Sri H S Somashekar Vs the Special Land Acquisition Officer

THE SPECIAL LAND ACQUISITION OFFICER KARNTKA INDUSTRIAL AREAS DEVLEOPMENT BOARD METRO RAIL PROJECT MAHARSHI ARAVIND BHAVAN 1^ST FLOOR, NRUPATHUNGA ROAD BANGALORE - 560 002

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THE STATE OF KARNATAKA REP BY ITS PRL SECRETARY DEPT OF COMMERCE AND INDUSTRIES VIKAS SOUDHA DR B R AMBEDKAR ROAD BENGALURU - 560 001

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KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD

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HC-KAR

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III AND IV FLOOR, KANIJA BHVAN RACE COURSE ROAD BENGALURU - 560001 REP BY CHIEF EXECUTIVE OFFICE AND EXECUTIVE MEMBER

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…RESPONDENTS

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(BY SRI. CHANDRASHEKAR P.V., ADVOCATE FOR R1 AND R3 SRI. BHOJEGOUDA T. KOLLER, AGA FOR R2)

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THIS CRP IS FILED AGAINST THE JUDGMENT DATED 04.01.2022 PASSED IN LAC.NO.34/2016 ON THE FILE OF THE II ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH.NO.17, DISMISSING THE PETITION FILED UNDER SECTION 18(3)(b) OF LAND ACQUISITION ACT, 1894 R/W SECTION 24 OF CPC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri. P.N., Rajeshwara, learned counsel for the petitioner and Sri. P.V. Chandrashekar, learned counsel for the respondents.

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HC-KAR

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Claimant in LAC No.34/2016 is the revision

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petitioner challenging the Order passed by the Reference Court dated 04.01.2022 whereby the reference application under Section 18 (3)(b) of the Land Acquisition Act, 1894 read with Section 34 of the Code of Civil Procedure came to be dismissed. Operative portion of the order reads as under:

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"The petition filed by the claimant/petitioner under Section 18(3)(b) of L.A. Act, 1894 r/w Section 24 of CPC is dismissed."

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Facts in the nutshell which are utmost necessary for disposal of the present petition are as under:

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3.1 Respondent/KIADB acquired land belonging to the petitioner by issuing necessary notification for the purpose of construction of metro rail project. After the notification came to be issued, claimant and acquiring authority sat together for the determination of the

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adequate and just compensation and arrived at a settlement and consent agreement was drafted (Ex.P8). In the said consent agreement, it has been agreed as under:

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"PÉLJr©AiÀÄ «±ÉÃµÀ ¨sÀÆ¸Áé¢üÃ£Á¢üPÁjUÀ¼ÀÄ £À£ÀUÉ «¢ü 29(2)gÀr eÁj ªÀiÁrgÀÄªÀ £ÉÆÃnÃ¸ïUÉ ®UÀwÛ¸À¯ÁzÀ ¯ÉPÁÌZÁgÀ vÀBSÉÛAiÀÄ°è «ªÀj¹gÀÄªÀAvÉ £ÀªÀÄä ¥Àæ¸ÀÄÛvÀ ¸ÀéwÛUÉ ¨sÀÆ ªÀÄvÀÄÛ PÀlÖqÀ ªÀiË®å EvÀgÉ ¨sÀvÉåUÀ¼À£ÀÄß ¸ÉÃj ¤UÀ¢¥Àr¹gÀÄªÀ ¥ÀjºÁgÀzsÀ£ÀªÀ£ÀÄß ¥ÀqÉAiÀÄ®Ä M¦àzÉÝÃ£É. CzÀgÀAvÉ ±ÉqÀÆå¯ï ¸ÀéwÛ£À ¥ÀjºÁgÀ zsÀ£ÀzÀ°è £À£Àß ¨Á§Ä gÀÆ.3,12,40,688-00 (ªÀÄÆgÀÄ PÉÆÃn ºÀ£ÉßgÀqÀÄ ®PÀëzÀ £À®ªÀvÀÄÛ ¸Á«gÀzÀ DgÀÄ£ÀÆgÀ JA¨sÀvÉÛAlÄ) ªÀiÁvÀæ ZÀPï £ÀA. 11464 ¢£ÁAPÀ: 11/11/1 gÀ£ÀéAiÀÄ ¨sÀwð ¥Àæw§AzsÀ ¥ÀvÀæªÀ£ÀÄß §gÉzÀÄPÉÆqÀÄªÀ ªÀÄÆ®PÀ ¥ÀqÉAiÀÄ®Ä £Á£ÀÄ M¦àgÀÄvÉÛÃ£É."

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3.2 The details of the acquired land is furnished in

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the tabular column as under, which is part of Exhibit P8:

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MAzÀÄ ªÉÃ¼É £À�ÀÖªÉZÀÑªÀÇ ¸ÉÃjzÀAvÉ ¥ÀjºÁgÀzsÀ£ÀªÀ£ÀÄß ¥ÀÇwðAiÀiÁV ¸ÀPÁðgÀPÉÌ ªÀÄgÀÄ ¸ÀAzÁAiÀÄ ªÀiÁqÀ®Ä vÀnÖzÀ F ªÉÆ§®UÀ£ÀÄß ¸ÀPÁðgÀªÀÅ ¨sÀÆ PÀAzÁAiÀÄ ¨ÁQAiÀÄAvÉ ¥ÀjUÀt¹ ªÀ¸ÀÆ° ªÀiÁrPÉÆ¼Àî®Ä M¦àgÀÄvÉÛÃ£É.

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	-::µÉqÀ	Æå¯ï::-		-::ZÉPÀÄÌ§	A¢::- (cit	y Sy.)	AiÀÄAvÉ
ªÁqïð ¸ÀASÉå	ªÁqïð ºÉ¸ÀgÀÄ	¸ÀéwÛ£À ¸ÀASÉå	¸ÀéwÛ£À «¹ÛÃtð ZÀ.«ÄÃ.	¥ÀÆªÀðPÉÌ	¥À²ÑªÀÄPÉÌ	GvÀÛgÀPÉÌ	zÀQët PÉÌ
14	£ÁUÁ¥ÀÄgÀ	8/1387 418/59	376.25	1333 1334	gÀ¸ÉÛ	1386	1388

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3.3 After executing Ex.P8, petitioner turned around

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as to the adequacy of the compensation and filed a writ petition before this Court in W.P.No.25193 & 25194/2015.

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3.4 A coordinate bench of this Court passed an order on 13.08.2015 which is marked as Ex. P17 in the Court below. Said order is culled out hereunder for ready

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reference:

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"As regards the claim that petitioner is entitled to more than ₹3,12,40,688/ by way of interest in terms of the agreement dated 11.11.2011, Annexure-G, under sub Section (2) of Section 29 of the Karnataka Industrial Area Development Act, 1966, it is open for the petitioner to institute a suit for declaration of his right under the said contract and secure payment of the same and not come rushing to this Court in exercise of supervisory writ jurisdiction. Alternatively, petitioner may make a representation enclosing all necessary particulars and documents over alleged error of calculation as also a copy of this order, which if so done within a fortnight from today, there is no reason to believe that the authorities would not consider the same and pass orders in accordance with law. Petitions are disposed of accordingly."

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3.5 Thereafter, petitioner filed a representation

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before the respondent. The respondent has passed a modified award vide Ex.P16. Relevant portion of Ex.P16 reads as under:

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"¨ÉAUÀ¼ÀÆgÀÄ ªÉÄmÉÆæÃ gÉÊ®Ä AiÉÆÃd£ÉUÁV ¨sÀÆ¸Áé¢üÃ£À ¥Àr¹PÉÆArgÀÄªÀ ©©JA¦ ªÁå¦ÛAiÀÄ £ÁUÁ¥ÀÅgÀ ªÁqÀð ¸ÀéwÛ£À ¸ÀASÉå: 8/1387 gÀ°è 376.25 ZÀ.«ÄÃ. «¹ÛÃtðPÉÌ ¥ÀgÀ¸ÀàgÀ M¦àUÉ DzsÁgÀzÀ ªÉÄÃ¯É zÀgÀ ¤UÀ¢ü¥Àr¹, CzÀgÀAvÉ PÀlÖqÀzÀ (PÁA¥ËAqï ¨Á§Ä) ¥ÀjºÁgÀzÀ ¥ÁåPÉÃeï vÀAiÀiÁj¹zÀÄÝ, ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä ¤gÁPÀj¹gÀÄªÀÅzÀjAzÀ, ¥ÀjºÁgÀ ¥ÁªÀw¸À®Ä ¸ÁzsÀå«®èzÀ PÁgÀt ¸ÀzÀj PÀlÖqÀzÀ (PÁA¥ËAqï ¨Á§Ä) ¨sÀÆ¸Áé¢ü£À PÁAiÉÄÝ 1894gÀ «¢ü 30 & 31 ºÁUÀÆ 31(2)gÀ£ÀéAiÀÄ zÀvÀÛªÁzÀ C¢üPÁgÀªÀ£ÀÄß ZÀ¯Á¬Ä¹ PÀlÖqÀzÀ ¥ÀjºÁgÀ zsÀ£ÀªÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄzÀ The Registrar, City Civil Court, Bangalore gÀªÀgÀ°è oÉÃªÀtÂ ªÀiÁqÀ®Ä DzÉÃ²¹zÉ."

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3.6 Being not satisfied with the determination of the

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said amount, by Order dated 16.07.2015 vide Ex.P16, reference application under Section 18(3)(b) came to be filed before the Land Acquisition Officer on 27.08.2015 vide Ex.P1.

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3.7 There was no action taken by the respondent and therefore the claimant filed an application under 18(3)(b) of the Land Acquisition Act on 03.03.2016.

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3.8 Respondent appeared before the Court and filed necessary objections. An enquiry was held by the learned Trial Judge and after holding the enquiry, learned Trial Judge dismissed the application filed by the claimant, inter alia holding in paragraph numbers 16 to 24 as under:

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"16. PW.1 has stated that he gave representation on 25.05.2015 that the compensation has to be determined under the provisions of the New Enactment. Ex.P.15 is the said representation requesting the L.A.O. to re-determine the compensation to the entire property.

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17. PW.1 has stated that being aggrieved by issuance of notice dated 18.05.2015 to frame the award only in-respect of structure and not paying additional market value as contemplated under Section 23(1-A) of the L.A. Act, he has filed Writ petition No.2519325194/2015. The Hon'ble High Court by order dated 13.08.2015 as per Ex.P.17 had disposed off the petition with a liberty to the petitioner to institute the suit for declaration of his right under the said contract and alternatively, he make a representation enclosing all

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necessary particulars and documents over alleged error of calculation the respondent therein.

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18. PW.1 has stated that he gave representation on 27.08.2015. Ex.P.1 is the said representation. The respondent has rejected the same by issuing endorsement dated 03.10.2015. Ex.P.2 is the said endorsement. PW.1 has stated that as the compensation has been paid under consent agreement which is full and final settlement. The respondent has not passed any award in-respect of the land in question and so the award will have to be made under the New Act. Further it is contended that the compensation package is only an offer made by the BMRCL authorities and he has simply received the payment made by the SLAO as an interim compensation. Unless and until the award is passed and compensation is paid for entire property acquired, the rights of the owner to claim appropriate compensation by requiring the authority to pass the award or to make reference to civil Court are not extinguished.

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19. During cross-examination PW.1 admits that in the year 2011 the respondent had given notice and in pursuance to the notice, he has received the compensation. The petitioner has stated that he has received ½ of the compensation. He admits that he has signed Ex.P8. Ex P.8 is the agreement entered between petitioner and respondent - Special Land Acquisition Officer, agreeing to receive the compensation of Rs.3,12,40,688/ with the condition that he will not seek for enhancement of compensation and that he is giving up

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his title in-respect of property. If it is found that he is not having right, he would refund the compensation received by him. He denied the suggestion that there is no reference to payment of half of the compensation and that payment of Rs.3,12,40,688/-under Ex.P.8 is towards full and final settlement. He admits that under agreement, he had under-taken that he will not seek for enhancement of compensation.

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20. PW.1 pleads ignorance that the compensation has to be fixed at Rs.3,12,40,688/-. He admits that he has given representation to pay the compensation to the compound in the year 2015 and that he filed W.P. No.25193/2015 seeking for higher compensation. He admits that he has not filed the suit for declaration.

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21. The Senior Assistant in the office of SLAO has been examined as RW.1. He has stated that after detail enquiry the respondent No.1 was pleased to pass total compensation of Rs.3,12,40,688/- to the extent of 376.25 sq. meters. The petitioner received the said amount on 11.11.2011 vide cheque No.11464. Ex.R.3 is the agreement dated 11.11.2011, which discloses that the cheque has been received by the petitioner. Ex.R.4 is the indemnity bond dated 11.11.2011: ER.5 is the agreement dated 11.11.2011 between claimant and the respondent No.1 under Section 29(2) of KIAD Act. It is stated that the petitioner has received the compensation amount by consent agreement under Section 29(2) of the KIAD Act and had executed an agreement on 11.11.2011 and another agreement under Section 29(2) of the KIAD Act.

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The petitioner had under taken not to file any enhancement case before the civil Court.

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22. RW.1 has stated that in-respect of payment of compensation amount of compound wall, the petitioner has not received the payment and so, the compensation amount has been deposited n this Court under Sections 30 and 31 of L.A. Act and the same has been renumbered as L.A.C. No.16/2015. During cross-examination he admits that the consent award has not been passed. He has stated that the consent agreement has been made.

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23. From the evidence, it is clear that the consent award has not been passed by the respondent No.1. The counsel for the respondent No.1 has relied upon the decision reported in (1996) 4 SCC 174, the Hon'ble Supreme Court has held that:

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In a private sale between a willing vendor and a willing vendee, parties would arrive at a consensus to pay and receive consolidated consideration which would form the market value of the land conveyed to the vendee. For public purpose, compulsory acquisition under the Act give absolute title under Section 16 free from all encumbrances. Determination of the compensation would be done under Section 23(1) on the basis of market value prevailing as on the date of the publication of the notification under Section 4(1). It would, therefore, be open to the parties to enter into a contract under Section

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11(2), without the necessity to determine compensation under Section 23(1) and would receive market value at the rates incorporated in the contract signed under Section 11(2) in which event the award need not be in Form 14.

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Therefore, the appellants are not entitled to the payment of additional amounts by way of solatium, interest and additional amount under the provisions of the Act."

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24. The principles laid down in the said decision applies to the case on hand. As petitioner entered into an agreement with the respondent No.1, the petitioner cannot contend that he has not been paid additional interest for 302 days.

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In ILR 2013 KAR 6307, our Honble High Court has held that:

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"It is clear that for seeking reference under Section 18(1) of the L.A. Act,, an award has to be passed. If the compensation is determined under Section 29(2) of the KIAD Act, by agreement, question of seeking reference does not arise as award has been made. If no award is passed, an application under Section 18(1) or under Section 18(3)(b) of the L.A. Act, are not maintainable.

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Some times a consent award may be passed under Section 11(2) of the L.A. Act, even though the acquisition is under the KIAD Act having regard to Section 30 of the KIAD Act. Needless to say that an application under Section 18(1) of the L.A. Act or 18(3)(b) is also not maintainable when the consent award is not passed under Section 11(2) of the L.A. Act.

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Being aggrieved by the same, the claimant is

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before this Court in this revision petition on the following grounds:

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That it is pertinent to refer to Rule 10(b) of the Karnataka Land Acquisition Rules, 1965, which prescribes the form of agreement, which needs to be entered into between the claimants and the Deputy Commissioner. Section 11(2) of the Land Acquisition Act and Rule 10(b) of the Karnataka Land Acquisition Rules, contemplate entering into such agreement/consent only post issuance of notification. In the present case, the agreement dated 11.11.2011 same is not in compliance with the requirement of law. Therefore, reference Court ought not to have taken into consideration to come to a conclusion that there was consent agreement between the claimants and the respondent No. 1. On this ground alone the judgment passed by the reference court is liable to be set aside.

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That under the land acquisition act, apart from the market value, land owners are entitled to statutory benefits which cannot be deprived to them merely because he had entered into agreement as provided for under Section 29(2) of KIADB Act. Therefore, intereference of this Hon'ble Court is warranted.

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That it is admitted fact that the respondent No.1 has not paid any compensation towards compound and gate as on 11.11.2011 and it was the specific case of the Petitioner before reference court. However, this aspect of the matter was not at all considered by the Hon'ble reference court and even made any finding.

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That the claimant has not agreed for determining the compensation under Section 29(2) of The Karnataka Industrial Areas Development Act, 1966. The compensation received only an interim compensation. Therefore, his application seeking higher compensation ought to have been referred to the Civil Court for adjudication.

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That as per the directions issued by this Hon'ble Court in W.P.No.25193-94/2015, the Petitioner has made representation on 27.08.2015 to the respondent No.2 and 3 herein requesting them to refer the matter to reference court for determination of the market value of the land including the earth and structures in accordance with law. However, without hearing the Petitioner, the respondent No.1 herein issued endorsement on 03.10.2015 stating that it is not required to refer the matter to civil court since agreement was entered between the parties under

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Section 29(2) of KIADB Act. This aspect of the matter was ignored by the Hon'ble reference Court. Hence, interference of this Hon'ble Court is warranted.

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That at the time of fixing the package, 1st respondent has not provided sufficient opportunities to the Petitioner to make his objections and opportunity was not given to the Petitioner to make his submission. Hence, interference of this Hon'ble Called for.

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That the decisions relied upon by the Petitioner are not considered by the Hon'ble reference Court, even it was not whispered to refer in the judgment.

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That the judgment under Petition is otherwise illegal and unjust and not based on material on record. Therefore, it is liable to be set aside.

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That the judgment under Petition is otherwise untenable and not justified in law.

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That the judgment under order is illegal not based on material on record and suffers from perversity.

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Limitation: The Judgment under challenge is dated 04.01.2022. However, in view of suo motu extension granted by the Hon'ble Apex Court in Miscellaneous Application No.21/2022 & Miscellaneous Application No.665/2021, Petition filed today intime.

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Valuation : In the Petition in LAC.No.34/2016, no court fee was paid by the Petitioner. Hence, a fixed court fee of Rs. 20/-is paid on the Memorandum of Civil Revision

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Petition under Article 11(q) () of the II schedule to Karnataka Court Fees and Suits Valuation Act, 1958.

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The Petitioner submits that there is no pendency of any other litigation before any other court or authority on the same cause of action.

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Sri. P.N. Rajeshwara, learned counsel for the petitioner reiterating the grounds urged in the revision petition contented that being not satisfied with the determination of the adequate compensation, claimant ignored Ex.P6 and protested to receive the compensation and thus he is entitled to maintain petition under Section 18(3)B(b) the Land Acquisition Act which has not been properly considered by the Reference Court resulting in miscarriage of justice and sought for allowing the revision petition.

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Per contra, Sri. P.V. Chandrasekhar, learned

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counsel for the respondent supports the impugned order.

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He would further contend that when there is a

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consent given by the petitioner, there is no question of not

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accepting the compensation amount as per the consent agreement and in pursuance of the direction issued by the Hon'ble High Court in the writ petition referred to supra, the respondent recalculated the amount of Rs.38,112/- as additional compensation and called upon the claimant to accept the same.

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Claimant having not accepted the amount, there was a direction to deposit the same before the Court by Order dated 16.07.2015 by Ex.P16. Thus, the dismissal of the claim application filed under Section 18(3)(b) of the Land Acquisition Act is justified in the attendant facts and circumstances of the case and sought for dismissal of the revision question.

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Having heard the arguments of both sides, this

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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 Ex.P6 is signed by the claimant. There is no dispute as to contents of Ex.P6. At an undisputed

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point of time, the determination of the compensation was by consent of the parties. When such is the factual aspects, there was no scope for the petitioner/claimant to turn around and seeking re-determination of the compensation.

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However he challenged the determination of the compensation by way of writ petition as referred to Supra.

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A co-ordinate bench of this Court vide Ex.P17

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as referred to supra relegated the claimant to the LAO.

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Based on the representation given by the claimant, respondent/LAO re-determined the additional compensation in a sum of Rs.38,112/-. Pertinent to note that such a procedure is not contemplated under the scheme of the Land Acquisition Act whenever there is a consent award.

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Nevertheless, respondent pursuant to the directions of the writ petition, considered the

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representation and awarded additional compensation vide Ex.P16.

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When the claimant failed to receive the redetermined additional compensation and the amount arrived in Ex.P6, there was no other option open to the LAO except to deposit the amount before the Civil Court by exercising the power under Sections 30 and 31 of the Land Acquisition Act.

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It is pertinent to note that Ex.P16 is dated 14.02.2015. But when the claimant has failed to receive the amount, an order came to be passed for depositing the amount on 16.07.2015. Therefore for all practical purposes, re-determination of the compensation has taken place on 14.02.2015 itself.

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However, without receiving the compensation, the claimant made an application seeking reference of the matter under Section 18 with the LAO by Ex.P1 on 27.08.2015 which is by itself time barred in view of the

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timeline prescribed under the statute as 14.02.2015 is the re-determination of the compensation by the LAO as could be seen from the Ex.P16.

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However, Sri. P.N. Rajeshwara would submit

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that there is a seal and the date mentioned in Ex.P16 should be read as 14.07.2015. Assuming that it is on 14.07.2015, as could be seen from the contents of Ex.P16, claimant did not file any claim or additional claim nor produced any documents pursuant to the notice issued by the LAO on 05.01.2015.

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In the absence of any documents being furnished and in the absence of the claim, LAO suo motu re-determined the compensation only in respect of compound wall and arrived at Rs.38,112/- as the additional compensation payable only in respect of compound wall.

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In other words, the determination of the compensation vide Ex.P8 for the land, structures and other

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benefits was settled down was settled at Rs.3,12,40,688/-

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as referred to supra.

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Thus, what is entitled by the claimant is aforesaid sum of Rs.3,12,40,688/- plus Rs.38,112/-. When the claimant refused to receive the additional compensation re-determined only in respect of compound wall, and also failed to receive the amount of compensation vide Ex.P8, left with no alternative as per the provisions of the Land Acquisition Act vide Sections 30 and 31, LAO directed the amount to be deposited in the Civil Court. Said order is signed on 16.07.2015 which is clearly visible in Ex.P16.

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In other words, Ex.P16 is the composite extract of the entire proceedings that has taken place from the date of receipt of the representation given by the claimant pursuant to the Order of the Coordinate bench of this Court vide Ex.P17 till the LAO re-determining the compensation despite the resistance on the part of the

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claimant to participate in the re-determination proceedings and non-cooperation by not furnishing the necessary documents and non-filing of the claim application.

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Under such circumstances, learned Trial Judge passing the impugned order, dismissing the reference application under Section 18(3)(b) is just and proper though not happily worded.

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In the first place, against the consent award, no reference application is maintainable under the scheme of the Land Acquisition Act.

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However, if any portion of the compensation is left out in the consent award, a chance was provided pursuant to the directions vide Ex.P17 to the claimant to substantiate his claim.

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The contents of Ex.P16 would make it clear that there was a total resistance and non-cooperation on the part of the claimant before the LAO insofar as redetermination of the compensation which was not part of

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Ex.P8. Claimant even failed to file fresh claim before Land Acquisition Officer.

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Despite such non-co-operation pursuant to the directions issued by this Court vide Ex.P17, LAO on its own re-determined the compensation in a sum of Rs.38,112/-. Even that amount was not received by the claimant for the reasons best known to him. Left with no alternative, LAO had to resort to Sections 30 and 31 of the Land Acquisition Act by directing the consent to deposit the amount before the Civil Court.

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When such is the factual aspects in the case on hand, the grounds urged in the revision petition that dismissal of the reference application filed by the revision petitioner under Section 18(3)(b) of the Act cannot be faulted with.

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