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Karnataka High Court
Nagaraja S vs National Highways Authority Of India on 9 May, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2024:KHC:17146
WP No. 20724 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 20724 OF 2023 (LA-RES)
BETWEEN:
NAGARAJA.S.
AGED ABOUT 61 YEARS,
C/O G.SANNALINGAPPA,
#67/4, GROUND FLOOR, 5TH CROSS,
SUBBANNA GARDEN, BEHIND BUNT SANGH,
BASAVESWARA LAYOUT, VIJAYANAGAR,
BENGALURU-560 040.
...PETITIONER
(BY SRI. S.NAGARAJA, PETITIONER, PARTY-IN-PERSON)
AND:
1. NATIONAL HIGHWAYS AUTHORITY OF INDIA,
NEAR CHAMUNDESHWARI TEMPLE,
KSRTC BUS DEPOT ROAD,
CHITRADURGA-577 501.
Digitally REPRESENTED BY THE SPECIAL
signed by
KIRAN LAND ACQUISITON OFFICER.
KUMAR R
Location:
HIGH
COURT OF
2. PROJECT DIRECTOR,
KARNATAKA NATIONAL HIGHWAYS AUTHORITY OF INDIA,
PROJECT IMPLEMENTATION UNIT,
NEAR J.M.I.T., NH-4 (201 KM)
CHITRADURGA-577 502.
3. DEPUTY COMMISSIONER & ARBITRATOR,
OFFICE OF THE DISTRICT MAGISTRATE,
DEPUTY COMMISSIONER AND ARBITRATOR,
TUMAKURU-572 101.
...RESPONDENTS
(BY SRI.PRAKASH.V.ANGADI, ADVOCATE FOR R-1 & R-2;
SMT. B.P..RADHA, AGA FOR R-3)
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NC: 2024:KHC:17146
WP No. 20724 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARE THE PRELIMINARY NOTIFICATION No.S.O.974 (E)
DATED 3RD NOVEMBER 2000 (VIDE ANNEXURE C) AND
SUBSEQUENT FINAL NOTIFICATION No.S.O.873(E) DATED
11.09.2001 (VIDE ANNEXURE D) ON THE SCHEDULE LAND ARE
VOID, ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 03.04.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
The relevant facts of the case are as follows:
1. On 03.11.2000, a notification under Section 3A of the National Highways Act, 1956 ("the NH Act") was issued giving notice of the Central Government's intention to acquire several lands for the purpose of widening of National Highway No.4.
2. The land belonging to the petitioner bearing Survey No.184 at Urukere village measuring 1,000 square meters was also included in said notification. -3-
NC: 2024:KHC:17146 WP No. 20724 of 2023
3. On 11.09.2001, a declaration under Section 3D was issued declaring that the lands mentioned in the notification stood vested absolutely in the Central Government, free from all encumbrances.
4. In this declaration, the land bearing survey No.184 was also included. However, as against the initially notified extent of 1,000 square meters, the declaration stated that only 600 square meters of land was needed. This land was stated to be standing in the name of the petitioner-- S.Nagaraj and his mother--S.Hemalatha.
5. On 31.12.2002, an award was passed in respect of 2,497.75 square feet of land for a sum of Rs.90,543/- by valuing the land at Rs.36.25/- per square foot. This amount was also paid to the petitioner on 29.12.2003.
6. On 14.02.2005, another award was passed in respect of 4,036.25 square feet in Survey No.184/P for a sum of Rs.1,46,314/-. This amount was also paid to the petitioner on 14.03.2005.
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7. Thus, in all, a sum of Rs.90,543/- + 1,46,314/- totally amounting to Rs.2,36,857/- was paid for an extent of 2,497.75 sq. ft. + 4,036.25 sq. ft., i.e., in respect of 600 square meters which was the subject matter of the declaration.
8. On 21.11.2006, the petitioner executed a sale deed in respect of an additional extent of 2,178 sq. ft. of land in same survey No.184, which were classified as Site Nos.1, 2, 3 and 4 in the sale deed, in favour of the Central Government for a total sale consideration of Rs.78,953/- (at Rs.36.25/- per square foot). A cheque dated 03.11.2006 was also handed over to the petitioner on the day of execution of this sale deed.
9. Thus, an extent of 6 guntas was acquired by the Central Government by recourse to the provisions of the NHAI Act and an extent of 2 guntas was acquired by means of a direct purchase by the Central Government in Sy No 184. In other words, an extent of 8 guntas of land -5- NC: 2024:KHC:17146 WP No. 20724 of 2023 in Sy No 184 became the property of the Central Government.
10. As against the compensation paid to the petitioner in furtherance of acquisition of his lands measuring 2,497.75 sq. ft amounting to Rs. 90,543/-, the extent of 4,036.25 sq. ft amounting to Rs. 1,46,314/- granted to him under the two awards and a sum of Rs. 78,593/- paid to him towards the purchase of an extent of 2,178 sq. ft in favour of the Central Government, the petitioner sought reference to the Arbitrator as provided under the NH Act.
11. The Arbitrator by his award dated 28.07.2010 held that the petitioner's claim in respect of 2,497.75 square feet of land (amounting to Rs.90,543/-) could not be considered since the petitioner had preferred an appeal before the predecessor of the arbitrator and the said claim had been dismissed. The Arbitrator, therefore, considered the claim only in respect of the remaining two portions of the land--i.e., the acquired portion of 4,036.25 sq. ft. and the purchased portion of 2,178 sq. ft. of land. The -6- NC: 2024:KHC:17146 WP No. 20724 of 2023 Arbitrator proceeded to enhance the compensation by 50% from Rs.36.25/- to Rs.54.40/- per square foot.
12. Thereafter, in the year 2010, the petitioner embarked on his journey of litigation in respect of his lands.
13. The petitioner filed W.P.No.40924/2010, wherein he contended that he had been paid compensation in respect of 8 guntas, but in respect of another one gunta of land which had been acquired, he had not been paid any compensation. This Court, by an order dated 27.01.2011, observed that if the petitioner had any grievance with regard to the determination of compensation in respect of 8 guntas passed by the arbitrator, he was at liberty to challenge the same in accordance with law in terms of the Arbitration and Conciliation Act, 1996 ("the A&C Act").
14. In respect of said one gunta of land, the National Highways Authority of India ("the NHAI") made a submission that the cheque in respect of the enhanced compensation was ready and the petitioner could receive -7- NC: 2024:KHC:17146 WP No. 20724 of 2023 the same. This Court directed the competent authority to consider the petitioner's representation dated 06.06.2008 and permitted the petitioner to file another representation in this regard.
15. The petitioner then filed his second writ petition in W.P.No.33021/2011 seeking a direction for payment of the entire compensation for the acquisition of his 9 guntas of land. This Court taking note of the award of the arbitrator concluded that if the petitioner had any grievance against the award of the arbitrator, it was open for him to take such steps as provided under the A&C Act.
16. Furthermore, this Court also recorded a finding that the 1 gunta of the land belonging to the petitioner, was taken possession of by the NHAI in the year 2001 itself, while acquiring the 8 guntas of land, and that the entire 9 guntas of land belonging to the petitioner, was, in fact, one single bit of land. This Court also took note of the submission of the NHAI that the petitioner may be directed to execute a sale seed in respect of this 1 gunta of land in -8- NC: 2024:KHC:17146 WP No. 20724 of 2023 order to facilitate the payment of compensation to the petitioner. This Court stated that if petitioner was ready to execute a sale deed in respect of the 1 gunta of land, it was open for him to do so, but if he was not ready to do so, the NHAI was directed to proceed in accordance with law and pay the compensation.
17. The petitioner, thereafter, initiated contempt proceedings in C.C.C.No.296/2012 and in those proceedings, since the petitioner was unable to indicate the compensation that he was agreeable to receive from the NHAI, it was directed to take recourse to the alternative mode of acquisition of 1 gunta of land.
18. Pursuant to this order, the NHAI proceeded to issue a notification under Section 3A of the NH Act in respect of 101 square meters i.e., the 1 gunta of land which it had already taken over and had utilised without acquisition.
19. The petitioner then proceeded to file his third writ petition in W.P.No.49425/2012 seeking a direction to the Authorities to drop the illegal acquisition of said 1 gunta. -9-
NC: 2024:KHC:17146 WP No. 20724 of 2023 This Court, by an order dated 20.03.2013, refused to quash the acquisition proceedings, but directed that the acquisition proceedings be concluded, and the compensation be determined. This Court also directed that damages should also be determined for the unauthorised use and occupation of the 1 gunta of land.
20. The petitioner preferred a writ appeal in the W.A.No.No.2889/2013 against this order, but the same was dismissed with costs on 06.06.2013.
21. Thereafter, the NHAI proceeded to issue a declaration under Section 3G on 09.07.2013 for the acquisition of abovesaid 101 square meters of land.
22. On 30.09.2013, an award was also passed by the competent authority in respect of this 1 gunta of land for a sum of Rs.2,72,250/- at Rs.250/- per square foot. The competent authority also awarded a sum of Rs.68,470/- for the use and occupation of the 1 gunta of land from 25.11.2006 to 30.09.2013.
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NC: 2024:KHC:17146 WP No. 20724 of 2023
23. It must be stated here that though in W.P.No.33021/2011, this Court had held that possession was taken on the 1 gunta of land in 2001 itself, the damages were, however, awarded only from 25.11.2006 i.e., the date on which the sale deed in respect of 2,178 sq. ft. (2 guntas) had been executed.
24. Being aggrieved by this award (dated 30.09.2013) in respect of 1 gunta, the petitioner preferred his fourth writ petition in W.P.No.54376/2013. However, this challenge to the award was rejected and the petitioner was directed to make a claim before the arbitrator, if he was aggrieved by the award of compensation.
25. On 04.02.2015, the Arbitrator proceeded to enhance the compensation awarded by the Competent Authority on 30.09.2013 from Rs.250/- to Rs.300/- per square foot. However, it confirmed the damages awarded under the award dated 30.09.2013 for the unauthorised use and occupation of the land.
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NC: 2024:KHC:17146 WP No. 20724 of 2023
26. Thereafter, on 16.02.2015, the petitioner filed his fifth writ petition in W.P.No.6289/2015 seeking a direction to acquire 9 guntas of his land in survey No.184/P. This Court by an order dated 23.02.2015 concluded that if the petitioner was aggrieved by the award passed on 04.02.2015, it was open for him to approach the District Court under Section 34 of the A&C Act and challenge the award and it accordingly proceeded to dismiss the writ petition reserving liberty to the petitioner to avail of the remedy under Section 34 of the A&C Act.
27. Thereafter, the petitioner preferred an application under Section 34 of the A&C Act before the District Judge in Arb. Case No.01/2015, and the District Judge by an order dated 12.01.2016 dismissed said application as not being maintainable.
28. Subsequently, the petitioner preferred his sixth writ petition in W.P.No.3025/2016 before this Court, once again seeking a direction to acquire 9 guntas of his land, and also to pay him a compensation of Rs.3,92,04,000/-
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NC: 2024:KHC:17146 WP No. 20724 of 2023 towards damages. This Court, by an order dated 16.03.2016, came to the conclusion that the petition was not maintainable for the reason that the petitioner was basically questioning the rejection of his application by the District Judge that he had filed under Section 34 of the A&C Act. This Court also observed that the law did not contemplate any remedy for a person such as the petitioner herein (who was dissatisfied with the amount of compensation), and that it was open to the petitioner to approach this Court under Article 226 of the Constitution of India, but the petition preferred therein could not be converted to one challenging the quantum of compensation that was awarded to him.
29. The petitioner thereafter proceeded to file his sixth writ petition in W.P.No.20128/2016, once again seeking a direction to pay a sum of Rs.3,92,04,000/- towards damages. The petitioner, however, sought to withdraw the writ petition and sought liberty to prefer an appeal against the order passed by the District Judge on 12.01.2016,
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NC: 2024:KHC:17146 WP No. 20724 of 2023 and, accordingly, the liberty sought was granted and the petition was dismissed as withdrawn.
30. On the strength of the liberty granted by this Court, the petitioner preferred an appeal in M.F.A.No.1056/2017 challenging the order of the District Judge passed on the application filed under Section 34 of the A&C Act challenging the award of the arbitrator dated 12.01.2016. However, a division bench of this Court dismissed said appeal on 23.04.2019 and a special leave petition preferred against that order in S.L.P. No.9830/2020 was also dismissed on 21.08.2020.
31. In the meantime, the petitioner had preferred his seventh writ petition in W.P.No.25492/2019 for a mandamus to consider his application dated 30.05.2019 and this petition was disposed of by an order dated 24.06.2019 directing the competent authority to consider his application.
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32. On 18.09.2019, the Competent Authority rejected the petitioner's application for compensation to the tune of Rs.3,92,04,000/- along with 9% interest.
33. The petitioner, thereafter, preferred his eighth writ petition in W.P.No.326/2022 in which he sought Rs.8,80,59,532/- as damages for the illegal use and occupation of his land. This petition was dismissed by an order dated 08.07.2022 and a writ appeal preferred against that order in W.A.No.634/2022 was also dismissed. A special leave petition preferred against that order in S.L.P.No.16972/2022 was also dismissed on 14.11.2022.
34. Thereafter, the petitioner proceeded to file his ninth writ petition, but this time before the Supreme Court under Article 32 in W.P.(C) Diary No.24695/2023. However, writ petition was dismissed on 01.09.2023 with an observation that if the petitioner so desired, he could approach this Court to avail of his remedy. Consequently,
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NC: 2024:KHC:17146 WP No. 20724 of 2023 the petitioner has presented this petition on 11.09.2023, which is his tenth writ petition.
35. In this petition, the petitioner has prayed for the following reliefs:
a. quashing the first set of notifications, preliminary and final, issued under Sections 3A and 3G of the NH Act on 03.11.2000 and 11.09.2001 (respectively);
b. quashing the second set of notifications dated 17.08.2012 issued under Section 3A and declaration dated 09.07.2013 issued under Section 3G of the NH Act;
c. quashing the sale deed dated 21.11.2006 executed in favour of the NHAI in respect of 2,178 sq. ft. of land; and d. mandamus to direct the NHAI to pay damages caused to him and to acquire 9 guntas of land under Sections 14 and 15 of the NHAI Act by
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NC: 2024:KHC:17146 WP No. 20724 of 2023 disposing of his application dated 15.05.2023 within a specific time frame.
36. The petitioner, in support of his case, has cited the following judgments in support of his arguments, which are summarised below:
a. Union of India v. Gopaldas Bhagwan Das & Ors., 2018 SCC OnLine SC 3621: on delay and laches -- the acquisition of the year 1975 was challenged in the year 2002 on the ground of non- publication of the Section 4 notification in the Official Gazette as required under the Land Acquisition Act, 1894 -- the Apex Court placed reliance on Kulsum R. Nadiadwala1 to ignore the delay and laches therein;
b. V. Gunda Reddy v. the Secretary, Department of Revenue and Ors., ILR 2005 Kar 5692:
unlawful possession of lands shown to be lawful and the procedure for taking possession of lands as per the guidelines laid down by the Supreme Court had not been followed -- if a specific method for carrying out an action is stipulated by law, such action must adhere to that method, or it 1 Kulsum R. Nadiadwala v. State of Maharashtra, (2012) 6 SCC 348.
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NC: 2024:KHC:17146 WP No. 20724 of 2023 should not be carried out at all. Taking of possession is not merely 'symbolic' as interpreted under civil law, but the actual possession must be taken in the eye of law by transferring possession from the owner/occupant of the land to the Government. In terms of these observations, it was held that the petitioner would not be divested of his rights and title over the subject lands; and c. Manubhai Sendhabhai Bharwad & Anr. v. Oil and Natural Gas Corporation Ltd. & Ors., 2023 SCC OnLine SC 63: challenging the temporary acquisition of land made by the ONGC for oil exploration -- the Apex Court observed that continuing temporary acquisition under the Land Acquisition Act, 1894 for 26 years is arbitrary and infringes the right of the landowner to use property as per Article 300A of the Indian Constitution. Taking into consideration the fact that writ of mandamus had already been issued by the jurisdictional High Court therein, the Apex Court directed the ONGC to act as per the orders of the High Court; and with respect to challenging the quantum of rent/compensation paid for usage of the land, the landowners therein were directed to approach the jurisdictional Collector.
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37. As could be seen from the above narration of facts, an extent of 6 guntas (600 square meters) was acquired under the notifications dated 03.11.2000 (under Section 3A) and a declaration dated 11.09.2001 (under Section 3G of the NH Act). Two awards were passed in respect of said extent of 6 guntas and a sum of Rs.2,36,857/- was paid to the petitioner. As against the payment offered by the competent authority, the petitioner sought reference to the arbitrator, and the arbitrator enhanced the compensation from Rs.36.25/- per square foot to Rs.54.40/- per square foot. It is thus clear that in respect of the first acquisition of 6 guntas of land, the petitioner has not only received the compensation but has also sought enhancement of the compensation and was also granted an enhancement by the Arbitrator, which has become final. In light of the fact that petitioner has not only received the compensation, but has also made a claim for enhanced compensation and also secured it, the present writ petition challenging the acquisition would not be maintainable.
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38. As could also be seen from the above narration of facts, after the first acquisition, the petitioner also executed a sale deed on 21.11.2006 and conveyed 2,178 sq. ft (2 guntas) of land, for which he was paid a consideration of Rs.78,953/- (at Rs.36.25 per square foot). In fact, even in respect of this land which the petitioner sold, the arbitrator had enhanced the value of the land from Rs.36.25/- per square foot to Rs.54.40/- per square foot and the petitoner has also received said amount. In view of the fact that the petitioner had sold 2 guntas of land under a registered sale deed in the year 2006, it would not be permissible for him to seek setting aside the sale deed executed in the year 2006 by way of this writ petition.
39. This Court in W.P.No.33021/2011 had recorded a finding that the 1 gunta of the petitioner's land was taken possession of in 2001 itself and, in all, 9 guntas of the petitioner's land had been utilised by the NHAI. This Court had further recorded a finding that the petitioner could
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NC: 2024:KHC:17146 WP No. 20724 of 2023 execute a sale deed in respect of said 1 gunta of land, and if he was not agreeable to execute a sale deed, the same should be acquired in accordance with law.
40. Pursuant to this order, the acquisition of the subject 1 gunta of land (101 square meters) was carried out by notifying it under Section 3A of the NH Act on 17.08.2012 and by issuance of a declaration dated 09.07.2013 and the passing of an award on 30.09.2013. In this award, apart from determining the compensation at the rate of Rs.250/- per sq. ft. for the 1 gunta of land, a sum of Rs.68,470/- was also awarded for the use and occupation of the land before acquisition from 25.11.2006 to 30.09.2013.
41. The petitioner, being aggrieved by this award, sought a reference to the arbitrator, and the arbitrator by an award dated 04.02.2015 enhanced the compensation from Rs. 250/- per sq ft to Rs.300/- per square foot. The Arbitrator also confirmed the award of Rs.68,470/- for the use and occupation of the 1 gunta of land from 25.11.2006 to 30.09.2013.
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42. The petitioner challenged this award by making an application under Section 34 of the A&C Act before the District Judge and this application was also dismissed on 12.01.2016. An appeal against said order was also dismissed by a division bench of this Court in M.F.A.No.1056/2017 on 23.04.2019 and the Supreme Court also confirmed the dismissal by dismissing the petitioner's special leave petition in S.L.P.No.9830/2020 on 21.08.2020.
43. It is therefore clear that the petitioner sought compensation for 1 gunta of land that had been illegally utilised by the NHAI but subsequently acquired and he also sought enhancement, which was granted partially by the arbitrator and the award of the arbitrator has also been confirmed by the District Judge, by this Court and also by the Apex Court.
44. In light of the fact that the petitioner had made a claim for compensation and has also received compensation for this 1 gunta of land including for the use
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NC: 2024:KHC:17146 WP No. 20724 of 2023 and occupation of said 1 gunta of land, it would be impermissible for him to once again make a claim for payment of damages in respect of the 9 guntas of land.
45. I am thus of the view that none of the prayers in the present petition can be granted.
46. The present writ petition is therefore dismissed.
Sd/-
JUDGE GSR List No.: 1 Sl No.: 9