Karnataka High Court
The Bangalore Water Supply vs T Suresh Kumar on 11 January, 2023
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.A.No.4405/2016 (LA-RES)
C/W
W.A.No.4429/2017 (LA-RES)
IN W.A.No.4405/2016:
BETWEEN:
THE BANGALORE WATER SUPPLY
AND SEWERAGE BOARD
CAUVERY BHAVAN
BANGALORE - 560 009
REPRESENTED BY ITS
CHIEF ADMINISTRATIVE OFFICER
CUM-SECRETARY. ...APPELLANT
(BY SRI M.R. NAIK SR. COUNSEL A/W
SMT. SUMANGALA GACHCHINAMATH, ADV., FOR
SRI GURUDEV I GACHCHINAMATH, ADV.,)
AND:
1. T. SURESH KUMAR
S/O M. THIMMEGOWDA
AGED ABOUT 38 YEARS
RESIDING AT NO.65
VANIVILAS ROAD
BASAVANAGUDI
BANGALORE - 560 004.
2. THE SPECIAL LAND ACQUISITION
OFFICER, RAMANAGARAM
SUB-DIVISION, RAMANAGARAM
RAMANAGARAM DISTRICT
BANGALORE (EARLIER DISTRICT). ...RESPONDENTS
2
(BY D.R. RAVISHANKAR, SR. COUNSEL FOR
SRI NAVEEN GUDIKOTE S, ADV., FOR R-1;
SRI B. RAJENDRA PRASAD, HCGP FOR R-2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 22-4-2016(LA-RES) PASSED BY
THE LEARNED SINGLE JUDGE AND FURTHER ALLOW THE
WRIT PETITION 37959/2011.
IN W.A.No.4429/2017:
BETWEEN:
1. THE SPECIAL LAND ACQUISITION
OFFICER, RAMANAGARAM
SUB-DIVISION, RAMANAGARAM
RAMANAGARAM DISTRICT
BANGALORE (EARLIER DISTRICT).
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS
SECRETARY TO GOVERNMENT
REVENUE DEPARTMENT
M.S. BUILDING
BANGALORE - 560 001. ...APPELLANTS
(BY SRI B. RAJENDRA PRASAD, HCGP)
AND:
1. THE BANGALORE WATER
SUPPLY AND SEWERAGE BOARD
CAUVERY BHAVAN
BANGALORE - 560 009
REPRESENTED BY ITS
CHIEF ADMINISTRATIVE OFFICER
CUM-SECRETARY.
2. T. SURESH KUMAR
S/O M. THIMMEGOWDA
AGED ABOUT 44 YEARS
RESIDING AT NO.65
3
VANIVILAS ROAD
BASAVANAGUDI
BANGALORE - 560 004. ...RESPONDENTS
(BY SRI M.R. NAIK SR. COUNSEL A/W
SMT. SUMANGALA GACHCHINAMATH, ADV., FOR
SRI GURUDEV I GACHCHINAMATH, ADV., FOR R-1;
SRI RAVI H.K. ADV., FOR R-2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 22/4/2016 PASSED IN THE WRIT PETITION
37959/2011.
THESE APPEALS HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, VISHWAJITH
SHETTY J., DELIVERED THE FOLLOWING:
JUDGMENT
These two intra court appeals arise from the order dated 22.04.2016 passed by the learned Single Judge of this Court in W.P.No.37959/2016, and therefore, they are clubbed, heard together and disposed of by this common judgment.
2. Heard the learned Counsel appearing for the parties and also perused the material available on record.
3. Brief facts of the case as revealed from the records that may be relevant for the purpose of disposal of these appeals are, respondent no.1 - T.Suresh Kumar 4 is the owner of lands bearing Sy. Nos.711/1, 711/2b, 711/2c, 712/2, 712/3a & 783/1 of Harohally village, Kanakapura Taluk, Bengaluru District, which totally measures 19 acres 33 1/2 guntas (hereinafter referred to as 'the lands in question') and the lands in question were acquired for the purpose of Bangalore Water Supply & Sewerage Board (hereinafter referred to as 'the Board') to establish its pumping station under one of its project. In this regard, Preliminary Notification dated 09.10.1996 and final notification dated 19.02.1998 were issued under the provisions of the Land Acquisition Act, 1894 (for short, 'the Act'). An award was passed thereafter on 28.08.1998 fixing the market value of the lands in question at Rs.1.25 lakhs per acre. The total compensation that was awarded amounted to Rs.35,95,549/- and the possession of the lands were allegedly taken over on 30.12.2000. The owner of the lands in question challenged the acquisition proceedings before this Court in W.P.No.5024/1999 & W.P.Nos.5090- 95/1999 and the said writ petitions were dismissed by order dated 22.02.2000. The same was challenged in W.A.No.3460/2000 which was dismissed by a Division 5 Bench of this Court by order dated 06.01.2004. The Division Bench of this Court while disposing of the writ appeal had observed in paragraph 11 as follows:
"11. In so far as the third contention is concerned, the cost of acquisition is the concern of the Government and not that of the appellants. If the respondents have acquired converted land, they are liable to pay compensation for converted land. The Respondents are ready to pay such compensation. The appellants cannot therefore object to the acquisition on the ground that it is likely to involve a higher cost."
4. Subsequent to the disposal of W.A. No.3460/2000, respondent no.1/owner had filed a representation on 24.03.2004 seeking enhancement of compensation and considering the same, the Special Land Acquisition Officer had enhanced the compensation to a total sum of Rs.3,76,22,651/-. The said enhanced award was challenged before this Court in W.P.No.7476/2005 by the Board on the ground that it was not heard before passing of the award, and therefore, this Court set aside the award dated 15.05.2004 and remitted the matter to the Special Land 6 Acquisition Officer to pass a fresh order after hearing all the concerned parties. Thereafter, the Special Land Acquisition Officer has passed an award dated 23.05.2011 once again awarding compensation of Rs.3,76,22,651/-. The said award dated 23.05.2011 was challenged by the Board in W.P.No.37959/2011 which was dismissed by the learned Single Judge of this Court vide the order impugned. Being aggrieved by the same, the Board has preferred W.A.No.4405/2016 while the Special Land Acquisition Officer and the State Government have preferred W.A.No.4429/2017.
5. Learned Senior Counsel appearing on behalf of the appellant-Board contended that the Special Land Acquisition Officer had no jurisdiction or authority to pass a second award. He submits that after passing of the first award, he becomes functus officio, and therefore, he could not have enhanced the compensation amount by passing the second award. He submits that the Special Land Acquisition Officer has virtually exercised the power of review which is not conferred on him. In support of his arguments, he has placed reliance on the judgments in 7 the case of ORISSA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION VS SUPAI MUNDA & ORS.
- AIR 2004 SC 390, DEVE GOWDA & ORS. VS STATE OF KARNATAKA, CHIEF SECRETARY & ORS. - ILR 2004 KAR 3159, PATEL NARSHI THAKERSHI & ORS. VS SHRI PRADYUMANSINGHJI ARJUNSINGHJI - AIR 1970 SC 1273.
6. Learned Additional Government Advocate has adopted the arguments advanced by the learned Senior Counsel for the Board.
7. Learned Senior Counsel appearing on behalf of the owner of the lands in question submits that the lands in question are converted lands and the said aspect was not taken into consideration while the first award was passed by the Special Land Acquisition Officer. He submits that in W.A.No.3460/2000, a submission was made by the respondents therein that they are ready to pay compensation for the converted land and the said statement was placed on record while disposing of the writ appeal and it was therefore observed that the owner of the lands in question cannot object for the acquisition 8 on the ground that it is likely to involve a higher cost. He submits that having conceded in the earlier round of litigation that they are liable to pay compensation for the converted land, they cannot now question the award passed by the Special Land Acquisition Officer. He also submitted that the appellant-Board is the beneficiary, and therefore, it cannot challenge the order and the State Government cannot go back on its earlier statement made before this Court that the owner is entitled for a higher compensation and the doctrine of promissory estoppel estops the State from taking such a stand. He further submitted that the judgment of Hon'ble Supreme Court in Orissa Industrial Infrastructure Development Corporation's case supra relied upon by the learned Senior Counsel for the appellant-Board cannot be made applicable to the case on hand since the second award in the said case is a consent award and it is under these circumstances, the Hon'ble Supreme Court had held that the Land Acquisition Officer had no jurisdiction to pass the second award. He submits that the first award was not passed in respect of the converted lands, and therefore, it cannot considered as an award in 9 respect of the lands in question. In support of his contentions, he has placed reliance on the judgments in the case of RAJA HARISH CHANDRA RAJ SINGH VS THE DEPUTY LAND ACQUISITION OFFICER & ANOTHER - AIR 1961 SC 1500, MAHARASHTRA STATE SEEDS CORPN. LTD. VS HARIPRASAD DRUPADRAO JADHAO & ANOTHER
- (2006)3 SCC 690, VINOD KUMAR VS STATE OF HARYANA & OTHERS - (2013)6 SCC 293, LALARAM & OTHERS VS JAIPUR DEVELOPMENT AUTHORITY & ANOTHER - (2016)11 SCC 31, STATE OF JHARKHAND & OTHERS VS BRAHMPUTRA METALLICS LTD., RANCHI & ANOTHER - 2020 SCC OnLine SC 968, and SANTOSH KUMAR & OTHERS VS CENTRAL WAREHOUSING CORPORATION & ANOTHER - (1986)2 SCC 343.
8. Undisputed facts of the case are that the Special Land Acquisition Officer had passed an award on 28.08.1998 granting a total compensation of Rs.35,95,549/- as compensation in respect of the lands in question. Thereafter, the owner of the lands in question had filed W.P.No.5024/1999 & W.P.Nos.5090- 95/1999 challenging the acquisition proceedings which were dismissed by the learned Single Judge of this Court 10 on 22.02.2000 and as against the said order, the owner of the lands in question had filed W.A.No.3460/2000. The owner had raised a specific ground in the said proceedings that the lands in question were converted lands which were required for his purpose and the cost of acquisition of converted lands would be higher and the same would be a burden to the State exchequer. During the course of hearing of W.A.No.3460/2000, the State Government as well as the Board had submitted before this Court that they were ready to pay such compensation for the converted land and the said submission was placed on record, and therefore, the Division Bench held that it was not open for the owner of the lands in question to raise objection to the acquisition on the ground that it involved higher cost. In the said case, the Division Bench of this Court had held that if the State has acquired converted land, they are liable to pay compensation for converted land. After disposal of W.A.No.3460/2000 on 06.01.2004, representation seeking enhancement of compensation was submitted by the owner of the lands in question on 24.03.2004. Considering the same, the Special Land Acquisition 11 Officer has passed the impugned award enhancing the compensation amount to Rs.3,76,22,651/-.
9. The Hon'ble Supreme Court in Orissa Industrial Infrastructure Development Corporation's case supra has held that when an award is made by the Collector under Section 11 of the Act, the proceedings before him stand terminated, and thereafter by taking recourse to Section 11(2) of the Act, he cannot pass the second award and there can never be two awards, one under Section 11 & and another under Section 11(2) of the Act in respect of the land acquired. In Deve Gowda's case supra, this Court has held that the Land Acquisition Officer has no power to pass a second award and such a power is not traceable under Section 12A of the Act.
10. The contention of the learned Senior Counsel for the owner that the compensation under the first award was not awarded in respect of the converted land, and therefore, it cannot be considered as an award is liable to be rejected since the owner had notice of the first award and in the writ petition filed by him challenging the acquisition proceedings, he had stated 12 about the award passed by the Special Land Acquisition Officer and if he had any grievance regarding the compensation amount awarded to him, he had a remedy under Section 18 of the Act. Therefore, the judgment in Raja Harish Chandra Raj Singh's case supra relied on behalf of the owner of the lands in question would have no application to the facts of this case.
11. In Santosh Kumar's case, the Hon'ble Supreme Court was considering the challenge to the award passed under Section 11 of the Act and the question of jurisdiction of the Special Land Acquisition Officer to pass a second award was not an issue in the said judgment. It is in the said context, the Hon'ble Supreme Court has held that the State Government as well as the company or local authority at whose instance the acquisition is made cannot challenge the award passed under Section 11 of the Act. Therefore, even the said judgment cannot be made applicable to the facts of the present case.
12. Though we are in respectful agreement with the judgments in Vinod Kumar's case and Lalaram's case supra, the law laid down in the said judgments cannot be 13 made applicable to the facts and circumstances of the present case as the question of the jurisdiction of the Special Land Acquisition Officer to pass a second award was not in issue in the said cases.
13. In view of the law laid down in Orissa Industrial Infrastructure Development Corporation's case and Deve Gowda's case supra, we are of the considered view that the Special Land Acquisition Officer had no jurisdiction to pass a second award when he had already passed an award in respect of the very same lands acquired.
14. However, the fact remains that, in the earlier round of litigation i.e., in W.A.No.3460/2000, when a contention was urged on behalf of the owner of the lands in question that acquisition of converted lands would involve higher cost which would burden the State, a statement was made before this Court by the State as well as by the Board that they were ready to pay compensation in respect of the converted land also. Having made such a statement, they are estopped from contradicting their own statement made in the earlier round of litigation and the principle of estoppel would be 14 applicable against them. The Division Bench of this Court had held that if the State had acquired converted lands, it is liable to pay compensation for the converted lands.
15. In W.A.No.3460/2000, the Division Bench of this Court had held that if the State has acquired converted land, it is liable to pay compensation for converted land and the statement of the State and the Board that they were ready to pay compensation for the converted land was also placed on record and it is under these circumstances, it was held that the owner cannot object to the acquisition on the ground that it is likely to involve a higher cost. From a reading of paragraph 11 of the judgment in W.A.No.3460/2000, it is found that the challenge to the acquisition proceedings on the ground that the lands in question were converted lands was rejected only in view of the statement made by the State and the Board that they are ready to pay such compensation for converted lands, and therefore, it has to be understood that this Court impliedly reserved liberty to seek enhanced compensation while refusing to consider the contention raised on behalf of the owner. It 15 is under these circumstances, after disposal of W.A.No.3460/2000, the owner of the lands in question has given a representation to the competent authority for grant of enhanced compensation.
16. The entitlement of the owner of the lands in question for a higher compensation was taken note of by this Court in W.A.No.3460/2000, wherein this Court has specifically held that if the respondents have acquired the converted lands, they are liable to be compensation for the converted lands and the State and the Board have also expressed their readiness and willingness to pay such enhanced compensation. In order to enable complete justice being done to the parties, the courts are empowered to mould the reliefs and grant the same to the parties in deserving cases. The 'moulding of relief' principle was recognized by the Hon'ble Supreme Court in the case of PASUPULETI VENKATESWARALU VS THE MOTOR & GENERAL TRADERS - AIR 1975 SC 1709, wherein it was observed that though the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding, the principle that procedure is the 16 handmaid and not the mistress of the judicial process is also to be noted. Justice VR Krishna Iyer observed:
"If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decrotal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling (actors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule or myraid. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules 17 of fairness to both sides are scrupulously obeyed."
17. In the case of RAMESH KUMAR VS KESHO RAM
- AIR 1992 SC 700, the Hon'ble Supreme Court again following the aforesaid principle i.e., "moulding of relief", observed as under:
"6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or an aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief."
18. The Hon'ble Supreme Court in the case of STATE OF RAJASTHAN VS M/S. HINDUSTAN SUGAR MILLS LTD. - AIR 1988 SC 1621, held that the High Court which exercised high prerogative jurisdiction under Article 226 would have moulded the relief in a just and fair manner as required by the demands of the situation, 18 and therefore, in view of the law laid down by the Apex Court, we are of the considered view that this is a fit case, wherein the said principle is required to be applied and appropriate relief needs to be granted to the owner of the lands in question.
19. The Hon'ble Supreme Court in MANHARLAL SHIVLAL PANCHAL & OTHERS VS THE DEPUTY COLLECTOR & SPECIAL LAND ACQUISITION OFFICER & OTHERS in Civil Appeal No.9004/2022 disposed of on 12.12.2022, while considering a case wherein the application under Section 18 of the Act was barred by limitation, has held that in view of the liberty reserved by the High Court while dismissing the earlier writ petition which was filed challenging the acquisition proceedings, the owner is entitled to seek enhancement of compensation amount, and therefore, the reference application under Section 18 of the Act filed belatedly cannot be said to be barred by limitation.
20. In the background of the pronouncement made by the Hon'ble Supreme Court in Manharlal Shivlal Panchal's case supra, taking into consideration the 19 observation made by the Division Bench while disposing of W.A.No.3460/2000 that the State and Board are ready to pay such compensation for converted land and if they have acquired converted land, they are liable to pay compensation for the converted land, in our considered view, a fresh cause of action had arisen for the owner of the lands in question to seek enhancement of compensation amount and the Assistant Commissioner/Special Land Acquisition Officer on receipt of such representation seeking enhancement, ought to have referred the same under Section 18 of the Act to the competent Civil Court for adjudication and he could not have passed the second award by himself. W.A.No.3460/2000 was disposed of by the Division Bench of this Court on 06.01.2004 and the representation seeking enhancement of compensation was submitted by the owner on 24.03.2004 to the competent authority, which is within six months from the date of the order passed in W.A.No.3460/2000, and therefore, the said representation made by him is required to held as filed within the prescribed time as provided under Section 18 of the Act. The owner of the 20 lands in question who has lost the land in the acquisition proceedings cannot be left without any remedy though the State and the Board had made a statement before this Court in the earlier round of litigation that they are ready to pay the compensation even for the converted lands, and therefore, in view of the peculiar set of facts and circumstances of this case, we proceed to pass the following order:
21. The writ appeals are allowed. The impugned order dated 22.04.2016 passed by the learned Single Judge in W.P.No.37959/2011 is set aside. Consequently, the writ petition is allowed. The award dated 23.05.2011 passed by the Special Land Acquisition Officer is quashed. The Assistant Commissioner/Special Land Acquisition Officer, Ramanagaram Sub-Division, Ramanagaram District, is directed to refer the representation/application made by the owner dated 24.03.2004 to the jurisdictional Civil Court under Section 18 of the Act for determination of appropriate compensation and the Civil Court on receipt of such reference after issuing notice to all the concerned parties 21 shall dispose of the reference case in accordance with law, within a period of one year from the date of receipt of the reference from the Assistant Commissioner/Special Land Acquisition Officer.
Sd/-
JUDGE Sd/-
JUDGE KK