The Special Land Acquisition Officer has preferred

this appeal challenging the judgment and award dated

20.12.2014 in LAC No.5/2007, on the file of Senior Civil

Judge and JMFC, Sindagi.

2.

Heard the arguments of Sri.Mallikarjun C.

Basareddy,

learned

Government

Advocate

and

Sri. A.M.Biradar, learned counsel for the respondent.

3.

By issuing a notification on 23.12.2003 under

Section 4(1) of Land Acquisition Act, land to an extent of 6

acres 4 guntas of land in9 Sy.No.71 of Kadarapur

belonging to the respondent was notified for acquisition for

the purpose of construction of additional area of Indi Lift

Irrigation Canal in between 13 and 25 Km. at Kadarapur–

Halgundaknal village, Sindagi Taluka, Vijayapur District.

4.

Initially the Special Land Acquisition Officer

(LAO for short) passed an award fixing a sum of

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Rs.19,968/- per acre as a market value for determining

the

compensation

to

be

paid

to

the

respondent.

Dissatisfied with the award the respondents sought

reference to the Civil Court by filing protest petition,

consequently the LAO referred the matter to Civil Court

where the case was registered as LAC No.5/2007. The

Civil Court after placing reliance on the oral testimony of

the PW1 and the documents marked as Ex.P1 to Ex.P11

and Ex.R1 and R2, arrived at a conclusion that the market

value should be enhanced Rs.4,05,640/-. In order to

arrive at this conclusion the Civil Court referred to award

in LAC No.50/2011 pertaining to acquisition of a land in

Devar Hippargi village by virtue of notification dated

28.10.2006. Since the notification in the instant case was

issued in the year 2003, the reference Court applied the

formula of de-escalation by 5% and then arrived at a

figure 4,05,640/-. Therefore, the Special Land Acquisition

Officer has preferred this appeal.

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5.

It is the argument of learned Government

Advocate that the Civil Court opined that de-escalation

should be calculated at the rate of 3% per year, but while

making calculation 5% was held and this clearly shows

that there was no application of mind by the Civil Court.

He also submitted that the acquired land was a dry land

and not a wet land, and in this view the calculation should

have been made considering the acquired land as dry land.

And in which event the market value could have been

fixed at a lower rate even if the formula de-escalation

could be applied. Another point of argument is that the

Civil Court has referred to the judgment of the Supreme

Court in the case of V.G.Kulkarni V/s The Special Land

Acquisition Officer, AIR 1996 Supreme Court 3171,

but has not followed it. In the case of V.G.Kulkarni, it is

clearly held that escalation formula should not be applied

in all cases for increasing the market value. In view of

this, the Civil Court should have applied the capitalization

method for determining the market value. Therefore, he

argued for allowing the appeal.

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6.

Sri. A.M.Biradar, learned counsel submits that

actually the acquired land was a wet land, the RTC marked

Ex.P1 clearly shows that a well was in existence and

therefore, the acquired land was irrigated. He also submits

that when the respondent filed his protest petition, he

clearly stated that his land was irrigated by a well and for

this reason the Civil Court considered acquired land as wet

land for determining the market value. He submits that

there is no error in applying the formula of de-escalation.

He also submitts that it is not necessary that always the

capitalization method should be followed, whenever

exemplar is available, it can be followed and hence he

argues for dismissal of the appeal.

7.

We have considered the arguments. Though

the Civil Court

has

referred to the judgment of

V.G.Kulkarni (Supra), we don't find any infirmity in

applying the escalation or de-escalation formula for the

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purpose of determining the market value. In V.G.Kulkarni

what actually held is:

"3. The question, therefore, is: w