Karnataka High Court
Smt. Sakkubai Garasangi W/O Shivaji vs Assistant Commissioner, Bijapur on 6 July, 2020
Equivalent citations: AIRONLINE 2020 KAR 2114
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 06TH DAY OF JULY, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
MFA NO.200685/2015 (LAC)
Between:
Smt.Sakkubai Garasangi W/o Shivaji,
Age 44 years, Occ. Agriculture and Household,
R/o Malaghan, Tq. Basavan Bagewadi,
Dist. Bijapur.
... Appellant
(By Sri Harshavardhan R.Malipatil, Advocate)
And:
1. Assistant Commissioner,
Bijapur.
2. Land Acquisition Officer,
Bijapur.
... Respondents
(By Smt.Archana P.Tiwari, AGA)
This Miscellaneous First Appeal is filed under
Section 54(1) of the Land Acquisition Act, praying to allow
this appeal with costs and modify the judgment and award
passed by the Civil Judge (Sr.Dn.) at Basavan Bagewadi
dated 22.10.2009 in LAC No.10/2005 and fix the market
value at the rate of Rs.2,05,000/- per acre and award all
statutory benefits and grant any other relief.
2
This Miscellaneous First Appeal having been heard
and reserved for judgment on 24.06.2020, coming on for
"Pronouncement of Judgment" this day, the Court
delivered the following;
JUDGMENT
This appeal is preferred by the landlosers under Section 54(1) of the Land Acquisition Act (for short 'L.A.Act') being aggrieved by the judgment and award dated 22.10.2009 passed in LAC No.10/2005 by the Civil Judge (Sr.Dn.), Basavan Bagewadi (for brevity hereinafter referred to as the 'Reference Court'), as the Reference Court has granted meager amount of compensation as the lands in question were acquired by way of preliminary Notification issued under Section 4(1) of the L.A.Act dated 04.09.1997 in respect of land bearing Sy.No.375/2/3 renumbered as Sy.No.375/2/4C measuring 03 acres 05 guntas including 07 guntas of kharab of Kalburki Village, Basavan Bagewadi Taluk, for the purpose of construction of Minor Irrigation Tank at Kalburki- 3 Malaghan Village. Therefore, the present appeal is preferred seeking for enhancement of compensation.
2. The Land Acquisition Officer (LAO) has acquired the land of the appellant and awarded compensation of Rs.20,000/- per acre and being aggrieved by the same the appellant has filed the application under Section 18(1) of the Land Acquisition Act before the Reference Court in LAC No.10/2005. Accordingly the Reference Court has considered the evidences on record both oral and documentary also followed the judgment and award passed in LAC No.165/2003 and other connected cases, formed an opinion that the land in LAC No.165/2003 and the land in the present case having distance of 2½ kilometers only and the 4(1) Notification in LAC No.165/2003 is issued on 08.05.1997 and in the present case the 4(1) Notification is issued on 04.09.1997 and therefore in LAC No.165/2003 the award was of Rs.1,40,000/- per acre. Therefore, considering the factors that the 4 issuance of 4(1) Notification in both the cases are having proximity of only four months and the lands situated only at a distance of 2½ kilometer and accordingly, in the present case the Reference Court has awarded compensation of Rs.1,40,000/- per acre.
3. Being aggrieved by the same, the claimants have preferred the present appeal on the ground that in LAC No.165/2003, the Reference Court had determined the market value on the basis of capitalization method by taking sugarcane crop with yield of 35 tonnes and the price at Rs.800/- per tonne for the year 1996-1997 and therefore in the present case also as per Ex.P.2 - yield certificate, yield of sugarcane is 50 tonnes per acre, therefore, submitted the Reference Court ought to have determined the market value by considering 50 tonnes per acre of sugarcane. Therefore, submitted the compensation ought to have been awarded based on the capitalization method. Further argued and raised a ground that in other cases pertaining to the lands, 5 which are acquired in Vijayapur and Bagalkot districts awarded compensation of more than Rs.2.00 lakh per acre based on capitalization method considering the sugarcane as crop for the same period. Therefore, submitted on the same ground in the present case also the claimants are entitled higher amount of compensation of more than Rs.2.00 lakh per acre.
4. On the other hand, the learned Additional Government Advocate submitted that in the present case, the appellant/claimant has not produced documentary evidence to show that what is the nature of the land and what are the crops which were growing on the land. It is submitted that the RTC extracts, price list and other evidences are not produced to make calculation on a capitalization method and simply produced the reference application, yield report and certified copy of judgment and decree passed in LAC No.165/2003 and connected cases, therefore, submitted that the Reference Court by relying on the judgment 6 and award passed in LAC No.165/2003, which is the neighbouring land and 4(1) Notification is issued just within four months from the notification and accordingly awarded compensation which needs no interference. Therefore, prayed for dismissal of the appeal.
5. Having heard the arguments from both sides and perused the records, the point that arise for determination is as follows ;-
"Whether the judgment and award passed by the Reference Court in LAC No.10/2005 dated 22.10.2009 requires any interference by this Court ?"
6. In the present case, the learned counsel for the appellant argued that the land in question is irrigated land and sugarcane crop is growing and based on the capitalization method by taking yield at 50 tonnes per acre, the Reference Court ought to have calculated the compensation but without doing so by 7 simply following the judgment and award passed in LAC No.165/2003, had awarded a lower compensation of Rs.1,40,000/- per acre. Therefore, prayed for enhancement of compensation.
7. Considering this aspect, this Court has perused the records at this stage that the claimant is examined as PW1 and produced documentary evidences as Exs.P1 to P3 which are reference application submitted for enhancement of compensation, yield report issued by Krishi Adhikari and certified copy of judgment and award passed in LAC No.165/2003 and connected cases.
8. The appellant before the Reference Court has not placed any evidence to show what is the nature of land, by producing RTC extracts. In order to prove what is the nature of the land is whether dry or irrigated land, there is no evidence on record in the present case. Further more, there is no evidence by the appellant's 8 side that what is the source of water in the present case to show that the land in question is irrigated land.
9. Except the above stated three documentary evidences, there are no evidences adduced by the appellant. But in the award Ex.R.1, the LAO had mentioned that the land in question is 'irrigated land'. But what is the crop growing in the said land there is no iota of evidence by the appellant's side. The Reference Court had followed the judgment and award passed in LAC No.165/2003 and accordingly awarded the compensation of Rs.1,40,000/- per acre for irrigated land. The Reference Court in the judgment at paragraph 13, had observed that in LAC No.165/2003 the land situated in Baluti village and in the present case the land situated in Kalburki Malgan Village, which is 2½ kilometers away from Baluti Village. Therefore, the lands in subject matter of LAC No.165/2003 and the lands in question in the present case are having distance of 2½ kilometers. In LAC No.165/2003 the 4(1) 9 Notification is dated 08.05.1997 and in the present case 4(1) Notification is dated 04.09.1997. Therefore, after four months the 4(1) Notification was issued in the present case. Therefore the proximity of the period of issuance of 4(1) Notification in both the cases are very close and also the distance between the two villages is just 2½ kilometers. In the said LAC No.165/2003, it was held that the lands are irrigated lands and in the present case as per Ex.R1 award of LAO, the lands in question are irrigated land. In LAC No.165/2003 the Reference Court had determined the market value at Rs.1,40,000/- per acre and accordingly the same is determined in the present case and hence awarded compensation of Rs.1,40,000/- per acre for irrigated land for the land measuring 02 acre 38 guntas and further awarded Rs.100/- per gunta for 07 guntas of phot kharab land. Therefore, considering the above stated factor, the market value determined by the Reference Court in the present case in considering the 10 factor that on the neighbouring acquired land what was the compensation amount was determined, the same is awarded in the present case also. Therefore, I do not find any fault with approach of the Reference Court where the lands are situated neighbouring to each other and also the 4(1) Notifications are issued are having close proximity. Therefore, the owners cannot be discriminated while granting the compensation if placed similarly. In this regard, I place reliance on the judgment of the Hon'ble Supreme Court in the case of Ali Mohammad Beigh and others vs. State of Jammu and Kashmir - [(2017) 4 Supreme Court Cases 717], at paras 12 and 13 observed as follows ;-
"12. When the lands are more or less situated nearby and when the acquired lands are identical and similar and the acquisition is for the same purpose, it would not be proper to discriminate between the landowners unless there are strong reasons. In Union of India vs. Bal Ram [(2010) 5 SCC 747], this Court held that if the purpose of acquisition is same and when the lands are identical and similar though lying in different villages, there is no justification to make any discrimination between the landowners to pay more to some of the landowners and less compensation to others. The same was the view taken in Union of India vs. Harinder Pal Singh [(2005) 12 SCC 11 564], wherein this Court held as under: (SCC pp.568-69, para 15-16) "15. We have carefully considered the submissions made on behalf of the respective parties and we see no justification to interfere with the decision of the Division Bench of the Punjab and Haryana High Court (Harinderpal Singh v. Punjab State, 1996 SCC OnLine P&H 1243) which, in our view, took a pragmatic approach in fixing the market value of the lands forming the subject- matter of the acquisition proceedings at a uniform rate. From the sketch plan of the area in question, it appears to us that while the lands in question are situated in five different villages, they can be consolidated into one single unit with little to choose between one stretch of land and another. The entire area is in a stage of development and the different villages are capable of being developed in the same manner as the lands comprised in Kala Ghanu Pur where the market value of the acquired lands was fixed at a uniform rate of Rs 40,000 per acre. The Division Bench of the Punjab and Haryana High Court discarded the belting method of valuation having regard to the local circumstances and features and no cogent ground has been made out to interfere with the same.
16. In our view, in the absence of any contemporaneous document, the market value of the acquired lands of Village Kala Ghanu Pur which were acquired at the same time as the lands in the other five villages was correctly taken to be a comparative unit for determination of the market value of the lands comprising the lands forming the subject-matter of the acquisition proceedings under consideration......."
13. When the lands are acquired at the same time and for the same purpose that is for resettlement of Dal dwellers, the lands situated in three different villages namely, Chandapora, Bhagichandpora and Pazwalpora, 12 and since the land is similar land, it would be unfair to discriminate between the landowners and other references and the appellants who are the landowners in Reference No.15 and pay less that is Rs.2,50,000/- per kanal to the appellants and pay more to other landowners that is Rs.4,00,000/- per kanal. Impugned judgments of the High Court in CIA No.211 of 2009 and Cross Appeal No. 64 of 2011 are to be set aside by enhancing the compensation to Rs.4,00,000 per kanal. As a sequel to this, the order passed in review is also to be set aside."
10. Therefore, placing reliance on the judgment of the Hon'ble Supreme Court above stated, in the present case the award of compensation as determined by the Reference Court at Rs.1,40,000/- per acre is correct and that is by following the judgment passed in LAC No.165/2003, which itself is relied on by the appellant by producing the same as per Ex.P.3 before the Reference Court.
11. Further considering the submission made by the counsel for the appellant that the market value ought to have been determined on the basis of the capitalization method cannot be accepted for the reason that the appellant has not produced any evidence in 13 this regard. The appellant has not produced RTC extract to show that what are the nature of crops were growing on the land. There is no proof by the appellant's side that sugarcane is growing on the land. There is no price list produced by the appellant to prove what is the price for that relevant period, just because one yield report by the Agricultural Officer as per Ex.P.2 is not sufficient to determine the market value on the basis of the capitalization method in absence of any other evidence. Therefore, in this regard, the Reference Court had gone fixing the market value by considering the judgment in LAC No.165/2003 as per Ex.P.3 which itself is produced and relied on by the appellant and the same is honoured by the Reference Court. Therefore, In this regard, I do not find any merit in the submission made by the counsel for the appellant.
12. In the present case it is not disputed that the extent of acquired land is 03 acre 05 gunta belonging to the appellant but the Reference Court 14 without having any evidence by the respondents side had granted compensation to the extent of 02 acre 38 gunta and Rs.100/- per gunta for remaining 07 gunta of land considering as phot kharab. This award of Rs.100/- per gunta for 07 gunta of phot kharab is not correct in absence of any evidence that the respondents have not produced any evidence before the Reference Court to show that 07 gunta of land is phot kahrab. Ex.R1 is the award copy in which it is stated there is 07 gunta of phot kharab land but the respondents are the author of the said award and independent of that the respondents ought to have produced any other evidence to show that there was 07 gunta of phot kharab land but that is not produced. Therefore, treating 07 gunta of land as phot kharab awarding Rs.100/- per gunta is not correct. Therefore, in this regard the judgment and award is liable to be modified to the extent that the appellant is entitled to compensation of Rs.1,40,000/- per acre considering the acquired land is entirely 15 03 acre 05 guntas. Therefore, to this extent the appeal succeeds in part. Accordingly the judgment and award passed by the Reference Court is modified. Therefore, the point for consideration is answered accordingly. Hence, I pass the following ;-
ORDER Appeal is allowed in part with costs.
The judgment and award dated 22.10.2009 passed in LAC No.10/2005 by the Civil Judge (Sr.Dn.), Basavan Bagewadi is modified to the extent that the appellant is entitled to compensation of Rs.1,40,000/- per acre considering the acquired land is entirely 03 acre 05 guntas.
The other statutory benefits granted by the Reference Court is not disturbed and kept intact, accordingly respondent shall pay the same to the appellant/claimant.
16
In view of the order passed by this Court on 16.03.2018, the appellant is not entitled for interest on the delay period of 1914 days in filing the appeal.
Sd/-
JUDGE sn