Karnataka High Court

Sri M V Guruprasad vs State Of Karnataka on 10 February, 2023

Bench: Krishna S.Dixit

                                               -1-
                                                         WP No. 61426 of 2016




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 10TH DAY OF FEBRUARY, 2023
                                                                                R

                                           BEFORE

                       THE HON'BLE MR JUSTICE KRISHNA S DIXIT

                     WRIT PETITION NO. 61426 OF 2016 (LA-KIADB)

                   BETWEEN:

                   1. SRI. M V GURUPRASAD,
                      S/O M B VITTAL RAO,
                      AGED ABOUT 55 YEARS,

                   2. SMT NANDINI M GURUPRASAD,
                      @ NANDINI G MANKALE,
                      AGED ABOUT 50 YEARS,

                   R/A # 690/K, 14TH MAIN, J.P.NAGAR II PHASE,
                   BANGALORE-560 078.
                                                                 ...PETITIONERS
                   (BY SRI.VEERANNA G TIGADI, ADVOCATE)

                   AND:
Digitally signed
by CHETAN B        1. STATE OF KARNATAKA
C
Location: HIGH
                      REPRESENTED BY ITS PRINCIPAL SECRETARY,
COURT OF
KARNATAKA
                      COMMERCE AND INDUSTRIAL DEPARTMENT,
                      VIKAS SOUDHA, BANGALORE-560 001.

                   2. KARNATAKA INDUSTRIAL AREAS
                      DEVELOPMENT BOARD
                      III & IV FLOORS, KHANIJA BHAVAN,
                      RACE COURSE ROAD,
                      BANGALORE-560 001.
                      REPRESENTED BY ITS
                      CHIEF EXECUTIVE OFFICER
                      & EXECUTIVE MEMBER.
                             -2-
                                        WP No. 61426 of 2016




3. THE SPECIAL DEPUTY COMMISSIONER
   K.I.A.D.B., III & IV FLOORS, KHANIJA BHAVAN,
   RACE COURSE ROAD,
   BANGALORE-560 001.

4. THE SPECIAL LAND ACQUISITION OFFICER-II
   K.I.A.D.B. III & IV FLOORS, KHANIJA BHAVAN,
   RACE COURSE ROAD, B
5. ANGALORE-560 001.
                                            ...RESPONDENTS
(BY SRI.SRIDHAR HEGDE, ADVOCATE FOR R1;
    SRI. P V CHANDRASHEKAR, ADVOCATE FOR R2 TO R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
NOTIFICATION DATED 09.01.2007 PUBLISHED IN THE
KARNATAKA GAZETTE ON 10.01.2007 R/W THE CORRIGENDUM
NOTIFICATION PUBLISHED IN THE KARNATAKA GAZETTE ON
5.6.2014 AT ANNEX-A AND B IN SO FAR AS THE PETITIONERS
ARE CONCERNED.

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:

                          ORDER

The tone for this judgment can be set by adverting to

the words of Saint Augustine (354 - 430 A.D.) in his book,

The City of God, Volume 1 (426 A.D):

"Without justice, what else is the State but a great band of robbers ...?"

2. Petitioners being the owners of lands in

question are knocking at the doors of Writ Court grieving

WP No. 61426 of 2016

against their acquisition vide Preliminary Notification dated

09.01.2007 issued under Section 28(1) followed by the

Final Notification dated 17.05.2007 issued under Section

28(4) of the Karnataka Industrial Areas Development Act,

1966.

3. Learned counsel for the Petitioners seeks

voiding of the acquisition on the following grounds that:

(i) His clients were already owners of the subject lands and therefore, their names ought to have figured in the acquisition notifications;

(ii) Petitioners vide Letter dated 09.01.2013 had requested the KIADB to pass the award and pay compensation; there has been a stony silence; payment of compensation is a precondition for sustaining acquisition;

(iii) Alternatively, the compensation should be paid to his clients under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act 2013 (hereafter 2013 Act), especially when the KIADB has allotted the subject lands by charging a huge sum of Rs.7.5 Crore or so, that too after giving a rebate of 50% to the allotees;

(v) There is enormous delay unjustifiably brooked in making the payment of compensation, that militates against the spirit of Article 300A of the Constitution which guarantees right to property; till date no payment is made and nothing is stated about the same in the Statement of Objections filed by the KIADB.

WP No. 61426 of 2016

4. After service of notice, the State has entered

appearance through the learned AGA and the KIADB is

represented by its Sr. Panel Counsel who has filed the

Statement of Objections opposing the acquisition. Learned

Panel Counsel contends that the acquisition having been

completed by issuance of Final Notification on 17.05.2007,

the lands have vested in the State and therefore, the

same cannot be restored to the Petitioners. After the land

owners notified the change of khatha pursuant to subject

Sale Deeds, the Government has issued Corrigendum

Notification on 05.06.2014 mentioning their names and

because of the protocol process, there is some delay and

now the payment of compensation will be made. So

contending, they seek dismissal of Writ Petition.

5. Having heard the learned counsel for the parties

and having perused the Petition papers, although this

Court rejects challenge to acquisition of lands, it is

inclined to grant indulgence in so far as non payment of

compensation, following being the reasons:

WP No. 61426 of 2016

(a) The 1st Petitioner bought 05 Acres & 01 Gunta of

land in Sy.No.132 of Jonnahalli in Devanahalli Taluka by

three registered Sale Deeds all dated 27.01.2007 and his

name is mutated in the Revenue Records vide M.R.

Nos.48, 49 & 50 of 2006-07 dated 22.03.2007. The 2nd

Petitioner bought only 38 Guntas of land in Sy.No.66/6 of

the same village vide two Sale Deeds both dated

23.12.2006 and his name came to be mutated in the

Revenue Records vide M.R.No.43/2006-07 dated

14.04.2007 & M.R.No.60/2006-07 dated 21.04.2007.

Thus, as on the date of Preliminary Notification i.e.,

09.01.2007, names of the Petitioners had not figured as

khatedars in the Revenue Records and therefore, the

KIADB was justified in notifying the acquisition in the

names of their vendors then, who were the Khatedars.

(b) The vendors had not filed Objections to the

acquisition since they had lost ownership over the lands,

by virtue of registered sale deeds, is true. However,

Petitioners along with other land owners had filed their

WP No. 61426 of 2016

Objections on 15.02.2007 vide Annexure - Q1, pursuant

to the Notice dated 11.01.2007 issued by the SLAO

himself under Section 28(2) of the 1966 Act. They had

informed the KIADB about the land being adjacent to the

village and also close to flying zone of International Airport

at Devanahalli. No records are shown by the answering

Respondents as to due and objective consideration of their

Objections. Be that as it may.

09.01.2013 had requested the KIADB at least to pay the

compensation for having taken their lands; a copy of this

is produced by the KIADB itself as Annexure-R1 to its

Statement of Objections. They had also sent the reminder

dated 01.07.2014 & 03.07.2014. In fact, the Government

issued a Corrigendum Notification dated 05.06.2014

mentioning their names and thereby entitling them to

payment of compensation. However, compensation has

not been paid even to this day. There is no plausible

explanation as to why the payment of compensation is

WP No. 61426 of 2016

withheld for decade and a half. It hardly needs to be

stated that payment of compensation is essential when

private property is acquired for public purpose; this

mandate is 'in-built' in Article 300A vide K.T PLANTATION

vs. STATE OF KARNATAKA (2011) 9 SCC 1. The following

observations in STATE OF BIHAR vs. MAHARAJADHIRAJA

SIR KAMESHWAR SINGH (1952) SCR 889 succinctly

elucidate upon the jurisprudential basis for payment of

compensation as a sine qua non for the acquisition as

under:

"...obligation to pay compensation for the property so compulsorily acquired, is not an essential ingredient of the connotation of the term, eminent domain, but is an essential element for the valid exercise of that power payment. The obligation to pay compensation arises from the natural right of the individual who is deprived of his property by such acquisition as against the power of the Sovereign to take the property in exercise of its Sovereignty..."

In his 1792 essay on Property, published in the National

Gazette, Madison, Chief Architect of the 5th Amendment,

i.e., 'takings clause' of the U.S. Constitution, wrote:

WP No. 61426 of 2016

"Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own."

(d) Petitioners property has vested in the State vide

Final Notification dated 17.05.2007.The Government

issued the Corrigendum notification dated 05.06.2014.

They have filed the Writ Petition on 28.11.2016 and a

Coordinate Bench directed issuance of notice on

16.01.2017. At least, after service of notice, the

Respondent - KIADB ought to have woken up and

arranged for payment of the payment of compensation.

However, strangely it has filed its Statement of Objections

dated 09.04.2021 seeking dismissal of the Writ Petition

contending that they have already developed the land and

allotted the same to several entrepreneurs, the Allotment

Letters dated 09.05.2019, 18.05.2019 & 10.06.2019 have

also been produced. Except saying that there are rival

claimants for compensation, there is absolutely no

justification whatsoever for withholding the payment even

WP No. 61426 of 2016

when the Corrigendum Notification dated 05.06.2014 itself

mentioned the names of Petitioners and not the Objectors.

The lands of the Petitioners have been allotted to the

entrepreneurs at a price of Rs.2.5 Crore per acre, that too

after giving a rebate of 50% of the Market Value. This

Court is bewildered as to how the compensation lawfully

payable has been withheld when it was obviously due for

payment to the Petitioners.

(e) The government cannot act as a robber of citizens

lands; taking away private lands for the purported public

purpose sans compensation militates against the spirit of

constitutional guarantee enacted u/a 300A, the

fundamental right to property no longer being on the

statute book, notwithstanding. It hardly needs to be

stated that the State and its instrumentalities are

constitutionally expected to conduct themselves with

fairness & reasonableness in all their actions vide

RAMANA DAYARAM SHETTY vs. INTERNATIONAL

AIRPORT AUTHOITY AIR 1979 SC 1628. The conduct of

- 10 -

WP No. 61426 of 2016

the Respondent - KIADB and its officials who answer the

description of 'State' under Article 12 of the Constitution

falls militantly short of the fairness standards expected of

them.

(f) Lands of the Petitioners have been taken by

acquisition process way back in the year 2007, is not in

dispute; with Herculean task, the Petitioners got their

names entered by virtue of Corrigendum Notification

dated 5.6.2014. Preceding this & post this, several

representations were given for payment of compensation.

The sites formed in Petitioners lands on allotment have

fetched Rs.7.5 Crore to the KIADB, that too, with the

rebate of 50% of the market value; otherwise, it would

been Rs.15 Crore, as already mentioned above. If there

was a rival claim, compensation amount could have been

parked in some interest earning deposits, relegating the

parties to litigate. In the entire Statement of Objections,

neither the State nor the KIADB has said anything about

the compensation being payable to the Petitioners. The

- 11 -

WP No. 61426 of 2016

KIADB and its officials being what they are, this did not

happen; such a conduct reinforces the shackles of a

feudalistic attitude from which the transformative

character of our constitution seeks to liberate. Their action

in not paying the compensation is not only grossly

violative of property rights constitutionally guaranteed

under Article 300A but gnaws at overarching objectives of

a Welfare State ordained under the Constitution.

(g) The Apex Court in RADHEY SHYAM vs. STATE OF

UTTAR PRADESH, (2011) 5 SCC 545 has observed as

under:

"...while examining the land owner's challenge to the acquisition of land in a petition filed under Article 226 of the Constitution, the High Court should not adopt a pedantic approach, but decide the matter keeping in view the constitutional goals of social and economic justice and the fact that even though the right to property is no longer a fundamental right, the same continues to be an important constitutional right and in terms of Article 300-A, no person can be deprived of his property except by authority of law..."

This Court cannot deny justice that is eminently due to the

aggrieved citizens by quoting some constitutional theories.

- 12 -

WP No. 61426 of 2016

Justice Oliver Wendell Holmes in DAVIS vs. MILLS, 194

U.S. 451 (1904) had observed: "Constitutions are

intended to preserve practical and substantial rights, not

to maintain theories ...".

(h) There is force in the submission of learned counsel

for the Petitioners that the compensation should be fixed

on the principles broadly enacted in 2013 Act, because of

the enormity of delay & callousness of the Respondents in

unjustifiably withholding the payment of compensation for

about a decade & a half despite receiving about Rs.7.5

Crore from the allottees of the sites with a rebate of 50%

Market Value; otherwise, arithmetically speaking, it would

have been Rs.15 Crore. He banks upon a Coordinate

Bench decision in W.P.Nos. 108802/2016 c/w

107748/2014, 100762/2017 between SHEENAPPA vs.

STATE OF KARNATAKA disposed off on 18.07.2022

directing payment of compensation under the 2013 Act.

However, it is told at the Bar that this decision has been

stayed by a Division Bench in W.A. No.100393/2022. Be

- 13 -

WP No. 61426 of 2016

that as it may. Justice of the case warrants that the

Petitioners be paid at least 50% of the compensation to be

computed under the provisions of 2013 Act, along with

solatium, interest & such other things. This Court hastens

to add that, in special circumstances of the case and

because of the stay of Coordinate Bench decision, the

provisions of the 2013 Act are taken only for the purpose

of determining/re-fixing the compensation amount on a

normative basis till after & subject to decision in the Writ

Appeal. It hardly needs to be stated that the Writ Courts

being the custodians of Constitutional Rights of the

citizens, have to individualize justice taking into account

the facts & circumstances of the case at hands.

In the above circumstances, this Court makes the

following directions:

(i) This Writ Petition succeeds in part. Although challenge to the acquisition of the subject lands is negatived, a Writ of Mandamus issues to the Respondent Nos. 2 to 4 to determine/re-fix the compensation at the rate of 50% to be computed under the provisions of Section 77 of the Right to Fair Compensation and Transparency in Land

- 14 -

WP No. 61426 of 2016

Acquisition, Rehabilitation and Resettlement Act, 2013 along with solatium, interest & such other benefits.

(ii) The Respondent Nos.2 to 4 are directed to pay to the Petitioners within eight weeks the amount of compensation to be determined as per the direction issued in the immediately preceding paragraph (i) with additional interest at the rate of 12% per annum to be computed from the date, the possession of subject lands was taken away from the Petitioners; and

(iii) In the event, the Writ Appeal No.100393/2022 is dismissed, upholding the judgment of the Coordinate Bench in W.P.Nos.108802/2016 c/w 107748/2014, 100762/2017 between SHEENAPPA vs. STATE OF KARNATAKA disposed off on 18.07.2022, Petitioners shall be paid the compensation to be determined under the provisions of 2013 Act minus what is paid in terms of the above directions.