Karnataka High Court
Venkatabhadra Reddy vs State Of Karnataka Dept Of Industrial on 1 February, 2023
Author: Krishna S Dixit
Bench: Krishna S Dixit
-1-
WP No. 2848/2008
C/W WP Nos. 3539/2006,
4301/2008,4302/2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 2848/2008 (LA-KIADB)
C/W
WRIT PETITION NOS.3539/2006, 4301/2008,
4302/2008(LA-KIADB)
IN W.P.NO.2848/2008:
BETWEEN:
SMT. DODDAMMA
WIFE OF LATE AGADURAPPA
AGED ABOUT 70 YEARS,
RESIDENT OF BOMMASANDRA VILLAGE
ANEKAL TALUK,
BANGALORE URBAN DISTRICT - 560 099.
...PETITIONER
(BY SRI. SHIVANANDA METI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
Digitally
signed by DEPARTMENT OF INDUSTRIES & COMMERCE
CHETAN B C
Location: M.S.BUILDINGS, BANGALORE - 560 001.
HIGH COURT
OF
KARNATAKA
2. THE KARNATAKA INDUSTRIAL AREA'S
DEVELOPMENT BOARD
BY ITS EXECUTIVE DIRECTOR
NO.14, NRUPATHUNGA ROAD,
BANGALORE - 560 001.
3. SPECIAL LAND ACQUISITION OFFICER
THE KARNATAKA INDUSTRIAL AREA'S
DEVELOPMENT BOARD, KHENI BUILDING
BEHIND TRIBHUVAN THEATRE
GANDHINAGAR, BANGALORE - 560 009.
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WP No. 2848/2008
C/W WP Nos. 3539/2006,
4301/2008,4302/2008
4. B.T.L. EDUCATION TRUST
PLOT NO.250/B, BOMMASANDRA INDUSTRIAL AREA,
BOMMASANDRA, ANEKAL TALUK
BANGALORE - 560 009.
...RESPONDENTS
(BY SRI. SRIDHAR HEGDE, AGA FOR R1;
SRI. P.V. CHANDRASHEKAR, ADVOCATE FOR R2 & R3;
SRI. VARDHAMAN V. GUNJAL, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION DT. 22.7.1996 IN REFERENCE TO ANNEX.E.
WITH RESPECT TO 10 GUNTAS OF LAND IN SURVEY NUMBER
19 OF KITHIGANAHALLI VILLAGE, ANEKAL TQ., AND BE
PLEASED TO QUASH THE ALLOTMENT MADE BY THE
RESPONDENT BOARD IN FAVOUR OF R4 ON 21.7.2000 VIDE
ANNEX.T AND ETC.,
IN W.P.NO.3539/2006:
BETWEEN:
VENKATABHADRA REDDY
S/O GOWDAPPA,
AGED ABOUT 60 YEARS,
R/A KITHIGANAHALI VILLAGE
JIGANI HOBLI, ANEKAL TALUK,
BANGALORE NORTH TALUK.
...PETITIONER
(BY SRI.B RAMESH, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF INDUSTRIAL
DEVELOPMENT M.S.BUILDING,
DR.AMBEDKAR VEEDHI,
BANGALORE - 560 001
REPRESENTED BY ITS SECRETARY
2. KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD, NO.14/3,
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WP No. 2848/2008
C/W WP Nos. 3539/2006,
4301/2008,4302/2008
2ND FLOOR, RASTROTHANA PHARISHAT
BUILDING, NRUPATHUNGA ROAD,
BANGALORE - 560 001.
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER &
EXECUTIVE MEMBER
3. SPECIAL LAND ACQUISITION OFFICER
(INTERNATIONAL AIR PORT) DIVISIONAL OFFICE,
NO.488/B, 14TH CROSS, KIADB MULTISTORIED
BUILDIJNG, 3RD BLOCK, 4TH DIVISION, PEENYA
INDUSTRIAL AREA, BANGALORE - 560 058.
4. M/S. BTL EDUCATIONAL TRUST
FOR RURAL DEVELOPMENT, NO.259/B,
BOMMASANDRA INDUSTRIALAREA, HOSUR ROAD,
BANGALORE - 562 158
REPRESENTED BY ITS SECRETARY.
...RESPONDENTS
(BY MR. SRIDHAR HEGDE, AGA FOR R1;
SMT. GOWHAR UNNISA, ADVOCATE FOR R2 & R3;
SRI. V.V.GUNJAL, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTICES DT. 28.6.05 BY R3 VIDE ANN-K1 TO K5 AND THE
ACQUISITION PROCEEDINGS INITIATED PURSUANT TO THE
FINAL NOTIFICATION DT. 22.7.96 VIDE ANN-D AND ETC.,
IN W.P.NO.4301/2008:
BETWEEN:
1. SRI. AJJAPPA
DEAD BY HIS LRS:
(a) SAMPANGIRAMAIAH
S/O LATE AJJAPPA
AGED ABOUT 62 YEARS
(b) SAMPANNI
S/O LATE AJJAPPA
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4301/2008,4302/2008
AGED ABOUT 54 YEARS
(c) A LINGAPPA
S/O LATE AJJAPPA
AGED ABOUT 52 YEARS
ALL ARE AGRICULTURISTS AND
R/O BOMMASANDRA VILLAGE, ANEKAL TALUK,
BANGALORE URBAN DIST -560 099.
...PETITIONERS
(BY SRI. E.V. GOAPALA KRISHNAN POTTY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF INDUSTRIES & COMMERCE,
M.S. BUILDING, DR. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
BY ITS EXECUTIVE MEMBER,
NO.14, NRUPATHUNGA ROAD,
BANGALORE - 560 001.
3. SPECIAL LAND ACQUISITIONS OFFICER,
THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD, KHENI BUILDING,
BEHIND TRIBHUVAN THEATRE, GANDHINAGAR,
BANGALORE - 560 009.
4. B.T.L. EDUCATION TRUST FOR RURAL DEVELOPMENT
PLOT NO 259/B, BOMMASANDRA INDUSTRIAL AREA,
BOMMASANDRA, ANEKAL TALUK
BANGALORE - 560 009.
...RESPONDENTS
(BY MR. SRIDHAR HEGDE, AGA FOR R1 ,
SRI. P.V. CHANDRASHEKAR, ADVOCATE FOR R2 & R3;
SRI. V.V. GUNJAL, ADVOCATE FOR R4)
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WP No. 2848/2008
C/W WP Nos. 3539/2006,
4301/2008,4302/2008
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION DT. 22.7.1996 ISSUED U/S 28(4) OF THE LAND
ACQUISITION ACT WITH RESPECT TO THE PETITIONERS LAND
(ANNEXURE-D) IN SY.N.21/1 OF KETHIGANAHALLI, ANEKAL
TALUK, BANGALORE URBAN DISTRICT MEASURING 8 GUNTAS
AND ETC.,
IN W.P.NO.4302/2008:
BETWEEN:
1. SRI. POOJARI AGADURAPPA
DEAD BY HIS LRS
(a) EERAMMA
W/O LATE POOJARI AGADURAPPA
AGED ABOUT 91 YEARS
(b) MUNIVEERAMMA
D/O LATE POOJARI AGADURAPPA
AGED ABOUT 61 YEARS
(C) GOWRAMMA
D/O LATE POOJARI AGADURAPPA
AGED ABOUT 59 YEARS
(d) A. THORASALAPPA
S/O LATE POOJARI AGADURAPPA
AGED ABOUT 57 YEARS
(e) LINGAPPA
S/O LATE POOJARI AGADURAPPA
AGED ABOUT 55 YEARS
(f) A. RAMACHANDRA
S/O LATE POOJARI AGADURAPPA
EX-SERVICEMAN,
AGED ABOUT 53 YEARS
(g) CHIKKAIAH
S/O LATE POOJARI AGADURAPPA
AGED ABOUT 51 YEARS
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WP No. 2848/2008
C/W WP Nos. 3539/2006,
4301/2008,4302/2008
(h) A. KRISHNAMURTHY
S/O LATE POOJARI AGADURAPPA
AGED ABOUT 45 YEARS
ALL ARE AGRICULTURISTS,
R/O BOMMASANDRA VILLAGE, ANEKAL TALUK,
BANGALORE URBAN DISTRICT - 560 009.
...PETITIONERS
(BY SRI. E V GOPALAKRISHNAN POTTY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF INDUSTRIES & COMMERCE
M.S. BUILDING, DR. AMBEDKAR VEEDHI,
BANGALORE- 560 001.
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
BY ITS EXECUTIVE MEMBER, NO.14,
NRUPATHUNGA ROAD,
BANGALORE - 560 001.
3. SPECIAL LAND ACQUISITION OFFICER
THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD, KHENI BUILDING,
BEHIND TRIBHUVAN THEATRE, GANDHINAGAR,
BANGALORE - 560 009.
4. B.T.L. EDUCATION TRUST
FOR RURAL DEVELOPMENT, PLOT NO.259/B,
BOMMASANDRA INDUSTRIAL AREA,
BOMMASANDRA, ANEKAL TALUK,
BANGALORE - 560 099.
...RESPONDENTS
(BY MR. SRIDHAR HEGDE, AGA FOR R1;
SRI. P.V.CHANDRASHEKAR, ADVOCATE FOR R2 & R3;
SRI. V.V.GUNJAL, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
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WP No. 2848/2008
C/W WP Nos. 3539/2006,
4301/2008,4302/2008
NOTIFICATION DT. 22.7.96 ISSUED UNDER SECTION 28(4) OF
THE LAND ACQUISITION ACT WITH RESPECT TO THE
PETITIONERS LAND (ANNEXURE-D) AND ETC.,
THESE WRIT PETITIONS COMING ON FOR HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
All these petitions broadly having common law & facts, are filed by the land owners for laying a challenge to the acquisition of their lands under the provisions of the Karnataka Industrial Areas Development Act, 1966.
2. Learned advocates appearing for the Petitioners seek to falter the acquisition making the following submissions:
(i) The acquisition of the land is not for public purpose and their objections filed to the proposal for acquisition have not been duly considered.
(ii) The opinion of the government as to requirement of the lands, is unfounded since KIADB itself recommended for their denotification;
(iii) The lands being adjacent to the villages could not have been notified for acquisition.
(iv) The acquired lands are sought to be given to some others not connected with industry; -8- WP No. 2848/2008
C/W WP Nos. 3539/2006, 4301/2008,4302/2008
(v) The acquisition is not accomplished within the statutory period and possession has not been taken till date; neither award has been passed nor compensation has been paid; and
(vi) In any event, acquisition if at all to be saved from challenge, the compensation has to be paid under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
3. After service of notice, the State being the acquiring body has entered appearance through the AGA; the KIADB and its SLAO have entered appearance through their panel counsel and they have filed their objections. The allottee of the land being a respondent also is represented by its advocate and its has filed its Statement of Objections, opposing the Petitions. All the learned AGA, learned Panel Counsel for the KIADB & learned counsel for appearing for the Education Trust making submission in justification of the impugned acquisition, controverting the Petition averments.
4. Having heard the learned counsel for the parties and having perused the Petition Papers, although this -9- WP No. 2848/2008 C/W WP Nos. 3539/2006, 4301/2008,4302/2008 Court declines indulgence so far as, the challenge to acquisition is concerned; however, it is inclined to grant some relief to the land owners as under, and for the following reasons:
(a) In all these cases, the Preliminary Notification under section 28(1) came to be issued on 15.7.1994 and it was followed by the issuance of Final Notification on 22.7.1996 under section 28(4) of the KIAD Act, 1966. A Division of this Court having scanned the provisions of 1966 Act and the erstwhile Land Acquisition Act, 1894 in W.P.No.17600/2004 etc., between NANDI INFRASTRUCTURE CORRIDOR ENTERPRISE LIMITED vs. STATE & OTHERS, disposed off on 15.06.2011 has held that once the Final Notification is issued, the land would vest in the State, whether award is passed or not, compensation is paid or not and possession is taken or not. The Bench at paragraph 19 reiterated the legal position with the following observation:
"Under the Land Acquisition Act, Section 16 of the Act contemplates vesting of the land with the Government. Under the said Act, the lands
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008 under acquisition get vested with the Government when the Collector makes an award under Section 11 of the Land Acquisition Act and the Government takes possession. The situation is entirely different under KIAD Act. After the final notification under Section 28(4) of KIAD Act, the lands get vested in the Government by virtue of Section 28(5) of the Act by operation of law and it does not depend upon passing of any award by the Land Acquisition Officer. Therefore, though Sections 28(1) and 28(4) of the KIAD Act contemplates preliminary and final notifications for acquisition of land, when once final notification under Section 28(4) of the Act get published, the land vests with the State Government as contemplated under Section 28(5) of the Act..."
Thus, the scheme of acquisition under the 1966 Act is bit in variance with that of the 1894 Act, whereunder, the land will vest only after award is passed and possession is taken. That being the position, the grievance of the Petitioners that despite KIADB Resolution recommending denotification of these lands, the government is not justified in accomplishing the process of acquisition, is legally unsustainable.
(b) As already mentioned above, the Preliminary Notification was issued on 15.7.1994 and the land owners did not file their objections thereto. The grounds on which
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008 the proposal for acquisition could have been opposed by filing the objections ordinarily cannot be urged in the writ jurisdiction when no objections have been filed soon after the issuance of Preliminary Notification, more particularly when no plausible explanation for such a lapse is offered. The vehement submission of learned advocates appearing for the Petitioners that they had sought for deletion of the land from acquisition, of course, a bit long after the preliminary notification was issued and that itself may be treated as objections, is bit difficult to countenance, the same having been filed long after the cut-off date mentioned in the very Preliminary Notification. A Division Bench of this Court in VENKATARAMANAPPA AND OTHERS VS. STATE AND OTHERS, (1984) 2 KLJ 326, has held that the objections filed after the cut-off date are no objections in the eye of law. Therefore, the non-consideration thereof does not give a cause of action for invalidating the acquisition, on that ground per se.
(c) The submission of learned advocates appearing for the land owners that these lands are not required by
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008 the KIADB and therefore, the KIADB had passed a Resolution on 15.12.1998 recommending for dropping of the said lands from the acquisition process and as a consequence, the government ought to have denotified the lands from acquisition, is very difficult to countenance. True it is that the government can drop the acquisition process partially or wholly as provided under section 48(1) of the 1894 Act if the land has not vested in it. As already discussed above, the scheme of acquisition under the 1966 Act is a bit in variance with that envisaged in the 1894 Act whereunder the lands would vest in the State once the Final Notification is issued u/s 28(4) of the 1966 Act and therefore, the government rightly did not denotify the land in terms of KIADB recommendations. This apart, whether land is required for public purpose or not, is a matter essentially lying in the domain of the Executive and Writ Courts cannot run a race of opinions in this regard, as rightly submitted by learned Panel Counsel Mr.P.V.Chandrashekar appearing for the KIADB. The further submission that the lands being adjacent to
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008 villages, could not have been notified for acquisition in view of certain government circulars, does not merit acceptance since the acquisition is done by the State Government in exercise of the power of eminent domain. No property is immune from acquisition, despite the constitutional guarantee to property rights availing under Article 300A.
(d) The submission of learned advocates appearing for the Petitioners that even today, they continue to be in possession of the lands in question and therefore, the acquisition has lapsed, enormous delay having been brooked by the acquiring body, again does not merit acceptance. Once the title to the land is vested in the acquiring body by virtue of the Final Notification the persons clinging on to same are not better than the trespassers, to say the least. It is only an unauthorized occupation from which no justiciable right would arise for invalidation of the acquisition. Had the acquisition been done under the provisions of the erstwhile 1894, Act arguably different considerations would have cropped up
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008 in the light of change of legal regime by virtue of 2013 Act. Passing of award and taking of possession of land do not matter in deciding whether the land has vested in the State or not, once the Final Notification is issued.
(e) The above apart, the respondent-KIADB in its Statement of Objections has specifically stated that in all the cases except W.P.No.3539/2006, the possession has already been taken and award has already been passed and further, the compensation is also deposited in the court. Thus, in three of the four matters, the contention that the acquisition is bad for not passing the award till date nor taking the possession of the land, is factually incorrect & legally untenable, at least for voiding of acquisition. The allottee respondent has produced the copies of registered conveyances whereby, land has been put in its possession and some structures like hostel buildings have been put up therein. In W.P.No.3539/2006, true it is that the award has not been passed, as admitted by the KIADB in its Statement of Objections. It need not be repeated that passing of the award or taking of the
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008 possession of the acquired land do not result into divestation of the land vested in the State.
(f) The vehement submission of learned counsel for the land owners that the subject lands were acquired for industrial purpose, whereas the same have been diverted to the Respondent - Educational Trust and therefore, the acquisition is to be voided on that ground, cannot be countenanced. In support of their claim, they have not shown any provision of law nor any Ruling of the Courts. Once the lands have vested in the State, the erstwhile owners cannot seek their restoration on the ground that they were put to use for some other public purpose. This view gains support from the decision of the Apex Court in C.PADMA & OTHERS VS. DEPUTY SECRETARY TO THE GOVERNMENT OF TAMIL NADU (1997) 2 SCC 627. It is more so when the challenge to acquisition has been laid more than a decade after the Preliminary Notification was issued and there is absolutely no explanation for the long delay brooked in knocking at the doors of Writ Court.
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008
(g) All the above having been said, two things stare at the culpable action of the State and the KIADB: Firstly, it hardly needs to be stated that when a public function/duty is to be discharged by a statutory authority, even when no time period is prescribed, the same has to be done within a reasonable time vide NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA 2017 SCC Online SC 1862. Decades have passed since the acquisition was notified, not even a rupee from the compensation has reached the hands of land losers. In a Welfare State, this is not a happy thing to happen. All this cannot go unscathed; some compensatory relief needs to be granted to the land owners for the culpable delay attributable to the State & the KIADB. Secondly, the acquisition having been accomplished by issuance of the Final Notification, the lands have vested in the State; in W.P.No.3539/2006, admittedly no award has been passed; in other cases, although awards have been passed, nothing is placed on record to show that the award notices were sent to the land owners calling upon them to take the compensation.
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008
(h) In what circumstances, the compensation came to be deposited by the KIADB in the jurisdictional court remains a mystery wrapped in enigma. The right to property although is not a fundamental right after the 42nd Amendment, it has been given constitutional guarantee u/a 300A. If the State & its instrumentalities want to take private property, that can be done in p ublic interest and subject to payment of compensation. Not passing the award virtually amounts to non-payment of compensation; similarly, depositing the compensation amount in the court without informing the land owners, virtually amounts to withholding the compensation. All this militates against the spirit of Article 300A of the Constitution.
(i) A Coordinate Bench of this Court in W.P.No.108802/2016 (LA-KIADB) etc., between SREE S.SEENAPPA AND OTHERS VS. STATE AND OTHERS, disposed off on 18.7.2022, in more or less a similar fact matrix, has extended some additional benefit to the land losers on the lines of section 24 of the 2013 Act, in special
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008 circumstances, where constitutional guarantees are breached, the State & its instrumentalities cannot go with impunity. An argument to the contrary cannot be sustained without undermining the sanctity attached to the guarantee of property rights. The aggrieved citizens approach the court to have some redressal to their grievances much banking upon the spirit of constitutional guarantees. The constitutional courts cannot turn them away by quoting some jurisprudential theories. Justice Oliver Wendell Holmes in DAVIS vs. MILLS, 194 U.S. 451 (1904) had observed: "Constitutions are intended to preserve practical and substantial rights, not to maintain theories ...".
(j) At times courts have to individualize justice keeping in view the framework of law and exploring all possibilities of working out some just & reasonable remedy in the facts & circumstances of the case. Viewed from this angle, this Court is of a considered opinion that for the delay brooked in passing the award and paying the compensation, the owners of the petition lands should be
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008 given an additional interest at 12% per annum to be reckoned from the date of the Final Notification or taking of the possession of the land, whichever is later. The extra financial burden incurred by the BDA on account of this may be made good by recovering the same in accordance with law from the erring officials.
In the above circumstances, this Court makes the following:
ORDER
(i) These writ petitions succeed in part, although the challenge to the acquisition of the lands in question fails;
(ii) Wherever no awards are passed, the jurisdictional authorities shall pass the awards in accordance with law, within a period of two months and pay compensation within eight weeks thereafter;
(iii) Wherever, already awards have been passed, the respondent-KIADB shall disburse or cause to be disbursed the compensation amount within eight weeks;
and
(iv) The respondent-KIADB shall pay an additional interest of 12% per annum on the compensation amount from the date the Final Notification was issued or the possession of the lands was taken, whichever is later. This additional amount after being paid to the land
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C/W WP Nos. 3539/2006, 4301/2008,4302/2008 owners concerned, may be recovered from the erring officials in accordance with law;
Now, no costs.
Sd/-
JUDGE DS