Bangalore District Court
Smt. Neelamma vs The Special Land Acquisition Officer on 4 February, 2020
IN THE COURT OF THE II ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H. No.17 )
Dated this the 04 th day of February, 2020.
PRESENT:
Shri. R.Y. Shashidhara, B.Com., LL.B.
II Addl. City Civil and Sessions Judge, Bangalore.
LAND ACQUISITION CASE No.3/2012
CLAIMANT:
Smt. Neelamma
W/o Sri. C.K. Naidu
Aged about 70 years,
R/o No.35, Yellappa Lane,
Chikkamavalli,
Bengaluru.
( Sri.JR/NMC, Advocate)
-VERSUS-
RESPONDENT:
The Special Land Acquisition Officer, Bengaluru.
( DGP) This reference made by the respondent/SLAO under Section 18 of L.A. Act, 1894 (L.A. Act. for short).
.2. The brief facts of the case are as follows:
The respondent has acquired the land belongs to the claimant measuring 2745 sq. feet in Sy.No. 64/1C 2 L.A.C. No.3/2012 property Nos.278, 213, 260 situated at Chikkallasandra, Subramanyapura Main Road, Bengaluru South Taluk. It was acquired for the purpose of Public Works Department (PWD). The preliminary notification was on 03.12.2008, final notification was on 03.09.2009 and award passed on 18.01.2011.
.3. In the claim statement, the claimant stated that she is the absolute owner and was in possession of the property bearing No.278, 213, 260 in Sy.No.64/1C (Commercial Conversion Land) situated at Chikkallasandra village. She purchased the said property through sale deed dated 15.12.1971. Actually she purchased 1 acre 11 ½ guntas of land under the said sale deed. As per the sale deed, the name of claimant entered in the khata in the records of Pattanagere City Municipality, Bengaluru. The claimant got converted the said land into non-agricultural residential purpose vide order dated 31.09.1983. The claimant has constructed 3 L.A.C. No.3/2012 cinema theater in the portion of the land and also commercial complex.
.4. It is stated that the respondent has acquired the portion of the land measuring 2,745 sq.ft. for formation of road and paid total compensation for a sum of Rs.72,71,900/-. It is stated that the compensation fixed by the respondent No.1 is not as per prevailing market value. The claimant has received the compensation amount under protest. The acquired property was valued at Rs.7,500/- and Rs.8,000/- per sq. feet as on the date of acquisition. The respondent has fixed the market value at Rs.1,690/- per sq. feet and it is not proper. It is stated that the acquired lands are commercial property and adjacent to the road. It is situated at Subramanyapura main road surrounded by super market, commercial complex, bus stop and educational institution. Number of apartments and residential layouts have come up in the said area. It is stated that the claimant has produced some sale deeds to prove the 4 L.A.C. No.3/2012 value of acquired land at the time of acquisition. The market value fixed by the respondent is not proper and correct. Therefore, the claimant prayed for fixing the market value of the acquired property at Rs.7,500/- and Rs.8,000/- per sq. feet.
.5. After receipt of the reference from the respondent, this court registered the case and issued notice to both the parties. Both parties have appeared through their counsel. The respondent has not filed objections to the main. Hence, the case posted for claimant's evidence.
.6. To prove her case, the husband and SPA holder of the claimant examined as PW.1. Documents got marked as Ex.P.1 to Ex.P.7. The respondent has not adduced oral and got marked documents.
.7. Heard the arguments.
5 L.A.C. No.3/2012.8. The following points arise for my consideration:
1. Whether the reference u/s.18 of L.A. Act, made by the respondent/SLAO, is valid and in time?
2. Whether the Claimant proves that the market value of the property determined by the respondent/SLAO is not reasonable and adequate?
3. Whether the claimant is entitle for higher compensation to the acquired property? If so, at what rate?
4. What Order or Award?
.9. My findings on the above points are as follows:-
Point No.1: In the affirmative,
Point No.2: In the partly affirmative
Point No.3: In the partly affirmative
Point No.4: As per the final order for the
following:-
R EAS O N S
.10. Point No.1:- So far as limitation relating to
filing and maintaining of application filed under Section 18 of L.A. Act, the law is very clear and well settled. The 6 L.A.C. No.3/2012 petitioner/claimant 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 fails to make the reference, then the petitioner has to file this kind of petition within 3 years after expiry of said 90 days. In this context, I relied upon the decision of Hon'ble Supreme Court of India reported in 2005 (8) SCC 709 (State of Karnataka Vs. Laxuman and AIR 1988 Kar. 11 (Asst. Commissioner Vs. Lakshmi Bai).
.11. It is seen from the records that the respondent has acquired the property belongs to the claimant bearing property No.278, 213, 260 in Sy.No.64/1C measuring 2745 sq. feet, situated at Chikkallasandra village. Preliminary notification was on 03.12.2008, final notification was on 03.09.2009 and award passed on 18.01.2011. Service of 12(2) notice is not available in the record. The respondent has not 7 L.A.C. No.3/2012 produced the documents about service of 12(2) notice to the claimant. The respondent referred the case before this court on 12.09.2011. It is well settle law that burden is on the respondent to prove the fact that date of service of award notice on the claimant. In this context, I relied upon the decision of Hon'ble High Court of Karnataka reported in 1996(1) Kar.L.J.265 (Special Land Acquisition Officer, Soundatti vs. Fakirappa Ellappa Poojari and others). But in the case on hand, the respondent has not produced the document and proved the date of service of 12(2) notice (award notice) to the claimant. Ex.P.7 is 18(1) application filed by the claimant before the respondent on 29.04.2011. The award passed on 18.01.2011 and subsequently the claimant has to file 18(1) application on or before 29.04.2011. As stated above, the respondent has not produced documents to prove that what is the date of service of 12(2) notice to the claimant. Therefore, I come to the conclusion that, after receiving 12(2) notice, the claimant has submitted 18(1) application before the respondent and it is in time. 8 L.A.C. No.3/2012 Thereafter, the respondent has made the reference before this court on 12.09.2011. Hence, I come to the conclusion that the reference under Section 18 of L.A. Act, made by the respondent is valid and in time. Hence, I answer point No.1 in the affirmative.
.12. Point No.2 and 3: These two points are inter- connected. For avoiding repetition of discussion, I have taken up these two points together for consideration.
.13. I have perused the contention of the claimant with case on hand. 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 compensation to the property owners. In 18 reference while determining the enhancement of compensation, 3 methods of valuation are generally adopted namely, opinion of experts, sales statistics method and capitalization method. To consider this case on the basis of capitalization method and opinion of expert the claimant has not produced any 9 L.A.C. No.3/2012 documentary evidence. It is noticed that the claimant has made an attempt to be considered this case on the basis of sales statistical method. It is well settled law that, the claimant has to prove his case with cogent documentary evidence for enhancement of compensation. In this contest, I relied upon the decision reported in (AIR 2009 Supreme Court 2238 (Mahesh Dattatray Thirthankar Vs. State of Maharashtra).
.14. I have perused the General Award dated 18.01.2011 passed by the respondent. He has considered the sale deeds received from the concerned Office of the Sub-Registrar, Uttarahalli for the period from 01.04.2008 to 08.01.2009 and perused the avarage sale value of the properties of the said sale deeds and fixed the market value at Rs.1,690/- per sq.feet.
.15. I have perused the documentary evidence produced by the claimant. Ex.P.1 is the SPA executed by the claimant in-favour of her husband by deposing evidence in this case. Ex.P.2 is the conversion certificate 10 L.A.C. No.3/2012 dated 21.09.1982 issued by the Tahsildar, Bengaluru South. It is mentioned that as per request of the claimant, the Government has passed an order and converted agricultural land measuring 1 acre 11 guntas into residential purpose. Ex.P.3 is the notice issued by the respondent to the claimant under Sections 9 and 10 of L.A. Act and directed her to present and produce the documents in-respect of acquired land for payment of compensation. Ex.P.6 is certified copy of the sale deed dated 15.12.1971. Ex.P.6(a) is typed copy of the said sale deed . It reveals that the claimant purchased the land bearing Sy.No.64/1 measuring 1 acre 11 ½ guntas.
.16. Ex.P.5 is certified copy of the mortgage deed/memorandum relating to the deposit of title dated 23.04.2007. It is mentioned that the property totally measuring 1350 sq. feet situated at Chikkallasandra village was mortgaged by one M.Loganathan has executed sale deed in favour of the Grain Merchant's Co-operative Bank Ltd. Bengaluru and borrowed a loan of 11 L.A.C. No.3/2012 Rs.40,00,000/-. I am of the opinion that on the basis of the mortgage deed, it cannot be determined the market value of the acquired land as prayed by the claimant.
.17. Ex.P.4 is certified copy of the sale deed dated 14.05.2008 executed by one M.R. Gopala Krishna in-favour of Sudheendra R. Cagathi. The residential site measuring 1200 sq. feet was sold for a consideration of Rs.40,00,000/- (Rs.3750/- per sq. feet). I have perused the above said sale deed of Ex.P.4. The respondent has not challenged the above said documents. He has not chosen for cross-examination of PW.1. As per the records, Preliminary notification of the present case was on 03.12.2008. Ex.P.4 sale deed executed on 14.05.2008. it means Ex.P.4 sale deed is prior to the preliminary notification of the present case. The property in the present case is also converted into non-agricultural residential purpose. Ex.P.2 is conversion certificate dated 21.09.1982. The property of Ex.P.4 and acquired land in question are situated at Chikkallasandra village. Hence, I 12 L.A.C. No.3/2012 am opinion that on the basis of Ex.P.4, to be determined the market value of the property in question is just and necessary. I am opinion that Ex.P.4 is best and available document on record for determine the market value of the acquired property. I am of the opinion that the claimant has lost her land and livelihood. Hence, sufficient compensation to be awarded to her is required. The Hon'ble Supreme Court of India by their judgment reported in 2009 (5) Kar.L.J. 193 (SC) (Special Land Acquisition Officer U.K. Project Vs. Mehaboob and another) was held that: "Award of compensation for - Compensation offered should be reasonable, realistic and very near to value of land acquired, and payment compensation should be prompt so that land loser will be able to purchase some other suitable land or make appropriate arrangements for his livelihood ". It is noticed that acquired land was converted into residential purpose in the year 1982, it was located in the area City Muncipality, Bengaluru, it is in commercial area and surrounded by market, commercial compex, apartment 13 L.A.C. No.3/2012 and residential areas. Therefore, from looking into the facts and circumstances of the case, on the basis of Ex.P.4 of sale deed and nature of the acquired property to be fixed market value of the acquired land at Rs.3,750/- per sq.feet is just and necessary. It would serve the ends of justice. Therefore, I come to the conclusion that the market value fixed by the SLAO at Rs.1,690/- per sq.feet is in-adequate and meager and it is to be enhanced. The claimant is also entitle for statutory benefits as per L.A. Act 1894. Accordingly, I answer point No.2 and 3 in partly affirmative.
.18. Point No.4: In view of my findings on points 1 to 3, I proceed to pass the following:-
ORD ER The Reference made by the SLAO/respondent u/s. 18 of L.A. Act 1894, is partly allowed.
The claimant is entitle for market value of his acquired property at the rate of 14 L.A.C. No.3/2012 Rs.3,750/- per sq.feet instead of Rs.1,690/- per sq.feet, as awarded by the respondent.
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 possession or the date of award whichever is earlier.
Further, the claimant is entitled for solatium at the rate of 30% 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.15 L.A.C. No.3/2012
The amount already paid by the respondent/SLAO, if any, shall be deducted in the enhancement of the market value now awarded.
Advocate fee is fixed at Rs.1000/- Draw award accordingly.
(Dictated to the JW, transcribed by her, corrected by me and then pronounced in open Court on this the 04th day of February, 2020) (R.Y. Shashidhara), II Addl. City Civil and Sessions & Spl. Judge, Bengaluru.
ANNEXURE
1. WITNESS EXAMINED FOR CLAIMANT:
P.W.1 : C.K. Naidu
2. DOCUMENTS MARKED FOR THE CLAIMANTS:
Ex.P.1 : Special Power of Attorney
Ex.P.2 : Conversion certificate dated 21.09.1982
Ex.P.3 :Notice issued by the respondent to
the claimant
Ex.P.4 : Certified copy of the sale deed dated
14.05.2008
Ex.P.5 : Certified copy of the mortgage deed
dated 23.04.2007
16 L.A.C. No.3/2012
Exs.P.6 : Certified copy of the sale deed dated
15.12.1971.
Ex.P.6(a) : Typed copy of Ex.P.6
Ex.P.7 : Application filed by the claimant
under Section 18 of L.A. Act, dated
29.04.2011
3.WITNESSES EXAMINED FOR THE RESPONDENTS:
NIL
4. DOCUMENTS MARKED FOR RESPONDENTS:
NIL (R.Y. Shashidhara), II Addl. City Civil and Sessions Judge & Spl. 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: 2020.02.05 15:34:23 IST 17 L.A.C. No.3/2012