Karnataka High Court
Karnataka Neeravaru Nigam Ltd., vs The Special Land Acuqisition Officer on 17 September, 2019
Author: S.N. Satyanarayana
Bench: S.N. Satyanarayana
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MR.JUSTICE S.N. SATYANARAYANA
AND
THE HON'BLE MR.JUSTICE P.G.M. PATIL
MFA.No.23838/2012 (LAC)
BETWEEN:
KARNATAKA NEERAVARI NIGAM LTD.,
REP.BY ITS EXECUTIVE ENGINEER,
UPPAR TUNGA PROJECT, RANIBENNUR, DIST: HAVERI.
... APPELLANT
(BY SRI.RAMESH N.MISALE, ADV.)
AND:
1. THE SPECIAL LAND ACQUISITION OFFICER,
UPPER TUNGA PROJECT, RANIBENNUR.
2. THE DISTRICT COMMISSONER,
HAVERI DISTRICT, HAVERI.
SRI.BASAVARAJAPPA S/O GUDDAPPA VALEKAR,
SINCE DEAD BY HIS L.Rs
3. SMT.RENAKAVVA W/O BASAVARAJAPPA VALEKAR,
SINCE DEAD BY HER LR.
SRI.CHANDRAPPA S/O BASAVARAJAPPA VALEKAR,
AGE: MAJOR, OCC: AGRICULTURE,
R/O HALAGERI, TAL: RANIBENNUR, DIST: HAVERI.
4. SRI.CHANDRAPPA S/O BASAVARAJAPPA
AGE: MAJOR, OCC: AGRICULTURE,
R/O HALAGERI, TAL: RANIBENNUR, DIST: HAVERI.
2
5. SMT.MAMATA D/O BASAVARAJAPPA VALEKAR,
SINCE DECEASED BY HER LR
THE 4TH RESPONDENT.
6. SRI.SIDDAPPA D/O DUDDAPPA VALEKAR,
AGE: MAJOR, OCC: AGRICULTURE,
R/O HALAGERI, TAL: RANIBENNUR, DIST: HAVERI.
... RESPONDENTS
(BY SMT.VEENA HEGDE, AGA FOR R1 AND R2;
SRI.M.H.PATIL, ADV. FOR R4 & R6;
R4 TREATED AS LRS OF DECEASED R3 & R5)
THIS APPEAL IS FILED UNDER SECTION 54(1) OF THE
LAND ACQUISITION ACT AGAINST THE JUDGMENT AND AWARD
DATED 03.011.2011 PASSED IN LAC NO.105/2008 ON THE FILE
OF THE ADDITIONAL SENIOR CIVIL JUDGE, RANEBENNUR
AWARDING THE COMPENSATION OF RS.4,00,000/- PER ACRE.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, S.N. SATYANARAYANA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by respondent No.3 in LAC No.105/2008 on the file of the Additional Senior Civil Judge, Ranebennur.
2. Admittedly, the proceedings in LAC No.105/2008 was initiated by one Basavarajappa owner of the land bearing Sy.No.293/1 measuring 3 acres 9 guntas situated at Halageri village, Ranebennur Taluk, Haveri District. The acquisition of the aforesaid land along with various other lands situated adjacent to it is for the purpose of 3 construction of Upper Tunga Channel. Admittedly, the acquisition proceedings was initiated under Section 4(1) of the Land Acquisition Act (for short 'the Act') published in Karnataka Gazette on 24.06.2004. Thereafter, final notification was issued and subsequently, the Special Land Acquisition Officer (SLAO) passed award on 20.04.2007 awarding compensation to the land losers at the rate of Rs.37,732/- per acre. The same was communicated to the land losers by notice under Section 12(2) of the Act dated 09.08.2007.
3. Thereafter, the land losers filed an application under Section 18(1) of the Act seeking to refer the same for enhancement of compensation to the civil Court. It is the said application which was subsequently registered as LAC No.105/2008 and the same was taken up for consideration along with another application filed by the adjacent land owner which was registered as LAC No.106/2008. These two claim petitions were disposed of by common judgment and award dated 03.11.2011 wherein the compensation which was awarded by the SLAO at the rate of Rs.37,732/- per acre was enhanced to Rs.4,00,000/- per acre. It is 4 the said order of the reference Court which is in challenge by respondent No.3 in the said proceedings on the premise that the compensation which was awarded by the reference Court is on the higher side and the same does not stand to reason; the method which is adopted by the reference Court in arriving at the enhanced compensation is contrary to the method which was adopted for enhancement of the compensation with reference to the proceedings initiated by the adjacent land losers where the maximum compensation for enhancement is considered at Rs.1,32,000/- per acre, the same should be considered for these lands also.
4. In this proceedings, after service of notice, the legal representatives of the original land owner who are respondent Nos.3 to 6 in this proceedings entered appearance through their counsel and tried to substantiate that the compensation enhanced by the reference Court is just and proper and the same is considered on the basis of sale statistics which are furnished by the land losers at Exs.P5 to P8 before the reference Court where they would state that the sale deeds from December 2001 to May 5 2002 are produced to demonstrate that in the same vicinity, certain transactions have taken place where sale consideration paid is in the range of Rs.10,000/- to Rs.15,000/- per gunta. It is on the basis of the said sale deeds, the reference Court has considered the compensation in a sum of Rs.4,00,000/- per acre, which is just and proper.
5. Heard the learned counsel appearing for the appellant-Karnataka Neeravari Nigam and respondent- claimants, perused the judgment impugned and also the lower Court records. On going through the same, it is seen that though the reference Court has relied upon several sale deeds which are at Exs.P5 to P8 as the basis for enhancement of compensation taking into consideration the sale statistics at the relevant point of time, it is contended by the learned counsel for the appellant that the said transactions cannot be taken into consideration for the simple reason that the extent of lands which are covered under these documents is one gunta, two guntas and to the maximum of six guntas and that the said sale deeds are all abutting to highway where 6 they have potential of being utilized for the activities other than agricultural purpose, like construction of residential houses and other purposes. To buttress the arguments, the learned counsel for the appellant would rely upon the judgment rendered by the Hon'ble Apex Court in the matter of Karnataka Urban Water Supply and Drainage Board and Others Vs. K.S.Gangadharappa and Another reported in (2009) 11 SCC 164 wherein it is observed as under:
"8. 16. '6. Where a large area is the subject- matter of acquisition, rate at which small plots are sold cannot be said to be a safe criterion. Reference in this context may be made to three decisions of this Court in Collector of Lakhimpur v. Bhuban Chandra Dutta, Prithvi Raj Taneja. v. The State of Madhya Pradesh and Kausalya Devi Bogra v. Land Acquisition Office,.
7. It cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the rate. For example, where there is no other material it may in appropriate cases be open to the adjudicating Court to make comparison of the prices paid for small plots of land. However, in such cases necessary deductions/adjustments have to be made while determining the prices.7
8. In Suresh Kumar v. Town Improvement Trust, in a case under the Madhya Pradesh Town Improvement Trust Act, 1960 this Court held that the rates paid for small parcels of land do not provide a useful guide for determining the market value of the land acquired. While determining the market value of the land acquired, it has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. It is an accepted principle as laid down in Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to receive from the willing purchaser. While considering the market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded; neither must be considered as acting under any compulsion. The value of the land is not to be estimated as its value to the purchaser. But similarly this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion may always be taken into consideration for what it is worth. Section 23 of the Act enumerates the matters to be considered in determining compensation. The 8 first criterion to be taken into consideration is the market value of the land on the date of the publication of the notification under Section 4(1). Similarly, Section 24 of the Act enumerates the matters which the Court shall not take into consideration in determining the compensation. A safeguard is provided in Section 25 of the Act that the amount of compensation to be awarded by the Court shall not be less than the amount awarded by the Collector under Section 11. Value of the potentiality is to be determined on such materials as are available and without indulgence in any fits of imagination. Impracticability of determining the potential value is writ large in almost all cases. There is bound to be some amount of guesswork involved while determining the potentiality.
9. It can be broadly stated that the element of speculation is reduced to minimum if the underlying principles of fixation of market value with reference to comparable sales are made:
(i) when sale is within a reasonable time of the date of notification under Section 4(1);
(ii) it should be a bona fide transaction;
(iii) it should be of the land acquired or of the land adjacent to the land acquired; and
(iv) it should possess similar advantages.
10. It is only when these factors are present, it can merit a consideration as a comparable case (See The Special Land Acquisition Officer, v. T. Adinarayan Setty.
9
These aspects have been highlighted in Ravinder Narain. V. Union of India.
17. The deduction to be made towards development charges cannot be proved in any straitjacket formula. It would depend upon the facts of each case."
6. He also relied upon one more judgment in the matter of State of J & K Vs. Mohammad Mateen Wani and Others reported in (1998) SCC 233 where the relevant paragraph 9 which reads as under:-
"9. Coming to the challenge as regards the enhanced compensation for the land, we find that the sale instances relied upon by the claimants can hardly be treated as comparable instances. The sale instances relate to small parcels of lands not more than 3 to 4 marlas each. Only one sale instance was sought to be proved by the claimants through the evidence of Mohd. Shaban, who had stated that three marlas of land in the close vicinity of the acquired land was sold to a cooperative society @ Rs.33,000/- per kanal. Other sale instances were although produced on record, but the same were not proved by the claimants either by examining the vendor or the vendee. As stated earlier, these sale instances are of a very smaller area and, therefore, they cannot be said to be comparable sale instances to determine the market price of such a big chunk of acquired land. The other evidence adduced by the claimants consisted 10 of the oral testimonies of lumbardars and local zamindars. Their oral evidence could hardly be accepted as a guide for determining the market price of the acquired land because they were not experts. The net result, therefore, is that the evidence of the claimants as regards the sale instances cannot be accepted as a measure to determine the market price of the acquired land. The only evidence which would have a bearing upon determination of the market price of the land is the report of the local Tehsildar. It is not disputed that the D.C. of District Pulwama had asked the local Tehsildar to inspect the acquired land and make a thorough enquiry as regards the price prevailing in the locality where the acquired land is situated. Accordingly, he submitted his report dated 14.5.1987 which is Annexure 5 annexed with Transfer Case (C) No.43/1996. This report was relied upon by the land acquisition Collector and at the trial, it is taken on record without being objected to by the State of Jammu and Kashmir and the Union of India. No challenge to the said report was made by either of the appellants before the District Court as well as before the High Court. The Tehsildar in his capacity as a Government official in discharge of his duties submitted the report and in his report, he had stated that the market price of the acquired land would be Rs.30,000/- per kanal. No serious arguments were advanced before us on behalf of the Union of India or the State of Jammu and 11 Kashmir which could persuade us to reject the said report. In these circumstances, we are of the considered view that the report dated 14.5.1987 furnished by the Tehsildar was rightly relied upon by the courts below for determining the market price of the acquired land. The District Judge and the High Court, while enhancing the compensation to Rs.45,000/- per kanal for the acquired land, mainly relied upon the sale instances which we have discarded as not being comparable. The other evidence which found favour with the District Judge and the High Court was the oral evidence of local Lambardars, Zamindars and one of the claimants. Their evidence, in our considered view, would not furnish any basis for determining the market value. The courts below, in our considered view, have committed a serious error of law in relying upon the sale instances which were found by us as not comparable while enhancing the market value of the acquired land. In view of this factual position, we are of the view that the respondents/claimants would not be entitled for compensation in respect of their lands for more than Rs.30,000/- per kanal."
7. By relying upon the aforesaid judgments, he tried to demonstrate that, in the fact situation, the sale deeds which are produced and relied upon by the claimants before the reference Court could not have been relied upon by the reference Court. It is further stated that the 12 reference Court has also not looked into the fact whether there is sufficient evidence to demonstrate that the lands covered under the aforesaid judgments and one which is the subject matter of acquisition is similar should have been considered as observed by the Hon'ble Apex Court in the matter of Panna Lal Ghosh and Others Vs Land Acquisition Collector and Others reported in AIR 2004 SC 1179 where the observation of the Hon'ble Apex Court is at paragraphs 6 and 7, which reads as under:
"6. Accordingly, the appellants had produced before the High Court a certified copy of an award passed by the learned L.A. Judge in another acquisition proceedings. In this case, the land was 150 ft. away from the lands involved in the present proceedings. In those proceedings, the learned L.A.Judge had awarded Rs.1 lakh per acre as compensation. This was sought to be relied on by the appellants. The High Court chose not to rely on this document as no evidence was led to show that both lands are similar in nature having similar potentiality.
7. While determining the market value of land, it must be with reference to a piece of land which is comparable to the present lands being acquired. It must be similar in potentiality and nature. The document which the appellants seek to 13 rely on relates to land which was acquired for the purpose of Assam-Agartala Road. It was 3 feet higher than the acquired land. Further, the two lands were not proved to be comparable in nature and potentiality. Therefore, the High Court is right in not relying on the said document and disallowing the claim for enhancement for compensation."
8. After referring to the aforesaid judgments to demonstrate that the reference Court was in error in relying upon the sale statistics furnished by the claimants, the learned counsel for the appellant would take this Court through the order of SLAO which is at Ex.P3. He would also demonstrate that sale statistics was considered at page No.39 of the award where the sale statistics in the said region to an extent of 64 items is considered. He would also bring to the notice of this Court that, in the said statistics there is reference to the sale of land situated adjacent to the land of respondent Nos.3 to 6 which is in Sy.No.292/2 sold for Rs.30,000/- per acre on 23.03.2002 as could be seen at serial number 10 in the sale statistics chart produced by the SLAO. Sale of another land at serial number 38 where adjacent land bearing 14 Sy.No.296/2 which is sold in the year 2003 at Rs.45,000/- for 1.15 acres of land.
9. With this, it is seen that the actual sale price that was available to the land similarly situated during the said period was roughly Rs.30,000/- per acre and not Rs.10,000/- per gunta as tried to demonstrate before the reference Court by the claimants. Though the respondents tried to assert that the compensation awarded is just and proper, they are not able to assist the facts which demonstrate from the records and also the observations which were made by the Hon'ble Apex Court in the earlier judgments with reference to the manner in which the sale statistics could be considered. It is in this background, this Court is of the considered opinion that the compensation awarded by the reference Court at Rs.4,00,000/- per acre is on the higher side and the same is required to be revised.
10. Admittedly, the land in question is dry land. In this proceedings, respondent Nos.3 to 6 tried to assert that cotton and maize which are dry land crops were grown in their property and that respondents' lands were getting 15 two crops in a year that should have been considered in the alternative. However, when the records are seen, it is clear that the land in question is dry land and the RTC which is produced would indicate that no crops were grown. However, for the purpose of calculation of compensation, this Court would either rely upon the sale statistics or capitalization method or opinion of the expert. In the instant case, there is no opinion of any expert to state what was the condition of the soil, what would be the crop that could be grown in the said land and what would be the yield of crop that would be grown in the said land.
11. Therefore, in fact circumstance, it would be safer to follow the sale statistics method where on earlier occasion with reference to 720 cases out of nearly 810 cases of acquisition sale statistics is taken for acquisition of dry land and compensation is fixed at Rs.1,32,000/- per acre, which is accepted by the 722 persons whose lands are acquired and compensation is awarded and that the same has reached finality without there being any appeal against the order of the reference Court. In that view of the matter, the same analogy should be applied to the 16 case on hand. Accordingly, the compensation which is required to be considered for acquisition of land of respondent Nos.3 to 6 should also be considered at the rate of Rs.1,32,000/- per acre.
12. Accordingly, the appeal filed by respondent No.3 in LAC No.105/2008 is allowed in part. It is needless to say that respondent Nos.3 to 6 herein shall be entitled to receive the aforesaid amount of Rs.1,32,000/- per acre along with statutory benefit under Sections 23(2) and 23(2)(a) of the Act and interest payable under Section 34 of the Act together with costs.
(Sd/-) JUDGE (Sd/-) JUDGE MBS/-