Karnataka High Court
Sri Venugopal V R vs The State Of Karnataka on 17 August, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP 34313-317/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF AUGUST, 2017
BEFORE
®
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.Nos.34313-317/2016 (LA-KIADB)
BETWEEN
1. SRI VENUGOPAL V.R.,
S/O V.RAMAIAH,
AGED ABOUT 56 YEARS,
ANAGAHALLI VILLAGE/POST
BELAGOLA HOBLI,
SRIRANGAPATTANA TALUK
MANDYA - 571 606.
2. SMT. VARALAKSHMI
W/O D.SUBBEGOWDA,
AGED 61 YEARS,
BELAGOLA VILLAGE, BELAGOLA POST,
SRIRANGPATTANA TALUK,
MANDYA DISTRICT - 571 606.
3. SRI PUTTARAJU @ PUTTARAMU
S/O CHALUVEGOWDA BHATHKANI,
AGED 52 YEARS,
BELAGOLA VILLAGE, BELAGOLA POST,
SRIRANGPATTANNA TALUK.
MANDYA DISTRICT - 571 606.
4. SRI VENKATESH BABU V.R.,
S/O V.RAMAIAH,
AGED 59 YEARS,
ANAGAHALLI VILLAGE,
BELAGOLA HOBLI,
SRIRANGAPATTANNA TALUK,
MANDYA DISTRICT - 571 606.
5. SRI SHIVALINGEGOWDA
S/O CHIKKALAINGEGOWDA,
AGED 65 YEARS,
ANANGAHALLI VILLAGE,
WP 34313-317/2016
2
BELAGOLA HOBLI, SRIRANGAPATTANNA TALUK,
MANDYA DISTRICT - 571 606. ... PETITIONERS
(By Sri.SHASHIKIRAN SHETTY, SR.COUNSEL FOR
Smt.FARAH FATHIMA, ADV.)
AND
1. THE STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF COMMERCE AND INDUSTRIES,
VIDHANA SOUDHA,
BANGALORE - 01.
2. THE KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD
BY ITS CHIEF EXECUTIVE OFFICER & EXECUTIVE MEBER
NO. 49, 4TH & 5TH FLOOR, KHANIJA BHAVAN,
RACE COURSE ROAD,
BANGALORE - 01.
3. THE SPECIAL DEPUTY COMMISSIONER
KARNATAKA INDUSTRIAL AREA DEVELOPMENT AREA
NO. 49, 4TH & 5TH FLOOR, KHANIJA BHAVAN,
RACE COURSE ROAD,
BANGALORE - 01.
4. THE SPECIAL LAND ACQUISITION OFFICER
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD,
KIADB ZONAL OFFICE, METAGALLI INDUSTRIAL AREA,
KRS ROAD (NEAR VIKRANTH TYRES)
MYSORE - 570 016. ... RESPONDENTS
(By Sri VIJAYAKUMAR A.PATIL, AGA FOR R1;
Sri B.B.PATIL, ADV. FOR R2-R4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE
THAT THE NOTIFICATION DATED 15.09.2000 ISSUED UNDER SEC.
3(1) OF THE KIAD ACT ANNEX-A NOTIFICATION DATED 15.09.2000
ISSUED UNDER SEC.1(3) OF KIAD ACT, ISSUED BY R1 AT ANNEX-
A1, NOTIFICATION DATED 15.09.2000 ISSUED UNDER SEC. 28(1)
OF THE KIAD ACT (ANNEX-B) AND NOTIFICATION DATED
13.05.2005 GAZETTED ON 15.06.2005 ISSUED UNDER SEC.28(4)
OF THE KARNATAKA INDUSTRIAL DEVELOPMENT ACT (ANNEX-B1)
AS HAVING LAPSED IN TERMS OF THE SEC.24 OF THE RIGHT TO
WP 34313-317/2016
3
COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT ACT, 2013; AND ETC.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. In these writ petitions, petitioners are calling in question the Preliminary Notification dated 15.09.2000 issued under Section 28(1) of the Karnataka Industrial Area Development Act, 1966 (for short, 'KIAD Act') and the Final Notification dated 13.05.2005 issued under Section 28(4) of the Act, acquiring various lands such as Sy. No.29 measuring 1 acre 34 guntas and another extent of 29 guntas in the very same survey number, Sy. No.25 measuring 4 acres 18 guntas, Sy. No.107/3 measuring 1 acre 31 guntas, Sy. No.99 measuring 2 acres 22 guntas, Sy. No.106 measuring 2 acres 30 guntas and Sy. No.99 measuring 2 acres 20 guntas, all situated in Anagahalli village, Srirangapatna Taluk of Mandya District. Petitioners have also called in question the notices dated 26.05.2016 issued under Sections 9 & 10 of the Land Acquisition Act, 1894 (for short, 'LA Act') calling upon the WP 34313-317/2016 4 petitioners to appear before the Special Land Acquisition Officer on 21.06.2016 to give their statement in that connection.
2. It is relevant to notice, at the outset that petitioners claim to be absolute owners of all these lands. They had earlier challenged acquisition of their lands by filing W.P.No.20195/2005 and connected cases. This Court vide order dated 15.10.2008 allowed the writ petition and quashed the notifications reserving liberty to the respondent-authorities to proceed with the acquisition afresh, if they intended to go ahead with the development of II phase of Industrial Area at Mysuru. This order was challenged by the KIADB and Special Land Acquisition Officer, KIADB, in W.A.Nos.259-265/2009 and connected cases.
3. By order dated 16.12.2010, writ appeals were allowed setting aside the order passed by the learned Single Judge. Challenge made to the impugned notifications was dismissed. However, it was made clear WP 34313-317/2016 5 that land owners/the writ petitioners who had not received compensation during the pendency of the writ petition shall be paid compensation based on the market value as obtained on the date of final notification issued under Section 28(4) of the KIAD Act on 13.06.2005. The Special Leave Petition filed against the said order passed by the Division Bench was dismissed as per order dated 18.01.2016. According to the petitioners, possession of the lands of the petitioners has not been taken. It is also clear that as on date, no award has been passed.
4. It is urged by the learned Senior Counsel appearing for the petitioners Mr. Shashikiran Shetty, that as no award has been passed and no compensation has been paid, entire acquisition proceedings have lapsed. He invites the attention of the Court to Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, 'New Act') in this connection. It is his next contention that as per the well settled principle of law, in terms of decision of the Apex court in NAGPUR IMPROVEMENT TRUST & ANOHTER WP 34313-317/2016 6 VS VITHAL RAO & OTHERS - 1973 AIR SC 689, irrespective of lands being acquired under various statutes, compensation payable has to be similar. It is in this background, Counsel for petitioners contends that notices issued under Sections 9 & 10 of the LA Act by the Land Acquisition Officer suffer from illegality. It is his submission that proposed award to be passed under Section 11 of the LA Act would be invalid because compensation cannot be determined with reference to the Old Act which has been repealed.
5. In the statement of objections filed by respondents 2 to 4, it is contended that as per Section 28(5) of the Act, lands stood vested in the State by operation of law once notification under Section 28(4) of the Act was issued. Reliance is placed on the judgments in the case of M.NAGABHUSHANA VS STATE OF KARNATAKA & OTHERS - AIR 2011 SC 1113 and GRINAR TRADERS VS STATE OF MAHARASHTRA AND OTHERS - (2011) 3 SCC 1.
WP 34313-317/2016 7
6. Having heard the learned Counsel for all the parties, the question that falls for consideration is, whether the acquisition proceedings initiated have stood lapsed because KIADB has not passed any award nor paid any compensation to the land owners?
7. Facts involved in the case make it very clear that though lands have been acquired by issuing final notification dated 13.05.2005 under Section 28(4) of the Act, no award has been passed as on today, nor compensation is paid/deposited.
8. As per Section 29(1) of the Act where any land is acquired by the State Government, the State Government shall pay for such acquisition, compensation in accordance with the provisions of the said Act. Sub-clause (2) of Section 29 provides that where the amount of compensation has been determined by agreement between the State Government and the person to be compensated, it shall be paid in accordance with such agreement. As per sub-clause (3), where no such agreement can be reached, WP 34313-317/2016 8 the State Government shall refer the case to the Deputy Commissioner for determination of compensation to be paid for such acquisition as also the person/s to whom such compensation shall be paid. Sub-clause (4) provides that the Deputy Commissioner shall serve notice on the owner or occupier of such land and persons interested to appear before him. Section 30 of the KIAD Act makes the provisions of Central Act No.1 of 1894 (Land Acquisition Act, 1894) applicable mutatis mutandis regarding enquiry and award and for reference to the Court.
9. As there was no agreement between petitioners and the beneficiary regarding amount of compensation payable, award ought to have been passed in terms of the provisions of the LA Act. The LA Act has been repealed by the New Act which has come into force with effect from 01.01.2014. Provisions of the New Act, in so far as determination of compensation is concerned, have to be applied, as otherwise, it would violate the very basic tenet of Article 14 of the Constitution of India. If compensation is payable for the lands acquired under the KIAD Act as WP 34313-317/2016 9 per the old law, whereas compensation has to be made in terms of the provisions of the New Act at a different rate for lands acquired under the LA Act, it would lead to inequality violating Article 14. This position of law is clearly laid down in NAGPUR IMPROVEMENT TRUST case, referred to supra.
10. Petitioners have contended that entire Acquisition Proceedings stand lapsed as per Section 24(2) of the new Act. However, Hon'ble Apex Court has held in the case of SPECIAL LAND ACQUISITION OFFICER (KIADB), MYSORE AND ANOTHER Vs. ANASUYA BAI (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS [(2017) 3 SCC 313] that provisions of Section 24(2) of the New Act have no application to the provisions made under the KIADB Act. Therefore, challenge made to the Acquisition Proceedings on the said ground is not sustainable.
11. However, contention urged by the petitioners that acquisition proceedings have stood lapsed on account of unreasonable delay on the part of the KIADB in passing WP 34313-317/2016 10 the award and in not paying compensation nor depositing the same deserves to be considered seriously.
12. As already stated above, Division Bench of this Court in Writ Appeal Nos. 259-265/2009 vide order dated 16.12.2010 allowed the appeals filed by the KIADB and dismissed the challenge made to the preliminary and final notifications acquiring the land for the benefit of KIADB. Therefore, with effect from 16.12.2010 there was no impediment for the KIADB to pass an award. Indeed while disposing of the said appeals, the Division Bench of this Court made it clear that compensation shall be determined with reference to the date of Final Notification and not with reference to the date of Preliminary Notification. The said direction was issued keeping in mind the delay of 5 years in issuing the Final Notification from the date of issuance of Preliminary Notification. Even thereafter, the KIADB has not taken care to see that award was passed and compensation paid to the land owners, expeditiously. As of now, 6 years have passed WP 34313-317/2016 11 since the acquisition was upheld by the division bench. So far, no award is passed.
13. Learned counsel for the KIADB submits that, now steps have been taken by issuing notices to pass award as per the provisions of the L.A. Act, 1894. Though neither Section 11(A) of the old Act nor Section 24(2) of the new Act are applicable, the general principles of law do regulate the rights of the parties and their obligations.
14. It is well established that, when power has been conferred on an authority, the same has to be exercised in a reasonable manner. Reasonable exercise of power includes exercise of the same within a reasonable period. Delay of seven years in passing the award cannot be treated as a reasonable period. The adverse consequence on the rights of the citizens, who have lost their valuable lands, cannot be forgotten. Generally, payment of compensation for the acquired land is pegged to the date of the Preliminary Notification and the market value has to be ascertained with reference to the said date. In this WP 34313-317/2016 12 case, because of the order of the Division Bench, the said date was postponed to the date of Final Notification. Even if the date of Final Notification viz,, 13.06.2005 is reckoned, there would be delay of 12 years as on date in passing the award. Therefore, compensation to be quantified now would be illusory, as it will not reflect the realistic value of the land. However, if the KIADB had taken steps and had passed an award within a reasonable period after the disposal of the writ appeal, there would not have been any problem in repelling the contention urged by the petitioners that acquisition proceedings stood lapsed. The conduct of the KIADB discloses that, it is neither interested in taking possession of the land and utilizing the same for the purpose for which it is acquired, nor in paying compensation to the land-losers.
15. In the case of TUKARAM KANA JOSHI & OTHERS THROUGH POWER OF ATTORNEY HOLDER VS. M.I. D.C. AND OTHERS -AIR 2013 SC 565, the Apex Court has, while dealing with the issue of legal obligation on the part of the authorities to complete such acquisition proceedings and WP 34313-317/2016 13 to make payment of requisite compensation has observed in paras 17 & 18 as follows:
"17. The appellants have been seriously discriminated against qua other persons, whose land was also acquired. Some of them were given the benefits of acquisition, including compensation in the year 1966. This kind of discrimination not only breeds corruption, but also dis- respect for governance, as it leads to frustration and to a certain extent, forces persons to take the law into their own hands. The findings of the High Court, that requisite records were not available, or that the appellants approached the authorities at a belated stage are contrary to the evidence available on record and thus, cannot be accepted and excused as it remains a slur on the system of governance and justice alike, and an anathema to the doctrine of equality, which is the soul of our Constitution. Even under valid acquisition proceedings, there is a legal obligation on the part of the authorities to complete such acquisition proceedings at the earliest, and to make payment of requisite compensation. The appeals etc. are required to be decided expeditiously, for the sole reason that, if a person is not paid compensation in time, he will be unable to purchase any land or other immovable property, for the amount of compensation that is likely to be paid to him at a belated stage.
18. While dealing with the similar issue, this Court in K. Krishna Reddy & Ors. v. The Special Dy. Collector, Land Acquisition Unit II, LMD Karimnagar, Andhra Pradesh, AIR 1988 SC 2123, held as under:
WP 34313-317/2016 14 "....After all money is what money buys. What the claimants could have bought with the compensation in 1977 cannot do in 1988. Perhaps, not even one half of it. It is a common experience that the purchasing power of rupee is dwindling. With rising inflation, the delayed payment may lose all charm and utility of the compensation. In some cases, the delay may be detrimental to the interests of claimants. The Indian agriculturists generally have no avocation. They totally depend upon land. If uprooted, they will find themselves nowhere. They are left high and dry. They have no savings to draw. They have nothing to fall back upon. They know no other work. They may even face starvation unless rehabilitated. In all such cases, it is of utmost importance that the award should be made without delay. The enhanced compensation must be determined without loss of time...."
16 It is not in dispute that possession of the land has not been taken. Possession has been continued with the land owners and they have been utilizing the land for agricultural purpose by cultivating the same. In the case of RAMCHAND AND OTHERS Vs. UNION OF INDIA [(1994) 1 SCC 44], the Apex Court laid down principles with regard to reasonable exercise of power within a reasonable period of time. The Apex Court held that where no time limit is fixed for exercise of power, it has to be exercised within a reasonable period of time. The authorities are enjoined by WP 34313-317/2016 15 the statute concerned, to perform their duties within a reasonable time and as such they are answereable to the Court, why such duties have not been performed by them, which has caused injury to the claimants. 17 Even the fact that matter was taken up before the Hon'ble Apex Court by the landlords by filing SLP, would not in any manner alter the position because, there was no interim stay and the KIADB was not in any manner prevented from passing award and taking over possession by paying compensation. Therefore, there is absolutely no justification for the KIADB to defend its inaction in not passing the award within a reasonable period.
18. In the case of H.N. SHIVANNA & ORS. VS. STATE OF KARNATAKA AND ANOTHER [ (2013) 4 KCCR 2793 (DB), a Division Bench this Court, by referring to the decision of the Hon'ble Apex Court in SLP Appeal (C) No.27380- 27397/2013, has observed at Para-39 thus:-
"39.From the aforesaid discussion, it is clear if a period is prescribed under the Act for WP 34313-317/2016 16 issue of a final declaration as well as for passing of the award, if the final declaration is not issued and the award is not passed within the stipulated period, the entire acquisition lapses, unless it is shown by virtue of any order of stay or injunction issued by any Court, the authorities were precluded from completing the acquisition proceedings. It is by operation of law as contained in the statute. Merely because such a provision is not found in an enactment, it does not mean limitation is not a bar at all. If such a prescription is not there expressly in any enactment it is not possible to hold that such an acquisition has lapsed relying on the provisions contained in the Land Acquisition Act. In other words, the provisions of the Land Acquisition Act cannot be read into the Act or such similar Statutes. But nonetheless in order to decide what is the reasonable time within which authorities have to exercise their power either for issue of a final notification or for passing of the award is concerned, certainly the Parliament intendment as contained in this provision cannot be completely lost sight of on the contrary, it acts as a guide. It expresses the will of the Parliament. It has to be given due weight. When this acquisition proceedings were delayed WP 34313-317/2016 17 endlessly and land owners were deprived of just compensation under law and consequently the constitutional right was violated, the Parliament amended the Land Acquisition Act prescribing the time limit. According to the Parliament, one year is the reasonable time for passing of a final declaration and two years is the time for passing of an award. If within those periods the final declaration is not issued, the award is not passed, the whole acquisition lapses. The Act is enacted for industrial development which has to be done expeditiously.
19. The delay in passing the award in the instant case is not 3 years or 4 years but it is 7 years from the date all hurdles were cleared by the decision of the Division Bench. There is absolutely no justification for the KIADB to keep quiet for such a long time. This makes the situation worse for the acquiring body.
20. In view of the above rulings, I have no hesitation in holding that the entire acquisition proceedings in this case have been abandoned and lapsed due to the inaction on the part of the KIADB in passing the award. The writ WP 34313-317/2016 18 petitions are accordingly allowed. The acquisition proceedings of the lands in question are declared as lapsed.
Sd/-
JUDGE KK