Karnataka High Court
Sri Narayanappa vs The State Of Karnataka on 29 March, 2023
Author: Krishna S Dixit
Bench: Krishna S Dixit
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WP No. 40748 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
TH
DATED THIS THE 29 DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 40748 OF 2012 (LA-KIADB)
BETWEEN:
1. SRI. NARAYANAPPA,
S/O LATE GOWDARAPILLAPPA,
AGED ABOUT 66 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE,
PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
2. SRI. RAMACHANDRAPPA,
S/O LATE GOWDARA PILLAPPA,
AGED ABOUT 63 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
Digitally signed
by SHARADA 3. SRI. SEETHARAMU,
VANI B
S/O LATE GOWDARA PILLAPPA,
Location: HIGH
COURT OF AGED ABOUT 63 YEARS,
KARNATAKA R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
4. SRI. THAMMANNA,
S/O LATE GOWDARA PILLAPPA,
AGED ABOUT 58 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
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WP No. 40748 of 2012
5. SRI. DEVARAJU,
S/O LATE GOWDARA PILLAPPA,
AGED ABOUT 56 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
6. SRI. MANJUNATH,
S/O LATE S.N. ANJANAPPA,
AGED ABOUT 35 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
7. SMT.KRISHNAMAMMA,
W/O LATE S.N. ANJANAPPA,
PETITIONER NO.7 DEAD & REP BY 7A TO 7E
7A. SMT.NANJAMMA,
AGED ABOUT 48 YEARS,
W/O ANJANAPPA,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
7B. SMT. MUNIRATHNAMMA,
AGED ABOUT 46 YEARS,
W/O NARAYANASWAMI,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
7C. SRI. MANJUNATH,
S/O ANJANAPPA,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
7D. SMT. MALA,
W/O SRINIVAS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
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WP No. 40748 of 2012
7E. SMT. MUNIKRISHNAMMA,
S/O ANJANAPPA,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
8. SMT. NANJAMMA,
D/O LATE S.N. ANJANAPPA,
AGED ABOUT 40 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
9. SMT. MUNI LAKSHMAMMA,
D/O LATE S.N. ANJANAPPA,
AGED ABOUT 36 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
10. SMT. MUNIRATHNAMMA,
D/O LATE S.N. ANJANAPPA,
AGED ABOUT 33 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
...PETITIONERS
(BY SRI.V LASKHMI NARAYANA, SENIOR COUNSEL A/W
MISS. ANUSHA L., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
TO HOUSING AND URBAN DEVELOPMENT
DEPARTMENT, M.S. BUILDING, BANGALORE-01.
2. THE STATE OF KARNATAKA,
REP BY ITS PRINCIPAL SECRETARY
TO HOUSING AND URBAN DEVELOPMENT
DEPARTMENT, M.S. BUILDING,
BANGALORE-01.
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WP No. 40748 of 2012
3. THE BANGALORE DEVELOPMENT AUTHORITY.,
SANKEY ROAD, KUMARA PARK WEST,
BANGALORE-20.
4. THE KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD,
NRUPATHUNGA ROAD, BANGALORE-01.
REP BY ITS MANAGING DIRECTOR.
5. M/S LAKEVIEW TOURISM CORPORATION,
BANGALORE, BY ITS PARTNER,
SRI. P. DAYANAND PAI,
NO.10, 1, LAKSHMINARAYANA COMPLEX,
GROUND FLOOR, PALACE ROAD,
BANGALORE-01.
...RESPONDENTS
(BY SRI.R SRINIVASA GOWDA, AGA FOR R1 & R2;
SRI.G LAKSHMEESH RAO., ADVOCATE FOR R3;
SRI.B B PATIL., ADVOCATE FOR R4;
SRI.BADRI VISHAL., ADVOCATE FOR R5;
SRI.H SRINIVAS RAO., ADVOCATE FOR R6 & R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE PRELIMINARY NOTIFICATION [SECTION 3[1] &
1[3] OF KIAD ACT] DATD 25.11.2002 AND FINAL
NOTIFICATION DATED 11.5.2004 ISSUED BY THE SECOND
RESPONDENT UNDER KARNATAKA INDUSTRIAL AREA
DEVELOPMENT ACT VIDE ANNEXURES-C & D RESPECTIVELY SO
FAR AS THE PETITION LAND IS CONCERNED AS IT IS A MALA
FIDE EXERCISE OF POWER AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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WP No. 40748 of 2012
ORDER
Petitioners claiming to be the owners of the lands in question are knocking at the doors of writ court for laying a challenge to the acquisition proceedings of the year 2002 done under the provisions of the KIAD Act, 1966. They have also sought for a direction for the dropping of the subject lands from the acquisition process.
2. Learned Sr. Advocate appearing for the petitioners urges the following points in support of the petition prayers:
(a) No acquisition can be done for the benefit of a partnership firm comprising of only the companies incorporated under the provisions of the Companies Act, 1956.
(b) No acquisition can be done under the 1966 Act in view of prohibition enacted in the 2nd Proviso to clause (1) of Article 31A of the Constitution since the said Act does not provide for payment of market value as compensation.-6- WP No. 40748 of 2012
(c) The subject acquisition having not being accomplished within a reasonable period, the same is liable to be voided on the doctrine of lapse.
(d) If the acquisition is to be upheld, then in terms of decisions of the Coordinate Benches, the compensation should be determined and paid as stated under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which is incorporated by substitution in Sec.30 of the 1966 Act.
3. Learned AGA appearing for the State and the learned Sr. Panel Counsel appearing for the KIADB & BDA, and learned advocates appearing for the private respondents vehemently oppose the petition making submission in justification of the acquisition. They also offer explanation as to why the award could not be passed. Learned KIADB Advocate points out that the judgments of the two Coordinate Benches have been stayed by the Division Bench in writ appeals. Lastly it is contended that court need not consider the constitutional question urged on behalf of the petitioners in the absence -7- WP No. 40748 of 2012 of necessary plea and evidentiary material for invoking the provisions of Article 31A of the Constitution.
4. Having heard the learned advocates appearing for the parties and having perused the petition papers, this court declines challenge to the acquisition, and grants a limited indulgence in the matter as under and for the following reasons:
(a) The first contention urged on behalf of the petitioners that the private respondent Partnership is legally impermissible since incorporated companies cannot be partners and therefore, the acquisition initiated at their instance and for their benefit is unsustainable, is no longer res integra. A Division Bench of this Court in R.P. No. 363/2015 in W.A. No. 333/2013 between C. PRAKASH vs. STATE & OTHERS disposed off on 06.04.2018 having considered the same contention advanced by the same Sr. Advocate has negatived the same. Therefore, the Division Bench decision of the Calcutta High Court in GANGA METAL REFINING COMPANY vs. COMMISSIONER OF -8- WP No. 40748 of 2012 INCOME TAX AIR 1967 CAL 429, arguably holding a view in variance, would not come to aid of the petitioners.
Learned Panel Counsel for the KIADB is more than justified in contending that the role of the partnership firm in question comes into play only after the State acquired the land and handed it to his client, who may eventually decide to make allotment of the land or part thereof to the aspirants in accordance with the extant policy.
(b) The second contention of learned Sr. Advocate appearing for the petitioners that his clients have the constitutional protection under second Proviso to Article 31A and therefore, their property could not have been acquired under the 1966 Act, does not merit a deeper examination in the absence of material particulars in the pleadings about the nature of the subject properties and the factual conditions that warrant the invocation of this provision. The 2nd Proviso to Article 31A added by the 17th Amendment 1964 is in fact a Proviso to sub-clause (a) of Clause (1) since its application is confined to a law for 'the -9- WP No. 40748 of 2012 acquisition of an estate' and that it is not concerned with any of the other sub-clause of Clause (1). In D.D.Basu's 'Shorter Constitution of India', 15th Edition, Volume I, at pages 525 - 26 it is stated:
"3. Under the 2nd Proviso - the person whose land is 'acquired' is entitled to 'compensation' being not less than the market value of the land, provided (a) such land is comprised in an estate which is being acquired;
(b) it is under his personal cultivation; and (c) the quantum of land so held by him is within the ceiling limit of holding prescribed by the competent Legislature. Mere restriction on the incidence pf the lease or ownership is not acquisition within the meaning of Article 31A.
Hence, question of compensation does not arise...
4. ... The underlying idea of this Proviso is that a person who is cultivating land within the ceiling limit personally, which is the source of his livelihood, should not be deprived of that land under any law protected by Article 31A unless compensation at the market rate is given, and this condition must be complied with if the State has, in substance, acquired all the rights in the land for its own purposes, even if the title remains with the owner. But the Proviso is not attracted unless the beneficiary of such acquisition is the State".
(c) It hardly needs to be stated that the acquisition under the 1966 Act is not for the benefit of the State as such; after acquisition, the lands are handed to the KIADB
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WP No. 40748 of 2012which in turn will allot to others including the private entities "for the purpose of promoting establishment and orderly development of industries", to borrow the Preambular terminology of the 1966 Act. Added, there is no challenge to the provisions of the Act that empower acquisition of the land and payment of compensation. The Petitioners do not fall under the class of persons intended to be protected under the Second Proviso to Article 31A(1) of the Constitution vide Apex Court decision in AJIT SINGH vs. STATE OF PUNJAB 1967 (2) SCR 143 wherein it has been observed:
"...The underlying idea of this proviso seems to be that a person who is cultivating land personally, which is his source of livelihood, should not be deprived of that land under any law protected by art. 31A unless at least compensation at the market rate is given. In various States most of the persons have already been deprived of land beyond the ceiling limit on compensation which was less than the market value. It seems to us that in the light of all the considerations mentioned above the words "acquisition by the State" in the second proviso do not have a technical meaning ..."
(d) The third contention that the enormous delay between the Preliminary Notification dated
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WP No. 40748 of 201225.11.2002 issued under Section 28(1) and the Final Notification dated 11.05.2004 issued under Section 28(4) of the 1966 Act, renders the acquisition void more particularly when no award has been passed and as a consequence, no compensation has been paid, is difficult to countenance. The scheme of acquisition envisaged under Section 28 of the 1966 Act is much in variance with that of the one contemplated under Sections 4 to 12 of the erstwhile Land Acquisition Act, 1894; in the former, the land will vest in the State once the Final Notification is issued regardless of passing of the award and payment of compensation, unlike under the 1894 Act vide Division Bench decision in W.P No. 17600 between NANDI INFRASTRUCTURE CORRIDOR LTD. vs. STATE OF KARNATAKA, disposed off on 15.06.2011.
(e) Added to the above, no period is prescribed by the Legislature unlike under the 1894 Act, for issuance of the Final Notification after the Preliminary Notification is published. However, this does not mean that in no case the acquisition can be quashed regardless of longevity of
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WP No. 40748 of 2012the delay. In order to press into service delay as a ground for invalidation, the Petitioner has to aver the lapse/negligence on the part of the officials concerned. However, that is not pleaded in the Petition. Lastly, the learned counsel for the KIADB is right in contending that in some what connected cases i.e., W.P.No.17819/2005, W.P.No.40661/2004, W.P.No.7029/2007, W.P.No.8756/2011, etc., there was stay of acquisition proceedings till 19th November, 2012 i.e., the date of the judgment whereby they were disposed off. There was challenge to denotification of certain lands in W.P.No.22888/2010 which is mentioned in the very same judgment. Therefore, the contention of delay in accomplishing the acquisition by passing the award and making the payment of compensation, has to fail. The above apart, petitioner has obtained an interim order having the effect of interdicting the acquisition proceedings all these years. Thus, no interest which otherwise was payable, shall be paid during the stay period, whether compensation is determined under the
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WP No. 40748 of 2012unamended or amended Section 30 of the 1966 Act, and that applies even if post disposal of the subject Writ Appeals compensation needs to be re-determined under the Amended provisions of Section 30 of the 1966 Act.
(f) The last contention of the Petitioners that at least the compensation has to be determined and paid under the provisions of 2013 Act in view of its incorporation in Section 30 of the 1966 Act by virtue of 2022 Amendment dated 04.04.2022, is bit difficult to countenance. In fact, the supporting view of two Coordinate Benches i.e., W.P. No.108802/2016 (LA- KIADB) between SHREE SEENAPPA & OTHERS vs STATE & OTHERS, disposed off on 18.07.2022 (DHARWAD BENCH) & W.P.No.5916/2017 (LA-KIADB) between VENKATARAMANA & OTHERS vs. STATE & OTHERS, disposed off on 01.08.2022, are stated to have been stayed by the Division Benches in the Writ Appeals that are still pending. When a judgment is stayed, ordinarily, it is not prudent to press them into service as a binding rule, since its precedential force is in suspended animation.
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WP No. 40748 of 2012Therefore, much reliance cannot be placed on the said decisions of the Coordinate Benches.
(g) The 2022 Amendment to the 1966 Act incorporates the provisions of 2013 Act cannot be much disputed. However, the said Amendment which employs the expression 'shall be' makes it prospective in operation, notwithstanding the word 'deemed' occurring therein. If the Legislature intended, a retrospective operation, the terminology of the Section would have been a bit different. Therefore, the compensation has to be determined under Section 30 of the 1966 Act which incorporated the provisions of the 1894 Act, even when the said Act has been repealed by the 2013 Act w.e.f. 01.01.2014. This having been said, a clarification needs to be made that in the event, the challenge to the Coordinate Bench judgments fails, then, petitioners too would be entitled to re-determination of the compensation under the 2013 Act. Till that happens, the SLAO of the KIADB has to frame the award under the unamended provisions Section 30 of the 1966 Act and pay/deposit the compensation within an
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WP No. 40748 of 2012outer limit of three months, if the Petitioners establish their credentials as per the standard operating procedure.
In the above circumstances and with the above observations, this Petition is disposed off, costs having been made easy.
This Court places on record its deep appreciation for the able research & assistance rendered by Official Law Clerk/Research Assistant, Mr. Faiz Afsar Sait.
Sd/-
JUDGE Snb/Bsv