Smt Doddamma vs The Special Land Acquisition Officer

-1- NC: 2024:KHC:48110 MSA No. 69 of 2023

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 23RD DAY OF NOVEMBER, 2024

BEFORE

THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

MISCELLANEOUS SECOND APPEAL NO.69 OF 2023 (LA)

BETWEEN:

1. SMT. DODDAMMA W/O LATE GANGANNA AGED ABOUT 72 YEARS

2. SRI. PUTTASWAMAIAH S/O LATE GANGANNA AGED ABOUT 37 YEARS

3. SMT K.S. SUJATHA D/O LATE SHIVANNA AGED ABOUT 38 YEARS

ALL ARE R/AT KODIYALA VILLAGE CHELURU HOBLI GUBBI TALUK Digitally signed by RAMYA D TUMAKURU DISTRICT - 572 117 Location: HIGH ...APPELLANTS COURT OF KARNATAKA (BY SRI. V. B. SIDDARAMAIAH, ADVOCATE)

AND:

1. THE SPECIAL LAND ACQUISITION OFFICER HEMAVATHI CANAL ZONE, TUMAKURU TUMAKURU DISTRICT - 572104.

2. THE CAUVERY NIRAVARI NIGAMA LTD REPRESENTED BY ITS MANAGING DIRECTOR ANAND RAO CIRCLE BENGALURU. -2- NC: 2024:KHC:48110 MSA No. 69 of 2023

...RESPONDENTS (BY SRI. K.S. BEHEEMAIAH ADVOCATE FOR R2; SRI. RAJENDRA .K.R. AGA FOR R1)

THIS MSA FILED UNDER SECTION 54(2) OF LAND ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DATED 02.01.2018 PASSED IN RA NO.169/2017 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 13.10.2014 PASSED IN LAC NO.208/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE GUBBI. PARTLY ALLOWING THE REFERENCE PETITION FILED UNDER SEC.18(1) OF LAND ACQUISITION ACT.

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

ORAL JUDGMENT

This Miscellaneous Second appeal is filed by the

claimants challenging the judgment and award dated

02.01.2018 in R.A.No.169/2017 passed by I Additional

District and Sessions Judge, Tumakuru and the

judgment and award dated 13.10.2014 in

LAC.No.208/2006 passed by the Senior Civil Judge,

Gubbi, seeking enhancement of compensation. -3-

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2. Heard the argument of learned counsel from

both side and perused the records.

3. It is the case of the claimants that the

claimants are absolute owners of the lands bearing

Sy.No.99/4, measuring 04 acre 13 guntas consisting

of 75 coconut trees and in Sy.No.45/3 measuring 6

guntas consisting of 6 mango trees thereon, situated

at Kodiyala village, ChelurHobli, Gubbi Taluk.

4. The relevant details of the compensation

awarded to the claimants are as under:

1 Preliminary Notification 09.08.1990 issued under Section 4(1) of Land Acquisition Act, 1894

2 Final Notification issued under 22.08.1991 Section 6(1) of Land Acquisition Act, 1894

3 Date of passing the award by 18.09.1992 SLAO

4 Award of SLAO In Sy.No.45/3, 18,000/- per acre) compensation for six mango trees is rejected and in Sy.No.99/4, Rs.20,000/- per acre) Rs.78,519/- for 75 coconut trees (Rs.1046.92/- for each coconut tree).

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5. Being aggrieved by inadequate

compensation, reference was made under Section

18(1) of the Act and the Reference Court has fixed

compensation of Rs.42,000/- for per acre in

Sy.No.45/3; Rs.1,05,000/- for per acre and

Rs.1,31,185/- for 75 coconut trees (Rs.1,749.13 for

per coconut tree) in Sy.No.99/4 and compensation in

respect of six mango trees was rejected.

6. Upon appeal before the First Appellate

Court, the compensation for the land was enhanced to

Rs.80,000/- per acre in Sy.No.45/3; Rs.5,62,500/-

for 75 coconut trees (Rs.7,500/- for one coconut tree)

in Sy.No.99/4; enhancement of compensation in

respect of six mango trees in Sy.No.45/3 and

compensation for 04 acre 13 guntas of land in

Sy.No.99/4 was rejected.

7. Learned Counsel for the appellants

submitted that the compensation awarded by both the -5- NC: 2024:KHC:48110 MSA No. 69 of 2023

First Appellate Court and the Reference Court are on

the lower side. They referred to the judgment in

various other cases passed by the Reference Court,

First Appellate Court and by this Court in respect of

the very same project and pray for enhancement of

compensation. Therefore, they submitted that in the

present case also, the appellants/claimants are

entitled for enhancement of compensation on the

ground of parity.

8. On the other hand, learned Counsel for

respondent No.2-Cauveri Neeravari Nigam Limited

submitted that second respondent is the beneficiary of

the land acquisition, but it was not made a party both

in the Reference Court as well as First Appellate Court

and second respondent was deprived of taking

contention before both the Courts below. Therefore,

they opposed the enhancement of compensation by

contending that compensation is to be assessed on the -6- NC: 2024:KHC:48110 MSA No. 69 of 2023

basis of nature of soil, situation of land, distance

between nearest town or city, whether the land is

abutting to any highway or situated at distance from

the highway, whether highway is a state highway or

national highway or district road, what are the ages of

trees situated on the land, how much quantity of trees

are fruit bearing etc. are to be adduced in evidence

and then only a determination of proper compensation

would be arrived at. But the second respondent who

was not a party before the courts below was

straightaway impleaded as a party in this appeal.

Therefore, he prayed for remanding the matter to the

Reference Court so as to enable second respondent to

cross-examine the witnesses of the claimant and also

to adduce evidence.

9. Upon hearing the rival contentions, the

points that arise for consideration are as follows: -7-

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i. Whether under the facts and circumstances of the case, the second respondent who is a beneficiary of the land acquisition is a necessary and proper party before the Reference Court in the land acquisition proceedings?

ii. What orders?

10. The land owners are claiming that they are

the owners of the land and their land was acquired for

Hemavathi Canal Project. Being dissatisfied with the

quantum of compensation awarded by the First

respondent-the SLAO, the claimants made the

application under Section 18(1) of the Act and SLAO

referred the case to the Reference Court. The

claimants have prosecuted the case before the

Reference Court without making the second

respondent as a party, though the second respondent

is beneficiary to land acquisition. Even in the appeal

before the First Appellate Court, second respondent -8- NC: 2024:KHC:48110 MSA No. 69 of 2023

was not made a party. The second respondent is the

beneficiary of the land acquisition and first respondent

is only the acquiring authority but not the beneficiary.

The first respondent being acquiring authority has

initiated land acquisition proceedings for the purpose

of formation of Hemavathi Canal project on behalf of

the beneficiary and ultimately, beneficiary is entitled

to take over the land acquired by the first respondent

and form the project and therefore, compensation

would be given by the beneficiary party, but not by

the first respondent. Therefore, in this context, the

beneficiary on whose behalf of the land is acquired is a

proper and necessary party. Though the proceedings

can be adjudicated in the absence of proper party. But

necessary party is that in whose absence, there could

not be effective adjudication between the parties.

Therefore, second respondent beneficiary is not only

proper party, but also necessary party. -9-

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11. Order I Rule 10 of CPC stipulates regarding

filing of suit in the name of wrong plaintiff and the

Court may strike out or add parties dealing with

necessary and proper party in the suit.

"A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court.

If a "necessary party" is not impleaded, the suit itself is liable to be dismissed.

A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made.

Distinction between necessary and proper parties. The distinction between the two terms can be noted as follows:

NECESSARY PARTY PROPER PARTY

Necessary party is the party In case of proper parties, the whose presence is presence or absence is no indispensable for the suit to ground for determining be adjudicated upon whether the suit should be dismissed or not

Necessary party is the party The passing of a decree is not

which is essential for an order dependent on the demands of to be passed, since the order proper parties. (However, the is based upon the relief asked decree is applicable upon for by such party proper party as well)

For example: In a suit For Example: In a suit

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regarding partition of land or between landlord and tenant, property, all the people who a sub - tenant would be a have a share in the property proper party (though he is are necessary parties; In a affected by the decree, his suit regarding selection and presence is not indispensable) appointment, all those who In a suit regarding land or have been selected or property acquisition between a appointed are considered as father and son, the other necessary parties. relatives, like grandfather, uncle, aunt etc. would be proper parties.

In Gurmit Singh Bhatia v. Kiran Kant Robinson, (2020) 13 SCC 773 : 2019 SCC OnLine SC 912 at page 778, the Supreme Court has observed:

It is further observed and held by this Court that two tests are to be satisfied for determining the question as to who is a necessary party. The tests are: (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test that can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject-matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and

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possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.

In U.P. Awas Evam Vikas Parishad v. Gyan Devi, (1995) 2 SCC 326 at page 343, the Supreme Court has observed:

21. The law is well settled that a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding.

In Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd.,(2012) 8 SCC 384 : (2012) 4 SCC (Civ) 1 : 2012 SCC OnLine SC 616 at page 413, the Supreme Court has observed:

41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:

41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.

41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters

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and issues, though he may not be a person in favour of or against whom a decree is to be made.

41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."

12. The second respondent being the beneficiary

on whose behalf lands are acquired for formation of

some projects, therefore, beneficiary will take control

over the lands acquired and every title, right and

interest would be vested with the beneficiary and

ultimately, while determining the compensation,

beneficiary must be heard by giving opportunity to the

beneficiary. Therefore, without making beneficiary a

party, determining compensation and thereafter

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directing the beneficiary to pay compensation is

violation of principles of audi alteram partem.

Therefore, beneficiary on whose behalf land is

acquired is a necessary party and in whose absence,

there could not be effective adjudication. Without

making the beneficiary as a party in the proceedings,

determining the compensation and compelling the

beneficiary to pay compensation is nothing but

violation of principles of natural justice as ultimately,

it is beneficiary who has to pay compensation to the

claimants/land loosers.

13. The Special Land Acquisition Officer who is

the acquiring authority has been vested with power by

the Government to acquire the land for the purpose of

some projects of the Government on behalf of the

beneficiary. After acquisition, the beneficiary shall

hold, control, supervise, monitor and use the said land

for the purpose of carrying out the project. Therefore,

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the beneficiary will become owner of the said land for

the purpose of carrying out the project after

completion of the acquisition proceedings. Then the

role of the beneficiary will start. It is actually the

beneficiary is interested party. Thus, he is taking over

right to participate in the acquisition proceedings and

in the process of adjudication determining

compensation where the claimants are claiming

compensation based on the nature of soil, potentiality

of the land whether it is vicinity to the town and city

and whether it is adjacent to National Highway/State

Highway/District Road, whether in the surrounding

any potential commercial activities are there, fertility

of the land, standing trees thereon, fruit bearing yield

of trees, age of trees etc., are to be considered by

both the claimants and beneficiaries. Therefore, the

beneficiary is a necessary party. Ultimately, the

beneficiary is disbursing compensation to the

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claimants/land loosers. Therefore, the beneficiary is

not only proper party, but also necessary party. In

this regard, I place reliance on the judgment of the

Hon'ble Supreme Court in the case of U.P.AWAS

EVAM VIKAS PARISHAD VS. GYAN DEVI (DEAD) BY

1 LRS. AND OTHERS , wherein at paragraph Nos.21 and 22

observed as follows:

"21. We may now come to the stage of the proceedings before the court in a reference under Section 18 of the L.A. Act made at the instance of a person having interest in the land being acquired. At this stage also Section 50(2) of the L.A. Act envisages that the local authority has a right to appear and adduce evidence before the court. This right is independent of the right that is available to the local authority to appear and adduce evidence before the Collector. Even though the local authority had failed to appear before the Collector in spite of notice or had appeared in response to notice and had adduced evidence, the local authority may consider it necessary to adduce evidence to rebut the evidence adduced by the person who has sought the reference and to defend the award made by the Collector. Failure to give notice at this stage would result in denial of the said right of the local authority. Before we consider the remedy that is available for seeking redress against the 1 (1995) 2 SCC 326

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denial of this right we may examine whether the local authority has a right to be impleaded as a party in the proceedings before the reference court. That raises the question whether the local authority can be regarded as a necessary or a proper party. The law is well settled that a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding. (See Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue.) A local authority for whom land is being acquired has a right to participate in the acquisition proceedings in the matter of determination of the amount of compensation while they are pending before the Collector and to adduce evidence in the said proceedings. While it is precluded from seeking a reference against the award of the Collector it can defend the award and oppose the enhancement of the amount of compensation sought before the reference court by the person interested in the land. Moreover the local authority has a right to appear and adduce evidence before the reference court. Having regard to the aforesaid circumstances, we are of the opinion that the presence of the local authority is necessary for the decision of the question involved in the proceedings before the reference court and it is a proper party in the proceedings. The local authority is, therefore, entitled to be impleaded as a party in the proceedings before the reference court.

22. In case the amount of compensation has been enhanced by the court and no appeal is filed by the Government the local authority if adversely

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affected by such enhancement may file an appeal with the leave of the court. This right of the local authority does not depend on its being impleaded as a party in the proceedings before the reference court. Even if the local authority is not impleaded as a party before the reference court it can file an appeal against the award of the reference court in the High Court after obtaining leave if it is prejudicially affected by the award. In case the Government files an appeal against the enhancement of the award the local authority is entitled to support the said appeal and get itself impleaded as a party. When the person having an interest in the land files an appeal in the High Court against the award of the reference court and seeks enhancement of the amount of compensation the local authority should be impleaded as a party in the said appeal and it is entitled to be served with the notice of the said appeal so that it can defend the award of the reference court and oppose enhancement of the amount of compensation before the High Court. The same will be the situation in case of an appeal to this Court from the decision of the High Court."

14. Further, in these proceedings, if the

compensation is enhanced by referring to judgments

and awards rendered in other cases, what would be

the difference in factual matrix in those cases and

present case are to be ascertained. Though reference

is made of the awards/orders passed in other cases by

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contending that lands are similarly situated as in the

present case, but the evidence adduced in those

proceedings are to be considered regarding

ascertainment of nature of land, standing trees

thereon, quantum of fruit bearing trees according to

age of the trees, whether there are state highway or

national highway abutting to the land, what is the

distance between aforesaid land and nearby town or

city, potentiality of land etc. Therefore, in this regard,

the beneficiary must be made as party and

opportunity of tendering evidence is to be given and

shall be heard and in the absence of beneficiary,

determining the compensation is not correct.

Therefore, when the compensation is determined

without beneficiary but ultimately, beneficiary is liable

to pay compensation, then without making beneficiary

a party amount to denial of right to the beneficiary at

the time of determining the compensation.

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15. The Government has also issued Circular

bearing No.RD 04 LCA2024 (E-1351620) dated

07.03.2024 stating that on whose behalf land is

acquired, they must be made a party in the

proceedings. When the Courts have determined the

compensation and execution of said awards are made,

unnecessarily, there will be orders from the Courts

attaching the movable properties of SLAO/State

authorities. But the SLAO/State authorities are only

acquiring authority and ultimately, the compensation

will have to be paid by the beneficiaries but they are

not made as parties. This would cause unnecessary

delay in executing the award, affecting right of the

claimants/land owners. Therefore, in this way,

beneficiary will have to be made as a party in the

acquisition proceedings.

16. Therefore, for the aforesaid reasons and in

view of the principle of law laid down by the Hon'ble

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Supreme Court in U.P.AWAS EVAM VIKAS

PARISHAD's case (stated supra), the point is answered

in the affirmative holding that beneficiary must be

made a party in the land acquisition proceedings while

determining the compensation as beneficiary is not

only proper party, but also necessary party. But in

the present case, second respondent beneficiary was

not made party in the Reference Court as also before

the First Appellate Court and straightaway second

respondent is made a party in this appeal by way of

impleadment. Therefore, this court is of the opinion

that the matter must be is remanded to the Reference

Court and impugned award passed by the Reference

Court and the First Appellate Court will have to be set

aside. The second respondent beneficiary will have to

be made as a party in the Reference Court and parties

are to be given opportunity to adduce their further

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evidence, if they are so advised, either oral,

documentary or both.

17. Hence, I pass the following:

ORDER

i. Miscellaneous Second Appeal is allowed;

ii. The order of the First Appellate Court dated 02.01.2018 passed in R.A.No.169/2017 and the order of the Reference Court dated 13.10.2014 in LAC No.208/2006 are set aside and the matter is remanded to the Reference Court for fresh disposal in accordance with law;

iii. Second respondent herein shall be made as a party in the Reference Court;

iv. Liberty is reserved to both parties to adduce evidence in further if they are so advised, either oral, documentary or both.

v. All parties in the case shall be present before the Reference Court on 06.01.2025;

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vi. The Reference Court shall decide the case and pass appropriate orders within six months from 06.01.2025.

vii. All contentions of parties are kept open.

viii. Court fee paid by the claimants in this appeal shall be refunded to the claimants with proper identification.

ix. In view of disposal of appeal, pending applications, if any do not survive for consideration and accordingly, they are disposed of.

SD/-

(HANCHATE SANJEEVKUMAR) JUDGE

SRA List No.: 1 Sl No.: 28