Karnataka High Court
B Raviprakash S/O. Late B Basappa vs State Of Karnataka on 18 July, 2022
Bench: N.S.Sanjay Gowdapresided Bynssgj
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
W.P.No.108802/2016 (LA-KIADB)
C/W
W.P.No.107748/2014 (LA-KIADB)
C/W
W.P.No.100762/2017 (LA-KIADB)
In W.P.No.108802/2016
BETWEEN:
1. SREE S. SHEENAPPA
S/O LATE S. VENKATAPPA,
AGE: 50 YEARS,
OCC: AGRICULTURIST,
R/O 2ND WARD, KAMMA ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
2. SREE S. NARAYANASWAMY
S/O LATE S. VENKATAPPA,
Digitally signed
by J MAMATHA AGE: 65 YEARS,
Location: High
J
Court of
Karnataka, OCC: AGRICULTURIST,
MAMATHA Dharwad Bench
Dharwad.
Date: R/O 2ND WARD, KAMMA ONI,
2022.07.20
13:30:57 +0530
POST: KUDITINI,
TQ AND DIST: BALLARI
3. SREE KUMBARA MALLIAH
S/O LATE HANUMANTHAPPA,
AGE: 56 YEARS,
OCC: AGRICULTURIST,
R/O 2ND WARD, KAMMA ONI,
2
POST: KUDITINI,
TQ AND DIST: BALLARI
4. SREE GOTURU SHANMUKAPPA
S/O LATE AYYAPPA,
AGE: 65 YEARS,
OCC: AGRICULTURIST,
R/O NEAR SANGANABAVI,
POST: KUDITINI,
TQ AND DIST: BALLARI
5. SREE UPPARU THIMMAPPA
S/O LATE HANUMANTHAPPA,
AGE: 58 YEARS,
OCC: AGRICULTURIST,
R/O 7TH WARD,
RAMANJUNAPPA JINNA,
POST: KUDITINI,
TQ AND DIST: BALLARI
6. SREE G. M. VIRUPANNA
S/O VENKATAPPA,
AGE: 90 YEARS,
OCC: AGRICULTURIST,
R/O NEAR DASARA SHESHAPPA HOUSE,
KAMMA'S ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
7. SREE KURUBARA VITLAPURA SOMAPPA
S/O LATE VITLAPURA HANUMANTHAPPA,
AGE: 53 YEARS,
OCC: AGRICULTURIST,
R/O PINJARA ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
8. SMT.LALITHAMMA
W/O LATE CHIDANDAPPA,
AGE: 58 YEARS,
OCC: AGRICULTURIST,
3
R/O KAMMA'S ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
9. SMT.B. SATHYAVATHI
W/O B. RAMAMURTHY,
AGE: 54 YEARS,
OCC: AGRICULTURIST,
R/O KAMMA'S ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
10. SREE B. RAMAMURTHY
S/O LATE HANUMAPPA,
AGE: 63 YEARS,
OCC: AGRICULTURIST,
R/O KAMMA'S ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
11. SREE PRAKASH BABU
S/O B. HANUMANNA,
AGE: 50 YEARS,
OCC: AGRICULTURIST,
R/O KAMMA'S ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
12. SREE G. HAREESH
S/O LATE G. HANUMANTHAPPA,
AGE: 51 YEARS,
OCC: AGRICULTURIST,
R/O SOMASHETTI ROAD,
POST: KUDITINI,
TQ AND DIST: BALLARI
13. SREE ADIBASAPPA
S/O LATE MULLANGI DODDABASAPPA,
AGE: 53 YEARS,
OCC: AGRICULTURIST,
R/O KAMMA'S ONI,
4
POST: KUDITINI,
TQ AND DIST: BALLARI
14. SMT.RAJESWARI
S/O LATE R. BASAVARAJ,
AGE: 63 YEARS,
OCC: AGRICULTURIST,
R/O 4TH WARD,
NEAR NAYANASWAMY MATH,
POST: KUDITINI,
TQ AND DIST: BALLARI
15. SMT.THIMMAKKA
W/O LATE JADEPPA,
AGE: 69 YEARS,
OCC: AGRICULTURIST,
R/O NEAR JAKKER BAVI,
POST: KUDITINI,
TQ AND DIST: BALLARI
16. H. GAVISIDDAPPA
S/O H. LINGANNA,
AGE: 78 YEARS,
OCC: AGRICULTURIST,
R/O HARAGINADINI VILLAGE,
POST: HARAGINADONI,
TQ AND DIST: BALLARI
17. SMT.T. MEENAKSHAMMA
W/O LATE TITAGAL LOKANATHA
AGE: 59 YEARS
OCC: HOUSEHOLD,
R/O RAGHAVENDRA COLONY,
POST: KUDITINI,
TQ AND DIST: BALLARI
18. SREE T. SUDHAKARA
W/O LATE TITAGAL LOKANATHA
AGE: 41 YEARS
OCC: AGRICULTURE
R/O RAGHAVENDRA COLONY,
5
POST: KUDITINI,
TQ AND DIST: BALLARI
19. V. GADILINGAPPA
S/O SREE VITHLAPUR RAMANJINAPPA @
RAMANJINEYYA, AGE: 55 YEARS
OCC: AGRICULTURE
R/O NEAR DASARA GANDE
POST: KUDITINI, TQ AND DIST: BALLARI
20. V.HANUMAPPA
S/O SREE VITHLAPUR RAMANJINAPPA @
RAMANJINEYYA, AGE: 51 YEARS
OCC: AGRICULTURE
R/O NEAR DASARA GANDE
POST: KUDITINI, TQ AND DIST: BALLARI
21. V.LAKSHMI
D/O SREE VITHLAPUR RAMANJINAPPA @
RAMANJINEYYA, AGE: 40 YEARS
OCC: HOUSEHOLD,
R/O NEAR DASARA GANDE
POST: KUDITINI, TQ AND DIST: BALLARI
22. V. SHRADA
D/O SREE VITHLAPUR RAMANJINAPPA @
RAMANJINEYYA, AGE: 38 YEARS
OCC: HOUSEHOLD,
R/O NEAR DASARA GANDE
POST: KUDITINI, TQ AND DIST: BALLARI
... PETITIONERS
(BY SRI.T. HANUMAREDDY, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF COMMERCE
AND INDUSTRIES,
VIKAS SOUDHA,
6
BENGALURU-560001
REPRESENTED BY ITS SECRETARY
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
NO.14/3, 2ND FLOOR,
R.P. BUILDING,
NRUPATHUNGA ROAD,
BENGALURU-560001
REP. BY ITS
CHIEF EXECUTIVE OFFICER
3. THE SPECIAL LAND ACQUISITION OFFICER
THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
ZONAL OFFICE,
KARUR INDUSTRIAL AREA,
PLOT NO.CA (1-B),
P.B. ROAD,
DAVANAGERE-577006
4. DEPUTY COMMISSIONER,
BALLARI DISTRICT,
BALLARI-583101
5. ASST. MANAGER
M/S. ARCELOR MITTAL INDIA CO. LTD.,
DOOR NO.21-A,
Y. NAGESH SHASTRY ROAD,
PARVATHINAGAR,
OPP TO K.C. KONDAYYA HOUSE,
BALLARI-583101
... RESPONDENTS
(BY SRI. VEERESH.R. BUDIHAL, ADV., FOR R-3;
SRI. R.V.S. NAIK, SENIOR COUNSEL FOR
SRI T. SURYANARAYANA FOR R-5;
R-1 AND R-2 SERVED AND UNREPRESENTED)
7
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ENDORSEMENTS ISSUED VIDE ANNEXURES C, C1 TO
C18 DATED:10.06.2016, ETC.
In W.P.No.107748/2014
BETWEEN:
1. B. RAVIPRAKASH,
S/O. LATE B BASAPPA
AGE: 46 YEARS,
R/AT: "VISHNU PRIYA"
6TH CROSS, LEFT SIDE,
KAPPAGAL ROAD, M V NAGAR,
BELLARY - 583 101.
2. SMT. C SUJATHA, W/O. DR. C. C. PULLAIAH,
AGE: YEARS
R/AT: NO. 21, 2247-39
CHEKURI NURSING HOME
"O" ROAD, S.K.D COLONY,
ADONI POST, ANDHRA PRADESH
3. VANTI KURI BASAPAP
S/O. BARMAPPA
AGE: 54 YEARS
R/AT: VODDU POST, SANDUR TALUK
BELLARY DIST: BELLARY
... PETITIONERS
(BY SRI.T. HANUMAREDDY, ADV.)
AND:
1. STATE OF KARNATAKA,
DEPARTMENT OF COMMERCE
AND INDUSTRIES,
VIKAS SOUDHA,
BANGALORE - 560 001.
REPRESENTED BY ITS SECRETARY
8
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
NO. 14/3, 2ND FLOOR, R P BUILDING,
NRUPATUNGA ROAD,
BANGALORE - 560 001.
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
3. THE SPECIAL LAND ACQUISITION OFFICER,
THE KARNATAKA INDUSTRIAL AREAS,
DEVELOPMENT BOARD, ZONAL OFFICE,
KARUR INDUSTRIAL AREA,
PLOT NO. CA (1-B),
P.B.ROAD, DAVANAGERE - 577 006.
4. DEPUTY COMMISSIONER
BELLARY DISTRICT, BELLARY-583 101.
5. ASST. MANAGER,
M/S. ARCELOR MITTAL INDIA CO. LTD.,
DOOR NO. 21-A, Y.NAGESH SHASTRY ROAD,
PARVATHINAGAR,
BELLARY-583 101.
... RESPONDENTS
(BY SRI.V.S. KALASURMATH, HCGP FOR R-1, R-3 AND R-4;
SRI. VEERESH R. BUDIHAL, ADV., FOR R-2, R-3 AND R-5;
SRI. R.V.S. NAIK, SENIOR COUNSEL FOR
SRI. T. SURYANARAYAN, FOR R-5.)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRYAING TO QUASH
THE ANNEXURE "D AND D-1" ENDORSEMENT
DATED:07.05.2014 AND ENDORSEMENT DATED 17.06.2014
RESPECTIVELY, ISSUED BY THE 3RD RESPONDENT, ETC.
In W.P.No.100762/2017
BETWEEN:
1. SRI GURUDASA REDDY
S/O THIMMA REDDY
AGED ABOUT 55 YEARS,
9
R/O VEERANAGOUDA COLONY,
OPP TO KUMARASWAMY TEMPLE,
BALLARI.
2. SMT.G. JAYALAKSHMI
W/O SATHYANARAYAN REDDY
AGED ABOUT 57 YEARS,
R/O D.NO.17/13-A,
3RD CROSS, S.N.PET,
BALLARI.
3. SMT.P. SUDAMANI
W/O P. SRINIVASA REDDY
AGED ABOUT 47 YEARS,
R/O D.NO.15/A,
PATEL NAGAR,
1ST CROSS, BALLARI.
... PETITIONERS
(BY SRI. T. HANUMAREDDY, ADV.)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF COMMERCE
AND INDUSTRIES,
VIKAS SOUDHA,
BENGALURU-560001
REPRESENTED BY ITS SECRETARY.
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
NO.14/3, 2ND FLOOR,
R.P. BUILDING,
NRUPATHUNGA ROAD,
BANGALORE-560001
REP. BYY ITS
CHIEF EXECUTIVE OFFICER.
10
3. THE SPECIAL LAND ACQUISITION OFFICER
THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
LAKAMANAHALLI INDUSTRIAL AREA,
P.B. ROAD, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER
THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
ZONAL OFFICE,
KARUR INDUSTRIAL AREA,
PLOT NO.CA (1-B),
P.B. ROAD, DAVANAGERE-577006.
5. THE SPECIAL LAND ACQUISITION OFFICER,
NATIONAL HIGHWAY AUTHORITY INDIA,
HOSAPETE, NO.1032(A),
NEAR SAI AND HARIPRIYA APARTMENT,
RAJEEVNAGAR, HOSAPETE,
DIST: BALLARI.
6. DEPUTY COMMISSIONER,
BALLARI DISTRICT,
BALLARI-583 101.
7. ASST. MANAGER
M/S. ARCELOR MITTAL INDIA CO. LTD.,
DOOR NO.21-A,
Y. NAGESH SHASTRY ROAD,
PARVATHINAGAR,
BELLARY-583 101.
... RESPONDENTS
(BY SRI. V.S. KALASURMATH, HCGP FOR R-1 AND R-6;
SRI. G.I. GACHCHINAMATH, ADV., FOR R-2 AND R-4;
SRI. SHASHANK HEGDE, ADV., FOR R-4;
SRI. SHIVARAJ.S. BALLOLI, ADV., FOR R-5;
SRI. R.V.S. NAIK, SENIOR COUNSEL FOR
SRI. SURYANARAYAN, ADV., FOR R-7;
R-3 SERVED AND UNREPRESENTED.)
11
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ENDORESEMENTS ISSUED VIDE ANNEXURES-H, H1 AND
H2 AND THE NOTICE DATED 17.09.2016 ISSUED UNDER
SECTION 12(2) OF THE LAND ACQUISITION ACT BY
RESPONDENT No.4, ETC.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.04.2022 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
1. On 05.02.2010, the State Government issued a
notification under Section 28(1) of the Karnataka Industrial
Area Development Act, 1966 (hereinafter referred to as
"KIAD Act") giving notice of its intention to acquire about
5368-83 acres for the benefit of M/s. Arcelor Mittal India
Company Limited, a private limited company.
2. After hearing the land owners, the State
Government proceeded to pass an order for acquiring the said
lands.
3. On 04.05.2010 the State Government issued a
declaration under Section 28(4) of the KIAD Act declaring
that an extent of 4864-64 acres were needed to be acquired.
4. It appears that the Land Value
Determination/Assessment Committee had been constituted
under the Chairmanship of the Deputy Commissioner for
determining the market value of the land in respect of those
land owners who had agreed for the determination of the
market value and compensation was not only determined but
also paid in respect of about 3950 acres, at the rate
determined by the Committee. It is stated that compensation
in respect of about 80% of the lands acquired had been paid
in this mode.
5. Petitioners herein, who are the landowners,
apparently refused to receive the compensation as
determined by the Committee on the ground that
compensation to their lands ought to have been paid at a far
higher value than the one determined by the Committee.
6. Petitioners appear to have contended that the
market value of the lands ought to have been determined by
taking into consideration the sale statistics of the past three
years and compensation at four times of that value ought to
have been paid to them.
7. The petitioners, basically, demanded payment of
compensation in accordance with the provisions of the Right
to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (for short, "the
2013 Act") as is evident by Annexure-C to W.P.Nos.107748-
50/2014.
8. The Karnataka Industrial Areas Development Board
(for short, "the Board"), however, refused the claim of the
petitioners for determination of compensation under the
provisions of the 2013 Act by issuing an endorsement dated
07.05.2014 as per Annexure-D. Therefore, one set of
petitioners approached this Court by way of a writ petition, in
W.P.Nos.107748-50/2014.
9. This Court ordered issuance of notice to the
respondents and also granted an interim order of stay as
prayed for. The interim order that was prayed for was to
direct the Board not to pass the award under the provisions
of the Land Acquisition Act, 1894 (for short, "the 1894 Act")
and also for stay of the endorsements dated 07.05.2014 and
17.06.2014.
10. The petitioners in W.P.No.108802/2016, thereafter,
filed a writ petition on 03.11.2016. In the said writ petition,
they challenged the endorsement in which it was stated that
the provisions of the 2013 Act were inapplicable to the
acquisition under the KIAD Act since the notification under
Section 28(1) of the KIAD Act had been issued prior to
01.01.2014, the award would be passed only under the 1894
Act. During the pendency of these writ petitions, awards were
passed on 18.02.2020 under the provisions of the 1894 Act
and also deposited the award amount in the Civil Court.
11. Thereafter, on 25.01.2017, W.P.No.100762/2016
was filed by the three petitioners challenging a similar
endorsement by which the Board informed that awards would
be passed only under the 1894 Act and not under the 2013
Act. During the pendency of this writ petition also, an award
was passed under the 1894 Act and the award amount was
also deposited before the Civil Court.
12. The principal contention advanced by all the
petitioners in these batch of writ petitions is that,
notwithstanding the fact that the notifications issued under
Section 28(1) & 28(4) of the KIAD Act had been issued prior
to the enactment of the 2013 Act, since awards were not
passed till 01.01.2014, by virtue of the repeal of the 1894 Act
and the enactment of the 2013 Act, compensation was
required to be determined under the provisions of the 2013
Act as envisaged under Section 24(1) of the 2013 Act.
13. It is their contention that under Section 30 of the
KIAD Act, the provisions of the 1894 Act had been made
applicable-
a. in respect of enquiry and award by the Deputy
Commissioner,
b. the reference to Court,
c. the apportionment of compensation and
d. payment of compensation
in respect of lands acquired under Chapter-VI of the KIAD Act
and since the 1894 Act was repealed and replaced by the
2013 Act, necessarily, the award would have to be passed
under the 2013 Act.
14. It is contended that Section 30 of the KIAD Act was
a piece of legislation by reference and not a legislation by
incorporation, and therefore, all subsequent amendments,
and reenactments of the 1894 Act would have to be applied
and the provisions of the 1894 Act could not survive on its
repeal and reenactment of the 2013 Act and the 2013 Act
would have to be made applicable to determine the award
amount under the KIAD Act.
15. It is also contended that under Section 8 of the
General Clauses Act, 1897 (for short, "the GC Act") when any
Act is repealed and reenacted with or without modifications,
then references to the provisions of the 1894 Act in other
enactments, should be construed as reference to the
reenacted provisions of the 2013 Act. It is argued that since
the 1894 Act was repealed and reenacted in the form of the
2013 Act, the references to the provisions of the 1894 Act
should be construed as a reference to the 2013 Act.
16. It is also contended that in view of the decision of
the Constitution Bench in the case of INDORE DEVELOPMENT
AUTHORITY VS MANOHARLAL & OTHERS - (2020) 8 SCC 129,after
01.01.2014, any award that is required to be passed under
the provisions of the 1894 Act would have to be under the
2013 Act only. It is submitted that since the 1894 Act was
repealed and the 2013 Act was reenacted in its place,
obviously, the award would have to be passed only under the
2013 Act.
17. On the other hand, Sri. Veeresh Budhihal, learned
counsel on behalf of the Board and the learned Senior
Counsel Sri.Naik for the beneficiary contended that since the
notifications issued under Section 28(1) and 28(4) of the
KIAD Act had been issued prior to enactment of the 2013 Act,
necessarily, the award would have to be passed only in
accordance with the provisions of 1894 Act. It is contended
that Section 30 of the KIAD Act is a piece of legislation by
incorporation and even if the 1894 Act was repealed,
nevertheless, for determination of compensation in respect of
lands acquired under the KIAD Act, the provisions of the 1894
Act would survive and it is only the provisions of the 1894 Act
which could be applied for determination of the
compensation.
18. It is contended that the Apex Court as well as this
Court in a series of decisions have held that the provisions of
the 2013 Act have no application to the acquisition under the
provisions of the KIAD Act and therefore, an award cannot be
passed as prayed for by the petitioners under 2013 Act.
19. Thus, from the above contentions, the principal
question that is required to be decided in these writ petitions
is:
"Whether in respect of lands notified prior to
01.01.2014 under the KIAD Act, in respect of which
an award had not been passed as on 01.01.2014,
awards are required to be passed under the 1894
Act or the 2013 Act as envisaged in Section 24 (1)
of the 2013 Act?"
20. To answer this question, a brief overview of the
KIAD Act would be necessary.
21. The KIAD Act has been enacted to secure the
establishment of industrial areas and promoting the
establishment and orderly development of industries and for
that purpose to establish an Industrial Areas Development
Board.
22. The KIAD Act envisages the declaration of an
industrial area in the State and entrusts the Board constituted
under the Act to promote and assist the rapid and orderly
establishment of industries and to provide industrial
infrastructure facilities and amenities in industrial areas. To
ensure this objective, the Board is given the power to acquire
and hold property and also lease or sell any property held by
it. The Board is empowered to purchase land or take any land
on lease and erect buildings for the purpose of carrying out
its duties and functions and it is also empowered to allot
premises in the industrial areas established by it.
23. In essence, the KIAD Act is designed to ensure that
industrial areas are established by the Board by acquiring
lands, developing them into an industrial area and allotting
premises either by sale or by lease-cum-sale to persons and
entities and thereby ensuring the orderly establishment and
development of industries in the State.
24. Chapter VII of the KIAD Act enumerates the
provisions for acquisition and disposal of land under the KIAD
Act.
25. Section 27 of the KIAD Act states that the provisions
of Chapter VII would apply to areas which have been notified
as industrial areas by the State Government under Section
1(3) of the KIAD Act from the date as notified by the
Government.
26. Section 28 of the KIAD Act, which provides for
acquisition of land, states that whenever Government forms
an opinion that any land is required for the purpose of
development by the Board or any other purposes to further
the objects of the Act, the State is obliged to issue a
notification and notify its intention to acquire lands. The State
is thereafter required to serve notice on the landowners to
show cause as to why their lands should not be acquired and
on considering the cause shown by the land owners or the
interested persons and after giving them an opportunity of
being heard, the State is required to pass such orders, as it
deems fit.
27. In the event, the State Government is satisfied that
any land is required for the purpose specified in the
notification, it is obliged to issue a declaration to that effect in
the gazette and on publication of the gazette of the
declaration, the lands would stand vested absolutely in the
State Government free from all encumbrances.
28. Thus, on the very declaration, being issued under
Section 28(4) of the KIAD Act stating that the lands are
required to be acquired, the lands notified would stand vested
absolutely in the State Government free from all
encumbrances.
29. It is pertinent to state here that the difference in the
matter of vesting under the 1894 Act and the KIAD Act is
required to be noticed and emphasized here.
30. Under the 1894 Act, lands which have been notified
for acquisition and declared to be needed for the public
purpose would stand vested in the State Government free
from all encumbrances only on taking possession of the land
(under Section 16 of the 1894 Act) after an award is passed
(under Section 11 of the 1894 Act).
31. However, under the KIAD Act, the land stands
vested in the State on the very issuance of a declaration
under Section 28(4) of the KIAD Act. In fact, on the land
vesting in the State Government, the State Government is
empowered to call upon any person, who is in possession of
the land, to surrender possession within 30 days and if such
person refuses to comply with the order, the State
Government or any Officer authorized by the State is
empowered to take possession of the land by using such force
as may be necessary. After possession of land has been taken
over, the provision also enables the State to transfer the land
to the Board for the purpose for which the land has been
acquired.
32. Thus, from the reading of Section 28 of the KIAD
Act, it is clear that the notified lands stand vested with the
State on a declaration being published in the gazette and the
State is also empowered to take possession of the land and
transfer it to the Board even before the compensation is
determined and paid to the land owner.
33. Section 29 of the KIAD Act provides for payment of
compensation. It stipulates that when any land is acquired by
the State Government, the State Government is required to
pay for such acquisition. It also states when the amount of
compensation has been determined by way of an agreement
between the State Government and the person to be
compensated, it shall be paid in accordance with the
agreement.
34. In cases where the compensation cannot be
determined by way of an agreement, between the State
Government and the person to be compensated, the provision
stipulates that the State Government is bound to refer the
case to the Deputy Commissioner for determination of the
amount of compensation to be paid and also to determine the
person or persons to whom it should be paid.
35. On receipt of a reference by the State Government,
the Deputy Commissioner is required to notify the
owner/occupier and all persons interested in the land to
appear before him and state their respective interests in the
land.
36. Section 30 of the KIAD Act states that the provisions
of the 1894 Act shall mutatis mutandis apply not only in
respect of enquiry and award by the Deputy Commissioner
but also in respect of reference to Court, apportionment of
compensation and payment of compensation. Thus, in respect
of conducting an enquiry and passing of an award, the
Deputy Commissioner is required to apply the provisions of
the 1894 Act as per the mandate of Section 30 of the KIAD
Act.
37. The admitted factual position, in this case, is that
though the declaration under Section 28(4) of the KIAD Act
was issued on 04.05.2010, in respect of petitioners herein,
the compensation was admittedly neither determined by
agreement nor was an award made by the Deputy
Commissioner till 01.01.2014. Thus, though a declaration had
been issued in 2010 and the land stood vested in 2010 itself,
the compensation was not paid to the petitioners, either by
way of an agreement or by way of an award made by the
Deputy Commissioner under the provisions of the 1894 Act.
38. It would be pertinent to state here that three years
after the issuance of a declaration under Section 28(4) of the
KIAD Act, on 26.09.2013, the 2013 Act received the assent of
the President. The 2013 Act, was, however, brought into
force by the issuance of a notification on 19.12.2013. This
notification stated that the 2013 Act would come into force
with effect from 01.01.2014.
39. It may also be stated here that on the enactment of
the 2013 Act, by virtue of Section 114 of the 2013 Act, the
1894 Act was repealed. In other words, on the coming into
force of the 2013 Act, i.e., on and from 01.01.2014, the 1894
Act was repealed as per Section 114 of the 2013 Act.
40. The question that is raised in this case is, on and
after 01.01.2014, whether an award could be passed under
the 1894 Act, despite its repeal or whether the award is to be
passed under the reenacted statute i.e., the 2013 Act. This
controversy, in the present case, has arisen because of the
intervening legislative event i.e., the repeal of the 1894 Act
and the coming into force of the 2013 Act.
41. As stated above, according to the petitioners, on and
from 01.01.2014, awards would have to be passed only in
accordance with the provisions of the 2013 Act, as mandated
under Section 24(1)(a) of the 2013 Act, in cases where an
award has not been passed by then. However, it is the case
of the Board and also that of the beneficiary that
notwithstanding the repeal of the 1894 Act, the award would
still have to be made only under the repealed 1894 Act and
not under the 2013 Act, since the notifications for acquisition
had been issued prior to the repeal of the 1894 Act.
42. In order to determine what would be the effect of
the repeal of a statute and its reenactment in a new form, it
would be necessary to refer to the provisions of the GC Act.
43. Sections 5 to 13 of the GC Act enumerate the rules
of construction.
44. Section 5 of the GC Act relates to the date from
which enactments come into force.
45. Section 6 of the GC Act deals with the effect of
repeal of the Act. It states that the repeal of an Act would not
in any way affect anything that had been done under the
repealed Act. In other words, the repeal of an enactment
would not result in invalidating or rendering ineffective
anything done under the repealed Act, unless a different
intention is made known while repealing the Act.
46. Section 6A of the GC Act deals with the repeal of an
Act which makes a textual amendment in the Act or
Regulation and states that the repeal would not affect the
continuance of any such amendment made by the enactment
so repealed and in operation, at the time of repeal.
47. Section 7 of the GC Act states that if a repealed
enactment is to be revived, either wholly or partially, it would
be necessary to expressly state so in the Act, which seeks to
revive the repealed enactment.
48. Section 8 of the GC Act1 relates to construction of
references to repealed enactments. It states that where any
Act repeals and reenacts any provision of a former
enactment, then references in any other enactments or in any
instrument to the provision so repealed, shall unless a
different intention appears, be construed as references to the
provisions so reenacted.
Construction of references to repealed enactments:(1) Where this Act, or any Central
Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or
without modification, any provision of a former enactment, then references in any other
enactment or in any instrument to the provision so repealed shall, unless a different
intention appears, be construed as references to the provision so re-enacted.
(2) Where before the Fifteenth day of August, 1947, any Act of Parliament of
the United Kingdom repealed and re-enacted, with or without modification any provision of a
former enactment, then reference in any Central Act or in any Regulation or instrument to
the provision so repealed shall, unless a different intention appears, be construed as
references to the provision so re-enacted.
49. In other words, if an Act repeals any provision and
reenacts the provision, then the reference to the repealed
provision in any other existing enactment would have to be
construed as a reference to the reenacted provision and not
the repealed provision, unless, of course, a different intention
appears.
50. Section 8 of the GC Act, which is found in the
Chapter relating to Rules of Construction, expressly, states
the manner in which a reference to a repealed provision in
another existing enactment is to be construed when it is
reenacted. It basically states that any reference to the
repealed provision in any other enactment, would mean it
was a reference to the provision of the reenacted provision
and not the repealed provision.
51. It is to be kept in mind that a provision of one
enactment is usually referred to in another enactment,
basically to ensure that there is a uniform law applied in
respect of identical or similar matters. This legislative device
is also adopted by the Legislature to avoid a verbatim
repetition of the provision of an existing enactment, in the
new enactment in respect of similar matters. This, legislative
device adopted by the Legislature, serves a dual purpose.
52. Firstly, it ensures the uniform application of the law
across different enactments in respect of the same or similar
matters. Secondly, it also prevents the unnecessary verbatim
repetition of the provisions of an existing enactment in
respect of situations dealing with identical or similar matters
in a new enactment. It may probably be apt to say that it is a
normal legislative practice to borrow a provision or provisions
of an existing law and make it a part of a new enactment to
avoid inconsistency in the law relating to similar or identical
matters.
53. Such examples of borrowing provisions are many
and one of the most common would be the application of the
provisions relating to search and seizure provided under the
Criminal Procedure Code. In several statutes, which confer
the power of search and seizure to various authorities, the
statutes merely state that for the purposes of search and
seizure, the procedure to be followed would be the one
prescribed under the Criminal Procedure Code. Thus, by
express reference to another enactment, in a new enactment,
the mode of conducting a search and seizure is prescribed by
referring to the procedure prescribed in another enactment.
54. It is quite obvious, given the fact that such a
legislative device was being consistently adopted over a long
period of time, the Legislature was also conscious of the fact
that enactments are often repealed and reenacted afresh and
in such a situation, a contradiction would arise whenever the
provision of a repealed Act was referred to in some other
enactment. The Legislature was acutely conscious of the fact
that the enactment, in which a reference was made to a
provision of another enactment, were to be subsequently
repealed, that would render the enactment, which refers to
the repealed enactment, unworkable and would thereby lead
to a disruption in the application of the law.
55. It is for avoiding such an anomalous situation,
Section 8 of the GC Act was enacted. The intent behind the
enactment of Section 8 is to ensure continuity of the law and
removal of any ambiguity in the application of laws. It
fundamentally ensures that in an enactment, if a reference
has been made to some other provision of some other
enactment and whenever that provision is repealed and
reenacted, the reference to the repealed provision would
necessarily mean that it was a reference to the reenacted
provision and not the repealed provision. This is obviously
because, on a provision being repealed and reenacted, it
would mean that there was a new law in operation. The
Legislature by virtue of Section 8 seeks to ensure that this
new reenacted provision would have to be applied and not
the old repealed provision.
56. It is to be borne in mind that Section 8 of the GC Act
would apply only to those cases where a provision is repealed
and reenacted. If a provision is repealed but is not reenacted,
Section 8 of the GC Act would have no application and the
repealed provision would, therefore, continue to apply to the
enactment in which a reference has been made to the
repealed provision.
57. In the present case, the entire 1894 Act was
repealed and reenacted afresh as the 2013 Act. Thus, the
condition laid down in Section 8 of the GC Act that whenever
a provision is repealed and reenacted would be attracted.
Resultantly, by virtue of the rule of construction stipulated in
Section 8 of the GC Act, any reference in the KIAD Act to the
provisions of the 1894 Act would have to be necessarily
construed as a reference to the reenacted provisions of the
2013 Act.
58. In the 1894 Act, Sections 11, 23, 23A and 24 were
the provisions in respect of an enquiry and award and in the
reenacted 2013 Act, Sections 27 to 30 are the provisions in
respect of an enquiry and award.Thus, the provisions relating
to enquiry and award in the 1894 Act referred to in the KIAD
Act will have to be construed as a reference to the provisions
relating to an enquiry and award under the 2013 Act by
virtue of Section 8 of the GC Act.
59. In other words, on the 1894 Act being repealed and
the 2013 Act coming into force, any reference to the
provisions of the 1894 Act in Section 30 of the KIAD Act,
would have to be necessarily construed as a reference to the
provisions relating to enquiry and award in the 2013 Act, by
virtue of the rule of construction envisaged under Section 8 of
the GC Act.
60. Thus, on the coming into force of the 2013 Act,
whenever an award is required to be passed in respect of a
land notified under the provisions of the KIAD Act, by the
mandate of Section 8 of the GC Act, an award can be passed
only under the provisions relating to the passing of an award
under the 2013 Act and an award cannot be passed in
accordance with the repealed provisions relating to award in
the 1894 Act.
61. Section 24 of the 2013 Act is a provision relating to
lapsing of acquisition which were initiated under the 1894 Act
in certain situations. This provision basically seeks to govern
the fate of acquisitions which were initiated under the 1894
Act and which were not yet concluded as on the day, the
2013 enactment came into force. In other words, it governs
the transitory phase between the repeal of the 1894 Act and
the coming into force of the 2013 Act in respect of lands
which have been notified for acquisition.
62. The provision begins with a non-obstante clause and
is thereafter divided into two sub-sections.
63. Sub-section (1) of Section 24 of the 2013 Act has
two parts. The first part i.e., Section 24(1)(a), deals with a
situation where no award is passed under the 1894 Act as on
the date of the enactment of the 2013 Act. In such an event,
it mandates that the award is required to be made under the
2013 Act. Section 24(1)(a) basically ensures that the land
losers, who were not offered compensation by passing of an
award, in respect of notifications issued immediately prior to
enactment of the 2013 Act, would be entitled to an award
being passed under the 2013 Act, which is undoubtedly more
beneficial.
64. The second part of Section 24 (1) of the 2013 Act
i.e., Section 24 (1) (b) deals with a situation where an award
is already passed (under the 1894 Act) as on the date of the
enactment of the 2013 Act. It states that in such an event,
the proceedings would continue under the 1894 Act itself, and
a legal fiction is created to the effect that the 1894 Act should
not be construed as repealed and the 1894 Act continues to
operate, even though it had stood repealed as on
01.01.2014.
65. Thus, sub-section (1) of Section 24 of the 2013 Act
itself indicates under what circumstances the 1894 Act is to
be considered repealed or to be considered prevailing. If an
award is not passed, the provision indicates that the award is
to be made under the 2013 Act, thereby implying that the
provision of the 1894 Act stands repealed in the context of
that situation. If, however, an award is already passed, the
provision itself states that the proceedings would continue
under the provisions of the 1894 Act itself and in that
context, it will have to be assumed that the 1894 Act was not
repealed at all.
66. This distinction carved out in sub-section (1) of
Section 24 of the 2013 Act itself establishes when the
provision under the 1894 Act would cease to operate and
when the provision of the 1894 Act would continue to
operate.
67. Normally, by virtue of Section 8 of the GC Act, any
reference to a provision of a repealed enactment in another
enactment would have to be construed as a reference to the
reenacted provision. However, in the case of Section 24 (1)
(b) of the 2013 Act, there is a slight deviation made from this
rule of construction. The Legislature, by expressly stating in
Section 24 (1) (b) of the 2013 Act that, in cases where an
award is already passed, the reference to the repealed
provision of the 1894 Act, in the KIAD Act would have to be
construed as a reference to the repealed provision itself and
not the reenacted provision relating to enquiry and award in
the 2013 Act. Thus, in cases where an award is not passed,
the Legislature has clearly indicated a deviation from the
normal rule of construction found in Section 8 of the GC Act.
68. In other words, in cases where an award is already
made under the 1894 Act, the provisions of the 1894 Act
would continue to operate for further proceedings, as if the
1894 Act was not repealed, notwithstanding the mandate of
Section 8 of the GC Act.
69. If, however, an award is yet to be passed under the
1894 Act, the provisions of the repealed 1894 Act are
expressly made inapplicable since it is clearly and
categorically stated that the awards are to be made under the
2013 Act and thus the mandate of Section 8 of the GC Act is
sought to be satisfied and adhered to.
70. The language of Section 24 (1) of the 2013 Act is
fundamentally designed to ensure that there is clarity in the
varied situations that emerge during the repeal of the 1894
Act and the enactment of the 2013 Act. A plain reading of
Section 24 (1) (a) of the 2013 Act makes it manifestly clear
that in cases where an award is yet to be passed in respect of
lands notified, the award is required to be made under the
provisions of the 2013 Act and not the 1894 Act, whereas a
plain reading of Section 24 (1) (b) of the 2013 Act makes it
clear that in cases where an award is already made, the
repealed provisions of the 1894 Act would continue to operate
for further proceedings to conclude the acquisition.
71. However, to prevent the applicability of the
provisions of the 2013 Act even in cases where an award is
yet to be passed, just as in the present set of petitions, a
contention is advanced by the Board and the beneficiary that
not only the Apex Court in the case of THE SPECIAL LAND
ACQUISITION OFFICER, KIADB, MYSORE AND ANOTHER Vs.
ANASUYA BAI (D) BY LRS AND OTHERS -AIR 2017 SC 904 and in
the case of BANGALORE DEVELOPMENT AUTHORITY AND
ANOTHER Vs. STATE OF KARNATAKA AND ANOTHER - AIR 2022 SC
598, but also a Division Bench of this Court (to which the
undersigned was also a party) in the case of SRI. L.
RAMAREDDY Vs. THE STATE OF KARNATAKA (WA.No.1415/2018
DISPOSED OF ON 01.12.2020), have clearly held that the
provisions of the 2013 Act would have no application to the
acquisitions made under the KIAD Act and therefore, an
award cannot be passed under the 2013 Act in respect of
lands notified for acquisition under the KIAD Act.
72. In my view, this contention is without any merit. In
the aforementioned cases, upon which strong reliance has
been placed, it is to be stated here that the Apex Court, as
well as this Court, were dealing with the contention that
acquisition proceedings would lapse, if an award had not been
passed within the time stipulated under Section 11A of the
1894 Act or by the situation contemplated under Section
24(2) of the 2013 Act. Both the Apex Court as well as this
Court were not dealing with a situation contemplated under
Section 24 (1) (a) of the 2013 Act i.e., where an award had
been passed as on 01.01.2014 or with a situation
contemplated under Section 24 (1) (b) of the 2013 Act i.e.,
where an award had not passed as on 01.01.2014.
73. In these decisions, the question as to whether an
award was required to be passed under the provisions of the
1894 Act or the provisions of the 2013 Act were not
considered. Thus, the aforementioned decisions, in which the
Courts were considering whether there would be a lapse in
the acquisition proceedings by virtue of Section 24 (2) of the
2013 Act was only considered. In other words, the effect and
purport of Section 24 (1) of the 2013 Act was not the focus of
attention in those cases.
74. In the present set of petitions, the contention being
advanced by the petitioners is not one of lapsing of
acquisition by virtue of Section 24 (2) of the 2013 Act i.e., a
situation where an award had been passed within prior to 5
years of the commencement of the 2013 Act and thereafter
possession of that land not being taken or that the
compensation had not been paid to the land losers. The
contention advanced in these cases, is simply, as to whether
the provisions of the 1894 Act have to be applied or the
provisions of the 2013 Act have to be applied, in the matter
of passing of an award in cases where an award had not been
passed in respect of notified lands as on 01.01.2014.
75. It must be stated here that sub-section (1) of
Section 24 of the 2013 Act does not deal with the lapsing of
acquisition at all. It only prescribes the statute that is
required to be applied in the matter of passing of an award, if
an award is not passed as 01.01.2014 and the statute that is
to be applied for the continuation of the proceedings, if an
award has already been passed as on 01.01.2014.
76. It is sub-section (2) of Section 24 of the 2013 Act,
which provides for the deemed lapsing of acquisition. In order
to attract this deeming clause, there are certain prescribed
criteria.
77. Firstly, an award must have been passed under the
1894 Act prior to 01.01.2009 i.e., five years prior to the
commencement of the 2013 Act. Secondly, despite the
passing of this award, the authorities have not taken physical
possession.
78. Thirdly, despite an award having been passed prior
to 01.01.2009, the compensation has not been paid to the
land losers. It is only if these prescribed criteria are satisfied,
the acquisition proceedings would be deemed to have lapsed.
79. If, however, an award is passed at any time after
01.01.2009 there is no question of acquisition lapsing and by
the mandate of Section 24 (1) (b) of the 2013 Act, the
acquisition proceedings have to continue under the provisions
of the 1894 Act.
80. If, on the other hand, an award is not passed as on
the date of the commencement of the 2013 Act, i.e.,
01.01.2014, by virtue of the mandate of Section 24 (1) (a) of
the Act, the award would have to be passed as provided
under the more beneficial provisions of the 2013 Act. Thus, in
both the scenarios prescribed in Section 24 (1) of the 2013
Act, the question of lapsing would not arise at all.
81. As stated above, it is only if an award has been
passed on or after 01.01.2009 (five years prior to the
commencement of the 2013 Act) and either the physical
possession of the land is not taken or the compensation is not
paid to the land loser, the question of lapsing of acquisition
would be attracted.
82. Thus, for the non-passing of an award as on the date
of commencement of the 2013 Act or if an award is already
passed within five years of the commencement of the 2013
Act, the question of lapsing of acquisition would not arise at
all.
83. However, in the present case, it is not the case of
the petitioners that there was a lapsing of the acquisition.
Consequently, the decisions, upon which reliance was placed
by the Board and the beneficiary, which deal only with lapsing
of acquisition under Section 24 (2) of the 2013 Act, would
have no application at all. The limited prayer of the
petitioners is to direct the Board to determine and pay the
compensation under the provisions of the 2013 Act, since
admittedly no awards were made as on 01.01.2014.
84. Yet another factor that is to be kept in mind is the
concept of lapsing of an acquisition when dealing with this
contention of the Board and the beneficiary. The Constitution
Bench of the Apex Court in OFFSHORE HOLDINGS PRIVATE
LIMITED. VS BANGALORE DEVELOPMENT AUTHORITY - (2011) 3
SCC 139 while dealing with the BDA Act has held that once the
land vests with the State Government, the question of the
acquisition proceedings lapsing will not arise. The Apex Court
has stated that acquisition would lapse only if lands had not
been vested in the State Government. It has been held that if
the lands have been not vested, the provisions of the Land
Acquisition Act would become inoperative and hence lands
cannot be acquired. If, however, the lands are acquired and
the lands stand vested with the State Government, even if
the scheme were to lapse due to non-execution of the
scheme substantially, the acquisition of the lands would
nevertheless not lapse.
85. The relevant passage in the said decision reads as
follows:
"35. Be that as it may, it is clear that the BDA Act is a
self-contained code which provides for all the situations
that may arise in planned development of an area
including acquisition of land for that purpose. The scheme
of the Act does not admit any necessity for reading the
provisions of Sections 6 and 11-A of the Land Acquisition
Act, as part and parcel of the BDA Act for attainment of its
object. The primary object of the State Act is to carry out
planned development and acquisition is a mere incident of
such planned development. The provisions of the Land
Acquisition Act, where the land is to be acquired for a
specific public purpose and acquisition is the sum and
substance of that Act, all matters in relation to the
acquisition of land will be regulated by the provisions of
that Act. The State Act has provided its own scheme and
provisions for acquisition of land.
36. The co-relation between the two enactments is a very
limited one. The provisions of the Land Acquisition Act
would be attracted only insofar as they are applicable to
the State law. Where there are specific provisions under
the State Act the provisions of the Central Act will not be
attracted. Furthermore, reading the provisions of default
and consequences thereof, as stated under the Central Act
into the State Act, is bound to frustrate the very scheme
formulated under the State Act. Only because some of the
provisions of the Land Acquisition Act are attracted, it
does not necessarily contemplate that all the provisions of
the Central Act would per se be applicable to the
provisions of the State Act irrespective of the scheme and
object contained therein. The Authority under the BDA Act
is vested with complete powers to prepare and execute
the development plans of which acquisition may or may
not be a part. The provisions of the State Act can be
implemented completely and effectively on their own and
reading the provisions of the Land Acquisition Act into the
State Act, which may result in frustrating its object, is not
called for. We would be dealing with various facets which
would support this view shortly.
37. The provisions of Section 27 of the BDA Act mandate
the Authority to execute the scheme, substantially, within
five years from the date of publication of the declaration
under sub-section (1) of Section 19. If the Authority fails
to do so, then the scheme shall lapse and the provisions
of Section 36 of the BDA Act will become inoperative. The
provisions of Section 27 have a direct nexus with the
provisions of Section 36 which provide that the provisions
of the Land Acquisition Act, so far as they are applicable
to the State Act, shall govern the cases of acquisition
otherwise than by agreement. Acquisition stands on a
completely distinct footing from the scheme formulated
which is the subject-matter of execution under the
provisions of the BDA Act.
38. On a conjunctive reading of the provisions of Sections
27 and 36 of the State Act, it is clear that where a scheme
lapses, the acquisition may not. This, of course, will
depend upon the facts and circumstances of a given case.
Where, upon completion of the acquisition proceedings,
the land has vested in the State Government in terms of
Section 16 of the Land Acquisition Act, the acquisition
would not lapse or terminate as a result of lapsing of the
scheme under Section 27 of the BDA Act. An argument to
the contrary cannot be accepted for the reason that on
vesting, the land stands transferred and vested in the
State/Authority free from all encumbrances and such
status of the property is incapable of being altered by
fiction of law either by the State Act or by the Central Act.
Both these Acts do not contain any provision in terms of
which property, once and absolutely, vested in the State
can be reverted to the owner on any condition. There is no
reversal of the title and possession of the State. However,
this may not be true in cases where acquisition
proceedings are still pending and land has not been
vested in the Government in terms of Section 16 of the
Land Acquisition Act.
125. Having said so, now we proceed to record our
answer to the question referred to the larger Bench as
follows:
For the reasons stated in this judgment, we hold
that the BDA Act is a self-contained code. Further, we
hold that provisions introduced in the Land Acquisition
Act, 1894 by Central Act 68 of 1984, limited to the extent
of acquisition of land, payment of compensation and
recourse to legal remedies provided under the said Act,
can be read into an acquisition controlled by the
provisions of the BDA Act but with a specific exception
that the provisions of the Land Acquisition Act insofar as
they provide different time-frames and consequences of
default thereof, including lapsing of acquisition
proceedings, cannot be read into the BDA Act. Section
11-A of the Land Acquisition Act being one of such
provisions cannot be applied to the acquisitions under the
provisions of the BDA Act."
86. Thus, as per the said declaration of law by the
Constitution Bench, if the lands stand vested with the State,
the question of lapsing of acquisition proceedings would not
arise and the provisions in the 1894 Act which provide
different time frames and the consequences of default would
not apply to the statute (BDA Act) in which they are referred
to. On a similar analogy even to the KIAD Act, the time
frame, if any, which would result in the acquisition lapsing
under the 1894 Act would also obviously not apply.
87. In the case of an acquisition under the KIAD Act, on
a declaration being made under Section 28(4) of the KIAD
Act, the lands stand vested with the State Government
absolutely free from encumbrances, even though an award is
yet to be passed in respect of the lands. In the light of the
judgment rendered in the case of Offshore Holdings cited
above, once the lands vest with the State Government, the
question of lapsing of the acquisition of the lands would never
arise. Thus, in the case of an acquisition under the KIAD Act,
the lapsing of acquisition for non-passing of an award would
never arise since the lands stand vested in the State on a
declaration being published under Section 28 (4) of the KIAD
Act.
88. It may also be pertinent to state here that unlike the
BDA Act in which a time limit has been prescribed for
execution of the scheme under Section 27 of the BDA Act,
there is no provision under the KIAD Act mandating the Board
to utilize the lands acquired by it for the purpose for which it
was acquired in a given time frame failing which there would
be a lapsing of the acquisition. Therefore, there is no question
of lapsing of acquisition of the lands notified under the KIAD
Act at all primarily because the notified lands stand vested
with the State immediately on the issuance of a declaration
under Section 28 (4) of the KIAD Act.
89. It is to be stated here that since the vesting occurs
under the KIAD Act on the very issuance of the declaration
under Section 28 (4) of the Act, hypothetically speaking, even
if some time frame had been fixed under the KIAD Act, there
would be no question of lapsing of the acquisition of lands at
all.
90. An argument was also advanced that Section 30 of
the KIAD Act was a piece of "legislation by incorporation" by
which the provisions of the 1894 Act had been incorporated
and therefore, the subsequent repeal of the 1894 Act would
have absolutely no effect and the provisions of the 1894 Act,
even if repealed, would continue to operate for lands notified
under the KIAD Act. It was also contended that it was only in
the cases of "legislation by reference", that the subsequent
amendments to the provisions which are referred to in
another enactment would become applicable.
91. In the case of UJAGAR PRINTS (2) Vs. UNION OF
INDIA - (1989) 3 SCC 488, the Apex Court has held as
follows:
"93. Referential legislation is of two types. One is
where an earlier Act or some of its provisions are
incorporated by reference into a later Act. In this event, the
provisions of the earlier Act or those so incorporated, as
they stand in the earlier Act at the time of incorporation,
will be read into the later Act. Subsequent changes in the
earlier Act or the incorporated provisions will have to be
ignored because, for all practical purposes, the existing
provisions of the earlier Act have been re-enacted by such
reference into the later one, rendering irrelevant what
happens to the earlier statute thereafter. Examples of this
can be seen in Secretary of State v. Hindusthan Co-
operative Insurance Society, Bolani Ores Ltd. v. State of
Orissa, Mahindra and Mahindra Ltd. v. Union of India. On
the other hand, the later statute may not incorporate the
earlier provisions. It may only make a reference of a broad
nature as to the law on a subject generally, as in Bhajiya v.
Gopikabai, or contain a general reference to the terms of an
earlier statute which are to be made applicable. In this case
any modification, repeal or re-enactment of the earlier
statute will also be carried into in the later, for here, the
idea is that certain provisions of an earlier statute which
become applicable in certain circumstances are to be made
use of for the purpose of the later Act also. Examples of this
type of legislation are to be seen in Collector of Customs v.
Nathella Sampathu Chetty, New Central Jute Mills Co. Ltd.
v. Assistant Collector of Central Excise and Special Land
Acquisition Officer v. City Improvement Trust. Whether a
particular statute falls into the first or second category is
always a question of construction. In the present case, in
my view, the legislation falls into the second category.
Section 3(3) of the 1957 Act does not incorporate into the
1957 Act any specific provisions of the 1944 Act. It only
declares generally that the provisions of the 1944 Act shall
apply "so far as may be", that is, to the extent necessary
and practical, for the purposes of the 1957 Act as well."
92. The Constitution Bench of the Apex Court in GIRNAR
TRADERS AND OTHERS VS STATE OF MAHARASHTRA - (2011) 3
SCC 1, has held as follows in relation to the doctrine of
legislation by reference and legislation by incorporation:
"86. At the very outset, we may notice that in the
preceding paragraphs of the judgment, we have
specifically held that the MRTP Act is a self-contained
code. Once such finding is recorded, application of either
of the doctrines i.e. "legislation by reference" or
"legislation by incorporation", would lose their significance
particularly when the two Acts can coexist and operate
without conflict.
87. However, since this aspect was argued by the learned
counsel appearing for the parties at great length, we will
proceed to discuss the merit or otherwise of this
contention without prejudice to the above findings and as
an alternative plea. These principles have been applied by
the courts for a considerable period now. When there is
general reference in the Act in question to some earlier Act
but there is no specific mention of the provisions of the
former Act, then it is clearly considered as legislation by
reference. In the case of legislation by reference, the
amending laws of the former Act would normally become
applicable to the later Act; but, when the provisions of an
Act are specifically referred and incorporated in the later
statute, then those provisions alone are applicable and the
amending provisions of the former Act would not become
part of the later Act. This principle is generally called
legislation by incorporation. General reference, ordinarily,
will imply exclusion of specific reference and this is
precisely the fine line of distinction between these two
doctrines. Both are referential legislations, one merely by
way of reference and the other by incorporation. It,
normally, will depend on the language used in the later
law and other relevant considerations. While the principle
of legislation by incorporation has well-defined exceptions,
the law enunciated as of now provides for no exceptions to
the principle of legislation by reference. Furthermore,
despite strict application of doctrine of incorporation, it
may still not operate in certain legislations and such
legislation may fall within one of the stated exceptions.
141. One of the pertinent principles that the Court should
keep in mind while applying referential legislation as a tool
of interpretative application is that such interpretation
should not, in any way, defeat the object and essence of
principal legislation. The likelihood of any interference with
the scheme under the principal Act would tilt against
accepting such an interpretation.
149. It will be useful to apply the `test of intention' and
`test of unworkability' with their respective contextual
reference while determining the applicability of either of
the doctrines and for that matter, even on the applicability
of the amended law to the later law. Impact analysis on
the workability of the respective legislation shall be a
relevant consideration for resolving such an issue. There
can be instances where the amended law, if applied and
treated as incorporated in the principal legislation, may be
apparently unadjustable to the scheme of that legislation.
In that circumstance, it will be unfair to interpret the
amended law as deemed to be incorporated, irrespective
of its consequences on the implementation of the
provisions of the principal Act.
150. It is emphasized that the object of the principal Act
should not be permitted to be defeated on the basis of
either of the doctrines above referred. Hence, there is
need for carving out exceptions to the rule of legislation by
reference as well. Examples where such reference would
be impermissible are as follows :
a) Legislation by reference should not result in defeating
the object and purpose of the later Act;
b) Where the amendments to the earlier law are read into
the subsequent law as a result of legislation by reference,
if the result is irresolvable conflict between their provisions
or it results in destroying the essence and purpose of the
principal Act (later law).
The above exceptions to the doctrine are not exhaustive
but are merely indicative. The possibility of other
exceptions to this doctrine cannot be ruled out as it is
difficult for this Court to state all such exceptions with
precision. Furthermore, defining such exceptions with
exactitude will not even aid the ends of justice. We have
already noticed that all the learned counsel appearing for
the parties are ad idem that it would be necessary to carve
out such exceptions to apply the doctrine appropriately,
advantageously and objectively."
93. Thus, the question as to whether a legislation is a
legislation by reference or it is a legislation by incorporation,
would fundamentally depend on the construction of that
statute. One of the tests to be applied is to examine whether
the subsequent amendment to the referred statute, if applied,
would result in defeating the very object and purpose of the
Act, in which, the statute is referred.
94. To put it in the context of this case, if the provisions
of the 2013 Act are to be applied for acquisition under the
KIAD Act, whether the object and purpose of KIAD Act would
be defeated will have to be examined.
95. The controversy, as stated above, has arisen only
because of the 1894 Act being replaced by the 2013 Act.
Admittedly, the KIAD Act only refers to certain aspects of the
1894 Act which are to be applied for acquisition under the
KIAD Act. The reference made in Section 30 of the KIAD Act
is a general reference relating to enquiry and award,
reference to Court, apportionment and payment of
compensation, etc and no specific provisions of the 1894 Act
is specified in Section 30 of the KIAD Act. It will, therefore,
have to be held that Section 30 of KIAD Act, whereby certain
provisions of the 1894 Act are made applicable would only be
a case of legislation by reference and not a legislation by
incorporation.
96. The other test of unworkability or test of intention
would also require to be examined i.e., in order to ascertain
whether the application of the provisions of the 2013 Act
would defeat the object and purpose of the KIAD Act, it will
have to be examined whether by payment of compensation,
which is more beneficial to the land losers, the purpose of
acquiring the land by the Board would be defeated. The State
Government, in case of acquiring lands for establishing
industrial areas in the State under the KIAD Act, in any
event, is bound to pay compensation for the lands acquired.
Merely because the State is required to pay a higher
compensation by virtue of a reenacted statute, it would not,
in any way, defeat the purpose and object of KIAD Act. In
fact, the general intent of the law that the land loser is to be
compensated with just compensation would be in furtherance
and in accordance with law. Thus, even if the test of intention
and unworkability is to be applied, it is clear that the
application of the provisions of the 1894 Act in Section 30 of
the KIAD Act is a clear case of legislation by reference and
not a case of legislation by incorporation.
97. As held by the Apex Court in Girnar Traders' case
cited above, normally whenever it is a case of legislation by
reference, it would ipso facto include all the prospective
amendments made to the earlier statutes and make them
applicable in the later statute. Thus, the provisions of 2013
Act which replace the 1894 Act would have to be applied into
the KIAD Act, which is, admittedly, the later Act.
98. The reliance placed by the learned counsel for the
Board and beneficiary in the case of BANGALORE
DEVELOPMENT AUTHORITY & ANOTHER Vs. STATE OF
KARNATAKA & OTHERS - AIR 2022 SC 598 would also be of
no avail. In that case also, the Apex Court was considering
whether the acquisition proceedings would stand lapsed by
virtue of the 2013 Act, which question was decided by this
Court and was under challenge before the Apex Court. No
doubt, in that case, the Apex Court has stated that the
provisions of the 2013 Act, even insofar as it relates to
determination of compensation would not apply to the BDA
Act. It is to be noticed here that in that case, the Apex Court
has followed the findings recorded by the Constitution Bench
earlier holding that Section 36 of the BDA Act was a
legislation by incorporation and therefore has opined that the
enactment of the 2013 Act cannot be applied to the BDA Act.
99. As already noticed above, the provisions of Section
30 of the KIAD Act is a clear case of legislation by reference
and not a case of legislation by incorporation and therefore,
the said ratio also would have no application to the
acquisition made under the provisions of the KIAD Act.
100. To sum up, a reading of Section 30 of the KIAD Act
makes it clear that there is a general reference to the
provisions of the 1894 Act and no specific provisions of the
1894 Act have been stated in Section 30 of the KIAD Act. It
is, therefore, clear that Section 30 of the KIAD Act is only a
piece of "legislation by reference" and not a "legislation by
incorporation". If it is a case of legislation by reference, the
amendments to the former Act (1894 Act) would become
applicable to the KIAD Act. If, however, specific provisions of
the 1894 Act had been specifically referred to or incorporated
in Section 30 of the KIAD Act, then an argument could have
probably been made that those incorporated provisions alone
would be applicable and any subsequent amendment made to
the incorporated provision or its repeal would continue to
apply.
101. As stated above, the question of lapsing of
acquisition under the KIAD Act would not arise in case of an
acquisition under the KIAD Act since the lands stand vested
with the State immediately on the declaration being issued
under Section 28 (4) of the KIAD Act, unlike under the 1894
Act, where the lands stand vested in the State only on the
passing of the award and on taking possession of the lands.
102. Another factor which is to be noticed is that KIAD Act
was amended in the year 2022. Section 30 of the KIAD Act,
in its entirety, was substituted by Act No.20 of 20222, and the
substituted provision came into effect when it was published
in the gazette on 05.04.2022. By virtue of this 2022
amendment, as against the earlier reference to the provisions
of the 1894 Act, specific provisions of the 2013 Act have been
incorporated in respect of lands acquired under the KIAD Act
and it is also made clear that the Sections mentioned therein
shall be deemed to be formed part of this Act in the same
manner as if they were reenacted in the body thereof. The
amendment of the year 2022 would, therefore, be a clear
case of legislation by incorporation.
"30. Application of Central Act 30 of 2013: The Sections 23, 23A, 26, 27, 28, 29, 30, 64, 65, 69, 72,
73, 74, 75, 76, 77, 78, 79, 80, 96 and schedule-1 of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) shall for the purpose
be deemed to form part of this Act in the same manner as if they were re-enacted in the body thereof in
respect of lands acquired under this Chapter."
103. In other words, hypothetically speaking, if in the
future, the 2013 Act were to be amended, those amendments
would not apply to the lands acquired under KIAD Act and the
provisions of the 2013 Act, as it stood on 05.04.2022, and
which were incorporated alone will have to be applied, unless
of course, an amendment is also made to KIAD Act.
104. This amendment of the year 2022 to the KIAD Act
also makes it clear that it is indeed the intent of the
Legislature that in respect of lands acquired under the KIAD
Act, compensation will have to be paid in accordance with the
2013 Act.
105. However, if the arguments of the Board and the
beneficiary is accepted, this legislative intent would be
defeated, at least, in respect of lands which were notified but
in respect of which no award had been passed from
01.01.2014 till 05.04.2022. To put it differently, if this
argument is to be accepted, for the lands acquired between
the period from 01.01.2014 till 05.04.2022 under the KIAD
Act, compensation will have to be determined and awards
would have to be passed under the repealed 1894 Act. Thus,
if this argument were to be accepted, then only in respect of
lands notified under the KIAD Act, where awards are passed
after 05.04.2022, can be made under the provisions of the
2013 Act.
106. This would result in an anomalous situation where
different yardsticks would be applied for the determination of
compensation for lands notified under the KIAD Act prior to
01.01.2014. This would not obviously be the intent of the
Legislature. It is for this reason, that the Legislature has
substituted the entire Section 30 of the KIAD Act and made it
explicit that an award would have to be passed only under
the 2013 Act even in respect of lands notified under the KIAD
Act.
107. In this regard, reference may be made to the
judgment of the Seven Judge Bench of the Apex Court in the
case of NAGPUR IMPROVEMENT TRUST AND ANOTHER Vs.
VITHAL RAO AND OTHERS - (1973) 1 SCC 512, in which, the
Apex Court has stated as follows:
"28. It would not be disputed that different principles of
compensation cannot be formulated for lands acquired on
the basis that the owner is old or young, healthy or ill, tall
or short, or whether the owner has inherited the property
or built it with his own efforts, or whether the owner is
politician or an advocate. Why is this sort of classification
not sustainable? Because the object being to compulsorily
acquire for a public purpose, the object is equally achieved
whether the land belongs to one type of owner or another
type.
29. Can classification be made on the basis of the public
purpose for the purpose of compensation for which land is
acquired? In other words can the Legislature lay down
different principles of compensation for lands acquired say
for a hospital or a school or a Government building? Can
the Legislature say that for a hospital land will be acquired
at 50% of the market value, for a school at 60% of the
value and for a Government building at 70% of the market
value? All three objects are public purposes and as far as
the owner is concerned it does not matter to him whether
it is one public purpose or the other. Article 14 confers an
individual right and in order to justify a classification there
should be something which justifies a different treatment
to this individual right. It seems to us that ordinarily a
classification based on the public purpose is not
permissible under Article 14 for the purpose of
determining compensation. The position is different when
the owner of the land himself is the recipient of benefits
from an improvement scheme, and the benefit to him is
taken into consideration in fixing compensation. Can
classification be made on the basis of the authority
acquiring the land? In other words can different principles
of compensation be laid if the land is acquired for or by an
Improvement Trust or Municipal Corporation or the
Government? It seems to us that the answer is in the
negative because as far as the owner is concerned it does
not matter to him whether the land is acquired by one
authority or the other.
30. It is equally immaterial whether it is one Acquisition
Act or another Acquisition Act under which the land is
acquired. If the existence of two Acts could enable the
State to give one owner different treatment from another
equally situated the owner who is discriminated against,
can claim the protection of Article 14."
108. In the light of this judgment, it is clear that different
principles of compensation cannot be adopted for the lands
acquired for different purposes and by different entities.
109. It may also be relevant to state here that in Indore
Development Authority's case cited above, the Constitution
Bench of the Apex Court after considering the scope of
Section 24 of the 2013 Act, in answer to the questions raised
in respect of Section 24 of the 2013 Act, declared its first
conclusion as follows:
"363.1 Under the provisions of Section 24(1)(a) in case
the award is not made as on 1-1-2014, the date of
commencement of the 2013 Act, there is no lapse of
proceedings. Compensation has to be determined under
the provisions of the 2013 Act."
110. In the light of this clear enunciation of law by the
Constitution Bench that in case, an award is not made as on
01.01.2014 (i.e., the date of commencement of the 2013
Act), the compensation would have to be necessarily
determined under the provisions of the 2013 Act. This
conclusion of the Constitution Bench cannot be overcome by
recourse to an argument that in cases where the question of
lapsing of the acquisition was raised, the Apex Court as well
as this Court had held that the provisions of the 2013 Act are
inapplicable in cases of acquisition by the KIADB.
111. As stated earlier, all the judgments relied upon
before me related to the lapse of acquisition as contemplated
under Section 24(2) of 2013 Act and the necessity of passing
an award under Section 24(1)(a) of 2013 Act after
01.01.2014 was not considered.
112. It may also be pertinent to note here that the stand
of the Board is a contradiction in itself and I say so for this
reason:
113. It is an indisputable fact that after the KIAD Act was
enacted in the year 1966, there has been an amendment
made to the 1894 Act in the year 1984. By the said
amendment in the year 1984, Section 23 of the original 1894
Act was amended and sub-section (1-A) was inserted into
Section 23 and sub-section (2) was amended.
114. By the insertion of sub-section (1-A), amount at
12% p.a. of the market value from the date of publication of
the preliminary notification under Section 4 (1) of the 1894
Act till the date of the award or the date of taking of
possession, whichever was earlier, was granted.
115. By the amendment to sub-section (2), the solatium
of 15% was increased to 30%.
116. Thus, by virtue of this 1984 amendment, two
additional benefits were conferred to the land losers. It is not
in dispute that this amendment to Section 23 in 1984 has
been adopted by the Board and in respect of awards passed
after the said amendment of the year 1984, the Board has
been undisputedly paying the benefits conferred under
Section 23(1)(a) and has also been paying the benefit of
enhanced solatium at the rate of 30% as per Section 23 (2)
of the 1894 Act.
117. If the argument of the Board was that the provisions
of the 1894 Act as it stood only should be adopted, obviously,
the Board would not have adopted the amendments made in
the year 1984 to the 1894 Act and would not have paid the
benefits conferred under the 1984 amendment. In effect, the
Board, by incorporating the benefits conferred under 1984
amendment in the awards passed thereafter, has basically
accepted the fact that Section 30 of the KIAD Act was a
legislation by reference and not a legislation by incorporation.
It has also thereby accepted that any amendment made to
the Principal Act i.e., the 1894 Act insofar as it relates to
enquiry and award will also have to be applied to the awards
passed under the KIAD Act. In this view of the matter, the
argument of the Board and the beneficiary that Section 30 of
KIAD Act was a case of legislation by incorporation cannot be
accepted.
118. It may also be pertinent to state here that the Board
itself while acquiring the lands in respect of M/s. N.M.D.C.
Limited, in respect of which, it had issued a notification prior
to 01.01.2014, had resolved to pay compensation in
accordance with the 2013 Act, as the beneficiary thereunder
i.e., M/s. N.M.D.C. Limited had agreed to the said course of
action. It is to be stated here that the Board cannot in respect
of one instance adopt 1894 Act and, in another instance,
cannot apply the 2013 Act to determine the compensation.
119. An argument was also advanced by the Board and
the beneficiary that the mandate of Section 24 (1) of the
2013 Act can be applied only in cases where the land
acquisition proceedings are initiated under the 1894 Act and
the mandate of Section 24 (1) of the 2013 Act would have no
application for acquisition of lands under any other
enactment.
120. It is to be stated here that, in this case, though the
land acquisition proceedings were initiated under the KIAD
Act, nevertheless, in respect of the conclusion of the
acquisition proceedings, such as holding an enquiry and
passing an award, reference to the court, apportionment of
compensation and payment of compensation, it is only the
provisions of the 1894 Act which are made applicable. The
expression "initiated" in Section 24 of the 2013 Act would
have to necessarily include the conclusion of the land
acquisition proceedings and an artificial divide cannot be
constructed between "initiated" and the conclusion of the
acquisition proceedings. In other words, even if the land
acquisition process have been initiated under the 1894 Act,
since they would have to be concluded only as per the
provisions of the 1894 Act, even in respect of cases where
land acquisition proceedings are initiated under the KIAD Act,
the provisions of Section 24 (1) of 2013 would apply.
121. Lastly, it is to be stated here that in W.P.No.107748-
50/2014, an interim order was granted restraining the Board
from passing an award under 1894 Act. Similar orders were,
however, not passed in respect of other writ petitions.
However, the fact remains that there was a restraint on the
Board to pass an award under 1894 Act and despite being
aware of this interim order, the Board has proceeded to pass
an award under the 1894 Act in some cases. In my view, this
conduct of the Board cannot be commended. When the Board
was aware of the fact that in one set of writ petitions, there
was a restraint order to pass an award under the 1894 Act, it
ought not to have disregarded this interim order and should
not have passed an award under the 1894 Act in respect of
lands in which there was no interim order. Be that as it may,
since it is held that the Board is required to pass an award in
respect of lands acquired by it only under the 2013 Act,
notwithstanding the fact that the notifications had been
issued prior to 01.01.2014, it would be necessary to direct
the Board to pass an award afresh in accordance with the
provisions of 2013 Act.
122. As a result, it is hereby held that in respect of lands
notified prior to 01.01.2014 under the KIAD Act and in
respect of which, an award has not been passed as on
01.01.2014, the awards are required to be passed under
Section 24 (1) (a) of the 2013 Act only.
123. The question framed in these petitions are
accordingly answered.
124. The awards, if any, passed under the 1894 Act are
hereby declared to be void and shall not be acted upon. If,
however, the petitioners have withdrawn any sums deposited
pursuant to the awards passed under the 1894 Act, the
amounts withdrawn by them shall be adjusted as against the
award that is required to be passed under the 2013 Act as
ordered above.
125. Accordingly, the writ petitions are allowed. The
impugned endorsements by which the Board had stated that
awards will have to be made only under the 1894 Act are
quashed and the Board shall now pass an award in respect of
lands which are the subject matter of these writ petitions as
provided under the 2013 Act.
Sd/-
JUDGE
PKS
