Karnataka High Court
Madhuvana House Building vs The Assistant Commissioner on 2 November, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.1995 OF 2014 (LA-RES)
BETWEEN:
MADHUVANA HOUSE BUILDING
CO-OPERATIVE SOCIETY,
NO.3, 4, 5, 3RD CROSS,
MANASARA ROAD, INDIRANAGAR,
MYSORE-570010,
REPRESENTED BY ITS EXECUTIVE DIRECTOR,
SRI.D.T.PRAKASH.
...PETITIONER
(BY SRI. M.B. CHANDRACHOODA, FOR
SRI. K.C. SHANTAKUMAR, ADVOCATES)
AND:
1. THE ASSISTANT COMMISSIONER
AND LAND ACQUISITION OFFICER,
MYSORE SUB-DIVISION,
MYSORE-570001.
2. SRI. SHAMIM ARA
D/O. LATE ABDUL WAHAB SHARIFF,
NO.41/65, 6TH MAIN, 46TH CROSS,
5TH BLOCK, JAYANAGAR,
BANGALORE - 560 011.
3. SRI. HUMANYUN FUR
S/O. LATE ABDUL WAHAB SHARIFF,
SINCE DEAD BY HIS LRS.,
a) SMT. AYISHA FUR
MAJOR IN AGE
W/O LATE HUMANYUN FUR.
b) SMT. FARIZA AHMED
MAJOR IN AGE
D/O LATE HUMANYUN FUR.
2
c) SMT. HASNA SAOOD
MAJOR IN AGE
D/O LATE HUMANYUN FUR.
d) SRI RAJE MOHAMMAD HASAN
MAJOR IN AGE
S/O LATE HANUMANYUN FUR.
e) SMT. SANA
MAJOR IN AGE
D/O LATE HUMANYUN FUR.
(a) TO (e) RESIDING AT
NO.3884/2, M9, ANEGUNDI ROAD
BANNIMANTAPA, MYSORE - 570 015.
4. SMT. ANJUM ARA
D/O LATE ABDUL WAHAD SHARIFF
NO.20, NEW NO.9
REST HOUSE ROAD
BENGALURU - 560 001.
5. SMT. TABASSUM ARA
D/O LATE ABDUL WAHAD SHARIFF
NO.128, 3RD CROSS
UMMAR KHAYAM ROAD
TILAKNAGAR, MYSORE - 570 021.
6. SMT. TASNEEM KHIZER
D/O LATE ABDUL WAHAB SHARIFF
NO.368, 4TH BLOCK
1ST CROSS, 8TH 'A' MAIN
KORAMANGALA
BENGALURU - 560 034.
...RESPONDENTS
(BY SRI. VIJAY KUMAR.A.PATIL, AGA FOR R-1;
SRI. G.B. MANJUNATH., ADVOCATE FOR R-2, R-3 (A TO E) TO R-6)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS RELATING TO CONCERNING & CONNECTED
WITH THE LAC CASE NO.73/10, PASSED BY THE COURT OF THE
LEARNED FIRST ADDL. SENIOR CIVIL JUDGE, MYSORE,
PERUSE THE SAME & DECLARE THE IMPUGNED JUDGMENT /
ORDER & THE DECREE DT.16.9.13, VIDE ANN-A AS OPPOSED
INTERALIA TO THE PRINCIPLES OF NATURAL JUSTICE &
CONSEQUENTLY AS A NON-EST.
3
THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This petition is directed against the impugned judgment and award dated 16.09.2013 passed in LAC No.73/2010 by the I Addl. Senior Civil Judge, Mysuru, whereby the said reference under Section 18 of the Land Acquisition Act, 1894 (for short, 'the LA Act, 1894) filed at the instance of respondent Nos.2 to 6 / claimants was partly allowed thereby awarding enhanced compensation in favour of the said claimants.
2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.
3. The material on record discloses that the subject lands were acquired for the benefit of the petitioner / Madhuvana House Building Co-operative Society, pursuant to a reference under Section 18 of the LA Act, 1894, wherein the Assistant Commissioner, Mysore Sub-
Division, Mysore was arrayed as respondent No.1 and the petitioner / Society was arrayed as respondent No.2. By 4 the impugned judgment and award, the reference Court proceeded to allow the same in part by fixing compensation at Rs.5,80,201/- per acre together with all consequential benefits. It is the grievance of the petitioner that despite it being made a party to the reference proceedings as respondent No.2, the petitioner was not served with notice of the proceedings and was not aware of the same and did not contest the proceedings. The reference Court proceeded to pass the impunged ex-parte judgment and award against the petitioner without providing sufficient or reasonable opportunity to the petitioner to defend and contest the proceedings and as such, the petitioner is before this Court by way of the present petition. Learned counsel for the petitioner places reliance upon the following decisions:
(i) U.P.Awas Evam Vikas Parishad Vs. Gyan Devi (Dead) by Lrs. And others - (1995) 2 SCC 326;
(ii) Bhimashankar Co-operative Sugar Factory Limited Vs. The Spl. Land Acquisition Officer & Asst. Commissioner and others - ILR 2004 KAR 4878;
5(iii) K.D.Sharma Vs. Steel Authority of India Limited and others - (2008) 12 SCC 481;
(iv) Land Acquisition Officer Vs. Chandrasekaragowda - ILR 1985 KAR 3044
(v) The Karnataka Industrial Areas Development Board, Bangalore Vs. Sri.Byregowda and another - 2019(1) KCCR 570.
4. Per contra, learned counsel for the respondents / claimants submits that the petitioner was served with the notice of the proceedings and contested the same and consequently, the impugned judgment does not warrant interference by this Court in the present petition.
5. The question with regard to the beneficiaries of acquisition proceedings being notified and being heard before passing an award under Section 18 of the LA Act, 1894 is no longer res integra in the light of the aforesaid judgments of the Apex Court as well as this Court including the recent judgment in the case of The Karnataka Industrial Areas Development Board, Bangalore Vs. Sri. Byregowda and Another - 2019 (1) KCCR 570, wherein it is held as under:
"In these writ petitions, the grievance of the writ petitioners who happen to be the beneficiaries of land 6 acquisition in question is against the impugned judgment and award of the Reference Court made under Section 18 of the Land Acquisition Act, 1894, (hereafter "Act" for short) whereby the amount of compensation ultimately payable by the said beneficiaries has been enhanced without affording any opportunity of hearing to them.
2. After service of notice, the respondents have entered appearance through their counsel, who resist these petitions on the ground that the petitioners have an alternate and equally efficacious remedy of statutory appeal and therefore, they should be relegated to the same. In support of their submissions although they banked upon certain decisions, which directly have not considered the questions that arise from these cases, as stated in the paragraph infra.
3. The following two questions arise for consideration of this Court in these matters:
i) whether the beneficiaries of the acquisition of lands are entitled to be heard by the Reference Court in considering the reference matters, regardless of they being parties to the proceedings or not?; and
ii) once, the reference court makes the judgment and award enhancing the compensation, whether the aggrieved can maintain a writ petition, the statutory appeal provision under Section 54 of the Act notwithstanding?"
4. Learned Senior Advocate, Sri.S.S.Naganand submits that the first question above being a pure question of law is answered by Section 20(2)(c) of the Karnataka Amendment to the Act; even 7 otherwise also principles of natural justice mandate an opportunity of hearing since the compensation payable under the award made by the LAO/SLAO and the enhanced compensation awarded by the Reference Court are payable ultimately by the beneficiaries of acquisition, the State being only the acquiring body.
5. Learned Senior Advocate, Sri. Naganand submits that the second question as to non-suiting of the petitioner on the ground of availability of an alternate and equally efficacious remedy by way of appeal under Section 54 of the Act again is no longer res integra having been already answered by the Apex Court in the case of M/s.Neyvely Lignite Corpn. Ltd. Vs. Special Tahsildar (Land Acquisition), Neyvely and others AIR 1995 SC 1004 holding that the writ petition under Articles 226 and 227 of the Constitution of India is maintainable. He hastens to add that even otherwise also there has been a catena of decisions wherein the Apex Court has held that in Certiorari proceedings especially founded on the principles of natural justice, the availability of alternate remedy does not constitute a sole ground for declining to exercise the power of judicial review.
6. The learned counsel appearing for the opposing parties in these writ petitions in chorus submit that since disputed questions of facts are involved in these writ petitions, the parties be relegated to the appellate remedies that are statutorily available especially in the absence of any explanation by the petitioners for not availing the same. They further submit that on merits also, the writ petitions are liable to be dismissed there being no 8 error apparent on the face of the record warranting grant of writ remedy.
7. I have heard the learned Senior Advocate Sri.S.S.Naganand, appearing on behalf of the learned counsel appearing for the petitioners on record and the learned counsel appearing for the opposing parties. I have perused the writ petition papers and the decisions cited at the Bar.
8. The contention of the learned Senior Advocate that the beneficiary of the acquisition of the land is entitled to be heard and that a duty is cast on the Reference Court to hear the beneficiary finds support from the text of Section 20(2)(c) of the Karnataka Amendment to the Act vide Mysore Act 17 of 1961 w.e.f. 24.08.1961, which reads as under:
"20. Service of notice - The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely: -
(a) the Deputy Commissioner;
(b) all persons interested in the reference; and
(c) the acquisition is not made for Government, the person or authority for whom it is made".
9. There is a lot of force in the contention of Shri S.S.Naganad, learned Senior Advocate that even in the absence of a provision like Section 20(2)(c) above, the beneficiary is required to be heard in the reference matter before enhancing the compensation amount. It is the beneficiary of acquisition upon whom the burden to pay the 9 compensation and enhanced compensation falls under the scheme of the law relating to acquisition of land and therefore, consistent with the requirement of the principles of natural justice, such beneficiary has to be afforded an opportunity of hearing. An argument to the contrary would offend the principle of audi, alterem, partem, which even the God is stated to have followed before punishing Adam and Eve for eating the prohibited fruit.
10. The second contention of Shri. Naganand, the learned Senior Advocate that the remedy of appeal provided under Section 54 of the Act does not come in the way of the beneficiaries of acquisition invoking the writ jurisdiction against the enhancement of compensation in reference under Section 18, again is supported by the decision of the Apex Court in the case of M/s. Neyvely Lignite Corpn. Ltd. v. Special Tahsildar (land Acquisition), Neyvely and others AIR 1995 SC 1004. Para 11 of the said judgment reads as under:
"11. It is true that Section 50(2) of the Act gives to the local authority or the company right to adduce evidence before the Collector or in the reference under Section 18 as it was specifically stated that in any proceedings held before the Collector or the Court, the local authority or the company may appear and adduce evidence for the purpose of determining the amount of compensation. However, it has no right to seek reference. Based thereon, the contention is that the limited right of abduction of evidence for the purpose of determining the compensation does not carry with it the right to participate in the proceedings or right to be heard or to file an 10 appeal under Section 54. We cannot limit the operation of Section 3(b) in conjunction with sub- section (2) of the Section 50 of the Act within a narrow compass. The right given under sub- section (2) of Section 50 is in addition to and not in substituting of or in derogation to all the incidental, logical and consequential rights flowing from the concept of fair and just procedure consistent with the principles of natural justice. The consistent thread that runs through all the decisions of this Court starting from Himalayan Tiles case, (AIR 1980 SC 1118), is that the beneficiary, i.e., local authority or company, a co-op. society registered under the relevant State law, or statutory authority is a person interested to determine just and proper compensation for the acquired land and is an aggrieved person. It flows from it that the beneficiary has the right to be heard by the Collector or the Court. If the compensation is enhanced it is entitled to canvass its correctness by filing an appeal or defend the award of the Collector. If it is not made a party, it is entitled to seek leave of the Court and file the appeal against the enhanced award and decree of the Civil Court under Section 26 or of the judgment and decree under Section 54 or is entitled to file writ petition under Art. 226 and assail its legality or correctness. When the award made under Section 11 of the Collector is vitiated by fraud, collusion or corruption, the beneficiary is entitled to challenge it in the writ petition apart from the settled law that the conduct of the Collector or 11 Civil Judge is amenable to disciplinary enquiry and appropriate action. These are very valuable and salutary rights. Moreover, in the language of Order 1 Rule 10 CPC, in the absence of the beneficiary who ultimately is to bear the higher compensation, no complete and effectual determination of binding just and proper compensation to the acquired land would be made. So it is concomitantly a proper party if not a necessary party to the proceedings under Order 1, Rule 10 CPC. The denial of the right to a person interested is in negation of fair and just procedure offending Art. 14 of the Constitution."
11. This Court in umpteen number of cases has been seeing that the Courts whilst exercising jurisdiction under Section 18 of the Act, more often than not, have enhanced the amount of compensation without hearing the beneficiaries of acquisition of land and consequently the aggrieved beneficiaries have been flooding the Court either by invoking the writ jurisdiction under Articles 226 and 227 of the Constitution of India or invoking the appellate jurisdiction under Section 54 of the Act, inter alia, on the ground that no opportunity of hearing was provided to them. This Court in W.P.No.55485/2017 has made the following observations in its order dated 05.02.2018. The relevant portion of which reads as under:-
"Further having regard to number of writ petitions and miscellaneous first appeals filed before this Court assailing the award passed by the Reference Court on the ground that the beneficiary has not been arrayed as a respondent in land acquisition proceedings seeking 12 enhancement of compensation before the Reference Court, it is just and necessary that the Reference Court implead the beneficiary as a respondent, in such matters, in the event the claimant does not make any application to implead the beneficiary in such proceedings or has not impleaded the beneficiary in the first instance."
This would be in compliance with the dictum of the Hon'ble Supreme Court in the case of NEYVELY LIGNITE CORPORATION LIMITED v. SPECIAL TAHSILDAR AND OTHERS (LAND ACQUISITION) reported in AIR 1995 SC 1004(1),
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In view of the above observation of the Hon'ble Supreme Court, the Registrar General of this Court is directed to issue a Circular to all the Principal District Judges of all the districts in the State as well as all Judges of the Reference Court handling cases pertaining to enhancement of compensation, to implead the beneficiary as a respondent before it in proceedings for enhancement of compensation, in the event, the land owner (claimant) or respondent before the Reference Court does not take steps to implead the beneficiary. This would be under Order 1 Rule 10 of the Code of Civil Procedure, 1908, read with Section 20(2)(c) of the Land Acquisition Act, 1894, [Karnataka Amendment vide Mysore Act 17 of 1961, Section 22 (w.e.f. 24-8-1961)]. The Reference Court has suo moto power to implead the beneficiary having regard to the aforesaid dictum of the Hon'ble Supreme Court under the aforesaid provisions of law.
13Such a direction is being issued to avoid multiplicity of proceedings and in the interests of both the land owner (claimant) as well as beneficiary of the acquisition. Registry is directed to place a copy of this order before the Registrar General of this Court."
In the above circumstances, these writ petitions succeed in part; a Writ of Certiorari issues quashing the impugned judgment and awards rendered by the Reference Court; the matter is remanded for consideration afresh within an outer limit of four months after providing an opportunity of hearing to the beneficiaries of acquisition. The parties are put on notice to appear before the jurisdictional Reference Court on 17.12.2018 and to seek instructions in the Reference Proceedings.
A copy of this order shall be circulated by the Registrar General of this Court amongst all the Presiding Officers of the Reference Courts."
6. In the said judgment, this Court has not only held that it is incumbent upon the reference Court to notify and hear the beneficiary and provide an opportunity in favour of the beneficiary before passing an award for enhancement under Section 18 of the LA Act, 1894, but this Court has also come to the conclusion that the writ petition is maintainable at the instance of the beneficiary.
7. In the instant case, the order sheet maintained by the reference Court as well as the impugned judgment 14 and award will clearly indicate that the Additional District Government Pleader (ADGP) has purported to represent both respondent No.1 / LAO as well as the petitioner herein, which is clearly contrary to the material on record and the only inference that can be drawn from the material on record including the order sheet and the impugned judgment and award is that the petitioner was not notified about the proceedings and was not provided sufficient or reasonable opportunity to participate and contest the proceedings. At any rate, the material on record also indicates that the petitioner has not participated in the proceedings nor filed statement of objections nor contested the same and consequently, in the light of the law laid down by the Apex Court and this Court referred to supra, the present petition is to be held to be maintainable and by adopting a justice oriented approach, liberty is to be granted in favour of the petitioner to contest the proceedings by setting aside the impugned judgment and award and remitting the matter back to the reference Court for reconsideration afresh in accordance with law within a stipulated time frame by keeping open all rival contentions.
158. In the result, I pass the following:
ORDER
(i) Petition is hereby allowed.
(ii) The impugned judgment and award
dated 16.09.2013 passed in LAC
No.73/2010 by the I Addl. Senior Civil
Judge, Mysuru, is hereby set aside.
(iii) Petitioner - Society is directed to file its
statement of objections on the next date of hearing i.e., on 21.11.2022 on which date all parties undertake to appear before the reference Court without awaiting any further notice from the reference Court.
(iv) Liberty is reserved in favour of all the parties to file additional pleadings and adduce evidence / additional evidence in support of their respective claims.
(v) All rival contentions are kept open and no opinion is expressed on the same.16
(vi) The trial Court is directed to dispose of the proceedings within a period of three months from 21.11.2022.
Sd/-
JUDGE SV