Karnataka High Court
Mahadevappa S/O Honnappa vs The Chief Secretary on 25 August, 2014
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION Nos. 107720-27/2014 (LA-RES)
BETWEEN :
1. MAHADEVAPPA
S/O HONNAPPA HADIMANI
AGE: 70 YEARS,
OCC: AGRICUTURE
R/O. BISNALKOPPA
TQ: HUNAGUND
DIST: BAGALKOT
2. NAGAPPA
S/O. NINGAPPA KENAGAL
AGE: 47 YEARS,
OCC: AGRICUTURE
R/O. BISNALKOPPA
TQ: HUNAGUND
DIST: BAGALKOT
3. BASAVARAJ
S/O. SANGAPPA SHIRUR
AGE: 60 YEARS,
OCC: AGRICUTURE
R/O. BISNALKOPPA
TQ: HUNAGUND
DIST: BAGALKOT
4. MALAKAJAPPA
S/O. HONNAPPA
AGE: 59 YEARS,
OCC: AGRICUTURE
R/O. BISNALKOPPA
TQ: HUNAGUND
:2:
DIST: BAGALKOT
5. MALAKAJAPPA
S/O. ADIVEPPA
AGE: 45 YEARS,
OCC: AGRICUTURE
R/O. BISNALKOPPA
TQ: HUNAGUND
DIST: BAGALKOT
6. REVANASIDDAPPA
S/O. ADIVEPPA ANGADI
AGE: 40 YEARS,
OCC: AGRICUTURE
R/O. BISNALKOPPA
TQ: HUNAGUND
DIST: BAGALKOT
7. SHIVALINGAPPA
S/O. BASAPPA HADIMANI
AGE: 36 YEARS,
OCC: AGRICUTURE
R/O. BISNALKOPPA
TQ: HUNAGUND
DIST: BAGALKOT
8. RAMACHANDRAPPA
S/O. SANGAPPA BEGAR
AGE: 65 YEARS,
OCC: AGRICUTURE
R/O. BISNALKOPPA
TQ: HUNAGUND
DIST: BAGALKOT
... PETITIONERS
(BY SRI : LAXMAN T MANTAGANI, ADVOCATE)
AND :
1. THE CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHAN SOUDHA, BANGALORE
:3:
2. THE SECRETARY
GOVERNMENT OF KARNATAKA
REVENUE DEPARTMENT,
M S BUILDING, BANGALORE
3. THE COMMISSIONER
REHABILITATION RESETTLEMENT
AND LAND ACQUISITION
GOVERNMENT OF KARNATAKA
UPPER KRISHNA PROJECT
NAVANGAR, BAGALKOT
4. THE GENERAL MANAGER
LAND ACQUISITION
GOVERNMENT OF KARNATAKA
UPPER KRISHNA PROJECT
NAVANGAR, BAGALKOT
5. THE SPECIAL DEPUTY COMMISSIONER
LAND ACQUISITION
UPPER KRISHNA PROJECT
NAVANGAR, BAGALKOT
6. THE SPECIAL LAND ACQUISITION OFFICER
UPPER KRISHNA PROJECT
NAVANGAR, BAGALKOT
7. THE GENERAL MANAGER
REHABILITATION RESETTLEMENT
AND LAND ACQUISITION
GOVERNMENT OF KARNATAKA
UPPER KRISHNA PROJECT
NAVANGAR, BAGALKOT
... RESPONDENTS
(BY SMT. K. VIDYAVATHI, A.G.A.)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO DIRECT THE RESPONDENTS NO.3 TO 6 TO
DEFER THE PARTIAL AWARD PASSED BY RESPONDENT
NO.6 DATED 19.12.2013 VIDE ANNEXURE-B, ETC.
:4:
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Petitioners have sought a direction to respondent Nos.3 to 6 "to defer" the partial award passed by respondent No.6 dated 19.12.2013 (Annexure-B). A direction is sought to respondent Nos.3 to 6 to determine the amount of compensation in its entirety as per preliminary notification at Annexure-A in terms of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as '2013 Act').
2. It is the case of petitioners that their house properties were submerged in the back waters of Narayanpur Reservoir. On account of the loss of their properties, respondent No.5 - Deputy Commissioner initiated acquisition proceedings to acquire 183 houses at Bisnalkoppa village in which petitioners' properties were also located. Preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as '1894 Act' for short) was issued on 05.11.2011 as per Annexure-A. :5: The preliminary notification invoked the urgency clause under Section 17 of the 1894 Act and final notification was issued on 18.06.2012. Thereafter the award was passed on 19.12.2013 in respect of 53 house properties out of 183 house properties/plots that were acquired. Admittedly, in respect of those petitioners the award has been passed as per award dated 19.12.2013, a copy of which is produced as Annexure-B to the writ petition. Insofar as these petitioners are concerned, consideration of their properties for the purpose of determination of compensation is at Sl. No.15, 24, 11, 14, 28, 29, 16 and 2 respectively in Annexure-B award.
3. The grievance of petitioners is that insofar as these petitioners are concerned, the award has been passed on 19.12.2013, but insofar as other persons whose properties have also been acquired under the very same notifications, no awards have been passed till date and in the interregnum on 01.01.2014 the 2013 Act has been enforced, and therefore, under Section 24 of the 2013 Act. That insofar as these petitioners are concerned, the 1894 Act would apply and insofar as other persons in respect of whom no awards :6: have been passed the 2013 Act would apply. It is contended that the award of compensation under 2014 Act is more beneficial, and therefore, petitioners also should have the benefit of 2013 enactment.
4. In this context, learned counsel for petitioners submitted that Annexure-B award dated 19.12.2013 is an incomplete award and unless a common award was passed in respect of all 183 houses or plots, Annexure-B award cannot be reckoned for the purpose of determination of compensation. Hence, a direction is sought 'to defer' the partial award which has been passed by respondent No.6.
5. While elaborating this contention learned counsel for petitioners drew my attention to Section 24 of the 2013 Act and contended that where an award has been made under Section 11 of the 1894 Act then such proceedings would continue under the provisions of that Act as if that Act has not been repealed. But, if no award under Section 11 of the 1894 Act has not been made, then the provisions of 2013 Act would apply i.e., to only those persons in respect of whom the award has not yet been made, and they would have the benefit of new Act. It is, therefore, contended that :7: in the instant case award at Annexure-B is not an award within the meaning of and in accordance with Section 11 of the 1894 Act, and therefore, that cannot be taken into consideration for the purpose of determination of compensation insofar as these petitioners are concerned.
6. Per contra, learned A.G.A. while appearing on advance notice supported the award passed at Annexure-B and contended that determination of compensation in respect of 53 persons including petitioners herein cannot be disregarded or ignored. She contended that the new Act i.e., 2013 Act has taken note of this circumstance and Section 24 of the 2013 Act clearly states under what circumstances the new Act would apply and under what circumstances that old Act would apply. She therefore contended that there is no merit in these writ petitions.
7. Having heard learned counsel for parties and on perusal of material on record, it is noted that insofar as these petitioners are concerned, their properties along with others were subject matter of acquisition pursuant to the preliminary notification issued on 05.11.2011 and the final notification issued on 18.06.2012.
:8:It is an admitted fact that in respect of these petitioners along with others an award has been passed on 19.12.2013. It is not known as to whether any award has been passed in respect of other persons whose plots or houses were also acquired, under the very same notifications. Even if no awards have been passed as regards other persons are concerned, the fact remains that insofar as these petitioners are concerned even prior to enforcement of 2013 Act, the award was passed on 19.12.2013. Keeping in mind such situation, sub-section (1) Section 24 of the 2013 Act the following is considered. The same reads as under:
24. Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases. - (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894. -
(a) where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or :9:
(b) where an award under said Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
8. On a reading of sub-section (1) of Section 24 of the 2013 Act, it is noted that it begins with a non-obstante clause. It takes note of two circumstances one, where no award has been passed under 1894 Act, and second, where an award has been passed under that Act. Sub-section (1) says that notwithstanding anything contained under 2013 Act where land acquisition proceedings have been initiated under 1894 Act where an award under Section 11 has been made, then such proceedings would continue under the provisions of 1894 Act as if that Act has not been repealed insofar as that award is concerned. The object of making such a provision with a non-obstante clause is to ensure with all vested rights that have arisen in respect of the award passed under the old Act are maintained. However, if no award is passed under Section 11 of the 1894 Act, then the provisions of 2013 Act for determination of compensation would apply.
: 10 :
9. The apprehension of petitioners seems to be that the compensation to be awarded in respect of all the other persons other than the 53 persons including petitioners herein in respect of whom the awards were passed would get a higher compensation, and therefore, awards passed at Annexure-B in respect of 53 persons including the petitioners should not be reckoned. Such a contention cannot be accepted for the reason that the 2013 Act itself makes a distinction between those awards passed prior to the enforcement of 2013 Act and those awards which are not passed prior to that Act. The common thread is all the acquisitions in respect of which the awards have been passed or in respect of which the awards have not been passed as on the date of enforcement of 2013 Act were all initiated under the Land Acquisition Act, 1894. The Parliament with an intention to save all awards which were passed prior to enforcement of 2013 Act has in sub-clause
(b) of sub-section (1) of Section 24 of the 2013 Act noted that those awards which have been passed prior to the enforcement of 1894 Act must be saved. That is the intention of having a two-pronged provision under sub- section (1) of Section 24 of the Act. If the Parliament itself : 11 : has made a distinction between those awards which were passed prior to enforcement of 2013 Act and those awards which are passed subsequent thereto, the petitioners cannot have any grievance with regard to that aspect in the absence of there being a challenge to sub-section (1) of Section 24 of the 2013 Act. That apart, it is only an apprehension that the persons in respect of whom awards would be passed subsequent to the 2013 Act would get a higher compensation as compared to petitioners herein in respect of whom award has already been passed prior to enforcement of 2013 Act. The reliefs sought by petitioners cannot be based on such apprehensions. The 2013 Act categorically saves the rights of persons in respect of whom awards have been made prior to enforcement of 2013 Act by holding that the 1894 Act shall apply insofar as those persons are concerned.
10. In the circumstances, petitioners were at liberty to seek reference under Section 18 of the 1894 Act, if they were not satisfied with the award of compensation or if they were aggrieved by the determination of compensation made by Land Acquisition Officer.
: 12 :
11. In the instant case, the award at Annexure-B is dated 19.12.2013, as on that day the 2013 Act was not at all in force. The fact that awards were passed only in respect of 53 plots or houses cannot be a grievance which can be ventilated by petitioners as Annexure-B award covers their properties and their rights are to be enforced in terms of the provisions of 1894 Act in view of Section 24 of 2013 Act. They are at liberty to take steps under that Act to seek enhancement of compensation in case they are aggrieved by award of compensation by the Land Acquisition Officer by seeking a reference. That apart, in case the petitioners are aggrieved by the award of compensation to be made by the Reference Court or higher courts as compared to any award that may be made under the provisions of 2013 Act insofar as other persons whose properties have also been notified along with petitioners properties and where no award has been passed till the enforcement of 2013 Act is concerned then these petitioners can seek enhancement of compensation in terms of higher awards that may be made under the provisions of the 2013 Act insofar as other : 13 : persons whose properties have been acquired under the very same notifications in view of Section 28A of 1894 Act.
12. In that view of the matter, petitioners cannot have any grievance as far as the non-passing of awards in respect of other persons whose properties have been notified. Their grievance can be only with respect of awards that have been made insofar as their properties are concerned for which 2013 Act has taken full care to ensure that vested rights which arise under the awards are carried to their logical conclusion under the provisions of 1894 Act. It is reiterated that Section 28A of 1894 Act is applicable to the petitioners in case there is an enhanced compensation awarded in respect of the other persons where the awards have not yet been passed. The rights of petitioner under Section 28A of 1894 Act to seek enhancement of compensation remains intact. Subject to the aforesaid observations, the writ petitions stand dismissed.
Sd/-
JUDGE hnm