Karnataka High Court
Nagaraja S vs National Highways Authority Of India on 9 May, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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WP No. 20724 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 20724 OF 2023 (LA-RES)
BETWEEN:
NAGARAJA.S.
AGED ABOUT 61 YEARS,
C/O G.SANNALINGAPPA,
#67/4, GROUND FLOOR, 5TH CROSS,
SUBBANNA GARDEN, BEHIND BUNT SANGH,
BASAVESWARA LAYOUT, VIJAYANAGAR,
BENGALURU-560 040.
...PETITIONER
(BY SRI. S.NAGARAJA, PETITIONER, PARTY-IN-PERSON)
AND:
1. NATIONAL HIGHWAYS AUTHORITY OF INDIA,
NEAR CHAMUNDESHWARI TEMPLE,
KSRTC BUS DEPOT ROAD,
CHITRADURGA-577 501.
Digitally REPRESENTED BY THE SPECIAL
signed by
KIRAN LAND ACQUISITON OFFICER.
KUMAR R
Location:
HIGH
COURT OF
2. PROJECT DIRECTOR,
KARNATAKA NATIONAL HIGHWAYS AUTHORITY OF INDIA,
PROJECT IMPLEMENTATION UNIT,
NEAR J.M.I.T., NH-4 (201 KM)
CHITRADURGA-577 502.
3. DEPUTY COMMISSIONER & ARBITRATOR,
OFFICE OF THE DISTRICT MAGISTRATE,
DEPUTY COMMISSIONER AND ARBITRATOR,
TUMAKURU-572 101.
...RESPONDENTS
(BY SRI.PRAKASH.V.ANGADI, ADVOCATE FOR R-1 & R-2;
SMT. B.P..RADHA, AGA FOR R-3)
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WP No. 20724 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARE THE PRELIMINARY NOTIFICATION No.S.O.974 (E)
DATED 3RD NOVEMBER 2000 (VIDE ANNEXURE C) AND
SUBSEQUENT FINAL NOTIFICATION No.S.O.873(E) DATED
11.09.2001 (VIDE ANNEXURE D) ON THE SCHEDULE LAND ARE
VOID, ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 03.04.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
The relevant facts of the case are as follows:
1. On 03.11.2000, a notification under Section 3A of the
National Highways Act, 1956 ("the NH Act") was issued
giving notice of the Central Government's intention to
acquire several lands for the purpose of widening of
National Highway No.4.
2. The land belonging to the petitioner bearing Survey
No.184 at Urukere village measuring 1,000 square meters
was also included in said notification.
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3. On 11.09.2001, a declaration under Section 3D was
issued declaring that the lands mentioned in the
notification stood vested absolutely in the Central
Government, free from all encumbrances.
4. In this declaration, the land bearing survey No.184
was also included. However, as against the initially notified
extent of 1,000 square meters, the declaration stated that
only 600 square meters of land was needed. This land was
stated to be standing in the name of the petitioner--
S.Nagaraj and his mother--S.Hemalatha.
5. On 31.12.2002, an award was passed in respect of
2,497.75 square feet of land for a sum of Rs.90,543/- by
valuing the land at Rs.36.25/- per square foot. This
amount was also paid to the petitioner on 29.12.2003.
6. On 14.02.2005, another award was passed in respect
of 4,036.25 square feet in Survey No.184/P for a sum of
Rs.1,46,314/-. This amount was also paid to the petitioner
on 14.03.2005.
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7. Thus, in all, a sum of Rs.90,543/- + 1,46,314/-
totally amounting to Rs.2,36,857/- was paid for an extent
of 2,497.75 sq. ft. + 4,036.25 sq. ft., i.e., in respect of
600 square meters which was the subject matter of the
declaration.
8. On 21.11.2006, the petitioner executed a sale deed
in respect of an additional extent of 2,178 sq. ft. of land in
same survey No.184, which were classified as Site Nos.1,
2, 3 and 4 in the sale deed, in favour of the Central
Government for a total sale consideration of Rs.78,953/-
(at Rs.36.25/- per square foot). A cheque dated
03.11.2006 was also handed over to the petitioner on the
day of execution of this sale deed.
9. Thus, an extent of 6 guntas was acquired by the
Central Government by recourse to the provisions of the
NHAI Act and an extent of 2 guntas was acquired by
means of a direct purchase by the Central Government in
Sy No 184. In other words, an extent of 8 guntas of land
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in Sy No 184 became the property of the Central
Government.
10. As against the compensation paid to the petitioner in
furtherance of acquisition of his lands measuring 2,497.75
sq. ft amounting to Rs. 90,543/-, the extent of 4,036.25
sq. ft amounting to Rs. 1,46,314/- granted to him under
the two awards and a sum of Rs. 78,593/- paid to him
towards the purchase of an extent of 2,178 sq. ft in favour
of the Central Government, the petitioner sought reference
to the Arbitrator as provided under the NH Act.
11. The Arbitrator by his award dated 28.07.2010 held
that the petitioner's claim in respect of 2,497.75 square
feet of land (amounting to Rs.90,543/-) could not be
considered since the petitioner had preferred an appeal
before the predecessor of the arbitrator and the said claim
had been dismissed. The Arbitrator, therefore, considered
the claim only in respect of the remaining two portions of
the land--i.e., the acquired portion of 4,036.25 sq. ft. and
the purchased portion of 2,178 sq. ft. of land. The
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Arbitrator proceeded to enhance the compensation by
50% from Rs.36.25/- to Rs.54.40/- per square foot.
12. Thereafter, in the year 2010, the petitioner
embarked on his journey of litigation in respect of his
lands.
13. The petitioner filed W.P.No.40924/2010, wherein he
contended that he had been paid compensation in respect
of 8 guntas, but in respect of another one gunta of land
which had been acquired, he had not been paid any
compensation. This Court, by an order dated 27.01.2011,
observed that if the petitioner had any grievance with
regard to the determination of compensation in respect of
8 guntas passed by the arbitrator, he was at liberty to
challenge the same in accordance with law in terms of the
Arbitration and Conciliation Act, 1996 ("the A&C Act").
14. In respect of said one gunta of land, the National
Highways Authority of India ("the NHAI") made a
submission that the cheque in respect of the enhanced
compensation was ready and the petitioner could receive
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the same. This Court directed the competent authority to
consider the petitioner's representation dated 06.06.2008
and permitted the petitioner to file another representation
in this regard.
15. The petitioner then filed his second writ petition in
W.P.No.33021/2011 seeking a direction for payment of the
entire compensation for the acquisition of his 9 guntas of
land. This Court taking note of the award of the arbitrator
concluded that if the petitioner had any grievance against
the award of the arbitrator, it was open for him to take
such steps as provided under the A&C Act.
16. Furthermore, this Court also recorded a finding that
the 1 gunta of the land belonging to the petitioner, was
taken possession of by the NHAI in the year 2001 itself,
while acquiring the 8 guntas of land, and that the entire 9
guntas of land belonging to the petitioner, was, in fact,
one single bit of land. This Court also took note of the
submission of the NHAI that the petitioner may be directed
to execute a sale seed in respect of this 1 gunta of land in
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order to facilitate the payment of compensation to the
petitioner. This Court stated that if petitioner was ready to
execute a sale deed in respect of the 1 gunta of land, it
was open for him to do so, but if he was not ready to do
so, the NHAI was directed to proceed in accordance with
law and pay the compensation.
17. The petitioner, thereafter, initiated contempt
proceedings in C.C.C.No.296/2012 and in those
proceedings, since the petitioner was unable to indicate
the compensation that he was agreeable to receive from
the NHAI, it was directed to take recourse to the
alternative mode of acquisition of 1 gunta of land.
18. Pursuant to this order, the NHAI proceeded to issue a
notification under Section 3A of the NH Act in respect of
101 square meters i.e., the 1 gunta of land which it had
already taken over and had utilised without acquisition.
19. The petitioner then proceeded to file his third writ
petition in W.P.No.49425/2012 seeking a direction to the
Authorities to drop the illegal acquisition of said 1 gunta.
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This Court, by an order dated 20.03.2013, refused to
quash the acquisition proceedings, but directed that the
acquisition proceedings be concluded, and the
compensation be determined. This Court also directed that
damages should also be determined for the unauthorised
use and occupation of the 1 gunta of land.
20. The petitioner preferred a writ appeal in the
W.A.No.No.2889/2013 against this order, but the same
was dismissed with costs on 06.06.2013.
21. Thereafter, the NHAI proceeded to issue a
declaration under Section 3G on 09.07.2013 for the
acquisition of abovesaid 101 square meters of land.
22. On 30.09.2013, an award was also passed by the
competent authority in respect of this 1 gunta of land for a
sum of Rs.2,72,250/- at Rs.250/- per square foot. The
competent authority also awarded a sum of Rs.68,470/-
for the use and occupation of the 1 gunta of land from
25.11.2006 to 30.09.2013.
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23. It must be stated here that though in
W.P.No.33021/2011, this Court had held that possession
was taken on the 1 gunta of land in 2001 itself, the
damages were, however, awarded only from 25.11.2006
i.e., the date on which the sale deed in respect of 2,178
sq. ft. (2 guntas) had been executed.
24. Being aggrieved by this award (dated 30.09.2013) in
respect of 1 gunta, the petitioner preferred his fourth writ
petition in W.P.No.54376/2013. However, this challenge to
the award was rejected and the petitioner was directed to
make a claim before the arbitrator, if he was aggrieved by
the award of compensation.
25. On 04.02.2015, the Arbitrator proceeded to enhance
the compensation awarded by the Competent Authority on
30.09.2013 from Rs.250/- to Rs.300/- per square foot.
However, it confirmed the damages awarded under the
award dated 30.09.2013 for the unauthorised use and
occupation of the land.
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26. Thereafter, on 16.02.2015, the petitioner filed his
fifth writ petition in W.P.No.6289/2015 seeking a direction
to acquire 9 guntas of his land in survey No.184/P. This
Court by an order dated 23.02.2015 concluded that if the
petitioner was aggrieved by the award passed on
04.02.2015, it was open for him to approach the District
Court under Section 34 of the A&C Act and challenge the
award and it accordingly proceeded to dismiss the writ
petition reserving liberty to the petitioner to avail of the
remedy under Section 34 of the A&C Act.
27. Thereafter, the petitioner preferred an application
under Section 34 of the A&C Act before the District Judge
in Arb. Case No.01/2015, and the District Judge by an
order dated 12.01.2016 dismissed said application as not
being maintainable.
28. Subsequently, the petitioner preferred his sixth writ
petition in W.P.No.3025/2016 before this Court, once
again seeking a direction to acquire 9 guntas of his land,
and also to pay him a compensation of Rs.3,92,04,000/-
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towards damages. This Court, by an order dated
16.03.2016, came to the conclusion that the petition was
not maintainable for the reason that the petitioner was
basically questioning the rejection of his application by the
District Judge that he had filed under Section 34 of the
A&C Act. This Court also observed that the law did not
contemplate any remedy for a person such as the
petitioner herein (who was dissatisfied with the amount of
compensation), and that it was open to the petitioner to
approach this Court under Article 226 of the Constitution
of India, but the petition preferred therein could not be
converted to one challenging the quantum of
compensation that was awarded to him.
29. The petitioner thereafter proceeded to file his sixth
writ petition in W.P.No.20128/2016, once again seeking a
direction to pay a sum of Rs.3,92,04,000/- towards
damages. The petitioner, however, sought to withdraw the
writ petition and sought liberty to prefer an appeal against
the order passed by the District Judge on 12.01.2016,
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and, accordingly, the liberty sought was granted and the
petition was dismissed as withdrawn.
30. On the strength of the liberty granted by this Court,
the petitioner preferred an appeal in M.F.A.No.1056/2017
challenging the order of the District Judge passed on the
application filed under Section 34 of the A&C Act
challenging the award of the arbitrator dated 12.01.2016.
However, a division bench of this Court dismissed said
appeal on 23.04.2019 and a special leave petition
preferred against that order in S.L.P. No.9830/2020 was
also dismissed on 21.08.2020.
31. In the meantime, the petitioner had preferred his
seventh writ petition in W.P.No.25492/2019 for a
mandamus to consider his application dated 30.05.2019
and this petition was disposed of by an order dated
24.06.2019 directing the competent authority to consider
his application.
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32. On 18.09.2019, the Competent Authority rejected
the petitioner's application for compensation to the tune of
Rs.3,92,04,000/- along with 9% interest.
33. The petitioner, thereafter, preferred his eighth writ
petition in W.P.No.326/2022 in which he sought
Rs.8,80,59,532/- as damages for the illegal use and
occupation of his land. This petition was dismissed by an
order dated 08.07.2022 and a writ appeal preferred
against that order in W.A.No.634/2022 was also
dismissed. A special leave petition preferred against that
order in S.L.P.No.16972/2022 was also dismissed on
14.11.2022.
34. Thereafter, the petitioner proceeded to file his ninth
writ petition, but this time before the Supreme Court
under Article 32 in W.P.(C) Diary No.24695/2023.
However, writ petition was dismissed on 01.09.2023 with
an observation that if the petitioner so desired, he could
approach this Court to avail of his remedy. Consequently,
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the petitioner has presented this petition on 11.09.2023,
which is his tenth writ petition.
35. In this petition, the petitioner has prayed for the
following reliefs:
a. quashing the first set of notifications, preliminary
and final, issued under Sections 3A and 3G of the
NH Act on 03.11.2000 and 11.09.2001
(respectively);
b. quashing the second set of notifications dated
17.08.2012 issued under Section 3A and
declaration dated 09.07.2013 issued under
Section 3G of the NH Act;
c. quashing the sale deed dated 21.11.2006
executed in favour of the NHAI in respect of 2,178
sq. ft. of land; and
d. mandamus to direct the NHAI to pay damages
caused to him and to acquire 9 guntas of land
under Sections 14 and 15 of the NHAI Act by
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disposing of his application dated 15.05.2023
within a specific time frame.
36. The petitioner, in support of his case, has cited the
following judgments in support of his arguments, which
are summarised below:
a. Union of India v. Gopaldas Bhagwan Das &
Ors., 2018 SCC OnLine SC 3621: on delay and
laches -- the acquisition of the year 1975 was
challenged in the year 2002 on the ground of non-
publication of the Section 4 notification in the
Official Gazette as required under the Land
Acquisition Act, 1894 -- the Apex Court placed
reliance on Kulsum R. Nadiadwala1 to ignore
the delay and laches therein;
b. V. Gunda Reddy v. the Secretary, Department
of Revenue and Ors., ILR 2005 Kar 5692:
unlawful possession of lands shown to be lawful
and the procedure for taking possession of lands
as per the guidelines laid down by the Supreme
Court had not been followed -- if a specific method
for carrying out an action is stipulated by law,
such action must adhere to that method, or it
Kulsum R. Nadiadwala v. State of Maharashtra, (2012) 6 SCC 348.
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should not be carried out at all. Taking of
possession is not merely 'symbolic' as interpreted
under civil law, but the actual possession must be
taken in the eye of law by transferring possession
from the owner/occupant of the land to the
Government. In terms of these observations, it
was held that the petitioner would not be divested
of his rights and title over the subject lands; and
c. Manubhai Sendhabhai Bharwad & Anr. v. Oil
and Natural Gas Corporation Ltd. & Ors.,
2023 SCC OnLine SC 63: challenging the
temporary acquisition of land made by the ONGC
for oil exploration -- the Apex Court observed that
continuing temporary acquisition under the Land
Acquisition Act, 1894 for 26 years is arbitrary and
infringes the right of the landowner to use
property as per Article 300A of the Indian
Constitution. Taking into consideration the fact
that writ of mandamus had already been issued by
the jurisdictional High Court therein, the Apex
Court directed the ONGC to act as per the orders
of the High Court; and with respect to challenging
the quantum of rent/compensation paid for usage
of the land, the landowners therein were directed
to approach the jurisdictional Collector.
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37. As could be seen from the above narration of facts,
an extent of 6 guntas (600 square meters) was acquired
under the notifications dated 03.11.2000 (under Section
3A) and a declaration dated 11.09.2001 (under Section 3G
of the NH Act). Two awards were passed in respect of said
extent of 6 guntas and a sum of Rs.2,36,857/- was paid to
the petitioner. As against the payment offered by the
competent authority, the petitioner sought reference to
the arbitrator, and the arbitrator enhanced the
compensation from Rs.36.25/- per square foot to
Rs.54.40/- per square foot. It is thus clear that in respect
of the first acquisition of 6 guntas of land, the petitioner
has not only received the compensation but has also
sought enhancement of the compensation and was also
granted an enhancement by the Arbitrator, which has
become final. In light of the fact that petitioner has not
only received the compensation, but has also made a
claim for enhanced compensation and also secured it, the
present writ petition challenging the acquisition would not
be maintainable.
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38. As could also be seen from the above narration of
facts, after the first acquisition, the petitioner also
executed a sale deed on 21.11.2006 and conveyed 2,178
sq. ft (2 guntas) of land, for which he was paid a
consideration of Rs.78,953/- (at Rs.36.25 per square
foot). In fact, even in respect of this land which the
petitioner sold, the arbitrator had enhanced the value of
the land from Rs.36.25/- per square foot to Rs.54.40/- per
square foot and the petitoner has also received said
amount. In view of the fact that the petitioner had sold 2
guntas of land under a registered sale deed in the year
2006, it would not be permissible for him to seek setting
aside the sale deed executed in the year 2006 by way of
this writ petition.
39. This Court in W.P.No.33021/2011 had recorded a
finding that the 1 gunta of the petitioner's land was taken
possession of in 2001 itself and, in all, 9 guntas of the
petitioner's land had been utilised by the NHAI. This Court
had further recorded a finding that the petitioner could
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execute a sale deed in respect of said 1 gunta of land, and
if he was not agreeable to execute a sale deed, the same
should be acquired in accordance with law.
40. Pursuant to this order, the acquisition of the subject
1 gunta of land (101 square meters) was carried out by
notifying it under Section 3A of the NH Act on 17.08.2012
and by issuance of a declaration dated 09.07.2013 and the
passing of an award on 30.09.2013. In this award, apart
from determining the compensation at the rate of Rs.250/-
per sq. ft. for the 1 gunta of land, a sum of Rs.68,470/-
was also awarded for the use and occupation of the land
before acquisition from 25.11.2006 to 30.09.2013.
41. The petitioner, being aggrieved by this award, sought
a reference to the arbitrator, and the arbitrator by an
award dated 04.02.2015 enhanced the compensation from
Rs. 250/- per sq ft to Rs.300/- per square foot. The
Arbitrator also confirmed the award of Rs.68,470/- for the
use and occupation of the 1 gunta of land from
25.11.2006 to 30.09.2013.
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42. The petitioner challenged this award by making an
application under Section 34 of the A&C Act before the
District Judge and this application was also dismissed on
12.01.2016. An appeal against said order was also
dismissed by a division bench of this Court in
M.F.A.No.1056/2017 on 23.04.2019 and the Supreme
Court also confirmed the dismissal by dismissing the
petitioner's special leave petition in S.L.P.No.9830/2020
on 21.08.2020.
43. It is therefore clear that the petitioner sought
compensation for 1 gunta of land that had been illegally
utilised by the NHAI but subsequently acquired and he also
sought enhancement, which was granted partially by the
arbitrator and the award of the arbitrator has also been
confirmed by the District Judge, by this Court and also by
the Apex Court.
44. In light of the fact that the petitioner had made a
claim for compensation and has also received
compensation for this 1 gunta of land including for the use
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and occupation of said 1 gunta of land, it would be
impermissible for him to once again make a claim for
payment of damages in respect of the 9 guntas of land.
45. I am thus of the view that none of the prayers in the
present petition can be granted.
46. The present writ petition is therefore dismissed.
Sd/-
JUDGE
GSR
