Karnataka High Court
B.K. Idinabba vs The Land Acquisition Officer And ... on 21 April, 1994
Equivalent citations: AIR1995KANT49, ILR1994KAR1229, 1994(4)KARLJ263, AIR 1995 KARNATAKA 49
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER M. Ramakrishna, J.
1. M. F. A. No. 2502 of 1988 and M.F.A. (F.R.) No. 9154 of 1988 arise out of the common judgment and award made by the II Additional Civil Judge, Mangalore, in L.A.C. Nos. 1 of 1980 and 171 of 1978 respectively on 14-6-1988.
2. B.I. Idinabba is the appellant in both these appeals. He has sought for enhancement of compensation on the ground that the compensation awarded by the learned Civil Judge is on the lower side.
3. So far as M.F.A. (F.R.) No. 9154 of 1988 is concerned, it is seen from the order sheet that the appellant has preferred a Regular First Appeal against the judgment and award made by the learned Civil Judge in L.A.C. No. 171 of 1978. The amount involved in the appeal is less than rupees one lakh; therefore, the appeal has to lie before the District Judge, Managlore. This appeal was directed to be posted along with M.F.A. No. 2502 of 1988 by an order made on 17-11-1979. However, the appellant prays that since M.F.A. No. 2502 of 1988 has been admitted and posted for hearing, M.F.A. (F.R.) No. 9154 of 1988 may be retained on the file of this Court so that both the appeals may be heard and disposed of by a common judgment so that multiplicity of proceedings -- One before the District Judge and the other before this Court -- May be avoided. Therefore, we have taken both the appeals for hearing.
4. We have heard learned counsel on both sides.
5. Sri P. Vishwanatha Shetty, learned counsel appearing for the appellant in these two appeals, firstly argued that the learned Civil Judge committed an error in not having followed the assessment of the market value of the lands acquired under the same notification in L.A.C. Nos. 25 and 2 of 1977 disposed of on 9-6-1978 by the I Additional Civil Judge, Mangalore. In other words, his argument is that the learned Civil Judge ought to have awarded compensation in the present cases following the compensation of Rupees 50,000/- per acre awarded in the aforesaid L.A. cases, for, the lands in both the cases are more or less similar and acquired under the same notification. He nextly argued that the learned Civil Judge was not right in apportioning the award amount -- 2/3rd in favour of the appellant and l/3rd in favour of the land owner -- holding that the land owner was entitled to that extent in the award amount having regard to the interest he had in the lands acquired by the Government. His submission, in this behalf, is that the learned Civil Judge failed to consider that having regard to the provisions of the Karnataka Land Reforms Act, 1961 (the Act for short), the rands in question having been tenanted as on 1-3-1974 vested in the State Government, that the land owner lost all his rights to the lands thereafter except to the extent as provided in Sec. 47 of the Act for the amount payable to the landlord and all other persons for the extinguishment of their rights in the lands vested in the State and that no other right or interest of the landowner is saved under the Act. Elaborating his arguments, he submitted that the learned Civil Judge ought to have seen that the appellant being a Chalgeni tenant was a permanent tenant of the lands, that he had been cultivating them for the last three decades, that by virtue of the order made by the Land Tribunal, Mangalore, on 25-10-1977, occupancy right in respect of the lands in question was granted in his favour, that that being so, as on the date of the award made subsequently on 28-9-1979 by the Land Acquisition Officer, the land owner ceased to have any right, title or interest in the lands and that this fact had not been noticed by the learned Civil Judge.
6. With regard to the observation made by the Land Acquisition Officer in the course of the award that the tenant has not acquired the ownership of the lands, his submission is that that observation is totally erroneous and incorrect, inasmuch as no opportunity was given to the appellant to produce a copy of the order of the Land Tribunal granting occupancy in his favour long prior to the passing of the award by the Land Acquisition Officer and that based upon such an observation, the learned Civil Judge was not right in awarding 1/3rd of the compensation awarded by him in favour of the landowner as he is not entitled to any such amount once the land vested in the State and occupancy was granted to the tenant thereof. The further argument of Sri Shetty is that the reference under Section 18 of the Land Acquisition Act, 1894 (the Act of 1894 for short) was made by the Land Acquisition Officer on the application made by the appellant and that no such application was filed by the landowner much less the Land Acquisition Officer referred any dispute between the appellant and his landlord Mallya under Section 30 of the Act of 1894 either at the time of passing the award or at the time of making a reference under Section 18 of the Act of 1894. That being so, in the absence of any application under Section 18 by the landlord or reference of any dispute under Section 30 by the Land Acquisition Officer, the learned Civil Judge was wrong in apportioning 1/3rd of the compensation in favour of the landowner. This finding, according to Sri Shetty, being illegal and unsustainable, is liable to be set aside.
7. In support of his arguments, Sri Shetty placed reliance on the following authorities:--
(1) ILR (1974) Kant 86 : (AIR 1975.Kant 34); Jayanthi Shedthi v. The Spl. LAO -- on the question of apportionment.
(2) (1969) I Mys LJ 613: (AIR 1969 Mys
313); Basalingappa Gowda v. Nagamma--on the question of jurisdiction of the Civil Court to make apportionment in the absence of an application under Section 18 of the Act.
(3) (Or ); Mathura Prosad Rajgharia v.
State of West Bengal.
(4) AIR 1987 Gujarat 55; Sharadchandra Chimanlal v. State of Gujarat.-- On the question of apportionment.
(5) ; Administrator General of West Bengal v. Collector, Vara-nasi -- on the question of market value.
8. Opposing the arguments advanced on behalf of the appellant, Sri D'sa, learned Government Advocate, argued that in the absence of any evidence let in by the appellant as to the potentiality of the lands being used for urban use, it was not possible for the Court to follow the ruling of the Supreme Court in Administrator General's case . He submitted that the learned Civil Judge was right in not following the compensation awarded at Rs.50,000/- in L.A.C. Nos. 25 and 2 of 1977, as, according to him, the advantages and potentialities of the lands therein were entirely different from those of the present lands. He lastly submitted that M.F.A. No. 1939 of 1988 filed by the State challenging the very judgment and award under challenge in these appeals came to be dismissed by this Court affirming the award of compensation of Rs. 20,000/- per acre and that therefore these appeals for enhancement of compensation were also liable to be dismissed as devoid of merits.
9. In view of the foregoing, the following points arise for our consideration in these appeals:--
(1) Whether the award of compensation in a sum of Rs.20,000/- per acre made by the learned Civil Judge is on the lower side.
(2) If so, what is the justifiable market value of the lands in these cases.
(3) Whether the learned Civil Judge was not justified in apportioning l/3rd of the compensation in favour of the landlord in the absence of any application filed by him under Section 18 and when he was not a party to the proceedings before the Court below?
10. Points 1 and 2.
The undisputed facts as disclosed from the appeals are that the preliminary notification under Section 4(1) of the Act of 1894 intending to acquire the lands in question for a public purpose to wit, formation of a compact market yard for Agricultural Produce Market Committee, Mangalore, was published in the Official Gazette on 5-11-1970. The lands are situated in several places at Bikampady village of Mangalore Taluk, Dakshina Kannada District. The appellant being the tenant of the lands in question claimed compensation in a sum of Rupees 30,000/- per acre, whereas the landlord Mallya claimed Rs. 10,000/- per acre before the Land Acquisition Officer, who, however, after making local inspection collecting all necessary data as to the market value and considering the report of the competent authority and the evidence on record, passed a common award in respect of 16 items of lands including the lands in question in No. 23/79-80 dated 28-9-1979 fixing the market value at Rs. 10,000/- per acre for dry lands and Rs. 13,350/- per acre for wet lands. On reference on the application under Section 18 of the appellant, the learned Civil Judge enhanced the compensation at Rs. 20,000/- per acre. Aggrieved by the inadequacy of the compensation awarded, the appellant has filed these appeals.
11. It is on record that for the acquisition of the lands of the same village acquired under the same notification, the learned 1 Additional Civil Judge, Mangalore, has awarded in L.A.C. Nos. 25 and 2 of 1977 on 9-6-1978 compensation in a sum of Rs. 50,000/- per acre. Therefore, we will have to see whether there is any force in the submission of Sri Shetty that the learned Civil Judge should have awarded compensation in the present cases also as has been awarded in L.A.C. Nos. 25 and 2 of 1977. We have perused the judgment in the above cases. While awarding compensation in a sum of Rs. 50,000/- per acre in those cases, the learned Civil Judge held that determination of the market price of the acquired land by the Land Acquisition Officer was unfair and unreasonable, taking into consideration sale price of the nearby land measuring 17 cents, that 25 cents of land could not be said to be a big piece of land and that the Land Acquisition Officer had misread and misunderstood the observations of the High Court in the decision referred to by him while passing the award. Thus, based upon the evidence let in by the parties and the documentary evidence produced to show the sale price of the neighbouring lands, he held that the land acquired therein had potentiality of being used as house sites and for industries and therefore he awarded compensation in a sum of Rs. 50,000/- per acre.
12. Sri Vishwanatha Shetty submits in this behalf that in the claim petition the appellant sought for compensation of Rupees 30,000/- per acre though he could have asked more and that therefore considering the evidentiary value let in L.A.C. Nos. 25 and 2 of 1977, this Court may award compensation at least to the extent prayed for by the appellant in these appeals. To substantiate his contention, Sri Shetty submits that the lands acquired in L.A.C. Nos. 25 and 2 of 1977 are not far away from the present lands, that all the lands are situated in the same village and that the present lands are situated very close to the West Coast Road and are having potentialities for urban use.
13. Repelling the argument advanced by the learned Government Advocate placing reliance on the decision of this Court in M.F.A. No. 1939 of 1988, Sri Shetty argued that the decision in that appeal by the State challenging the award of compensation in a sum of Rs. 20,000/- Per acre should not be taken as a decisive factor nor could it be construed as res judicata as the prayer of the appellant in these appeals is that the contentions taken by him must be considered independently without being influenced by the decision rendered by another Division Bench of this Court in M.F.A. No. 1939 of 1988. The argument is that merely because the appellant failed to file cross appeal in that appeal, the right available to him in these appeals should not be taken away by the decision dismissing the above State appeal.
14. We have perused the judgment and award under appeal which was also under challenge in M.F.A. No. 1939 of 1988. It is true that the learned Civil Judge in the course of the order has referred to the compensation awarded in L.A.C. Nos. 25 and 2 of 1977 disposed of on 9-6-1978 by the Ist Additional Civil Judge, Mangalore, enhancing the compensation to Rs.50,000/- per acre for the lands acquired under the same notification. However, he awarded compensation at Rupees 20,000/- per acre for the present lands on the reasons given by him in paragraph 13. He has stated therein:
"It has come in the evidence that the land acquired under Ex. P-2 was already used as a house site. The Land Acquisition Officer had granted compensation at the rate of Rupees 29,000/- per acre as against the claim of Rs.75,000/- per acre by the claimant. The learned I Additional Civil Judge enhanced compensation to Rs. 50.000/- per acre. But_in the present case the lands are not adjoining the West Coast National Highway. It has come in the evidence of P. W. 1 that the lands acquired are about one or two furlongs away from the National Highway."
This is one of the striking differences for the purpose of comparing the lands - one in L.A.C. Nos. 25 and 2 of 1977 and the other in the lands in the present cases. In other words, there is a good deal of difference between the two sets of lands.
15. The learned Civil Judge proceeded further to consider the potentialities of the two sets of lands for the purpose of awarding compensation for the present lands at Rupees 20,000/- per acre, as follows:-
"In similar other cases of land acquisition arising out of the same preliminary notification for the same purpose, I have enhanced the compensation to Rs. 20.000/- per acre in respect of dry, wet-II and wet-III lands holding all such lands are having the poten-
tiality of being used either for residential purpose or for industrial purpose. Since Ex. P-2 cannot form the basis for awarding compensation as it does not relate to lands similar to ones acquired and since I have dealt with several cases of land acquisition in this Court arising out of the same preliminary notification, I am of the view that awarding compensation at the rate of Rs. 20,000/- per acre would meet the ends of justice and I, therefore, fix the market value of the land at Rs.20,000/- per acre."
16. Applying his mind to the facts of the case and the judicial discretion while considering the potential value of the two sets of lands, the learned Civil Judge has fixed the market value of the present lands at Rupees 20,000/ - per acre. While doing so, he held that Ex. P-2, a copy of the judgment and awarded in L.A.C. Nos. 25 and 2 of 1977 could not be made basis for awarding compensation in the present cases. To say so, he has given acceptable and cogent reasons that in L.A.C. Nos. 25 and 2 of 1977 the lands were abutting the West-Coast National Highway and they had the potentiality for urban use having already developed as house sites and that in the present cases the lands were situated about one or two furlongs away from the West-Coast Highway and they had no such potentiality for urban use. Even the learned Judge who enhanced the compensation to Rupees 50,000/- in L.A.C. Nos.25 and 2 of 1977 has stated in his order that besides other considerations, the lands being small in extent viz., 25 cents and 52 cents, he had to award so much of compensation. The lands involved therein were admittedly garden lands. In the present cases, Sy. Nos. 39/4 (0-67 cents) and 39/5 (2-08) are dry lands and other lands in Sy. Nos. 36/6 (0-38), 39/2.(1-53) and 39/1 (0-51 cents) are wet lands and in extent also these lands are comparatively big. Therefore, it is not possible for us to accept the contention of Sri Setty that the compensation in these cases be enhanced to Rs. 50,000/- p.a., or at least to Rs. 30,000/- per acre as claimed by the appellant. Hence, we reject the contention and uphold the compensation awarded by the learned Civil Judge in these cases at Rs. 20,000/-per acre.
Point No. 3.
17. On this point, the argument of Shri P. V. Shetty, learned counsel for the appellant is that the learned Civil Judge should have applied his mind to the provisions of Sections 44, 45 and 47 of the Act to ascertain whether on the coming into force of the Act, the tenanted lands in question having vested in the State with effect from 1-3-1974, any right, title or interest of the landlord of such lands is saved with a view to enable him to seek apportionment of the compensation awarded. He failed to do so. To substantiate his argument, he submitted that the appellant having been conferred occupancy right over the lands in question even much before their acquisition, no right or interest of the landowner was saved except to the extent indicated in Section 47 of the Act and nothing more. That being so, the learned Civil Judge committed an error in holding that the landowner was entitled to l/3rd of the compensation awarded. This conclusion was wholly wrong and illegal and the same was liable to be set aside.
18. At the out-set, by a perusal of the original records it is seen that after passing the award on 28-9-1979, the Land Acquisition Officer directed the amount of award to be deposited in Civil Court. Though Mallya, the khatedar, was made a party in the proceedings as he also claimed compensation at Rs. 10,000/- per acre, neither the Land Acquisition Officer apportioned the award amount in favour of both the parties nor the landowner, Mallya, filed an application under Section 18 for referring the matter to the Civil Court for enhancement of the compensation awarded by the Land Acquisition Officer.
19. In the proceedings before the learned Civil Judge initiated at the instance of the appellant-tenant, Mallya was not made a party nor had he taken any steps to implead himself as a necessary party. Therefore, we will have to see whether it would be competent for the Civil Judge to say that the tenant being a Moolgeni tenant of the lands in question was entitled to 2/3rd and the landlord to 1/3rd of the compensation awarded.
20. Narayana Pai, J., as he then was, in Basalingappa Gowda's case (AIR 1969 Mys 313), in a similar situation, held as'follows (para 9):--
"Although the provisions of the Code of Civil Procedure are applied to the reference under Section 30, they apply only to the extent they are not incosistent with the provisions of the Land Acquisition Act. There is no general jurisdiction, therefore, to bring on record additional parties as a Court may do in the case of an ordinary civil litigation."
While rejecting the contention that whenever the Land Acquisition Officer discovers that a person other than a claimant actually before him may have some title or interest in the property, he can make a reference under Section 30, he held:
"If the claimant or claimants before the Land Acquisition Officer ask for the payment of the entire compensation to him or them in agreed proportion, then the Land Acquisition Officer is bound to make payment to him or to them as the case may be. He has no jurisdiction to withhold payment on the ground he believes or is in a position to infer that there arc other persons who may be interested in the property."
In that decision, the learned Civil Judge took steps to add a certain party in the proceedings before him under Section 18 of the Land Acquisition Act even though such party was not a party before the Land Acquisition Officer. In the instant case, no doubt, Mallya having claimed compensation being the khatedar of the lands in question was a party before the Land Acquisition Officer. Therefore, while making a reference under Section 18 of the Act at the instance of the appellant, the Land Acquisition Officer directed the entire amount of award to be deposited in the Civil Court pending disposal of the reference. Now the question is whether, in the absence of an application under Section 18 by the landowner and when he failed to implead himself as a necessary party in the proceedings before the Civil. Judge, the learned Civil Judge was correct in holding that the landowner was entitled to 1/3rd of the compensation awarded.
21. The Land Acquisition Officer having considered the claims of both the appellant-tenant and the landlord Mallya directed the entire amount to be deposited in the Civil 1 Court under Sections 30 and 31 of the Act of 1894, holding that the tenant had not acquired ownership then under the Act and that therefore it was not possible to apportion the award amount. Now we will have to see whether there is any difference between an award under the Land Acquisition Act and a decree as defined in the Code of Civil Procedure.
22. I am of the opinion that there is a good deal of difference between a decree as defined under Section 2(2) of the Civil Pro-
cedure Code and the award under Act of 1894. Section 2(2), C.P.C. defines "decree" as follows:--
" "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include:
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
XX XX
23. Apportionment by Court is not an award but a decree. However, the Land Acquisition Officer does not constitute a Court. The Judicial Committee observed in Ramachandra Rao v. Ramachandra Rao, (1922) ILR 45 Mad 320: (AIR 1922 PC 80 at p. 83) as follows:--
"It is true that in the case of Sreemutty Trinayani Dassi v. Krishna Kal Dey (1913 (17) Cal WN 935 N), following the earlier case Balaram Bhramaratar Ray v. Sham Sunder Narendra (1896 ILR 23 Cal 526), it was decided that an order under Section 32 may appropriately be deemed an integral part of the award made by the Court, but their Lordships regard this as a misapprehension as to the meaning of the award. The award as constituted by statute is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector has information, meaning thereby people whose interests are not in dispute, but from the moment when the sum has been deposited in Court under Section 31(2) the functions of the award have ceased; and all that is left is a dispute between_ the interested people as to extent of their interest. Such dispute forms no part of the award, and it would, indeed, be strange if a controversy between two people as to the nature of their respective rights in a piece of land should enjoy certain rights of appeal which would be wholly taken away when the place of land was represented by a sum of money paid into Court."
Similarly, in Venkatareddy v. Adinarayana, A1R 1929 Mad 351 also, the Madras High Court has taken the view that a decision on a reference under Section 30 was regarded as a decree and not as award as then understood and it attracted all the usual consequences of an appeal. It was a decree governed by the Civil Procedure Code and the Civil Courts Act. This was the view taken in Maholinga Kudumbam v. Theetharappa Mudaliar, AIR l929 Mad 223 in which it was held that Chapter III of the Civil Courts Act uses the word "award" to describe the adjudication of Court, but Section 30 and similar sections carefully abstain from the use of the term "award."
24. The Calcutta High Court in Sasi, Kanta Achary v Abdur Rajman, AIR 1924 Cal 158 has taken the view that when the landlord does not invite any reference but the tenant does, the tenant cannot be deprived of the additional sum allowed by the Court, notwithstanding any contract between the parties.
25. Admittedly, Sri Mallya, khatedar, has not made any application under Section 18 nor the Land Acquisition Officer referred the dispute to the decision of the Court under Section 30 of the Act of 1894. That being so, the Reference Court cannot make apportionment of the compensation awarded (by) him in favour of the khatedar who was not a party before him and who did not make an application under Section 18 of the Act.
26. That apart, in the instant case, we will have to go one foot further. It is undisputed that the appellant was the tenant of the lands in question, that on the coming into force of the Karnaktaka Land Reforms Act, the lands vested in the State under Section 44 of the Act and consequently all rights, title and interest of the owners of the tenanted lands ceased and that subsequently the Land Tribunal granted occupancy right over the lands in question in favour of the appellant. Thus the appellant has become the absolute owner of the lands.
27. In Babi D'Souza v. Syndicate Bank, ILR (1986) 1 Kant 900, this Court referring to the provisions of Section 44(2)(d) held that once the occupancy has been conferred on the tenant, the occupancy so conferred would amount to an interest in the property and the land ceases to vest in the State Government and the tenant becomes the full owner thereof.
28. In the instant case, the order made by the Land Tribunal granting occupancy in favour of the appellant in respect of 11 items of lands including the lands in question has not been challenged by the landlord Mallya. Therefore, that order becomes final. Therefore, we will have to see what are the rights available to the land owner under the Act.
29. Section 47 providess for amount payable to the land owner on extinguishing his rights in the land vested in the State Government under sub-section (6) of Section 15 or Section 20 or Section 44 of the Act and such persons would be entitled to an amount determined with reference to the net annual income derivable from the land or all the lands as the case may be in accordance with the scale prescribed under sub-clauses (i) to (iii) of Section 47. Therefore, except this right no other rights are saved in favour of the land owner under the Act which is made clear by sub-clause (f) of Section 44 which reads:
"The land owner, landlord and every person interested in the land whose rights have vested in the State Government under clause (a), shall be entitled only to receive the amount from the State Government as provided in this Chapter."
Therefore, no other right or interest other than what is saved under clause (f) of Section 44 of the Act is available to the landlord.
30. During the course of the award, the Land Acquisition Officer dealing with the tenancy rights of Idinabba (the appellant herein) has observed:
"As the tenant in this case, he has not acquired ownership so far under the provisions of the Land Reforms Act and the same has to be decided by the Land Tribunal concerned, it is not possible to apportion the compensation amount."
This observation of the Land Acquisition Officer is factually incorrect and erroneous, inasmuch as before him, the appellant has taken a speific stand that the lands in question being the subject matter of the proceedings before the Land Tribunal, Mangalore, occupancy thereof has been conferred on him by an order made by it as far back as on 25-10-1977 much earlier to the award made by the Land Acquisition Officer on 28-9-1979. Besides, the appellant has stated in his deposition before the Civil Judge that Sy. Nos. 39/1, 39/2 and 39/6 are enjoyed by him as Mulgeni tenant. The sale of Mulgeni right marked as Ex. P1 in the course of the proceedings before the learned Civil Judge discloses the same. Even though a copy of the order made by the Tribunal on 25-10-1977 was not produced before the learned Civil Judge, it was produced before us. It was seen therefrom that the Land Tribunal conferred occupancy right in respect of the lands in question in favour of the appellant on 25-10-1977. Nobody disputed this documentary evidence.
31. The Land Acqusition Officer while directing deposit of the award amount in the Court under Sections 30 and 31 of the Act of 1894 failed two apply his mind to the provisions of the Land Reforms Act though the appellant had specifically taken the contention that he was the absolute owner of the lands, having been granted occupancy over them and that therefore he was entitled to the entire award amount. If he had considered the contention of the appellant with reference to the provisions of the Act, he would not have observed as above. Even the learned Civil Judge has failed to apply his mind to the provisions of the Act though it was brought to his notice that the appellant being a Mulgeni tenant of the lands in question was granted occupancy thereof.
32. In view of what is discussed above, we have to hold that Mallya, owner of the lands in question, has no right, title or interest in them, after they vested in the State and occupancy over them was granted in favour of the appellant, to claim compensation on their acquisition except that he is entitled to amount payable under Section 47 under the Act. That being so, even if he had filed an application under Section 18 of the Act of 1894 or the Land Acquisition Officer referred the dispute under Section 30 of the said Act, it would not have made any difference. The resultant position would have been as we have held as above. Thus, we answer point No. 3 in the negative holding that the learned Civil Judge was not justified in apportioning 1/3rd of the compensation in favour of the landlord.
33. In view of our answer on point No. 1 against the appellant, we need not go into the question of res judicata argued in the case. However, his question will be decided in an appropriate case.
34. In the result and for the reasons stated above, we allow the appeals in part. While upholding the compensation awarded by the learned Civil Judge at Rs. 20,000/- per acre, we set aside his judgment and award under challenge in these appeals in so far as they relate to apportioning 1/3rd of the amount of compensation in favour of the landlord. Ordered accordingly.
35. Appeals partly allowed.