Bangalore District Court
Sri. P.M. Chowdappa vs ) Special Land Acquisition Officer on 26 August, 2019
IN THE COURT OF THE II ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H. No.17)
Dated this the 26th day of August, 2019.
PRESENT:
Shri. R.Y. Shashidhara, B.Com., LL.B.
II Addl. City Civil and Sessions Judge, Bangalore.
LAND ACQUISITION CASE No.125/2008
CLAIMANT:
Sri. P.M. Chowdappa
S/o late. Sri. Munirangappa, 80 years,
Occupation: Retired HMT Employee,
R/at No.54/5, 5th cross, 3rd main road,
(SRS road), Peenya, Bengaluru-560
058.
(By Sri. LSC., Advocate)
-VERSUS-
RESPONDENTS:
1) Special Land Acquisition Officer
and Estate Officer, National
Highways, K.R. Circle, PWD
compound, Bengaluru.
2) The project Director, National
Highway Authority of India, PIU-
Bengaluru, 14th K.M. Nagasandra
village, Bengaluru - Tumkur road,
Bengaluru.
(R-1 - Exparte)
(R-2 by Sri. BVPA, Advocate)
------
2 L.A.C. No.125/2008
JUDGMENT
This reference made by the respondent/Special Land Acquisition Officer & Estate Officer, National Highways, (here-in-after referred as S.L.A.O. for short), Bengaluru, under Section 18(1) of Land Acquisition Act, 1894 (hereinafter called as L.A.Act for short).
.2. The brief facts of the case are as follows:
The respondent has acquired the property belongs to the claimant/petitioner bearing CTS No.1172, measuring 107 sq. meters, situated at Peenya village, Yeshavanthapura Hobli, Bengaluru North Taluka. It was acquired for the purpose of widening of NH-4. Preliminary notification was on 09.04.2001, final notification was on 09.04.2001, award passed on 01-12-2004 and it was approved on 28.02.2004.
.3. In the claim statement, it is stated that the claimant is the owner of the land and building bearing CTS No.1172 of Peenya village, measuring East to West 3 L.A.C. No.125/2008 37 ½ feet and North to South 75 feet, totally measuring 260.83 sq. meters. He purchased the said property through a registered sale deed dated 15.03.1978 from its owner Raghunath Singh. On the basis of the sale deed, the name of claimant entered in the khatha. It is stated that, at the time of purchase, said property was vacant site. In the year 1986 the claimant commenced construction of non-residential commercial building of grand-floor and 1st floor, it was completed in the year 1988. This property is within the jurisdiction of Bengaluru Mahanagara Palike. It is stated that the respondent has acquired 107 sq. meters in the property of claimant including land and building for the purpose of widening of NH-4. 4(1) notification was issued in the name of vendor of the claimant namely Raghunatha Singh. The claimant has made representation before the S.L.A.O., for including his name in the acquisition proceedings. During the time of award enquiry, he has filed claim statement and prayed for enhancement of compensation. In-spite of said representation, without 4 L.A.C. No.125/2008 giving an opportunity, the respondent has passed an order and fixed the market value of Rs.1,614/- per sq. meter, which is contrary to the provisions of Sections 23 and 24 of L.A. Act. It is stated that the claimant constructed the non-residential commercial building consisting ground and first floor. The said building has been assessed by the BMP and fixed tax. It is stated that, as per the representation of the claimant for fixation of market value of the building to have been referred to the Assistant Executive Engineer, National High-way, Sub- division, Bengaluru for fixing the market value as per the Government order dated 03.12.1998. But without giving an opportunity to the claimant, the said A.E.E. submitted his report and fixed the compensation to the building for a sum of Rs.3,75,858/-. It is stated that fixing the above said rate to the building, depreciation deducted is incorrect and illegal.
.4. It is stated that as per preliminary notification, total extent of the land and building to be acquired has been shown as 107 sq. meters. But, actually the land and 5 L.A.C. No.125/2008 building belongs to the claimant acquired by the respondent to the extent of 117.52 sq. meters. The respondent fixed the market value in-respect of 107 sq. meters only, they have not passed an award towards balance extent of 10.52 sq. meters. Therefore, for passing an award and fixing the award amount to 10.52 sq. meters with all statutory benefits under the L.A. Act is required.
.5. It is stated that the market value fixed by the respondent to the land and building in question is meager and as compared to the then existing market value as on the date of preliminary notification. The claimant has submitted an application in the award proceedings and requested for fixing market value of Rs.2,000/- per sq. feet. The respondent has acquired the land and building belongs to the claimant. Therefore, there is no aggression of the claimant to claiming the compensation at the rate of Rs.2000/-per sq. Feet. The respondent ought to have fixed the market value at Rs.4,307/- per sq. meter instead of Rs.1,614/- sq. meter. 6 L.A.C. No.125/2008 The property acquired by the respondent is within commercial properties fallen in the industrial area, Bengaluru - Tumkur road, the respondent has not fixed the market value as per the rate fixed by the Government in the concerned area Sub-Registrar Office. It is stated that, the acquired property is commercial property and attached to NH-4. As per notification dated 03.12.1998, if the acquired site is commercial site, to the market value there under additional 50% shall be added and further if such commercial site is attached to NH-4, another 50% shall be added. The petitioner is entitle for such benefits.
.6. The property of the petitioner is attached to the NH-4 and it has been in the Zonal map classified the building as commercial and industrial area. The report of the Asst. Engineer in revaluation of the building is wholly incorrect. It is stated that as per the report of valuation of building and sketch, the measurement of entire building of the petitioner is shown as 11.60 X 15.80 sq. meters. Out of the said total extent of the plinth area valuation of the building has been prepared only in- 7 L.A.C. No.125/2008 respect of 121.80 sq. meters. Therefore, what has been left out in the total area of the building is 62.06 per sq. meter. After demolition of the building to the extent of 121.80 sq. feet, remaining portion is of no use of the petitioner. Therefore, the respondent ought to have made valuation in-respect of the entire building measuring 183.86 sq. meters as per the Land Acquisition Act. The petitioner is entitle for compensation of Rs.60,000/- to the expenses incurred by him for shifting after demolition in question.
.7. It is stated that, taken of TDS in the award amount is illegal. The petitioner has challenged the same before the Hon'ble High Court of Karnataka in W.P. No.15844/2005 (LA-RES) and the Hon'ble High Court of Karnataka passed an order that deduction of 10% in the compensation towards income-tax is illegal and giving option to the claimant to approach the respondent to release of 10% of compensation deducted in the income- tax, to approach before the Income tax Department. The petitioner gave representations to the respondent and 8 L.A.C. No.125/2008 income-tax department for refund of TDS amount of Rs.95,190/-. But the respondent has not been given the said tax amount. Hence, the petitioner is entitle for the said amount from the respondent. From the above said grounds, the claimant prayed for setting aside the award passed by the respondent and to enhance the compensation amount with all statutory benefits.
.8. After receipt of the reference from the respondent, this court registered the case and issued notice to both the parties. The claimant has appeared through his counsel. In-spite of service of notice, the respondent No.1 has not appeared and placed exparte. During pendency of the case, the impleading applicant (beneficiary), the Project Director, NHAI has impleaded as respondent No.2.
.9. The claimant has filed the claim statement. But the respondent No.2 has not filed objections to the claim statement. Then the case is posted for evidence. 9 L.A.C. No.125/2008 .10. To prove his case, the claimant himself examined as PW.1. Documents got marked as Ex.P.1 to Ex.P.21. The respondents 1 and 2 have not adduced oral evidence and got marked the documents.
.11. Heard the arguments.
.12. The following points arise for my consideration:
1. Whether the reference u/s.18 of L.A. Act, made by the respondent No.1/SLAO, is valid and in time?
2. Whether the claimant proves that the respondent acquired excess land and building measuring 10.52 sq meters in his property bearing CTS No.1172 as against the land acquired in the acquisition proceedings?
3. Whether the Claimant proves that the market value of the property determined by the respondent/S.L.A.O. is not reasonable and adequate?
4. Whether the claimant is entitle for higher compensation to the acquired property? If so, at what rate?
5. What Order or Award?10 L.A.C. No.125/2008
.13. My findings on the above points are as follows:-
Point No.1 : In the affirmative
Point No.2 : In the affirmative,
Point No.3 : Partly in affirmative,
Point No.4 : Partly in affirmative,
Point No.5: As per the final order for the
following:-
REASONS
.14. Point No.1:- So far as limitation relating to
filing and maintaining of Section 18(1) of L.A. Act, the law is very clear and well settled. The petitioner has to file 18(1) application within 90 days from the date of service of 12(2) notice upon him. Respondent has to refer the matter to the Civil Court within 90 days from the date of receipt of 18(1) application from the petitioner. If the respondent fail to make the reference, then the petitioner has to file this kind of petition within 3 years after expiry of said 90 days. Our Hon'ble Supreme Court was held in 11 L.A.C. No.125/2008 the decision reported in ILR 1994 KARNATAKA 2337 (SC).
.15. As per records, the respondent No.1 has acquired the property belongs to the claimant/petitioner bearing CTS No.1172, measuring 107 sq. meters, out of total measuring 260.83 sq. meters, situated at Peenya village, Yeshavanthapura Hobli, Bengaluru North Taluka, for the purpose of widening of NH-4. Preliminary notification was on 23.11.1999, final notification was on 09.04.2001 and award passed on 28.02.2004. As per the records, after passing award and receiving 12(2) notice, the claimant has filed 18(1) application before the respondent and prayed for referring the matter to the Civil court for enhancement of compensation. Due to respondent has not referred the matter to the Civil Court, the claimant has filed the petition before this court under Section 18(3)(b) of L.A. Act. The said case has been registered as L.A.C. No.13/2006. On 27.02.2008, this court passed an order on merits and allowed the said petition and directed the respondent to make a reference 12 L.A.C. No.125/2008 to the competent court to decide the claim of the petitioner for enhancement of market value in-respect of acquired property. As per the order of this court, on 07.10.2008 the respondent submits the reference before this court. In the said case itself, this court has decided that the reference application filed by the petitioner was in time. Therefore, once-again in the present case there is no need to consider that whether the reference made by the respondent No.1 is valid and in time. From the above discussion, I come to the conclusion that the reference under Section 18 of L.A. Act made by the respondent (S.L.A.O.) is valid and in time. Hence, I answer point No.1 in the affirmative.
.16. Point No.2: As per the records, the respondent No.1 acquired the portion of the property measuring 107 sq. meters, out of total measuring 260.83 sq. meters in CTS No.1172 situated at Peenya village, Yeshavanthapura Hobli, Bengaluru North Taluka, for the purpose of widening of NH-4. Accordingly 4(1) and 6(1) notifications issued and award passed in-respect of 107 13 L.A.C. No.125/2008 sq. meters of property belongs to the claimant. But it is the contention of the claimant that, his property bearing CTS No.1172 is measuring East to West 37 ½ feet (11.41 meters) and North to South 75 feet (22.86 meters) totally measuring 260.83 sq. meters. Out of the same, the land and building belongs to him measuring 117.52 sq. meters acquired by the respondent. In spite of the same, the respondent has given the compensation only in respect of 107 sq. meters. The respondent No.1 has not passed an award and paid the compensation to the excess extent of 10.52 sq. meters acquired by them. Therefore, the claimant has stated that, he is entitle to the compensation with statutory benefits in-respect of excess of land to the extent of 10.52 sq. meters. PW.1 in his examination-in-chief has reiterated the above said averments.
.17. I have perused the above contentions of the claimant with case on hand. As per the preliminary notification, final notification and award, the respondent acquired the portion of the property belongs to the 14 L.A.C. No.125/2008 claimant to the extent of 107 sq. meters, out of 260.83 sq. meters. Ex.P.9 award passed in-respect of 107 sq. meters and paid award amount to the claimant. In Ex.P.10 of award notice (12(2) notice) mentioned that the respondent No.1 has acquired land and building belongs to the claimant to an extent of 107 sq. feet and calculated the compensation.
.18. Ex.P.21 is the notice dated 28.10.2005 issued by respondent No.1 to the claimant. It is mentioned that the property measuring 107 sq. meter (East West 11.30 meter and North south towards east 10.80 meters, towards west 10 meters) in CTS No.1172 acquired for the purpose of widening NH-4. It is further mentioned that, the claimant is going for construction in the acquired property. Therefore, it is directed him to put up construction in the remaining office property measuring East West 11.30 meter and North south towards east 11.30 meters, towards west 12.70 meters. As against Ex.P.21, the claimant got issued reply notice dated 13/15.11.2005 as per Ex.P.14. In the said notice, it is 15 L.A.C. No.125/2008 mentioned that actually the respondent No.1 acquired 117.52 sq. meters as against 107 sq. meters mentioned in the acquisition proceedings. They acquired the portion of the property measuring East west 11.30 meters and North south on eastern side 10.80 meters and on western side 10 meters, in all 107 sq. meters. In Ex.P.21 of the notice it is mentioned as follows:
"¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ vÁ®ÆèPÀÄ, AiÀıÀªÀAvÀ¥ÀÅgÀ ºÉÆç½, ¦Ãtå UÁæªÀÄzÀ ¹nJ¸ï £ÀA. 1172 gÀ°è gÁ¶ÖçÃAiÀÄ ºÉzÁÝj- 4 gÀ «¸ÀÛgÀuUÉ É 107 ZÀ «Äà CAzÀgÉ ¥ÀǪÀð - ¥À²ÑªÀÄ 11.30 «ÄÃlgï ªÀÄvÀÄÛ GvÀÛgÀ - zÀQët ¥ÀǪÀðzÀ PÀqÉ 10.80 «ÄÃlgï ªÀÄvÀÄÛ ¥À²ÑªÀÄzÀ PÀqÉ 10.00 «ÄÃlgï ¨ÀsƸÁé¢üãÀPÉÌ M¼À¥ÀnÖgÀÄvÀÛzÉ. ¸ÀzÀj d«Ää£À ¥ÀjºÁgÀ ¤ªÀÄUÉ ¥ÁªÀw ªÀiÁqÀ¯ÁVzÉ. ¤ÃªÀÅ ºÁdgÀÄ¥Àr¹gÀĪÀ PÀæAiÀÄ¥ÀvÀæzÀAvÉ ¸ÀªÉð £ÀA. 45:6 ( ºÉƸÀ ¹nJ¸ï £ÀA. 1172 ) gÀAvÉ ¥ÀǪÀð-¥À²ÑªÀÄ 37 ½ Cr GvÀÛgÀ - zÀQët 75 Cr d«ÄãÀÄ PÀæAiÀÄ¥ÀvÀæzÀAvÉ EgÀÄvÀÛzÉ.
¤ÃªÀÅ ¨ÀsƸÁé¢üãÀzÀ d«Äâ£À°è PÀlÖqÀ PÀlÄÖwÛgÀĪÀÅzÁV ¥ÁæeÉPïÖ qÉÊgÉPÀÖgï £ÁåµÀ£¯À ï ºÉ滃 CxÁjn D¥sï EArAiÀiÁ gÀªgÀ ÀÄ vÀªÀÄä ¥ÀvÀæzÀ°è w½¹gÀÄvÁÛgÉ. DzÀÄzÀjAzÀ, ¤ÃªÀÅ ¨ÀsƸÁé¢üãÀªÁVgÀĪÀ d«Ää£À°è PÀlÖqÀ ¤ªÀiÁðtªÀ£ÀÄß PÀÆqÀ¯Éà ¤°è¸ÀvPÀ ÀÌzÀÄÝ ºÁUÀÆ ¨ÀsƸÁé¢üãÀªÁVgÀĪÀ d«ÄãÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ zÁR¯ÉAiÀÄAvÉ G½AiÀÄĪÀ d«ÄãÀÄ ¥ÀǪÀð - ¥À²ÑªÀÄ 11.30 «Äà GvÀÛgz À ° À è ¥ÀǪÀðzÀ PÀqÉ 11.80 «ÄÃlgï ªÀÄvÀÄÛ ¥À²ÑªÀÄzÀ PÀqÉ 12.70 «ÄÃlgï d«ÄãÀÄ ©lÄÖ G½PÉ d«Ää£À°è gÁ¶ÖçÃAiÀÄ ºÉzÁÝj- 4 gÀ «vÀÛgÀuUÉ É F PÀÆqÀ¯É ªÀ»¹PÉÆqÀ®Ä ¸ÀÆa¹zÉ. vÀ¦àzÀ°è PÁ£ÀÆ£ÀÄ jÃvÀå PÀæªÀÄ vÉUÉzÀÄPÉÆAqÀÄ d«ÄãÀ£ÀÄß vÉgÀªÀÅUÉƽ¸À¯ÁUÀĪÀÅzÉAzÀÄ w½AiÀÄĪÀÅzÀÄ"16 L.A.C. No.125/2008
Measurement of acquired property as mentioned in Ex.P.21 by the respondent No.1 as East west 11.30 meters and North south on eastern side 10.80 meters and on western side 10 meters. From calculating the same it comes 117.52 sq. meters. But not 107 sq. meters as contended by the respondent No.1. Therefore, it is clear that the respondent No.1 has acquired the land and building of the claimant is 117.52 sq. meters out of 260.83 sq. meters. I am of the opinion that, the respondents have not disputed issue of Ex.P.21 and contents of the said document. Further I am of the opinion that, in para No.1 of Ex.P.21, the respondent No.1 has admitted the measurement of the property belongs to the claimant as per his sale deed.
.19. In the claim petition and PW.1 in his examination-in-chief specifically stated that actually the respondent No.1 has acquired the property in CTS No.1172 measuring 117.52 sq. meters but not 107 sq. meters. In Ex.P.14 also mentioned the same. It is noticed that after issue of 4(1) notification, on 10.04.2000 17 L.A.C. No.125/2008 the claimant has submitted statement of objections. In para 3 of the said objection he has specifically stated that the extent required for the purpose shown as 107 sq. meter is not correct. It is far in excess of 107 sq. meters which includes vacant site and portion of the building. It was not duly notified in the preliminary notification and it is necessary to conduct the survey and to fix the proper boundaries and extent of properties require. It is pertinent to note that the contention taken by the claimant in the claim statement, in his examination in chief, Ex.P.14, objections to 4(1) application dated 10.04.2000 that the respondent No.1 actually acquired the portion of his property measuring 117.52 sq. meters but not 107 sq. meters is not at all challenged by the respondents. I am of the opinion that the contention of the claimant is remained unchallenged. I am of the opinion that, the contention of the claimant that the respondent No.1 acquired excess land and building of 10.52 sq. meters is supported by oral and documentary evidence. Further I am of the opinion that the contention 18 L.A.C. No.125/2008 of the claimant that the respondent No.1 acquired excess extent of 10.52 sq. meters is supported by Ex.P.21 issued by the respondent No.1. From the above discussion, I come to the conclusion that the claimant has proved that the respondent No.1 acquired excess extent of property measuring 10.52 sq. meters. Hence, I answer the point No.2 in the affirmative.
.20. Point No.3 and 4: These two points are inter- connected. For avoiding repetition of discussion, I have taken up these two points together for consideration.
.21. The claimant contended that, the market value fixed by the respondent to the acquired property is not correct and it is meager. Market value fixed by the respondent @ Rs.1,614/- per sq. meter is contrary to the provisions of Sections 23 and 24 of the L.A. Act. He further contended that, during award enquiry proceedings, he has submitted the claim statement and seeking compensation @ Rs.2,000/- per sq. feet. But without giving an opportunity, the respondent has fixed 19 L.A.C. No.125/2008 the market value for a sum of Rs.1,614/- per sq. meter. He further contended that the respondent wrongly relied upon the Government notification in-respect of value of building, passed an award is to much on the lower side. He further contended that, the respondent is arrayed as lying upon Government order dated 03.12.1998 in RD.548 MUNOMU 1998 which relates to the market value of property falling within the jurisdiction of Sub registrar, Bengaluru North Taluka to the gramathana/industrial site.
.22. He further contended that the acquired property belongs to him is including the land and building. Hence, there is no nothing exaggeration of him claiming rate at Rs.2000/- per sq. feet. The respondent No.1 ought to have fixed the market value at Rs.4304/- per sq. meter instead of Rs.1,614/- sq. meter. He further contended that the acquired property is abutting to NH-4, within the area of industrial suburb, Bengaluru - Tumkur road. As per the notification dated 03.12.1998 in RD 548 MUNOMU 1998 over and above rate fixed there 20 L.A.C. No.125/2008 under if the site is commercial site, to the market value there-under additional 50% shall be added and further if such commercial site is attached to NH-4 another 50% shall have to be added. PW.1 in her examination-in-chief reiterated the above said averments.
.23. I have perused the documentary evidence produced by the claimant. Ex.P.1 is certified copy of sale deed dated 15.03.1978. It discloses that the claimant purchased the property bearing Sy.No.45/6, panchayath Khatha No.282, measuring East to West 37 ½ sq. feet and North to South 75 sq. feet, situated at Peenya village. Ex.P.2 and Ex.P.3 are the demand register extracts of the acquired property, which are disclosing that the claimant purchased the property from its owner namely Raghunatha Singh. Exs.P.4, 5, 17 and 18 are the tax paid receipts in the name of claimant. Ex.P.6 is the tax assessment extract belongs to the property No.282, new No.44, is in the name of claimant. Ex.P.7 is the special notice issued by the BBMP under Section 147 of KMC Act, 1976, to the claimant for assessment of tax to his 21 L.A.C. No.125/2008 property. Ex.P.8 is the sketch copy of detail mapping of City Survey, Bengaluru the area of Peenya village in- respect of acquired property.
.24. Ex.P.9 is certified copy of general award dated 01.12.2003 passed by the S.L.A.O. Ex.P.10 is the award notice issued under Section 12(2) of L.A. Act issued to the claimant. In the award it is mentioned that, the respondent No.1 has made spot inspection of the acquired properties, inspected the nature of the properties, obtained documents from the Sub-registrar office, Bengaluru North taluk in-respect of sale of properties from 25.07.1998 to 14.01.2000 and fixed compensation to the acquired property at Rs.1,614/- per sq. meters. On the basis of report from the Technical department he has fixed value of the building for Rs.3,75,858/-.
.25. Ex.P.11 is the representation dated 26.10.2002 by the claimant to the S.L.A.O. He informed that he purchased the property on 15.03.1978 from one 22 L.A.C. No.125/2008 Raghunatha Singh, thereafter, the Khatha has been changed in his name and paid tax. He further stated that preliminary notification was issued in the name of his vendor namely Raghunatha Singh, in-spite of his representation 6(1) notification also issued in the name of the said Raghunatha Singh. Hence, I requested to change his name in the record and made transaction with him in-respect of acquired property. Ex.P.12 is 18(1) application filed by the claimant to the S.L.A.O., and requested to refer the matter to the City Civil Court. Ex.P.13 is certified copy of the order passed by this court in L.A.C. No.13/2006 dated 27.02.2008. As per the petition filed by the claimant under Section 18(3)(b) of L.A. Act, after considering the case on merits, this court allowed the said petition and directed the respondent to refer the matter to this court.
.26. Ex.P.15 is the detailed valuation of the commercial complex building belongs to the claimant bearing Khatha No.44, issued by one B. Aneel Babu, Registered Civil Engineer. Ex.P.19 is the letter dated 23 L.A.C. No.125/2008 07.05.2003 issued by the office of Executive Engineer, National High way Division, Nruputhunga road, Bengaluru to the S.L.A.O. (respondent No.1) of this case. It is directed to the S.L.A.O., to prepare valuation of the building in the acquired lands with adding 50% as per Government order No:RD:548:98 dated 03.12.1998. Accordingly, the Executive Engineer, NH Division, Bengaluru prepared valuation of the building in question for a sum of Rs.3,75,858/- with 50% extract as per the above mentioned Government order and totally fixed Rs.5,63,787/-. Ex.P.20 is the letter issued by the Executive Engineer, No.1, Building Division, Bengaluru and Executive Engineer, National High-way Division, K.R. circle, Bengaluru, for adopting above mentioned government order and fixed the market value of building in the acquired lands.
.27. I have perused the contention taken by both side. The state has power to acquire the property of citizen compulsory for public purpose. On the other hand, it is duty and obligation of the state to pay the 24 L.A.C. No.125/2008 compensation to the property owners. In 18 reference while determining the enhancement of compensation, 3 methods of valuation or generally adopted namely opinion of experts, sales statistics method and capitalization method. In the case of hand, the claimant has not produced documentary evidence to decide this case on expert opinion and statistical method. Acquired property is not agricultural land. Hence, the question of considering this case on capitalization method will not arise. It is well settled law that, the claimant has to prove his case with cogent documentary evidence for enhancement of compensation. In the case on hand, the claimant has not produced the documents for determination of market value on the basis of statistical method. He has not produced expert's opinion for determination of market value of the land. Therefore, this court left with no alternative as to apply the principle of guesstimation and some sort of guess work to determine the market value of the acquired property. In this context, I relied upon the decision of the Hon'ble Supreme 25 L.A.C. No.125/2008 court reported in (2011) 6 SCC 47 (Trishala Jain and another Vs. State of Uttaranchal and another).
.28. I have perused Ex.P.9 of the award. The respondent No.1 (S.L.A.O.) has taken into consideration of the value of acquired property on the basis of sale of properties in the area of acquired lands 3 years prior to the preliminary notification. He received the documents from the Sub-registrar office from the year 1998 to 2000 and fixed the market value of the acquired property at Rs.1,614/- per sq. meter. I have perused Ex.P.20 letter by Executive Engineer, No.1, Building Division, Bengaluru to the Executive Engineer, National High-way Division, K.R. circle, Bengaluru. It is mentioned in the said document that while fixing the compensation to the structure existing in the acquired property, they have to adopt the Government Gazette in No.RD;548- MUNOMU:98 dated 0312.1998. Ex.P.20(a) is certified copy of Gazette notification dated 04.12.1998 issued by the Government of Karnataka. It is issued in-respect of the market valuation list of office of the Sub-registrar, 26 L.A.C. No.125/2008 Yeshavanthapura Hobli, Bengaluru North Taluka. Sl. No.42 in the said document relates to Peenya village. It is mentioned that, market value of the site (gramathana/industrial) is fixed at Rs.150/- per sq.feet and Rs.15,00,000/- per acre in-respect of the land. I am of the opinion that, except Ex.P.20(a), the claimant has not produced the materials to show that the acquired property was valued at Rs.2,000/- per sq. feet or Rs.4,304/- per sq. meter as on the date of preliminary notification. It is noticed that, relying on Ex.P.20(a) of the Government notification, the respondent No.1 has fixed the market value at Rs.1,614/- sq. meters (Rs.150/- per sq. feet).
.29. From perusal of the records, it is admitted fact that the acquired property is attached to the NH-4 and it is fully developed area. In Ex.P.9 of award itself it is mentioned that the acquired properties are within the limits of BBMP area, very nearby Yeshavanthapura, attached to Bengaluru -Tumkur National highway-4, having all public amenities and fully developed. In the 27 L.A.C. No.125/2008 cross-examination of PW.1, the respondents' side suggested that the respondent No.1 has fixed the market value as on the date of preliminary notification, therefore, he is not entitle for enhancement of compensation. It was further suggested that his claim for enhancement of compensation is not supported by documentary evidence. But the PW.1 has denied the same. I am of the opinion that in the cross-examination of PW.1 nothing has been elicited by the respondents' side. It is true that, the respondents 1 and 2 have not adduced oral evidence and produced documentary evidence. But it is well settled law that duty cast upon the claimant to prove the case for enhancement of compensation to the property in question. It is further mentioned that enquiry was made in the local and found the properties are sold in the said area at Rs.1,000/- per sq. feet. It is further mentioned that no documents available to hold that properties were sold Rs.1,000/- per sq. feet. Therefore, the respondent No.1 fixed Rs.1,614/- per sq. feet to the acquired land. 28 L.A.C. No.125/2008
.30. It is noticed that, on 14.03.2019 this court passed judgment and award in L.A.C. No.35/2007. In the said case, the respondent No.1 (S.L.A.O.) fixed the market value at Rs.1,614/- per sq. meter. After considering the case on merits, this court enhanced the market value @ Rs.1,000/- per sq. feet or Rs.10,764/- per sq. meter instead of Rs.150/- sq. feet or Rs.1,614/- sq. meter with all statutory benefits. I have carefully perused the judgment and award in L.A.C. No.35/2007 with present case. From going through the same, it is clear that preliminary notification issued in both cases are one and the same i.e., on 23.12.1999, both properties acquired for the purpose of widening NH-4 and both properties are situated at Peenya village. Therefore, I am of the opinion that, to be considered this case on the basis of previous judgment passed by this court in L.A.C. No.35/2007 is required. In this context, I relied upon the decision of our Hon'ble High Court of Karnataka reported in ILR 2003 Karnataka 2336 (State of Karnataka by Special Land Acquisition Officer and others Vs. 29 L.A.C. No.125/2008 Mallappa and others). In the said case, the Hon'ble court held as under:
"Land Acquisition Act, 1894 (Central Act No.1/1994)-Section 54(2)-Enhancement of compensation made by 1st appellate court is sought to be challenged by the State- enhancement was made on the basis of judgment and award made by the court in similar other cases-wherein, the similar nature of the lands are adjoining villages acquired under the same notification and for the same purpose-held on facts-uniform rate of compensation for all the acquired lands which are similarly situated to the adjoining villages cannot be faulted, liable to be confirmed."
.31. As discussed above, this court in L.A.C. No.35/2007 passed judgment and award on merits and enhanced the market value of the acquired property at Rs.1,000/- per sq. feet or Rs.10764/- per sq. meter instead of Rs.150/- sq. feet or Rs.1,614/- per sq. meter with all statutory benefits. The acquisition notification of properties in the present case and in L.A.C. No.35/2007 30 L.A.C. No.125/2008 are one and the same, both properties acquired for the same purpose and both properties are situated in the same village. Hence, I come to the conclusion that, on the basis of previous judgment and award passed by this court in L.A.C. No.35/2007 to be fixed the market value in the present case is just and necessary. Therefore, I come to the conclusion that, the claimant is entitle for enhanced compensation Rs.1,000/- per sq. feet or Rs.10764/- per sq. meter instead of Rs.150/- sq. feet or Rs.1,614/- per sq. meter with all statutory benefits. Further, I come to the conclusion that the market value fixed by the S.L.A.O., is inadequate and meager and it has to be enhanced as mentioned above. As discussed in the point No.2, that though the respondent acquired land and building belongs to the claimant to an extent of 107 sq. meters, actually he acquired 117.52 sq. meters. Therefore, I come to the conclusion that the claimant is entitle enhanced compensation amount in-respect of 117.52 sq. meters with all statutory benefits. 31 L.A.C. No.125/2008
.32. It is the case of the claimant that the market value of the building existing in the acquired property fixed by the respondent No.1 for a sum of Rs. 3,75,658/- is not correct. Deduction of the depreciation to the building is not correct. He further stated that, as per his representation, the respondent referred the matter to the Asst. Executive Engineer, National Highway, Sub- division, Bengaluru for fixing the market value of the building as per the Government order dated 03.12.1998 in No.RD.548 MUNOMU/1998. Without giving an opportunity to him, the technical department fixed the market value and submitted his report. They have classified the building as Type-B with RCC roof slabs and foundation as CC + SS masonry, flooring with cement concrete, super structure with BB masonry in CM roof RCC, wood work for doors and windows, steel doors and windows electrification work as ordinary and water as ordinary + bore-well and for the year of construction by local enquiry. He further stated that, the year of construction is 1986 and he has calculated the age of 32 L.A.C. No.125/2008 building as 14 years. The claimant further stated that according to him, the age of building is 12 years.
.33. He further stated that, the Technical Department has taken the plinth area at 121.80 sq. feet and applying the Government order dated 03.12.1998 the rate per sq. meter has been taken as Rs.3,228/- by adding 16.01% extra for 1999-2000 which comes to Rs.516.80.he has fixed the market value of the building at the rate of Rs.3,744.80 per sq. meter and thus having fixed the said rate the total market value of the building arrived at by him is Rs.4,56,117/- and for this the said Technical Department having said that the building is provided with electrification, water both ordinary and bore-well and sanitation added to the above market value
- for electrification work Rs.22,806/- for bore-well Rs.19,800/-, 5% for water and 3% for sanitation. Thus, the total amount arrived by the Technical Department is Rs.4,98,725/- and out of this amount the Technical Department have illegally deducted an amount of Rs.1,22,865/- as depreciation for 14 years at the rate of 33 L.A.C. No.125/2008 Rs.2% and brought down the building value to Rs.3,75,658/- and to this amount by applying the Government order dated 03.12.1998 added 50% extra for property attached to the National Highway. Thus the total net amount for the building acquired, the Technical Department has arrived at Rs.5,63,787/- which the petitioner at this stage itself submits that as regards the building acquired, deduction towards depreciation is incorrect and illegal in as much as in the first place there cannot be any depreciation in-respect of the properties acquired by respondent since the same was acquired for the purpose of demolition and formation of road and the building so acquired as such cannot be put to any use by respondent as it is. Therefore deduction made is illegal and incorrect and in the second place even if this Hon'ble court were to come to the conclusion that depreciation is to be deducted then the depreciation has to be calculated not for 14 years but for 12 years and not at the rate of 2% but at the rate of 1% only. PW.1 in his examination-in- chief reiterated the above said averments. 34 L.A.C. No.125/2008
.34. To prove his case, the claimant has produced Ex.P.15 detailed valuation of the commercial complex building belongs to him, which was given by one B. Aneel Babu, Registered Chief Engineer. After calculating the existing building, the said Engineer reported that it is value of Rs.61,00,000/-. I have carefully perused Ex.P.15 and found that it is no-where mentioned the date of inspection and report. To prove Ex.P.15, the claimant has not chosen to examination of the said Engineer who issued the same. The claimant contended that he purchased the property in question in the year 1978. During that time, it was vacant site, in the year 1986 he commenced the construction of non-residential commercial building with ground floor with a total plinth area of 1930 sq. feet and first floor with plinth area of 2118sq. feet and completed the construction during the year 1988. I am of the opinion that, to prove the said fact the claimant has not produced any documentary evidence. He has not produced licence and approved plan for construction of non-residential building in his 35 L.A.C. No.125/2008 property, he has not produced estimate of cost in the year 1986 for construction of building. He has not produced completion certificate. Therefore, I am of the opinion that, in the absence of oral evidence of the Engineer and other supported documents as stated supra, Ex.P.15 report cannot be looked into. Further I am of the opinion that, the case of claimant that as on the date of preliminary notification, the building acquired by the respondent was valued Rs.61,00,000/- is not supported by documentary evidence. I have perused Ex.P.9 of the award passed by the respondent No.1. He has fixed the market value of the building in the acquired property at Rs.3,75,858/- with all statutory benefits. As per Ex.P.19 of the report for valuation of the building by the Executive Engineer, NH Division, Bengaluru fixed the value of the building for a sum of Rs.3,75,858/- and added 50% extra as per Government order No.RD/548/98 dated 03.12.1998 and ultimately fixed Rs.5,63,787/-. But while passing an award the S.L.A.O. has not added the above said 50% to the amount of Rs.3,75,858/-. It is admitted fact that and 36 L.A.C. No.125/2008 also mentioned in Ex.P.19 that the portion of the building acquired is measuring 121.8 sq. meters, it is RCC roof, having all facilities like water, electricity, sanitary and also bore-well. I am of the opinion that the S.L.A.O. has failed to follow the above mentioned Government order while awarding compensation to the building. Therefore, I am of the opinion that whatever award passed by the respondent No.1 to the building is meager, inadequate and it is to be enhanced. From looking into the facts and circumstances of the case, nature of the building, I come to the conclusion that to be enhanced the compensation in-respect of the building in the acquired property at Rs.8,50,000/- in-stead of Rs. 3,75,858/- with all statutory benefits is required.
.35. It is the contention of the claimant that, he is entitled for compensation of Rs.60,000/- in-respect of expenses that he has incurred for shifting after demolition of the building in the acquired property. I am of the opinion that to prove the said fact the claimant has not produced any documentary evidence. However, it is 37 L.A.C. No.125/2008 noticed that the respondent No.1 acquired the property of the claimant measuring 117.52 sq. meters it includes land and building. The acquired portion of the building demolished for widening NH-4. Therefore, I come to the conclusion that the claimant is entitle for Rs.10,000/- for expenses incurred for shifting demolition of building materials.
.36. It is further case of the claimant that deduction towards TDS by the respondent No.1 to the amount of compensation is illegal. He had approached the Hon'ble High Court of Karnataka in W.P. No.15844/2005 (LA- RES) and challenged the deduction of income tax by the respondent No.1 in the award. On 06.02.2007 the Hon'ble High Court of Karnataka were allowed the said writ petition and holding that deduction of 10% in the compensation towards income-tax is illegal and not justified. It is further ordered that giving option to him ( claimant) to approach the respondent to release of 10% of compensation deducted in the income-tax, to approach before the Income tax Department. He further contended 38 L.A.C. No.125/2008 that he made representations to the respondent and Income-tax department for refund of TDS amount. But the respondent has not been paid income-tax amount of Rs.95,190/-. Hence, he contended that he is entitle for the said amount from the respondent.
.37. I have perused the above said contention of the claimant with case on hand. Ex.P.10 is the award notice issued by the respondent No.1 under Section 12(2) of L.A. Act. It is mentioned that the respondent No.1 passed an award in total compensation of Rs.9,51,903/-. Out of the same, he withhold 10% for the purpose of payment of income tax for a sum of Rs.95,190/-. Thereafter, he paid balance award amount of Rs.8,56,913/- to the claimant. Ex.P.16 is certified copy of the order passed in W.P. No.15844/2005 (LA-Res ). The claimant has challenged the order of the respondent No.1 for withhold 10% compensation towards income tax. On 06.02.2007 the Hon'ble court passed an award and allowed the said Writ petition. Operative portion of the Hon'ble court reads as under:
39 L.A.C. No.125/2008
"Annexures-B, C and D under Section 12(2) of the Act stands quashed in so far as it relates to deduction of 10% of the compensation towards Income Tax.
Option is given to the petitioners either to approach respondent No.2 for the release of compensation amount or the Income Tax Department, if the amount is remitted to the Department."
.38. From careful perusal of the records and Hon'ble court ordered as stated supra, it is clear that the respondent No.1 has withhold 10% in the award amount i.e., Rs.95,190/- and remitted to the Income Tax department. As stated above, the Hon'ble High Court of Karnataka were held that the deduction of amount of compensation by the respondent No.1 is illegal and quashed the order of the respondent No.1 for withholding 10% of the compensation amount towards income-tax. Therefore, I come to the conclusion that the respondent No.1 is liable to pay Rs.95,190/- to the claimant towards deduction of 10% income-tax in the award amount. 40 L.A.C. No.125/2008
.39. During the time of argument, the learned counsel for the claimant submitted that now the claim of claimant is covered by Right to Fair Compensation, Transparency in Land Acquisition, Rehabilitation and re- settlement Act, 2013 (Central Act 30 of 2013). The Government acquired the lands for its own use, hold and control the public sector undertaking and for public purpose and shall include the purpose enumerated in clause (a) to (f) of Section 2(1) of the Act. The above said Act came into force on 26.09.2013 in notification No.13011/01/2013-LRD dated 19.12.2013. In the present case, the award has been passed by the respondent No.1 has not accepted by the respondent and he has received the award amount under protest. Proceedings are pending for more than 5 years. Therefore, the claimant is entitle to claim the benefits of provisions of Central Act 20 of 2013.
.40. I have perused the above said contention of the claimant's side. Admittedly, the respondent No.1 acquired property of the claimant for widening of NH-4. 41 L.A.C. No.125/2008 Preliminary notification was issued on 23.11.1999, final notification was issued on 09.04.2001 and award passed on 28.02.2014. As per the reference filed by the claimant and the order passed by this court in L.A.C. No.13/2006 dated 27.02.2008, the respondent submitted the reference before this court in the year 2008. Right to Fair Compensation, Transparency in Land Acquisition, Rehabilitation and Re-settlement Act, 2013 (Central Act 30 of 2013) came into force on 01.01.2014. In this case, the property of claimant acquired under old Acquisition Act 1894, the award passed and referred the matter to this court on the said Act. Therefore, I am of the opinion that, the claimant is not entitle to claim benefits under Rehabilitation and Re-settlement Act, 2013. From the above discussed, I come to the conclusion that the present reference is liable to be partly allowed. Hence, I answer point No.3 and 4 in partly affirmative.
.41. Point No.5: In view of my findings on points 1 to 4, I proceed to pass the following:-
42 L.A.C. No.125/2008
ORDER The Reference made by the S.L.A.O./respondent No.1 u/s. 18 of L.A. Act 1894, is partly allowed.
The claimant is entitle for market value of his acquired property measuring 117.52 sq. meters at the rate of Rs. 1000/- per sq.ft., or Rs.10,764/- per sq. meter, instead of Rs.150/- per sq. feet and Rs.1,614/- per sq. meter, as awarded by the respondent.
Claimant is entitle market value of building in the acquired property at
Rs.8,50,000/- instead of Rs,3,75,858/-
The claimant is entitle for Rs.10,000/- in-respect of expenses incurred by him for shifting demolition of building materials.
The claimant is entitle for Rs.95,190/- in- respect of amount withheld towards income tax.
Further, the claimant is entitled for additional market value under Section 23(1)A of Land Acquisition Act @ 12% p.a. on the enhanced market value from the date of preliminary notification till the date of taking 43 L.A.C. No.125/2008 possession or the date of award whichever is earlier.
Further, the claimant is entitled for solatium at the rate of 30% p.a. on the enhanced market value under Section 23(2) of Land Acquisition Act.
Further, the claimant is entitled for interest at the rate of 9% p.a. on the enhanced market value, solatium and additional market value for a period of one year from the date of taking possession of acquired land and further interest @ 15% p.a. for subsequent years till deposit of entire compensation amount.
The amount already paid by the respondent No.1/S.L.A.O., if any, shall be deducted in the enhancement of the market value now awarded.
Advocate fee is fixed at Rs.500/-
Draw award accordingly.
(Dictated to the JW, transcribed by her, corrected by me and then pronounced in open Court on this the 26th day of August, 2019) (R.Y. Shashidhara), II Addl. City Civil and Sessions Judge, Bengaluru.44 L.A.C. No.125/2008
ANNEXURE
1. WITNESS EXAMINED FOR CLAIMANT:
P.W.1 : P.M. Chowdappa
2. DOCUMENTS MARKED FOR THE CLAIMANT:
Ex.P.1 : Certified copy of sale deed dated
15.03.1978
Exs.P.2-3 : 2 tax demand register extracts
Exs.P.4-5 : 2 receipts
Ex.P.6 : Book extract issued by Revenue
Department
Ex.P.7 : Notice issued by BBMP
Ex.P.8 : Survey sketch
Ex.P.9 : Order dated 01.12.2003
Ex.P.10 : Award notice dated 12.04.2005
Ex.P.11 : Representation copy
Ex.P.12 : Office copy of application under
Section 18 of L.A. Act
Ex.P.13 : Judgment copy dated 27.02.2008
Ex.P.14 : Office copy of notice dated 15.11.2005
Ex.P.14(a) : Postal receipt
Ex.P.14(b) : Postal acknowledgement
45 L.A.C. No.125/2008
Ex.P.15 : Valuation report
Ex.P.16 : Order copy dated 06.02.2007 in W.P.
No.15844/2005
Exs.P.17-18: 2 receipts
Ex.P.19 : Letter dated 07.05.2003
Ex.P.20 : Letter dated 05.08.1999
Ex.P.20(a) : Copy of notification
Ex.P.21 : Notice copy dated 28.10.2005
3. WITNESSES EXAMINED FOR THE RESPONDENTS:
Nil
4. DOCUMENTS MARKED FOR RESPONDENTS:
Nil (R.Y. Shashidhara), II Addl. City Civil and Sessions Judge, Bengaluru.Digitally signed by RACHENAHALLI Y SHASHIDHARA
RACHENAHALLI Y DN: cn=RACHENAHALLI Y SHASHIDHARA,ou=HIGH COURT OF SHASHIDHARA KARNATAKA,o=GOVERNMENT OF KARNATAKA,st=Karnataka,c=IN Date: 2019.08.29 10:23:26 IST 46 L.A.C. No.125/2008