The Bangalore Water Supply vs T Suresh Kumar
2023 Latest Caselaw 733 Kant

                              1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF JANUARY 2023

                        PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

              W.A.No.4405/2016 (LA-RES)
                        C/W
              W.A.No.4429/2017 (LA-RES)

IN W.A.No.4405/2016:

BETWEEN:

THE BANGALORE WATER SUPPLY
AND SEWERAGE BOARD
CAUVERY BHAVAN
BANGALORE - 560 009
REPRESENTED BY ITS
CHIEF ADMINISTRATIVE OFFICER
CUM-SECRETARY.                             ...APPELLANT

(BY SRI M.R. NAIK SR. COUNSEL A/W
 SMT. SUMANGALA GACHCHINAMATH, ADV., FOR
 SRI GURUDEV I GACHCHINAMATH, ADV.,)

AND:

1.     T. SURESH KUMAR
       S/O M. THIMMEGOWDA
       AGED ABOUT 38 YEARS
       RESIDING AT NO.65
       VANIVILAS ROAD
       BASAVANAGUDI
       BANGALORE - 560 004.

2.     THE SPECIAL LAND ACQUISITION
       OFFICER, RAMANAGARAM
       SUB-DIVISION, RAMANAGARAM
       RAMANAGARAM DISTRICT
       BANGALORE (EARLIER DISTRICT).    ...RESPONDENTS
                              2


(BY D.R. RAVISHANKAR, SR. COUNSEL FOR
 SRI NAVEEN GUDIKOTE S, ADV., FOR R-1;
 SRI B. RAJENDRA PRASAD, HCGP FOR R-2)

       THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 22-4-2016(LA-RES) PASSED BY
THE LEARNED SINGLE JUDGE AND FURTHER ALLOW THE
WRIT PETITION 37959/2011.


IN W.A.No.4429/2017:

BETWEEN:

1.     THE SPECIAL LAND ACQUISITION
       OFFICER, RAMANAGARAM
       SUB-DIVISION, RAMANAGARAM
       RAMANAGARAM DISTRICT
       BANGALORE (EARLIER DISTRICT).

2.     THE STATE OF KARNATAKA
       REPRESENTED BY ITS
       SECRETARY TO GOVERNMENT
       REVENUE DEPARTMENT
       M.S. BUILDING
       BANGALORE - 560 001.              ...APPELLANTS

(BY SRI B. RAJENDRA PRASAD, HCGP)

AND:

1.     THE BANGALORE WATER
       SUPPLY AND SEWERAGE BOARD
       CAUVERY BHAVAN
       BANGALORE - 560 009
       REPRESENTED BY ITS
       CHIEF ADMINISTRATIVE OFFICER
       CUM-SECRETARY.

2.     T. SURESH KUMAR
       S/O M. THIMMEGOWDA
       AGED ABOUT 44 YEARS
       RESIDING AT NO.65
                             3

     VANIVILAS ROAD
     BASAVANAGUDI
     BANGALORE - 560 004.                ...RESPONDENTS

(BY SRI M.R. NAIK SR. COUNSEL A/W
 SMT. SUMANGALA GACHCHINAMATH, ADV., FOR
 SRI GURUDEV I GACHCHINAMATH, ADV., FOR R-1;
 SRI RAVI H.K. ADV., FOR R-2)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 22/4/2016 PASSED IN THE WRIT PETITION
37959/2011.


     THESE APPEALS HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, VISHWAJITH
SHETTY J., DELIVERED THE FOLLOWING:


                     JUDGMENT

These two intra court appeals arise from the order

dated 22.04.2016 passed by the learned Single Judge of

this Court in W.P.No.37959/2016, and therefore, they are

clubbed, heard together and disposed of by this common

judgment.

2. Heard the learned Counsel appearing for the

parties and also perused the material available on record.

3. Brief facts of the case as revealed from the

records that may be relevant for the purpose of disposal

of these appeals are, respondent no.1 - T.Suresh Kumar

is the owner of lands bearing Sy. Nos.711/1, 711/2b,

711/2c, 712/2, 712/3a & 783/1 of Harohally village,

Kanakapura Taluk, Bengaluru District, which totally

measures 19 acres 33 1/2 guntas (hereinafter referred to

as 'the lands in question') and the lands in question were

acquired for the purpose of Bangalore Water Supply &

Sewerage Board (hereinafter referred to as 'the Board')

to establish its pumping station under one of its project.

In this regard, Preliminary Notification dated 09.10.1996

and final notification dated 19.02.1998 were issued under

the provisions of the Land Acquisition Act, 1894 (for

short, 'the Act'). An award was passed thereafter on

28.08.1998 fixing the market value of the lands in

question at Rs.1.25 lakhs per acre. The total

compensation that was awarded amounted to

Rs.35,95,549/- and the possession of the lands were

allegedly taken over on 30.12.2000. The owner of the

lands in question challenged the acquisition proceedings

before this Court in W.P.No.5024/1999 & W.P.Nos.5090-

95/1999 and the said writ petitions were dismissed by

order dated 22.02.2000. The same was challenged in

W.A.No.3460/2000 which was dismissed by a Division

Bench of this Court by order dated 06.01.2004. The

Division Bench of this Court while disposing of the writ

appeal had observed in paragraph 11 as follows:

"11. In so far as the third contention is concerned, the cost of acquisition is the concern of the Government and not that of the appellants. If the respondents have acquired converted land, they are liable to pay compensation for converted land. The Respondents are ready to pay such compensation. The appellants cannot therefore object to the acquisition on the ground that it is likely to involve a higher cost."

     4.      Subsequent         to       the      disposal      of     W.A.

No.3460/2000, respondent no.1/owner                          had filed a

representation on 24.03.2004 seeking enhancement of

compensation and considering the same, the Special

Land Acquisition Officer had enhanced the compensation

to a total sum of Rs.3,76,22,651/-. The said enhanced

award was challenged before this Court in

W.P.No.7476/2005 by the Board on the ground that it

was not heard before passing of the award, and

therefore, this Court set aside the award dated

15.05.2004 and remitted the matter to the Special Land

Acquisition Officer to pass a fresh order after hearing all

the concerned parties. Thereafter, the Special Land

Acquisition Officer has passed an award dated

23.05.2011 once again awarding compensation of

Rs.3,76,22,651/-. The said award dated 23.05.2011 was

challenged by the Board in W.P.No.37959/2011 which

was dismissed by the learned Single Judge of this Court

vide the order impugned. Being aggrieved by the same,

the Board has preferred W.A.No.4405/2016 while the

Special Land Acquisition Officer and the State

Government have preferred W.A.No.4429/2017.

5. Learned Senior Counsel appearing on behalf of

the appellant-Board contended that the Special Land

Acquisition Officer had no jurisdiction or authority to pass

a second award. He submits that after passing of the first

award, he becomes functus officio, and therefore, he

could not have enhanced the compensation amount by

passing the second award. He submits that the Special

Land Acquisition Officer has virtually exercised the power

of review which is not conferred on him. In support of his

arguments, he has placed reliance on the judgments in

the case of ORISSA INDUSTRIAL INFRASTRUCTURE

DEVELOPMENT CORPORATION VS SUPAI MUNDA & ORS.

- AIR 2004 SC 390, DEVE GOWDA & ORS. VS STATE OF

KARNATAKA, CHIEF SECRETARY & ORS. - ILR 2004 KAR

3159, PATEL NARSHI THAKERSHI & ORS. VS SHRI

PRADYUMANSINGHJI ARJUNSINGHJI - AIR 1970 SC

1273.

6. Learned Additional Government Advocate has

adopted the arguments advanced by the learned Senior

Counsel for the Board.

7. Learned Senior Counsel appearing on behalf of

the owner of the lands in question submits that the lands

in question are converted lands and the said aspect was

not taken into consideration while the first award was

passed by the Special Land Acquisition Officer. He

submits that in W.A.No.3460/2000, a submission was

made by the respondents therein that they are ready to

pay compensation for the converted land and the said

statement was placed on record while disposing of the

writ appeal and it was therefore observed that the owner

of the lands in question cannot object for the acquisition

on the ground that it is likely to involve a higher cost. He

submits that having conceded in the earlier round of

litigation that they are liable to pay compensation for the

converted land, they cannot now question the award

passed by the Special Land Acquisition Officer. He also

submitted that the appellant-Board is the beneficiary,

and therefore, it cannot challenge the order and the

State Government cannot go back on its earlier

statement made before this Court that the owner is

entitled for a higher compensation and the doctrine of

promissory estoppel estops the State from taking such a

stand. He further submitted that the judgment of Hon'ble

Supreme Court in Orissa Industrial Infrastructure

Development Corporation's case supra relied upon by the

learned Senior Counsel for the appellant-Board cannot be

made applicable to the case on hand since the second

award in the said case is a consent award and it is under

these circumstances, the Hon'ble Supreme Court had

held that the Land Acquisition Officer had no jurisdiction

to pass the second award. He submits that the first

award was not passed in respect of the converted lands,

and therefore, it cannot considered as an award in

respect of the lands in question. In support of his

contentions, he has placed reliance on the judgments in

the case of RAJA HARISH CHANDRA RAJ SINGH VS THE

DEPUTY LAND ACQUISITION OFFICER & ANOTHER - AIR

1961 SC 1500, MAHARASHTRA STATE SEEDS CORPN.

LTD. VS HARIPRASAD DRUPADRAO JADHAO & ANOTHER

- (2006)3 SCC 690, VINOD KUMAR VS STATE OF

HARYANA & OTHERS - (2013)6 SCC 293, LALARAM &

OTHERS VS JAIPUR DEVELOPMENT AUTHORITY &

ANOTHER - (2016)11 SCC 31, STATE OF JHARKHAND &

OTHERS VS BRAHMPUTRA METALLICS LTD., RANCHI &

ANOTHER - 2020 SCC OnLine SC 968, and SANTOSH

KUMAR & OTHERS VS CENTRAL WAREHOUSING

CORPORATION & ANOTHER - (1986)2 SCC 343.

8. Undisputed facts of the case are that the Special

Land Acquisition Officer had passed an award on

28.08.1998 granting a total compensation of

Rs.35,95,549/- as compensation in respect of the lands

in question. Thereafter, the owner of the lands in

question had filed W.P.No.5024/1999 & W.P.Nos.5090-

95/1999 challenging the acquisition proceedings which

were dismissed by the learned Single Judge of this Court

on 22.02.2000 and as against the said order, the owner

of the lands in question had filed W.A.No.3460/2000. The

owner had raised a specific ground in the said

proceedings that the lands in question were converted

lands which were required for his purpose and the cost of

acquisition of converted lands would be higher and the

same would be a burden to the State exchequer. During

the course of hearing of W.A.No.3460/2000, the State

Government as well as the Board had submitted before

this Court that they were ready to pay such

compensation for the converted land and the said

submission was placed on record, and therefore, the

Division Bench held that it was not open for the owner of

the lands in question to raise objection to the acquisition

on the ground that it involved higher cost. In the said

case, the Division Bench of this Court had held that if the

State has acquired converted land, they are liable to pay

compensation for converted land. After disposal of

W.A.No.3460/2000 on 06.01.2004, representation

seeking enhancement of compensation was submitted by

the owner of the lands in question on 24.03.2004.

Considering the same, the Special Land Acquisition

Officer has passed the impugned award enhancing the

compensation amount to Rs.3,76,22,651/-.

9. The Hon'ble Supreme Court in Orissa Industrial

Infrastructure Development Corporation's case supra has

held that when an award is made by the Collector under

Section 11 of the Act, the proceedings before him stand

terminated, and thereafter by taking recourse to Section

11(2) of the Act, he cannot pass the second award and

there can never be two awards, one under Section 11 &

and another under Section 11(2) of the Act in respect of

the land acquired. In Deve Gowda's case supra, this

Court has held that the Land Acquisition Officer has no

power to pass a second award and such a power is not

traceable under Section 12A of the Act.

10. The contention of the learned Senior Counsel

for the owner that the compensation under the first

award was not awarded in respect of the converted land,

and therefore, it cannot be considered as an award is

liable to be rejected since the owner had notice of the

first award and in the writ petition filed by him

challenging the acquisition proceedings, he had stated

about the award passed by the Special Land Acquisition

Officer and if he had any grievance regarding the

compensation amount awarded to him, he had a remedy

under Section 18 of the Act. Therefore, the judgment in

Raja Harish Chandra Raj Singh's case supra relied on

behalf of the owner of the lands in question would have

no application to the facts of this case.

11. In Santosh Kumar's case, the Hon'ble Supreme

Court was considering the challenge to the award passed

under Section 11 of the Act and the question of

jurisdiction of the Special Land Acquisition Officer to pass

a second award was not an issue in the said judgment. It

is in the said context, the Hon'ble Supreme Court has

held that the State Government as well as the company

or local authority at whose instance the acquisition is

made cannot challenge the award passed under Section

11 of the Act. Therefore, even the said judgment cannot

be made applicable to the facts of the present case.

12. Though we are in respectful agreement with

the judgments in Vinod Kumar's case and Lalaram's case

supra, the law laid down in the said judgments cannot be

made applicable to the facts and circumstances of the

present case as the question of the jurisdiction of the

Special Land Acquisition Officer to pass a second award

was not in issue in the said cases.

13. In view of the law laid down in Orissa Industrial

Infrastructure Development Corporation's case and Deve

Gowda's case supra, we are of the considered view that

the Special Land Acquisition Officer had no jurisdiction to

pass a second award when he had already passed an

award in respect of the very same lands acquired.

14. However, the fact remains that, in the earlier

round of litigation i.e., in W.A.No.3460/2000, when a

contention was urged on behalf of the owner of the lands

in question that acquisition of converted lands would

involve higher cost which would burden the State, a

statement was made before this Court by the State as

well as by the Board that they were ready to pay

compensation in respect of the converted land also.

Having made such a statement, they are estopped from

contradicting their own statement made in the earlier

round of litigation and the principle of estoppel would be

applicable against them. The Division Bench of this Court

had held that if the State had acquired converted lands,

it is liable to pay compensation for the converted lands.

15. In W.A.No.3460/2000, the Division Bench of

this Court had held that if the State has acquired

converted land, it is liable to pay compensation for

converted land and the statement of the State and the

Board that they were ready to pay compensation for the

converted land was also placed on record and it is under

these circumstances, it was held that the owner cannot

object to the acquisition on the ground that it is likely to

involve a higher cost. From a reading of paragraph 11 of

the judgment in W.A.No.3460/2000, it is found that the

challenge to the acquisition proceedings on the ground

that the lands in question were converted lands was

rejected only in view of the statement made by the State

and the Board that they are ready to pay such

compensation for converted lands, and therefore, it has

to be understood that this Court impliedly reserved

liberty to seek enhanced compensation while refusing to

consider the contention raised on behalf of the owner. It

is under these circumstances, after disposal of

W.A.No.3460/2000, the owner of the lands in question

has given a representation to the competent authority for

grant of enhanced compensation.

16. The entitlement of the owner of the lands in

question for a higher compensation was taken note of by

this Court in W.A.No.3460/2000, wherein this Court has

specifically held that if the respondents have acquired the

converted lands, they are liable to be compensation for

the converted lands and the State and the Board have

also expressed their readiness and willingness to pay

such enhanced compensation. In order to enable

complete justice being done to the parties, the courts are

empowered to mould the reliefs and grant the same to

the parties in deserving cases. The 'moulding of relief'

principle was recognized by the Hon'ble Supreme Court in

the case of PASUPULETI VENKATESWARALU VS THE

MOTOR & GENERAL TRADERS - AIR 1975 SC 1709,

wherein it was observed that though the right to relief

must be judged to exist as on the date a suitor institutes

the legal proceeding, the principle that procedure is the

handmaid and not the mistress of the judicial process is

also to be noted. Justice VR Krishna Iyer observed:

"If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decrotal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling (actors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule or myraid. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules

of fairness to both sides are scrupulously obeyed."

17. In the case of RAMESH KUMAR VS KESHO RAM

- AIR 1992 SC 700, the Hon'ble Supreme Court again

following the aforesaid principle i.e., "moulding of relief",

observed as under:

"6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or an aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief."

18. The Hon'ble Supreme Court in the case of

STATE OF RAJASTHAN VS M/S. HINDUSTAN SUGAR

MILLS LTD. - AIR 1988 SC 1621, held that the High Court

which exercised high prerogative jurisdiction under

Article 226 would have moulded the relief in a just and

fair manner as required by the demands of the situation,

and therefore, in view of the law laid down by the Apex

Court, we are of the considered view that this is a fit

case, wherein the said principle is required to be applied

and appropriate relief needs to be granted to the owner

of the lands in question.

19. The Hon'ble Supreme Court in MANHARLAL

SHIVLAL PANCHAL & OTHERS VS THE DEPUTY

COLLECTOR & SPECIAL LAND ACQUISITION OFFICER &

OTHERS in Civil Appeal No.9004/2022 disposed of on

12.12.2022, while considering a case wherein the

application under Section 18 of the Act was barred by

limitation, has held that in view of the liberty reserved by

the High Court while dismissing the earlier writ petition

which was filed challenging the acquisition proceedings,

the owner is entitled to seek enhancement of

compensation amount, and therefore, the reference

application under Section 18 of the Act filed belatedly

cannot be said to be barred by limitation.

20. In the background of the pronouncement made

by the Hon'ble Supreme Court in Manharlal Shivlal

Panchal's case supra, taking into consideration the

observation made by the Division Bench while disposing

of W.A.No.3460/2000 that the State and Board are ready

to pay such compensation for converted land and if they

have acquired converted land, they are liable to pay

compensation for the converted land, in our considered

view, a fresh cause of action had arisen for the owner of

the lands in question to seek enhancement of

compensation amount and the Assistant

Commissioner/Special Land Acquisition Officer on receipt

of such representation seeking enhancement, ought to

have referred the same under Section 18 of the Act to

the competent Civil Court for adjudication and he could

not have passed the second award by himself.

W.A.No.3460/2000 was disposed of by the Division

Bench of this Court on 06.01.2004 and the

representation seeking enhancement of compensation

was submitted by the owner on 24.03.2004 to the

competent authority, which is within six months from the

date of the order passed in W.A.No.3460/2000, and

therefore, the said representation made by him is

required to held as filed within the prescribed time as

provided under Section 18 of the Act. The owner of the

lands in question who has lost the land in the acquisition

proceedings cannot be left without any remedy though

the State and the Board had made a statement before

this Court in the earlier round of litigation that they are

ready to pay the compensation even for the converted

lands, and therefore, in view of the peculiar set of facts

and circumstances of this case, we proceed to pass the

following order:

21. The writ appeals are allowed. The impugned

order dated 22.04.2016 passed by the learned Single

Judge in W.P.No.37959/2011 is set aside. Consequently,

the writ petition is allowed. The award dated 23.05.2011

passed by the Special Land Acquisition Officer is

quashed. The Assistant Commissioner/Special Land

Acquisition Officer, Ramanagaram Sub-Division,

Ramanagaram District, is directed to refer the

representation/application made by the owner dated

24.03.2004 to the jurisdictional Civil Court under Section

18 of the Act for determination of appropriate

compensation and the Civil Court on receipt of such

reference after issuing notice to all the concerned parties

shall dispose of the reference case in accordance with

law, within a period of one year from the date of receipt

of the reference from the Assistant Commissioner/Special

Land Acquisition Officer.

Sd/-

JUDGE

Sd/-

JUDGE KK