Whereas, the first respondent has set up a defence, of permanent lease, therefore, the burden of proving the fact that the lease in question is a permanent lease is on the Anubhavadar.
2. M.F.A Cr. Ob 22/2002 has been filed by the Cross-Objector/ Anubhavadhar challenging the Judgment and Award dated 30-8-2001 passed in L.A.C. No. 228/2000 by the II Additional Civil Judge (Sr.Dn)., Bagalkot on 30-8-2001, in so far as not awarding remaining 25% of compensation amount and to modify that this cross objector is entitled to receive the entire amount of compensation awarded.
3. The brief facts leading to M.F.A. NO. 5967/2001 are that the appellants were the owners of the property bearing T.P.No. 262-H, measuring 69.89 sq mtrs situate at Ward No. 10, Bagalkot. The first respondent herein was a tenant paying monthly rent and he was in possession of the aforesaid property. Originally, the Government has granted 69.89 sq.mts of land to the ancestors of the appellants in 1930. The first respondent's ancestors were the anubhavadar's and they have erected the huts in the portion of the said land and started living by paying monthly rent. But, respondent No. 2 herein acquired the said property of the appellants under Section 4(1) Notification dated 1-2-1996 and after following the mandatory provisions the second respondent passed an award determining the market value of the property in question at Rs. 1,56,454/- by relying on the report of the Executive Engineer, BTDA who has valued the building under acquisition at Rs. 78,302/- and the amount awarded by second respondent has been deposited. Appellant No. 3 Hanumya @ Hanumanthappa had filed an application before the second respondent contending that the name of the anubhavadar has been wrongly entered in the records of the acquired property and all such entries are bogus, false and vexatious and therefore himself and other appellants are alone entitled to receive the said sum of Rs. 1,40,809/- which includes , deduction of Rs. 15,645/- towards which income tax. Whereas, the first respondent has set up a defence, of permanent lease, therefore, the burden of proving the fact that the lease in question is a permanent lease is on the Anubhavadar. Their ancestors have erected huts and houses. The ancestors of the appellants had executed a permanent lease in their favour. Therefore, he being the anubhavadhar is entitled to receive the entire award amount. He also filed an application under Section 151 C.P.C. to deposit Rs. 1,40,809/- in F.D. Accordingly, the second respondent referred the matter to the Civil Court for adjudication and for apportionment.
5. In order to prove their respective rights, Appellant No. 5 was examined himself as P.W.1 and got marked 4 documents as Exs. P1 to P4 whereas, respondent No. 1 was examined himself as D.W.1 and got examined one person by name Chidanad Takappa Borannavar, as D.W.2 and got marked 9 documents as Exs.Dl to D9.
6. After hearing both sides, and after considering the materials placed on record by both parties, the reference Court has come to the conclusion that the ancestors of first respondent started residing in a portion of the land allotted to the ancestors of the appellants on a monthly rent basis by erecting sheds and the first respondent and their ancestors belong to korava community and accordingly appellants are entitled to 25% of the compensation in respect of the acquired property whereas the first respondent being the tenant is entitled to 75% of the compensation. The appellants being not satisfied with the Judgment and award passed by the reference court have come up in this appeal contending that they are alone entitled to the entire compensation amount deposited in the Civil Court.
7. In this behalf, learned Counsel for the appellants vehemently argued that as per law, they being the L.Rs. of the original owners of the land are entitled to the entire compensation amount and the first respondent being the L.R. of anubhavadars is not entitled for any compensation.
8. In support of this contention learned Counsel for the appellants relied on the following decisions.
1. INDRAPRASTHA ICE AND COLD STORAGE LTD., NEW DELHI v. THE UNION OF INDIA AND ORS., AIR 1987 Del 171 wherein their Lordship have held that, in the aforesaid circumstances apportionment of compensation in the ratio of 7:1 between the owners and the tenant was justified.
2. SMT. RAVI KANTA v. THE LAND ACQUISITION TRIBUNAL, HISSAKAR AND ORS., wherein His Lordship has held that, Apportionment of, between landlord and tenant -- Tenant had no transferable interest but had right of user only -- Tenant compensated to some extent by allotment of some other plot -- Held, entitled to only a nominal compensation.
3. UNION OF INDIA AND ORS., v. A. AJIT SINGH, wherein the Supreme Court has held thus:
(C) Land Acquisition Act (1 of 1894), Section 30 Compensation -- Apportionment -- Govt. land on lease -- Land required for public purpose Tenancy terminated by Govt. but restored in appeal -- Tenant continued to be in possession -- Acquisition proceedings initiated though lease -- deed provided right of dispossession of tenant for public purpose Compensation apportioned between tenant and landlord at ratio of 60% and 40% respectively.
4. INDER PRASHAD v. UNION OF INDIA AND ORS., (1944) 5 SCC 239 wherein it has been held that the tenant is entitled to 25% of the compensation whereas the land owner is entitled to 75% of compensation.
5. NARAYAN DAS KHETTRY v. JATINDRA NATH ROY CHOWDHRY AND ORS., AIR 1927 Privy Council wherein it has been held thus:-
(c) Land Acquisition Act. Sections (2) and (3) -- Land and buildings thereon owned separately - Principles of apportionment discussed.
The matter to be considered when land acquired and the buildings standing thereon are owned separately are (1) right of the owner of land to call upon the owner of buildings to remove the house. If the latter did remove the house, the value would be small, and in the ordinary course would be ........ than what has been called "demolition value" viz, the value of the materials less the cost of removal, and if he did not remove the house he would lose it; (2) the possibility that (if the land had not been acquired under the Land acquisition act) the owner of the land would not have claimed or required the removal of the house and might have been willing to pay to owners of the house, more than the mere demolition of the house. In other words, the owner of the land would be possible purchaser who might be willing to give more for the house than anyone else as he was the owner of the land. (3) If the house owner were called upon to remove the house he would be entitled to a reasonable time for such removal and that during such time the land owner would be kept out of enjoyment of the land."
6. MANGAT RAM ETC., v. STATE OF HARYANA AND ORS. ETC., wherein it has been held thus:-
"(B) Land Acquisition Act (1 of 1894), Section 23 --Compensation -- Apportionment Land of Wakf Board in possession of tenant acquired -- Tenants would get 3/4 and Wakf Board would get 1/4 of compensation amount."
9. On the other hand, the learned Counsel for the first respondent vehemently argued that the reference court has not properly appreciated the evidence. In fact they being the anubhavadars and having invested huge amount for construction of the sheds/house in the portion of the acquired land they are entitled to entire amount.
10. The first respondent has relied on documentary evidence at Exs. D1 to D9. Ex. D1 is the katha extract of Sub Division No. 263 and one Fakeeravva Bhimappa Bhajantri is said to have constructed the house in the land Sy No. Rs. 246 and Yallappa Basappa, Fakeerappa Durgappa, Hanamay Husanappa, Huseni s/o. Hanmavva were the original grantees of the aforesaid land measuring 22 guntas. The said land was granted by the then Collector of Bijapur District. The contentions of first respondent is that the ancestors of the appellants leased out the land granted to them by the Government on permanent lease. Therefore he is entitled to the entire award amount. But, he has not produced lease agreement to believe his version that his ancestors were in occupation of the said land by constructing the houses on permanent lease basis. Ex. D2 is the tax paid receipt dated 20.9.1999 issued by the Municipality for the year 1999-2000. Ex. D3 is the Electricity bill and receipt. Ex. D4 is the assessment list of the building fixing the property tax at Rs. 120/- per acre said to have been constructed by the first respondent wherein it has mentioned that house No. 363/H has been constructed with stones and mud having three rooms. Therefore considering the nature of the house constructed in the said land by the first respondent and also considering the fact that the first respondent has not produced the lease deed it could be said that the reference Court has rightly come to the conclusion that it is a monthly tenancy and not a permanent lease. While fixing the apportionment, the reference Court has committed an error and without properly/looking into the exhibits produced by respondent No. 1 and without taking into consideration the nature of the house constructed in the land has erroneously apportioned the awarded amount at the rate of 25% and 75%. It is well settled that where the land lease in perpetuity on a fixed rent, and such property has been acquired under the Land Acquisition Act, then the question arises as tp the proportion in which compensation should be divided between the lessor and the lessee. The Court ought to have proceeded on the principle of ascertaining what was the value of the interest of the lessor on the land with which he has parted and that of the lessee and on the other hand the apportionment of compensation. Whereas, in the instant case the appellants who are the L.Rs. of the original grantee and the said land which is a Maharki watan land was granted by the Government in favour of the ancestors of the appellants and that land 25 houses were constructed by Koravis and they were required to pay Re. 1 per year to the original grantee. Therefore, considering the rent paid to the ancestors of the appellants and also the nature of the sheds said to have been constructed and leased in the acquired land, it could be said that ends of justice would be met if the apportionment between the landlord and the tenant is fixed at 40% and 60% . Therefore, the award under appeal passed by the reference court is to be modified by partly allowing the appeal filed by the appellants and the cross objection filed by the first respondent to pay the entire award amount is liable to be dismissed.
11. In the result, M.F.A. 5967/2001 is partly allowed. The Judgment and Award under appeal passed by the reference court is modified. The appellants who ate the owners of the land acquired are entitled to 60% of compensation amount awarded in respect of open site and 40% in respect of super structures of respondent No. 1 situate in the land acquired by respondent No. 2. Accordingly, respondent No. 1 is entitled to 40% of compensation amount deposited by respondent No. 2.
Cross Objection No. 22/2002 filed by the respondent No. 1/tenant is dismissed. No order as to costs.
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Karnataka High Court
Durgappa Fakirappa Holer @ Bani ... vs Bhemappa Basappa Bhajantri And ... on 19 December, 2003
Equivalent citations: ILR 2004 KAR 1699
1. M.F.A 5967/2001 has been filed by the appellants/original land owners under Section 54(1) r/w. Section 30(1) of the Land Acquisition Act challenging the Judgment and Award passed by the II Additional Civil Judge (Sr.Dn.)., Bagalkot on 30-8-2001 in L.A.C. No. 228/ 2000 whereby the reference Court has apportioned the compensation awarded by respondent No. 2 at the rate of 25% and 75%.2. M.F.A Cr. Ob 22/2002 has been filed by the Cross-Objector/ Anubhavadhar challenging the Judgment and Award dated 30-8-2001 passed in L.A.C. No. 228/2000 by the II Additional Civil Judge (Sr.Dn)., Bagalkot on 30-8-2001, in so far as not awarding remaining 25% of compensation amount and to modify that this cross objector is entitled to receive the entire amount of compensation awarded.
3. The brief facts leading to M.F.A. NO. 5967/2001 are that the appellants were the owners of the property bearing T.P.No. 262-H, measuring 69.89 sq mtrs situate at Ward No. 10, Bagalkot. The first respondent herein was a tenant paying monthly rent and he was in possession of the aforesaid property. Originally, the Government has granted 69.89 sq.mts of land to the ancestors of the appellants in 1930. The first respondent's ancestors were the anubhavadar's and they have erected the huts in the portion of the said land and started living by paying monthly rent. But, respondent No. 2 herein acquired the said property of the appellants under Section 4(1) Notification dated 1-2-1996 and after following the mandatory provisions the second respondent passed an award determining the market value of the property in question at Rs. 1,56,454/- by relying on the report of the Executive Engineer, BTDA who has valued the building under acquisition at Rs. 78,302/- and the amount awarded by second respondent has been deposited. Appellant No. 3 Hanumya @ Hanumanthappa had filed an application before the second respondent contending that the name of the anubhavadar has been wrongly entered in the records of the acquired property and all such entries are bogus, false and vexatious and therefore himself and other appellants are alone entitled to receive the said sum of Rs. 1,40,809/- which includes , deduction of Rs. 15,645/- towards which income tax. Whereas, the first respondent has set up a defence, of permanent lease, therefore, the burden of proving the fact that the lease in question is a permanent lease is on the Anubhavadar. Their ancestors have erected huts and houses. The ancestors of the appellants had executed a permanent lease in their favour. Therefore, he being the anubhavadhar is entitled to receive the entire award amount. He also filed an application under Section 151 C.P.C. to deposit Rs. 1,40,809/- in F.D. Accordingly, the second respondent referred the matter to the Civil Court for adjudication and for apportionment.
5. In order to prove their respective rights, Appellant No. 5 was examined himself as P.W.1 and got marked 4 documents as Exs. P1 to P4 whereas, respondent No. 1 was examined himself as D.W.1 and got examined one person by name Chidanad Takappa Borannavar, as D.W.2 and got marked 9 documents as Exs.Dl to D9.
6. After hearing both sides, and after considering the materials placed on record by both parties, the reference Court has come to the conclusion that the ancestors of first respondent started residing in a portion of the land allotted to the ancestors of the appellants on a monthly rent basis by erecting sheds and the first respondent and their ancestors belong to korava community and accordingly appellants are entitled to 25% of the compensation in respect of the acquired property whereas the first respondent being the tenant is entitled to 75% of the compensation. The appellants being not satisfied with the Judgment and award passed by the reference court have come up in this appeal contending that they are alone entitled to the entire compensation amount deposited in the Civil Court.
7. In this behalf, learned Counsel for the appellants vehemently argued that as per law, they being the L.Rs. of the original owners of the land are entitled to the entire compensation amount and the first respondent being the L.R. of anubhavadars is not entitled for any compensation.
8. In support of this contention learned Counsel for the appellants relied on the following decisions.
1. INDRAPRASTHA ICE AND COLD STORAGE LTD., NEW DELHI v. THE UNION OF INDIA AND ORS., AIR 1987 Del 171 wherein their Lordship have held that, in the aforesaid circumstances apportionment of compensation in the ratio of 7:1 between the owners and the tenant was justified.
2. SMT. RAVI KANTA v. THE LAND ACQUISITION TRIBUNAL, HISSAKAR AND ORS., wherein His Lordship has held that, Apportionment of, between landlord and tenant -- Tenant had no transferable interest but had right of user only -- Tenant compensated to some extent by allotment of some other plot -- Held, entitled to only a nominal compensation.
3. UNION OF INDIA AND ORS., v. A. AJIT SINGH, wherein the Supreme Court has held thus:
(C) Land Acquisition Act (1 of 1894), Section 30 Compensation -- Apportionment -- Govt. land on lease -- Land required for public purpose Tenancy terminated by Govt. but restored in appeal -- Tenant continued to be in possession -- Acquisition proceedings initiated though lease -- deed provided right of dispossession of tenant for public purpose Compensation apportioned between tenant and landlord at ratio of 60% and 40% respectively.
4. INDER PRASHAD v. UNION OF INDIA AND ORS., (1944) 5 SCC 239 wherein it has been held that the tenant is entitled to 25% of the compensation whereas the land owner is entitled to 75% of compensation.
5. NARAYAN DAS KHETTRY v. JATINDRA NATH ROY CHOWDHRY AND ORS., AIR 1927 Privy Council wherein it has been held thus:-
(c) Land Acquisition Act. Sections (2) and (3) -- Land and buildings thereon owned separately - Principles of apportionment discussed.
The matter to be considered when land acquired and the buildings standing thereon are owned separately are (1) right of the owner of land to call upon the owner of buildings to remove the house. If the latter did remove the house, the value would be small, and in the ordinary course would be ........ than what has been called "demolition value" viz, the value of the materials less the cost of removal, and if he did not remove the house he would lose it; (2) the possibility that (if the land had not been acquired under the Land acquisition act) the owner of the land would not have claimed or required the removal of the house and might have been willing to pay to owners of the house, more than the mere demolition of the house. In other words, the owner of the land would be possible purchaser who might be willing to give more for the house than anyone else as he was the owner of the land. (3) If the house owner were called upon to remove the house he would be entitled to a reasonable time for such removal and that during such time the land owner would be kept out of enjoyment of the land."
6. MANGAT RAM ETC., v. STATE OF HARYANA AND ORS. ETC., wherein it has been held thus:-
"(B) Land Acquisition Act (1 of 1894), Section 23 --Compensation -- Apportionment Land of Wakf Board in possession of tenant acquired -- Tenants would get 3/4 and Wakf Board would get 1/4 of compensation amount."
9. On the other hand, the learned Counsel for the first respondent vehemently argued that the reference court has not properly appreciated the evidence. In fact they being the anubhavadars and having invested huge amount for construction of the sheds/house in the portion of the acquired land they are entitled to entire amount.
10. The first respondent has relied on documentary evidence at Exs. D1 to D9. Ex. D1 is the katha extract of Sub Division No. 263 and one Fakeeravva Bhimappa Bhajantri is said to have constructed the house in the land Sy No. Rs. 246 and Yallappa Basappa, Fakeerappa Durgappa, Hanamay Husanappa, Huseni s/o. Hanmavva were the original grantees of the aforesaid land measuring 22 guntas. The said land was granted by the then Collector of Bijapur District. The contentions of first respondent is that the ancestors of the appellants leased out the land granted to them by the Government on permanent lease. Therefore he is entitled to the entire award amount. But, he has not produced lease agreement to believe his version that his ancestors were in occupation of the said land by constructing the houses on permanent lease basis. Ex. D2 is the tax paid receipt dated 20.9.1999 issued by the Municipality for the year 1999-2000. Ex. D3 is the Electricity bill and receipt. Ex. D4 is the assessment list of the building fixing the property tax at Rs. 120/- per acre said to have been constructed by the first respondent wherein it has mentioned that house No. 363/H has been constructed with stones and mud having three rooms. Therefore considering the nature of the house constructed in the said land by the first respondent and also considering the fact that the first respondent has not produced the lease deed it could be said that the reference Court has rightly come to the conclusion that it is a monthly tenancy and not a permanent lease. While fixing the apportionment, the reference Court has committed an error and without properly/looking into the exhibits produced by respondent No. 1 and without taking into consideration the nature of the house constructed in the land has erroneously apportioned the awarded amount at the rate of 25% and 75%. It is well settled that where the land lease in perpetuity on a fixed rent, and such property has been acquired under the Land Acquisition Act, then the question arises as tp the proportion in which compensation should be divided between the lessor and the lessee. The Court ought to have proceeded on the principle of ascertaining what was the value of the interest of the lessor on the land with which he has parted and that of the lessee and on the other hand the apportionment of compensation. Whereas, in the instant case the appellants who are the L.Rs. of the original grantee and the said land which is a Maharki watan land was granted by the Government in favour of the ancestors of the appellants and that land 25 houses were constructed by Koravis and they were required to pay Re. 1 per year to the original grantee. Therefore, considering the rent paid to the ancestors of the appellants and also the nature of the sheds said to have been constructed and leased in the acquired land, it could be said that ends of justice would be met if the apportionment between the landlord and the tenant is fixed at 40% and 60% . Therefore, the award under appeal passed by the reference court is to be modified by partly allowing the appeal filed by the appellants and the cross objection filed by the first respondent to pay the entire award amount is liable to be dismissed.
11. In the result, M.F.A. 5967/2001 is partly allowed. The Judgment and Award under appeal passed by the reference court is modified. The appellants who ate the owners of the land acquired are entitled to 60% of compensation amount awarded in respect of open site and 40% in respect of super structures of respondent No. 1 situate in the land acquired by respondent No. 2. Accordingly, respondent No. 1 is entitled to 40% of compensation amount deposited by respondent No. 2.
Cross Objection No. 22/2002 filed by the respondent No. 1/tenant is dismissed. No order as to costs.
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