Karnataka High Court
The Town Panchayat vs Sri Krishnappa on 7 November, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
W.A. No.1006 OF 2014 (LA-RES)
BETWEEN:
THE TOWN PANCHAYAT
KORATAGERE TOWN
TUMKUR DISTRICT-572129
REPRESENTED BY ITS CHIEF OFFICER.
... APPELLANT
(BY MR. A. NAGARAJAPPA, ADV.,)
AND:
1. SRI. KRISHNAPPA
S/O CHOWDAIAH
AGED ABOUT 55 YEARS.
2. SRI. CHANDRAPPA
S/O CHOWDAIAH
AGED ABOUT 50 YEARS.
3. SRI. JAYARAM
S/O CHOWDAPPA
AGED ABOUT 47 YEARS.
4. RAMACHANDRA
S/O CHOWDAIAH
AGED ABOUT 44 YEARS.
2
ALL ARE RESIDENT OF
GANESHA TEMPLE STREET
KORATAGERE
TUMKUR DISTRICT-572101.
5. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF REVENUE
VIDHANA SOUDHA
BANGALORE-560001.
6. THE DEPUTY COMMISSIONER
TUMKUR DISTRICT
TUMKUR-572101.
7. THE ASSISTANT COMMISSIONER
& SPECIAL LAND ACQUISITION OFFICER
MADHUGIRI SUB DIVISION
MADHUGIRI, TUMKUR DISTRICT-572101.
... RESPONDENTS
(BY MR. M.R. RAJAGOPAL, SR. COUNSEL FOR
MR. H.N. BASAVARAJU, ADV., FOR R1-R4
MRS. NAMITHA MAHESH B.G. AGA A/W
MR. B. RAJENDRA PRASAD, HCGP FOR R5-R7)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION 5417-5420/2009
C/W 17517/2009 DATED 05/12/2013.
THIS W.A. COMING ON FOR FINAL HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
3
JUDGMENT
This intra court appeal takes an exception to order dated 05.12.2013 passed in writ petition Nos.5417-5420/2009 and writ petition No.17517/2009, by which the petition preferred by respondent in which challenge was made to the proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act' for short) has been allowed.
2. Facts giving rise to filing of this appeal briefly stated are that land bearing survey number 64 situated at Koratagere Town Kasaba, Tumkur District was an Inam land (hereinafter referred to as the '[schedule land' for short) was governed by the provisions of Religious and Charitable Inams Abolition Act, 1955. The father of respondent was a permanent tenant in respect of aforesaid land who was granted 4 occupancy rights in respect of schedule land measuring 17 acres and 10 guntas.
3. The appellant is the town Panchayat constituted under the provisions of Karnataka Municipalities Act, 1964. The Panchayat was in need of schedule land as well as land measuring 7 acres of Survey No.64 for the purposes of Solid Waste Management at Koratagere Town. Thereupon, proceeding under the Act were set in motion. A Notification under Section 4(1) invoking urgency provision under Section 17(1) of the Act was issued on 09.12.2004, by which land measuring 3.03 acres was notified for acquisition.
4. The aforesaid notification was published in the Gazette on 30.12.2004, whereas, the same was published in newspaper on 17.12.2004 . Even though the urgency provision under Section 17(1) of the Act 5 was invoked, after a period of 14 months, final notification under section 6 of the Act was issued on 16.02.2006. Thereafter, the possession of the schedule land was taken on 09.11.2006 and an award was passed in respect of schedule land on 21.06.2008.
5. Land measuring 7 acres of Sy.No.64 was also required by the appellant for Solid Waste Management at Koratagere Town. Therefore, a preliminary notification under Section 4(1) read with Section 17 of the Act was issued on 01.10.2005. After a period of 9 months, notification under Section 6(1) of the Act was issued on 14.07.2006 and an award was passed on 14.11.2008.
6. The validity of the aforesaid notification was assailed by the respondents in a writ petition. The learned Single Judge by an order dated 05.12.2013 6 inter alia held that in the facts and circumstances of the case, there was no justification for invocation of the provisions of Section 17 of the Act. It was further held that since, an award has been passed beyond a period of two years from the date of publication of declaration under Section 6 of the Act, the same has lapsed under Section 11A of the Act. Accordingly, the proceedings for acquisition of the land initiated by the State Government were quashed. In the aforesaid factual background, this appeal has been filed.
7. Learned counsel for the appellant submitted that even though the award has been passed beyond a period of two years from the date of publication of declaration under Section 6 of the Act, yet 80% of the amount of compensation a required to be tendered as per Section 17(3A) of the Act was tendered before taking possession of the lands. Therefore, the provision of Section 11A of the Act are 7 not attracted to the fact situation of the case. It is further submitted that since, the land was required for public purpose urgently i.e., for the purpose of Solid Waste Management at Koratagere Town. Therefore, the State Government was justified in invoking the provisions of Section 17 of the Act. It is however submitted that the appellant does not require the land measuring 7 acres. In support of the submission that the provisions of Section 11A of the Act are not applicable to the fact situation of the case, reliance has been placed on decision of the Supreme Court rendered in 'DELHI AIR TECH SERVICES PRIVATE LIMITED AND ANOTHER VS. STATE OF U.P. AND ANR.', 2022 SCC ONLINE SC 1408.
8. On the other hand, learned Senior counsel for the respondent submitted that learned Single Judge has correctly concluded that the action of the State Government in invoking the provisions under 8 Section 17 of the Act is not justified in law. It is further submitted that learned Single judge has rightly held that the proceeding for acquisition of the land has lapsed under Section 11A of the Act. In support of aforesaid submission has placed reliance on decision of the Hon'ble Supreme Court in 'UNION OF INDIA AND OTHERS VS. SHIV RAJ AND OTHERS', (2014) 6 SCC 564, 'DEVENDRA KUMAR TYAGI AND OTHERS VS. STATE OF UTTAR PRADESH AND OTHERS', (2011) 9 SCC 164, 'DEVENDRA SINGH AND OTHERS VS. STATE OF UTTARPRADESH AND OTHERS', (2011) 9 SCC 551 and 'RADHY SHYAM (DEAD) THROUGH LRS AND OTHERS VS. STATE OF UTTAR PRADESH AND OTHERS', (2011) 5 SCC 553.
9. On the other hand, learned Additional Government Advocate on perusal of the record fairly stated that 80% of the amount of compensation, 9 which is required to be tendered in terms of Section 17(3A) of the Act has not been tendered.
10. We have considered the submissions made on both sides and have perused the records. Twin issues arise for consideration in this appeal Firstly whether the proceeding has lapsed in view of Section 11 of the Act, and secondly, whether the State Government was justified in invoking the urgency provisions under Section 17 of the Act.
11. The Hon'ble Supreme Court in 'HINDUSTAN PETROLEUM CORPN. LTD. VS. DARIUS CHENAI', (2005) 7 SCC 627 held that in view of Article 300-A of the Constitution of India, the State in exercise of power of eminent domain may interfere with the right of the property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must 10 be paid. In 'N.PADMAMMA VS. S.RAMAKRISHNA REDDY', (2008) 15 SCC 517, it was held that right to hold the property is a human right as also a constitutional right and the same cannot be taken away except in accordance with law. Article 300-A of the Constitution of India protects the right to hold the property. Similar view was taken in 'DELHI AIR TECH SERVICES (P.) LTD. VS. STATE OF U.P.', (2011) 9 SCC 354. The aforesaid principles were reiterated with approval in VIDYA DEVI VS. STATE OF HIMACHAL PRADESH', (2020) 2 SCC 569.
12. Section 11A as well as Section 17(3A) of the Act which are relevant for the purpose of controversy involved in this appeal are extracted below for the facility of reference:
11A Period within which an award shall be made. --
(1) The Collector shall make an award under section 11 within a period of 11 two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
17 Special powers in cases of urgency.
(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3),--
(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and
(b) 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 12 payment of compensation under that section.
13. Thus, from perusal of Section 11A of the Act, it is evident that in case, an award is not passed within a period of two years from the date of publication of declaration, the entire proceedings for acquisition of the land shall lapse. Section 17(3A) of the Act provides that before taking possession of the land under sub-section (1) or sub-section (2), the Collector 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. A three judge bench of Hon'ble Supreme Court in DELHI AIRTECH SERVICES PRIVATE LIMITED AND ANOTHER supra, has held as follows:
26. In the result, we pass the following order:13
(i) The provision contained in Section 11A of Act, 1894 shall be
applicable to cases in which the acquiring authority has not complied with the requirement of sub-section (3A) to Section 17 of Act, 1894 by tendering and paying eighty per centum of the estimated compensation before taking possession since possession in such cases cannot be considered to be taken in accordance with law and the vesting is not absolute.
(ii) If the requirement is complied and possession is taken after tendering and paying eighty per centum, though there is need to pass an award any pay the balance compensation within a reasonable time, the rigour of Section 11A of Act, 1894 will not apply so as to render the entire proceedings for acquisition to lapse in the context of absolute vesting. The right of land loser in such case is to enforce passing of the award and recover the compensation.
14
14. We have perused the record. Admittedly, in the instant case, the collector has not tendered 80% of the amount of compensation before taking the possession of the land in question i.e., on or before 09.11.2006. Therefore, in view of the law laid down by three-judge bench of Hon'ble Supreme Court in DELHI AIRTECH SERVICES PRIVATE LIMITED (SUPRA), the provisions of Section 11A of the Act apply to the fact situation of the case. The notification in respect of acquisition of land measuring 3.03 acres has been issued on 09.12.2004. The final notification was issued on 16.02.2006 and the award was passed beyond a period of 2 years i.e., on 21.06.2008. Therefore, the learned Single Judge has rightly concluded that the proceedings in respect of land measuring 3.03 acres of survey number 64 situated at Koratagere Town Kasaba, Tumkur District have lapsed under Section 11 of the Act. As far as the 15 dispute pertaining to 7 acres of land of Sy.No.64 is concerned. The Hon'ble Supreme Court in 'HAMID ALI KHAN (D) THROUGH LRS AND ANOTHER VS. STATE OF U.P. AND OTHERS', (2021) SCC ONLINE SC 1115 referred to with approval the principles laid down in Radhy Shyam's case supra has dealt with the scope and ambit of the exercise of powers under Section 17 of the Act. Para 77 of the decision rendered Radhy Shyam's case supra reads as under:
77. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out:
(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on 16 account of public exigency and for public good. - Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat (1995) Supp. (1) SCC 596.
(ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly - DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria (2003) 7 SCC 336 and Dev Sharan v. State of U.P., Civil Appeal No.2334 of 2011 decided on 7.3.2011.
(iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that 17 compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter.
(iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with 18 the requirement of hearing the land owner or other interested persons.
(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.
(vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the 19 private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records.
(vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5- A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word "may" in sub- section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub- section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).
(viii) The acquisition of land for residential, commercial, industrial or 20 institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Section 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years.
Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Section 5-A (1) and (2) is not at all warranted in such matters.
(ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon 21 the legality of such acquisition.
15. In the instant case, the notification under Section 4(1) read with Section 17(1) of the Act was issued on 09.12.2004. If there was really an urgency in acquisition of the land, the appellant ought to have acted with quite promptitude. However, final notification under Section 6 of the Act was issued after a period of 14 months on 16.02.2006 and thereafter, nearly after a period of approximately 9 months, the possession of the land in question was taken. Therefore, it is evident that there was no urgency in acquisition of the land in question and the State Government was not justified in invoking the urgency provision as contained in Section 17(1) of the Act.
16. Thus, it can safely be inferred that right of the respondent to a hearing under Section 5A of the Act has been taken away without any justifiable 22 reason. Even otherwise, learned counsel for the appellant has stated that appellant does not require the aforesaid land.
17. Learned counsel for the appellant has submitted that since, the appellant has utilised the land in question, therefore, the relief is be moulded in facts of the case. From perusal of the photographs annexed with the petition, we find that the appellant has only constructed a boundary wall and has dumped garbage on the land in question. Therefore, the land in question measuring 3.03 acres remains an open land. Therefore, the question of moulding the relief and permitting the appellant to retain the possession of the land in question does not arise as the respondents cannot be deprived of their constituted right under Article 300A of the Constitution of India.
23
In view of preceding analysis we do not find any merit in this appeal the same fails and is here by dismissed.
Sd/-
JUDGE Sd/-
JUDGE SS