Karnataka High Court
Maqsood Ali Soharwardy vs The State Of Karnataka on 5 August, 2024
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WP No. 204295 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO. 204295 OF 2018 (LA-RES)
BETWEEN:
1. MAQSOOD ALI SOHARWARDY
S/O. MOHAMOOD ALI
SINCE DECEASED BY HIS LRS
1(a) MOHAMMAD ALI
S/O. MAQSOOD ALI SOHARWARDY
AGED ABOUT 60 YEARS,
OCC:PRIVATE SERVICE,
R/O. NO.6-511, JAMAKHANA
MOMINPUR, KALABURAGI-585101.
1(b) ASAD ALI
S/O. MAQSOOD ALI SOHARWARDY
AGED ABOUT 49 YEARS,
OCC:BUSINESS,
R/O. EGG BANK,
Digitally signed AIWAN-E-SHAHI ROAD,
by KALABURAGI-585101.
MARKONAHALLI
RAMU PRIYA
Location: HIGH 2. MOUSOOF ALI SOHARWARDY
COURT OF
KARNATAKA S/O. MAHMOOD ALI,
AGE: 73 YEARS,
LEGAL PRACTIONER
H.NO.6-511, JAMAKHANA,
KALABURAGI-585101.
3. MASOOD ALI
S/O. MOHAMOOD ALI
SINCE DECEASED BY HIS LRS
ASMATHUNISSA BEGAM,
W/O. MASOOD ALI SOHARWARDY
AGED ABOUT 70 YEARS,
OCC:HOUSE WIFE,
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WP No. 204295 of 2018
R/O. NO.6-511, JAMAKHANA,
MOMINPURA, KALABURAGI-585101.
4. AMEER ALI SOHARWARDY
SINCE DECEASED BY L.RS
SMT. SYEDA SHAHNAZ SULTANA,
W/O. LATE AMEER ALI SOHARWARDY
AGED ABOUT 74 YEARS,
OCC: HOUSEHOLD,
R/O. NEAR KBN ENGG COLLEGE,
KALABURAGI
NOW IN CHICAGO, USA
THROUGH POWER OF ATTORNEY
ZAHED ALI
S/O. MOUSOOF ALI SOHARWARDY
AGED ABOUT 33 YEARS,
OCC: BUSINESS,
NEAR KBN ENGG COLLEGE,
BILALABAD, KALABURAGI-585103.
...PETITIONERS
(BY SRI. S.S. HALALLI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPT. OF URBAN DEVELOPMENT AUTHORITY,
VIKAS SOUDHA, BENGALURU-560001.
REPT. BY THE PRINCIPAL SECRETARY
2. THE COMMISSIONER
URBAN DEVELOPMENT AUTHORITY,
KALABURAGI-585101.
3. THE SPECIAL LAND ACQUISITION OFFICER
URBAN DEVELOPMENT AUTHORITY,
KALABURAGI-585101.
4. THE DEPUTY COMMISSIONER
KALABURAGI DISTRICT,
KALABURAGI-585101.
...RESPONDENTS
(BY SRI. MALHARARAO, ADDITIONAL ADVOCATE GENERAL AND SRI.
RAJKUMAR A KORWAR, HIGH COURT GOVERNMENT PLEADER FOR
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RESPONDENT NOS.1 AND 4; SMT. KIRAN SURI, SENIOR COUNSEL
FOR SRI. SHIVAKUMAR R.TENGLI, ADVOCATE FOR RESPONDENT
NOS.2 AND 3.)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE
ACQUISITION PROCEEDINGS INITIATED BY THE RESPONDENT
URBAN DEVELOPMENT AUTHORITY IN PURSUANT TO THE 4(1)
NOTIFICATION DATED 28.11.1977 IN RESPECT OF SURVEY
NO.126/A MEASURING 12 ACRES 11 GUNTAS SITUATED AT
BADEPUR TQ- AND DIST- GULBARGA (NOW KALABURAGI) DEEMED
TO HAVE LAPSED UNDER SECTION 24(2) OF THE 2013 ACT
ANNEXURE-B AND ETC.
THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS
ON 29.05.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDER
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE R.NATARAJ
CAV ORDER
(PER: HON'BLE MR. JUSTICE R.NATARAJ)
The petitioners have sought for a declaration that the
acquisition proceedings initiated by the Kalaburagi Urban
Development Authority under the preliminary notification dated
28.11.1977 in respect of Sy.No.126/A of Badepur, Kalaburagi
taluk and district measuring 12 acres 11 guntas has lapsed
under Section 24(2) of the Right to Fair Compensation and
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Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (henceforth referred to as the 'Act,
2013' for short). The petitioner have also sought for a direction
to re-determine the compensation as per the Act, 2013.
2. The petitioners contend that they were the owners
of the land bearing Sy.No.126/A measuring 24 acres 23 guntas
situated at Badepur, Kalaburagi taluk and district, which was
proposed for acquisition in terms of a preliminary notification
under Section 15 of the City Improvement Trust Board Act and
published in the official gazette on 02.12.1976. Later, the
respondent No.4 issued a notification under Section 4(1) of the
Land Acquisition Act, 1894 (henceforth referred to as 'Act,
1984' for short) on 28.11.1977 for the purpose of a housing
and development scheme, followed by a notification under
Section 6 of the Act, 1894. The State Government by an order
dated 18.04.1980 appointed respondent No.3 to perform the
duties of a collector under the Act, 1894 which was published in
official gazette on 21.04.1980, and an award was passed on
27.11.1992. The Urban Development Authority in terms of its
letter dated 29/21-051997 requested the Government to
approve the enhanced market value of Rs.75,000/- per acre, in
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view of the Urban Development Authority fixing the value of the
adjacent land at Rs.75,000/- per acre. The possession of the
property was taken over on 01.12.1992 which was evidenced
by a notification under Section 16(2) of the Act, 1894. The
petitioner contends that the notice under Section 12(2) of the
Act, 1894 was served on 30.12.1992. The petitioners had filed
a Reference Application under Section 18(2) of the Act, 1894
on 15.02.1993 seeking enhancement of compensation which
was referred to the Reference Court and numbered as LAC
Nos.1503/1996, 1044/97 and 1045/1997. The State
Government later de-notified 12 acres 12 guntas of land out of
24 acres 23 guntas land in Sy.No.126/A in terms of a
notification dated 05.06.1999. The petitioners contend that the
Urban Development Authority therefore, acquired only 12 acres
11 guntas in Sy.No.126/A. The petitioners claimed that they
filed an affidavit dated 03.07.1999 before the Urban
Development Authority undertaking to withdraw all the cases
filed by them against the authority releasing 12 acres 12
guntas of land. Accordingly the reference applications were
withdrawn. The petitioners contend that by representations
dated 22.02.2001 and 27.06.2001, they requested the
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authority to pay the compensation. Later by a letter dated
09.06.2003 they submitted several documents to claim the
compensation. The petitioners contend that they were not paid
the compensation till they filed the present writ petition.
Therefore, they contend that the acquisition has lapsed in view
of Section 24(2) of Act, 2013. They contend that the authority
in its resolution dated 28.10.2017 had admitted that the
compensation was not paid to the petitioners. Therefore, the
petitioners have filed this writ petition for the aforementioned
reliefs.
3. The writ petition is opposed by the respondent
Nos.2 and 3 who contend that the petitioners have suppressed
the material facts namely that on 21.12.1996 the petitioners
had requested the Urban Development Authority to de-notify
50% of the land, out of the total extent and consented for
acquisition of balance land. The petitioners also agreed to
accept the compensation of the acquired land at the rate fixed
by the authority and that they would withdraw all the pending
reference cases filed under Section 18(2) of the Act, 1894. The
undertaking so given is marked as Annexure-R1. It is
contended that the proposal was accepted by the Authority.
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After obtaining necessary approval from the State Government,
a notification dated 08.10.1998 was issued which is enclosed as
Annexure - R2. Accordingly, the authority de-notified 12 acres
12 guntas of the land located on the southern side of
Sy.No.126/A by a notification dated 05.06.1999 and acquired
12 acres 11 guntas of land. Pursuant to the said settlement,
the petitioners executed an affidavit dated 03.07.1999
undertaking to withdraw all the cases filed against the authority
and agreed to forego all claims in respect of acquired land
regarding compensation or damages caused due to acquisition.
They contended that the entitlement of the petitioners was as
per the award dated 27.11.1992. The respondents contend
that the petitioners are now taking advantage of the award
claiming that the same is not in accordance with law. It is also
contended that as agreed by the petitioners, they withdrew the
reference cases filed under Section 18(2) of the Act, 1894. The
petitioners also addressed a letter dated 08.01.2001 seeking
distribution of the amount awarded as per the share mentioned
therein. Therefore, it is contended that these facts have been
suppressed and therefore, the writ petition is liable to be
dismissed. It is contended that the award is passed much prior
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to Act, 2013 coming into force and award notice was also
served to the petitioners and therefore, the acquisition cannot
lapse under Section 24(2) of the Act, 2013. They contend that
in view of the judgment of the Hon'ble Apex Court in the case
of Indore Development Authority Vs. Manoharlal & ors. -
2020 (8) SCC 129, the word 'or' found in section 24(2) of the
Act, 2013 has to be read as 'nor' or as 'and'. It is therefore,
contended that the acquisition does not lapse as the award was
passed and possession was already taken over by the
authority. Extensive reference are made to the judgment of
Hon'ble Apex Court in the case of Indore Development
Authority referred supra. The respondents therefore prayed
that the writ petition be dismissed.
4. The learned counsel for the petitioners contended
that once 12 acres 12 guntas of land in Sy.No.126/A was de-
notified after the award was passed, the award dated
27.11.1992 was unenforceable, as it was in respect of the
entire extent of land in Sy.No.126/A measuring 24 acres 23
guntas. Therefore, he contends that it was incumbent upon the
respondent No.3 to pass a fresh award in respect of 12 acres
11 guntas. He therefore, contends that since a fresh award
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was not passed within a period of 05 years prior to 01.01.2014,
the acquisition has lapsed. Even otherwise, he contends that
the acquisition was under the Act, 1894 and as a fresh award
was not passed, the acquisition is bound to lapse under Section
11A of the Act, 1894. He contended that even though part of
the land was de-notified from acquisition and even though a
request was made by the petitioner to pay compensation, the
same is not done and therefore, violates Article 300A of the
Constitution of India.
5. Per contra, the learned senior counsel for
respondent Nos.2 and 3 contends that the award was passed
on 27.11.1992 and notice of the award was served on the
petitioners. She contends that it was on the request of the
petitioners that half of the acquired land was de-notified from
acquisition and the petitioners had undertaken that they would
give up 10 acres of land to the authority and accept the
compensation of the acquired area of land "at the rate as given
to abutting neighboring land owners and as fixed by the
authority." They also undertook that they would not approach
the Court or higher authority against the settlement and agreed
to withdraw all cases filed by them. They also suggested a final
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offer to accept 50% of the land. Based upon this, the State
Government held proceedings and de-notified 12 acres 12
guntas of land under Section 48(1) of the Act, 1894, in terms
of a notification dated 05.06.1999. She contended that the
petitioners had given an affidavit undertaking to receive
compensation at the rates determined by the authority and
withdraw the cases filed by them seeking reference. She invited
attention of the Court to one of the declarations made in the
affidavit which reads as follows:
"therefore, I/We entitled to get the
compensation amount for the remaining part of
Sy.No.126/A of Badepur, possessed by GDA i.e., 12
acres 11 guntas located to the northern side of the
said Sy.No. as per the award passed by SLAO,
Gulbarga in its proceeding dated 27.11.1992."
6. She therefore, contends that the petitioners cannot
now claim that a fresh award had to be passed, as the
compensation is already determined and which was accepted
by the petitioners. She contends that the petitioners by their
act have waived off all their right by agreeing to accept the
compensation already determined and hence, cannot now claim
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that a fresh award has to be passed. In this regard, she relied
on the following case law:
i) The Director of Inspection of Income Tax
(Investigation), New Delhi and another Vs. M/s.
Pooran Mal and sons and another - (1975) 4 SCC 568.
ii) Commissioner of Customs, Mumbai Vs. Virgo Steels,
Bombay and Another - (2002) 4 SCC 316.
iii) Krishna Bahadur Vs. Purna Theatre and Others -
(2004) 8 SCC 229.
7. She contends that the petitioners have deliberately
suppressed the above facts and hence, the petition is liable to
be dismissed on this ground above. In support of the above
contention she has relied on the following case laws:
i) K. Jayaram and Others Vs. Bangalore Development
Authority and Others - (2022) 12 SCC 815.
ii) Nathani Steels Ltd., Vs. Associated Constructions -
1995 Supp (3) SCC 324.
iii) Rajasthan State Industrial Development and
Investment Corporation and another Vs. Diamond and
Gem Development Corporation Limited and another -
(2013) 5 SCC 470.
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8. She further contends that the possession of the
land measuring 12 acres 11 guntas was taken over which was
evidenced by a notification under Section 16(2) of Act, 1894
and hence, there is no reason to declare that the acquisition
had lapsed. In support of her contention she has relied on the
following case law:
i) Indore Development Authority Vs. Manoharlal and
others - (2020) 8 SCC 129.
ii) Delhi Development Authority Vs. Bhagwat Singh and
others - (2022) 10 SCC 213.
iii) Government of NCT of Delhi and another Vs.
Karampal and another - (2023) 1 SCC 39.
iv) Land and Building Development [State (NCT of Delhi)]
and another Vs. Mahipal Singh and others - (2023) 1
SCC 111.
v) Government of NCT of Delhi Vs. Krishna Saini and
others - (2023) 1 SCC 170.
vi) Land Acquisition Collector (South) Vs. Hari Chand and
another - (2023) 6 SCC 99.
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She contends that if the petitioners have submitted
representations claiming compensation, the same would be
released in accordance with law.
9. I have considered the submissions made by the
learned counsel for the petitioners as well as the learned Senior
counsel for the respondent Nos.2 and 3. I have also perused
the material placed on record which has thrown up two
questions for consideration namely;
(i) Whether the acquisition has lapsed under Section
24(2) of Act, 2013 for not passing the award?
(ii) Whether fresh award had to be passed in the light
of denotification of 12 acres 12 guntas of land after
award was passed?
10. The facts that are not in dispute are that the land
belonging to the petitioner in Sy.No.126/A measuring 24 acres
23 guntas situate at Badepur, was acquired by the State
Government for the purpose of a housing development scheme.
It is not in dispute that after such acquisition, an award was
passed on 27.11.1992 determining the compensation payable
to the petitioners. It is also not in dispute that the petitioners
have sought for reference to determine the market value of the
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acquired land. It is also not in dispute that after the award was
passed, the possession of the land was taken over by the
authority on 01.12.1992 which was evidenced by a notification
under Section 16(2) of the Act, 1894. The Hon'ble Apex Court
in the case of Indore Development Authority referred
supra, has considered the said question in extenso and held
that;
"366.3. The word "or" used in Section 24(2)
between possession and compensation has to be
read as "nor" or as "and". The deemed lapse of
land acquisition proceedings under Section 24(2) of
the 2013 Act takes place where due to inaction of
authorities for five years or more prior to
commencement of the said Act, the possession of
land has not been taken nor compensation has
been paid. In other words, in case possession has
been taken, compensation has not been paid then
there is no lapse. Similarly, if compensation has
been paid, possession has not been taken then
there is no lapse."
11. In view of the undisputed fact that the award was
passed on 27.11.1992 and an award notice was served on
petitioners on 30.12.1992 and the possession of the land was
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taken over on 01.12.1992, the question No.(i) has to be
answered against the petitioners. In so far question No. (ii) is
concerned, the answer lies in the facts of the case.
12. It is admitted that the award notice under Section
12(2) of Act, 1894 was served on the petitioners on
30.12.1992. It is also not in dispute that later a settlement was
arrived at between the authority and the petitioners, in terms
of which, 12 acres 12 guntas of land was de-notified from
acquisition, in terms of a notification dated 05.06.1999. It is
also not in dispute that the petitioners had declared in terms of
their joint affidavit dated 03.07.1999 that they would receive
the compensation in respect of the acquired land as per the
award dated 27.11.1992. The de-notified land measuring 12
acres 12 guntas was handed over to the petitioners on
05.07.1999 and the petitioners had thereafter withdrawn the
applications filed by them for reference under Section 18(1) of
Act, 1894. Therefore, it is clear that the petitioners had agreed
to receive the compensation at the rate already determined as
per the award dated 27.11.1992 and therefore, they cannot
now contend that the award dated 27.11.1992 was
unenforceable. It is the first principal of law that the petitioner
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cannot approbate or reprobate and cannot attack the award
after drawing the benefit from the settlement entered into with
the authority. The contention that the acquisition should lapse
for not passing a fresh award, is liable to be rejected. In so far
as the contention that the compensation is not paid till date, in
the judgment of Hon'ble Apex Court in the case of Indore
Development referred supra, it was held that;
"366.4. The expression "paid" in the main
part of Section 24(2) of the 2013 Act does not
include a deposit of compensation in court. The
consequence of non-deposit is provided in the
proviso to Section 24(2) in case it has not been
deposited with respect to majority of landholdings
then all beneficiaries (landowners) as on the date of
notification for land acquisition under Section 4 of
the 1894 Act shall be entitled to compensation in
accordance with the provisions of the 2013 Act. In
case the obligation under Section 31 of the Land
Acquisition Act, 1894 has not been fulfilled, interest
under Section 34 of the said Act can be granted.
Non-deposit of compensation (in court) does not
result in the lapse of land acquisition proceedings.
In case of non-deposit with respect to the majority
of holdings for five years or more, compensation
under the 2013 Act has to be paid to the
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"landowners" as on the date of notification for land
acquisition under Section 4 of the 1894 Act. "
13. In that view of the matter, the petitioners are not
entitled to seek for a declaration that the acquisition has
lapsed.
14. However, it is the case of the authority that the
petitioners are entitled to compensation as per the award dated
27.11.1992. The letter submitted by petitioners on 22.02.2001
and 27.06.2001 shows that the compensation is not paid till
date. In that view of the matter, the respondents are bound to
pay compensation as determined by the award dated
27.11.1992. Hence, the following:
ORDER
(i) The Writ petition is allowed in part.
(ii) The relief of declaration that acquisition of
Sy.No.126/A of Badepur, Kalaburagi Taluk and
District has lapsed under Section 24(2) of the
Act, 2013 is rejected.
(iii) The respondent Nos.2 and 3 are directed to
release the compensation payable to the
petitioners in respect of 12 acres 11 guntas of
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land in Sy.No.126/A of Badepur, Kalburagi taluk
and district as per the award dated 27.11.1992
alongwith interest as provided under Section 34
of the Land Acquisition Act, 1894. In order to
enable the respondent Nos.2 and 3 to release
the compensation, the petitioners are directed
to file a fresh representation within a period of
two weeks from today indicating the names of
persons in whose favour the compensation has
to be released and the ratio at which it has to
be released.
(iv) The respondent Nos.2 and 3 are directed to
release the compensation within a period of
three months from the date of filing of
representation by the petitioners.
Sd/-
(R.NATARAJ)
JUDGE
HJ
