Karnataka High Court
Jamanlal Bajaj Seva Trust vs The State Of Karnataka on 24 June, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA BANGALORE,
DATED THIS THE 24th DAY OF JUNE 2014
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
WRIT PETITION NO.3884 OF 1999 (LA)
C/W
WRIT PETITION NO.37140 OF 2000 (LA)
WRIT PETITION NO.708 OF 2000 (LA)
WRIT PETITION NO.19579/2001 (LA)
IN W.P.3884/1999
BETWEEN:
Jamanlal Bajaj Seva Trust
By its Joint Secretary
P.K. Desai, Major
Vishwaneedam Farm
Magadi Road, Bangalore
... PETITIONER
(Shri Udaya Holla, Senior Advocate for
Sri. Brijesh Patil, Advocate)
AND:
1. The State of Karnataka
By the Secretary to the
Government, Revenue
Department M. S.Buildings
Bangalore - 560 001.
2
2. The Deputy Commissioner,
Bangalore District
Kirshi Bhavan, Bangalore
3. The Special Land Acquisition
Officer, Visweswarayya Centre
III Floor, Podium Block
Dr. Ambedkar Road
Bangalore - 560 001.
4. Agricultural Produce Market Committee
By its Secretary
Yeshwanthpura Market Yard
Yeshwanthpura,
Bangalore. ... RESPONDENTS
(Shir H. Anantha, Government Pleader for Respondent Nos.1 to
3, Shri B. G. Sridharan Senior Advocate for Shri. A. C. Balaraj,
Advocate for respondent No.4)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to declare that the entire
acquisition proceedings commencing with the issue of a
preliminary notification gazetted on 03.09.1994 marked as
Annexure-A to the writ petition, have lapsed on account of the
award not being made within a period of two years in terms of
Section 11-A of the Land Acquisition Act and etc.
3
W.P.NO.37140/2000
BETWEEN:
Jamnalal Bajaj Seva Trust
Vishwa Needham Farm
Magadi Road, Bangalore
Represented by its trustees:
1. Sri. Rahul Bajaj
Trustee/Chairman
C/o. Bajaj Auto, Akrudi
Pune - 411035
2. Sri. Sekhar Bajaj
3. Sri. D. S. Mehta
4. Sri. Moharikar
5. Smt. Meenakshi Bajaj
6. Smt. Kiran Bajaj
7. Shri. Vinod Nevatia
Peititioners No.2 to 7 are residing at
Bajaj Bhavan, II Floor, 226,
Jamnalal Baja Marg, Narihman Point
Bombay - 400021
... PETITIONERS
(Shri Udaya Holla Senior Advocate for
Sri. Brijesh Patil, Advocate)
4
AND:
1. State of Karnataka
By its Secretary to
Government, Revenue
Department Multi-
Storeyed Buildings
Bangalore.
2. The Deputy Commissioner
Bangalore District
Krishi Bhavan,
Bangalore.
3. The Special Land Acquisition
Officer,
Visweswarayya Centre
III Floor, Podium Block
Dr. Ambedkar Road
Bangalore.
4. Agricultural Produce Market Committee
Yeshwanthpur,
Bangalore-22. ... RESPONDENTS
(Shir H. Anantha, Government Pleader for Respondent Nos.1 to
3, Shri B. G. Sridharan, Senior Advocate for Shri.
A.C.Balaraj, Advocate for respondent No.4)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the impugned
notification vide Annexure-B dated 13.04.1999 issued by the
respondent No.2 and also the notification at Annexure-C dated
26.10.1999 issued by the respondent No.1 in so far as the
petitioner is concerned and etc.
5
W.P.NO.708/2000
BETWEEN:
Viswaneedam Trust (R)
Represented by its Trustee
Smt. Mahadevi Thayi
Viswaneedam Post
Herohalli Village
Yeshwanthapur Hobli
Bangalore North Taluk. ... PETITIONER
(Shri B. B. Patil, Advocate)
AND:
1. State of Karnataka
Represented by its Secretary
Revenue Department Multi-
M. S. Buildings
Bangalore-560001
2. Special Land Acquisition
Officer, III Floor, Podium Block
Visvesvaraiah Towers,
Dr. Ambedkar Road,
Bangalore-560 001.
3. The Deputy Commissioner
Bangalore Urban District
Bangalore.
4. M/S. Jamnalal Bajaj Seva Trust
By its Chief Executive Officer
6
Sri. S.B.Pande, S/o. A. N. Pande
Age: 66 years, Viswaneedam Farm
Magadi Road, Bangalore.
5. Agricultural Produce Market Committee
Yeshwanthpur, Bangalore-22
Represented by its Secretary
... RESPONDENTS
(Shri Udaya Holla, Senior Advocate for Shri Brijesh Patil,
Advocate for respondent No.4 and Shri H. Anantha,
Government Pleader for Respondent Nos.1 to 3)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the impugned
notification dated 13.04.1999 vide Annexure-A and the
notification dated 26.10.1999 vide Annexure-B by the
respondents and etc.
IN W.P.19579/2001
BETWEEN:
Jamnalal Bajaj Seva Trust
Vishwa Needham Farm
Magadi Road, Bangalore
Represented by its trustees:
1. Sri. Rahul Bajaj
Trustee/Chairman
C/o. Bajaj Auto, Akrudi
Pune - 411035
2. Sri. Sekhar Bajaj
7
3. Sri. D. S. Mehta
4. Sri. Moharikar
5. Smt. Meenakshi Bajaj
6. Smt. Kiran Bajaj
7. Shri. Vinod Nevatia
Peititioners No.2 to 7 are residing at
Bajaj Bhavan, II Floor, 226,
Jamnalal Baja Marg, Nariman Point
Bombay - 400 021.
... PETITIONERS
(Shri Udaya Holla Senior Advocate for
Sri. Brijesh Patil, Advocate)
AND:
1. State of Karnataka
By its Secretary to
Government, Revenue
Department Multi-
Storeyed Buildings
Bangalore.
2. The Deputy Commissioner
Bangalore District
Kirshi Bhavan,
Bangalore.
3. The Special Land Acquisition
Officer, Visweswarayya Centre
8
III Floor, Podium Block
Dr. Ambedkar Road,
Bangalore.
4. The Secretary
Agricultural Produce Market Committee
Yeshwanthpur,
Bangalore. ... RESPONDENTS
(Shri H. Anantha, Government Pleader for Respondent Nos.1 to
3, Shri B.G.Sridharan Senior Advocate for Shri. A.C.Balaraj,
Advocate for respondent No.4)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the Karnataka Act
No.33/91 Annexure-K is illegal and unconstitutional and
thereby declare that the D.C., Has no authority to decide
whether the land is acquired for public purpose or not and issue
notification under Section 4(1) of the Land Acquisition Act and
etc.
These writ petitions coming on for Orders this day, the
Court made the following:
ORDER
These petitions are heard and disposed of together as they relate to the same lands, which are the subject matter. 9 Re. WP 3884/1999
The petitioner is said to be a Public Charitable Trust, said to have been formed in the year 1942 and later registered under the provisions of the Bombay Public Trusts Act, 1950 (Hereinafter referred to as the '1950 Act', for brevity). Its objects are said to be to promote the welfare of socially and economically backward classes. It claims to be the owner of lands bearing Survey Nos.12/1, 12/2, 13, 14, 16, 17,18,19 , 42 and 43/1 of Shrigandada Kaval, Bangalore North Taluk. The total extent of the lands, mentioned above, is said to be 172 acres 22 guntas. It is stated that the State government had issued a notification under Section 4(1) of the Land Acquisition Act, 1894, (Hereinafter referred to as the "LA Act", for brevity) dated 3.9.1994, proposing to acquire the aforesaid lands for the benefit of the Karnataka Agricultural Produce Marketing Committee (Hereinafter referred to as the 'APMC', for brevity) to establish what is billed as a, Mega Market complex. A final 10 declaration under Section 6(1) of the LA Act was said to have been notified as on 31.10.1996.
It is stated that Notice under Sections 9 and 10 of the LA Act was issued to the petitioner in respect of the above lands. It is pointed out that there is no reference to any publication of the final declaration under Section 6(1) of the LA Act, in the locality as contemplated under Section 6(2) thereof. The non- compliance with the said mandatory requirement, it is claimed, vitiates the acquisition proceedings.
It is also claimed that no award is passed and the possession of the lands have remained with the petitioner and hence it is contended that the acquisition proceedings have lapsed. It is stated that though the Special Land Acquisition Officer (SLAO) had issued an endorsement to the effect that a draft award had been made on 12.8.1998 and that the same had been sent for approval by the Government. This, it is stated, evidences that the approval of the award by the State Government had not been granted before 9.11.1998 i.e., within 11 two years from 31.10.1996, the date of publication of the final notification under Section 6 (1) of the LA Act.
Hence the present petition. There was an interim order, of stay of dispossession, granted by this court as on 8.2.1999. Re. WP 37140/2000
The petitioner is the same as in WP 3884/1999, which is said to be a Charitable Trust, formed in the year 1942 and later registered under the 1950 Act, in the year 1961.
The petitioner is said to hold agricultural lands at various places. Such lands are said to include the lands bearing survey no. 12/1, 12/2, 13, 14, 16, 17, 18, 19, 42, 43/1, 30, 31, 32, 43,44,45,46,47, 48, 49 and 52/2 measuring in all 272.33 acres 19 guntas of Shrigangada Kaval and Herohalli villages, Bangalore North Taluk.
As already stated in the first of these petitions, the above lands, to the extent of 172 acres and 22 guntas, were notified for acquisition under the provisions of the LA Act. Even 12 during the pendency of the above writ proceedings, it is stated that the State government chose to issue yet another notification, in exercise of power under Section 4(1) and Section 17(4) of the LA Act, read with the Karnataka Amendment Act 33/1991, dated 16.4.1999. The proposed acquisition was also said to be for the establishment of the very Mega Market complex for the APMC. The following lands belonging to the petitioner were notified:
Sl.No. Survey No. Area Total Area
Acres Acres
Guntas Guntas
1 30 1 01
0 04 PK 1 05
2 31 0 27 0 27
3 32 3 35
0 21 PK 4 16
4 41 1 01 1 01
5 42 1 20
0 01 PK 1 21
6 43 12 28
0 29 PK 14 17
13
7 44 8 04
2 31 PK 10 35
8 45 5 00
0 07 PK 5 07
9 46 4 00
0 05 PK 4 05
10 47 5 00
0 28 PK 5 28
11 48 4 26 4 26
12 49 2 36
0 04 PK 3 00
13 51 1 12 1 12
14 52 39 01
6 00 Pk 45 01
Grand total 104 00 104 00
However, it is stated that lands bearing Survey no.45,46 and 48 had been notified as if the lands belonged to a Trust known as the Viswaneedam Trust. It is claimed that the lands had been permitted, by the petitioner, to be utilized by the said Trust for a limited purpose and that the ownership continued to vest in the petitioner and hence the said lands being shown as being held by Vishwaneedam Trust was misleading. 14
It is also stated that none of the conditions for invoking Section 17 of the LA Act was present, hence it was unjust and illegal to have dispensed with the enquiry contemplated under Section 5A of the LA Act. It is also stated that the declaration under Section 6(1) of the LA Act was issued after a lapse of six months, and gazetted on 18.11.1999.
It is stated that, in the mean while, the Secretary to Government, Revenue Department had convened a meeting on 24.9.1999, to consider the value of the land to be paid as compensation for acquisition, by consent. It is claimed, that at the said meeting, the value of the lands at Shrigandada Kaval was said to have been fixed at Rs.15 lakh per acre and in respect of the lands at Herohalli, the value was fixed at Rs. 9.5 lakh per acre. It is claimed that the petitioner was awaiting payment of the said amount of compensation, but without paying any compensation and without issuing any notice to the petitioner, possession was claimed to have been taken of an extent of 65 acres and 37 guntas of land. It is in that 15 background that the present petition was filed. There was an interim order of stay granted on 4.12.2000.
The petitioner now claims that since the State government had not been able to abide by the agreement to pay compensation as aforesaid and having regard to the passage of time, even the amount of compensation then agreed has become illusory and inadequate.
It is further stated that a general award was said to have been passed by the SLAO in respect of an extent of 65 acres 19 guntas of land, as per notice dated 21.5.2002 issued to the petitioner, calling upon it to produce title deeds in order to receive the compensation amount. It is stated that by a reply notice dated 22.6.2002, the petitioner had, without prejudice to the rights of the petitioner and without giving up its challenge to the acquisition, is said to have made a request for the amount awarded. It is stated that out of 65 acres and 19 guntas, for which the award was said to have been made, the petitioner is said to have been paid compensation in respect of 32 acres 16 and 5 guntas only. It is stated that the award amount in respect of the remaining land is neither paid to the petitioner nor deposited in court as required under Section 31 of the LA Act. It is claimed that an extent of 33 acres and 14 guntas (out of 65 acres 19 guntas) comprises land belonging to the petitioner. But it is stated that the respondents are claiming the same to be government kharab land, without any basis, and have withheld the compensation amount though the said extent was notified in the name of the petitioner.
Further, it is stated that another significant development during the pendency of the petition is the coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act no 30/2013) (Hereinafter referred to as the '2013 Act', for brevity). The same is in force with effect from 1.1.2014. The LA Act stands repealed from the above said date.
It is claimed that under Section 24(2) of Act No.30/2013, as the award, in respect of the present proceedings had been 17 made on 21.5.2002, i.e., five years prior to the commencement of the said Act, but physical possession of the land not having been taken, the acquisition proceedings have lapsed. It is also claimed that the proceedings have lapsed in the further circumstance that though it is claimed that an award had been framed for 65 acres 19 guntas as on 21-5-2002, i.e., five years prior to the commencement of the new Act, compensation in respect of an extent of 33 acres 14 guntas had not been paid. Hence it is sought that it be declared that with the coming into force of the Act 30/2013, the acquisition proceedings stand lapsed.
Re.WP 708/2000
The petitioner herein, Viswaneedam Trust, is said to be a public charitable Trust, formed in the year 1963. The petitioner claimed to be the owner of lands bearing Survey Nos. 32, 42, 43, 44, 45, 46 and 47 measuring about 35 acres in all. It was claimed that the petitioner had grown a large number of coconut, areca, banana, mango and other fruit bearing trees in 18 the said lands. It was also claimed that there were structures such as residential houses, servants quarters and cattle sheds on the said lands. It was contended that though there were other barren lands in the vicinity, the State having chosen to issue the notifications dated 13.4.1999 and 26.10.1999, under Section 4(1) and Section 6(1) of the LA Act, respectively, proposing to acquire the aforesaid lands, the petitioner had filed the petition questioning the same.
There was a dispute about the petitioner's claim to ownership of the land, as it was claimed that respondent no.4, (the petitioner in WP 37140/2000 claimed to be the actual owner - who was said to have granted permissive possession to the petitioner herein) was the actual owner. During the pendency of this petition- it is claimed that the inter se dispute as between the petitioner herein and respondent no.4 has been resolved and the possession of the entire extent of land has been redelivered to respondent no.4, the petitioner in WP 37140/2000. The petition is hence infructuous. 19 Re. WP 19579/2001
This is the third petition filed by the very petitioner - Trust, as in WP 3884/1999 and WP 37140/2000.
The present petition is filed challenging the acquisition proceedings initiated vide notification under Section 4(1) and Section 17(1) of the LA Act in respect of lands bearing Survey nos.41,42 and 51 of Herohalli owned by the petitioner totally measuring 3 acres and 34 guntas. It is stated that after the issuance of the preliminary notification, no further proceedings have been taken and hence the acquisition proceedings had lapsed. It is stated that the petitioner continues in possession of the lands to date.
The State government has resisted the petitions and it is contended that the lands at Shrigandada Kaval, totally measuring 172 acres and 22 guntas, which are the subject matter of the first of these petitions - has indeed been notified for acquisition - for a public purpose. It is contended that the 20 procedure has been strictly complied with. In that, the preliminary notification under Section 4(1) of the LA Act was issued on 2.9.1994, the same was published in the Gazette on 3.9.1994 and in the village Chawadi on 11.10.1994 in respect of the said lands. The notice under Section 4(2) of the LA Act was issued to the Petitioner -Trust and an enquiry under Section 5-A was conducted. The Petitioner- Trust had filed its objections. The objections were considered and over-ruled and a final notification under Section 6(1) of the LA Act was issued on 10.10.1996 and the same was published in the gazette on 31.10.1996.
That after the preliminary notification dated 3.9.1994 and the publication in the Village Chawadi on 11.10.1996, one Rajajinagar House Building Co-operative Society, had filed a writ petition in WP 28988/1994 before this Court and there was an order of stay of further proceedings on 22.12.1994, which continued to be in force upto 22.12.1995. The said writ petition was dismissed on 22.12.1995 and the final notification under 21 Section 6(1) of the LA Act was issued on 10.10.1996 and the publication in the Village Chawadi was on 6.12.1996. Thereafter, the Rajajinagar House Building Co-operative Society, again, had filed another writ petition in WP 6880 of 1997 and there was yet another order of stay of proceedings on 10.9.1998. It is contended that an enquiry under Sections 9 and 10 of the LA Act had been completed and the draft award had been sent to the Deputy Commissioner and the same had been returned on noticing that there was an order of stay in the above proceedings, on 31.3.1999.
It is contended that the assertion as to there being a violation of Section 11-A of the LA Act and the award not being passed within two years and the proceedings having lapsed under Section 11-A are not tenable. It is stated that from the date of notifications under Sections 4(1) and 6(1) of the LA Act, excluding the period during which there were orders of stay of the proceedings in various writ petitions, the 22 notifications were well within time and the award would therefore be valid.
The APMC, which was impleaded as a respondent in the first of these petitions, has admitted that by a notification dated 2.9.1994 issued under Section 4(1) of the LA Act, land measuring 172.22 acres land, of Shrigandadakaval village, Yeshwanthpur Hobli, Bangalore North Taluk, was proposed to be acquired for a public purpose, namely, for the establishment of a Mega Market by it. And that declaration was made by issuing a final notification under Section 6(1) of the LA Act on 10.10.1996 declaring that the said lands were being acquired for the above purpose. It is claimed that on the basis of instructions by the SLAO, Bangalore, that it had deposited a sum of Rs.9,14,14,837/- on 29.8.1998 towards the approximate cost of acquisition.
It is further stated that by a separate notification dated 13.4.1999 issued under Section 4(1) of the LA Act, an area measuring 104.5 acre situated at Herohally village, 23 Yeshwanthpur Hobli, Bangalore North Taluk, was proposed to be acquired for formation of the same Mega Market by it. The said lands were situated adjacent to the lands proposed to be acquired at Shrigandadakaval. It is asserted that after following the necessary procedure, a declaration was made under Section 6(1) of the LA Act, on 26.10.1999. It is stated that while issuing the notification, instead of mentioning the total area as 104.5 acre, an area measuring 100.11 acres of land in Herohally was declared to have been acquired for a public purpose. It is claimed that at the request of the SLAO, it had deposited a sum of Rs.5,56,09,054/- on 6.12.2000 towards the approximate cost of acquisition for the entire extent of 104.5 acre. It is pointed out that when the final notification indicated 100.11 acres of land was acquired, leaving out 3.34 acre, it is stated that the APMC had made a representation to the State Government to bring to its attention that the said area of land could not have been left out, as the same was situated in the midst of the area of land to be acquired. It was also demonstrated that without 24 acquisition of the said extent of land, APMC would not be in a position to effectively form a Mega Market. Therefore, it was requested that the said portion of land also be acquired. It is thereafter that a preliminary notification dated 3.4.2001 was issued under Section 4(1) of the LA Act, proposing to acquire 3.34 acres of land situated in Herohally village for the purpose of formation of a Mega Market.
It is claimed that after the final notification was issued in respect of lands situated in Herohally village, the concerned authority had passed an award in respect of 100.11 acres and thereafter delivered possession of 65.19 acres to the APMC on 6.10.2000 and out of 65.19 acres of land handed over to the APMC, 33.14 acres was said to have been notified as phut kharab in the revenue records. And that after taking delivery of possession of 65.19 acres, the APMC has fenced the said area with barbed wire at a cost of Rs. 3,96,299/- and had also made security arrangements to the protect the said area. 25
It is stated that a writ petition, in WP 6880/97 was presented before this Court by the Rajajinagar House Building Co-operative Society, challenging the acquisition of 172.22 acres of land situated at Shrigandadakaval, for the benefit of the APMC, on the ground that the said land ought to have been acquired for the benefit of the Society for the formation of a residential colony and ought not to have been acquired for the purposes of a Mega Market.
It is stated that it was in the above circumstances that the writ petition in WP 3884/1999 challenging the preliminary notification dated 3.9.1994 and the final notification dated 10.10.1996, acquiring 172.22 acres of land situated at Shrigandadakaval for the benefit of the Market Committee, was filed by the petitioner - Trust and that there was an order of stay of dispossession.
It is stated that the writ petition in WP 708/2000 filed by one Vishwaneedam Trust challenging the preliminary notification dated 13.4.1999 and the final notification dated 26 13.4.1999 acquiring 100.11 acres of land situated at Herohally village, Yeshwanthpur Taluk, Banglaore North Taluk, for the purpose of formation of a Mega Market, but had confined its claim to an extent of 35 acres of land, on the ground that it was the owner of the said portion of land. And that an interim order had been granted in the said writ petition on 13.1.2000 by this Court, staying dispossession.
It is contended that except WP 19579-85/2001, all the other writ petitions were referred to the High Court Lok Adalat with a view to find out as to whether a conciliation could be effected for fixation of market value in respect of the acquired lands by an amicable settlement. A series of sittings are said to have taken place and at one stage of the proceedings, it was pointed out by the APMC before the Lok Adalat that no reliance could be placed on the proceedings of the meeting dated 24.9.1999, which was relied upon by the petitioners for the purpose of fixation of market value, for the simple reason that the said proceedings were cancelled subsequently at 27 another meeting held on 6.1.2000. Further, it was pointed out that the entire item of lands involved in these writ petitions were subject matter of proceedings before the Land Tribunal, Bangalore, as regards determination of land holdings in excess of the ceiling limit prescribed thereunder. Therefore, it was contended that if the Tribunal were to hold that the lands vest in the State Government, then the question of payment of compensation would not arise and as such it was pointed out before the Lok Adalat that it would not be appropriate to go into the question of market value of the schedule lands and to fix the same. It is in that background the cases were referred back to this Court.
The State government, in the second of these petitions (WP 37140/2000), has also pointed out that the lands involved in these petitions are subject matter of proceedings before the Land Tribunal, Bangalore North Taluk under Section 67(1)(b) of the Karnataka Land Reforms Act, 1961 (Hereinafter referred to as the 'KLR Act', for brevity).
28
As already stated, the acquisition proceedings pursuant to the preliminary notification dated 30.9.1994, were stayed by an order passed in writ proceedings filed by the Rajajinagar House building Society, challenging the acquisition proceedings, in WP 28988/1994, dated 22.12.1994 and that order had remained in force till the petition was said to have been dismissed on 23.12.1995. It is only thereafter that the final declaration was said to have been issued on 10.10.1996. Therefore, excluding the period during which the order of stay was in operation, the final notification has been issued within the stipulated period of one year.
That in so far as the lands which are the subject matter of acquisition at Herohally are concerned, it is stated that the notification under Section 4(1) of the LA Act was issued on 13.4.1999, invoking Section 17 of the LA Act, an enquiry under Section 5-A was dispensed with. It is stated that the enquiry under Sections 9 and 10 of the LA Act, was said to have been conducted on various dates including on 15.2.2000. It is 29 claimed that the land owners, who had participated had sought for time to voluntarily hand over possession of the lands - but had failed to do so. It is claimed that ultimately, possession of the lands was said to have been taken on 6.10.2000 and a notification under Section 16(2) was said to have been published on 2.11.2000.
It is denied that there was a final settlement as regards the proposal to pay compensation, which was tentatively pegged at Rs.9.50 lakh per acre, in respect of the lands at Herohally and Rs.15.00 lakh in respect of the lands at Srigandada Kaval. It is claimed that the acquiring body was not in favour of the settlement and hence the proposal was not finalized. It was decided by the State government to frame a general award It is asserted that the meetings held to discuss the proposed valuation and the correspondence exchanged was hence not in the nature of firm decisions of the State government and were tentative attempts towards making a consent award. It is 30 contended that the petitioner cannot claim any advantage on the basis of the said meetings and discussions.
It is admitted by the State Government that the compensation amount has not been paid or deposited in view of the subject lands being subject matter of proceedings before the Land Tribunal, Bangalore North Taluk, and that the matter is awaiting adjudication before the said Tribunal.
It is asserted that the acquisition notifications have been issued in time. That the acquisition of lands at Shrigandada Kaval was under the ordinary procedure and hence an enquiry under Section 5-A was conducted and a report was submitted to the government. Whereas in respect of the lands at Herohally, the emergency clause was invoked and hence a notice under Section 4(2) of the LA Act was issued, but an enquiry under Section 5-A was dispensed with and an award was said to have been made and approved, but there was an order of stay in these proceedings and hence no further steps could be taken. In respect of Shrigandada Kaval, it is claimed that the award was 31 framed but before it could be approved - there was an order of stay of dispossession as per order dated 13.1.2000 and hence there were no further proceedings.
2. Shri Udaya Holla, Senior Advocate appearing on behalf of the counsel for the petitioner - Trust, would, while reiterating the above contentions on behalf of the petitioner, emphasize that admittedly, the very lands which are the subject matter of the acquisition proceedings, were also the subject matter of adjudication under the provisions of the KLR Act. And since it has been the consistent view taken in collateral proceedings before this court as well as in the present proceedings, that the challenge to the acquisition proceedings could not be proceeded with, without the proceedings under the KLR Act attaining finality, it would follow that the acquisition proceedings itself were misconceived for if there should be a determination of the excess holding declared and should the land vest in the State government, the acquisition proceedings are rendered redundant. On the other hand, should 32 any part of the land be held by the Tribunal, not to be excess holding, then the acquisition proceedings being kept in abeyance, pending such determination, albeit at the instance of this Court, would be to the serious prejudice and loss of the petitioner, in the petitioner being granted compensation with reference to proceedings initiated decades ago.
It is contended that the 2013 Act having come into force, the LA Act stands repealed. In terms of Section 24(2) of the 2013 Act, in the background that an award for an extent of over a 100 acres of land is purportedly made in the year 2002 (26.3.2002) i.e., five years prior to the 2013 Act coming into force (1.1.2014), and since neither physical possession has been taken nor the compensation amount had been paid or deposited, in accordance with law, the acquisition proceedings are deemed to have lapsed. It is pointed out that the award being in respect of 100 acres and 11 guntas, compensation in respect of 69 acres and 14 guntas has neither been paid or deposited in accordance with law. It is also stated that it is a fact that out of the partial 33 amount in deposit, the petitioner has withdrawn a sum of over Rs.2 crore, this was without prejudice to the right of the petitioner to prosecute the challenge brought to the acquisition proceedings or the same being treated as an indication of acquiescence. Especially in the light of an agreed amount of compensation that was to be paid in terms of the minutes of a high level meeting dated 24.09.1999, convened under the Chairmanship of the Principal Secretary, Revenue Department, wherein the valuation of the lands in question was settled in order to pass a consent award.
It is further contended that apart from the physical possession of the petitioner being protected under the orders of this court from time to time in the above petitions, even the extent of 65 acres 19 guntas of land in respect of which physical possession is said to have been handed over to the APMC by the SLAO is misleading and disputed. It is contended that the significant aspect to be considered as to when and how the purported possession was taken of the said 34 extent in question from the petitioner by the SLAO. It is sought to be demonstrated from the record and with reference to case law- that possession of the land cannot be said to have been taken in fact and in law from the petitioner. It is further asserted that the purported possession exercised by the APMC is by virtue of applications by it before this court seeking permission to fence the said extent of land, being granted in the face of strong opposition by the petitioner that APMC was not in possession at all. The impression that APMC was in physical possession was further strengthened by making an application seeking permission of this court, to purportedly hand over an extent of 9 acres of land out of the 65 acres, to the Bangalore Development Authority (BDA) and the Bangalore Water Supply and Sewerage Board (BWSSB), for the purpose of formation of a road by the BDA and for the construction of a overhead tank by the BWSSB. This court, while fully being aware that such a permission could only be considered at the instance of the State government, had proceeded to grant such 35 permission - in the wake of a lackadaisical attitude of the State government and its counsel in taking any steps in that direction. Hence the assertions of the APMC of being in physical possession is untenable and illegal.
It is contended that the acquisition proceedings in respect of lands at Shrigandada Kaval and at Herohally being for the same purpose of establishment of a Mega Market by the APMC, it is inexplicable that resort is had to Section 17 of the LA Act, and it is also perplexing that this is only in respect of the lands at Herohally - while the normal procedure is sought to be followed in respect of the lands at Shrigandada Kaval. It is contended that having regard to the object of the acquisition, the invocation of the emergency provision is wholly irregular and results in a miscarriage of justice in the petitioner being deprived of a valuable right of participation at an enquiry preceding the acquisition.
A large number of authorities are cited to substantiate the above contentions and in seeking that having regard to the 36 present circumstances of the case and the position of law, relief may be appropriately granted to the petitioner.
3. The learned Senior Advocate, Shri B. G. Sridharan, appearing on behalf of the learned counsel for the APMC would, on the other hand, contend, that in the admitted circumstance that there were proceedings pending before the Land Tribunal, Bangalore North Taluk, in respect of the very same lands and the Land Tribunal by its order dated 12.1.2010 having determined the lands as being excess holdings, which would vest with the State government and which was the subject matter of challenge in proceedings before this court in WP 4311/2010, having now been allowed by an order of this bench, dated 24.3.2014, and the matter having been remitted to the Tribunal for a fresh consideration - it would be appropriate that these petitions be kept in abeyance pending disposal of the said proceedings by the Tribunal. Attention is drawn to the view expressed by another learned single judge, in a similar situation, in these very proceedings, dated 25.10.2005. 37 The said order reads as follows :
"In view of the order passed in W.P.No.46841/01 directing the Land Reforms Tribunal to proceed with the enquiry and as the finding to be recorded by the Land Reforms Tribunal will have direct bearing in deciding these writ petitions, these writ petitions are adjourned awaiting the decision of the Land Tribunal.
Liberty is given to both the parties to move the court after the order of the Land Tribunal is passed." It is pointed out that the recourse to such a line of action is for the obvious reason that if the lands in question are found to be excess holdings, exceeding the ceiling limit under the provisions of the LR Act, the same would vest in the State and would be available to be handed over to the APMC, without the need for acquisition proceedings. Even if it is to be found otherwise, the acquisition proceedings having reached almost the final stages and the APMC having deposited over Rs.15 crore towards the cost of acquisition, at the cost of the exchequer, should not to be deprived the opportunity to contest 38 the proceedings should such an eventuality arise. In the meanwhile , the loss if any is entirely of the APMC and would cause no prejudice to the petitioner, if these proceedings are kept in abeyance pending adjudication by the Tribunal.
It is contended that even if this court is now inclined to hear the petitions on merits, it is to be seen that the acquisition proceedings had attained finality in all respects, except that there were interim orders of stay of dispossession granted in favour of the petitioner which had prevented the proceedings from reaching a culmination.
It is sought to be pointed out that the APMC as the beneficiary of the acquisition intends to establish a market for the benefit of the farming community and the public in general, the urgent need for the establishment of the market and the direct benefit that it would bring to the consumer- apparently had prompted the State government to invoke the emergency provision in respect of the acquisition of lands at Herohally. 39 This was also possibly warranted given the impediments that were posed to the acquisition of the lands at Shrigandada Kaval. It is asserted that the APMC has been put in possession of a total extent of 65 acres 19 guntas of land at Herohally, as recorded under the Official Memorandum of the SLAO, dated 6.10.2000, in respect of the following items of land :
Survey Numbers in Herohalli Extent
Village, Bangalore North
Taluk, Bangalore
30 1 - 05
31 0 - 27
32 4 - 16
43 1 - 03
44 5 - 21
48 4 - 26
49 3 - 00
52:2 45 - 01
TOTAL 65 - 19
40
It is also pointed out that the entire extent has been fenced and protected from third party intruders.
It is further pointed out that there is a categorical admission on behalf of the petitioner - Trust that possession of the land had been voluntarily delivered as per letter dated 22.6.2002 and hence the petitioner is estopped from contending that possession of the lands, atleast to the extent of 65 acres 19 guntas was not taken and handed over to the APMC.
It is further contended that the contention as to the coming into force of the 2013 Act and the consequent lapsing of proceedings, is not tenable having regard to the fact that the proceedings initiated under the LA Act are saved, in the absence of any delay attributable to any inaction on the part of the State Government in either taking possession within the stipulated time or in paying compensation within the prescribed period. On both counts , it is contended, that in view of the interim orders granted by this court in the course of these 41 proceedings, it cannot be construed that Section 24(2) would come into play.
It is also contended that the several authorities cited by the other side would be authorities for the cases decided therein and unless it is shown that the same can be applied to the facts and circumstances of the present case on hand the same would not be relevant. It is hence contended that the petitions be dismissed, if in the event that this court is not inclined to defer the matters, in the light of the contention hereinabove.
4. In the light of the above contentions and on an examination of the record, the points that would arise for consideration are as follows :
a. Whether the disposal of these petitions should be deferred pending adjudication and determination by the Land Tribunal, Bangalore North Taluk, of the excess holdings or otherwise , under the provisions of the Karnataka Land Reforms Act, 1961, of the very lands which are the subject matter herein.42
b. Whether the possession of a portion of the lands in question having said to have been given to APMC , can be said to be valid and in accordance with law.
c. Whether the invocation of Section 17 of the LA Act in the acquisition of a portion of the lands for the same purpose was justified .
d. Whether the acquiring authority could keep in abeyance the mandate to pay or deposit the compensation amount, pending disposal of the proceedings before the Land Tribunal in respect of the same lands.
e. Whether the acquisition proceedings have lapsed by virtue of the 2013 Act.
As regards the first point hereinabove, is concerned, there is no dispute that the proceedings under the provisions of the KLR Act had been initiated much earlier to the Land Acquisition proceedings, in respect of the same lands. It has been the consistent view that the said proceedings pertaining to 43 the determination of excess holding of lands beyond the ceiling limit, is to be adjudicated in the first instance by the Land Tribunal, before which the said proceedings are pending, and that depending on the result of those proceedings, it may or may not require these proceedings to be addressed. In that, if the Land Tribunal should hold that the better portion of the lands are excess holdings, the same would vest in the State, in which event the acquisition proceedings to that extent would be rendered infructuous. On the other hand, if the result is otherwise it would then be necessary to decide these petitions, one way or the other.
One of the compelling factors, in this court having formed an opinion as to the propriety of keeping these proceedings pending and in abeyance, till the decision of the Land Tribunal and having adjourned the matter indefinitely, on an earlier occasion, is the fact that the APMC, which is the beneficiary of the acquisition proceedings has deposited a substantial sum of money towards the cost of acquisition and 44 has also expended other sums of money to safeguard that portion of the lands of which it claims to have been put in possession of by the acquiring authority.
The other circumstances which are probably relevant in this court harbouring such a view, are that during the pendency of these proceedings, the APMC had made an application in I.A.No.1/2007, in W.P.37140/2000 seeking permission of this court to deliver possession of 9 acres of land out of land bearing Sy.no.52 of Herohalli, in favour of the Bangalore Development Authority and the BWSSB, from out of the portion of 65 acres and 19 guntas of land of which the APMC was said to have been put in possession. This was in the background that the BDA which was said to be forming a residential layout in the vicinity intended to form a ring road to provide connectivity to the said layout and hence required about 5 acres of land in land bearing Sy.no.54 for the said purpose and had made a request to the APMC, and a decision is said to have been taken to 45 surrender the said extent to the BDA. A similar request is said to have been made by the BWSSB for 4 acres of land to build a water storage tank. This was also said to have been agreed to by the APMC. At the hearing of the application it was pointed out that the APMC may not have the authority or the locus standi to seek any such relief, and any such request ought to have emanated from the State. The counsel for the State Government had then been called upon to make their stand clear and to take necessary steps, as the need of the concerned authorities was apparently for an urgent public purpose. But having regard to the laconic attitude of the counsel for the State, who chose not to take any initiative, as recorded by this Court in its order dated 21-3-2007, the hand of this court was forced to pass the following order, even in the absence of the State Government conceding such a modality.
"(1) Application is allowed. Permission sought for by the fourth respondent to handover 9 acres of land as mentioned in the accompanying sketch to enable the Bangalore Development Authority to form 46 100 feet ring road and the remaining extent of land to BWSSB to construct a water tank to supply water to the residents of Sir M. Vishweswaraiah Layout is granted. To that extent, interim order granted by this Court on 4.12.2000 stands modified. However, the compensation payable to the petitioner for the aforesaid lands would be subject to the result of this writ petition, and Bangalore Development Authority and BWSSB would be liable to pay compensation to the extent of the land made available to them at the rate to be stipulated by this Court.
(2) The Land Reforms Tribunal, Bangalore North Taluk, Bangalore is directed to dispose of the petitioner's application filed under section 66 of the Karnataka Land Reforms Act which is numbered as LRF 2099/74-75 on its file within three months from the date of communication of this order and send a copy of the order to this Court to enable this Court to dispose of these pending writ petitions. The Government is directed to ensure that the directions issued in this order are complied with."
Further, there was yet another application in I.A.no.3/2008, filed by the APMC, to contend that after it was 47 said to have been put in possession of about 65 acres and 19 guntas of land in Herohalli, the entire extent had been fenced with barbed wire, but it was noticed that the said fencing was being systematically dismantled and that there were attempts at encroachment by several persons, apart from debris being dumped on the land in question, hence permission was sought to build a compound wall around the area. This application had been allowed by an order dated 12.2.2009, thus :
"Under these circumstances the interest of justice demands the extent of land, the possession of which is given to the fourth respondent is to be protected so that third parties interest are not created during the pendency of the proceedings. However, it is made clear if the fourth respondent were to put up any compound wall, it is always subject to the result of these petitions. The permission granted by this Court to put up the compound wall or the fact that the fourth respondent had spent considerable amount in putting up the construction would in no way affect the rights of the petitioners and the fourth respondent cannot plead any equities on that ground. The ultimate object is to protect the property and to hand over the property to 48 the successful party. When the fourth respondent has come forward to spend the money from its pocket, protect the property and await the decision of this Court, there cannot be any objection from any quarter for taking such steps for protecting the property and preserving the property. The order of status quo has to be understood in that context.
4. In that view of the matter, I.A.3/2008 is allowed as prayed for. It is made clear that the fourth respondent shall not plead any equity and the said construction would be subject to the result of the Writ Petitions. The successful party would be entitled to the benefit and improve on this property."
It is hence understandable that this Court has consistently retained these matters on the file of this Court, to ensure a finality. But with the 2013 Act coming into effect, the petitioner has sought to urge that the benefit of the provisions of the said Act would be available to it. In this regard, an application dated 24.02.2014 seeking to invoke the benefit of the 2013 Act has been filed. The same is only to urge a point of law.
49
It is to be noticed that apart from the interim orders restraining the State from proceeding with the acquisition proceedings, granted from time to time in these petitions, there are also other petitions filed by third parties - in which there were interim orders restraining the State from proceeding with the acquisition proceedings - inspite of the same, as claimed by the APMC, substantial amounts towards the cost of acquisition had been deposited by it before the possession of atleast 65 acres and 19 guntas were handed over to it out of a total extent of about 276 acres and 27 guntas notified for acquisition. Such possession is said to have been handed over on 6.10.2000. But it is not in dispute that the entire compensation amount had not been released nor was the petitioner held entitled to the same. Though the withdrawal of about Rs.2.37 crore is admitted by the petitioner, this is said to have been under protest and without prejudice to the challenge to the acquisition proceedings. The State government has categorically admitted in its pleadings that the payment of compensation has been 50 withheld in view of the pending proceedings before the Land Tribunal, in respect of the very lands of the petitioner.
Paragraph 8 of the Statement of objections dated 25.9.2002, filed on behalf of the State in WP 37140-146/2000 reads thus :
"8. Regarding the allegations in paras 8 to 10 of the writ Petition that the compensation as per the Act could not be paid to the land owners as held in the Writ Petitions at Srigandakaval and Herohally village on the ground that there is a dispute over the lands in question and it is to be adjudicated by the Land Tribunal, Bangalore North Taluk under the provisions of the Act under Section 67(1)(b) and the matter is still pending before the Land Tribunal and the petitioners have appeared through their Advocates and the matter has to be decided."
This Court has also recorded as per order dated 4.12.2000 while granting an interim order as follows:
"The petitioners have filed these petitions for quashing the preliminary notification dated 13.4.1999 (Annexure-B) issued under Section 4(1) and 17(4) of 51 Land Acquisition Act, 1894 and final notification dated
26.10.1999 (Annexure-C) issued under Section 6(1) of the Land Acquisition Act, 1894 in regard to petitioners' land measuring 104 acres 5 guntas (situated in Sy.No.30, 31, 32, 41, 42, 43, 44, 45, 46, 47, 48, 49, 51 and 52 of Herohalli Village, Yeshwanthpur Hobli, Bangalore North Taluk). Alternatively, petitioners have sought a direction to respondents to pay compensation in terms of the proceedings dated 29.4.1999 (Annexure-D). The interim prayer sought is stay of the operation of the said preliminary notification dated 13.4.1999, final notification dated 26.10.1999 (Annexure-B and C) insofar as the lands of the petitioners are concerned.
2. Learned counsel for the APMC (4th respondent) submitted that fourth respondent has deposited a sum of Rs.4,98,92,264/- with the 3rd respondent on 19.4.2000, and will also deposit a further sum of Rs.67,16,719/- as required by the Special LAO during this week, towards the acquisition. He also stated that 3rd respondent has taken possession of 65 acres 19 guntas of land in pursuance of Annexure-B and C and has delivered possession thereof to the APMC, on 6-10-2000.
3. Section 17(3A) provides that before taking possession of any land under sub-Section (1) of Sub- 52 section (2), the Deputy Commissioner shall without prejudice to the provisions of Sub-Section (3), tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, sub-section (2), and where the Collector is so prevented, the provisions of Section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.
4. Learned Government Pleader submitted that 80% payment could not be tendered because the Assistant Commissioner has addressed a letter to the Special Land Acquisition Officer on 26.5.1999 stating that dispute under the Karnataka Land Reforms Act, 1961 is pending in regard to the lands and therefore, 80% of the estimated compensation could not be disbursed till the disposal of the disputes.
5. But, strangely, four months thereafter, at a meeting held on 24.9.1999, in which the Revenue Secretary, Divisional Commissioner, Bangalore Division, Inspector General of Stamps and Registration, Bangalore, Special Deputy Commissioner, Bangalore, Deputy Secretary to Government, Revenue Department, Additional 53 Director, Agriculture Department, Additional Director, Agriculture Department, District Registrar, Special Land Acquisition Officer, took part along with the representatives of APMC and the petitioner, a price of Rs.15 lakhs per acre for Lands in Srigandadakaval and Rs.9.5 lakh per acre for the lands in Herohalli was fixed and Khatedar were required to execute agreements in Form-D. It is however stated today that the said proceedings of the meeting dated 24.9.1999 were subsequently cancelled on 6.1.2000. The respondents have not yet produced such cancellation, or the basis of the estimation of compensation leading to the alleged deposit.
6. On the basis of the documents produced by the petitioners, there is prima-facie violation of Section 17(3A). The respondents are yet to produce any document to come to a conclusion to the contrary. Hence, there shall be an interim direction to all parties to maintain stauts-quo in regard to the lands in question until further orders. Liberty is reserved to respondents to file statement of objections and documents and seek modification or vacation of the interim order. List the matter for preliminary hearing in 'B' group on 4.1.2001."
54It is thus evident that the State Government had no intention, from inception, to release the compensation amount pending disposal of the proceedings before the Land Tribunal.
It is also curious that the State Government in its pleadings has been non-commital as regards the deposit of the monies by the APMC and as regards possession of any portion of the land having been handed over to it, or about the corresponding compensation having been paid or deposited before such possession could have been taken or handed over to APMC.
In the above circumstances, there is indeed a window which has opened for the Petitioner in seeking the benefit of the provisions of the 2013 Act. It would hence be unfair and unjust to keep these petitions pending and to enable the State to claim that the delay or inaction if any, in the due process of law and procedure being complied with in respect of the acquisition proceedings, is only on account of the interim orders granted in 55 these proceedings, when in the usual course the proceedings would have lapsed if it is to be accepted that without the proceedings before the Land Tribunal attaining finality, the acquisition proceedings could not be taken forward.
Therefore in the above circumstance, it is not fair and just to keep these matters in abeyance pending any decision by the Land Tribunal in respect of the subject lands.
In so far as the second point framed for consideration is concerned, the APMC is said to have been put in possession of an extent of 65 acres and 19 guntas of land of Herohalli. The sequence of events leading to the event of APMC having been put in possession as above, is said to be as follows. The said extent of land is part of the larger extent of land measuring 104.05 acres, which was proposed to be acquired vide preliminary notification under Section 4 (1) read with Section 17 (4) of the LA Act, dated 13.4.1999. The final declaration under Section 6 (1) of the LA Act was dated 26.10.1999. At 56 this stage one Vishvaneedam Trust claiming interest in a portion of land measuring about 35 acres of the said land had preferred the aforementioned writ petition in W.P.708/2000, and an interim order was issued staying dispossession over the said extent.
A notice of an enquiry under Sections 9 & 10 of the LA Act, to be held on 19.4.2000 is said to have been served on the petitioner. It is thereafter that an Official Memorandum is seen to have been issued, dated 6.10.2000, of handing over possession of 65 acres 37 guntas of land to the APMC. The writ petition in W.P.37140-146/2000 was filed by the petitioner and an interim order directing the parties to maintain status quo was issued by this court on 4.12.2000. The APMC is said to have deposited a sum of Rs.5.56 crore as on 6.12.2000 with the Special LAO, at his instance, towards the approximate cost of acquisition for the entire extent of 104.05 acres of land.
Thereafter, the Special LAO is said to have passed an award on 26.3.2002 in respect of the entire extent of 100 acres 57 and 11 guntas of the lands notified. (An area of 3 acres and 34 guntas was inadvertently left out in the final declaration and therefore a separate notification under Section 4 (1) of the LA Act was issued on 3.4.2001) A notice dated 21.5.2002 was issued to the petitioner to receive the compensation amount. The petitioner is seen to have replied by a notice dated 22.6.2002 requesting that the compensation amount be paid without prejudice to the challenge to the acquisition proceedings in the present proceedings. The petitioner is said to have received compensation in a sum of Rs.2.37 crore in respect of 32 acres and 5 guntas, apparently excluding 35 acres which was the subject matter of the Writ petition in W.P.No.708/2000 and another extent of 34 acres 14 guntas comprising unreserved kharab land claimed by the petitioner as its own and which was notified for acquisition in the name of the petitioner. A memo filed in these proceedings by the APMC dated 17.7.2003 would state that the remaining amount of the compensation amount is kept with the Special LAO . It 58 is not claimed to have been deposited in court as contemplated under Section 31 of the LA Act. The mandate of Section 17 (3-A) (1) of the LA Act, which requires payment of 80% of the compensation amount has not been followed.
Having regard to the above sequence of events, it cannot be said that the manner in which possession is said to have been taken and handed over to the APMC was legal and valid. The fact that the petitioner had received a portion of the compensation amount under protest and has, at a point of time, admitted to having delivered possession of some extent of the lands atleast, as disclosed in a letter dated 22.6.2002, wherein the petitioner has complained that it was mislead into believing that it would be paid compensation as per the decision at the meeting convened by the Secretary to Government of the Revenue Department and attended by the Principal officers of the APMC, apart from other officials of the State Government , wherein it was agreed that compensation would be paid to the 59 petitioner at a market value of Rs.15 lakh per acre for lands at Srigandada Kaval and at Rs.9.50 lakh per acre for lands at Herohalli. It was on that basis that a request had been made to deliver possession of the extent of 65.19 acres of land. The fact that the petitioner has received a portion of the compensation amount under protest is in consonance with the proviso to Sub- section (2) of Section 31 of the LA Act. The petitioner also claims to have made a reference to the competent civil court as regards the adequacy of the compensation, at that point of time. In so far as the third point for consideration is concerned, it is a noticeable feature that the lands of the petitioner which are sought to be acquired at Srigandada Kaval and the lands at Herohalli are adjoining lands and are apparently sought to be acquired as a compact block for the same purpose of establishing a Mega Market by the APMC. The State has however, chosen to apply the ordinary provisions of the LA Act in respect of the lands at Srigandada Kaval, while invoking the urgency provision in respect of the lands at Herohalli. It is 60 evident that under Section 17 of the LA Act, the existence of urgency is the guiding factor, it is not left to the subjective determination of the State government, but would have to be objectively decided by the Government considering all circumstances. The above glaring circumstance can hardly be explained. In any event there is not even an attempt by the State Government to explain this incongruity. Therefore, it may be said that the urgency in acquisition is not apparent.
In respect of the lands at Srigandada Kaval, measuring a total extent of 172 acres and 22 guntas and which are the subject matter of the notification under Section 4(1) dated 3.9.1994, and declaration under Section 6 (1) dated 31.10.1996, it is noticed that there is no indication of publication of the declaration under Section 6 (1) in the locality, as mandated under Section 6 (2) of the LA Act. The Special LAO had issued an endorsement to the effect that a draft award was made on 12.8.1998 and the same had been sent for approval by the 61 Government. This would indicate that the award was not approved by the State Government on or before 9.11.1998, i.e., within two years from 31.10.1996, the date of publication of the notification under Section 6 (1) of the LA Act. The writ petition challenging the acquisition was filed on 4.2.1999.
In respect of the lands at Herohalli, measuring a total extent of 104 acres belonging to the petitioner, which were the subject matter of the notification under Section 4 (1) read with Section 17 (4) of the LA Act dated 16.4.1999, declaration under Section 6 (1) was issued as on 18.11.1999. Possession of the lands to the extent of 65 acres and 37 guntas is said to have been taken by the Special LAO and handed over to the APMC as on 6.10.2000. The entire amount of compensation is neither shown to have been paid or deposited in accordance with law. The said acquisition was challenged in the above writ petition in W.P. 37140-146/2000, there was an interim order directing parties to maintain status quo, as on 4.12.2000. During the 62 pendency of the petition, the Special LAO is said to have passed an award dated 26.3.2002 in respect of 100.11 acres of the said lands; It is evident that the award is passed well beyond two years from the date of the final notification. In respect of 3 acres and 34 guntas of land at Herohalli, which ought to have been part of the lands notified for acquisition under the notification dated 16.4.999 and which had been apparently excluded inadvertently, were notified for proposed acquisition, for the same purpose of establishment of the Mega Market by the APMC, vide notification dated 3.4.2001, issued under Section 4(1) read with Section 17(4) of the LA Act. The above writ petition in WP 19759-85/2001 was filed challenging the notification, there was no order of interim stay in the said petition. But no further proceedings were taken and there is no declaration under Section 6 of the LA Act.
Further, the 2013 Act having come into force with effect from 1.1.2014, the LA Act stands repealed. It is seen that an award for the entire extent of 100 acres and 11 guntas of the 63 lands at Herohalli has been made in the year 2002. As possession of the entire extent has not been taken nor the entire compensation amount has been paid or deposited in accordance with law, in terms of Section 24 (2) of the 2013 Act, the acquisition proceedings have lapsed.
In this regard, the apex court in the case of Bharat Kumar vs. State of Haryana & Another (Civil Appeal No.1971/2014), while interpreting the scope and effect of the said Section 24 of the 2013 Act has held thus :
"7. The learned counsel appearing for the appellant, apart from the other contentions, would bring to our notice Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (for short "the Act, 2013"). He would contend that in view of Section 24(2) of the Act, the award passed by the Land Acquisition Collector is required to be set aside. In aid of this submission, the learned counsel would submit that although the award had been passed in the appellant's case, the physical possession of the land had not been taken and the compensation has also not been paid to the appellant. In support of this 64 contention, the appellant has taken us through the pleadings, both in the Writ Court as well as before this Court, to contend that the physical possession of the land continues to be with the appellant, in spite of the award being passed by the Land Acquisition Collector.
8. To appreciate the contention raised by the Learned Counsel for the Appellant, the said section is required to be extracted.
"Section 24 of the Act 2013 is as under:
24.(1) Notwithstanding anything contained in this Act in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,-
(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in subsection (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been 65 taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."
Sub-section (2) of Section 24 commences with a non-obstante clause. It is a beneficial provision. In view of this provision, if the physical possession of the land has not been taken by the Acquiring Authority though the award is passed and if the compensation has not been paid to the land owners or has not been deposited before the appropriate forum, the proceedings initiated under the Act, 1894 is deemed to have been lapsed."66
And further, in the case of Pune Municipal Corporation and another vs. Harakchand Misirimal Solanki and others (2014) 3 SCC 183, it is laid down thus :
"10. Insofar as sub-section (1) of Section 24 is concerned, it begins with non obstante clause. By this, Parliament has given overriding effect to this provision over all other provisions of 2013 Act. It is provided in clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of 2013 Act shall apply relating to the determination of compensation. Clause (b) of Section 24(1) makes provision that where land acquisition proceedings have been initiated under the 1894 Act and award has been made under Section 11, then such proceedings shall continue under the provisions of the 1894 Act as if that Act has not been repealed.
11. Section 24(2) also begins with non obstante clause. This provision has overriding effect over Section 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physical 67 possession of the land has not been taken or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24(2) deals with a situation where in respect of the acquisition initiated under the 1894 Act an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries then all the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act.
12. To find out the meaning of the expression, "compensation has not been paid", it is necessary to have a look at Section 31 of the 1894 Act. The said Section, to the extent it is relevant, reads as follows:
"31. Payment of compensation or deposit of same in Court.-- (1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or 68 more of the contingencies mentioned in the next sub- section.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted:"
13. There is amendment in Maharashtra--
Nagpur (City) in Section 31 whereby in sub-section (1), after the words "compensation" and in sub- section (2), after the words, "the amount of compensation", the words "and costs if any" have been inserted.
14. Section 31(1) of the 1894 Act enjoins upon the Collector, on making an award under Section 11, to tender payment of compensation to persons interested entitled thereto according to award. It further mandates the Collector to make payment of compensation to them unless prevented by one of the contingencies contemplated in sub-section (2). The contingencies contemplated in Section 31(2) are: (i) the persons interested entitled to compensation do not 69 consent to receive it (ii) there is no person competent to alienate the land and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it. If due to any of the contingencies contemplated in Section 31(2), the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the court to which reference under Section 18 may be made.
15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court to which reference can be made under Section 18.
16. The mandatory nature of the provision in Section 31(2) with regard to deposit of the compensation in the court is further fortified by the provisions contained in Sections 32, 33 and 34. As a 70 matter of fact, Section 33 gives power to the court, on an application by a person interested or claiming an interest in such money, to pass an order to invest the amount so deposited in such government or other approved securities and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider proper so that the parties interested therein may have the benefit therefrom as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be.
17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word "paid" to "offered" or "tendered". But at the same time, we do not think that by use of the word "paid", Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression "paid" used in this sub-section (sub-section (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated 71 therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as "paid" if the compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been "paid" within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33.
18. The 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad v. King Emperor AIR 1936 PC 253 (2)) that where a power is given to do a 72 certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
Keeping the above observations in view, in the instant case, the award in respect of the lands at Herohalli was made well before 5 years from the date of commencement of the 2013 Act. It is also evident that the entire amount of compensation has neither been paid or deposited. The amount having been deposited with the Special LAO by the APMC is of no avail and cannot be held to be equivalent to compensation paid to the landowners. Hence the acquisition proceedings pursuant to the notification dated 16.4.1999 and declaration dated 18.11.1999, shall be deemed to have lapsed under Section 24 (2) of the 2013 Act.
In the light of the above, it is concluded as follows:
a. The proceedings initiated under Section 66 of the KLR Act in the year 1974 in LRF No.2099/74-75 being prior in point of time, without those proceedings having reached a finality, the State not being ready to proceed 73 with the acquisition proceedings and even having withheld the compensation amount on the footing that no such contingency would arise if on culmination of the proceedings under the KLR Act the lands would vest in the State, is a stand that would defeat the acquisition proceedings. The interim orders of stay granted by this court from time to time and the pendency of these writ petitions are incidental and are conveniently cited to justify keeping the acquisition proceedings in suspended animation, to the detriment and prejudice of the petitioner, while ambiguously having chosen to go ahead with further proceedings in having passed an award and purportedly having handed over possession of a portion of the land to the APMC notwithstanding an interim order of this Court passed in respect of the said lands of Herohalli.
b. The compensation amount that has been withdrawn by the petitioner was only in respect of a portion of the land of which possession was said to have been delivered to the APMC. The State Government has expressly indicated that it had no intention of releasing further compensation to the petitioner till the disposal of the proceedings before the Land Tribunal. Hence, the 74 possession of the land to the extent of 65 acres and 19 guntas having been taken, was clearly illegal and contrary to the provisions of the LA Act.
c. As the acquisition of land, both at Shrigandada Kaval and Herohalli was for the same project, it is inexplicable that the urgency provision has been pressed into service only in respect of the lands at Herohalli and not in respect of the lands at Shrigandada Kaval. This inconsistency would on the face of it, demonstrate that there were no circumstances prevalent to have recourse to the urgency provision.
d. In the writ petition W.P.37140/2000, this Court was prompted to grant an interim order only on being appraised by the State Government that it is not in a position to deposit or pay any compensation till there was a finality to the proceedings pending before the Land Tribunal, in respect of the same lands, and which proceedings continue to be pending even as on date. Therefore, there was no prospect of any further progress either in the passing of an award, in respect of the lands at Shrigandada Kaval or with regard to deposit of the compensation amount pursuant to an award in respect of the lands at Herohalli, for the benefit of the petitioner, 75 even if there were no interim orders of this Court. Hence, Section 24 of the 2013 Act would be attracted and the entire acquisition proceedings would lapse.
e. If possession of 9 acres of land has been handed over to the BDA and the BWSSB - without the State having intervened and by virtue of the order of this Court dated 21.03.2007, and since the acquisition proceedings are held to be bad - and in the absence of a determination of compensation payable in respect of the land in question, it would be appropriate to determine the compensation payable in respect of such land as on date. The sum of money received by the petitioner in the course of the acquisition proceedings could be set off against the total compensation amount payable after such determination in respect of the 9 acres of land.
f. The State is liable to refund the entire amount deposited by the APMC, in the course of the acquisition proceedings. The APMC shall redeliver possession of the portion of the land in its occupation. As any monies expended by APMC towards the cost of construction of a compound wall, etc., was at its risk and cost, subject to the result of the petition, the APMC is precluded from claiming any costs thereto.
76g. The writ petitions except the writ petition in W.P.708/2000 are allowed in the light of Section 24(2) of the 2013 Act and it is declared that the acquisition proceedings under challenge, are deemed to have lapsed. h. The writ petition in W.P.708/2000 is dismissed as having become infructuous.
No order as to costs.
Sd/-
JUDGE nv/ks*