D Sharanappa vs State Of Karnataka on 9 January, 2018

[Cites 83, Cited by 0]

Karnataka High Court

D Sharanappa vs State Of Karnataka on 9 January, 2018

Bench: B.V. Nagarathna

                                                      R
                               1

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 9TH DAY OF JANUARY, 2018

                            BEFORE

           THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA

            WRIT PETITION Nos.3536-3538/2015
                            &
          WRIT PETITION No.3539/2015 (LA-KIADB)

BETWEEN:

1.   D. SHARANAPPA
     S/O. NARAPPA,
     AGED ABOUT 53 YEARS,

2.   D. JAYAPPA
     S/O. NAGAPPA,
     AGED ABOUT 50 YEARS,

3.   B.M. SHIVAKUMAR
     S/O. MURIGEPPA,
     AGED ABOUT 46 YEARS,

4.   B. MANJAPPA
     S/O. H.B. REVANAPPA,
     AGED ABOUT 50 YEARS

5.   D. BASAVARAJA
     S/O. NARAPPAM,
     AGED ABOUT 48 YEARS,

     ALL ARE R/AT MAHAJENAHALLI VILLAGE,
     KASABA HOBLI, HARIHARA TALUK,
     DAVANAGERE DISTRICT - 577 601.            ... PETITIONERS

(BY SRI: P.H. VIRUPAKSHAIAH, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       DEPARTMENT OF COMMERCE & INDUSTRIES,
       VIKASA SOUDHA,
       BENGALURU - 560 001.
       REPRESENTED BY ITS SECRETARY.

2.     KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD,
       #14/3, 2ND FLOOR, R.P.BUILDING,
       NRUPATHUNGA ROAD,
                                  2

     BENGALURU - 560 001.
     REPRESENTED BY ITS
     CHIEF EXECUTIVE OFFICER.

3.   SPECIAL LAND ACQUISITION OFFICER
     KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD,
     NRUPATHUNGA ROAD,
     BENGALURU - 560 001.

4.   THE DEPUTY COMMISSIONER
     DAVANAGERE DISTRICT,
     DAVANAGERE - 577 001.                         ... RESPONDENTS

(BY SRI: BASAVARAJ V. SABARAD, ADVOCATE FOR R-2 & R-3;
    SRI VIJAYA KUMAR A. PATIL, ADDL. GOVT. ADV. FOR R-1 & R-4)

     THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
PRELIMINARY NOTIFICATION DATED 01.12.2009 VIDE ANNEXURE-C,
ISSUED BY THE R-1 AUTHORITY AND ALSO FINAL NOTIFICATION
DATED 19.04.2012 VIDE ANNEXURE-F, ISSUED BY THE R-1
AUTHORITY SO FAR AS THE LANDS OWNED BY THE PETITIONERS
BEARING SY.NOS.83/P4, 82/1P1, 82/1P2, 84/1P, 85/2 SITUATED AT
MAHAJENAHALLI VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT
AND ETC.,

     THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-

                              ORDER

Petitioners have assailed preliminary notification dated 01/12/2009 bearing No.CI 392 SPQ 2009 (Annexure-C) issued by the first respondent and declaration and final notification dated 19/04/2012 bearing No.CI 558 SPQ 2011 (Annexure-F) also issued by the first respondent in so far as lands bearing Sy.Nos.83/P4, 82/1P1, 82/1P2, 84/1P, 85/2 situated at Mahajenahalli Village, Harihara Taluk, Davanagere District 3 (hereinafter referred to as 'lands in question' for the sake of convenience).

2. It is the case of petitioner Nos.1 to 4 that they are owners of their respective lands and are agriculturists depending upon income derived from agricultural operations in respect of the lands owned by them. At this stage itself it may be noted that petitioner No.5 sought for withdrawal of his writ petition and by order dated 27/04/2017, this Court dismissed the writ petition as withdrawn. That the respondents under the provisions of the Karnataka Industrial Areas Development Act, 1966 (hereinafter referred to the 'KIAD Act' for the sake of brevity) sought to declare certain areas including the lands in question as an industrial area and to acquire the lands for allotment for industrial purposes. That the lands in question and surrounding lands were declared as industrial area under Section 3(1) of the said Act. Preliminary Notification under Section 28(1) of the said Act was issued on 01/12/2009 proposing to acquire several lands situated at Harihara Taluk. The same was followed by declaration and the final notification issued under Section 28(4) of the KIAD Act, after conducting enquiry under Section 28(3) of the KIAD Act. A copy of the order passed 4 pursuant to enquiry dated 19/10/2011 is at (Annexure-E).

Thereafter, there was correspondence between the second respondent-Karnataka Industrial Areas Development Board (hereinafter referred to 'KIADB' for the sake of convenience) and the Managing Director, KSSIDC Limited, Rajajinagar, Bengaluru, with regard to necessity of acquiring petitioners' lands for industrial purposes. Petitioners have averred that they submitted a Memorandum to Hon'ble Chief Minister on 15/09/2014 expressing their difficulties and injustice caused to them. Subsequently in the 331st Board Meeting held on 20/09/2014 in the Office of KIADB, a decision was taken for fixation of compensation and a resolution was passed in that regard. As 4th petitioner had made a representation on 23/07/2012 objecting to acquisition of the lands another representation was made on 04/08/2014 contending that procedure adopted by the respondents-authorities in issuance of the notifications was not in accordance with law inasmuch as the declaration and final notification had not been issued within a period of two years from the date of issuance of the preliminary notification. Further, contending that compensation has not been paid to the petitioners and that petitioners continued to be in 5 possession of the lands in question, petitioners have filed these writ petitions.

3. I have heard learned counsel for the petitioners and learned Addl. Government Advocate for respondent Nos.1 and 4 and the learned counsel for respondent/KIADB and perused the material on record.

4. Petitioners' counsel has made a two-fold submission:

firstly, he contended that the declaration and final notification was made on 19/04/2012 under Section 28(4) of the KIAD Act and the award not having been made as stipulated under Section 11A of the Land Acquisition Act, 1894 (hereinafter referred to 'the LA Act, 1894' for the sake of convenience), petitioners are entitled to a declaration that the acquisition has lapsed.

Secondly, he contended that having regard to sub-section(2) of Section 24 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to '2013 Act' for the sake of brevity), petitioners are also entitled to a declaration that the acquisition has lapsed under the said Act, as no award has been passed in the instant case and the petitioners have not received any compensation and physical possession of the lands in question 6 remain with them. It is also contended by petitioners' counsel that the declaration and final notification under Section 28(4) of the KIAD Act, dated 19/04/2012 has not been made within a reasonable period from the date of issuance of the preliminary notification under Section 28(1) of the KIAD Act.

5. Learned counsel for petitioners placed reliance on a decision of this Court in the case of J.Venkatesh Reddy vs. The State of Karnataka, rep. by its Chief Secretary and others [ILR 2017 KAR 3577] (J. Venkatesh Reddy), to contend that Section 24(2) of 2013 Act is applicable to an acquisition initiated under the provisions of the KIAD Act. That on enforcement of 2013 Act, compulsory acquisition of land anywhere in the country can only be made in accordance with the provisions of 2013 Act. He further contended that having regard to the dictum of this Court in the aforesaid judgment, this Court may declare that acquisition has lapsed having regard to Section 11A of the LA Act, 1894 and Section 24(2) of 2013 Act.

6. Per contra, learned counsel for the respondents in unison have submitted that the petitioners are not entitled to seek declaration either on the basis of Section 11A of the LA Act, 1894 or under Section 24(2) of 2013 Act; that acquisition of the 7 lands in question is not under the provisions of the LA Act, 1894;

that Section 24 of 2013 has categorically stated, if the acquisition has been initiated under the provisions of the LA Act, 1894, then only the benefit of Section 24 would be available to the land owners and not if the acquisition has been commenced under any other Act. In this regard, learned counsel placed reliance on a recent judgment of the Hon'ble Supreme Court in the case of Special Land Acquisition Officer, KIADB, Mysore & another vs. Anasuya Bai (dead) by Legal Representatives & others [(2017)3 SCC 313] (Anasuya Bai). It is contended that judgment of the learned Single Judge of this Court in the case of J.Venkatesh Reddy has been carried in appeal and the said judgment is stayed by the Division Bench of this Court.

7. Further, learned counsel for the respondents contended that petitioners cannot seek a declaration that the acquisition has lapsed on the premise that no award has been passed within a period of two years from the date of declaration and final notification issued under Section 28(4) of the KIAD Act as stipulated under Section 11A of the LA Act, 1894. In this regard, reliance has been placed on another decision of the 8 Hon'ble Supreme Court in M.Nagabhushana vs. State of Karnataka and others [(2011)3 SCC 408] (M.Nagabhushana). It is contended that the object and purpose of KIAD Act is distinct and different from the object and purpose of the LA Act, 1894. That Parliament has been cautious in restricting the applicability of Section 24 to only those acquisitions which have been initiated under the Central Legislation which has now been repealed i.e., LA Act, 1894.

8. Reliance has also been placed on another decision in Shri Ramtanu Co-operative Housing Society Limited and another vs. State of Maharashtra and others [AIR 1970 SC 1771] (Shri Ramtanu Co-operative Housing Society Limited), to contend that LA Act, 1894 is a general enactment, whereas the provisions of the KIAD Act, (which is almost similar to Maharashtra Industrial Development Act, 1961, which was considered in the aforesaid case) is a special enactment; the two Acts being dissimilar, the stipulation contained in Section 11A of the LA Act, 1894 would not be applicable in a straight jacket manner to acquisition initiated under the KIAD Act. It is contended that even otherwise, under Section 11A of the LA Act, 1894, the award would have to be passed within a period of two 9 years from the date of issuance of the final notification under Section 6(1) of the Act. But the Hon'ble Supreme Court has observed that the said provision has no applicability to acquisition initiated under the provisions of the KIAD Act.

Moreover the period of two years is not a rigid period under KIAD Act. That in the instant case when the declaration and final notification have been issued in the year 2012, the lands have vested with the State and thereafter these petitions have been filed on 28/01/2015. This Court by an interim order dated 09/02/2015 has directed both the parties to maintain status quo with regard to lands in question.

9. Learned counsel for the respondents further contended that under the provisions of the KIAD Act, declaration and final notification would have to be issued within a reasonable period and not as stipulated under Section 6(1) of LA Act, 1894.

10. That Section 11A of the LA Act, 1894 does not apply when an acquisition is initiated under the provisions of the KIAD Act. They further contended that in the memorandum of writ petitions the contention regarding non-passing of the award as per Section 11A of the LA Act, 1894 has not been raised, though learned counsel for the petitioners has made submissions in that 10 regard. They further contended that though the petitioners have not invoked Section 24(2) of 2013 Act, learned counsel of the petitioners insists that a declaration may be granted with regard to deemed lapse of acquisition under that provision which is not tenable.

11. Learned counsel for respondent-KIADB and learned AGA have also drawn my attention to the fact that the KIAD Act has been made pursuant to Entry 24 of List -II (State List) of Seventh Schedule of the Constitution of India, whereas the LA Act, 1894 is a pre-constitutional enactment and 2013 Act is a parliamentary legislation which comes under Entry 42 of List-III (Concurrent List). Hence, it is contended that 2013 Act being a parliamentary legislation which has repealed LA Act, 1894, the same is not attracted to acquisition of lands in question effected pursuant to a State enactment. In the above premise, they contended that the writ petitions may be dismissed.

12. By way of reply, learned counsel for the petitioners would submit that even though the aforesaid contentions have not been raised explicitly, the said contentions would touch upon the root of the matter as they deal with questions of law and 11 thus, he may be permitted to raise those contentions and the same may be considered.

13. Having heard learned counsel for the respective parties and on perusal of the material on record, it is noted that the lands in question were sought to be acquired under the provisions of the KIAD Act, which is a State enactment by issuance of preliminary notification under Section 28(1) dated 01/12/2009, which was followed by a declaration and final notification under Section 28(4) on 19/04/2012, both issued prior to the date of enforcement of 2013 Act. It is an admitted fact that award has not been made in respect of the lands in question and therefore, the compensation has not been determined and obviously not paid though the lands have vested with the State as per Section 28(4) but the possession of the lands have not been taken as per Sections 28(5) and (6) of the KIAD Act.

14. In the above factual background and contentions raised by the respective parties, the points which would arise for my consideration are as under:

1. Whether petitioners are entitled to a declaration to the effect that the award not being passed 12 within the stipulated period as per Section 11A of LA 1894 Act, the acquisition has lapsed?

2. Whether petitioners are entitled to a declaration that the acquisition of lands in question is deemed to have lapsed under Section 6(1) of LA Act 1894?

3. Whether petitioners are entitled to a declaration that the acquisition of lands in question is deemed to have lapsed under Section 24(2) of 2013 Act?

Re. Point No.1:

Whether petitioners are entitled to a declaration to the effect that the award not being passed within the stipulated period as per Section 11A of LA 1894 Act, the acquisition has lapsed?

15. Before answering point No.1 it would be useful to extract Section 11A of the LA Act, 1894, which reads as under:

"11A. Period within which an award shall be made-(1) The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

           Provided    that    in    a     case   where   the   said
     declaration    has       been        published   before    the

commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.

Explanation-In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded."

16. The applicability of Section 11A of the LA Act, 1894 to an acquisition initiated under KIAD Act has been considered by the Hon'ble Supreme Court in the case of M.Nagabhushana referred to above, wherein the Hon'ble Supreme Court at paragraph Nos.28 to 30 and 32 to 36 has observed and held as under:-

"28. If we compare the provisions of Sections 28(4) and 28(5) of the KIAD Act with the provisions of Sections 4 and 6 of the said Act, we discern a substantial difference between the two. In order to appreciate the purport of both Sections 28(4) and 28(5) of the KIAD Act, they are to be read together and are set out below:

"28. Acquisition of land.- x x x (4) After orders are passed under sub-

section (3), where the State Government is satisfied that any land should be acquired for the purpose specified in the notification issued under sub-section (1), a declaration shall, by notification in the official Gazette, be made to that effect.

(5) On the publication in the Official Gazette of the declaration under sub-

section (4), the land shall vest absolutely in the State Government free from all encumbrances."

29. The appellant has not challenged the validity of the aforesaid provisions. Therefore, on a combined reading of the provisions of Sections 28(4) and 28(5) of the KIAD Act, it is clear that on the publication of the notification under Section 28(4) of the KIAD Act i.e. from 30.3.2004, the land in question vested in the State free from all encumbrances by operation of Section 28(5) of the KIAD Act, whereas the land acquired under the said Act vests only under Section 16 thereof, which runs as under:

"16. Power to take possession.- When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances."

30. On a comparison of the aforesaid provisions, namely, Sections 28(4) and 28(5) of the KIAD Act with Section 16 of the said Act, it is clear that the land which is subject to acquisition proceeding under the said Act gets vested with the Government only when the Collector makes an award under Section 11, and the Government takes possession. Under Sections 28(4) and 28(5) of the KIAD Act, such vesting takes 15 place by operation of law and it has nothing to do with the making of any award.

This    is    where       Sections          28(4)       and     28(5)          of
the     KIAD        Act         are        vitally      different         from
Sections 4 and 6 of the said Act."
                                           xxx

32. In Munithimmaiah v. State of Karnataka, this Court held that the provisions of Sections 6 and 11A of the said Act do not apply to the provisions of the Bangalore Development Authority Act, 1976 (the BDA Act). In SCC para 15 at p.335 of the Report this Court made a distinction between the purposes of the two enactments and held that all the provisions of the said Act do not apply to the BDA Act. Subsequently, the Constitution Bench of this Court in Offshore Holdings (P) Ltd. v. Bangalore Development Authority, held that Section 11A of the said Act does not apply to acquisition under the BDA Act.

33. The same principle is attracted to the present case also. Here also on a comparison between the provisions of the said Act and the KIAD Act, we find that those two Acts were enacted to achieve substantially different purposes. In so far as the KIAD Act is concerned, from its Statement of Objects and Reasons, it is clear that the same was enacted to achieve the following purposes:

'It is considered necessary to make provision for the orderly establishment and development of industries in suitable areas in the State. To 16 achieve this object, it is proposed to specify suitable areas for industrial development and establish a board to develop such areas and make available lands therein for establishment of industries.'

34. The KIAD Act is of course a self-contained code. The said Act is primarily a law regulating acquisition of land for public purpose and for payment of compensation. Acquisition of land under the said Act is not concerned solely with the purpose of planned development of any city. It has to cater to different situations which come within the expanded horizon of public purpose. Recently the Constitution Bench of this Court in Girnar Traders (3) v. State of Maharashtra held that Section 11A of the said Act does not apply to acquisition under the provisions of the Maharashtra Regional and Town Planning Act, 1966.

35. The learned counsel for the appellant has relied on the judgment of this Court in Mariyappa v. State of Karnataka. The said decision was cited for the purpose of contending that Section 11A is applicable to an acquisition under the KIAD Act. In Mariyappa before coming to hold that provision of Section 11A of the Central Act applies to the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter 'the 1972 Act'), this Court held that the 1972 Act is not a self-contained code. The court also held that the 1972 Act and the Central Act are supplemental to each other to the extent that unless the Central Act 17 supplements the Karnataka Act, the latter cannot function. The Court further held that both the Acts, namely, the 1972 Act and the Central Act deal with the same subject. But in the instant case the KIAD Act is a self-contained code and the Central Act is not supplemental to it. Therefore, the ratio in Mariyappa is not attracted to the facts of the present case.

36. Following the aforesaid well-settled principles, this Court is of the opinion that there is no substance in the contention of the appellant that acquisition under the KIAD Act lapsed for alleged non-compliance with the provisions of Section 11A of the said Act. For the reasons aforesaid all the contentions of the appellant, being without any substance, fail and the appeal is dismissed."

17. The Hon'ble Supreme Court, after considering the dicta in the case of Munithimmaiah vs. State of Karnataka [(2002) 4 SCC 326] (Munithimmaiah); Offshore Holdings (P) Ltd. vs. Bangalore Development Authority [(2011) 3 SCC 139] (Offshore Holdings (P) Ltd.), which were cases which arose under the provisions of Bangalore Development Authority Act, 1976 ("BDA Act" for short) and Girnar Traders (3) vs. State of Maharashtra [(2011) 3 SCC 1] (Girnar Traders), held that the provisions of Section 11A of the LA Act, 1894 does not apply to acquisition initiated under the provisions of the KIAD Act or the provisions of Bangalore Development Authority Act, 1976 or Maharashtra Regional and Town Planning Act, 1966.

Therefore, petitioners herein cannot contend that the award not having been passed as per Section 11A of the LA Act, 1894, the acquisition has lapsed in these cases.

18. In this regard, reliance could also be placed on another dictum of the Hon'ble Supreme Court in the case of Shri Ramtanu Co-operative Housing Society Limited, referred to above in respect of an enactment similar to KIAD Act. In that case, the Hon'ble Supreme Court, at paragraph Nos.15 and 21, considered the object and purpose of the Maharashtra Industrial Development Act, 1962 and the LA Act, 1894 and has held as under:-

"15. It is in the background of the purposes of the Act and powers and functions of the Corporation that the real and true character of the legislation will be determined. That is the doctrine of finding out the pith and substance of an Act. In deciding the pith and substance of the legislation, the true test is not to find out whether the Act has encroached upon or invaded any forbidden field but what the pith and substance of the Act is. It is that true intent of the Act which will determine the validity of the Act. Industries come within Entry 24 of the State List subject to the provision of Entry 7 and entry 52 of the Union List of the Constitution. Entry 7 of the Union List relates to industries declared by Parliament by 19 law to be necessary for the purpose of defence or for the prosecution of war. Entry 52 of the Union List relates to industries, the control of which by the Union is declared by parliament by law to be expedient in the public interest. The establishment, growth and development of industries in the State of Maharashtra does not fall within Entry 7 and Entry 52 of the Union List. Establishment, growth and development of industries in the State is within the State List of industries. Furthermore, to effectuate the purpose of the development of industries in the State it is necessary to make land available. Such land can be made available by acquisition or requisition. The Act in the present case deals with acquisition of land by the State and on such acquisition, the State may transfer the land to the Corporation which again may develop it itself and establish industrial estates or may develop industrial areas, Acquisition or requisition of land falls under Entry 42 of the Concurrent List. In order to achieve growth of industries it is necessary not only to acquire land but also to implement the purposes of the Act. The corporation is therefore established for carrying out the purposes of the Act. The pith and substance of the Act is establishment, growth and organization of industries, acquisition of land in that behalf and carrying out the purposes of the Act by setting up the Corporation as one of the limbs or agencies of the Government. The powers and functions of the Corporation show in no uncertain 20 terms that these are all in aid of the principal and predominant purpose of establishment, growth and establishment of industries. The corporation is established for that purpose: When the Government is satisfied that the Corporation has substantially achieved the purpose for which the Corporation is established, the Corporation will be dissolved because the raison d'etre is gone. We, therefore, hold that the Act is a valid piece of legislation.

                      xxx    xxx    xxx
      21.   Counsel   on     behalf      of        the    petitioners

contended that there was procedural discrimination between the Land Acquisition Act and the Act in the present case. It was said that there was a special procedure designed by the Land Acquisition Act for acquisition of land for the companies whereas in the present case the State was acquiring land for companies without adopting the procedure of the Land Acquisition Act. It is to be remembered that the Act in the present case is a special one having the specific and special purpose of growth, development and organization of industries in the State of Maharashtra. The Act has its own procedure and there it no provision in the Act for acquisition of land for a company as in the case of Land Acquisition Act. In the present case, acquisition under the Act is for the purpose of development of industrial estates or industrial areas by the corporation or any other purpose in furtherance of the objects of the Act. The policy underlying the Act is not acquisition of land for 21 any company but for the one and only purpose of development, organization and growth of industrial estates and industrial areas. The Act is designed to have a planned industrial city as opposed to haphazard growth of industrial areas in all parts of the State. The Act is intended to prevent growth of industries in the developed parts of the State. Industries are therefore to be set up in the developing or new parts of the State where new industrial towns will be brought into existence. The object of the Act is to carve out planned areas for industries. On one side there will be engineering industries and on the other there will be chemical industries. There will be localization of industries with the result that the residents and dwellers of towns and cities will not suffer either from the polluted air or obnoxious chemicals of industries or the dense growth of industries and industrial population, within and near about the residential areas. The Land Acquisition Act is a general Act and that is why there is specific provision for acquisition of land by the State for public purpose and acquisition of land by the State for companies. The present Act on the other hand is designed for the sole purpose of development of industrial areas and industrial estates and growth and development of industries within the State. Industrial undertakings or persons who are engaged in industries all become entitled to the facilities on such industrial growth. Under the Land Acquisition Act acquisition is at the instance of and for the benefit 22 of a company whereas under the present Act acquisition is solely by the State for public purposes. The two Acts are dissimilar in situations and circumstances."

The Hon'ble Supreme Court has categorically held that while the Maharashtra Industrial Development Act, 1962 comes within the scope of Entry 24 of State List, LA Act, 1894 and also 2013 Act, which has repealed and substituted LA Act, 1894, are traceable to Entry 42 of List III (Concurrent List) of Seventh Schedule of Constitution.

19. Therefore, the contention of the petitioners that they are entitled to a declaration on account of their being non-

compliance of Section 11A of the LA Act, 1894 in the present case inasmuch as no award has been passed within a period of two years as stipulated in Section 11A of LA Act, 1894 is not well founded and hence rejected.

Re. Point No.2:

Whether petitioners are entitled to a declaration that the acquisition of lands in question is deemed to have lapsed under Section 6(1) of LA Act 1894?

20. Whether petitioners are entitled to relief on the premise that the declaration and final notification issued under Section 28(4) of the KIAD Act on 19/04/2012 (Annexure-F) in 23 the instant case is beyond the period of one year from the date of issuance of preliminary notification dated 01/12/2009 under Section 28(1) of the KIAD Act is the point for consideration. In other words, whether the stipulation under Section 6 of the LA Act, 1894 to the effect that the final notification has to be issued within a period of one year from the date of issuance of the preliminary notification applies to acquisition initiated under the provisions of the KIAD Act. Section 6 of LA Act, 1894 (Karnataka Amendment) reads as under:

"6. Declaration that land is required for a public purpose.-(1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under Section 5-A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, such Government shall direct the Deputy Commissioner to proceed under sub-section (1-A).

(1-A) The Deputy Commissioner shall, thereupon, within two months from the date on which he receives such direction.-

(a) Cause the land (unless it has been already marked out under Section 4) to be marked out;

(b) also cause it do be measured, and, if no plan has been made therefor, a plan to be made of the same; and 24

(c) report to the appropriate Government the result of his operations under this sub-

section.

The appropriate Government shall then make a declaration that the land is needed for a public purpose or for a company, and different declarations may be made from time to time in respect different parcels of any land covered by the same notification under sub- section (1) of Section 4:

Provided that no declaration in respect of any particular land covered by a notification under sub- section (1) of Section 4, published after the commencement of the Land Acquisition (Karnataka Amendment and Validation) Act, 1967 shall be made after the expiry of three years from the date of such publication.

Explanation.-In computing the period of three years specified in this sub-section, any period during which any action of proceeding to be taken in pursuance of the notification issued under sub-section (1) of Section 4 is held up on a account of stay or injunction by order of a Court shall be excluded.

(2) Such declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate, of which at least one shall be in the regional language and the Deputy Commissioner shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the 25 dates of such publication and the giving of such public notice being hereinafter referred to as the date of the publication of the declaration) and such declaration shall state the District or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area and survey number if any and where a plan shall have been made of the land, the place where such plan may be inspected:

Provided that the declaration as published in the Official Gazette shall contain the precise boundaries of the land.

(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing."

Section 28 of KIAD Act reads as under:

"28. Acquisition of land: (1) If at any time, in the opinion of the State Government, any land is required for the purpose of development by the Board, or for any other purpose in furtherance of the objects of this Act, the State Government may by notification, give notice of its intention to acquire such land.

(2) On publication of a notification under sub-

section (1), the State Government shall serve notice upon the owner or where the owner is not the occupier, on the occupier of the land and on all such persons known or believed to be interested therein to show 26 cause, within thirty days from the date of service of the notice, why the land should not be acquired.

(3) After considering the cause, if any, shown by the owner of the land and by any other person interested therein, and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit.

(4) After orders are passed under sub-section (3), where the State Government is satisfied that any land should be acquired for the purpose specified in the notification issued under sub-section (1), a declaration shall, by notification in the official Gazette, be made to that effect.

(5) On the publication in the official Gazette of the declaration under sub-section (4), the land shall vest absolutely in the State Government free from all encumbrances.

(6) Where any land is vested in the State Government under sub-section (5), the State Government may, by notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorised by it in this behalf within thirty days of the service of the notice.

(7) If any person refuses or fails to comply with an order made under sub-section (5), the State Government or any officer authorised by the State Government in this behalf may take possession of the 27 land and may for that purpose use such force as may be necessary.

(8) Where the land has been acquired for the Board, the State Government, after it has taken possession of the land, may transfer the land to the Board for the purpose for which the land has been acquired."

21. In Munithimmaiah, the Hon'ble Supreme Court held that Section 6 of the LA Act, 1894 is not applicable to Section 19 of the BDA Act as the said Act is a special law and a code by itself, which cannot be stultified or rendered ineffective or unenforceable by a provision in the Central Act, particularly in the nature of Sections 6 and 11A. Similarly, in Offshore Holdings Private Limited, which dealt with the applicability of Section 11A of the LA Act, 1894 to the provisions of BDA Act, the Hon'ble Supreme Court held, after referring to Bondu Ramaswamy, that the provisions of Sections 4 and 6 of LA Act, 1894 would not be attracted to the provisions of BDA Act as the BDA Act itself provides for such a mechanism. According to the Hon'ble Supreme Court, the primary object of the BDA Act is to carry out planned development of Bengaluru Metropolitan City and acquisition is a mere incident of such planned development.

That the BDA Act has its own scheme, purport and provision for 28 acquisition of land is only incidental and not the main object of the said Act. Further, the provisions of the Land Acquisition Act would be attracted only insofar as they are applicable to the BDA Act, where there are specific provisions under the said Act, otherwise the provisions of Central Act would not be attracted.

Further, the Hon'ble Supreme Court has observed that only because some of the provisions of the LA Act, 1894 are attracted, it does not necessarily contemplate that all the provisions of the said Act would per se be applicable to the provisions of the BDA Act irrespective of the scheme and object contained therein. Similarly, in Girnar Traders, Hon'ble Supreme Court held that the provisions of LA Act, 1894 are not applicable to the provisions of Maharashtra Regional and Town Planning Act, 1966, (MRTP Act). In the case of Bondu Ramaswamy also, the Hon'ble Supreme Court held that the provisions of Sections 4 to 6 of the LA Act would not apply to the acquisition under the BDA Act. That if Section 6 of LA Act, 1894 is not made applicable, the question of amendment to Section 6 of the said Act providing a time-limit for issuance of final declaration, would also not apply.

22. Although the aforesaid judgments are in the context of the BDA Act, 1976, in Anasuya Bai's case, the Hon'ble Supreme Court has expressly referred to the decisions in Munithimmaiah, Offshore Holdings Private Limited as well as M.Nagabhushana referred to above to hold that the provisions of the KIAD Act are distinct and different from the provisions of LA Act, 1894. Therefore, the stipulations contained under the latter Act cannot be made applicable to the provisions of the KIAD Act.

In the circumstances, it is held that the petitioners cannot rely upon the statutory period prescribed under Section 6 of the LA Act, 1894 to contend that the declaration and final notification issued under Section 28(4) of the KIAD Act is illegal as it is beyond the period of one year stipulated under Section 6 of the LA Act. On a reading of Section 28 of the KIAD Act, there is no stipulation forthcoming under the said provision. Therefore, there is no merit in this contention. Point No.2 is accordingly answered.

Re. Point No.3:

Whether petitioners are entitled to a declaration that the acquisition of lands in question is deemed to have lapsed under Section 24(2) of 2013 Act?

23. Before considering this point, it would be relevant to extract Section 24(2) of 2013 Act. Section 24 of 2013 Act 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

(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.

(2) Notwithstanding anything contained in sub- section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate 31 the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."

24. The title or preamble to Section 24 reads as "Land acquisition process under Act No.1 of 1894" shall be deemed to have lapsed in certain cases. It is explicit, restricted in its scope and not expansive in nature. It is only where the acquisition process has been initiated under LA Act, 1894 that the acquisition would lapse, on the existence of conditions as stated in sub-section (2) of Section 24. Same is the case with regard to Clauses (a) and (b) of sub-section (1) of Section 24.

25. The said Section has been interpreted by the Hon'ble Supreme Court in the case of Delhi Development Authority vs. Sukhbir Singh and others [(2016) 16 SCC 258] (Sukbhir Singh). In said case the acquisition was under the provisions of LA Act, 1894 and not under any other Central or State enactment. Further, it has been held as under:

"11. Section 24(1) begins with a non-obstante clause and covers situations where either no award has been made under the Land Acquisition Act, in which case the more beneficial provisions of the 2013 Act relating to determination of compensation shall apply, or where an award has been made under Section 11, land acquisition proceedings shall continue under the provisions of the Land Acquisition Act as if the said Act had not been repealed.

12. To Section 24(1)(b) an important exception is carved out by Section 24(2). The necessary ingredients of Section 24(2) are as follows:

(a) Section 24(2) begins with a non-obstante clause keeping sub-section (1) out of harm's way;

(b) For it to apply, land acquisition proceedings should have been initiated under the Land Acquisition Act;

(c) Also, an award under Section 11 should have been made 5 years or more prior to the commencement of the 2013 Act;

(d) Physical possession of the land, if not taken, or compensation, if not paid, are fatal to the land acquisition proceeding that had been initiated under the Land Acquisition Act;

(e) The fatality is pronounced by stating that the said proceedings shall be deemed to have lapsed, and the appropriate Government, if it so chooses, shall, in this game of snakes and ladders, start all over again."

(underlining by me) 33

26. Further, in the case of Government (NCT of Delhi) vs. Manav Dharam Trust and another [(2017) 6 SCC 751], (Manav Dharam Trust) referring to Sukhbir Singh, it has been observed as under:

"24. The 2013 Act has made a sea change in the approach on the acquisition of land and compensation thereof. The only lapse under the 1894 Act was under Section 11-A where what would lapse is the ... "entire proceedings for the acquisition of land"

whereas under Section 24(2) of the 2013 Act, what gets lapsed is the land acquisition proceedings initiated under the 1894 Act which has culminated in passing of an award under Section 11 but where either possession was not taken or compensation was not paid within five years prior to 1-1-2014. In other words, the land acquisition proceedings contemplated under Section 24(2) of the 2013 Act would take in both, payment of compensation and taking of possession within the five year period prior to 1-1-2014. If either of them is not satisfied, the entire land acquisition proceedings would lapse under the deeming provision. The impact of deemed lapse under Section 24(2) is that pervasive. To quote R.F. Nariman, J. in DDA v. Sukbhir Singh: (SCC p.283, para 26) "26. ... As is well settled, a deeming fiction is enacted so that a putative state of affairs must be imagined, the mind not being allowed to boggle at the logical consequence of 34 such putative state of affairs. ... In fact, Section 24(2) uses the expression "deemed to have lapsed" because the Legislature was cognizant of the fact that, in cases where compensation has not been paid, and physical possession handed over to the State, vesting has taken place, after which land acquisition proceedings could be said to have been ended."

Thus, on account of the lapse, the encumbrance created in favour of the State comes to an end, and resultantly, the impediment to encumber the land also comes to an end. Even, according to the appellants, the transfers were illegal and void for the reason that there was an impediment for the transfer. Once the acquisition proceedings lapse, all impediments cease to exist."

(underlining by me)

27. The aforesaid observations have been made by the Hon'ble Supreme Court while considering the question whether subsequent purchasers/assignees/power of attorney holders etc. have locus standi to file a petition seeking declaration of lapse of acquisition proceedings under sub-section (2) of Section 24 of 2013 Act, which, even according to the Hon'ble Supreme Court was the only issue arising in that case. But, nevertheless, the aforesaid observations have been made in the context of land acquisition proceedings initiated under LA Act, 1894.

28. Further, in the case of Aligarh Development Authority vs. Meghsingh (AIR 2016 SC 2912), which is also a case arising under the provisions of LA Act, 1894, at paragraph 6 and 7, it has been held as under:

"6. Section 24 of the 2013 Act envisages mainly two situations; i) where the land acquisition proceedings had already been initiated under the 1894 Act but no award was passed till the date the new Act came into force. (ii) where the Award has been passed but neither the owner has been dispossessed nor has he been paid the compensation. Under the first, where the award had not been passed, the acquisition proceedings could continue; but the compensation will have to be determined under the scheme of 2013 Act. Under the second category, there is a statutory lapse of the proceedings. There is also an incidental third situation, where award under the 1894 Act had already been passed prior to coming into force of the 2013 Act, but payment is yet to be made and possession is yet to be taken. In that case, the further proceedings after the award could continue under the old Act of 1894; but if either payment or possession has not taken effect in five years prior to the 2013 Act, then proceedings will lapse.

7. In the case before us, since admittedly the award has not been passed, there arises no question of lapse. The land acquisition proceedings would continue but with the rider that the award will have to be passed 36 and compensation determined under the provisions of 2013 Act."

(underlining by me)

29. Thus, by following the observations and interpretation made by the Hon'ble Supreme Court, it becomes clear that Section 24 of the 2013 Act, [whether it is sub-section (1) or sub-section (2)] applies only when acquisition proceedings have been initiated under the provisions of the LA Act, 1894.

Therefore, on that short ground alone, it could be held that Section 24 of the 2013 Act is not applicable to an acquisition initiated under the BDA Act.

30. The Hon'ble Supreme Court in Anasuya Bai's case while setting aside the judgment passed by the Division Bench of this Court has held as under:-

"28. The Division Bench of the High Court by the impugned judgment however, has quashed the acquisition proceedings itself holding that they have lapsed. For this purpose, the High Court has taken aid of Section 24 of the new LA Act in the following manner: (Anasuya Bai case, SCC OnLine Kar paras 13-

14) '13. It is also noted that the acquisition proceedings including preliminary and final declaration have been passed under the provisions of the KIAD Act. But there is no 37 provision under the KIAD Act to pass an award and award has to be passed only under the provisions of the LA Act, 1894. If the award has to be passed under the LA Act, whether the new Act can be pressed into service to hold the acquisition proceedings are lapsed on account of non-passing of award within a period of 5 years under Section 11.

If the award is passed under the LA Act, the enquiry has to be conducted by the Deputy Commissioner or Collector before passing the award. Section 11A contemplates that if the award is not passed within 2 years from the date of publication of the final declaration, the entire proceedings for acquisition of the land shall automatically stands lapsed. It is no doubt true that the Hon'ble Supreme Court in M. Nagabhushana v. State of Karnataka has held that Section 11-A of the Act is no application in respect of the land acquired under the provisions of the Karnataka Industrial Areas Development Act. We have to consider in this appeal as to whether Section 24(2) of the new Act is applicable in order to hold that the acquisition proceedings deemed to be lapsed due to non-payment of compensation and non-passing of the award within a period of five years from the date of declaration and with effect from non-payment of compensation to the landowners.

14. The new Act does not say whether the Act is applicable to the land acquired under the provisions of the Karnataka Land Acquisition Act, 1894. What Section 24 says that if the award is not passed under Section 11 of the Act and the compensation is not paid within 5 years or more prior to new Act, if the physical possession of the land is taken or not especially the compensation is not paid or deposited in Court such proceedings deem to have been lapsed. In the instant case, it is not the case of the respondent that award is not required to be passed under the provisions of the LA Act. When the award is required to be passed under the LA Act, the respondents cannot contend that the provisions of the new Act cannot be made applicable on account of non-payment of compensation within a period of five years.'

29. This approach of the High Court, we find, to be totally erroneous. In the first instance, the matter is not properly appreciated by ignoring the important aspects mentioned in para 28 above. Secondly, effect of non-applicability of Section 11-A of the old LA Act is not rightly understood. The High Court was not oblivious of the judgment of this Court in M. Nagabhushana case which is referred by it in the aforesaid discussion itself. This judgment categorically holds that once the proceedings are initiated under the 39 KIAD Act, Section 11-A of the old LA Act would not be applicable. Such an opinion of the Court is based on the following rationale: (M. Nagabhushana case, SCC pp. 420-22, paras 29-36) "29. The appellant has not challenged the validity of the aforesaid provisions. Therefore, on a combined reading of the provisions of Sections 28(4) and 28(5) of the KIAD Act, it is clear that on the publication of the Notification under Section 28(4) of the KIAD Act i.e. from 30-3- 2004, the land in question vested in the State free from all encumbrances by operation of Section 28(5) of the KIAD Act, whereas the land acquired under the said Act vests only under Section 16 thereof, which runs as under:

'16. Power to take possession.-

When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.'

30. On a comparison of the aforesaid provisions, namely, Section 28(4) and 28(5) of the KIAD Act with Section 16 of the said Act, it is clear that the land which is subject to acquisition proceeding under the said Act gets vested with the Government only when the Collector makes an award under Section 11, and the Government takes possession. Under Section 28(4) and 28(5) of the KIAD Act, such vesting takes 40 place by operation of law and it has nothing to do with the making of any award. This is where Sections 28(4) and 28(5) of the KIAD Act are vitally different from Sections 4 and 6 of the said Act.

31. A somewhat similar question came up for consideration before a three-Judge Bench of this Court in Pratap v. State of Rajasthan. In that case the acquisition proceedings commenced under Section 52(2) of the Rajasthan Urban Improvement Act, 1959 and the same contentions were raised, namely, that the acquisition notification gets invalidated for not making an award within a period of two years from the date of notification. Repelling the said contention, the learned Judges held that once the land is vested in the Government, the provisions of Section 11-A are not attracted and the acquisition proceedings will not lapse. (Pratap case, SCC p. 8, para 12).

32. In Munithimmaiah v. State of Karnataka this Court held that the provisions of Sections 6 and 11-A of the said Act do not apply to the provisions of the Bangalore Development Authority Act, 1976 (the BDA Act). In SCC para 15 at p. 335 of the Report this Court made a distinction between the purposes of the two enactments and held that all the provisions of the said Act do not apply to the BDA Act. Subsequently, the Constitution Bench of this Court in Offshore Holdings (P) Ltd. v. Bangalore Development Authority, held that Section 11-A of the said Act does not apply to acquisition under the BDA Act.

33. The same principle is attracted to the present case also. Here also on a comparison between the provisions of the said Act and the KIAD Act, we find that those two Acts were enacted to achieve substantially different purposes. Insofar as the KIAD Act is concerned, from its Statement of Objects and Reasons, it is clear that the same was enacted to achieve the following purposes:

           'It   is     considered    necessary   to    make
   provision      for    the orderly    establishment    and

development of industries in suitable areas in the State. To achieve this object, it is proposed to specify suitable areas for industrial development and establish a Board to develop such areas and make available lands therein for establishment of industries.'

34. The KIAD Act is of course a self-contained code. The said Act is primarily a law regulating acquisition of land for public purpose and for payment of compensation. Acquisition of land under the said Act is not concerned solely with the purpose of planned development of any city. It has to cater to different situations which come within the expanded horizon of public purpose. Recently, the Constitution Bench of this Court in Girnar Traders (3) v. State of Maharashtra held that Section 11-A of the said Act does not apply to acquisition under the provisions of the Maharashtra Regional and Town Planning Act, 1966.

35. The learned counsel for the appellant has relied on the judgment of this Court in Mariyappa v. State of Karnataka. The said decision was cited for the purpose of contending that Section 11-A is applicable to an acquisition under the KIAD Act. In Mariyappa before coming to hold that provision of Section 11-A of the Central Act applies to the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter "the 1972 Act"), this Court held that the 1972 Act is not a self-contained code. The Court also held that the 1972 Act and the Central Act are supplemental to each other to the extent that unless the Central Act supplements the Karnataka Act, the latter cannot function. The Court further held that both the Acts, namely, the 1972 Act and the Central Act deal with the same subject. But in the instant case, the KIAD Act is a self-contained code and the Central Act is not supplemental to it. Therefore, the ratio in Mariyappa is not attracted to the facts of the present case.

36. Following the aforesaid well-settled principles, this Court is of the opinion that there is no substance in the contention of the appellant that acquisition under the KIAD Act lapsed for alleged non- compliance with the provisions of Section 11-A of the said Act. For the reasons aforesaid, all the contentions of the appellant, being without any substance, fail and the appeal is dismissed."

31. In fact even in the case of Anasuya Bai, the Hon'ble Supreme Court has placed reliance on its decisions in 43 Munithimmaiah, Offshore Holdings (P) Ltd., and Girnar Traders (3), to hold that the provisions of the LA Act, 1894 and the BDA Act, 1976 being distinct, Section 24(2) of 2013 Act, is not applicable to an acquisition under the BDA Act and also in so far as acquisition under the KIAD Act is concerned. Therefore, the aforesaid dictum is conclusive and is squarely applicable to the case on hand. Section 24 of 2013 Act does not apply to acquisition initiated under provisions of KIAD Act. Therefore, point No.3 could be accordingly answered.

Thus, from the aforesaid dicta of the Hon'ble Supreme Court, the applicability of Section 24 of 2013 Act to acquisition of land under KIAD Act is excluded.

32. Moreover, the scheme and object of KIAD Act is different from LA Act, 1894. The KIAD Act has been enacted by Karnataka Legislature to make special provisions for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein, and for that purpose to establish an Industrial Areas Development Board and for purposes connected with the matters aforesaid. Under Section 3(1), the State Government may, by notification, declare any area in the State 44 to be an industrial area for the purposes of this Act along with the limits of the area to which it relates. Section 4 of the Act deals with alteration of industrial area by exclusion of any area from an industrial area or including additional area as may be specified by issuance of a notification. Chapter III of the Act deals with establishment and constitution of the board. While the functions and powers of the Board are delineated in Chapter IV, Chapter V deals with finance, accounts and audit. Chapter VI deals with application of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 and non-

application of the Karnataka Rent Control Act, 1961, to Board premises. Chapter VII deals with acquisition and disposal of land. The provisions of Chapter VII apply to such areas from such dates as have been notified by the State Government under sub-section (3) of Section 1. The procedure for acquisition of land is enunciated under Section 28 of the Act, which reads as under:

"28. Acquisition of land: (1) If at any time, in the opinion of the State Government, any land is required for the purpose of development by the Board, or for any other purpose in furtherance of the objects of this Act, the State Government may by notification, give notice of its intention to acquire such land.

(2) On publication of a notification under sub-

section (1), the State Government shall serve notice upon the owner or where the owner is not the occupier, on the occupier of the land and on all such persons known or believed to be interested therein to show cause, within thirty days from the date of service of the notice, why the land should not be acquired.

(5) On the publication in the official Gazette of the declaration under sub-section (4), the land shall vest absolutely in the State Government free from all encumbrances.

(7) If any person refuses or fails to comply with an order made under sub-section (5), the State Government or any officer authorised by the State Government in this behalf may take possession of the land and may for that purpose use such force as may be necessary.

Section 29 deals with payment of compensation, which is extracted as under:

"29. Compensation: (1) Where any land is acquired by the State Government under this Chapter, the State Government shall pay for such acquisition compensation in accordance with the provisions of this Act.

(2) 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.

(3) Where no such agreement can be reached, the State Government shall refer the case to the Deputy Commissioner for determination of the amount of compensation to be paid for such 47 acquisition as also the person or persons to whom such compensation shall be paid.

(4) On receipt of a reference under sub-section (3), the Deputy Commissioner shall serve notice on the owner or occupier of such land and on all persons known or believed to be interested herein to appear before him and state their respective interests in the said land."

Section 30 of KIAD Act states that the provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894) shall mutatis mutandis apply in respect of an enquiry and award by the Deputy Commissioner, the reference to Court, the apportionment of compensation and the payment of compensation, in respect of lands acquired under Chapter VII.

33. Thus, the main object of KIAD Act is establishment of industrial areas in the State and to promote orderly development of industrial areas and acquisition of land is incidental to the aforesaid object. Lands could be acquired only if the State Government is of the opinion that lands are required for the purpose of development by the Board, or for any other purpose in furtherance of the objects of the Act and not otherwise. Thus, the main object of the KIAD Act is not acquisition of land.

34. By contrast, the scheme of the LA Act, 1894, which is since repealed by 2013 Act, was an expropriatory legislation to provide for acquisition of land for public purposes and for companies. Section 4 of the said Act dealt with publication of Preliminary Notification while Section 5-A provided for hearing objections with regard to the proposed acquisitions. Section 6 dealt with the issuance of a declaration and Final Notification that the land was required for a public purpose. The said declaration was conclusive evidence that the land was needed for a public purpose or for a Company, as the case may be.

After making such a declaration, the appropriate government could acquire the land in accordance with the Act. In fact, Part II of the LA Act, 1894, dealt with acquisition which contemplated procedure for the passing of an award; notifying persons interested and taking possession of the land. Part II of the said Act, dealt with the provisions dealing with enhancement of compensation by the reference Court by the land owner seeking a reference for a higher compensation. Part IV dealt with apportionment of compensation, while Part V of the said Act concerned with payment. Acquisition of land for companies was dealt with in Part VII of the said Act and a special procedure was prescribed. Part VIII pertained to miscellaneous provisions.

35. However, learned counsel for the petitioners has placed strong reliance on the judgment of this Court in the case of J.Venkatesh Reddy referred to above, which judgment has been rendered by placing reliance on two other judgments of this Court, viz., Smt. K.M.Chikkathayamma and others vs. The State of Karnataka, Urban Development Department and others [ILR 2016 KAR 1603] (K.M.Chikkathayamma) arising under BDA Act and M. Somashekar and others vs. State of Karnataka, Department of Industries and Commerce and others, [ILR 2017 KAR 1470] (M.Somashekar) arising under KIAD Act. It is urged by the learned counsel for the respondents that the aforesaid decisions are appealed against and the Division Bench of this Court has stayed the orders of the learned single Judge and directed maintenance of status quo by the parties. It is further urged that the aforesaid three decisions cannot be considered in light of the dicta of the Hon'ble Supreme Court referred to above and the recent decision of this Court in M/S.Evershine Monuments.

36. Having regard to the strong reliance placed on the aforesaid decisions by the learned counsel for the petitioners, they would be considered in seriatim.

Chikkathayamma:

37. This Court while considering the dictum in Chikkathayamma's case in the case of M/s. Evershine Monuments in the context of BDA Act and 2013 Act has observed as under:-

"33. Next, it is necessary to discuss Smt.K.M.Chikkathayamma and others vs. The State of Karnataka and others [ILR 2016 KAR 1603], which is a recent judgment rendered by a learned Single Judge of this Court and which is the sheet-anchor of learned counsel for the petitioners.

a) The points for determination in the aforesaid case are culled out for immediate reference as under:

"a) Whether the petitions in WP 38868-70 and WP Nos.38871-74/2015 are maintainable in view of the acquisition proceedings initiated under the KUDA Act having been quashed and the same being the subject matter of an appeal before a Division Bench of this Court.

b) Whether the provisions of the LA Act, 1894 or the LA Act, 2013, should be applied to acquisition proceedings under the provisions of the KUDA Act and the BDA Act, if the proceedings are not completed as on the date of coming into force of the LA Act, 2013.

c) What order should follow in each of these petitions."

While considering point No.2 extracted above, learned Single Judge in the said case held with regard to interpretation of sub-section (2) of Section 24 of the 2013 Act as under:-

"Section 24(2) of the LA Act, 2013 provides for lapse of acquisition proceedings commenced under the LA Act, 1894, on the satisfaction of certain conditions, which are as follows:

a. The award of compensation should have been passed five years or more prior to the commencement of the LA Act, 2013. In that, it should have been passed prior to 01.01.2009;

AND b. Physical possession of the land has not been taken;

OR c. Compensation has not been paid.

The Apex Court has interpreted the requirement of possession being taken under Section 24(2) of the LA Act, 2013, to mean that actual physical possession has to be taken and mere symbolic possession would not suffice."

Although learned Single Judge has noticed that sub-section (2) of Section 24 of the 2013 Act applies to acquisition proceedings commenced under the LA Act, 1894, nevertheless has also held that the "answer to the second point for consideration is that it is the LA Act, 2013 that shall be applied to acquisition 52 proceedings under the BDA Act, and KUDA Act, that have remained without being completed in all respects as on 1.1.2014, and proceedings that have been initiated thereafter."

Thus, learned Single Judge after referring to Section 24 of 2013 Act, held that it was applicable even to acquisitions made under the provisions of the BDA Act as well as KUDA Act. Learned Single Judge however noted that sub-section (2) of Section 24 is a substantive provision of law which saves acquisition as well as affords the prospect of land sought to be acquired reverting to the land owner under certain conditions.

34. The said decision was rendered on 10.03.2016. It is stated at the Bar that the said decision has been appealed against by the BDA and a Division Bench of this Court has stayed the order passed in the said case."

xxx xxx xxx "37. In my humble opinion, the judgment in Chikkathayamma's case as well as similar judgments in other cases, in the context of KUDA, 1987 and BDA Act have been rendered without making an analysis of Section 24 of the 2013 Act, with regard to its applicability to acquisitions initiated under those Acts as opposed to acquisitions initiated under LA Act, 1894. Further, judgments of Hon'ble Supreme Court in that regard have not been considered and followed and without bearing in mind the distinction in the object 53 and scheme of the LA Act, 1894 and the BDA Act, as well as the decisions rendered by the Hon'ble Supreme Court in that regard. Learned Single Judge by his order has granted relief under sub-section (2) of Section 24 of 2013 Act. While a reference has been made to the decisions of the Hon'ble Supreme Court in the case of Bondu Ramaswamy, Munithimmaiah, and Offshore Holdings Pvt. Ltd., the said reference is not in depth, as a detailed consideration of the aforesaid judgments, which have been rendered on a detailed comparison of LA Act, 1894 with BDA Act, would have thrown light on the object and scope of Section 24 of 2013 Act.

38. Reliance placed on the observations made by Hon'ble Supreme Court in the aforesaid decisions referred to above in detail would clearly indicate that the object and scheme of the LA Act, 1894 and the BDA Act, being distinct and meant for different purposes, it cannot be construed that acquisition initiated under the provisions of the BDA Act, is an acquisition initiated under the provisions of the LA Act, 1894. More significantly, the judgment in Chikkathayamma's case does not take into consideration the dicta of the Hon'ble Supreme Court in the case of Sukhbir Singh and the subsequent decision in the case of Manav Dharam Trust, which are directly on the issue of applicability of sub-section (2) of Section 24 of the 2013 Act to only acquisitions initiated under LA Act, 1894.

39. With respect, the judgment in the case of Chikkathayamma and other judgments which are similar in nature cannot be considered to be binding precedent as they are contrary to the dicta of the Hon'ble Supreme Court referred to above as well as the provision of Section 24 of the 2013 Act and hence cannot be applied to the present cases which deal with acquisition under BDA Act. There are also additional reasons for holding so.

40. Revisiting the words of Section 24 of the 2013 Act, what is significant to note is the fact that the said Section expressly refers to land acquisition proceedings initiated under the LA Act, 1894. The said Section does not incorporate the words "or proceedings initiated under any other enactment". Therefore, the expression "land acquisition proceedings initiated under the LA Act, 1894" are significant and must be given its natural and plain meaning and the said expression cannot be given an expansive interpretation by adding words to the provision, in the absence of the provision itself giving rise to any such implication. In this regard, the rules of interpretation of a statute would become relevant and reliance could be placed on guiding principles of interpretation of statute. One such principle is that the Court is not entitled to read words into a provision of an Act or Rule for, the meaning is to be found within the four corners of the provision of an act or rule, as in the instant case. Therefore, while it is not permissible to add words or to fill in a gap or lacuna, on the other 55 hand, effort should be made to give meaning to each and every word used by the legislature. Thus, the golden rule of construction is that the words of a provision of a statute, or rule must be first understood in the natural, ordinary or popular sense. Phrases and sentences must be construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. In other words, the golden rule is that the words of a statute prima facie be given an ordinary meaning. Natural and ordinary meaning of words should not be departed from "unless it can be shown that the legal context in which the words are used requires a different meaning". Such a meaning cannot be departed from by the judges "in light of their own views as to policy" unless it is shown to adopt a purposive interpretation of the statute, which does not arise in the instant case.

41. In this context, Harbhajan Singh vs. Press Council of India reported in AIR 2002 SC 1351 could be relied upon wherein, Cross on "Statutory Interpretation" (Third Edition, 1995) has been relied upon as follows:-

"Thus, an 'ordinary meaning' or 'grammatical meaning' does not imply that the Judge attributes a meaning to the words of a statute independently of their context or of the purpose of the statute, but rather that he adopts a meaning which is appropriate in relation to the 56 immediately obvious and unresearched context and purpose in and for which they are used."

42. The aforesaid principles being squarely applicable to Section 24 of the 2013 Act, the same must be interpreted having regard to the intention of the Parliament. In this regard, one cannot lose sight of the fact that 2013 Act repeals only LA Act, 1894, and not any other Central or State enactment dealing with acquisition. Therefore, what are sought to be saved under Section 24 of the 2013 Act, are those acquisitions initiated only under LA Act, 1894 and not any acquisition initiated under any other Central or State enactment. Therefore, the words "acquisition proceedings initiated under any other enactment"

cannot be added or supplemented by the Court after the expression "in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894" under both sub-sections 1 and 2 of Section 24 of 2013 Act. Further, the short title of Section 24 of 2013 Act reads as "Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases." This is another indication that Section 24 applies only to those acquisition "initiated" under the provisions of LA Act, 1894.

43. Further, Section 24 creates a new right in favour of land owners in as much as they are entitled to relief under certain circumstances as stipulated in Section 24 of the Act. One such relief is under sub- section(2) of Section 24 of the Act, dealing with lapse 57 of acquisition by a fiction. It is a deeming provision, provided the stipulations therein are complied with or the conditions mentioned therein exist. One overbearing condition is that the acquisition must have been initiated under the provisions of LA Act, 1894. Thus, if acquisition is initiated under any other Central or State enactment, Section 24 does not apply.

44. The reasons as to why Parliament has incorporated Section 24 in the 2013 Act are evident and not far to see. The said section creates a new right in favour of land owners whose lands have been acquired under the provisions of LA Act, 1894, which has been repealed and substituted by 2013 Act. The 2013 Act is not a substitution for other Central enactments pertaining to acquisition of land or for that matter any other State enactment. Therefore, Section 24 uses the expression that the acquisition must have been initiated under the provisions of LA Act, 1894. But while creating a new right in favour of land owners under Section 24, Parliament at the same time has intended two further aspects: first, saving acquisition under LA Act, 1894 and second, not encroaching upon other Central or State enactments. As far as State enactments dealing with acquisitions are concerned, Parliament intentionally has not touched upon any State enactment. The reason being that several State enactments have been made drawing sustenance from Entry 5, List II or State List of Seventh Schedule of the Constitution, whereas LA Act, 1894 as well as 2013 Act could be traced to Entry 42 List III (Concurrent List of 58 the Seventh Schedule. Moreover, as has been explained above, the object and scope of the BDA Act made under Entry 5 List II (State List) are distinct from LA Act, 1894 substituted by 2013 Act.

45. Further, the State enactments have their own provisions concerning lapse of acquisition such as Section 27 of BDA Act or KUDA Act and Section 24 of 2013 Act cannot trammel upon those provisions of the State Acts such as BDA Act or KUDA Act. The State enactments may have referred to certain provisions of LA Act, 1894, particularly with regard to determination of compensation and such other matters.

Reference to LA Act, 1894 in the State enactments for certain purposes does not imply that the acquisition is initiated under LA Act, 1894. What is of prime importance for Section 24 of 2013 Act to apply is that acquisition proceedings must have been initiated under LA Act, 1894 and not any other law. Losing sight of this aspect would create confusion in the applicability of Section 24 of 2013 Act. If the said provision is to apply to acquisitions initiated under a State enactment, such as, BDA Act or KUDA Act, then Section 27 of the said Acts which also deal with lapse of acquisition under certain circumstances will be rendered nugatory, otiose or redundant on prevailing of circumstances mentioned in Section 24 of the 2013 Act. In this regard, it is also observed that when State Acts such as, BDA Act or KUDA Act, have specific provisions in the form of Section 27 concerning lapse of 59 acquisition, Section 24 of the Parliamentary enactment i.e., 2013 Act, cannot be applied, when acquisitions are under State enactments. This is because, the State or Central Laws concerning acquisition are enacted under different entries and in different Lists of the Seventh Schedule of the Constitution and therefore, they operate in different fields. This is so, although, the State enactments may refer to the provisions of LA Act, 1894 for certain purposes.

46. At this stage itself, it may be observed that the issue as to whether LA Act, 1894 has been incorporated into BDA Act by the device of legislation by incorporation or legislation by reference is wholly foreign and outside the scope of controversy while considering the applicability of Section 24 to acquisition initiated under any law (whether State or Central), de hors LA Act, 1894. The arguments of learned counsel for the land owners - petitioners in Chikkathayamma's case on the aforesaid aspect was unwarranted and wholly digressive from the issue to be considered in that case namely, whether Section 24 of 2013 Act was applicable to acquisitions initiated under any law other than LA Act, 1894, such as, BDA Act, KUDA Act. The dicta of the Hon'ble Supreme Court in this regard after comparing the scheme of LA Act, 1894 and BDA Act, are binding and authoritative and the same cannot be brushed aside or ignored by not applying the same in appropriate cases, such as the present one.

47. Thus, 2013 Act has not only repealed the LA Act, 1894, but has substituted the said Act. The 2013 Act is a totally distinct enactment and a complete code by itself. Hence, for the aforesaid reasons, initiation of acquisition under State enactments such as BDA Act is not the same as initiation of acquisition under LA Act, 1894.

48. Further, it is noted that 2013 Act has, by virtue of Section 114 thereof, repealed LA Act, 1894. Section 114 reads as under:

"114. Repeal and Saving: (1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed.

(2) Save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals."

Therefore, what is saved under Section 114 of 2013 Act are only those acts and actions initiated under the provisions of the LA Act, 1894, which ought to be saved having regard to the provisions of Section 6 of the General Clauses Act, 1897. Section 6 of the General Clauses Act, 1897, reads as under:

"6. Effect of repeal.- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be 61 made, then, unless a different intention appears, the repeal shall not.-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

However, Section 6 of the General Clauses Act would apply only when a saving clause as per sub- section 2 of Section 14 is not expressly provided under 2013 Act. Section 24 of the 2013 Act, which is in the nature of a saving clause has created new rights in favour of land owners whose lands had been acquired 62 under LA Act, 1894. Sub-section (1), lays down the conditions when the land acquisition proceedings initiated under the LA Act, 1894, would be amenable to the provisions of 2013 Act or, continued under the provisions of the LA Act, 1894, on certain conditions or circumstances prevailing. Under sub-section (2) of Section 24, the Parliament has, by a deeming provision, intended that if certain conditions are satisfied, the acquisition proceedings initiated under the LA Act, 1894, shall be deemed to have lapsed."

xxx xxx xxx "50. Therefore, for a declaration of lapse of acquisition, the pre-conditions or conditions precedent mentioned under sub-section (2) of Section 24 of the 2013 Act must apply. Most importantly the said conditions must prevail in an acquisition initiated under the provisions of the LA Act, 1894, and not with regard to acquisition initiated under any other enactment be it Central or State enactment. Therefore, before land owners could seek relief under sub-section (2) of Section 24 of 2013 Act, which is a right created in their favour, the basic postulate that must be borne in mind is to ascertain, in the first instance, as to under which law, acquisition has been initiated; whether under the provisions of the LA Act, 1894 or any other law. If it is under any other law, then in my view Section 24 would not be applicable to such acquisitions. The dicta of the Hon'ble Supreme Court in the case of Munithimmaiah, Bondu Ramaswamy, Offshore Holdings Private Limited clearly enunciate that an acquisition initiated under the 63 provisions of the BDA Act being distinct from an acquisition initiated under the provisions of the LA Act, 1894, it cannot be held that acquisition process initiated under the provisions of the LA Act, 1894, would also encompass acquisition proceedings initiated under any other law such as, the BDA Act. As already noted, the two enactments being distinct having a different object and scope and acquisition of lands being only incidental to the main object and scope under the BDA Act, the acquisition proceedings initiated under the two Acts cannot be considered on par, so as to hold that land acquisition proceedings initiated under the provisions of the BDA Act is "land acquisition proceedings initiated under the provisions of the LA Act, 1894."

51. As already observed, Section 24 of the 2013 Act creates a new right in the land owners. For the exercise of said right, certain conditions have to exist, the most significant of them being, the initiation of proceedings for acquisition under the provisions of the LA Act, 1894. Therefore, the said words must be given a natural interpretation and not an expansive or wide interpretation, so as to extend the right under Section 24 even in respect of land owners whose lands are subjected to acquisition under any State enactment, such as the BDA Act or KUDA Act. In fact, the Parliament itself has been conscious of the fact that 2013 Act repeals and substitutes only LA Act, 1894, and not any other Central enactment or for that matter any other State enactment dealing with acquisition of 64 lands. This is evident from Section 105 of the 2013 Act, which reads as under:

"105. Provisions of this Act not to apply in certain cases or to apply with certain modifications: (1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.

(2) Subject to sub-section (2) of Section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule.

(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.

(4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament."

The enactments relating to land acquisition specified in the Fourth Schedule referred to in sub- section (1) of Section 105 consists of the following thirteen Parliamentary enactments, namely:

"THE FOURTH SCHEDULE [See section 105] LIST OF ENACTMENTS REGULATING LAND ACQUISITION AND REHABILITATION AND RESETTLEMENT

1. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958).

2. The Atomic Energy Act, 1962 (33 of 1962).

3. The Damodar Valley Corporation Act, 1948 (14 of 1948).

4. The Indian Tramways Act, 1886 (11 of 1886).

5. The Land Acquisition (Mines) Act, 1885 (18 of 1885).

6. The Metro Railways (Construction of Works) Act, 1978 (33 of 1978).

7. The National Highways Act, 1956 (48 of 1956).

8. The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962).

9. The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952).

10. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948).

11. The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957).

12. The Electricity Act, 2003 (36 of 2003).

13. The Railways Act, 1989 (24 of 1989)."

52. Therefore, Parliament itself has listed the Central enactments to which 2013 Act does not apply. This is because Parliament was conscious of the fact that LA Act, 1894 was substituted by the 2013 Act, which is distinct and different from the other Central enactments enumerated in the Fourth Schedule to the 2013 Act or State enactments.

53. In the circumstances, it is concluded and held that Section 24 does not take within its scope nor does it apply to, acquisitions which have been initiated under the provisions of any other enactment particularly, State enactment, such as, BDA Act. The 67 said Section is restricted to only those acquisitions which have been initiated under the provisions of the LA Act, 1894 only. Subject to compliance of the conditions mentioned under sub-section (2) of Section 24, the land owner would be entitled to the deeming provision regarding lapse of acquisition and not otherwise.

54. In the result, Point No.(i) is answered by holding that petitioners are not entitled to relief under sub-section (2) of Section 24 of the 2013 Act, as the acquisitions in these cases were initiated under the provisions of the BDA Act and not under the LA Act, 1894. It is further held, with respect, that Chikkathayamma's and other similar decisions, having regard to the dicta of Hon'ble Supreme Court in the case of Munithimmaiah, Bondu Ramaswamy, Offshore Holdings Private Limited, are not applicable as binding precedent in the present case. Further, most of the decisions referred to above have granted relief on the basis of factual determination as per sub-section 2 of Section 24 and without considering the question of law which arises in these cases. Further, in some cases, the petitioners have themselves not pressed sub- section (2) of Section 24 of 2013 Act. Even then, relief has been granted on a determination made on facts and by holding that there has been abandonment of acquisition/lapse of acquisition.

55. Hence, these writ petitions are liable to be dismissed, as the petitioners are not entitled to relief 68 under sub-section (2) of Section 24 of the 2013 Act as the said section does not apply to acquisition initiated under the provisions of BDA Act."

M.Somashekhar:

38. Further, in J.Venkatesh Reddy, learned Single Judge has placed reliance on another decision of this Court in M.Somashekhar. Therefore, it would be necessary to consider that case also, as reliance has been placed on the said decision by learned counsel for the petitioners.

(a) In the aforesaid case, preliminary notification dated 06/02/2006 issued under Section 28(1) of KIAD Act was preceded by a declaration of industrial area made under Section 3(1) of the KIAD Act and followed by final notification dated 17/12/2007 issued by the State Government were assailed.

Petitioner had sought for a declaration that the entire acquisition proceeding had lapsed as no compensation had been paid nor possession had been taken even after five years after the issuance of the said notifications by invoking Section 24(2) of 2013 Act. The principal question considered was, whether the provisions of 2013 Act were applicable to the lands of the petitioners where acquisition was initiated under the provisions of KIAD Act and if so, to what effect. In the said case, learned 69 counsel for respondents therein contended that KIAD Act is a complete code in itself and the limitation prescribed under the LA Act, 1984 had no application to the acquisition under KIAD Act or for that matter BDA Act. That the statutory period prescribed under Section 6 of the LA, 1984 and Section 11A of the Central Act were not applicable to acquisition under KIAD Act or BDA Act. It was further contended that there was no repugnancy between the Central Act and the provisions of the KIAD Act even on the application of the doctrine of pith and substance. On the other hand, it was urged on behalf of the petitioners that the provisions of LA Act, 1894 could not be applied for the purpose of payment of compensation with regard to acquisition initiated under the provisions of KIAD Act. That 2013 Act was applicable even to acquisition initiated under the provisions of KIAD Act. In the circumstances, petitioners had sought for a declaration that Section 24 of 2013 Act was applicable even to an acquisition initiated under the provisions of KIAD Act.

(b) At paragraph Nos.19 to 29 of the said decision it has been held as under:-

"19. In the background of the above, if the effect of provisions of Act 30 of 2013 (New Land Acquisition Act) particularly application of Section 24 of the said 70 Act is examined, the inescapable conclusion would be that no matter whether the acquisition of the land was initiated under the provisions of Land Acquisition Act 1894 or under the provisions of Karnataka Industrial Areas Development Act 1966, for the purpose of payment of compensation, if the amended provisions of the New Land Acquisition Act are applicable, compensation has to be paid as per the said provisions.

Otherwise, it will lead to discriminatory treatment resulting in violation of fundamental rights of the land looser under Article 14 of the Constitution. It is useful, at this stage, to refer to Section 24 of the New Land Acquisition Act. It 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 (1 of 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

(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.

(2) Notwithstanding anything contained in sub- section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.

20. A careful perusal of Section 24(1) would show that if, as on the date the New Act came into force with effect from 1.1.2014 no Award under Section 11 of the Land Acquisition Act has been made, then the provisions of the New Act relating to determination of compensation shall be applicable. But, where an Award has already been made, then the proceedings shall continue under the provisions of the Old Act as if the Old Act had not been repealed. This sub section (1) of Section 24 has no application because it is stated 72 in the Statement of Objection filed by respondent No.4 that Award was passed on 10.12.2008 and was approved by the Government on 16.11.2009. But, sub-

section (2) of Section 24 states that where an Award has been made under the provisions of the Land Acquisition Act, 1894, five years or more, prior to the commencement of the New Land Acquisition Act but physical possession of the land has not been taken or the compensation has not been paid, the said proceedings shall be deemed to have lapsed and the appropriate Government if it so chooses, shall initiate the said proceedings afresh in accordance with the provisions of the New Act.

21. The question is whether sub-section 2 of Section 24 has any application to the facts and circumstances of the present case. As referred to in the preceding paragraphs by considering the ratio of the judgments of the Apex Court that for the purpose of determination and payment of compensation there cannot be any discrimination between one land owner whose lands are acquired under the Land Acquisition Act and another land owner whose lands are acquired under the Karnataka Industrial Areas Development Act.

22. The New Land Acquisition Act insofar as it provides for right to fair compensation would be applicable even where the acquisition was under the State law namely Karnataka Industrial Areas Development Act wherever the acquisition was incomplete in that Award was not passed or possession 73 was not taken for five years or more from the date of passing of award. By virtue of Section 24(2) cases where acquisition had resulted in passing of the award five years or more prior to the commencement of the New Act but physical possession of the same had not been taken or compensation had not been paid the proceedings shall be deemed to have lapsed. However, the State would be entitled to initiate fresh proceedings in accordance with the provisions of the New Act. The scope, purpose and object of the provisions in the new Act including Section 24(2), if carefully considered, it cannot be equated to or restricted for the scope and object of Section 11A introduced by the Amending Act, Act 68/1984.

23. The purpose and intent behind this provision enacted by the Parliament in the new Act is to ensure that a person who has not been paid compensation for several years cannot be forced to part with his land for payment of compensation under the provisions of the Old Land Acquisition Act which provisions were regarded as insufficient and inadequate for ensuring payment of comprehensive fair compensation package for the land owners by adopting a scientific method for calculation of market value coupled with a comprehensive rehabilitation and resettlement package for land owners including subsistence allowance, jobs, houses, transportation allowance and resettlement allowance etc. This is evident from the many laudable objects contained in the statement of objects and 74 reasons to the New Land Acquisition Act. If such benefit is available to a person whose land has been acquired under the Land Acquisition Act and in whose favour though award had been passed under Section 11 of the Land Acquisition Act 1894, five years or more prior to the commencement of the New Land Acquisition Act but physical possession thereof had not been taken or compensation had not been paid, then denial of such benefit in favour of land owners whose lands had been acquired under the provisions of the Karnataka Industrial Areas Development Act, 1966 would be violative of his right under Article 14 of the Constitution of India. Therefore, Section 24 of the new Act in essence deals with determination of compensation and payment thereof in respect of acquired lands prior to New Land Acquisition Act came into force. The effect of Sub Section 2 of Section 24 would be that cases where acquisition was initiated prior to new Land Acquisition Act came into force which had not been completed despite lapse of five years or more from the date of passing of Award by paying compensation or by taking physical possession of the land, the said proceedings cannot be continued under the Old Act because payment of compensation under the provisions of Old Act would be unrealistic, unfair and result in depriving the owners of their legitimate right for fair compensation guaranteed under Article 300A of the Constitution R/w Article 14 of the Constitution. Therefore, if the Government intends to acquire such land, it has to initiate fresh proceedings 75 whereupon compensation shall be payable based on the market value of the land as on the date of publication of preliminary notification. This result will ensure no matter whether the acquisition proceedings had been initiated under the Land Acquisition Act or under the Karnataka Industrial Areas Development Act, as long as the intention behind the legislation is to provide just and fair compensation by introducing a deeming clause that old acquisition proceedings falling under sub section 2 of Section 24 of the New Land Acquisition Act stand lapsed. It is immaterial whether the Old Acquisition was under the Land Acquisition Act or under any of the provisions of Karnataka Industrial Areas Development Act because as per Section 29 and 30 of Karnataka Industrial Areas Development Act, the provisions of the Land Acquisition Act shall mutatis mutandis apply in respect of enquiry and award, reference to Court, apportionment of compensation and payment of compensation.

25. In Nagabhushan's case (AIR 2011 SC 2113) and in Girinar Traders' case (2011)3 SCC 1), the Apex Court has held that KIAD Act and the MRTP Act being self contained Codes, Section 11A which pertained to time frame of acquisition and the consequence of default thereof including lapse of acquisition proceedings was inapplicable for the acquisition under KIAD & MRTP Acts because reference to some of the provisions of the Land Acquisition Act in KIAD & MRTP Act was for a limited purpose and could not be made use of to hamper the purpose and object 76 of the local enactments. In addition, it has been held that the Central Act could not be treated as supplemental to the local enactments.

26. The scenario has completely changed in the light of enactment of new LA Act. Need for preparation of a social impact assessment report before publication of preliminary notification (Sections 4 to 9 of LA, 2013) exclusion of multi-cropped lands from acquisition (Section 10), provisions for preparation of Rehabilitation and Re-settlement Scheme (Sections 16 to 18) award of 100% solatium, (Section 30) allotment of alternative land, one time subsistence allowance, special provisions for SC/STs, etc., have introduced sea change in the matter of acquisition of land for public purpose.

27. Even a perusal of Sections 107 & 108 of the New Act makes it clear that the State Legislatures are free to enact any law to provide enhanced or additional benefits to the land losers regarding higher compensation or better rehabilitation. This, further makes it clear that while better benefits under the local laws can be extended to the land losers, if the local laws do not provide for atleast minimum benefits as stipulated in the New Land Acquisition Act, 2013, then enforcing such provisions would certainly incur the wrath of Article 14 of the Constitution, in so far as the land losers are concerned.

28. Hence, it has to be stated that if the amendment made to the Land Acquisition Act by enacting a new legislation is not imported into the KIAD Act, it would render the KIAD Act wholly unworkable offending Article 14 especially in the context of the provisions under Section 24(2) of the Act of which we are now concerned. Therefore, the fact that the KIAD Act incorporates certain provisions of the LA Act regarding payment of compensation etc., and therefore, it is a legislation by incorporation does not make any difference in protecting the interest of the land losers in getting fair compensation and other benefits as provided in Section 24(2) of the Act.

29. When it comes to payment of compensation, it includes determination of compensation, the market value payable, the solatium, interest and other amounts as provided under the New Act and also necessarily includes payment of the same compensation to such of the old cases which fall under Section 24. No discrimination can be made with reference to the purpose of acquisition or the provisions of law under which the acquisition is made in the matter of extending the benefits regarding payment of compensation as the same will tantamount to discriminatory treatment violative of the rights of land owners under Article 14 of the Constitution. Therefore, provisions of Section 24 have to be held to be applicable even in case where the land is acquired under Karnataka Industrial Areas Development Act."

J.Venkatesh Reddy:

39. Next it is necessary to discuss about the dictum of the learned single Judge of this Court in J.Venkatesh Reddy:-

(a) In that case, this Court was considering the applicability of Section 24(2) of 2013 Act to an acquisition initiated under the provisions of KIAD Act. It is observed that LA Act, 1894 is a general law many State legislatures have enacted special laws for establishment and development of industries by having Industrial Areas or Industrial Corridor or Industrial facilities. Karnataka State Legislature has enacted the KIAD Act and the said Act has received assent of the President of India.

Section 47 of the KIAD Act provides that the provisions of the KIAD Act shall have effect notwithstanding anything inconsistent contained therein with any other law.

(b) It was contended by the petitioners in the said case that 2013 Act, inter alia, provides for acquisition of lands for industrial areas and the provisions of the 2013 Act (Central Act) totally takes away the power of State Governments, hitherto exercised under the State Acts for acquisition of lands for industrial areas. Therefore, the provisions of KIAD Act are repugnant to 2013 Act or otherwise inoperative and the State 79 Government is not competent to exercise power under the KIAD Act (State Act), for the purpose of establishing and acquiring land for industrial areas. It was further contended that Entry 42 List-III (Concurrent List) of Seventh Schedule of the Constitution provides for acquisition and requisitioning of property.

Therefore, the said Central enactment would prevail over the State enactment, having regard to Articles 246(2) and 254 of the Constitution. However, in the said case, the State, through Additional Government Advocate contended that doctrine of repugnancy under Article 254 would apply only where there is law enacted by the Parliament and law enacted by a Legislature of a State in respect of one of the subjects enumerated under the Concurrent List. It was contended that Article 254(2) applies only where two enactments in question substantially, and in pith and substance, cover the very same field in the Concurrent List.

That the 2013 Act has repealed and substituted LA Act, 1894 which provided for acquisition for public purposes. The said enactment is traceable to Entry 42 List-III of Seventh Schedule of Constitution pertaining to "acquisition and requisitioning of property". But KIAD Act, 1966 is an enactment of the Karnataka Legislature with the object of enhancing industrial development 80 in the State and the said enactment is traceable to "Industries"

under Entry 24 List-II of Seventh Schedule of the Constitution.

"It is considered necessary to make provision for the orderly establishment and development of Industries in suitable areas in the State. To achieve this object, it is proposed to specify suitable areas for Industrial Development and establish a Board to develop such areas and make available lands therein for establishment of Industries."

Reference was also made to the Preamble of KIAD Act and it was contended that the Act in pith and substance it is a legislation enacted for the primary purpose of industrial development and hence is traceable to the legislative field, "Industries" under Entry 24 List-II of Seventh Schedule of the Constitution. Reliance was also placed on the judgment of the Supreme Court in the case of Sri Ramtanu Co-operative Housing Society Limited and Offshore Holdings Private Limited. Also, reference was made to Hanumanrao Morbaji Gudadhe vs. State of Maharashtra [2015(6) Mh.L.J. 127], wherein the applicability of 2013 Act to the Maharashtra Regional and Town Country Planning Act, 1966 was considered and it was contended 81 by the State that the two enactments are different and operate in different fields. That while 2013 Act is a general and broad legislation exclusively regulating land acquisition for public purposes, the KIAD Act is a self contained Code enacted primarily for the purposes of industrial development and competency and source of power of enactment could be traced to different entries in different Lists. Therefore, placing reliance on the judgment of the Hon'ble Supreme Court in M.Karunanidhi Vs. Union of India & another, reported in (1979)3 SCC 431, learned Additional Advocate General for the State contended that issue of repugnancy between two enactments would not arise.

(d) Further, Additional Advocate General delineated on the Scheme of KIAD Act and compared it with the Scheme of 2013 Act and submitted that KIAD Act is enacted for industrial development which incidentally touches upon the subject of land acquisition but the same is not its dominant intention.

Therefore, KIAD Act is not repugnant to 2013 Act. Thus the State contended that Section 24 of 2013 Act is not applicable to acquisition proceedings commenced under the KIAD Act.

(e) On the aforesaid submissions, this Court raised the following points for his consideration:-

Points for consideration:

i) Whether Section 3(1) and Sections 28 to 31 of the KIAD Act are repugnant to the provisions of the 2013 Act.

ii) Whether Section 24 of the 2013 Act is applicable to an acquisition initiated under the provisions of the KIAD Act.

iii) Whether there could be a deemed divesting of the acquired land in terms of Section 24(2) of the 2013 Act, which provides for a lapsing of the acquisition proceedings if the conditions specified therein are satisfied, notwithstanding the deemed vesting of the land in terms of Section 28(5) of the KIAD Act.


      iv)    Whether the decision of the Apex Court in THE
             SPECIAL      LAND     ACQUISITION       OFFICER,
             KIADB, MYSORE vs. ANASUYA BAI, would

entail dismissal of these petitions. (Incidentally, after these petitions were heard and reserved for Orders, the Apex Court having rendered the above decision it is necessary to address this issue)."

(f) While discussing Point No.(iv) and despite making detailed reference to the judgment of the Hon'ble Supreme Court 83 in the case of Anasuya Bai to the effect that Section 24(2) of 2013 Act is not applicable to acquisition initiated under the provisions of KIAD Act, learned single Judge, nevertheless, held that since some of the provisions of KIAD Act were in challenge in some of the petitions, it could not be said that the petitions had become infructuous. However, learned Single Judge has expressly noticed that Section 24(2) of 2013 Act does not apply to acquisition initiated under the provisions of KIAD Act. But while answering point No.(i), learned Single Judge has held that with effect from 01/01/2014, with the coming into force of the 2013 Act, compulsory acquisition of land anywhere in the country could only be in accordance with the provisions of the 2013 Act. While answering the question as to whether Section 24 of 2013 Act is applicable to acquisition initiated under the provisions of KIAD Act, learned Single Judge held as under:-

"The contention that Section 24(2) of 2013 Act specifically refers to the acquisition initiated under the 1894 Act and therefore is inapplicable to the acquisition initiated under Section 28(1) of the KIAD Act is erroneous. Section 24 of 2013 Act should not be read in isolation, but should be read in conjunction with Section 30 of the KIAD Act. Section 103 of the 2013 Act advances the contention of the petitioner to the 84 effect that the provisions of 2013 Act have to be read in conjunction with the provisions of the KIAD Act."

"Further, Section 114 (1) of the 2013 Act repeals the 1894 Act with effect from 1-1-2014. Section 30 is now to be read as referring to the 2013 Act. It is noticed that in OFFSHORE HOLDINGS (PRIVATE) LIMITED vs. BANGALORE DEVELOPMENT AUTHORITY (supra), the Supreme Court, when confronted with the question of whether Section 11A of the 1894 Act (introduced by an amendment in 1984) would automatically apply to land acquisitions under the Bangalore Development Authority Act, had held Section 36 therein (a provision akin to Section 30 of the KIAD Act) to be a case of "legislation by incorporation". That finding of the Apex Court, with all due respect to the Apex Court, will have no applicability in determining the applicability of Section 24(2) of the 2013 Act in terms of Section 30 of the KIAD Act, in the backdrop of the wholesale repeal of the 1894 Act and its replacement with the 2013 Act.

The construction which advances a harmonious gel between various statutes within the Constitutional mandate has to be preferred by the Court. The construction therefore which harmoniously brings together Section 24 of the 2013 Act and Section 30 of the Karnataka Industrial Areas Development Act, 1966 has to be preferred to a construction which brings Section 24(2) of the 2013 Act in conflict with Section

30 of the KIAD Act, 1966.

Section 24(2) of the 2013 Act is applicable to acquisition proceedings under the KIAD Act."

40. At this stage itself, it may be observed that the judgment in M.Somashekhar was rendered on 15/12/2016 which was prior to the judgment of the Hon'ble Supreme Court in the case of Anasuya Bai which was rendered on 25/01/2017. Having regard to the judgment of the Hon'ble Supreme Court in Anasuya Bai, the judgment in M.Somashekhar is with respect, no longer good law in the context of applicability of Section 24(2) of 2013 Act to an acquisition initiated under the provisions of KIAD Act. Further, in M.Somashekhar reliance has also been placed on the decision of this Court in the case of Chikkathayamma.

However, in view of the judgments of the Hon'ble Supreme Court on Section 24(2) of 2013 Act in the case of Anasuya Bai and this Court in M/S. Evershine Monuments, the decision in Chikkathayamma is no longer a judicial precedent as the latter decision which is rendered under BDA Act does not take note of the judicial dicta of Hon'ble Supreme Court on the scheme and provisions of BDA Act being distinct from the provisions of LA Act, 1894. Therefore, it is deduced that the decision in 86 J.Venkatesh Reddy following the decision in M.Somashekhar as well as Chikkathayamma is no longer good law.

41. Further, in M/S. Evershine Monuments, it has been observed on a detailed analysis of Section 24 of 2013 Act, in light of the judgments of the Hon'ble Supreme Court in the case of Manav Dharam Trust and Sukhbir Singh as well as the aforesaid decisions of the Hon'ble Supreme Court rendered under the provisions of the BDA Act and the judgment of the Hon'ble Supreme Court in Anasuya Bai rendered under the provisions of KIAD Act, that Section 24(2) would not be applicable either to BDA Act or KIAD Act. Therefore, the decision in J.Venkatesh Reddy also is no longer good law in view of the dictum of the Hon'ble Supreme Court in Anasuya Bai, so also the dictum of this Court in M.Somashekhar, which are in respect of KIAD Act.

42. Further, the answer given to point No.(iii) in J.Venkatesh Reddy to the effect that on the lapse of acquisition by virtue of Section 24(2) of 2013 Act, there is deemed divesting of the acquired land in favour of the land owners is also not a correct conclusion arrived at. Merely because Anasuya Bai's case did not involve a challenge to the constitutional validity of 87 the provisions of the KIAD Act and in J.Venkatesh Reddy there was such a challenge, in my humble opinion, is of no relevance to a consideration of the question as to whether Section 24(2) of 2013 Act is applicable to an acquisition initiated only under the provisions of 1894 Act or it encompasses other Acts such as KIAD Act, which is a State enactment.

43. Therefore, the acquisition in these writ petitions having been initiated under the provisions of the KIAD Act, it cannot be held that the said acquisition has been initiated under the provisions of the LA Act, 1894. More significantly, the dictum of the Hon'ble Supreme Court in Anasuya Bai's case is directly on the point of inapplicability of sub-section (2) of Section 24 of 2013 Act to an acquisition initiated under the provisions of the Act in question, which has been ignored in J.Venkatesh Reddy while expressing a contra opinion.

44. Having regard to the aforesaid discussion, it is held that the petitioners are not entitled to any declaration on the premise that the award has not been passed within the period of two years as stipulated under Section 11A of L.A. Act, 1894 and therefore, the acquisition has lapsed. Also, no declaration of lapse of acquisition under Section 6 of LA Act, 1894 can be given 88 to the petitioners in the instant case. Further, no declaration under sub-section (2) of Section 24 of 2013 Act, on the premise that the award of compensation not having been made and physical possession not having been taken, there is deemed lapse of acquisition cannot also be granted in the instant case.

45. In the result, the writ petitions are dismissed.

Interim order granted by this Court on 09/02/2015 stands vacated.

Parties to bear their respective costs.

In view of dismissal of the writ petitions and the interim order being vacated, I.A.No.1/2017 seeking vacating of stay is allowed.

Sd/-

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