Partly allowed

Sri Ajjappa v. State of Karnataka

Karnataka HC1 Feb 2023WP/4301/2008

Case brief

AI extract

What is this about?

Single judge upheld acquisition under KIAD Act holding title vests on final notification. Denied relief on public purpose/long delay to quash. Ordered pass of awards, payment of compensation, and 12% annual interest for State/KIADB delay.

What did the court decide?

Awards to be passed within two months if not passed; compensation to be disbursed within eight weeks; 12% annual interest payable on compensation from notification or possession date, recoverable from

Sri Ajjappa Vs State of Karnataka — Land Acquisition | Karnataka HC (2023)

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WP No. 2848/2008 C/W WP Nos. 3539/2006, 4301/2008,4302/2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT WRIT PETITION NO. 2848/2008 (LA-KIADB) C/W WRIT PETITION NOS.3539/2006, 4301/2008, 4302/2008(LA-KIADB)

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IN W.P.NO.2848/2008:

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BETWEEN:

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SMT. DODDAMMA WIFE OF LATE AGADURAPPA AGED ABOUT 70 YEARS, RESIDENT OF BOMMASANDRA VILLAGE ANEKAL TALUK, BANGALORE URBAN DISTRICT - 560 099.

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…PETITIONER

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(BY SRI. SHIVANANDA METI, ADVOCATE)

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AND:

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STATE OF KARNATAKA

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

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BY ITS SECRETARY DEPARTMENT OF INDUSTRIES & COMMERCE M.S.BUILDINGS, BANGALORE - 560 001.

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THE KARNATAKA INDUSTRIAL AREA'S DEVELOPMENT BOARD BY ITS EXECUTIVE DIRECTOR NO.14, NRUPATHUNGA ROAD, BANGALORE - 560 001.

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SPECIAL LAND ACQUISITION OFFICER THE KARNATAKA INDUSTRIAL AREA'S DEVELOPMENT BOARD, KHENI BUILDING BEHIND TRIBHUVAN THEATRE GANDHINAGAR, BANGALORE - 560 009.

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WP No. 2848/2008 C/W WP Nos. 3539/2006, 4301/2008,4302/2008

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B.T.L. EDUCATION TRUST PLOT NO.250/B, BOMMASANDRA INDUSTRIAL AREA, BOMMASANDRA, ANEKAL TALUK BANGALORE - 560 009.

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…RESPONDENTS

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(BY SRI. SRIDHAR HEGDE, AGA FOR R1; SRI. P.V. CHANDRASHEKAR, ADVOCATE FOR R2 & R3;

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SRI. VARDHAMAN V. GUNJAL, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DT. 22.7.1996 IN REFERENCE TO ANNEX.E. WITH RESPECT TO 10 GUNTAS OF LAND IN SURVEY NUMBER 19 OF KITHIGANAHALLI VILLAGE, ANEKAL TQ., AND BE PLEASED TO QUASH THE ALLOTMENT MADE BY THE RESPONDENT BOARD IN FAVOUR OF R4 ON 21.7.2000 VIDE ANNEX.T AND ETC.,

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IN W.P.NO.3539/2006:

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BETWEEN:

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VENKATABHADRA REDDY

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S/O GOWDAPPA, AGED ABOUT 60 YEARS, R/A KITHIGANAHALI VILLAGE JIGANI HOBLI, ANEKAL TALUK, BANGALORE NORTH TALUK.

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…PETITIONER

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(BY SRI.B RAMESH, ADVOCATE)

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AND:

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STATE OF KARNATAKA DEPARTMENT OF INDUSTRIAL DEVELOPMENT M.S.BUILDING, DR.AMBEDKAR VEEDHI, BANGALORE - 560 001 REPRESENTED BY ITS SECRETARY

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KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD, NO.14/3,

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WP No. 2848/2008 C/W WP Nos. 3539/2006, 4301/2008,4302/2008

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2^ND FLOOR, RASTROTHANA PHARISHAT BUILDING, NRUPATHUNGA ROAD, BANGALORE - 560 001. REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER & EXECUTIVE MEMBER

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SPECIAL LAND ACQUISITION OFFICER (INTERNATIONAL AIR PORT) DIVISIONAL OFFICE, NO.488/B, 14^TH CROSS, KIADB MULTISTORIED BUILDIJNG, 3^RD BLOCK, 4^TH DIVISION, PEENYA INDUSTRIAL AREA, BANGALORE - 560 058.

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M/S. BTL EDUCATIONAL TRUST FOR RURAL DEVELOPMENT, NO.259/B, BOMMASANDRA INDUSTRIALAREA, HOSUR ROAD, BANGALORE - 562 158 REPRESENTED BY ITS SECRETARY.

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…RESPONDENTS

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(BY MR. SRIDHAR HEGDE, AGA FOR R1; SMT. GOWHAR UNNISA, ADVOCATE FOR R2 & R3; SRI. V.V.GUNJAL, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICES DT. 28.6.05 BY R3 VIDE ANN-K1 TO K5 AND THE ACQUISITION PROCEEDINGS INITIATED PURSUANT TO THE FINAL NOTIFICATION DT. 22.7.96 VIDE ANN-D AND ETC.,

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IN W.P.NO.4301/2008:

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BETWEEN:

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SRI. AJJAPPA DEAD BY HIS LRS:

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(a) SAMPANGIRAMAIAH S/O LATE AJJAPPA AGED ABOUT 62 YEARS

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(b) SAMPANNI

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S/O LATE AJJAPPA

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WP No. 2848/2008 C/W WP Nos. 3539/2006, 4301/2008,4302/2008

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AGED ABOUT 54 YEARS

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S/O LATE AJJAPPA AGED ABOUT 52 YEARS

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ALL ARE AGRICULTURISTS AND R/O BOMMASANDRA VILLAGE, ANEKAL TALUK, BANGALORE URBAN DIST -560 099.

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…PETITIONERS

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(BY SRI. E.V. GOAPALA KRISHNAN POTTY, ADVOCATE)

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AND:

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STATE OF KARNATAKA

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BY ITS SECRETARY DEPARTMENT OF INDUSTRIES & COMMERCE, M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE - 560 001.

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THE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD,

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BY ITS EXECUTIVE MEMBER, NO.14, NRUPATHUNGA ROAD, BANGALORE - 560 001.

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SPECIAL LAND ACQUISITIONS OFFICER, THE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, KHENI BUILDING, BEHIND TRIBHUVAN THEATRE, GANDHINAGAR, BANGALORE - 560 009.

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B.T.L. EDUCATION TRUST FOR RURAL DEVELOPMENT PLOT NO 259/B, BOMMASANDRA INDUSTRIAL AREA, BOMMASANDRA, ANEKAL TALUK BANGALORE - 560 009.

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…RESPONDENTS

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(BY MR. SRIDHAR HEGDE, AGA FOR R1 , SRI. P.V. CHANDRASHEKAR, ADVOCATE FOR R2 & R3; SRI. V.V. GUNJAL, ADVOCATE FOR R4)

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WP No. 2848/2008 C/W WP Nos. 3539/2006, 4301/2008,4302/2008

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DT. 22.7.1996 ISSUED U/S 28(4) OF THE LAND ACQUISITION ACT WITH RESPECT TO THE PETITIONERS LAND (ANNEXURE-D) IN SY.N.21/1 OF KETHIGANAHALLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT MEASURING 8 GUNTAS AND ETC.,

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IN W.P.NO.4302/2008:

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BETWEEN:

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SRI. POOJARI AGADURAPPA

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DEAD BY HIS LRS

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(a) EERAMMA

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W/O LATE POOJARI AGADURAPPA AGED ABOUT 91 YEARS

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(b) MUNIVEERAMMA

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D/O LATE POOJARI AGADURAPPA AGED ABOUT 61 YEARS

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D/O LATE POOJARI AGADURAPPA AGED ABOUT 59 YEARS

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(d) A. THORASALAPPA

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S/O LATE POOJARI AGADURAPPA AGED ABOUT 57 YEARS

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(e) LINGAPPA

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S/O LATE POOJARI AGADURAPPA AGED ABOUT 55 YEARS

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(f) A. RAMACHANDRA S/O LATE POOJARI AGADURAPPA EX-SERVICEMAN, AGED ABOUT 53 YEARS

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(g) CHIKKAIAH S/O LATE POOJARI AGADURAPPA AGED ABOUT 51 YEARS

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(h) A. KRISHNAMURTHY S/O LATE POOJARI AGADURAPPA

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AGED ABOUT 45 YEARS

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ALL ARE AGRICULTURISTS, R/O BOMMASANDRA VILLAGE, ANEKAL TALUK, BANGALORE URBAN DISTRICT - 560 009.

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…PETITIONERS

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(BY SRI. E V GOPALAKRISHNAN POTTY, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF INDUSTRIES & COMMERCE M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE- 560 001.

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THE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, BY ITS EXECUTIVE MEMBER, NO.14, NRUPATHUNGA ROAD, BANGALORE - 560 001.

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SPECIAL LAND ACQUISITION OFFICER THE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, KHENI BUILDING, BEHIND TRIBHUVAN THEATRE, GANDHINAGAR, BANGALORE - 560 009.

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B.T.L. EDUCATION TRUST FOR RURAL DEVELOPMENT, PLOT NO.259/B, BOMMASANDRA INDUSTRIAL AREA, BOMMASANDRA, ANEKAL TALUK, BANGALORE - 560 099.

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…RESPONDENTS

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(BY MR. SRIDHAR HEGDE, AGA FOR R1; SRI. P.V.CHANDRASHEKAR, ADVOCATE FOR R2 & R3; SRI. V.V.GUNJAL, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

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WP No. 2848/2008 C/W WP Nos. 3539/2006, 4301/2008,4302/2008

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NOTIFICATION DT. 22.7.96 ISSUED UNDER SECTION 28(4) OF THE LAND ACQUISITION ACT WITH RESPECT TO THE PETITIONERS LAND (ANNEXURE-D) AND ETC.,

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THESE WRIT PETITIONS COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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All these petitions broadly having common law &

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facts, are filed by the land owners for laying a challenge to

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the acquisition of their lands under the provisions of the Karnataka Industrial Areas Development Act, 1966.

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Learned advocates appearing for the Petitioners

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seek to falter the acquisition making the following submissions:

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(i) The acquisition of the land is not for public purpose and their objections filed to the proposal for acquisition have not been duly considered.

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(ii) The opinion of the government as to requirement of the lands, is unfounded since KIADB itself recommended for their denotification;

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(iii) The lands being adjacent to the villages could not have been notified for acquisition.

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(iv) The acquired lands are sought to be given to some others not connected with industry;

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(v) The acquisition is not accomplished within the statutory period and possession has not been taken till date; neither award has been passed nor compensation has been paid; and

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(vi) In any event, acquisition if at all to be saved from challenge, the compensation has to be paid under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

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After service of notice, the State being the

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acquiring body has entered appearance through the AGA; the KIADB and its SLAO have entered appearance through

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their panel counsel and they have filed their objections. The allottee of the land being a respondent also is represented by its advocate and its has filed its Statement of Objections, opposing the Petitions. All the learned AGA, learned Panel Counsel for the KIADB & learned counsel for appearing for the Education Trust making submission in justification of the impugned acquisition, controverting the Petition averments.

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Having heard the learned counsel for the parties and having perused the Petition Papers, although this

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Court declines indulgence so far as, the challenge to acquisition is concerned; however, it is inclined to grant some relief to the land owners as under, and for the following reasons:

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(a) In all these cases, the Preliminary Notification under section 28(1) came to be issued on 15.7.1994 and it was followed by the issuance of Final Notification on 22.7.1996 under section 28(4) of the KIAD Act, 1966. A Division of this Court having scanned the provisions of 1966 Act and the erstwhile Land Acquisition Act, 1894 in W.P.No.17600/2004 etc., between NANDI

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INFRASTRUCTURE CORRIDOR ENTERPRISE LIMITED vs. STATE & OTHERS , disposed off on 15.06.2011 has held that once the Final Notification is issued, the land would vest in the State, whether award is passed or not, compensation is paid or not and possession is taken or not. The Bench at paragraph 19 reiterated the legal position with the following observation:

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“ Under the Land Acquisition Act, Section 16 of the Act contemplates vesting of the land with the Government. Under the said Act, the lands

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under acquisition get vested with the Government when the Collector makes an award under Section 11 of the Land Acquisition Act and the Government takes possession. The situation is entirely different under KIAD Act. After the final notification under Section 28(4) of KIAD Act, the lands get vested in the Government by virtue of Section 28(5) of the Act by operation of law and it does not depend upon passing of any award by the Land Acquisition Officer. Therefore, though Sections 28(1) and 28(4) of the KIAD Act contemplates preliminary and final notifications for acquisition of land, when once final notification under Section 28(4) of the Act get published, the land vests with the State Government as contemplated under Section 28(5) of the Act… ”

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Thus, the scheme of acquisition under the 1966 Act is bit

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in variance with that of the 1894 Act, whereunder, the land will vest only after award is passed and possession is taken. That being the position, the grievance of the Petitioners that despite KIADB Resolution recommending denotification of these lands, the government is not justified in accomplishing the process of acquisition, is legally unsustainable.

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(b) As already mentioned above, the Preliminary Notification was issued on 15.7.1994 and the land owners did not file their objections thereto. The grounds on which

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the proposal for acquisition could have been opposed by filing the objections ordinarily cannot be urged in the writ jurisdiction when no objections have been filed soon after the issuance of Preliminary Notification, more particularly when no plausible explanation for such a lapse is offered. The vehement submission of learned advocates appearing for the Petitioners that they had sought for deletion of the land from acquisition, of course, a bit long after the preliminary notification was issued and that itself may be treated as objections, is bit difficult to countenance, the same having been filed long after the cut-off date mentioned in the very Preliminary Notification. A Division Bench of this Court in VENKATARAMANAPPA AND OTHERS VS. STATE AND OTHERS , (1984) 2 KLJ 326, has held that the objections filed after the cut-off date are no objections in the eye of law. Therefore, the non-consideration thereof does not give a cause of action for invalidating the acquisition, on that ground per se .

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for the land owners that these lands are not required by

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the KIADB and therefore, the KIADB had passed a Resolution on 15.12.1998 recommending for dropping of the said lands from the acquisition process and as a consequence, the government ought to have denotified the lands from acquisition, is very difficult to countenance. True it is that the government can drop the acquisition process partially or wholly as provided under section 48(1) of the 1894 Act if the land has not vested in it. As already discussed above, the scheme of acquisition under the 1966 Act is a bit in variance with that envisaged in the 1894 Act whereunder the lands would vest in the State once the Final Notification is issued u/s 28(4) of the 1966 Act and therefore, the government rightly did not denotify the land in terms of KIADB recommendations. This apart, whether land is required for public purpose or not, is a matter essentially lying in the domain of the Executive and Writ Courts cannot run a race of opinions in this regard, as rightly submitted by learned Panel Counsel Mr.P.V.Chandrashekar appearing for the KIADB. The further submission that the lands being adjacent to

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villages, could not have been notified for acquisition in view of certain government circulars, does not merit acceptance since the acquisition is done by the State Government in exercise of the power of eminent domain. No property is immune from acquisition, despite the constitutional guarantee to property rights availing under Article 300A.

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(d) The submission of learned advocates appearing for the Petitioners that even today, they continue to be in possession of the lands in question and therefore, the acquisition has lapsed, enormous delay having been brooked by the acquiring body, again does not merit acceptance. Once the title to the land is vested in the acquiring body by virtue of the Final Notification the persons clinging on to same are not better than the trespassers, to say the least. It is only an unauthorized occupation from which no justiciable right would arise for invalidation of the acquisition. Had the acquisition been done under the provisions of the erstwhile 1894, Act arguably different considerations would have cropped up

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in the light of change of legal regime by virtue of 2013 Act. Passing of award and taking of possession of land do not matter in deciding whether the land has vested in the State or not, once the Final Notification is issued.

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(e) The above apart, the respondent-KIADB in its

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Statement of Objections has specifically stated that in all the cases except W.P.No.3539/2006, the possession has already been taken and award has already been passed and further, the compensation is also deposited in the court. Thus, in three of the four matters, the contention that the acquisition is bad for not passing the award till

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date nor taking the possession of the land, is factually incorrect & legally untenable, at least for voiding of acquisition. The allottee respondent has produced the copies of registered conveyances whereby, land has been put in its possession and some structures like hostel buildings have been put up therein. In W.P.No.3539/2006, true it is that the award has not been passed, as admitted by the KIADB in its Statement of Objections. It need not be repeated that passing of the award or taking of the

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possession of the acquired land do not result into divestation of the land vested in the State.

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(f) The vehement submission of learned counsel for the land owners that the subject lands were acquired for industrial purpose, whereas the same have been diverted to the Respondent - Educational Trust and therefore, the acquisition is to be voided on that ground, cannot be countenanced. In support of their claim, they have not shown any provision of law nor any Ruling of the Courts. Once the lands have vested in the State, the erstwhile owners cannot seek their restoration on the ground that they were put to use for some other public purpose. This view gains support from the decision of the Apex Court in C.PADMA & OTHERS VS. DEPUTY SECRETARY TO THE GOVERNMENT OF TAMIL NADU (1997) 2 SCC 627. It is more so when the challenge to acquisition has been laid more than a decade after the Preliminary Notification was issued and there is absolutely no explanation for the long delay brooked in knocking at the doors of Writ Court.

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(g) All the above having been said, two things stare

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at the culpable action of the State and the KIADB: Firstly,

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it hardly needs to be stated that when a public function/duty is to be discharged by a statutory authority, even when no time period is prescribed, the same has to be done within a reasonable time vide NEKKANTI RAMA

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LAKSHMI vs. STATE OF KARNATAKA 2017 SCC Online SC 1862. Decades have passed since the acquisition was notified, not even a rupee from the compensation has reached the hands of land losers. In a Welfare State, this is not a happy thing to happen. All this cannot go unscathed; some compensatory relief needs to be granted to the land owners for the culpable delay attributable to the State & the KIADB. Secondly, the acquisition having been accomplished by issuance of the Final Notification, the lands have vested in the State; in W.P.No.3539/2006, admittedly no award has been passed; in other cases, although awards have been passed, nothing is placed on record to show that the award notices were sent to the land owners calling upon them to take the compensation.

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(h) In what circumstances, the compensation came to be deposited by the KIADB in the jurisdictional court remains a mystery wrapped in enigma. The right to property although is not a fundamental right after the 42nd Amendment, it has been given constitutional guarantee u/a 300A. If the State & its instrumentalities want to take private property, that can be done in p ublic interest and subject to payment of compensation. Not passing the award virtually amounts to non-payment of compensation; similarly, depositing the compensation amount in the court without informing the land owners, virtually amounts to withholding the compensation. All this militates against the spirit of Article 300A of the Constitution.

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(i) A Coordinate Bench of this Court in W.P.No.108802/2016 (LA-KIADB) etc., between SREE S.SEENAPPA AND OTHERS VS. STATE AND OTHERS, disposed off on 18.7.2022, in more or less a similar fact matrix, has extended some additional benefit to the land losers on the lines of section 24 of the 2013 Act, in special

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circumstances, where constitutional guarantees are breached, the State & its instrumentalities cannot go with impunity. An argument to the contrary cannot be sustained without undermining the sanctity attached to the guarantee of property rights. The aggrieved citizens approach the court to have some redressal to their grievances much banking upon the spirit of constitutional guarantees. The constitutional courts cannot turn them away by quoting some jurisprudential theories. Justice Oliver Wendell Holmes in DAVIS vs. MILLS , 194 U.S. 451 (1904) had observed: “ Constitutions are intended to preserve practical and substantial rights, not to maintain theories …”.

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(j) At times courts have to individualize justice keeping in view the framework of law and exploring all possibilities of working out some just & reasonable remedy in the facts & circumstances of the case. Viewed from this angle, this Court is of a considered opinion that for the delay brooked in passing the award and paying the compensation, the owners of the petition lands should be

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given an additional interest at 12% per annum to be reckoned from the date of the Final Notification or taking of the possession of the land, whichever is later. The extra financial burden incurred by the BDA on account of this may be made good by recovering the same in accordance with law from the erring officials.

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In the above circumstances, this Court makes the following:

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ORDER

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(i) These writ petitions succeed in part, although the challenge to the acquisition of the lands in question fails;

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(ii) Wherever no awards are passed, the jurisdictional authorities shall pass the awards in accordance with law, within a period of two months and pay compensation within eight weeks thereafter;

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(iii) Wherever, already awards have been passed, the respondent-KIADB shall disburse or cause to be disbursed the compensation amount within eight weeks; and

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(iv) The respondent-KIADB shall pay an additional interest of 12% per annum on the compensation amount from the date the Final Notification was issued or the possession of the lands was taken, whichever is later. This additional amount after being paid to the land

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