Partly allowed

The Managing Director v. the Special Land

Karnataka HC30 Aug 2024MFA/1945/2016

Case brief

AI extract

What is this about?

Beneficiary BMTC challenged enhanced compensation awarded by the reference court for acquired land at Bidadi. The High Court upheld the first SLAO award as final, held the second SLAO award a nullity passed without jurisdiction against a dead person, and set aside compensation only for 17 guntas whose acquisition had been quashed.

What did the court decide?

Appeal allowed in part; trial court judgment set aside only for 0.17 guntas (17 guntas) of dry land in Sy.No.18; upheld for remaining lands.

The Managing Director Vs the Special Land — Land Acquisition | Karnataka HC (2024)

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NC: 2024:KHC:35044-DB MFA No.1945/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF AUGUST, 2024

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.1945/2016 (LAC)

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BETWEEN:

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THE MANAGING DIRECTOR BMTC, BANGALORE NOW REPRESENTED BY ITS CHIEF TRAFFIC MANAGER (COMMERCIAL).

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…APPELLANT

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(BY SRI. P.D. SURANA, ADV.,)

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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AND:

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THE SPECIAL LAND ACQUISITION OFFICER RAMANAGARA.

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SMT. M. SUJA BAI W/O LATE R. SHANKAR RAO MANAE AGED ABOUT 58 YEARS.

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SMT. ASHWINI W/O LATE SANTOSH S MANAE AGED ABOUT 37 YEARS.

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KUM. MOKSHITA S. MANAE D/O LATE SANTOSH S MANE AGED ABOUT 12 YEARS.

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MAS. VITTAL S. MANAE D/O LATE SANTOSH S MANAE

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AGED ABOUT 9 YEARS.

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SINCE RESPONDENT NOS.4 & 5 ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT ASHWINI.

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ALL ARE R/AT NO.3112/A 18TH CROSS, BSK II STAGE BANGALORE-560 070.

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SMT. SHILPA ANUTOSH W/O SRI. ANUTOSH A POLL NO.324/A, 7TH CROSS, LAKSHMI ROAD SHANTINAGAR, BANGALORE-560 027.

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…RESPONDENTS

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(BY SRI. MANJUNATHA RAYAPPA, AGA FOR R1 SRI. M.V. SESHACHALA, SR. COUNSEL FOR SRI. ARAVIND V. CHAVAN, ADV., FOR R2, R3 & R6 R4 & R5 ARE MINORS REP. BY R3)

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THIS MFA IS FILED U/S 54(1) OF LAND ACQUISITION ACT AGAINST THE JUDGMENT AND AWARD DATED:22.04.2014 PASSED IN LAC NO.60/2012 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA, PARTLY ALLOWING THE REFERENCE PETITION FOR ENHANCED COMPENSATION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 28.07.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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CAV JUDGMENT

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( PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL )

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Challenging the compensation awarded, respondent No.2 (the beneficiary of acquisition) in LAC No.60/2012 on the file of the Additional Senior Civil Judge, Ramanagara, has preferred this appeal.

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The appellant was the respondent No.2, respondent No.1 in this appeal was respondent No.1 and respondent Nos.2 to 5 in this appeal were the claimants before the reference Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial Court.

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Brief facts leading to this appeal are as under:

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i. The claimants filed claim petition under Section 18(1) of the Land Acquisition Act, 1894 (for short, 'the LA Act') seeking enhancement of compensation. The claimants were the owners of property bearing Sy.No.18 measuring 3 acre 37 guntas situated in Bidadi village, Bidadi Hobli, Ramanagara Taluk, Bengaluru Rural District.

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ii. Claimants contended that they were running a factory manufacturing paper pulp and board since 198889, engaging 50 employees and investing more than Rs.16 lakhs and that was a small-scale industry.

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iii. The State Government initiated the acquisition proceedings. The preliminary notification under Section 4(1) of the LA Act was issued on 03.01.2007, final notification under Section 6(1) of the LA Act was issued on 04.06.2007.

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iv. The claimants filed W.P.No.11788/2007 challenging the acquisition proceedings. The respondents in the said writ petition produced copy of the award dated 04.08.2007 in respect of the land in question. The learned Single Judge of this Court vide order dated 24.02.2011 held that the notice under Section 12(2) of the Act was not served on the claimants and receipt of copy of the award on the said day be treated as service of notice of award under Section 12(2) of the Act. The learned Single Judge granted liberty to the claimants to seek enhancement of compensation by reckoning the

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date of said order as the date of notice under Section 12(2) of the Act for the purpose of limitation.

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v. Claimants contended that the award of the Special Land Acquisition Officer (for short, 'SLAO') dated 04.08.2007 was without application of mind and under the second award dated 26.10.2011, compensation was awarded at Rs.2,76,59,647/-. The award dated 26.10.2011 is not in consonance with the market value. Hence, sought for the reference.

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vi. Claimants contended that the surrounding area of 2 acre 7 guntas of agricultural land has already been developed. Hence, it has to be considered as a nonagriculture land and the same is required to be valued at Rs.1,000/- per sq.ft., 1 acre of the acquired land is a converted land and the property in the vicinity is sold at Rs.1500/- per sq.ft., hence, the same value may be awarded. 26 guntas land is a garden land and the surrounding area is already developed and by taking comparative sale instances, the same has to be considered as a non agriculture property and the same

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should be valued at least Rs.1,250/- per sq.ft. 4 guntas of kharab land is purchased by the claimants. That is not the Government land, the market value in respect of that land should be at least Rs.1000/- per sq.ft. The claimants have sought assessment of market value of electronic pump, 7 coconut trees, open well and factory building measuring 80 X 100', electrification, wiring and lighting, fitting fixtures and they also claimed loss of business income due to acquisition, interest and solatium.

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Respondent No.2 contested the claim petition on

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the following grounds:

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i. Title of the claimants to the acquired property was admitted. However, employment of 50 persons in the factory, investment of Rs.16.00 lakhs for setting up of the factory etc., were denied.

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ii. Out of 3 acre 37 guntas of land, 2 acre 7 guntas is agricultural land i.e., dry land and not converted land. The market value has to be considered on the basis of previous three years sale statistics. The market value determined by the SLAO is correct.

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iii. During 01.02.2004 to 01.02.2007 there were no

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sale transactions for converted land, hence the market value should be as per the Government guidance value i.e., Rs.550/- per sq.ft.

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iv. For garden land, there is no sale statistics in the Sub-registrar's office. Therefore, as per the guidance value of the Government, Rs.37,75,000/- per acre has to be considered. Accordingly, for 26 guntas the value should be Rs.24,53,750/-. 50% of the land will be utilised for development of roads and other infrastructures in case of layouts, hence appropriate deduction for development has to be given.

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v. As kharab land is a Government land, no compensation can be granted to that. Payment of compensation for electric pump and fitting & fixtures cannot be granted as the claimants have already taken those items. The rates of the trees are valued by the Assistant Director of Horticulture, Bengaluru Rural District and Range Forest Officer, Ramanagara. The value of AC sheet shed and open well have been taken as per the

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PWD valuation. Hence, sought for dismissal of the claim petition.

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The respondent No.1 did not file any objections.

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The claimant No.2 examined herself as PW-1 and

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got marked documents as Exs.P1 to Ex.P11. Respondents have not adduced any evidence before the trial Court. The Trial Court, on hearing the parties and on appreciation of the evidence available on record, held that the second award passed by the SLAO is not in accordance with law. By upholding the first award of the SLAO, the Trial Court, under the impugned judgment determined the market value as under:

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a. Market value of the dry land is Rs.1,35,000/per gunta.

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b. Market value of the kharab land is Rs.1,35,000/- per gunta.

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c. Market value of the garden land is Rs.1,68,750/- per gunta.

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d. Market value of the converted land is Rs.400/- per square feet.

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Being aggrieved by the judgment and award of the trial Court, respondent No.2 - the beneficiary of acquisition, is in appeal.

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Sri.P.D.Surana, learned counsel appearing for the beneficiary of acquisition, submits that the trial Court has failed to consider that the second award dated 26.10.2011 is the approved award by the competent authority and the first award was without the approval of the competent authority as required under law. The second award is passed based on the letters of the Regional Commissioner dated 25.06.2011 and 22.09.2011, as the earlier award was not approved by the competent authority, hence for all the purposes the second award has to be taken into account for determination of market value. In support of his contention, he placed reliance on the

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judgment of the Hon'ble Supreme Court in the case of Smt.Bailamma (Dead) and ors. vs. Poornaprajna House Building Co-operative Society and others¹ . It is submitted that the modified award dated 26.10.2011 is passed taking into consideration the sale statistics method of preceding three years to the notification issued under Section 4(1) of the LA Act and also as per the guidance value issued by the Government.

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It is further submitted that the Trial Court erred in granting compensation in respect of 4 guntas of kharab land which is the

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1 AIR 2006 SC 1132

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Government land. It is also submitted that out of 3.37 acres of acquired land, 17 guntas of land was already acquired for the benefit of the South-Western Railways in the year 1992 and the land owner has received compensation for the said land and the award of compensation to 17 guntas by the trial Court is required to be interfered in this appeal, as the same is quashed by this Court in W.P.No.13697/2016 dated 08.12.2021. It is contended that in Ex-P9 the guidance value notification, it is clearly mentioned that if the land is converted for industrial purpose, the value of the property has to be fixed at 25% more than the corresponding agricultural land value. However, in the present case, for 1 acre of converted land, the trial Court has not applied the said instruction. It is further contended that the trial Court has erred in coming to conclusion that the acquired land is adjacent to Bengaluru-Mysuru express highway, but the land does not have any connectivity. It is submitted that the SLAO while passing the second award has rightly determined the market value for the converted land at Rs.275/- per sq.ft. The SLAO, in the first award, has not given any reason for award of Rs.400/- per sq.ft. to the converted land. It is also argued that the co-ordinate Bench of this Court in MFA

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No.7537/2015 has set aside the judgment of the reference Court where the market value of the acquired land was fixed at Rs.275/- per sq.ft. and remanded the matter on the ground that the development charges were not deducted from the said amount. In the instant case also, the SLAO has not deducted any development charges for the converted land and on this ground also, the appeal requires to be allowed. The award of compensation by the trial Court is exorbitant and contrary to the evidence available on record. Hence he seeks to allow the appeal.

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Per contra, Sri.M.V.Seshachala, learned Senior Counsel appearing for Sri.Aravind V.Chavan, learned counsel on record for the claimants submits that the first award dated 04.08.2007 cannot be changed or reviewed by the second award and such act is without jurisdiction and illegal. The SLAO would become ' functus officio ' after passing of the award. It is further submitted that R.Shankar Rao Mane, the original claimant died on 20.12.2008. The second award dated 26.10.2011 is passed against dead person. Hence the said award is nullity. The second award is passed beyond the period of limitation fixed under Section 11A of the LA Act. It is also

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submitted that regarding kharab land, law is well settled. It is contended that respondent No.2 with full knowledge has given up their right with regard to the second award in judicial proceedings, hence it amounts to acquiescence of their claim. In support of his contentions, he placed reliance on the following judgments:

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i. Naresh Kumar and Others vs. Government (NCT of Delhi)²

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ii. Karnataka Industrial Areas Development Board, rep. by its Secretary vs. J.Hanumakka and Others³

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iii. Orissa Industrial Infrastructure Development Corporation vs. Supai Munda and Others⁴

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iv. N.Jayarama Reddy and Another vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool⁵

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v. Yusufbhai Noormohmed Nendoliya vs. State of Gujarat and Another⁶

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vi. The State of Karnataka rep. by Principal Secretary, Revenue Department & Another vs. Istak Ahmad Mohammadsaheb⁷ .

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vii. Chairman, State Bank of India and another

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vs. M.J.James⁸

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2 (2019) 9 SCC 416

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3 ILR 2019 KAR 1337

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4 (2004) 12 SCC 306

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5 (1979) 3 SCC 578

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6 (1991) 4 SCC 531

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7 ILR 2016 KAR 98

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It is further contended that the SLAO in his first award dated 04.08.2007 has awarded total compensation of Rs.4,74,67,284/- which is affirmed by the trial Court in the impugned judgment taking into consideration the evidence available on record. Respondent-beneficiary has not challenged the first award dated 04.08.2007 before any forum, hence now it cannot be allowed to argue that the compensation is exorbitant. The first award of the SLAO is in consonance with law. Hence, he seeks dismissal of the appeal.

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Sri.Manjunatha Rayappa, learned Additional Government Advocate appearing for the respondent No.1 submits that the first award of the SLAO was not approved by the authority, as compensation was awarded to kharab land. Hence second award came to be passed by the SLAO as per the direction of the Regional Commissioner. It is submitted that the trial Court has committed an error in considering the first award, hence, he seeks to allow the appeal.

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8 (2022) 2 SCC 301

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On considering the submissions of both side and on

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examining the materials on record, the point that arises for determination is:

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“Whether the impugned judgment and award calls

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for any interference”?

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ANALYSIS

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The undisputed facts are that the land measuring 3 acres 37 guntas in Sy.No.18, Bidadi Village, Bidadi Hobli, Ramanagara Taluk owned by Sri.R.Shankar Rao Mane was acquired by the State Government for the benefit of respondent No.2. Preliminary notification under Section 4(1) of the LA Act was issued on 03.01.2007 which is marked as Ex.P3 and final declaration was issued under Section 6(1) of the LA Act on 04.06.2007 which is marked as Ex.P4. Respondent No.1 - SLAO conducted the enquiry as contemplated under the LA Act, passed Ex.P5 award dated 04.08.2007 determining the market value and awarding total compensation of Rs.4,74,67,284/-.

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The claimants challenged the acquisition proceedings before this Court in W.P.No.11788/2007. Learned Single Judge of this Court vide order dated 24.02.2011 declined to interfere with the acquisition proceedings and disposed of

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the writ petition granting liberty to the claimants to seek enhancement of compensation. The relevant paragraphs of the said order are reproduced below for ready reference:

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"2. Learned Counsel submits that petitioners

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were not served with notice under Sec.12 of the Land Acquisition Act, 1894 (for short, the Act), nevertheless, are furnished with a xerox copy of the award dt. 4/8/2007, in court, by the learned Counsel for the beneficiary-respondent, BMTC. Learned Government counsel submits that he has no instructions as to, whether or not, notice under Sec.12 is served on the petitioners.

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3. In the absence of records, it cannot but be said that the petitioners are not served with the notice under Sec.12 of the Act. If that is so, the receipt of the copy of the award today is treated as service of notice of award under Sec.12 of the Act. Liberty is reserved to the petitioners to seek enhancement of compensation or such other reliefs in accordance with law, reckoning, today, as the date of notice under Sec.12 of the Act for the purpose of limitation."

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[Emphasis Supplied]

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The aforesaid observations of the learned Single Judge makes it very clear that the parties to the writ petition

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who are the same parties in this appeal have understood that the SLAO award dated 04.08.2007 in respect of the land in question which was placed by the respondent No.2 - beneficiary, is the correct award. The learned Single Judge has taken the said award on record and further observed that the petitioners/claimants were not served with notice under Section 12 of the LA Act, the service of award in that case itself was treated as service of notice on the claimants under Section 12 of the LA Act, granted specific liberty to the claimants to seek enhancement of compensation in accordance with law by reckoning the date of order of the learned Single Judge as the date of notice under Section 12 of the LA Act for the purpose of limitation. It is evident from the said decision that the parties to the proceedings have clearly understood that the award dated 04.08.2007 i.e. the first award is the award passed in favour of the claimants for all purposes. Hence, the very same respondent - beneficiary now cannot be allowed to contend that the award dated 04.08.2007 is not the award passed in accordance with law. It is admitted fact that award dated 04.08.2007 was placed by the very same beneficiary in the writ proceedings and without challenging the said award in any of

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the proceedings or without challenging the order dated 24.02.2011 passed in W.P.No.11788/2007, they cannot now contend that the second award passed on 26.10.2011 is in accordance with law.

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Another factor that goes against respondent No.2 is that, they have filed W.P.No.13697/2016 challenging the acquisition proceedings of the subject land to an extent of 17 guntas on the ground that for the benefit of the South Western Railway, land has been acquired and the compensation was paid to the land owners. The said writ petition came to be allowed vide order dated 08.12.2021 by quashing the acquisition notification insofar as 17 guntas of the land is concerned. In the said proceedings also, the respondent No.2 did not whisper anything with regard to the passing of the second award, though the said writ petition was filed in the year 2016 which came to be disposed in the year 2021 which is subsequent to the passing of the alleged second award dated 26.10.2011. Hence, on this count also respondent No.2 and the State Government are not justified in contending that the first award is not the valid award and the second award is

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required to be considered as the valid award for the purpose of determination of compensation.

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Section 12 of the LA Act indicates that once the

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award is passed, it becomes final and conclusive evidence between the SLAO and the person interested i.e. the claimants. The appellant being the beneficiary of acquisition is barred from seeking the reference under the LA Act. The Hon'ble Supreme Court in para 4 of the judgment in Santosh Kumar and others Vs. Central Warehousing Corporation and

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another⁹ has held as follows:

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"4. In our view there cannot be any possible doubt that the scheme of the Act is that, apart from fraud, corruption or collusion, the amount of compensation awarded by the Collector under Section 11 of the Act may not be questioned in any proceeding either by the government or by the company or local authority at whose instance the acquisition is made. Section 50(2) and Section 25 lead to that inevitable conclusion. Surely what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226. Article 226 is not meant to avoid or circumvent the processes of the law and the provisions of the statute. When Section 50(2) expressly bars the company or local

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9 (1986) 2 SCC 343

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authority at whose instance the acquisition is made from demanding a reference under Section 18 of the Act, notwithstanding that such company or local authority may be allowed to adduce evidence before the Collector, and when Section 25 expressly prohibits the court from reducing the amount of compensation while dealing with the reference under Section 18, it is clearly not permissible for the company or local authority to invoke the jurisdiction of the High Court under Article 226to challenge the amount of compensation awarded by the Collector and to have it reduced."

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In our view, the appellant - beneficiary is now estopped from contending that first award passed by the SLAO is exorbitant, in the absence of any challenge to it. The SLAO is only an agent of the State Government which has acquired the land of the claimants for public purpose, has made an offer to pay compensation to the land losers/claimants as per law and such offer binds the SLAO as well as the claimants. The appellant - beneficiary is stranger to such offer, the beneficiary is permitted to adduce evidence before the SLAO in the award proceedings and the beneficiary is barred from seeking reference under Section 18 of the LA Act. In the instant case, the Trial Court has not altered/enhanced the market value of the land fixed by the SLAO in his award dated 04.08.2007. In

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other words, the Trial Court has not enhanced the market value of the subject land but has only upheld the market value fixed by the SLAO by rejecting the alleged second award. Hence, the scope of appeal of the beneficiary is very limited in the absence of any specific challenge by the beneficiary of the first award in any of the judicial proceedings as observed by the Hon'ble Supreme Court in the case of Santosh Kumar and others referred to supra.

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The Hon'ble Supreme Court in Naresh Kumar and others , referred to supra held that there is no provision under the LA Act for review of the award once the award is passed under Section 11 of the LA Act and the same has attained finality. The co-ordinate Bench of this Court in the case of KIADB Vs. Hanumakka , referred to supra held that the SLAO becomes functus officio after passing of the award. In view of the aforesaid enunciation of law, we are of the considered view that the second award dated 26.10.2011 passed by the SLAO at the instance of the Regional Commissioner is without jurisdiction, illegal and contrary to the provisions of law. In addition, the second award dated 26.10.2011 is against a dead person, admittedly, Sri.R.Shankar Rao Mane died on

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20.12.2008. Therefore, the second award is a nullity in the eye of law and does not bind the claimants. The reference under Section 18(1) of the LA Act was sought by the legal representatives of the original owner pursuant to the liberty granted by the learned Single Judge. Admittedly, while passing the second award, neither any notice of enquiry under Section 9 of the LA Act was issued to the interested persons nor any enquiry as contemplated under Section 11 of the LA Act was conducted. Hence, such an award has no sanctity in the eye of law. Same is non est in the eye of law and cannot be looked into for the purpose of determination of market value of the subject land.

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The finding of the Trial Court with regard to the second award that it is not a valid award is strictly in consonance with law and the material available on record. The said finding of the Trial Court is neither perverse nor contrary to the settled principles of law calling for interference in the present appeal.

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Sofar as determination of compensation to the acquired lands, the Trial Court has determined the market

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value of both dry land and kharab land at Rs.1,35,000/- per gunta, garden land at Rs.1,68,750/- per gunta, converted land at Rs.400/- per sq. ft. and awarded statutory interest and solatium. At the outset, it would be useful to mention that the Trial Court has neither altered nor modified the market value fixed by the SALO in his award dated 04.08.2007.

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The Trial Court, while allowing the claim petition of the claimants in part, awarded compensation to an extent of 3 acres 37 guntas of land. However, the material available on record indicates that respondent No.2 filed W.P.No.13697/2016 seeking to quash the acquisition notification dated 01.03.2007 issued under Section 4(1) of the LA Act and Section 6(1) of the LA Act dated 4.6.2007 to an extent of 17 guntas of dry land in Sy.No.18 of Bidadi Village. The said writ petition came to be allowed by quashing the impugned notifications dated 03.01.2007 and 4.6.2007 insofar as extent of 17 guntas of land in Sy.No.18 of Bidadi Village which was the subject matter of preliminary notification dated 19.12.1992. In other words, the acquisition insofar as 17 guntas of land owned by the claimants was quashed. Hence, they are not entitled for the compensation to the extent of 17 guntas of land. To the said

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extent, the appeal filed by respondent No.2 is required to be allowed. Hence, the award of the SLAO dated 04.08.2007 as well as the impugned judgment of the Trial Court dated 22.04.2014 are set aside to the extent of 17 guntas of dry land in Sy.No.18 of Bidadi Village.

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The subject matter of the dispute is land measuring in total 3 acres 37 guntas, minus 17 guntas which has been quashed by the learned Single Judge in W.P.No.13697/2016 and the balance land would be 3 acres 20 guntas. Out of the said extent, 2 acres 7 guntas of land is agricultural land, 1 acre of land is converted from non-agricultural to industrial purpose, 26 guntas is garden land and 4 guntas is kharab land.

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Respondent No.1 neither filed any objection nor adduced any evidence before the Trial Court with regard to passing of the second award. Further, there is also no justification for determination of market value as per the second award by the SLAO. In the absence of any objections and evidence by respondent No.1 before the Trial Court, they cannot now be allowed to contend that the second award is the correct award. Accordingly, their contention is rejected.

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Respondent No.2 did not adduce any evidence before the Trial Court to substantiate his case. For the first time, respondent No.2 is raising the grounds that the first award passed by the SLAO is not the award in the eye of law, the market value determined by the SLAO is exorbitant and is requesting to consider the second award as the basis to award compensation. The award dated 04.08.2007 i.e. the first award is marked as Ex.P5 before the Trial Court. The alleged second award was not even marked before the Trial Court. Hence, the contention of the respondent No.2 has no merit consideration and is accordingly rejected.

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Sofar as award of compensation, the Trial Court has determined the market value of both dry land and kharab land at Rs.1,35,000/- per gunta, garden land at Rs.1,68,750/- per gunta and converted land at Rs.400/- per sq. ft. The evidence of PW-1 clearly indicates that the acquired land is located between the railway track running from Bengaluru to Mysuru and the National Highway i.e Express Highway running from Bengaluru to Mysuru. The evidence of PW-1 further makes it clear that towards the northern side of the acquired land, there is Bidadi town and towards the western side, there is railway

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track and immediately after the halla, there is Express Highway. The evidence of PW-1 further indicates that in the surrounding area of the acquired land, there is medical centre, Institute of Technology and also residential layouts. The said witness has been cross-examined by respondent No.2. However, nothing has been elicited nor any contrary evidence is placed before the Trial Court to rebut the evidence of PW-1. The oral evidence of PW-1, the observations of the SLAO in his award dated 04.08.2007 at Ex.P5, village map at Ex.P8 and photographs at Ex.P11 clearly indicate that the acquired land is adjacent to the railway track on one side which is very near to Bengaluru-Mysuru express highway, adjacent lands have been fully developed and acquired land has commercial potentiality. Exs.P9 and P10 are the notifications dated 13.11.2006 and 12.02.2008, respectively issued by the Department of Stamps and Registration, Government of Karnataka which indicates the guidance value of the immovable property. Ex.P10 clearly indicates the guidance value of land at Sy.No.18 of Bidadi Village. The dry land is shown at Rs.75,00,000/- per acre and garden land at Rs.90,00,000/- per acre. The acquired lands fall in Category A of the said notification at Ex.P10 as the same is

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adjacent to highway. However, the Trial Court placing reliance on Ex.P9 determined the market value at Rs.54,00,000/- per acre for dry land and Rs.67,50,000/- per acre for garden land ignoring the guidance value at Ex.P10. The SLAO, while passing the first award at Ex.P5 considered 11 sale transactions for a period from February 2004 to March 2006 and determined the market value. The Trial Court, taking note of the consideration of the SLAO award at Ex.P5, has determined the market value of both dry land and kharab land at Rs.1,35,000/per gunta. The finding of the Trial Court to the aforesaid extent is strictly in consonance with the oral evidence of PW-1 and Ex.P9. The determination of market value by the Trial Court in respect of both dry land and kharab land is as per the evidence available on record and the finding and determination of market value is neither perverse nor contrary to the record calling for interference in the present appeal. Learned Senior counsel for the claimants submits that as per Ex.P10, though claimants are entitled for higher compensation due to death of their bread winners, appellants could not prefer appeal. In the absence of any appeal by the claimants, we are not inclined to

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consider the market value of the dry land at Rs.75,00,000/- per acre and garden land at Rs.90,00,000/- per acre as per Ex.P10.

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The evidence available on record indicates that out

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of 2 acres 7 guntas of dry land, after deducting 17 guntas of land which has been quashed by this Court, the balance would be 1 acre 30 guntas of dry land and 4 guntas of kharab land. Hence, we are of the considered view that the Trial Court was justified in determining the market value at Rs.54,00,000/- per acre i.e. Rs.1,35,000/- per gunta for both dry land and kharab land. Sofar as entitlement of compensation with regard to 4 guntas of pot kharab land, the appellant has made vague assertion that the claimants are not entitled to compensation for kharab land. Entitlement of compensation for kharab land is well settled by the judgment of this Court in The State of Karnataka rep. by Principal Secretary, Revenue Department & Another Vs. Istak Ahmad

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Mohammadsaheb¹⁰ . A co-ordinate Bench of this Court in the aforesaid judgment has held that when unarable land is classified as ‘Pot Kharab’ to mean that it is not brought under cultivation and that no land revenue is paid in respect of such

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10 ILR 2016 KAR 98

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land and if it is classified as A kharab land under Rule 21(2) of the Karnataka Land Revenue Rules 1966, the ownership of such kharab land would be with the owners of arable land. Hence, they are entitled to compensation for A kharab land and if it is B kharab land under the aforesaid Rules, which would be utilized for public purpose and no individual can claim any right over such land, hence, owner of arable land cannot claim any ownership over B kharab land. In the instant case, no material is placed on record before the Court to show that 4 guntas of land is B kharab land. In the absence of any such evidence available on record and taking note of the fact that the SLAO has verified the land revenue records and determined the market value and awarded compensation even to the pot kharab land to the extent of 4 guntas, we are in full agreement with the decision of SLAO in passing the award dated 4.8.2007. Contrary contention with regard to award of compensation to pot kharab land is accordingly rejected.

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The Trial Court has upheld the determination of

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market value of 1 acre of converted land at Rs.400/- per sq. ft. by the SLAO placing reliance on Ex.P9 the guidance value notification. The Trial Court has specifically rejected the prayer

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of the claimants to determine the market value of the converted land at Rs.1,000/- per sq. ft. on the ground that no evidence was placed by the claimants to substantiate their claim for Rs.1,000/- per sq. ft. Ex.P9 clearly indicates that the guidance value for the converted land adjacent to BengaluruMysuru highway is Rs.400/- per sq. ft. We are of the considered view that the SLAO as well as the Trial Court were fully justified in determining the market value of the converted land at Rs.400/- per sq. ft. The contention of the learned counsel for respondent No.2 that the Trial Court ought to have considered instruction No.3 at Ex.P9 and added 25% more to the value of agricultural land and ought to have determined the market value of the converted land. Such a contention is required to be rejected for the reason that the very said instruction clearly states that only if the land is converted for industrial purpose and yet to be developed and not approved by the competent planning authority for layout, 25% more has to be added to the corresponding agricultural land value. In the instant case, the evidence available on record clearly indicates that the claimants were running the industry from

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1988-89. Hence, the question of applying instruction No.3 mentioned at Ex.P9 would not arise.

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The Trial Court has recorded a detailed finding while determining the market value for garden land at Rs.1,68,750/per gunta. Ex.P10 clearly indicates that the guidance value for garden land is fixed at Rs.90,00,000/- per acre. However, the Trial Court has not considered the same. It has upheld the market value determined by the SLAO in his award dated 04.08.2007 at Ex.P5. The SLAO as well as the Trial Court have considered Ex.P9 and determined the market value for garden land at Rs.67,50,000/- per acre i.e. Rs.1,68,750/- per gunta. The said determination of market value is based on the oral and documentary evidence available on record and the same does not call for any interference.

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Respondent No.2 has filed I.A.No.1/2022 under Order XLI Rule 27 of the Code of Civil Procedure, 1908, seeking to produce the order dated 08.12.2021 passed in W.P.No.13697/2016 and I.A.No.2/2022 under Order XLI Rule 2 read with Order VI Rule 17 of the CPC seeking to amend the pleadings making reference to the judgment of the co-ordinate

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Bench dated 27.09.2022 passed in MFA No.7537/2015. Though respondent No.2 did not assign any cogent explanation for not producing the documents at the time of filing of the appeal, the two decisions placed by respondent No.2 have some bearing on the issue and they are the orders of this Court. Hence the same are taken on record for complete adjudication of dispute between the parties. Accordingly, the applications filed by respondent No.2 are allowed.

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The contention of respondent No.2 that the coordinate Bench in MFA No.7537/2015 has remanded the matter to the Trial Court to re-determine the market value by deducting developmental charges, cannot be accepted for the simple reason that the SLAO as well as the Trial Court have determined the market value of the converted land at Rs.400/per sq. ft. to an extent of 1 acre. The said determination is based on the guidance value notification issued by the State Government and also taking note of the fact that the claimants were running industrial unit in the said extent of land much prior to the initiation of acquisition proceedings. Contrary contention of respondent No.2 with regard to the market value of the land determined by the SLAO in his first award which has

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been affirmed by the Trial Court in the impugned judgment, is liable to be rejected as the respondent No.2 neither adduced any evidence before the Trial Court nor placed any evidence in the present appeal in that regard.

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The Trial Court, considering the oral and documentary evidence on record, has recorded detailed finding with regard to the market value of the acquired land. The findings of the Trial Court do not suffer the vice of perversity or arbitrariness regarding rate of compensation. For the aforementioned reasons, we proceed to pass the following:

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ORDER

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a) The appeal is allowed in part.

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b) The impugned judgment and award of the Trial Court dated 22.04.2014 passed in LAC No.60/2012 by the Additional Senior Civil Judge at Ramanagara is hereby set aside insofar as 0.17 guntas of dry land of Sy.No.18 of Bidadi Village, Bidadi Hobli, Ramanagara Taluk.

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