Allowed

S T Vijayakumar v. the Special Land Acquisition Officer

Karnataka HC11 Oct 2022MFA/1662/2014

Case brief

AI extract

What is this about?

High Court allowed MFA applications against compensated land acquisition reference judgment. Court quashed awards fixing rates at Rs. 65,000/acre for ignoring remand instruction and evidence. Matter remanded for fresh consideration of documents and oral evidence within three months with evidence freezing.

What did the court decide?

Impugned judgment and award set aside; matter remanded to Reference Court for fresh consideration of oral and documentary evidence.

S T Vijayakumar Vs the Special Land Acquisition Officer — Land Acquisition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF OCTOBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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MISCELLANEOUS FIRST APPEAL No.1560/2014 (LAC) C/W MISCELLANEOUS FIRST APPEAL No.1662/2014 (LAC) MISCELLANEOUS FIRST APPEAL No.1663/2014 (LAC) MISCELLANEOUS FIRST APPEAL No.1664/2014 (LAC)

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IN M.F.A. No.1560/2014

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BETWEEN:

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T. THYAGARAJ S/O. LATE H. THIMMAIAH AGED ABOUT 54 YEARS, AGRICULTURIST, R/AT JAIL ROAD, NEAR PADMAMBA CHIKITSALAYA, SHIMOGA CITY – 577 201. ... APPELLANT

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(BY SRI VARADARAJ R. HAVALDAR, ADVOCATE)

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AND:

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THE SPECIAL LAND ACQUISITION OFFICER, SHIMOGA URBAN DEVELOPMENT AUTHORITY, SHIMOGA – 577 201. ... RESPONDENT

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(BY SRI A.V. GANGADHARAPPA, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 54(1) OF THE LAND ACQUISITION ACT AGAINST THE JUDGMENT AND DECREE DATED 11.11.2013 PASSED IN LAC NO.145/1999 ON THE FILE

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OF THE 1^ST ADDITIONAL CIVIL JDUGE (SR.DN.), CJM, SHIMOGA, PARTLY ALLOWING THE REFERENCE PETITION FOR COMPENSATION AND SEEKING FURTHER ENHANCEMENT OF COMPENSATION.

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IN M.F.A. No.1662/2014

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BETWEEN:

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S.T. VIJAYAKUMAR S/O. LATE S.T. THIMMAPPA, AGED ABOUT 61 YEARS, OCC: AGRICULTURE COOLIE,

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S.T. SURESH SINCE DEAD BY HIS LRs.

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2(a) SMT. KAMALA K.M. W/O. S.T. SURESH, AGED BOUT 44 YEARS,

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2(b) MASTER S.S.MANOJ BHARGAVA, S/O. S.T. SURESH, AGED ABOUT 15 YEARS

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3(c) KUM. S.S. SUREKHA BHARGAVA, D/O. S.T. SURESH, AGED ABOUT 15 YEARS,

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2(b) & 2(c) ARE MINORS AND ARE REPRESENTED BY THEIR NATURAL GUARDIAN AND MOTHER SMT. KAMALA R-2(a).

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ALL ARE RESIDING AT 6^TH CROSS, RAVINDRA NAGAR, SHIMOGA CITY – 577 201. ... APPELLANTS

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(BY SRI S.V. PRAKASH, ADVOCATE)

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AND:

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THE SPECIAL LAND ACQUISITION OFFICER,

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SHIMOGA URBAN DEVELOPMENT AUTHORITY, SHIMOGA – 577 201.

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... RESPONDENT

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(BY SRI A.V. GANGADHARAPPA, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 54(1) OF LAND ACQUISITION ACT AGAINST THE JUDGMENT AND AWARD DATED 11.11.2013 PASSED IN LAC NO.147/1999 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, & CJM, SHIVMOGGA, PARTLY ALLOWING THE REFERENCE PETITION FOR COMPENSATION AND SEEKING FURTHER ENHANCEMENT OF COMPENSATION.

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IN M.F.A. No.1663/2014

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BETWEEN:

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SRI V. GOPALAKRISHNA S/O. VENKATANARASAPPA, REPRESENTED BY GPA HOLDER SRI V. ASWATHANARAYANAMURTHY, S/O. VENKATA NARASPPA, R/O NO.108, I MAIN, 1^ST CROSS, RAJENDRANAGAR, SHIMOGA – 577 201. ... APPELLANT

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(BY SRI S.V. PRAKASH, ADVOCATE)

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AND:

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THE SPECIAL LAND ACQUISITION OFFICER, SHIMOGA URBAN DEVELOPMENT AUTHORITY, SHIMOGA – 577 201. ... RESPONDENT

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(BY SRI A.V. GANGADHARAPPA, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 54(1) LAND ACQUISITION ACT AGAINST THE JUDGMENT AND AWARD DATED 11.11.2013 PASSED IN LAC NO.143/1999 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, & CJM, SHIVAMOGGA, PARTLY ALLOWING THE REFERENCE PETITION FOR ENHANCED COMPENSATION AND SEEKING FURTHER ENHANCEMENT OF COMPENSATION.

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IN M.F.A. No.1664/2014

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BETWEEN:

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SMT. SAVITHRAMMA SINCE DEAD BY HER LRs.

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SRI R. ANANDA, S/O. LATE S.H. RAMANNA,

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SRI CHANDRASHEKARA S/O. LATE S.H. RAMANNA,

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SRI S.R. HANUMANTHA, S/O. LATE S.H. RAMANNA,

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SRI S.R. ESHWARA S/O. LATE S.H. RAMANNA,

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SRI.S.R. NARAYANA S/O. LATE S.H. RAMANNA,

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ALL ARE MAJORS AND R/O. 3^RD CROSS, GANDHIBAZAR, UPPARA STREET, SHIMOGA – 577 201.

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SMT. S.R. LALITHA W/O. C.H. PRASANNA KUMAR, D/O. LATE S.H. RAMANNA, R/O. 3^RD CROSS, GANDHIBAZAR, UPPARA STREET, SHIMOGA – 577 201.

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SMT. JAYALAKSHMI W/O. M. KENCHAPPA, RETD. LIC DIVISIONAL OFFICER, K.H.B. COLONY, NEAR RAJARAM COLONY, HARIHARA, DAVANAGERE DISTRICT – 577 101.

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SMT. LAKSHMIDEVI W/O. H.T. PARASHURAM, RETD. AGRICULTURAL OFFICER, SRIRAM, HOUSE NO.244, E BLOCK, GOPALA EXTENSION, SHIMOGA – 577 201.

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SMT. S.R. VINODA W/O. C.R. CHANDRAKANTH UPPAR, H.NO.F-50, RENUKASHREE NILAYA, 4^TH MAIN ROAD, F BLOCK, GOPALA BADAVANE, SHIMOGA – 577 201. REPRESENTED BY GPA HOLDER SRI CHANDRASHEKARA 3^RD CROSS, GANDHIBAZAR, UPPARA STREET, SHIMOGA – 577 201. ... APPELLANTS

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(BY SRI S.V. PRAKASH, ADVOCATE)

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AND:

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THE SPECIAL LAND ACQUISITION OFFICER, SHIMOGA URBAN DEVELOPMENT AUTHORITY, SHIMOGA – 577 201. ... RESPONDENT

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(BY SRI A.V. GANGADHARAPPA, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 54(1) OF LAND ACQUISITION ACT, AGAINST THE JUDGMENT AND DECREE DATED 11.11.2013 PASSED IN LAC NO.148/1999 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, CJM, SHIVAMOGGA, PARTLY ALLOWING THE REFERENCE PETITION FOR COMPENSATION AND FURTHER SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FINAL HEARING THIS DAY, B.VEERAPPA J. , DELIVERED THE FOLLOWING:

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J U D G M E N T

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MFA.Nos.1560/2014, 1662/2014, 1663/2014

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and 1664/2014 are filed by the claimants for enhancement of compensation amount against the judgment and award dated 11/11/2013 made in LAC.Nos.143/1999, 145/1999, 147/1999 and 148/1999 by the I Additional Senior Civil Judge and CJM, Shivamogga, allowing the appeals in part with costs and awarding compensation of Rs.65,000/- per acre for the acquired lands with statutory benefits.

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I. Facts of the case:

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Sy.No.125 measuring 7 acres 28 guntas,

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Sy.No.125 measuring 3 acres 30 guntas, Sy.No.127/2 measuring 2 acres 35 guntas, Sy.No.128/2 measuring 2 acres 11 guntas, and Sy.No.13 measuring 5 acres 18 guntas situated at Sominakoppa Village, Shivamogga Taluk, Shivamogga District were acquired

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by the respondent/Special Land Acquisition Officer, Shivamogga Urban Development Authority by issuing Preliminary Notification dated 12/11/1992 under the provisions of Section 4(1) of the Land Acquisition Act, 1894 for the purpose of formation of layout under the Scheme “JH Patel Extension” followed by Final Notification dated 24/05/1994 in terms of Section 6(1) of the Land Acquisition Act, 1894 (“the Act” for short) declaring that the lands were required for public purpose. On 14/02/1996, the Special Land Acquisition Officer, Shivamogga Urban Development Authority (“SUDA”) passed award granting compensation of Rs.38,450/- per acre for dry land and Rs.39,986/- for wet land. Possession of the land was taken on 22/02/1996. After receipt of notice under Sections 9 and 10 of the Act in the year 1987, the claimants had filed application under the provisions of Section 18(1) of the Act before the Land Acquisition Officer

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requesting to refer the matter to the jurisdictional Civil Judge for reference and the same was referred to the Additional Civil Judge (Sr.Dn.) and CJM, Shivamogga and numbered as LAC.Nos.143/1999, 145/1999, 147/1999 and 148/1999.

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The Reference Court, considering the material on record by the award dated 06/10/2009 allowed the reference in part and awarded enhanced compensation of Rs.65,000/- per acre with statutory benefits. Being aggrieved by the said judgment and award passed by the Reference Court, the claimants preferred MFA.No.7532/2010 along with connected matters before this Court. The Co-ordinate Bench of this Court on considering the material on record, vide order dated 04/06/2012 set aside the order passed by the reference Court and remanded the matter to the reference Court for fresh disposal after hearing learned counsel for the parties and pass appropriate

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orders within a period of six months from the date of appearance before the reference court and also directed the parties to file additional oral and documentary evidence, if any. After remand, the claimants have produced the documents Exs.P-7 to P- 18 and adduced evidence as PWs.1 to 4 and the respondents were examined as RW.1 and produced documents as Exs.R-3 to R-10.

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Learned Civil Judge/reference Court on

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considering the material on record, allowed the reference petitions in part and awarded compensation of Rs.65,000/- per acre with statutory benefits. Hence, these present appeals are filed by the claimants.

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We have heard learned counsel for the

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parties to the lis.

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II. Arguments advanced by the counsel for the Appellants:

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Sri Varadaraj R.Havaldar, learned counsel

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for the appellant in MFA.No.1560/2014 arising out of LAC.No.145/1999 in respect of T.Thyagaraj-claimant, contended that the judgment and award passed by the Tribunal fixing Rs.65,000/- as has been done earlier to the assessment by the very reference Court is contrary to the material on record and cannot be sustained. He further contended that as per Exs.P-11 and 12 are the no objection certificate issued by the Grama Panchayat and the documents Exs.P-13 and P- 14 are the sale deeds which clearly depicts the value of the lands in question are valued more than Rs.1.00 lakh (Rupees one lakh only) per acre and the same has not been considered. He further contended that the appellant – claimant – Thyagaraj (MFA. No.1560/2014) has been examined as PW.2 who has

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stated on oath that the land belongs to him and are potential lands and in the adjacent properties to the land in question layouts are formed i.e., Sahakaranagara Layout in Sy.No.30 of the same village, Sahyadrinagar Layout in Sy.Nos.116 and 118 of the same village and Co-operative Society of Revenue Officials layout is in Sy.No.115. Thereby, the value is more than Rs.1,21,910/- and Rs.1,73,000/per acre respectively has not been considered.

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He would further contend that even though

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the earlier assessment order passed by this Court by the Co-ordinate Bench has been remanded mainly on the ground that the reference Court has not allowed the legal procedure required under the acquisition proceedings and not considered the fact that on the lands in question several complex have also come up. In view of the lapse on the part of the reference Court, this Court has remanded the matter for

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reconsideration. Inspite of sufficient oral and documentary evidence produced, learned Judge has erroneously proceeded to fix the market value of the land in question at Rs.65,000/- per acre ignoring that the lands in question are potential lands and the same has not been considered. Therefore, he sought to allow the appeals filed by the claimants.

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Sri S.V. Prakash, learned counsel appearing for the appellant-claimant in MFA.Nos.1662/2014, 1663/2014 and 1664/2014 in respect of the lands in Sy.Nos.9, 125, 127/2, 128/2 and 13 of Sominakoppa Village, contended that they were agricultural lands potential for agricultural and the same were acquired for formation of residential purpose and also commercial purpose and the same has not been considered. He would further contend that the appellants have produced the oral and documentary evidence assigning invalid reasons, has preferred to

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follow the award in LAC.No.155/1999 in fixing the market value at Rs.65,000/- per acre. In fact, the said matter was the subject matter of MA.No.37/2011 before the District Court, wherein the District Court enhanced the compensation to Rs.1.00 lakh which is the subject matter of the appeals before this Court in MSA.No.33/2017pending before this Court. Thereby, learned Judge was not justified in fixing the compensation of Rs.65,000/- per acre ignoring the agricultural potential of the lands in question and acquired for non-agricultural purpose. He further contended that the lands acquired were within the Shivamogga City limits. The reference Court could have taken the potential of the lands in question. The reference Court committed an error in not considering the oral evidence of PWs.1, 3 and 4 and the material evidence produced therein and thereby erroneously fixed the value of the lands in question at Rs.65,000/-

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per acre which is contrary to the records. Therefore,

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he sought to allow the appeals.

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Learned counsel for the, appellants relied

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upon the dictum of the Hon’ble Supreme Court in the case of Om Prakash vs. State of Haryana & others [2010 AIR SCW 5655] wherein it is held that while determining the compensation under Section 23 of the Act increase in land price has to be taken into consideration as the land has potential of being urbanized and commercialized and judicial notice has to be taken note of by the learned Judge. Therefore, he sought to allow the appeals.

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III. Arguments advanced by the counsel for the respondents:

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Per contra, Sri A.V. Gangadharappa,

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learned counsel for respondent while justifying the order passed by the reference Court, contended that

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the very reference filed by the claimants is not maintainable and the question of granting enhanced award of compensation would not arise. The Land Acquisition Officer has no authority to refer the matter to the reference Court beyond the time prescribed. Thereby, the learned Judge also was not justified in awarding Rs.65,000/- per acre. Therefore, he sought to dismiss the appeals.

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IV. Points for determination:

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In view of the rival contentions urged by the learned counsel for the parties, the following points that arise for our consideration in the present appeals:

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“(i) Whether the claimants have made out a case for interference by this Court in the impugned judgment and award passed by the reference Court dated 11/11/2013 in the present appeals?

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(ii) Whether the respondent, in the absence of any material filed, can raise the point that the reference is not maintainable in the second round of litigation in the absence of any objection raised before the reference Court in the facts and circumstances of the present appeals?”

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V. Consideration:

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We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully.

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It is an undisputed fact that the SUDA acquired the lands of the present appellants by issuing preliminary notification dated 12/11/1992 under Section 4(1) of the Act followed by final notification dated 24/05/1994 and the Special Land Acquisition Officer awarded compensation at the rate of Rs.38,450/- per acre for dry lands and Rs.39,986/- for

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wet lands on 14/02/1996. On receipt of the notice under Sections 9 and 10 of the Act from the Land Acquisition Officer on 30/04/1997, the appellants filed application under Section 18 (1) of the Act before the Land Acquisition Officer requesting the Land

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Acquisition Officer to refer the matter to the jurisdictional civil court in order to determine the actual market value of the acquired lands. Accordingly, the matter was referred to the learned Additional Civil Judge (Sr.Dn.) & CJM, Shivamogga. Accordingly, the same was numbered as LAC.Nos.143/1999, 145/1999, 147/1999, 148/1999 and 148/1999. It is also not in dispute that earlier the order passed by the reference Court was set aside by this Court in MFA.No.7532/2010 and connected matters on 04/06/2012 and remanded the matter for fresh consideration. After remand, the appellants were examined as PWs.1 to 4 and produced documents at

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Exs.P-1 to P-18. The respondent-SUDA examined as RW.1 and produced documents at Exs.R-1 to R-10.

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The specific contention raised by learned

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counsel for the appellant, Sri Varadaraj R.Havaldar in MFA.No.1560/2014 is that the reference Court has not considered Exs.P-10 to P-12 issued by the jurisdictional authorities and Exs.P-13 to P-15 the registered sale deeds.

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Sri S.V.Prakash, learned counsel for the other appellants in the other appeals specifically contended that the learned Judge has proceeded to award Rs.65,000/based on the judgment in LAC.No.155/1999, which is the subject matter of MA.No.37/2011 wherein the learned District Judge had awarded Rs.1.00 lakh and thereby the learned Judge is not justified in fixing Rs.65,000/- with all the statutory benefits. He further contended that the

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evidence of PWs.1 to 3 and Exs.P-7 to 18 would clearly depict that the lands lost the agricultural potential due to conversion for housing purpose and also commercial purpose.

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Having carefully perused the order passed by the learned Civil Judge i.e., the reference Court, it clearly depicts that in the entire judgment, though there is a reference in para 13 that after remand, Exs.P-7 to P-18 produced by the claimants, there is absolutely no reference of the documents produced by the claimants Exs.P-2 to P-17 except Ex.P-18 and oral evidence adduced by PWs.1 to 4. When this Court on 04/06/2012 in MFA.No.7530/2010 and connected matters specifically recorded a finding and remanded the matter, the learned Judge without considering the potentiality of the lands and material on record with regard to acquired lands as several commercial complexes and residential houses have come up and

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non-considering of oral evidence of PWs.1 and 2 though PWs.1 to 3 in categorical terms deposed that appellants have lost the agricultural lands and in particular Exs.P-2, P-3, P-5, P-6, P-9 to P-17 has not been considered, thereby the learned Judge was not justified in fixing the amount of Rs.65,000/- per acre mainly on the basis of LAC.No.155/1999 which was subsequently enhanced to Rs.1.00 lakh by the learned District Judge in MA.No.37/2011 and MSA.No.33/2017 and thereby the appellants - claimants have made out a case to interfere with the judgment and award of the Tribunal. Thus, point No.1 is answered partly in the affirmative.

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Point No.2: The claimants not being satisfied with the award passed by the Land Acquisition Officer, on receipt of the notice under Sections 9 and 10 of the Act, on 30/04/1997, they have made reference application under Section 18(1)

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of the Act to the Land Acquisition Officer requesting to refer the matter to the jurisdictional Civil Judge for reference and the same was referred to the Additional Civil Judge (Sr.Dn.) and CJM, Shivamogga and numbered as LAC.Nos.143/1999, 145/1999, 147/1999 and 148/1999 and proceed with the matter and determined compensation at Rs.65,000/- per acre on 06/10/2009 and the same has not been challenged by the respondent-SUDA. When the Co-ordinate Bench of this Court on considering the material on record, vide order dated 04/06/2012 set aside the order passed by the reference Court and remanded the matter to the reference Court for fresh disposal after hearing learned counsel for the parties and pass appropriate orders within a period of six months from the date of appearance before the reference court and also directed the parties to file additional oral and documentary evidence, if any. Even against the

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present impugned order passed by the reference Court on 11/11/2013 fixing the market value at Rs.65,000/- per acre only the appellants have filed appeals. Admittedly, SUDA has not filed any appeal, in the absence of any objection raised at the earliest point of time when the reference was made in the year 1999, it is not open for the respondent to raise the said point with regard to maintainability of reference before this Court that too in second round of litigation and after lapse of more than 23 years, thereby, the contention of learned counsel for the respondent that the very reference is not maintainable and granting enhancement of compensation cannot be considered cannot be accepted. Therefore, point No.2 is answered in the negative holding that the respondent-authority has not made out any ground to hold that reference is not maintainable as the respondent-Shimoga Urban Development Authority

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has not raised any objection at the first instance before the reference Court or before this Court in MFA.No.7532/2010 stated supra.

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For the reasons stated above, the order passed by the reference Court is without considering both oral and documentary evidence adduced by the claimants after remand cannot be sustained. Since the documents are already on record, there is no question of asking both the parties to adduce any evidence. Because of the error committed by the Court, the parties are suffering from 1994 till today litigating the proceedings for more than thirty years. We also express our displeasure of the order passed by the reference Court after remand, wherein it has just reiterated the earlier order passed by the learned Judge and has not taken any pains to consider the oral and documentary evidence on record. Thereby, it

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is a fit case to remand the matter and the learned

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Judge, while passing the order, it is the bounden duty to consider the sale deeds and other documents and unnecessarily both the parties are driven before this Court for the second time. In view of the above, the matter requires reconsideration afresh.

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It is relevant to note that the Hon’ble Supreme Court in the case of U.P. Awas Evam Vikash Parishad Vs. Asha Ram (D) Thr. Lrs and Others [2021 SCC OnLine SC 250] and at paragraph No.13 held as under:

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“13. The IA to produce additional documents as mentioned in the above order has been placed along with the written submissions by the land owners before this Court. Apart from the award by the Special Land Acquisition Officer and the order of the Reference Court, various other judgments pertaining to different acquisitions were produced.”

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It is needless to observe that the learned

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Judge shall pass orders strictly in accordance with the provisions of the Land Acquisition Act with reference to the oral and documentary evidence available on record without dragging the matter any further and pass appropriate orders.

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Hence, we pass the following:

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ORDER

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(i) The appeals filed by the appellants/claimants are hereby allowed.

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(ii) The impugned judgments and awards passed on 11/11/2013 made in LAC.Nos.143/1999, 145/1999, 147/1999 and 148/1999 by the I Additional Senior Civil Judge and CJM, Shivamogga, are hereby set aside and the matters are remanded to the I Additional Senior Civil Judge and CJM, Shivamogga, for fresh consideration of the oral evidence of PW.1 and RW.1 and material documents Exs.P-1 to P-18 and Exs.R-1 to R-10 and pass appropriate orders within a period of three months from the date of receipt of a copy of

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this order. It is made clear that the parties are not allowed to lead any further evidence.

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(iii) Copy of the order shall be sent to the learned Senior Civil Judge and CJM, Shivamogga, wherever he is posted.

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(iv) All the contentions urged by learned counsel for both the parties, except the contention with reference to maintainability of the reference application raised by the learned counsel for the respondent are kept open as the said contention is negated by us while answering the second point for consideration.

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(v) Since the matter is remanded, the appellants are entitled for refund of Court fee in terms of the provisions of Section 66 of the Karnataka Court Fees and Suits Valuation Act, 1958.

Sd/-

JUDGE

Sd/JUDGE

S T Vijayakumar v. the Special Land Acquisition Officer

Case brief

What is this about?

What did the court decide?

S T Vijayakumar v. the Special Land Acquisition Officer

Case brief

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