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IN THE HIGH COURT OF

KALABURAGI BENCH

DATED THIS THE 10 TH DAY OF APRIL 2015

BEFORE

THE HON’BLE MR. JUSTICE K.N.PHANEENDRA

MSA No.200009/2015 Between:

Chandrakanth since deceased by LRs.

1. Mahadevi W/o: Late Chandrakant, Age: 51 Years, Occ: Labour,

2. Vijayakumar S/o: Late Chandrakant, Age: 35 Years, Occ: Agril, Labour,

Both R/o: Chimmaidlai Village, Tq: , Dist: .

… Appellants

(By Sri S.S.Sajjanshetty, Advocate)

And:

1. The Special Land Acquisition Officer, M & MIP Gulbarga, Room No.2, Vikas Bhavan, Gulbarga-585101. 2

2. The Executive Engineer, Lower Mullamari Project, Division, Tq: Chincholi, Dist: Gulbarga-585101.

3. The Deputy Commissioner, Vidhan Soudha, Main Road, Dist: Gulbarga-585101. … Respondents

(By Sri A.Syed Habeeb, AGA for R1 and R3 (MA not filed) Sri Gourish Khasampur, Advocate for R2 (VK not filed))

This MSA is filed under Section 54(2) of the Land Acquisition Act, against the judgment and award dated 28.06.2014 passed in LACA No.188/2012 on the file of the III Addl. District Judge at Gulbarga, allowing the appeal and setting aside the judgment and award dated 25.10.2003 passed in LAC No.325/2002 on the file of the Civil Judge (S.D) at Sedam.

This appeal coming on for Admission this day, the Court delivered the following:

J U D G M E N T

Heard Sri Gourish Khashampur, learned counsel for respondent No.2 and Sri Syed Habeeb, learned AGA for respondent Nos.1 and 3. 3

2. The appellants are the farmers who lost their lands for public purpose. Being aggrieved by the award of the compensation by the Special Land Acquisition Officer and also by the III Addl. District Judge, Gulbarga, approached this Court for further enhancement of the compensation. The undisputed facts are that the appellants are the owners of the land bearing its

Sy.No.48/3 measuring 04 acres 14 guntas of Chimmaidlai Village

Chincholi Taluka, which was acquired by the State for right side canal of Mullamari Project by way of 4(1) notification dated

23.08.1996 after following due procedure under the Land

Acquisition Act. At the earlier stages the Special Land

Acquisition Officer has fixed the compensation at the rate of

Rs.17,000/- per acre considering the lands of the appellants as dry lands. The appellants aggrieved by the said fixation of the compensation submitted their protest petition under Section 18(1) of the Act before respondent No.1 and in turn the reference was made to the Civil Court for enhancement of compensation. The

Civil Judge (S.D) Sedam, who held an enquiry and enhanced the 4

compensation at the rate of Rs.36,000/- per acre for the dry land with all statutory benefits, interest etc. Being aggrieved by the said order the appellants have preferred the land acquisition appeal in

No.188/2012 on the file of the III Addl. District Judge at

Gulbarga. By judgment dated 28.06.2014 the compensation was further enhanced to Rs.75,795/- as against Rs.36,000/- awarded by the Reference Court. Being not fully satisfied with the order of the learned III Addl. District Judge, Gulbarga, the appellants are before this Court for further enhancement of the compensation.

3. The learned counsel for the appellants drawn my attention to the decision of this Court in MFA No.30169/2008 between

Suryakanth V/s Spl. Land Acquisition Officer, Gulbarga, wherein, the lands were acquired for similar purpose i.e. for the purpose of construction of Lower Mullamari Project, of neighboring village of Gadilingadalli Village, wherein the notification dated

27.12.1992 was issued under Section 4(1) of the Land Acquisition

Act. The appellants in the said case being not satisfied with the award passed by the Special Land Acquisition Officer, the Civil 5

Judge (S.D) Sedam and also the III Addl. District Judge at

Gulbarga, ultimately approached this Court. This Court in similar set of facts and circumstances for the lands acquired by the surrounding villages has enhanced the compensation to the dry lands at the rate of 1,15,086/- per acre, and Rs.1,72,630/- per acre for irrigated land. It appears the said order passed by this Court in MFA No.30169/2008 dated 05.04.2014 has reached its finality.

The lands which are acquired so far as the present appellants are concerned are situated at Chimmaidlai village Chincholi Taluka, which is adjacent village of Gadilingadalli village and further the purpose of acquisition are one and the same, but the date of notification are different. Therefore, looking to the above said circumstances the appellants are also entitled for enhancement as per the verdict given by this Court earlier in MFA No.30169/2008 as noted above.

4. Learned counsel for the appellants strenuously contended that, as the notification is subsequent which was issued on 6

23.08.1996 therefore the compensation has to be awarded with escalation at the rate of 10%.

5. Per contra Sri Gourish Khashampur, learned counsel for respondent No.2 strenuously contends that invaribaly the Court has been enhancing the compensation with the escalation at the rate of 5%. Therefore, he requests the Court, depending upon the facts and circumstances of this case to enhance the compensation with the escalation at the rate of 5%.

6. Learned counsel for the appellants has drawn my attention to the decision rendered by this Court in MFA Nos.4994 of 2008 with other connected matters vide judgment dated 29.09.2010, wherein this Court has passed the order enhancing the compensation at the rate of 10% escalation. On perusal of the above said judgment the Court has observed that in the said cases the materials have been placed before the Court to show the said lands are abutting to Bhima river and probable irrigation facilities increased to the vale of the said land. Further added to that, the 7

Court also considered that the topography of the area has been changed and irrigation facilities have been increased. Therefore, the Court has observed that instead of 8%, 10% of the escalation rate has to be increased, but in this particular case no materials are produced to show that this land is abutting to any river so as to come to the conclusion that the topography of the area is changed and irrigation facilities were available to the said land, so that the land could have been converted as a wet land. Under the above said circumstances, there is no hard and fast rule as to the percentage to be fixed with regard to the escalation prices, but depending upon the facts and circumstances of each case the

Court has to pass appropriate and reasonable order. I can understand, if it is a wet land and, the rates of the wet lands are increasing like anything, moreover in the wet land three times crop can be raised per year, whereas in so far as dry lands are concerned, if it rains only one crop can be raised per year.

7. Under the above said circumstances, considering the facts and circumstances of this case, I am of the opinion, if the 8

escalation at the rate of 8% is adopted it would meet the ends of justice. In view of the above and also the facts and circumstances of the case, I proceed to passe the following;

ORDER

The appeal is partly allowed. The market value is determined at Rs.1,53,000/- per acre. The appellants are also entitled to all the consequential statutory benefits and interest as per law on the basis of the said market value.

Sd/- JUDGE

MSR *