Shri Ramesh B Ramanagoudar S/O ... vs The State Of Karnataka
2023 Latest Caselaw 5597 Kant

                                                1


                                IN THE HIGH COURT OF KARNATAKA
                                        DHARWAD BENCH

                             DATED THIS THE 16TH DAY OF AUGUST, 2023

                                             BEFORE

                      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                       WRIT PETITION NO. 101468 OF 2023 (LA-KIADB)

                      BETWEEN:

                      1. SHRI.RAMESH.B.RAMANAGOUDAR
                      S/O BASANAGOUDA RAMANAGOUDAR,
YASHAVANT
                      AGE: 40 YEARS, OCC: AGRICULTURE,
NARAYANKAR            R/O: BELUR-580011, DHARWAD,
Digitally signed by
                      TQ & DIST: DHARWAD.
YASHAVANT
NARAYANKAR
Location: DHARWAD
Date: 2023.08.21
16:09:05 -0700
                      2. SHRI.RAKESH.B.RAMANAGOUDAR
                      S/O BASANAGOUDA RAMANAGOUDAR,
                      AGE: 39 YEARS, OCC: AGRICULTURE,
                      R/O: BELUR-580011, DHARWAD,
                      TQ & DIST: DHARWAD.
                                                           ...PETITIONERS

                      (BY SRI.ANIL KALE, ADVOCATE)

                      AND:

                      1. THE STATE OF KARNATAKA,
                      R/BY THE SECRETARY,
                      DEPARTMENT OF COMMERCE AND INDUSTRIES,
                      BENGALURU-560001

                      2. THE COMMISSIONER
                      KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD,
                      BENGALURU-560001.
                          2


3. THE SPECIAL LAND ACQUISITION OFFICER,
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD,
KIADB LAKAMANHALLI, DHARWAD-580001.

4. THE KARNATAKA INDUSTRIAL AREA DEVELOPMENT
BOARD, R/BY ITS MANAGING DIRECTOR,
NO.49, EAST WING, KHANIJA BHAVANA,
BENGALURU-560001.

5. THE DEPUTY COMMISSIONER,
D.C.COMPOUND, DHARWAD-580001.

6. THE SPECIAL DEPUTY COMMISSIONER
THE KARNATAKA INDUSTRIAL AREA DEVELOPMENT
BOARD, NO.49, EAST WING, KHANIJA BHAVANA,
BENGALURU-560001.
                                     ...RESPONDENTS
(BY SRI.VINAYAKA.V.S, HCGP FOR R1 & 5;
SRI.PAVAN.B.DODDATTI, ADVOCATE FOR R2, 3, 4 & 6 (VK
NOT FILED TO R2, 4 & 6)

     THIS PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECTING THE RESPONDENT NO.3 TO PASS AN AWARD
IN RESPECT OF THE LAND IN R.S.NO.618/1 OF KOTUR
VILLAGE TO AN EXTENT OF 8 ACRES 11 GUNTAS UNDER
THE PROVISIONS OF THE RIGHT TO FAIR COMPENSATION
AND TRANSPARENCY IN THE LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT ACT, 2013 AND
KARNATAKA     INDUSTRIAL     AREA    DEVELOPMENT
(AMENDMENT) ACT, 2022 AND ETC.,

     THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
                              3


                          ORDER

The captioned petition is filed by the land losers

feeling aggrieved by the inaction on the part of

respondents in not passing award for having acquired

the land bearing Survey No.618/1 measuring 8 acres

11 guntas.

2. The facts leading to the case are as under:

The petitioners are owners of the land bearing

Sy.No.618/1 measuring 8 acres 11 guntas which is

acquired by the second respondent-Board through

notification issued under Section 28(1) of the

Karnataka Industrial Area Development Board Act,

1966 (for short ' 1966 Act') on 11.12.2009 and final

notification under Section 28(4) was issued as

21.1.2016. The respondent - authorities formed

Committee to determine the price of the land under

Section 29(2) of the 1966 Act. The petitioners are not

willing to accept the price fixed by the Committee and

therefore, the Deputy Commissioner informed the

Committee that where the land owners have not

consented for the price fixed by the Committee, a

general award would be passed. Though these

proceedings are dated 29.12.2016, respondent No.3

has failed to pass the award and determine the

compensation for having acquired the lands of the

petitioners. It is the further case of the petitioners

that the Special Deputy Commissioner, Karnataka

Industrial Area Development Board has recommended

for fixation of revised price in terms of the resolution

of the Board dated 19.09.2020.

3. Feeling aggrieved by the inaction of the

respondent-authorities in not passing award, the

petitioners approached this Court and this Court

allowed the writ petition filed in W.P.103116/2021 and

a direction was issued to consider the representation

submitted by the petitioners and pass general award.

The petitioners' claim that they are entitled for

compensation in terms of The Right To Fair

Compensation and Transparency In The Land

Acquisition, Rehabilitation And Settlement Act, 2013

(for short "2013 Act"). Therefore, feeling aggrieved

by the non passing of the award by the third

respondent, the petitioners have again knocked the

doors of the writ Court.

4. On receipt of notice, statement of

objections is filed by respondents 3, 4 and 6 wherein

they have seriously contested the claim of the

petitioners in regard to their entitlement under the

provisions of 2013 Act. The said Respondents contend

that though an amendment is brought to the 1966 Act

thereby making the provisions of 2013 Act applicable,

the said amendment is prospective in nature and

therefore, respondents' claim that compensation has

to be determined under 1966 Act and not under 2013

Act. The respondents have further contended that

respondent No.5 has already passed an award on

17.2.2022 thereby fixing the compensation in terms

of Section 29(2) of the Act and there is no scope for

reconsideration. The respondents have also placed

reliance on Annexure-C to the writ petition and a

contention is taken that the Committee has already

fixed the price at Rs.30 lakhs per acre and a notice is

issued by respondent No.3 on 11.1.2018 and the

petitioners on receipt of notice have not furnished the

documents to enable the authority to pay the

compensation under consent agreement.

5. The learned counsel appearing for the

petitioners reiterating the contentions urged in the

petition has placed reliance on the judgment rendered

by the Co-Ordinate Bench in W.P.105294/2022

directing the respondents-authorities to pass an award

in terms of the 2013 Act. The Co-Ordinate Bench

held that where an award pursuant to Section 28(4)

notification are not made as on 1.1.2014, the third

respondent is under an obligation to pass an award

under 2013 Act, even though the preliminary

notification under Sec 28(1) and final notification

under Section 28(4) are issued prior to the enactment

of 2013 Act. Learned counsel has also placed

reliance on the judgment rendered by the Co-Ordinate

Bench in W.P.No.61426/2016 wherein the Co-Ordinate

Bench while taking cognizance of enormity of delay

and callousness on the part of the authorities in

unjustifiably withholding the payment of compensation

issued direction to the authorities to determine

compensation in terms of Section 77 of the 2013 Act.

6. Pet contra, learned counsel appearing for

respondent reiterating the defence raised in the

statement of objections would vehemently argue and

contend that petitioners' cannot insist to determine

compensation under the 2013 Act placing reliance on

the judgment rendered by the Co-Ordinate Bench in

W.P.No.40748/2012. He would contend that the 2022

amendment incorporated to 1966 Act is prospective in

operation and therefore, he would contend that the

compensation has to be determined under 1966 Act in

terms of the provisions of Land Acquisition Act, 1894.

He would further contend that the delay in issuing

final notification was on account of Loksabha elections

as well as on account of transfer of officials of

respondent-Board. Referring to Annxures-R3 and R4,

he would contend that respondent-authorities have

already sent a communication to appear before the

Committee for determination of compensation to be

paid to the owners in terms of Section 29(2) of the

1966 Act. The counsel for respondents would

contend that third respondent has issued a notice

calling upon the petitioners to furnish the documents

in order to pay compensation under consent

agreement. On these set of grounds, he would submit

that the writ petition is liable to be dismissed.

7. Heard the learned counsel appearing for

the petitioners, learned HCGP appearing for

respondents 1 & 5 and the learned counsel appearing

for respondents 2, 3, 4 & 6.

8. The question that needs consideration at

the hands of this Court is:

"Whether the petitioners-land owners are entitled for compensation in terms of 2013 Act?"

9. In the present case on hand, it is not in

dispute that the land which is the subject-matter of

the petition was acquired on 11.12.2009 and final

notification under Section 28(4) was published on

21.1.2016. The Co-Ordinate Bench of this Court in

batch of writ petitions placing reliance on the law laid

down by the Apex Court in the case of Indore

Development Authority .vs. Manoharlal and

others1 has held that if award is not made as on

1.1.2014 (i.e. commencement of 2013 Act) the

compensation would have to be necessarily

determined under the provisions of 2013 Act.

10. In the light of the discussions made supra

what emerges is that respondent No.3 has failed to

determine the compensation pursuant to issuance of

final notification under Section 28(4) of 1966 Act.

Once a final notification is issued, the acquiring

authority is bound to pass an award. The Apex Court

in catena of judgments has held that award of Land

Acquisition Officer is nothing more than an offer. It is

open to the person whose lands are being acquired to

(2020) 8 SCC 129

accept that offer or he may not accept that offer and

claim a reference to the Court. Therefore, respondent

No.3 cannot insist and compel the land losers to

accept the price fixed by the Committee by not

passing an award since 2016. The land losers are left

remediless. If the State utilizes land owned by a

farmer, more particularly, when the acquired lands are

used by farmers for agricultural purpose and not

paying them adequate compensation would also be

violation of their rights to livelihood which is an

integral fundamental right of Article 21. Therefore, I

am of the view that the writ petition needs to be

allowed by imposing exemplary cost on the State.

Respondent No.3 in terms of Section 29(3) of 1966

Act is bound to pass an award, if the land loser does

not consent and accepts the offer made by respondent

No.3 acquiring authority through its Committee

wherein the price of the lands acquired is fixed. The

lands are acquired in 2009 and we are in 2023.

Therefore, there is total inaction on the part of

respondents in not taking the process of acquisition

and further in concluding it in terms of the provisions

of the 1966 Act.

11. The Apex Court in the case of Kalyani

through L.Rs. of Sultan Batheri Municipality held

that action of respondents of acquiring the property of

the farmers without paying any compensation was

arbitrary, unreasonable and clearly violation of Article

300A of the Constitution. The Apex Court while

relying on the judgment in K.T. Plantation Pvt. Ltd

and others vs. State of Karnataka has observed

that under the mandate of Article 300A, the State can

only deprive a person the right to property, if the

same is for public purpose and the right to

compensation is fulfilled thereby reiterating that the

right to compensation is an inbuilt part of Article

300A.

12. The question as to whether petitioner is

entitled for determination of compensation in terms of

1966 Act or in terms of 2013 Act is seized before the

Division Bench in W.A.Nos.100393/2022 and

1110/2022. In an identical case, the Co-Ordinate

Bench in W.P.40748/2012 has provided protection to

the land losers. The Co-Ordinate Bench has held that

the compensation has to determined under Section 30

of 1966 Act, which incorporated the provisions of 1894

Act. However, while recording the said finding the

Co-ordinate Bench held that in the event the challenge

to the Co-Ordinate Bench judgment fails, the land

losers in the said petition would be entitled to re-

determination of compensation under 2013 Act. The

judgment rendered by the Co-Ordinate Bench in

holding that if award is not passed as on 1.1.2014,

then the land losers are entitled for compensation

under the amended provisions of 2013 Act is seized

before the Division Bench.

13. In the present case on hand, respondent

No.3-authority is yet to pass an award. As of now,

there is no award in the present case on hand. It

would be useful to refer to the two endorsement dated

14.12.2016 and 11.1.2018 issued by the authorities.

The same are culled out as under:

"Endorsement dated: 14-12-2016

zsÁgÀªÁqsÀ f¯Éè, zsÁgÀªÁqÀ vÁ®ÆQ£À PÉÆÃlÄgÀÄ ªÀÄvÀÄÛ ¨ÉîÆgÀ UÁæªÀÄzÀ°è PÉÊUÁjPÁ ¥ÀæzÉñÀ ¸ÁÜ¥À£ÉUÁV MlÄÖ 594J-36UÀÄ-08DJPÀgÉ d«ÄãÀÄUÀ¼À£ÀÄß ¨sÀƸÁé¢üãÀ¥Àr¹zÀPÉÆAqÀ ¥ÀæPÀgÀtzÀ°è d«Ää£À ¨sÀƨɯÉAiÀÄ£ÀÄß M¥ÀàAzÀzÀ PÀgÁj£Àr ¤zsÀðj¸ÀĪÀ PÀÄjvÀÄ PÀ£ÁðlPÀ PÉÊUÁjPÁ ¥ÀæzÉñÁ©üªÀÈ¢Þ PÁAiÉÄÝ 1966gÀ PÀ®A 29(2) gÀ£ÀéAiÀÄ ªÀiÁ£Àå f¯Áè¢üPÁjUÀ¼ÀÄ, zsÁgÀªÁqÀ EªÀgÀ CzsÀåPÀëvÉAiÀÄ°è ºÁUÀÆ CªÀgÀ ¸ÀÆZÀ£ÉAiÀÄ ªÉÄÃgÉUÉ ¸À¨sÉAiÀÄ£ÀÄß ¢£ÁAPÀ: 29-12-2016 gÀAzÀÄ ªÀÄÄAeÁ£É 11-00 WÀAmÉUÉ f¯Áè ¥ÀAZÁAiÀÄvÀ ¸À¨Ás AUÀt, zsÁgÀªÁqÀzÀ°è ¤UÀ¢üUÉƽ¸À¯ÁVgÀÄvÀÛzÉ PÁgÀt CAzÀÄ vÁªÀÅ ¸ÀÆPÀÛ zÁR¯ÉUÀ¼ÉÆA¢UÉ ¸ÀzÀj ¸À¨sÉAiÀÄ°è RÄzÁÝV ºÁdgÁV, ¨sÆ À ¨É¯É ¤UÀ¢ü¥Àr¸À®Ä ¸ÀºÀPÀj¸À¨ÉÃPÁV PÉÆÃjzÉ.

Endorsement dated: 11-01-2018

PÀ£ÁðlPÀ PÉÊUÁjPÁ ¥ÀæzÉñÁ©üªÀÈ¢Þ ªÀÄAqÀ½, ¨ÉAUÀ¼ÀÆgÀÄ EªÀgÀ CzÉñÀzÀ ¥ÀæPÁgÀ F PɼÀPÀAqÀ ¨sÀƸÁé¢üãÀ ¥Àr¹zÀ d«ÄäUÉ JPÀgÉ MAzÀPÉÌ gÀÆ.30.00 ®PÀëzÀAvÉ ¨sÀƨɯÉAiÀÄ£ÀÄß PÀ®A 29(2)gÀr M¥ÀàAqÀ PÀgÁj£Àr ¤UÀ¢¥Àr¸À¯ÁVzÉ. DzÀÄzÀjAzÀ ¸Áé¢üãÀPÉÆ̼À¥Àr¹ ¤ªÀÄä ºÀQÌUÉƼÀ¥ÀlÖ zsÁgÀªÁqÀ f¯Éè, zsÁgÀªÁqÀ vÁ®ÆPÀÄ PÉÆÃlÆgÀÄ UÁæªÀÄzÀ ¸ÀªÉð £ÀA.618/1 ¨ÁèPÀ PÉëÃvÀæ 8-07 JPÀgÉ d«ÄäUÉ M¥ÀàAzÀzÀ PÀgÁj£Àr ¥ÀjºÁgÀzsÀ£ÀªÀ£ÀÄß ¥ÁªÀw¸ÀĪÀ PÀÄjvÀÄ F PɼÀV£À zÁR¯ÉUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹, ¨sÀÆ¥ÀjºÁgÀ ºÀt ¥ÀqÉAiÀÄ®Ä w½¹zÉ.

14. The question that needs consideration at

the hands of this Court is as to whether respondent

No.3 can compel the present petitioners to receive

compensation in terms of Section 29(2) of 1966 Act.

Sub-clause (2) of Section 29 of 1966 Act contemplates

payment of compensation by an agreement. If there

is no agreement, respondent No.3 is bound to adopt

the procedure enumerated under Sub-clause (3) of

Section 29 of 1966 Act. The State Government is

under the bounden duty to refer the case to the

Deputy Commissioner for determination of the amount

of compensation to be paid. The final notification

thereby acquiring the petitioners' land is dated

29.12.2016. We are in 2023. The respondents

having expropriated the private land are bound to

pass an award and therefore, they cannot insist the

petitioners-land owners to accept the compensation in

terms of the price fixed by the Committee. The

material on record clearly demonstrates that

petitioners are disputing the price fixed by the

Committee. The Apex Court in catena of judgments

has held that no land can be acquired without any

compensation.

     15.    As     regards        to     Article     31(2)        of     the

Constitution,     it   is    said      that    it   deals    with        the

fundamental       right      regarding        property       which        is

expressed in the clause in negative language. The

provisions of article 31(4) and 31-A and 31-B, though

they deprive the expropriated proprietor of his rights

provided under (Part-III) of the Constitution, however,

they do not in any way affect the ambit of entry 36

and empower the State Legislature to make a law for

compulsory acquisition of property without payment of

compensation. In the true sense of the term,

emphasis is laid on the words "subject to the

provisions of entry 42" contained in entry 36 and it is

contended that exercise of legislative power under

entry 36 is conditional on exercise of power under

entry 42, that one could not be exercised without the

other, and the power, conferred by the two entries

had to be construed on the assumption that the

acquisition was to be paid for. The incident of the

deprivation of property within the meaning of article

300-A of the Constitution, normally occurred, mostly

in the context of public purpose. Clearly, any law,

which deprive the person of his private property will

be amenable to judicial review. In the last 60 years,

though the concept of public purpose has been given

quite a wide interpretation, nevertheless, the public

purpose remains the most important condition in

order to invoke article 300-A of the Constitution. The

word property used in article 300-A must be

understood in the context in which the

sovereign power of eminent domain is exercised by

the state and property expropriated. No abstract

principles could be laid. The phrase deprivation of the

property of a person must equally be considered in

the fact situation of a case. Deprivation connotes

different concepts. Article 300A gets attracted to an

acquisition or taking possession of private property by

necessary applications for public purpose. It is

inherent in every sovereign state, by exercising its

power of eminent domain to expropriate private

property without owners consent. The question then is

whether the owner of the property is entitled to

compensation that is just, equal and or

indemnification to the owner of the property

expropriated. It is common knowledge that when

state exercises its executive power to acquire private

property, it is under the land acquisition Act 1894 or

similar state laws. Acquisition being for public

purpose, payment of compensation at the prevailing

market value as on the date of notification published

in the official gazette, is the sine qua non.

16. All modern constitutions of democratic

character provide payment of compensation as

condition to exercise the right of expropriation.

Commonwealth of Australia act, a French civil code,

the fifth amendment of Constitution of USA and Italian

Constitution, provided principles of just terms, just

indemnity, just compensation as reimbursement for

the property taken, have been provided for.

In the present case on hand acquisition is for

industrial purpose. The land is acquired under final

notification which is of the year 2016 and now we are

in 2023. Several directions are issued by this court in

early round of litigation.

17. It is a trite law that State should play not

only the role of land acquirer but also the role of

protector of land losers, as agriculturists/small holders

who lose their land, do not have the expertise or the

capacity for a negotiated settlement. Therefore, the

state government more particularly the land

acquisition officer should act as a benevolent trustee,

and safeguard their interest. The land acquisition

officer should also become grievance settlement

authority. In the present case on hand the conduct of

the respondent is deplorable. Having issued final

notification in 2016 is found to be conveniently

squatting over the issue of determination of

compensation. Instead of passing an award, he is

found to be relentlessly persuading the land losers to

accept the price fixed by the committee. Respondent 3

has failed to discharge his duty and the mandate of

Constitution requiring the acquiring authority to pass

an award in accordance with law is violated by the

acquiring authority

18. Be that as it may be, respondent No.3-

authority shall immediately pass an award under the

1966 Act which should be subject to the out come of

the lis pending in regard to entitlement of

compensation either under the 1966 Act or under the

2013 Act before the Division Bench. In the event, the

appeals preferred by the Board are rejected, it goes

without saying that the present petitioners would also

be entitled for compensation and respondent No.3 is

under bounden duty to pass an award under 2013 Act,

even though the notification under Sections 28(1) and

28(4) of the 1966 Act are issued prior to enactment of

2013 Act.

19. Since, there is inaction on the part of the

respondent No.3 in not passing an award since 2016,

the material on record clearly reveals that petitioner is

virtually compelled to run around the Courts seeking a

mandamus against respondent No.3 to pass an award

in terms of Section 29(3) of 1966 Act. Therefore,

respondent No.3-authority has to be saddled with cost

for having failed to pass an award in terms of the

provisions of the Act.

20. For the foregoing reasons, I pass the

following:

ORDER

(i) The writ petition is allowed.

Respondent No.3 is hereby directed to pass an award in terms of Section 29(3) of 1966 Act which incorporated the provisions of 1894 Act.

(ii) The determination of award by respondent No.3 under Section 29(3) of 1966 Act would however be subject to the outcome of the appeal pending in W.A.Nos.100393/2022 and 1110/2022. In the event, the Board fails to succeed, respondent No.3 is bound to pass an award in terms of 2022 amendment to 1966 Act which has incorporated the provisions of 2013 Act and consequently, petitioners would be entitled for determination of compensation in terms of 2013 Act.

(iii) Respondent Nos.2 and 3 shall pay cost of Rs.50,000/- to the petitioner for having failed to pass an award.

Sd/-

JUDGE

*alb/-