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1981 DIGILAW 355 (KAR)

ASST. COMMR. , LAO CHITRADURGA v. SANNA BASAIAH

1981-11-26

A.K.LAXMESHWAR, V.S.MALIMATH

body1981
MALIMATH, J. ( 1 ) THIS appeal is by the Land Acquiition Officer, Chitradurga Sub-Dn. Chitradurga, challenging the award made by the Civil Judge, Chitradurga in L. A C. No 138 of 1976. An extent of 3 acres comprised in S. No. 4 of Jogihatti Village in challakere taluke of Chitradurga district was acquired for granting house-sites to the weaker sections of the people, in pursuance of preliminary notification dated 21st February 1974 under S. 3 (1) of the Karnataka acquisition of lands for grant of house sites Act, 1972 (hereinafter referred fo as 'the Act' ). ( 2 ) WHEREAS the Land Acquisition officer awarded compensation at the late of Rs. 1,000 per acre, on reference ihe learned Civil Judge has enhanced the same to Rs. 4,000 per acre. The learned Civil Judge has in addition to the market value determined by him at the rate of Rs. 4,000 per acre, has directed payment of solatium on the said amount at 15% It is the enhancement made by the court below that is challenged in this appeal. ( 3 ) SRI C. S. Kothavale, learned high Court Government Pleader appearing for the appellant, made two submissions: (1) that the court below was not right in fixing the market value at the rate of Rs. 4,000 per acre; and (2) that the Court- below was not right in awarding solatium at 15% on the market value ( 4 ) IN the absence of evidence regarding sale of similar lands at or near the date of preliminary notification, the court below has rightly determined the amount payable adopting the capitalisation method. Haying regard to the fact that the preliminary notification in this case was issued in the year 1974, it is not disputed that the court-below was right in adopting the multiple of 15. In regard to the yield from the land acquired, there is oral evidence of the claimant, who has stated that he was growing crops like groundnut and jowar and that he wag getting about 8 to 10 quintals of ground-nut or 10 to 15 quintals of jowar per acre. He has given the market rate of ground-nut at Rs. 250 to Rs. 300 per quintal. According to him the cost of cultivation was less than 25% of the gross income. He has estimated he market value at about Rs. 10,000 per acre in the year 1974. He has given the market rate of ground-nut at Rs. 250 to Rs. 300 per quintal. According to him the cost of cultivation was less than 25% of the gross income. He has estimated he market value at about Rs. 10,000 per acre in the year 1974. The court below making due allowance for the exaggerated claim has estimated the yield from jowar crop at 5 quintals and from groundnut crop at 2 quintals per acre. The estimate made by the court below cannot be regarded as unreasonable or excessive so as to call for interference. On the basis of Ex. P-1, the notification of the agricultural produce market committee, the court-below has rightly taken the market rate of jowar at 106. 50 per quintal and that of ground-nuat rs. 250 per quintal. The Court. below deducting 50 persent towards cost of cultivation there being no satisfactory evidence produced by the claimant in this behalf and adopting the multiple of 15, came to the conclusion that the market value works out to Rs. 3,879-30. The court below however, fixed the market value of the land acquired at rs. 4,000 per acre observing that the income from fodder etc. , if taken into account, the market value would work out to more than Rs. 4,000 per acre. Sri Kothavale, learned High court Government pleader, is right in pointing out that this court has taken the view that the income from fodder cannot be taken into account for the purpose of determining the gross income. If the principal crop of jowar is taken into account for the purpose of determining the market value, it works out to Rs. 3,993-70 per acre. In these circumstances, even excluding the income from fodder, the market value can reasonably be estimated at Rs. 4,000 per acre. We, therefore, do not find any good grounds to reduce the market value fixed by the Court-below. ( 5 ) IT was then contended by Sri kothavale that the court below was nor entitled to add 15% on the market value determined by it. He submitted that there is no provision in the At for paying solatium. He further submitted that this court in Spl. Land acquisition Officer v. B. Narayanaswamappa (1) has held that solatium cannot be awarded in respect of land acquired under the provisions of the requisitioning and Acquisition of immovable property Act, 1952. He submitted that there is no provision in the At for paying solatium. He further submitted that this court in Spl. Land acquisition Officer v. B. Narayanaswamappa (1) has held that solatium cannot be awarded in respect of land acquired under the provisions of the requisitioning and Acquisition of immovable property Act, 1952. This court has pointed out in the said ease that the said Act is a self-contained Act and there being no reference to the provisions of the Land acquisition Act anywhere in the said aci, the provisions of sub-section (2) of S 23 of the Land Acquisition act, which provides for payment of solatium on the market value, cannot be invoked. But unlike the Requisition of Immoveable property Act, 1952, the present Act, with which we arc concerned, cannot be legarded as a self-contained Act contarning provisions for determining the amount payable in respect of the land acquired under the Act. Hence, the decision relied upon by the learned high Court Government Pleader does not assist us in deciding the question as to whether solatium is payable in respect of the land acquired under the Act. ( 6 ) S. 4 of the Act contains provision regarding amounts payable under the act. Sub-section (1) provides that where any land is acquired by the state Government under the Act, the state Government shall pay for such acquisition of land in accordance with the provisions of S. 4 of the Act. Sub-section (2) provides that if there is an agreement between the State government and the person whose land has been acquired, the amount so agreed between the parties shall be paid to the person whose land is acquired. Sub-sec. (3) provides that where no such agreement is reached the State Government shall refer the case to the Deputy Commissioner for determination of the amount to be paid for such acquisition as also the person or persons to whom such amount shall be paid. The last sub-sec. (4) of S. 4 provides that on receipt of a reference under sub-sec. (3), the Deputy Commissioner shall serve notice on the owner or occupier of such land and on all persons known or believed to be interested therein to appear before him and state their respective interests in the said land. The last sub-sec. (4) of S. 4 provides that on receipt of a reference under sub-sec. (3), the Deputy Commissioner shall serve notice on the owner or occupier of such land and on all persons known or believed to be interested therein to appear before him and state their respective interests in the said land. It is clear from the scheme of S. 4 of the Act that it contemplates payment of amount for acquisition of the land under the Act- either in accordance with the agreement between the parties or in accordance with the determination made by the Deputy commissioner. When it becomes necessary for determination of the amount payable, he has to issue notice as per the provisions of sub- sec. (4) of S. 4 of the Act. So far as the subsequent procedure to be followed and the principles to be adopted in the matter of determining the amount payable, S. 4 does not contain any provisions. The only other provision in this behalf is sec. 5, which reads as follows:"5. Application of Central Act 1 of 1894-The provisions of the Land acquisition Act, 1894) Central Act 1 of 1894) as amended by the Land acquisition (Mysore Extension and amendment) Act, 1961 shall, mutatis mutandis, apply in respect of enquiry and-award by the Deputy commissioner, the reference to court the apportionment of amount and the payment of amount in respect of lands acquired under this Act. "certain provisions of the Land acquisition Act have been made applicable by the operation of S. 5, as the Act with which we are concerned does not contain provisions regulating the procedure for deterermining the amount payable and the principles regarding determination of the amount payable. Art. 31 of the constitution as it then stood when the Act in question was enacted provided that no person shall be deprived of his property save by authority of law. It further provided that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for acquisition or requisitionng of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law. Having regard to the mandatory requirement of sub-Art. (2) of Art. 31, the Act in question which provided for acquisition of land for grant of house-sites for the weaker sections of the community, had to contain provisions containing principles for determination of the amount payable in respect of the land acquired. It is having regard to this constitutional obligation imposed by sub-Art. (2) of of Art. 31, that the legislature has enacted S. 5 of the Act to make applicable certain provisions of the Land Acquisition Act for the purpose of determination of the amount payable under the act. S. 23 of the Land Acquisition Act occurring in part III under the heading 'reference to court and procedure thereon' deals with matters in determining the compensation. Sub-sec. (1) of S. 23 contains the factors to be taken into consideration in determining the amount of compensation to be awarded under the Act. Sub-sec. (2) of S. 23 provides that in addition to the market value of the land, the Court shall in every case award a sum of 15% on such market value in consideration of the compulsory nature of the acquisition. It is no doubt true that S. 23 qf the Land Acquisition act deals with the determination of compensation in respect of land acquired under that Act. The Act with which we are concerned no doubt, does not contemplate payment of compensation in respect of the land acquired under the Act. As already stated, it only provides for payment of amount consistent with the provisions of Art. 31 (2) as it stood on the date on which the Act in question was enacted. S. 5 of the Act clearly provides that in respect of enquiry and award by the Deputy Commissioner, the reference to court, the apportionment of amount and the payment of amount in respect of lands acquired under the Act, the relevant provisions of the Land acquisition Act shall apply mutatis mutandis This is. therefore, a case of legislation intending to make applicable the relevant provisions of the land Acquisition Act in the matter of determination of amount payable under the Act in respect of lands acquired and for other purposes S. 23 of the Land Acquisition Act occurs in part III dealing with reference to court and procedure thereon. therefore, a case of legislation intending to make applicable the relevant provisions of the land Acquisition Act in the matter of determination of amount payable under the Act in respect of lands acquired and for other purposes S. 23 of the Land Acquisition Act occurs in part III dealing with reference to court and procedure thereon. The relevant provisions contained in Part III including S. 23 of the Lard Acquisition act are, therefore, made applicable for determining the amount payable under s. 4 of the Act. If we do not construe the provisions of sec. 5 of the Act in that manner, it will result in a situation of there being no principle enunciated in the Act regarding determination of amount payable in respect of land acquired, which is the mandatory requirement of art 31 (2) of the Constitution, which was in force at the relevant point of time. The Act will be void as offending art 31 (2) of the Constitution if it is held that there are no provisions regarding determining the amount pavable It is the cardinal principle of interpretation that if there are two reasonably possible interpretations that interpretation which will render the lpgis]ation valid should be preferred as against the interpretation which will render the legislation unconstitutional. We therefore, prefer to construe S. 5 of the Act as having the effect of making the provisions of s. 23 of the Land Acquisition Act applicable for determining the amount davable for acquisition of land under the Act Hence all the factors specified in sub-sec. (1) of S. 23 have to be taken into account for the purposes of determining the amount payable as also the provisions of sub-sec (2) of s. 23 which provides for payment of solatium on the market value determined bv the court We have therefore, no hesitation in taking the view that the court below was right in awarding solatium on the market value determined bv it As the claimant is entitled to solatium, the award made bv the court below cannot be found fault with. For the reasons stated above, this appeal fails and is dismissed with costs. --- *** --- .