SMT G RATHNAVATHI RAO vs. THE LAND ACQUISITION OFFICER

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 14th DAY OF NOVEMBER, 2013 BEFORE THE HON’BLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION Nos.22762 OF 2011 AND 23028-23032 OF 2011 (LA-RES) BETWEEN: 1. Smt. G. Rathnavathi Rao,

Aged 61 years,

Wife of Late G. Keshava Rao,

Aged 41 years,

Son of Late G. Keshava Rao,

Aged 39 years,

Daughter of Late G. Keshava Rao,

Aged 38 years,

Son of Late G. Keshava Rao,

Aged 35 years,

Son of Late G. Keshava Rao,

2 6. Smt. N. Sudhamani Hebbar,

Aged 30 years,

Daughter of Late G. Keshava Rao,

All are residing at D.No.2-1-90,

Gundibail, PO Kunjibettu,

Udupi – 576 102. …PETITIONERS (By Shri. S.K. Acharya , Advocate)

AND:

And Assistant Commissioner,

Kundapura Sub Division,

Kundapura,

Udupi District.

Aged about 56 years,

Son of Kalappa Shetty,

Residing at D.No.2-1-97,

Gundibail,

Post Kunjibettu,

Udupi 576 102. …RESPONDENTS (By Shri. R.B. Satyanarayana Singh, Advocate for Respondent No.1 Shri. S.R. Hegde Hudlamane, Advocate for Respondent No.2 )

*****

3 These Writ Petitions filed under Articles 226 and 227 of the Constitution of India praying to quash the endorsement dated 16.5.2011 issued by the respondent no.1 vide Annexure- H and etc;

These Writ Petitions coming on for Preliminary Hearing in ‘B’ Group this day, the court made the following:

O R D E R

Heard the learned counsel for the petitioners and the learned Counsel for the respondents.

It is the case of the petitioners that one Keshav Rao, the husband of petitioner no.1 and father of petitioners 2 to 6 was said to be the owner of land bearing Survey No.137/20A of Shivalli village, Udupi District. The same had been acquired by him in court auction sale held on 26.9.1972 and by virtue of the certificate of sale issued by the concerned court, namely, the Principal Munsiff Court, Udupi in Execution Case No.60/1971

4 in O.S.No.185/1964. The said Keshav Rao had taken delivery of the said land and was in enjoyment of the same and after his death, the petitioners, as legal representatives, have succeeded to his estate and the said lands said to have come into their possession. Respondent No.2, according to the petitioner, was aware of this circumstance. It then transpires that respondent no.1 had initiated acquisition proceedings for the purpose of widening the Kalsanka-Gundibail-Ambagilu road, Udupi Town, Udupi district and a preliminary notification to acquire 6.25 cents out of 53 cents in the said land was issued dated 31.5.2010. The petitioners were notified of the said proceedings and as interested persons, had filed objections that they are the absolute owners of the land which is proposed to be acquired. And after further proceedings, a public notice was issued in terms of Section 9(1) and Section 10 of the Land Acquisition Act, 1894 (Hereinafter referred to as the ‘LA Act’, for brevity) insofar as the amount of compensation was concerned. The petitioners found that

5 respondent no.2 had laid claim to the compensation amount and therefore had raised an objection to the claim insofar as the house property that was situated in the acquired portion of the land. The objection statement in this regard is dated 24.6.2010. The petitioners had produced material to enable respondent no.1 to determine the market value of the building situated in that portion of the land. However, the same was overlooked and an award, styled as consent award, without any inquiry being held was passed in favour of respondent no.2. The petitioners, therefore, being highly aggrieved, had filed their objections to the award in terms of Section 18 of the LA Act, seeking reference of the dispute to the competent civil court and to deposit the amount in the civil court and to afford an opportunity to the petitioners to establish their claim insofar as the compensation amount is concerned. It transpires that the said objections were however filed subsequent to the disbursement of the compensation amount in favour of the petitioners and an indemnity bond having been executed by the

6 petitioners. In any event, insofar as the objections filed by the petitioners are concerned, the same was not referred to the competent civil court as requested. Therefore, the petitioner had reiterated the objections filed and had pointed out that there was a dispute pending before this court in writ proceedings between the petitioners and respondent no.2 and that the claim of respondent no.2 could not be acted upon and it is all the more necessary to have referred the matter to a civil court for adjudication. However, it transpires that respondent no.1 having disbursed the compensation amount in favour of respondent no.2, did not act on the objections so filed. It is in that background that the present writ petition is filed.

7 the acquisition proceedings, the same was subject matter of inquiry and the petitioner having filed his objections on the footing that the property belonged to him, had produced sale certificates, under which the land was claimed. The Land Acquisition Officer had passed an award in favour of the second respondent and he had rejected the claim of the petitioner on the footing that the order of the Land tribunal had attained finality and therefore, the same could not be ignored in considering the claim of the second respondent and notwithstanding the sale certificate said to have been produced, the Land Acquisition Officer having held in favour of respondent no.2, the same could not be challenged.

However, it is also noticed that the petitioner had challenged the orders passed by the land Tribunal in favour of the second respondent and the said challenge had resulted in the petitioner having failed even in the writ appeal. Therefore, the award passed in favour of the second respondent by the

8 Land Tribunal having attained finality, the same has been given effect to in disbursing the compensation amount, overlooking the sale certificate produced by the petitioner.

9 second respondent. The Land Acquisition Officer, on production of the relevant documents by both the parties, was in a position to address the respective claims on the face of it, as it was based on the concluded proceedings and therefore, there was no warrant for reference of the matter for adjudication before the civil court and which, in his discretion, has not been so referred. Hence there is no illegality whatsoever in the matter and since respondent no.2 has clearly demonstrated that the compensation was to be paid in respect of the land and building, which was subject matter of the grant of occupancy rights by the Tribunal and compensation having been computed with reference to the land and building, the respondent no.2 was certainly entitled to the same in law and the rival claim set up by the petitioners not having been established, as found by the Land Acquisition Officer, there is no warrant for interference by this court and therefore seeks dismissal of the petition.

10 5. The learned Counsel for the petitioner, by way of reply, would point out that the repeated reference to the award of the Land Tribunal and the grant of occupancy rights is without reference to the basic ingredient of an inquiry for grant of occupancy rights, which can only relate to the agricultural land, in respect of which, the said occupancy rights are claimed and it cannot relate to appurtenant buildings. Since the petitioners are claiming under Keshav Rao, who had purchased the land and buildings in the land bearing relevant survey number, the claim for occupancy rights in respect of the buildings along with the land was not tenable, which is the circumstance that has been completely overlooked by the Land Acquisition Officer in placing reliance on the grant of occupancy rights in favour of the respondent. The learned Counsel would point out that the petitioners do not lay claim to compensation relatable to the land at all and it is only in respect of the value apportioned to the building, in respect of which, the petitioners are laying claim. This aspect of the matter is

11 further evident from the fact that Form No.7 clearly indicates that the extent over which the occupancy rights is claimed, is only to the extent of 26½ guntas whereas occupancy rights have been granted in respect of 30 cents, which apparently includes the building as well and therefore, there was an error apparent in the building also having been included in favour of the respondent and compensation having been paid on that basis, is clearly a disputed area, which the Land Acquisition Officer could not have ignored. Therefore, an objection having been filed pursuant to the award passed in favour of the respondent with regard to the said claim, it was incumbent on the Land Acquisition Officer, who was duty bound, to refer the dispute for adjudication before a competent civil court and since there is failure in doing so, it has resulted in grave miscarriage of justice. Therefore, the learned Counsel seeks interference even at this stage while making it clear that the claim of the petitioners is only in respect of the building portion of the land and not the cultivable land, in respect of which they did not

12 seek to press any claim and hence seeks that the petition be allowed.

13 the competent civil court. Therefore, at that stage, an irregularity has occurred in the Land Acquisition Officer not having referred the matter for adjudication before the civil court. Therefore, it is in the interest of justice that the petition is to be allowed. It is also to be noticed that respondent no.2 having filed an indemnity bond in receiving the amount of compensation is held bound by the same pending further adjudication.

14 period of six months from the date of receipt of the reference. In order to ensure that the indemnity bond furnished by respondent no.2 is enforceable, it would be prudent to direct respondent no.2 to deposit a portion of the compensation amount that has been received, which may be attributable to its value of the building, which the petitioner now claims and though there was a value of Rs.9,00,000/- attributed to the building, the learned Counsel for respondent no.2 would point out that this did not include the income tax dues and other charges that were payable and therefore, respondent no.2 cannot be called upon to deposit the entire amount of Rs.9,00,000/- and in any event, the value of the building is yet to be determined having regard to the development that has now taken place and therefore, requests the court to reconsider the direction to deposit the entire sum of Rs.9,00,000/-. However, in the opinion of this court, a sum of Rs.5,00,000/- should be the adequate measure to safeguard the interest of the petitioners. Accordingly, the respondent shall, pending

15 disposal of the reference, pursuant to this remand, deposit a sum of Rs.5,00,000/- before the reference court subject to the result of the reference.

Sd/-

JUDGE nv