The Assistant Executive Engineer Vs B S Umapathi

THE ASSISTANT EXECUTIVE ENGINEER VISVESVARAYA JALA NIGAM LIMITED UPPER BHADRA PROJECT, SUB DIVISION NO.4 TARIKERE TALUKCHIKKAMAGALURU DISTRICT KARNATAKA - 577 228.

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…APPELLANT

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(BY SRI NAGAIAH, ADV.)

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AND:

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Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA

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B.S. UMAPATHI S/O SIDAPPA

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AGED ABOUT 50 YEARS RESIDENT OF BETTATAVAREKERE VILLAGE AMRUTHAPURA HOBLI, TARIKERE TALUK CHIKKAMAGALUR DISTRICT KARNATAKA - 577 228.

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ASSISTANT COMMISSIONER/THE SPECIAL LAND ACQUISITION OFFICER, UPPER BHADRA PROJECT TARIKERE, KARNATAKA - 577 228.

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…RESPONDENTS

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(BY SRI M. NARAYANA BHAT, ADV., FOR R-1; SMT. SHWETHA KRISHNAPPA, AGA FOR R-2)

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HC-KAR

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THIS MFA IS FILED U/S 54 OF LAND ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.02.2021 PASSED IN LAC.NO. 11/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, PARTLY ALLOWING THE REFERENCE PETITION FILED UNDER SECTION 18(1) OF LAND ACQUISITION ACT.

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IN MFA NO. 6335/2021:

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BETWEEN:

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THE ASSISTANT EXECUTIVE ENGINEER VISVESVARAYA JALA NIGAM LIMITED UPPER BHADRA PROJECT, SUB DIVISION NO.4 TARIEKRE TALUK, CHIKKAMAGALURU DISTRICT KARNATAKA - 577 228.

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...APPELLANT

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(BY SRI NAGAIAH, ADV.)

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AND:

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E.B. RAJASHEKARAPPA S/O BASAPPA AGED ABOUT 62 YEARS RESIDENT OF BETTAVAREKERE VILLAGE AMRUTHAPURA HOBLI, TARIKERE TALUK CHIKKAMAGALUR DISTRICT KARNATAKA - 577 228.

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ASSISTANT COMMISSIONER/THE SPECIAL LAND ACQUISITION OFFICER, UPPER BHADRA PROJECT TARIKERE, KARNATAKA - 577 228.

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...RESPONDENTS

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(BY SRI GNANESHA N.I, ADV., FOR R-1; SMT. SHWETHA KRISHNAPPA, AGA FOR R-2)

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THIS MFA IS FILED U/S 54 (1) OF LAND ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.02.2021 PASSED IN LAC.NO. 23/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, PARTLY ALLOWING THE REFERENCE PETITION FILED UNDER SECTION 18(1) OF LAND ACQUISITION ACT.

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HC-KAR

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IN MFA NO. 6341/2021:

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BETWEEN:

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THE ASSISTANT EXECUTIVE ENGINEER VISVESVARAYA JALA NIGAM LIMITED UPPER BHADRA PROJECT, SUB DIVISION NO.4 TARIKERE TALUK, CHIKKAMAGALURU DISTRICT - 577 228.

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...APPELLANT

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(BY SRI NAGAIAH, ADV.)

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AND:

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B.C. VEERABHADRAPPA S/O CHANDRAPPA AGED ABOUT 82 YEARS RESIDENT OF BETTAVAREKERE VILLAGE AMRUTHAPURA HOBLI, TARIKERE TALUK CHIKKAMAGALUR DISTRICT - 577 228.

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ASSISTANT COMMISSIONER/THE SPECIAL LAND ACQUISITION OFFICER, UPPER BHADRA PROJECT TARIKERE KARNATAKA - 577 228.

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...RESPONDENTS

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(BY SRI GNANESHA N.I, ADV., FOR R-1; SMT. SHWETHA KRISHNAPPA, AGA FOR R-2)

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THIS MFA IS FILED U/S.54(1) OF LAND ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DT.20.02.2021 PASSED IN LAC NO.13/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, PRINCIPAL JMFC, TARIKERE, PARTLY ALLOWING THE REFERENCE PETITION U/S.18(1) OF LAND ACQUISITION ACT.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE RAJESH RAI K

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HC-KAR

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ORAL JUDGMENT

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

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These appeals are filed challenging the judgment and

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award passed by the Reference Court questioning the enhancement and assessment of compensation for yield of trees i.e., mango as well as questioning the calculation on solatium, additional market value and award of interest in LAC Nos.11/2013, 23/2013, and 13/2013.

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The case of the appellant - Assistant Executive Engineer, Visveswaraya Jala Nigam Limited, Upper Bhadra Project, in all these appeals, before this Court is that the preliminary notification dated 08.11.2010 was published in the Karnataka Gazette on 18.11.2010 notifying several lands including the lands involved in these appeals in respect of Bettathavarekere village belonging to respective respondent-landowners. The final declaration was published in the Gazette on 24.11.2011.

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The respondent - Special Land Acquisition

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Officer passed an award under Section 11 of the Land Acquisition Act, 1894 (‘the Act’, for brevity) awarding compensation in respect of lands as well as trees. Being aggrieved by the said award, respondent-landowners of the respective properties sought reference under Section 18 of the Act seeking enhancement of compensation both for land as well as yield of trees.

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Thereafter, the Reference Court, having recorded the evidence, enhanced the compensation and assessed the yield of mango trees and also calculated the solatium and additional market value and awarded interest in the respective cases. Being aggrieved by the same, the appellant is before this Court.

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We have heard the learned counsel for the

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appellant and the learned counsel for the respondents.

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Apart from urging several contentions, the

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appellant has predominantly urged as under:

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HC-KAR

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i) The Reference Court has erred in awarding

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additional market value at the rate of 12% per annum under Section 23 (1-A), solatium at the rate of 30% as provided under Section 23 (2) and also interest at the rate of 9% per annum under Section 28 of the Act from the date of taking possession of the land by the respondentSLAO, both on the compensation awarded by the SLAO, as also on the enhanced compensation awarded by it. In view of the same, the award reflects that solatium at the rate of 30% has been calculated both on the enhanced compensation as well as the award that is passed by the SLAO, when in fact, SLAO has awarded solatium under Section 23 (2) and additional market value under Section 23 (1-A) on the land value. The SLAO has omitted to award those statutory benefits on the valuation of the trees and other fixtures on the land, which according to the appellant is lawful. Hence, awarding of statutory benefits under Section 23 (2) and 23 (1-A) both on the compensation awarded by the SLAO and also on the

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enhanced compensation awarded by the Reference Court is erroneous.

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ii) Furthermore, interest under Section 28 of the Act is to be calculated either on the amount which is in excess to the amount that has been awarded by the SLAO, or on the amount that has been enhanced by the Reference Court. However, in the impugned judgment and award, interest under Section 28 has been calculated both on the enhanced amount awarded by the Reference Court including solatium at the rate of 30% as also on the amount awarded by the SLAO, which, according to the appellant is untenable.

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iii) The Reference Court has further erred in awarding interest at 9% per annum from the date of taking possession of the land and thereafter, at the rate of 15% per annum from the date of expiry of a period of one

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year, till the payment of entire compensation as provided under Section 28 of the Act both on the amount awarded by the SLAO as well as on the enhanced compensation,

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when there was no reference to any date significant for acquisition of land.

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iv) The date of preliminary notification is 18.11.2010 and date of award is 18.09.2012. The additional market value under Section 23 (1-A) has to be calculated from 18.11.2010 to 18.09.2012 and the interest on enhanced compensation has to be calculated from the date of taking possession of land. However, no date mentioned in the award correlates with the actual date which has to be taken into consideration, which only reflects that the award was passed in dark, without having the benefit of necessary documents. Furthermore, the interest rate that has been applied in the award is also not in consonance with law as the same has been awarded without any rationale behind it. Hence, on these grounds, the impugned judgment and award is liable to be set aside. Accordingly, he prays to allow the appeals.

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Per contra , learned counsel for the respondent -

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landowners contended that the judgment under these

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appeals does not suffer from any perversity since the Reference Court after meticulously examining the evidence and documents on record has awarded the compensation for the loss of land, yield of trees, interest and solatium.

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He further contended that the appellant has challenged the order passed by the Reference Court in similar LAC.Nos.2/2013, 10/2013, 14/2013, 9/2013, 15/2013, 18/2013, 12/2013, 6/2013, 17/2013, 5/2013, 19/2013 and 30/2014 before this Court in MFA.No.6332/2021 & connected matters which were dismissed by this Court in a detailed order dated 07.02.2025 and the said judgment of this Court was challenged before the Hon'ble Apex Court in SLP (C)Nos.11779-11790/2025, which were also dismissed vide order dated 02.05.2025. In such circumstances, these appeals are also liable to be dismissed. Accordingly, he prays to dismiss the appeals.

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HC-KAR

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Having heard the learned counsel for the

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respective parties, the point that would arise for our consideration is :

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Whether the Reference Court is justified in partly allowing the Reference made by the land losers in LAC.Nos.11, 23 and 13/2013?

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We have given our anxious consideration to the submissions made by the learned counsel for the respective parties.

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In all these appeals, the appellant has challenged the order passed by the Reference Court mainly on the ground that the compensation awarded by the Reference Court in respect of yield of mango trees, solatium, additional market value and interest is illegal. It could be gathered from records that the other land losers under the same notification also challenged the award passed by the SLAO before the Reference Court in LAC.Nos.2/2013, 10/2013, 14/2013, 9/2013, 15/2013,

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18/2013, 12/2013, 6/2013, 17/2013, 5/2013, 19/2013 and 30/2014 and the Reference Court has enhanced the compensation assessing the yield of mango trees as also the interest, solatium and additional market value. Being aggrieved by the same, the appellant challenged the same before the learned Single Judge of this Court in MFA.No.6332/2021 & connected matters. The learned Single Judge, after considering the evidence and other documents placed by either parties, has confirmed the award passed by the Reference Court by dismissing the appeal filed by the appellant vide common judgment dated 07.02.2025. The said judgment has been challenged by the appellant before the Hon'ble Apex Court, which also came to be dismissed vide order dated 02.05.2025. Such being the position, the award challenged under these appeals has attained finality in the connected reference cases.

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Since the issues involved in the reference challenged under these appeals as well as the aforesaid

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appeals before the learned Single Judge are common and the lands acquired were of the same village under the same notification for the same purpose i.e., Upper Bhadra Project, we are of the view that the judgment passed by the learned Single Judge which was upheld by the Apex

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Court squarely covers the issues on hand.

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The learned Single Judge in MFA.No.6332/2021 & connected matters has observed in paragraph Nos.35 to 48 as under:

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"35 . This Court would like to refer Point No.1 i.e., whether the Reference Court committed an error in enhancing the compensation in respect of mango trees. This Court already considered the factual aspects that there were existence of Mango trees in some of the lands and challenge is also made in respect of enhancement of compensation in respect of mange trees in M.F.A.Nos.6332/2021, 6333/2021, 6343/2021, 6369/2021, 6370/2021, 6371/2021 and 6374/2021 and common ground was urged in all these appeals that enhancement of compensation in respect of the mango trees is erroneous.

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It is not in dispute that land value is fixed based on sales statistics method and no challenge to the same. It is also not in dispute that in respect of mange trees are concerned, compensation was determined. It is also important to note that value of the tree is fixed based on the inspection report of the Horticulture department and also the judgment and decree and also the award passed by the SLO and mango trees are also taken note of and same is not in dispute. But the counsel for the appellant would vehemently contend that SLO considered as Naati mango but Reference Court determined the same as Badami tree and awarded an amount of Rs.29,125/- per mango tree. The above value is fixed based on the net yield income capitalization method and the mango trees are considered as Badami mango but no evidence is placed before the Court with regard to the said type of mango trees. It is contended that the Reference Court has not considered the award passed by the SLO on the trees and SLO has passed the award based on the inspection report of the Horticulture department. The land owner has not produced a single document before the Reference Court to show the yielding of the mango trees. The Reference Court has also observed that land owner has not produced a document to prove his case but on assumption and presumption has enhanced the compensation on the mango trees

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and no material with regard to show that trees are Badami mango trees.

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The counsel in support of his arguments also referring the judgment of the Apex Court contend that compensation is given on the basis of yield capitalization method, then the question of granting compensation separately for land or trees does not arise. The Court has granted compensation on trees based on the yield capitalization method, therefore, the compensation granted by the Reference Court does not survive. The counsel also relies upon the judgment of GURCHARAN SINGH’s case referred supra.

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On the other hand, the counsel for the respondent would vehemently contend that the Trial Court has taken note of the factual aspects of the case and no dispute with regard to the fact that there were mango trees on the acquired land and the counsel also brought to notice of this Court to paragraph 23 of the judgment of the Trial Court wherein taken note of the fact that in order to prove the price of the mangoes, has produced a document/letter issued by the Senior Assistant Director, Department of Horticulture, Tarikere dated 04.10.2016 under Ex.P1. In the said document, it is clearly mentioned that the mango trees would give fruits for a period of 7080 years and each tree would give about 50 to

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300 kgs of mangoes per year and the said document is a public document issued by a public servant and hence, it has got initial presumptive value under law. It is also important to note that said document was marked without any objections to rebut the contents of this document are incorrect. It is observed that the respondent has not placed any document nor examined any witness. Therefore, there is no bar and impediment to rely upon this document. Having taken note of the said fact into consideration, life of the mango tree as well as the yield were taken note of and even variation in the atmosphere and nature of the tree and quantity of mango and an average of 125 kgs. of mangoes per tree is considered per year and same is justifiable taking into note of the said documents and so also discussed with regard to the applicability of multiplier in respect of the fruit-bearing trees and taken note of the different judgments and particularly, in the case of SHAIK IMAMBI referred supra wherein consistent view taken by the Court holding that multiplier should be 10 and taking note of the said fact into consideration also apart from that price of mangoes is concerned, considered the letter issued by the Executive Manager, HOPCOMS, Lalbhag, Bengaluru and same is discussed in paragraph 25 of the judgment which was obtained by the petitioner as per the Right to Information Act and said

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document also marked without objection and now, the appellant cannot contend that no opportunity was given and same is also a public document and it has initial presumptive value and even rightly taken note of year of the preliminary notification i.e., 2010-11 notification and considered the same as relevant year and price for each kilogram of mango was taken as 46.61 and considered the same as 125 kg of mangoes per tree and calculated the same in paragraph 26 and arrived for consideration of Rs.29,125/- per tree. No doubt, there is no any description of the tree whether it is a Badami tree or a Naati. The very contention of the appellant that it was a Naati and the Trial Court also having taken note of the value of the tree, awarded the same. It is also important to note that the Trial Court not passed the order blindly and taken note of relevant multiplier and also the price of the particular year and the said letter also issued by the competent authority.

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The counsel for the respondent also brought to notice of this Court the order passed in MSA No.94/2016 wherein per tree considered as Rs.1,01,055/- in respect of mango trees situated within the limits of Nittur hobli and even the First Appellate Court considered the said value and same has been considered by this Court. The judgment relied upon by the counsel for the respondent is also very clear that a decision as is

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well known as an authority for which it is decided and not what can logically be deduced therefore, a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision as held in BHAVANAGAR UNIVERSITY’s case referred supra.

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When the document of Government Notification was relied upon by the Reference Court, the very contention of the appellant counsel that the Reference Court committed an error enhancing compensation in respect of mango trees is not acceptable and also valuation taken particularly taking into note of the Government Notification to the reference of preliminary notification year and actual price by the Horticulture department and multiplier also applied taking into note of yield report and not taken note of maximum claim of yield but taken average of 125 kg per tree and the same would be from 50 to 300 kg in a particular tree and when average also taken, the appellant cannot contend that same is exorbitant and even in the absence of fact that whether it is a Naati or Badami mango, there is no any material to comes to the conclusion that which type of mangoes were grown except stating that mango trees are in the land and joint report also does not disclose the nature of the tree that whether it is Badami mango tree or it is Naati mango tree and in order to prove that it was Naati tree also, no material

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and in order to comes to the conclusion that it was Badami also, no material and Reference Court taken note of average method and also the yield capitalisation method and taking note of the same, awarded the compensation and same cannot be contend that same is an exorbitant amount. Accordingly, this point is answered accordingly.

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Point No.2 is that whether the Reference Court committed an error in making the calculation in the decree and whether 12% on the additional market value cannot be granted on solatium and it should be only on market value as contended by the appellants and committed an error in making incorrect calculation. The main contention of the counsel for the appellant in his argument contends that the method adopted for calculation of solatium and additional market value is incorrect. The counsel also relied upon the judgment in the case of AMARJIT SINGH’s case referred supra wherein it is held that solatium cannot be granted on trees and structures on the land. The counsel and also contend that calculation arrived by the Reference Court in the decree is incorrect. 12% additional market value cannot be granted on solatium. It should be only market value as held in the case of RAMACHANDRA referred supra and also brought to notice of this Court an observation made in page No.42 that the respondent in the cross

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examination or arguments have not disputed that the claimant had grown the mango trees in the land of the petitioner as on the date of the acquisition. The counsel also would vehemently contend that the judgment of the Apex Court is very clear that the plaintiff has to prove his case and not depend up on the defendant weakness to prove his case and also brought to notice of this Court the discussion made that the respondent have not examined any witness nor produced any documents before the Court with regard to the nature or kind of mango trees and referring the judgment in the case of HINDUSTAN FOREST COMPANY referred supra contend that the onus is on the plaintiff to positively establish his case on the basis of the material available and it cannot rely on the weakness and also relied upon the judgment of RANGAMMAL’s case referred supra.

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The counsel for the appellant also relied upon the case of RAM KUMARI DEVI referred supra with regard to the burden on the claimant to prove the case and the counsel also relied upon the case of SIDAPPA OMANNA TUMARI referred supra referring paragraphs 7 and 22 and so also referring paragraph 3 of GURCHARAN SINGH’s case referred supra and also referring paragraph 56 of MALLA ATCHINAIDU’s case referred supra wherein it is held that the Court has no power to value the trees separately and

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award on both the value of the land and also the value of the trees as per the decision of GURCHARAN SINGH’s case. The counsel also referred paragraph 14 of the judgment in the case of BHUPENDRA RAMDHAN PAWAR referred supra wherein also GURCHARAN SINGH’s case was referred stating that it is settled law that the Collector or the court who determines the compensation for the land as well as fruit-bearing trees cannot determine them separately. The counsel also brought to notice of this Court the judgment in the case of AMARJIT SINGH referred supra wherein discussion was made with regard to Section 23 of the Land Acquisition Act and in paragraph 14, it is held that the learned counsel for the respondents submitted that as this Court has treated additional amount under Section 23(1-A) as part of the market value, additional amount payable under Section 23(1-A) of the 1894 Act is neither interest nor solatium. There is no logic in the contention as the decision in CIT vs GHANSHYAM (HUF) reported in (2009) 8 SCC 412 case nowhere holds that solatium is part of market value nor holds that additional amount under Section 23(1-A) is payable on the solatium amount. In paragraph 16 of the judgment it is held that the decision clearly holds that additional amount is awardable only against the market value and not solatium.

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The learned counsel for respondent No.1 as against the contention of the counsel for the appellant, relies upon several judgments and particularly, the judgment in the case of SUNDER referred supra and the said judgment is a Larger Bench judgment consisting of five Judges and in the said judgment discussed in detail regarding Section 34 of Land Acquisition Act and proviso to Section 28, 23(1), (1-A) and (2), 31(1) and 26 with regard to interest under Section 34 and 28 and also held that it is payable on solatium, amount awarded and held that means the aggregate amount of compensation calculated in accordance with provisions of all the sub-sections of Section 23 and hence, includes solatium. It is also held that intention of legislature is to ensure that the amount calculated under Section 23 reaches the person concerned at the time of passing of award or of taking over possession of the land, any delay in the making of such payment, entitles the person to receive interest on whole amount including the solatium. It is also important to note that Section 23(2) also discussed in this judgment regarding amount awarded “in consideration of the compulsory nature of the acquisition” and held, is qualitatively different from and so cannot be equated with damages on account of “any disinclination of the person to part with the land acquired”.

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In this Constitutional Bench judgment, not only discussed with regard to the provisions of Land Acquisition Act under 28, 23(1), (1-A) and (2), 31(1) and 26 and categorically held that interest is payable on solatium also and hence, the very contention of the appellant counsel cannot be accepted. Even Sections 23 and 24 also discussed in detail and also admittedly the solatium is payable only in respect of compulsory nature of the acquisition of property and same is also not damages. It is also important to note that the Apex Court in this judgment particularly taking into note of Section 23(1), (1-A) and (2) held that it does not say that the award should refer only to amounts awarded under sub-section (1) of Section 23 and it only stipulates that reasons or grounds must be specified where amounts have been awarded under any of the clauses of sub-Section (1). There is no need for such a stipulation in respect of amounts awarded under sub-sections (1-A) and (2) as such amounts are only the logical outcome or concomitant adjuncts of the calculation of the total amount indicated in sub-section (1).

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The very contention that solatium under sub-section (2) is not part of the awarded amount for the purposes of grant of interest has been rejected and hence, the very contention of the appellant counsel cannot be accepted. It is held that question of payment of interest would

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arise only when the compensation is not paid or deposited on or before the date of taking possession of the land. When the Court is of the opinion that the Collector should have awarded a larger sum as compensation the Court has to direct the Collector to pay interest on such excess amount. The rate of interest is on a par with the rate indicated in Section 34. It is further held that when compensation is regarded as a statutory obligation the academic definitions need not detract the Courts in fathoming the real import of it. The exercise can be done with the aid of the provisions in the statutes. So what the Court, in the context of land acquisition, has to decide is how the Act has designed the compensation visà-vis the liability to pay interest. In this judgment also elaborate discussion was made with regard to Sections 28, 23(1), (1-A) and (2), 31(1) and 26 of the Land Acquisition Act and also categorically held that no judicial exercise is required to quantify the sums mentioned in subsection (1-A) or sub-section (2) because the section itself specifies the percentage to be worked out for the purpose of adding to the total amount arrived at under sub-section (1). Otherwise Section 26 is not intended to show that the compensation awarded would be bereft of the additional amount and the solatium envisaged under sub-section (1A) or subsection (2). It is further held that this can be clearly discerned from the commencing

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HC-KAR

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words of Section 26 itself. It is held that even award under this Part shall be in writing signed by the Judge. What is referred to therein is Part III of the Act which comprises of a fasciculus of twelve provisions starting with Section 18 and ending with Section 28-A of the Act. It is further held that it can be no doubt that all the three heads specified in the three sub-sections in Section 23 are the sums to be awarded by the Court. Hence, the words every award under this Part cannot be treated as the award after delinking the amounts awarded under sub-section (1-A) or sub-section (2) of Section 23. What is intended under Section 23(2) is additional to the market value of the land and in consideration of the compulsory nature of the acquisition. But it cannot be equated with any damage caused on account of any disinclination of the person to part with the land acquired ."

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In view of the above discussion and the

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aforesaid order passed by the learned Single Judge which has attained finality, we answer the point raised above in the 'affirmative' and proceed to pass the following:

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ORDER

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i) The appeals are dismissed .

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25 - NC: 2025:KHC:35336-DB MFA No. 6331 of 2021 C/W MFA No. 6335 of 2021 MFA No. 6341 of 2021

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HC-KAR

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ii) The Registry is directed to release the amount in deposit, if any, before this Court in these appeals in favour of respondent-landowners on due identification.

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iii) No order as to costs.

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All pending IAs. in these appeals stand disposed of.

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SD/(ANU SIVARAMAN) JUDGE

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SD/(RAJESH RAI K) JUDGE

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PKS List No.: 1 Sl No.: 2

The Assistant Executive Engineer v. B S Umapathi

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The Assistant Executive Engineer v. B S Umapathi

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