Karnataka High Court
Smt Anasuya Bai W/O Badarinath vs The State Of Karnataka on 9 November, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 09TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.11955 of 2008 (LA-KIADB)
BETWEEN:
1. Smt. Anasuya Bai,
Wife of Badarinath,
Aged 83 years,
Since deceased
By her legal representatives
1(a) Smt. V. Sudha,
Wife of Vijendranath,
Aged about 47 years,
1(b) Thaijas,
Daughter of Vijendranth,
Aged about 47 years,
1(c) B. Sudheendraha,
Son of Vijendranath,
Aged about 19 years,
1(d) Badrinath,
Son of Vijendranath,
Major,
2
All are residing at
at No.922,
Kantharaje Urs Road,
Laxmipuram,
Mysore.
[caused title
amended vide court
order dated 27.6.2012] ...PETITIONERS
(By Shri. G.Balakrishna Shastry, Advocate)
AND:
1. The State of Karnataka,
Represented by the
Under Secretary to the
Department of Industries and
Commerce,
Vidhana Soudha,
Bangalore - 560 001.
2. The Special Land Acquisition
Officer,
The Karnataka Industrial
Areas Development Board,
K.R.S.Road, Metagalli,
Mysore.
3. The Karnataka Industrial
Area Development Board,
By this Chief Executive Officer
and Executive Member,
No.14/3, Rashtrotana Parishad
3
Building, Nrupathunga Road,
Bangalore - 560 001. ...RESPONDENTS
(By Shri. S.V. Angadi, Advocate for Respondent Nos. 2 and 3
Shri. K.S. Mallikarjunaiah, Government Pleader for
Respondent No.1)
*****
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the preliminary
Notification dated 15.9.2000 published in the Karnataka
Gazette dated 15.9.2000 by first respondent vide Annexure-A;
quash the final declaration dated 13.5.2005 published in the
Karnataka Gazette dated 15.6.2005 vide Annexure-B and
declare that the proceedings relating to the acquisition of
petition under Section 28(1) of the rtKIAD Act has lapsed and
issue writ of mandamus or any other writ directing the first
respondent to hand over or deliver the possession of the petition
land to the petitioner.
This Writ Petition is coming on for Hearing this day, the
court made the following:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for the respondents.
It is the case of the petitioner that the petitioner is the owner of land bearing Sy.No.123/1 measuring 4 acres 9 guntas and land in Sy.No.123/2 measuring 1 acre of Anaganahalli 4 Village, Belagola Hobli, Srirangapatna Taluk, Mandya District. The lands as aforesaid, had been purchased by one Thimma Bovi and others under a registered sale deed dated 27.05.1985. Respondent No.1 is said to have initiated proceedings to acquire the aforesaid lands for the purpose of developing the said lands into an industrial area on behalf of the Karnataka Industrial Areas Development Board (hereinafter referred to as 'KIADB' for brevity), and a preliminary notification which was duly published in the Karnataka Gazette dated 15.09.2000 was issued followed by a final declaration by the authority which was duly published in the Karnataka Gazette on 15.06.2005. The petitioner claims that she was not served with the notice of the proceedings and was never heard, as required under Section 29(3) of the Karnataka Industrial Areas Development Act, 1966 (hereinafter referred to as the 'KIAD Act' for brevity). The Deputy Commissioner, Mandya, thereafter is said to have fixed the rate of compensation at `6,50,000/- per acre on the basis of 5 an alleged consent afforded by several persons, whose lands had also been proposed to be acquired.
It is the case of the petitioner that she had never appeared before the Deputy Commissioner, Mandya and never agreed with the Deputy Commissioner or with the State Government to receive the compensation at that rate. There was no individual agreement reached between the petitioner and the State Government regarding the said compensation as contemplated under Section 29(2) of the KIAD Act. It is the case of the petitioner that the Collector was duty bound to determine the compensation within two years from the date of publication of the final declaration as provided under Section 11-A of the Land Acquisition Act, 1894 (hereinafter referred to as the 'LA Act' for brevity). The provisions of Section 11 and 11A of the LA Act were made applicable to the proceedings under the KIAD Act by virtue of Section 30. The petitioner claims that the Deputy Commissioner did not pass any award at all and further claims that she was totally unaware of the impugned 6 acquisition proceedings. In the month of June 2006, the petitioner when found adjacent areas being developed by formation of roads, therefore in serious apprehension as to the development, had gone and enquired with the third respondent to ascertain the nature of the activity. The petitioner was then informed of the acquisition proceedings and was directed to produce documents including her title and right over the lands. The petitioner had innocently produced the documents in that regard. She was then informed by the Deputy Commissioner that the compensation had been determined at the rate of `6,50,000/- per acre and she was thereafter issued with a notice by the Court of the Principal Civil Judge, Srirangapatna in case No.LAC.13/2007 and on enquiry, she found that at the instance of persons who had no interest in the acquired lands, the reference under Section 31(2) had been made to the aforesaid court and though the second respondent had no jurisdiction to refer the matter for want of an award, the matter had been referred to the Court. The petitioner, after further enquiries, 7 learned that no award had been passed by the Deputy Commissioner or by the second respondent. In the circumstance that neither an award was passed nor a consent award, Respondents 1 to 3 would not have jurisdiction to acquire the lands of the petitioner and since the respondents were proceeding post-haste in exercising possession over the petitioner's land, the present petition is filed. The petitioner unfortunately died during the pendency of these proceedings. The petitioner is now represented by her legal heirs. It is the contention that the entire proceedings are vitiated as there was no consent given by the petitioner at any point of time and as already stated, there was no mutual agreement by the petitioner to receive such compensation. Neither was there any notice under Section 28(2) of the KIAD Act.
The learned counsel for the respondent Nos. 2 and 3 has entered appearance and has filed Statement of objection raising several contentions and has produced several documents in 8 support of the objections filed. It is reiterated that the lands were notified under the preliminary and final notification dated 15.09.2000 and 15.06.2005 respectively. All statutory notices as contemplated under law had been issued to the petitioner at her last known address. However, the same could not be served since the petitioner was not available and respondents were left with no alternative but to serve the same in the manner known to law affixing the same on the lands in question and since there is a provision under Section 29(2) to determine and pay the compensation, the Deputy Commissioner, Mandya came to be constituted as the authority to assess the fair market value prevailing and accordingly, a sum of `6,50,000/- was fixed as the compensation payable. The petitioner upon such passing of the award, has produced all material in support of her case and sought for payment of the compensation fixed by the respondent and more particularly, the children of the petitioner namely Parmesh, Lakshmamma and Sunil, through their legal counsel, opposed payment of compensation to the petitioner by 9 filing detailed statement of objections and in view of that controversy, the respondents were constrained to deposit the entire amount of compensation before the Civil Court, Srirangapatna, as contemplated under Section 30 of the LA Act. Therefore, the objections raised by the petitioner as to non- service of notice or that she had never participated at the enquiry insofar as the determination of compensation was concerned or that she has never consented with the order of the Deputy Commissioner, would pale into insignificance as the petitioner had willfully submitted to the jurisdiction of the Deputy Commissioner in the fixation of the compensation, but for the objection raised by her children, the compensation amount would have been disbursed in favour of the petitioner. The petitioner also having taken notice under Section 29(2) of the Act and having produced all the relevant material, is estopped from now claiming that she had never acquiesced in the fixation of the compensation for the acquisition of the land. Therefore, the learned counsel would submit that the writ 10 petition be dismissed without any further adieu. The learned counsel also has produced an endorsement dated 11.07.2008 informing the petitioner of the deposit of compensation before the Civil Court and the same has been endorsed by the petitioner. A copy of the notice dated 23.08.2005 calling upon the petitioner to attend the deliberation of the proceedings before the Deputy Commissioner, Mandya, is also made available as per Annexure-"R2" to the Statement of objections. The summons issued by the Civil Court is at Annexure-"R3" and a true copy of the letter dated 7.2.2008 written by the petitioner is at Annexure-"R4". Therefore, under these circumstances, the learned counsel for the respondent would submit that a sum of `30,15,871/- is credited to the Civil Court, Srirangapatna vide Cheque bearing No.728148 dated 8.3.2007 and copy of this cheque is also produced at Annexure-R5 along with a copy of the letter dated 30.10.2006 which is at Annexure-"R7". In view of this, the learned counsel would submit that the petition be dismissed.
11
By way of reply, the learned counsel for the petitioner would submit that the purported voluntary submission to the acquisition proceedings and the voluntary acceptance of the compensation amount as determined by the Deputy Commissioner, ought to have been evidenced by a mutual written agreement which is contemplated under Rule 10(b) of the Karnataka land Acquisition Rules, 1965 in Form-D, which is not forthcoming. Secondly, it is further contended that admittedly, no notices were served on the petitioner. The petitioner has all along, continued to live at the very address that was furnished as described in the sale deed. Therefore, even if the petitioner was not available at the address that was indicated in the notice issued by the respondent, at least endorsements to the effect that she was no longer available at the said address, should have been made and signatures of the occupants of the premises ought to have been obtained. This is not forthcoming and the learned counsel for the petitioner 12 having drawn a challenge to the counsel for the respondent to produce any documents evidencing her consent, the entire records were produced by the learned counsel for the respondent. But unfortunately, the learned counsel for the respondent is unable to point out any such document and he would candidly admit that there is no agreement entered into by the petitioner with the respondent as contemplated under the Rules as aforestated. Therefore, the petitioner has established that she has not acquiesced in the amount of compensation that was determined off the cuff by the Deputy Commissioner at the instance of the other land owners who may not have been aggrieved of the same. Insofar as the petitioner is concerned, she was entitled in law to have been heard and she was entitled to have entered into an agreement if the compensation could be paid at the rate of `6,50,000/- per acre. Therefore, it is now incumbent on the respondent to determine the actual compensation, in accordance with law and not to peg it at 13 `6,50,000/- as has been done in the case of other land owners. In the result, the writ petition is allowed in terms as follows:
The final notification having been duly published in the official gazette on 15.06.2005, the respondent shall proceed on that basis in determining the compensation and making an award in favour of the petitioner. All further proceedings shall follow in accordance with law.
Even at this stage, the learned counsel for the petitioner would insist that the notifications at Annexures A and B would still have to be quashed on the glaring circumstance that no notices were even served in respect of the said notifications and therefore, the same are quashed. The award also has not been passed within two years from the date of the final notification and hence, the proceedings would stand vitiated on that ground. However, as already noticed, there is an area of doubt and it cannot be ruled out that the respondents have been lax in maintaining their records as to the actual service of notice from the respondent, as there is material on record to indicate that the 14 petitioner had at some stage, appeared before the respondent and had participated in the proceedings. Therefore, this Court has formed an opinion in the above manner and it is just and proper in the opinion of this Court.
Sd/-
JUDGE KS