Karnataka High Court
Pasagouda S/O. Balagouda Patil vs The State Of Karnataka on 19 October, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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W.P. No.100034 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 100034 OF 2017 (LA-KIADB)
BETWEEN:
1. PASAGOUDA
S/O. BALAGOUDA PATIL,
AGE 75 YEARS, OCC: AGRICULTURE,
R/O. BEDKIHAL VILLAGE,
TQ. CHIKKODI, DIST. BELAGAVI.
2.. BALAGOUDA PATIL,
SINCE DECEASED BY HIS L.RS
2(A) PRATHIBA
W/O. BALAGOUDA PATIL,
AGE 65 YEARS, OCC: HOUSEHOLD WORK,
2(B) PRASHANT
S/O. BALAGOUDA PATIL,
AGE 45 YEARS, OCC: AGRICULTURE,
2(C) PRDYUMN
S/O. BALAGOUDA PATIL,
AGE 40 YEARS, OCC: AGRICULTURE,
3. SUBASH KOLHAPURE,
SINCE DECEASED BY HIS L.RS.
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W.P. No.100034 of 2017
3(A) SHAKUNTAL
W/O. SUBASH KOLHAPURE,
AGE 60 YEARS, OCC: HOUSEHOLD WORK,
3(B) YASHWANT
S/O. SUBASH KOLHAPURE,
AGE 40 YEARS, OCC: AGRICULTURE,
3(C) ROHINI
W/O. BALWANT ARABALE,
AGE 35 YEARS, OCC: HOUSEHOLD WORK
4.. MAHAVEER PATIL,
AGE 51 YEARS, OCC: AGRICULTURE,
5. SHIVAGOUDA BENADE,
SINCE DECEASED BY HIS L.RS
5(A) KAVERI
W/O SHIVAGOUDA BENADE,
AGE 65 YEARS, OCC: HOUSEHOLD WORK,
5(B) SANTOSH
S/O. SHIVAGOUDA BENADE,
AGE 45 YEARS, OCC: AGRICULURE,
5(C) SHEETAL
S/O. SHIVAGOUDA BENADE,
AGE 40 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O. BEDKIHAL VILLAGE,
TQ. CHIKKODI, DIST. BELAGAVI.
... PETITIONERS
(BY SRI. ANIL KALE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY SECRETARY,
REVENUE DEPT., BENGALURU.
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W.P. No.100034 of 2017
2. THE SECRETARY,
DEPT. OF COMMERCE & INDUSTRIES,
BENGALURU.
3. THE DEPUTY COMMISSIONER,
BELAGAVI, DIST. BELAGAVI.
4. THE COMMISSIONER,
THE KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD, BENGALURU.
5. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, LAKKAMANAHALLI, INDUSTRIAL
AREA, P.B.ROAD, DHARWAD.
6. THE VENKATESHWARA POWER PROJECT LTD.,
(SUGAR FACTORY), R/O. ADMINISTRATIVE
OFFICER, MAHADIK PUMP, SHIRIOLI POST,
TQ. HATAKANANGALA, DIST. KOLAPUR.
7. THE SPECIAL COMMISSIONER,
THE KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD, BENGALURU.
... RESPONDENTS
(SRI. SHIVAPRABHU HIREMATH, AGA FOR R1 TO R3;
SRI. VEERESH R.BUDIHAL, ADVOCATE FOR R4 & R5;
SRI. S.S. KATAGERI, ADVOCATE FOR R6;
SRI. G.I. GACHCHINAMATH, ADVOCATE FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE
THE ACQUISITION PROCEEDINGS INITIATED BY VIRTUE OF
NOTIFICATION PRODUCED AT ANNEXURE-A AND B ARE NULL
AND VOID FOR HAVING BEEN LAPSED & ETC.,
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W.P. No.100034 of 2017
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The petition is filed challenging the notifications issued under Sections 28(1) and 28(4) of the Karnataka Industrial Areas Development Act, 1966 (for short "the KIAD Act").
2. A prayer is also made to direct the Deputy Commissioner to refer the matter for determination of the compensation and a direction is also sought to invoke the provisions of the 2013 Act for the purposes of passing an award.
3. Learned counsel for the petitioners submits that the petitioners would not intend press their challenge to the notifications issued under Section 28 and they would be satisfied if the respondents are directed to pass an award in terms of the 2013 Act.
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4. It is not in dispute that a notification under Section 28(1) was issued on 02.03.2000 and this was followed by declaration under Section 28(4) on 09.10.2000.
5. It is also not in dispute that the approval to the award was granted only on 13.05.2016 and the making of the award was declared only on 14.11.2016. Thus, in effect, the award in respect of the lands in question were passed only on 13.05.2016.
6. In view of the decision rendered by this Court in W.P. No.108802/2016, in cases where no award had been passed as on 01.01.2014, an award would have to be necessarily made under the provisions of the 2013 Act, even if the acquisition had been initiated under the KIAD Act.
7. However, the learned counsel for the beneficiary contends that subsequent to the decision rendered in W.P. No.108802/2016, the Hon'ble Supreme Court in Civil Appeal Nos.6778-6780 of 2022 (Bharat Petroleum Corporation Ltd., (BPCL) & Ors. Vs. Nisar Ahmed Ganai & Ors.) has held that -6- W.P. No.100034 of 2017 the provisions of the 2013 Act would be inapplicable, if the acquisition was under a special law and therefore, the judgment passed by this Court would be inapplicable and as the judgment of the Hon'ble Supreme Court, the award would have to be passed only under the provisions of The Land Acquisition Act,1894
8. It is to be stated here that in Civil Appeal Nos.6778-6780 of 2022, the Hon'ble Supreme Court was dealing with the provisions of the State Land Acquisition Act, 1990, a Land Acquisition Law enacted in the State of Jammu & Kashmir. It is to be stated here that the Hon'ble Supreme Court in the aforementioned decision has clearly stated in the said judgment, as follows:
"5. ...... It cannot be disputed that prior to the enactment of the Jammu & Kashmir Reorganization Act, 2019 and promulgation of the Jammu & Kashmir (Removal of Difficulties) Order, 2019, the Land Acquisition Act, 1894 was not applicable at all so as for as the State of Jammu & Kashmir is concerned."-7- W.P. No.100034 of 2017
9. It is thus clear that, in the State of Jammu & Kashmir, the provisions of the Land Acquisition Act, 1894 were inapplicable and in that context the judgment was rendered by the Hon'ble Supreme Court to the effect that an award could not be passed under the 2013 Act on the repeal of the 1894 Act.
10. It may also be pertinent to state here that the State Land Acquisition Act, 1990, which was being considered by the Hon'ble Supreme Court, by itself, contained provisions for passing of an award and the provisions of the 1894 Act were not therefore required to be applied for passing of an award. Since the acquisition was under the State Land Acquisition Act, 1990, which by itself, provided for passing of an award, even on its repeal, by virtue of Section 6 of the General Clauses Act, the rights and liabilities under the repealed law would stand saved and thus, the award would have to be made only under the repealed Act. It is in this background, the Hon'ble Supreme Court in the aforementioned decision stated that the prayer -8- W.P. No.100034 of 2017 for passing of an award under the 2013 Act could not have been granted.
11. However, in the case of the KIAD Act, there is no provision for passing of an award and by Section 30 of the KIAD Act, i.e., by way of legislation by reference, for the purpose of passing of an award, the provisions of the Land Acquisition Act, 1894, have been made applicable. Since, the provisions of the 1894 Act have been made applicable under the KIAD Act for the purposes of passing an award, on the repeal of the 1894 Act, the compensation would have to be determined under the 2013 Act by virtue of Section 8 of the General Clauses Act, as has been held in W.P. No.108802/2016.
12. It may also be pertinent to state here that in the State of Karnataka, unlike in Jammu & Kashmir, the provisions of the Land Acquisition Act, 1894 have always been applicable for acquisition of lands. Consequently, in the KIAD Act also the provisions of the Land Acquisition Act have always been made applicable for the purpose of passing of -9- W.P. No.100034 of 2017 an award right for the very day the KIAD Act came to be enacted in 1966.
13. Thus, the judgment rendered by the Hon'ble Supreme Court in the aforementioned appeal would be inapplicable to cases relating to passing of an award under the KIAD Act, such as in the present case.
14. It may also be stated here that in the case decided by the Hon'ble Supreme Court, the Hon'ble Supreme Court was also dealing with a situation where there was an order of status quo, as regards the possession, which was held to be an impediment for passing of the award, as a consequence of which, the Hon'ble Supreme Court had held that the petitioners therein could not take advantage of a situation which was created by the petitioners themselves in preventing the making of an award for the purpose of securing an award under the more beneficial provisions of the 2013 Act.
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W.P. No.100034 of 2017
15. It is also to be stated here that the decision rendered by the Hon'ble Supreme Court in Bangalore Development Authority & Anr. Vs. the State of Karnataka & Ors. rendered in Civil Appeal Nos.7661-7663 of 2018, was also considered in W.P. No.108802/2016 and was held to be inapplicable to the cases coming within the purview of the KIAD Act since Section 30 of the KIAD Act was a case of legislation by reference and not a case of legislation by incorporation. I am therefore of the view that the argument of the learned counsel for the beneficiary that an award cannot be passed under the provisions of the 2013 Act has no merit.
16. Lastly, Learned Counsel for the beneficiary, contended that the petitioner should not be granted the benefit of interest, since he had instituted a suit in O.S. No.51/2002, which was dismissed on 13th July 2005 and an appeal was also preferred by him in R.A. No.81/2005, which was also dismissed on 13th January 2009. It is therefore
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W.P. No.100034 of 2017 contended that the petitioners would be entitled for interest only from 13.01.2009.
17. It is not in dispute that the petitioners did not have the benefit of an interim order in O.S. No.51/2002 or in R.A. No.81/2005 and there was thus no impediment for passing of an award under the provisions of the KIAD Act. If, there was no impediment for passing of an award, the KIAD cannot take the benefit of a litigation to deny the petitioners the benefit of interest that they would be otherwise entitled to under the provisions of the Land Acquisition Act.
18. This argument is also therefore rejected. Consequently, as admittedly, no award had been passed as on 01.01.2014, the KIADB is directed to refer the matter to the Deputy Commissioner as provided under Section 29 of the KIAD Act, who shall thereafter proceed to pass an award as under the provisions of the 2013 Act.
19. This exercise of passing of an award under the provisions of the 2013 Act shall be undertaken and
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W.P. No.100034 of 2017 completed within a period of three months from the date of receipt of a certified copy of this order.
The writ petition is accordingly allowed.
Sd/-
JUDGE Vnp* List No.: 1 Sl No.: 15