Karnataka High Court

The Town Panchayat vs Sri Krishnappa on 7 November, 2022

Bench: Alok Aradhe, S Vishwajith Shetty

                             1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF NOVEMBER 2022

                       PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

     THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

            W.A. No.1006 OF 2014 (LA-RES)

BETWEEN:

THE TOWN PANCHAYAT
KORATAGERE TOWN
TUMKUR DISTRICT-572129
REPRESENTED BY ITS CHIEF OFFICER.
                                    ... APPELLANT
(BY MR. A. NAGARAJAPPA, ADV.,)

AND:

1.    SRI. KRISHNAPPA
      S/O CHOWDAIAH
      AGED ABOUT 55 YEARS.

2.    SRI. CHANDRAPPA
      S/O CHOWDAIAH
      AGED ABOUT 50 YEARS.

3.    SRI. JAYARAM
      S/O CHOWDAPPA
      AGED ABOUT 47 YEARS.

4.    RAMACHANDRA
      S/O CHOWDAIAH
      AGED ABOUT 44 YEARS.
                              2



     ALL ARE RESIDENT OF
     GANESHA TEMPLE STREET
     KORATAGERE
     TUMKUR DISTRICT-572101.

5.   THE STATE OF KARNATAKA
     REPRESENTED BY ITS SECRETARY
     DEPARTMENT OF REVENUE
     VIDHANA SOUDHA
     BANGALORE-560001.

6.   THE DEPUTY COMMISSIONER
     TUMKUR DISTRICT
     TUMKUR-572101.

7.   THE ASSISTANT COMMISSIONER
     & SPECIAL LAND ACQUISITION OFFICER
     MADHUGIRI SUB DIVISION
     MADHUGIRI, TUMKUR DISTRICT-572101.

                                          ... RESPONDENTS

(BY MR. M.R. RAJAGOPAL, SR. COUNSEL FOR
    MR. H.N. BASAVARAJU, ADV., FOR R1-R4
  MRS. NAMITHA MAHESH B.G. AGA A/W
   MR. B. RAJENDRA PRASAD, HCGP FOR R5-R7)

                            ---

     THIS   WRIT   APPEAL    IS   FILED   U/S   4   OF   THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION 5417-5420/2009
C/W 17517/2009 DATED 05/12/2013.


     THIS W.A. COMING ON FOR FINAL HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
                             3



                      JUDGMENT

This intra court appeal takes an exception to

order dated 05.12.2013 passed in writ petition

Nos.5417-5420/2009 and writ petition

No.17517/2009, by which the petition preferred by

respondent in which challenge was made to the

proceedings under the Land Acquisition Act, 1894

(hereinafter referred to as 'the Act' for short) has been

allowed.

2. Facts giving rise to filing of this appeal

briefly stated are that land bearing survey number 64

situated at Koratagere Town Kasaba, Tumkur District

was an Inam land (hereinafter referred to as the

'[schedule land' for short) was governed by the

provisions of Religious and Charitable Inams Abolition

Act, 1955. The father of respondent was a permanent

tenant in respect of aforesaid land who was granted

occupancy rights in respect of schedule land

measuring 17 acres and 10 guntas.

3. The appellant is the town Panchayat

constituted under the provisions of Karnataka

Municipalities Act, 1964. The Panchayat was in need

of schedule land as well as land measuring 7 acres of

Survey No.64 for the purposes of Solid Waste

Management at Koratagere Town. Thereupon,

proceeding under the Act were set in motion. A

Notification under Section 4(1) invoking urgency

provision under Section 17(1) of the Act was issued on

09.12.2004, by which land measuring 3.03 acres was

notified for acquisition.

4. The aforesaid notification was published in

the Gazette on 30.12.2004, whereas, the same was

published in newspaper on 17.12.2004 . Even though

the urgency provision under Section 17(1) of the Act

was invoked, after a period of 14 months, final

notification under section 6 of the Act was issued on

16.02.2006. Thereafter, the possession of the

schedule land was taken on 09.11.2006 and an award

was passed in respect of schedule land on

21.06.2008.

5. Land measuring 7 acres of Sy.No.64 was

also required by the appellant for Solid Waste

Management at Koratagere Town. Therefore, a

preliminary notification under Section 4(1) read with

Section 17 of the Act was issued on 01.10.2005. After

a period of 9 months, notification under Section 6(1)

of the Act was issued on 14.07.2006 and an award

was passed on 14.11.2008.

6. The validity of the aforesaid notification

was assailed by the respondents in a writ petition. The

learned Single Judge by an order dated 05.12.2013

inter alia held that in the facts and circumstances of

the case, there was no justification for invocation of

the provisions of Section 17 of the Act. It was further

held that since, an award has been passed beyond a

period of two years from the date of publication of

declaration under Section 6 of the Act, the same has

lapsed under Section 11A of the Act. Accordingly, the

proceedings for acquisition of the land initiated by the

State Government were quashed. In the aforesaid

factual background, this appeal has been filed.

7. Learned counsel for the appellant

submitted that even though the award has been

passed beyond a period of two years from the date of

publication of declaration under Section 6 of the Act,

yet 80% of the amount of compensation a required to

be tendered as per Section 17(3A) of the Act was

tendered before taking possession of the lands.

Therefore, the provision of Section 11A of the Act are

not attracted to the fact situation of the case. It is

further submitted that since, the land was required

for public purpose urgently i.e., for the purpose of

Solid Waste Management at Koratagere Town.

Therefore, the State Government was justified in

invoking the provisions of Section 17 of the Act. It is

however submitted that the appellant does not

require the land measuring 7 acres. In support of the

submission that the provisions of Section 11A of the

Act are not applicable to the fact situation of the case,

reliance has been placed on decision of the Supreme

Court rendered in 'DELHI AIR TECH SERVICES

PRIVATE LIMITED AND ANOTHER VS. STATE OF

U.P. AND ANR.', 2022 SCC ONLINE SC 1408.

8. On the other hand, learned Senior counsel

for the respondent submitted that learned Single

Judge has correctly concluded that the action of the

State Government in invoking the provisions under

Section 17 of the Act is not justified in law. It is

further submitted that learned Single judge has

rightly held that the proceeding for acquisition of the

land has lapsed under Section 11A of the Act. In

support of aforesaid submission has placed reliance

on decision of the Hon'ble Supreme Court in 'UNION

OF INDIA AND OTHERS VS. SHIV RAJ AND

OTHERS', (2014) 6 SCC 564, 'DEVENDRA KUMAR

TYAGI AND OTHERS VS. STATE OF UTTAR

PRADESH AND OTHERS', (2011) 9 SCC 164,

'DEVENDRA SINGH AND OTHERS VS. STATE OF

UTTARPRADESH AND OTHERS', (2011) 9 SCC 551

and 'RADHY SHYAM (DEAD) THROUGH LRS AND

OTHERS VS. STATE OF UTTAR PRADESH AND

OTHERS', (2011) 5 SCC 553.

9. On the other hand, learned Additional

Government Advocate on perusal of the record fairly

stated that 80% of the amount of compensation,

which is required to be tendered in terms of Section

17(3A) of the Act has not been tendered.

10. We have considered the submissions made

on both sides and have perused the records. Twin

issues arise for consideration in this appeal Firstly

whether the proceeding has lapsed in view of Section

11 of the Act, and secondly, whether the State

Government was justified in invoking the urgency

provisions under Section 17 of the Act.

     11. The      Hon'ble       Supreme    Court     in

'HINDUSTAN      PETROLEUM        CORPN.    LTD.    VS.

DARIUS CHENAI', (2005) 7 SCC 627 held that in

view of Article 300-A of the Constitution of India, the

State in exercise of power of eminent domain may

interfere with the right of the property of a person by

acquiring the same but the same must be for a public

purpose and reasonable compensation therefor must

be paid. In 'N.PADMAMMA VS. S.RAMAKRISHNA

REDDY', (2008) 15 SCC 517, it was held that right to

hold the property is a human right as also a

constitutional right and the same cannot be taken

away except in accordance with law. Article 300-A of

the Constitution of India protects the right to hold the

property. Similar view was taken in 'DELHI AIR TECH

SERVICES (P.) LTD. VS. STATE OF U.P.', (2011) 9

SCC 354. The aforesaid principles were reiterated

with approval in VIDYA DEVI VS. STATE OF

HIMACHAL PRADESH', (2020) 2 SCC 569.

12. Section 11A as well as Section 17(3A) of the

Act which are relevant for the purpose of controversy

involved in this appeal are extracted below for the

facility of reference:

11A Period within which an award shall be made. --

(1) The Collector shall make an award under section 11 within a period of

two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

     17    Special   powers    in    cases   of
urgency.

(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3),--

(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and

(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2),

and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the

payment of compensation under that section.

13. Thus, from perusal of Section 11A of the

Act, it is evident that in case, an award is not passed

within a period of two years from the date of

publication of declaration, the entire proceedings for

acquisition of the land shall lapse. Section 17(3A) of

the Act provides that before taking possession of the

land under sub-section (1) or sub-section (2), the

Collector shall, without prejudice to the provisions of

sub-section (3), tender payment of eighty per centum

of the compensation for such land as estimated by

him to the persons interested entitled thereto. A three

judge bench of Hon'ble Supreme Court in DELHI

AIRTECH SERVICES PRIVATE LIMITED AND

ANOTHER supra, has held as follows:

26. In the result, we pass the following order:

      (i)      The    provision         contained      in
Section      11A     of   Act,        1894   shall    be

applicable to cases in which the acquiring authority has not complied with the requirement of sub-section (3A) to Section 17 of Act, 1894 by tendering and paying eighty per centum of the estimated compensation before taking possession since possession in such cases cannot be considered to be taken in accordance with law and the vesting is not absolute.

(ii) If the requirement is complied and possession is taken after tendering and paying eighty per centum, though there is need to pass an award any pay the balance compensation within a reasonable time, the rigour of Section 11A of Act, 1894 will not apply so as to render the entire proceedings for acquisition to lapse in the context of absolute vesting. The right of land loser in such case is to enforce passing of the award and recover the compensation.

14. We have perused the record. Admittedly, in

the instant case, the collector has not tendered 80% of

the amount of compensation before taking the

possession of the land in question i.e., on or before

09.11.2006. Therefore, in view of the law laid down by

three-judge bench of Hon'ble Supreme Court in

DELHI AIRTECH SERVICES PRIVATE LIMITED

(SUPRA), the provisions of Section 11A of the Act

apply to the fact situation of the case. The notification

in respect of acquisition of land measuring 3.03 acres

has been issued on 09.12.2004. The final notification

was issued on 16.02.2006 and the award was passed

beyond a period of 2 years i.e., on 21.06.2008.

Therefore, the learned Single Judge has rightly

concluded that the proceedings in respect of land

measuring 3.03 acres of survey number 64 situated at

Koratagere Town Kasaba, Tumkur District have

lapsed under Section 11 of the Act. As far as the

dispute pertaining to 7 acres of land of Sy.No.64 is

concerned. The Hon'ble Supreme Court in 'HAMID ALI

KHAN (D) THROUGH LRS AND ANOTHER VS. STATE

OF U.P. AND OTHERS', (2021) SCC ONLINE SC

1115 referred to with approval the principles laid

down in Radhy Shyam's case supra has dealt with

the scope and ambit of the exercise of powers under

Section 17 of the Act. Para 77 of the decision rendered

Radhy Shyam's case supra reads as under:

77. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out:

(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on

account of public exigency and for public good. - Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat (1995) Supp. (1) SCC 596.

(ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly - DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria (2003) 7 SCC 336 and Dev Sharan v. State of U.P., Civil Appeal No.2334 of 2011 decided on 7.3.2011.

(iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that

compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter.

(iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with

the requirement of hearing the land owner or other interested persons.

(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.

(vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the

private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records.

(vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5- A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word "may" in sub- section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub- section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).

(viii) The acquisition of land for residential, commercial, industrial or

institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Section 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years.

Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Section 5-A (1) and (2) is not at all warranted in such matters.

(ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon

the legality of such acquisition.

15. In the instant case, the notification under

Section 4(1) read with Section 17(1) of the Act was

issued on 09.12.2004. If there was really an urgency

in acquisition of the land, the appellant ought to have

acted with quite promptitude. However, final

notification under Section 6 of the Act was issued

after a period of 14 months on 16.02.2006 and

thereafter, nearly after a period of approximately 9

months, the possession of the land in question was

taken. Therefore, it is evident that there was no

urgency in acquisition of the land in question and the