IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER 2019 BEFORE THE HON'BLE Mr.JUSTICE S.R.KRISHNA KUMAR CIVIL REVISION PETITION NO.9 OF 2014 (LAC) BETWEEN:
P.MAHADEVAIAH S/O LATE PARE MADEGOWDA AGED ABOUT 70 YEARS R/O.M.KEBBEHUNDI SOSALE HOBLI T.NARASIPURA TALUK MYSURU DISTRICT – 570 001.
(BY SHRI.H.KANTARAJ, ADVOCATE) AND:
THE ASSISTANT COMMISSIONER MYSURU SUB-DIVISION MYSURU – 570 001.
(BY SHRI.N.BALAJI, AGA) …PETITIONER …RESPONDENT THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CPC, SET ASIDE THE IMPUGNED ORDER DATED: 17.06.2005 IN LAC NO. 1032/2001 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN)T- NARASIPURA AND ETC.
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This revision petition is directed against the impugned judgment and order dated 17.06.2005 passed in LAC No.1032/2001 by the Civil Judge (Sr. Dn.) at T.Narasipura, dismissing the petition filed by the petitioner under Section 18(3)(b) of the Land Acquisition Act, 1894 (for short ‘the Act of 1894’).
2. The subject matter of the proceedings in the Court below was land bearing Survey No.212 situated at Muttalawadi Kebbehundi village, Sosale Hobli, T.Narasipura taluk measuring 3 acres belonging to petitioner and his elder brother Doddamadaiah. Out of the said land, an extent of 2 acres 12 guntas was acquired and award was passed by the respondent. It was the specific contention of the petitioner that both the petitioner and his aforesaid brother had half share each in the said land. Under the said award, a sum of Rs.1,50,000/- was awarded by the respondent-authority. However, the award was passed only in the name of the aforesaid brother and the name of the petitioner did not find a place in the award.
3. It is contended that there was no dispute between the petitioner and his brother that the land was partitioned between them orally pursuant to which, while the petitioner was allotted 1 acre 20 guntas, respondent was allotted the remaining 1 acre 20 guntas. Both petitioner and his brother became entitled to a divided half share each in the said land. Accordingly, they were also entitled to half share in the compensation awarded in respect of the said land.
4. It was contended that since there was no dispute between him and his brother and the award was passed only in the name of the brother despite half the land having fallen to the share of the petitioner coupled with the fact that the petitioner’s brother had since passed away, the petitioner filed an application dated 13.08.1997 before the respondent requesting to refer the matter to the Civil Court for the purpose of enhancement of compensation as well as for apportionment of the award amount including the enhanced amount between himself and the legal representatives of his brother.
5. It was contended that despite having received the said application dated 13.08.1997, the respondent did not refer the matter to the Civil Court. Subsequently, on 31.03.1999, the respondent paid a sum of Rs.75,000/- through cheque to the petitioner which was received by him under protest particularly when the petitioner had already sought for reference to the competent Civil Court for both enhancement and apportionment.
6. Thereafter, the petitioner instituted the instant case in LAC No.1032/2001 under Section 18(3)(b) of the Act of 1894 for a direction to the respondent to make a reference on the petitioner’s application dated 13.08.1997 referred to supra.
7. The respondent opposed the said application. By the impugned order, the Court below has dismissed the said application only on the ground that the petition was not maintainable under Section 18 of the Act of 1894 since the petitioner had not participated in the acquisition proceedings and since he had received the entire compensation, Section 18 of the Act of 1894 would not apply and therefore, the application filed by him under Section 18(3)(b) was not maintainable.
8. I have heard the learned counsel for the petitioner as well as the learned Addl. Government Advocate for the respondent.
9. Before the Court below, the petitioner examined himself as P.W.1 and the application dated 13.08.1997 filed by him before the respondent was marked as Ex.P.1. A perusal of the said application will indicate that the petitioner had invoked both Section 18 as well as Section 30 of the said Act of 1894. Without noticing this, the Court below proceeded to reject the petition on the sole ground that the petition was filed only under Section 18 and not under Section 30 of the said Act of 1894. This finding recorded by the Court below that the petitioner had not sought for reference under Section 30 of the said Act of 1894 is clearly erroneous and factually incorrect in as much as, a perusal of the Ex.P.1 would clearly indicate that the petitioner had invoked both Section 18 as well as Section 30 of the said Act of 1894 for apportionment of the compensation amount. Under these circumstances, I am of the considered opinion that the Court below has misdirected itself in coming to the conclusion that the application filed by the petitioner was only under Section 18 of the Act and therefore, the same was liable to be rejected.
10. It is trite law that Courts should not adopt a technical/hyper-technical approach and mere quoting of a wrong provision is not a ground to reject an application particularly when the same would affect the valuable legal rights of the parties. Therefore, the impugned order passed by the Court below is clearly unsustainable and the same is liable to be set aside.
11. In view of the aforesaid facts and circumstances of the case, I pass the following:
ORDER 12. Accordingly, I pass the following order:
i) The petition is hereby allowed;
ii) The impugned judgment and order dated 17.06.2005 passed in LAC No.1032/2001 by the Civil Judge (Sr. Dn.) at T.Narasipura, is hereby set aside;
iii) The petition in LAC No.1032/2001 filed by the petitioner before the Court below is hereby restored to file of the Court below.
iv) Parties are free to adduce both oral and documentary evidence of their respective sides.
v) Both parties undertake to appear before the Court below on 03.01.2020 without further notice from the Court below.
The Court below is directed to take up the petition on merits and dispose of the same within a period of three months from 03.01.2020 on which day, both parties shall appear before the Court below without further notice from the Court.
bnv* Sd/-
JUDGE