Sri M Rajappa Vs State of Karnataka

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 16.12.2024 IN W.P. NO. 6371/2021, AND ALLOW THE SAID WRIT PETITION AND DECLARE THAT THE ACQUISITION IN SO FAR AS LAND IN SURVEY NO.15-1B MEASURING 6 GUNTAS SITUATED AT KODIHALLI VILLAGE UNDER NOTIFICATION DATED 15/07/1971 IN NO.HMA 53 MNJ 71 ISSUED BY THE RESPONDENT NO.1 PRODUCED AT ANNEXURE-F HAS LAPSED AND FURTHER ISSUE CONSEQUENTIAL DIRECTION TO THE RESPONDENT NOT TO DISTURB POSSESSION OF THE APPELLANT IN RESPECT OF LAND AT SURVEY NO.15/1B MEASURING 6 GUNTAS SITUATED AT KODIHALLI VILLAGE.

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THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. VIBHU BAKHRU ,CHIEF JUSTICE and HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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(PER: HON'BLE MR. VIBHU BAKHRU,CHIEF JUSTICE)

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The appellant has filed the present appeal impugning an order dated 16.12.2024 passed by the learned Single Judge in W.P.No.6371/2021 (LA-BDA), captioned "M. Rajappa v. State of Karnataka and Another' [ impugned order ].

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The appellant had filed the aforesaid writ petition, inter alia impugning a notification dated 15.07.1971 issued under Section 18(1) of the City of Bangalore Improvement Act, 1945, insofar as it related to land measuring 6 guntas comprising in Sy.No.15/1B located in Kodihalli Village [ subject land ]. The appellant sought a declaration to the effect that the said acquisition of the subject land was abandoned and had lapsed. The appellant also sought directions for restraining the respondents from interfering with the possession of the subject land.

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HC-KAR

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It is the appellant's case that a tract of land measuring 1 acre 26 guntas located in the Kodihalli village, was purchased by four persons namely, Konekarappa, Abbaiah, Chikka Abbaiah and Shamanna from one Lingappa, in terms of a registered sale deed dated 20.06.1957. The said properties were subsequently divided amongst the owners.

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It is stated that the land comprising in Sy.No.15, New No.15/1B situated in Kodihalli village, fell to the share of Munishamappa @ Chikkabbaiah and Venkatappa @ Shamanna. The land measuring 1 acre 20 guntas [out of 1 acre 26 guntas], was sold by virtue of a sale deed dated 24.05.1962 to one K. Vasudevaiah. Thus, it is the appellant's case that the remaining 6 guntas [subject land], was retained by Chikkabbaiah, who was the predecessor in interest of the appellant. The appellant claims that his predecessor in interest continued to be in possession of the [subject land]. And, the appellant is now in physical possession of the subject land. In terms of the impugned notification dated 15.07.1971 issued under Section 18(1) of the City of Bangalore Improvement Act, 1945, land measuring 1 acre 26 guntas in Sy.No.15/1B was declared to be required for public purpose.

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It is material to note that prior to the said date, a preliminary notification of acquisition had been issued on 21.09.1967. Thereafter, an award under Section 11 of the Land Acquisition Act, 1894 was made on 04.08.1972. It is material to note that the impugned notification as well as the award, indicates the name of K. Vasudevaiah as the kathedar of the land measuring 1 acre 26 guntas as. The award further indicates that K. Vasudevaiah had also made a claim dated 15.06.1972 stating that he was the owner of the land measuring 1 acre 26 guntas, as the same was purchased by him from Venkatappa @ Shamanna and Shri Muniswamappa @ Chikkabbaiah, in the year 1962. However, the registered sale deed produced by K. Vasudevaiah was for a land measuring 1 acre 20 guntas (30 guntas + 30 guntas). Accordingly, he was asked to produce the records to prove his entitlement to compensation for the entire extent of land measuring 1 acre 26 guntas comprising in Sy.No.15/1B. In the meanwhile, the compensation was directed to be kept in the State Treasury under the revenue deposit.

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The respondent had filed Statement of Objections in W.P.No.6371/2021, inter alia affirming that the award under

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HC-KAR

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Section 11 of the Land Acquisition Act, 1894 [LA Act] was made on 04.08.1972. Thereafter, award notice under Section 12(2) of the LA Act was issued and was also served. Possession of the entire land falling in Sy.No.15/1B, that is 1 acre 26 guntas was taken on 19.10.1972 and thereafter it was handed over to the Engineering Section for formation of a layout.

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It is further found that K. Vasudevaiah had been paid compensation for 1 acre 20 guntas of land, as he could produce documents for establishing his entitlement to the said extent. Insofar as the possession of 6 guntas of subject land is concerned, an amount of Rs.1,725/- had been kept by the Treasury of the Bangalore Development Authority (BDA). In view of the unequivocal statement that the possession of the lands comprising in Sy.No.15/1B measuring 1 acre 26 guntas, which includes the subject land was taken over, the acquisition of the subject land was complete.

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In view of the above, the appellant's prayer to the effect that the acquisition be declared as lapsed / abandoned, cannot be granted. The provisions of Section 24(2) of the Right to Fair

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HC-KAR

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Compensation and Transparency in Land Acquisition, Rehabilitation and Re-Settlement Act, 2013 [ Right to Fair Compensation Act ] are inapplicable, as the acquisition of the subject land is complete and the same had vested with the State.

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In Indore Development Authority vs. Manoharlal : (2020)

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8 SCC 129, the Supreme Court had held that any person in possession of the land after the same is vested with the State, is required to be treated as a trespasser. We consider it apposite to set out the following extracts of the said decision:

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“244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word “possession” has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression “physical possession” is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right

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to possess the land which vests in the State free from all encumbrances.

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245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression “physical possession” used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.

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256. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute

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vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under Section 16, takes place after various steps, such as, notification under Section 4, declaration under Section 6, notice under Section 9, award under Section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner.”

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(emphasis supplied)

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In view of the above, the appellant can draw no benefit of retaining the possession of the subject land.

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It is material to note that the preliminary notification was issued on 21.09.1967, which was almost 58 years ago. The final notification was issued on 15.07.1971 and award was made on - 04.08.1972. The possession of the subject land was taken over on 19.10.1972, which is almost 53 years ago and the subject land had vested with the State. It is well-settled that enactment of the Right

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to Fair Compensation Act does not provide a fresh cause of action in respect of the acquisitions of land that stand vested with the State. In Indore Development Authority v. Manoharlal (supra), the Supreme Court has explained as under:

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"356. We are of the opinion that courts cannot invalidate acquisitions, which stood concluded. No claims in that regard can be entertained and agitated as they have not been revived. There has to be legal certainty where infrastructure has been created or has been developed partially, and investments have been made, especially when land has been acquired long back. It is the duty of the Court to preserve the legal certainty, as observed in Vodafone International Holdings BV v. Union of India [ Vodafone International Holdings BV v. Union of India , (2012) 6 SCC 613 : (2012) 3 SCC (Civ) 867] . The landowners had urged that since the 2013 Act creates new situations, which are beneficial to their interests, the question of delay or laches does not arise. This Court is of the opinion that the said contention is without merits. As held earlier, the doctrine of laches would always preclude an indolent party, who chooses not to approach the court, or having approached the court, allows an adverse decision to become final, to reagitate the issue of acquisition of his holding. Doing so, especially in cases, where the title has vested with the State, and thereafter with subsequent interests, would be contrary to public policy. In A.P. State Financial Corpn. v. Gar ReRolling Mills [ A.P. State Financial Corpn. v. Gar Re-Rolling Mills , (1994) 2 SCC 647] , this Court observed that equity is always known to defend the law from crafty evasions and new subtleties invented to evade the law. There is no dearth

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of talent left in longing for the undue advantage of the wholesome provisions of Section 24(2) on the basis of wrong interpretation.

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357. In British Railways Board v. Pickin [ British Railways Board v. Pickin , 1974 AC 765 : (1974) 2 WLR 208 (HL)] , the following observations were made : (AC pp. 795-96)

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“… equity, when faced with an appeal to a regulatory public statute, which requires compliance with formalities, will not allow such a statute (assumedly passed to prevent fraud) to be used to promote fraud and will do so by imposing a trust or equity upon a legal right.” 358. We are unable to accept the submission on behalf of the landowners that it is by operation of law the proceedings are deemed to have lapsed and that this Court should give full effect to the provisions. It was submitted that lapse of acquisition proceedings was not contemplated under the 1894 Act, and there is departure made in Section 24 of the 2013 Act. Thus, Section 24 gives a fresh cause of action to the landowners to approach the courts for a declaration that the acquisition lapsed, if either compensation has not been paid or the physical possession has not been taken. The decision of this Court in Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy [ Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy , (1970) 1 SCC 613] was relied upon to contend that there cannot be res judicata in the previous proceedings when the cause of action is different; reliance is also placed on Canara Bank v. N.G. SubbarayaSetty [ Canara Bank v. N.G. SubbarayaSetty , (2018) 16 SCC 228] , where the decision of Mathura Prasad

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Bajoo Jaiswal [ Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy , (1970) 1 SCC 613] was followed as to belated challenges. Reliance was further placed on Anil Kumar Gupta v. State of Bihar [ Anil Kumar Gupta v. State of Bihar , (2012) 12 SCC 443 : (2013) 2 SCC (Civ) 418] in which it was held that vesting of land in the Government can be challenged on the ground that possession had not been taken in accordance with the prescribed procedure. The invocation of the urgency clause in Section 17, can be questioned on the ground that there was no real urgency. The notification issued under Section 4 and declaration under Section 6 can be challenged on the ground of noncompliance of Section 5-A(1). Notice issued under Section 9 and the award passed under Section 11 can also be questioned on permissible grounds. Reliance has also been placed on Ram Chand v. Union of India [ Ram Chand v. Union of India , (1994) 1 SCC 44] to contend that inaction and delay on the part of the acquiring authority would also give rise to a cause of action in favour of the landowner.

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359. The entire gamut of submissions of the landowners is based on the misinterpretation of the provisions contained in Section 24. It does not intend to divest the State of possession (of the land), title to which has been vested in the State. It only intends to give higher compensation in case the obligation of depositing of compensation has not been fulfilled with regard to the majority of holdings. A fresh cause of action in Section 24 has been given if for five years or more possession has not been taken nor compensation has been paid. In case possession has been taken and compensation has not been deposited with respect to the

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majority of landholdings, higher compensation to all incumbents follows, as mentioned above. Section 24 does not confer a new cause of action to challenge the acquisition proceedings or the methodology adopted for the deposit of compensation in the treasury instead of Reference Court, in that case, interest or higher compensation, as the case may be, can follow. In our considered opinion, Section 24 is applicable to pending proceedings, not to the concluded proceedings and the legality of the concluded proceedings, cannot be questioned. Such a challenge does not lie within the ambit of the deemed lapse under Section 24. The lapse under Section 24(2) is due to inaction or lethargy of authorities in taking requisite steps as provided therein.

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366. In view of the aforesaid discussion, we answer the questions as under:

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366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition."

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In view of the above, we find no grounds to interfere with the decision of the learned Single Judge in rejecting the appellant's petition. The appeal is unmerited and accordingly, dismissed.

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Pending applications also stand disposed of.

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Sd/(VIBHU BAKHRU) CHIEF JUSTICE

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Sd/(C M JOSHI) JUDGE

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KS List No.: 1 Sl No.: 17

Sri M Rajappa v. State of Karnataka

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Sri M Rajappa v. State of Karnataka

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