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2020 DIGILAW 1058 (KAR)

Union Of India v. Nirmala

2020-06-12

G.NARENDAR, P.N.DESAI

body2020
JUDGMENT P.N.Desai, J. - Heard Sri Manvendra Reddy, learned counsel for the appellant, Sri Sachin M. Mahajan, the learned counsel for respondent No.1 and Smt. Anuradha M. Desai, the learned Government Advocate for respondents No.2 and 3. 2. The appellant beneficiary Union of India, represented by Assistant Executive Engineer Construction, S.C. Railway, Gulbarga has filed this appeal praying to allow the appeal by setting aside the judgment and award dated 26.04.2018 passed by learned I Additional Senior Civil Judge, Gulbarga in LAC.No.230/2012. 3. Brief contention of the appellant's is that, the State of Karnataka through respondent No.2 herein acquired the land of respondent No.1 bearing Sy.No.67/2 measuring 02 acres 24 guntas out of 11 acres 20 guntas situated at Shaikhroza, Kalaburagi for formation of new broad-guage railway line under 4 (1) notification dated 19.05.2005. The Land Acquisition Officer has awarded the market value of the acquired land at the rate of Rs.1,25,500/- per acre and whereas the Reference Court has enhanced the same to Rs.150/- per Sq. feet treating the acquired land as N.A. potential. Aggrieved by the same, the appellant filed this appeal on the grounds that the judgment and award of the Reference Court suffers from illegality since it is quite contrary to law, facts and evidence on record. The Reference Court has not considered the evidence led by the appellant coupled with the admission given by PW.1-respondent No.1 in her cross-examination. The Reference Court only relied upon the judgment in LAC.No.100/2008 at Exs.P.21 and 22 and judgment in LAC.No.29/2011 at Ex.P.23 and judgment in LAC.No.546/2010 treating that the said land has got N.A. potentiality. The Reference Court determined the market value at Rs.150/- per Sq. feet holding that the judgment in LAC.No.100/2008 has reached its finality and awarded at Rs.150/- per Sq. feet. As the land under appeal bearing Sy.No.67/2 is very near to the land Sy.No.69, which was acquired in LAC.No.100/2008. Even otherwise the Division Bench of this Court in MFA.No.32806/2013 (LAC) with connected matters in respect of lands Sy.No.57/2, 58/1, 59/2, 57/2 and 69 situated at Shaikh Roza area, which were adjacent to acquired land under appeal which is also admitted by respondent No.1 herein, has awarded Rs.84/- per Sq. feet and Rs.150/- per Sq. feet for the lands of Shaik Roza depending on its proximity and situation of lands. 4. feet and Rs.150/- per Sq. feet for the lands of Shaik Roza depending on its proximity and situation of lands. 4. It is further contended that the Reference Court has failed to appreciate the situation, potentiality and fertility of the land in LAC.No.100/2008 wherein this Court was pleased to reduce the market value from Rs.187/- to 150/- per Sq. feet as the acquired land in the LAC.No.100/2008 has unique advantage as it is facing to road. Since, the land involved in the present appeal is quite interior from land Sy.No.69 is not facing to the road, as such the Reference Court has failed to consider it. The Reference Court committed error in overlooking the documentary evidence placed by the appellant at Exs.R.3 to 12, which are sale deeds in respect of adjacent agriculture lands in the same vicinity, which resulted in awarding excess amount. With these contentions appellant prayed to allow the appeal. 5. Learned Government Advocate for the respondents No.2 and 3 relied upon the judgment in MFA.No.32806/2013 (LAC) and connected matters dated 25.01.2017 for which the reference is also made by the appellant. The learned Government Advocate for respondent Nos.2 and 3 submitted that the Division Bench of this Court has awarded Rs.150/- per Sq. feet with statutory benefits for the acquired lands at Shaikh Roza and this land is also situated in the same area. Hence, the award of reference Court does not suffers from any illegality and prays to dismiss the appeal. 6. The learned counsel for the appellant tried to contend that the acquired land in LAC.No.100/2008 is facing road and land involved in the present appeal is quite interior from land Sy.No.69 is not facing to the road, that is only ground urged by the learned counsel for the appellant. 7. We have perused the evidence in this case and also the judgment in MFA.No.32806/2013 (LAC) and connected matters dated 25.01.2017 in the case of the State of Karnataka, through the Asst. Commissioner and SLAO, Gulbarga vs Mohammed Tajoddin and others, of the Coordinate Bench of this Court. It is evident that the lands are acquired from the area in Shaikh Roza, Taj Sulthanpur and Jafrabad, under 4 (1) notification dated 19.05.2005 for laying the new broad-guage railway line from Bidar to Gulbarga. So, lands acquired in that case and in this case are under same 4(1) notification and for similar purpose. It is evident that the lands are acquired from the area in Shaikh Roza, Taj Sulthanpur and Jafrabad, under 4 (1) notification dated 19.05.2005 for laying the new broad-guage railway line from Bidar to Gulbarga. So, lands acquired in that case and in this case are under same 4(1) notification and for similar purpose. The grievance of the appellant is that the Reference Court has wrongly considered the land in question as having non-agricultural potential though the lands in question are agricultural lands. This arguments does not hold good as the potentiality of lands situated in Shaik Roza and other places has been in detailed considered by the Coordinate Bench by relying the various judgments of Hon'ble Apex Court and this Court and it is held at paragraphs No.15, 16, 17 and 18 which reads as under. "Para No.15 :- In that regard, reference is also made to the contention relating to the developments that have taken place in the surrounding area with the establishment of educational institutions, commercial complexes, UAS Raichur, Central University- Kadaganchi, Mahatma Gandhi Truck Terminal, APMC Yard, Ayurvedic Hospital, etc. It is in that view, the Reference Court has arrived at the conclusion that the area in question has high non-agricultural potential. A similar consideration has been made in the connected reference cases which are also the subject matter in these appeals. It is also necessary to take note that the appellants in order to contend that the documents as taken note by the Reference Court relating to the urban status of the property would not be justified, has sought to rely on the additional document produced along with the application, a notification dated 25.09.1997 issued by the Corporation of City of Gulbarga. From the same, it is sought to be contended that the lands in survey numbers which are the subject matter in these proceedings in Shaik Roza, Jafrabad and Taj Sulthanpur have not been included in the said notification as urban property and as such, it should be considered as agricultural property. Para No.16:- Having perused the same, it is seen that it is a notification issued under Section 3 of the Karnataka Municipal Corporations Act, 1976 ("the KMC Act for short) to bring such of those properties indicated in the schedule thereto, within the larger urban area of Gulbarga to be called the 'Gulbarga City Corporation'. Para No.16:- Having perused the same, it is seen that it is a notification issued under Section 3 of the Karnataka Municipal Corporations Act, 1976 ("the KMC Act for short) to bring such of those properties indicated in the schedule thereto, within the larger urban area of Gulbarga to be called the 'Gulbarga City Corporation'. In our opinion, the said notification cannot change the status of the land as determined to be of nonagricultural potential for the reason that such notification dated 25.09.1997 is only to bring the property within the Corporation limit based on the population of the area, density of the population in such area and the other requirements as contemplated in Section 3 of the KMC Act. Therefore, that aspect cannot take away the fact that the lands are within the planning area of the city as per Ex.P.9 and has non-agricultural potential. That apart, as rightly pointed out by the learned counsel for the respondents, a Division Bench of this Court in MFA.No.3125/2004 by its judgment dated 28.11.2007 has taken into consideration the nature of the property as having non-agricultural potential though they were agricultural lands and in the said case, the land bearing Sy.No.56 of Shaikh Roza village was also the subject matter. In addition, another Co-ordinate Bench of this Court in MFA.No.201138/2014 dated 11.12.2014 has considered the nature of the development in the said area and has accepted that another extent of land in Shaik Roza bearing Sy.No.31/1 is a land having non-agricultural potential. In the said cases also, the status of the land was still agricultural, but having regard to its location and the area losing its agricultural character as also the development that had taken place, has arrived at the conclusion that the land is required to be considered as having nonagricultural potential and the market value is to be determined in that regard. Para No.17:- In that view of the matter, if the nature of consideration as made by the Reference Court is taken note, it is seen that the principle of law has been kept in perspective and with reference to the evidence has determined the status and similarity of the land as compared to the exemplar land. Para No.17:- In that view of the matter, if the nature of consideration as made by the Reference Court is taken note, it is seen that the principle of law has been kept in perspective and with reference to the evidence has determined the status and similarity of the land as compared to the exemplar land. In that light, if the similar consideration, made by the Co-ordinate Bench of this Court is also kept in perspective, we have no hesitation to hold that all the lands involved in these cases also have non-agricultural potential and the determination of the market value is to be made on that basis and not by treating it as agricultural land so as to rely on exemplar sale deeds of agricultural lands produced by the appellants either before the Reference Court or before this Court as additional documents. Para No.18:- If the above aspect is kept in view, though the appellants had relied upon the sale deeds at Exhs.R.1 to R21 relating to agricultural properties, the same cannot be treated as a reasonable exemplar for the purpose of determination of the market value. For the same reason, the sale deeds sought to be produced as additional documents in these appeals also would not be of assistance. That apart, the said sale deeds are of the year 2007 i.e., subsequent to the date of the notification. Insofar as the documents that were available before the Court below, when the sale deeds relied on by the beneficiary were not the appropriate exemplar, the sale deed dated 18.11.2003 relied upon by the landlosers at Ex.P.30 though for a smaller extent of land was taken note by the Reference Court. Further while analysing the remaining documents, the judgment passed in LAC.No.546/2010 as at Ex.P.55 relating to Sy.No.31 of Shaikh Roza when it was acquired for the University of Agricultural Sciences was taken into consideration and the market value determined at Rs.150/- per sq.ft. was relied upon as the exemplar for the lands in question and appropriate consideration was made." 8. Further, at paragraphs No.22 and 23 the Court discussed regarding acquired land in LAC.No.100/2008 and other lands. It is observed at paragraphs No.22 and 23 as under:- "Para No.22:- Similarly in LAC.No.100/2008 which is the subject matter in MFA.No.31191/2013 the award dated 19.03.2012 in LAC.No.546/2010 which was at Ex.P.33 has been relied upon. Further, at paragraphs No.22 and 23 the Court discussed regarding acquired land in LAC.No.100/2008 and other lands. It is observed at paragraphs No.22 and 23 as under:- "Para No.22:- Similarly in LAC.No.100/2008 which is the subject matter in MFA.No.31191/2013 the award dated 19.03.2012 in LAC.No.546/2010 which was at Ex.P.33 has been relied upon. Since we have accepted the conclusion of the Reference Court which is with reference to the evidence on record as the basis in all other cases, the consideration based on the same would also be appropriate in the instant case. When the award at Ex.P.33 was taken as the basis, the deduction as made therein also should have been taken into consideration. If that was done, the market value should have been fixed at Rs.150/- per Sq. feet as both these lands have similar advantages and disadvantages. Para No.23:- The learned counsel for the respondents would contend that the deduction towards development charges would not arise when the land is acquired for railways as they would be utilizing the entire acquired extent. In our opinion, the utilization by the Acquiring Authority is not the only basis but while making such deduction what is also to be kept in view is the extent to which the benefit would have been derived by the land owner if the land was not acquired and was available to be utilised by the owner. In such event, even if the land was utilised for non-agricultural purpose, either for commercial or residential, the land owner was required to give up a portion of the land towards open areas and common amenities and would have been able to utilise or sell only the remaining land from which he would have derived the income. Therefore the deduction in any event is required to be made. The Reference Court has committed an error in not deducting any portion of the amount from the determined amount. While considering the appropriate deduction, it is no doubt true that in respect of the properties bearing Sy.Nos.57/2, 58/1, 59/2 and 57/2 of Shaikh Roza, we have approved the deduction of 55% made by the Reference Court. In the instant case, the land is situate in Shaikh Roza at Sy.No.69. While considering the appropriate deduction, it is no doubt true that in respect of the properties bearing Sy.Nos.57/2, 58/1, 59/2 and 57/2 of Shaikh Roza, we have approved the deduction of 55% made by the Reference Court. In the instant case, the land is situate in Shaikh Roza at Sy.No.69. From the location map, it is seen that the land in Sy.No.69 has its own distinct advantages as it abuts the highway and is very much comparable to the land considered in LAC.No.546/2010 and approved in MFA.No.201138/2014. Therefore, keeping this aspect in view, we find it appropriate to fix the market value as done therein as it is determined after deducting towards development charges. If the same is done, the market value in respect of the land bearing Sy.No.69 in LAC.No.100/2008 will be Rs.150/- per Sq. feet." 9. We have carefully perused the said judgment. It is evident that Coordinate Bench of this Court has already considered all the factors, such as deduction towards development charges, consideration of the nature of the property having non-agricultural potentiality and though they are agricultural land, having regard to its location and the area losing its agricultural character as also the development that had taken place. As such determined the value and approved award by the Reference Court. Further, at paragraph No.21 though it is clearly observed by the Reference Court that present land and land involved in LAC.No.100/2008 are situated adjacent to each other and situated within the same village and also acquired under the same notification, it is held that there cannot be any justification to make distinction between two lands. So, the Reference Court has relied on the judgment of Coordinate Bench of this Court pertaining to LAC.No.100/2008 and arrived at the value of Rs.150/- per Sq. feet. The Reference Court also discussed about the Coordinate Bench considering this aspect in the above referred MFA and determined the market value of the Shaikh Roza and other places which are acquired under the same notification and for same purpose, now it has reached finality. 10. We have given our anxious consideration to the contentions advanced by the learned counsel for the parties. In a matter like this, it has to be kept in mind that land belonging to a farmer is acquired for public purpose taking recourse to provisions providing for compulsory acquisition under the Land Acquisition Act. 10. We have given our anxious consideration to the contentions advanced by the learned counsel for the parties. In a matter like this, it has to be kept in mind that land belonging to a farmer is acquired for public purpose taking recourse to provisions providing for compulsory acquisition under the Land Acquisition Act. It is well established that persons whose lands are acquired under the same notification for the same project are entitled to receive similar compensation on the principle of parity in the matter of payment of compensation. It is also well established that judgments rendered by the court of competent jurisdiction determining market value of similar lands can be relevant piece of evidence and can be relied upon for fixing the market value of comparable lands acquired for the same purpose. 11. Learned counsel for the appellant has relied upon the judgment of Hon'ble Supreme Court in the case of Ravi Prakash Sharma vs. State of Uttar Pradesh and others, 2019 15 SCC 301 , and contended that the award of interest from the date of 4(1) notification passed by the Reference Court is not tenable. In view of the principles of law stated in the above decision, we hold that the appellant is entitled to interest at the rate of 9% p.a. on the enhanced amount of compensation from the date the possession of the land is taken or from the date of award whichever is earlier for a period of one year, thereafter interest at the rate of 15% p.a. till depositing in the Court. 12. In view of the discussion made above, we are of the considered view that the other contentions urged by the appellant being devoid of merits are liable to be dismissed. Accordingly, we hold that prayer of the appellant to modify the order of the reference Court awarding compensation at Rs.150/- per sq.ft is rejected. The appeal is partly allowed only with regard to rate of interest as referred at para No.11. Office is directed to draw award accordingly.