Eshwarappa Vs the Commissioner

THIS MSA IS FILED UNDER SEC. 54(2) OF LAND ACQUISITION ACT 1894, AGAINST THE JUDGMENT AND DECREE DATED 14.11.2017 PASSED IN M.A. NO.10008/2017 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA (SITTING AT SAGAR) AND ETC.

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

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This appeal is filed challenging the judgment and decree dated 19.06.2017 passed in LAC No.3/2006 and the judgment and decree dated 14.11.2017 passed in M.A.No.10008/2017 and also prayed this Court to fix the market value of the land bearing Sy.No.7/1 measuring 2 acres 15 guntas of Neerakodu village, Sagar at Rs.47/- per square feet with all statutory benefits.

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Heard the learned counsel appearing for the respective parties.

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The factual matrix of the case of the

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appellant/claimant that he was the absolute and exclusive owner of the land measuring 2 acres 01 gunta of wet land and 9 guntas of dry land comprising in Sy.No.7/1 situated at Neerakodu village, Avinahalli hobli, Sagar Taluk. The said land was acquired by the State for the purpose of construction of bus terminus on the request made by the first respondent by issuance of notification in terms of Section 4(1) of the Land Acquisition Act on 18.03.1992 and final notification also issued in terms of Section 6(1) of the Act and market value of the acquired land was determined to the tune of Rs.28,800/- per acre by an award dated 18.01.1995. Upon service of award, notice was issued by the second respondent and the appellant filed an application in terms of Section 18 of the Act and the said application was rejected by the second respondent as time barred and hence, the appellant filed a petition before the reference Court in L.A. Misc. No.6/1996. The said petition, after contest, came to be

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allowed by an order dated 10.11.2005 directing the second respondent to refer the matter with all papers on or before 30.01.2006. Pursuant to the said order, reference was made and same was numbered as LAC No.3/2006. Upon service of notice issued by the reference Court, the appellant and the respondents have appeared.

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The appellant herein examined himself as PW1

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and got marked the documents at Ex.P1 to P15. In rebuttal, the respondents marked one document by consent as Ex.R1 and no evidence was adduced. It is the case of the appellant that document at Ex.R1 clearly show that market value of the acquired land as on the relevant point was Rs.500/- square feet. The counsel also would vehemently contend that illegally determined the market value of the acquired land at Rs.11/- per square feet. Being aggrieved by the said order, MFA was filed before the Division Bench of this Court in MFA No.10367/2011 and the said appeal was partly allowed and the matter was remanded by setting aside the earlier order to consider the

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matter afresh. The counsel for the appellant also brought to notice of this Court that after remand, he has adduced additional evidence by placing the document at Ex.P16 to P46. In rebuttal, the respondents have not adduced any further evidence. However, the reference court once again

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held that market value would be Rs.11/- per square feet and the same is challenged before the Appellate Court in M.A.No.10008/2017 and the Appellate Court also failed to consider the grounds which have been urged before it and dismissed the appeal. Hence, the present MSA is filed before this Court.

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The counsel for the appellant would vehemently

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contend that the reference court failed to notice that the documents namely Ex.P5 which is a sketch prepared by the office of second respondent and Ex.P6 and P7 which are valuation reports submitted by the Public Works Department Engineer while fixing the price of the house of the appellant and Ex.P9 is the tippani extract and other documents which clearly showed that the acquired land of

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the appellant is situated in the midst of Sagar City. The counsel also would vehemently contend that the land which was acquired is adjacent to the commercial complex of TVS Suzuki showroom and also other commercial places. The acquired land is surrounded by several hospitals and Nehru field and several other huge commercial and residential establishments. The Municipal High school and Municipal Junior College and Government Primary school and M/s SGMT company office and Garage and petrol outlets are situated surrounding the acquired land. The acquired land is facing NH-206 i.e., TumkurHonnavar National Highway. The land of the appellant had lost its agricultural characteristics and it has got potentiality to use it for non-agricultural purpose inspite of it, fixed the rate at Rs.11/- per square feet.

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The counsel also would vehemently contend

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that the reference court has not considered the evidence of PW2 who has been examined before the Trial court who is a SDA working in the office of the Sub-Registrar and he

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has produced the document at Ex.P5 i.e., guidance value

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for the year 1992-93 and in his evidence, Ex.P4 also produced which is the encumbrance certificate which clearly discloses that the property is situated in the prime area i.e., situated on either side of B H Road in Sagar and also the property was sold in the year 1992 for a sum of Rs.62,000/- relating to a property measuring 41.85 square meters consisting of Mangalore tiled house. The testimony of PW2 has not been considered by the Trial Court and respondents themselves produced Ex.R1 which showed that the value of the acquired land on the relevant period i.e., 1991-92 and 1992-93 is Rs.510/- per square meter and commercial property is Rs.1,220/- per square meter. The counsel also would vehemently contend that both the Courts have failed to consider the material available on record and inspite of remand made by this Court also not appreciated the further evidence led by the appellant before the Trial Court.

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The counsel also brought to notice of this Court

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Ex.P28 which is marked before the Trial Court in LAC No.1/1997 wherein considered Rs.35/- per square feet with all consequential benefits. The counsel also would vehemently contend that when the property is having commercial potentiality and adjacent to the State Highway and subsequently, on formation of National Highway and same is abutting to the National Highway, ought to have considered the higher compensation particularly, at the rate of Rs.510/- per square meter. Hence, it requires interference of this Court.

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Per contra, the learned counsel for the

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respondents would vehemently contend that both the reference court as well as the appellate court taken note of evidence available on record particularly, the admission given by PW1 which was extracted in paragraph 12 of the judgment of LAC case and the specific admissions given is also discussed in paragraph 13 and also taken note of date of notification as well as considered the material on record

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with regard to the proximity or potentiality to develop the acquired land in an urban area and so also in detail discussed the value of the sites for the year 1991-92 and 1992-93 and the same is mention in Ex.P15 that is Rs.510/and Rs.1,200/-. The counsel also would vehemently contend in paragraph 20 of the order, the LAC Court also taken note of the judgment passed in LAC Nos.1/1997 and 3/1997 and also distinguished the same that in earlier case, acquired land was site properties and in the case on hand, the acquired land is agricultural land. The counsel also would vehemently contend that there is an admission on the part of PW1 when he cross examined admitting that it was an agricultural land. It is also observed that to ascertain the actual market value of the land, guidance value fixed by the Government not produced and same is admitted in the cross examination that from 1988 to 1999, there was no any transaction near his acquired land. The counsel also brought to notice of this court that in paragraph 24, it is held that there was no

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any material of sale statistics or any experts opinion and specific observation is also made in paragraph 24 that the evidence of PW2 is not sufficient to determine the value of the acquired land as claimed by the claimant. Inspite of evidence of PW2 was considered, the counsel for the appellant contend that evidence of PW2 was not considered cannot be accepted.

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The counsel also brought to notice of this court that the LAC Court referred the judgment of the Apex Court which was relied upon by the LAC ct in the case of A NATESAM PILLAI vs SPL. TAHSILDAR, LAND ACQUISITION, TIRUCHY reported in 2010 SAR (CIVIL) 693 in paragraph 26 wherein also discussion was made with regard to potentiality to be used as building site, the land is abutting to the main road and surrounded by shops and residential buildings in all three sides. Having referred this judgment also comes to the conclusion that in the case on hand, PW1 categorically admits that in all the three sides, there is no any

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commercial properties. In paragraph 27, however, held that it is surrounded by agricultural lands in all three sides and the said surrounding lands are till today as it is as they were at the time of acquisition of land of the claimant and also considering the citation, determined the market value of the acquired land at Rs.11/- per square feet and same is also stated in paragraph 29 and hence, cannot find fault with the consideration of the material on record by the Trial Court. The counsel also in his arguments would vehemently contend that the LAC reference Court in detail discussed the material on record and distinguished the property which is in existence in Ex.P28 and also the property which was acquired.

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The counsel in support of his arguments, relied upon the judgment reported in (2005) 7 SCC 24 in the case of R P SINGH vs UNION OF INDIA AND OTHERS and referring this judgment, the counsel would vehemently contend that the function of the Court in determining the amount of compensation under the Act is

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to ascertain the market value of the land as on the date of

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the notification under Section 4 and the methods of valuation may be opinion of the experts, the price paid within a reasonable time in bona fide transaction of purchase of the lands acquired or the lands adjacent to the lands acquired possessing similar advantages and capitalisation method or its potential value being close to the developed or developing colonies, nearness to road etc.

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The counsel also replied upon the judgment reported in (2004) 10 SCC 745 in the case of KIRAN

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TANDON vs ALLAHABAD DEVELOPMENT AUTHORITY

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AND ANOTHER and the counsel referring this judgment would vehemently contend that burden is lies on the claimant and he has to prove the inadequacy of compensation awarded in the Courts below. The burden of proving that the amount of inadequacy lies upon the claimant. The Court has to treat the reference as an original proceeding before it and determining the market

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value afresh on the basis of the material produced before it. The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the court. The counsel referring this judgment would vehemently contend that the Trial Court considered the material on record in detail. The counsel also brought to notice of this Court the reasoning given by the appellate court in M.A.No.10008/2017 wherein also discussion was made even considering the grounds urged in the appeal in paragraph 9 and also the counsel would vehemently contend that the appellate court also having reassessed the material on record in paragraph 23 comes to the conclusion that that I see no illegality or perversity in the impugned award. On careful perusal of the impugned award, learned reference Court has meticulously dealt with each and every aspect of the case and even made an observation with regard to the remanding the matter by this Court and the observation made in the judgment

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passed by this Court by the Division Bench also is only with regard to the non-consideration of both oral and documentary evidence placed on record and hence, comes to the conclusion that the order passed by the Trial Court is not legal and directed to consider the matter afresh remanding the matter. The counsel also would vehemently contend that even after remand also when the evidence was adduced before the Trial Court nothing is placed on record and same is also taken note of by the appellate court while confirming the judgment of the Trial Court and hence, it does not requires any interference.

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Having heard the learned counsel appearing for

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the respective parties and grounds urged in the appeal, the point that would arise for consideration of this Court is:

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Whether both the Courts have committed an

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error in awarding the just and reasonable compensation as claimed?

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What order?

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Point No.1:

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Having heard the learned counsel appearing for

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the respective parties and also considering the material on record, it discloses that it is not in dispute that the land was acquired to the extent of 2 acres 15 guntas and same is also for the purpose of construction of terminus and also notification was issued in the year 1992 in terms of 4(1) and subsequently 6(1) notification was also issued and award was passed in the year 1995 awarding the amount of Rs.28,800/- per acre. Same was challenged before the reference Court and reference Court, earlier, also fixed the rate at Rs.11/- per square feet and the same was challenged before this Court and the Division Bench also set aside the order and remanded the matter for fresh consideration on the ground that both oral and documentary evidence placed on record has not been considered. It is also not in dispute that after the remand also PW1 was further cross examined and adduced

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additional evidence at Ex.P16 to P46. On the other hand, respondents have not led any evidence but certificate of guidance value fixed by the government was marked at Ex.R1.

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Having perused the material on record, it

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discloses that no document of sale statistics is placed on record and also no expert opinion is also placed on record and in this regard an observation is also made by the Trial Court as well as appellate Court. The counsel for the appellant mainly relies upon 4(1) notification dated 18.01.1995 and in order to prove the said factum, examined PW2 before the Trial Court also wherein it is stated that PW2 is a SDA working in the office of SubRegistrar. It is important to note that LAC Court also taken note of the evidence of PW1 even the same has been extracted in paragraph 12 wherein also categorical admission was given that his brother is also cultivating the land which is adjacent to the property of PW1 and also surrounding area also they are cultivating the areca nut

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and paddy crop and also categorically admits that earlier the said road was State Highway and subsequently it was converted as National Highway. He also categorically admits that on the north of B H road, no houses are constructed but in the south, there are houses. Even he admits that in the year 1992 when the property was acquired, similar circumstances is also existing that is other lands are also still in existence. He also admits that in the year 1992 even in the adjacent land also, drainage work was not done by respondent No.1 and also admits that even after acquisition of property also bus stand was not constructed and all these answers elicited from the mouth of PW1 is extracted and same is discussed.

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In the judgment of the Trial Court in paragraphs 12 to 14, the admission given was discussed in detail. Regarding proximity and potentiality of the property also discussed in paragraph 15 so also in paragraph 16. The document at Ex.P15 and Ex.R1 are the guidance value of the sites existing in the area where the

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acquired land exists for the period of 1991-92 and 199293. The reference Court also taken note of Ex.P15, the value of the sites for the period of 1991-92 and 1992-93 which is mentioned as Rs.510/- and Rs.1,200/- per square meter respectively. It is also important to note that the appellant also claiming the very same rate at Rs.510/- per square meter and reference Court also taken note of the fact that in Ex.R1 the value of the sites for the period 1991-92 mentioned as Rs.510/- per square meter and the value of the commercial sites for the said period is mentioned as Rs.1,200/- square meter and same is in respect of the same and also where the houses were constructed and same has been discussed in paragraph 16. Even the Trial Court having taken note of the order passed in LAC no.1/1997 which is marked as Ex.P28 which the app relies upon, discussed the order passed in LAC No.1/1997 and 3/1997 wherein in two earlier cases, the acquired lands are sites properties. But in the case on hand, the acquired land is an agricultural land. Reference

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Court also taken note of evidence of PW1 who also categorically admits that the land which was acquired is an agricultural land and also it is surrounded land also an agricultural land and same is cultivated by its owners including his brother. Considering he material on record, it discloses that even distinguished with regard to the land which was acquired and compensation was considered in terms of Ex.P28. The reference Court also considering the judgment of NATESH PILLAI referred supra held that even considering the compensation at the rate of Rs.11/on square feet basis and also it is settled law that in a case of agricultural land, the question of making of payment on the basis of square feet does not arise.

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It is also important to note that in the absence of any sale statistics and also any expert opinion, only based on the judgment of the Apex Court, fixed the rate at the rate of Rs.11/- when the land is admittedly the agricultural land and no doubt the same may be abutting to the Highway and in order to comes to the conclusion

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that the same was surrounded with commercial property, no such material is placed on record. The judgment which is relied upon by the respondents that is KIRAN TANDON ’s case referred supra is regarding burden to show that property is having potentiality lies by the plaintiff, the claimant has not placed any such material before the Court. Hence, the said judgment is aptly applicable to the case on hand with regard to burden of proof is concerned. The other judgment relied upon by the respondent is in the case of R P SINGH referred supra is also for the determination of the valuation of the property in three methods has been stated and no dispute with regard to the principles laid down in the said judgment and also the method adopted for the consideration of market value.

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Having reassessed the material on record and

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also reasoning given by the reference Court as well as the appellate Court that in the absence of any substantive material before the Court to comes to a conclusion that

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the land is having commercial potentiality i.e., the land is surrounded by the commercial property, the admission given by PW1 goes against the contention raised in the appeal. Apart from that PW2 evidence was also considered but marking of Ex.P5 will not comes to the aid of the appellant to enhance the compensation as contended. In the absence of such material, question of enhancing the compensation does not arise and both the Courts have taken note of the material on record and in detail discussed the same and the appellate Court though not elaborately discussed the material on record, relied upon the material placed before the Court and comes to the conclusion that reference Court has not committed any error. When such being the case, I do not find any material to reverse the finding of the reference Court as well as the appellate Court in the absence of any cogent material to comes to other conclusion that the materials are ignored by the reference Court as well as the appellate Court.

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