Karnataka High Court
M/S. Reli-E- Marg Software Consultants ... vs The Land Acquisition Officer on 23 September, 2019
Author: B.Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2019
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.8516/2017(GM-KIADB)
BETWEEN:
M/S. RELI-e- MARG SOFTWARE
CONSULTANTS PVT. LTD.,
1/SMT, 2ND FLOOR,
SAMRAT & GANGANA COMPLEX,
UDAYARAVI ROAD, KUVEMPUNAGAR,
MYSORE-570023.
REP.BY ITS MANAGING DIRECTOR
SRI NARYANA MANDAYAM
... PETITIONER
(BY SRI A. MADHUSUDHANA RAO, ADVOCATE)
AND:
1. THE LAND ACQUISITION OFFICER
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD (KIADB)
MYSORE-570 023.
2. THE JOINT DIRECTOR
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD (KIADB)
MYSORE-570 023.
3. THE DEVELOPMENT OFFICER
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD (KIADB)
2
ZONAL OFFICE, KRS ROAD
MYSORE-570 016.
4. THE CIRCLE INSPECTOR
VIJAY NAGAR POLICE STATION,
VIJAY NAGAR,
MYSORE-570 023.
5. THE ASSISTANT COMMISSIONER,
MYSORE SUB DIVISION,
MYSORE-570023.
6. THE DEPUTY COMMISSIONER,
MYSORE DISTRICT,
MYSORE-570 005.
7. SRI BASAVARAJ
S/O VENKATEGOWDA
AGED ABOUT 36 YEARS
8. SRI MAHESHA,
S/O VENKATEGOWDA,
AGED ABOUT 41 YEARS
9. SMT. MANJULA
D/O VENKATEGOWDA,
AGED ABOUT 39 YEARS,
10. SMT. VANAJAKSHI
D/O VENKATEGOWDA
AGED ABOUT 34 YEARS
11. SRI SUNESHA,
S/O VENKATEGOWDA,
AGED ABOUT 43 YEARS
12. SMT. JAYALAKSHMI,
D/O VENKATEGOWDA,
AGED ABOUT 32 YEARS,
3
13. SRI VENKATARAM
S/O VENKATEGOWDA
AGED ABOUT 31 YEARS
RESPONDENTS 7 TO 13 ARE
R/AT DOOR NO.550 IN SY.NO.92
HOOTAGAHALLI VILLAGE,
KASBA HOBLI, MYSORE TALUK
MYSORE DISTRICT.
MYSORE-570 027.
... RESPONDENTS
(BY SRI ASHOK N. NAYAK, ADVOCATE FOR R1-R3;
MS. NILOUFER AKBAR, AGA FOR R4 TO R6;
SRI R.S. RAVI, ADVOCATE FOR R9 & R12;
SRI G.A. SRIKANTEGOWDA, ADVOCATE FOR R7,R8, R11 & R13;
VIDE ORDER DATED 23.11.2018 NOTICE TO R1 IS HELD
SUFFICIENT)
......
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT R-1
TO 6 TO REMOVE THE ENCROACHMENTS ON THE LAND IN
SY.NO.92/2 MEASURING 2 ACRES, 22 GUNTAS SITUATED AT
HOOTAGAHALLI VILLAGE AND TO CONSTRUCT A COMPOUND
WALL AROUND THIS, AND TO DIRECT R-1 TO 3 TO
IMMEDIATELY HAND OVER THE VACANT INDUSTRIAL SITE OF
THE SAID INDUSTRIAL SITE IN SY.NO.92/2 MEASURING 2
ACRES, 22 GUNTAS SITUATED AT HOOTAGAHALLI VILLAGE, OF
MYSORE TALUK, AND DISTRICT TO THE PETITIONER, ALLOW
THIS W.P. WITH COSTS.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
4
ORDER
The petitioner - Company, which claims to be an allottee under the allotment letter dated 28.10.2008 issued by the Karnataka Industrial Areas Development Board ('KIADB' for short) is before this Court for a writ of mandamus directing the Respondent Nos.1 to 6 to remove the encroachments on the land in Sy.No.92/2 measuring 2 acres and 22 guntas situated at Hootagahalli village and to construct a compound wall around this and to direct the Respondent Nos.1 to 3 to immediately hand over the said vacant industrial site in favour of the petitioner and allow the writ petition with costs.
2. It is the case of the petitioner that it has been allotted the land bearing Sy.No.92/2 measuring 2 acres and 22 guntas situated at Hootagahalli village by the 1st respondent - KIADB for establishing an industry. Accordingly, allotment letter came to be issued on 28.10.2008. The preliminary and final notifications in respect of the said land came to be 5 issued on 5.5.1997 and 26.11.2005 respectively. It is further case of the petitioner that the original owner Sri Venkate Gowda filed Writ Petition No.2570/2006 (LA-KIADB) before this Court challenging both the preliminary and final notifications, even though he has sold the said land in favour of Sri Harilal M. Patel in the year 1984. This Court considering the entire material on record by the order dated 18.8.2008 made in Writ Petition No.2570/2006 dismissed the writ petition and specifically stated at paragraph-6 of the order that, "the learned counsel for the respondent No.2 as well as learned Government Advocate would contend that the petitioner apart from the fact of having no locus standi has also suppressed the relevant material before this Court" and ultimately the writ petition came to be dismissed as devoid of merit.
3. Being Aggrieved the said Order, Venkate Gowda filed W.A.No.1719/2008 which also came to be dismissed by the Order dated 19.07.2010 holding that, it is not in dispute that 6 on 15.06.1984, by way of registered sale deed the land in question was sold in favour of Harilal Patel by the petitioner. The preliminary notification is dated 05.05.1997 followed by the final notification dated 26.11.2005. As on the date of these two notifications, the appellant/petitioner was not the owner of the property and therefore, he could not have maintained the writ petition.
4. It is further case of the petitioner that the purchaser from the original owner, Sri Harilal M Patel also filed W.P. No.13601/2008 challenging the preliminary and final notifications in respect of the property in dispute, which also came to be dismissed by the Order dated 23.06.2009. The said Order has reached finality. It is further contended that the legal representatives of the original owner-Venkate Gowda also filed W.P.No.27355/2010 challenging the very preliminary and final notifications. This Court, by the Order dated 18.04.2011, dismissed the writ petition imposing cost of `50,000/- on the petitioners therein. The said order has 7 reached finality. It is further contended by the petitioner that the KIADB issued possession certificate in favour of the petitioner on 08.07.2011 and an agreement came to be executed by the KIADB on 08.08.2011. It is further brought to the notice of this Court that the Assistant Commissioner, Mysuru Sub Division, Mysuru, by the Order dated 02.07.2011, forfeited the land in question with the State Government on the ground that the original owner alienated the land in favour of the purchaser in the year 1984, in violation of the conditions of occupancy rights and in violation of Sections 79(a) and (b) of the Land Reforms Act. The said Order passed by the Assistant Commissioner was subject matter of Appeal before the Karnataka Appellate Tribunal in Appeal No.813/2012 which came to be allowed on 15.09.2017. It is further contended that the purchaser of the land also filed O.S.No.54/2004 for declaration and permanent injunction which came to be dismissed as not pressed. 8
5. It is further case of the petitioner that respondent Nos.7 to 13 started illegal construction in the land in question. Therefore, the petitioner made several representations to respondent Nos.1 to 3 to get physical possession of the land and to prevent the respondent Nos.7 to 13 from continuing the illegal construction and all efforts made by the petitioner went in vain and respondent Nos.1 to 6 did not come to his aid. The petitioner failed to get possession of the land allotted to him. Therefore, the petitioner is before this Court for the relief sought for.
6. The respondent No.3/KIADB filed objections to the writ petition and contended that the relief sought for in the present writ petition is not maintainable. It is admitted by the KIADB that the State Government issued preliminary and final notifications under Sections 28(1) and 28(4) of the Karnataka Industrial Areas Development Act, 1966 ('KIAD Act' for short) and had acquired the land in Sy.No.92/2 of Hootagahalli, Mysuru Taluk, measuring 2 acres 22 guntas 9 and allotted the same to the petitioner. The KIADB admitted that the possession of the lands was handed over to the petitioner by the Deputy Development Officer of the respondents on 08.07.2011 and a lease-cum- sale agreement was executed by the Assistant Secretary of the respondent in favour of the petitioner, on 08.08.2011. It is further contended that the respondents had not allotted the land to the petitioner in the industrial layout formed by the KIADB. On the other hand, considering the petitioner as Single Unit Complex (SUC), allotted 2 acres 22 guntas of land in Hootagahalli, Mysuru, to the petitioner, pursuant to the Board resolution dated 02.02.2011 and in the Possession Certificate dated 08.07.2011 issued in favour of the petitioner, it is specifically mentioned that the petitioner- Company has to get vacated the unauthorized occupants in the allotted land at their risk and cost. It is further contended that, a reading of the Board Resolution and Possession Certificate makes it clear that the petitioner has to 10 take necessary steps to vacate any unauthorized construction or occupants in the schedule land.
7. It is further contended that the schedule land is acquired by the State Government and after issuance of the final notification under Section 28(4) of the KIAD Act on 26.11.2005, the land vested with the State Government. The Special Land Acquisition Officer, after acquiring the land, handed over the possession to the Development Officer, KIADB, Mysuru. Hence, in view of the lease-cum-sale agreement dated 08.08.2011 executed by the KIADB, the petitioner is in possession of the schedule land and petitioner has got right to remove the unauthorized construction, if any, in the schedule land. It is further stated that, it is true that the petitioner has given letter/ representation to the KIADB vide Annexure-N. As a follow-up action, the KIADB has addressed the letter to the jurisdictional police to take necessary action in the matter and in view of the action taken by the KIADB, it is for the petitioner to take follow up action 11 to remove the illegal construction, if any, in the land allotted to the petitioner and therefore, sought for dismissal of the writ petition.
8. The respondent Nos.7, 8, 11 and 13 filed statement of objections and contended that as per the allotment letter dated 28.10.2008 alleged to have been made in favour of the petitioner by the first respondent, the land is allotted in favour of the petitioner subject to terms and conditions stated therein. The averments made in the writ petition and the documents produced along with the writ petition do not disclose payment of allotment cost indicated in allotment letter within the time stipulated. The condition Nos.4, 5, 5(a) and 8 of the allotment letter indicates that in case of not paying the amount within the time stipulated, the allotment stands automatically cancelled and 25% of the amount paid towards the tentative cost will be forfeited. It is further contended that condition Nos.3(a), 3(b), 3(c) and 3(d) of the allotment letter indicates that the rate of the land is `40 lakhs 12 per acre and the same has to be paid within ninety days. But the documents produced along with the writ petition does not disclose payment of entire amount within the time stipulated. It is further contended that the petitioner claimed right under the lease-cum-sale agreement dated 08.08.2011 said to have been executed by the first respondent permitting the petitioner to make use of the alleged property for industrial purposes. The said agreement indicates that it has been executed in favour of the petitioner after receiving consideration of `25,98,100/-. By a reading of the said document and the allotment letter indicates that the transaction under the said document is in contravention of the terms stipulated in Allotment Letter/Annexure-A. As per Annexure-A, the petitioner shall pay a tentative cost stipulated with ninety days. The same has not been paid. According to the respondents, the total amount payable is `1,02,00,000/-. But the petitioner has paid only `25,98,100/-. The allotment letter was issued on 28.10.2008 but the writ petition is filed in the year 2017, after lapse of 13 more than eight years from the date of allotment letter and therefore, the writ petition is liable to the dismissed on the ground of delay and laches also.
9. It is further contended that respondent Nos.7 to 13 are the legal representatives of deceased Venkate Gowda. The land Tribunal, considering the application filed by the father of late Venkate Gowda in form No.7, by its Order dated 14.03.1989 granted occupancy rights over the land in question and the name of Bundegowda was entered in the record of rights as per M.R.No.11/88. After the death of Bundegowda, the revenue entries have been transferred in the name of his son, late Venkate Gowda. In the year 1984, late Venkate Gowda borrowed some loan from a financier- Mulagi M. Patel, by executing a nominal sale deed, without delivering the physical possession of the land. After receiving back the loan amount and interest of `44,000/- from Venkate Gowda, Bundegowda executed an agreement dated 29.06.1986 in favour of Venkate Gowda acknowledging the 14 receipt of the loan amount, admitting the loan transactions between them. As such, the revenue entries and possession of the land continued with late Venkate Gowda and his sons. It is further contended that, this Court, while dismissing W.P. No.2570/2006 filed by late Venkate Gowda, at paragraphs 6 and 7, made it clear that, "if at all there is any dispute between the petitioner and Harilal Patel, since the petitioner has already instituted a civil suit, it is open to the petitioner to agitate his rights in such other forum and dismissal of this writ petition or observations made shall not come in the way of the petitioner". Therefore, sought to dismiss the writ petition.
10. I have heard the learned counsel for the parties to the lis.
11. Sri A.Madhusudhana Rao, learned counsel for the petitioner contended with vehemence that, when the first respondent-KIADB issued preliminary notification dated 05.05.1997 and final notification dated 26.11.2005 which 15 was subject matter of writ petition filed by the original owner late Venkate Gowda in W.P.No.2570/2006, came to be dismissed by the Order dated 18.08.2008. Subsequently, after dismissal of the said writ petition, KIADB allotted land to the petitioner on 28.10.2008. He also contended that the Writ Appeal filed by late Venkate Gowda came to be dismissed and the said judgment has reached finality. Learned counsel further contended that the subsequent purchaser, Harilal M Patel, also filed W.P.No.13601/2008 challenging the preliminary and final notifications which came to be dismissed on 23.06.2009 and the same has reached finality. Though, late Venkate Gowda failed to succeed in the writ petition, his legal representatives again filed W.P.No. 27355/2010 challenging both the notifications which came to be dismissed on 18.04.2011 with cost of `50,000/- and the said order has reached finality.
12. Learned counsel for the petitioner further contended that in pursuance of the allotment, when KIADB executed an 16 agreement on 08.08.2011, it is the duty of the KIADB to deliver possession after evicting the unauthorized occupants, since KIADB is the owner of the land issuance of notification under Section 28(4) of the KIAD Act. Inspite of repeated requests made, KIADB has not taken any steps. He further contended that the land in dispute vested with the State Government, in pursuance of the Order dated 02.07.2011 passed by the Assistant Commissioner, on the ground that the original owner has alienated the land in favour of the father of Harilal M Patel, in the year 1984, in violation of the provisions of the Karnataka Land Reforms Act. Infact, the KIADB ought to have challenged the said Order. The petitioner herein filed Appeal before the Karnataka Appellate Tribunal in Appeal No.813/2012 which came to be allowed on 15.09.2017 and the said order has reached finality.
13. He further contended that the purchaser of the land filed O.S.No.54/2004 for the relief of declaration and injunction and the same came to be dismissed on 17 11.10.2012. Inspite of these proceedings, still, KIADB sitting on the fence and watching as a silent spectator, allowed litigations between the petitioner and respondents. Therefore, it is the duty of the KIADB to take appropriate action on the representations made by the petitioner as per Annexures-M and N and remove the encroachment of the property in question and immediately deliver possession of the property in favour of the petitioner. Therefore, learned counsel sought to allow the writ petition.
14. In support of his contentions, learned counsel for the petitioner, relied upon the following judgments:
(i) Ahuja Industries Ltd., vs. State of Karnataka and others reported in (2003)5 SCC 365 with regard to preliminary and final notifications, paragraphs 11 and 13.
(ii) Special Land Acquisition Officer, KIADB, Mysore and Another vs. Anasuya Bai 18 (Dead) by legal representatives and others reported in (2017)3 SCC 313.
(iii) Bangalore Development Authority vs. Vijaya Leasing Limited and others reported in (2013)14 SCC 737 with regard to powers of this Court under Article 226 of the Constitution of India.
(iv) The State of Tamil Nadu and others vs. Elephant G. Rajendran and others etc. made in Civil Appeal Nos.3918-3919/2019 dated 12.04.2019, paragraph -38.
15. Per contra, Sri G.A.Srikante Gowda, learned counsel for the respondent Nos.7, 8, 11 and 13, contended that the very writ petition filed by the petitioner for a writ of mandamus is not maintainable as the petitioner has not made out any statutorily enforceable right. He contended that there exists contract between the petitioner and KIADB. Therefore, to enforce the contract, writ petition is not maintainable. 19 Having accepted the possession certificate with the condition that the petitioner has to get the unauthorized occupants evicted at their risk and costs, petitioner is estopped from filing the present writ petition for the relief sought for. He further contended that as per condition Nos.3 (a) and 3(b) of the Allotment letter dated 28.10.2008 vide Annexure-A, petitioner has to pay 20% of the land cost i.e., `16,40,000/- along with EMD `2,000/-within a period of 30 days from the date of the letter issued, i.e., on or before 27.11.2008, and a sum of `65,60,000/- being the balance tentative cost of land within 90 days from the date of issuance of Allotment letter i.e., on or before 27.01.2009. Condition No.4 of Annexure-A stipulates that the Allotment Letter will be valid only for a period of 30 days from the date of its issue and in the event of failure to pay the amount indicated at condition Nos.3 (a), allotment stands automatically cancelled and EMD paid stands forfeited.
20
16. He further contended that as per Annexures-M and N, representations dated 27.01.2017, the petitioner has categorically stated that the land in question is in possession of the Government and that the so called erstwhile owners are still squatting on the land and therefore, sought to direct the KIADB to had over possession of the land to the purchaser. It clearly indicates that even though possession certificate was issued on 08.07.2011 and an agreement came to be entered on 08.08.2011, the possession was not handed over to the petitioner. He further contended that though the writ petitions filed by the original owner-late Venkate Gowda, his legal representatives and the purchaser reached finality, till today, KIADB has neither passed any order nor paid compensation nor taken possession of the land in question, as contemplated under Sections 28(6) and 28(7) of the KIAD Act.
17. He further contended that the KIADB has colluded with the petitioner and executed an agreement which is 21 impermissible in law. Therefore, the prayer sought in the writ petition is not maintainable. He further contended that this Court, while dismissing W.P.No.2570/2006, at paragraph 6, reserved liberty to the petitioner therein-Venkate Gowda to agitate his rights in such other forum in accordance with law. He further contended that O.S.No.54/2004 filed by Harilal M Patel came to be dismissed as per Annexure-R1 which has reached finality. Learned counsel brought to the notice of the Court that some of the legal representatives of late Venkate Gowda filed O.S.No.445/2017 for the relief of declaration and permanent injunction in respect of the property in question wherein, the petitioner and KIADB are made as parties. The said suit is still pending adjudication between the parties and therefore, sought to dismiss the writ petition.
18. In support of his contentions, learned counsel sought to rely upon the judgment of this Court in the case of M/s Sage Enterprises vs. Karnataka Industrial Area Developmental Board (KIADB) AND another reported in ILR 22 2005 KAR 5985 and contended that the petitioner has no locus to file the present writ petition.
19. Sri R.S.Ravi, learned counsel for respondent Nos.9 and 12 contended that, that unless and until possession is taken by the Government in pursuance of the preliminary and final notifications as contemplated under Sections 28 (6) and (7) of the KIAD Act, issuance of possession certificate and execution of agreement does not arise at all. He contended that in the Possession Certificate dated 08.07.2011, vide Annexure-G, it has been categorically mentioned that the unauthorized occupants in the land allotted have to be evicted by the petitioner at its cost and risk. Admittedly, the petitioner has not challenged the Possession Certification and kept mum for all these years and therefore, the writ petition is not maintainable. He further contended that, as per Annexure- R4 dated 08.01.2010 filed along with the objection statement filed by respondent Nos.7, 8, 11 and 13, the Special Land Acquisition Officer, KIADB requested the Tahsildar, Mysuru, 23 to submit a report as who is real owner of the land in question, in order to enable him to pass award. Further, referring to Annexure-R8 dated 12.06.2017 learned counsel contended that the Public Information Officer, Mysuru, has stated that the records reveals that Sy.No.92/2 does not exist in Hootagahalli, Kasaba Hobli, Mysuru Taluk and hence the question of acquiring the land in the said survey number does not arise at all. Learned counsel further, referring to Annexure-R11 dated 02.01.1998 contended that Sy.No.92 is abutting Hootagahalli and is not forthcoming in the blue print of the KIADB. Therefore, he contended that the writ petition is devoid of merits and liable to be dismissed.
20. Sri Ashok N Nayak, learned counsel for respondent Nos.1 to 3, reiterating the averments made in the statement of objections, contended that on 22.04.2010, the Special Land Acquisition Officer awarded total compensation of `25,98,100/- in respect of 2 acres 22 guntas of land and the said amount is neither paid to the owners nor deposited in 24 the Bank till today, since dispute is pending between the parties. On 22.09.2008, the KIADB took possession of the lands under Section 28(7) of the KIAD Act. The petitioner, having accepted the possession certificate with conditions stipulated therein that he should evict the unauthorized occupants, now, he cannot file the present writ petition for the relief sought for and therefore, sought to dismiss the writ petition.
21. Having heard the learned counsel for the parties, the land in question is alleged to have been belonging to late Venkate Gowda and it was acquired by KIADB by issuing preliminary notification dated 05.05.1997 and final notification dated 26.11.2005. Subsequently, the said land came to be allotted in favour of the petitioner on 28.10.2008. It is not in dispute that the original owner Venkate Gowda filed W.P.No.2570/2006 before this Court challenging the preliminary and final notifications and it came to be dismissed by the Order dated 18.08.2008. Against the said 25 Order W.A.No.1719/2008 and the same was dismissed on 19.07.2010. The challenge to the acquisition by the alleged lawful owner-Venkate Gowda reached finality. It is also not in dispute that, the alleged purchaser-Harilal M Patel filed W.P.No.13601/2008 which came to be dismissed on 23.06.2009 and it has reached finality. The legal representatives of late Venkate Gowda filed W.P.No. 27355/2010 challenging the very notifications, which came to be dismissed on 18.04.2011 imposing cost of `50,000/- and the said Order has reached finality.
22. It is the specific case of the petitioner that subsequent to allotment, the Assistant Commissioner, by the Order dated 02.07.2011, forfeited the land in question with the State Government on the ground that the original owner alienated the land in favour of the purchaser, in violation of the provisions of the Karnataka Land Reforms Act. That was subject matter of appeal before the Karnataka Appellate Tribunal in Appeal No.813/2012 which came to be allowed on 26 15.09.2017. It is the specific case of the petitioner that, it is the duty of the KIADB, after allotment and after executing the lease agreement, to hand over the possession to the allottee, after removing the unauthorized occupants. But, it is the specific case of respondent Nos.7 to 13 that KIADB has not paid the compensation and has not dispossessed them after following the due process of law and after following the procedure as contemplated under Section 28(6)(7) of the KIAD Act, 1966.
23. Sri A.Madhusudhana Rao, learned counsel for the petitioner invited attention of the Court to the provisions of Section 28(5) of the KIAD Act, 1966 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. Sub Section (6) of Section 28 depicts that, where any land is vested with 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 27 land to surrender or deliver possession thereof to the State Government or any person duly authorized by it in this behalf within thirty days of the service of notice. He further contended that sub Section (7) of Section 28 depicts that, if any person refuses or fails to comply with an order made under sub Section (5), the State Government or any Officer authorized 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.
24. Very strangely, the KIADB has not produced any record before this Court, except admitting the allotment and execution of lease cum sale agreement and has not stated about anything with regard to possession taken from the owners and it is not the case of the KIADB that KIADB has cancelled the allotment made in favour of the petitioner for non payment of balance amount as alleged by respondent Nos.7 to 13.
28
25. Under the provisions of the KIAD Act, while acquiring property of individual owners, it is the duty of the KIADB to complete the acquisition by taking possession and pass award and pay compensation to the lawful owners, who are in possession as on the date of the notifications, based on the Khatha or RTC etc. Admittedly, the KIADB has neither passed any award nor paid compensation. Thereby, litigation is created by the KIADB by not paying compensation to the lawful owners.
26. Even before taking possession of the lands from the original owner, KIADB ought not to have ventured upon to allot the land in favour of the petitioner. Once the land is allotted to the petitioner and allotment letter is issued, it is the duty of the KIADB to ensure that the allottee pays the entire amount fixed by the KIADB for allotment in terms of the Allotment letter or in terms of the agreement, subsequently executed. Because of the lethargic attitude of the KIADB, by not following the procedure contemplated 29 under the provisions of the Act, KIADB allowed two persons to fight before the Court either in the writ petition or in the original suit. Ultimately, the petitioner is before this Court claiming to be the allottee in possession of the land and respondent Nos.7 to 13 are before this Court in the capacity of purchasers and legal representatives of the original owner, to defend their possession contending that the KIADB has not take possession through due process of law. Because of the attitude of the KIADB or its Officers, unnecessarily, litigations have moulded before this Court and the Trial Court. When KIADB allotted the land, it is its duty to ensure compliance of terms and conditions of the allotment letter and the agreement. The same has not been done in the present case. It is also not in dispute that the petitioner made representations as long back as on 27.01.2017, wherein it is stated that, 'the land is in the possession of the Government, the erstwhile owners are still squatting on the land and sought to evict the encroachers and free the schedule land, 30 examine whether a fence/wall be erected to protect the property.
27. It is stated across the Bar that the Appeal filed by the petitioner before KAT came to be allowed by setting aside the Order passed by the Assistant Commissioner. Till today, the KIADB has not opened its eyes. It has neither considered nor passed any Orders on the representations made by the petitioner nor paid compensation by taking possession of the land. Now, KIADB cannot express its inability, when it has allotted land in favour of the petitioner. When KIADB acquired the land, it is its duty to pay the compensation to the lawful owners in accordance with law and put an end to the litigation. In one breath, the KIADB acquires land and does not pays compensation to the land owners and on another breath, it has allotted the land to the petitioner subject to certain conditions. And very strangely, KIADB stated in the Possession Certificate dated 08.07.2011, Annexure-G, at Sl.No.4, as under:
31
"4. The company has to get it vacate the unauthorized occupants in the allotted land at their risk and cost."
28. The condition imposed by the KIADB is unknown to law. When an authority exercising powers under a statute gives possession certificate, it should ensure proper delivery of possession free from all encumbrances. The KIADB, cannot be expected to act like a private litigant. The action of the KIADB amounts to violation of Articles 14 and 21 of the Constitution of India. After issuing allotment letter and receiving certain amount, now KIADB cannot deprive the allottee. Because of the lethargic attitude of the KIADB, two persons i.e., petitioner and respondent Nos.7 to 13 are before Court in this writ petition and also in original suit. It is for the KIADB to resolve the dispute between the parties.
29. Though learned counsel for the petitioner relied upon several judgments with regard to powers of this Court in the matters where preliminary and final notifications are 32 challenged, this Court resisted to rely on the said judgments at this stage, as it is for the KIADB to take appropriate action on consideration of the petitioner's representation. Though learned counsel for the respondents relied upon several judgments regarding locus standi, this Court resisted to rely on the said judgments at this stage, as the Court is not deciding the rights of the parties, at this stage, when the representations made by the petitioners are pending adjudication by the KIADB.
30. It is for the KIADB to resolve the dispute between the parties who is the main cause for the litigation and pass appropriate Orders. The KIADB is expected to discharge its duty under the KIAD Act, without depriving the rights of either of the parties.
31. For the reasons stated above, writ petition is disposed off. The first respondent/KIADB is directed to consider the petitioner's representations as per Annexures-M and N, and after hearing both the parties, pass appropriate Orders, 33 within a period of six weeks from the date of receipt of certified copy of this Order, strictly in accordance with law.
32. The petitioner and respondent Nos.7 to 13 are hereby directed to appear before the third respondent- Development Officer, KIADB, who shall consider the representations, Annexures-M and N, even if not addressed to him. The third respondent is directed to treat the representations, Annexures-M and N as addressed to him and pass appropriate Orders without further encouraging the petitioner and respondent Nos.7 to 13 for further litigation. It is submitted by the counsel for the parties that the preliminary award passed by the Land Acquisition Officer has not been paid to the beneficiaries.
33. It is needless to observe that any Order to be passed by the KIADB is always subject to the out come of the suit in O.S. No.445/2017 filed by some of the legal representatives of late Venkate Gowda for the relief of declaration and permanent injunction, wherein, petitioner and KIADB are also 34 parties. For abusing the process of the Court and dragging the petitioner and respondent Nos.7 to 13 to the Court, unnecessarily, the KIADB is directed to pay cost of `25,000/- payable to the Chief Minister's Relief Fund Natural Calamity within one month from the date of the receipt of the copy of this order.
34. However, it is made clear that, any observations made by this Court, shall not come in the way of the third respondent while considering the petitioner's representation and the rights of respondent Nos.7 to 13.
35. In view of the disposal of the above writ petition, I.A.Nos.3/2018 and 4/2018 are dismissed as not surviving for consideration.
Ordered accordingly.
Sd/-
Judge Pg.1 to 5... Gss Pg 6 to end...kcm