Shri.Ningappa Basavantappa ... vs The Special Land Acquisition Officer on 26 July, 2024

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Karnataka High Court

Shri.Ningappa Basavantappa ... vs The Special Land Acquisition Officer on 26 July, 2024

1. Appellant/landlosers have preferred this appeal against the judgment and award dated 27th July, 2015 passed in LAC No.5 of 2012 by the II Additional Senior Civil Judge and JMFC, Hubballi (for short hereinafter referred to as "the Reference Court"), seeking enhancement of compensation.

2. For the sake of convenience, the parties in this appeal are referred to with their rank and status before the Reference Court.

3. Brief facts leading to the filing of this appeal are that the claimants had filed application under Section 18(1) of the Land Acquisition Act, 1894 seeking reference for determination of actual market value of the property, as the award passed by -4- MFA No.100047/2016 the Special Land Acquisition Officer was meager in respect of survey No.312/2 measuring 7 acre 24 guntas situate at Bhairidevarakoppa which was acquired by the respondent vide notification issued under Section 17(1) of the Karnataka Urban Development Authorities Act, 1987. Upon reference, the Reference Court registered the case in LAC No.5 of 2012. The prove the case of claimants, seven witnesses were examined as PWs.1 to 7 and 84 documents were marked as Exhibits P1 to P84. On closure of claimants' side evidence, respondents have adduced evidence of RW1 and one document was marked as Exhibit R1. Having heard the arguments on both sides, the Reference Court has determined the market value of the property at Rs.28.20 per sq.ft. with all statutory benefits excluding phot kharab area, if any, and giving deduction of one-fourth of the amount awarded towards developmental charges. Being not satisfied with the award passed by the Reference Court, the Claimant/appellants have preferred this appeal seeking enhancement of compensation.

4. Sri K.L. Patil, learned counsel appearing for appellant- claimants, submitted that the impugned judgment and award passed by the Reference Court is contrary to law, facts and evidence on record. He submitted that the Reference Court while awarding the compensation has rightly held that the lands -5- MFA No.100047/2016 in question are surrounded by fully developed areas under

Hubli-Dharwad Municipal Corporation and are having commercial establishments surrounding the land. The Reference Court has relied only on the contention/objection raised by the respondents without any supporting document. This being the fact, the Reference Court, while determining the market value of the land based on capitalization method, has not relied on Exhibit P6-Sale deed dated 17th August, 2004 in which the land belonging to the same locality was sold at Rs.267/- per square feet and another sale deed dated 02nd August 2004 wherein the land in the said sale deed was sold at Rs.166/- per square feet. Without assigning any cogent reason for fixing the amount at Rs.28.20 per square feet by the Reference Court, is a gross under-valuation in the face of overwhelming evidence on record. The appellants have not left any stone unturned to exhaustively adduce evidence to show that the land is having precious potentiality for all time to come; and evidence on record of total 84 Exhibits is more than enough to substantiate the marketability as also the potentiality of the land. He further submitted that Exhibit P16 is a Revised Comprehensive Development Plan, which is confirmed with the evidence of PW7, who is none other than the Member/Engineer of Hubballi Urban Development Authority. -6- MFA No.100047/2016 Further, the evidence of PW6-Sub Registrar is the authentic piece of evidence on market value of the property at Exhibit P83 which is the Gazette Notification dated 04th November, 2004, even as per which, the market rate of the property in the area is not less than Rs.190/- per square feet. The evidence of PWs.1 to 7 with supporting documents at Exhibits P1 to P84 required detailed appreciation of evidence which has not been done by Reference Court. He further submits that the Reference Court has failed to arrive at the average market value as per the directions of the Hon'ble Supreme Court in NIRMAL SINGH v. STATE OF HARYANA THROUGH COLLECTOR reported in 2014 AIR (Civil-1053) wherein the guidelines issued by the Hon'ble Supreme Court were required to be followed. He further submits that positive and negative factors in appreciating the valuation of land, was not considered by the Reference Court. The direction of the Hon'ble Supreme Court that a land having non-agriculture potentiality should be given escalation in awarding compensation has not been considered by the Reference Court. He further submits that even in the event of de-escalation of compensation, considering the fact that the land was acquired on 28th February, 2002, as per the judgment of the Hon'ble Supreme Court reported in 2012 AIR SCW 73, which incidentally is from Karnataka, the lands in -7- MFA No.100047/2016 question would definitely fetch a market value at Rs.166/- per square feet as per Sale Deeds produced at Exhibits P6, P7 and P83. On all these grounds, he sought to allow the appeal. To buttress his submissions, the learned counsel relied upon the judgments of Hon'ble Supreme Court in the case of MANOJ KUMAR AND OTHERS v. STATE OF HARYANA AND OTHERS reported in (2018)13 SCC 96; and in the case of CHANDRASHEKAR (D) BY HIS LRS AND OTHERS v. LAND ACQUISITION OFFICER AND ANOTHER reported in 2012 ACR SCW 73; and in the case of UNION OF INDIA v. PREMLATA reported in AIR ONLINE SC 465.

5. As against this, Sri Madanmohan M. Khannur, learned Addl. Govt. Advocate for respondent No.1 and Sri R.H. Angadi, learned advocate appearing for the respondent No.2-HDMC submitted that the Reference Court has properly appreciated the evidence on record in accordance with law and facts which does not call for any interference and hence, sought for dismissal of the appeal.

6. Having heard the arguments on both sides and perusal of appeal papers and original records, the following points would arise for our consideration:

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1. Whether the Reference Court is justified in coming to the conclusion with regard to N.A. potentiality of the land in question?

2. Whether the claimants/appellants would be entitled for enhancement of compensation as sought for?

3. Whether the impugned judgment and aware requires interference by this Court?

4. What Order or award?

Our answer to the above points is as under:

        Point No.1                     :         Affirmative;

        Point No.2 and 3               :         partly in the affirmative;

        Point No.4                     :         as per final order.


Regarding Point No.1:

7. It is not in dispute that the respondents acquired the land of the appellant/claimants in Survey No.312/2 measuring 7 acre 24 guntas of Bairidevarakoppa vide Notification issued under Section 17 of the Karnataka Urban Development Authorities Act, 1987. It is also not in dispute that the Special Land Acquisition Officer determined the market value at Rs.77,056/- per acre. Further it is not in dispute that the claimants sought reference under Section 18(1) of the Land Acquisition Act, 1894, to the Reference Court for determination -9- MFA No.100047/2016 of actual market value of the property. To substantiate the case of the claimants, seven witnesses were examined as PWs.1 to 7 and 84 documents were marked as Exhibits P1 to P84. The respondent has not filed any written objection to the Reference Petition, however, adduced the evidence of RW1 and marked one document as Exhibit R1, i.e. the Order dated 07th January, 2015. The claimants have pleaded in their petition that the acquired land is situated between Hubli-Dharwad and is abutting National Highway-4 and is a fully developed area surrounded by Residential Layouts, Educational Institutions consisting of Law, Technical Education, Degree Colleges and School of Master of Business Administration; Agriculture Produce Marketing Yard; Office of the Hubli-Dharwad Urban Development Authority; Office of the Commissioner of Police and other Government Offices; Tarihal Industrial Area, Dharmasthala Manjunatha Medical and Dental Colleges, etc. and hence the land has non-agriculture potentiality. On all these grounds, sought for enhancement of compensation.

8. The claimants have examined seven witnesses as PWs1 to 7. PWs.1 to 5 who are the claimants, have clearly deposed in their evidence that the Special Land Acquisition Officer acquired their property for the purpose of residential layout. The acquired lands are situated in the limits of Hubli-Dharwad

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Municipal Corporation and comes under Hubli-Dharwad Urban Development Authority and are abutting the National Highway which is surrounded by fully developed residential layouts, many educational institutions consisting of Law, Technical education, degree colleges, School of MBA, MCA and MDA, Government Offices, Industrial Area and SDM Medical and Dental Colleges and showrooms, as also, service centres of different brands of Cars, many multi-star hotels and ISKCON temple. They have deposed that the minimum market value of the acquired land is Rs.250/- per square feet and maximum is Rs.950/- per square feet and the approximate market value of the acquired lands would be not less than Rs.2,50,000/- to Rs.25.00 lakh per gunta. It is also deposed that there are three country tiled houses worth Rs.2.00 lakh each and a cow- shed in an area of 80 x 50 sq.ft in the acquired land. Further, there are 12 coconut trees, two tamarind trees in the acquired land and the Special Land Acquisition Officer has not considered these factors at the time of passing the award. It is also deposed that the acquired land has got non-agriculture potentiality.

9. PW6-Govind Parameshwar Naik, Senior Sub-Registrar, South Hubli has deposed as to the Gazette Notification issued by the Government of Karnataka as per Exhibit P83 and he has

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also deposed that he has issued Exhibits P5 to P7 Certified Copies of sale-deeds.

10. PW7-S. Gopalakrishna, the Member of Hubli-Dharwad Urban Development Authority has deposed in his evidence that Exhibit P16 is the Hubli-Dharwad Revised Comprehensive Development Plan. Survey No.312 is already developed property which shown in Exhibit P16 and the lands situated towards northern side of Survey No.318 are also developed property.

11. Along with their oral evidence, the claimants have also produced documentary evidence which are marked as Exhibits P1 to P84. Exhibits P1 to P3 are RTCs; Exhibits P4 and P5 are lease-cum-sale deeds; Exhibits P6 and P7 are sale deeds; Exhibit P8 is the Service Certificate; Exhibit P9 to P11 are receipts; Exhibit P12 is the demand challan; Exhibit P13 is the verification letter; Exhibits P14 and P15 are receipts; Exhibit P16 is the revised Comprehensive Development Plan; Exhibits P17 to P41 are photographs and photo receipt; Exhibit P42 is the decree in Regular Appeal No.286 of 2010; Exhibit P43 is the judgment in Misc.28 of 2009; Exhibit P44 is the letter; Exhibit P45 is the income certificate; Exhibit P47 to P38 are photographs; Exhibit P81 is the Compact Disc; Exhibit P82 is the receipt; Exhibit P83 is the Notification dated 04th

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November, 2004; and Exhibit P84 is the copy of the General award dated 31st Jan 2005, passed by the Special Land Acquisition Officer, Hubli-Dharwad Development Authority, Hubballi.

12. Respondents have adduced the evidence of Bandurao S. Kulkarni, the Mangaer of Hubli-Dharwad Urban Development Authority, Hubballi. He has deposed in his evidence that the Special Land Acquisition Officer has determined the market value of the land at Rs.77,056/- per acre and at the time of acquisition of the land in question there were no buildings, trees or wells existed in the land. The record of rights do not show existence of any such things in the acquired land and the petitioners have claimed excess amount, which is not permissible in the eye of law.

13. Considering all these oral and documentary evidence, the reference Court has held that the petitioners/claimants succeed in proving that the acquired land has Non-agriculture potentiality. This finding given by the Reference Court has not been challenged by the respondents. However, on re- appreciation of the evidence on record, we do not find any error/infirmity in the finding given by the Reference Court. Hence, we answer point No.1 in the affirmative.

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Regarding Point No.2 and 3 :

14. Now we have to appreciate the evidence on record as to the actual market value of the property. The Reference Court has awarded the compensation of Rs.28.20 per square feet on the basis of the copy of the award dated 01st April, 2008 produced by the respondent in LAC No.18 of 2005 pertaining to Survey No.318/1. In view of this award, the Reference Court has awarded the compensation at Rs.28.20 per sq.ft. to the land bearing Survey No.318/1 measuring 1 acre 22 guntas of Bhairidevarakoppa. This copy of the award does not reveal as to the date of preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 and also the documents relied upon by the Reference Court. The award itself reveals that the Reference Court has awarded compensation at Rs.28.20 per sq.ft. Whereas the Reference Court has awarded the compensation of Rs.28.20 per sq.ft. and out of that deducting one-fourth towards development charges. The Reference Court has not explained anything in this regard. Therefore, only on the basis of the copy of the award which is not marked and subjected to cross-examination the Reference Court has awarded the compensation. Without documents and other exhibits, it is not safe to determine the market value of the property on the basis of the just a copy of the award

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passed in LAC 18 of 2005. Accordingly, the Reference Court has committed an error in determining the compensation at Rs.28.20 per sq.ft. by giving deduction of one-fourth of the amount towards development charges. Hence, the same is not accepted.

15. The claimants have produced the certified copies of the sale-deeds as Exhibits P4 to P7. Exhibit P4 is the lease-cum- sale deed dated 21st May 2004 which pertains to the Block No.282/C of Bhairidevarakoppa, Hubli Taluk pertaining to Shantiniketan Layout on National Highway-4 on Hubli-Dharwad Road which reveals that Survey No.312 and 313 are situated towards Southern side of this land. In this document, the land cost is shown as Rs.1,00,000/-, development cost Rs.3,99,500/- and lease-cum-sale amount Rs.500/- and the total consideration is Rs.5,00,000/- excluding stamp duty for 2 gunta 3¼ annas in plot No.16 of 282C Block of Bhairidevarakoppa.

16. Exhibit P5 is the lease-cum-sale deed dated 18th August, 2004 which pertains to site No.251 of Block 282C of Bhairidevarakoppa, Hubli Taluk in the layout formed as Shantiniketan Layout on National Highway-4 and the schedule of the said document discloses that Plot No.252 is situated on

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the southern side of this Site measuring one gunta 14½ anna. The sale consideration of this site is shown as Land Cost Rs.46,000/-, Development Cost Rs.1,84,500/- and Lease-cum- sale amount Rs.500/- excluding the stamp duty and the total consideration is Rs.2,31,000/-.

17. Exhibit P6 is the sale deed dated 17th August, 2004 pertaining to plot No.123 Survey No.602+604A measuring 1 gunta 15.5 anna situated at Unakal village and sold for the consideration of Rs.3,21,500/-.

18. Exhibit P7 is the sale deed dated 02nd August, 2004 pertaining to Site No.152 comprised and carved out of Residential layout I Survey No.545, 551B, 552 and 561 situated at Unakal village, Hubli Taluk sold for sale consideration of Rs.4,00,000/- lakh. The Reference Court has rightly observed that these sale deeds are not relating to the date on which the notification was issued to acquire these lands and these sale transactions are relating to the period two years subsequent to the issuance of Preliminary Notification and therefore, the sale consideration amount mentioned in these documents cannot be considered for determination of market value of the lands under reference.

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19. The learned counsel for the appellants fairly submitted that Exhibit P83 which is the revision of market value guidelines of immoveable property and buildings in the jurisdiction of Hubli Taluk, Dharwad District issued by the Department of Registration and Stamps vide Notification dated 31st August, 2004, reveals that the value fixed for residential sites is shown as Rs.105/- per square feet and Rs.170/- per square feet for commercial sites of Bhairidevarakoppa and based on this market value, this Court can de-escalate the market price at 10% per acre for three years and deduct 40% towards development charges in view of the judgment of the Hon'ble Supreme Court in the case of PREMLATA (supra) and accordingly, sought for modification of the award passed by the Reference Court.

20. The learned counsel for the respondent has not disputed the arguments advanced on behalf of the claimants, however, he would support the judgment and award passed by the Reference Court.

21. Keeping in mind the arguments advanced by both the learned counsel appearing for the parties, we have to examine the evidence placed before this Court.

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22. Exhibit P83 is the revision of market value guidelines of immoveable properties and buildings in the jurisdiction of Hubli-Dharwad District issued by the Department of Registration and Stamps made in No.CVC/RGN:3/2003-04 dated 31st August, 2004 in which it is shown that Bhairidevarakoppa Blocks 1 to 37, 19, 258, 259, 260, 261, 280, 33, 338, 405, 464, 475, 476, 484, 495, 498, 500 and the market price of residential site is shown as Rs.105/- per square feet and at Rs.170/- per square feet for commercial sites. To prove this document, the petitioners have examined the Senior Sub-Registrar Sri Govind Parameshwar Naik as PW6, who has deposed in his evidence that the issuance of gazette notification by Government of Karnataka as per Exhibit P3. He has also deposed as to the market price of vacant residential sites and vacant commercial sites of Bhairidevarakoppa, which is marked as Exhibit P83(a).

23. It is not in dispute that as per Notification Exhibit P84, the Urban Development Authority has drawn-up the notification stating that the factum of scheme have been made and the limits of area comprised therein under Section 17(1) of the Karnataka Urban Development Authority Act, 1987 on 27th July, 2001 and the Karnataka Land Development Authority caused a copy of the notification under sub-Section (3) of

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Section 17 of the Karnataka Urban Development Authority Act on 28th February, 2002. Considering the date of above notification, we are of the view that it is appropriate to de- escalate the market value of the vacant site of Bhairidevarakoppa fixed at Rs.105/- per sq.feet at the rate of 10% for three years which comes to 30%. Upon de-escalation at 30%, the amount comes to Rs.73.50 per sq.feet which is rounded off to Rs.74/- per sq.ft. Applying the principle laid down by the Hon'ble Supreme Court in the case of PREMLATA (supra) and considering the facts and circumstances of the case on hand, as already stated, if 40% deduction is ordered to be made towards development charges, the same would be said to be appropriate deduction and accordingly, if 40% is deducted from the price of Rs.74/- per square feet now determined, the same comes to Rs.44.40, which is rounded off to 44/- per square feet. Accordingly, claimants are entitled for compensation with all statutory benefits. For the aforesaid reasons the impugned judgment and award requires to be interfered with by this court. Hence, we answer Point No.2 and 3 partly in the affirmative.

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Regarding Point No.4:

24. For the aforestated reasons and discussions, we proceed to pass the following:

ORDER

1. Appeal is allowed in part with costs;

2. Judgment and award dated 27th July, 2015 passed in LAC No.5 of 2012 by the II Additional Senior Civil Judge, Hubli is modified holding that the appellants are entitled for compensation at Rs.44/- per square feet with all statutory benefits under Section 23(2), 23(1-A) and Section 28 of the Land Acquisition Act, 1894;

3. Draw award accordingly;

4. Registry to send the copy of this judgment and award along with trial court records to the concerned court forthwith.

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