Karnataka High Court
Smt. M. Shakuntalamma vs State Of Karnataka on 8 August, 2017
Author: B.S.Patil
Bench: B.S.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.64702/2016 (LA-KIADB)
BETWEEN
SMT. M.SHAKUNTALAMMA,
W/O SRI C.R.RAMESH,
AGED ABOUT 67 YEARS
R/AT NO.5, 1ST MAIN
8TH CORSS, PRASHANTHANAGARA
BENGALURU-560 079. ... PETITIONER
(By Sri R.B.SADASIVAPPA, ADV.)
AND
1. STATE OF KARNATAKA,
REP.BY ITS SECRETARY,
INDUSTRIES AND COMMERCE
DEPARTMENT,
VIKASA SOUDHA,
DR B R AMBEDKAR VEEDHI
BENGLAURU-560 001.
2. THE SPECIAL LAND ACQUISITION OFFICER,
KARNATAKA INDUSTRIAL DEVELOPMENT BOARD
BENGALURU MYSORE INFRASTRUCTURE
CORRIDOR PROJECT (BMIC PROJECT)
NRUPATHUNGA ROAD,
BENGALURU-560 001.
3. THE NANDI INFRASTRUCTURE CORRIDOR ENTERPRISES,
BENGALURU MYSORE INFRASTRUCTURE CORRIDOR,
REP.BY ITS MANAGING DIRECTOR,
HAVING ITS OFFICE AT
MIDFORD HOUSE,
MIDFORD GARDEN
2
OFF M.G ROAD,
BENGALURU-560 001. ... RESPONDENTS
(By Sri S.SUNIL DUTT YADAV, SPL.GOVT.ADV. FOR R1;
Sri B.B.PATIL, ADV. FOR R2;
Sri R.V.S.NAIK, ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R-2
TO PASS THE AWARD FOR THE LANDS BELONGING TO THE
PETITIONER AND PAY THE COMPENSATION TO THE PETITIONER
AS REQUIRED UNDER SECTION 26, 27, 28 AND INTEREST UNDER
SECTION 80 OF THE RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION AND REHABILITATION AND
RESETTLEMENT ACT, 2013 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. It is the case of petitioner that land bearing Sy.No.27P1 measuring 1 acre situated at Gonipura Village, Kengeri Hobli, Bengaluru South Taluk, has been acquired by issuing final notification dated 16.10.2008 under Section 28(4) of the Karnataka Industrial Areas Development Act, 1966 (for short 'the KIAD Act'). Similarly, land bearing Sy.No.48 measuring 1 acre 5 guntas situated at Tippur Village, Kengeri Hobli, Bengaluru South Taluk has been acquired by issuing final notification dated 21.03.2009. So far no award has been passed and no 3 compensation has been determined or paid. Hence, petitioner has approached this Court seeking a direction to 2nd respondent - Special Land Acquisition Officer, KIADB to pay compensation to petitioner as per Sections 26, 27 and 28 along with interest under Section 80 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 'the New Act'). In the alternative, petitioner has sought for a declaration that entire acquisition proceeding has stood lapsed as per Section 24(2) of the New Act.
2. Petitioner has given representations dated 15.07.2015 and 20.08.2016 vide Annexures-C and D respectively requesting the Special Deputy Commissioner, KIADB to pass an award and pay compensation or otherwise grant permission to him to sell the properties. As no action has been taken so far, petitioner has approached this Court seeking aforementioned direction.
3. I have heard the learned counsel for all parties. I find that admittedly no award has been passed though lands 4 have been acquired by issuing final notifications way back in the year 2008 and 2009 in respect of the aforementioned two lands.
4. Learned counsel appearing for KIADB - Sri B.B.Patil submits that Special Land Acquisition Officer will pass an award in accordance with law as expeditiously as possible. He, however, submits that question whether the award has to be passed as per the provisions of the New Act or in terms of the Land Acquisition Act has to be kept open to be decided by the competent authority.
5. It is seen from the relief sought in the writ petition that petitioner has specifically sought for a direction to the Special Land Acquisition Officer to pay compensation by passing an award in terms of the provisions of the New Act. Though the lands in question have been acquired by issuing final notifications under Section 28(4) of the KIAD Act on 16.10.2008 and 21.03.2009 and although almost 9 years have elapsed since the date of issuance of final notification, so far no award has been passed. As 5 petitioner has come up with a fair submission that he may be paid compensation in terms of the New Act and if that is done, he would not insist for the alternative relief sought seeking declaration regarding lapse of acquisition due to unreasonable delay on the part of respondents in passing the award and paying compensation, I am of the view that prayer sought regarding declaration that acquisition proceeding has lapsed need not be gone into.
6. Fact remains that petitioner who is deprived of his land has to be paid just and fair compensation. There cannot be discrimination in the matter of payment of compensation only because the land has been acquired under the provisions of the KIAD Act. Application of Section 24(2) of the new Act is one thing for the purpose of declaring the acquisition proceeding as lapsed but payment of compensation is entirely different. Effect of or mandate of Article 300A of the Constitution of India is that no person shall be deprived of his property except by paying just and fair compensation. This has been recognized as not only a constitutional right but a human 6 right as well. Indeed, in the judgment of the Apex Court in the case of NAGPUR IMPROVEMENT TRUST AND ANOTHER VS. VITHAL RAO AND OTHERS - (1973) 1 SCC 500 it has been categorically laid down that there cannot be different standards regarding payment of compensation depending on who acquires the land and for what purpose the same is acquired. In para 29 and 30 of the above mentioned judgment, the Apex Court has observed as follows:
"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 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 7 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.
30. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enables the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Art.
14."
7. Hence, as no award has been so far passed, the KIADB is required to pay compensation in terms of the New Act, particularly, because as per Section 30 of the KIAD Act, provisions of the New Act become applicable mutatis mutandis regarding enquiry to be conducted and award to be passed by the Deputy Commissioner and also 8 with regard to the reference to the Civil Court for apportionment of compensation and payment of compensation in respect of lands acquired. Therefore, it is all the more necessary for the KIADB to determine the compensation and pass award by applying the provisions of the New Act. The Land Acquisition Act having been repealed, it is the provisions of the New Act which has to be made applicable with regard to determination of compensation as otherwise it will tantamount to discriminatory treatment.
8. Therefore, the writ petition is allowed. A direction is issued to the 2nd respondent - The Special Land Acquisition Officer, KIADB, Bengaluru, to pass award within two months from the date of receipt of a copy of this order and pay/deposit the compensation determined within one month thereafter along with all statutory benefits including interest as admissible in law.
Sd/-
JUDGE VP