Karnataka High Court
The Deputy Chief Engineer vs Smt.Channaveeramma W/O Siddappa on 31 May, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31st DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A.NO.102610/2019 (LAC)
BETWEEN
THE DEPUTY CHIEF ENGINEER,
SOUTH WESTERN RAILWAY (CONSTRUCTION),
HUBBALLI, NOW REP. BY DY. CHIEF ENGINEER,
SOUTH WESTERN RAILWAY,
DAVANAGERE-577001.
....APPELLANT
(BY SRI MALLIKARJUN S. HIREMATH, ADVOCATE)
AND
1. SMT. CHANNAVEERAMMA W/O SIDDAPPA,
AGE: ABOUT 80 YEARS, OCC: AGRICULTURE,
R/O: KARATAGI VILLAGE,
TQ: GANGAVATHI,
NOW R/AT: C/O MUDDANNA MASKI,
KARTHIK BAR AND RESTAURANT,
BAGALKOTE ROAD, MUDUGAL-584125,
TQ: LINGASUGUR, DIST: RAICHUR.
2. THE SPECIAL LAND ACQUISITION OFFICER
MUNIRABAD-MEHABOOB NAGAR RAILWAY,
LINE CONSTRUCTION PROJECT,
SINDHANUR-584128., DIST. RAICHUR.
3. DEPUTY COMMISSIONER OF KOPPAL,
DIST: KOPPAL-582114. ...RESPONDENTS
(BY SRI M.M.PATIL AND RAJSHEKHAR BURJI, ADVOCATES
FOR RESPONDENT NO.1)
(BY SRI SHWETA KRISHNAPPA, A.G.A FOR RESP. NOS.2, 3)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 54(1) OF LAND ACQUISITION ACT, PRAYING TO
ALLOW THE ABOVE MISC.FIRST APPEAL AND CONSEQUENTLY
BE PLEASED TO SET-ASIDE THE JUDGMENT AND AWARD
DATED 12.07.2018 PASSED BY THE COURT OF THE SENIOR
CIVIL JUDGE, GANGAVATHI IN L.A.C.NO.19/2013 AND
CONSEQUENTLY REJECT THE REFERENCE PETITION, IN THE
INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the beneficiary challenging the judgment and award passed by Senior Civil Judge at Gangavathi (for short 'the reference Court') in LAC.No.19/2013 dated 12.07.2018 to the extent that it has awarded compensation of Rs.15,00,000/- per acre relying on the consent award along with statutory benefits. This appeal is founded on the premise of exorbitant compensation awarded by the reference Court.
2. Parties to the appeal shall be referred to as per their status before the reference Court.
3. Brief facts of the case is as under:
The appellant herein, the beneficiary, with an intention to lay a new railway line between Mehaboob Nagar to 3 Munirabad requested the 2nd respondent/ S.L.A.O. to acquire the land. Accordingly, 2nd respondent issued notification under Section 4(1) and 17 of Land Acquisition Act, 1894 (hereafter referred to as 'Act' for brevity). The possession of land in question was taken on 09.05.2011. Land of respondent/claimant No.1 is an agricultural land (tari land) situated at Karatagi village in Sy.No.140/A measuring 25 guntas. The 2nd respondent determined the market value to be at Rs.1,42,000/- per acre for tari land, after taking into consideration the value of land acquired and after collecting the sales statistics from the office of Sub-Registrar, Gangavathi with regard to nearby acquired lands came to a conclusion in fixing the market value of acquired land.
4. The claimant was not satisfied with the award passed by the 2nd respondent hence he filed reference petition under Section 18 of the Act with a prayer to enhance the market value of acquired lands at Rs.15,00,000/- per acre. The reference Court issued notice to the respondents and on receipt of such notice appellant 4 appeared through counsel filed detailed statement of objection to the claim petition filed by the claimant inter alia contending that the claim petition is not maintainable and the amount sought for in the claim petition is excessive and the same is not entitled to be granted to the claimant. It was further pleaded that the 2nd respondent-S.L.A.O. personally inspected the land acquired and after taking into consideration all attending circumstances as explained in the award to determine the market value of the land acquired which is legal valid and no mala fides can be attributed. It is further stated that the market value was fixed on the basis of sale of similar lands during relevant period and it is proper, accordingly sought for rejection of claim petition. After hearing all the parties concerned, the reference Court determined the market value of land based on Ex.P.16, the consent award and fixed the value of land at Rs.15,00,000/- per acre and also granted statutory benefits.
5. It is the vehement contention of learned counsel for appellant that the reference court has not appreciated the fact that land in question is an agricultural land and has erroneously fixed the market value of agricultural land at 5 Rs.15,00,000/- per acre on the basis of consent award and also awarded statutory benefits which is illegal and arbitrary. Learned counsel further contends that reference Court ought not to have placed reliance on the consent award and ought not have awarded statutory benefits. He further contends that admittedly land in question is an agricultural land (tari land) which was not disputed by the claimants. Learned counsel further contends that the reference Court has committed an error in fixing the market value of the acquired land which is opposed to law and well settled principles of awarding compensation to the land looser.
6. Learned counsel further contends that the finding of reference Court is contrary to the very spirit of the provisions of Sections 23 and 24 of the Act. He further contends that the reference Court has disturbed the award of 2nd respondent-S.L.A.O., wherein, the said S.L.A.O. has considered the market value on the basis of sales statistics method. It is further contended that reference Court has exceeded its jurisdiction and has not assigned proper 6 reasons while passing the impugned judgment and award. It is further contended that the compensation computed by S.L.A.O. is on the basis of similar sale instances of villages falling within the same circle as well as on the basis of the prescribed guidelines value maintained in the Registrar of concerned villages and has further failed to take into consideration the guidelines value maintained by the Sub- Registrar of concerned villages.
7. It is the vehement contentions of the learned counsel for appellant that reference Court committed a serious error in determining the market value by relying upon documents namely Ex.P.73 and 76 which are the consent awards. He further contends that the general methods for deciding compensation is (i) opinion of expert,
(ii) price paid within reasonable time and (iii) prospective profits of the acquired land. It is further contended that in the present case the land involved is an agricultural land and there is no evidence to determine the market value adopting capitalization method. Hence, the reference Court has committed serious illegalities and the 2nd respondent 7 has determined the market value based on comparable sale instances. On the basis of the land being in agricultural status the 2nd respondent-S.L.A.O. has correctly awarded suitable compensation of Rs.1,42,000/- per acre. Hence, he contends that the reference Court has committed serious error in awarding exorbitant compensation which deserves to be set aside.
8. It is the further contention of learned counsel for appellant that the land in question is the agricultural land which is also admitted by the claimant himself. The market value of the land for determination of compensation has to be calculated on the basis of bona fide, genuine and authenticated sale transactions of similarly situated lands and not by conjectures and assumptions. In the present case on hand instead of following the general principles as stated above the reference Court has fixed the market value by relying upon the consent awards, though the comparable sale transactions of other parcels of land was available for determination. On these grounds also he contends that the award is highly unreasonable and consequently bad in law. 8
9. Learned counsel further contends that apart from awarding compensation on the basis of consent award other statutory benefits are also awarded by the reference Court which is again a gross error when the claimant is relying on consent award. The award of reference Court suffers from legal infirmity, is highly exorbitant and against the settled legal principles governing awarding of compensation in the process of acquisition of land. The award of compensation of Rs.15,00,000/- per acre with statutory benefits is highly exorbitant without any legally acceptable material basis on record hence the same does not stand the test of reasoning, hence it is required to be set aside.
10. Learned counsel for the appellant relied on the Judgment of Ambanna vs. Special Land Acquisition Officer and others, in MFA.No.101445/2015(LAC) and connected matters passed by the Hon'ble Division Bench of this Court vide order dated 21.04.2021.
11. Per contra, the learned counsel appearing for the respondent No.1-claimant contends that the judgment and 9 award passed by the reference Court is perfectly in order and the same is based on the material evidence both oral and documentary produced before the Court. It is neither exorbitant nor unreasonable, hence the same does not require any interference at the hands of this Court. Learned counsel further contends that the market value fixed by the S.L.A.O. at Rs.1,42,000/- per acre was incorrect and inconsistent with the actual market value of the acquired land which was done in an mechanical manner without taking into consideration the relevant materials on record. It is further contended that the land in question was having N.A. potentiality as the same was situated within the limits of Gram Panchayat, Karatagi. He further contends that the land is also irrigated land through T.B.P. canal and the claimant used to grow two paddy crops in a year by which they used to earn Rs.1,50,000/- per acre per crop.
12. It is further contended that the reference Court has considered all the materials placed on record and on the basis of Ex.P.13, being a copy of judgment in LAC.No.2/2013 connected with other cases awarded compensation of Rs.15,00,000/- per acre to the irrigated 10 land situated at Karatagi. He contends that there is no legal error in the award of compensation granted by the reference Court hence he seeks to dismiss the appeal and consequently confirm the award passed by the reference Court.
13. Learned Addl. Government Advocate Smt Shweta Krishnappa appearing for respondent Nos.2 and 3 supports the contentions put forth by the learned counsel for beneficiary, the appellant herein and contends that the amount awarded by the reference Court on the basis of claim made by the claimant is exorbitant and hence the same requires to be set aside and reasonable compensation could be awarded by modifying the order of reference Court in accordance to the settled principles of law which has been time and again reiterated by several judgments of this Court. She further contends that the present land in question does not have any potentiality and also it is situated far away from the limits of Karatagi. It is also contended that there are no documentary evidence to establish the said fact and nothing has been substantiated 11 by the claimant by way of oral or documentary evidence that the land in question is N.A. potential. Therefore, on these grounds she submits that the award of reference Court is highly exorbitant and same requires to be modified.
14. Having heard the learned counsel for appellant/beneficiary, claimant and the State. The point for consideration would be :
(a) Whether the award made by reference Court is exorbitant and excessive.
(b) Whether the award passed by the reference Court is sustainable.
(c) What order?
15. It is not in dispute that the appellant had acquired the land belonging to claimants for the purpose of laying Railway line between Mehaboob Nagar to Munirabad by issuing preliminary notification under Section 4(1) of the Act. The S.L.A.O. determined the market value at Rs.1,42,000/- per acre for wet land. Whereas, the reference Court adopted the consent award entered into between the similarly placed claimants and respondent authorities as per Ex.P.73 and fixed the market value of tari land at 12 Rs.15,00,00/- per acre. Admittedly, Ex.P.73 and 76 are consent awards passed by the reference Court on the basis of similar and identical lands situated in Karatagi village Gangavathi Taluka. In the facts and circumstances of the present case the dispute is with regard to whether the land in question is tari land (wet land) or semi-wet land and also whether it is N.A. potential as claimed by the claimants.
16. This Court could not want to delve into the matter for elaborate consideration of facts and material evidence both oral and documentary in view of the fact that the appellant/beneficiary relies on the Division Bench of this Court Judgment in MFA.No.101445/2015 and connected matters, wherein in LAC.No.2/2013 when similar order was passed the beneficiary had challenged the same before the Hon'ble Division Bench of this Court which has considered the above factual and legal questions in dispute elaborately and passed an order remitting the matter back to the reference Court for consideration afresh infact at paragraph No.19 of the aforesaid judgment of the Hon'ble Division 13 Bench the matter has been remitted for consideration for following reasons same is extracted herein below:
"19. Having taken note of the declaration of law made by the Hon'ble Supreme Court in the aforementioned cases and on application of the same to the facts on hand, we are of the considered view that these appeals have to be remitted to the Reference Court for fresh consideration for the following reasons :
Firstly, PW1 deposed that the acquired lands are irrigated agriculture lands and the claimants are growing paddy regularly. PW1 further deposited that hospitals, schools residential layouts, rice mill, State Highway etc. are situated about one kilometer away from the lands in question. The said testimony of PW1 was not tested during cross-examination by the respondent-beneficiary. The Reference Court has failed to evaluate the deposition of PW1 which is more significant to determine the fair compensation ;
Secondly, perusal of the testimony of PW2 also substantiates the fact that the lands in question are situated about 1-1½ kilometers away from Rice Mills as per Exhibit P.21 to P.66 and same was not disputed by the respondent- authorities. The Reference Court, though has referred to all these documents, but has failed to arrive at a conclusion based on these documents;14
It is clear from the aforementioned deposition of PW 2 that the acquired lands have the fertility to yield three crops of paddy in a year, so also, non-agricultural potentiality since the lands are situated near to State Highway. Perusal to Exhibit P.70 further reveals that the lands bearing Survey No.205 and 210 (LAC.No.12 of 2013, and 3 and 4 of 2014) have been developed and consist of residential layout, rice- mills and therefore, the Reference Court ought to have appreciated these undisputed facts while determining the market value of the lands in question. The Reference Court has failed to notice these facts. At this juncture, it is useful to refer to the judgment passed by the Hon'ble Supreme Court in the case of KARNATAKA POWER TRANSMISSION CORPORATION LIMITED V. COMMISSIONER AND LAO reported in (2010)15 SCC 60, where it is held that, "in towns and urban areas, distance of half kilometer to one kilometer makes considerable difference in price of the land." It is further held that "the court has to determine the market value on the basis of the material produced before it keeping in mind that some of the lands were more advantageously situated." In view of the enunciation of law by the Apex Court, referred to above in regard to lands having characteristic feature of urban area, we are of the considered view that the Reference Court ought to have considered these factors 15 while determining the market value of the land sin question ;
Thirdly, the Reference Court, at paragraph 38 of its judgment, has opined that there are no materials to believe that the lands of these appeals have non-agriculture potentiality and the said finding recorded by the Reference Court is undoubtedly contrary to the factual aspects and evidence on record and omitted to evaluate the evidence placed on record by the parties ;
Fourthly, the Reference Court, solely base don Exhibits P73 and P76, has arrived at a conclusion that the claimants are entitled for similar market value as fixed in the consent award. The Reference Court has failed to consider that these claimants had not agreed for entering into an agreement with the respondent- authorities and preferred the claim petitions before the Reference Court under protest. The claimants in consent award received the compensation on 01st December, 2012, but, the claimants in these appeals continued the proceedings up to the Reference Court and as such, they had to be compensated fairly, effectuating the object of Land Acquisition Act. Therefore, we are of the opinion that the Reference Court's conclusion to apply the analogy of consent award for granting compensation to the claimants has caused hardship to them.16
20. In the light of the discussion made above, what is required to be considered is whether remand of these appeals are justifiable under Order XLI Rule 23A of the Code of Procedure? Here is a case where the Reference Court has totally ignored the evidence placed before it and followed the consent award relating to acquisition of other land. The reference Court has not assigned any reason for not considering the evidence. It is not as though consent award cannot be followed, but it the landlosers do not agree for it, and adduce evidence producing other materials for determining the market value, the court is expected to evaluate the evidence and come to a conclusion. Since the impugned judgment and award does not disclose appreciation of evidence, we find that here is a case for remand according to Order XLI Rule 23A of the Code of Civil Procedure.
We may also state that if the appellate Court is of the opinion that the interest of justice requires that there should be a fresh trial, it can remand the matter for fresh disposal. In this connection, the discretion of the appellate Court to order retrial is unfettered. However, the said discretion has to be exercised judiciously, and without any arbitrary manner. While doing so, the appellate Court should be guided by sound judicial principles. In a catena of decisions relating to interpretation of Order XLI Rule 23 and 23A of the Code of Civil Procedure, the Hon'ble Supreme Court has observed that a remand cannot be ordered to enable a party to fill up the 17 lacuna in the case. But, where the party was denied an opportunity of producing the material evidence before the trial Court for fair adjudication, then the Appellate Court, in exercise of the discretionary powers, may order for remand of the case. Order XLI Rule 23A of the Code of Civil Procedure gives wider power to the Appellate Court to remit the case for re- trial, even on merits of the case. Of course, we are fully conscious of the fact that remand of these LACs to the Reference Court at this juncture, would cause delay in disposal of the LACs and hardship would be caused to the land losers. On the other hand, in the peculiar circumstance of the case where the impugned award is challenged both by the claimants and the beneficiary, if remand is not made by looking to the evidence on record, more hardship would be caused to the landlosers. In this connection, it is apt to refer the law declared by the Hon'ble Supreme Court in the case of K.KRISHNA REDDY v. SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION UNIT-II, LMD KARIMNAGAR, ANDRA PRADESH reported in AIR 1988 SC 2123. The said decision was with regard to award of compensation under Land Acquisition Act. At paragraph 12 of the judgment, it is observed thus :
"12. We can very well appreciate the anxiety and need of claimants to get compensation here and now. No matter what it is. The lands were acquired as far back in 1977. One decade has already passed. Now the remand means another round of litigation. There would be 18 further delay in getting the compensation. After all money is what money buys. What the claimants could have bought with the compensation in 1977 cannot do in 1988. Perhaps, not even one half of it. It is a common experience that the purchasing power of rupee is dwindling. With rising inflation, the delayed payment may, lose all charm and utility of the compensation. In some cases, the delay may be detrimental to the interests of claimants. The Indian agriculturists generally have no avocation. They totally depend upon land. If uprooted, they will find themselves nowhere. They are left high and dry. They have no savings to draw. They have nothing to fall back upon. They know no other work. They may even of utmost importance that the award should be made without delay. The enhanced compensation must be determined without loss of time. The appellate power of remand, at any rate ought not to be exercised lightly. It should not be resorted to unless the award is wholly unintelligible. It shall not be exercised unless there is total lack of evidence. If remand is imperative, and if the claim for enhance in compensation is tenable, it would be proper for the appellate court to do modest best to mitigate hardships. The appellate Court may direct some interim payment to claimants subject to adjustment in the eventual award."19
21. In the light of discussion made above, we are of the view that these appeals are to be remanded to the Reference Court for fresh consideration. Preliminary notification was issued on 30th July, 2009 and lands in question were taken possession on 09th May, 2011 for the purpose of laying railway linen on Munirabad- Mehboobnagar. The claimants preferred Reference under Section 18 to the Civil Court and it was registered on 04th June, 2014 before the Reference Court. It is the legitimate right of the land-losers to be compensated fairly within a reasonable period and therefore, we request the Reference Court to dispose of the claim petitions at the earliest without any further delay. Hence, we pass the following :
ORDER
1. Appeals are disposed of ;
2. Judgment and award dated 09th January, 2015, 15th June, 2017 passed in LACs No.2, 8, 11, 12, 13, 14, 17, 27 of 2013, LACs No.3 and 4 of 23014; Judgment and award dated 15th June, 2017 passed in LACs No.7, 8 and 14 of 2015;
and judgment and award dated 14th March, 2019 passed in LAC No.55 of 2016 by the Senior Civil Judge at Gangavati are set aside and are remitted back to the Reference Court for disposal afresh keeping in mind the observations made herein above."
20
17. In the present facts and circumstances of the case also it is the similar notification which is issued on 30.07.2009 for acquisition of lands for the purpose of laying new railway line between Mehaboobnagar to Munirabad possession of land was taken on 09.05.2011, the S.L.A.O. had fixed the compensation at Rs.1,42,000/- per acre on the basis of market value of the land and the reference Court enhanced the compensation to Rs.15,00,000/- per acre with statutory benefits. In the present case also the consent award was relied as per Ex.P.73 and 76. The substantial question of arguments on facts and law are similar to the one decided by the Hon'ble Division bench of this Court in the case mentioned above. Therefore, in view of Hon'ble Division bench having already remitted the matter which is similarly placed as the one on hand, this Court cannot take a different view, hence in view of the Judgment of Hon'ble Division Bench this case also requires to be remitted to the reference Court for fresh consideration in terms of the Judgment passed by the Dvision Bench of this Court stated supra.
21
18. Accordingly, I pass the following:
ORDER This appeal is disposed off. The Judgment and Award passed by the Senior Civil judge, Gangavathi dated 12.07.2018 in LAC.No.19/2013 is hereby set aside and the matter is remitted back to the reference Court for fresh consideration and disposal keeping in mind the observations made by the Division Bench of this Court in MFA.No. 101445/2015 along with connected matters disposed of 21.04.2021.
The reference Court is directed to dispose of the matter expeditiously.
In view of disposal of the appeal, admissible Court fee is permitted to be refunded in favour of FA & CAO, South Western Railways, Bengaluru-46.
SD/-
JUDGE ckk