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V. Narayana Swamy and anr. Vs. the Special Land Acquisition Officer, Bda and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberMiscellaneous First Appeal No. 103 of 1999
Judge
Reported inILR2005KAR4020; 2005(5)KarLJ350
ActsLand Acquisition Act, 1894 - Sections 3, 18, 18(1), 20, 21 and 30
AppellantV. Narayana Swamy and anr.
RespondentThe Special Land Acquisition Officer, Bda and anr.
Appellant AdvocateM. Hanumanthaiah, Adv.
Respondent AdvocateS. Sujatha, Adv. for R1 and R2
Excerpt:
(a) land acquisition act, 1894 - acquisition of phut kharab land-compensation for-entitlement of- held- unless the claimants demonstrate the title or right to receive the compensation, the compensation does not become payable-the claimants are not entitled for any compensation-compensation cannot be payable to the phut kharab quarry land.;(b) land acquisition act, 1894 - section 21 - jurisdiction of the reference court under-held- the enquiry before the reference court is restricted to an examination of a question which has been referred by the collector or the special land acquisition officer for a decision under section 18 of the said act-the statute never contemplated the reference court to review or reduce the collector's award-therefore if a new ground is enquired by the reference..........its consideration:(i) whether the claimants are entitled for the compensation in respect of the phut kharab land measuring 1-06 acre pertaining to the quarries? if so, to what extent the claimants are entitled for the compensation?(ii) what must be the fair and reasonable market value in respect of the cultivable land of 1.12 acre in sy.no. 94?(iii) to what relief and order the parties are entitled for?5. regarding the first point, the 2nd respondent bda contended before the reference court that the appellants are not entitled to any compensation in respect of phut kharab land, as it was a quarry land belonging to the government and as the sub-soil rights therein always vested with the government only. what was granted to the appellants or their predecessors-in-title was occupancy.....
Judgment:

Ashok B. Hinchigeri, J.

1. The land at Sy.No. 94 of Nayanappasettypalya, Bangalore South Taluk, measuring 2 acres 18 guntas were acquired for the benefit of the 2nd respondent-Bangalore Development Authority ('BDA' for short) vide Preliminary Notification dt. 30.11.1967 and Final Notification dt. 27.5.1970. These lands comprised of 1 acre 12 guntas of cultivable land and 1 acre 6 guntas of quarry land.

2. The 1st respondent Special Land Acquisition Officer passed the award on 19.5.1975 fixing the market value at the rate of Rs. 13,000/- per acre for 1 acre 12 guntas of cultivable land and Rs. 1,000/- per acre for 1 acre 6 guntas of Kharab land consisting of quarry. He awarded a sum of Rs. 1,17,958/- for the loss of business quarry and other things at 30% out of the estimated value of Rs. 3,93,194/- as proposed by the GEO, Mysore and as approved by the Director of Geology.

3. Not content with the aforesaid award, the appellants sought reference under Section 18 of the Land Acquisition Act, praying for the enhancement of the compensation amount aggregating to Rs. 1,79,127-70. As many as 4 witnesses were examined and as many as 32 documents were marked as exhibits on behalf of the appellants. The respondents did not lead their rebuttal evidence.

4. The Reference Court formulated the following points for its consideration:

(i) Whether the claimants are entitled for the compensation in respect of the Phut Kharab land measuring 1-06 acre pertaining to the quarries? If so, to what extent the claimants are entitled for the compensation?

(ii) What must be the fair and reasonable market value in respect of the cultivable land of 1.12 acre in Sy.No. 94?

(iii) To what relief and order the parties are entitled for?

5. Regarding the first point, the 2nd respondent BDA contended before the Reference Court that the appellants are not entitled to any compensation in respect of Phut Kharab land, as it was a quarry land belonging to the Government and as the sub-soil rights therein always vested with the Government only. What was granted to the appellants or their predecessors-in-title was occupancy right in respect of the cultivable land measuring 1 acre 12 guntas only. This submission appears to have been resisted by the learned counsel for the appellants both on technicality and on merits before the Court below. On technicalities, it was contended that BDA cannot raise any objection over the giving of compensation in respect of Phut Kharab land, as the said objection was not raised either before the Special Land Acquisition Officer and as it did not apply for any reference on that ground. As is evident from the impugned judgment and award, the appellants contended on merits that Phut Kharab land is a part of the main land (cultivable land). As the Phut Kharab land is an appendage to the main land granted to the appellants, they are entitled to receive compensation for the Phut Kharab land too. The Reference Court has considered the case law on the issue of entitlement to compensation, whether the sub soil rights are not granted to the claimants. The learned Judge of the Reference Court has formed a considered view that the appellants are not given the occupancy rights of the quarry land and the sub-soil rights therein. Therefore, he holds that they are not entitled to any compensation for the quarry lands.

6. On the next question of the correctness of the amounts given for the cultivable land, no arguments were addressed before us. Therefore, we are confining ourselves to the examination of the findings delivered by the Reference Court to the effect that the appellants are not entitled to any compensation in respect of the quarry land.

7. It is that part of the award which refuses to grant any compensation in respect of the quarry land, which was assailed before us by the appellants' counsel, Sri Hanumanthaiah. He advanced the following contentions:

(a) The Phut Kharab land consisting of quarry forms part and parcel of the main land; that is why no separate Sy.No. is given to the Phut Kharab land;

(b) The Government has given the permission to the appellants to quarry the stones from the Kharab rock area and thereby to make it fit for cultivation subject to the payment of royalty, if any;

(c) The Phut Kharab land is a private hiduvali land and that the appellants and their ancestors have been in possession and enjoyment of the same from the time of inamdar and thereafter from the time of the same being re-granted to them;

(d) Having acquiesced to the Land Acquisition Officer's award, which grants compensation in respect of the Phut Kharab land, the respondent BDA is estopped from contending that no compensation is payable in respect of the Phut Kharab land;

(f) The Reference Court has erred in not giving any weightage to the revenue records and endorsements which show that the cultivable land and the quarry land constitute a contiguous land;

(f) If the Phut Kharab lands were Government lands, there was no need for the Government to notify its own lands for acquisition.

8. All these contentions were sought to be repelled by the learned counsel for the respondents, Smt. Sujatha. She submits that the Phut Kharab lands were never granted to the appellants. Therefore, the question of giving any compensation to them in respect of these lands does not arise at all. There is nothing like implied grant or implied ownership of the lands. She submits that quarry lands are Government lands and therefore, the question of Government paying any compensation for its own lands does not arise at all. When large extent of private land is notified for acquisition, some Government land may also be included therein either by confusion or by inadvertence or by way of abundant caution. Therefore, the issuance of the acquisition notification in respect of Government land does not confer any right on private individuals to claim compensation. Unless the claimants demonstrate the title or right to receive the compensation, the compensation does not become payable.

9. In the light of the rival submissions made at the bar, we are scrutinising the impugned award. The impugned award is a reasoned award made after considering all the case laws on the point of the claimants' right to receive the compensation in respect of the Phut Kharab quarry land. We fully approve of and are indeed appreciative of the cogent reasoning given by the Reference Court in holding that the claimants are not entitled to any compensation in respect of 1 acre 6 guntas of Phut Kharab quarry land.

10. But when we examine the impugned award on the point of jurisdiction, we have to deliver a different finding altogether. The jurisdiction of the Reference Court is special one and is strictly limited by the terras of Section 21 of the Land Acquisition Act, 1894. The said Section is extracted herein below:

'Restriction on scope of proceedings:- The scope of the enquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection.'

11. A plain reading of the aforesaid provision reveals that the Civil Court sitting in reference cannot enlarge the scope of enquiry at the instance of the parties who have not obtained and cannot obtain any order of reference so as to include a review of items not objected to by the claimants; the enquiry before the Reference Court is restricted to an examination of a question which has been referred by the Collector or the Special Land Acquisition Officer for a decision under Section 18 of the said Act; the powers and duties of the Civil Court sitting in reference are defined by the Statute and therefore, it cannot be legitimately invited to exercise the inherent powers and assume jurisdiction over the matters not intended by the Legislature. The Statute never contemplated the Reference Court to review or reduce the Collector's award. Therefore, if any new ground is enquired by the Reference Court, such enquiry will be without jurisdiction.

12. The Reference Court will have no jurisdiction to travel beyond the Collector's award. It is well settled that enquiry under Section 21 is not a continuation of the enquiry at the instance of the Collector.

13. To fully appreciate how limited the scope of the proceedings are, the term 'interests of the persons' as appearing in Section 21 of the said Act is different from the term 'person interested' as appearing in Section 3(b) of the said Act. The term 'interests of the persons' has reference only to the stand taken by a person in respect of the Collector's award within the time limit prescribed under Section 18 of the said Act.

14. Such being the statutory position, the finding of the Reference Court in the instant case that the appellants are not entitled to receive any compensation in respect of the quarry Phut Kharab land, is not sustainable because admittedly the 2nd respondent BDA has neither filed the objection to the granting of compensation for the said land nor sought any reference thereon. In this regard, the Supreme Court in the case of Prayag Upnivesh Awas Evam Nirman Sahakari Samiti Ltd. v. Allahabad Vikas Pradhikaranand Anr. Supreme Court Cases, 561 (para 11), has held as under:

'In the instant case, there was no reference by the SLAO under Section 18 of the Act and the appellant Samiti was not before the SLAO. Even the application allegedly filed on 12.10.1987 has rightly been characterized as suspicious as no mention has been made by the SLAO in the reference letter dated 12.10.1987. In the absence of a proper reference, the Additional District Judge had no jurisdiction to decide the question of enhancement of compensation. When such an objection was not referred to the Court, there was complete lack of jurisdiction. In our view, the decision of the High Court is correct and requires no intereference. The appeal is without merit and is accordingly dismissed with costs.'

15. The Hon'ble Privy Council in the case of Pramathanath Mallik v. Secretary of State For India In Council, ILR Vol. LVII Calcutta Series at Page 1148 examined the position and held that the scope of enquiry is strictly confined of the objection raised and the Court has no power to determine or consider anything beyond it (objection raised).

16. The Division Bench of Calcutta High Court in the case of Manjur Ahamed v. Rajalakshmi Dassi and Ors., : AIR1956Cal263 reiterated the settled law that the Court cannot go into a question raised for the first time by a party who has not sought any reference to the Court under Section 18 of the Act.

17. In the case of Lila Mahton v. Sheo Govind singh : AIR1956Pat108 the Division Bench has held that the 'Court' does not sit on appeal over the Collector; and the Land Acquisition Act does not give any authority to the 'Court', either in express terms, or by implication, to go behind the reference, and to see whether Collector acted rightly or wrongly. The 'objection' mentioned in Section 20 and Section 21, means the 'objection' made under Section 18(1) or the 'dispute' which arises under Section 30, and which is referred to the Court for its decision.

18. We have also gone through the Division Bench judgment of Delhi High Court in the case of Collector v. Amin Chand : AIR1968Delhi66 . In this reported case, the considered view taken was that the persons who have not applied for reference, even though they are brought before the Court, cannot be allowed to ventilate their own grievances against the award. Section 21 which describes the scope of enquiry does not enlarge its amplitude so as to embrace the consideration of the interest of all possible persons.

19. Earlier also, the same view was taken by the Division Bench of another High Court, namely Andhra Pradesh High Court, in the case of Mohammed Ibrahim Sahib and Ors. v. Land Acquisition Officer, Bhimavaram, AIR 1958 Andhra Pradesh 226 of wherein it is held that, if a non-occupant party has not sought the reference, he is not entitled to ventilate his grievance against the award.

20. Considering the case law under Section 21 of the Act, we hold that the Reference Court's finding on the first point of the first issue that the claimants are not entitled for the compensation in respect of the Phut Kharab land measuring 1 acre 6 guntas pertaining to the quarries is without jurisdiction. Therefore, we are constrained to set aside that part of the award which holds that the claimants are not entitled to any compensation for the quarry Phut Kharab land measuring 1 acre 6 guntas. We modify the impugned award on Point No. 1 by holding that the claimants are not entitled to any enhancement.

21. Consequently, the claimants are entitled to receive the amounts granted by the first respondent in his award. Further, if the amounts are already disbursed in respect of the quarry Phut Kharab land, the respondents cannot seek the restitution or recovery of the amounts.

22. The Appeal is allowed in part by holding that the claimants are entitled to retain what the first respondent has granted in his award in respect of the quarry Phut Kharab land; in all other respects, the award of the Reference Court remains unaltered. No order as to costs.


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