A regular suit is appropriate remedy to settle the dispute
This appeal is filed against the final judgment and order dated 30.8.2017 passed by the High Court of Kerala at Ernakulam in Writ Petition (C) No. 15385/2017 whereby the Division Bench of the High Court allowed the writ petition filed by respondent No.1 herein and directed the appellant herein, by issuing a writ of mandamus, to restore the possession of the flat in question to respondent No.1 herein.
Facts of the case lie in narrow compass. They, however, need mention in brief infra to appreciate the short question involved in this appeal.
The dispute essentially relates to the possession of a flat bearing No. 3D, 3rd floor located in building known as Royal Court-Block IV at Kozhikode (hereinafter referred to as “the flat”) and is between the appellant and respondent No.1 herein.
Respondent No.1 filed a writ petition being W.P. (C) No. 15385 of 2017 before the High Court of Kerala against the appellant herein and other respondents (local police authorities) seeking therein a relief of restoration of his possession over the flat in question. The appellant contested the writ petition on various factual and legal grounds including raising an objection about the maintainability of the writ petition and the reliefs claimed therein.
Hon’ble A.M. Sapre and Indu Malhotra, JJ., have held that the writ petition filed by the respondent No.1 under Article 226/227 of the Constitution of India against the appellant before the High Court for grant of relief of restoration of the possession of the flat in question was not maintainable. In other words, the High Court ought to have declined to entertain the writ petition in exercise of extraordinary jurisdiction under Article 226/227 of Constitution for grant of reliefs claimed therein.
In our view, the writ petition to claim such relief was not, therefore, legally permissible. It, therefore, deserved dismissal in limine on the ground of availability of an alternative remedy of filing a civil suit by respondent No.1 (writ petitioner) in the Civil Court.
We cannot, therefore, concur with the reasoning and the conclusion arrived at the High Court when it unnecessarily went into all the questions of fact arising in the case on the basis of factual pleadings in detail (43 pages) and recorded a factual finding that it was the respondent No.1 (writ petitioner) who was in possession of the flat and. Therefore, he be restored with his possession of the flat by the appellant.
In our opinion, the High Court, therefore, while so directing exceeded its extraordinary jurisdiction conferred under Article 226 of the Constitution. Indeed, the High Court in granting such relief, had virtually converted the writ petition into a civil suit and itself to a Civil Court. In our view, it was not permissible.
Roshina T v. Abdul Azeez K T, 2019 (193) AIC 1 SC
Market rate was determined by Reference Court to be upheld by High Court
This appeal is directed against the final order/judgment dated 12.10.2007 passed by the High Court of Karnataka at Bangalore in M.F.A. No. 594 of 2003 whereby the High Court allowed the appeal filed by the respondents herein and reduced the compensation awarded to the appellants herein by award dated 30.9.2002 passed by the Additional Civil Judge (Sr. Division) Hubli in LAC No. 58/87.
In order to appreciate the controversy involved in this appeal, it is necessary to set out the facts of the case herein below.
The appellants are claimants (landowners) and the respondents are the State Authorities –non-applicants in the land acquisition reference proceedings out of which this appeal arises. The State of Karnataka in exercise of powers conferred under section 28(1) of the Karnataka Industrial Areas Development Act, 1966.
The question, which arises for consideration in this appeal, is whether the High Court was justified in reducing the rate of compensation from Rs 21,000/- per Gunta.
In other words, the question, which arises for consideration in this appeal, is whether the High Court was justified in holding that the market value of the land in question was Rs 10,250/- per Gunta on the date of its acquisition.
Hon’ble A.M. Sapre and Indu Malhotra, JJ., have held that as mentioned above, while appreciating the aforementioned evidence, the Special Deputy Commissioner determined the market rate of the land in question at Rs 500/- per Gunta whereas the Reference Court fixed the compensation at the rate of Rs 21,000/- per Gunta. The High Court, however, reduced it to Rs 10,250/- per Gunta.
In our considered opinion, the market rate determined by the Reference Court at the rate of Rs 21,000/- per Gunta was the proper market rate of the land in question and the same, therefore, should have been upheld by the High Court. In other words, the High Court was not justified in reducing the rate determined by the Reference Court from Rs 21,000/- per Gunta to Rs 10,250/- per Gunta and instead the High Court should have upheld the rate fixed by the Reference Court.
In our considered view, there is enough evidence to prove the potentiality of the land in question as would be clear from the findings of the Land Acquisition Officer mentioned above. Apart from it, the land –filing 10 sale – deeds wherein it is established that price of the land situated in the adjacent area has varied from Rs 7250/- per Gunta to Rs 57,000/- per Gunta between 1977 till 1982.
Taking into consideration the aforementioned factors, we are of the view that there was no justifiable reason for the High Court to reduce the rate from Rs 21,000/- per Gunta to Rs 14,500/- per Gunta and then deducting 30% towards development charges fixed at Rs 10,250/- per Gunta.
In our opinion, having regard to the liability to the totality of the facts and the circumstances emerging from the record and keeping in view the evidence adduced by the parties, we consider just and proper to fix Rs 21,000/- per Gunta as the market value of the land in question and after deducting 10% towards the development charges fix the market price of the land in question at Rs 18,900/- per Gunta.
In other words, we hold and accordingly fix the market value of the land in question at the rate of Rs 18,900/- per Gunta for payment of compensation to the appellants for their land. The appellants are also entitled to get other statutory compensation payable under the Act, which is now to be re-calculated on the basis of the market rate fixed by this Court.
The respondents are accordingly directed to recalculate the compensation amount payable to the appellants in the light of the market rate fixed by this Court, i.e., Rs 18,900/- per Gunta and after making proper verification pay to the appellants the total compensation within 3 months.
Mallappa v. Special Land Acquisition Officer, 2019 (193) AIC 7 SC