Karnataka High Court
M/S Bagalkot Cement And Industries ... vs The Special Land Acquisition Officer, on 23 September, 2013
Bench: K.L.Manjunath, A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23rd DAY OF SEPTEMBER, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
MISCELLANEOUS FIRST APPEAL No.20112 OF 2011 [LAC]
C/w.
MISCELLANEOUS FIRST APPEAL Nos.20113 to 20120 OF
2011 [LAC]
BETWEEN:
M/S BAGALKOT CEMENT & INDUSTRIES LTD.,
(FORMERLY CEMENT DIVISION OF BAGALKOT
UDYOG LTD.),
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
AND HAVING ITS REGD. OFFCE AT
6TH FLOOR, BLOCK NO. 1,
STADIUM HOUSE, VEER NARIMAN ROAD,
CHURCH GATE, MUMBAI-500020
& ITS PRODUCTION FACILITY
AND WORKS AT
BAGALKOT-587111.
REP HEREIN BY ITS
ASSISTANT MANAGER-LEGAL
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& AUTHORIZED REPRESENTATIVE,
MR.A.R.NIDASESHI.
... APPELLANT
[COMMON IN ALL APPEALS]
(BY SRI ASHOK HARANAHALLI, SR. COUNSEL AND
SRI. L.A. RUBENS ADV. FOR
SRI. S.C.HIREMATH ADVS.)
AND:
THE SPECIAL LAND ACQUISITION OFFICER,
BAGALKOT TOWN DEVELOPMENT AUTHORITY
(BTDA), BAGALKOT.
... RESPONDENT
[COMMON IN ALL APPEALS]
(BY SRI. MAHESH WODEYAR, ADDL. GOVT.ADV)
MFA NO.20112/2011 IS FILED U/SEC. 54 OF THE
LAND ACQUISITION ACT, 1894, AGAINST THE JUDGMENT
AND AWARD DATED:30/09/2010 PASSED IN L.A.C.
NO.173/2003, ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, BAGALKOT, PARTLY ALLOWING THE
REFERENCE PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.20113/11 IS FILED U/SEC. 54(1)OF THE
LAND ACQUISITION ACT, 1894, AGAINST THE JUDGMENT
AND AWARD DATED:30/09/2010 PASSED IN L.A.C.
NO.177/2003, ON THE FILE OF THE II ADDITIONAL
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SENIOR CIVIL JUDGE, BAGALKOT, PARTLY ALLOWING THE
REFERENCE PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.20114/11 IS FILED U/SEC. 54(1)OF THE
LAND ACQUISITION ACT, 1894, AGAINST THE JUDGMENT
AND AWARD DATED:30/09/2010 PASSED IN L.A.C.
NO.178/2003, ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, BAGALKOT, ALLOWING THE
REFERENCE PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.20115/11 IS FILED U/SEC. 54(1)OF THE
LAND ACQUISITION ACT, 1894, AGAINST THE JUDGMENT
AND AWARD DATED:30/09/2010 PASSED IN L.A.C.
NO.179/2003, ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, BAGALKOT, ALLOWING THE
REFERENCE PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.20116/11 IS FILED U/SEC. 54(1)OF THE
LAND ACQUISITION ACT, 1894, AGAINST THE JUDGMENT
AND AWARD DATED:30/09/2010 PASSED IN L.A.C.
NO.180/2003, ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, BAGALKOT, ALLOWING THE
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REFERENCE PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.20117/11 IS FILED U/SEC. 54(1)OF THE
LAND ACQUISITION ACT, 1894, AGAINST THE JUDGMENT
AND AWARD DATED:30/09/2010 PASSED IN L.A.C.
NO.208/2003, ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, BAGALKOT, ALLOWING THE
REFERENCE PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.20118/11 IS FILED U/SEC. 54(1)OF THE
LAND ACQUISITION ACT, 1894, AGAINST THE JUDGMENT
AND AWARD DATED:30/09/2010 PASSED IN L.A.C.
NO.355/2005, ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, BAGALKOT, ALLOWING THE
REFERENCE PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.20119/11 IS FILED U/SEC. 54(1)OF THE
LAND ACQUISITION ACT, 1894, AGAINST THE JUDGMENT
AND AWARD DATED:30/09/2010 PASSED IN L.A.C.
NO.356/2005, ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, BAGALKOT, ALLOWING THE
REFERENCE PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.20120/11 IS FILED U/SEC. 54(1)OF THE
LAND ACQUISITION ACT, 1894, AGAINST THE JUDGMENT
AND AWARD DATED:30/09/2010 PASSED IN L.A.C.
NO.87/2007, ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE, BAGALKOT, ALLOWING THE REFERENCE
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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These appeals coming on for Hearing on IA
this day, K.L.MANJUNATH, J., delivered the
following:-
J U D G M E N T
Being not satisfied with the compensation awarded by the II Additional Senior Civil Judge, Bagalkot, in LAC Nos.173/2003, 177/2003, 178/2003, 179/2003, 180/2003, 208/2003, 355/2005, 356/2005 and 87/2007 dated 30.09.2010, the present appeals are preferred seeking enhancement of compensation.
2. Though the matters are listed for orders, by consent of parties, the appeals are taken up for final hearing.
3. Under the Preliminary Notifications dated 30.06.1999, 20.09.2003 and 28.09.2004, different extent of lands of the appellants coming under the Bagalkot Town Development Authority [BTDA] :6: were acquired for the purpose of construction of a Link Road from Bagalkot Rural Police Station to Navanagar (new township of Bagalkot) and connecting old city to Navanagar of Bagalkot. Final notifications were also issued on 17.06.2000, 04.03.2004, 08.04.2004 and 15.02.2005. The compensation was not awarded by the Land Acquisition Officer, except in LAC No.180/2003 wherein a sum of Rs.13,392=17 was awarded. The Land Acquisition Officer did not award compensation on the ground that the lands are Government lands.
4. Contending that the award passed by the Land Acquisition Officer is incorrect and further contending that the appellant is the owner of lands in question, sought a reference and were sent to the Civil Judge (Sr.Dn.), Bagalkot, to determine the market value, at the instance of the appellant. :7:
5. The appellant is an industry, known as M/s.Kanoria Industries Limited, formerly known as M/s.Bagalkot Udyog Limited, which is engaged in manufacturing of cement, extracting limestone from the lands in question. The appellant contended that the market value of the lands as on the date of Notification was at the rate of Rs.6,45,000/- per gunta on the ground that the lands in question are having a mineral "limestone" used as raw material by appellant for manufacturing cement.
6. To prove the case of appellant, the appellant relied upon the evidence of PWs-1 and 2 and Exs.P-1 to 26. On behalf of the respondent/Special Land Acquisition Officer, except marking Exs.R-1 to R-4/Land Acquisition Officer's awards, no oral or other documentary evidence was let in.
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7. PW-1, one Abbas Rajesab Nidasheshi, is working as a Law Officer and Legal Relationship Officer in the appellant industry. According to him, the lands notified for acquisition are situated within Ward No.10 of Bagalkot Municipal limits. They are adjoining to Raichur-Belgaum highway, surrounded by Bagalkot Railway Station, Government Bungalow, Colleges, Government Office, Residential localities and Navanagar- Vidyagiri. He has also deposed that the appellant Company could have extracted 8600 metric tons [for short 'MT'] of limestone per gunta of the lands under acquisition. The cost of the limestone as on the date of Notification was Rs.75/- per MT and based on the same, he contends that the market value of the lands under acquisition is Rs.6,45,000/- per gunta.
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It is also his case that the lands are having non-agricultural/industrial potentiality having limestone deposits and therefore, the value of the lands is more than Crore of rupees per acre. He has no personal knowledge about the quantity of lime deposit and the probable lime that could be extracted from the lands in question. Since, he is only a Law graduate, cannot be considered as an expert in assessing the limestone deposit.
8. PW-2 is one Lal Bahadur Maurya, who is working as a Senior Geologist in Sankalpana, Ponda, Goa, for the last two years and his qualification is M.Sc. (Geology). He contends that he is well-conversant with the minerals in Bagalkot and other Districts and that he has observed the limestone deposits situated in the lands owned by appellant at Bagalkot and in the lands taken on lease by the appellant company. He further : 10 : deposed that lands under acquisition have been covered by mining lease granted by the then Government of Mysore. The limestone is a basic raw material for manufacturing cement and the limestone deposit is a potential mineral for the appellant and that he has examined the limestone deposit.
According to him, in one gunta of the virgin area, the appellant could have extracted 8600 MT of limestone and in pit area at the rate of 6450 MT per gunta and he valued the limestone at the rate of Rs.106=56 per MT. Accordingly, he contends that the value of the lands acquired is Rs.9,16,373/- per gunta for virgin area and Rs.6,87,280/- for pit area. He has submitted the valuation report as per Ex.P-20.
9. Except the oral evidence of PWs-1 and 2 and documentary evidence relied upon by the : 11 : appellant, no contra evidence is let in by the respondent. PWs-1 and 2 have not been cross- examined effectively and the Government Advocate who appeared for the State has also not challenged the valuation report submitted by PW-2 or the manner in which the report is submitted by him to find out or to accept that it is a scientifically prepared report which can be relied upon by any court of law to determine the market value.
10. As stated supra, the evidence of PW-1 is of no assistance to determine the market value and we have also seen the conflict of version in regard to the valuation in respect of the market value of the lands in question between PW-1 and PW-2. PW-1 has stated that the value per gunta at the rate of Rs.75/- per MT of limestone would be valued at Rs.6,45,000/- per gunta. According : 12 : to the version of PW-2, the market value of limestone would be at Rs.106=56 per MT. Accordingly, he has valued the market value of the land at Rs.9,16,373/- per gunta for virgin area and Rs.6,87,280/- for pit area. The details of virgin area or pit area has not been deposed either by PW-1 or by PW-2 except marking the valuation report.
11. Be that as it may. The reference court rejected the contention of the claim in regard to the manner in which the market value has to be assessed. The reference court has determined the market value at the rate of Rs.630/- per sq.mt. in respect of first Notification, Rs.800/- per sq.mt. in respect of second Notification and Rs.880/- per sq.mt. in respect of third Notification. The reference Court has determined the market value based on the case decided in Lok-Adalath in : 13 : respect of adjoining area for different Notification and also relying upon the judgment of the High Court and Supreme Court in LAC Nos.173, 177 to 180, 208 of 2003 and giving escalation at the rate of 10% per annum.
Being not satisfied with the same, the present appeals are filed by the appellant.
12. We have heard Sri Ashok Haranahalli, learned senior counsel for the appellant and Sri.Mahesh Wodeyar, learned Additional Government Advocate for the respondent.
13. The main contention of Mr.Ashok Haranahalli is that the reference court did not follow the judgment rendered by the Supreme Court while determining the market value. According to him, considering the limestone deposit, the value of the mineral was to be : 14 : considered by the reference court while determining the market value. He further submits that the appellant is the owner of the lands in question because, the lands were notified for acquisition for the benefit of appellant company by the then State of Bombay when the area was within the State of Bombay and on account of re- organisation, the area is now within the State of Karnataka. It is also his case that the ownership of the lands vests with the appellant and that any mineral containing below the sub-soil shall vests with the appellant and the reference court was required to determine the market value based on the judgment of the Apex Court. He further submits that when the judgment was rendered by the reference Court, the reference court had no occasion to have the benefit of the judgment of the Hon'ble Supreme Court in THREESIAMMA JACOB AND OTHERS Vs. GEOLOGIST, DEPARTMENT : 15 : OF MINING AND GEOLOGY AND OTHERS [20 13 (9) SCALE 1]. Relying upon paragraph No.57 of the judgment, he contends that the Supreme Court has declared that the ownership of subsoil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process.
14. Relying upon this passage, he contends that since the trial court had no occasion to consider the application of the Judgment of Hon'ble Supreme Court, the matter requires to be reconsidered by the reference Court. In the circumstances, he requests the Court to remand the matter.
15. The learned Additional Government Advocate submits that the reference court has rightly considered the market vale of the lands in question, relying upon the judgment in respect of : 16 : the award passed in the adjoining lands pertaining to the same Bagalkot town. According to him, though the land contains limestone, the land is acquired for the formation of Link Road from Bagalkot Town Police Station to Navanagar and other places. Therefore, it has to be considered only as agricultural land and the minerals situated below the subsoil cannot be taken into account for the purpose of determining the market value.
He further submits that even if the lime deposit is there, since no permission is granted by the State of Karnataka for extracting the mineral by granting any mining lease, the contention of the appellant cannot be considered by this Court to determine the market value. He further submits that the report of PW-2 cannot be the basis to determine the market value, even if it is accepted for the sake of argument that the : 17 : appellant is the owner of the limestone, as declared by the Hon'ble Supreme Court in THREESIAMMA JACOB AND OTHERS (Supra). He further contends that the judgment of the Hon'ble Supreme Court has no application to the facts and circumstances of this case, because the Hon'ble Supreme Court while deciding the rights in respect of JENMOM lands in Malabar has delivered the judgment which decision has no application to the present facts and circumstances of the case.
16. By way of reply, Sri.Ashok Haranahalli submits that though the appellant is the absolute owner of the lands in question, the appellant had been granted two mining leases by the State of Karnataka empowering the appellant to carry on mining activity and extracting mineral for production of cement. According to him there were two mining leases under M.L. No.959 and : 18 : M.L. No.1331. Out of which, M.L. No.959 licence had come to an end and no renewal had been sought by the appellant. In regard to M.L. No.1331, a renewal application was filed in time and the same was pending consideration and as per the law, he is a deemed licencee and this aspect of the matter has not been considered by the reference court. In the circumstances, he requests the Court to reject the contention of the learned Government Advocate.
17. Having heard the learned counsel for the parties, what has to be considered by this Court is whether the contentions raised by the appellant has been considered by the reference court while determining the market value. If the contentions are not considered by the reference court, whether the matter requires to be reconsidered by the reference court afresh in the light of the decision : 19 : of the Hon'ble Supreme Court in the case of THREESIAMMA JACOB AND OTHERS (Supra).
18. The Special Land Acquisition Officer while passing an award, except in one case, in all other cases has rejected the claim of the appellant, declining to pass an award to grant compensation on the ground that these lands belong to the State of Karnataka. But, the reference Court has accepted the contention of the appellant that appellant is the owner of lands notified for acquisition and the said finding has become final, because, the State has not preferred any appeal by challenging the finding of the trial court in regard to the ownership of the land.
But, the question is that whether the determination of compensation by the reference court is just and proper and whether the : 20 : contentions raised by the appellant has been considered by the reference court or not.
19. As stated supra, the reference court has determined the market value of the lands acquired based on the compensation awarded by the Land Acquisition Officer and by the reference court in regard to the adjoining lands, which were acquired for different purposes. The reference court has also considered the escalation cost based on the market value determined by this Court and the Hon'ble Supreme Court in respect of Bagalkot Village only, which were acquired for different purposes, even for formation of Navanagar (new city) and Bagalkot old village has been submerged on account of Upper Krishna Project and the trial court has also not considered whether the appellant is entitled to claim compensation based on the limestone deposit.
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20. As rightly pointed out by Sri.Ashok Haranahalli that the trial court had no opportunity of applying the principles laid down by the Hon'ble Supreme Court in THREESIAMMA JACOB AND OTHERS case. The said judgment has been rendered on 08.07.2013. Whether the said judgment has application to the facts and circumstances of the present case or not has to be examined by the reference court only, after considering the arguments of the State.
21. Based on the evidence of PW-1 and PW-2 and report as per Ex.P-20, no court can come to the conclusion that in the subsoil of the acquired land, there is limestone and even if there is limestone, the extent of limestone deposit. The evidence of PW-2 cannot be a gospel truth to come to the conclusion that the appellant company could have extracted 8600 MT of limestone in one gunta : 22 : of virgin area and 6450 MT per gunta in pit area. Because, out of curiosity, we have calculated the quantity of limestone that could be extracted in an area of 1 ft. x 1 ft. It works out to 790 kg [i.e ., th 8,60,000/- per gunta] , which is nearly 3/4 MT per sq.ft.
22. First of all there is no material to show that there exist limestone in the entire area and as per the report submitted by PW-2, he has not conducted any separate scientific study to assess the limestone deposit and it is virtually based on the information furnished to him by the appellant company and he has not been cross-examined properly by the State also.
23. As stated supra, the evidence of PW-1 is also of no assistance to come to the conclusion that what is the extent of limestone deposit available in the lands in question. In the : 23 : circumstances, we are of the opinion that since sufficient evidence is not available on record, the matters require to be considered by the trial court afresh, in the light of the decision of Hon'ble Supreme Court, since we are handicapped on account of insufficiency of material and it is also not made known to the Court what is the extent of virgin area and also extracted area.
24. In view of the aforesaid discussion, we are of the view that if the matters are remanded, as requested by Mr.Ashok Haranahalli, learned counsel for the appellant, the ends of justice would be met, because an opportunity has to be given to both parties to adduce and place further evidence and to cross-examine PW-1 and PW-2 more effectively by the respondent. Respondent is also at liberty to examine any other expert to : 24 : show the nature of lands and the mineral available below the subsoil.
25. In the result, we pass the following:
O R D E R (I) The appeals are allowed.
(II) The judgment and award passed
by the II Additional Senior Civil
Judge, Bagalkot, in LAC
Nos.173/2003, 177/2003,
178/2003, 179/2003, 180/2003,
208/2003, 355/2005, 356/2005
and 87/2007 dated 30.09.2010
are set aside.
(III) The matters are remanded to the reference court for fresh consideration in accordance with law and in the light of the observations made herein above.
(IV) In view of the order of remand,
the court fee paid by the
appellant is ordered to be
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refunded in accordance with the
provisions of Karnataka Court
Fee and Suits Valuation Act,
1958.
(V) Parties to bear their costs.
Since the appeals are disposed of on merit, the interlocutory applications are also stand disposed of.
SD/-
JUDGE SD/ JUDGE Ct:byg/-
RK/-