of the claimant within the period of four months. It is thereafter the acquisition process have been commenced. The SLAO issued a notification under Section 4(1) of the Land Acquisition Act and same was published on 19.07.2007 for acquiring the lands of the claimant. The claimant aggrieved by the meager market valuation of the acquired lands, reference was filed before the reference Court placing reliance on the rates fixed by the Sub- Registrar in the Basic Valuation Register but the reference Court determined the market value of the acquired lands at Rs.2,04,300/- per acre for the year 2007-08.
10. The claimant aggrieved by the same, filed an application under Order 41 Rule 27 of C.P.C. before the -7- MSA No. 100065 of 2018 First Appellate Court and sought to place reliance on the following documents:
"(i) Certified Copy of the Proceedings U/S.29 (2) of the KIAD Act, 1966 pertaining to the lands acquired from Dombarkoppa area of Kittur, the neighboring village of Kulavalli. These lands are acquired during the relevant period in 2009-10 for setting up Industrial Estate. The KIADB has awarded Rs.9,00,000/- per acre for Dry Lands and Rs. 10,00,000/- per acre for wet lands and Rs. 12,00,000/- per acre for lands situated near Highway.
(ii) The Gazette Notification U/S. 28 (4) of KIAD Act, 1966 evidencing that Notification U/S. 28 (1) is issued on 23/02/2010.
(iii) Certified Copy of Sale Deed of Agricultural Land situated in between Kittur and Kulavalli, purchased by KEB for setting up Rural Electric Sub Station for Kulavalli and Kittur rural areas.
The Sale Deed is dtd.07/08/2007 registered on 07/09/2007. The Sale consideration is fixed at Rs.3,50,000/- per acre i.e. Rs.78,750/- for 9 -8- MSA No. 100065 of 2018 guntas. This land under Sale Deed is though nearer to Kittur - Kulavalli Road but, unlike the acquired lands of the claimants, it is in the interior and not abutting to the Main road.
(iv) The Judgment passed in MFA
No.22955/2012, awarding Rs.5,08,000/- per
acre for the land acquired from Turmari, under Bailhongal Taluka under Notification dtd. 10/12/2009, where under this Hon'ble Court has awarded Rs.5,08,000/- per acre for agricultural land.
(v) Notarized Copy of MFA No.21451/2012 wherein the DB of this Hon'ble Court is pleased to Award Rs.5,08,000/- per acre for the agriculture lands of Matolli village of neighboring Saundatti Taluka, acquired in the year 2008-09.
(vi) Photocopy of Judgment in LAC No.55/2011 pertaining to lands acquired from Hooli village in Saundatti Taluka for which Rs.54,400/- per gunta is awarded to the lands acquired under 4 (1) Notification dtd.09/05/2007.
11. The First appellate Court rejected the said application observing that the appellant has not made any -9- MSA No. 100065 of 2018 endeavor for producing the documents before the reference Court which was within their knowledge at that stage and rejected the application placing reliance on the Basic Valuation Register issued by the Sub-Registrar.
12. It is not in dispute that the material placed by the appellant by way of application under Order 41 Rule 27 of C.P.C. were not considered by the first Appellate Court.
13. The first appellate Court on the assumption that the said documents though within the knowledge of the claimant were not produced before the reference Court, has rejected the same. The lands are situated at Kulavalli village which is adjacent village of Kittur town situated on the Highway of Kittur-Alnavar. The lands are notified for acquisition during the years 2009-10 and the acquired lands are being used for non agricultural purposes. The Courts below have assessed the market value based on market value indicated in the Ready Reckoner i.e. fixed in basic valuation register maintained by the sub registrar, Kittur for the purpose of stamp duty and registration
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MSA No. 100065 of 2018charges. It is trite position of law that such basic valuation register has no statutory foundation and would not be a base to determine the market value under Sec.23 of Act as held by the Hon'ble Apex Court in the case of BHARAT SANCHAR NIGAM LTD V/S M/S NEMICHAND DAMODARDAS reported in AIR 2022 SC 3458 and at para 9 & 10 as reads under:
"9.The aforesaid decision in the case of Jawajee Nagnatham (supra) has been subsequently followed in a subsequent decision of this Court in the case of Lal Chand (supra) and it is observed that the market value of the land under Section 23 of the Land Acquisition Act cannot be fixed on the basis of the rates mentioned in the Basic Valuation Registers' maintained for the purpose of collection of proper stamp duty. In that case, as the Reference Court determined the amount of compensation on the value of the land fixed by the District
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Magistrate for stamp duty purposes, this court has observed and held that the same was erroneous.
As such, we are in complete agreement with the view taken in the aforesaid two decisions that the prices mentioned in the Ready Reckoner for the purpose of calculation of the stamp duty, which are fixed for the entire area, cannot be the basis for determination of the compensation under the Land Acquisition Act. It is required to be noted that in the present case, the Reference Court did consider the submission on behalf of the claimants to determine the market value on the basis of the Ready Reckoner. The Reference Court specifically refused to accept the same on appreciation of the deposition of PW-3. PW-3, a Government Officer specifically admitted that the Ready Reckoner was prepared for recovery of the proper stamp duty and the registration charges and that the actual rates of transaction of sales in market are different than the rates mentioned in the Ready Reckoner and that correct market prices cannot be reflected from the Ready Reckoner. Even PW-4 also specifically admitted in his deposition that the Ready Reckoner is prepared only for collecting stamp
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MSA No. 100065 of 2018duty. The Refence court, therefore, rightly relied upon and followed the decisions of this Court in the case of Jawajee Nagnatham (supra) and Krishi Utpadan Mandi Samiti, Sahaswan (supra).
10. Why the prices mentioned in the Ready Reckoner, which is basically for the purpose of collecting proper stamp duty and registration charges shall not be the basis for determination of the compensation for the lands acquired under the Land Acquisition Act is required to be considered from another angle also. It cannot be disputed that the rates mentioned in the Ready Reckoner are for the lands of the entire area and the uniform rates are determined with respect to different lands. In the case of Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and Anr., (1988) 3 SCC 751, this Court has laid down the broad principles to be followed in the case of determination of compensation, which are as under:-
"4. 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
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the 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 sit 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
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MSA No. 100065 of 2018court. 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 Section 4 of the Land Acquisition Act (dates of notifications under Sections 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 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. (Sometimes 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
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MSA No. 100065 of 2018acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
(10) 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 vis-à-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 thereafter to be deduced by loading the price reflected in the instance
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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
1. smallness of size
2. largeness of area
3. frontage on road
4. nearness to developed
5. regular shape
6. level vis-à-vis land under acquisition
7. special value for an owner of an adjoining property to whom it may have some very special advantage.
Minus factors
1.largeness of area
2.situation in the interior at a distance from the road.
3.narrow strip of land with very small front age compared to depth.
4.lower level requiring the are depressed portion to be filed up
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5. remoteness from developed locality
6. some special disadvantageous factor which would deter a purchaser"
14. In light of this, first Appellate Court having not considered the application and documents in proper perspective, this Court is of the considered view that an opportunity needs to be accorded to the claimant to prove his contentions regarding the market value insofar as non- agricultural lands under similar circumstances. Accordingly, this Court pass the following:
ORDER
a) Miscellaneous Second Appeal filed by the claimant is hereby allowed.
b) The impugned judgment and award dated 02.02.2018 in LACA No.45/2015 on the file of the First Additional District and Sessions Judge Court, Belagavi, confirming the judgment and award passed LAC No.49/2009 dated 31.01.2012 on the file of Senior Civil Judge court, Bailhongal are hereby set aside.
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MSA No. 100065 of 2018
c) The matter is remitted back to the Senior Civil Judge court Bailhongal, to re-consider the LAC afresh in accordance with law and the claimant is at liberty to produce the documents before the reference Court which were produced before the first appellate Court.
d) The reference Court to re-consider and to pass appropriate orders by according sufficient and reasonable opportunity to both parties to putforth their contentions.
e) All the contentions are kept open to be urged before the reference court.
f) Parties are directed to appear before the reference court on 18.04.2023.
g) In view of the remand of matter, the Court fee shall be refunded to the appellant in accordance with law.
Sd/-
JUDGE AC List No.: 1 Sl No.: 5