Karnataka High Court
Sri Venkatesh Babu vs The State Of Karnataka on 23 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.5463/2020(LA-KIADB)
BETWEEN:
SRI VENKATESH BABU
S/O LATE CHIKKAPPAIAH
AGED ABOUT 54 YEARS
R/AT HOUSE NO.2279
9TH MAIN ROAD, 'D' BLOCK
2ND STAGE, RAJAJINAGAR
BANGALORE - 560 010 ... PETITIONER
(BY SRI. BASAVARAJA PATEL G.K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
DEPARTEMENT OF
INDUSTRY AND COMMERCE
VIKASA SOUDHA
BANGALORE - 560 001.
2. KARNATAKA INDUSTRIAL
AREA DEVELOPMENT BOARD
REPRESENTED BY ITS CEO
AND EM, #49, 4TH & 5TH FLOORS,
'EAST WING', KHANIJA BHAVAN,
RACE COURSE ROAD,
BENGALURU - 560 001.
3. SPECIAL LAND ACQUISITION
OFFICER - II, KARNATAKA
INDUSTRIAL AREA DEVELOPMENT
2
BOARD, 14/3, 1ST FLOOR,
RASHTROTHANA PARISHAD
BLDG, WEST WING, NRUPATHUNGA ROAD
BANGALORE - 560 001.
4. BENGALURU INTERNATIONAL
AIRPORT, LIMITED (BIAL) ROAD
DEVANAHALLI, BENGALURU
KARNATAKA - 560 300.
(VIDE ORDER DT: 12.10.2020)
... RESPONDENTS
(BY SRI. T.P. SRINIVASA, AGA FOR R1
SRI. ASHOK HARANAHALLI, SR. ADVOCATE FOR
SMT. APARNA MAHESH, ADVOATE FOR R2 AND R3.
SRI. GANAPATI HEGDE, ADVOCATE FOR R4.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 04.08.2012 ISSUED U/S 28(3) OF THE ACT
(ANNEXURE-F) BY THE R-2 AS BEING VOID AB INITIO AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
17/11/2020 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Facts need to be mentioned infra for disposal of the present writ petition:
The State of Karnataka with a laudable focus for establishment of an Industrial Area has constituted the Karnataka Industrial Area Development Board. It is a statutory body established under the provisions of the KIADB Act, 1966 3 with an object of promoting the establishment and orderly development of industries in industrial areas.
The dispute, which is the subject matter of this petition relates to land bearing Sy.No.55P (in some of the documents it is referred to as Sy.No.55) of Yettiganahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District measuring around 4 acres. The dispute is between the petitioner on the one hand and the statutory body called Karnataka Industrial Areas Development Board (hereinafter referred to as KIADB for short).
2. Land acquired to the extent of 4 acres in Sy.No.55P of Yarthiganahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District is in dispute. Aforementioned land of 4 acres in Sy.No.55P was initially granted to one Smt.Indiramma w/o K M Gururajarao in the year 1952 which she sold to one Smt Sarojabai w/o D Chikappaiah in the year 1958. Due to default in payment of land revenue by Smt. Sarojabai, the land was auctioned during which the land was purchased by one Mr. A R Rajanna in the year 1971. In turn, Mr A R Rajanna sold the land to one Mr.Varadaraju in the year 1971 itself. In this backdrop, the Deputy Commissioner cancelled the auction sale in its entirety and restored the land back in favour of Smt Sarojabai in 4 the year 1973. After the demise of Smt Sarojabai in the year 1993, her son Sri R Venkatesha Babu - petitioner herein submitted representation to Tahsildar, Devanahalli to enter his name by way of inheritance in the Record of Rights in the aforesaid land, but the purchaser Mr.Varadaraju (who purchased the said land from Mr.A.R.Rajanna, who in turn had purchased the land in auction), objected for the same. An appeal was preferred before the Assistant Commissioner by the petitioner against Sri Varadaraju and it was numbered as R.A.No.229/1996. Appeal was allowed in favour of petitioner on 22.08.1997. Sri Varadaraju questioned the validity of the order dated 22.08.1997 passed in R.A.No.229/96-97 in W.P.24611/1997 before this Court. Writ Petition was allowed, Consequently, petitioner preferred writ appeal and in Writ Appeal, order of the learned Single Judge was set-aside while restoring the order of the Assistant Commissioner. Thus aforesaid property vested in the petitioner's name.
3. The subject land was acquired in the year 1996 vide final notification dated 08.08.1996 under Act, 1966, whereas, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 5 (Hereinafter referred to as the 'Act, 2013' for short) has come into force w.e.f 01.01.2014.
4. The issue with regard to paying compensation under Act, 2013, is pending adjudication before this Court in W.A.No.2392-2393/2017.
5. Dates and events of the present matter from the date of declaration of industrial land to withdrawal of impugned order are as under:
Sl. Dates Events No. 01 09.06.1994
Respondent No.1 - State Government issued a notification under the provisions of Section 1(3) and Section 3(1) of the Karnataka Industrial Area Development Board Act, 1996 (Hereinafter referred to as the 'Act, 1996' for short) declaring 260 Acres of land in Sy.No.55P of Yarthiganahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District as an industrial area.
02 07.07.1994 State Government issued notification under Section 28(1) of Act, 1966, the total extent of lands in Sy.No.55P was restricted to 38 acres 26 guntas. 07.07.1994 Preliminary notification under Section 28(1) of Act, 1966 - Annexure - C to the writ petition. 03 06.02.1996 Order of the SLAO under Section 28(3) of Act, 1966 to take up further proceedings under Section 28(4) of Act, 1966 and Revenue Department is directed to take possession of the acquired properties (extent of area in respect of item nos.12 to 32 has been shown as 38-26) 6 04 08.08.1996 A public notice was issued under Section 28(2) of Act, 1966. On 08.08.1996 notification was issued under Section 28(4) of Act, 1966 to the extent of 38 acres and 26 guntas of land in Sy.No.55P. Extent of petitioner's land is not forth coming and compensation was awarded only to the extent of 17 Guntas (Annexure-D).
05 07.03.2002 A Joint Measurement Certificate(JMC) (Annexure -
R8 of the statement of objections filed on 22.09.2020) 06 30.04.2002 Compensation of Rs.2,12,500/- was awarded towards acquisition of 17 guntas in Sy.No.55 in favour of petitioner- Venkatesha Babu (Document 1).
07 18.05.2002 Award notice issued by the Special Deputy Commissioner, International Airport, KIADB (Document No.2).
Complete order sheet in LAC No.227/2006 (Document No.3) Copy of the Court cheque dated 25.11.2009 (Document No.4).
08 08.10.2004 Sale deed among KIADB and Karnataka State Industrial Investment and Development Corporation Limited (Annexure -R.1) 09 30.04.2005 Lease deed came to be executed among Karnataka State Industrial Investment and Development Corporation Limited and Bengaluru International Airport Limited. (Annexure -R3).
10 28.07.2009 2nd respondent filed a reference petition in LAC proceeding No.227/2006, the reference court declared that petitioner was entitled for compensation amount and granted compensation of Rs.2,12,500/- which was deposited in the Court in favour of the petitioner. The compensation amount is towards acquisition of 17 guntas of land belonging to the petitioner.
11 03.01.2009 Sale deed came to be executed among KIADB and Karnataka State Industrial Investment and Development Corporation Limited (Annexure -R2) 7 12 12.01.2011 Petitioner submitted representation to incorporate his name in the JMC pursuant to the court order that he is the owner of 4 acres of land (Annexure - R9 to the statement of objections filed by R2 and 3 on 22.09.2020 ) 13 31.12.2011 Lease deed came to be executed among Karnataka State Industrial and Infrastructure Development Corporation Limited vs Bengaluru International Airport Limited (Annexure -R4 to Statement of Objections filed by respondent No.4 (BIAL)). 14 07.01.2012 Fresh JMC was issued.
15 4.8.2012 Notification under Section 28(3) of Act, 1966 (Annexure -H).
4.8.2012 The 2nd respondent passed an order under Section 28(3) of the Act, 1966 stating that a joint measurement was carried out with regard to the extent of land in possession of the Kempegowda International Airport and was found that 3 acres 8 guntas of land is acquired and compensation is paid only to the extent of 17 guntas. Accordingly, it was ordered that for the remaining extent of 2 acres 31 guntas, a notification would be issued under Section 28(4) of the Act, 1966.
04.08.2012 Pursuant to order dated 04.08.2012, a draft notification was notified on 06.08.2012 under the provisions of Section 28(4) of Act, 1966 to the extent of 2 acres 31 guntas of petitioner's land was prepared and forwarded to the Deputy Commissioner vide communication dated 04/09- 08-2012 by the 2nd respondent.
04.08.2012 Order was passed under Section 28(3) of Act, 1966 (Annexure - R2).
16 4/9.8.2012 Internal communication among the Special Land Acquisition Officer, KIADB and Special Deputy Commissioner, KIADB relating to issuance of notification under Section 28(4) of Act, 1966 for remaining 2 acres 31 guntas in Sy.No.55 (Annexure -H) 17 22.06.2013 The 2nd respondent issued a communication wherein it is stated that 2 acres 31 guntas of land of the petitioner, a draft final notification is forwarded to the Special Deputy Commissioner, KIADB and for remaining 2 acres 31 guntas of 8 land other than the 17 guntas of land for which compensation has been paid.
18 28.01.2016 Rectified final notification under Section 28(4) of Act, 1966 was issued (Annexures -R4 and 13). Statement of objections filed on behalf of R.2 and 3 dated 22.09.2020.
19 05.08.2016 The 2nd respondent prepared a tippani/note narrating the entire sequence of events with request to the Special Deputy Commissioner as to whether notifications issued under Sections 28(1) and 28(4) are in vogue and if, by way of amendment whether the remaining extent of 2 acres 31 guntas of land could be incorporated or not?
20 07.10.2017 The 2nd respondent made a communication to the Special Deputy Commissioner, KIADB replying the various queries raised by him including whether the notification issued under Section 28(1) and 28(4) of Act, 1966 as in the year 1996 are still in vogue.
21 01.06.2018 Internal correspondence among the Government and Special Land Acquisition Officer 22 29.11.2018 The Respondent No.3 has drawn proceedings to extend compensation under Section 28(2) of Act, 1966 to the petitioner for payment of compensation towards the remaining extent of 2 acres 31 guntas of land which has been occupied and acquired by respondents Nos.3 and 4. Pursuant to the aforesaid proceedings dated 28.11.2018, notice was issued to the petitioner under Section 29(2) of Act, 1966 on 08.01.2019. 23 08.01.2019 Notice under Section 29(2) of Act, 1966 was issued.
24 03.11.2020 The Respondent No.3 issued notice under Sections 9 and 10 of the Land acquisition Act, 1894 on 03.11.2020 for appearance of the petitioner within a week 25 04.11.2020 Impugned order dated 04.08.2012 (Annexure -F) issued by the respondent was withdrawn during pendency of this Petition vide Annexure -R16 9
6. Learned Senior Counsel Mr.Ponanna appearing for Mr.Basavaraja Patel G.K.-on behalf of petitioner submitted that impugned order dated 04.08.2012 (Annexure -F) issued under Section 28(3) of the Act by the second respondent is void ab-
initio that the final notification dated 08.08.1996 and passing of the award whereby only 17 guntas of petitioner's land is acquired by respondent Nos.1 to 3 for the benefit of fourth respondent.
Consequently, occupation and possession of extent of 2 acres 31 guntas of land is unconstitutional and illegal. It was further submitted that respondent Nos.2 and 3 are trying to justify the occupation and handing over possession of 2 acres 31 guntas of land to the fourth respondent by issuing a fresh notification under Section 28(4) of Act, 1966 or in the alternative amending the final notification dated 08.08.1996 issued under Section 28(4) of Act, 1966, which has resulted in denying the rightful claim of the petitioner over the aforesaid 2 acres 31 guntas of land. It was also submitted that there is proposal to modify/amend the final notification dated 08.08.1996 after these many years. It is further contended that orders under Section 28(3) of the Act, 1966 are issued after lapse of about 16 years from the date of completion of acquisition proceedings.
10First respondent has failed to follow the provisions of Act, 1966 insofar as acquisition of 2 acres 31 guntas. The same cannot be rectified after lapse of about 16 years. That apart, statutory provision which was invoked for the purpose of acquisition of land is a quasi judicial function and in the absence of statutory provision, respondent Nos.1 to 3 cannot undertake modification/alteration of proceedings under Sections 28(3) and 28(4) of Act, 1966. During pendency of the present petition, second respondent has withdrawn the impugned order dated 04.08.2012 on 04.11.2020.
7. Learned Senior counsel Mr.Ashok Harnahalli appearing on behalf of Mrs.Aparna Mahesh for respondent Nos.2 and 3 submitted that petitioner's land would fall under Sy.No.55P. On 09.06.1994 State Government notified the industrial area and notification was issued under Section 28(1) of Act, 1966, on 07.07.1994 notification was issued under Section 28(2) on 06.02.1996 inadvertently, Munishamappa s/o Thimmaiah's name was shown against Sy.No.55P among others. However, extent of area has not been shown against each of the persons who have filed their objections including Munishamappa. However, extent of area has been shown as 38 acres 26 guntas. Consequently, 11 final notification was issued on 08.08.1996, extent of land has not been shown in respect of Munishamappa. It is further contended that no-doubt compensation has been awarded only to the extent of 17 guntas of land in Sy.No.55P of Yettiganahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District measuring around 4 acres pursuant to the reference dated 18.05.2002 it is being rectified for the remaining 2 acres 31 guntas since respondent Nos.2 and 3 have already handed over their lands to the 4th respondent. The petitioner is not entitled for restoration of the land of 2 acres 31 guntas. Consequently, he is entitled to compensation of award for the aforesaid extent under old law and it is under process. The petitioner is not entitled to compensation under the new Act, 2013.
8. Mr.Ashok Harnahalli, learned Senior counsel relied on the following decisions:
(1) Apex Court in THE SPECIAL LAND ACQUISITION OFFICER, KIADB, MYSORE AND ANOTHER Vs ANASUYA BAI (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS in C.A.No.353/2017 (SLP(C) No.12581/2015) decided on 25.01.2017 at paragraphs 24 and 25 reads as under:12
24. The Division Bench of the High Court by the impugned judgment, however, has quashed the acquisition proceedings itself holding that they have lapsed. For this purpose, the High Court has taken aid of Section 24 of the New LA Act in the following manner:
"13. It is also noted that the acquisition proceedings including preliminary and final declaration have been passed under the provisions of the KIADB Act. But there is no provisions under the KIADB Act to pass an award and award has to be passed only under the provisions of the LA Act, 1894. If the award has to be passed under LA Act, whether the new act can be pressed into service to hold the acquisition proceedings are lapsed on account of non-passing of award within a period of 5 years U/s 11. If the award is passed under LA Act, the enquiry has to be conducted by the Deputy Commissioner or Collector before passing the award. Section 11A contemplates if the award is not passed within 2 years from the date of publication of the final declaration, the entire proceedings for acquisition of the land shall automatically stands lapsed. It is no doubt true the Hon'ble Supreme Court in the case of M. Nagabhushana Vs. State of Karnataka and Others, (2011) 3 SCC 408 has held that Section 11-A of the Act is no application in respect of the land acquired under the provisions of the Karnataka Industrial Areas Development Act. We have to consider in this appeal as to whether Section 24(2) of the New Act is applicable in order to hold that the acquisition proceedings deemed to be lapsed due to non-
payment of compensation and non-passing of the award within a period of five years from the date of declaration and with effect from non-payment of compensation to the land owners.
14. The New Act does not say whether the Act is applicable to the land acquired under the provisions of the Karnataka Land Acquisition Act 1894. What Section 24 says that if the award is not passed U/s 11 of the Act and the compensation is not paid 13 within 5 years or more prior to new act, if the physical possession of the land is taken or not especially the compensation is not paid or deposited in Court such proceedings deem to have been lapsed. In the instant case, it is not case of the respondent that award is not required to be passed under the provisions of LA Act. When the award is required to be passed under LA Act, the respondents cannot contend that the provisions of New Act cannot be made applicable on account of non payment of compensation within a period of five years."
25. This approach of the High Court, we find, to be totally erroneous. In the first instance, matter is not properly appreciated by ignoring the important aspects mentioned in para 24 above. Secondly, effect of non- applicability of Section 11A of the Old LA Act is not rightly understood. The High Court was not oblivious of the judgment of this Court in M. Nagabhushana's case which is referred by it in the aforesaid discussion itself. This judgment categorically holds that once the proceedings are initiated under the KIAD Act, Section 11A of the Old LA Act would not be applicable. Such an opinion of the Court is based on the following rationale:
"29. The appellant has not challenged the validity of the aforesaid provisions. Therefore, on a combined reading of the provisions of Sections 28(4) and 28(5) of the KIAD Act, it is clear that on the publication of the Notification under Section 28(4) of the KIAD Act i.e. from 30-3-2004, the land in question vested in the State free from all encumbrances by operation of Section 28(5) of the KIAD Act, whereas the land acquired under the said Act vests only under Section 16 thereof, which runs as under:
"16.Power to take possession:--When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances."14
30. On a comparison of the aforesaid provisions, namely, Sections 28(4) and 28(5) of the KIAD Act with Section 16 of the said Act, it is clear that the land which is subject to acquisition proceeding under the said Act gets vested with the Government only when the Collector makes an award under Section 11, and the Government takes possession. Under Sections 28(4) and 28(5) of the KIAD Act, such vesting takes place by operation of law and it has nothing to do with the making of any award. This is where Sections 28(4) and 28(5) of the KIAD Act are vitally different from Sections 4 and 6 of the said Act.
31. A somewhat similar question came up for consideration before a three- Judge Bench of this Court in Pratap v. State of Rajasthan [(1996) 3 SCC 1] . In that case the acquisition proceedings commenced under Section 52(2) of the Rajasthan Urban Improvement Act, 1959 and the same contentions were raised, namely, that the acquisition notification gets invalidated for not making an award within a period of two years from the date of notification. Repelling the said contention, the learned Judges held that once the land is vested in the Government, the provisions of Section 11-A are not attracted and the acquisition proceedings will not lapse. (Pratap case[(1996) 3 SCC 1] , SCC para 12 at p. 8 of the Report.) In Munithimmaiah v. State of Karnataka [(2002) 4 SCC 326] this Court held that the provisions of Sections 6 and 11-A of the said Act do not apply to the provisions of the Bangalore Development Authority Act, 1976 (the BDA Act). In SCC para 15 at p. 335 of the Report this Court made a distinction between the purposes of the two enactments and held that all the provisions of the said Act do not apply to the BDA Act. Subsequently, the Constitution Bench of this Court in Offshore Holdings (P) Ltd. v. Bangalore Development Authority [(2011) 3 SCC 139 : (2011) 1 SCC (Civ) 662 : (2011) 1 Scale 533] , held that Section 11-A of the said Act does not apply to acquisition under the BDA Act.
1533. The same principle is attracted to the present case also. Here also on a comparison between the provisions of the said Act and the KIAD Act, we find that those two Acts were enacted to achieve substantially different purposes. Insofar as the KIAD Act is concerned, from its Statement of Objects and Reasons, it is clear that the same was enacted to achieve the following purposes:
"It is considered necessary to make provision for the orderly establishment and development of industries in suitable areas in the State. To achieve this object, it is proposed to specify suitable areas for industrial development and establish a board to develop such areas and make available lands therein for establishment of industries."
34. The KIAD Act is of course a self-contained code. The said Act is primarily a law regulating acquisition of land for public purpose and for payment of compensation. Acquisition of land under the said Act is not concerned solely with the purpose of planned development of any city. It has to cater to different situations which come within the expanded horizon of public purpose. Recently the Constitution Bench of this Court in Girnar Traders (3) v. State of Maharashtra [(2011) 3 SCC 1 : (2011) 1 SCC (Civ) 578 : (2011) 1 Scale 223] held that Section 11-A of the said Act does not apply to acquisition under the provisions of the Maharashtra Regional and Town Planning Act, 1966.
35. The learned counsel for the appellant has relied on the judgment of this Court in Mariyappa v. State of Karnataka [(1998) 3 SCC 276] . The said decision was cited for the purpose of contending that Section 11-A is applicable to an acquisition under the KIAD Act. In Mariyappa [(1998) 3 SCC 276] before coming to hold that provision of Section 11-A of the Central Act applies to the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter "the 1972 Act"), this Court held that the 1972 Act is not a self-contained code. The Court also held that the 16 1972 Act and the Central Act are supplemental to each other to the extent that unless the Central Act supplements the Karnataka Act, the latter cannot function. The Court further held that both the Acts, namely, the 1972 Act and the Central Act deal with the same subject. But in the instant case the KIAD Act is a self-contained code and the Central Act is not supplemental to it. Therefore, the ratio in Mariyappa [(1998) 3 SCC 276] is not attracted to the facts of the present case.
36. Following the aforesaid well-settled principles, this Court is of the opinion that there is no substance in the contention of the appellant that acquisition under the KIAD Act lapsed for alleged non- compliance with the provisions of Section 11-A of the said Act. For the reasons aforesaid all the contentions of the appellant, being without any substance, fail and the appeal is dismissed."
(2) Further, he relied on decision in W.P.59461- 59462/2014 And Connected matters disposed of on 19.04.2017 and submitted that writ appeal 2392/2017 is pending consideration. Extract of the relevant portion reads as under:
13. CONCLUSIONS:
The points framed for consideration are answered as follows:-
POINT NO. i): The State Government cannot any longer exercise power under Section 3 of the KIAD Act without conforming to the pre-requisites as prescribed under the 2013 Act, nor work the other provisions of the Act without also adhering to other mandatory provisions of the 2013 Act and the Rules thereunder. The Scheme under the KIAD Act as it prevails is inconsistent with the provisions of the 17 2013 Act in terms of Article 254 (2) of the Constitution of India and is hence no longer valid as an independent enactment.
POINT NO.(ii): Section 24(2) of the 2013 Act is applicable to an acquisition initiated under the provisions of the KIAD Act.
POINT NO.(iii): By virtue of Section 24(2) at whatever point of time the vesting of land may have taken place, there is a divesting, in terms thereof, as it provides for a 'lapsing' of the acquisition proceedings, if the conditions specified therein are satisfied.
POINT NO. (iv): The recent decision of the Apex Court in Civil Appeal No.353/2017, the Special Land Acquisition Officer, KIADB, Mysore vs. Anasuya Bai, dated 25.1.2017, did not involve a challenge to the constitutional validity of the provisions of the KIAD Act and hence does not advance the case of the respondents.
The petitions to be posted for hearing on facts and the merits of each case for final disposal.
9. Learned counsel for the 4th respondent Sri Ganapati Hegde submitted that pursuant to the acquisition proceedings KIADB and Karnataka State Industrial Investment and Development Corporation Ltd.(for short KSIIDC) have entered into sale deed on 08.10.2004. Pursuant to the sale deed dated 08.10.2004, KSIIDC and Bengaluru International Airport Limited (for short BIAL)entered into lease deed. Consequently, sale deed (out of 38 acres 22 guntas only 13 acres 19 guntas have 18 been sold by KIADB to KSIIDC on 08.10.2004 and 03.01.2009 -
Annexures R1 and R2 respectively).
10. KSIIDC who is owner of 13 acres 19 guntas in Sy.No. 55P of Yettiganahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District measuring around 4 acres was leased out to BIAL on 30.04.2005 and 31.12.2011 (ANN.R.3 and 4).
11. Learned counsel for respondent No.4 at para.15 of the statement of objections it is contended as follows:
15. From the above, undisputed facts, the following position becomes clear:
(i) The total extent of 4 Acres of the Said Land was notified for acquisition and possession of the same was taken;
(ii) Compensation has been paid to the Petitioner, only in relation to 17 Guntas of the said Land; and
(iii) There is no document produced on record which establishes that the 4 Acres of the Said Land were not the part of the Preliminary or the Final Notification.
Further it is submitted that respondent No.4 - BIAL has already taken over the land. Therefore, what remains in the present litigation is only to the extent of award of compensation to be paid to the petitioner for remaining portion of the said land.
12. Heard the learned counsel for the parties.
1913. Crux of the matter in the present petition is whether petitioner is entitle for restoration of 2 acres 31 guntas of land in Yettiganahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District measuring around 4 acres. Devanahalli taluk or not? or in the alternative petitioner is entitle for compensation to the aforesaid land in terms of old Act or new Act, 2013?
14. The first respondent declared Sy.No.55P and other survey numbers as industrial area under Section 3(i) of Act, 1966 (1966 Karnataka Act 18) on 09.06.1994. Thereafter, notification was issued under Section 28(1). Sri M Munishamaraju's name appears at sl.nos.7-8, further showing 4 acre in Sy.No.55P and other particulars. Consequently, notifications were required to be issued under Sections 28(3) and 28(4) of Act, 1966 however, notification was not issued under Section 28(3), whereas notification under Section 28(4) was issued on 08.08.1996 and name of Munishama Raju's appears at Sl.No.29, extent of area and Sy.No 55P has not been indicated whereas against Sl.Nos.24 to 69 in Sy.No55P extent of area is silent. Against Sl.No.23 one Ramadasappa s/o Rangappa has 20 been shown at Sy.No.55P and extent is 38 acres 26 guntas. In the meanwhile, records are evident that petitioner Sri.C Venkatesh Babu is owner of 4 acres of land which stood in the name of deceased Munishamaraju. Consequently, a reference dated 18.05.2002 to claim compensation to the extent of 17 guntas of land in Sy.No.55P of Yettiganahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District was issued which was the subject matter of LAC No.227/2006. The reference was partly allowed on 28.07.2009. Respondent No.3 was party to the aforesaid proceedings. Respondent No.3 should have been alert in rectifying the extent of land. He has also not pointed out while passing reference for compensation on 18.05.2002 and even in the LAC proceedings during the period from 2006 to 2009. In view of these facts and circumstances petitioner Venkatesh Babu submitted application that his name has been left out in JMC plan relating to 4 acre in Sy.No.55P of Yettiganahalli Village. For remaining 3 acres and 23 guntas, there is error in indicating as BIAL. Thus sought for compensation.
15. Respondent No.3 issued notification under Section 28(3) of Act, 1996 on 04.08.2012 (Annexure-F) for the purpose 21 of issuance of final notification under Section 28(4) of Act, 1966.
Whereas on 03.08.2012, Spl. LAO, KIADB communicated to Special Deputy Commissioner, KIADB for issuance of final notification under Section 28(4) of Act, 1966 insofar as remaining 2 acres 31 guntas in Sy.No.55/P8 of Yettiganahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District.
16. Prima facie, respondent Nos.2 and 3 have committed error in not notifying the entire 4 acre of land in Sy.No.55P of the then Sri Munishamaraju - (erstwhile) owner. In the absence of notification under Section 28(3), 4 acres of land cited supra is not part of the preliminary and final notifications issued under Sections 28(2) and 28(4) of Act, 1966 dated 07.07.1994 and 08.08.1996 respectively. That apart such error has not taken note of while reference for award, where as award was passed only for 17 guntas instead of 4 acres.
17. Even though petitioner has made out prima facie case in respect of restoration of 2 acres 31 guntas of land, however, respondent Nos.2 and 3 have taken over the land so also land was sold in favour of KSIIDC and further, KSIIDC entered into 22 lease deed with BIAL. In view of these facts and circumstances, petitioner is not entitled for restoration of 2 acres 31 guntas of land.
18. The next issue is, "Whether petitioner is entitled to compensation for 2 acres 31 guntas in terms of Old Act or new Act, 2013 or not?.
19. Inaction on the part of respondent Nos.2 and 3 in not including entire 4 acre in the preliminary and final notification and in not issuing notification under Section 28(3) of Act, 1966 and respondent nos.2 & 3 have not rectified the error committed in not including the entire 4 acre of land while making reference for payment of compensation as on 18.05.2002 and so also at the time of disposal of LAC No.227/2006 on 28.07.2009, they have failed to rectify the error committed by them in not including the entire 4 acre of land in Sy.No.55. After lapse of about one decade from the date of final notification, respondent Nos.2 and 3 are proceeding to rectify the final notification issued under Section 28(4) act, 1966. Therefore, petitioner has made out prima facie case for extending compensation under the new Act, 2013.
2320. Learned Senior Counsel Sri Ashok Harnahalli appearing for respondent Nos.2 and 3 cited decision of the learned Single Judge which is in favour of the petitioner.
Pendency of writ Appeal under the new Act, 2013 would not be hurdle to the petitioner.
This Court, in the case of VENUGOPAL V R AND OTHERS vs THE STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF COMMERCE AND INDUSTRIES, BANGALORE AND OTHERS reported in 2018(1) KCCR 336 decided on 17.08.2017 in para 8, 9, 10, 13 and 14 would assist the petitioner's case, extract of the aforesaid is reproduced hereunder.
8. As per Section 29(1) of the Act where any land is acquired by the State Government, the State Government shall pay for such acquisition, compensation in accordance with the provisions of the said Act. Sub-clause (2) of Section 29 provides that where the amount of compensation has been determined by agreement between the State Government and the person to be compensated, it shall be paid in accordance with such agreement. As per sub-clause (3), where no such agreement can be reached, the State Government shall refer the case to the Deputy Commissioner for determination of compensation to be paid for such acquisition as also the person/s to whom such compensation shall be paid. Sub-clause (4) provides that the Deputy Commissioner shall serve notice on the owner or occupier of such land and persons interested to 24 appear before him. Section 30 of the KIAD Act makes the provisions of Central Act No.1 of 1894 (Land Acquisition Act, 1894) applicable mutatis mutandis regarding enquiry and award and for reference to the Court.
9. As there was no agreement between petitioners and the beneficiary regarding amount of compensation payable, award ought to have been passed in terms of the provisions of the LA Act. The LA Act has been repealed by the New Act which has come into force with effect from 01.01.2014. Provisions of the New Act, in so far as determination of compensation is concerned, have to be applied, as otherwise, it would violate the very basic tenet of Article 14 of the Constitution of India. If compensation is payable for the lands acquired under the KIAD Act as per the old law, whereas compensation has to be made in terms of the provisions of the New Act at a different rate for lands acquired under the LA Act, it would lead to inequality violating Article 14. This position of law is clearly laid down in Nagpur Improvement Trust case, referred to supra.
10. Petitioners have contended that entire Acquisition Proceedings stand lapsed as per Section 24(2) of the new Act. However, Hon'ble Apex Court has held in the case of Special Land Acquisition Officer (KIADB), Mysore and Another Vs. Anasuya Bai (Dead) By Legal Representatives and Others [(2017) 3 SCC 313] that provisions of Section 24(2) of the New Act have no application to the provisions made under the KIADB Act. Therefore, challenge made to the Acquisition Proceedings on the said ground is not sustainable.
13. Learned counsel for the KIADB submits that, now steps have been taken by issuing notices to pass award as per the provisions of the L.A. Act, 1894. Though neither Section 11(A) of the old Act nor Section 24(2) of the new Act are applicable, the 25 general principles of law do regulate the rights of the parties and their obligations.
14. It is well established that, when power has been conferred on an authority, the same has to be exercised in a reasonable manner. Reasonable exercise of power includes exercise of the same within a reasonable period. Delay of seven years in passing the award cannot be treated as a reasonable period. The adverse consequence on the rights of the citizens, who have lost their valuable lands, cannot be forgotten. Generally, payment of compensation for the acquired land is pegged to the date of the Preliminary Notification and the market value has to be ascertained with reference to the said date. In this case, because of the order of the Division Bench, the said date was postponed to the date of Final Notification. Even if the date of Final Notification viz,, 13.06.2005 is reckoned, there would be delay of 12 years as on date in passing the award. Therefore, compensation to be quantified now would be illusory, as it will not reflect the realistic value of the land. However, if the KIADB had taken steps and had passed an award within a reasonable period after the disposal of the writ appeal, there would not have been any problem in repelling the contention urged by the petitioners that acquisition proceedings stood lapsed. The conduct of the KIADB discloses that, it is neither interested in taking possession of the land and utilizing the same for the purpose for which it is acquired, nor in paying compensation to the land- losers.
The aforesaid decision of the learned Single Judge was affirmed in Writ Appeal No.6820/2017 on 04.02.2020.
21. Apex Court in the case of NAGPUR IMPROVEMENT TRUST AND ANOTHER vs VITHAL RAO AND OTHERS 26 reported in AIR 1973 SC 689 Constitution bench has held as under. The extract of relevant paragraph 29 reads as under:
29. Can classification be made on the basis of the public purpose for the purpose of compensation for which land is acquired? In other words can the Legislature lay down different principles of compensation for lands acquired say for a hospital or a school or a Government building? Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Government building at 70% of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other. Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classification be made on the basis of the authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.
In view of the aforesaid decisions, the cited decisions on behalf of Respondent-KIADB do not assist their contentions that 27 petitioner is entitled to compensation for remaining land to the extent of 2 acres 31 guntas in terms of the old act.
22. In that view of the matter the following order is passed:
(i) Petitioner is not entitled for restoration of land to the extent of 2 acres 31 guntas in Sy.No.55P of Yettiganahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District.
(ii) Petitioner is entitled to compensation for the aforementioned land in terms of new Act, 2013. In the result, respondent Nos.2 and 3 are hereby directed to proceed in enlarging compensation in terms of the aforementioned Act, 2013 and disburse the compensation amount along with interest @ 6% per annum, within a period of four months from the date of receipt of this order.
(iii) Writ Petition is allowed in part.
Leaving the parties to bear their respective costs.
Sd/-
JUDGE Brn