@JUDGMENTTAG-ORDER
1. This appeal by the Land Acquisition Officer and Assistant Commissioner, Mangalore, arises out of and is directed against the judgment and award passed by the Principal Civil Judge at Mangalore in LAC No. 4 of 1995, dated 31-1-1997. The facts of the case in brief leading up to this appeal are as follows:
The land belonging to the respondents comprised in Sy. No. 102/1 of Permannur village, Mangalore, measuring 5 acres 33 cents was notified for acquisition for grant of house sites to persons belonging to Scheduled Castes and Scheduled Tribes under the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter called as the ''House Sites Act''). Preliminary notification u/s 3(1) of the Act was issued on 27-3-1991 and published in the Karnataka Gazette, dated 4-4-1991. The final notification under sub-section (4) of Section 3 of the Act was issued on 8-5-1991 and published in the Gazette dated 17-5-1991. The claimants appeared before the Land Acquisition Officer and an award was passed on 18-3-1993 by the Land Acquisition Officer fixing the market value of the acquired land as Rs. 500/- per cent (Rs. 50,000/- per acre). Not being satisfied with the market value awarded by the Land Acquisition Officer, claimants made an application for reference to the Civil Court claiming compensation of Rs. 4,000/- per cent and on reference, the same was numbered as LAC 4 of 1995 on the file of the Principal Civil Judge at Mangalore.
2. On behalf of the claimants, P.W. 1 who is a family friend of the petitioners was examined and he got marked Exs. P. 1 and P. 2. The documents which have been summoned by the Court were marked as Exs. C. 1 to C. 15 in the evidence of P.W. 1. On behalf of the Land Acquisition Officer, no oral or documentary evidence was adduced.
3. The learned Civil Judge formulated the following points for determination in his judgment dated 31-1-1997:
1. Whether the market value of the acquired land as determined by the Land Acquisition Officer is fair and reasonable?
2. If not, what is the market value of the acquired land?
3. To what enhanced compensation amount, if any, the claimants in this reference are entitled?
4. The learned Civil Judge after considering the oral and documentary evidence on record held that the market value awarded by the Land Acquisition Officer is arbitrary and inadequate and that the claimants are entitled to market value as claimed by them, that is at the rate of Rs. 4,000/- per cent and accordingly answered the Point Nos. 1 and 2 and allowed the reference application. The learned Civil Judge also awarded the following statutory benefits on the market value of Rs. 4,000/- per cent:
(i) Solatium at 30% on the enhanced compensation amount of Rs. 18,65,500/-.
(ii) Additional amount at the rate of 12% p.a. on the market value from the date preliminary notification (17-5-1991) to date of award (31-1-1997).
(iii) Interest at the rate of 9% from the date of taking possession of the land upto one year after passing of the award and subsequent interest at 12% p.a. till the date of payment or deposit, that is one acre from 1-1-1973, one acre from 1-1-1980, one acre from 1-1-1985 and 2.33 acres from 29-5-1991.
5. Being aggrieved by the judgment and award passed by the Civil Judge dated 31-1-1997, the Land Acquisition Officer and the Assistant Commissioner, Mangalore, has preferred this appeal u/s 54(1) of the Land Acquisition Act, 1894 (''LA Act'' for short), contending that the enhancement of market value to Rs. 4,000/- per cent by the Civil Judge is excessive and exorbitant and not based on any material; and that in the absence of any material to show that the compensation awarded by the Land Acquisition Officer at Rs. 500/- per cent was inadequate, the learned Civil Judge ought to have confirmed the amount awarded by the Land Acquisition Officer. He also submitted that even in awarding statutory benefits, the learned Civil Judge has committed serious errors and wherefore, the judgment and award passed by the Civil Judge is liable to be set aside.
6. The learned Senior Counsel appearing for the respondents-claimants contended that the appeal u/s 54(1) of the Land Acquisition Act is not maintainable inasmuch as the award has been passed under the House Sites Act and Section 54 of the Land Acquisition Act has not been made applicable to the acquisitions under the said Act. He also contended that the market value arrived at by the learned Civil Judge at Rs. 4,000/- per cent represents the fair market value of the land acquired on the date of preliminary notification and the same is arrived at on the basis of Ex. P. 1. He also submitted that the evidence adduced by the petitioners clearly shows that the value of the land cannot be less than Rs. 4,000/- per cent.
7. The Chief Executive Officer, Dakshina Kannada Zilla Panchayat, filed an application (I.A., III) under Order 1, Rule 10 of the CPC to implead the said Zilla Panchayat as a respondent in the appeal as it is averred in the affidavit filed in support of the said application that the Zilla Parishat is the beneficiary of the acquisition proceedings and aggrieved by the judgment of the Reference Court and that it has not been impleaded as a party before the Reference Court. The said application was allowed and the panchayat has been impleaded as respondent 15.
8. Having regard to the contentions urged in the Appeal, the points that arise for determination in this appeal are:
(1) Whether the appeal filed u/s 54(1) of the Land Acquisition Act, 1894 is not maintainable as contended by the respondents-claimants?
(2) Whether the learned Civil Judge was justified in enhancing the market value from Rs. 500/- per cent to Rs. 4,000/- per cent in respect of the acquired land?
(3) Whether the Reference Court was justified in awarding interest from a date anterior to the date of final notification u/s 3(4) of the House Sites Act and interest on solatium?
(4) Whether the impugned judgment and award passed by the learned Civil Judge calls for interference in this appeal?
We answer the above points as follows:--
Point No. 1 in the negative.
Point No. 2 in the negative.
Point No. 3 in the negative.
Point No. 4 in the affirmative as per the final order for the following reasons:--
9. Point No. 1.--It is contended by the learned Senior Counsel appearing for the respondents-claimants that this appeal filed by the Land Acquisition Officer u/s 54(1) of the Land Acquisition Act is not maintainable as the provisions of Section 54 has not been incorporated by reference, in the House Sites Act. He contended that what has been made applicable mutatis mutandis, are the provisions of the LA Act regarding enquiry and award by the Deputy Commissioner and reference to Court, the apportionment of amount and the payment in respect of land acquisition and not the provision regarding appeal. He submitted that in view of the provisions of Section 5 of the House Sites Act which makes only certain provisions of the Land Acquisition Act applicable to the proceedings under the House Sites Act, and not Section 54 of the LA Act, the appeal is not maintainable. On the other hand, it is contended by the learned Additional Government Advocate, that the provisions of the House Sites Act is not exhaustive and the provisions of Land Acquisition Act is supplementary to the provisions of the House Sites Act and appeal being continuation of the reference, the provisions relating to reference to Court would include right to file an appeal also and wherefore the appeal is maintainable. The provisions of the House Sites Act, the nature of the said Act as also the question whether the said Act is exhaustive, and whether the provisions of the Land acquisition Act is supplementary to the provisions of the House Sites Act has been specifically considered by the Supreme Court in
"We are of the view that the Karnataka Act, 1972 clearly comes within the exceptions stated in the case of Firstly, there being no detailed machinery whatsoever in the Karnataka Act, 1972, that Act cannot be treated as a self-contained or complete Code. Secondly, the Karnataka Act, 1972 and the Central Act, 1894 (as amended by the Karnataka Act, 1961) are supplemental to each other for unless the Central Act supplements the Karnataka Act, the latter cannot function. Thirdly, these Acts are in pari materia because the Karnataka Act, 1972 unlike the Calcutta Act, 1911 and the Uttar Pradesh Act, 1965 does not deal with any other subject but deals with the same subject of land acquisition which otherwise would have fallen within the ambit of the Central Act, 1894. For the aforesaid reasons, we are of the view that the amendments made in 1984 to the Central Act, 1894 including Section 11-A have to be read into the Karnataka Act, 1972, so far as enquiry, award, reference to Court, apportionment of amount and the payment of amount in respect of land acquired under the Act". 10. In view of the above observations of the Supreme Court, it is clear that the House Sites Act does not provide a detailed machinery and cannot be treated as a self-contained or complete Code and the House Sites Act and the Land Acquisition Act, 1894 are supplemental to each other. Section 5 of the House Sites Act has incorporated by reference, the provisions relating to reference to Court contained in the Land Acquisition Act, 1894. It is true that no specific provision has been made in the Karnataka Act regarding filing of appeals against the award of the Reference Court. It has also not provided that the award passed by the Reference Court shall be final and the provisions of Section 54 would not be applicable. Wherefore, in view of the above said observations of the Supreme Court that the provisions of the Land Acquisition Act is supplemental to the provisions of the House Sites Act, 1972 it must be held that the provisions relating to appeal against the award passed on reference would also be applicable to the award passed on a reference made under the House Sites Act. Section 54 provides for an appeal against any award or from any part of the award of any Court in any proceeding in the Act. Accordingly, we hold that an appeal is maintainable against the judgment and award of the Reference Court relating to an acquisition under the House Sites Act in view of the provisions of Section 5 of the House Sites Act, read with Section 54 of the Land Acquisition Act. Point No. 1 is therefore answered in the negative. 11. Point No. 2.--The Land Acquisition Officer fixed the market value as Rs. 500/- per cent under his award dated 18-3-1993. It is the case of the claimants that the value of the land acquired is more than Rs. 4,000/- per cent. In order to substantiate the said claim none of the claimants have been examined, However, N. Raghavendra Rao; a family friend of the claimants has been examined as P.W. 1. P.W. 1 has stated in his evidence that he knows the acquired land and that he was managing the said land before it was acquired. He represented the claimants before the Assistant Commissioner. The documents produced by the Government as per the directions of the Court have been got marked through P.W. 1 as Exs. C1 to C15. P.W. 1 has also got marked sale deed dated 10-3-1986 as Ex. P. 1, a xerox copy of the village map of Permannur village was marked as Ex. P. 2 subject to proof. 12. The learned Civil Judge has arrived at the market value of Rs. 4,000/- per cent only on the basis of the sale deed Ex. P. 1. Ex. P. 1 is a certified copy of the sale deed dated 10-3-1986 executed by (1) Mamu Beary, s/o Ibrahim Beary, (2) Mohammed, s/o Ibrahim Beary, (3) U. Beeopathumma, w/o Katu Beary, (4) Khatijamma, w/o Pidia Beary, in favour of Salauddin, represented by his Power of Attorney Holder U. Fakruddin, under which ten cents of land in Sy. No. 105/2-B of Permannur village with a building thereon has been sold by the vendors for a consideration of Rs. 40,000/-. Neither the vendors nor the vendee nor the attestor or scribe of the said sale deed have been examined to prove the said sale deed. P.W. 1 is the only witness examined by the claimants and he is neither the vendor nor vendee not the attestor or scribe of the said sale deed Ex. P. 1. It is well-settled that unless the vendor or vendee under the sale deed are examined in support of the sale deed produced by the claimants in land acquisition cases, the sale deed will not be considered as proved in evidence and cannot at all be relied upon for assessing the market value of the land acquired. 13. The Hon''ble Supreme Court in a catena of decisions has held that unless vendor or vendee is examined or at least scribe of the sale deed in the absence of vendor or vendee, sale deed would be inadmissible and cannot be looked into. The decisions are: 1. 2. 4. 5. 6. Special Deputy Collector and Another v Kurra Sambasiva Rao and Others ; 7. 8. 9. 10. Municipal Corporation of Delhi v Lichho Devi and Others. 14. In view of the above said decisions of the Supreme Court, it is clear that in the absence of the contents of Ex. P. 1 being duly proved, the learned Civil Judge was not justified in arriving at the market value on the basis of the said sale deed. The learned Civil Judge could not have relied on the said sale deed as the same has not been proved by examining the vendor or the vendee as laid down by the Supreme Court in the above referred cases. The only basis upon which the learned Civil Judge has arrived at the market value of Rs. 4,000/- per cent for the acquired land is Ex. P. 1 and Ex. P. 1 could not be looked into as not having been proved, hence the finding of the learned Civil Judge cannot at all be sustained and the same is liable to be set aside as baseless and unfounded. It is also to be noted that Ex. P. I is a sale deed dated 10-3-1986 wherein property comprising a plot measuring ten cents in Sy. No. 105/2B and a building measuring 450 sq. feet was sold for a consideration of Rs. 40,000/-. Such a sale deed cannot be of any assistance mainly for two reasons. Firstly, the sale deed relates to a small house site and acquired land is a large extent of 5 acres 33 cents. Secondly, the sale of a land with building cannot be of any assistance to arrive at the value of a large land as the break-up of the value for the land and building is not available. It is clear from the description of the property sold under the sale deed Ex. P. 1 that it is in respect of ten cents of land comprising of a building having plinth area of the structure measuring 450 sq. feet and wherefore, the said sale deed could not have been the basis for evaluating the value of the acquired land measuring 5 acres 33 cents, as laid down by the Supreme Court in the case of 15. However, the learned Senior Counsel appearing for the respondents submitted that even if Ex. P, 1 cannot be said to have been proved in accordance with law, the market value fixed by the Reference Court could be supported by other material on record. He relied on Ex. C5 which is a letter dated 1-2-1990 written by the Secretary, Dakshina Kannada Zilla Parishat to the Department of Social Welfare and Labour, Government of Karnataka, Bangalore, in which it is stated that though the market value of the acquired land is Rs. 4,000/- per cent the claimants had agreed to receive compensation at the rate of Rs. 3,000/-per cent and requesting for sanction of Rs. Forty lakhs for payment of compensation. The learned Senior Counsel has also relied upon the agreement Ex. C8 between the State and the claimants u/s 4(2) of the Act wherein it was agreed that the compensation of Rs. 3,00,000/- per acre should be given for the acquired land. There is no merit in these contentions. In the first place, Exs. C1 to C15 have been produced by the Counsel on the direction of the Court and they are merely marked through P.W. 1. It is clear from the contents of Ex. C5 and the correspondence leading to the said letter that the market value of Rs. 4,00,000/- stated in the letter is based on the sale deed Ex. P. 1. It is clearly stated in Ex. C9 that the market value of the land acquired would be Rs. Four lakhs on the basis of the sale deed dated 10-3-1986 in respect of Sy. No. 105/2B measuring 10 cents (one tenth of an acre) with building executed by Mamu Beary and others in favour of Salauddin, s/o Fakruddin for Rs. 40,000/-. The said documents which are correspondence for the purpose of release of the amount by the Government would not be helpful in assessing the market value of the land specially when the said valuation is also based on the basis of the sale deed Ex. P. 1 which has not been proved before the Court. 16. The next document relied on by the claimants is Ex. C. 8, an agreement dated 14-6-1991 executed between Governor of Karnataka, represented by Block Development Officer, Mangalore and U. Kogganna Kini and Power of Attorney Holder of other co-owners of Sy. No. 102/1. As per the said agreement arrived at u/s 4(2) of the Act, the claimants had agreed to receive the compensation at the rate of Rs. 3,00,000/- per acre as against the prevailing market value of Rs. 4,00,000/- regarding similar land in the locality as per the statistics of sale registered in the Sub-Registrar''s office at Mangalore. The said agreement Ex. C8 has not been proved by examining any party to the said agreement. It is submitted by the learned Additional Government Advocate, that the Block Development Officer was not authorised to enter into agreement u/s 4(2) of the Act and it was only the Deputy Commissioner who could enter into agreement under exercise of power u/s 4(2) of the Act and therefore, no value can be attached to the agreement Ex. C8. The claimants have not produced any material to show that the Block Development Officer who entered into agreement on behalf of the Government of Karnataka had authority to enter into such agreement. The said agreement was not acted upon by the parties, but rescinded by the Deputy Commissioner. In fact by notice dated 28-10-1991 (Ex. C. 14) issued through Counsel, the claimants called upon the Assistant Commissioner, Mangalore, that the amount u/s 4 of the Act may be determined as the agreement dated 14-6-1991 was rescinded and cancelled by the Special Deputy Commissioner, MSTP, Dakshina Kannada, Mangalore and refer to the Civil Court u/s 5 of the Act. Wherefore, the claimants cannot rely upon the agreement Ex. C8. In view of the above, we hold that the assessment of market value at Rs. 4,000/- per cent arrived at by the learned Civil Judge under impugned judgment cannot at all be sustained and the same is liable to be set aside and accordingly, we answer Point No. 2 in the negative. 17. Re. Point No. 3.--It is clear from the perusal of the judgment and award passed by the learned Civil Judge that the statutory benefits awarded by the learned Civil Judge is not in accordance with law and award has been passed for excessive amount by awarding interest on solatium and error has also been committed in awarding interest from various dates prior to the date of Section 3(4) notification in respect of the land acquired. The learned Civil Judge has ordered payment of interest at the rate of 9% p.a. from taking possession of the land upto one year after passing of the award and subsequent interest at the rate of 12% per annum till payment or deposit i.e., one acre from 1-1-1973, one acre from 1-1-1980, one acre from 1-1-1985 and 2.33 acres from 29-5-1991. 18. The award of interest from the above said dates is wholly illegal and unjustifiable in view of the provisions of Section 3 of the House Sites Act, which clearly provides that land will vest in the State Government only on the publication in the Official Gazette of the declaration under sub-section (4). There is no provision as in Land Acquisition Act, for taking possession before issue of the acquisition notification. In view of the above, it is clear that the question of taking possession of the land prior to the passing of the order u/s 3 (4) and (5) does not arise under the provisions of the House Sites Act which is different from the provisions of the Land Acquisition Act. There is also no material to show that possession of the land was handed over or was taken by the appellant prior to the date of notification u/s 3(4) of the Act. It is the contention of the claimants themselves that the land acquired in the case has been in possession of trespassers. Further there is absolutely no evidence to show that the Government took possession of any portion of the acquired land on 1-1-1973 or 1-1-1980 or 1-1-1985. It is indeed a mystery as to how the Reference Court has awarded interest from those dates in the award when there is no reference to those in the pleadings, evidence judgment. The order of the learned Civil Judge awarding interest from any date earlier to the date of vesting cannot be sustained. 19. The Reference Court has also stated in the award that claimants are entitled to additional amount u/s 23(1-A) from the date of the preliminary notification to date of award (31-1-1997) on the market value plus solatium. This is also illegal. Firstly, the additional amount u/s 23(1-A) can be only the market value and not solatium. Secondly, it can be only till date of award of LAO and not till the date of judgment and award of the Civil Court. 20. Therefore it is clear that the amount of statutory benefits awarded by the learned Civil Judge are also excessive and impermissible insofar as award of interest on solatium and award of interest from a date prior to the date of notification u/s 3(4) of the House Sites Act. 21. Point No. 4.--In view of our finding on Point No. 2 that the learned Civil Judge was not justified in arriving at the market value at Rs. 4,000/- per cent, the judgment and award passed by the learned Civil Judge impugned in this appeal is liable to be set aside. In the absence of any other material on record to arrive at the market value of the lands acquired in this case, the award passed by the Land Acquisition Officer fixing the market value at Rs. 500/- per cent had to be affirmed in the normal course. However, it is contended by the learned Senior Counsel appearing for the respondents-claimants that in view of the fact that the sale deed Ex. P. 1 has not been proved in accordance with law and in the absence of any admissible material on record to arrive at the market value of the land, an opportunity may be given to the claimants to prove the market value of the land on the date of preliminary notification before the Reference Court and the claimants would be put to irreparable loss and hardship, if the market value awarded by the Land Acquisition Officer is affirmed and that if the matter is remitted to Reference Court, then claimants would be able to substantiate the market value of producing relevant material before the Reference Court. 22. On the other hand, the learned Additional Government Advocate, appearing for the appellant submitted that in the absence of any admissible material to arrive at the market value of the land and in view of the fact that the judgment and award passed by the learned Civil Judge fixing the market value at Rs. 4,000/- per cent cannot be sustained, the award passed by the Land Acquisition Officer fixing the market value at Rs. 500/- per cent should be affirmed. He further submitted that pursuant to the order passed by this Court on 10-12-1997 granting interim stay on I.A. I on the condition that the appellant should deposit half of amount awarded as compensation along with the interest, solatium and any other amount granted, within two months, half of the amount awarded with proportionate statutory benefits in all Rs. 50,46,311/- had been deposited before the Reference Court and the said amount is already withdrawn by the claimants as the amount was directed to be disbursed to the claimants by order of this Court dated 26-2-1988. He submitted that as the market value arrived at by the learned Civil Judge cannot at all be sustained and the same is liable to be set aside, the appellant is entitled for restitution of the amount deposited before the Reference Court pursuant to the interim order of this Court in this appeal; and that if the case has to be remanded to the Civil Judge for fresh disposal in accordance with law to afford an opportunity to the claimants to substantiate their contention about the market value of the land acquired, then proper directions may be issued to the claimants to refund the amount drawn by them pursuant to the interim order passed by this Court and that such refund shall be made a condition precedent for the claimants to avail a fresh opportunity to substantiate their contention before the learned Civil Judge. 23. There is considerable force in the contention of the learned Additional Government Advocate, that it is necessary to order restitution by ordering the respondents-claimants to deposit the amount which they have withdrawn from the Reference Court as the said amount has been deposited pursuant to the interim order of this Court and any order passed during the pendency of the appeal is subject to the final order in the appeal. In this case, the claimants respondents have already withdrawn the amount deposited by the appellant pursuant to the interim order of this Court. The amount has been deposited according to the appellant by the Zilla Parishat and the said amount in the hands of the claimants would not carry any interest and the appellant would be deprived of the said amount. As we are giving an opportunity to the claimants to let in further evidence by remanding the matter, only on the request of the claimants it can be only conditional upon the claimants at least 50% of the total amount drawn by them in pursuance of the interim order of this Court. Interest of justice would be met by passing a conditional order of remand to the effect that the respondents-claimants shall deposit 50% of the compensation withdrawn by them pursuant to the interim order of this Court within three months from the date of this order and if the said amount is deposited the claimants shall be given an opportunity to adduce evidence before the Reference Court regarding the market value of the land and if they fail to deposit the said amount, the market value awarded by the Land Acquisition Officer shall stand confirmed. 24. Accordingly, we pass the following order: The appeal is allowed. Judgment and award passed by the Prl. Civil Judge, Mangalore, in LAC No. 4 of 1995, dated 31-1-1997 is set aside subject to claimants re depositing 50% of the amount drawn by them out of the amount deposited by the appellant and respondent 15 pursuant to the interim order of this Court dated 10-12-1997 within three months from the date of this order; and the matter is remanded to the Reference Court to afford an opportunity to the claimants to lead fresh evidence regarding the market value of the acquired land before the learned Civil Judge. In the event of such opportunity being granted to claimants, the Land Acquisition Officer and Beneficiary of Acquisition will also be entitled to let in further evidence and the learned Civil Judge shall dispose of the reference application afresh in accordance with law. In case the claimants fail to deposit the said amount within said time, the award passed by the Land Acquisition Officer shall stand confirmed and the reference application before the learned Civil Judge shall stand rejected.
