IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA R.P.Nos.370 & 396/2017 IN W.P.Nos.44129 – 44130/2016 (LA – RES) BETWEEN:
Smt.Susheelamma W/o Anantha Sheshu Aged about 69 years Residing at Kote Extension Chikkamagaluru Town – 577 101 (By Sri. A. V. Gangadrappa, Advocate) AND:
1. Land Acquisition Officer and The Assistant Commissioner Revenue Sub-Division Chikkamagaluru – 577 101 ….Petitioner 2. Deputy Chief Engineer (Construction) South Western Railway No.18, Millers Road Contonment Bengaluru – 560 048 ….Respondents (By Sri.Shiva Prabhu S. Hiremath, AGA for R1; Sri. N. S. Sanjay Gowda, Advocate for R2) These Review Petitions are filed under Order 47 Rule 1 read with Section 114 of CPC praying to review the order dated 12.07.2017 passed in W.P.
Nos.44129-130/2016, on the file of the Hon’ble High Court of Karnataka, Bengaluru.
These Review Petitions coming on for Admission, this day, the court made the following:
ORDER The petitioner has sought for review of the order dated 12.07.2017 passed in W.P.Nos.44129- 130/2016, whereby the writ petitions filed by the petitioner challenging the judgment dated 26.08.2014 passed by the II Additional Senior Civil Judge at Chikkamagaluru has been held to be not maintainable. The writ petitions were disposed of reserving liberty to the petitioner to prefer an appeal as per Section 54 of the Land Acquisition Act, 1894 (‘the Act’ for short) read with Karnataka Amendment, against the order impugned at Annexure-F to the writ petitions.
2. Learned counsel for the petitioner placing reliance on the order of this Court in CRP No.10077/2015 and allied matters disposed of on 29.03.2016 by the same Honb’le Judge, has sought for the review of the order dated 12.07.2017 passed in W.P.Nos.44129-130/2016 referred to supra. In the said order, considering Section 26 of the Act vis-à-vis Section 54 of the Act, it is held thus:
“11. It is thus clear from Section 54(1) that an appeal shall lie from an award of the Court in any proceedings under the Land Acquisition Act. Therefore, question that requires to be answered is whether the order now passed by the reference Court dismissing the reference as barred by time constitutes an award.
12. Part III of the Land Acquisition Act, 1984 deals with “REFERENCE TO COURT AND PROCEDURE THEREON”. Once the matter is referred to the Court for determination of the correct market value payable, the reference Court is enjoined with a duty under Section 23 to take into consideration certain factors while determining the amount of compensation to be awarded for the acquired land. Six factors have been enumerated in Section 23(1) of the Act.
13. Section 25 states that the amount of compensation awarded by the Court shall not be less then the amount awarded by the Collector under Section 11.
14. Section 26 is important for our purpose. It is usefully extracted hereunder:
“26. Form of awards.-
(1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts.
(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2, clause (2) and section 2, clauses (9,) respectively, of the Code of Civil Procedure, 1908 (5 of 1908).”
15. It is thus clear from a perusal of Section 26 of the Act that an award of the reference Court under Part-III of the Act shall be in writing and signed by the Judge and it shall specify the amount awarded under various clauses namely clauses first to sixthly of Section 23(1) together with the grounds of awarding each of the said amounts. It is this award so passed that shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2 clause (2) and Section 2 clause (9), respectively, of the Code of Civil Procedure.
16. Therefore, as rightly contended by learned counsel for petitioner, dismissal of reference as barred by time cannot be regarded as an award passed by the reference Court inasmuch as no amount is awarded as provided under Section 26 let alone under various clauses of Section 23(1) of the Act. Therefore, there is no deemed decree as provided under sub clause (2) Section 26 and hence, appeal against such order dismissing the reference as barred by time does not lie under Section 54(1) of the Land Acquisition Act as amended by the Karnataka amendment. As per Section 54(1) of the Act, an appeal shall lie from an award or from any part of the award, of the Court in any proceedings under the Act. Since, there is no award in the instant case an appeal does not lie against the order under challenge. Therefore, the remedy for petitioners is to file a writ petition challenging the order passed. Accordingly, office objections are upheld.
17. At this stage, learned counsel for petitioners submits that the memorandum of revision petitions filed may be permitted to be converted into writ petitions. Petitioners are permitted to convert the revision petitions into writ petitions by carrying out necessary amendment and if necessary, by filing fresh cause title.”
3. However, this Order was not brought to the notice of the Hon’ble Judge while disposing of Writ Petition Nos.44129-130/2016. In view of the order referred to in CRP No.100077/2015 having reached finality, in order to maintain uniformity and consistency in the orders, the order passed subsequently by the same Hon’ble Judge in the present writ petition disposing of the writ petition reserving liberty to the petitioner to prefer an appeal under Section 54 of the Act requires to be recalled.
4. Accordingly, review petitions are allowed.
The order dated 12.07.2017 is recalled. The writ petitions are restored to file. List the writ petitions for preliminary hearing week after next.
Sd/- JUDGE Mds/-