Karnataka High Court
Union Of India vs Niranjanappa And Ors on 16 February, 2023
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF FEBRUARY 2023
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL No.200021/2020(LAC)
C/w
MISCELLANEOUS FIRST APPEAL No.200022/2020(LAC)
MISCELLANEOUS FIRST APPEAL No.200023/2020(LAC)
MISCELLANEOUS FIRST APPEAL No.200024/2020(LAC)
MISCELLANEOUS FIRST APPEAL No.200025/2020(LAC)
MISCELLANEOUS FIRST APPEAL No.200026/2020(LAC)
IN MFA.No.200021/2020
Between:
Union of India
Through Deputy Chief Engineer
Construction, South Central
Railways, Secundrabad
(Andhra Pradesh) Represented by
Senior Section Engineer
Construction, S.C.Railway
Secundrabad.
...Appellant
(By Sri Manvendra Reddy and
Sri Narendra M. Reddy, Advocates)
And:
1. Anneppa S/o Shivaraya
2
Age: Major, Occ: Agriculture
R/o: Village Aurad-B
Tq. & Dist: Kalaburagi-585 316
2. The Deputy Commissioner
Kalaburagi-585 102
3. The State of Karnataka
Through the Asst.
Commissioner and
Land Acquisition Officer
Kalaburagi-585 102
...Respondents
(By Sri Harshavardhan R.Malipatil, Advocate for R1;
Sri Veeranagouda Malipatil, HCGP for R2 & R3)
This MFA is filed under Section 54(1) of LAC Act,
praying to allow the appeal by setting aside the judgment
and award dated 11.07.2019 passed by learned I Addl.
Senior Civil judge, Kalaburagi in LAC No.26/2014, in the
interest of justice.
IN MFA.No.200022/2020
Between:
Union of India
Through Deputy Chief Engineer
Construction, South Central
Railways, Secundrabad
(Andhra Pradesh) Represented by
Senior Section Engineer
Construction, S.C.Railway
Secunderabad.
...Appellant
(By Sri Manvendra Reddy and
Sri Narendra M. Reddy, Advocates)
3
And:
1. Nimbanna S/o Shivaraya
Age: Major, Occ: Agriculture
R/o: Village Aurad-B
Tq. & Dist: Kalaburagi-585 316
2. The Deputy Commissioner
Kalaburagi-585 102
3. The State of Karnataka
Through the Asst.
Commissioner and
Land Acquisition Officer
Kalaburagi-585 102
...Respondents
(By Sri Harshavardhan R.Malipatil, Advocate for R1;
Sri Veeranagouda Malipatil, HCGP for R2 & R3)
This MFA is filed under Section 54(1) of LAC Act,
praying to allow the appeal by setting aside the judgment
and award dated 11.07.2019 passed by learned I Addl.
Senior Civil judge, Kalaburagi in LAC No.24/2014, in the
interest of justice and equity.
IN MFA.No.200023/2020
Between:
Union of India
Through Deputy Chief Engineer
Construction, South Central
Railways, Secundrabad
(Andhra Pradesh) Represented by
Senior Section Engineer
Construction, S.C.Railway
Secundrabad. ...Appellant
(By Sri Manvendra Reddy and
Sri Narendra M. Reddy, Advocates)
4
And:
1. Veerupakshappa S/o Anneappa
Age: Major, Occ: Agriculture
2. Pandit S/o Anneappa
Age: Major, Occ: Agriculture
3. Vishwanath S/o Anneappa
Age: Major, Occ: Agriculture
4. Gurunath S/o Anneappa
Age: Major, Occ: Agriculture
All R/o: Aurad-B Village
Tq. & Dist: Kalaburagi-585 105
5. The Deputy Commissioner
Kalaburagi-585 102
6. The State of Karnataka
Through the Asst.
Commissioner and
Land Acquisition Officer
Kalaburagi-585 102
...Respondents
(By Sri Harshavardhan R.Malipatil, Advocate for R1
to R4; Sri Veeranagouda Malipatil, HCGP for R5&R6)
This MFA is filed under Section 54(1) of LAC Act,
praying to allow the appeal by setting aside the judgment
and award dated 11.07.2019 passed by learned I Addl.
Senior Civil judge, Kalaburagi in LAC No.25/2014, in the
interest of justice and equity.
5
IN MFA.No.200024/2020
Between:
Union of India
Through Deputy Chief Engineer
Construction, South Central
Railways, Secundrabad
(Andhra Pradesh) Represented by
Senior Section Engineer
Construction, S.C.Railway
Secundrabad.
...Appellant
(By Sri Manvendra Reddy and
Sri Narendra M. Reddy, Advocates)
And:
1. Vijayakumar S/o Nagappa
Age: Major, Occ: Agriculture
R/o: Village Aurad-B
Tq. & Dist: Kalaburagi-585 326
2. The Deputy Commissioner
Kalaburagi-585 102
3. The State of Karnataka
Through the Asst.
Commissioner and
Land Acquisition Officer
Kalaburagi-585 102
...Respondents
(By Sri Harshavardhan R.Malipatil, Advocate for R1;
Sri Veeranagouda Malipatil, HCGP for R2&R3)
This MFA is filed under Section 54(1) of LAC Act,
praying to allow the appeal by setting aside the judgment
and award dated 11.07.2019 passed by learned I Addl.
6
Senior Civil judge, Kalaburagi in LAC No.19/2014, in the
interest of justice and equity.
IN MFA.No.200025/2020
Between:
Union of India
Through Deputy Chief Engineer
Construction, South Central
Railways, Secundrabad
(Andhra Pradesh) Represented by
Senior Section Engineer
Construction, S.C.Railway
Secundrabad.
...Appellant
(By Sri Manvendra Reddy and
Sri Narendra M. Reddy, Advocates)
And:
1. Niranjanappa S/o Sidramappa
Age: Major, Occ: Agriculture
2. Sharanabasappa S/o Sidramappa
Age: Major, Occ: Agriculture
Both R/o: Aurad-B Village
Tq. & Dist: Kalaburagi-585 105
3. The Deputy Commissioner
Kalaburagi-585 102
4. The State of Karnataka
Through the Asst.
Commissioner and
Land Acquisition Officer
Kalaburagi-585 102
...Respondents
7
(By Sri Harshavardhan R.Malipatil, Advocate for R1&
R2; Sri Veeranagouda Malipatil, HCGP for R3&R4)
This MFA is filed under Section 54(1) of LAC Act,
praying to allow the appeal by setting aside the judgment
and award dated 11.07.2019 passed by learned I Addl.
Senior Civil judge, Kalaburagi in LAC No.20/2014, in the
interest of justice and equity.
IN MFA.No.200026/2020
Between:
Union of India
Through Deputy Chief Engineer
Construction, South Central
Railways, Secundrabad
(Andhra Pradesh) Represented by
Assistant Executive Engineer,
Construction, S.C. Railway, Gulbarga.
...Appellant
(By Sri Manvendra Reddy and
Sri Narendra M. Reddy, Advocates)
And:
Ramrao S/o Bhimarao Patawari by LRs.
1. Champabai W/o Late Ramrao
Age: 65 years, Occ: Agriculture
2. Arunkumar S/o Late Ramrao
Age: 48 years, Occ: Agriculture
3. Anilkumar S/o Late Ramrao
Age: 35 years, Occ: Agriculture
All R/o: Village Aurad-B
Tq. & Dist: Kalaburagi-585 105
8
4. The Deputy Commissioner
Kalaburagi-585 102
5. The State of Karnataka
Through the Asst.
Commissioner and
Land Acquisition Officer
Kalaburagi-585 102
...Respondents
(By Sri Harshavardhan R.Malipatil, Advocate for R1
to R3; Sri Veeranagouda Malipatil, HCGP for R4&R5)
This MFA is filed under Section 54(1) of LAC Act,
praying to allow the appeal by setting the judgment and
award dated 11.07.2019 passed by learned I Addl. Senior
Civil judge, Kalaburagi in LAC No.18/2014, in the interest
of justice and equity.
These MFAs having been heard and reserved on
25.01.2023 and coming on for pronouncement this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
The beneficiary of the acquired land, i.e., South Central Railways is the appellant in all the appeals.
2. The material facts are that the lands belonging to the respondents/claimants (land losers) in all the appeals in Sy. Nos. 34/R, 34/AA, 34/A, 9 34/Aa, 35/2, 35/Aa (35/2), (35/3), 27/A Part, 29/A, 41/2 Part 41(41/Aa) and 41/2 of Village Aurad- B, Taluka and District Kalaburagi were notified under section 4(1) of the Land Acquisition Act in the Official Gazette dated 22.7.2010. The Land Acquisition Officer fixed the compensation at the rate of Rs.61,500/- per acre for dry land and Rs.92,250/- per acre for the irrigated land. Not being satisfied with this award, the land losers sought reference under section 18(1) of the Land Acquisition Act to the Civil Court at Kalaburagi. By judgment and award dated 11.7.2019, the I Additional Senior Civil Judge, Kalaburagi ('reference court' for short) partly allowed the reference petitions namely LAC 24/2014, 25/2014, 26/2014, 18/2014, 19/2014 and 20/2014 and enhanced the market value at the rate of Rs.113/- per sq. ft. with all other statutory benefits. Aggrieved by the enhancement of market value, the beneficiary has 10 preferred the appeals, MFA 200021/2020, MFA 200022/2020, MFA 200023/2020, MFA 200024/2020, MFA 200025/2020 and MFA 200026/2020.
3. For fixing the market value on sq. ft basis, the reference court has assigned the reasons that the observations made by the Land Acquisition Officer that the acquired lands did not have non-agricultural potentiality ('NA' for short) was incorrect, that the sale statistics method for the preceding three years adopted by the Land Acquisition Officer for awarding compensation was not reasonable in as much as the land losers produced conversion orders as per Exs.P2 to P21 pertaining to Aurad-B village. Though they did not produce the conversion orders relating to the acquired land which belonged to them, Exs.P2 to P21 were in relation to other lands which were situated near the acquired lands and therefore the acquired lands had NA potentiality. The reference court did not 11 accept the argument of the counsel for the beneficiary that village Aurad-B was not situated near Kalaburagi City and the acquired lands were also not situated nearby the National Highway. The land losers produced a document as per Ex.P31, which is a notification issued by Government of Karnataka on 15.2.2016 that 11 villages situated nearby Kalaburagi City came to be included within the City Planning Area. Referring to this document the reference court held that though this notification was issued subsequent to preliminary notification, it was possible to draw an inference with the help of Ex.P31 that Aurad-B was a developing village and that was the reason why it was sought to be included within the City Planning Area. Only for the reason that on the date of preliminary notification, the Government had not issued a notification to include 11 villages into the City Planning Area, it cannot be said that the acquired 12 lands were not fit for being put to non-agricultural usage.
4. The reference court further noticed that certain other lands of villages namely Tajsultanpur and Shaikh Roza were notified for acquisition in the year 2010 and as per the ruling of the Supreme Court in the case of [Union of India vs Harindar Pal Sing AIR 2006 SC 447], the lands situated in five different villages could be consolidated into one single unit and therefore village Aurad-B being very near to the other villages Tajsultanpur, Ganajalkhed, Jafarabad and Aurad-B could be considered to be a part of cluster of these villages for determination of the market value. Having opined so, taking into consideration the market value fixed at Rs.150/-, 249/-, 142/-, 325/- and 137/- per sq. ft. for the villages Jafarabad, Shaikh Roza, Kapnoor, Tajsultanpur and Ganajalkhed respectively and 13 referring to award passed in LAC 476/2013, the reference court felt it reasonable to fix the market value at Rs.113/- per sq. ft. for the lands in question in the present case and ordered accordingly.
5. Sri Manvendra Reddy, learned counsel for the appellant in all the appeals, argued that the reference court grossly erred in fixing the market value following the judgment in LAC 476/2013 which had not been placed before it as a piece of evidence. In this regard he submitted that the copy of the judgment in LAC 476/2013 was produced before the reference court at the time of arguments, it was not marked as an exhibit when the evidence was being recorded and therefore relying on an unmarked document was totally contrary to the norms laid down by the Supreme Court in the case of Manoj Kumar and Others vs State of Haryana [(2018) 13 SCC 96] 14 and Special Land Acquisition Officer, KIADB vs S.Kumaraswamy [ILR 2021 KAR 1025].
5.1. He further argued that the reference court ignored the fact that the acquired lands were agricultural and did not have N.A. potentiality and in this view the market value should have been computed by applying capitalization method. He also argued that the appellants produced a number of sale deeds of the lands of nearby vicinity and at least the reference court could have placed reliance on those sale deeds marked as Exs.R26, 28 and 29. And with regard to consolidating five villages as one unit, his argument was that since the village Aurad-B was situated far away from Kalaburagi City and had not been included in the City Planning Area, the market value determined for other villages should not have been applied. Therefore he argued for determining the market value applying capitalization method or 15 following the sale deeds which were marked in evidence. With these submissions he prayed for allowing these appeals by reducing the market value.
6. Sri Harshavardhan R. Malipatil, learned counsel for the respondents/claimants/land losers, argued that merely for the reason that the village Aurad-B was included in the City Planning Area pursuant to a notification issued by Government of Karnataka on 15.2.2016, it did not mean that in the year 2010 when the lands were notified for acquisition, the lands did not have N.A. potentiality. It is not in dispute that as early as in 1969 itself the villages namely Tajsultanpur and Shaikh Roza were included in Comprehensive Development Plan ('CDP' for short) and therefore the lands of the land losers obviously acquired N.A. potentiality. The land was acquired for laying a broad gauge railway line to Bidar. Village Aurad-B is situated adjacent to highway 16 connecting Bidar and Srirangapatna and for this reason also the acquired lands had N.A. potentiality. His argument therefore was that the reference court was right in fixing the market value on per sq. ft basis in the light of determination of market value in another case. The judgment upon which the reference court has relied on cannot be disputed and it appears that the appellant has satisfied the award granted in that case. This being the position, the land losers are justified in claiming the same market value.
6.1. His last line of argument was that if this court feels that Rs.113/- per sq.ft. is on a higher side, a reasonable reduction may be made and the market value may be determined around Rs.100/- per sq. ft. He also submitted that the matter may be remanded to the reference court for decision afresh in accordance with the judgment of this court in MFA 202433/2019 and other connected cases. 17
7. Sri Manvendra Reddy replied that since a number of documents have been produced by either side, this court can determine the market value based on those documents instead of remanding the matter.
8. We have perused the evidence both oral and documentary and considered the points that the learned counsel argued.
9. It is true that the reference court has erred in following the judgment and award in LAC 476/2013 which had not been placed before it as a piece of evidence. Copy of the award in the said case was made available by the counsel for the land losers during arguments. Aptly applicable to a context like this, the Supreme Court in the case of Manoj Kumar (supra) has made it very clear that an award or judgment cannot be taken into consideration while hearing arguments unless they form part of evidence in the case. Therefore we are in agreement with the 18 point of argument of Sri Manvendra Reddy that the award in LAC 476/2013 could not have been the basis for determining the market value of the acquired lands.
10. One of the submissions of Sri Harshavardhan R Malitpatil was to remand the case to the reference court. We do not find that there is a case for remand, this being an appeal and since ample evidence is available before the court, we can decide the appeal on merits with the help of available evidence. The first point that we have to consider is whether the acquired lands have N.A. potential. While answering this aspect, we should not forget the fact that the lands were acquired for laying railway line connecting Kalaburagi and Bidar. There is a lot of difference between acquisition of a large extent of land for the purpose of establishment of a factory, construction of a tank, or some other purposes and 19 for laying a railway line. Whenever land is acquired for laying railway line, vast extent of land at one place is not acquired, and the lands situate in several villages, towns and cities wherever the railway line passes are acquired, but the extent of acquisition is not as large as lands acquired for other purposes. Land situate nearby city fetches more market value than land situate farther away from the city, and the market value at one place cannot be same as that of other place. Keeping in mind these factors we have to examine the evidence.
11. We have perused the map of Kalaburagi Taluk. Though it is not marked in evidence, we can take judicial notice of it as the map is prepared by the survey department of the Government of Karnataka. The villages namely Jafarabad and Shaikh Roza are now part of the city. The central bus stand of Kalaburagi city is part of the village Shaikh Roza. The 20 next nearby village is Kapnoor situated on the highway connecting Srirangapana and Bidar via Kalaburagi. The acquired lands are part of Aurad-B village which is also situate by the side of highway. The villages Tajsultanpur and Ganajalkhed are not situated by the side of the highway, but the railway line passes through the lands of these villages. Tajsultanpur is nearer to Kalaburagi City than Ganajalkhed. In the year 1969 itself, Tajsultanpur was included in the Comprehensive Development Plan of Kalaburagi City, but Aurad-B was included in the City Planning Area by virtue of notification issued by the Government of Karnataka on 15.2.2016, which fact is not disputed. Since the villages Kapnoor and Aurad-B are located on the highway, if we take the distance from Kalaburagi City to these two villages, we notice from the evidence of P.W.1-Vishwanath that distance between Kalaburagi City and village Kapnoor is around 21 7 kms and from Kapnoor to Aurad-B, the distance is around 3 kms, that means distance between Aurad-B and central place of Kalaburagi is nearly 10 kms. In between Aurad and Kapnoor other villages namely Uplaon and Tavaragera and Belura-J are also situated, but these villages are not adjacent to the highway and the lands of those villages abut the highway. This is the topographic picture available from the map.
12. We may state that the market value of the acquired lands cannot be determined by applying capitalization method because the documents that both side parties have produced relate to conversion of agricultural lands into N.A. purpose and the sale deeds of nearby lands. Beneficiary might have produced the RTC extracts as per EXs.R3 to R9, but we cannot make use of these documents as they are of little help.
22
13. The land losers have produced documents as per Exs.P4 to P26 to prove that some of the lands of the villages namely Aurad-B, Tavaragera, Belura-J, Uplaon were all converted for N.A purpose. Relating to Aurad-B village, 58.50 acres of land spread over various numbers were converted for N.A purpose. Another important document is Ex.P40 which is a certificate issued by Panchayat Development Officer of Aurad Gram Panchayat. In this certificate it is stated that Aurad-B village is developed and it consists of revenue offices, Farmers' Community Centre, Primary Health Centre, Post Office, Government and Private schools, a paper mill, etc., There cannot be any dispute with regard to this certificate. Therefore with the help of these documents, though the acquired lands are not situated by the side of highway, they certainly have non-agricultural potentiality. 23
14. Exs.R10 to 22 are the documents marked on behalf of the beneficiary during trial before the reference court. Some of these documents are copies of the sale deeds of agricultural lands, N.A converted lands and small plots. These documents are produced by the beneficiary to establish that the acquired lands do not fetch market value more than Rs.25/- per sq. ft. But we cannot rely on these documents because they do not depict uniformity in the sale consideration amounts and if we fix the market value at Rs.25/- per sq. ft., it only results in interest of the land losers being greatly affected, as Rs.25/- is very inadequate.
15. The land losers have also got marked documents Exs.P33 to 36, 38, 39 relating to awards passed in connection with some other lands of the villages Shaikh Roza, Jafarabad, Tajsultanpur and Kapnoor. We cannot consider the award passed in respect of acquisition of lands of the villages Jafarabad 24 and Shaikh Roza as they are situated inside the city. If at all any comparison is to be made, it is with reference to acquisition of land in Sy. No.156/3 and 4 of Kapnoor village by virtue of notification under section 4 (1) of the Land Acquisition Act issued on 1.7.2010 for the same purpose. In the case on hand the notification was issued on 22.7.2010. Therefore there is proximity of time in these two notifications. According to Ex.P39, compensation was awarded at the rate of Rs.187/- per sq. ft. But we cannot award this amount towards compensation to the land losers in this case; we have to reduce 75% from this amount because of the reason that in Kapnoor there is an industrial area; ring road of Kalaburagi City also passes through the lands of this village and that distance between Kalaburagi City and Kapnoor is around 7 kms. For each factor if 25% is reduced, we 25 have to give 75% reduction from Rs.187/- which comes to Rs.46.75.
16. The other way of calculation is with respect to potentiality of the lands and the distance from the highway. Although we have stated already that the acquired lands have N.A. potentiality, we cannot forget the fact that they are not situated abutting the highway. They are interior lands situated 3 kms away from the highway as admitted by PW1 in the cross- examination. For this if we allow 50% reduction from Rs.187, it comes to Rs.93.50. Then the acquired lands do not have as much N.A. potentiality as the other lands of Aurad-B village abutting the highway and of Kapnoor village. Therefore given further reduction of 50% from Rs.93.50, we get the figure Rs.46.75.
17. There is third way of looking at the matter. Ex.R.22 is a sale deed produced by the beneficary and 26 it is in relation to lands in Sy.No.97/2 and 97/3 of Aurad-B village. Sale deed was executed on 11.02.2013 in respect of 135 Sq. Mtrs. of land for consideration of Rs.75,000/-. If the square meters is converted into square feet and the market value is calculated per square feet, it comes to Rs.50.50. In the case of Gundappa vs State of Karnataka [ILR 1996 KAR 1817], it is held that escalation of 3% is permitted. Since the lands in question were notified for acquisition in the year 2010, we must adopt the principle of de-escalation. Even if we give de- escalation for three years at the rate of 3% for each year on Rs.50.50, the amount to be deducted is Rs.4.54 in which event the market value works at Rs.45.96. This conclusion supports our first two conclusions.
18. Therefore from the above discussion, we safely conclude that Rs.46.75/- can be considered for 27 assessing the market value. We may add further that Aura-B has got high potential of seeing fast growth which is evidenced by inclusion of Aurad-B village in the City Planning Area notified by the Government in the year 2016. For this reason we may further add Rs.3.25/- to Rs.46.75/- to arrive at a figure at Rs.50/- per square feet. Since the acquired lands are agricultural, if they are to be treated as N.A. lands, we have to take judicial notice of actual land available for formation of sites or plots excluding the land required for formation of roads and civic amenity purposes. Therefore we are of the opinion that 30% has to be deducted from Rs.50/- (Rs.50 - Rs.15 = Rs.35/-). In this view we hold that Rs.35/- is the market value that can be held for determining the compensation to be paid to land losers. Therefore the following:
ORDER
(i) Appeals are partly allowed.28
(ii) The judgment and award dated 11.7.2019 passed by I Additional Senior Civil Judge, Kalaburagi, is modified, and the market value of the acquired lands is reduced to Rs.35/- per sq. ft. from Rs.113/- sq. ft.
(iii) The land losers are entitled to statutory benefits and interest in accordance with sections 28 and 34 of the Land Acquisition Act, 1894. Interest shall be calculated from the date of taking possession or date of award whichever was earlier.
Sd/-
JUDGE Sd/-
JUDGE Ckl/-