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2016 DIGILAW 388 (KAR)

Shanta v. State of Karnataka

2016-04-29

H.G.RAMESH, P.S.DINESH KUMAR

body2016
JUDGMENT : P.S. Dinesh Kumar, J. These intra Court appeals are directed against the common order passed by the learned single Judge dated 19.2.2015 in writ petition Nos. 112923 & 112924-938 of 2014 c/w 81936-952 of 2013 & 111551 of 2014 (LA-KIADB), rejecting the said writ petitions. 2. Heard Sri H. Subramanya Jois, learned Senior Counsel for Sri S.R. Hegde, learned Counsel for the appellants. 3. Sri. Subramanya Jois, learned Senior Counsel for the appellants submitted that the impugned common order passed by the learned single Judge is not sustainable in law because admittedly, the respondent - KIADB has not paid the value of the land falling under the category of 'Pot Kharab'. He submitted that KIADB had acquired lands belonging to 16 appellants herein as per Schedule - 'A' appended to the writ petitions. The compensation is paid by calculating the area of land acquired in all cases excluding the Pot Kharab area. He submitted that Pot Kharab is described under Rule 21(2) of the Karnataka Land Revenue Rules, 1966 ('Rules' for short) "A" - Pot Kharab belongs to the owner of the agricultural land and "B" - Pot Kharab belongs to the Government. According to him, it is not in dispute that the respondent - KIADB has made payment excluding the area of "A" Pot Kharab land. 4. In order to explain the case of the appellants explicitly, learned Senior Counsel adverted to additional documents sought to be produced by the respondent - KIADB along with an application dated 20.4.2016 under Order 41, Rule 27, CPC. The respondent-KIADB has filed copies of an indemnity bond, an agreement, an affidavit, a voucher for payment of compensation under Section 29(2) of KIADB Act, 1996 and a possession letter in respect of all appellants herein. To demonstrate in detail, the learned Senior Counsel took us through the documents in respect of the first appellant namely, Smt. Shanta Parappa Venkatapur and submitted that case of remaining appellants are identical. He pointed out from the agreement that the total area mentioned therein is 9 acres 23 guntas minus 0-10 P.K. (Pot Kharab). He argued that in the agreement, indemnity bond, voucher for payment and the possession letter the area of land is mentioned as 9 acres 13 guntas. He pointed out from the agreement that the total area mentioned therein is 9 acres 23 guntas minus 0-10 P.K. (Pot Kharab). He argued that in the agreement, indemnity bond, voucher for payment and the possession letter the area of land is mentioned as 9 acres 13 guntas. He further argued that, it is clear from these documents that the KIADB had acquired only 9 acre 13 guntas excluding the Pot Kharab of 10 guntas. Therefore, the appellants are entitled for compensation in respect of the Pot Kharab area of their respective lands. 5. In support of his case, the learned Senior Counsel placed reliance on the following unreported judgments: (i) Division Bench judgment of this Court in W.A. Nos. 50107 & 50128-154 of 2013 in the case of Sidramappa Shivappa Birakabbi and others Vs. Government of Karnataka and others; and (ii) Judgment of learned single Judge, in W.P. No. 46651 of 2013 in the case of T.V. Shivashankar v. The State of Karnataka and another and urged that these appeals presented by the poor peasants be allowed and respondent - KIADB be directed to acquire the 'A' Pot Kharab land in each case and pay compensation. 6. We have carefully considered the documents in the case of first appellant Smt. Shanta Parappa Venkatapur relied upon by the learned Senior Counsel for appellants to explain his case and the judgments cited by him. 7. It is not in dispute that the acquisition of lands in all these cases are by agreement between the parties. The agreement dated 15.6.2012 between the first appellant and the KIADB clearly shows that as per the agreement, the quantified amount is Rs. 2,42,45,000/- which includes compensation towards cost of acquired land, building and other appurtenant items. Further, in the affidavit dated 16.5.2012, the total area of land mentioned is 9 acre 23 guntas which includes the Pot Kharab area. The voucher for payment is for the sum of Rs. 2,42,45,000/-. The voucher is described as Form 'D' under Section 29(2) of KIADB Act, 1966. The voucher indicates that the payment is in full settlement of compensation as per the agreement to acquire land by the KIADB. 8. Rule 21(2) of the Karnataka Land Revenue Rules, 1966 describes Pot Kharab as under: "21. Classification (2) During the process of classification land included as unarable shall be treated as "Pot Kharab". The voucher indicates that the payment is in full settlement of compensation as per the agreement to acquire land by the KIADB. 8. Rule 21(2) of the Karnataka Land Revenue Rules, 1966 describes Pot Kharab as under: "21. Classification (2) During the process of classification land included as unarable shall be treated as "Pot Kharab". Pot Kharab lands may be classified as follows.- (a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing floors of the holder; (b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for village potteries." (Emphasis is by us) A perusal of the above rule shows that 'A' Pot Khrab is a land classified as unfit for agriculture at the time of survey which includes 'farm buildings' or 'threshing floors' of the holder. 9. Section 29(2) of the KIADB Act reads as follows: 29. Compensation: (2) Where the amount of compensation h- .s been determined by agreement between the State Government and the person to be compensated, it shall be paid in accordance with such agreement." 10. The above provision refers to acquisition of land by agreement. As noted here-in-above, the agreement between the parties is unambiguous and the compensation of Rs. 2,42,45,000/- is towards cost of land, building and other appurtenant items. The claimant has precisely agreed as under: (Vernacular matter omitted... Ed.) 11. Further, in the affidavit executed by the appellants, the area of land mentioned is inclusive of Pot kharab. Since the acquisition is by agreement between parties and compensation amount is received under Form 'D' under Section 29(2) of the KIADB Act, we are of the view that there was consensus ad idem between the parties for acquisition of land described in the affidavit which is apparently inclusive of Pot Kharab. A harmonious reading of the indemnity bond, agreement, affidavit and the payment voucher in a sequential order leads us to an irresistible inference that the appellants had consented for the transfer of their land inclusive of the 'Pot Kharab' at the agreed price. A harmonious reading of the indemnity bond, agreement, affidavit and the payment voucher in a sequential order leads us to an irresistible inference that the appellants had consented for the transfer of their land inclusive of the 'Pot Kharab' at the agreed price. In our view, any other interpretation, in the facts and circumstances of this case would be incongruous. 12. Admittedly, appellants have received compensation amount on 15.6.2012. After a lapse of about 14 months, appellants got issued a legal notice dated 16.8.2013 to the KIADB as per Annexure-D to the writ petition calling upon KIADB to pay compensation in respect of 'Pot Kharab' area of the acquired lands. Thus, the appellants after receiving compensation in terms of agreement, turned around after a delay of more than one year and attempted to claim additional compensation on the ground that compensation was not paid towards 'Pot Kharab' land. Thus, we hold that the appellants have not come to Court with clean hands and indulged in approbation and reprobation. 13. So far as the judgments relied upon by the learned Senior Counsel are concerned, the same are distinguishable on facts because, unlike in the cited cases, in the instant case, acquisition and payment is by mutual agreement. Receipt of compensation amount is complete acceptance of offer by the appellants and concluded the agreement. Therefore, appellants shall be estopped from turning around and repudiating a concluded agreement. 14. It is relevant to note that a Division Bench of this Court in the case of A.K. Eramma and others Vs. The State of Karnataka and others in W.A. Nos. 31085-86 of 2013, was examining a similar case. The claimants therein were seeking additional compensation after receiving compensation in respect of lands acquired by the KIADB as per agreement. The Division Bench in the said case has held as follows: "8. The Consent Award vide Annexure-D was passed on 05.10.2007. Immediately, payment was made by acting on the documents submitted by the claimants. Representations as at Annexures-E and El having been submitted on 22.12.2012, the endorsements vide Annexures-F and FI have been issued on 07.01.2013. Petitioners have submitted the representations vide Annexures-E and El, after more than four years of passing of the Consent Award and receiving the agreed sum. Petitioners, if had any grievance with regard to the award made vide Annexure-D, ought to have submitted protest application. Petitioners have submitted the representations vide Annexures-E and El, after more than four years of passing of the Consent Award and receiving the agreed sum. Petitioners, if had any grievance with regard to the award made vide Annexure-D, ought to have submitted protest application. Instead, the representations vide Annexures-E and E1 were submitted, after expiry of more than four years. In the circumstances, the learned single Judge is justified in holding that the writ petitions are liable to be dismissed on the ground of inordinate delay and unexplained laches. 8. Even otherwise, in the case of State of Karnataka and another Vs. Sangappa Dyavappa Biradar and others, (2005) 4 SCC 264 : AIR 2005 SC 2204 , it has been held as follows: "12. A right of a landholder to obtain an order of reference would arise only when he has not accepted the award. Once such award is accepted, no legal right in him survives for claiming a reference to the civil court. An agreement between the parties as regards the value of the lands acquired by the State is binding on the parties. So long as such agreement and consequently the consent awards are not set aside in an appropriate proceeding by a court of law having jurisdiction in relation thereto, the same remain binding. It is one thing to say that agreements are void or voidable in terms of the provisions of the Indian Contract Act having been obtained by fraud, collusion, etc., or are against public policy but it is another thing to say that without questioning the validity thereof, the respondents could have maintained their writ petitions. We have noticed hereinbefore that even in the writ petitions, the prayers made by the respondents were for quashing the order dated 23-8-1999 passed by the Special Land Acquisition Officer and for issuance of a direction upon him to refer the matter to the civil court. The High Court while exercising its jurisdiction under Article 226 of the Constitution, thus, could not have substituted the award passed by the Land Acquisition Officer by reason of the impugned judgment. Furthermore, the question as regards the validity of the agreements had not been raised before the High Court. The High Court while exercising its jurisdiction under Article 226 of the Constitution, thus, could not have substituted the award passed by the Land Acquisition Officer by reason of the impugned judgment. Furthermore, the question as regards the validity of the agreements had not been raised before the High Court. As indicated hereinbefore, the Division Bench of the High Court had also rejected the contention raised on behalf of the respondents herein to the effect that the agreements did not conform to the requirements of Article 299 of the Constitution or had not been drawn up in the prescribed pro forma. 13. An award under the Act is passed either on consent of the parties or on adjudication of rival claims. For the purpose of passing a consent award, it was not necessary to comply with the provisions of Article 299 of the Constitution. An agreement between the parties need not furthermore be strictly in terms of a prescribed format. 14. The Respondents having accepted the award without any demur were estopped and precluded from maintaining an application for reference in terms of Section 18 of the Act. It is also trite that by reason of such agreement, the right to receive the amount by way of solatium or interest etc. can be waived." 15. Further, in the case of Shabana Begum & others Vs. The Special Land Acquisition Officer & others in W.As. Nos. 10296 & 10299-10327 of 2011 another Division Bench of this Court was examining another similar case. The appellants therein were unsuccessful writ petitioners before the learned single Judge. Their lands were acquired by the KIADB by consent. The land owners/claimants had executed identical documents as in this case and after receiving the money claimants had challenged the acquisition on the ground that they were coerced into signing the agreement. The Division Bench in the said judgment has observed as under: "3. In the writ petitions it was alleged that they were coerced into signing the agreements and that the respondent - KIADB adopted a wrong method of arriving at valuation of the land at Rs. 15 lakhs per acre, while violating the principles of natural justice, since the appellants were not aware of the contents of the documents on which they affixed their signatures. Hence sought for a direction to the respondent to pay the remaining amount of compensation of Rs. 6.50 lakhs per acre. 15 lakhs per acre, while violating the principles of natural justice, since the appellants were not aware of the contents of the documents on which they affixed their signatures. Hence sought for a direction to the respondent to pay the remaining amount of compensation of Rs. 6.50 lakhs per acre. 4. Petitions were opposed by filing statement of objections, inter alia contending that the appellants and the Special Land Acquisition Officer entered into agreements as required by sub-section (2) of Section 29 of the KIAD Act, where afterwards compensation was paid, receipts signed indemnity bond executed and possession delivered, thus, completing the entire process of acquisition under the KIAD Act. In addition the allegation of coercion was denied while contending that there was consensus-ad-idem between the parties over the terms of the agreement." On consideration of the material on record, the Division Bench has held as under: "7. The Allegation of coercion, at the threshold is a ruse to attract empathy of the Court, since, admittedly the appellants did not question the validity of the agreement, the indemnity bond, affidavit, receipt for receiving the compensation and the delivery of possession of the lands, in an appropriate legal proceeding. Hence it is too far-fetched to contend that the respondent had coerced the appellants to execute the agreement, or that there was neither fairness in the payment of Rs. 15 lakhs per acre as compensation, nor violation of principles of natural justice." (Emphasis is by us) 16. Thus, this Court has taken a consistent view that the land owners/claimants after receiving money in acquisition proceedings preceded by agreement between parties, cannot turn around and challenge the same. 17. We respectfully follow the consistent view of this Court. In view of above discussion and in the light of settled position of law on the point, we are of considered view that the appellants are not entitled to the relief sought for in these writ appeals. Hence, no exception can be taken to the order passed by the learned single Judge. 18. Consequently, these writ appeals fail and deserve to be dismissed. 19. In view of dismissal of the writ appeals, I.A.3/2015 filed by the appellants for an interim injunction and I.A. 1/2016 filed by respondent Nos.2 and 3 for production of additional documents do not survive for consideration and stand disposed of. Appeals dismissed. No costs. Appeal dismissed.