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1. : R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE3D DAY OF SEPTEMBER, 2015 PRESENT THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY AND THE HONOURABLE MRS.JUSTICE S.SUJATHA Miscellaneous First Appeal No.100722/2014 (LAC) Connected With Miscellaneous First Appeals No.100723, 100724, 100725 And 100726 of 2014 Between:
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2. The State of Karnataka Represented by Principal Secretary, Revenue Department, M.S. Building, Bangalore. The Special Land Acquisition Officer B.T.D.A., U.K.P., Bagalkot. … Appellants (Common) (By Shri K.S. Patil, High Court Government Pleader) And : Istak Ahmad Mohammadsaheb Gadaginni. (By Shriyuths … Respondent (In M.F.A. No.100722/2014) and Manjunath A. Jagadish Patil Karigannavar, Advocates for caveator respondent No.1) :
2. : And : Imam Saheb Mohammadsaheb Gadaginni, R/o. Bagalkot. … Respondent (In M.F.A. No.100723/2014) (By Shri Jagadish Patil, Advocate for caveator respondent No.1) And : Mohammadhanif Hussainsab Gadaginni. … Respondent (In M.F.A. No.100724/2014) (By Shri Jagadish Patil, Advocate for caveator respondent No.1) And : Narayan Venkatesh Hublikar R/o. Hungund, Now at Dharwad. (By Shri Jagadish Patil, Advocate) And : Damodar Ramarao Kulkarni R/o. Bijapur, Now at Bangalore. (By Shri Jagadish Patil, Advocate) … Respondent (In M.F.A. No.100725/2014) … Respondent (In M.F.A. No.100726/2014) :
3. : M.F.A. No.100722/2014 is filed under Section 54(1) of the Land Acquisition Act, 1894, against the judgment and award dated 03.09.2013 passed in L.A.C. No.45/2009 on the file of the II Additional Senior Civil Judge, Bagalkot, partly allowing the claim petition for compensation and seeking enhancement of compensation. M.F.A. No.100723/2014 is filed under Section 54(1) of the Land Acquisition Act, 1894, against the judgment and award dated 03.09.2013 passed in L.A.C. No.46/2009 on the file of the II Additional Senior Civil Judge, Bagalkot, awarding the compensation of Rs.153/- per square foot. M.F.A. No.100724/2014 is filed under Section 54(1) of the Land Acquisition Act, 1894, against the judgment and award dated 03.09.2013 passed in L.A.C. No.47/2009 on the file of the II Additional Senior Civil Judge, Bagalkot, awarding the compensation of Rs.153/- per square foot. M.F.A. No.100725/2014 is filed under Section 54(1) of the Land Acquisition Act, 1894, against the judgment and award dated 03.09.2013 passed in L.A.C. No.163/2009 on the file of the II Additional Senior Civil Judge, Bagalkot, awarding the compensation of Rs.153/- per square foot. M.F.A. No.100726/2014 is filed under Section 54(1) of the Land Acquisition Act, 1894, against the judgment and award dated 03.09.2013 passed in L.A.C. No.164/2009 on the file of the II Additional Senior Civil Judge, Bagalkot, awarding the compensation of Rs.153/- per square foot. I.A. No.1/2014 for condonation of 93 days delay in filing M.F.A. No.100726/2014. These appeals along with I.A. No.1/2014 coming on for hearing this day, Anand Byrareddy J., delivered the following: :
4. : JUDGMENT
I.A. No.1/2014 filed for condoning the delay of 93 days in filing Miscellaneous First Appeal No.100726/2014 is allowed.
2. Heard the learned Government Advocate appearing for the appellants.
3. The appellant is the State in these appeals. The respondents were the claimants whose lands have been acquired in Gaddanakeri village, Bagalkot taluk and district. The plots of land were acquired by the Bagalkot Town Development Authority, Bagalkot, for laying a water pipe line to Navanagar and Gaddanakeri village. The Notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ‘L.A. Act’, for brevity) was said to have published in the year 2005 vide Notification dated 21.11.2005 and the Final Notification was issued on 25.06.2007 and an award came to be passed on 30.10.2008. It was found by the Special Land Acquisition Officer in terms of the award that land bearing Survey No.156/A was converted into non-agricultural purposes by the competent :
5. : Authority, namely, The Special Deputy Commissioner, Bijapur, in respect of 4 acres of land by an order dated 04.08.1983 and with a condition that construction would have to be put up within two years from the date of the order and it is on this basis that the respondent claimants had claimed compensation at the rate of Rs.200/- to Rs.300/- per square foot. This was rejected by the Special Land Acquisition Officer, on the footing that, on a spot inspection, the Officer had found that though the land was converted for non-agricultural use, no layout had been formed and the property consisted of eucalyptus trees and it was a rocky area and it was totally unfit for cultivation. It was not assessed to tax, and therefore, no market value was fixed and the claim for compensation was rejected outright.
4. The respondents, thereafter, being aggrieved by the award, had filed claim petitions under Section 18 of the L.A. Act, raising several grounds, namely, that the award was unjust and illegal. The land being treated as ‘Pot Kharab’ was without reference to the fact that it was indeed converted for non- :
6. : agricultural purposes and the question of considering the land as ‘Pot Kharab’ or unarable did not arise. It was converted for such non-agricultural use as on the date of the publication of Notification under Section 4(1) of the L.A. Act, and therefore, the Land Acquisition Officer was not justified in negating the claim as regards the compensation. The plots were situated within the Town Planning Area of Bagalkot and Gaddanakeri cross and are at a distance of 300 metres from the acquired plots and the Government itself has acquired and formed a Rehabilitation Centre in the vicinity of the land and these plots were sold in the market at Rs.55/- to Rs.500/- per square foot and that the lands in the vicinity also being dealt with as non-agricultural lands were being built up and it was also close to National Highway 218, and hence, the claim was just and fair, which the Land Acquisition Officer had negated. It is on these contentions that the Reference Court after consideration of the claim and the objections filed by the State, had framed the following points for consideration – 1. Whether claim petitions are well within the period of limitation and the same are valid references?. :
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2. Whether claimants are entitled for enhanced compensation, if so at what rate?.
3. Whether claimants are entitled for the relief sought for?.
4. What order or award?.
5. The above points were answered in the affirmative and the Court has awarded a compensation of Rs.153/- per square foot with interest thereon at 12% per annum with all statutory benefits. It is that which is sought to be challenged in these appeals.
6. The primary contention of the learned Government Pleader is that there is material on record to indicate that the land was treated as ‘Pot Kharab’ from inception. In that, the revenue records had been ascertained on the basis of which the Notification under Section 4(1) of the L.A. Act was issued and it was always treated as ‘Pot Kharab’ land. It is, therefore, contended that ‘Pot Kharab’, if classified under Rule 21(2) of the Karnataka Land Revenue Rules, 1966 (hereinafter referred to as ‘1996 Rules’, for brevity), the lands would vest in the State as they :
8. : are being used for public purpose, and therefore, the question of any conversion of the land did not arise and any such conversion made itself was illegal and the Special Land Acquisition Officer was justified in holding that the claimants are not entitled to any compensation when the land in question was treated as ‘Pot Kharab’ and classified as ‘Pot Kharab’ under sub-clause (b) of sub-rule (2) of Rule 21 of the 1996 Rules, and hence, seeks to challenge the judgment of the Reference Court in having awarded substantial amount of compensation.
7. Notwithstanding the material on record to indicate that the land in question was ‘Pot Kharab’ land classified under sub- clause (b) of sub-rule (2) of Rule 21 of the 1996 Rules. it is this primary contention, which is emphasised and re-emphasised and sought to be fortified by two judgments, namely, Sadashivaiah and Others versus State of Karnataka and Others, ILR2003Karnataka 5088, wherein it is laid down that when land is classified as ‘Phot Kharab’ land under sub-clause (b) of sub-rule (2) of Rule 21 of the 1996 Rules, it would vest in the State and no :
9. : individual can claim any right over the same and the award of compensation in respect of such land would not arise.
8. He would also place reliance on the judgment in the case of V. Narayana Swamy and Another versus The Special Land Acquisition Officer, B.D.A. and Another, ILR2005KAR4020 9. The learned counsel for respondents, on the other hand, would seek to justify the judgment of the Reference Court.
10. The point for consideration in these appeals is – ‘Whether there is material on record to indicate whether the land in question was classified as ‘Pot Kharab’ under sub-clause (b) of sub-rule (2) of Rule 21 of the 1996 Rules?.’ 11. The Rule 21 of the 1996 Rules is reproduced herein under for reference – “21. Classification – (1) For the purposes of assessment, all lands shall be classed with respect to their productive qualities. The number of classes and :
10. : their relative value reckoned in annas (16 annas, i.e., 100 per cent classification value) shall be fixed under the orders of the Commissioner for Survey, Settlement and Land Records with reference to the circumstances of the different tracts of the State to which the Survey extends and to the nature of the cultivation, and the classification results shall be recorded in the following books and forms – (a) Prathi Book; (b) Bagayat Taktha; (c) Darwari; (d) Classer’s Register; (e) Statement showing bifurcation of soil and water assessment; (f) Akarband. (2) During the process of classification land included as unarable shall be treated as “pot Kharab”. Pot Kharab lands may be classified as follows – (a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing floors of the holder; (b) That which is not assessed because, (i) it is reserved or assigned for public purpose; :
11. : (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for village potteries.” 12. As can be seen, when unarable land is classified as ‘Pot Kharab’, meaning that it is not brought under cultivation and that no land revenue is paid in respect of such land any further classification in sub-clause (a) of sub-rule (2) of Rule 21 of the 1996 Rules, it is evident that if it is unarable and unfit for agriculture and may include farm buildings or threshing floors of the holder, it would form part of larger extent of land, held by the owner and would run with the land. Nodoubt, it would be unarable land and no land revenue is paid on the same, but ownership of the land would continue with the land owner. If it is classified as under sub-clause (b) of sub-rule (2) of Rule 21 of the 1996 Rules, it would be utilised for a public purpose and no individual would have any claim over the same and it would be used for purposes such as for road or footpath or a tank or a :
12. : stream or burial ground or cremation ground or for village potteries.
13. In the present case on hand, the State has not produced any material to indicate that it was being used for any of the purposes as are contemplated under sub-clause (b) of sub-rule (2) of Rule 21 of the 1996 Rules, in the absence of which it cannot be said that the State is justified in claiming that the land would be classified under sub-clause (b) of sub-rule (2) of Rule 21 of the 1996 Rules, as aforesaid.
14. In the absence of any such material and in the face of the circumstance that the plots in question had been converted by a competent Authority no less than the Special Deputy Commissioner, Bijapur, for non-agricultural purposes in favour of the respect land holders, the presumption would arise that it was apparently ‘Pot Kharab’ classified under sub-clause (a) of sub-rule (2) of Rule 21 of the 1996 Rules for otherwise an Authority of the State Government would not have accepted any such application :
13. : for conversion if the lands stood vested in the State and was being utilised for public purpose.
15. Therefore, the vehement contention of the learned Government Pleader that even if there is insufficient material it is a question which requires to be enquired into, and therefore, the matter should be remanded for a fresh enquiry is not a contention that can be accepted. The land has been acquired in the year 2005 and the land owner not being provided any compensation even as on date and on the specious plea now raised in these appeals, is unfair and unjust, which leads to a mis-carriage of justice. Therefore, the appeals are summarily dismissed in the above circumstances.
16. The respondents would be entitled to the compensation with all statutory benefits and applicable interest thereon and the same shall be paid and released in favour of the respondents forthwith, in any event within a period of six weeks, failing which :
14. : the interest payable on the amount of compensation shall stand enhanced to 24% from the date of default till the date of payment. Sd/- JUDGE Sd/- JUDGE hnm/