Karnataka High Court
Venkata Reddy S/O Hanumantharaya vs The Special Land Acquisition Officer on 13 March, 2023
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MFA No. 201819 of 2019
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 13TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCL. FIRST APPEAL NO. 201819 OF 2019 (LAC-)
BETWEEN:
1. VENKATA REDDY S/O HANUMANTHARAYA
SINCE DEAD B LR'S
1A. SMT. PARVATAMMA W/O LATE VENKATEDDY
AGE. 45 YEARS, OCC: HOUSEHOLD
1B. SIDDALINGREDDY S/O LATE VENKATAREDDY
AGE: 35 YEARS, OCC: AGRICULTURE
1C. CHANDRASHEKHAR S/O LATE VENKATAREDDY
AGE: 30 YEARS, OCC: BUSINESS
1D. SMT. VANITHA D/O LATE VENKATAREDDY
(NOW W/O BASAWARAJ)
AGE: 32 YEARS, OCC: HOUSEHOLD
1E. SMT. SANGEETA D/O LATE VENKATREDDY
(NOW W/O SURESH)
AGE: 30 YEARS, OCC: HOUSEHOLD
Digitally signed ALL ARE R/O AMBIKA NAGAR KEB ROAD,
by RAMESH
MATHAPATI DEVADURGA TALUKA, DISTRICT.RAICHUR-585111
Location: High
Court of ...APPELLANT
Karnataka
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
1. THE SPECIAL LAND ACQUISITION OFFICER
UKP, DEODURGA, TQ. DEODURGA,
DIST. RAICHUR-584101.
...RESPONDENT
(BY SMT ARATI PATIL, HCGP)
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MFA No. 201819 of 2019
THIS MFA IS FILED U/S 54(1) OF L.A.ACT, BY THE
ADVOCATE FOR APPELLANT, PRAYING THAT THIS
HONOURABLE COURT MAY BE PLEASED TO I) ALLOW THE
APPEAL BY SETTING ASIDE THE JUDGMENT AND AWARD
DATED 23.08.2013 PASSED BY THE LEARNED ADDL. SENIOR
CIVIL JUDGE, RAICHUR SITTING AT DEODURGA IN LAC
NO.44/2019. II) IN THE ALTERNATIVE, THE MATTER MAY BE
REMANDED TO THE REFERENCE COURT I.E., ADDL. SENIOR
CIVIL JUDGE, RAICHUR SITTING AT DEODURGA WITH A
DIRECTION TO AFFORD AN OPPORTUNITY TO THE APPELLANT
TO LEAD ORAL AS WELL AS DOCUMENTARY EVIDENCE AND
ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award dated 23.08.2013 passed in LAC No.44/2009 on the file of learned Additional Senior Civil Judge, Raichur sitting at Deodurga. Wherein the Reference Court dismissed the reference application filed under Section 18(1) of Land Acquisition Act.
2. Brief facts of the case is that:
Respondent has acquired land bearing Sy.No.87/A/O- 87/3, to the extent of 00 acre 25 guntas situated at village Sugaral camp, Deodurga taluk under 4(1) notification dated 04.05.2007. The respondent has awarded market value of the acquired land at the rate of Rs.10,76,094/- for the trees along -3- MFA No. 201819 of 2019 with statutory benefits. Being dissatisfied with the award passed by the respondent, the claimant has filed Protest petition under Section 18(1) of Land Acquisition Act before the respondent and the same was transferred to the Reference Court i.e., Addl. Senior Civil Judge, Raichur sitting at Deodurga, which is registered as LAC No.44/2009. The Reference Court has registered the Reference Petition only on the ground that the claimants have not adduced any evidence. Being aggrieved by this judgment and award passed by the Reference Court, appellant has preferred this appeal.
3. Learned counsel for the appellant has submitted his arguments that originally the Reference petition was registered on the file of the Additional Senior Civil Judge, Raichur in LAC No.44/2009. Subsequently, as per the order of District court dated 01.07.2009, it is made over to Prl. Senior Civil Judge, Raichur. Again it was transferred to Addl. Senior Civil Judge, Raichur, Devadurga taluk vide order dated 19.07.2009 in No.53/Admn/2011. Since there was communication gap between the counsel and the appellant and the appellant was not aware of the proceedings could not represent the matter and lead his evidence. Further it is submitted that being a -4- MFA No. 201819 of 2019 social legislation and the appellant has lost the very valuable property with sentimental feelings. The reference court would not have been dismissed the Reference application which resulted in substantial loss to the appellant.
4. Further the Reference Court has overlooked that the appellant has filed the Protest petition under Section 18(1) of the Land Acquisition Act. Wherein, it is contented that 130 teak trees and the market value of the teakwood in local market would certainly fetch Rs.1,00,000/- ghan meter, though the respondent has committed a grave error in awarding very meager compensation for the aged teak trees. More so, respondent-State has not disputed the very existence of 130 teak trees in the acquired land and has not awarded compensation for land. The Reference Court ought to have taken judicial notice of the same and determine the market value of the trees. Non considering the same, resulted in miscarriage of justice. On all these grounds, sought for allow this appeal to afford an opportunity to establish his claim before the Reference Court and to remand the matter to the Reference Court for re-determination of the market value of the trees on acquired land.
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5. Learned counsel for the appellant has produced certified copy of the order sheet pertaining to LAC No.44/2009, which reveals that LAO/AC Raichur has referred the petition under Section 18(1) of the Land Acquisition Act to the Court on 16.04.2009. This order sheet reveals that as per order dated 24.07.2009, as per the order of Learned District and Sessions Judge, Raichur vide Order No.80/ADMN/2009 dated 01.07.2009 the case was transferred from Addl. Civil Judge (Sr.Dn), Raichur to Prl.Civil Judge, (Sr.Dn), Raichur. The order sheet dated 02.08.2011 reveals that the case was transferred to Addl. Senior Civil Judge Judge, Raichur as it belongs to Deodurga taluk vide District court order No.5./ADMN/2011 dated 19.07.2011. After transfer of this case to the Additional Senior Civil Judge, Deodurga taluk vide District Court order No.53/ADMN/2011 dated 19.07.2011, the Reference Court has not issued any notice to the claimant or claimant advocate. The order sheet dated 18.08.2011 till 28.09.2012 reveals that petitioner remained absent. That only on 02.12.2012, SJH Advocate sought time for evidence. Thereafter, Advocate remained absent. But reference court has not issued any court notice to the claimant to prosecute this case. The reference -6- MFA No. 201819 of 2019 court has not provided any opportunity to the respondent to adduce his evidence.
6. I have gone through the judgment passed by the Hon'ble Apex court reported in the case of 'Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and another' reported in AIR 1988 SCC 1652 in para 4 of the judgment, the Hon'ble Apex court has observed as under:
"4. The following factors must be etched on the mental screen:
(1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for -7- MFA No. 201819 of 2019 making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to suit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under sec. 4 of the Land Acquisition Act (dates of Notifications under Ss. 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of -8- MFA No. 201819 of 2019 publication of notification under S.. 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition of land).
(9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
(l0) The most comparable instances out of the genuine instances have to be identified on the following considerations:-9- MFA No. 201819 of 2019
(i) proximity from time angle,
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:
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Plus factors Minus factors
1 Smallness of size 1 Largeness of area
2 Proximity to a road 2 Situation in the interior at
a distance from the road.
3 frontage on a road. 3 narrow strip of land with
very small frontage
compared to death.
4 nearness to developed 4 lower level requiring the
area depressed portion to be
filled up.
5 regular shape 5 remoteness from
developed locality
6 level vis-a-vis land under 6 some special
acquisition disadvantageous factor
which would deter a
purchaser
7 special value for an owner
of an adjoining property to
whom it may have some
very special advantage
(15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule.
Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l0000 eq. yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers
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MFA No. 201819 of 2019
(meanwhile the invested money will be
blocked up) and the hazards of an
entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be looked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own facts pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense.
7. In the case on hand, to substantiate the award passed by the SLAO, has not placed any materials before the reference court. The reference court has not provided any opportunity to both the parties to adduce their evidence.
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MFA No. 201819 of 2019
8. Keeping in mind the afore said decision of Hon'ble Apex Court in the case of 'Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and another' reported in AIR 1988 SCC 1652 and also the provision of Article 21 and 300A of constitution of India, I am of the considered opinion that it is just and proper to remand the matter to the Reference Court to dispose of this case after providing opportunity to both the parties to adduce their evidence and dispose the matter in accordance with law. Accordingly, I proceed to pass the following.
ORDER a. Appeal is allowed.
b. The judgment and award passed by Additional Senior Civil Judge, Raichur sitting at Deodurga dated 23.08.2013 in LAC 44/2009 is set aside. c. Case is remitted back to the Reference Court with a direction to provide opportunity to both the parties to adduce their evidence and dispose of this case in accordance with law within 6 months from the date of receipt of copy of this judgment.
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MFA No. 201819 of 2019d. Registry is directed to refund the court fee under Section 64 of Karnataka Court fee suit valuation act.
e. Draw an award accordingly.
Sd/-
JUDGE BH LIST NO.: 1 SL NO.: 21