Mrs. Premakala Prabhakara Reddy vs State Of Karnataka on 7 March, 2019

[Cites 44, Cited by 2]

Karnataka High Court

Mrs. Premakala Prabhakara Reddy vs State Of Karnataka on 7 March, 2019

Equivalent citations: 2019 AIR CC 2898 (KAR), 2019 (3) AKR 657 2019 (3) KCCR SN 156 (KAR), 2019 (3) KCCR SN 156 (KAR)

Bench: B.V.Nagarathna

                            -1-
                                               R

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF MARCH, 2019

                       BEFORE

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

        WRIT PETITION No.23812/2016 &
WRIT PETITION NOS.32798-32816/2016 (LA-KIADB)

BETWEEN:

1. Mrs. Premakala Prabhakara Reddy
   W/o. Mr.M. Prabhakara Reddy
   Aged about 62 years
   R/at No.3783, 13th 'B' Main
   HAL II Stage, Indiranagar
   Bengaluru - 560 008.

2. Mr. B.N. Adarsh
   S/o. Mr. B.S.N. Hari
   Aged about 24 years
   R/at No.473, 9th Cross
   First Block, Jayanagar
   Bengaluru - 560 011.              ...Petitioners

(By Sri Krishnamurthy K.R. Advocate for
 M/s. Lawyers Inc)

AND:

1. State of Karnataka
   Department of Industries and
   Commerce Industrial Development
   M.S. Building
   Dr. Ambedkar Veedi
   Bengaluru - 560 001.
                             -2-




   Rep. by its Secretary.

2. Karnataka Industrial Area Development Board
   No.14/3, 2nd Floor, R.P. Building
   Nrupathunga Road
   Bengaluru - 560 001.
   Rep. by its Chief Executive Officer
   and Executive Member

3. The Special Land Acquisition Officer
   Karnataka Industrial Area Development Board
   No.14/3, 2nd Floor, R.P. Building
   Nrupathunga Road
   Bengaluru - 560 001.

4. Bangalore Water Supply & Sewerage Board
   Cauvery Bhavan
   Bengaluru - 560 001.
   Rep. by its Chairman.           ...Respondents

     (By Sri B.J. Eswarappa, AGA for R1,
     Sri Basavaraj V. Sabarad, Adv. for R2 & R3
     Sri Aditya Sondhi, Senior Advocate a/w
     Sri K.B. Monesh Kumar, Adv. for R4)

      These writ petitions are filed under Articles 226
and 227 of Constitution of India praying to declare
that the acquisition proceedings initiated under the
provisions    of  the    Karnataka    Industrial   Area
Development Act, 1966 by issuance of notification
dated 06.02.2006 under Section 28(1) of the KIAD Act
stands lapsed by virtue of the non-passing of the
award within the reasonable time and consequentially
declare that the notification dated 06.02.2006 issued
under Section 28(1) of KIAD Act, vide Annex-A and
Notification dated 17.12.2007 under Section 28(4) of
                               -3-




KIAD Act, vide Annexure - B both issued by
respondent No.1 are unenforceable in respect of
petitioner's land in all measuring 16 acres 4.25 guntas
in Sy.Nos.368, 372/2, 373, 374/1, 375/2, 375/3,
375/4, 375/5, 375/6, 376, 377/1, 377/8, 393, 394/1,
394/2A, 394/2B, 396, 397/1, 398 & 393 situated at
Amani Bellandur Khane Village, Varthur Hobli,
Bangalore East Taluk & etc.

      These writ petitions coming on for Orders this
day, the Court made the following:

                            ORDER

Though these writ petitions are listed to consider I.A.Nos.2/2016 and 1/2017 filed by respondent Nos.2, 3 and 4 respectively seeking vacating interim order of status quo granted on 24.06.2016 and thereafter extended on subsequent days, with the consent of the learned counsel on both the sides they are heard finally.

2. Petitioners have sought for a declaration that the acquisition proceedings initiated under the provisions of Karnataka Industrial Areas Development Act, 1966, ("the KIAD Act" for the sake of brevity) by issuance of notification bearing No.CI:327:SPQ:2005, Bengaluru, dated 06.02.2006 under Section 28(1) of the KIAD Act and -4- final notification bearing No.CI:743:SPQ:2007, Bengaluru, dated 17.12.2007 under Section 28(4) of the KIAD Act are unenforceable insofar as petitioners' lands are concerned, in all measuring 16 acres 4.25 guntas in Survey Nos.368, 372/2, 373, 374/1, 375/2, 375/3, 375/4, 375/5, 375/6, 376, 377/1, 377/8, 393, 394/1, 394/2A, 394/2B, 396, 397/1, 398 and 393 situated at Amani Bellandur Khane Village, Varthur Hobli, Bengaluru East Taluk (herein after referred to as 'the lands in question').

3. It is the case of the petitioners that the first petitioner is the owner of the lands in question as detailed in Sl. Nos.1 to 33 below. The said lands were purchased by the petitioners through various sale deeds from their previous owners for a valuable consideration as indicated in the table below:-

 Sl.                     Extent        Sale Deed     Sale Deed
            Sy.No.
 No.                   Acr. Gun.       Regn. No.        date
  1          368          1-13       4021/2007-08   02.11.2007
  2          368         0-6.25      6208/2007-08   04.03.2008
  3         372/2         0-34       3631/2007-08   18.09.2007
  4          373          0-17       3203/2007-08   18.09.2007
  5         374/1         0-36       4299/2007-08   20.11.2007
  6         375/2         0-30       3642/2007-08   10.09.2007
                                -5-



 7           375/3      0-10         3653/2007-08   17.09.2007
 8           375/3      0-6          3652/2007-08   10.09.2007
 9           375/3      0-10         5225/2007-08   10.09.2007
 10          375/4      0-9          5225/2007-08   10.09.2007
 11          375/5      0-27         4023/2007-08   19.09.2007
 12          375/6      0-29         3204/2007-08   17.09.2007
 13           376       0-18         5225/2007-08   10.09.2007
 14           376       0-16         5297/2007-08   17.01.2008
 15          377/1      0-18.5       3640/2007-08   13.09.2007
 16          377/1      0-18.5       3641/2007-08   13.09.2007
 17          377/8      0-1.5        4551/2007-08   03.12.2007
 18          377/8      0-8          4300/2007-08   20.11.2007
 19          377/8      0-4.5        5400/2007-08   22.11.2007
 20          377/8      0-8          6209/2007-08   04.03.2008
 21          394/1      0-34         3642/2007-08   10.09.2007
 22         394/2A      0-19.5       3821/2007-08   09.08.2007
 23         394/2A      0-6.5        4022/2007-08   24.10.2007
 24         394/2B      0-12         4550/2007-08   27.10.2007
 25         394/2B      0-12         5225/2007-08   10.09.2007
 26           396       9-10         5225/2007-08   10.09.2007
 27           396       0-2          5230/2007-08   10.09.2007
 28           396       0-15         5292/2007-08   17.01.2008
 29           396       0-20         5362/2007-08   24.10.2007
 30           396       0-8          5361/2007-08   25.10.2007
 31          397/1      0-21         3642/2007-08   10.09.2007
 32          397/1      0-21         5227/2007-08   03.12.2007
 33           398       1-4          3655/2007-08   13.09.2007

4. The second petitioner is the owner of the land mentioned in Sl.No.34 by virtue of sale deed dated 06/12/2017 as indicated in the table below:-

 Sl.                    Extent         Sale Deed     Sale Deed
            Sy.No.
 No.                   Acr. Gun.       Regn. No.        date
 34          393         0-21        1766/2007-08   06.12.2007
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      5.    The    first   respondent-State    published    a

notification dated 06/02/2006 under Sections 3(1) and 3(2) of the KIAD Act, declaring 35 acres and 02 guntas of land as an industrial area. Simultaneously, notification under Section 28(1) of the KIAD Act was also issued on 06.02.2006 which is the preliminary notification. The same was followed by a declaration and Final Notification issued under Section 28(4) of the KIAD Act on 18.12.2007 after complying with the procedure under Section 28(2) and 28(3) of the KIAD Act. Copies of the said notifications are at Annexures-A and B to the writ petitions. The actual purpose of acquisition was for the benefit of the fourth respondent-Bangalore Water Supply & Sewerage Board (BWSSB) for setting up a Sewerage Treatment Plant (STP). It is significant to note that the lands in question were purchased by the petitioners subsequent to the issuance of the preliminary notification and prior to the issuance of final notification, except in respect of three plots of lands, which were purchased subsequent to the final notification. The petitioners, who could be termed as subsequent -7- purchasers, filed W.P.No.5650/2008 on 02.04.2008 before this Court, assailing the said notifications. On 09.04.2008, learned Single Judge granted an interim order of stay of dispossession initially for a period of two months and thereafter, it was continued for some time. The said writ petitions were dismissed by order dated 29.07.2011. Being aggrieved by the dismissal of the said writ petition, the petitioner preferred W.A.Nos.16026-16027/2011 by way of an intra-court appeal on 19.09.2011. The Division Bench of this Court directed maintenance of status quo in respect of lands in question by interim order dated 10.08.2012. Ultimately, the writ appeals were also dismissed by judgment dated 16.04.2013. Being aggrieved, the petitioners herein preferred Special Leave Petition Nos.26738-26739/2013 before the Hon'ble Supreme Court on 07.08.2013, in which there was an interim direction to maintain status quo as on that date vide order dated 02.09.2013. Ultimately, the Special Leave Petitions were also dismissed on 12.11.2014. Thereafter, Review Petition was filed in R.P.No.1401/2014 before this Court on -8- 12.12.2014. The Review Petition was dismissed on 16.04.2015. Assailing the order passed in the Review Petition, Special Leave Petition No.20568/2015 was preferred before the Hon'ble Supreme Court, but the same was withdrawn on 16.12.2015. Thereafter, these writ petitions have been filed on 20.04.2016.

6. Adverting to the aforesaid facts, the petitioners have averred that they were under an impression that the award had been passed, but the compensation was not deposited nor paid to them. Therefore, they sought to raise issues pertaining to Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "2013 Act"), which came into effect on 01.01.2014. But, they realized that no award had in fact been passed, either under the Land Acquisition Act, 1894 ("1894 Act" for short) nor under the 2013 Act; that there was no legal impediment for the acquiring authorities to pass an award and that the long delay and the ultimate failure in passing -9- of the award was fatal to the acquisition proceedings insofar as lands in question are concerned. Hence, they sought for a declaration that the acquisition of the lands in question has lapsed. Petitioners have further averred that they are in physical possession of the land as no notice under Section 28(6) of the KIAD Act has been issued to them and only Public Notice dated 14.01.2008 was allegedly issued which is wholly illegal and without authority of law, that no mahazar has been prepared in respect of the lands in question to substantiate the fact that possession has been taken and there are no documents to support the same. According to the petitioners, in the absence of any award being passed, they are constrained to seek a declaration that the proceedings have lapsed and therefore, these writ petitions have been filed.

7. In response to these writ petitions, respondent Nos.2 and 3 have filed their statement of objections rebutting the averments made by the petitioners in the

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earlier proceedings before this Court as well as before the Hon'ble Supreme Court and have contented that the petitioners being subsequent purchasers, are at best entitled to seek compensation and that they cannot maintain these writ petitions seeking a declaration that the acquisition of the lands in question has lapsed. Respondent Nos.2 and 3 have further contended that the possession of the lands in question were taken on 28.02.2008 by the Land Acquisition Officer and transferred to the Board on 06.03.2008 and that the petitioners are not in possession of the lands in question. It is not disputed that the awards in respect of the lands in question have not been passed but it is contended that the reason is on account of the continuous and successive litigations being filed by the petitioners before this Court as well as before the Hon'ble Supreme Court. The interim orders of stay of dispossession or status quo obtained by the petitioners operating against the respondents for several years have tied the hands of the respondents and they were unable to take the acquisition proceedings to its

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logical conclusion. In these circumstances, respondent Nos.2 and 3 have sought for dismissal of these writ petitions.

8. Respondent No.4/BWSSB has also filed statement of objections contending that the petitioners being the subsequent purchasers, have no right to seek a declaration that there is lapse of acquisition insofar as the lands in question are concerned. That at their own risk, petitioners purchased lands which were already notified for acquisition and despite the same, they successively challenged the acquisition proceedings before this Court as well as before the Hon'ble Supreme Court. Petitioners have to blame themselves for the non-passing of the awards inasmuch as interim orders granted by this Court as well as the Hon'ble Supreme Court have not made it possible for the awards being passed and that the petitioners now cannot contend that on account of the non-passing of the awards, the acquisition proceedings has lapsed. It is averred that respondent No.4 had deposited

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Rs.13,13,70,390/- (Rupees thirteen crores, thirteen lakhs, seventy thousand, three hundred and ninety only) with Karnataka Industrial Areas Development Board (KIADB) way back in the year 2009 for the purpose of disbursement of compensation. It is further contended that the land in question amongst other lands were sought to be acquired for the purpose of setting up of Sewerage Treatment Plant (STP) which is for a public purpose for the region covering Amani Bellandur Khane Village surrounding Varthur lake so as to mitigate pollution and to drain the treated water to the surrounding water bodies. The series of litigations filed by the petitioners herein and the interim orders granted by this Court as well as the Hon'ble Supreme Court, has delayed the setting up of the Sewerage Treatment Plant and consequently, the purpose for which the acquisition of land has not been realized. Respondent No.4 has also sought for dismissal of these writ petitions.

9. I have heard Sri Krishnamurthy K.R, learned counsel for the petitioners, Sri B.J. Eswarappa, learned

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counsel for respondent No.1, learned counsel, Sri Basavaraj V.Sabarad for respondent Nos.2 and 3 and learned Senior counsel, Sri Aditya Sondhi, for respondent No.4 and perused the material on record.

10. Learned counsel for the petitioners contended that under Section 11-A of the 1894 Act, there is a clear prescription for the passing of an award within two years from the date of publication of the declaration and final notification, which is a mandatory requirement. If the award is not passed within the said period, it would result in lapse of acquisition. No doubt, under the Act in question, there is no such stipulation, however, the same does not imply that the acquiring authorities could take their own sweet time, in other words, an unreasonable time in passing of the award so far as petitioners herein are concerned. The acquisition notifications are of the year 2006-2007 and till the filing of these petitions, the awards not passed. It is contended that the Division Bench of this Court in the case of Sri H.N.Shivanna and others vs.

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State of Karnataka, Department of Industries and Commerce, Bangalore and another reported in 2013 (4) KCCR 2793 (DB) (H.N.Shivanna) has observed that merely because a provision such as Section 11-A of the 1894 Act not being found under the KIAD Act (which is under consideration), would not imply that there is no limitation or a time prescription for passing of an award. Relying on the said judgment, it has been contended that in absence of there being any stipulation of time for passing of the award under the KIAD Act, the award has to be passed within a reasonable time, which is two years. As no award has been made till date, it would only imply that there is a lapse of acquisition on account of non passing of the award. In this context, reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of Ram Chand and others vs. Union of India and others reported in (1994) 1 SCC 44 (Ram Chand) wherein it has been observed that where no time limit is prescribed for exercise of power, it should be exercised within a reasonable time.

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11. Learned counsel for the petitioners also relied on the other judgment of the Division Bench of this Court passed in W.A.No.2402/2014 (LA-KIADB) (disposed of on 12.04.2016) in the case of Karnataka Industrial Areas Development Board and another vs. Smt. Anitha Purnesh and another (Smt. Anitha Purnesh) wherein reliance has been placed on the judgment of this Court in H.N.Shivanna and the appeal filed by respondent Nos.2 and 3 herein has been dismissed. Therefore, it is the contention of the learned counsel for the petitioners that in the absence of an award being made insofar as the lands in question are concerned till date, it would imply that there is abandonment of the acquisition of the lands in question and hence, a declaration may be made to that effect.

12. Per contra, learned senior counsel appearing for respondent No.4, Sri Sondhi contented that reliance placed on H.N.Shivanna by the petitioners is of no assistance as the judgment passed in that case has been

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recently impliedly overruled by the Hon'ble Supreme Court in the case of Bangalore Development Authority and another vs. State of Karnataka and another reported in (2018) 9 SCC 122 (Bangalore Development Authority). It is contended that though the aforesaid judgment is in the context of the Bangalore Development Authority Act, 1976 (BDA Act, 1976) and not under the provisions of the KIAD Act, which is under consideration, nevertheless, the observations made in the said judgment are squarely applicable to the present case as there is an express reference made to H.N.Shivanna in the said judgment. It is further contended that the Division Bench in H.N.Shivanna did not notice the judgment of the Hon'ble Supreme Court in the case of M.Nagabhushana vs. State of Karnataka and others reported in (2011) 3 SCC 408 (Nagabhushana), which is a judgment which arises under the KIAD Act. By way of an analogy, it was also contended that in H.N.Shivanna, the Division Bench has also not noticed the judgment of the Hon'ble Supreme Court in the case of Offshore Holdings (P) Limited vs.

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Bangalore Development Authority reported in (2011) 3 SCC 139 (Offshore Holdings (P) Limited). Though the said judgment is under the provisions of the BDA Act, 1976, nevertheless, it has relevance to the present case as under the BDA Act, 1976 also, there is absence of a provision in the nature of Section 11-A of the 1894 Act as in KIAD Act and the Hon'ble Supreme Court has held that the prescription of two years under the 1894 Act would not apply to an acquisition made under the provisions of BDA Act, 1976. Therefore, the observations of the Hon'ble Supreme Court made with regard to applicability of Section 11-A to an acquisition made under that Act are squarely applicable to KIAD Act also.

13. It was further contended that the Division Bench of this Court in Anitha Purnesh held that there was abandonment of acquisition as there was no declaration and final notification issued in the said case and not because of the absence of an award being passed

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within a reasonable time and reliance placed on H.N.Shivanna was only incidental in the said judgment.

14. It was further submitted, having regard to the latest judgment of the Hon'ble Supreme Court in the case of Special Land Acquisition Officer, KIADB, Mysore and another vs. Anasuya Bai (dead) by Legal Representatives and others reported in (2017) 3 SCC 313 (Anasuya Bai) which has been followed by this court in D.Sharanappa and others vs. State of Karnataka, Department of Commerce & Industries represented by its Secretary and others reported in ILR 2018 KAR 3250 (D.Sharanappa), it is now clear that the stipulation contained in Section 11-A of 1894 Act, which is conspicuous by its absence under the provisions of the Act under consideration (KIAD Act) would clearly indicate that there is no timeline or period within which the award has to be made and that the petitioners cannot succeed merely because the award has not been passed within a reasonable time.

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15. In this regard, emphasis has been made to the fact that petitioners' attempt before this Court and also before the Hon'ble Supreme Court has been to somehow stall the acquisition proceedings and the interim orders passed in those proceedings has delayed the completion of the acquisition process and taking the proceedings to its logical conclusion.

16. Learned Senior counsel appearing for respondent No.4 contended that in every proceeding filed by the petitioners before this Court as well as before the Hon'ble Supreme Court, there were interim orders passed and when this Court as well as the Hon'ble Supreme Court had directed maintenance of status quo or stay of dispossession, the respondent-acquiring authorities could not have carried forward the acquisition proceedings. Therefore, the award could not be passed in respect of lands in question. That the petitioners cannot now take advantage of the fact that after obtaining interim orders which placed an embargo on the acquiring authorities to

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conclude the proceedings to now contend that the awards not having been passed, must result in a declaration being granted by this Court to the effect that there is lapse of acquisition. In this regard, learned Senior counsel drew my attention to a number of cases filed by the petitioners herein before this Court as well as Hon'ble Supreme Court and contended that this is one more attempt in the series of cases filed by the petitioners to stall the acquisition process which is for the purpose of Sewerage Treatment Plant and as a result, the project has not yet commenced.

17. It is contended that the delay in the passing of the awards is on account of successive litigations filed by the petitioners herein and hence, they cannot take advantage of the same so as to contend that they are entitled to a declaration on account of the non-passing of the award. In this regard, learned senior counsel contended that the petitioners are after all subsequent purchasers, who have purchased the lands after the publication of preliminary notification under Section 28(1)

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of the KIAD Act at their own risk and they cannot be granted any declaration as sought for by them in these writ petitions. In this regard, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of V.Chandrasekaran and another vs. Administrative Officer and others reported in (2012) 12 SCC 133 (V.Chandrasekaran). Therefore, learned Senior counsel appearing for respondent No.4 submitted that these writ petitions may be dismissed and the interim orders granted by this Court may be recalled.

18. Learned counsel for respondent Nos.2 and 3 supplemented the arguments of learned Sri Sondhi, learned senior counsel appearing for respondent No.4 and contended, in the instant case, although possession of the lands in question was taken from the land owners on 28.02.2008 and possession was handed over to BWSSB- respondent No.4 on 06.03.2008, on account of interim orders passed in successive litigations filed by the petitioners herein, there has been no commencement of

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the project and virtually the acquisition process has been frustrated by the petitioners. Placing reliance on a judgment of this Court in the case of D.Sharanappa, learned counsel for respondent Nos.2 and 3 contended that these writ petitions may be dismissed.

19. Learned Additional Government Advocate appearing for respondent No.1 also endorsed the submission of the learned counsel for respondent Nos.2 and 3 and contended the writ petitions may be dismissed.

20. By way of reply, learned counsel for the petitioners submitted that interim orders were in the nature of stay of dispossession and that there was no impediment for respondent Nos.2 and 3- acquiring authorities to pass awards in respect of the lands in question and the non passing of awards even till date must result in the petitioners succeeding in these writ petitions.

21. It is further contended that as per the latest judgment of the Hon'ble Supreme Court in the case of

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Government (NCT of Delhi) vs. Manav Dharam Trust and Another reported in (2017) 6 SCC 751 (Manav Dharam Trust), a subsequent purchaser is entitled to seek a declaration that the acquisition has lapsed even though such a subsequent purchaser may not have the right to assail the acquisition proceedings. He therefore contended that these writ petitions cannot be dismissed on the ground that the petitioners herein have no locus standi to maintain the writ petitions.

22. Having heard learned counsel for the respective parties, the following points would arise for my consideration:

"1. Whether the petitioners who are subsequent purchasers are entitled to seek a declaration that on account of non-passing of the awards in respect of the lands in question, the acquisition has lapsed?

2. If the answer to point No.1 is in the affirmative whether the petitioners are entitled to such a declaration?

3. What orders?"

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Re. point No.1:

23. It is not in dispute that the respondent-State issued a notification under Section 3(1) and 1(3) of the Act declaring certain areas in Amani Bellandur Khane Village as industrial areas. The said notification was issued on 06.02.2006 and on the very same day, preliminary notification under Section 28(1) of the Act was issued which was followed by declaration and final notification under Section 28(4) of the Act, after complying with the procedure contemplated under Sections 28(1) and 28(4) of the KIAD Act. It is also an admitted fact that the petitioners herein who are subsequent purchasers had filed the writ petitions which have been adverted to in the narration of facts, the details of which shall be considered later. Subsequent to dismissal of the Special Leave Petition No.20568/2015, these writ petitions have been preferred on 20.04.2016. The question as to whether subsequent purchasers could maintain writ petitions seeking a declaration that the acquisition has lapsed is no longer res integra. In fact, recently the Hon'ble Supreme Court in the

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case of Manav Dharam Trust specifically adverted to the question whether a subsequent purchaser, an assignee, a successor-in- interest, a power-of-attorney holder etc., could file a petition for declaration of lapse of acquisition proceedings under Section 24(2) of the 2013 Act. While considering the said specific question, the Hon'ble Supreme Court at paragraph 28 has held that a subsequent purchaser, an assignee, a successor in interest, a power-of-attorney holder etc., are all persons who are interested in compensation just as landowners/affected persons are in terms of the 2013 Act and such persons are also entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondent-writ petitioners do not have any locus standi.

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24. Of course, the aforesaid observations have been made in the context of Section 24(2) of 2013 Act, but, nevertheless are squarely applicable to this case also, by way of an anology, although there is no declaration sought under Section 24(2) of 2013 Act in the instant case. Hence, point No.1 is answered in favour of the petitioners and it is held that these writ petitions are maintainable.

25. Reliance could also be placed on a judgment of Division Bench of this Court in Smt.Nagu Bai and others vs. State of Karnataka reported in ILR 2001 KAR 1169 (Nagu Bai) which was a case of acquisition under the provisions of 1894 Act, wherein at paragraph 15, it was held that the subsequent vendees may not be entitled to challenge the acquisition proceedings but, they would certainly be entitled to get a declaration that the acquisition proceedings have lapsed and have become void as the Land Acquisition Officer failed to make the award within two years from the date of publication of the final

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notification. The order of the Single Judge dismissing the writ petitions on account of its maintainability in the aforesaid case was set aside. Of course, the said observations has been made in the context of acquisition being initiated under the provisions of 1894 Act. But the said observations are applicable to the present case also. In the circumstances, point No.1 is answered in favour of the petitioners.

Re. Point No.2:

26. This concerns the merits of the case and as to whether the petitioners are entitled to a declaration that there has been lapse of acquisition of the lands in question on account of non-passing of awards within a reasonable time. Before proceeding on to the factual aspects of the matter, it would be useful to discern from the judgments cited at the Bar the position of law concerning the passing of an award under the provisions of the Act under consideration.

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27. Learned counsel for the petitioners has relied on the judgment of this Court in H.N.Shivanna wherein the Division Bench of this Court was considering the correctness of a judgment passed by the learned Single Judge upholding the acquisition proceedings and consequently, dismissing the writ petitions wherein at paragraph No.36 it was observed as under:

"36. From the aforesaid discussion, it is clear if a period is prescribed under the Act for issue of a final declaration as well as for passing of the award, if the final declaration is not issued and the award is not passed within the stipulated period, the entire acquisition lapses, unless it is shown by virtue of any order of stay or injunction issued by any Court, the authorities were precluded from completing the acquisition proceedings. It is by operation of law as contained in the statute. Merely because such a provision is not found in an enactment, it does not mean limitation is not a bar at all. If such a prescription is not there expressly in any enactment it is not possible to hold that such an acquisition has lapsed relying on the provisions contained in the Land Acquisition Act. In other words, the provisions of the Land Acquisition Act cannot be read into the Act or such similar statutes.

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But nonetheless in order to decide what is the reasonable time within which authorities have to exercise their power either for issue of a final notification or for passing of the award is concerned, certainly the Parliament intendment as contained in this provision cannot be completely lost sight of. On the contrary, it acts as a guide. It expresses the will of the Parliament. It has to be given due weight. When this acquisition proceedings were delayed endlessly and land owners were deprived of just compensation under law and consequently the constitutional right was violated, the Parliament amended the Land Acquisition Act prescribing the time limit. According to the Parliament, one year is the reasonable time for passing of a final declaration and two years is the time for passing of an award. If within those periods the final declaration is not issued, the award is not passed, the whole acquisition lapses. The Act is enacted for industrial development which has to be done expeditiously. Such an industrial development results in generation of employment and economic growth of the State. If the land is required for such public purpose a special enactment was enacted for speedy acquisition of land. Merely because the provisions contained in Section 6(1) and 11A is not incorporated in this Act or after the Parliament amended the Land Acquisition Act in 1984, the State legislature did

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not think it fit to bring in similar provisions under the Act, it does not mean that the State Government can exercise its power for issue of a final declaration or passing of an award without any regard to time limit. It has to be done within a reasonable time. As held by the Apex Court in Ram Chand's case, two years is held to be a reasonable time within which a final declaration has to be issued, if there are no hurdles placed in the acquisition by the land owners or if there are no hurdles in law. If the final declaration is not issued within two years, certainly the land acquisition has to lapse, notwithstanding the absence of any specific provision in the Act as contained in the Land Acquisition Act. When we say it is two years or one year it does not mean on expiry of the said two years or one year, as calculated under the L.A.Act, the acquisition has to lapse. It is roughly two years or one year. Few days or months this way or that way should not matter. Except for this absence of mathematical precision in calculating the period, the substance has to be applied. The parliamentary intention in prescribing time limit under the L.A. Act cannot be ignored. However, it all depends on the facts of that particular case, the conduct of the parties, the purpose for which the land is sought to be acquired and the problems faced by the acquiring authorities in concluding the acquisition. Therefore, it is not possible to accept

- 31 -

the contention of the acquiring authority that in the absence of any specific provision under the Act, no such time limit can be imposed and the same is without any substance. Even in the absence of any such prescriptions expressly under the statute, having regard to the fact that the right to property is a constitutional right and the person whose land is sought to be acquired is entitled to compensation at the market rate, such a compensation has to be paid to him at the earliest and therefore, the power of acquisition should be exercised within a reasonable time so that the person who lost the land is duly compensated at the earliest point of time."

(underlining be me) The Division Bench held that although a provision such as Section 11-A of 1894 Act is not found in the KIAD Act, it cannot be a case where there is no time limit for passing an award. In such a case, the award must be passed within a reasonable time which is about two years. In the absence of an award being passed within a reasonable time the owner/khathedar or as in the instant case, the subsequent purchaser may be entitled to seek a declaration that the acquisition has lapsed. In the

- 32 -

aforesaid decision reliance was placed on Ram Chand's case.

28. Hence, it is necessary to advert to Ram Chand's case which is a decision rendered by the Hon'ble Supreme Court in respect of an acquisition initiated prior to the insertion of Section 11-A to 1894 Act and in the aforesaid context, it was observed that in the absence of a time limit being prescribed for exercise of power, it should be exercised within a reasonable time. In fact, the judgment expressly refers to Section 11-A prescribing a time limit for the passing of the award, which is two years as the said judgment was rendered after the insertion of Section 11-A to the 1894 Act, but in respect of an acquisition initiated prior to the said insertion by way of an amendment made in September 1984. It was in the aforesaid circumstances that the Hon'ble Supreme Court held that the authorities who are enjoined by a statute, to perform their duties within a reasonable time are answerable for not performing such duties within such time

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and any delay in the performance of such duties, such as passing of an award in time, would result in relief being granted to the land owners. This is because any delay or inaction on the part of the acquiring authorities would result in a great predicament to the land owners on account of escalation in the price of land and the delay in completion of acquisition proceedings cannot be to the disadvantage of the land owners as they cannot use the land or deal with it in the manner they like.

29. At this stage, reference would have to be made to the latest decision of the Hon'ble Supreme Court in the case of Bangalore Development Authority as it has a bearing on this case as H.N.Shivanna has been distinguished and according to learned senior counsel for respondent No.4, it has been impliedly overruled. In the said case, the Hon'ble Supreme Court was considering the judgment of the Division Bench of this Court dismissing the writ appeals and confirming the orders passed by the learned single Judge of this Court under the provisions of

- 34 -

the BDA Act, 1976, pertaining to the formation of a scheme known as Shivaram Karanth Layout under the provisions of BDA Act, 1976. Learned single Judge in Sri Aswathanarayana vs. State of Karnataka (Aswathanarayana) along with other writ petitions had observed that the Division Bench of the High Court in H.N.Shivanna had considered a similar aspect under the provisions of the KIAD Act where no time limit had been prescribed for the purpose of completion of acquisition by passing of award. The question in Aswathanarayana's case was that the final notification had not been issued in respect of lands notified for acquisition for the formation of Dr.K.Shivarama Karanth Layout under the provisions of BDA Act, 1976. Therefore, learned single Judge had granted the relief by placing reliance on H.N.Shivanna. The Division Bench of this Court had dismissed the appeal filed and when the matter was considered by the Hon'ble Supreme Court in the appeal filed by Bangalore Development Authority, it was noticed that the acquisition therein was not under the provisions of the KIAD Act, but

- 35 -

under BDA Act, 1976. That this Court could not have applied the ratio of the judgment in H.N.Shivanna to an acquisition made under the provisions of BDA Act, 1976 That the Constitution Bench of the Hon'ble Supreme Court in the case of Offshore Holdings (P) Limited had clearly held that Section 11-A of 1894 Act does not apply to any acquisition initiated under the provisions of the BDA Act. That this Court without considering the judgment of the Hon'ble Supreme Court in the case of Offshore Holdings (P) Limited had instead placed reliance on H.N.Shivanna which is a case that arose under the KIAD Act to grant relief to the land owners therein, which was incorrect. In the circumstances, Hon'ble Supreme Court held that with regard to an acquisition under the provisions of the BDA Act, 1976, the decision in H.N.Shivanna could not have been applied by this Court to grant relief to land owners therein without taking into consideration the judgment in Offshore Holdings (P) Limited, which was a direct decision on the point under the provisions of BDA Act, 1976. The relevant extracts from Bangalore

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Development Authority from Paragraph Nos.16 and 17 are as under:

"16. This Court has emphasized that the primary object of the BDA Act is to carry out planned development. The State Act has provided its own scheme. The time constraints of the land acquisition are not applicable to the BDA Act. Making applicable the time-frame of Section 11-A of the LA Act would debilitate very object of the BDA Act. It is apparent that the decision of the Single Judge as well as the Division Bench is directly juxtaposed to the decision of five-Judge Bench of this Court in Offshore Holdings in which precisely the question involved in the instant cases had been dealt with. By indirect method by making applicable the time period of two years of Section 11-A of the LA Act mandate of BDA Act has been violated. However, it is shocking that various decisions have been taken into consideration particularly by the Single Judge, however, whereas the decision that has set the controversy at rest, has not even been noticed even by the Single Judge or by the Division Bench. If this is the fate of the law of the land laid down by this Court that too the decision by the Constitution Bench, so much can be said but to exercise restraint is the best use of the power. Least said is better, the way in which the justice has been dealt with and

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the planned development of Bangalore City has been left at the mercy of unscrupulous persons of Government and the BDA.

17. It is apparent from the fact that the Single Judge has relied upon the decision in H.N.Shivanna in which it was observed by the Division Bench that scheme was to be completed in 2 years otherwise it would lapse. It was precisely the question of time period which was dwelt upon and what was ultimately decided by this Court in Offshore Holdings has been blatantly violated by the Single Judge and that too in flagrant violation of the provisions and intendment of the Act."

30. It is necessary to emphasize that in H.N.Shivanna, which was a case which arose under KIAD Act, the Division Bench of this Court also had not taken into consideration the judgment of the Hon'ble Supreme Court in the case of M.Nagabhushana, which arose under KIAD Act. In M.Nagabhushana, the Hon'ble Supreme Court was considering the precise question of applicability of Section 11-A of the 1894 Act to an acquisition initiated under the provisions of the KIAD Act and the Hon'ble

- 38 -

Supreme Court at paragraph Nos.28 to 36 of the said decision dilated 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)

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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 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

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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 (1996) 3 SCC

1. 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.

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

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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 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.

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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 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

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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." Further recently, the Hon'ble Supreme Court in the case of Anasuya Bai, which is a case which arose under KIAD Act, by placing reliance on the judgment in M.Nagagbhushana, although the said case arose under Section 24(2) of 2013 Act observed in paragraph Nos.28 and 29 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 vs. State of Karnataka (2015 SCC online Karnataka 2220) case, 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 provision under the KIAD Act to pass an

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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

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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

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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 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 v. State of Karnataka (2011) 3 SCC 408, (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

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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 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,

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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

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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-

Recently, the Constitution Bench of this

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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

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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."

Reference could also be made to Girnar Traders (3) vs. State of Maharashtra [(2011) 3 SCC 1] (Girnar Traders), which was a case that arose under the provisions of Maharashtra Regional & Town Planning Act, 1966 (MRTP Act), wherein at paragraph Nos. 142 to 146, it was observed as under:

"142. The counsel appearing for the appellant strenuously argued with the aid of equitable principles that the judicial discretion while referring to such statutes should tilt in favour of the owners of the land rather than in favour of the State which in any case is exercising its power of eminent domain. The contention is that Section

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11A of the Land Acquisition Act should be read into the MRTP Act on equitable grounds, as that alone will balance the rights of the citizens vis-à-vis right of the State. In other words, if a declaration is made under Section 126(2) of the State Act in the manner specified under Section 6 of the Central Act but consequently an award is not made within two years of such declaration, then the acquisition and all proceedings thereafter would lapse in terms of Section 11A of the Central Act. It was pressed that if this contention is not accepted, great injustice will be caused to the appellants inasmuch as they will have to wait for years together for finalization of the proceedings and 10 years, in any case, is an unduly long period. Per contra, the respondents argue that induction of Section 11-A into the MRTP Act would hamper the scheme and would frustrate its object.

143. We find no merit in the contention raised on behalf of the appellants. The Court cannot lose sight of the fact that the acquisition of land for planned development under the MRTP Act may be completed much prior to the time-frame stipulated under Sections 126 and 127 of that Act. Once the acquisition is complete and land is vested in the State, the person interested ceases to have any interest in the land in question. Even for variety of other reasons, this contention cannot be

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accepted. Firstly, the provisions of the MRTP Act do provide for time limitation as well as the consequences in the event of default. Secondly, wherever there is delay, despite such framework provided under the MRTP Act, the applicants are duly compensated by payment of compensation.

144. If the provisions of Section 11A of the Land Acquisition Act are read and enforced stricto sensu in the MRTP Act, inevitable consequences would be that various development schemes under the MRTP Act would come to a halt and the larger public interest would suffer. On the other hand, some inconvenience may be caused to the owners/interested persons of the land by non- induction of provisions of Section 11A of the Central Act. Thus, private interest would suffer which, in comparison to larger public interest, can hardly be a consideration for accepting the contention raised on behalf of the appellant.

145. It has been held by various judgments of this Court and rightly so that the provisions of Sections 23(1-A), 23(2) and 28 of the Land Acquisition Act which relate to payment of interest and solatium with regard to the amount of compensation determined under the award made by the Collector under Section 11 of that Act, is an adequate compensation to the appellants for the

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delay which may be caused by the Government due to avoidable and/or unavoidable circumstances. On the contrary, if acquisition and all proceedings thereafter are permitted to lapse in terms of Section 11-A of the Land Acquisition Act, the development plans which may have already commenced or even progressed may come to a standstill causing huge damage to the public interest as well as to the State Revenue which, ultimately, is nothing but public funds. This is more so for the reason that the lands come under a reservation, designation as land required for plans including township even when the draft plans are prepared and approved by the State.

146. From whatever point of view this is examined, it is not possible to read the provisions of Section 11-A of the Land Acquisition Act into the MRTP Act without adversely affecting the very object of the MRTP Act and causing impediments, legal or otherwise, in the implementation of the development plans. These Acts operate in different fields and such incorporation by reference would be incompatible with the cause of the MRTP Act, particularly, when the reference to the provisions of the Land Acquisition Act are, primarily, for achieving the purpose of the MRTP Act."

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In fact, in the case of Anasuya Bai, Hon'ble Supreme Court placed reliance on its earlier decisions in the case of Munithimmaiah vs. State of Karnataka [(2002) 4 SCC 326](Munithimmaiah); Offshore Holdings (P) Limited) and Girnar Traders to hold that Section 11-A of the LA Act, 1894 did not apply to BDA, Act 1976 and also to any acquisition initiated under the provisions of KIAD Act under consideration.

The aforesaid judgments of the Hon'ble Supreme Court have been followed in the case of D.Sharanappa although the same arose under Section 24(2) of 2013 Act with regard to lapse of acquisition being applicable to an acquisition under KIAD Act. It would be useful to extract the relevant paragraphs of the said judgment as it is relied upon by the counsel for the respondents. The relevant portion of the order in D.Sharanappa is extracted hereunder:

"Re. Point No.3:

Whether petitioners are entitled to a declaration that the acquisition of lands in

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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

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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 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

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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:

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(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)

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:

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"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)

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"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 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) x x x

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31. In fact even in the case of Anasuya Bai, the Hon'ble Supreme Court has placed reliance on its decisions in 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

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the matters aforesaid. Under Section 3(1), the State Government may, by notification, declare any area in the State 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

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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.

(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.

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(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 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

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purpose for which the land has been acquired."

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 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

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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.

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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

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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.

x x x

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

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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 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

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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 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

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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 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."

In view of the above catena of judgments of the Hon'ble Supreme Court in Offshore Holdings (P) Limited, Bangalore Development Authority and in Girnar Traders (3), reliance cannot be placed on the

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judgment of the Division Bench of this Court in H.N.Shivanna to hold that in the absence of any time limit fixed under the provisions of KIAD Act for passing of an award, it would have to be made within a reasonable time, which is two years and if the award has not been passed within the said time, it would lead to grant of declaration that the acquisition has lapsed. More pertinently, having regard to the judgments of the Hon'ble Supreme Court in the case of M.Nagabhushana and Anasuya Bai, which are directly under the provisions of KIAD Act, the judgment in Ram Chand's case, which is concerning a situation prior to the insertion of Section 11-A to 1894 Act would also not apply. Consequently, the judgment of this Court in H.N.Shivanna cannot be held to be good law so as to have a binding effect. As already noted, H.N.Shivanna has ignored the dictum of the Hon'ble Supreme Court in M.Nagabhushana. Further, Anasuya Bai has also relied upon inter alia M.Nagabhushana to set aside the judgment of the Division Bench of this Court. Further, this Court in

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Ashwathanarayana, did not refer to the judgments of the Hon'ble Supreme Court in Offshore Holdings (P) Limited and Girnar (3), but, reliance was placed on H.N.Shivanna to grant relief to the petitioners therein. But in view of the judgment of the Hon'ble Supreme Court in Bangalore Development Authority, which arose from the judgment of this Court in Ashwathanarayana, it could be observed that H.N.Shivanna is no longer good law. Therefore, the petitioners herein cannot be granted relief on the basis of the dictum of the Division Bench in H.N.Shivanna and reliance placed on the said judgment by learned counsel for the petitioners is of no assistance to them. This is because the judgments of the Hon'ble Supreme Court in the case of M.Nagabhushana and Anasuya Bai rendered under the provisions of the KIAD Act hold the field. Similarly, the judgments of the Hon'ble Supreme Court in the case of Offshore Holdings (P) Limited and Bangalore Development Authority which are rendered under the provisions of the BDA Act, 1976 are binding on this Court.

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31. Further, in the absence of issuance of final notification under KIAD Act, this Court observed that the acquisition had lapsed in the case of Anitha Purnesh. The same was not a case of lapse of acquisition on account of non-passing of an award within a period of two years from the date of publication of final notification.

32. But more importantly, it is necessary to consider the factual matrix in the instant case and analyze as to why the award was not passed till the filing of these writ petitions. Although I have adverted to the filing of the earlier cases by the petitioners before this Court as well as the Hon'ble Supreme Court, it is necessary to recount the same.

33. On the issuance of preliminary and final notifications under Section 28(1) and 28(4) respectively of the KIAD Act on 06.02.2006 and 18.122007, W.P.No.5650/2008 was filed before this Court on 02.04.2008 assailing the said notifications. A learned

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single Judge of this Court granted an interim order of stay of dispossession and ultimately the writ petition was dismissed on 29.07.2011. Being aggrieved the petitioners preferred W.A.Nos.16026-16027/2011 wherein the Division Bench granted an interim order of status quo in respect of lands in question. Ultimately, the writ appeals were dismissed on 16.04.2017. Special Leave Petition Nos.26738-26739/2019 were preferred before the Hon'ble Supreme Court wherein an interim order of status quo was granted and those matters were also dismissed on 12.11.2014. R.P.No.1401/2014 was filed before this Court and on dismissal of the same on 16.04.2015 S.L.P.No.20568/2015 was filed before the Hon'ble Supreme Court and it was withdrawn on 16/12/2015 and thereafter these writ petitions have been filed. Even in these writ petitions status quo order was granted on 24.06.2016 and the same has been extended till date.

34. The aforesaid facts would make it apparent that on account of the interim orders granted by this Court

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and the orders of status quo granted by the Hon'ble Supreme Court till the dismissal of S.L.P.No.20568/2015 on 16.12.2015, there was no way in which respondent Nos.2 and 3 could have passed any award in respect of the lands in question.

35. Therefore, the petitioners now cannot take advantage of the fact that they being themselves responsible for non-passing of the awards in the instant case, to now contend that the resultant delay must lead to a declaration being granted by this Court to the effect that there has been lapse in acquisition. In the circumstances, it is held that the petitioners are not entitled to any such declaration as sought for by them. In the result, the writ petitions are dismissed, however, without any order as to costs.

It is held that the acquisition of lands in question, which have been upheld by this Court as well as the Hon'ble Supreme Court is reiterated.

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In view of the dismissal of the writ petitions, I.A.Nos.2/16 and 1/17 for vacating stay are allowed. Interim order granted in these writ petitions are recalled.

Sd/-

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