IN THE HIGH
COURT OF KARNATAKA AT BANAGALORE
(Memorandum of Misslenious Appeal Under Section 54 (1) of the Land Acquisition Act, 1894)
In the court of II ADDL. Senior Civil Judge, Mysore
LAC No.00/2003
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
MFA No. /2015
Between: This Court Lower Court
ABC
GPA Holder of Venkatsubbaiah
R/o. No.891, Naryanshastry Road,
Mysore 570004 Appellant Claimant
And:
- Assistant Commissioner
Mysore Sub Division
Mysore
- Life Insurance Corporation of India
Rep.by its Divisional Managaer,
Mysore-Bangalore Highway,
Bannimantap,
Mysore 570 015
The appellant most respectfully submits as under
- The address of the appellant for the purpose of issuances of court notices, summons etc., are shown in the cause title and that of Sri. OPQ, No. 00/8/2, , Bangalore 560 080
- The address of the respondents for the similar purpose are as shown in the above cause title.
- This appeal is preferred being aggrieved by the judgment and award dated 05/11/2014, passed by the II ADDL. Senior Civil Judge, Mysore in LAC No. 00/2003 , on the following amongst other facts and grounds: Copy of the order is herewith produced and marked as Annexure A
BRIEF FACTS OF THE CASE
- That, in terms of Preliminary Notification dated 22.10.1990 issued under section 4(1) of the Land Acquisition Act; land in Sy.No. 266, 267, and 268 totally measuring 4 acres 36 guntas situated at Belavatha Village, Kasaba Hobli, Mysore Taluk, came to be acquired for the benefit of second respondent
- Subsequently declaration under section 6 of the Land Acquisition Act, having been issued, the Land Acquisition Officer passed an award on 9.9.1991 fixing the market value at the meager rate of Rs.1,50,000/- per acre,. Being aggrieved by the meagerness of the compensation awarded, the appellant being the owner to an extent of 1 acres 18 guntas out of the aforesaid extent of land sought reference of the award to the Civil Court for adjudication of the proper market value.
- It is appropriate to mention here itself that, the land sought to be acquired though mentioned as Agricultural land in Sy. No. 266,267 and 268; it had ceased to be an agricultural land long before the aforementioned acquisition notifications.
- That, a residential layout being formed and Buildings were constructed on the properties after obtaining the necessary approval of the Mysore Urban Development Authority which after inspection has given house list numbers as MDA 271, 272, 273, 274, 275, 276, 277, 278, 279 and 280. Further, the Comprehensive Development Plan of Mysore City shows the subject place and its surroundings earmarked/meant for residential purposes.
- That, apart from stating the above aspects it was also brought to the notice of the first respondent about the fact of several persons being made siteless/Homeless thereby causing great injustice and injury; the appellant sought for dropping of the acquisition proceedings. However, the said objections came to be overruled and acquisition proceedings remained, continued and concluded. Copy of the objections is herewith produced and marked Annexure B
- That, subsequently in the year 2002 and after a delay of more than ten years an award came to be passed by the first respondent fixing the award at Rs.1,50,000/- per acre. The appellant not being happy with the award passed made an application under section 18 of the Land acquisition Act before the first Respondent i.e. land Acquisition officer to refer the matter to the civil court for awarding higher compensation. The said application being rejected by an endorsement dated 19.12.2002 on the ground that the compensation was fixed by an Agreement i.e. under the consent award; the said endorsement was challenged before this Hon’ble court by filing WP No.00/2003 and this court vide its dated 28.03.2003 was pleased to allow the writ petition and consequently quashed the endorsement dated 19/12/2002 and directed the first Respondent to refer the matter to the Civil court and accordingly after reference L.A.C.No.00/2003 came to be registered before the Civi l court, Mysore. Copies of the letter seeking reference, copy of the endorsement and the order passed by this Hon’ble court in WP No.00/2003 are herewith produced and marked as Annexure C,D,and E
- It is submitted that challenging the order in WP No.00/2003 the first respondent-State filed WA No. 00/2004 before this Hon’ble court and the same came to be dismissed by this Hon’ble court. It is pertinent to note here that the second respondent corporation was a party to the said writ appeal proceedings before this Hon’ble court. Copy of the order in WA No.00/2004 is produced as Annexure F
- That, after the dismissal of the WA.00/2004 the Civil court at Mysore as per the order in WP No. 00/2002 undertook trial and after a full fledged trial and after considering the evidence adduced and the documents produced the, vide its judgement dated 28/12/2008 partly allowed the claim of the appellant by enhancing the compensation amount to Rs13,00,000/- from Rs.1,50,000/- per Acre. Copy of the Judgement and Award is produced as Annexure G
- It is submitted that, challenging the award passed in LAC No.00/2003 the, second respondent corporation filed Writ Petition No.00/2009 on the ground of it being not made a party to the LAC proceedings before the Civil court, Mysore. That, in the meanwhile the appellant herein filed MFA 00/2009 seeking enhancement of the award dated 28/12/2008 in LAC No 00/2003 passed by the civil court Mysore; both matters were clubbed together by this Hon’ble court. This Hon’ble court vide its common order dated 17/08/2011 was pleased to allow the writ petition No00/2009 and further set aside the award passed in LAC No00/2003 and remanded the matter for fresh disposal of LAC No.00/2003 by the civil judge, Mysore. Copy of the said common order is produced as Annexure H
- It is submitted that thereafter the Learned Civil Judge, Mysore once again considered LAC No.00/2003 afresh; further evidence was led by the appellant. The learned civil judge vide its order dated 05/11/2014 was pleased to dismiss the reference only on the ground of it being a consent award obtained by the appellant way back in the year 1991 and as such the same cannot be considered for enhancement of Award under reference and as per section 18(1) of the Land Acquisation Act. The learned civil judge failed to take note of the fact, that the award money was paid in the year 2002 and was received by the appellant under protest. Copy of the said objection is produced as Annexure J.
- The learned Civil judge failed to take into consideration that, the alleged Award was meant to be acted upon and complied with immediately and not after the passing of more than 11 years from the date of passing of the award; the learned judge also failed to appreciate the fact of appellant having clearly filed its objection and having received award money under protest. Hence, in the circumstances the dismissal of reference made under section 18(1) of the Land Acquisation Act which was registered in LAC No.00/2003 is bad and hence this challenge to the sam on the following amongst other grounds.
G R O U N D S
- The order passed by the learned civil judge, Mysore on the face of it wrong and contra to the facts of the present case and its background.
- The learned civil judge failed to consider the fact that award is dated 9/9/1991 but, however the award money never came to be deposited by the 2nd respondent with the 1st respondent within the stipulated time as envisaged under Land Acquisition Act.
- It is respectfully submitted that the judgement relied upon by the court below (AIR 1995 SC 2340) in coming to the conclusion about the reference under section 18 of the Land Acquisition Act is not maintainable has no relevance to the facts of the present case. In the case on hand unlike as held in the aforementioned judgement this, appellant has very much filed his objections on 30/09/2002 and as well on 30/11/2002 and even the meager award amount of R.2,17,500/- was accepted under protest by filing objections.
- The finding recorded to the effect that there was never any objections filed either prior to the acquisition or while receiving the Award is on the face of it a wrong, misguided and illegal finding; since, copies of the objection/s filed to the Preliminary acquisition notification, Final acquisition and also before the passing of the Award were part of the records filed by this Appellant before the court below; it is further stated that in fact this appellant in 2002 had accepted the award of Rs.1.5 Lakhs per acre in respect of the award passed in the year 1992 under protest/objection. Hence, the said finding of the court below needs interference at the hands of this Hon’ble court since, the documents/records produced before the court below clearly establish the fact of objections being filed by this appellant.
- The second respondent- Life Insurance Corporation of India was party to the proceedings before this Hon’ble court in WA No. 00/2004 wherein this Hon’ble court were pleased to direct all the party/s in the said Writ Appeal to go and urge all their respective contentions before the LAC court; however, the second respondent did not choose to participate in the proceedings conduced in LAC No.00/2002 after the disposal of the said writ appeal. The court below failed to take into consideration this fact of the matter; further there was never any suppression on the part of the appellant in the earlier LAC proceedings. The case of the appellant throughout is that, objections were filed to the acquisition of his lands during section 4(1) as well 6(1) notification and also while passing of the award, further, the award money was received under protest. The learned Civil judge in the earlier LAC proceedings taking all these factors into consideration had passed the award enhancing the compensation amount from Rs. 1,50,000/ to Rs.13,00,000/- with 30% solatium etc. That, as could be seen from the records it is only in 1996 that the first respondent- Land acquisition officer directs the 2nd respondent to deposit the award amount of Rs.5,28,250/- and it was deposited thereafter. Hence, the contention of the respondents before the court below to the effect that, it was a consent award is not maintainable.
- The contention of the 1st Respondent for the first time about the award being a consent award after the matter came to be remanded by this Hon’ble court is belated an after thought though knowing very well about the objections/protest displayed by the appellant throughout and right from the date of initiation of acquisition proceedings.
- The endorsement dated 19.12.2002 issued by the land acquisition Officer being challenged and was quashed by this Hon’ble court in W.P.No.00/2003; further this court directed for entertaining and considering the reference made by the appellant; the said order in WP No.00/2003 upon challenged by the first respondent has been confirmed in WA No.00/2004 by the Division Bench of this Hon'ble Court in observing as follows
“in view of the matter having been referred, the parties are free to agitate all the points before the competent Civil Court”
Second respondent failed to appear and agitate before the court below in the earlier consideration of section 18(1) application by the court below.
- It is submitted that, the respondents cannot be permitted to take away the valuable right of the appellant in the subject land and thereafter made to suffer for more than 11 years
P R A Y E R
WHEREFORE it is prayed that this Hon’ble court be pleased to set aside the order dated 05/11/2014 passed by the II ADDL.Senior Civil, Judge, Mysore in L.A.C.No.00/2003 and consequently allow the claim of the appellant in the interest of justice and equity.
Date:02/12/2015 Advocate for Appellant
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
MFA No. /2015
Between: This Court Lower Court
ABC. R
GPA Holder of Mysore Appellant Claimant
And:
- Assistant Commissioner
Mysore Sub Division
Mysore
- Life Insurance Corporation of India
Rep.by its Divisional Managaer,
Mysore-Bangalore Highway,
Bannimantap,
Mysore 570 015
APPLICATION UNDER SECTION-5 OF INDIAN LIMITATION ACT.
For the reasons sworn to in the accompanying affidavit, appellant prays that this Hon’ble Court may be pleased to condone the delay of days in filing the above petition, in the interest of justice and equity.
Bangalore
Dated: Advocate for Appellant
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
MFA NO. /2015
BETWEEN:
ABC. R … Appellant
AND:
State of Karnataka & Other. … RESPONDENTS
AFFIDAVIT
I, R. ABC S/o, aged about 60 years, residing at No.891, Mysore, 570004 do hereby solemnly affirm and state on oath as follows:
- I am the Power of Attorney Holder of Venkatsubbiah and I am well conversant with the facts and circumstances of the case and am authorized to swear to the contents of this Affidavit.
- I state that above Appeal is filed seeking quashing of the order dated 05/11/2014 passed by the II ADDL.Senior Civil, Judge, Mysore in L.A.C.No.00/2003 and consequently enhance the compensation as sought by the appellant before the court below in LAC No.00/2003; that, for the sake of brevity and to avoid undue repetition I pray that the contents of Memorandum of First Appeal be read as part and parcel of this affidavit.
- I, state that certified copy of the order dated 05.11.2014 passed by the court below having been applied was furnished to the appellant on 17/12/2014; the present appeal should have been filed on or before . However, after the receipt of the certified copy of the order passed by the court below the same was communicated to the appellant who is aged more than 80 years in the month of January 2015 by the Advocate; that the appellant who is fighting this litigation for the last more than 25 years and had sort of given up the idea of further pursuing the above matter and went to a shell shock thinking about not able to do much regarding the said litigation in respect of his only property; it is stated that after much deliberation within sought to seek advise/direction from his family and well wishers and the appellant after having a considerable lengthy discussions over a period of time while seeking advise/suggestions as to the probability of appellant filing appeal against the order under challenge; that the appellant being well advised by his relatives and well wishers to file the present appeal before this Hon’ble court visited the office of his Advocate at Mysore and requested to prepare for filing of appeal before this Hon’ble challenging the order dated 05/11/2014 passed in LAC No.00/2003. The Appellant having waited for more than 2 months and without any fruitful outcome of the Advocate either preparing the Appeal or getting it prepared by any of his known counsels at Bangalore; the appellant left with no other option sought for return of the file and other necessary papers required to enable him to approach an Advocate at Bangalore and seek filing of this present appeal.
- It is submitted that, the appellant after handing over all the necessary papers to the Advocate in Bangalore was informed about the probable court fee amounting to more than Rs.1 lakh required to be paid along with and during the filing of the present Appeal.
- It is submitted that in the meanwhile and after having decided to file the present appeal the appellant had approached the State Legal services authority, Bangalore in the month of june/july 2015 and that thereafter after regular follow ups the appellant vide letter dated 06/08/2015 has been advised to file the present appeal challenging the order under challenge. Copy of the same is produced along with this IA as Annexure A
- It is submitted that the appellant is a retired Agriculturist and not having enough sources to arrange such a large sum of money immediately and as such the arrangement of money towards payment of court fee and other expenses took further considerable time.
- Delay in presenting the above appeal is on account of above bona fide reasons and not at all deliberate or intentional. Appellant has a good case on merits and his right should not be defeated on technical ground of limitation. No prejudice would be caused to respondents if the accompanying application is allowed and delay is condoned.
WHEREFORE, I pray that accompanying application be allowed and the delay of days in preferring the present appeal be condoned in the interest of justice and equity.
DEPONENT
VERIFICATION
I, R.ABC, the above named deponent do hereby confirm that the contents of this affidavit are true and correct to the best of my knowledge, information and belief.
Bangalore
Dated DEPONENT
Identified by me,
Advocate
No. of corrections.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
MFA NO. /2015
BETWEEN:
ABC. R … Appellant
AND:
State of Karnataka & Other. … RESPONDENTS
VALUATION SLIP
That, the appellant herein being the owner of Sy.Nos.266,267 and 268 upon award being fixed at the rate of Rs.1.50 Lakhs per acre had claimed compensation of Rs. 3,04,64,000/- at the rate of Rs.500 per Sq.ft for the said lands acquired by first respondent; That, the reference court has rejected the claim of the appellant. In this appeal the appellant is seeking compensation at the rate of Rs. 26,13,600/- per acre @ Rs. 60 per Sq.ft for land measuring 1 acre 16 guntas which will total upto Rs. 36,59,040/- for the said land of 1 acre 16 guntas. That, 30% solutium to the same would amount to Rs. 10,97,712/- making the total to Rs.47,56,752/-; further 12% interest from date of award in the year 1991 comes to Rs.1,36,99,445/-. Hence, the total enhanced claim, 30 % solutium and 12% interest would amount to Rs. 1,84,56,197/- ( Rupees One crore eighty four lakhs and fifty six thousand only. As per Schedule-I, Article -1 cluse xvi of the Karnataka court fee and Valuation Act, 1958; an amount of Rs. 299405/-
Bangalore
Date: ADVOCATE FOR THE APPELLANT
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
MFA NO. /2015
BETWEEN:
ABC R … Appellant
AND:
State of Karnataka & Other. … RESPONDENTS
MEMO
- The above appeal has been filed challenging the order dated 05/11/2014, passed by the II ADDL. Senior Civil Judge, Mysore in LAC No. 00/2003 marked as Annexure A to the appeal.
- It is now submitted that, the order by the II ADDL. Senior Civil Judge, Mysore in LAC No.00/2003 has been passed rejecting the claim of the appellant herein as not maintainable.
- It is now understood/realized that, the right course of action to challenge the said order passed in LAC No.00/2003 is to prefer a Writ Petition and not the present Mis.First Appeal.
- That, this appeal is not filed challenging the quantification of compensation.
HENCE, This memo is filed seeking permission of this Hon’ble court to permit the appellant to convert the present appeal into writ petition to meet the ends of justice.
Date: 22/06/2017 Advocate for Appellant
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
MFA NO. 00/2015
BETWEEN:
ABC R … Appellant
AND:
State of Karnataka & Other. … RESPONDENTS
MEMO FOR RETURN OF DOCUMENTS
In then above matter the Hon’ble High court of Karnataka vide its order dated has directed the Registry to return the originals/Certified copies filed at the time of filing the above Appeal. Hence, this Memo is filed for return of the originals/certified copies of the documents filed along with the above Appeal.
Date: Advocate for Appellant
