Karnataka High Court
The Deputy Chief Engineer vs Paravva & Ors on 19 July, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JULY 2019
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR
M.F.A.No.202047/2017
C/W
MFA CROB. NO.200060/2018 (LAC)
MFA NO.202047/2017
BETWEEN
THE DEPUTY CHIEF ENGINEER
CONSTRUCTION-II, S.W.RAILWAY,
HUBLI-580023
... APPELLANT
(BY SRI. HULEPPA HEROOR, ADVOCATE)
AND
1. PARAVVA W/O VITHALGOUDA PATIL
AGE: 60 YEARS, OCC: AGRICULTURE
R/O HONAGANAHALLI,
TQ: DIST: BIJAPUR-586101
2. PARVATIBAI W/O VITHALGOUDA PATIL
AGE: 50 YEARS, OCC: AGRICULTURE
R/O HONAGANAHALLI
2
TQ: DIST: BIJAPUR-586101
3. ASHA D/O VITHALGOUDA PATIL
AGE: 32 YEARS, OCC: STUDENT
R/O HONAGANAHALLI,
TQ: DIST: BIJAPUR-586101
4. LATA D/O VITGHALGOUDA PATIL
AGE: 31 YEARS, OCC: STUDENT
R/O HONAGANAHALLI
TQ: DIST: BIJAPUR-586101
5. SAHEBGOUDA S/O VITHALGOUDA PATIL
AGE: 30 YEARS, OCC: STUDENT
R/O HONAGANAHALLI
TQ: DIST: BIJAPUR-586101
6. MALLANAGOUDA S/O VITHALGOUDA PATIL
AGE: 23 YEARS, OCC: STUDENT
R/O HONAGANAHALLI
TQ: DIST: BIJAPUR-586101
7. THE LAND ACQUISITION OFFICER
CUM ASSISTANT COMMISSIONER
BIJAPUR-586101
... RESPONDENTS
(BY SRI. BASAVARAJ KAREDDY, ADVOCATE FOR A1 TO A6;
SMT. ARCHANA P. TIWARI, AGA FOR R7)
THIS MFA FILED U/S. 54 (1) OF LAC ACT PRAYING ALLOW
THE APPEAL AND SET ASIDE THE JUDGMENT AND AWARD
DATED:16.08.2016 PASSED IN LAC NO.8/2007 BY THE LEARNED
II ADDL. SENIOR CIVIL JUDGE AT VIJAYPUR AND CONFIRM THE
AWARD MADE BY THE LAO.
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MFA CROB. NO.200060/2018
BETWEEN
1. PARAVVA
W/O VITHALGOUDA PATIL
AGE: 61 YRS, OCC: NIL
2. PARVATHIBAI W/O VITHALGOUDA PATIL
AGE: 51 YRS, OCC: AGRIL.
3. ASHA D/O VITHALGOUDA PATIL
AGE: 33 YRS, OCC: HOUSEHOLD
4. LATA D/O VITHALGOUDA PATIL
AGE: 32 YRS, OCC: HOUSEHOLD
5. SAHEBGOUDA S/O VITHALGOUDA PATIL
AGE: 31 YRS, OCC: AGRIL
6. MALLANAGOUDA S/O VITHALGOUDA PATIL
AGE: 24 YRS OCC: AGRIL.
ALL ARE R/O HONAGANAHALLI
TQ: & DIST: VIJAYAPUR-586101
... CROSS OBJECTORS
(BY SRI. BASAVARAJ KAREDDY, ADVOCATE)
AND
1. THE LAND ACQUISITION OFFICER
ASSISTANT COMMISSIONER
VIJAYAPUR-586101
2. THE DEPUTY CHIEF ENGINEER
CONSTRUCTION-II, S.W. RAILWAY
HUBBALI-580023
... RESPONDENTS
(BY SMT. ARCHANA P. TIWARDI, AGA FOR R1;
SRI HULEPPA HEROOR, ADVOCATE FOR R2)
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THIS MFA CROB. FILED U/S. 41 RULE 22 OF CPC PRAYING
TO ALLOW THIS CROSS OBJECTION/APPEAL BY MODIFYING THE
JUDGMENT AND AWARD OF THE II ADDL. SENIOR CIVIL JUDGE,
VIJAYAPUR DATED 16.08.2016 IN LAC NO.8/2007 AND AWARDED
THE COMPENSATION AT THE RATE OF RS.13,00,000/- PER ACRES
INSTEAD OF RS.6,75,000/- PER ACRES, IN THE INTEREST OF
JUSTICE & EQUITY.
THE APPEAL AND CROSS OBJECTION COMING ON FOR
ORDERS, THIS DAY, K.N.PHANEENDRA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The above said appeal and cross objections are preferred against the order passed by the II Additional Senior Civil Judge at Vijayapur in LAC No.8/2007.
2. MFA No.202047/2017 is filed by Deputy Chief Engineer, Southern Railway Department, who is the beneficiary in respect of acquisition of the lands for the purpose of gauge conversion of the railway track. The cross objections are filed by the claimants for enhancement of compensation as awarded by the Reference Court.
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3. The brief factual matrix of the cases are that, the cross objectors are the owners of the land bearing Survey No.3 measuring 3 acres 29 guntas and land bearing Survey No.4 measuring 36 guntas, which are situated at Honaganahalli village in Vijayapur taluk and the said lands were acquired by the Railway Department for gauge conversion. The Land Acquisition Officer has awarded a sum of Rs.2,15,769/- per acre for the wet lands considering the lands of the claimants as wet lands. Being aggrieved by the award passed by the LAO, the claimants have preferred a reference before the II Additional Senior Civil Judge in LAC No.8/2007, which came to be contested by the appellant in the above said reference. The claimant No.2 before the LAC has examined as PW.1 and has produced as many as 17 documents as per Exs.P1 to P17. The Railway Department also got examined respondent No.2 therein as RW.1 and also produced documents as per Exs.R1 to R4. 6 After considering the oral and documentary evidence placed on record, the Reference Court has come to the conclusion that, similarly placed lands at Kalaburagi and Bidar were acquired for the purpose of forming an airport and therein the consent awards were passed for a sum of Rs.8,00,000/- per acre for dry lands and Rs.9,00,000/- per acre so far as wet lands are concerned. The Reference Court relying upon the said document, which was marked as Ex.P4 treated the same as best document to establish the market value because in this particular case also the lands were acquired for the purpose of public convenience by the Railway Department. Therefore, equal treatment was given to such lands and fixed the compensation of Rs.9,00,000/- per acre as determined by the Deputy Commissioner, Vijayapur pertains to the lands acquired for airport. As the notification of the acquisition was of the year 2007 that was particularly on 12.07.2007, the Reference Court considering de-escalation of the lands and deducted 10% out of Rs.9,00,000/- and fixed the 7 compensation of Rs.6,75,000/- per acre to the wet lands. The above fixation of the compensation by the Reference Court is challenged by both parties before this Court as noted above.
4. The learned counsel Sri Huleppa Heroor appearing for the appellant - Railway Department contended before the Court that, the lands which are acquired for the purpose of airport, are almost near the Vijaypur city. Therefore, consideration of the market value to the wet lands as considered for the acquisition for the purpose airport are altogether different, so far as this case is concerned, the lands are acquired for the purpose of gauge conversion. Therefore, the compensation enhanced by the Reference Court is on the higher side. He also contended that, even otherwise if the award passed by the Reference Court as it is accepted, it is on the basis of the consent given by the cross-objectors herein. Therefore, they are forfeited their rights to prefer 8 any appeal against the order passed by the Reference Court. In that eventuality, the cross objection filed by them is not maintainable and the same is liable to be dismissed. He also contends that, once the consent award is passed, the claimants are not entitled for any other relief except the compensation awarded at the rate of Rs.6,75,000/- per acre. Therefore, the interest awarded on the enhanced compensation is also bad in law.
5. Per contra, the learned counsel Sri Basavaraj Kareddy appearing for the cross objectors submitted before the Court that, even the Reference Court not considered the material documents placed before it marked as Exs.P14 and P15. It is contended that, Ex.P14 is the map of Honaganahalli village, which shows a highway is passing through lands of the claimants and Ex.P15 shows that, nearby the lands of the claimants, at a distance of 2 k.ms., a site was sold measuring 809 sq. ft. for Rs.20,500/-, which works out to Rs.25/- per sq. ft. If 9 that is taken into consideration, the lands value of the claimants would worked out to rupees 11 lakhs per acre and that has not been taken into consideration by the Reference Court. He also contends that, the claimants have relied upon the document Ex.P4 for the purpose of claiming enhanced compensation but they have not given any consent for awarding compensation. Therefore, he contends that the compensation ought to have been reasonably enhanced by the Reference Court. He also contends that, Ex.P17 is the award passed in LAC No.161/2003 wherein the land, which was acquired for the purpose of railway gauge conversion near Mahalabagayat village, which is 10 k.ms. away from Vijaypur city. The compensation for the said land was fixed at the rate of Rs.32/- per sq. feet, which comes to Rs.13,00,000/- per acre and that also has not been taken into consideration by the Reference Court while awarding compensation. Therefore, he contended that the 10 compensation ought to have been reasonably enhanced by the Reference Court.
6. On careful perusal of the order passed by the Reference Court, the Reference Court has mainly relied upon Ex.P4 and it has not given any opinion so far as Exs.P14, 15 and 17 are concerned. Admittedly, Exs.P14 and P15 show that, the lands have little potentiality than the wet lands. Even considering Ex.P17 also, the said lands are situated approximately 10 k.ms. away from acquired lands and these claimants lands were situated at a distance more than 10 k.ms. away from Vijaypur city. These aspects clearly establish that, they are not only the wet lands but, they are little higher than the wet lands but, cannot be said that, they are fully NA potentiality lands. However, the above said factual aspects with regard to awarding compensation so far as other lands, should not have been lost the sight by the Trial Court. Therefore, in our opinion, just compensation has to be 11 awarded by the Court considering all the circumstances in this case.
7. Admittedly, the lands were acquired for the purpose of Vijaypur airport and the compensation has been awarded at Rs.8,00,000/- for dry lands and Rs.9,00,000/- for wet lands. The Trial Court has considered that, the said notification was of the year 2007 and the notification pertaining to the claimants' lands was dated 20.01.2005. Therefore, 10% de-escalation has been calculated. In this context, the learned counsel Sri Basavaraj Kareddy has relied upon the decision of this Court in MFA No.32005/2012 connected with MFA No.32004/2012 dated 09.03.2016, wherein this Court has held that for a period of two year, de-escalation has to be calculated at 5% instead of 10% and compensation has to be enhanced. On looking to the above said facts and circumstances and the decisions, in this particular case also, the deduction of 10% de-escalation in our opinion is 12 not proper. The Reference Court ought to have deducted 5% towards de-escalation and deducted the said amount from Rs.9,00,000/- for the purpose of awarding compensation.
8. Be that as it may, the other circumstances which are raised by the learned counsel i.e., with reference to Exs.P14, 15 and 17, we have perused the said documents and they show that these lands are situated at a distance of more than 2 k.ms. from the said site, which was alleged to have been sold for a sum of Rs.20,500/- measuring 20' x 41.5'. Therefore, though these lands cannot be equated to the said site potentiality but, some added value would have been given by the Reference Court. Therefore, in our opinion, if de-escalation 5% deducted, the said amount would come to the benefit of the claimants and if an amount of Rs.9,00,000/- per acre is awarded as compensation, it would meet the ends of justice.
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9. So far as argument of learned counsel for the appellant in MFA No.202047/2017 is concerned, in our opinion they are not tenable. The above said document Ex.P4 was relied upon by the claimants only for the purpose of taking parity for the purpose of claiming enhanced compensation but they have not actually given any consent for awarding compensation in this particular case. Therefore, they have right to prefer an appeal against orders passed by the Reference Court. When the consent award has not been passed it cannot be said that the claimants have given consent for the purpose of awarding compensation for a sum of Rs.8,00,000/- per acre or Rs.9,00,000/- per acre but, they have given only document for taking into consideration for the purpose of showing the materials to the Court for enhancement of compensation. Therefore, in our opinion, the claimants are also entitled to all the statutory benefits arising out of the compensation being awarded to them and in the above said circumstances, we are of the opinion that, if we fix 14 the market value of the lands of the claimants at Rs.9,00,000/- per acre instead of Rs.6,75,000/- per acre as awarded by the Reference Court, it would meet the ends of justice. With these observations, we proceed to pass the following:
ORDER The appeal filed by the Chief Engineer, Southern Railway Department in MFA No.202047/2017 is hereby dismissed. The cross objection filed by the claimants in MFA No.200060/2018 is allowed in part, with costs, proportionate interest. The cross-objectors/claimants are entitled to enhanced compensation of Rs.9,00,000/- per acre to the irrigated lands in Sy.No.3 measuring 3 acres 29 guntas and Sy.No.4 measuring 36 guntas, situated at Honaganahalli village, Vijayapur taluk and with regard to interest and other benefits, the reference Court order is not disturbed.15
The amount, which was deposited before this Court is ordered to be transmitted to the Reference Court forthwith for appropriate disbursement.
However, the claimants are at liberty to move the appropriate authority for compensation towards loss of possession for a period of two years prior to the notification.
Sd/-
JUDGE Sd/-
JUDGE Srt