Smt. Valabai Vs the State of Karnataka

THE KARNATAKA INDUSTRIES AREAS DEVELOPMENT BOARD (KIADB) REPRESENTED BY THE CHIEF EXECUTIVE OFFICER AND EXECUTIVE MEMBER NO.14/3, 2^ND FLOOR, MAHARISHI, ARAVINDA BHAVAN, NRUPATHUNGA ROAD, BENGALURU - 560 001

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THE BENGALURU METRO RAIL CORPORATION LTD, A PUBLIC LIMITED COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 REPRESENTED BY THE GENERAL MANAGER (LAND ACQUISITION) OFFICE AT BMTC COMPLEX, 3^RD FLOOR, K.H ROAD, SHANTHINAGAR, BENGALURU-560 027

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THE SPECIAL LAND ACQUISITION OFFICER - I KARNATAKA INDUSTRIES AREAS DEVELOPMENT BOARD, (METRO RAIL PROJECT), 1^ST FLOOR, MAHARISHI ARAVINDA BHAVANA ROAD, NRUPATHUNGA ROAD, BENGALURU-560 001

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Y.S MOHITH S/O LATE Y.G SRINIVASMURTHY MAJOR AS KNOWN, RESIDING AT NO. 1290, 1^ST MAIN ROAD, GANDHINAGAR, BANGALORE-560064

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…RESPONDENTS

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(BY SRI. ADITYA DIWAKAR, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.1;

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SRI. B.B.PATIL, ADVOCATE FOR RESPONDENT NOS.2 AND 4; SRI. K. KRISHNA, ADVOCATE FOR RESPONDENT NO.3;

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SRI. MUNIRAJU M., ADVOCATE FOR RESPONDENT NO.5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 11/07/2024 IN NO. KIADB /METRO/BHUSWA/ARP-KGC-2(1)/2024-25, PASSED BY THE 4^TH RESPONDENT, PRODUCED AS ANNEXURE-U AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioners have challenged an order bearing No.KIADB/METRO/BHUSWA/ARP-KGC-2(1)/2024-25 dated 11.07.2024 passed by the respondent No.4. They have also sought for a direction to respondent No.4 to conduct a joint survey of the acquired land in their presence and the respondent No.5 and thereafter take steps to disburse the compensation.

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(i) The petitioners claim that petitioner No.1 had purchased a property bearing Municipal Assessment Old Khata No.1016/A, 974/A and New Khata No.115/96 in 3^rd Division, Yelahanka Old Town, Bengaluru North Taluk in Sy.No.69 from one Sri. Y.V. Govindappa in terms of a sale deed dated 29.05.2003, measuring 975 sq. ft. She also purchased an abutting property bearing Municipal Khata No.1016/A, 974/A in 3^rd Division, B.B. Road, Yelahanka, Bengaluru - 560 064, measuring 144 sq. ft. and 135 sq. ft. in Sy.No.69 from Smt. Y.G. Manjula in terms of a sale deed dated 17.03.2005. Later, a khata was issued in the name of the petitioner No.1 by the Bruhat Bengaluru Mahanagara Palike (BBMP). It is contended that a portion of the property belonging to the petitioner No.1

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was acquired by the National Highway Authority of India for widening the National Highway. Accordingly, compensation of Rs.3,38,360/- was paid to the petitioner No.1 on 14.10.2020. Thereafter, a notification was issued by the respondent No.1 dated 20.08.2019 for acquiring portion of land in Yelahanka for implementation of 2B project by the respondent No.3/BMRCL under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 (henceforth referred to as 'KIAD Act, 1966'). Later, notice dated 16.09.2019 was issued to the petitioner No.1 by the respondent No.3 calling upon her to giver her opinion regarding rates of compensation to be determined by the Price Advisory Committee. Petitioners contend that a notice under Section 28(2) of the KIAD Act, 1966 dated 23.08.2019 was issued by the respondent No.4 not only to the petitioner No.1 but also to the father of respondent No.5. The respondent No.1 then issued a final notification under Section 28(4) of the KIAD Act, 1966, which was published in the Official Gazette on 30.11.2019. The respondent No.4 then issued a notice under Section 28(6) of the KIAD Act, 1966, dated 02.12.2019 to the petitioner No.1 and also to the father of respondent No.5.

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(ii) Thereafter, respondent No.4 issued Award Notice dated 19.03.2020 to the petitioner No.1 and also to the father of respondent No.5. The respondent No.3 forwarded a sum of Rs.87,90,643/- in respect of 63.42 sq. mtrs. of acquired land in Sy.No.69 to the respondent No.4 in terms of communication dated 24.06.2020. This was also communicated by the respondent No.4 to the petitioner No.1 and also to the father of respondent No.5 in terms of notice dated 26.06.2020. The respondent No.4 then issued another notice dated 08.09.2020 to the petitioner No.1 and also to the father of respondent No.5 requiring them to appear before him on 14.09.2020 to submit their objections, if any.

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(iii) The petitioners had by then submitted an objection before the respondent No.3 requesting release of compensation in respect of the land acquired. The said representation was forwarded by the respondent No.3 to the respondent No. 4 for consideration. As the petitioner No.1 and the father of respondent No.5 were rivaling against each other and as it was not clear as to who had to give their consent for the acquisition, the respondent No.4 passed a general award dated 03.03.2021 determining compensation payable at a sum of Rs.24,63,044/-.

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The petitioner No.1 thereafter, requested the respondent No.3 to deposit the compensation before the City Civil Court, Bengaluru. Accordingly, an endorsement dated 22.04.2021 was issued by respondent No.4 to the petitioner No.1 and also to the father of the respondent No.5. Proceedings were initiated before the City Civil Court, Bengaluru in LAC No.22/2021. The said proceedings are stated to be pending consideration.

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(iv) During the pendency of the said proceedings, the respondent No.5 along with his mother filed W.P.No.12655/2021 without arraying the petitioner No.1 as party, calling in question, an endorsement dated 08.02.2021 and also to quash the consent award dated 24.06.2020 and to direct respondent Nos.2 to 4 therein to measure and record the land of the petitioners therein in their presence and pass a fresh award. The said writ petition was allowed in terms of the order dated 22.07.2021 and the endorsement impugned therein dated 08.02.2021 was quashed and the Additional Director of Land Records (ADLR), Yelahanka, was directed to conduct a joint survey after notifying all the parties including respondent Nos.2 to 4 therein. It was further directed that upon receipt of the said joint survey, BMRCL shall consider the

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representation of the petitioners therein dated 01.03.2021 and pass appropriate orders in accordance with law. It was also directed that until BMRCL passed appropriate orders after conducting a joint survey, it shall not take any precipitative action/steps in respect of the subject lands against the petitioners therein.

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(v) Following the above, the respondent No.3 along with ADLR conducted a joint survey and prepared a sketch and report for having acquired 111.92 sq. mtr. of property for the BMRCL project. In the said report, it was mentioned that compensation amount of Rs.58,28,785/was towards acquisition of an area measuring 48.50 sq.ft. belonging to the petitioner No.1 and the father of the respondent No.5. Despite that, once again a report was sought for by the respondent No.3 along with the joint sketch by conducting the joint survey by the Tahsildar and the land surveyors of the respondent No.4 behind the back of the petitioners. Accordingly, a report was submitted, wherein it was wrongly held that the father of the respondent No.5 is the only person in possession of the property measuring 111.92 sq. mtr.

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(vi) Petitioners contend that respondent No.5 again approached this Court in W.P.No.25809/2023 to set aside the general award dated 03.03.2021 without arraying the petitioners as parties and this Court in terms of the order dated 30.01.2024 allowed the writ petition and set aside the general award dated 03.03.2021 and directed the respondent No.4 to reconsider the request of the petitioner therein for award of compensation under Section 29(2) of the KIAD Act, 1966 and liberty was given to respondent No.4 to withdraw the amount that was deposited before the Civil Court. It was further ordered that in the event, the father of respondent No.5 herein failed to provide necessary documents to establish his ownership over the land concerned, the general award would stand restored. Accordingly, proceedings were initiated and notice was issued to the petitioners and the father of respondent No.5. The petitioner No.2 entered appearance in the said proceedings and sought time to produce all relevant documents to establish the title of the petitioner No.1. Later, petitioner No.1 claimed that all necessary documents were produced to establish her title in respect of the property that

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was acquired. The same was acknowledged by the respondent No.4.

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(vii) Petitioners allege that inspite of producing all the relevant documents, the respondent No.4 rejected the objections raised by them and held that as per the joint survey and the master plan, the acquired land to an extent of 63.42 sq. mtr. in Sy.No.69 acquired for BMRCL project belongs to the father of respondent No.5. Accordingly, the respondent No.4 ordered for payment of entire compensation to respondent No.5 in terms of the impugned order dated 11.07.2024.

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(viii) The petitioners are therefore before this Court challenging the impugned order primarily on the ground that the respondent No.4, was oblivious of a communication bearing No.BMRCL/BHUSWA/STAGE-2/ARP-KGC-2(1)/2020-21/10327

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dated 02.02.2021 addressed by the respondent No.3 to the respondent No.4 enclosing therewith the objections filed by the petitioners along with the relevant documents.

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Learned counsel for the petitioner contends that even as per the impugned order, the petitioner No.1 was served with a notice dated 30.04.2024 requiring her to appear

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on 06.05.2024. He contends that petitioner No.2 appeared on behalf of petitioner No.1 on 06.05.2024 and sought an adjournment to place on record the documents of title to establish that petitioner No.1 is entitled to claim compensation. He contends that the proceedings were thereafter held on 20.05.2024 and 07.06.2024 and respondent No.4 passed the impugned order without hearing the petitioners and without perusing the documents that were already furnished by the petitioners before the respondent No.3, which were forwarded to the respondent No.4. Thus, he contends that no opportunity was given to the petitioners to produce the documents to establish the title of petitioner No.1 and the respondent No.4 failed to consider the documents that were forwarded by the respondent No.3 to it. He therefore, contends that the impugned order passed by respondent No.4 was by taking into consideration only the documents filed by respondent No.5 and not the documents tabled by the petitioners. He thus contends that the impugned order is violative of the principles of natural justice in as much as the petitioners are not heard and therefore, on this short ground alone the impugned order is liable to be set at nought. He also contends that the survey

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conducted by the ADLR pursuant to the order passed by this Court in W.P.No.12655/2021 was without notice to the petitioners and the petitioners did not participate in the survey proceedings. Thus, he contends that respondent No.4 is bound to conduct a fresh survey in the presence of the petitioners and thereafter, conduct an enquiry in accordance with law and decide the entitlement of the petitioners/respondent No.5 for the compensation.

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The learned counsel for the respondent No.5 on the other hand contended that,

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(i) the land of the petitioner No.1 was already acquired by the National Highway Authority in the year 2010 and that the petitioners have already received the compensation.

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(ii) that as per the report of the survey conducted by the ADLR, an extent of 111.92 sq. mtr. was acquired for the BMRCL project, which exclusively belonged to the father of the respondent No.5 out of which compensation in respect of 48.50 sq. mtr. is already received by the respondent No.5. He contends that respondent No.4 after perusing the documents of title, had categorically held that respondent No.5 is the person

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entitled to claim compensation in respect of the remaining 63.42 sq. mtr. He therefore, contends that the impugned order passed by respondent No.4 is just and proper and no interference is warranted.

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(i) The learned counsel for the respondent Nos.2 and 4 submitted that respondent No.4 is entitled to conduct an enquiry as provided under Section 11 of the Land Acquisition Act, 1894 and the contours of such enquiry is outlined in the judgment of the Co-ordinate Bench of this Court in S. Venkatashamappa vs. State of Karnataka and others [ILR 2003 KAR 4496] . He invited the attention of the Court to para 9 of the said judgment, where it was held as follows:-

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"9. Thus, by a conjoined reading of Section 29 of the Development Act and Section 11 of the Act, the Deputy Commissioner has to hold an enquiry regarding the entitlement of a person to claim and receive compensation. In the process of conducting an enquiry regarding the entitlement as held by the decision of the Andhra Pradesh High Court by Justice Chinnappa Reddy, as he then was, cited by the learned Counsel for the contesting respondent in AFZAL BEE v. SPL. DEPUTY COLLECTOR AND ORS. (supra), the Land Acquisition Officer has

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jurisdiction to decide even the question of title if it is raised before him. But, if he feels that the 'question of title' is a complicated one, he may refer the matter to a Civil Court. The process of deciding the claim of the claimant necessarily carries with if the obligation of applying his mind to the material produced or available on record in a fair manner, fairness means that if the land Acquisition Officer wants to use any adverse material or document adverse to the interest of claimant, it can only be done after drawing the attention of the claimant to the adverse material and soliciting his comments or objections, etc. By not doing so, he would be violating the elementary principles of natural justice. Similarly, while conducting the enquiry as stated above, the Land Acquisition Officer will be performing statutory functions and therefore, has to independently take a decision on the basis of records available before him and cannot act on the dictates of any authority however superior he may be."

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(ii) He thus contends that the respondent No.4 is not bereft of the jurisdiction to conduct an enquiry to ascertain whether the petitioners or the respondent No.5 has a right to claim the compensation. However, he contends that if the issue raised by the contesting parties are too complicated for respondent No.4 to dwell upon, then the respondent No.4 is

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bound to refer the dispute to the Civil Court for adjudication. He thus contends that it is this power that the respondent No.4 exercised while adjudicating the claim of the petitioners and respondent No.5. As regards the contention urged by the petitioners that they were not heard and no opportunity was given to them to furnish documents, he candidly accepted that the petitioners appeared before respondent No.4 on 06.05.2024 and sought for time to produce documents. He therefore, submits that if the Court is of the opinion that the petitioners have to be given an opportunity to place their documents, the respondent No.4 shall abide by any direction that may be issued by this Court.

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The learned counsel for respondent No.3 submitted that the compensation in respect of the acquired land is deposited before respondent No.4 and it is for the respondent No.4 to return a finding of fact whether the petitioners or the respondent No.5 are entitled for the compensation.

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I have considered the submissions of the learned

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counsel for the petitioner as well as the learned counsel for the

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respondent Nos.2 and 4, learned counsel for respondent No.3 and learned counsel for respondent No.5.

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While it cannot be disputed that respondent No.4 is entitled to conduct a semblance of an enquiry to find out whether the contesting parties have a genuine right to claim compensation, it is trite that such enquiry cannot go into complicated questions of fact, which have to be determined by the Civil Court alone. As rightly contended by the learned counsel for respondent Nos.2 and 4, the Co-ordinate Bench while considering this has rightly held,

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"But, if he feels that the 'question of title' is

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a complicated one, he may refer the matter to a Civil Court."

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Therefore, when the respondent No.4 is confronted with objections filed by claimants, he is bound to apply himself to the contentions urged to verify whether the case presented before him is a complicated one, which requires indulgence of the Civil Court. If he comes to the conclusion that the case of the claimants can be easily resolved based upon the documents of title, he may decide the question and decide who is entitled to claim the compensation. In the case on hand, when the

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petitioners and the respondent No.5 were rivaling against each other over the compensation payable in respect of a portion of land that was acquired, the petitioners were entitled to be heard by the respondent No.4. As a matter of fact, in the impugned order itself, there is a reference to a notice issued to the petitioner No.1 on 30.04.2024 requiring her to appear before the respondent No.4 on 06.05.2024. It also appears that the petitioner No.2 on behalf of the petitioner No.1 appeared on 06.05.2024 and sought time to produce documents. However, the respondent No.4 thereafter held proceedings on 20.05.2024 and 07.06.2024 and passed the impugned order without hearing the petitioners and without perusing the documents that were already furnished by the petitioners before the respondent No.3, which were forwarded to the respondent No.4 in terms of the letter dated 02.02.2021. Therefore, it goes without saying that the impugned order was one passed without hearing the petitioners and only based on the document furnished by the respondent No.5.

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The respondent No.4 also relied heavily upon the survey report conducted by the ADLR pursuant to the order passed by a Co-ordinate Bench of this Court in

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W.P.No.12655/2021 unmindful of the fact that the petitioners were not parties in the said writ petition and did not participate in the survey proceedings. In that view of the matter, the impugned order is liable to be set aside only on the short ground that it was not in compliance with the principles of natural justice.

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Consequently, the writ petition is allowed . The impugned order bearing No.KIADB/METRO/BHUSWA/ARP-KGC2(1)/2024-25 dated 11.07.2024 passed by the respondent No.4 is set aside. The petitioners are directed to appear before the respondent No.4 and produce all the relevant documents available with them. The respondent No.4 shall after hearing the petitioners and after conducting a fresh survey, if need be, proceed to decide the claim of the petitioners as well as the respondent No.5.

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In order to expedite this process, the petitioners shall appear before the respondent No.4 on 17.07.2026 at 03.00 p.m. It is open for the respondent No.5 to file any counter statements, if necessary. All contentions are kept open.

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