1 R IN THE HIGH COURT OF KARNATAKA DHARWAD BEN CH DATED THIS TH E27T H DAY OF OCTOBER2016PRESENT THE H ON’BLE MR. JUSTICE ASH OK B. HINCHI GERI AND THE H ON’BLE MR. JUSTICE P.S.DINESH KUMAR MFA N O.23025/2013 (LAC) C/W. MFA N O.23815/2013 (LAC) IN MF A N O.23025/2013 BETWEEN: THE S PECIAL LAND ACQUISITION OFFICER UPPER KRISHNA PROJ ECT, BA GALKOT ... APPE LLANT. (BY SMT. K .VIDYAVATHI, ADD L. GOVERNMENT ADVOCATE .) AND1. 2 . SHARANABASAPPA S/ O SHIVA PPA YANDIGERI R/O.HIR EGULABAL, TQ: DT: BA GALKOT SHANMUKHAPPA S/O SHIVA PPA YANDIGERI R/O.HIR EGULABAL, TQ: DT: BA GALKOT (BY SRI ANAND R KOLLI , ADV OCATE , F OR C/R1 R2.) ... RES PONDENTS2THIS MISCELLAN EOUS FIRST APPEAL IS FI LED UNDER S ECTION54(
1) OF LAND A CQUISITION A CT, PRAYING T O SET ASIDE THE J UDGMENT AND AWARD DATED0701.2013 PASSED IN LAC NO.44/2008 ON THE FILE OF TH E II ADD L. SENI OR CIVIL J UDGE, BAGALKOT , ETC.,. IN MF A N O.23815/2013 BETWEEN:
1. . 2 . SHARANABASAPPA S/ O SHIVA PPA YANDIGERI , AGE:
49. YEARS , OCC: A GRICULTURE , R/O: HIR EGULABAL, TQ & DIST: BA GALK OT. SHANMUKHAPPA S/O SHIVA PPA YANDIGERI , AGE:
45. YEARS , OCC: A GRICULTURE , R/O: HIR EGULABAL, TQ & DIST: BA GALK OT. (BY SRI ANAND R KOLLI , ADV OCATE .) ... APPE LLANTS. AND THE S PECIAL LAND ACQUISITION OFFICER , UPPER KRISHNA PROJ ECT, BA GALKOT. ... RES PONDENT (BY SMT.K.VIDYAVATHI, ADDL. GOV ERNMENT ADVOCATE .) THIS MISCELLAN EOUS FIRST APPEAL IS FI LED UNDER S ECTION54(
1) OF LAND A CQUISITION A CT, PRAYING T O MODIFY TH E J UDGMENT AND AWARD DATED0701.2013 PASSED IN LAC NO.44/2008 ON THE FILE OF TH E II ADD L. SENI OR CIVIL J UDGE, BAGALKOT , BY ENHAN CING TH E AWARD AMOUNT FROM RS.8,00,000/- PER ACR E AS AGAINST RS .5,75,000/- WITH ALL STATUTORY BENEFITS WITH COSTS, ETC.,. 3 THESE A PPEALS COMING ON FOR FINAL HEARIN G THIS DAY, ASHOK B. HINCHIGERI , J., D ELIVER ED THE FOLLOWING: JUDGMENT
Both these appeals are preferred against the judgment and award, dated 07.01.2013 passed by the Court of II Addl. Senior Civil Judge (Reference Court), Bagalkot, in LAC No.44/2008.
2. MFA No.23025/2013 is filed by the Government. MFA No.23815/2013 is filed by the erstwhile land-owners.
3. The facts of the case in brief are that the lands measuring 14 acres 30 guntas at R.S.No.101 and 7 acres 19 guntas at R.S.No.100 of Hiregulabal Village were acquired for the Upper Krishna Project. In that regard, preliminary notification, dated 21.5.1998 under Section 4(1) of the Land Acquisition Act, 1894 4 (for short, ‘the Act’) and the final notification, dated 20.3.1999 under Section 6(1) of the said Act were published. As the Special Land Acquisition Officer (SLAO for short) passed the consent award on 24.5.2000 giving total compensation of Rs.45,84,584/-. Contending that the awarding of the compensation amounts are meager, the erstwhile land-owners (appellants in MFA No.23815/2013) sought the Reference invoking Section 18 of the said Act. The Reference Court redetermined the market value at Rs.5,75,000/- per acre.
4. Smt.K.Vidyavathi, the learned Additional Government Advocate appearing for the appellant in MFA No.23025/2013 submits that the claimants gave the consent to receive Rs.1,14,000/- per acre, as is evident from the agreement, dated 15.6.1989 (Ex.R.3). She 5 submits that having given their consent to pass the award for the said amounts, they are estopped from contending that the amount is not just and adequate. She submits that they have agreed that there are no fruit bearing trees on the land in question and that, that is why they did not insist for any compensation for the trees. She submits that it is based on their consent that no amounts are awarded towards the pomegranate trees. She denies the claim of the erstwhile owners as to existence of any standing crops. The valuation made towards the land is inclusive of the value of the standing trees also, so contends Smt.Vidyavathi.
5. She relies on the Hon’ble Supreme Court decision in the case of State of Karnataka and another vs. Sangappa Dyavappa Biradar and others reported in AIR2005SC2204to advance the submission that the Reference application is 6 not maintainable when the consent awards are passed. Paragraph No.13 of the said decision readout by her is as follows: and been obtained by legal right such award jurisdiction in consequently the parties. So 13. A right of a landholder to obtain an order of reference would arise only when he has not accepted the award. Once is accepted, no in him survives for claiming a reference to the Civil Court. An agreement between the parties as regard the value of the lands acquired by the State is binding long as such on agreement the consent awards are not set aside in an appropriate proceeding by a court of law having relation thereto, the same remain binding. It is one thing to say that agreements are void or voidable the provisions of the Indian Contract Act having fraud, collusion, etc, or are against public policy but it is another thing to say that without questioning the validity thereof, the Respondents could have maintained their writ petitions. We have noticed hereinbefore that even in the writ petitions, the prayers made by the Respondents were for quashing the order dated 23.8.1999 passed by the Special Land Acquisition Officer and for issuance of a direction upon him to refer the matter to the Civil Court. The in terms of 7 the impugned exercising Court while High its jurisdiction under Article 226 of the Constitution of India, thus, could not have substituted the award passed by the Land Acquisition Officer by reason of judgment. Furthermore, the question as regard the validity of the agreements had not been raised before the High Court. As indicated hereinbefore, the Division Bench of the High Court had also rejected raised on behalf of the Respondents herein to the effect that the agreements did not conform to the requirements of Article 299 of the Constitution of India or had not been drawn up in the prescribed pro forma.” the contention 6. She has also relied on the Division Bench decision of this Court in the case of Suresh D. Bankapur vs. State of Karnataka and others passed in W.A.No.30007/2013 and other connected appeals disposed of on 28.3.2013. Paragraph Nos.24.2 and 31 readout by her as follows:
24. 2. Once the agreement in respect of compensation is arrived at and if the amount the of 8 person interested signs the agreement and accepts the agreed amount as full and final settlement, either under Section 29(2) of KIAD Act or in the course of enquiry under Section 11(2) of the L.A. Act, it becomes final and the acquisition proceedings insofar as such person is concerned, stands concluded/ terminated and it is not open to such person to make an application either under Section 18 of the L.A. Act or to file a Writ Petition under Article 226 of the Constitution of India for seeking the reliefs, as prayed for, in the present petitions.
31. In the result, we have no hesitation in holding that in the event of an agreement under Section 29(2) of the KIAD Act, between the State Government and the person to be compensated, once the agreement is signed and the agreed amount of compensation is paid and accepted without demur/protest, one cannot turn around and seek solatium or interest on the market value unless he seeks a declaration from a Court having the agreement is void or voidable in terms of Indian Contract Act, having been obtained by fraud, collusion, etc. or is against public policy. The writ petition under Article 226 or 227 of the Constitution of India for the reliefs, as sought in the present writ petitions, is not the provisions of the jurisdiction, that 9 maintainable. In the result, all the writ appeals are dismissed with costs.
7. Per contra, Sri A.P.Murari, the learned counsel for the claimant-appellants in M.F.A. No.23815/2013 submits that the claimants have given the consent to pass the award in respect of the land excluding 10–11 acres on which pomegranate trees were grown. He brings to our notice, the letter sent by the claimants on 25.1.2000 (Ex.P.4) in that regard. He submits that the award (Ex.R.1) was passed long after the receipt of the letter dated 25.1.2000 (Ex.P.4). He relies on the JMC report (Ex.P.23), evaluation of pomegranate trees standing on the land at R.S.Nos.100 and 101 (Exs.P.28 and P.29) and Drip Irrigation Certificate (Ex.P.32), in support of his submission that the determination of the market value by the Reference Court is not on the higher side. On the other hand, he 10 would contend that the Reference Court ought to have granted escalation at the rate of 10% p.a., because the documents on the basis of which the redetermination of the market value is done are in respect of th e transaction s which have taken place two years prior to the a cquisition of the lands in question.
8. The question that falls for our consideration is: “Whether a person interested in the land, who had opted for consent award, is entitled to seek reference for enhancement of compensation under Section 18 of the Land Acquisition Act, 1894?.” 9. To answer this question it is necessary to refer to the various judgments of the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of Sangappa Dyavappa Biradar (supra) has held that the applications in terms of Section 18 of the Act were not maintainable where the 11 consent awards are passed. It is further held in the said case that an agreement between the parties as regards the value of the lands acquired by the State is binding on the parties. So long as such agreement and consequently the consent awards are not set aside in appropriate proceedings by the court of law having jurisdiction in relation thereto, the same remains binding. It is one thing to say that the agreements are void or voidable in terms of the provisions of the Contract Act having been obtained by fraud, collusion, etc. or/are against public policy. But it is another thing to say that without questioning the validity thereof, the claimants could have maintained their reference applications. This view is reiterated in the Hon’ble Supreme Court in its latest decision in RANVEER SINGH VS. STATE OF12U.P. THROUGH SECY. & ORS. reported in 2016 SCC ONLINE SC727(CIVIL APPEAL NO.13324 OF2015. It is further held therein that the consent award accepted without protest extinguishes the legal right to maintain a reference for enhancement of compensation, more so, when the land-owners agreed not to seek any enhancement.
10. The Division Bench in the case of THE SPECIAL LAND ACQUISITION OFFICER (CLAIMS), UPPER KRISHNA PROJECT, ALMATTI AND ANOTHER, VS. KRISHNABAI AND OTHERS, reported in 2011(3) Kar.L.J.
95, has expressed the considered view that no reference would lie for enhancement of compensation in respect of consent award. In the case of THE SPECIAL LAND ACQUISITION OFFICER AND ANOTHER VS13LAKSHMANBABU GAYAKWAD AND OTHERS, reported in ILR2006KAR4563it is held that when a person interested in the land has opted for consent award under Section 11(2) of the Land Acquisition Act, he is not entitled to seek any reference for enhancement of compensation under Section 18. The relevant portions of the said decision are extracted hereinbelow : “23.Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxx Under Section 11(2) of the Act, the statute envisages, that the persons interested in the land, at any stage of the proceedings of the Collector, may agree in writing on the matters to be included in the award of the Collector. On receipt of such request, the Deputy Commissioner, without making any further enquiry, may make an award according to the terms of such agreement. Under this Section, a right is conferred on the persons interested in the land to enter into an agreement with the Deputy Commissioner on the matters to be included in the award that may be made by the Deputy Commissioner. By exercising this right, the owner of the lands is authorised to settle with the Deputy Commissioner matters in dispute by mutual concession, to avoid any legal proceedings, but to settle it between themselves by a give 14 interested in the and take agreement. It is a right given to the persons land. By this process, they enter into an agreement for preventing and for putting an end to all further litigations. It is his voluntary act and by this process, he waives all his rights under the Act, to avoid delay in determination of the compensation amount payable to the lands acquired. The Act confers this right on the persons interested in the land. Having agreed in writing on the matters to be included in the that may be passed, and award the authorities having acted as per the agreement, the public trust is estopped from making a claim contrary to the terms of the agreement and insist upon the enforcement of the rights waived in law. A compromise is always bilateral and means a mutual adjustment. According to New Standard Dictionary, a 'compromise' means agreement or adjustment settlement of controversy by mutual concession often involving partial surrender. Therefore, a person who has entered into an agreement voluntarily, mind you, that there is no prohibition in law against waiving of any right under the Act, to settle the matters to be included the Deputy Commissioner, cannot be an "aggrieved person", since he is not unjustly deprived or denied of something, which he would be entitled to obtain under the Act. The Supreme Court in the case of State of Gujarat vs Daya Shamji Bhai (Supra), while considering the issue whether a person interested in the land, who had opted for consent award, whether he could seek reference to the Civil Court under Section 18 of the Act was pleased to observe that "sub-section (2) of Section 11 gives right the award of the for in 15 to the parties to enter into an agreement to receive award compensation awarded under Section 11 in terms of the contract. In fact, it would be more expeditious to have the dispute sorted out so as to avoid delay in determination of proper compensation. The contract between the Collector in Writing of the terms to be included in the award of the Collector is conclusive and binds the parties. They would not be entitled to seek any reference for enhancement of the compensation required to be adjudicated under Section 23(1) of the Act". the owners and 24. In our considered opinion, when a person interested in the land having opted for consent award under Section 11(2) of the Act, is not entitled to seek any reference for enhancement of the compensation under Section 18 read with Section 23(1) of the Act, and cannot be an 'aggrieved person' to claim re-determination of compensation on the basis of the award of the Civil Court.” amount of the 11. In the case of STATE OF GUJARAT AND OTHERS VS. DAYA SHAMJI BHAI AND OTHERS, reported in (1995) 5 SCC746 the Hon’ble Supreme Court held that the award made under Section 11(2) of the Land Acquisition Act in terms of the agreement is, 16 therefore, an award with consent obviating the necessity of reference under Section 18. The right and entitlement to seek reference would arise only when the amount of compensation was received under protest in writing which would manifest the intention of the owner of non-acceptance of the award.
12. In the case of SMT. MARIYAMMA VS. THE SPECIAL LAND ACQUISITION OFFICER, KIADB, MYSORE AND OTHERS, reported in 2013(5) KCCR4393 the learned Single Judge of this Court has also expressed the considered view that when the applicant is a party to the agreement, has received compensation and has also executed an indemnity bond, application under Section 18(1) of the said Act is not maintainable. 17 13. Now let us examine the exact factual matrix of the case. The claimants have agreed to receive the compensation of Rs.1,14,000/- per acre. The agreement executed by them is at Ex.R3. They have also executed the indemnity bond which is at Ex.R4. They have also received the agreed compensation, as is evident from their acknowledgement in Form No.1, which is at Ex.R6. They have not even stated that they are receiving the amounts under protest. Therefore, they are estopped from seeking the reference invoking Section 18 of the said Act insofar as the consent award pertains to the land.
14. The Reference Court has not referred to any of the decisions of the Hon’ble Supreme Court and of this Court on the point. On the other hand, 18 it has allowed the Reference in question on the basis of the judgment and award in L.A.C. No.13/2009 passed by another Reference Court. The justification given by the Reference Court for passing the impugned award is that another Reference Court has allowed the Reference in respect of consent award. It is most untenable, to say the least. The Reference Court’s judgments do not lay any precedent. The Reference Court is not a court of records. Under Article 141 of the Constitution of India, the law declared by the Hon’ble Supreme Court, shall be binding on all the courts within the territory of India. Article 144 states that all the authorities, civil and judicial in the territory of India, shall act in aid of the Hon’ble Supreme Court. We are appalled that the Hon’ble 19 Supreme Court’s decisions are ignored and a decision of another Reference Court is followed.
15. It is also trite that the law declared by this Court is binding upon all the courts situated within the territory of Karnataka. It is not known why the parties have not brought the binding decisions to the notice of the Reference Court, which has passed the impugned award. Assuming that the agreement at Ex.R3 is void or voidable in terms of the provisions of the Contract Act or the said agreement is against any public policy, it was open to the claimants to challenge the validity of the said agreement in appropriate proceedings. But merely submitting a letter at Ex.P4 requesting that 10 to 11 acres are to be excluded from the scope of the agreement and that the general 20 award be passed in respect of the said 10 to 11 acres would not make their reference-application entertainable. It is also to be noticed that Ex.P4 is submitted seven months after the execution of the agreement at Ex.R3.
16. That apart, Ex.P4 does not even specify the boundaries in respect of which they claim to have grown pomegranate trees. Besides their subsequent conduct shows that they have not acted upon their letter dated 25.01.2000 (Ex.P.4) because they have withdrawn the consent award amounts unconditionally, that is without raising any protest or demur.
17. Answering the formulated question against the claimants by holding that the Reference application is not maintainable in 21 respect of the consent award, we set aside the impugned judgment raising the market value of the land from Rs.1,14,000/- to Rs.5,75,000/- per acre.
18. As far as the claimants’ appeal for enhancement is concerned, we have carefully gone through the agreement at Ex.R3. The relevant paragraph of the agreement reads as follows: “«±ÉÃµÀ ¨sÀÆ¸Áé¢üÃ£Á¢üPÁjUÀ¼ÀÄ, ¸Áé¢üÃ£À ¥Àr¹PÉÆ¼Àî¨ÉÃPÁzÀ d«ÄÃ¤£À §UÉÎ ªÀiÁ°ÃPÀgÉÆA¢UÉ MqÀA§rPÉ ªÀiÁr ¤zs Àðj¹zÀ zÀgÀ ¥Àæw JPÀgÉUÉ gÀÆ. 1,14,000-00 (gÀÆ¥Á¬Ä MAzÀÄ ®PÀë ºÀ¢£Á®ÄÌ ¸Á«gÀ ªÀiÁvÀ æ) UÀ½UÉ ¨s ÀÆ ªÀiÁ°PÀgÀÄ M¦àgÀÄvÁÛgÉ. F zÀgÀªÀÅ PÁ£ÀÆ£ÀÄ ªÉÄÃgÉUÉ PÉÆqÀ¨ÉÃPÁzÀ ¸ÀªÀ®vÀÄÛUÀ¼ÁzÀ ±ÉÃPÀqÁ 30 £ÀµÀÖ ¥ÀjºÁgÀ ªÀÄvÀÄÛ ±ÉÃPÀqÁ 12 ºÉZÀÄÑªÀj ªÀiÁgÀÄPÀmÉÖ ¨É¯É EªÀÅUÀ¼À£ÀÄß M¼ÀUÉÆArgÀÄvÀÛzÉ. ªÉÄÃ¯É £ÀªÀÄÆ¢¹zÀ ¥ÀjºÁgÀ zs À£ÀªÀÅ ¸ÀzÀj d«ÄÃ¤£À°èAiÀÄ PÀlÖqÀUÀ¼ÀÄ, VqÀUÀ¼ÀÄ ªÀÄvÀÄÛ EvÀgÉ C©üªÀÈ¢ÞUÀ¼À£ÀÄß M¼ÀUÉÆArgÀÄªÀÅ¢®è. CªÀÅUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ 22 ¥ÀjºÁgÀ zs À£ÀªÀ£ÀÄß ¸ÀA§Azs À¥ÀlÖ vÁAwæPÀ C¢üPÁjUÀ¼ÀªÀjAzÀ `¤UÀ¢¥Àr¹ CzÀ£ÀÄß M¥ÀàAzÀ LwÃ¦ð£À ªÀÄÆ®PÀ ¤UÀ¢ü¥Àr¹zÀ ¥ÀjºÁgÀPÉÌ ¸ÉÃj¸À¯ÁUÀÄªÀzÀÄ.” 19. The plain reading of the afore extracted clause reveals that the sum of Rs.1,14,000/- is inclusive of 30% solatium and additional market value. However, it is not inclusive of the buildings, trees and other improvements on the land. We wish the Government had entered into a comprehensive agreement without leaving any scope for further litigation. But, for the reasons best known to the Government, it has not done so. Going by the plain language of the agreement, we have to give the relief to which the claimants are entitled. As there is no agreement in respect of the buildings, trees and other improvements on the land in question, the award 23 under Ex.R.1 cannot be held to be binding on the claimants in so far as it pertains to buildings, trees and other improvements on the land. When there is no agreement in respect of them, there cannot be any consent award. We, therefore, hold that the Reference under Section 18 is valid only and strictly for the purpose of examining what compensation is to be paid towards the buildings, trees and other improvements on the land. The matter is remanded to the Reference Court for the purpose of adjudicating as to what is the market value of the buildings, trees and other improvements on the land as on the date of the issuance of the preliminary notification. 24 20. Needless to observe that both the parties are at liberty to lead their evidence in the remanded matter.
21. In the result, both the appeals are allowed but to the extent indicated hereinabove by quashing the impugned award and by remanding the matter to the Reference Court for fresh enquiry for the purpose of adjudicating the market value of buildings, trees and other improvements on the land. At the risk of repetition, we make it clear that the Reference in so far as it pertains to the land is invalid and consequently the impugned award raising the market value of the land is quashed.
22. The remanded matter shall be disposed of as expeditiously as possible and in any case 25 within an outer limit of six months from the date of the production of the certified copy of today’s judgment.
23. Registry is directed to send the copies of this judgment to all the Reference Courts in our State and to the Karnataka Judicial Academy.
24. No order as to costs. Sd/- JUDGE Sd/- JUDGE Mrk/hnm/B vv