Karnataka High Court
M/S Abhishek Developers vs Power Grid Corporation Of India on 18 October, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.9477 OF 2021 (LA-RES)
BETWEEN:
M/S. ABHISHEK DEVELOPERS
A REGISTERED PARTNERSHIP FIRM
HAVING OFFICE AT NO.1211
"SRI MAILARALING NILAYA"
I CROSS, I MAIN, I PHASE
V STAGE, RAJARAJESHWARI NAGAR
BENGALURU-560 098.
...PETITIONER
(BY SRI ASHOK HANDE, ADVOCATE)
AND:
1. POWER GRID CORPORATION OF INDIA
(A GOVERNMENT OF INDIA ENTERPRISE)
REGISTERED OFFICE AT: NO.B-9
QUTAB INSTITUTIONAL AREA
KATWARIA SARAI,
NEW DELHI-110 016.
REPRESENTED BY ITS
CHAIRMAN AND MANAGING DIRECTOR.
2. THE DEPUTY GENERAL MANAGER
POWER GRID CORPORATION OF INDIA
POORNA PRASAD ROAD
MADHAVA NAGAR, GANDHI NAGAR
BENGALURU-560 001.
2
3. THE DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
REVENUE BUILDING
KEMPEGOWDA ROAD
BENGALURU-560 009.
4. THE SPECIAL LAND ACQUISITION OFFICER
"VISHWESHWARAIAH TOWER
3RD BLOCK, PODIUM BLOCK
BENGALURU-560 001.
5. THE METROPOLITAN COMMISSIONER
STRR PLANNING AUTHORITY AND
BANGALORE METROPOLITAN REGION
DEVELOPMENT AUTHORITY (BMRDA)
NO.1, ALI ASKAR ROAD
BENGALURU-560 052.
...RESPONDENTS
(BY SRI JOSHNA HUDSON SAMUEL, ADVOCATE FOR R1 AND 2;
SRI K R NITYANANDA, AGA FOR R3 AND 4;
SRI YOGESH D NAIK, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ACQUISITION MADE BY THE R1 TO DRAW HIGH TENSION
TRANSMISSION POWER CABELS DHARMAPURI SOMANAHALLI
D/C QUAD LINE OVER CONVERTED LAND BEARING SURVEY.NO.
14/7, MEASURING 21 GUNTAS AND SURVEY,.NO.14/8,
MEASURING 1 ACRE 12 GUNTAS SITUATED TIMMASANDRA
VILLAGE, KASABA HOBLI, ANEKAL TALUK, BANGALORE RURAL
DISTRICT, BELONGING TO THE PETITIONER AS INFORMED BY
R1 TO THE PETITIONER VIDE ANNEXURE -F F DATED
03.06.2020; AND ETC.
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
In this writ petition, petitioner has sought for quashing the acquisition of subject land made by respondent No.1 for the purpose of drawing High Tension electric lines, as well as seeking alternative relief of compensation.
2. The factual matrix of the case are, petitioner is a partnership Firm engaged in developing residential layouts. Petitioner-Firm purchased land measuring 0.21 guntas in survey No.14/7; 1.03 acres in survey No.16/1; 1.02 acres in Survey No.16/4; 1.09 acres in survey No.16/6; 1.12 acres in survey No.14/8, in all measuring 5.07 acres, situate at Thimmasandra village, Anekal Taluk, Bengaluru Rural District from its owner- Revanna as per registered sale deed dated 09th July, 2015. The aforementioned lands are converted by the competent authority for non-agricultural purpose. The case of the petitioner-Firm is that, it intends to develop the land by forming residential sites and accordingly, as per Annexure-D, provisional approval has been accorded by the competent authority. In the meanwhile, respondent No.1 has erected tower over the lands in survey 4 No.14/7 and 14/8 to effectuate the Project "Dharmapuri- Somanahalli D/C quad-line", under the provisions of Indian Telegraph Act, 1885, (for short hereinafter referred to as the "Act"). The petitioner-Firm, addressed letter to the respondent No.1 seeking compensation and pursuant to the same, the respondent No.1 has communicated that as per the revenue documents, the erstwhile owner-Revanna, is the kathedar and as such, information has been communicated to him for seeking compensation. It is the grievance of the petitioner that in view of drawing of quad-line over the lands belonging to the petitioner-Firm, the petitioner-Firm was not able to complete the project and the value of the land has been diminished and formation of layout is not possible in view of drawing of 440 KV quad-line, and accordingly, has presented this writ petition.
3. On service of notice, respondents entered appearance. Respondents 1 and 2 filed statement of objection stating that the respondent-Power-Grid Corporation of India Limited, has been entrusted with the task of establishing Salem (New) (Dharmapuri) - Somanahalli 400 KV quad D/C line under Section 5 68 of the Electricity Act, 2003 (for short hereinafter referred to as the "Electricity Act") as per the approval made on 04th June 2010. It is the specific case of respondents 1 and 2 that the revenue records pertaining to survey No.14/7 and 14/8 stood in the name of Revanna (erstwhile owner of the land) and adequate compensation has been made to him. It is further stated that Deputy Commissioner, Bangalore Urban has determined the compensation as per Order dated 09th May, 2017 (Annexure-R5) and further submitted that no tower has been erected in the land belonging to the petitioners, however, only electricity line has been drawn across the land in question and accordingly, sought for dismissal of the petition.
4. Heard Sri Ashok Hande, learned counsel appearing for the petitioner and Sri Joshua Hudson Samuel, learned Counsel appearing for respondents 1 and 2; Sri K.R. Nithyananda, learned Additional Government Advocate for respondent No.4; and Sri Yogesh D. Naik, learned counsel appearing for respondent No.5.
6
5. Sri Ashok Hande, learned counsel appearing for the petitioner contended that the petitioner-Firm has purchased the land in question to an extent 5.07 acres situate at Thimmasandra village, Anekal Taluk for the purpose of formation of Residential Layout and in view of the erection of tower and drawing of quad-line in the vicinity of the land in question, the petitioner-Firm was not able to form the residential layout as intended to, despite having approval from the competent authority as per Annexure-D to the writ petition. He further submitted that, though the land in question has been acquired by the respondent No.1 for drawing D/C quad-line, however, petitioner-Firm has not been paid compensation and therefore, he submitted that it is a clear violation of Article 300A of Constitution of India. He also invited the attention of the Court to Section 10(d) of the Act and argued that the petitioner herein is entitled for compensation for diminished value of the property, as the land in question is not suitable for human habitation. He also emphasised on the health hazards that may be caused to the occupants in the vicinity of the lands in question. He further contended that, unless the dispute with regard to the 7 compensation to be payable to the land-owner i.e. the petitioner-Firm is decided, the petitioner-Firm being a land owner, cannot approach the Deputy Commissioner under Section 16(3) of the Act. Hence, learned Counsel for the petitioner submitted that the petitioner-Firm is entitled for ad-hoc compensation in terms of Right to Fair Compensation in Land Acquisition Rehabilitation and Resettlement Act, 2013 (for brevity hereinafter referred to as "2013 Act"). In support of his submissions, learned counsel invited the attention of the Court to the Guidelines for payment of compensation as per the letter dated 15th October, 2015 by the Ministry of Power, Government of India. To buttress his arguments, he placed reliance on the judgment of the Hon'ble Supreme Court in the case of KERALA STATE ELECTRICITY BOARD v. LIVISHA ETC. ETC. reported in 2007 AIR SCW 4104 and accordingly, sought for allowing the writ petition. He also pleaded that respondent No.1 be directed to pay ad-hoc compensation to enable the petitioner-Firm to approach the District Judge.
8
6. Per contra, Sri Joshua Hudson Samuel, learned counsel appearing for respondents 1 and 2, argued that the petitioner- Firm has to approach the Deputy Commissioner under Section 16(3) of the Act to determine the compensation. He further contended that the compensation has already been paid to the erstwhile owner of the land in question and therefore, he contended that, the petitioner-Firm is not entitled for compensation. Referring to Annexure-R4, the learned counsel argued that the anubhavadar of the land in question is Revanna (erstwhile owner) and therefore, in terms of order dated 09th May, 2017, (Annexure-R5), compensation has been paid to the said Revanna. He further contended that High tension quad-line for public-purpose, has been drawn-up by making use of the land in question in which power is vested with the respondent- authorities under eminent domain of the State and therefore, he sought for dismissal of the petition. In support of his submissions, learned counsel places reliance on the judgment of Hon'ble Apex Court in the case of POWER GRID CORPORATION OF INDIA LIMITED v. CENTURY TEXTILES AND INDUSTRIES LIMITED AND OTHERS reported in (2017)5 SCC 143. 9
7. Sri K.R. Nithyanand, learned Additional Government Advocate, justifies the action of the respondent-State and submitted that there is no impediment for the petitioner-Firm to approach the Deputy Commissioner for appropriate relief under the Act.
8. Sri Yogesh D. Naik, learned counsel appearing for respondent No.5 submitted that this respondent had given provisional approval to the petitioner-Firm for the purpose of formation of layout and therefore, supports the contention of the learned counsel representing the other respondents.
9. In the light of the submission made by the learned counsel appearing for the parties, I have given my anxious consideration to the documents produced along with the writ petition. It is not in dispute that the petitioner herein is a partnership Firm, running business of developing residential layouts and thereby purchased the land measuring 0.21 guntas in survey No.14/7; 1.03 acres in survey No.16/1; 1.02 acres in Survey No.16/4; 1.09 acres in survey No.16/6; 1.12 acres in survey No.14/8, in all measuring 5.07 acres, situate at 10 Thimmasandra village, Anekal Taluk, Bengaluru Rural District as per sale deed produced at Annexure-A to the writ petition. The respondent No.5 herein has accepted the layout plan formed by the petitioner-Firm and provisional approval has been made as per Annexure-D. It is also not in dispute that the land in question is converted for non-agricultural purpose as per Annexure-C. The grievance of the petitioner in this petition is that, though the petitioner-Firm has completed the project by investing huge funds on the schedule lands, but no prospective buyers are coming forward to purchase the plots in question on the ground that the first respondent-Power Grid has drawn 440 KV high tension quad-line over the schedule properties. In that view of the matter, the plots cannot be used for human habitation and frustrates the intention of the petitioner-Firm to effectuate the project completely. In this regard, the respondent No.5 has issued letter produced at Annexure-G to the writ petition that no formal sanction has been taken by the respondent No.1 from the respondent No.5 herein for drawing- up the High tension quad-line. The specific defence of the respondent No.1 is that the first respondent has released 11 compensation in favour of the khatedar of the land in question and urged that the name of the petitioner-Firm was not shown as khatedar in the relevant revenue records and therefore, sought for dismissal of the writ petition. The respondent No.4- State has also issued endorsement dated 30th September, 2020 stating that, the lands in question are not notified for the purpose of acquisition by the Government. In this regard, though respondent No.1 has relied upon the judgment of the Hon'ble Apex Court in the case of POWER GRID CORPORATION OF INDIA LIMITED (supra), however in the said judgment, at paragraphs 23 and 28, it is observed thus:
"23. Section 10 of the Indian Telegraph Act, 1885 empowers the Telegraph Authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Indian Telegraph Act, 1885 makes it abundantly clear that while acquiring the power to lay down telegraph lines, the Central Government does not acquire any right other than that of user in the property. Further, Section 19(d) of the Indian Telegraph Act, 1885 obliges the Telegraph Authority to ensure that it causes as little damage as possible and that the Telegraph Authority shall also be obliged to pay full compensation to 12 all person interested for any damage sustained by them by reason of the exercise of those powers.
24 to 27 xxx xxx xxx
28. ...We make it clear that if the writ petitioner feels that it is entitled to any compensation, the appropriate course of action is to file a suit before the concerned District Judge for this purpose. It would also be apt to point out at this stage that the Central Government has framed guidelines dated October 15, 2015 in this behalf which inter alia provide that the issue of compensation may be resolved having regard to the mode and manner of assessment of compensation as per the said guidelines. Therefore, it would always be open to the writ petitioner to avail the remedy as per the said guidelines."
(emphasis supplied)
10. Though the learned counsel appearing for the respondent specifically contended that the petitioner herein has to approach the District Judge, seeking compensation under the Act, however, the said submission cannot be accepted for the reason that the name of the petitioner-Firm was not shown as khatedar in the revenue records, despite the petitioner herein having purchased the schedule property from its erstwhile owner 13 on 09th July, 2015 as per Annexure-A. In this regard, on careful consideration of Section 16(3) of the Act, the applicant, in such situation, shall approach the District Judge if any dispute arises concerning the sufficiency of compensation. Even for the sake of argument, if the contentions of respondent No.1, that the compensation has been paid to the erstwhile owner of the land in question is to be accepted, however, the said aspect cannot be considered on the sole ground that, the respondent No.1 ought to have verified the relevant records and title deeds of the claimants before releasing the compensation. As on 2015, in terms of the sale deed referred to above, the petitioner-Firm is the owner in possession of the land in question and there is no title dispute raised by the erstwhile owner against the petitioner herein and in that view of the matter, the contention of the respondent No.1 cannot be accepted. That apart, since the petitioner has not received any compensation till date from the respondent No.1 and as such, no dispute arises for adequacy or inadequacy in the compensation, to approach District Judge under Section 16(3) of the Act and as such, I find force in the submission made by the learned counsel appearing for the 14 petitioner that the petitioner cannot be relegated to approach the District Judge for quantification of compensation unless interim compensation or ad-hoc compensation be awarded in this writ petition. It is well established principle in law that land owners/losers have to be compensated in accordance with the prevailing legislation as on the date of issuance of acquisition proceedings or on the date of taking possession. Undoubtedly, in the present case, the respondent No.1 has initiated acquisition proceedings and in terms of order dated 09th May, 2017 (Annexure-R5) the Deputy Commissioner accorded permission to respondent No.1 to draw high tension quad-line which is running through the land belonging to the petitioner-Firm and therefore, the petitioner-Firm is entitled for compensation in accordance with law and therefore, taking into consideration the fact that the petitioner is entitled for interim compensation to enable him to approach the District Judge under Section 16(3) of the Act, in my considered opinion, the respondent No.1 shall pay compensation to the petitioner-Firm in terms of the statutory guidelines of the jurisdictional Sub-Registrar, in respect of the land in question. In that eventuality, if the petitioner-Firm feels 15 that the compensation so granted by the respondent No.1 in lieu of the statutory guidelines of the Sub-Registrar is inadequate, liberty is reserved to the petitioner-Firm to approach the District Judge under Section 16(3) of the Act.
11. That apart, though the high tension quad-line was drawn over the lands in Survey No.14/7 and 14/8 of Thimmasandra Village, however, same would affect the interest of land owners/residents of the surrounding area and would certainly bring down the land value. In that aspect, the judgment of the Hon'ble Apex Court in the case of LIVISHA (supra) is necessarily to be referred to. In the said judgment, the Hon'ble Apex Court, taking into account Section 10 of The Indian Telegraph Act, 1885, at paragraphs 9 to 12 of the judgment, held as follows:
"9. Both telegraph lines and electrical lines are required to be drawn over the agricultural lands and/or other properties belonging to third parties. In drawing such lines, the entire land cannot be acquired but the effect thereof would be diminution of value of the property over which such line is drawn. The Telegraph Act,, 1885 provides for the manner in which the amount 16 of compensation is to be computed therefor. Section 10 of the Act empowers the authority to place and maintain a telegraph line under, over, along or across, or posts in or upon any immovable property. Section 11 empowers the officers to enter on property in order to repair or remove telegraph lines or posts. Section 12 empowers the authority to grant permission for laying down such lines to a local authority in terms of clauses (c) & (d) of the proviso to Section 10 of the Act subject to reasonable conditions as it may think fit. Section 16 of the said Act reads as under :-
"16. Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority.-
(1) If the exercise of the powers mentioned in Section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.
(2) If, after the making of an order under section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Section 188 of the Indian Penal Code, 1860 (45 of 1860).
(3) If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.17
(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.
(5) Every determination of a dispute by a District Judge under sub-section (3), or sub-section (4) shall be final:
Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the persons who has received the same."
10. The situs of the land, the distance between the high voltage electricity line laid thereover, the extent of the line thereon as also the fact as to whether the high voltage line passes over a small track of land or through the middle of the land and other similar relevant factors in our opinion would be determinative. The value of the land would also be a relevant factor. The owner of the land furthermore, in a given situation may lose his 18 substantive right to use the property for the purpose for which the same was meant to be used.
11. So far as the compensation in relation to fruit bearing trees are concerned the same would also depend upon the facts and circumstances of each case.
12. We may, incidentally, refer to a recent decision of this Court in Land Acquisition Officer, A.P.V. Kamandana Ramakrishna Rao & Anr. reported in 2007 AIR SCW 1145 wherein claim on yield basis has been held to be relevant for determining the amount of compensation payable under the Land Acquisition Act, same principle has been reiterated in Kapur Singh Mistry v. Financial Commission & Revenue Secretary to Govt. of Punjab & Ors. 1995 Supp. (2) SCC 635, State of Haryana v. Gurcharan Singh & Anr. 1995 Supp. (2) SCC 637, para 4, and Airports Authority of India v. Satyagopal Roy & Ors. (2002) 3 SCC 527. In Airport Authority (Supra), it was held :-
"14. Hence, in our view, there was no reason for the High Court not to follow the decision rendered by this Court in Gurucharan Singh's case and determine the compensation payable to the respondents on the basis of the yield from the trees by applying 8 years' multiplier. In this view of the matter, in our view, the High Court committed error apparent in awarding compensation adopting the multiplier of 18.""19
12. Recently, the Hon'ble Apex Court, in the case of SUKH DUTT RATRA AND ANOTHER v. THE STATE OF HIMACHAL PRADESH AND OTHERS reported in (2022)7 SCC 508 while considering the case of the claimants whose lands have been acquired for the purpose of NARAG-FAGLA ROAD, following the VIDYADEVI v. STATE OF HIMACHAL PRADESH reported in (2020)2 SCC 569, at paragraphs 13 to 25 of the judgment, held as follows:
"13. While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.
14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington and by this court in Wazir Chand v. The State of Himachal Pradesh. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the 20 State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.
15. When it comes to the subject of private property, this court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State. In Bishandas v. State of Punjab, this court rejected the contention that the petitioners in the case were trespassers and could be removed by an executive order, and instead concluded that the executive action taken by the State and its officers, was destructive of the basic principle of the rule of law. This court, in another case - State of Uttar Pradesh and Ors. v. Dharmander Prasad Singh and Ors., held:
"A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease- deed does not authorise extra- judicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all 21 actions of Government and Governmental authorities should have a 'legal pedigree'".
16. Given the important protection extended to an individual vis-a-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains - can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable, and warranting intervention on the grounds of equity and fairness.
17. When seen holistically, it is apparent that the State's actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and 1962(2) SCR 69; 1989(1) SCR 176 compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court's directions to those who specifically approached the courts. The State's lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners, pursuant to the orders dated 23.04.2007 (in CWP No. 1192/2004) 22 and 20.12.2013 (in CWP No. 1356/2010) respectively. In this manner, at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.
18. There is a welter of precedents on delay and laches which conclude either way - as contended by both sides in the present dispute - however, the specific factual matrix compels this court to weigh in favour of the appellant-land owners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a 'limitation' to doing justice. This court in a much earlier case - Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, held:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material.
But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the 23 delay and the nature of the acts done during the interval, which might 1969(1) SCR 808 affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
19. The facts of the present case reveal that the State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants' prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction. This court, in Manohar (supra) - a similar case where the name of the aggrieved had been deleted from revenue records leading to his dispossession from the land without payment of compensation - held:
"Having heard the learned counsel for the appellants, we are satisfied that the case projected before the court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent.
Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted 24 by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:
"300-A. Persons not to be deprived of property save by authority of law.--No person shall be deprived of his property save by authority of law." This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution..."
20. Again, in Tukaram Kana Joshi (supra) while dealing with a similar fact situation, this court held as follows:
"There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode."25
21. Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants' alleged verbal consent or the lack of objection, but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the State's position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings.
22. This court is also not moved by the State's contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the same reason - construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Court's intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of 26 land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment.
23. This court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances - rejected the contention of 'oral' consent to be baseless and outlined the responsibility of the State:
"12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC, (2013)1 SCC 353 : (2013)1 SCC (Civ) 491] wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
12.10. This Court in State of Haryana v. Mukesh Kumar (2011)10 SCC 404 : (2012)3 SCC (Civ) 769] held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension."
24. And with regards to the contention of delay and laches, this court went on to hold:
27
"2.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22]"
25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case."
13. In view of the aforementioned dictum rendered by the Hon'ble Apex Court, right to property is not only a statutory right of the claimant, but also the human right and violation of human right amounts to derogation of Constitutional principles/values and therefore, the petitioner-Firm has to be compensated in 28 accordance with law in terms of awarding just compensation, since the legitimate expectation, as enshrined under Article 14 of the Constitution of India, has been infringed in view of drawing high tension quad-line over the schedule land which resulted in disentitling the petitioner-Firm from putting to use the land in question for which it was purchased. It is also adverted by the learned Counsel representing the petitioner that, drawing up of Dharmapuri-Somanahalli (State of Karnataka)high tension quad- line by the respondent No.1 over the petition schedule property would create health hazards to the residents/occupants, I find force in the submission made by the learned counsel appearing for the petitioner that the schedule property, in view of the electric field over it, would render itself useless and calls for abandonment. In view of the fact that respondent No.1 has drawn high tension quad-line for public purpose, the prayer made by the petitioner-Firm that the respondent No.1 be directed to dismantle/remove/shift the structure from the schedule land, cannot be considered. However, the petitioner- Firm has to be compensated in accordance with law by awarding just compensation in terms of the observation made above at 29 paragraph 10 of this order. It is also made clear that, in order to raise dispute for seeking compensation under Section 16 of the Act before the District Judge, it is inevitable to direct the respondent No.1 to pay ad-hoc compensation, as discussed above to enable the petitioner-Firm to approach the District Judge, for seeking just compensation, in the peculiar circumstances of the facts on record.
14. In this regard, it is useful to refer to the law laid down by this Court in the case of THE EXECUTIVE ENGINEER, KPTCL, CHITRADURGA AND ANOTHER v. DODDAKKA reported in 2014(6) KLJ 185, wherein at paragraphs 14 and 17 to 19 of the judgment, it is observed thus:
"14. It cannot be disputed that drawing up of high voltage electrical line through any property by the petitioners in exercise of the powers conferred on them under Section 10 of the Indian Telegraph Act, 1885, would result in damage to the value of the property, apart from causing damage to the standing trees. It is for this reason provision has been made under Section 10(d) of the Act, requiring the Telegraph Authority to do as little damage as possible and shall pay full compensation' to all persons interested for any damage sustained by them by 30 reason of exercise of those powers by the Telegraph Authority. It is also evident from Section 11 of the Act that the Telegraph Authority has got the power to enter on the property in order to repair or remove the telegraph line or both and also for the purpose of examining, repairing, altering or removing the same at any time. Section 16(3) of the Act, provides for the Forum, namely the Court of the District Judge within whose jurisdiction the property is situated to determine any dispute concerning sufficiency of compensation to be paid under Section 10(d) of the Act. It is thus clear from the aforementioned provisions that, a farmer who suffers damage to his crop and to the land on account of drawing up of transmission line over or across his land, is entitled for payment of Full compensation'. The expression full compensation used in Section 10(d) of the Act has to be understood as just equivalent of which the owner has been deprived of including in the matter of diminution in the value of the land on account of drawing up of overhead power line across the land.
15 and 16 xxx xxx xxx
17. In KERALA STATE ELECTRICITY BOARD Vs. LIVISHA AND OTHERS (2007) 6 SCC 792, the Apex Court while considering the determination of compensation made based on the Judgment of Five Judges Bench of Kerala High Court in the matter of KOMATH KTJMBA AMMA & OTHERS Vs. KERALA STATE ELECTRICITY BOARD 31
- 2000(1) KLT 542 (FB) wherein it was held that the annuity thereof shall be calculated on the basis of 5% return and fixing the rate of diminution in the market value of the land at 50%, after referring to various Judgments rendered by the High Court of Kerala at different points of time taking different view in the matter, has observed in Paragraph 7 that the amount of compensation payable has to be determined keeping in view the purpose and object of the statute and there cannot be any fixed formula. The Apex Court has pointed out that a fixed formula for determining the amount of compensation although may make the task of the Land Acquisition Officer or the reference court easier but each case has to be decided on its own merit keeping in mind the purpose and object of the Act and the methodology laid down as guiding factor. In paragraph 10 to 12 of the Judgment in Livisha's case, the Apex Court has observed as under:
"10. The situs of the land, the distance between the high voltage electricity line laid thereover, the extent of the line thereon as also the fact as to whether the high voltage line passes over a small tract of land or through the middle of the land and other similar relevant factors in our opinion would be determinative. The value of the land would also be a relevant factor. The owner of the land furthermore, in a given situation may lose his substantive right to use the property for the purpose for' which the same was meant to be used.
11. So far as the compensation in relation to fruit bearing trees are concerned the same would also depend upon the facts and circumstances of 32 each case. We may, incidentally, refer to a recent decision of this Court in Land Acquisition Officer Vs. Kamadana Ramakrishna Rao [(2007) 3 SCC 526: 2007 AIR SCW 1145] wherein claim on yield basis has been held to be relevant for determining the amount of compensation payable under the Land Acquisition Act; same principle has been reiterated in Kapur Singh Mistri Vs. Financial Commissioner & Revenue Secretary to Government of Punjab [1995 Supp (2) SCC 637], para 4 and Airports Authority of India Vs. Satyagopal Roy [(2002) 3 SCC 527]. In Airports Authority [(2002) 34 SCC 527] it was held:
4. Hence, in our view, there was no reason for the High Court not to follow the decision rendered by this Court in Gurcharan Singh case [1995 Supp (2) SCC 637] and determine the compensation payable to the respondents on the basis of the yield from the trees by applying 8 years' multiplier. In this view of the matter, in our view, the High Court committed err or apparent in awarding compensation adopting the multiplier of
18."
12. We are, therefore, of the opinion that the High Court should consider the matter afresh on the merit of each matter having regard to the fact situation obtaining therein. The impugned judgments, therefore, cannot be sustained. These are set aside accordingly. The matters are remitted to the High Court for consideration thereon afresh. The appeals are allowed. In the facts and circumstances of the case, there shall be no order as to costs.
18. It is thus evident that multiplier to be adopted will have to be same as multiplier adopted under the provisions of the Land Acquisition Act for determining the 33 value of the trees. As regards the nature and quantum of compensation to which the farmer is entitled, measurement of the land, distance between high voltage electrical line laid over the same, extent of the line and also whether only a small tract of land is used or the line is drawn right through the middle of the land and such other similar factors would be determinative for deciding the quantum of compensation to be awarded. Yet another important observation made by the Apex Court in Paragraph 10 is that, the value of the land would also become relevant factor and in a given case, the owner of land may be deprived of using the land for the purpose for which the same was mean: to be used.
19. If the principles laid down in the above Judgments are made applicable to the facts of the present case, it will emerge that the land in question, was used for growing coconut trees and the land is capable of being put to intensive cultivation for growing horticulture crops including for growing toll fruit bearing trees. Thus the best use for which the land can be put to is radically restricted thereby depriving the land owner from utilizing his land to its full potential to realize the maximum income and generate more profit. As is evident from the photographs produced by the respondent - farmer, the high voltage electrical line has been drawn across the land damaging not only the 14 coconut trees grown at the edge of the land, but also the land on either side of the corridor. Therefore, the corridor consisting of totally 18 34 meters, 9 meters on either side has to be treated as an area severely affected depriving the land owner of his right to grow trees or luxuriant shrubs. In fact, petitioners have treated this area only as affected area for the purpose of determining the compensation and also for assessing the value of the trees cut and removed. Even as per The Electricity Act, 2003, Section 68 provides for removal of shrubs, trees and other such growth if they are likely to affect overhead power lines. Therefore, the land owners are not entitled to grow any trees under the corridor area as the same will affect the transmission lines. Apart from this, having regard to the fact that the electrical transmission line has been drawn across the land, it will cause damage depriving the farmer of his efficient use of the other portion of the land. Therefore, the said factor also cannot be lost sight of. In the instant case, the learned District Judge has confined the amount of compensation to be awarded to the actual corridor area. Therefore, even proceeding on the said premise if the compensation were to be calculated, as rightly submitted by the counsel for the respondent, the best price payable for the coconut grown and the best yield which can be derived and the resultant income generated from the land ought to be taken for the purpose of determining the compensation."
15. At this juncture, having referred to the judgments mentioned above, it cannot be lost sight of the fact that the 35 petitioner-Firm had purchased the schedule property for the purpose of formation of residential layout and thereby necessary approval has been conferred by the competent authorities as per Annexure-D. The petitioner-Firm is neither an agriculturist nor horticulturist to make use of the schedule property for the said purpose. That apart, on interference of respondents by drawing high-tension quad-line, over the schedule land, the land is abandoned. In that view of the matter, deprival of the legitimate right of the petitioner by the respondent-authorities, amounts to violation of Article 14 read with Article 300-A of the Constitution of India. In this regard, it is relevant to cite the law declared by the Hon'ble Apex Court in the case of LALA RAM AND OTHERS v. JAIPUR DEVELOPMENT AUTHOIRTY AND ANOTHER reported in (2016)11 SCC 31, wherein it is held that even though the right to property is no longer a fundamental right and was never a natural right, it has to be accepted that without the right to property, other rights become illusory. The Hon'ble Apex Court further held that the callous inaction on the part of the State and its instrumentalities in securing just compensation would amount to dereliction of a constitutional duty, justifying 36 issuance of writ of mandamus for appropriate remedial actions. In this regard, observation made at paragraphs 126 to 129 of the judgment, is relevant. The same read thus:
"126. In a catena of decisions of this court, this prize privilege has also been equated to human right. In Mukesh Kumar (supra), this Court has succinctly propounded this proposition in the following terms: "The right to property is now considered to be not only a constitutional or statutory right but also a human right. Human rights have already been considered in the realm of individual rights such as the right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even the claim of adverse possession has to be read in that context.
The changing attitude of the English courts is quite visible from the judgment of Beaulane Properties Ltd. vs. Palmer (2005)4 All.ER 461. The Court here tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, 37 the Court has taken an unkind view to the concept of adverse possession.
127. In summa, the right to property having been elevated to the status of human rights, it is inherent in every individual, and thus has to be venerably acknowledged and can, by no means, be belittled or trivialized by adopting an unconcerned and nonchalant disposition by anyone, far less the State, after compulsorily acquiring his land by invoking an expropriatory legislative mechanism. The judicial mandate of human rights dimension, thus, makes it incumbent on the State to solemnly respond to its constitutional obligation to guarantee that a land looser is adequately compensated. The proposition does not admit of any compromise or laxity.
128. Added to this, is the promissory estoppel perspective, the State being the promisor. Estoppel is a rule of equity which has entrenched itself with time in the domain of public life. A new class of estoppel recognised as "promissory estoppel" has assumed considerable significance in the recent years. So far as this Court is concerned, it invoked the doctrine in Anglo Afghan Agencies (supra) in which it was enounced that even if a case would not fall within the purview of Section 115 of the Indian Evidence Act, 1872, it would still be open to a party, who had acted on a representation made by the Government, to claim that it should be bound to carry out 38 the promise made by it, even though the promise was not recorded in the form of a formal contract as required by Article 299 of the Constitution of India. This principle, evolved by equity, to avoid injustice is traceable as well in the leading case on the subject in Central London Property Trust Ltd. vs. High Trees House Ltd (1947) 1 KB
130.
129. In a later decision of this Court in Motilal Padampat Sugar Mills Co. (supra), responding to the plea of the State Government, inter alia, that there could be no promissory estoppel against it, so as to inhibit it from formulating and implementing its policies in public interest, this Court underlined, in reiteration, the well- known preconditions for the operation of the doctrine as under:
A clear and unequivocal promise, knowing and intending that it would be acted upon by the promisee;
On such acting upon the promise by the promise, it would be inequitable to allow the promisor to go back on the promise."
16. It is also relevant to extract the observation made at paragraphs 151 to 153, which read thus:
39
"151. This underlying thought found erudite elaboration in Manohar Lal Sharma vs. Principal Secretary and Others (2014) 2 SCC 532.
"The Supreme Court has been conferred very wide powers for proper and effective administration of justice. The Court has inherent power and jurisdiction for dealing with any exceptional situation in larger public interest which builds confidence in the rule of law and strengthens democracy. The Supreme Court as the sentinel on the qui vive, has been invested with the powers which are elastic and flexible and in certain areas the rigidity in exercise of such powers is considered inappropriate."
152. Thus failure to discharge an obligatory duty defined by public policy without any justification in disregard thereto viewed in the context of the sacrosanct content of human rights in Article 300A is an inexcusable failure of the state to discharge its solemn constitutional obligation, the live purpose for its existence. The predominant facts herein, justifiably demand a fitting relief modelled by law, equity and good conscience. Thus, the elaborate preface.
153. In the overall view of the matter, we are of the confirmed opinion, that in the singular facts and circumstances of the case and for the sake of complete justice, the appellants are entitled to be allotted their quota of 15% developed land in the terms of policy/circular dated 13.12.2001 in one or more available plots at Vidyadhar Nagar, Gokul Nagar, Truck Terminal 40 and Vaishali Nagar as enumerated by them in their affidavit dated 17.8.2015. The respondents are hereby directed to accommodate them accordingly."
17. Recently, a Division Bench of the Gujarat High Court, while hearing a plea filed by a farmer seeking compensation from the respondent-State therein, despite there being delay of 39 years in approaching the Court, held that State cannot deny just compensation after acquiring private person's land for pubic purpose. This Court in the case of THE EXECUTIVE ENGINEER, BRUHAT KAMAGARI VIBHAGA, KPTCL (BESCOM), CHITRADURGA AND ANOTHER v. BASAVARAJAPPA reported in 2018(5) KLJ 419 at paragraph 16 of the judgment, held as follows:
"It is well-settled that while considering the provisions of Electricity and Telegraph Act for determination of compensation of loss of diminishing value on account of drawing electricity line over the property has to be held that the situs of the land distance between the high voltage electricity line laid over the extent of the land thereon and also fact whether the high voltage line passes over the track of the land or through the middle of the land and other relevant facts are to be considered. The owner of the land, furthermore in a given situation may lose his specific right to use the 41 property for the purpose for which the same was meant to be used. Admittedly, in the present case, the claimant not only lost the agricultural land but he has also been deprived of the income that was available to him as a result of the drawing 440 K.V. double circuit high tension line and it is not the case of the present petitioners before the District Judge that even after drawing of the lines, the landlord has utilised the lands for raising crops. No contra evidence is produced to disprove the claim of the claimant/respondent-landlord."
18. Following the dictum of the Hon'ble Apex Court as well as this Court in the cases referred to above, it is pertinent to mention that where a high voltage electricity transmission line is drawn across the land, as in the present case, then the owner of the land/affected party is entitled for just compensation under law. Petitioner-Firm is the owner of the land and the same is not disputed by the Respondent-authorities. It is no doubt true that the petitioner's access to the land in question for formation of residential layout is not only restricted, but the entire utilisation of the land, would render useless and in that view of the matter, so also, considering the submission made by the learned counsel for the parties, petitioner-Firm is permitted to approach 42 respondents 1 and 2 seeking ad-hoc compensation and if such an attempt is made by making representation, the same shall be considered by the respondent-authorities 1 and 2 within two weeks from the date of such representation in accordance with law taking into consideration the value of the entire land in question as per guidelines of jurisdictional Sub-Registrar and upon such consideration if the petitioner-Firm disputes the quantum of compensation awarded by the respondent- authorities is inadequate, liberty is reserved to the petitioner- Firm to approach the District Judge under Section 16(3) of the Act.
16. In the result, I pass the following:
ORDER (1) Writ petition is allowed;
(2) Respondent No.1 is directed to pay the ad-hoc compensation to the petitioner-Firm in respect of the subject land totally measuring 5.07 acres of Thimmasandra village, Anekal Taluk, 43 Bengaluru Rural District within two weeks from the receipt of the representation that may be filed by the petitioner-Firm;
(3) Liberty is also reserved to the petitioner-Firm to approach the learned District Judge to determine just compensation, if aggrieved by the award of ad-hoc compensation.
Sd/-
JUDGE lnn