Karnataka High Court
Sri Ramesh M Patel vs The Government Of Karnataka on 15 March, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO. 32991/2016 (LA-KIADB)
BETWEEN :
SRI RAMESH M. PATEL
SON OF SRI MUJI PATEL,
AGED 57 YEARS
RESIDING AT NO 180,
AMRIT VILLA, 1ST FLOOR,
CANARA BANK COLONY
NAGARABHAVI MAIN ROAD,
BANGALORE - 560 072.
... PETITIONER
(BY SRI. S V BHAT, ADVOCATE)
AND :
1. THE GOVERNMENT OF KARNATAKA
DEPARTMENT OF INDUSTRIES & COMMERCE
M S BUILDING, BANGALORE - 560 001
REPRESENTED BY ITS SECRETARY.
2. THE SPECIAL LAND ACQUISITION OFFICER
KARNATAKA INDUSTRIAL AREA DEVELOPMENT
BOARD
III FLOOR, KHENI BUILDING, III CROSS
GANDHINAGAR, BANGALORE - 560 009.
3. THE KARNATAKA INDUSTRIAL AREA DEVELOPMENT
BOARD, II FLOOR, RASHTROTHANA PARISHAT
2
BUILDING NRUPATHUNGA ROAD, BANGALROE -
5600 01
REPRESENTED BY ITS CHAIRMAN.
4. M/S NANDI INFRASTRUCTURE CORRIDER
ENTERPRISES LIMITED, NO.1
MIDFORD GARDEN, OFF M.G. ROAD,
BANGALORE - 560 001.
... RESPONDENTS
(BY SRI.SESHU.V, HCGP FOR R1;
SRI B.B. PATIL, ADVOCATE FOR R2 AND R3;
SRI. R.V. NAIK, SENIOR ADVCATE FOR
SRI. NITIN PRASAD, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTICE DATED 16.3.2016 VIDE ANNEXURE-V
ISSUED UNDER SECTION 28(6) OF THE KARNATAKA
INDUSTRIAL AREA DEVELOPMENT ACT, 1966.
THIS WRIT PETITION COMING ON FOR PRLIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner, who asserts ownership of the property measuring east to west 130 feet and north to south 22 feet bearing BBMP Municipal No.304/3, ward No.41, Mysuru Road, Bengaluru [the Subject Property], has sought for quashing of the notice dated 16.3.2016 issued under Section 28(6) of the Karnataka Industrial 3 Areas Development Act, 1966 (for short, 'KIAD Act' ). The petitioner has filed this petition after having succeeded twice in the earlier proceedings.
2. The petitioner at the first instance commenced the suit in O.S.No.1724/2009 for permanent injunction against the State as well as the Karnataka Industrial Areas Development Board (KIADB). The State was not represented in the suit. Though the KIADB was represented, it did not contest the suit. Thereafter, the suit is decreed on 01.04.2013 granting permanent injunction restraining both the State and KIADB from interfering with the petitioner's possession of the said property. The civil Court in decreeing the suit has observed as follows:
"But so far as the interference is concerned, there is no material to show that the defendants interfered with the plaintiff's possession except that they might have visited the property and inspected it might be for the purpose of acquiring 4 the same. That does not amount to interference to the rights of the plaintiff or possession. If the property in question is required for any public purpose that can be acquired by both the defendants under any scheme of the Government. Thereby, such power of the Government cannot be interfered with. Thereby, this court finds that the plaintiff is in possession of the property and his possession is to be protected till the defendants take possession of the property in due process of law. Hence, point No.1 is answered in the affirmative and point No.2 is answered partly in the affirmative."
3. The petitioner has thereafter commenced the writ petition in W.P.No.58775/2014 (LA-KIADB) and this time for a direction to the State and the KIADB not to dispossess him from the subject property relying upon the preliminary notification and final notification issued in the year 1998 and 2008 respectively under the KIAD Act. This writ petition is disposed of by order dated 16.2.2015 and the relevant portion of this Court's order reads as under:
5
"Prima facie, I am of the view that the reliefs sought by petitioner are contradictory. On the one hand, petitioner has sought a direction against respondents not to dispossess him from the scheduled property. This is based on judgment and decree passed by XV Addl. City Civil and Sessions Judge, Bengaluru, in O.S.No.1724/2009 on 01.04.2013, wherein a decree of permanent injunction has been issued against respondents herein. On the other hand, petitioner himself has offered scheduled property for purpose of acquisition. If indeed there is a threat to the scheduled property by or from respondents or their agents or others, then in that case, petitioner could always seek execution of judgment and decree dated 01.04.2013 passed in O.S.No.1724/2009. On the other hand, if petitioner by ignoring the said judgment and decree is willing to offer his land for the purpose of acquisition, then he is at liberty to make a representation to respondents offering scheduled property for acquisition. So long as judgment and decree in O.S.No.1724/2009 dated 01.04.2013 is in operation, there cannot be any threat to the scheduled property nor can any direction be issued to respondents to initiate acquisition. It is for petitioner to bypass judgment 6 and decree passed by Civil Court and offer the scheduled property for acquisition, in which case, he is at liberty to make a representation to that effect to respondent authorities.
Reserving the aforesaid liberty to petitioner as also reserving liberty to petitioner to execute judgment and decree dated 01.04.2013 in case there is any threat to the scheduled property from respondents or their agents, writ petition is dismissed"
4. It is undisputed that the preliminary notification refers to 1834.50 square feet in CTS No.629 and the final notification refers to CTS No.16/629 (instead of CTS No.629 mentioned in the preliminary notification) and in addition, the final notification refers to the Municipal Nos.304/1, 304/1-1 and 319. It is undisputed that the petitioner's name is not mentioned either in the preliminary notification or in the final notification.
7
5. The petitioner, who purchased the subject property viz., the property bearing municipal No.304/3 under the Sale Deed dated 24.01.1998, has addressed, as is obvious, on his own volition a letter dated 15.12.2008 to the KIADB stating that he had learnt certain adjacent lands are being acquired and he had not received any information. The petitioner has also submitted all the documents requesting for information, including the information on the compensation that would be payable to the land losers.
6. It is after this letter dated 15.12.2008, the petitioner has commenced the aforesaid suit in O.S.No.1724/2009. At this stage, it must be mentioned that the KIADB has issued Corrigendum Notice dated 27.08.2012, and this perhaps is consequent to the orders of this Court in the writ petition filed by the owners of one of the properties adjacent to the subject property in W.P. No. 31542/2010, which is disposed of 8 on 15.06.2021. Though there is no change in the name of the khatedars, the municipal numbers as mentioned in the final notification are changed inasmuch as Municipal Nos.304/2 and 304/3 are included. This Court must also observe that this change vide the Corrigendum Notice dated 27.08.2012 is without change in the total extent acquired viz., 1834.50 square meters. According to the documents relied upon by the KIADB and the beneficiary, which includes certain sketches that are not disputed by the petitioner, this Corrigendum Notice dated 27.08.2012 brings the subject property within the fold of acquisition. The petitioner's property i.e., the subject property bears Municipal No. 304/3.
7. Sri S.V.Bhat, learned counsel for the petitioner, submits that KIADB cannot rely either on the preliminary/final notifications or the Corrigendum Notice issued on 27.08.2012 to contend that the subject 9 property is acquired and therefore, the impugned notice under Section 28(6) of the Act is justified. Sri. S V Bhat, while emphasizing that the Corrigendum Notice dated 27.08.2012 does not include the petitioner's name and that no acquisition proceedings are initiated after disposal of this Court's order in W.P.No.58775/2014, submits that the petitioner has always endeavored to understand whether the subject property is part of the acquisition proceedings.
8. On the other hand, Sri R.V.Naik, learned Senior Counsel, who appears for the beneficiary and Sri B.B.Patil, learned counsel for the KIADB, point out that the petitioner has secured the revenue entries for the subject property only after the preliminary/final notifications. The petitioner therefore, cannot contend that the notifications/corrigendum notice would be defective insofar as the subject property. They also submit that even prior to the Corrigendum Notice dated 10 27.08.2012, notices under Sections 9 and 10 of the Land Acquisition Act, 1894 are issued and the petitioner has acknowledged the same. As such, the petitioner cannot deny knowledge of the acquisition of the subject property under the present acquisition proceedings, and the petitioner also cannot contest the impugned notice under Section 28(6) of the KIAD Act on the ground that he had no notice of the acquisition. However, both the learned counsel for the petitioner and the learned Senior Counsel, as also the learned counsel for the KIADB, do not dispute that after the Corrigendum Notice dated 27.08.2012, the petitioner has not been issued with any notice.
9. The petitioner, even as mentioned in his letter dated 15.12.2008, was keen on knowing the quantum of compensation that would be paid to him if the subject property was acquired, and this is also seen in the submission before this Court in WP 11 No.58775/2014 which becomes the basis for final disposal with liberty to the petitioner to make a representation for acquisition of the subject property. Sri S.V.Bhat also submits that the petitioner has always endeavored to understand whether the subject property is part of the acquisition proceedings because that would be material insofar as the compensation that would be payable by the respondents. It follows from this statement that the petitioner does not contest that the respondent must have the benefit of use of the subject property pursuant to the present acquisition proceedings and consequential payment of the compensation, and when this is put to Sri. S V Bhat, the learned counsel for the petitioner, he does not contest the same.
10. Therefore, the questions to be considered for the disposal of this petition would be: whether the petitioner would be entitled for compensation upon 12 yielding the subject property to the respondents' use pursuant to the acquisition proceedings, and if the petitioner is entitled to compensation, the manner in which the compensation has to be computed because it is admitted that insofar as the subject property, neither proceeding under Section 29(2) nor 29(3) of the KIAD Act is completed.
11. It cannot be gainsaid that no property can be utilised by any instrumentality of the State, or the beneficiary under such instrumentality, without paying just compensation. Therefore, the first question does not require any dilation and must be held in favour of the petitioner. Insofar as the other question, what stands out, and which is recorded above, is that the authorities have admittedly not initiated proceedings insofar either under Section 29(2) or 29(3) of KIAD Act as regards the subject property. Admittedly, the possession of the subject property continues to be with 13 the petitioner who also has the benefit of the interim order apart from the decree in O.S.No.1724/2009.
12. Therefore, the KIADB, even before it can take possession of the subject property in view of this Court's finding that the petitioner is willing to yield possession of the subject property pursuant to the acquisition proceedings, must necessarily conduct appropriate enquiry to decide whether there could be consensus under Section 29(2) of the KIAD Act, and if consensus is not achieved, then to pass general award as contemplated under Section 29(3). The petitioner must be at liberty, both during the proceedings under Section 29(2) and proceedings consequent to an award under Section 29(3) of the KIAD Act, to contend that the compensation must be determined on the basis of the market value of the subject property either as of the date of consent award or the date of delivery of possession.
14
13. It must immediately be observed that the petitioner's claim in this regard should be necessarily considered by the concerned KIADB in the light of its own stand that the property is indisputably brought into the fold of acquisition by issuance of the Corrigendum on 27.8.2012. It must also be observed that if the date of corrigendum viz., 27.8.2012 is taken as relevant date for the purposes of the market value, the petitioner would undoubtedly be entitled for interest as permissible in law, and if any other date is taken as relevant date for the purpose of market value, interest would only be computed from such date. However, the rival claims in this regard must be considered at the appropriate stage after due opportunities to the petitioner.
In the light of the foregoing, the following: 15
ORDER The petition stands disposed of. It is recorded that the petitioner is willing to surrender possession of the subject property in favour of the respondents pursuant to the subject notifications issued under Section 28(1) and 28(4) of the KIAD Act and the subsequent Corrigendum dated 27.08.2012, and consequentially the respondents will be entitled to utilise the subject property subject to the following conditions:
(i) The petitioner shall file a representation enclosing a certified copy of this order with the Special Land Acquisition Officer, KIADB for holding an enquiry for achieving consensus as contemplated under Section 29(2) of KIAD Act and if the consensus is not achieved for any reason even after due process, the Special Land 16 Acquisition Officer, KIADB will be at liberty to pass necessary orders under Section 29(3) of the KIAD Act within eight [8] weeks from the date of receipt of certified copy of this order.
ii) If consensus is not achieved and general award is passed under Section 29(3) of the KIAD Act, the respondents shall ensure that the amount, according to such award, is deposited at the earliest, and the respondents shall be at liberty to take possession of the subject property only upon tender of such determined amount to the petitioner or deposit of the same and not otherwise;
(iii) It would be needless to observe that if the petitioner is aggrieved by the determination under Section 29(3) of the 17 KIAD Act, he would be at liberty to avail other statutory remedy as permissible in law and it is made clear that this Court has not observed on the relevant date to decide the market value of the subject property and that must be decided at the appropriate stage by the concerned in the light of the rival submissions.
Sd/-
JUDGE SA/-
Ct:sr