Sri Ramesh M Patel vs The Government Of Karnataka
2022 Latest Caselaw 4807 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF MARCH 2022

                            BEFORE

        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

        WRIT PETITION NO. 32991/2016 (LA-KIADB)

BETWEEN :

SRI RAMESH M. PATEL
SON OF SRI MUJI PATEL,
AGED 57 YEARS
RESIDING AT NO 180,
AMRIT VILLA, 1ST FLOOR,
CANARA BANK COLONY
NAGARABHAVI MAIN ROAD,
BANGALORE - 560 072.
                                        ... PETITIONER
(BY SRI. S V BHAT, ADVOCATE)

AND :

1.      THE GOVERNMENT OF KARNATAKA
        DEPARTMENT OF INDUSTRIES & COMMERCE
        M S BUILDING, BANGALORE - 560 001
        REPRESENTED BY ITS SECRETARY.

2.      THE SPECIAL LAND ACQUISITION OFFICER
        KARNATAKA INDUSTRIAL AREA DEVELOPMENT
        BOARD
        III FLOOR, KHENI BUILDING, III CROSS
        GANDHINAGAR, BANGALORE - 560 009.

3.      THE KARNATAKA INDUSTRIAL AREA DEVELOPMENT
        BOARD, II FLOOR, RASHTROTHANA PARISHAT
                           2



     BUILDING NRUPATHUNGA ROAD, BANGALROE -
     5600 01
     REPRESENTED BY ITS CHAIRMAN.
4.   M/S NANDI INFRASTRUCTURE CORRIDER
     ENTERPRISES LIMITED, NO.1
     MIDFORD GARDEN, OFF M.G. ROAD,
     BANGALORE - 560 001.
                                ... RESPONDENTS
(BY SRI.SESHU.V, HCGP FOR R1;
    SRI B.B. PATIL, ADVOCATE FOR R2 AND R3;
    SRI. R.V. NAIK, SENIOR ADVCATE FOR
    SRI. NITIN PRASAD, ADVOCATE FOR R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTICE DATED 16.3.2016 VIDE ANNEXURE-V
ISSUED UNDER SECTION 28(6) OF THE KARNATAKA
INDUSTRIAL AREA DEVELOPMENT ACT, 1966.

    THIS WRIT PETITION COMING ON FOR PRLIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                      ORDER

The petitioner, who asserts ownership of the

property measuring east to west 130 feet and north to

south 22 feet bearing BBMP Municipal No.304/3, ward

No.41, Mysuru Road, Bengaluru [the Subject Property],

has sought for quashing of the notice dated 16.3.2016

issued under Section 28(6) of the Karnataka Industrial

Areas Development Act, 1966 (for short, 'KIAD Act' ).

The petitioner has filed this petition after having

succeeded twice in the earlier proceedings.

2. The petitioner at the first instance

commenced the suit in O.S.No.1724/2009 for

permanent injunction against the State as well as the

Karnataka Industrial Areas Development Board

(KIADB). The State was not represented in the suit.

Though the KIADB was represented, it did not contest

the suit. Thereafter, the suit is decreed on 01.04.2013

granting permanent injunction restraining both the

State and KIADB from interfering with the petitioner's

possession of the said property. The civil Court in

decreeing the suit has observed as follows:

"But so far as the interference is concerned, there is no material to show that the defendants interfered with the plaintiff's possession except that they might have visited the property and inspected it might be for the purpose of acquiring

the same. That does not amount to interference to the rights of the plaintiff or possession. If the property in question is required for any public purpose that can be acquired by both the defendants under any scheme of the Government. Thereby, such power of the Government cannot be interfered with. Thereby, this court finds that the plaintiff is in possession of the property and his possession is to be protected till the defendants take possession of the property in due process of law. Hence, point No.1 is answered in the affirmative and point No.2 is answered partly in the affirmative."

3. The petitioner has thereafter commenced the

writ petition in W.P.No.58775/2014 (LA-KIADB) and

this time for a direction to the State and the KIADB not

to dispossess him from the subject property relying

upon the preliminary notification and final notification

issued in the year 1998 and 2008 respectively under the

KIAD Act. This writ petition is disposed of by order

dated 16.2.2015 and the relevant portion of this Court's

order reads as under:

"Prima facie, I am of the view that the reliefs sought by petitioner are contradictory. On the one hand, petitioner has sought a direction against respondents not to dispossess him from the scheduled property. This is based on judgment and decree passed by XV Addl. City Civil and Sessions Judge, Bengaluru, in O.S.No.1724/2009 on 01.04.2013, wherein a decree of permanent injunction has been issued against respondents herein. On the other hand, petitioner himself has offered scheduled property for purpose of acquisition. If indeed there is a threat to the scheduled property by or from respondents or their agents or others, then in that case, petitioner could always seek execution of judgment and decree dated 01.04.2013 passed in O.S.No.1724/2009. On the other hand, if petitioner by ignoring the said judgment and decree is willing to offer his land for the purpose of acquisition, then he is at liberty to make a representation to respondents offering scheduled property for acquisition. So long as judgment and decree in O.S.No.1724/2009 dated 01.04.2013 is in operation, there cannot be any threat to the scheduled property nor can any direction be issued to respondents to initiate acquisition. It is for petitioner to bypass judgment

and decree passed by Civil Court and offer the scheduled property for acquisition, in which case, he is at liberty to make a representation to that effect to respondent authorities.

Reserving the aforesaid liberty to petitioner as also reserving liberty to petitioner to execute judgment and decree dated 01.04.2013 in case there is any threat to the scheduled property from respondents or their agents, writ petition is dismissed"

4. It is undisputed that the preliminary

notification refers to 1834.50 square feet in CTS No.629

and the final notification refers to CTS No.16/629

(instead of CTS No.629 mentioned in the preliminary

notification) and in addition, the final notification refers

to the Municipal Nos.304/1, 304/1-1 and 319. It is

undisputed that the petitioner's name is not mentioned

either in the preliminary notification or in the final

notification.

5. The petitioner, who purchased the subject

property viz., the property bearing municipal No.304/3

under the Sale Deed dated 24.01.1998, has addressed,

as is obvious, on his own volition a letter dated

15.12.2008 to the KIADB stating that he had learnt

certain adjacent lands are being acquired and he had

not received any information. The petitioner has also

submitted all the documents requesting for information,

including the information on the compensation that

would be payable to the land losers.

6. It is after this letter dated 15.12.2008, the

petitioner has commenced the aforesaid suit in

O.S.No.1724/2009. At this stage, it must be mentioned

that the KIADB has issued Corrigendum Notice dated

27.08.2012, and this perhaps is consequent to the

orders of this Court in the writ petition filed by the

owners of one of the properties adjacent to the subject

property in W.P. No. 31542/2010, which is disposed of

on 15.06.2021. Though there is no change in the name

of the khatedars, the municipal numbers as mentioned

in the final notification are changed inasmuch as

Municipal Nos.304/2 and 304/3 are included. This

Court must also observe that this change vide the

Corrigendum Notice dated 27.08.2012 is without

change in the total extent acquired viz., 1834.50 square

meters. According to the documents relied upon by the

KIADB and the beneficiary, which includes certain

sketches that are not disputed by the petitioner, this

Corrigendum Notice dated 27.08.2012 brings the

subject property within the fold of acquisition. The

petitioner's property i.e., the subject property bears

Municipal No. 304/3.

7. Sri S.V.Bhat, learned counsel for the

petitioner, submits that KIADB cannot rely either on the

preliminary/final notifications or the Corrigendum

Notice issued on 27.08.2012 to contend that the subject

property is acquired and therefore, the impugned notice

under Section 28(6) of the Act is justified. Sri. S V Bhat,

while emphasizing that the Corrigendum Notice dated

27.08.2012 does not include the petitioner's name and

that no acquisition proceedings are initiated after

disposal of this Court's order in W.P.No.58775/2014,

submits that the petitioner has always endeavored to

understand whether the subject property is part of the

acquisition proceedings.

8. On the other hand, Sri R.V.Naik, learned

Senior Counsel, who appears for the beneficiary and Sri

B.B.Patil, learned counsel for the KIADB, point out that

the petitioner has secured the revenue entries for the

subject property only after the preliminary/final

notifications. The petitioner therefore, cannot contend

that the notifications/corrigendum notice would be

defective insofar as the subject property. They also

submit that even prior to the Corrigendum Notice dated

27.08.2012, notices under Sections 9 and 10 of the

Land Acquisition Act, 1894 are issued and the petitioner

has acknowledged the same. As such, the petitioner

cannot deny knowledge of the acquisition of the subject

property under the present acquisition proceedings, and

the petitioner also cannot contest the impugned notice

under Section 28(6) of the KIAD Act on the ground that

he had no notice of the acquisition. However, both the

learned counsel for the petitioner and the learned

Senior Counsel, as also the learned counsel for the

KIADB, do not dispute that after the Corrigendum

Notice dated 27.08.2012, the petitioner has not been

issued with any notice.

9. The petitioner, even as mentioned in his

letter dated 15.12.2008, was keen on knowing the

quantum of compensation that would be paid to him if

the subject property was acquired, and this is also seen

in the submission before this Court in WP

No.58775/2014 which becomes the basis for final

disposal with liberty to the petitioner to make a

representation for acquisition of the subject property.

Sri S.V.Bhat also submits that the petitioner has

always endeavored to understand whether the subject

property is part of the acquisition proceedings because

that would be material insofar as the compensation that

would be payable by the respondents. It follows from

this statement that the petitioner does not contest that

the respondent must have the benefit of use of the

subject property pursuant to the present acquisition

proceedings and consequential payment of the

compensation, and when this is put to Sri. S V Bhat,

the learned counsel for the petitioner, he does not

contest the same.

10. Therefore, the questions to be considered for

the disposal of this petition would be: whether the

petitioner would be entitled for compensation upon

yielding the subject property to the respondents' use

pursuant to the acquisition proceedings, and if the

petitioner is entitled to compensation, the manner in

which the compensation has to be computed because it

is admitted that insofar as the subject property, neither

proceeding under Section 29(2) nor 29(3) of the KIAD

Act is completed.

11. It cannot be gainsaid that no property can be

utilised by any instrumentality of the State, or the

beneficiary under such instrumentality, without paying

just compensation. Therefore, the first question does

not require any dilation and must be held in favour of

the petitioner. Insofar as the other question, what

stands out, and which is recorded above, is that the

authorities have admittedly not initiated proceedings

insofar either under Section 29(2) or 29(3) of KIAD Act

as regards the subject property. Admittedly, the

possession of the subject property continues to be with

the petitioner who also has the benefit of the interim

order apart from the decree in O.S.No.1724/2009.

12. Therefore, the KIADB, even before it can take

possession of the subject property in view of this Court's

finding that the petitioner is willing to yield possession

of the subject property pursuant to the acquisition

proceedings, must necessarily conduct appropriate

enquiry to decide whether there could be consensus

under Section 29(2) of the KIAD Act, and if consensus is

not achieved, then to pass general award as

contemplated under Section 29(3). The petitioner must

be at liberty, both during the proceedings under Section

29(2) and proceedings consequent to an award under

Section 29(3) of the KIAD Act, to contend that the

compensation must be determined on the basis of the

market value of the subject property either as of the

date of consent award or the date of delivery of

possession.

13. It must immediately be observed that the

petitioner's claim in this regard should be necessarily

considered by the concerned KIADB in the light of its

own stand that the property is indisputably brought

into the fold of acquisition by issuance of the

Corrigendum on 27.8.2012. It must also be observed

that if the date of corrigendum viz., 27.8.2012 is taken

as relevant date for the purposes of the market value,

the petitioner would undoubtedly be entitled for interest

as permissible in law, and if any other date is taken as

relevant date for the purpose of market value, interest

would only be computed from such date. However, the

rival claims in this regard must be considered at the

appropriate stage after due opportunities to the

petitioner.

In the light of the foregoing, the following:

ORDER

The petition stands disposed of. It is recorded

that the petitioner is willing to surrender possession of

the subject property in favour of the respondents

pursuant to the subject notifications issued under

Section 28(1) and 28(4) of the KIAD Act and the

subsequent Corrigendum dated 27.08.2012, and

consequentially the respondents will be entitled to

utilise the subject property subject to the following

conditions:

(i) The petitioner shall file a

representation enclosing a certified copy of

this order with the Special Land Acquisition

Officer, KIADB for holding an enquiry for

achieving consensus as contemplated under

Section 29(2) of KIAD Act and if the

consensus is not achieved for any reason

even after due process, the Special Land

Acquisition Officer, KIADB will be at liberty

to pass necessary orders under Section 29(3)

of the KIAD Act within eight [8] weeks from

the date of receipt of certified copy of this

order.

ii) If consensus is not achieved and

general award is passed under Section 29(3)

of the KIAD Act, the respondents shall

ensure that the amount, according to such

award, is deposited at the earliest, and the

respondents shall be at liberty to take

possession of the subject property only upon

tender of such determined amount to the

petitioner or deposit of the same and not

otherwise;

(iii) It would be needless to observe that if

the petitioner is aggrieved by the

determination under Section 29(3) of the

KIAD Act, he would be at liberty to avail

other statutory remedy as permissible in law

and it is made clear that this Court has not

observed on the relevant date to decide the

market value of the subject property and

that must be decided at the appropriate

stage by the concerned in the light of the

rival submissions.

Sd/-

JUDGE

SA/-

Ct:sr