Allowed

T v. Sundar Raj v State of Karnataka

Karnataka HC6 Mar 2023WP/1241/2023

Case brief

AI extract

What is this about?

The High Court granted a writ of mandamus directing KIADB to compute and pay compensation to the petitioner for 12 Acres 26 Guntas of 'A' kharab land with interest at 9% per annum. The Court held that the SLAO cannot delegate statutory award-making power by seeking CEO instructions and must follow revenue officials' findings on land classification and public use.

What did the court decide?

Writ of Mandamus directed KIADB to pay compensation for 12 Acres 26 Guntas with interest at 9% per annum from possession date, treating delayed payment as a fit case for exemplary costs.

T v Sundar Raj Vs State of Karnataka — Land Acquisition | Karnataka HC (2023)

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WP No. 1241 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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WRIT PETITION NO. 1241 OF 2023 (LA-KIADB)

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BETWEEN:

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T V SUNDAR RAJ, S/O LATE VEERASWAMY MUDALIAR, AGED ABOUT 63 YEARS, R/AT TYAMAGONDLU HALLI VILLAGE, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT – 562 132.

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…PETITIONER (BY SRI.DIWAKAR K, SENIOR COUNSEL A/W

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SRI.HITESH GOWDA B J, ADVOCATE)

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AND:

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Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA, REP BY PRINCIPAL SECRETARY, REVENUE DEPARTMENT, M S BUILDING, BANGALORE – 560 001.

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CHIEF EXECUTIVE OFFICER, KIADB, KARNATAKA STATE INDUSTRIES AREA DEVELOPMENT BOARD, 49, 4^TH AND 5^TH FLOORS, EAST WING, KHANIJA BHAVAN, RACE COURSE ROAD, BENGALURU – 560 001.

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SPECIAL DEPUTY COMMISSIONER KIADB, 49, 4^TH AND 5^TH FLOORS, EAST WING, KHANIJA BHAVAN, RACE COURSE ROAD, BENGALURU – 560 001.

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SPECIAL LAND ACQUISITION OFFICER, KIADB, 1^ST FLOOR, MAHARISHI ARVINDA BHAVAN, OPPOSITE TO RBI OFFICE, NRUPATUNGA ROAD, BENGALURU – 560 001.

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…RESPONDENTS

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(BY SRI.R SRINIVASA GOWDA, AGA FOR R1; SRI.B V SABARAD, SENIOR COUNSEL A/W SRI. H L PRADEEP KUMAR, ADVOCATE FOR R2 TO R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R4 TO COMPUTE THE INTEREST FOR THE FIRST YEAR IS 9 PERCENT PER ANNUM AND SUBSEQUENT THERETO IT IS 15 PERCENT ON THE COMPENSATION PAYABLE FROM THE DATE IT FELL DUE I.E.21.07.2010 AT ANNEXURE-A IN BEARING NO.CI 79 SPQ 2007 UPTO DATE OF PAYMENT IN LINES OF THE ORDER DATED 28.10.2022 IN WP NO.21155/2022 AT A(ANNEXURE-P) AND PRESENTATION DATED 04.11.2022 AT (ANNEXURE-Q TO Q2) AS PER SECTION 34 OF LAND ACQUISITION ACT,1894 AND ETC.,

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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ORDER

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Shorn of the text of the prayer column in the petition, the Petitioner who has lost the land in KIADB acquisition is knocking at the doors of Writ Court essentially for a direction to the 4th Respondent-SLAO to frame the award by treating the subject land admeasuring 12 acres & 26 guntas as ‘A’ Kharab for the purpose of computation of and to pay the compensation with interest at the rate of 15% per annum to be reckoned from

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21.07.2010, within fifteen days, inasmuch as the subject

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land is after verification of records is certified by the jurisdictional Tahasildar & Deputy Commissioner to be ‘A’ kharab and that the same has not been put to use for any public purpose specified by law.

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After service of notice, the State is represented

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by the learned AGA and the KIADB & its officials are represented by their Panel Counsel. The KIADB has filed the Statement of Objections on 16.02.2023 opposing the Writ Petition. Learned Sr. Advocate appearing for the KIADB & its officials makes submission resisting the Writ Petition essentially contending that the subject land is ‘B’ Kharab and further, it has been put to use for the statutorily specified public purpose, and therefore, no compensation can be claimed by the Petitioner. In support of his contention, he relies upon certain decisions of this Court and concludes that whether land is ‘A’ kharab or ‘B’ kharab, is to be determined by the SLAO himself and so also, whether land is put to any public purpose, and

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therefore what the revenue officials would say in this regard, is not relevant. He hastens to add that the SLAO has issued an endorsement dated 16.12.2022, a copy whereof is placed on record by the Petitioner himself to the effect that instructions have been sought for concerning the issue at the hands of the CEO who is looking into the matter. So contending, he seeks dismissal of the Writ Petition.

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Brief facts of the case:

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(i) The land in all admeasuring 26 Acres & 11 Guntas in Sy.No.21/1 of Lakshmanapura village, Tyamagondlu Hobli, Bengaluru Rural District was the subject matter of acquisition way back in the year 2010, under the provisions of Sec.28 of the Karnataka Industrial Areas Development Act, 1966 for the benefit of KIADB. Out of the said land, the petition is confined to only 12 Acres & 26 Guntas in respect of which no award was passed on the ground that it was a ‘B Kharab’ land and that it was put to use for a public purpose.

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(ii) Petitioner vide representation dated 27.07.2013

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had requested the Respondents to pass the award in respect of the subject land asserting that the same is ‘A kharab’ land. The SLAO had rejected the representation vide endorsement dated 06.07.2013 which was faltered by a Co-ordinate Bench of this Court in W.P.No.46651/2013 disposed off on 06.11.2013 holding that Petitioner is entitled to compensation in respect of kharab land and therefore the Respondents were directed to pay appropriate compensation after ascertaining whether the land fell under clause (a) or (b) of Rule 21(2) of the Karnataka Land Revenue Rules, 1966.

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(iii) The above judgment was sought to be recalled in Review Petition No.347/2014 filed by the SLAO of KIADB and the same came to be negatived with the following observation:

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“5. While taking note of the fact that it is indeed a Circular issued for the guidance of the KIADB, which it has diligently followed, the legal position however, cannot be lost sight of, namely, though pot kharab lands can be classified either under clause (a) or (b) of Sub-

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rule (2) of Rule 21 of the KIAD Rules, it would not be possible for the authority to acquire the land which is classified as pot kharab under clause (a) of sub-rule (2) of Rule 21 of the Rules, without the benefit of compensation being provided to the land owner whose land forms part of the kharab. Therefore, in the absence of any material even now produced along with this review petition, to indicate that it was put to any public use, the position remains the same. In that, the writ petitioner would be certainly entitled to compensation if it is such pot kharab which was not put to any public use…It is made clear that it is yet open to the competent authority to demonstrate or to indicate that it is put to such public use and therefore, could not be approved. It is then for the KIADB notwithstanding the order passed in the writ petition to abide by such an opinion. In the absence of any such opinion, the writ petition having been allowed summarily, would be in order and does not warrant a review...”.

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There is no dispute at the Bar that the Rules inadvertently referred to by the learned Coordinate Judge above were not of KIADB, inasmuch as no such Rules have been promulgated under the 1966 Act, and therefore what is meant is the Karnataka Land Revenue Rules, 1966 only.

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(iv) A representation dated 20.6.2014 was made to the SLAO of KIADB requesting for the payment of compensation in respect of the subject land in terms of the

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judgments in Writ Petition & Review Petition. Petitioner sent a reminder dated 21.03.2018 & 16.08.2018. Nothing happened to the same and therefore, he made a representation dated 7.1.2022 to the CEO, SLAO & Legal Advisor of KIADB and to the Special Deputy Commissioner, as well, specifically stating that in terms of the said judgments, compensation in respect of 12 Acres & 26 Guntas at the rate of Rs.40,00,000/- per acre with interest at the rate of 15% per annum should be paid immediately. Again nothing happened.

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(v) Though the jurisdictional Tahasildar vide letter dated 31.05.2022 and the Asst. Commissioner vide letter dated 20.06.2022 and the Deputy Commissioner vide letter dated 29.06.2022 had in reply specifically stated to the SLAO to the effect that the so called kharab land has not been put to any public use nor so reserved for. In the meanwhile, father of the Petitioner died and later, brother of the Petitioner who had fought the legal battle too had breathed his last. Therefore, Petitioner made a reminder

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dated 7.10.2022 requesting for the release of compensation. The Legal Advisor too had recommended case of the land owners for payment of compensation. Even then, nothing happened.

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(vi) In W.P.No.21155/2022 filed by the Petitioner, another Coordinate Bench handed a judgment dated 28.10.2022 with the following observations at para 6 thereof.

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“In view of the aforesaid facts and circumstances of the case, the petition is disposed off directing the respondents-KIADB to address the grievances of the petitioner and consider and pass appropriate orders/take appropriate decision on the representations submitted by the petitioner vide Annexures-N, N1 and N2, all dated 07.10.2022 to respondents 2, 3 and 4 in accordance with law, bearing in mind the material on record in the instant case, within a period of six weeks from the date of receipt of a certified copy of this order.”

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Again, nothing happened and therefore, Petitioner got issued legal notices dated 4.11.2022. Now, the KIADB having woken up, it’s SLAO gave an endorsement dated 16.12.2022 to the effect that he has no jurisdiction in the matter and therefore, the file has been placed at the

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hands of CEO of the KIADB and further that after instructions are received, a decision in accordance with law would be taken. Petitioner after coming to know of the same, has placed it on record with leave and seeks its quashment, over cautiously assuming that the same may come in the way of granting relief in his poorly drafted pleadings.

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Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:

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(a) Father of Petitioner namely Veeraswamy Mudaliar was the owner of 26 Acres & 11 Guntas of the land that was earmarked for acquisition along with other vide Preliminary Notification dated 21.7.2010 issued u/s 28(1) of the 1966 Act, is not in dispute. Item No.26 at internal page 14 of the said Notification accordingly mentions this. Already compensation has been paid in respect of part of the land whereas no compensation is

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paid in respect of other part that admeasures 12 Acres &

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26 Guntas which is shown to be kharab in the Notification, on an assumption that it is ‘B’ kharab and therefore, no compensation is payable. This is absolutely wrong because of a specific finding recorded by a Coordinate Bench of this Court in W.P.No.46651/2013 disposed off on 6.11.2013 holding that petition land is ‘A’ kharab and therefore, Petitioner is entitled to compensation. Even the Review Petition No.347/2014 filed by the Respondents also came to be negatived vide a considered judgment dated 11.06.2014 specifically stating that no material was placed before the Court to show that this ‘A’ kharab land is put to use for a public purpose as specified under Rule 21(2)(b) of the 1966 Rules.

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(b) The vehement submission of learned Sr. Advocate appearing for the KIADB that liberty was reserved to his clients to adjudge whether the land fell under Rule 21(2)(b) and therefore, the same is being looked into by the CEO, does not merit acceptance. The

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Coordinate Judge in W.P.No.46651/2013 disposed off on

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6.11.2013 in so many words had stated that even in respect of pot kharab land, Petitioner is entitled to compensation, as already mentioned above, that too after considering the contention to the contrary. In the Review Petition disposed off on 11.6.2014, the learned Judge stated ‘…the Writ Petitioner would be certainly entitled to compensation if it is such pot kharab which was put to any public use. It is made clear that it was yet open to the competent authority to demonstrate or to indicate that it is

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put to such public use…It is then for the KIADB notwithstanding the order passed in the writ petition to abide by such an opinion…’ All this makes it clear that it was for the ‘ competent authority’ i.e., obviously the jurisdictional revenue officials and not the KIADB & its officials to opine as to whether this land is put to public use in terms of Rule 21(2)(b) of 1966 Rules. This finding has attained finality, there being no further challenge. Accordingly, the SLAO had solicited the opinion of Tahasildar, the Asst. Commissioner and Deputy

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Commissioner who after verification of records, have specifically stated that the subject land is ‘A’ kharab and that the same has not been put to use for any public purpose. The revenue authorities discharged their statutory functions and the opinion formed on the basis of revenue records enjoy presumptive value u/s 133 of the Karnataka Land Revenue Act, 1964. There is absolutely no reason nor rhyme for discounting this opinion in the absence of a milligram of contra material. It hardly needs to be reiterated that the learned Coordinate Judge in the Review judgment had directed the KIADB to abide by the opinion of the ‘ competent authority’ . This Court is bewildered as to how the plain terminology employed in the judgment could be misconstrued by the officials of KIADB. There is lot of scope for the ‘ wild imagination’ as to why the compensation is being delayed if not denied for more than a decade of acquisition.

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judgments in Writ Petition & Review Petition and after

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adverting to the opinions given by the Tahasildar, Asst. Commissioner & Deputy Commissioner has said as under:

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“…On plain reading of the order passed by the Hon’ble High Court of Karnataka in WP.No.4665/2013 and the order passed in… RP.No.347/2014… makes it clear that the Hon’ble High Court of Karnataka directed the SLAO to pay the compensation determined with interest on the compensation so payable from the date it fell due…In pursuance of order passed by the Hon’ble High Court… the then SLAO addressed a letter to the Dy. Commissioner Bengaluru Urban District, on 2802-2015 seeking the report as to whether the above said Kharab land was put to public use…on 29-06-2022 the Dy. Commissioner Bengaluru Rural District informed the SLAO that Sy.No.21/1 measuring 12 acres 06 guntas and other lands mentioned in the letter, which has been classified as ‘A’ Kharab lands, have not been put to any public use... The documents made available and correspondence available in the file clearly indicates that the land bearing Sy.No.21/1 measuring 12 acres 26 guntas was ‘A’ Kharab land which was not reserved by the Government as a Kharab, the same was part of the assessed land belong into the petitioner-Sri.T.V.Shivashankar… The revenue records discloses that the Kharab land which forms part of the entire survey number rightly treated as a land belongs to the petitioner while awarding compensation in respect of other portion of the land. Having so treated the land as a part of the holding of the

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petitioner and having awarded compensation for the remaining land, it is not open for the authority to exclude the same while determining the entitlement of the petitioner for awarding compensation in respect of the Phot Kharab land measuring 12 acres 26 guntas…On taking into consideration the above decisions of the Hon’ble High Court of Karnataka wherein the Hon’ble High Court ordered to pay the compensation with interest at the rate of 9% p.a., the case on hand also similarly placed, therefore it is just and reasonable to pay the compensation with interest at the rate of 9%...For the aforesaid reasons, The Office of the SLAO, KIADB will be requested to release the compensation with interest at the rate of 9% payable from the date it fell due up to the date of payment to the legal heirs of Sri.T.V.Shivashankar in respect of land…without giving any room for initiation of Contempt Proceedings.”

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The suggestion of the Legal Advisor for the payment of interest on account of enormous delay brooked in the matter, broadly accords with a catena of decisions of this Court including Division Bench (KALABURAGI) of this Court in W.A.Nos.200492 & 200535-582/2014 between Sidramappa & Others vs. State & Others, disposed off on 2.12.2014.

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(d) Learned Sr. Advocate Mr.B.V.Sabarad draws

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attention of the Court to another Division Bench decision of this Court in W.A.Nos.50107 & 50128-154/2013 between SIDRAMAPPA SHIVAPPA BIRAKABBI & OTHERS VS. GOVERNMENT OF KARNATAKA & OTHERS , disposed off on 7.8.2013 to contend that the pot kharab lands falling within the category of Rule 21(2)(b) belong to the government and therefore, no compensation is payable for the same. There cannot be much quarrel with the proposition on which the learned Single Judge’s order in Petitioner’s earlier case in W.P.No.4665/2013 has been inarticulately structured. The question is not of law but is of fact namely whether ‘A’ kharab land is put to use for a public purpose specified in the said Rule. A wealth of material galores to answer the question in the negative and only in the negative. His reliance on a Coordinate Bench decision in W.P.Nos.202119-140/2018, etc., between Sambaji Satyappa Gayakwad and others vs. State and others, disposed off on 11.9.2019 to contend that it is for the SLAO to form the opinion as to whether

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the land falls within the category of Rule 21(2)(a) or (b) of

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the 1966 Rules, does not come to rescue of his clients. This decision leaves it no doubt as to its being ‘factspecific’ , with frugal discussion of law, and therefore the said decision cannot be treated as having precedential value going by any standard tests like Wambaugh Test or Dr.Upendra Baxi’s Test for ascertaining the ‘ ratio decidendi’ . This apart, by virtue of res judicata , there is no room for such a contention now when the KIADB has suffered a specific finding to the contra, at the hands of a Coordinate Bench in earlier rounds of litigation i.e., Writ Petition & Review Petition, as discussed already.

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(e) The last contention of Mr.Sabarad that the SLAO vide endorsement dated 16.12.2022 has only sought for instructions of the CEO of the KIADB as to what should be done in the matter and there is nothing wrong in this, is very difficult to countenance. It is the SLAO who has to pass the award in exercise of statutory power given under the provisions of 1966 Act. He cannot seek instructions

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from the higher-ups for exercising the said power in an

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individual case. The Apex Court in BAR COUNCIL VS. SURJEET, AIR 1980 SC 1612 has held that where power is conferred by the Statute on a designated authority, it has to be exercised by the said authority only, and by none else. An argument to the contrary also militates against the doctrine of ‘acting under dictation’.

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(f) A checkered history of the case and the way the authorities have treated the Petitioner, his deceased brother and his deceased father, unmistakably leads to a conclusion that there is a concerted effort from the quarters that be, to delay payment of compensation, if not deny, come what may and this stand is an affront to the judicial process in view of judgment after judgment secured by the land owners at the hands of the Coordinate Benches of this Court. It is the SLAO in the light of the judgments in Writ Petition & Review Petition who had sought for opinion of the Deputy Commissioner as to whether the subject land is ‘A’ kharab and whether it is

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put to any public use in terms of Rule 21(2)(b) of the 1966

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Rules. The Deputy Commissioner having verified the matter at the hands of Tahasildar, has given a considered opinion that the subject land is ‘A’ kharab and that it is not put to use for any public purpose. Even the Legal Advisor of the KIADB after verifying the records suggested to the

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SLAO to treat the subject land as such and pay the compensation to the Petitioner with interest at the rate of 9% to avoid possible contempt action. However, that also did not deter the Respondents.

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(g) Despite all the above, the Respondent-KIADB & the SLAO have not conducted themselves fairly & reasonably qua the land loser who has been fighting successive legal battles, having lost the land in acquisition about 13 years ago. It hardly needs to be stated that the right to property having being constitutionally guaranteed u/a 300A, the land losers should not be pushed to fight litigation after litigation endlessly with no fruit reaching their hands despite being successful in obtaining positive

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directions. The statutory authorities cannot be permitted to act unjustly & unreasonably at least with those who have lost their properties in acquisition for public purpose. It was Saint Augustine (354 – 430 A.D) who centuries ago in his Book The City of God, Volume 1, had said: “Without justice, what else is the State but a great band of robbers…?” Therefore, this is a fit case for awarding exemplary costs.

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In the above circumstances, this Writ Petition succeeds; a Writ of Mandamus issues to the 2nd Respondent-CEO and 4th Respondent-SLAO, both of KIADB to compute & pay compensation to the Petitioner within eight weeks in respect of the subject land admeasuring 12 Acres & 26 Guntas with interest at the rate of 9% per annum to be reckoned from the date the possession thereof was taken, failing which, apart from the likely action for contempt, an additional interest of 9% per annum shall be payable ab inceptio and, the same may be

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