Karnataka High Court
Sri Narayanappa vs The State Of Karnataka on 29 March, 2023
Bench: Krishna S.Dixit
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WP No. 40748 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
TH
DATED THIS THE 29 DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 40748 OF 2012 (LA-KIADB)
BETWEEN:
1. SRI. NARAYANAPPA,
S/O LATE GOWDARAPILLAPPA,
AGED ABOUT 66 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE,
PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
2. SRI. RAMACHANDRAPPA,
S/O LATE GOWDARA PILLAPPA,
AGED ABOUT 63 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
Digitally signed
by SHARADA 3. SRI. SEETHARAMU,
VANI B
S/O LATE GOWDARA PILLAPPA,
Location: HIGH
COURT OF AGED ABOUT 63 YEARS,
KARNATAKA R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
4. SRI. THAMMANNA,
S/O LATE GOWDARA PILLAPPA,
AGED ABOUT 58 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
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5. SRI. DEVARAJU,
S/O LATE GOWDARA PILLAPPA,
AGED ABOUT 56 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
6. SRI. MANJUNATH,
S/O LATE S.N. ANJANAPPA,
AGED ABOUT 35 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
7. SMT.KRISHNAMAMMA,
W/O LATE S.N. ANJANAPPA,
PETITIONER NO.7 DEAD & REP BY 7A TO 7E
7A. SMT.NANJAMMA,
AGED ABOUT 48 YEARS,
W/O ANJANAPPA,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
7B. SMT. MUNIRATHNAMMA,
AGED ABOUT 46 YEARS,
W/O NARAYANASWAMI,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
7C. SRI. MANJUNATH,
S/O ANJANAPPA,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
7D. SMT. MALA,
W/O SRINIVAS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
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WP No. 40748 of 2012
7E. SMT. MUNIKRISHNAMMA,
S/O ANJANAPPA,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
8. SMT. NANJAMMA,
D/O LATE S.N. ANJANAPPA,
AGED ABOUT 40 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
9. SMT. MUNI LAKSHMAMMA,
D/O LATE S.N. ANJANAPPA,
AGED ABOUT 36 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
10. SMT. MUNIRATHNAMMA,
D/O LATE S.N. ANJANAPPA,
AGED ABOUT 33 YEARS,
R/AT NO.168, SHIVASHANKAR BLOCK,
HEBBAL VILLAGE, PILLAPPAGOWDA COMPOUND,
KASABA HOBLI, BANGALORE-24.
...PETITIONERS
(BY SRI.V LASKHMI NARAYANA, SENIOR COUNSEL A/W
MISS. ANUSHA L., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
TO HOUSING AND URBAN DEVELOPMENT
DEPARTMENT, M.S. BUILDING, BANGALORE-01.
2. THE STATE OF KARNATAKA,
REP BY ITS PRINCIPAL SECRETARY
TO HOUSING AND URBAN DEVELOPMENT
DEPARTMENT, M.S. BUILDING,
BANGALORE-01.
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WP No. 40748 of 2012
3. THE BANGALORE DEVELOPMENT AUTHORITY.,
SANKEY ROAD, KUMARA PARK WEST,
BANGALORE-20.
4. THE KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD,
NRUPATHUNGA ROAD, BANGALORE-01.
REP BY ITS MANAGING DIRECTOR.
5. M/S LAKEVIEW TOURISM CORPORATION,
BANGALORE, BY ITS PARTNER,
SRI. P. DAYANAND PAI,
NO.10, 1, LAKSHMINARAYANA COMPLEX,
GROUND FLOOR, PALACE ROAD,
BANGALORE-01.
...RESPONDENTS
(BY SRI.R SRINIVASA GOWDA, AGA FOR R1 & R2;
SRI.G LAKSHMEESH RAO., ADVOCATE FOR R3;
SRI.B B PATIL., ADVOCATE FOR R4;
SRI.BADRI VISHAL., ADVOCATE FOR R5;
SRI.H SRINIVAS RAO., ADVOCATE FOR R6 & R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE PRELIMINARY NOTIFICATION [SECTION 3[1] &
1[3] OF KIAD ACT] DATD 25.11.2002 AND FINAL
NOTIFICATION DATED 11.5.2004 ISSUED BY THE SECOND
RESPONDENT UNDER KARNATAKA INDUSTRIAL AREA
DEVELOPMENT ACT VIDE ANNEXURES-C & D RESPECTIVELY SO
FAR AS THE PETITION LAND IS CONCERNED AS IT IS A MALA
FIDE EXERCISE OF POWER AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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WP No. 40748 of 2012
ORDER
Petitioners claiming to be the owners of the lands in
question are knocking at the doors of writ court for laying
a challenge to the acquisition proceedings of the year
2002 done under the provisions of the KIAD Act, 1966.
They have also sought for a direction for the dropping of
the subject lands from the acquisition process.
2. Learned Sr. Advocate appearing for the
petitioners urges the following points in support of the
petition prayers:
(a) No acquisition can be done for the benefit of a
partnership firm comprising of only the companies
incorporated under the provisions of the Companies Act,
1956.
(b) No acquisition can be done under the 1966
Act in view of prohibition enacted in the 2nd Proviso to
clause (1) of Article 31A of the Constitution since the said
Act does not provide for payment of market value as
compensation.
WP No. 40748 of 2012
(c) The subject acquisition having not being
accomplished within a reasonable period, the same is
liable to be voided on the doctrine of lapse.
(d) If the acquisition is to be upheld, then in terms
of decisions of the Coordinate Benches, the compensation
should be determined and paid as stated under the
provisions of Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act,
2013, which is incorporated by substitution in Sec.30 of
the 1966 Act.
3. Learned AGA appearing for the State and the
learned Sr. Panel Counsel appearing for the KIADB & BDA,
and learned advocates appearing for the private
respondents vehemently oppose the petition making
submission in justification of the acquisition. They also
offer explanation as to why the award could not be
passed. Learned KIADB Advocate points out that the
judgments of the two Coordinate Benches have been
stayed by the Division Bench in writ appeals. Lastly it is
contended that court need not consider the constitutional
question urged on behalf of the petitioners in the absence
WP No. 40748 of 2012
of necessary plea and evidentiary material for invoking the
provisions of Article 31A of the Constitution.
4. Having heard the learned advocates appearing for
the parties and having perused the petition papers, this
court declines challenge to the acquisition, and grants a
limited indulgence in the matter as under and for the
following reasons:
(a) The first contention urged on behalf of the
petitioners that the private respondent Partnership is
legally impermissible since incorporated companies cannot
be partners and therefore, the acquisition initiated at their
instance and for their benefit is unsustainable, is no longer
res integra. A Division Bench of this Court in R.P. No.
363/2015 in W.A. No. 333/2013 between C. PRAKASH vs.
STATE & OTHERS disposed off on 06.04.2018 having
considered the same contention advanced by the same Sr.
Advocate has negatived the same. Therefore, the Division
Bench decision of the Calcutta High Court in GANGA
METAL REFINING COMPANY vs. COMMISSIONER OF
WP No. 40748 of 2012
INCOME TAX AIR 1967 CAL 429, arguably holding a view
in variance, would not come to aid of the petitioners.
Learned Panel Counsel for the KIADB is more than justified
in contending that the role of the partnership firm in
question comes into play only after the State acquired the
land and handed it to his client, who may eventually
decide to make allotment of the land or part thereof to the
aspirants in accordance with the extant policy.
(b) The second contention of learned Sr. Advocate
appearing for the petitioners that his clients have the
constitutional protection under second Proviso to Article
31A and therefore, their property could not have been
acquired under the 1966 Act, does not merit a deeper
examination in the absence of material particulars in the
pleadings about the nature of the subject properties and
the factual conditions that warrant the invocation of this
provision. The 2nd Proviso to Article 31A added by the 17th
Amendment 1964 is in fact a Proviso to sub-clause (a) of
Clause (1) since its application is confined to a law for 'the
WP No. 40748 of 2012
acquisition of an estate' and that it is not concerned with
any of the other sub-clause of Clause (1). In D.D.Basu's
'Shorter Constitution of India', 15th Edition, Volume I, at
pages 525 - 26 it is stated:
"3. Under the 2nd Proviso - the person
whose land is 'acquired' is entitled to
'compensation' being not less than the market
value of the land, provided (a) such land is
comprised in an estate which is being acquired;
(b) it is under his personal cultivation; and (c)
the quantum of land so held by him is within the
ceiling limit of holding prescribed by the
competent Legislature. Mere restriction on the
incidence pf the lease or ownership is not
acquisition within the meaning of Article 31A.
Hence, question of compensation does not arise...
4. ... The underlying idea of this Proviso is
that a person who is cultivating land within the
ceiling limit personally, which is the source of his
livelihood, should not be deprived of that land
under any law protected by Article 31A unless
compensation at the market rate is given, and
this condition must be complied with if the State
has, in substance, acquired all the rights in the
land for its own purposes, even if the title
remains with the owner. But the Proviso is not
attracted unless the beneficiary of such
acquisition is the State".
(c) It hardly needs to be stated that the acquisition
under the 1966 Act is not for the benefit of the State as
such; after acquisition, the lands are handed to the KIADB
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WP No. 40748 of 2012
which in turn will allot to others including the private
entities "for the purpose of promoting establishment and
orderly development of industries", to borrow the
Preambular terminology of the 1966 Act. Added, there is
no challenge to the provisions of the Act that empower
acquisition of the land and payment of compensation. The
Petitioners do not fall under the class of persons intended
to be protected under the Second Proviso to Article 31A(1)
of the Constitution vide Apex Court decision in AJIT SINGH
vs. STATE OF PUNJAB 1967 (2) SCR 143 wherein it has
been observed:
"...The underlying idea of this proviso seems to be
that a person who is cultivating land personally,
which is his source of livelihood, should not be
deprived of that land under any law protected
by art. 31A unless at least compensation at the
market rate is given. In various States most of
the persons have already been deprived of land
beyond the ceiling limit on compensation which
was less than the market value. It seems to us
that in the light of all the considerations
mentioned above the words "acquisition by the
State" in the second proviso do not have a
technical meaning ..."
(d) The third contention that the enormous
delay between the Preliminary Notification dated
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25.11.2002 issued under Section 28(1) and the Final
Notification dated 11.05.2004 issued under Section 28(4)
of the 1966 Act, renders the acquisition void more
particularly when no award has been passed and as a
consequence, no compensation has been paid, is difficult
to countenance. The scheme of acquisition envisaged
under Section 28 of the 1966 Act is much in variance with
that of the one contemplated under Sections 4 to 12 of the
erstwhile Land Acquisition Act, 1894; in the former, the
land will vest in the State once the Final Notification is
issued regardless of passing of the award and payment of
compensation, unlike under the 1894 Act vide Division
Bench decision in W.P No. 17600 between NANDI
INFRASTRUCTURE CORRIDOR LTD. vs. STATE OF
KARNATAKA, disposed off on 15.06.2011.
(e) Added to the above, no period is prescribed by
the Legislature unlike under the 1894 Act, for issuance of
the Final Notification after the Preliminary Notification is
published. However, this does not mean that in no case
the acquisition can be quashed regardless of longevity of
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WP No. 40748 of 2012
the delay. In order to press into service delay as a ground
for invalidation, the Petitioner has to aver the
lapse/negligence on the part of the officials concerned.
However, that is not pleaded in the Petition. Lastly, the
learned counsel for the KIADB is right in contending that in
some what connected cases i.e., W.P.No.17819/2005,
W.P.No.40661/2004, W.P.No.7029/2007,
W.P.No.8756/2011, etc., there was stay of acquisition
proceedings till 19th November, 2012 i.e., the date of the
judgment whereby they were disposed off. There was
challenge to denotification of certain lands in
W.P.No.22888/2010 which is mentioned in the very same
judgment. Therefore, the contention of delay in
accomplishing the acquisition by passing the award and
making the payment of compensation, has to fail. The
above apart, petitioner has obtained an interim order
having the effect of interdicting the acquisition
proceedings all these years. Thus, no interest which
otherwise was payable, shall be paid during the stay
period, whether compensation is determined under the
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WP No. 40748 of 2012
unamended or amended Section 30 of the 1966 Act, and
that applies even if post disposal of the subject Writ
Appeals compensation needs to be re-determined under
the Amended provisions of Section 30 of the 1966 Act.
(f) The last contention of the Petitioners that at
least the compensation has to be determined and paid
under the provisions of 2013 Act in view of its
incorporation in Section 30 of the 1966 Act by virtue of
2022 Amendment dated 04.04.2022, is bit difficult to
countenance. In fact, the supporting view of two
Coordinate Benches i.e., W.P. No.108802/2016 (LA-
KIADB) between SHREE SEENAPPA & OTHERS vs
STATE & OTHERS, disposed off on 18.07.2022 (DHARWAD
BENCH) & W.P.No.5916/2017 (LA-KIADB) between
VENKATARAMANA & OTHERS vs. STATE & OTHERS,
disposed off on 01.08.2022, are stated to have been
stayed by the Division Benches in the Writ Appeals that
are still pending. When a judgment is stayed, ordinarily, it
is not prudent to press them into service as a binding rule,
since its precedential force is in suspended animation.
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WP No. 40748 of 2012
Therefore, much reliance cannot be placed on the said
decisions of the Coordinate Benches.
(g) The 2022 Amendment to the 1966 Act
incorporates the provisions of 2013 Act cannot be much
disputed. However, the said Amendment which employs
the expression 'shall be' makes it prospective in operation,
notwithstanding the word 'deemed' occurring therein. If
the Legislature intended, a retrospective operation, the
terminology of the Section would have been a bit different.
Therefore, the compensation has to be determined under
Section 30 of the 1966 Act which incorporated the
provisions of the 1894 Act, even when the said Act has
been repealed by the 2013 Act w.e.f. 01.01.2014. This
having been said, a clarification needs to be made that in
the event, the challenge to the Coordinate Bench
judgments fails, then, petitioners too would be entitled to
re-determination of the compensation under the 2013 Act.
Till that happens, the SLAO of the KIADB has to frame the
award under the unamended provisions Section 30 of the
1966 Act and pay/deposit the compensation within an
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WP No. 40748 of 2012
outer limit of three months, if the Petitioners establish
their credentials as per the standard operating procedure.
In the above circumstances and with the above
observations, this Petition is disposed off, costs having
been made easy.
This Court places on record its deep appreciation for
the able research & assistance rendered by Official Law
Clerk/Research Assistant, Mr. Faiz Afsar Sait.
Sd/-
JUDGE
Snb/Bsv
