SRI. M.V.SUBBA RAO S/O RATTAYYA AND ANR vs. LAND ACQUISITION OFFICER AND ANR

- - WA Nos.50311-50312/2013 1 IN THE HIGH COURT OF KARNATAKA, GULBARGA BENCH DATED THIS THE 30TH DAY OF OCTOBER, 2013 PRESENT THE HON'BLE MR.JUSTICE RAM MOHAN REDDY AND THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA WRIT APPEAL Nos.50311-50312/2013 (LA-RES) BETWEEN: 1. SRI. M.V.SUBBA RAO S/O RATTAYYA AGE: 81 YEARS 2. SRI. M.M.G.PRASAD S/O M.V.SUBBA RAO AGE: 55 YEARS BOTH ARE R/O SINGAPORE VILLAGE TQ. SINDHANOOR, DIST. RAICHUR ... APPELLANTS (BY SRI AVINASH A UPLOANKAR, ADVOCATE) AND: 1. LAND ACQUISITION OFFICER/ASST. COMMISSIONER, LINGASUGUR DIST. RAICHUR-584101 2. EXECUTIVE ENGINEER NO.2 CANAL DIVISION, WADDAR HUTTI TQ. GANGAVATHI DIST. KOPPAL-583231 ... RESPONDENTS (BY SRI.SHIVAKUMAR TENGLI, AGA)

- - WA Nos.50311-50312/2013 2 THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO, CALL FOR RECORDS AND SET ASIDE THE ORDER DATED 28.02.2013 PASSED IN W.P.No.753/2008 (LA-RES) BY THE SINGLE JUDGE OF THIS HON'BLE COURT, IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS COMING ON FOR ORDERS THIS DAY, RAM MOHAN REDDY J., DELIVERED THE FOLLOWING: JUDGMENT Accepting the cause shown, delay of 54 days in filing the appeal is condoned, I.A.No.3/2013 is accordingly allowed. 2. 02 acres 12 guntas of land, possession of which when taken over on 06.11.1960 by the respondent No.2 - Executive Engineer, Canal Division, for Ayacut Road, from RG Road to Kakkargol village, was followed by issue of a preliminary notification on 26.04.1993, under Section 4(1) of Land Acquisition Act, 1894 (for short the ‘Act’), concluding in an award dated 15.02.1995 of the Land Acquisition Officer, fixing the market value of the land at Rs.15,000/- per acre. Appellants aggrieved by the determination of the market value sought reference

- - WA Nos.50311-50312/2013 3 under Section 18(1) of the Act, whence, the reference Court enhanced the market value to Rs.73,000/- per acre and entitled the appellants to solatium at 30%, interest at 9% for one year from the date of taking possession and thereafterwards, at 15% up to the date of payment. The State did not challenge the award hence, was final and binding. The State having not paid the compensation, led to filing execution petition whence a deposit of Rs.46,63,205/- was made after deducting Rs.5,88,152/- towards Income Tax, totaling to Rs.52,51,357/- and undertook to pay the balance of Rs.14,93,934/- within a short period. 3. The executing Court having noticed the objections filed by the State over the claim of interest from the date of dispossession i.e. in the year 1960 declined that relief on the premise that interest was payable from the date of 4(1) notification, in the light of several reported opinions of the Court and permitted the

- - WA Nos.50311-50312/2013 4 State to recover the excess amount paid. That order when carried in W.P.No.753/2008, the learned Single Judge by order 28.02.2013 dismissed the petition. Hence, these intra Court appeals. 4. There can be no dispute over the proposition that under the Act, interest on compensation is payable from the date of preliminary notification or from the date of taking possession of the lands acquired if, subsequent to 4(1) notification. If the land looser is dispossessed of the acquired land prior to the issue of 4(1) notification, are entitled to claim damages for use and occupation as held by the Apex Court in the case of R.L.JAIN vs. D.D.A. AND OTHERS1. The Apex Court in REVENUE DIVISIONAL OFFICER, KARNOOL DISTRICT Vs. M.RAMAKRISHNA REDDY (DEAD) BY Lrs2, while noticing the decision in R.L. Jain’s case observed thus: “15. It is clear that even if the landowner may not be entitled to interest from the date of

1 AIR 2004 SC 1904

- - WA Nos.50311-50312/2013 5 possession but only from the date of preliminary notification, he will be entitled to compensation for wrongful use and occupation from the date of actual dispossession till the date of notification under Section 4(1) of the Act. In this case, there is already a clear finding that the loss of income per year is Rs.94,500/- from the acquired lands. Therefore, instead of relegating the parties for a further enquiry in regard to damages for wrongful use and occupation from the date of dispossession to the date of preliminary notification, we proceed to determine the same at Rs.94,500/- per annum for the period from 08.06.1988 to 27.08.1993 (which rounded off to five years) with interest at 6% per annum from 30.06.1994 to the date of payment.” 5. In Madishetti Bala Ramul (D) by LRs –Vs- Land Acquisition Officer3 the Apex Court having noticed that the land losers were dispossessed much prior to the issue of preliminary notification for acquisition under Section 4 (1) of the Land Acquisition Act observed thus:

2 (2011) 11 SCC 648 3 (2007) 9 SCC 650

- - WA Nos.50311-50312/2013 6 “20. In the peculiar facts and circumstances of the case, although the proper course for us would have to remand the matter back to the Collector to determine the amount of compensation to which the Appellants would be entitled for being remained out of possession since 1979, we are of the opinion that the interest of justice would be met if this appeal is disposed of with a direction that additional interest at 15% per annum on the amount awarded in terms of the award dated 02.01.1999 for the period 16.03.1979 till 22.12.1991, should be granted, which in our opinion, would meet the ends of justice.” 6. During the year 1960 appellants had a fundamental right to immovable property which when taken away by an amendment to the Constitution of India during the year 1976 were entitled to right to compensation under Article 300A. Appellants were dispossessed of the lands in question on 06.11.1960 prior to the constitutional amendment, without recourse to rule of law by the respondent – State and

- - WA Nos.50311-50312/2013 7 its functionaries. Thus, the appellants were deprived of eking out their livelihood from the lands in question, being illiterate agriculturists, perhaps unable to protest against the power of the State in taking possession of the lands. It is only on 26.04.1993 after a lapse of 32 years 5 months from 06.11.1960, that the State issued the preliminary notification under Section 4(1) of the Act following which the Land Acquisition Officer passed an award, which when questioned, the reference Court enhanced the market value and directed payment of interest from 06.11.1960 the date of dispossession. The State did not make the payment nor challenged the award leading to execution proceeding and the deposit as noticed supra. 7. Regard being had to the observations of the Apex Court supra, we think it appropriate, that instead of driving the appellants to a fresh round of litigation to claim damages from the respondent – State and its

- - WA Nos.50311-50312/2013 8 functionaries, for use and occupation of lands acquired, for the period from 06.11.1960 the date of taking possession, up to the date of preliminary notification i.e., 26.04.1993, ends of justice would be met by directing the State to pay interest for the aforesaid period at 15% per annum on the amount awarded in terms of the award dated 06.09.2004 in LAC No.60/2003 of Additional Civil Judge (Sr.Dn.), Raichur, and thereafterwards at 6% per annum on the said amount upto 17.04.2007 the date of deposit before the executing Court. 8. In order to put the controversy at rest, the calculation of the damages is as under: I. a) Market Value as determined by the Reference Court at Rs.73,000/- per acre, for 2 acres 12 guntas Rs.1,67,900/- b) Solatium at 30% Rs.50,370/- c) Additional market value at 12% per annum from the date of 4(1) notification to the date of award (721 days) Rs.39,799/- Total Rs.2,58,069/-

- - WA Nos.50311-50312/2013 9 II. Damages at the rate of 15% per annum on Rs.2,58,069/- from 06.11.1960 to 26.04.1993 (for 32 years 5 months 20 days) Rs.12,57,006/- III. Interest at 6% per annum on Rs.12,57,006/- for the period from 27.04.1993 to 17.04.2007 (for 14 years) Rs.10,55,885/- Total of (II) and (III) Rs.23,12,891/- 9. The appellants have received Rs.46,63,205/-, after deduction of Rs.5,88,152/- at source towards Income Tax. Thus they have received total of Rs.52,51,357/-.

The compensation which the appellants would be entitled to in terms of the award of the Reference Court for the period from the date of 4(1) notification up to the date of payment is Rs.6,22,735/-, which when deducted from out of Rs.52,51,357/-, the appellants are in possession of excess amount of Rs.46,28,622/-. 10. Since the damages is quantified at Rs.23,12,891/-, the appellants would have to refund to the State Rs.23,15,731/- with interest at 6% per annum from 17.04.2007 up to the date of payment.

- - WA Nos.50311-50312/2013 10 11. In the circumstances the appellants are entitled to: a) seek recovery of income tax paid in excess, if any, from the income tax department, which we have no reason to believe if an application is made would not be considered and refund effected within one month from the date of application. b) Appellants are entitled to spread over the compensation/damages of Rs.23,12,891/- for a period of 32 years 5 months. Appeals are accordingly ordered. I.A.No.2/2013 for stay is unnecessary and is accordingly rejected. Sd/- JUDGE Sd/- JUDGE NB*/sdu/swk