Partly allowed

Smt. Sumalatha Nath v. the Special Land Acquisition Officer

Karnataka HC6 Aug 2024MSA/17/2022

Case brief

AI extract

What is this about?

Nine cents acquired for an underground drainage project were successively valued at Rs.50,000, Rs.70,000 and Rs.84,000 per cent by the LAO, reference court and first appellate court. This second appeal sought further enhancement; the court determined just compensation at Rs.90,000 per cent using the sale-instance sampler method.

What the court decided

AI extract

Smt. Sumalatha Nath Vs the Special Land Acquisition Officer — Land Acquisition | Karnataka HC (2024)

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF AUGUST, 2024 BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 17 OF 2022 (LA)

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BETWEEN:

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SMT. SUMALATHA NATH W/O LT. COL. M H NATH AGED ABOUT 92 YEARS R/AT D NO.4-3-298/42 5^TH CROSS, KODIALGUTHU ROAD KODIALBAIL MANGALURU-575003, D.K. BY HER P A HOLDER SRI PRAKASH ALVA AGED ABOUT 68 YEARS R/AT 4-3-298/42, 5^TH CROSS KODIALGUTHU ROAD, MANGALURU-575003 SINCE DEAD REPRESENTED BY LEGAL REPRESENTATIVES

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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1(a) SRI NAVEEN NATH S/O LATE LT. COL.M.H.NATH AGED ABOUT 70 YEARS RESIDING AT 4-3-298/42 5^TH CROSS, KODIALBAIL ROAD MANGALURU -575 003

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1(b) MRS.PAMELA NATH ALVA W/O MR.PRAKASH ALVA K.T AGED ABOUT 58 YEARS RESIDING AT 4-3-298/42 5^TH CROSS, KODIALGUTHU ROAD KODIALBAIL MANGALURU – 575 003

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…APPELLANTS

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(BY SRI SANATHKUMAR SHETTY K, ADVOCATE)

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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AND:

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THE SPECIAL LAND ACQUISITION OFFICER MANGALURU CITY CORPORATION MANGALURU-575003.

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…RESPONDENT

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(BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE)

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THIS MSA IS FILED UNDER SECTION 54(2) OF LAND ACQUISITION ACT, 1894, AGAINST THE JUDGMENT DATED 01.09.2021 PASSED IN MA NO.11/2013 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K, MANGALORE, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND AWARD DATED 12.12.2012 PASSED IN LAC.NO.55/2008 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANGALORE. ACCEPTED AND PARTLY ALLOWING THE REFERENCE APPLICATION U/S 18 OF THE LAND ACQUISITION ACT.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri Sanath Kumar Shetty K, learned counsel for the appellant and Sri Pavan Chandra Shetty H., learned counsel for the respondent.

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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Claimant who lost the land for the purpose of construction of underground drainage is the appellant.

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Facts which are not in dispute are that the land of the appellant has been acquired after following necessary formalities. Respondent was given the project of construction of underground drainage water under A.D.B. scheme for the City Corporation of Mangalore.

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The Land Acquisition Officer fixed the compensation at the rate of Rs.50,000/- per cent after considering the relevant aspects of the matter. Nine cents of the land of the claimant has been acquired.

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Being not satisfied with the quantum of

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compensation awarded by the Land Acquisition Officer, claimant filed reference under Section 18 of the Land Acquisition Act, which was registered in LAC No.55/2008.

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Learned Judge in the reference Court after considering the oral and documentary evidence placed on record, allowed the reference and enhanced the compensation

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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in a sum of Rs.70,000/- per cent with consequential and statutory relief.

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Being not satisfied with the enhancement, the claimant further filed an appeal before the District Court in M.A.No.11/2013.

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Learned Judge in the First Appellate Court based on the material placed on record, re-appreciated the material evidence and took into consideration the value of the land, sold in the vicinity and adopted the sale sampler method and enhanced the compensation from Rs.70,000/- per cent to Rs.84,000/- per cent.

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Being not satisfied with the said enhancement, claimant is before this Court

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Sri Sanath Kumar Shetty K., learned counsel for the claimant/appellant reiterating the grounds urged in the appeal memorandum contended that by the said acquisition, potential use of the land has been diminished after the nine cents of the

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land has been utilized for the construction of the underground drainage and on the severance of the land, the First Appellate

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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Court has awarded a sum of Rs.84,000/- per cent as the compensation after taking note of the value of the land as per sale sampler method which is on the lower side and sought for reasonable enhancement.

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He also pointed out that both the Courts failed to consider that the sale deed produced and marked at Ex.P.2 for the value of the land was sold in a sum of Rs.1,40,000/- per cent and therefore, awarding of the compensation in a sum of Rs.84,000/- per cent by the First Appellate Court is on the lower side.

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He further contended that the acquired land is situated 300 meters away from the land that was subject matter of the sale under Ex.P.2. Therefore, the reference Court as well as the First Appellate Court were not justified in awarding meager compensation to the claimant and sought for reasonable enhancement.

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In support of his contentions Sri Sanath Kumar Shetty, learned counsel for the appellant placed reliance on the judgment of the Hon’ble Apex Court in the case of Digamber and others v. State of Maharashtra and others , reported in

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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AIR 2013 SC 3532 , wherein in paragraphs 19 to 21, their lordships have held as under:

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“19. The judgment of the Bombay High Court extracted in Sabhia Mohammed Yusuf Abdul Hamid Mulla case [Sabhia Mohammed Yusuf Abdul Hamid Mulla v. Land Acquisition Officer, (2012) 7 SCC 595 : (2012) 4 SCC (Civ) 290] , and the principles laid down by this Court would clearly go to show that the relevant consideration for determination of market value of the acquired land is virtually identical. The nearby land of the land under reference fetched market value of Rs 25 per square metre. In the judgment referred to supra it is held that judicial notice can be taken of the fact that the industrial growth in and around Bombay has started with rapid strides from the year 1965 onwards. In fact, the growth is by leaps and bounds in magnitude as well as number of industries and virtually all the industries of the country are represented on the industrial estates scattered on this highway.

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20. The sale instances in relation to the small residential plots covered in the sale deeds, Exts. 20-21 are situated in the same area, which sales were prior to the issuance of the preliminary notification i.e. before 14-6-1990 and they have similar topographical and physical characteristics and the fact is that the land of the appellants is acquired for the purpose of industrial development, which has got the potentiality for development of the land as industrial estate and to carve out industrial plots in it. That the acquisition of the land is for commercial purpose should be the

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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relevant criterion for determining the market value by both the Land Acquisition Officer and the Reference Court placing reliance upon the sale instances even in relation to small plots of land, though it is shown from the records that the acquired land on the date of notification is an agricultural land. But the acquired land has got non-agricultural potentiality as the said land was proposed by the District Collector after identifying the land for acquisition and stated that it is suitable for the purpose of industrial development. Therefore, the principles laid down at para 16 of Sabhia Mohammed Yusuf Abdul Hamid Mulla case [Sabhia Mohammed Yusuf Abdul Hamid Mulla v. Land Acquisition Officer, (2012) 7 SCC 595 : (2012) 4 SCC (Civ) 290] and the principles laid down in Viluben Jhalejar Contractor case [Viluben Jhalejar Contractor v. State of Gujarat, (2005) 4 SCC 789] referred to supra lay down the criteria for determination of the market value of the acquired land. 21. Also, in Atma Singh case [Atma Singh v. State of Haryana, (2008) 2 SCC 568 : (2008) 1 SCC (Civ) 621] it was stated that in the criteria for the determination of the market value, the potentiality of the acquired land should also be taken into consideration which has been explained stating that potentiality means capacity or possibility for changing or developing into a state of actuality. Further, the legal principles laid down in Atma Singh [Atma Singh v. State of Haryana, (2008) 2 SCC 568 : (2008) 1 SCC (Civ) 621] at para 5 which portion is extracted above, give us the criteria to be followed for

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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determination of the market value of a property keeping in view its existing condition with all its existing advantages and its potential possibility when let out in its most advantageous manner. The various criteria laid down in the abovereferred case, namely, the existing amenities like water, electricity, possibility of their further extension, whether nearabout the acquired land, town is developing or has prospect of development in future, have to be taken into consideration by both the Land Acquisition Collector and the courts for determination of the market value. The aforesaid advantages are very much abundantly available in respect of the acquired land as the said land is within the proximity of New Venkateshnagar Layout, wherein residential sites are formed, and it is on record and there is a school and college near the highway. Therefore, the principles laid down in the aforesaid case are aptly applicable to the fact situation of the case in hand.”

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Per contra, Sri Pavana Chandra Shetty H., representing the respondent supported the impugned judgment.

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He further contended that the land in question that was subject matter at Ex.P.2 is a converted land and therefore, both the Courts have judiciously enhanced the compensation by adopting the sale sampler method and sum of Rs.84,000/- per

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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cent compensation awarded by the First Appellate Court is justified in the facts and circumstances of the case on hand. Thus sought for dismissal of the appeal.

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Having heard the parties, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is not in dispute that nine cents of the land of the claimant has been acquired for the purpose of underground drainage under A.D.B. scheme.

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The compensation fixed by the Land Acquisition Officer is in a sum of Rs.50,000/- per cent.

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Learned Judge in the reference Court, has dealt in detail and has taken into consideration the land value in the adjoining areas and also took into consideration value of land sold as per Ex.P.2 and distinguished with the acquired land by supplying proper and adequate reasons that the acquired land is not a converted land and there was no material placed on record to show that it was non agricultural potential land, enhanced the compensation from Rs.50,000/- per cent to Rs.70,000/- per cent.

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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Thereafter the claimant approached the First

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Appellate Court praying for enhanced compensation.

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Learned Judge in the First Appellate Court took into the consideration various aspects of the matter including the severance of the land usage and following the dictum of the Hon’ble Apex Court on that point, has further enhanced the compensation from Rs.70,000/- per cent to Rs.84,000/- per cent.

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While so enhancing the compensation, the prime reason that has been assigned by the First Appellate Court is that the value of land that has been sold under Ex.P.2 cannot be adopted for determination of the compensation to the case on hand, especially when the claimant has sought for awarding of adequate compensation on the basis of sale sampler method inasmuch as in Ex.P.2, subject matter of the land was a non agricultural land (converted land).

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In the case on hand, even though material evidence is placed on record that the acquired land stated above is 300 meters away from the land that was involved in Ex.P.2, there is

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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no material evidence on record to establish the fact of non agricultural potential nature of the land in question.

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However, taking note of the fact that the land is in Kadri village which is situated about 5 to 6 kilometers from the heart of the city, only on the ground that the land was not a converted land, the compensation determined by the First Appellate Court cannot be accepted as just compensation, having regard to the fact that once the land is lost for the claimant it is lost for ever.

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Therefore, in the considered opinion of this Court, because of the fact that the acquired land was not converted land, taking note of the value in Ex.P.2 and applying the said sampler method, the acquired land is valued in a sum of Rs.90,000/- per cent as against Rs.50,000/- per cent awarded by the Land Acquisition Officer, enhanced by the reference Court in a sum of Rs.70,000/- per cent and further enhanced by the First Appellate Court in a sum of Rs.84,000/- per cent, would meet ends of justice.

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Accordingly, following:

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(i) Appeal is allowed in part.

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NC: 2024:KHC:31360 MSA No. 17 of 2022

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(ii) The land value is determined at the rate of Rs.90,000/- per cent with all statutory benefits.

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Sd/(V SRISHANANDA)

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JUDGE

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MR List No.: 1 Sl No.: 67

Smt. Sumalatha Nath v. the Special Land Acquisition Officer

Case brief

What is this about?

What the court decided

Smt. Sumalatha Nath v. the Special Land Acquisition Officer

Case brief

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