(Prayer: This MFA is filed u/s 54(1) of the Land Acquisition Act, praying to call for records in Lac no.114/2004 on the file of principal senior civil judge at Shivamoga. modify the award and judgment dated 01.04.2011 passed by the principal senior civil judge at Shivamoga in lac no.114/2004 and allow the claim petition of the appellant by allowing the present appeal with costs, in the interest of justice and equity.)

Cav Judgment:

Vijaykumar A. Patil, J.

1. This appeal is filed by the claimant challenging the judgment and award dated 01.04.2011 passed in LAC No.114/2004 by the Court of the Principal Senior Civil Judge, Shivamogga (hereinafter referred to as 'the Reference Court') seeking for higher compensation.

2. For the sake of convenience, the parties are referred to as per their ranking before the Reference Court.

3. The brief facts leading to the filing of this appeal are that the claimant’s lands measuring 1 acre 36 guntas in Sy.No.51 and 1 acre in Sy.No.52 situated at Gadikoppa Village, Kasaba Hobli, Shivamogga Taluk, were acquired by the respondents for the purpose of the Upper Tunga Project. The Special Land Acquisition Officer (SLAO) determined the market value of the land at Rs.3,50,000/- per acre. Upon reference, the Reference Court recorded the evidence. One Devadas N.Nayak was examined as PW-1 and Exs.P1 to P5 were marked. The respondents neither adduced any evidence nor produced any documents. The Reference Court, on appreciation of the evidence on record, re-determined the market value of the lands in Sy.Nos.51 and 52 at Rs.150/- per sq. ft. along with all statutory benefits to the extent of 60,006 sq. feet of land. Aggrieved by the same, the claimant has filed this appeal seeking for higher compensation.

4. Sri.Sangamesh G.Patil, learned counsel for the appellant submits that the Reference Court has committed a grave error in awarding compensation to the extent of land measuring 60006 sq. ft. which is 50% of the total extent of land acquired by the Authority. It is submitted that paragraph 12 of the judgment clearly indicates that the Reference Court has recorded the finding that there cannot be any deduction towards the development charges. However, after passing of the judgment, the Reference Court reduced the extent to 50% vide order dated 11.07.2011 which is impermissible. It is further submitted that the Co-ordinate Bench in the case of SMT.NINGAMMA AND ANR. Vs. THE LAND ACQUISITION OFFICER, UTP, SHIMOGA AND ANR.( MFA 3559/2013 dt. 08.10.2013) has held that there cannot be any deduction for the development work and the acquisition is for irrigation projects. Hence, he seeks to award the compensation of Rs.150/- per sq. ft. to the entire extent of land acquired, by allowing the appeal.

5. Per contra, the learned Additional Government Advocate for the respondent No.1 and Sri.B.V.Prakash Angadi, learned counsel for the respondent No.2 support the impugned judgment of the Reference Court and submit that the Reference Court modified the extent of land by allowing the application filed by the respondent. It is submitted that the Reference Court has rightly not awarded the compensation in respect of 50% of the land which has to be earmarked for the development. Hence, they seek to dismiss the appeal.

6. We have heard the learned counsel for the appellant, learned Additional Government Advocate for the respondent No.1, learned counsel for the respondent No.2 and perused the material available on record. We have given our anxious consideration to the submissions advanced on both the sides.

7. It is not in dispute that the claimant’s lands measuring 1 acre 36 guntas in Sy.No.51 and 1 acre in Sy.No.52 situated at Gadikoppa Village, Kasaba Hobli, Shivamogga Taluk, was acquired by the respondents for the purpose of the Upper Tunga Project vide preliminary notification dated 27.07.2001 and final notification dated 14.02.2002. The Special Land Acquisition Officer (SLAO) determined the market value of the lands at Rs.3,50,000/- per acre by passing award on 29.10.2003. The possession of the lands in question was taken on 05.02.2001. The claimant sought the reference. The claimant examined his GPA holder one Devadas N.Nayak as PW-1 and Exs.P1 to P5 were marked. The Reference Court, on appreciation of the oral and documentary evidence has recorded a clear finding that the property acquired was converted for non- agricultural purpose by the orders of the Deputy Commissioner and a layout plan was submitted for approval to the Competent Authority. The Reference Court, at paragraph 12 of the judgment clearly recorded the finding that the compensation at the rate of Rs.150/- per sq. ft. is the just compensation to the acquired lands and has further recorded that the question of deduction towards the development charges and other charges does not arise and determined the market value of the lands acquired at Rs.150/- per sq. ft.

8. The records further indicate that after passing of the judgment on 01.04.2011 the District Government Pleader filed an application under Section 152 of the Code of Civil Procedure, 1908, seeking to rectify the arithmetical error in paragraph 2 of the order portion of the judgment. The said application is accompanied with memorandum of facts signed by the said District Government Pleader. The memorandum of facts indicates that as per paragraph 8 of the judgment only 60,006 sq. ft. of land is permitted to be converted from agricultural to non-agricultural purpose but in paragraph 2 of the order portion of the judgment, it is mentioned as 1,26,324 sq. ft. which is a typographical error. The order dated 11.07.2011 indicates that the said application is allowed. The original records placed before this Court clearly demonstrate that an application filed by the District Government Pleader seeking for correction of the arithmetical error under Section 152 of the CPC was allowed vide order dated 11.07.2011 by the Reference Court without assigning any reasons. It is to be noticed that the effect of the order dated 11.07.2011 would amount to not awarding the compensation to the extent of 50% of the acquired land. Hence, the order dated 11.07.2011 of the Reference Court on an application of the respondent cannot be termed as passing of the order under Section 152 of the CPC. The very Reference Court at paragraph 12 has assigned detailed reasons that the question of deduction towards the development charges and other charges would not arise and without touching upon those finding, the correction of the judgment on an application run contrary to the settled position of law.

9. It is not in dispute that the claimant's lands measuring 1 acre 36 guntas in Sy.No.51 and 1 acre in Sy.No.52 of Gadikoppa Village, Kasaba Hobli, Shivamogga Taluk, is the subject matter of acquisition. Hence, the award of compensation to an extent of 60,006 sq. ft. is contrary to the material available on record. The Co- ordinate Bench in the case of SMT.NINGAMMA referred supra, has clearly held that the claimants are entitled to the compensation in respect of total extent of land acquired and the entire land is utilized for the Upper Tunga Project. The award of compensation to the smaller extent is impermissible. We are of the considered view that the Reference Court has committed an error in awarding compensation to the extent of 60006 sq. ft. and to the said extent, the impugned judgment and award of the Reference Court is required to be set aside.

10. Accordingly, the appeal is allowed-in-part with costs.

The claimant is entitled to compensation at Rs.150/- per sq. ft. with respect to lands measuring 1 acre 36 guntas in Sy.No.51 and 1 acre in Sy.No.52 of Gadikoppa Village, Kasaba Hobli, Shivamogga Taluk, with all statutory benefits and interest as per law.