Sri R. Niranjan

1

IN THE COURT OF THE ADDITIONAL DISTRICT JUDGE : :

KOVVUR: : W.G.DT.

Present : Sri. R.Niranjan

Additional District Judge.

Friday the 24th day of April, 2015.

A.S. No.412/2011

Between:

1.Akkina Lakshminarayana

2.Akkina Bala Nageswara Rao

Rep. By GPA Holder 1st Appellant .. Appellants/Plaintiffs.

and

1.The State of Andhra Pradesh Rep.by District Collector, W.G.Dist., Eluru.

2.The Chief Engineer, Medium Irrigation, Yerramanzil, Hyderabad.

3.The Project Administrator & Superintending Engineer Rajahmundry.

4.The Executive Engineer, Yerrakalava Project Division Jangareddigudem.

5.The Land Acquisition Officer, Unit IV, Yerrakalava

Reservoir Project, Jangareddigudem. .. Respondents/Defendants.

On appeal against the decree and judgment of the trial court dated 24-2-2011 passed in O.S.No.151/2004 on the file of Principal Senior Civil Judge’s Court, Kovvur and made :

Between:

1. Akkina Lakshminarayana

2. Akkina Bala Nageswara Rao

Rep. By GPA Holder 1st Appellant .. Plaintiffs.

and

1. The State of Andhra Pradesh Rep.by District Collector, W.G.Dist., Eluru.

2. The Chief Engineer, Medium Irrigation, Yerramanzil, Hyderabad.

3. The Project Administrator & Superintending Engineer Rajahmundry.

4. The Executive Engineer, Yerrakalava Project Division Jangareddigudem.

5. The Land Acquisition Officer, Unit IV, Yerrakalava

Reservoir Project, Jangareddigudem. .. Defendants.

This appeal coming on 11-3-2015 before me for final hearing in the presence of Sri M.Srinivas, advocate for the appellants and the Assistant 2 Government Pleader, for the respondents 1 to 5, and the matter having been stood over for consideration till this day, this court delivered the following :

JUDGMENT

The appellants herein are the plaintiffs in O.S.NO.412/2011 on the file of Principal Senior Civil Judge's Court, Kovvur. They preferred this appeal impugning the decree and judgment passed in that suit where under the claim of the plaintiffs for additional compensation to a tune of Rs.5,00,000-00 with interest was negatived by dismissing the suit without costs. For the sake of convenience the parties in this appeal would be hereinafter referred with the same description they carried before the trial court i.e., appellants herein as plaintiffs and respondents herein as defendants.

2. The case of the plaintiffs in nutshell is that the 2nd plaintiff is the son of 1st plaintiff and as the 2nd plaintiff is residing in abroad the 1st plaintiff on his behalf also and in the capacity of power of attorney holder filed this suit. The plaintiffs jointly purchased an extent of Ac.5-26 of land in R.S.No.124/2 of

Nimmalagudem Village of Jangareddigudem Mandalam under a registered sale deed dated 15-9-2000 in which there is a lemon garden aged about 3 years consisting of 300 trees and coconut garden consisting of 400 trees aged about 15 years and the plaintiffs have been getting substantial income on the said property.

The defendants 2 to 4 proposed to lay a canal across the said land of the plaintiffs in a straight line on the western side of the said land and even though that formation of the canal causes inconvenience to the plaintiffs in enjoyment of their land. Since the acquisition was compulsory, the plaintiffs agreed for the acquisition provided the defendants 2 to 4 pay the compensation as demanded by the plaintiffs. As per the above proposed acquisition with straight alignment of the canal, the plaintiffs would have lost Ac.1-00 of land in acquisition. But subsequently that alignment was changed and the canal was proposed to be dug in a diagonal position and that canal runs across the land of plaintiffs making it unfit for free cultivation. The 1st plaintiff made representations in writing requesting the defendants 2 to 4 to confine to the original alignment and though the defendants promised to form the canal in a straight line, ultimately they went on with the new alignment and dug the canals diagonally spoiling the plaintiffs' land by making cultivation difficult. The 1st plaintiff agreed for the acquisition under protest reserving right to claim compensation and did not agree for the inconsistent acquisition and did not agree for the value fixed for the land, wells and trees. The 1st plaintiff got issued a legal notice dated 29-7-2002 to the defendants 2 to 4 questioning the illegal acquisition and claiming compensation at the prevailing market value. In the process of digging canal the defendants removed the trees, closed the old well and bore well 3 and fixed meagre compensation to the 1st plaintiff which he received on protest reserving the right to claim proper compensation through Court of Law.

Contending that each lime tree is of the value of Rs.1,000-00 and that each coconut tree is of the value of Rs.1,000-00 and that in the process of the acquisition he lost 89 coconut trees and 90 lime trees, the plaintiffs claimed Rs.1,79,000-00 towards value of the tree. Towards difference value of old well, bore well and motor etc., the plaintiffs claimed Rs.1,06,000-00. Contending that the value of the land is

Rs.1,00,000-00 per acre whereas the compensation fixed by the Land Acquisition

Officer is Rs.80,000-00 per acre and towards the difference value of Ac.1-84 cents of land the plaintiffs claimed Rs.36,800-00, for 5 cashew nut trees the compensation is claimed at Rs.7,500-00 at the rate of Rs.1,500-00 per tree, for one neem tree the compensation of Rs.4,000-00 is claimed and towards the loss of water facility, the necessity to dig bore well and towards the irregular acquisition leaving the land on either side inconvenient for cultivation etc., a lumpsum amount of Rs.1,66,700-00 is claimed. Thus, the plaintiffs claimed the total compensation of Rs.5,00,000-00 in addition to the compensation received under the protest. Contending that the defendants in spite of the registered notices dated 5-6-2002 and 29-7-2002 given by the 1st plaintiff the defendants did not respond for the claim of the plaintiffs, the plaintiffs filed the suit claiming that compensation amount with interest at the rate of 24 % per annum from the date of suit till date of realization of that amount.

3. The 4th defendant Executive Engineer filed the written statement which was adopted by the defendants 1, 2, 3 and 5 wherein they contend that the acquisition of Ac.1-84 of land of the plaintiffs was made by taking necessary agreements and consent from the plaintiffs and the award was passed under

Sec.11(2) of Land Acquisition Act on consent and the amount is paid to the land owners including the plaintiffs under that acquisition. Hence, there is no chance of claiming any higher compensation by the plaintiffs. The right main canal of

Yerrakaluva Project was meant to supply water for 19,500 acres in 22 villages situated in Jangareddigudem, Kamavarapukota, Dwaraka Tirumala, Nallajerla and

Unguturu Mandals and so many small, marginal farmers are benefited by digging of that canal with no discrimination as shown against the plaintiffs in the canal alignment and the alignment was approved after considering several alterations.

Having received the compensation on consent, the plaintiffs issued notice questioning the change of alignment and suitable reply was given. Since the acquisition was made and award was passed under Sec.11(2) of Land Acquisition

Act no higher compensation can be claimed by the land owners. The plaintiffs and other ryots from whose lands were acquired have given their consent to receive the compensation consolidately at Rs.80,000-00 per acre for garden lands and also for wet lands and at Rs.60,000-00 per acre for dry lands including all the benefits.

4 Accordingly, a consent award was passed and compensation was paid to the land owners including the plaintiffs. In case the compensation was fixed by the Land

Acquisition Officer under Sec.11(1) of the Act the ryots whose lands are acquired can receive the compensation awarded under protest and can claim more compensation by seeking reference through the Land Acquisition Officer under

Sec.18 of the Act and in that reference only the Civil Court can decide the claim of the ryots for higher compensation. But in this case, no reference was made by the

Land Acquisition Officer at the instance of the plaintiffs since the acquisition is under Sec.11(2) of the Act by way of consent. As such the Civil Court has no jurisdiction to entertain this suit claim for higher compensation. In case any reference is made under Sec.18 of the Act for the acquisition made under Sec.11(1) of the Act, it is only under the provisions of the Land Acquisition Act the court can entertain the claim for higher compensation. But this suit for higher compensation where the acquisition was by way of consent is not maintainable in the Civil Court and this court has no inherent jurisdiction to entertain the suit. It is also pleaded that there is no proper notice under Sec.80 C.P.C before filing the suit and on that ground also the suit is liable to be dismissed with costs.

4. Based on the above pleadings the trial court framed the following issues :

1) Whether the suit as framed is not maintainable and whether the suit is bad for non-issuance of notice under Sec.80 of C.P.C ?

2) Whether the plaintiffs are entitled for the suit amount ?

3) To what relief ?

5. During the course of trial in the lower court, on plaintiffs' side two witnesses including the 1st plaintiff were examined as P.Ws. 1 and 2 respectively and Exs.A-1 to A-12 were marked and the defendants did not adduce any oral or documentary evidence on their behalf.

6. The learned Senior Civil Judge, Kovvur on appreciation of the material on record gave the finding that there is no proper notice under Sec.80

C.P.C prior to filing of the suit and also held that the Civil Court have no jurisdiction in view of the relief provided under Sec.18 of Land Acquisition Act, more so, in the light of the fact that the acquisition in questioned is by way of consent and dismissed the suit.

5

7. Aggrieved such dismissal of the suit the appellants/plaintiffs preferred this appeal urging the following material grounds :

1)The trial court ought to have construed Exs.A-4 and A-6 as notices contemplated under Sec.80 C.P.C ;

2)The trial court should have seen that there is no evidence on behalf of the defendants contradicting to the evidence of the plaintiffs ;

3)The trial court should have seen that when the defendants failed to tender themselves into box for examination and to speak in support of their pleading is fatal to their case ;

4)The trial court went wrong in holding that civil suit is not maintainable ;

8. Heard both sides.

9 . Now the points that arise for determination are :

1) Whether the finding of the trial court that the Civil Court has no inherent jurisdiction to entertain the claim for additional compensation is sustainable in the light of the material on record ?

2) Whether the finding of the trial court there is no proper notice under Sec.80 C.P.C is sustainable touching the maintainability of the suit ?

3) To what relief ?

10. POINT NO.1 :- So far as the inherent jurisdiction of the trial court is concerned, if the acquisition is made under Sec.11(1) of the Land

Acquisition Act without the consent of the land owners and if the land owners feel that the compensation fixed by the Land Acquisition Officer is not sufficient they can receive the compensation under protest and seek the Land Acquisition Officer to refer the acquisition proceedings to the court to have the correct compensation fixed by the Civil Court i.e., Senior Civil Judge's Court. If the acquisition is made with the consent of the land owner there is no scope for seeking additional compensation. Sec.11(2) of the Act reads that if at any stage of the proceedings of acquisition if the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the stamps to be included in the award, without any further enquiry under Sec.11(1) of the Land Acquisition Act can make the award. It is the specific assertion of the defendants in the written statement that the land acquired for digging that canal including the land of the plaintiffs was by way of consent and with the negotiation with the land owners including the plaintiffs the compensation was fixed at Rs.80,000-00 per acre for wet lands and garden lands in lumpsum including all the benefits and for the dry land 6 compensation of Rs.60,000-00 per acre for fixed. The plaintiffs in spite of such specific assertion by the defendants that the acquisition in questioned is by way of consent award no rejoinder is filed by the plaintiffs disputing that fact that the acquisition was under Sec.11(1) of the Act. Further, in the cross-examination the 1st plaintiff as P.W.1 admitted that :

“ It is true the Special Tahsildar came to our village and after discussion with the ryots concerned for the project.”

Though he denies that all the ryots whose lands were under acquisition agreed to receive the compensation of Rs.80,000-00 per acre for the wet lands and garden lands and Rs.60,000-00 per acre for the dry lands. He admits that the compensation at the rate of Rs.80,000-00 per acre was paid to his land as it was garden land. As per his own admission he 1st plaintiff received compensation at Rs.80,000-00 per acre. When there is assertion of the defendants that the 1st plaintiff received the amount under consent award under Sec.11(2) of the Land Acquisition Act at least the plaintiffs could have filed the award to show that it is not passed under Sec.11(2) of the Act or at least he could have issued notice to the defendants to produce the award copy passed under the acquisition. When the plaintiffs contend that the compensation at the rate of Rs.80,000-00 per acre was received by the 1st plaintiff under protest he did not place any documentary evidence to that effect and did not even require the defendants to produce any such record with regard to the acquisition to prove that he did not give any consent for the value fixed by the

Land Acquisition Officer. When the plaintiffs claim the additional compensation with a specific assertion of facts, the burden is on the plaintiffs to prove that they received compensation amount under protest to claim more compensation by resorting to the process of law and that they did not give any consent as alleged by the defendants. As such, as rightly contended by the defendants the plaintiffs having received the amount under consent award cannot claim

additional compensation.

11. Even assuming for a moment the case of the plaintiffs that the acquisition of the plaintiffs’ land is not under Sec.11 (2) of the Act and that it is under Sec.11 (1) of the Act and even if it is assumed for a moment that the plaintiffs did not accept the award passed by the Land Acquisition Officer the statutory remedy provided to the plaintiffs is under Sec.18 of Land Acquisition

Act, which reads that any person interested in the land and who has not accepted the award may by written application to the Collector required the matter to be referred to the Civil Court for determination of correct 7 compensation and in that application all objections are to be mentioned in detail and such application is to be filed within the fixed time i.e. if the person making application for reference was present when the award was made within six weeks from the date of award and in any other cases within two months from the date of receipt of the notice from collector under Sec.12 of the Act after passing the award. When a specific statute provides a remedy i.e. Sec.18 of Land

Acquisition Act to seek higher compensation, the plaintiffs without resorting such remedy cannot file a Civil suit claiming additional compensation alleging that the compensation fixed by the Land Acquisition Officer does not represent the real market value of the property under acquisition. The Assistant Government

Pleader in support of such proposition relied on a ruling reported in 2008 (1)

ALT 486 STATE OF A.P. REP. BY COLLECTOR, WEST GODAVARI

DISTRICT, ELURU VS KONALA SUBBIREDDY wherein our

Honourable High Court held that :

“Jurisdiction of Civil Court to take cognizance of cases arising

under Land Acquisition Act by necessary implication stood

barred - Jurisdiction of Civil Court to entertain suits in matters

of this nature is excluded - Remedy of the plaintiffs to claim

additional compensation is elsewhere.”

In the light of the above ruling it can be safely held that the suit filed by the plaintiffs claiming additional compensation without resorting to the provisions under Sec.18 of the Land Acquisition Act is not maintainable and the Senior

Civil Judge’s Court, Kovvur has no inherent jurisdiction to entertain the suit in

the manner it was filed and the trial Court rightly came to the conclusion that the suit is not maintainable in the manner it was filed. No doubt, even if the reference is made under Sec.18 of the Act it is the Senior Civil Judge that has to decide the correctness or otherwise of the claim for additional compensation. But the procedure prescribed to deal under the provisions of

Land Acquisition Act is altogether different and the civil suit filed by the plaintiffs as if it is a normal suit for recovery of money is not maintainable.

12. The learned counsel for the appellants relied on the ruling reported in 2014 (3) A.L.D. 608 (DB) GOLI VENKATA APPA RAO

CHOWDARY VS LAND ACQUISITION OFFICER (SPECIAL

DEPUTY COLLECTOR, EAST GODAVARI DISTRICT, PEDDAPURAM

for the proposition that the owner of the land whose land is acquired is entitled compensation for the value of trees also and as such he is entitled for 8

additional compensation. There is no dispute with regard to that proposition. As

seen from the facts of the said ruling the Honourable High Court gave that finding on the matter decided by the Principal Junior Civil Judge, Kovvur on the Reference under Sec.18 of the Act. As such, that ruling has no application to support the maintainability of the suit filed by the plaintiffs. The learned counsel for the appellants also relied on another ruling reported in 2009 (1)

A.L.D. 438 GUBBALA CHINNA GANGA RAO AND ANOTHER VS

LAND ACQUISITION OFFICER AND RURAL DEVELOPMENT

OFFICER, NARSAPUR, WEST GODAVARI DISTRICT AND OTHERS

for the proposition that when the consent award is passed under Sec.11 (2) of the Land Acquisition Act though some of the land owners not giving their consent, such consent award is not maintainable and the Land Acquisition

Officer has to proceed with the enquiry under Sec.11 (1) of the Act and has to pass award. Here is the case where the defendants assertively plead that the award in question is passed on the consent of all the land owners including the plaintiffs. When such assertion is made, it is for the plaintiffs to plead specifically and prove with cogent evidence that they are not the parties to the consent award and that they received the amount under protest. Absolutely no such evidence is placed by the plaintiffs. Accordingly, I hold that the rulings relied on by the plaintiffs have no application to the facts of the case and I hold that the finding of the trial Court that the suit is not maintainable is sustainable and accordingly point No.1 is answered.

13. POINT NO.2 : Admittedly the plaintiffs did not issue any notice under Sec.80 C.P.C. before filing the suit and the plaintiffs contended that they issued two notices dated 5-6-2002 and 29-7-2002 and by issuing those notices they complied the statutory requirement under Sec.80 C.P.C.

The notice dated 5-6-2002 is marked as Ex.A-4 and the notice dated 29-7-2002 is marked as Ex.A-6. Coming to the notice under Ex.A-4 now the same amounts are claimed but those amounts do not tally with the compensation claimed in the plaint under different heads. As seen from Ex.A-6 notice the main emphasis of the plaintiffs is to request the defendants not to proceed with the excavation of canal as per the altered alignment and they demanded the defendants to stop the proceedings under the new alignment and if the defendants wanted to proceed with the excavation of the canal under the new alignment to pay compensation. In the 2nd notice also the main request is not to change the present alignment (2nd alignment) and in case it is to be changed and in case the Land Acquisition Officer has to acquire any more land there must be proper notice and proper compensation. In the last paragraph of that notice 9 the plaintiffs mentioned that they have no objection to take the amount fixed by the

Land Acquisition Officer without prejudice to the contentions to be taken up in a

Civil Court. Thus in both the notices the 1st plaintiff questioned the correctness of the acquisition and the alignment proposed, contents of those notices completely support the claim made in the plaint for a sum of Rs.5,00,000-00.

In the 1st notice Ex.A-4 the plaintiffs’ demand is made for the tree value at the rate of 1,000-00 per annum and for the inconvenience caused for the cultivation of land a sum of Rs.1,00,000-00, for removal well and bore-well a sum of Rs.2,00,000-00 and for digging new bore-well a sum of Rs.1,50,000- 00, but that is not the amount claimed in the plaint mentioning the compensation of Rs.5,00,000-00 when such is the case the notices under Exs.A-4 and A-6 cannot be held to have complied the statutory requirements under Sec.80 of C.P.C.

as the notice required under Sec.80 C.P.C. must inform the Government

Officials as to what the claim of the plaintiffs is with regard to the additional compensation. If there is variance with regard to the amounts claimed in the plaint and the amounts claimed in the earlier notices, those notices cannot be held as notice under Sec.80 C.P.C. and the trial Court on that aspect also reached to the right conclusion. Accordingly, point No.2 is answered.

14. POINT No.3 : In the result, this appeal is dismissed confirming the decree and judgment or the trial court dated 24-2-2011 passed in

O.S.No.151/2004 on the file of Principal Senior Civil Judge's Court, Kovvur. I

direct each party to bear their own costs.

Dictated to the Stenographer Grade-I, transcribed by him, corrected

and pronounced by me in open Court, on this the 24th day of April, 2015.

Sd/- R.Niranjan

ADDITIONAL DISTRICT JUDGE

KOVVUR

No additional evidence is adduced on either side in this appeal suit.

Sd/- R.Niranjan

A.D.J.