Karnataka High Court
Sri. R. Narayana Prasad vs The State Of Karnataka on 5 July, 2017
Author: B.S.Patil
Bench: B.S.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.2262/2016 (LA-BDA)
BETWEEN
SRI R.NARAYANA PRASAD,
AGED ABOUT 72 YEARS,
S/O LATE RANGAIAH,
R/AT NO. 1955, 8TH MAIN,
JUDICIAL LAYOUT,
GKVK POST,
BANGALORE - 560 055. ... PETITIONER
(By Sri C.M.NAGABUSHANA, ADV.)
AND
1. THE STATE OF KARNATAKA,
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASA SOUDHA,
DR.AMBEDKAR VEEDHI,
BANGALORE - 560 001.
REP BY ITS SECRTARY.
2. THE BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD,
KUMARA PARK WEST EXTENSION,
BANGALORE - 560 020.
REP BY ITS COMMISIONER.
3. THE ADDITIONAL LAND ACQUISTION OFFICER,
THE BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD,
KUMARA PARK WEST EXTENSION,
BANGALORE - 560 020. ... RESPONDENTS
(By Sri G.LAKSHMEESH RAO, ADV. FOR R2 & R3;
Sri VIJAYAKUMAR A.PATIL, AGA FOR R1)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
PRELIMINARY NOTIFICATION DT.30.07.1977 GAZETTED ON
25.8.1977 UNDER SECTION 17(1) OF THE BDA ACT, 1976 AT
ANNEXURE-A ISSUED BY THE R2 & NOTIFICATION DT.10.5.1978
AT ANEXURE-B ISSUED BY THE R1 IN RESPECT OF THE PETITION
SCHEDULE PROPERTY IS CONCERNED AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. This writ petition is filed seeking a declaration that acquisition proceedings initiated in respect of 1 acre 9 guntas out of 2 acres 2 guntas of land comprised in Sy.No.329/3 (old No.158/3) situated at Kempapura Agrahara, Bangalore North Taluk vide preliminary notification dated 30.07.1977 issued under Section 17(1) of the Bangalore Development Authority Act, 1976 followed by final notification dated 02.03.1978 gazetted on 10.05.1978 have lapsed due to non-payment of compensation in respect of the acquired land.
2. Briefly stated facts involved are, the land in question was originally owned by father of petitioner. Petitioner's father had got the land converted and leased it for running a petrol station and a touring talkies viz., Maruthi Chitra Mandira. His case is that though preliminary notification was issued as back as in the year 1977 followed by final declaration in the year 1978 and 3 although an award was passed on 26.09.1980 respondents did not pay compensation determined as per the award; as a result petitioner has been deprived of his land without due process of law and without paying compensation as required under the provisions of the Land Acquisition Act, 1894 (for short 'the Act').
3. Learned counsel appearing the petitioner - Sri C.M. Nagabhushana contends that though right to property is not a fundamental right, it is recognized as constitutional right as per Article 300A of the Constitution of India and has been regarded as human right of the citizen, therefore, the same cannot be deprived of without paying compensation to the land owner. It is urged that though respondents claim to have passed general award in respect of the land acquired, till date neither compensation has been paid to petitioner nor the same has been deposited before the competent Civil Court as required under the provisions of Sections 30 and 31 of the Act. It is also urged by the learned counsel that the acquisition proceedings have not been completed by taking over possession of the land and paying compensation or depositing the same before the competent Court even after lapse of nearly 39 years from the date of acquisition of the land. Hence, placing reliance on the 4 judgments of the Apex Court, he contends that acquisition proceedings have lapsed on account of the omission on the part of the State and the BDA in not completing the same by taking over possession and paying compensation.
4. It cannot be disputed that the land owner cannot be deprived of his land without paying due compensation as per law nor can he be made to indefinitely wait for receiving the compensation. It is in this background, provision has been made under Sections 30 and 31 of the Act enjoining the competent authority to pay compensation to the persons entitled for compensation as per the award unless prevented by certain contingency such as dispute regarding title to receive compensation or with regard to apportionment of the same, in which event, the collector is required in law to deposit the amount of compensation before the Court to which reference under Section 18 of the Act would be submitted. In the instant case, the land acquisition officer has not deposited the amount of compensation before the Civil Court. Indeed it is not the case of the BDA that as there was some dispute with regard to the entitlement of petitioner, they were unable to disburse the amount. Nothing is also stated as to what prevented the BDA 5 from depositing the amount before the Civil Court. It emerges that despite lapse of nearly 40 years from the date of final declaration acquiring the land, the BDA has not paid compensation to the land loser who is an innocent citizen. The acquisition proceedings have not been completed as no compensation is paid to him. Therefore, it emerges that the BDA for whose benefit the land is acquired has not acted in a reasonable manner in completing the acquisition proceedings.
5. It is well established by a catena of decisions in the cases of RAM CHAND & OTHERS VS UNION OF INDIA & OTHERS -
(1994)1 SCC 44; and SMT. ANDALAMMA VS STATE OF KARNATAKA & OTHERS - 2002(4) KCCR 236 that the authority who is vested with a power has to act in a reasonable manner while exercising the power. Reasonable exercise of power includes exercise of the same within a reasonable period. If the award is not passed within a reasonable period, the acquisition proceedings stand lapsed and shall be treated as having been abandoned. In the instant case, though the award has been passed within a reasonable period i.e., within a period of two years from the date of final declaration, the fact remains that without any justification, for the last nearly 39 years 6 compensation has not been paid to the land owner. There is no material placed before the Court to show that though the amount of compensation was offered to the petitioner he has deliberately refused to receive the same or omitted to receive the same. In such circumstances, if petitioner is now asked to take the compensation along with interest as is provided under Section 34 of the Act, then, it would tantamount to forcing the petitioner to receive the market value of the land as obtained during the year 1977, to be precise, as on 25.08.1977 when the preliminary notification was published in the gazette after 40 years. This consequence cannot befall on him for no fault on the part of petitioner. It is for this reason, the principle of law, well enunciated in several decisions, has emerged to the effect that if the acquiring body fails to discharge its duties to ensure completion of acquisition proceedings within a reasonable period, the acquisition shall stand lapsed. The acquisition proceedings cannot be said to have completed until the acquiring body discharges its duties as enjoined under the provisions of the Bangalore Development Authority Act or the Land Acquisition Act as may be applicable.
7
6. In the instant case acquisition is for the benefit of the BDA. The BDA is enjoined in law as per Sections 30 and 31 of the Act which is made applicable to the acquisition under the BDA Act to deposit the compensation before the Civil Court in case there is any dispute regarding entitlement and if there is no dispute regarding entitlement it goes without saying that the BDA is under an obligation to pay compensation to the persons entitled soon after passing of the award by issuing notice of award and calling upon him to receive the compensation. Indeed, as per Sections 36 of the BDA Act, provisions of Land Acquisition Act are made applicable for acquisition under the BDA Act insofar as they are applicable. As regards passing of the award and payment of compensation, no separate provisions are made under the BDA Act.
7. Hence, contention urged by the learned counsel appearing for the BDA - Sri G. Lakshmeesh Rao that the right of the land owner is only to seek interest for the delayed period in paying the compensation as per Section 34 of the Act and not to seek a declaration that the acquisition proceedings have lapsed because of non-payment of compensation, cannot be countenanced. It is not the case of the BDA that compensation 8 was deposited and possession was taken over and that the land was utilised for formation of sites in Chandra Layout for which the land was notified for acquisition. Though it is contended by the learned counsel for the BDA that notification under Section 16(2) of the Act was issued and possession of land has been taken over by drawing up mahazar, fact remains that the land has not been utilized for the purpose of formation of layout for which it was notified. Even the submission made stating that actual possession of the land had been taken over is belied by the judgment and decree passed in RFA.No.646/2001 disposed of on 16.09.2004 which is produced at Annexure-F. As is evident from the said judgment, decree of injunction granted in favour of petitioner-landowner restraining the BDA from dispossessing the petitioner is confirmed reserving liberty to the BDA to dispossess the petitioner only in accordance with law and in the manner known to law. It is apparent from the said judgment which is passed in the RFA filed by the BDA that assertions made by the BDA that it had taken over possession of the land from the petitioner has been negatived and the BDA was restrained from illegally dispossessing the petitioner. Even after this judgment passed in the year 2004, the BDA has neither paid the compensation, nor taken over possession of the 9 land in the manner known to law. Therefore, it is apparent that the acquisition proceedings have not been completed and the land has not been made use of for the purpose for which it was acquired.
8. Hence, this petition is allowed. Acquisition proceedings in the instant case are declared as lapsed.
Sd/-
JUDGE VP/PKS