Rangamma @ Kamalamma Vs Special Land Acquisiton Officer

THIS MFA IS FILED U/S 54(1) OF THE LAND ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DATED. 20.10.2008, PASSED IN LAC NO.48/2001, ON THE FILE OF THE I-ADDITIONAL CIVIL JUDGE (SR.DN.) AND CHIEF

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JUDICIAL MAGISTRATE, SHIVAMOGGA, PARTLY ALLOWING THE REFERENCES U/SEC.18. OF THE LAND ACQUISITION ACT.

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

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and

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HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE RAJESH RAI K)

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Though this appeal is listed for admission and to hear on I.A.No.1/2021 for condonation of delay and I.A. No.2/2021 for stay, however, with the consent of the learned counsel for respective parties and by considering the aspect that this appeal is of the year 2021, the same is taken up for disposal.

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This appeal under Section 54(1) of the Land Acquisition Act, 1894 (hereinafter referred to as " the Act", for short) is directed against the judgment dated 20.10.2008 passed in LAC No.48/2001 by the I Additional Civil Judge (Senior Division) and CJM, Shivamogga (hereinafter referred as " Reference Court ", for short),

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whereby the Reference Court has partly allowed the claim petition filed by the appellant by enhancing the compensation awarded by the Land Acquisition Officer (" LAO", for short) on 23.07.2001 to Rs.2,00,000/- from Rs.1,00,000/- in respect of tank fed land of the appellant bearing Sy.No.72/2 measuring 15 guntas situated at Basavana Ganguru Village, Holalluru Hobli of Shivamogga Taluk and District ("land in question", for short), which was acquired along with other lands for alignment of Upper Tunga canal.

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The abridged facts of the case are as under:

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The appellant was the owner of land in question. The said land was acquired for aligment of Upper Tunga canal by the respondents. Thereupon, the proceedings under the Act were initiated and notification under Section 4(1) of the Act was issued on 11.09.1997 and the possession of land was taken on 19.12.2000. Thereafter, the LAO has passed the award on 23.07.2001 awarding a sum of Rs.1,00,000/- per acre for tank fed land. Being aggrieved

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by the said award, the appellant filed an application to refer her matter for reference under Section 18 of the Act for fixation of reasonable market value for the acquired land. The Reference Court numbered the said case as LAC.No.48/2001.

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The Reference Court, on assessment of oral and documentary evidence, fixed the market value at the rate of Rs.2,00,000/- per acre as against Rs.1,00,000/determined by the LAO for the tank fed land vide judgment dated 20.10.2008. The said judgment is challenged in this appeal by the appellant for enhancement of compensation.

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We have heard the learned counsel Sri.Raju Bhat for the appellant, the learned Additional Government Advocate for respondent No.1 and the learned counsel Sri. B.R. Prashanth for respondent No.2.

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The primary contention of the learned counsel

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for the appellant is that the Reference Court has grossly

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erred while passing the impugned award since it has not appreciated the evidence on record in right perspective, which has caused injustice to the appellant. He further contended that the acquired land situated close to Shivamogga - Davanagere main road and public utility spaces such as Engineering College, Tobacco Factory, Ashraya Yojana Layout and Agricultural College. As such, the acquired land lost its agricultural features. Hence, the Reference Court ought to have awarded the compensation by considering all the above aspects.

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He further contended that the claimant in LAC.No.57/2001 in respect of same acquisition had approached this Court by filing MFA.No.5782/2015, wherein this Court has enhanced the compensation at the rate of Rs.105/- per sq. ft. As such, since the appellant also stands on the same footing, she is also entitled for the same compensation. Accordingly, he prays to allow the appeal.

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Per contra , learned counsel for the respondents

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submits that the appeal filed by the appellant is hopelessly barred by limitation as there is a delay of 4084 days in filing the appeal. The reasons assigned by the appellant for the said inordinate delay are that she belongs to Scheduled Tribe caste and below poverty line group and due to her poor financial condition she was unable to prefer the appeal in time. According to the learned counsel this reason assigned by the appellant cannot be accepted to condone the inordinate delay and if that was her case, she would have approached this Court through Free Legal Aid Services. Further, the sole ground of financial difficulty cannot be a reason to condone the inordinate delay of 4084 days.

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To buttress his argument, he relied on the judgment of the Hon'ble Apex Court in the case of AJAY DABRA Vs. PYARE RAM AND OTHERS reported in 2023 SCC ONLINE SC 92 , wherein the Hon'ble Apex Court has

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held that insufficient fund to pay the court fee on time is not a ground to condone the delay.

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Learned counsel also contended that the Reference Court, after considering the evidence, facts and circumstances of the case, has rightly fixed the market value for the tank fed land. The said award was not challenged by the respondents. However, the appellant challenged the said award, nearly after lapse of 11 years, that too after this Court has enhanced the compensation in MFA.No.5782/2015 arising out of connected matter i.e., LAC.No.57/2001. In such circumstances, the parity cannot be extended to the claim of the appellant. Accordingly, he prays to dismiss the appeal both on merits as well as on the ground of delay and laches.

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Having heard the learned counsel for the parties and having carefully perused the impugned judgment and also evidence and documents made available before us, the points that arise for consideration are:

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(i) Whether the inordinate delay in approaching this Court by the appellant is justifiable and I.A No.1/2021 is deserves to be allowed?

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(ii) Whether the Reference Court is justified in partly allowing the appeal filed by the appellant by awarding a compensation of Rs.2,00,000/- per acre for the tank fed land of the appellant?

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We have perused the affidavit accompanied to I.A.1/2021 filed under Section 5 of the Limitation Act to

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condone the delay of 4084 days in filing the appeal. It is stated in the affidavit that the appellant is a widow aged about 65 years and she belongs to Scheduled Tribe and below poverty line group. It is also stated that since she is a rustic villager and an illiterate lady, she does not know the legal consequences. It is also stated that in the year 2015, she met with a road traffic accident and suffered grievous injuries and she was admitted to McGann

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Hospital, Shivamogga and thereafter, admitted to Kasturba Hospital, Manipal, where she took treatment as an inpatient. After her discharge from the hospital, due to her financial distress, she was unable to get any information in respect of the award passed by the Reference Court and to engage the services of a counsel to prefer an appeal. Hence, the delay has been caused.

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The Hon'ble Apex Court in the case of URBAN IMPROVEMENT TRUST VS. SMT.VIDHYA DEVI AND OTHERS - CIVIL APPEAL NO.14473/2024 (arising out of SLP (C) No.12116/2010), while condoning the delay in the land acquisition case, has observed in paragraphs 46 to 51 as under:

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"46. As regards the appellant’s challenge to the inordinate delay of 21 years in filing of the writ petitions by the respondents, we are of the view that the same needs to be considered in the facts and circumstances of the case. While it is true that the courts have consistently held that undue delay in approaching the court can be a ground for refusing relief, the courts have also recognized that in

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exceptional cases, where the impugned action is patently illegal or affects fundamental rights, the delay must be condoned.

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It is pertinent for us to consider the judgment of this Court in Vidya Devi v. State of Himachal Pradesh reported in (2020) 2 SCC 569 , wherein it was held, inter alia, as follows:

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“12.12. The contention advanced by the state of delay and laches of the appellant in moving the court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.

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12.13. In a case where the demand for justice is so compelling, a constitutional

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court would exercise its jurisdiction with a view to promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22]”

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The aforesaid view has also been reiterated by this Court in Sukh Dutt Ratra v. State of Himachal Pradesh reported in (2022) 7 SCC 508 wherein the court opined that there cannot be a ‘limitation’ to doing justice. The relevant observations are reproduced below:

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“16. Given the important protection extended to an individual vis-a-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains – can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable, and warranting intervention on the grounds of equity and fairness.”

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Similarly, this Court in its decision in Maharashtra State Road Transport Corporation

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v. Balwant Regular Motor Service reported in 1969 (1) SCR 808 held that:

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“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable.

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Two circumstances, always important in such cases, are, the length of the delay

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and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

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This Court in its decision in Ramchandra Shankar Deodhar v. State of Maharashtra , reported in (1974) 1 SCC 317 held that:

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“10. … There was a delay of more than ten or twelve years in filing the petition since the accrual of the cause of complaint, and this delay, contended the respondents, was sufficient to disentitle the petitioners to any relief in a petition under Article 32 of the Constitution. We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says, that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J., in Tilokchand Motichand

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v. H.B. Munshi [(1969) 1 SCC 110, 116: (1969) 2 SCR 824] “is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit .... It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose”. …[ SCC para 11] …”

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The decisions of this Court have consistently held that the right to property is enshrined in the Constitution and requires that procedural safeguards be followed to ensure fairness and nonarbitrariness in decision-making especially in cases of acquisition by the State. Therefore, the delay in approaching the court, while a significant factor, cannot override the necessity to address illegalities and protect right to property enshrined in Article 300A. The court must balance the need for finality in legal proceedings with the need to rectify injustice. The right of an individual to vindicate and protect private property cannot be brushed away merely on the grounds of delay and laches."

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Applying the findings enumerated in the above

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judgment of the Hon'ble Apex Court to the facts and circumstances explained in the affidavit accompanied to

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I.A.No.1/2021, we are of the considered view that the appellant being a widow aged about 65 years, cannot be deprived of fair compensation only on the aspect of delay in approaching this Court. Thus, we answer the first point in favour of the appellant and the delay in approaching this Court is condoned. Accordingly, I.A.No.1/2021 is allowed.

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As far as the merits of the case are concerned, on careful examination of the records, it is seen that the land in question was acquired along with the other lands by the respondents for alignment of Upper Tunga canal. Thereafter, the LAO passed the award, which was enhanced by the Reference Court in different LACs filed by the land-losers including the appellant herein. The claimants in the connected LAC.Nos.08/2002 and 57/2001 have challenged the impugned award passed by the Reference Court before this Court by filing MFA.No.8200/2015 c/w. MFA No.5782/2015 respectively. The Co-ordinate Bench of this Court has enhanced the

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compensation to Rs.105/per sq. ft. instead of Rs.2,00,000/- per acre granted by the Reference Court vide judgment dated 13.01.2020. While allowing the appeals, the Co-ordinate Bench has observed in paragraph No.5 and 6 as under:

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"5. We have considered the submissions made on both sides and have perused the record. The sole question which arises for consideration in these batch of appeals is whether it is open for the beneficiary to assail the validity of the judgments dated 03.02.2011 and 19.02.2011 passed in LAC No.109/2003 and 102/2003 in these batch of appeals. The Supreme Court in case of 9 ‘UNION OF INDIA VS. BALRAM’ (2010) 5 SCC 747 has held that if the purpose of acquisition is the same and the lands are identical and similar though lying in different villages there is no justification to make any discrimination between the land owners to pay the more compensation to some of the land owners and less compensation to others. Similar view was taken by the Supreme Court in ‘ALI MOHAMMED BEIGH AND OTHERS VS. STATE OF JAMMU AND

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KASHMIR’, (2017) 4 SCC 717. We are conscious of the fact that the judgment rendered in MA No.12/2008 which was upheld in MSA 33-41/2011, the market value of the land was assessed in respect of a residential plot. However, the aforesaid market value fixed in respect of the residential plot has been made the basis for fixation of the market value in respect of agricultural lands in LAC no.109/2003 and LAC No.102/2003 decided on 03.02.2011 and 19.02.2011. The aforesaid judgments have not been challenged by the beneficiary viz., 10 respondent No.2 and the amount of compensation have been paid to the land owners. Therefore, in the peculiar fact situation of the case, the respondent No.2 is precluded from contending that the appellants are not entitled to the benefit of the judgment rendered by reference court in LAC Nos.109/2003 and 102/2003. It is elementary rule of law that a litigant cannot be permitted to assume inconsistent positions in the Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of the opponent. This wholesome doctrine applies not only to successive stages of the same proceeding

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but also to another proceeding other than the one in which the position was taken up provided that the subsequent proceeding also is of similar nature. [See: ’AMAR SINGH VS. UNION OF INDIA’, (2011) 7 SCC 69]. Apart from this, the respondent No.2 being the instrumentality of the State cannot be permitted to practice discrimination and to pay compensation to the 11 land owners even though the land is situated in same village and has been acquired for the same purpose at different rates. We are afraid that respondent No.2 cannot be permitted to raise such a plea in this batch of appeals.

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In view of preceding analysis, we hold that the appellants are entitled to compensation at the rate of Rs.105/- per square feet. Needless to state that the appellants shall be entitled to solatium and other interest as are admissible under the provisions of the Act. To the aforesaid extent, the judgment passed by the reference court is set aside and is modified."

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It is pertinent to note that in all the reference

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cases, the Reference Court has fixed the compensation at

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the rate of Rs.2,00,000/per acre as against Rs.1,00,000/- per acre as fixed by the LAO in respect of tank fed land situated in Basavana Ganguru Village. This aspect is not disputed by the learned counsel for the respondents. It is also not in dispute that the land in question of the appellant is also a tank fed land situated in the same village. In such circumstances, in view of the aforesaid judgment of the Co-ordinate Bench of this Court, we are of the considered view that the appellant is also entitled for the same compensation as fixed by the Coordinate Bench of this Court. Accordingly, we answer point No.2 in the " negative " and proceed to pass the following:

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ORDER

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(i) The appeal is allowed. (ii) The appellant is entitled to the compensation at the rate of Rs.105/per square feet.

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