Disposed

Mangalore Electricity Supply Company Ltd. v. Land Acquistion Officer and

Karnataka HC9 Jan 2014WP/24302/2012

Case brief

AI extract

What is this about?

The Court disposed of a Writ Petition challenging an enhanced land acquisition award. It held that since a pending appeal with identical interests exists, the petitioner should join as a co-appellant. Meanwhile, the execution of the award was stayed for four weeks.

What did the court decide?

Stayed the execution of the award; directed the petitioner to implead itself as a co-appellant in the pending appeal within four weeks.

Mangalore Electricity Supply Company Ltd. Vs Land… — Land Acquisition | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 09^th DAY OF JANUARY 2014

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BEFORE

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THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION No.24302 OF 2012 (LA-RES)

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BETWEEN:

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Mangalore Electricity Supply Company Limited, (MESCOM), (A Government of Karnataka undertaking), Having its office at: Attavara, Mangalore, Represented by its Executive Engineer (Ele.,)

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…PETITIONER

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(By Shri. N. Krishnananda Gupta, Advocate)

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AND:

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Land Acquisition Officer and Assistant Commissioner, Mangalore.

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The Ullal Jumma Muszid and Sayyed Madani Darga Committee, Ullal, represented by its President Sri. Haji U.K. Ibrahim, Son of Shekabba, Major, residing at Kotepura,

Ullal.

…RESPONDENTS

(By Shri. Anantha .H, Government Pleader for Respondent No.1

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Shri. M. Vishwajith and Shri. K.N. Jayaprakash, Advocates for Respondent No.2)

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the connected records relating to award contained in Annexure-C dated 28.7.2011 passed in LAC No.17/99 on the file of the Principal, Senior Civil Judge, Mangalore and quash the award contained in Annexure-C dated 28.7.2011 passed in LAC No.17/99 on the file of the Principal Senior Civil Judge, Mangalore.

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This Writ Petition is coming on for Hearing this day, the court made the following:

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O R D E R

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Heard the learned counsel for the petitioner and the

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learned counsel for Respondent No.2 as well as the learned

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Government Pleader.

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The petitioner is the successor-in-interest of the

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Karnataka Electricity Board (hereinafter referred to as ‘the KEB’, for brevity) and is an Electricity Supply Company

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owned by the Government of Karnataka. It transpires that at the instance of the KEB, the Government proceeded to acquire lands for the purpose of establishment of Sub-Stations and Quarters for the employees of the KEB and a preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the LA Act’, for brevity), was published on 4.8.1995 in the Karnataka Gazette and an enquiry under Section 5A was held in October 1995 and a final declaration under Section 6(1A) was published in the Gazette on 25.01.1996 and the Land Acquisition Officer, after holding an enquiry, had passed an award dated 20.07.1998 and it is claimed that the KEB was put in possession of the land that was acquired, after passing an award for a sum of Rs.47,88,784/-. When the award amount was paid, the KEB was the beneficiary at the relevant point of time and the lands have been subsequently transferred to the present petitioner, on its formation. It is now the absolute owner in possession of the same. Sub-Stations have been established and Quarters have

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been constructed. The second respondent who is the owner of the land so acquired not being satisfied with the award, had sought a reference to the Civil Court under Section 18(3) of the LA Act and it is the allegation of the petitioner that while doing so, has deliberately not impleaded the petitioner who was the beneficiary, in the application filed under Section 18. The Civil Court, after registering the application in LAC No.17/1999, had caused a notice to the land owner to file a claim petition and the Land Acquisition Officer to file objections. The petitioner was significantly not impleaded. However, it transpires that a communication was received by the petitioner on 3.4.2012 that there was an award determining the compensation at Rs.6,87,85,290/-, as against the original award of Rs.47,88,784/-, and the properties of the petitioner were sought to be attached. It is thereafter that the petitioner became aware of the sequence of events and has taken further steps to oppose the execution of the award for enhanced compensation and has incidentally filed this petition.

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The petitioner has raised several grounds questioning

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the enhancement of compensation, the primary ground being that the petitioner was the beneficiary and in terms of Section 20 of the LA Act, required the petitioner to be put on notice. It further transpires that even at the initial stage, the State Government had filed an application under Order I Rule 10(2) of the Code of Civil Procedure, 1908, seeking to implead the present petitioner to come on record. It is seen from the ordersheet of the proceedings before the court below in LAC No.17/1999 wherein it is indicated that notice was ordered on the application filed by the State Government, but even before process could be paid to issue summons to the proposed respondent, a counsel having entered appearance, it is recorded in the order-sheet that summons was not issued since the proposed respondent is represented by counsel as per order dated 17.09.2005. However, from a perusal of the subsequent recording in the order-sheet, there is no reference to the present petitioner and it does not appear that there has been any

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consideration of the petitioner’s case as to the enhancement of compensation, being undeserved and being without basis. It is this which is sought to be highlighted in the present writ petition and it is sought to be canvassed that the manner in which a party shall be impleaded and the steps that require to be taken in considering the case of a party so impleaded, have not been followed and to that extent, the petitioner is seriously prejudiced and hence, seeks that the matter be remanded for a fresh consideration and to ensure that the petitioner’s case is addressed.

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However, the learned counsel for Respondent No.2 would point out that there is no illegality or other infirmity by which the proceedings could be questioned by the petitioner. It is also stated that insofar as the enhanced compensation is concerned, the same is under challenge in an independent appeal filed by the State Government in M.F.A.667/2012, which is pending consideration in the appellate jurisdiction of this Court and therefore, the appropriate remedy for the present

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petitioner is to either file an appeal or to implead himself in the present pending appeal, if it is so permissible in law. He would further contend that the primary contention of the petitioner that he was not made a party to the proceedings before the court below, is an incorrect and misleading statement, as admittedly, the petitioner was represented by counsel before the court below and the non-participation or the mute participation of the counsel for the petitioner, cannot be a ground on which the petitioner could seek to question the proceedings before the court below. There is hence no warrant for interference in writ jurisdiction when an alternative remedy is available to the petitioner and would hence contend that the writ petition is misconceived and ought to be rejected in limine.

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While the learned counsel for the petitioner would

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reply that the very amount involved would indicate the disparity and point out that the award which was for a sum of Rs.47,88,784/-has been enhanced beyond imagination, to a

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phenomenal amount of Rs.6,87,85,290/- and that by itself is sufficient circumstance to re-examine the matter and especially so, since the petitioner has not been heard or not shown to have been heard. Hence, would submit that the second respondent has already taken out execution proceedings and this Court having stayed the award and further proceedings in the execution, if the petition is to be summarily rejected as stated by the learned counsel for the respondent, it would result in irreparable loss and damage to the petitioner, which is an undertaking of the State Government and a proxy would be the custodian of public funds and therefore, would seek that the petition be allowed.

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In the above background, even if it could be said that

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there was an irregularity in the proceedings before the Court below, and would warrant interference by this court under Article 227 of the Constitution of India in its power of superintendence, it is also to be kept in view that an appeal has

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already been filed against the very award and these proceedings which are in the nature of a parallel challenge, albeit on grounds which are not in conformity with the grounds raised in appeal, it would be more appropriate if the petitioner should implead itself as an appellant in the pending appeal, which in any event, is said to have been filed after a delay and is pending consideration before the Appellate Court for orders on the application seeking condonation of delay. Therefore, it is at a nascent stage and it would be appropriate if the petitioner should avail of the remedy of joining the appellant therein as a co-appellant, as the interest of the State and the petitioner coincide and on that note, the petition is disposed of without prejudice to the case of the petitioner to implead itself as a coappellant in the pending appeal in M.F.A.667/2012.

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In the meanwhile, however, till such time that the petitioner should file appropriate applications before this Court in its appellate jurisdiction in the aforesaid pending appeal, the

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execution of the award shall continue to be stayed. The petitioner shall however take steps within a period of four weeks, if not earlier, as regards the remedy that it may avail, as

noted above.

Sd/-

JUDGE

Mangalore Electricity Supply Company Ltd. v. Land Acquistion Officer and

Case brief

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Mangalore Electricity Supply Company Ltd. v. Land Acquistion Officer and

Case brief

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