Partly allowed

A.Kannaiah (Died) per LRs a- 3 to 6 v. The Land Acquisition Officer / Revenue Divisional Officer

Telangana HC28 Apr 2014LAAS/155/2010

Case brief

AI extract

What is this about?

In these appeal against the confirmation of land acquisition award, the High Court enhanced the market value. The Court held that although the capitalization method was not strictly applicable due to limited sale transactions, considering the final market rate in a related concurrent reference case for the same notification, the appellants were entitled to a higher compensation.

What did the court decide?

Market value enhanced to Rs. 66,000/acre for wet lands, Rs. 52,500/acre for dry land, and Rs. 60,000/acre for dry land with well irrigation; statutory benefits and interest on enhanced amount granted.

A.Kannaiah (Died) per LRs a- 3 to 6 Vs The Land… — Land Acquisition | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SMT. JUSTICE ANIS

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L.A.A.S. Nos. 155, 659, 216, 224, 658, 314, 220, 217 & 218 OF 2010

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COMMON JUDGMENT: (Per the Hon’ble Smt. Justice Anis)

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1. These appeals are directed against the order, dated 07.12.2009, passed by the learned District Judge, Chittoor, in L.A.O.P.No.216 of 2003. The impugned order and decree were passed on a reference by the Land Acquisition Officer under Section 18 of the Land Acquisition Act, 1894 (for short ‘the Act’).

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2. The brief facts which are necessary for disposal of the appeals, may be stated as follows:

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The Executive Engineer, Irrigation Department, Chittoor made a request to acquire Ac.78.15 of land in Muthirevulu revenue village of Puthalpet Mandal for formation and construction of a barrage across Ponnai river near Kalavkunta village. The Land Acquisition Officer-cum-Revenue Divisional Officer, Chittoor invoked urgency clause under Section 17 of the Act dispensing with Section 5-A enquiry and issued necessary notification. The proposals for acquisition were approved by the District Collector, Chittoor in his proceedings, dated 20.03.1997 and 29.04.1997 and were published in A.P. Chittoor Gazette and also in two local papers viz., Prajasakthi and Eenadu. After publishing the notices under Sections 9(1) and 10 of the Act and after service of notices under Sections 9(3) and 10 of the Act, the land to an extent of

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Ac.78.15 cents belonging to 202 persons, was acquired on 03.12.1998. Thereafter, the Land Acquisition Officer conducted award enquiry in respect of ownership and other aspects. The date of publication of notification is 31.03.1997. The Land Acquisition Officer took sale transactions for three years preceding the date of notification, that means he considered the sale transactions in between 31.03.1994 and 31.03.1997 and he considered altogether 65 sale transactions relating to the concerned villages. The Land Acquisition Officer also classified the acquired lands into three categories; firstly as wet lands supplemented with well irrigation; secondly as ordinary dry land and thirdly as dry land with well irrigation. On the basis of previous sale transactions, the Land Acquisition Officer fixed Rs.44,000/- per acre for the first category i.e. wet land with well irrigation; Rs.35,000/- per acre for the second category i.e. ordinary dry land and Rs.40,000/- per acre for third category i.e. dry land with well irrigation and also awarded other statutory benefits like solatium and additional market value.

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3. Aggrieved by the award passed by the Land Acquisition Officer, the claimants requested the Land Acquisition Officer to refer the matter to the Civil Court and the reference was numbered as L.A.O.P. No.216 of 2003 before the District Judge, Chittoor. On 07.12.2009, the District Judge, Chittoor, after due enquiry, dismissed the O.P. filed by the claimants and confirmed the award passed by the Land Acquisition Officer. Aggrieved by the order passed by the District Judge, Chittoor, some of the claimants preferred the present appeals for enhancement of compensation.

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4. The learned counsel for the appellants argued that the lands acquired are riverbed lands and they are wet lands; that even as per the evidence of the Land Acquisition Officer, all the appellants raised sugarcane crops and paddy crops and wet crops are being raised and same were not taken into consideration by the Land Acquisition Officer; that some of the land owners of the village whose lands are acquired under the Notification were granted higher compensation by the Principal Senior Civil Judge, Chittoor when the matter was got referred under Section 18 of the Act and the District Judge, Chittoor failed to consider the enhancement made in L.A.O.P. No.77 of 2000; further, the DFO, East Chittoor was examined who deposed that the wood weightage of seedling plant of mango tree of about 1 Kg., as per Ex.B.112; that the acquired lands are located at road side of National Highway No.18 which leads to Capital City of Hyderabad and pilgrim town of Tirupati and there are many bus services to reach the town of Tirupati and there are number of primary and high schools in English Medium at Muthirevulu and there is Degree college, Engineering college and Nurse training school in the village which are at walkable distance and the Land Acquisition Officer fixed meager compensation and prayed the Court to enhance the compensation as Rs.1,64,817/- per acre on yield basis.

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5. On the other hand, the learned Government Pleader for Appeals opposed for enhancement of compensation on the ground that the Land Acquisition Officer rightly fixed the compensation and passed the award by taking into consideration of all the Sale deeds available and further the District Judge, Chittoor rightly

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passed the order confirming the award passed by the Land Acquisition Officer and dismissed the O.Ps. filed by the claimants, and that the oral and documentary evidence produced by the claimants is not helpful for enhancement of compensation; that the Land Acquisition Officer after considering all the aspects and fixed the compensation in three categories, and therefore, the appellants are not entitled for enhancement of compensation and prayed the Court to dismiss the appeals.

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6. Now, the point for consideration is – whether the appellants are entitled for enhancement of compensation?

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7. Point:

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There is no dispute that the lands were acquired by the Land Acquisition Officer for construction of barrage across Ponnai river near kalavkunta village. The Land Acquisition Officer-cumR.D.O., Chittoor invoked urgency clause under Section 17 of the Act. The Land Acquisition Officer conducted the award enquiry and passed the award on 11.05.1999 and he classified the acquired lands into three categories; viz., wet lands supplemented with well irrigation, ordinary dry land and dry land with well irrigation. On the basis of previous sale transactions, the Land Acquisition Officer fixed Rs.44,000/- per acre for the first category, Rs.35,000/- for the second category and Rs.40,000/- for third category.

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8. The main contention of the appellants is that in L.A.O.P. No.77 of 2000, the Principal Senior Civil Judge, Chittoor enhanced the compensation for the lands acquired for the same purpose to

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Rs.66,000/- per acre for the wet lands supplemented with well irrigation, Rs.52,500/- for the dry lands and Rs.60,000/- for the dry land with well irrigation.

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It is further argued that from the evidence of RW37, Ex-Sarpanch of Muthirevulu village, it is clear that the acquired lands are capable of yielding two wet crops in an year; that the farmers, whose lands were acquired, are all small farmers and they used to raise sugarcane crop and that the main crops raised in the village are sugarcane, paddy, groundnut and chillies.

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It is further argued that from the evidence of RW1, it is clear that the Land Acquisition Officer passed compromise award in respect of the lands of other villagers at the rate of Rs.1.10 lakhs per acre at flat rate. It is further argued that from the evidence of CW2 - advocate-commissioner, it is clear that she took the assistance of Mandal Surveyor and inspected the acquired lands and found existence of electricity motors, well, coconut tress, etc. and from the evidence of CW4, it is clear that there is a water source to the acquired lands.

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It is further argued that all the witnesses who examined on behalf of the appellants categorically stated that the lands are fertile wet lands and capable of yielding two crops in one year and the Land Acquisition Officer without considering all the above facts, granted inadequate compensation and prayed the Court to enhance the compensation as prayed for.

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The learned counsel for the appellants relied on a decision reported in State of Gujarat and others Vs. Rama Rana and

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others^[1] , wherein the Hon’ble Supreme Court held as follows:

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“It is a fact that the Government have failed to adduce any evidence in that behalf. However, we cannot reject the oral evidence of the witnesses on that ground alone. The Court has statutory duty to the society to subject the oral evidence to great scrutiny, applying the test of normal prudent man i.e., whether he would be willing to purchase the land at the rates proposed by the Court. On the touch stone of this, the Court should evaluate the evidence objectively and dispassionately and reach a finding on compensation. The reference Court has accepted the evidence of the Sarpanch to be the reliable person.”

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The learned counsel also relied on a decision reported in T h e Special Land Acquisition Officer, Upper Krishna Project, Bilagi Vs. Hanamanth and others^[2] , wherein the Karnataka High Court held as follows:

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“The rate of compensation awarded by the Reference court could sustain on the basis of the other substantive legal evidence adduced by the claimants. The substantive legal evidence produced by the owners are Ex.P.13, yield certificate and Ex.P.17, price list. The validity of the above two documents is not contested by the acquisition authorities. If Exs.P.13 and P.17 are taken into consideration, it is trite, the owners of the acquired land would be entitled to compensation at a rate more than the rate of Rs.1,80,000/- per acre. However, the claimants have restricted their claim to Rs.1,80,000/-.

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The learned counsel also relied on a decision reported in T h e Special Land Acquisition Officer, Upper Krishna Project,

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Lingasugur Vs. Pavadeppa and another^[3] , wherein the Karnataka High Court held at Para 3 as follows:

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“The Reference Court has awarded compensation at the rate of Rs.74,000/- per acre by adopting capitalization method. The Reference Court placing reliance on yield stated by the Agricultural University, Dharwad, in a book published by it, in the absence of any yield certificate issued by the Agricultural Department and taking into account the average yield for determining the compensation, has held that the net income per acre after deducting 50% of gross income towards cost of cultivation and adopting multiplier of 10 would be Rs.7,400/-. The determination of compensation, as could be seen from the judgment, is based on substantive legal evidence. We do not find any flaw, legal or factual, in the judgment. Learned Government Advocate was not in a position to point out any error in the judgment on the basis of which we could possibly interfere with the award passed by the Reference Court.”

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The learned counsel also relied on a decision reported in Sabhia Mohammed Yusuf Abdul Hamid Mulla (dead) by LRs. And others Vs. Special Land Acquisition Officer and others^[4] , wherein the Hon’ble Supreme Court held at Para 16 as follows:

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“It is settled law that while fixing the market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors:

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i) Existing geographical situation of the land.

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ii) Existing use of the land.

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iii) Already available advantages, like proximity to National or State Highway or road and/or developed area.

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iv) Market value of other land situated in the same locality/village/area or adjacent or very near the acquired land.”

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The learned counsel also relied on a decision reported in Mehrawal Khewaji Trust (Registered), Faridkot and others Vs. State of Punjab and others^[5] , wherein the Hon’ble Supreme Court held at Para 17 as follows:

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“It is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied that it is a bona fide transaction, has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation.”

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9. It is borne out from the record that the Land Acquisition Officer considered eight sale transactions in the vicinity of preceding three years and so adoption of capitalization method for fixing the market value does not arise. Since there is no evidence put forth to abandon the comparable sales relied on by the Land

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Acquisition Officer, the same cannot be ignored. The Reference Court in support of its findings, recorded that the Land Acquisition Officer liberally fixed the market value by giving more than the existing market value. The Land Acquisition Officer has considered the superstructures, trees and other amenities existed in the acquired lands and granted compensation separately for trees, superstructures, etc. Hence, the decisions (2 and 3 supra) relied on by the learned counsel for the appellants are not applicable to the facts of the present case.

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10. However, though Section 24 of the Act states that the probable increase in the land value has to be ignored, considering the nature of the crops, it appears that the finding of the Reference Court that the Land Acquisition Officer liberally fixed the market value, is somewhat unusual. Further, for the same Notification, the Principal Senior Civil Judge, Chittoor in L.A.O.P.No. 77 of 2000, fixed the market value for wet lands at Rs.66,000/- per acre, for dry land at Rs.52,500/- per acre and for dry land with well irrigation at Rs.60,000/-, against which no appeal was preferred by the Government and it has become final. Considering the nature of the crops raised by the appellants in the acquired lands, if the compensation is fixed on par with L.A.O.P. No.77 of 2000, it would meet the ends of justice.

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11. In the result, the appeals are partly allowed by fixing the market value for the acquired lands of the appellants/claimants at Rs.66,000/- per acre for wet lands, Rs.52,500/- per acre for dry land and Rs.60,000/- per acre for dry land with well irrigation. It is

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made clear that the appellants/claimants are entitled to statutory benefits like 30% solatium and 12% additional market value on the enhanced amount and they are further entitled to interest on the enhanced market value at 9% from the date of taking possession upto one year and thereafter 15% till the enhanced amount is paid or deposited in the Court. It is also made clear that the appellants/claimants are entitled to all other statutory benefits in terms of the judgment of the Hon’ble Apex Court in a case of Sundar Vs. Union of Indi a^[6] . In the circumstances, no order as to costs. 12. Miscellaneous Petitions, if any, pending in the appeals, shall stand closed.

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----------------------(K.C. BHANU, J)

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28.04.2014 Anr

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THE HON’BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE SMT. JUSTICE ANIS

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L.A.A.S. Nos. 155, 659, 216, 224, 658, 314, 220, 217 & 218 OF 2010