Karnataka High Court
The Assistant Executive Engineer vs S.Shivamurthy on 7 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.6332/2021 (LAC)
C/W.
MISCELLANEOUS FIRST APPEAL NO.6333/2021 (LAC)
MISCELLANEOUS FIRST APPEAL NO.6336/2021 (LAC)
MISCELLANEOUS FIRST APPEAL NO.6337/2021 (LAC)
MISCELLANEOUS FIRST APPEAL NO.6343/2021 (LAC)
MISCELLANEOUS FIRST APPEAL NO.6368/2021 (LAC)
MISCELLANEOUS FIRST APPEAL NO.6369/2021 (LAC)
MISCELLANEOUS FIRST APPEAL NO.6370/2021 (LAC)
MISCELLANEOUS FIRST APPEAL NO.6371/2021 (LAC)
MISCELLANEOUS FIRST APPEAL NO.6374/2021 (LAC)
MISCELLANEOUS FIRST APPEAL NO.6380/2021 (LAC)
MISCELLANEOUS FIRST APPEAL NO.5943/2023 (LAC)
IN MISCELLANEOUS FIRST APPEAL NO.6332/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED,
UPPER BHADRA PROJECT,
SUB-DIVISION NO.4,
TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT
KARNATAKA-577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
1. THIPESHAPPA
S/O GOWRAMMA
AGED ABOUT 62 YEARS
2
RESIDENT OF BETTATAVAREKERE VILLAGE
AMRUTHAPURA HOBLI
TARIKERE TALUK
CHIKKAMAGALURU DISTRICT
KARNATAKA-577 228
SINCE DECEASED BY HIS LRS
1(a) SMT. KALAMMA
W/O LATE THIPESHAPPA
AGED ABOUT 60 YEARS
1(b) B.T. NIJAGUNA
S/O LATE THIPESHAPPA
AGED ABOUT 50 YEARS
1(c) B.T. RAJU
S/O LATE THIPESHAPPA
AGED ABOUT 48 YEARS
1(d) B.T. THOTAPPA
S/O LATE THIPESHAPPA
AGED ABOUT 40 YEARS
1(e) B.T. HALESHAPPA
S/O LATE THIPESHAPPA
AGED ABOUT 37 YEARS
1(f) B.T. RUDRESH
S/O LATE THIPESHAPPA
AGED ABOUT 35 YEARS
R1(a) TO R1(f) ARE
R/AT BETTATARAVAREKERE VILLAGE
AMRUTHAPURA HOBLI
TARIKERE TALUK
CHIKKAMAGALURU DISTRICT-577 228.
(AMENDED VIDE COURT ORDER DATED 22.08.2023)
3
2. ASSISTANT COMMISSIONER/
THE SPECIAL LAND ACQUISITION OFFICER
UPPER BHADRA PROJECT
TARIKERE, KARNATAKA-577228.
... RESPONDENTS
(BY SRI. GOPALAKRISHNA SOODI, AGA FOR R2;
SRI. M.NARAYANA BHAT, ADVOCATE FOR R1(a to f))
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD
DATED 16.02.2021 PASSED IN LAC.NO.02/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE,
PARTLY ALLOWING THE REFERENCE PETITION FILED UNDER
SECTION 18(1) OF LAND ACQUISITION ACT.
IN MISCELLANEOUS FIRST APPEAL NO.6333/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED,
UPPER BHADRA PROJECT,
SUB-DIVISION NO.4,
TARIKERE TALUK
CHIKKAMAGALURU DISTRICT
KARNATAKA-577 228. ... APPELLANT
(BY SRI M.R.C.RAVI, SENIOR COUNSEL FOR
SRI NAGAIAH, ADVOCATE)
AND:
1. E.B. CHANDRAPPA
S/O BASAPPA
AGED ABOUT 51 YEARS,
RESIDENT OF BETTAVAREKERE VILLAGE,
AMRUTHAPURA HOBLI, TARIKERE TALUK
CHIKKAMAGALUR DISTRICT
KARNATAKA-577 228.
4
2. ASSISTANT COMMISSIONER/
SPECIAL LAND ACQUISITON OFFICER
UPPER BHADRA PROJECT, TARIKERE,
KARNATAKA-577 228. ... RESPONDENTS
(BY SRI. GOPALAKRISHNA SOODI, AGA FOR R2;
SRI. GNANESH N.I., ADVOCATE FOR R1)
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD
DATED 16.02.2021 PASSED IN LAC NO.10/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE, PRINCIPAL JMFC, TARIKERE, PARTLY
ALLOWING THE REFERENCE PETITION UNDER SECTION 18(1)
OF LAND ACQUISITION ACT.
IN MISCELLANEOUS FIRST APPEAL NO.6336/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED,
UPPER BHADRA PROJECT,
SUB-DIVISION NO.4,
TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT
KARNATAKA-577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
1. B.E.NAGARAJAPPA
S/O ESHWARAPPA
AGED ABOUT 68 YEARS,
RESIDENT OF BETTATAVAREKERE VILLAGE,
AMRUTHAPURA HOBLI, TARIKERE TALUK
CHIKMAGALUR DISTRICT
KARNATAKA-577 228.
5
2. ASSISTANT COMMISSIONER/
SPECIAL LAND ACQUISITON OFFICER
UPPER BHADRA PROJECT, TARIKERE
KARNATAKA-577 228. ... RESPONDENTS
(BY SRI. GOPALAKRISHNA SOODI, AGA FOR R2;
SRI. GNANESH N.I., ADVOCATE FOR R1)
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD
DATED 20.02.2021 PASSED IN LAC NO.14/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE, PRINCIPAL JMFC, TARIKERE, PARTLY
ALLOWING THE REFERENCE PETITION UNDER SECTION 18(1)
OF LAND ACQUISITION ACT.
IN MISCELLANEOUS FIRST APPEAL NO.6337/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED
UPPER BHADRA PROJECT,
SUB-DIVISION NO.4, TARIKERE TALUK
CHIKKAMAGALUR DISTRICT
KARNATAKA-577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
MALLESHAPPA S/O THIMALAPPA
SINCE DEAD BY LRS
1. SMT. NAVILAMMA
W/O LATE MALLESHAPPA
AGED ABOUT 55 YEARS
2. SHIVA KUMAR
S/O LATE MALLESHAPPA
AGED ABOUT 43 YEARS
6
3. SMT. DEVEERAMMA
D/O LATE MALLESHAPPA
AGED ABOUT 41 YEARS
4. SMT. KUSHALA
D/O LATE MALLESHAPPA
AGED ABOUT 39 YEARS
5. SMT. GEETHA
D/O LATE MALLESHAPPA
AGED ABOUT 30 YEARS
RESPONDENTS NO.1 TO 5 ARE
R/AT BETTAVAREKERE VILLAGE
AMRUTHAPURA HOBI,
TARIKERE TALUK
CHIKKAMAGALUR DISTRICT
KARNATAKA - 577 228.
6. ASSISTANT COMMISSIONER/
THE SPECIAL LAND ACQUISITION OFFICER
UPPER BHADRA PROJECT, TARIKERE
KARNATAKA-577 228. ... RESPONDENTS
(BY SRI. GNANESH N.I., ADVOCATE FOR R1 TO R5;
SRI. GOPALAKRISHNA SOODI, AGA FOR R6)
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD
DATED 20.02.2021 PASSED IN LAC.NO.09/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE,
PARTLY ALLOWING THE REFERENCE PETITION FILED UNDER
SECTION 18(1) OF LAND ACQUISITION ACT, 1894.
IN MISCELLANEOUS FIRST APPEAL NO.6343/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED,
UPPER BHADRA PROJECT,
SUB-DIVISION NO.4,
7
TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT
KARNATAKA-577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
1. S. SHIVAMURTHY
S/O SHANKARAPA
AGED ABOUT 50 YEARS
RESIDING AT BETTAVAREKERE VILLAGE
AMRUTHAPURA HOBLI, TARIKERE TALUK
CHIKKAMAGALUR DISTRICT
KARNATAKA-577 228.
2. ASSISTANT COMMISSIONER/
SPECIAL LAND ACQUISITON OFFICER
UPPER BHADRA PROJECT, TARIKERE
KARNATAKA-577 228. ... RESPONDENTS
(BY SRI. GNANESH N.I., ADVOCATE FOR R1;
SRI. GOPALAKRISHNA SOODI, AGA FOR R2)
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD
DATED 16.02.2021 PASSED IN LAC.NO.15/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE,
PARTLY ALLOWING THE REFERENCE PETITION FILED UNDER
SECTION 18(1) OF LAND ACQUISITION ACT, 1894.
IN MISCELLANEOUS FIRST APPEAL NO.6368/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED,
UPPER BHADRA PROJECT,
SUB DIVISION, NO.4,
TARIKERE TALUK,
8
CHIKKAMAGALUR DISTRICT,
KARNATAKA-577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
ESHWARAPPA,
SINCE DEAD BY LRS
1. JAYANNA
S/O LATE ESHWARAPPA
AGED ABOUT 60 YEARS
2. LINGAMURTHY
S/O LATE ESHWARAPPA
AGED ABOUT 58 YEARS
3. CHANDRAPPA
S/O LATE ESHWARAPPA
AGED ABOUT 55 YEARS
4. UMESH
S/O LATE ESHWARAPPA
AGED ABOUT 52 YEARS
RESPONDENTS NO.1 TO 4 ARE
RESIDING AT BETTATAVAREKERE VILLAGE
AMRUTHAPURA HOBLI, TARIKERE TALUK
CHIKKAMAGALUR DISTRICT
KARNATAKA - 577 228.
5. SMT. PREMA
D/O LATE ESHWARAPPA
AGED ABOUT 58 YEARS
RESIDING AT CHICKNALLURU
HIRENALLURU HOBLI,
KADUR TALUK,
CHIKKAMAGALUR DISTRICT
KARNATAKA-577 550.
9
6. ASSISTANT COMMISSIONER/
THE SPECIAL LAND ACQYISTITION OFFICER
UPPER BHADRA PROJECT,
TARIKERE,
KARNATAKA - 577 228. ... RESPONDENTS
(BY SRI. GNANESH N.I., ADVOCATE FOR R3;
R1 TO R5 - SERVED;
SRI. GOPALAKRISHNA SOODI, AGA FOR R6)
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DT.
22.02.2021 PASSED IN LAC.NO.18/2013 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, PARTLY
ALLOWING THE REFERENCE PETITION FILED UNDER SECTION
18(1) OF LAND ACQUISITION ACT, 1894.
IN MISCELLANEOUS FIRST APPEAL NO.6369/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED,
UPPER BHADRA PROJECT,
SUB-DIVISION NO.4,
TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT
KARNATAKA-577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
1. B.C. VEERABHADRAPPA
S/O CHANDAPPA
AGED ABOUT 82 YEARS
RESIDING AT BETTAVAREKERE VILLAGE
AMRUTHAPURA HOBLI,
TARIKERE TALUK
CHIKKAMAGALUR DISTRICT
KARNATAKA-577228
10
2. ASSISTANT COMMISSIONER/
SPECIAL LAND ACQUISITON OFFICER
UPPER BHADRA PROJECT, TARIKERE
KARNATAKA-577 228. ... RESPONDENTS
(BY SRI. GNANESH N.I., ADVOCATE FOR R1;
SRI. GOPALAKRISHNA SOODI, AGA FOR R2)
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DT.
22.02.2021 PASSED IN LAC.NO.12/2013 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, PARTLY
ALLOWING THE REFERENCE PETITION FILED UNDER SECTION
18(1) OF LAND ACQUISITION ACT, 1894.
IN MISCELLANEOUS FIRST APPEAL NO.6370/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED,
UPPER BHADRA PROJECT,
SUB DIVISION NO.4,
TARIKERE TALUK,
CHIKKAMAGALUR DISTRICT,
KARNATAKA-577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
1. SMT. MALLAMMA
W/O LATE K.R. ESWARAPPA,
AGED ABOUT 65 YEARS,
2. B.E. THOTAPPA
S/O LATE K.R. ESWARAPPA,
AGED ABOUT 39 YEARS,
11
BOTH RESPONDENTS NO.1 AND 2
RESIDING AT BETTATAVAREKERE VILLAGE,
AMRUTHAPURA HOBLI, TARIKERE TALUK,
CHIKKAMAGALUR DISTRICT,
KARNATAKA - 577 228.
3. ASSISTANT COMMISSIONER/
THE SPECIAL LAND ACQUISITION OFFICER
UPPER BHADRA PROJECT, TARIKERE
KARNATAKA - 577 228. ... RESPONDENTS
(BY SRI. GNANESH N.I., ADVOCATE FOR R1 AND R2;
SRI. GOPALAKRISHNA SOODI, AGA FOR R3)
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DT.
16.02.2021 PASSED IN LAC.NO.06/2013 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, PARTLY
ALLOWING THE REFERENCE PETITION FILED UNDER SECTION
18(1) OF LAND ACQUISITION ACT, 1894.
IN MISCELLANEOUS FIRST APPEAL NO.6371/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED,
UPPER BHADRA PROJECT,
SUB DIVISION, NO 4,
TARIKERE TALUK,
CHIKKAMAGALUR DISTRICT,
KARNATAKA-577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
ESHWARAPPA,
SINCE DEAD BY LRS
12
1. JAYANNA
S/O LATE ESHWARAPPA
AGED ABOUT 60 YEARS
2. LINGAMURTHY
S/O LATE ESHWARAPPA
AGED ABOUT 58 YEARS
3. CHANDRAPPA
S/O LATE ESHWARAPPA
AGED ABOUT 55 YEARS
4. UMESH
S/O LATE ESHWARAPPA
AGED ABOUT 52 YEARS
RESPONDENTS NO.1 TO 4 ARE
RESIDING AT BETTATAVAREKERE VILLAGE
AMRUTHAPURA HOBLI,
TARIKERE TALUK
CHIKKAMAGALUR DISTRICT
KARNATAKA - 577 228.
5. SMT. PREMA
D/O LATE ESHWARAPPA
AGED ABOUT 58 YEARS
RESIDING AT CHICKNALLURU
HIRENALLURU HOBLI
KADUR TALUK
CHIKKAMAGALUR DISTRICT
KARNATAKA-577 550.
6. ASSISTANT COMMISSIONER/
THE SPECIAL LAND ACQUISTITION OFFICER
UPPER BHADRA PROJECT,
TARIKERE,
KARNATAKA-577 228. ... RESPONDENTS
(BY SRI. GNANESH N.I., ADVOCATE FOR R1 - R5;
SRI. GOPALAKRISHNA SOODI, AGA FOR R6)
13
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DT.
20.02.2021 PASSED IN LAC.NO.17/2013 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, PARTLY
ALLOWING THE REFERENCE PETITION FILED UNDER SECTION
18(1) OF LAND ACQUISITION ACT, 1894.
IN MISCELLANEOUS FIRST APPEAL NO.6374/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED,
UPPER BHADRA PROJECT,
SUB-DIVISION NO.4,
TARIKERE TALUK,
CHIKKAMAGALUR DISTRICT,
KARNATAKA-577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
1. SHANMUKHAPPA
S/O GOWRANNA
AGED ABOUT 55 YEARS
RESIDING AT BETTATAVAREKERE VILLAGE,
AMRUTHAPURA HOBLI, TARIKERE TALUK,
CHIKKAMAGALUR DISTRICT
KARNATAKA - 577 228.
2. ASSISTANT COMMISSIONER/
THE SPECIAL LAND ACQUISTITION OFFICER
UPPER BHADRA PROJECT, TARIKERE
KARNATAKA - 577 228.
... RESPONDENTS
(BY SRI. GOPALAKRISHNA SOODI, AGA FOR R2;
SRI. M. NARAYANA BHAT, ADVOCATE FOR R1)
14
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD
DATED 16.02.2021 PASSED IN LAC.NO.05/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE,
PARTLY ALLOWING THE REFERENCE PETITION FILED UNDER
SECTION 18(1) OF LAND ACQUISITION ACT, 1894.
IN MISCELLANEOUS FIRST APPEAL NO.6380/2021:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED,
UPPER BHADRA PROJECT,
SUB-DIVISION NO.4,
TARIKERE TALUK,
CHIKKAMAGALUR DISTRICT,
KARNATAKA-577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
1. B.H.LOKESHAPPA
S/O HOLEYAPPA
AGED ABOUT 46 YEARS
RESIDING AT BETTATAVAREKERE VILLAGE,
AMRUTHAPURA HOBLI, TARIKERE TALUK,
CHIKKAMAGALUR DISTRICT,
KARNATAKA-577 228.
2. ASSISTANT COMMISSIONER/
THE SPECIAL LAND ACQUISITION OFFICER
UPPER BHADRA PROJECT, TARIKERE,
KARNATAKA-577 228. ... RESPONDENTS
(BY SRI. GOPALAKRISHNA SOODI, AGA FOR R2;
SRI. M. NARAYANA BHAT, ADVOCATE FOR R1)
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD
15
DATED 20.02.2021 PASSED IN LAC.NO.19/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE,
PARTLY ALLOWING THE REFERENCE PETITION FILED UNDER
SECTION 18(1) OF LAND ACQUISITION ACT, 1894.
IN MISCELLANEOUS FIRST APPEAL NO.5943/2023:
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER
VISVESVARAYA JALA NIGAM LIMITED
UPPER BHADRA PROJECT
SUB-DIVISION NO.4
TARIKERE TALUK
CHIKKAMAGALUR DISTRICT
KARNATAKA - 577 228. ... APPELLANT
(BY SRI. M.R.C.RAVI, SENIOR COUNSEL FOR
SRI. NAGAIAH, ADVOCATE)
AND:
1. SRI. S. GOWRAPPA
SINCE DEAD BY HIS LRS
1(a) SMT. MANJULA G.S.,
W/O NEELAKANTHAPPA
D/O LATE S. GOWRAPPA
AGED ABOUT 60 YEARS
R/AT KADUR TOWN AND TALUK
CHIKKAMAGALURU DISTRICT-577 116.
1(b) UMASHANKARA G.S.,
S/O LATE S. GOWRAPPA
AGED ABOUT 57 YEARS
R/AT NO.273,
'VEERABHADRESHWARA NILAYA'
2ND MAIN, 1ST CROSS, LBS NAGAR
BEHIND CHOWDESHWARI TEMPLE
SHIVAMOGGA TOWN
SHIVAMOGGA DISTRICT-577 204.
16
1(c) SHADAKSHARI G.S.,
S/O LATE S. GOWRAPPA
AGED ABOUT 54 YEARS
R/AT 8TH CROSS, 2ND MAIN
KRISHI NAGAR
SHIVAMOGGA TOWN
SHIVAMOGGA DISTRICT-577 204.
1(d) MAMATHA G.S.,
W/O SHIRALINGAPPA D.H.,
AGED ABOUT 53 YEARS
R/AT NO.72, KUMAR LAYOUT
CHENNAKESHWARA TEMPLE
BENGALURU-562 107
(AMENDED VIDE COURT ORDER DATED 03.09.2024)
2. ASSISTANT COMMISSIONER/
THE SPECIAL LAND ACQUISITION OFFICER
UPPER BHADRA PROJECT,TARIKERE,
KARNATAKA - 577 228.
... RESPONDENTS
(BY SRI. GOPALAKRISHNA SOODI, AGA FOR R2;
SRI. M. NARAYANA BHAT, ADVOCATE FOR R1(a to d))
THIS M.F.A. IS FILED UNDER SECTION 54(1) OF LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD
DATED 13.12.2022 PASSED IN LAC NO.30/2014 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND PRL. JMFC, TARIKERE, PARTLY
ALLOWING THE REFERENCE PETITION UNDER SECTION 23(1)
OF LAND ACQUISITION ACT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 28.01.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
17
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. These appeals are filed challenging the judgment and
award passed by the Reference Court questioning the
enhancement of compensation and assessing the compensation
for mango trees as well as challenging the calculation on the
solatium and additional market value, particularly questioning
the calculation as incorrect in LAC Nos.2/2013, 10/2013,
14/2013, 9/2013, 15/2013, 18/2013, 12/2013, 6/2013,
17/2013, 5/2013, 19/2013 and 30/2014.
3. The factual matrix of the case of the appellant before
this Court is that the preliminary notification was issued on
18.11.2010 notifying the respective survey numbers in respect
of Bettatavarekere village belonging to respective respondent
No.1/owners and the same was published in the Karnataka
gazette. The final notification was issued on 24.11.2011. The
respondent No.2 Assistant Commissioner/Special Land
Acquisition Officer passed the award under Section 11 of the
18
Land Acquisition Act, 1894 (‘the Act’ for short) giving
compensation to both the lands and trees. The respondent No.1
being the owner of the respective properties aggrieved by the
market value determined by respondent No.2, sought the
reference under Section 18 of the Act seeking enhancement of
compensation for both land and trees. The Reference Court on
receiving the reference under Section 18 of the Act, having
recorded the evidence awarded the compensation and the same
is being challenged before this Court in these appeals praying
this Court to set aside the judgment passed by the Senior Civil
Judge and Principal JMFC, Tarikere, in the above LAC cases and
pass such other orders as may be deemed fit and necessary in
the circumstances of the case.
4. The main grounds urged in all these appeals is that
the appellant is the Assistant Executive Engineer of Visvesvaraya
Jala Nigam Limited, a Company incorporated under Companies
Act, 2013. The appellant Company is a wholly owned
undertaking of the Government of Karnataka, incorporated
under the Company’s Act as a Special Purpose Vehicle to cater to
the drinking water and irrigation needs of drought-prone areas
of Chikmagalur, Chitradurga, Tumkur, Hassan, Ramanagara,
19
Bengaluru (Rural), Kolar and Chikballapura Districts. The
appellant was in need of land for the purpose of formation of
canals for the upper Bhadra Project, in amongst other Villages,
Bettatavarekere Village, Amrutapura Hobli, Tarikere Taluk,
Chikkamagalur District. Hence, the Deputy Commissioner,
Chikkamagalur directed respondent No.2 to prepare a draft
notification under Section 4(1) of the Act. Accordingly,
preliminary notification and final notification were issued and
award was also passed. The respondent No.2 also passed an
award in respect of respective lands under Section 11 of the Act,
arriving at compensation for the various lands acquired. The
respondent No.2 in his award has observed that the Government
of Karnataka has fixed various rates, which was a lumpsum
payment for the acquired lands, which included all trees and
things attached to the acquired land, and inclusive of all
statutory benefits, which rates were proposed for any land
owners who were agreeable for acquisition of land at the rates
fixed by the Government. The respondent No.2 also taken note
of the potentiality of the property and lands as well as trees
which were attached to the earth. The respondent No.2 while
fixing the award amount taken note of the sale of dry lands for
20
the period 2008 and 2010 (no transactions were recorded in the
year 2009) from the information obtained from the Sub-
Registrar, Tarikere and determined the market value of dry lands
at Rs.1,023/- per gunta or Rs.40,500/- per acre of dry land for
the village Bettatavarekete. It is also observed and determined
the market value of wet lands at Rs.79,200/- per acre or
Rs.1,980/- per gunta. It is contended that it has recently come
across the detailed valuation report of the trees of the village of
Bettatavarekere, whereby inter alia the Deputy Director of
Horticulture Department and Senior Assistant Director of
Horticulture Department, Tarikere have inspected and valued the
horticulture trees on the acquired lands, including the trees on
the land of respondent No.1. The land of respondent No.1 being
dry in nature was valued at Rs.85,932/-. The respondent No.2
in accordance with the valuation of the trees made by the
authorities of Horticulture Department, fixed an additional
compensation at Rs.8,78,798/- in respect of property of LAC
No.2/2013 and awarded compensation taking note of the
respective land as well as trees which are in existence. It is also
not in dispute that the award has been challenged by requesting
to refer the matter to the concerned Court under Section 18 of
21
the Act and the matter was also referred to the Reference Court
and the Reference Court proceeded to pass the award which is
challenged before this Court.
5. This Court would like to refer the common grounds
urged in all these appeals, wherein it is contended that the
Reference Court, without having the benefit of the reasoning
given by respondent No.2, has gone to enhance the
compensation and no reasons are assigned in the judgment and
award and awarded higher compensation which is contrary to
the principles of natural justice. It is the contention of the
appellant that burden is upon the claimant to establish that the
compensation amount determined under Section 11 of the Act is
inadequate and to place relevant material for correct valuation.
The respective respondents have not placed the awards passed
by respondent No.2 before the Reference Court and it is their
burden to demonstrate to the Reference Court that the reason
given therein was not sound or the material considered by
respondent No.2 was not relevant and burden is on them to
discharge the same and the same was not discharged in the
above cases. In the absence of such material, the Court cannot
enhance the compensation.
22
6. The learned counsel for the appellant relied upon the
judgment of the Apex Court in the case of SPECIAL LAND
ACQUISITION OFFICER AND ANOTHER v. SIDAPPA
OMANNA TUMARI AND OTHERS reported in 1995 Supp (2)
SCC 168, wherein discussion was made with regard to Section
18, 11 and 12 of the Act. The learned counsel contend that it
was incumbent upon the Reference Court to examine the award
and its reasoning, and on consideration of relevant material in
the award of respondent No.2, arrive at a finding that the same
was inadequate and no such consideration was made and hence
the judgment and award is unsustainable. The learned counsel
contend that the award is a sine qua non for the proceedings
seeking enhancement of the compensation under the said Act,
as many facts such as the date of preliminary notification, date
of award are all necessary to determine the statutory benefit of
additional market value under Section 23(1-A), which is
determined from the date of preliminary notification till the date
of the award or date of taking possession, whichever is earlier.
Without the basic document such as the award, the Reference
Court has gone on guess work as regards the dates on which the
preliminary notification was issued and the date of award etc.
23
which gets reflected in the award itself. The award itself is quite
silent as to how the date of preliminary notification etc., has
been arrived at by the Reference Court. It is contended that the
Reference Court has committed an error in assessing the mango
trees and erroneously taken that the land acquired was
consisting of Badami mango trees and in order to show that the
respondent owners have grown the Badami trees, nothing is
placed on record. The reasoning of the Reference Court is
contrary to Section 101 of the Indian Evidence Act, which
stipulates that whoever desires any Court to give judgment as to
any legal right or liability dependent on the existence of facts
which he asserts, must prove that those facts exist and the same
has not been proved.
7. The other contention of the learned counsel for the
appellant is that the Reference Court has erred in relying upon
Ex.P.1 and letter dated 26.08.2016 issued by the Public
Information Officer, Hopcoms Lal Bagh, which is not even
produced as an exhibit and without examining their authors
considered the same and passed the award enhancing the
compensation in respect of mango trees. The Reference Court
has also erred in calculating the yield of the mango trees
24
through income capitalization method. The respondent No.2 had
already valued the lands of respondent No.1 through sale
statistics method and over and above that also had the trees on
the lands of the respondent No.1 valued by Senior Officials of
the Horticultural Department considering the age and yield and
the said fact is reflected in the award passed by respondent
No.2. Hence, the Reference Court has committed an error in
taking the income capitalization method, though it has held that
compensation awarded for land by respondent No.2 could not be
found fault with.
8. The learned counsel for the appellant relied upon the
judgment of the Apex Court in the case of STATE OF HARYANA
v. GURCHARAN SINGH AND ANOTHER reported in (1995)
Supp (2) SCC 637 and contend that it is settled law that the
Collector or the Court who determines the compensation for the
land as well as fruit bearing trees cannot determine them
separately. The compensation is to be value of the acquired
land. The market value is determined on the basis of the yield.
Then necessarily applying suitable multiplier, the compensation
need to be awarded. Under no circumstances, the Court should
allow the compensation on the basis of the nature of the land as
25
well as fruit bearing trees. In other words, market value of the
land is determined twice over and one on the basis of the value
of the land and again on the basis of the yield got from the fruit
bearing trees. The definition of the land includes the benefits to
arise from the land as defined in Section 3(a) of the Act. After
compensation is determined on the basis of the value of the land
from the income applying suitable multiplier, then the trees
would be valued only as fire-wood and necessary compensation
would be given.
9. The learned counsel contend that the said principle
that the trees cannot be valued separately on the basis of
income capitalization in addition to that of value of land has been
followed in a catena of decisions. Furthermore, the Apex Court
has held that the safest method of valuation of lands is by way
of sale statistics method, or the price paid by willing purchasers
at the point in time of preliminary notification. The Reference
Court committed an error in considering the same separately.
The learned counsel contend that the Reference Court has
further erred in awarding additional market value at the rate of
12% per annum under Section 23(1-A), solatium at the rate of
30% as provided under Section 23(2) and also interest under
26
Section 28 of the Land Acquisition Act on both the compensation
awarded by respondent No.2 as also the enhanced compensation
awarded by the Reference Court. In view of the same, the
award reflects that solatium at the rate of 30% has been
calculated both on the enhanced compensation as well as the
award that is passed by respondent No.2, when in fact,
respondent No.2 has awarded solatium under Section 23(2) and
additional market value under Section 23(1-A) on the land value.
The respondent No.2 has omitted to award those statutory
benefits on the valuation of the trees and other fixtures on the
land, which the appellant submits is lawful. Hence, the awarding
of statutory benefits under Section 23(2) and 23(1-A) on both
the compensation awarded by respondent No.2 and also on the
enhanced compensation awarded by the Reference Court is
erroneous. Furthermore, interest under Section 28 of the Act, is
to be calculated on the amount which is in excess to the amount
that has been awarded by the Land Acquisition Officer, or in
other words, interest has to be calculated on the amount that
has been enhanced by the Reference Court. However, in the
impugned judgment and award, interest under Section 28 has
been calculated both on the enhanced amount awarded by the
27
Reference Court plus solatium at the rate of 30% as also on the
amount awarded by respondent No.2 plus solatium at the rate of
30% which is per se not legally tenable.
10. The learned counsel for the appellant in support of
his argument relied upon the judgment of the Apex Court in the
case of STATE OF U.P. AND OTHERS v. SMT. RAM KUMARI
DEVI AND OTHERS reported in (1996) 8 SCC 577, and
brought to the notice of this Court paragraph No.4 of the
judgment, wherein it is held that burden is on the owner to
prove the prevailing market value. On adduction of evidence by
the parties, the acid test which the Court has to adopt is that the
Court has to sit in the armchair of a prudent purchaser, eschew
feats of imagination and consider whether a reasonable prudent
purchaser in the open market would offer the same price which
the Court is intending to fix the market value in respect of the
acquired land. Since it is a compulsory acquisition, it is but the
solemn duty of the Court to assess reasonable compensation so
as to allow the same to the owner of the land whose property
has been acquired by compulsory acquisition and also to avoid
needless burden on public exchequer.
28
11. The learned counsel also relied upon the judgment of
the Apex Court in the case of DY.DIRECTOR, LAND
ACQUISTION v. MALLA ATCHINAIDU AND OTHERS reported
in (2006) 12 SCC 87 and brought to the notice of this Court
paragraph No.56, wherein the Apex Court held has that the High
Court also failed to note that the Court has no power to value
the trees separately and award both the value of the land and
also the value of the trees as per the decision of this Court in
State of Haryana v. Gurcharan Singh, wherein it was held
that the compensation for the lands as well as for the trees
cannot be determined separately.
12. The learned counsel also relied upon the judgment of
the Apex Court in the case of BHUPENDRA RAMDHAN PAWAR
v. VIDARBHA IRRIGATION DEVELOPMENT CORPORATION,
NAGPUR AND OTHERS reported in (2021) 12 SCC 58 and
brought to the notice of this Court paragraph No.14 wherein also
the case of State of Haryana v. Gurcharan Singh was
referred and similar view was taken.
13. The learned counsel relied upon the judgment of the
Apex Court in the case of STATE OF PUNJAB v. AMARJIT
29
SINGH AND ANOTHER reported in (2011) 4 SCC 734 and
brought to the notice of this Court paragraph No.3 of the
judgment, wherein discussion was made referring Section 23 of
the Land Acquisition Act dealing with matters to be considered in
determining compensation. The learned counsel also brought to
the notice of this Court paragraph No.4.4, wherein it is held that
solatium at 30% on such market value, in consideration of the
compulsory nature of acquisition.
14. The learned counsel also relied upon the judgment of
the Apex Court in the case of UNION OF INDIA v.
RAMCHANDRA AND OTHERS reported in 2022 SCC Online
SC 1008 and brought to the notice of this Court paragraph
No.28, wherein also discussion was made referring the judgment
in the case of State of Punjab v. Amarjit Singh and reiterated
that compensation on account of severance is not entitled to the
benefit of Section 23(1-A) and Section 23(2) of the Act, as the
market value is determined in terms of Section 23(1) firstly,
whereas the compensation on account of severance of land is
determined under Section 23(1) and discussion was made in
paragraph No.11 of the above judgment. The additional amount
30
under Section 23(1-A) and solatium under Section 23(2) are
both payable only on the market value determined under Section
23(1) of the Act and not on any other amount. Solatium under
Section 23(2) is not payable on the additional amount nor is
additional amount under Section 23(1-A) payable on solatium.
Solatium and additional amount are also not payable on the
damages/expenses that may be awarded under the second to
sixth factors under Section 23(1) of the Act.
15. The learned counsel also relied upon the judgment of
the Bombay High Court in the case of OIL AND NATURAL GAS
CORPORATION LIMITED v. OIL COUNTRY TUBULAR
LIMITED reported in 2011 SCC Online Bom 426, wherein it is
held that burden is always on the parties who claim
compensation to prove the actual loss referring paragraph
Nos.19, 20, 24, 35, 40 and 51.
16. The learned counsel relied upon the judgment of the
Bombay High Court in the case of NEW INDIA INSURANCE
COMPANY LIMITED v. PYARELAL TEXTILE LIMITED
reported in 2012 SCC Online Bom 99 and brought to the
notice of this Court paragraph Nos.20 and 22, wherein it held
31
that the loss/compensation for necessary damages and/or actual
loss is always subject to proof and cannot be on the presumption
and assumption.
17. The learned counsel also relied upon the judgment of
the Apex Court in the case of RANGAMMAL v. KUPPUSWAMI
AND ANOTHER reported in (2011) 12 SCC 220 and brought
to the notice of this Court paragraph No.31 with regard to
application of Section 101 of the Evidence Act, 1872 wherein it is
held that the party which makes the allegation must prove it.
The learned counsel also brought to the notice of this Court
paragraph No.32, wherein it is held that it was respondent
No.1/plaintiff who should have first of all discharged the burden
that the sale deed executed during the minority of the appellant
was genuine and was fit to be relied upon. If the Courts below
including the High Court had felt satisfied on this aspect, only
then the burden could be shifted on the appellant-defendant to
dislodge the case of the plaintiff that the sale deed was not
genuine. The learned counsel also brought to the notice of this
Court paragraph No.34, wherein it is held that the onus is on the
plaintiff to positively establish its case on the basis of the
material available and it cannot rely on the weakness or absence
32
of defence to discharge the onus. The learned counsel referring
this judgment would contend that burden is on the owner to
prove the contention that it requires enhancement.
18. The learned counsel also relied upon the judgment of
the Apex Court in the case of STATE OF MADHYA PRADESH v.
NOMI SINGH AND ANOTHER reported in (2015) 14 SCC 450
and brought to the notice of this Court paragraph No.11, wherein
it is held that a person who seeks the relief, he has to stand on
his own legs by proving his case.
19. The learned counsel also relied upon the judgment of
the Apex Court in the case of STATE OF UTTAR PRADESH v.
KARUNESH KUMAR AND OTHERS reported in 2022 SCC
Online SC 1706 and brought to the notice of this Court
paragraph No.22, wherein discussion was made with regard to
approbate and reprobate. The principle that one cannot
approbate and reprobate is inherent in it.
20. The learned counsel referring this judgment would
contend that the grounds which have been urged in all the
matters is with regard to calculation is incorrect and also only
with regard to enhancement of compensation in respect of
33
mango trees and the Reference Court has not enhanced the
compensation in respect of land is concerned. The learned
counsel in support of his arguments filed an application under
Order 41 Rule 27 of CPC and along with the application has
produced the award as well as RTC and contend that as on the
date of the preliminary notification, there was no any crop in
terms of the RTC extract, but only at the time of passing the
award managed to make an entry that mango trees are in
existence and the same are aged about 8 years old. Hence, this
Court has to allow the applications and consider the matter for
adducing the additional evidence and permit the appellant to
produce those additional documents and evidence.
21. The learned counsel for the respondent owners have
filed objections to the said I.A. and contend that after issuing the
final notification and before taking the possession of the land in
question, a joint measurement report was prepared and the
same is produced as document No.1 and while drawing the said
report, Assistant Horticulture Officer, Senior Assistant
Horticulture Director, Tarikere and Deputy Director, Horticulture
were personally present and all of them had affixed their
signature to the said report. The learned counsel contend that
34
the said measurement report was produced as Ex.P.3 before the
Reference Court and the Reference Court also observed that the
said document was drawn by the Government officials and the
appellant did not dispute the said document nor its contents. The
appellant is bound by the same and it cannot contradict the said
document at a later stage contending that additional documents
could be received. The learned counsel contend that the
revenue entries are not proof of cultivation or ownership. Such
documents are maintained by the Government for the purpose of
assessment of land revenue, survey, maintenance of records,
etc. Non-existence of any entry in w.r.t crops is not a conclusive
proof of cultivation made in the land. As could not be seen from
the final notification, compensation has been paid to the trees
and the same is shown in separate column and now the
appellant cannot contend contrary to their own documents. The
learned counsel contend that notice dated 28.11.2011 came to
be issued under Section 9(1) and 10 of the Act (notice taking
possession) by the Special Land Acquisition Officer while taking
the possession of the lands. As could be seen from the same,
possession was taken by the appellant after expiry of 15 days
from the date of said notice and possession of land was taken by
35
the appellant during December 2011 and notice copy is also
produced. The learned counsel referring these documents
objected for production of additional documents.
22. The learned counsel for the respondent contend that
the Reference Court taking note of the document of Ex.P.1 which
was marked with consent before the Reference Court regarding
the report received from the Assistant Horticulture Officer and
also from the Forest Department fixed the market rate in respect
of the mango trees. The learned counsel contend that the land
was handed over along with trees and when the possession was
taken along with the land and tree, now cannot contend that
there were no trees and other contention that the land and trees
cannot be valued separately also cannot be accepted. The
learned counsel contend that the very contention of the learned
counsel for the appellant that consideration of additional market
value and solatium is not part of the compensation cannot be
accepted. The learned counsel contend that the very contention
of the appellant that additional market value, solatium and
inclusion of the same by the Reference Court for calculation of
the amount is incorrect also cannot be accepted.
36
23. The learned counsel for respondent No.1 in support
of his argument relies upon the judgment of the Apex Court in
the case of SPECIAL LAND ACQUISITONN OFFICER v.
KARIGOWDA AND OTHERS reported in (2010) 5 SCC 708,
wherein it is held that for fair market value of land,
determination of capitalization of yield method is relevant
consideration. Assessment has to be made with reference to
existing potentiality of land on date of acquisition. The
Reference Court and High Court adopting agricultural yield
method enhanced valued of land holding manufacturing of silk
thread from silk cocoons as agricultural end product treating it
as relevant consideration. It is held that under Section 23 of the
Act, fair market value of land, if it is an agricultural land,
application of agricultural yield method in case of valuable cash
crops is permissible.
24. The learned counsel also relied upon the judgment of
the Apex Court in the case of SHAIK IMAMBI v. SPECIAL
DEPUTY COLLECTOR (LAND ACQUISITION), TELEGU
GANGA PROJECT reported in (2011) 11 SCC 639, wherein it
discussed with regard to Section 23(1) and (2) of the Act,
determination of market value through capitalization method and
37
valuation of yield from fruit-bearing trees. It is also observed
that thus, instead of the increase of Rs.20/- per tree per annum
awarded by the High Court, increase to be award as Rs.60/- per
tree per annum (to which compound multiplier of 10 is
applicable). The learned counsel referring this judgment would
contend that the Trial Court applied the same yardstick.
25. The learned counsel also relied upon the judgment of
this Court passed in W.P.No.39979/2013 dated 06.08.2014,
wherein also taken note of loss in diminution in the value of the
land and towards the loss sustained for cutting of the trees.
Keeping in mind the ratio which were discussed in the judgment,
the multiplier of 10 is required to be taken and if the cost of
cultivation is taken at 30%, it can be safely said that the net
income has to be calculated on the basis of Rs.5/- per coconut
giving margin to the cost incurred for cultivation and other
expenses. If the net value is worked out, it comes to
Rs.72,100/- in a case of coconut trees.
26. The learned counsel also relied upon the judgment of
the Constitutional Bench of the Apex Court in the case of
SUNDER v. UNION OF INDIA reported in (2001) 7 SCC 211,
38
wherein discussion is made with regard to proviso of Section 28,
23(1), (1-A) and (2), 31(1) and 26 of the said Act. Interest
under Sections 34 and 28, held is payable on solatium. Amount
awarded in Section 34, held, means the aggregate amount of
compensation calculated in accordance with provisions of all the
sub-Sections of Section 23 and hence includes solatium.
Intention of legislature is to ensure that the amount calculated
under Section 23 reaches the person concerned at the time of
passing of award or of taking over possession of the land. Any
delay in making of such payment, entitles the person to receive
interest on whole amount including the solatium. It is also held
that the amount awarded in consideration of the compulsory
nature of the acquisition, i.e., solatium, held is qualitatively
different from and so cannot be equated with damages on
account of any disinclination of the person to part with the land
acquired. The question of payment of interest would arise only
when the compensation is not paid or deposited on or before the
date of taking possession of the land. The exercise can be done
with the aid of the provisions in the statues. So what the Court,
in the context of land acquisition, has to decide is how the Act
has designed the compensation vis-à-vis the liability to pay
39
interest. It is also held that no judicial exercise is required to
quantify the sums mentioned in sub-section (1-A) or sub-section
(2) because the section itself specifies the percentage to be
worked out for the purpose of adding to the total amount arrived
at under sub-section (1). What is intended under Section 23(2)
is additional to the market value of the land and in consideration
of the compulsory nature of the acquisition. But it cannot be
equated with any damage caused on account of any
disinclination of the person to part with the land acquired.
27. The learned counsel also relied upon the judgment of
this Court passed in MSA No.94/2016 passed on 03.07.2023
in a similar set of facts of acquiring of mango trees and the same
is in respect of the property at Somalapura Village, Nittur Hobli,
Gubbi Taluk, wherein in respect of the mango trees, the First
Appellate Court considered Rs.1,01,055/- per mango tree. The
learned counsel referring this judgment would contend that in
the present case only Rs.29,000/- and odd was given.
28. The learned counsel also relies upon the judgment of
the Apex Court in the case of AMBYA KALYA MHATRE (DEAD)
THROUGH LRS. AND OTHERS v. STATE OF MAHARASHTRA
40
reported in (2011) 9 SCC 325, wherein discussion is made with
regard to Section 23 of the said Act, compensation and
determination of valuation of land and trees standing thereon
separately considered. It is held that, where land value has
been determined with reference to sale statistics or
compensation awarded for a nearby vacant land, then
necessarily, trees will have to be valued separately. The
determination of market value was not with reference to yield
nor was it with reference to value of any orchard but was with
reference to vacant agricultural land. Hence, value of trees had
to be added to value of land.
29. The learned counsel also relied upon the judgment of
the Apex Court in the case of AMBICA QUARRY WORKS v.
STATE OF GUJARAT AND OTHERS reported in (1987) 1 SCC
213, wherein the Apex Court held that ratio of a decision should
be understood in the fact situation of a particular case. It has
been said long time ago that a case is only an authority for what
it actually decides, and not what logically follows from it and
brought to the notice of this Court paragraph No.18 wherein
discussion was made with regard to the ratio of any decision
must be understood in the background of the facts of that case.
41
30. The learned counsel also relied upon the Apex Court
judgment in the case of BHAVNAGAR UNIVERSITY v.
PALITANA SUGAR MILL (P) LTD. AND OTHERS reported in
(2003) 2 SCC 111 and brought to the notice of this Court
paragraph No.59, wherein it is held that a decision, as is well
known, is an authority for which it is decided and not what can
logically be deduced therefrom. It is also well settled that a little
difference in facts or additional facts may make a lot of
difference in the precedential value of a decision and also
discussed Article 300A right to user of own property. Restriction
on except in a manner provided under the statute, cannot be
presumed.
31. Having heard the learned counsel for the appellant
and the learned counsel for the respondent and also considering
the principles laid in the judgments referred supra, the points
that arise for the consideration of this Court are:
(i) Whether the Reference Court committed an
error in enhancing the compensation in respect
of mango trees?
(ii) Whether the Reference Court committed an
error in making the calculation in the decree
42
12% interest on the additional market value
and on solatium?
(iii) Whether the appellants have made out a
ground to invoke Order 41 Rule 27 of CPC to
receive the evidence as contended in the
respective applications?
(iv) What order?
Point No.3
32. This Court would like to consider Point No.3 with
regard to receiving of an additional evidence since the appellant
has filed an application under Order 41 Rule 27 of CPC wherein
produced the documents of award of the respondent No.2 dated
18.09.2012 and valuation report of the Horticulture Department,
valuing, inter alia, the trees on the lands of respondent No.1-
owner. It is contended in the application that Reference Court
has not had the opportunity to go through the award of the Land
Acquisition Officer and on perusal of the award of the Land
Acquisition Officer it would reveal that the trees on the lands of
the claimant were inspected by the Senior Assistant Director,
Horticultural department and other officials, who have inspected
the trees, ascertained their approximate age and yield and have
given value to each tree and in the earlier award, discussed the
43
same and Reference Court not having the benefit of going
through the award, has passed the impugned order without
taking reference of the award dated 18.09.2012. It is also
contended that the trees on the lands of the claimant have been
valued by the Senior Officials of the Horticulture department.
This report was not produced before the Reference Court due to
the non-availability of the same with the appellant during the
course of evidence and these documents are necessary in the
matter.
33. The appellant also filed another application under
Order 41 Rule 27 of CPC producing the RTC extract wherein it is
stated that as on the date of preliminary notification, in the
column of RTC, no such crop was mentioned and only
subsequently crops are mentioned and same has been managed.
The said application has been disputed by the counsel for the
respondent by filing statement of objections contending that it is
not in dispute that joint inspection was conducted and prepared
Janti Tapasana Patti and along with the statement of objections,
same is produced as document No.1. It is also contended that
the said Joint Measurement report was produced as Ex.P3 before
44
the Reference Court and now cannot contradict the same and
also contend that in the final notification, compensation has been
paid to the trees and same is shown in the separate column and
for the purpose of assessment of land revenue, the revenue
entries would be made for non-existence of an entry with regard
to the crops is not a conclusive proof. It is also contend that
possession notice was issued on 28.11.2011 and possession was
taken in the month of December, 2011.
34. Having perused the application and also the
documents which have been produced, no dispute with regard to
the fact that award was passed by the SLO on 18.09.2012 and
also not in dispute that Ex.P3 was marked before the Trial Court
and the same is a joint measurement report wherein existence
of trees has been mentioned. The counsel for the appellant not
seriously dispute the fact that Janti Tapasana Patti was prepared
and they are signatory to those documents and the same is done
by the Horticulture Officer, Senior Assistant, Deputy Director,
Horticulture who were personally present at the time of
conducting the inspection and when the document at Ex.P3 is
marked before the Reference Court i.e., Joint Measurement
45
Report, receiving of additional documents does not arise and the
same is not in respect of germane issues involved between the
parties when the concerned authorities have conducted the land
survey and filed Janti Tapasana Patti and now cannot approbate
and reprobate as contended by the respondent counsel when
they are party to the joint inspection and preparing of joint
measurement report and also in the Joint Tapasana Patti,
existence of trees also mentioned and now, cannot rely on the
entries on the RTC and same is not a conclusive proof as
contended by the respondent counsel. Before taking the
possession and issuance of notice in the month of November,
2011, joint measurement report was prepared and produced and
same is marked as Ex.P3 and that itself is enough to consider
the existence of mango trees and compensation also has been
paid to the trees and same is shown in a separate column in the
final notification and now they cannot contend that same is
contrary to the material available on record referring no entry in
the RTC for the said period but subsequently, existence of trees
also mentioned and compensation also assessed by the SLO both
in respect of land as well as tree and these documents will not
come to the aid of the appellant to decide the issue involved and
46
there is no any germane issues with regard to the said fact when
already admitted the existence of land and trees attached to the
land and hence, question of receiving additional evidence does
not arise as sought in the respective applications. Hence, these
applications deserve to be dismissed. Hence, I answer Point
No.3 accordingly.
Point No.1:
35. This Court would like to refer Point No.1 i.e., whether
the Reference Court committed an error in enhancing the
compensation in respect of mango trees. This Court already
considered the factual aspects that there were existence of
Mango trees in some of the lands and challenge is also made in
respect of enhancement of compensation in respect of mange
trees in M.F.A.Nos.6332/2021, 6333/2021, 6343/2021,
6369/2021, 6370/2021, 6371/2021 and 6374/2021 and
common ground was urged in all these appeals that
enhancement of compensation in respect of the mango trees is
erroneous.
36. It is not in dispute that land value is fixed based on
sales statistics method and no challenge to the same. It is also
47
not in dispute that in respect of mange trees are concerned,
compensation was determined. It is also important to note that
value of the tree is fixed based on the inspection report of the
Horticulture department and also the judgment and decree and
also the award passed by the SLO and mango trees are also
taken note of and same is not in dispute. But the counsel for the
appellant would vehemently contend that SLO considered as
Naati mango but Reference Court determined the same as
Badami tree and awarded an amount of Rs.29,125/- per mango
tree. The above value is fixed based on the net yield income
capitalization method and the mango trees are considered as
Badami mango but no evidence is placed before the Court with
regard to the said type of mango trees. It is contended that the
Reference Court has not considered the award passed by the
SLO on the trees and SLO has passed the award based on the
inspection report of the Horticulture department. The land owner
has not produced a single document before the Reference Court
to show the yielding of the mango trees. The Reference Court
has also observed that land owner has not produced a document
to prove his case but on assumption and presumption has
48
enhanced the compensation on the mango trees and no material
with regard to show that trees are Badami mango trees.
37. The counsel in support of his arguments also
referring the judgment of the Apex Court contend that
compensation is given on the basis of yield capitalization
method, then the question of granting compensation separately
for land or trees does not arise. The Court has granted
compensation on trees based on the yield capitalization method,
therefore, the compensation granted by the Reference Court
does not survive. The counsel also relies upon the judgment of
GURCHARAN SINGH‘s case referred supra.
38. On the other hand, the counsel for the respondent
would vehemently contend that the Trial Court has taken note of
the factual aspects of the case and no dispute with regard to the
fact that there were mango trees on the acquired land and the
counsel also brought to notice of this Court to paragraph 23 of
the judgment of the Trial Court wherein taken note of the fact
that in order to prove the price of the mangoes, has produced a
document/letter issued by the Senior Assistant Director,
Department of Horticulture, Tarikere dated 04.10.2016 under
49
Ex.P1. In the said document, it is clearly mentioned that the
mango trees would give fruits for a period of 70-80 years and
each tree would give about 50 to 300 kgs of mangoes per year
and the said document is a public document issued by a public
servant and hence, it has got initial presumptive value under
law. It is also important to note that said document was marked
without any objections to rebut the contents of this document
are incorrect. It is observed that the respondent has not placed
any document nor examined any witness. Therefore, there is no
bar and impediment to rely upon this document. Having taken
note of the said fact into consideration, life of the mango tree as
well as the yield were taken note of and even variation in the
atmosphere and nature of the tree and quantity of mango and
an average of 125 kgs. of mangoes per tree is considered per
year and same is justifiable taking into note of the said
documents and so also discussed with regard to the applicability
of multiplier in respect of the fruit-bearing trees and taken note
of the different judgments and particularly, in the case of SHAIK
IMAMBI referred supra wherein consistent view taken by the
Court holding that multiplier should be 10 and taking note of the
said fact into consideration also apart from that price of mangoes
50
is concerned, considered the letter issued by the Executive
Manager, HOPCOMS, Lalbhag, Bengaluru and same is discussed
in paragraph 25 of the judgment which was obtained by the
petitioner as per the Right to Information Act and said document
also marked without objection and now, the appellant cannot
contend that no opportunity was given and same is also a public
document and it has initial presumptive value and even rightly
taken note of year of the preliminary notification i.e., 2010-11
notification and considered the same as relevant year and price
for each kilogram of mango was taken as 46.61 and considered
the same as 125 kg of mangoes per tree and calculated the
same in paragraph 26 and arrived for consideration of
Rs.29,125/- per tree. No doubt, there is no any description of
the tree whether it is a Badami tree or a Naati. The very
contention of the appellant that it was a Naati and the Trial Court
also having taken note of the value of the tree, awarded the
same. It is also important to note that the Trial Court not
passed the order blindly and taken note of relevant multiplier
and also the price of the particular year and the said letter also
issued by the competent authority.
51
39. The counsel for the respondent also brought to
notice of this Court the order passed in MSA No.94/2016 wherein
per tree considered as Rs.1,01,055/- in respect of mango trees
situated within the limits of Nittur hobli and even the First
Appellate Court considered the said value and same has been
considered by this Court. The judgment relied upon by the
counsel for the respondent is also very clear that a decision as is
well known as an authority for which it is decided and not what
can logically be deduced therefore, a little difference in facts or
additional facts may make a lot of difference in the precedential
value of a decision as held in BHAVANAGAR UNIVERSITY’s
case referred supra.
40. When the document of Government Notification was
relied upon by the Reference Court, the very contention of the
appellant counsel that the Reference Court committed an error
enhancing compensation in respect of mango trees is not
acceptable and also valuation taken particularly taking into note
of the Government Notification to the reference of preliminary
notification year and actual price by the Horticulture department
and multiplier also applied taking into note of yield report and
52
not taken note of maximum claim of yield but taken average of
125 kg per tree and the same would be from 50 to 300 kg in a
particular tree and when average also taken, the appellant
cannot contend that same is exorbitant and even in the absence
of fact that whether it is a Naati or Badami mango, there is no
any material to comes to the conclusion that which type of
mangoes were grown except stating that mango trees are in the
land and joint report also does not disclose the nature of the tree
that whether it is Badami mango tree or it is Naati mango tree
and in order to prove that it was Naati tree also, no material and
in order to comes to the conclusion that it was Badami also, no
material and Reference Court taken note of average method and
also the yield capitalisation method and taking note of the same,
awarded the compensation and same cannot be contend that
same is an exorbitant amount. Accordingly, this point is
answered accordingly.
Point No.2:
41. Point No.2 is that whether the Reference Court
committed an error in making the calculation in the decree and
whether 12% on the additional market value cannot be granted
on solatium and it should be only on market value as contended
53by the appellants and committed an error in making incorrect
calculation. The main contention of the counsel for the appellant
in his argument contends that the method adopted for
calculation of solatium and additional market value is incorrect.
The counsel also relied upon the judgment in the case of
AMARJIT SINGH‘s case referred supra wherein it is held that
solatium cannot be granted on trees and structures on the land.
The counsel and also contend that calculation arrived by the
Reference Court in the decree is incorrect. 12% additional
market value cannot be granted on solatium. It should be only
market value as held in the case of RAMACHANDRA referred
supra and also brought to notice of this Court an observation
made in page No.42 that the respondent in the cross
examination or arguments have not disputed that the claimant
had grown the mango trees in the land of the petitioner as on
the date of the acquisition. The counsel also would vehemently
contend that the judgment of the Apex Court is very clear that
the plaintiff has to prove his case and not depend up on the
defendant weakness to prove his case and also brought to notice
of this Court the discussion made that the respondent have not
examined any witness nor produced any documents before the
54
Court with regard to the nature or kind of mango trees and
referring the judgment in the case of HINDUSTAN FOREST
COMPANY referred supra contend that the onus is on the
plaintiff to positively establish his case on the basis of the
material available and it cannot rely on the weakness and also
relied upon the judgment of RANGAMMAL‘s case referred
supra.
42. The counsel for the appellant also relied upon the
case of RAM KUMARI DEVI referred supra with regard to the
burden on the claimant to prove the case and the counsel also
relied upon the case of SIDAPPA OMANNA TUMARI referred
supra referring paragraphs 7 and 22 and so also referring
paragraph 3 of GURCHARAN SINGH‘s case referred supra and
also referring paragraph 56 of MALLA ATCHINAIDU‘s case
referred supra wherein it is held that the Court has no power to
value the trees separately and award on both the value of the
land and also the value of the trees as per the decision of
GURCHARAN SINGH‘s case. The counsel also referred
paragraph 14 of the judgment in the case of BHUPENDRA
RAMDHAN PAWAR referred supra wherein also GURCHARAN
SINGH‘s case was referred stating that it is settled law that the
55
Collector or the court who determines the compensation for the
land as well as fruit-bearing trees cannot determine them
separately. The counsel also brought to notice of this Court the
judgment in the case of AMARJIT SINGH referred supra
wherein discussion was made with regard to Section 23 of the
Land Acquisition Act and in paragraph 14, it is held that the
learned counsel for the respondents submitted that as this Court
has treated additional amount under Section 23(1-A) as part of
the market value, additional amount payable under Section
23(1-A) of the 1894 Act is neither interest nor solatium. There is
no logic in the contention as the decision in CIT vs
GHANSHYAM (HUF) reported in (2009) 8 SCC 412 case
nowhere holds that solatium is part of market value nor holds
that additional amount under Section 23(1-A) is payable on the
solatium amount. In paragraph 16 of the judgment it is held
that the decision clearly holds that additional amount is
awardable only against the market value and not solatium.
43. The learned counsel for respondent No.1 as against
the contention of the counsel for the appellant, relies upon
several judgments and particularly, the judgment in the case of
SUNDER referred supra and the said judgment is a Larger
56
Bench judgment consisting of five Judges and in the said
judgment discussed in detail regarding Section 34 of Land
Acquisition Act and proviso to Section 28, 23(1), (1-A) and (2),
31(1) and 26 with regard to interest under Section 34 and 28
and also held that it is payable on solatium, amount awarded
and held that means the aggregate amount of compensation
calculated in accordance with provisions of all the sub-sections of
Section 23 and hence, includes solatium. It is also held that
intention of legislature is to ensure that the amount calculated
under Section 23 reaches the person concerned at the time of
passing of award or of taking over possession of the land, any
delay in the making of such payment, entitles the person to
receive interest on whole amount including the solatium. It is
also important to note that Section 23(2) also discussed in this
judgment regarding amount awarded “in consideration of the
compulsory nature of the acquisition” and held, is qualitatively
different from and so cannot be equated with damages on
account of “any disinclination of the person to part with the land
acquired”.
44. In this Constitutional Bench judgment, not only
discussed with regard to the provisions of Land Acquisition Act
57
under 28, 23(1), (1-A) and (2), 31(1) and 26 and categorically
held that interest is payable on solatium also and hence, the
very contention of the appellant counsel cannot be accepted.
Even Sections 23 and 24 also discussed in detail and also
admittedly the solatium is payable only in respect of compulsory
nature of the acquisition of property and same is also not
damages. It is also important to note that the Apex Court in this
judgment particularly taking into note of Section 23(1), (1-A)
and (2) held that it does not say that the award should refer only
to amounts awarded under sub-section (1) of Section 23 and it
only stipulates that reasons or grounds must be specified where
amounts have been awarded under any of the clauses of sub-
Section (1). There is no need for such a stipulation in respect of
amounts awarded under sub-sections (1-A) and (2) as such
amounts are only the logical outcome or concomitant adjuncts of
the calculation of the total amount indicated in sub-section (1).
45. The very contention that solatium under sub-section
(2) is not part of the awarded amount for the purposes of grant
of interest has been rejected and hence, the very contention of
the appellant counsel cannot be accepted. It is held that
question of payment of interest would arise only when the
58
compensation is not paid or deposited on or before the date of
taking possession of the land. When the Court is of the opinion
that the Collector should have awarded a larger sum as
compensation the Court has to direct the Collector to pay
interest on such excess amount. The rate of interest is on a par
with the rate indicated in Section 34. It is further held that
when compensation is regarded as a statutory obligation the
academic definitions need not detract the Courts in fathoming
the real import of it. The exercise can be done with the aid of
the provisions in the statutes. So what the Court, in the context
of land acquisition, has to decide is how the Act has designed the
compensation vis-à-vis the liability to pay interest. In this
judgment also elaborate discussion was made with regard to
Sections 28, 23(1), (1-A) and (2), 31(1) and 26 of the Land
Acquisition Act and also categorically held that no judicial
exercise is required to quantify the sums mentioned in sub-
section (1-A) or sub-section (2) because the section itself
specifies the percentage to be worked out for the purpose of
adding to the total amount arrived at under sub-section (1).
Otherwise Section 26 is not intended to show that the
compensation awarded would be bereft of the additional amount
59
and the solatium envisaged under sub-section (1-A) or sub-
section (2). It is further held that this can be clearly discerned
from the commencing words of Section 26 itself. It is held that
even award under this Part shall be in writing signed by the
Judge. What is referred to therein is Part III of the Act which
comprises of a fasciculus of twelve provisions starting with
Section 18 and ending with Section 28-A of the Act. It is further
held that it can be no doubt that all the three heads specified in
the three sub-sections in Section 23 are the sums to be awarded
by the Court. Hence, the words every award under this Part
cannot be treated as the award after delinking the amounts
awarded under sub-section (1-A) or sub-section (2) of Section
23. What is intended under Section 23(2) is additional to the
market value of the land and in consideration of the compulsory
nature of the acquisition. But it cannot be equated with any
damage caused on account of any disinclination of the person to
part with the land acquired.
46. Having considered the judgment of the Larger Bench
of the Apex Court referred supra, no doubt, the counsel referring
other judgments held with regard to interest payable on solatium
as well as additional market value is not permitted and
60
Constitutional Bench judgment will prevail and not the other
judgments.
47. The other contention that trees and land cannot be
separately considered as per the judgment referred supra and
this Court would like to rely upon it is settled law that if the land
is attached to any trees or planted or grown, same has to be
taken note of while granting the compensation separately or
otherwise it would cause loss to the person who grown the tree
and converted the land as income from the trees. In the case
of SHAIK IMAMBI referred supra, it is held that valuation of
yield from fruit-bearing trees and also discussed with regard to
the appropriate multiplier wherein also adopted a multiplier of 14
with regard to annual income of Rs.80/- per lime tree and also
discussion was made that having regard to consistent view taken
by Supreme Court, High Court was right and special
circumstances for higher multiplier not made out and High
Court’s order does not call for interference and further discussion
was made with regard to the capitalization method for valuation
of yield from fruit-bearing trees and also held that it would be
appropriate to take average thereof as annual income per tree.
61
It is also important to take note of the fact that the Court has to
take note of the legislative intent in view of KARIGOWDA‘s case
referred supra while determining the fair market value of the
land and also application of agricultural yield method in case of
valuable cash crops, liberal approach with some guesswork,
when it is permissible has been discussed in the judgment. It is
further held that what is required to be assessed is the land and
its existing potentiality alone as on the date of acquisition. The
compensation which is payable to the claimants is in relation to
the acquired land, the standing crops or trees and what they
earn from the agricultural crops or fruits or trees on the
agricultural land. The Apex Court also discussed in this
judgment with regard to Sections 23 and 24 of the Act,
permissible methodology that can be adopted by the Court and
no straitjacket formula can be applied to determine the value of
the acquired land, Courts exercise discretion in adopting any one
of he methods of larger acceptance like (i) sale statistics
method, (ii) capitalization of net income method, and (iii)
agricultural yield basis method, depending upon facts and
circumstances of each case. Hence, very contention that sales
statistics method would have been only source cannot be
62
accepted. Even Apex Court held that capitalization of net income
method would also can be considered and same is discretion of
the Court adopting any one of the method particularly
agricultural yield basis method hence, the very contention of the
counsel for the appellant that only land value has to be
considered and not the fruits-bearing trees cannot be considered
separately cannot be accepted.
48. This Court already even referred the Judgment
regarding consideration of assessing the value of the mango tree
and higher the compensation of Rs.1,00,000/- was awarded and
the same is also based on the judgment passed in the regular
appeal and same was considered and given in the judgment of
AMBYA KALYA MHATRE referred supra, wherein the Apex
Court also stated that where land value has been determined
with reference to sale statistics or compensation awarded for a
nearby vacant land, then necessarily, trees will have to be
valued separately i.e., land with fruit-bearing trees, then there is
no question of again adding of value of trees if value of the land
has been determined on the basis of sales statistics or
compensation awarded for an orchard and further held that if
63
market value has been determined by capitalizing income with
reference to yield, then also question of making any addition
either for the land or for trees separately does not arise. Further
discussed that determination of market value was not with
reference to yield nor was it with reference to value of any
orchard but was with reference to vacant agricultural land and
hence, value of trees had to be added to value of land. But in the
case on hand, the method adopted is capitalisation of yield
method and also the property is a dry land. When such
materials are considered by the Reference Court, the very
contention of the appellant counsel that Reference Court has
committed an error in computing additional market value,
solatium and interest on the same mainly contending that the
said method adopted by the Reference Court is erroneous cannot
be accepted in view of the Constitutional Bench judgment
referred supra and Constitutional Bench judgment will prevail
over the other judgments rendered by lesser Judges and hence,
there is no any force in the contention of the appellant counsel
that it requires interference. Hence, I answer Point No.2 as
negative.
64
Point No.4:
49. In view of the discussions made above, I pass the
following:
ORDER
The miscellaneous first appeals are dismissed.
Sd/-
(H.P. SANDESH)
JUDGEMD/SN
