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IN THE HIGH COURT OF KARNATAKA BANGALORE,
DATED THIS THE 24th DAY OF JUNE 2014
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
WRIT PETITION NO.3884 OF 1999 (LA)
C/W
WRIT PETITION NO.37140 OF 2000 (LA)
WRIT PETITION NO.708 OF 2000 (LA)
WRIT PETITION NO.19579/2001 (LA)
IN W.P.3884/1999
BETWEEN:
Jamanlal Bajaj Seva Trust
By its Joint Secretary
P.K. Desai, Major
Vishwaneedam Farm
Magadi Road, Bangalore
… PETITIONER
(Shri Udaya Holla, Senior Advocate for
Sri. Brijesh Patil, Advocate)
AND:
1. The State of Karnataka
By the Secretary to the
Government, Revenue
Department M. S.Buildings
Bangalore – 560 001.
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2. The Deputy Commissioner,
Bangalore District
Kirshi Bhavan, Bangalore
3. The Special Land Acquisition
Officer, Visweswarayya Centre
III Floor, Podium Block
Dr. Ambedkar Road
Bangalore – 560 001.
4. Agricultural Produce Market Committee
By its Secretary
Yeshwanthpura Market Yard
Yeshwanthpura,
Bangalore. … RESPONDENTS
(Shir H. Anantha, Government Pleader for Respondent Nos.1 to
3, Shri B. G. Sridharan Senior Advocate for Shri. A. C. Balaraj,
Advocate for respondent No.4)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to declare that the entire
acquisition proceedings commencing with the issue of a
preliminary notification gazetted on 03.09.1994 marked as
Annexure-A to the writ petition, have lapsed on account of the
award not being made within a period of two years in terms of
Section 11-A of the Land Acquisition Act and etc.
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W.P.NO.37140/2000
BETWEEN:
Jamnalal Bajaj Seva Trust
Vishwa Needham Farm
Magadi Road, Bangalore
Represented by its trustees:
1. Sri. Rahul Bajaj
Trustee/Chairman
C/o. Bajaj Auto, Akrudi
Pune – 411035
2. Sri. Sekhar Bajaj
3. Sri. D. S. Mehta
4. Sri. Moharikar
5. Smt. Meenakshi Bajaj
6. Smt. Kiran Bajaj
7. Shri. Vinod Nevatia
Peititioners No.2 to 7 are residing at
Bajaj Bhavan, II Floor, 226,
Jamnalal Baja Marg, Narihman Point
Bombay - 400021
… PETITIONERS
(Shri Udaya Holla Senior Advocate for
Sri. Brijesh Patil, Advocate)
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AND:
1. State of Karnataka
By its Secretary to
Government, Revenue
Department Multi-
Storeyed Buildings
Bangalore.
2. The Deputy Commissioner
Bangalore District
Krishi Bhavan,
Bangalore.
3. The Special Land Acquisition
Officer,
Visweswarayya Centre
III Floor, Podium Block
Dr. Ambedkar Road
Bangalore.
4. Agricultural Produce Market Committee
Yeshwanthpur,
Bangalore-22. … RESPONDENTS
(Shir H. Anantha, Government Pleader for Respondent Nos.1 to
3, Shri B. G. Sridharan, Senior Advocate for Shri.
A.C.Balaraj, Advocate for respondent No.4)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the impugned
notification vide Annexure-B dated 13.04.1999 issued by the
respondent No.2 and also the notification at Annexure-C dated
26.10.1999 issued by the respondent No.1 in so far as the
petitioner is concerned and etc.
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W.P.NO.708/2000
BETWEEN:
Viswaneedam Trust (R)
Represented by its Trustee
Smt. Mahadevi Thayi
Viswaneedam Post
Herohalli Village
Yeshwanthapur Hobli
Bangalore North Taluk. … PETITIONER
(Shri B. B. Patil, Advocate)
AND:
1. State of Karnataka
Represented by its Secretary
Revenue Department Multi-
M. S. Buildings
Bangalore-560001
2. Special Land Acquisition
Officer, III Floor, Podium Block
Visvesvaraiah Towers,
Dr. Ambedkar Road,
Bangalore-560 001.
3. The Deputy Commissioner
Bangalore Urban District
Bangalore.
4. M/S. Jamnalal Bajaj Seva Trust
By its Chief Executive Officer
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Sri. S.B.Pande, S/o. A. N. Pande
Age: 66 years, Viswaneedam Farm
Magadi Road, Bangalore.
5. Agricultural Produce Market Committee
Yeshwanthpur, Bangalore-22
Represented by its Secretary
… RESPONDENTS
(Shri Udaya Holla, Senior Advocate for Shri Brijesh Patil,
Advocate for respondent No.4 and Shri H. Anantha,
Government Pleader for Respondent Nos.1 to 3)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the impugned
notification dated 13.04.1999 vide Annexure-A and the
notification dated 26.10.1999 vide Annexure-B by the
respondents and etc.
IN W.P.19579/2001
BETWEEN:
Jamnalal Bajaj Seva Trust
Vishwa Needham Farm
Magadi Road, Bangalore
Represented by its trustees:
1. Sri. Rahul Bajaj
Trustee/Chairman
C/o. Bajaj Auto, Akrudi
Pune – 411035
2. Sri. Sekhar Bajaj
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3. Sri. D. S. Mehta
4. Sri. Moharikar
5. Smt. Meenakshi Bajaj
6. Smt. Kiran Bajaj
7. Shri. Vinod Nevatia
Peititioners No.2 to 7 are residing at
Bajaj Bhavan, II Floor, 226,
Jamnalal Baja Marg, Nariman Point
Bombay – 400 021.
… PETITIONERS
(Shri Udaya Holla Senior Advocate for
Sri. Brijesh Patil, Advocate)
AND:
1. State of Karnataka
By its Secretary to
Government, Revenue
Department Multi-
Storeyed Buildings
Bangalore.
2. The Deputy Commissioner
Bangalore District
Kirshi Bhavan,
Bangalore.
3. The Special Land Acquisition
Officer, Visweswarayya Centre
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III Floor, Podium Block
Dr. Ambedkar Road,
Bangalore.
4. The Secretary
Agricultural Produce Market Committee
Yeshwanthpur,
Bangalore. … RESPONDENTS
(Shri H. Anantha, Government Pleader for Respondent Nos.1 to
3, Shri B.G.Sridharan Senior Advocate for Shri. A.C.Balaraj,
Advocate for respondent No.4)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the Karnataka Act
No.33/91 Annexure-K is illegal and unconstitutional and
thereby declare that the D.C., Has no authority to decide
whether the land is acquired for public purpose or not and issue
notification under Section 4(1) of the Land Acquisition Act and
etc.
These writ petitions coming on for Orders this day, the
Court made the following:
ORDER
These petitions are heard and disposed of together as they
relate to the same lands, which are the subject matter.
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Re. WP 3884/1999
The petitioner is said to be a Public Charitable Trust, said
to have been formed in the year 1942 and later registered under
the provisions of the Bombay Public Trusts Act, 1950
(Hereinafter referred to as the ‘1950 Act’, for brevity). Its
objects are said to be to promote the welfare of socially and
economically backward classes. It claims to be the owner of
lands bearing Survey Nos.12/1, 12/2, 13, 14, 16, 17,18,19 , 42
and 43/1 of Shrigandada Kaval, Bangalore North Taluk. The
total extent of the lands, mentioned above, is said to be 172
acres 22 guntas. It is stated that the State government had
issued a notification under Section 4(1) of the Land Acquisition
Act, 1894, (Hereinafter referred to as the “LA Act”, for brevity)
dated 3.9.1994, proposing to acquire the aforesaid lands for the
benefit of the Karnataka Agricultural Produce Marketing
Committee (Hereinafter referred to as the ‘APMC’, for brevity)
to establish what is billed as a, Mega Market complex. A final
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declaration under Section 6(1) of the LA Act was said to have
been notified as on 31.10.1996.
It is stated that Notice under Sections 9 and 10 of the LA
Act was issued to the petitioner in respect of the above lands. It
is pointed out that there is no reference to any publication of the
final declaration under Section 6(1) of the LA Act, in the
locality as contemplated under Section 6(2) thereof. The non-
compliance with the said mandatory requirement, it is claimed,
vitiates the acquisition proceedings.
It is also claimed that no award is passed and the
possession of the lands have remained with the petitioner and
hence it is contended that the acquisition proceedings have
lapsed. It is stated that though the Special Land Acquisition
Officer (SLAO) had issued an endorsement to the effect that a
draft award had been made on 12.8.1998 and that the same had
been sent for approval by the Government. This, it is stated,
evidences that the approval of the award by the State
Government had not been granted before 9.11.1998 i.e., within
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two years from 31.10.1996, the date of publication of the final
notification under Section 6 (1) of the LA Act.
Hence the present petition. There was an interim order, of
stay of dispossession, granted by this court as on 8.2.1999.
Re. WP 37140/2000
The petitioner is the same as in WP 3884/1999, which is
said to be a Charitable Trust, formed in the year 1942 and later
registered under the 1950 Act, in the year 1961.
The petitioner is said to hold agricultural lands at various
places. Such lands are said to include the lands bearing survey
no. 12/1, 12/2, 13, 14, 16, 17, 18, 19, 42, 43/1, 30, 31, 32,
43,44,45,46,47, 48, 49 and 52/2 measuring in all 272.33 acres
19 guntas of Shrigangada Kaval and Herohalli villages,
Bangalore North Taluk.
As already stated in the first of these petitions, the above
lands, to the extent of 172 acres and 22 guntas, were notified
for acquisition under the provisions of the LA Act. Even
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during the pendency of the above writ proceedings, it is stated
that the State government chose to issue yet another
notification, in exercise of power under Section 4(1) and
Section 17(4) of the LA Act, read with the Karnataka
Amendment Act 33/1991, dated 16.4.1999. The proposed
acquisition was also said to be for the establishment of the very
Mega Market complex for the APMC. The following lands
belonging to the petitioner were notified:
Sl.No. Survey No. Area
Acres
Guntas
Total Area
Acres
Guntas
1 30 1 01
0 04 PK
1 05
2
31
0 27
0 27
3 32 3 35
0 21 PK
4 16
4 41 1 01 1 01
5 42 1 20
0 01 PK
1 21
6 43 12 28
0 29 PK
14 17
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7 44 8 04
2 31 PK
10 35
8 45 5 00
0 07 PK
5 07
9 46 4 00
0 05 PK
4 05
10 47 5 00
0 28 PK
5 28
11 48 4 26 4 26
12 49 2 36
0 04 PK
3 00
13 51 1 12 1 12
14 52 39 01
6 00 Pk
45 01
Grand total
104 00
104 00
However, it is stated that lands bearing Survey no.45,46
and 48 had been notified as if the lands belonged to a Trust
known as the Viswaneedam Trust. It is claimed that the lands
had been permitted, by the petitioner, to be utilized by the said
Trust for a limited purpose and that the ownership continued to
vest in the petitioner and hence the said lands being shown as
being held by Vishwaneedam Trust was misleading.
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It is also stated that none of the conditions for invoking
Section 17 of the LA Act was present, hence it was unjust and
illegal to have dispensed with the enquiry contemplated under
Section 5A of the LA Act. It is also stated that the declaration
under Section 6(1) of the LA Act was issued after a lapse of six
months, and gazetted on 18.11.1999.
It is stated that, in the mean while, the Secretary to
Government, Revenue Department had convened a meeting on
24.9.1999, to consider the value of the land to be paid as
compensation for acquisition, by consent. It is claimed, that at
the said meeting, the value of the lands at Shrigandada Kaval
was said to have been fixed at Rs.15 lakh per acre and in
respect of the lands at Herohalli, the value was fixed at Rs. 9.5
lakh per acre. It is claimed that the petitioner was awaiting
payment of the said amount of compensation, but without
paying any compensation and without issuing any notice to the
petitioner, possession was claimed to have been taken of an
extent of 65 acres and 37 guntas of land. It is in that
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background that the present petition was filed. There was an
interim order of stay granted on 4.12.2000.
The petitioner now claims that since the State
government had not been able to abide by the agreement to pay
compensation as aforesaid and having regard to the passage of
time, even the amount of compensation then agreed has become
illusory and inadequate.
It is further stated that a general award was said to have
been passed by the SLAO in respect of an extent of 65 acres 19
guntas of land, as per notice dated 21.5.2002 issued to the
petitioner, calling upon it to produce title deeds in order to
receive the compensation amount. It is stated that by a reply
notice dated 22.6.2002, the petitioner had, without prejudice to
the rights of the petitioner and without giving up its challenge
to the acquisition, is said to have made a request for the
amount awarded. It is stated that out of 65 acres and 19 guntas,
for which the award was said to have been made, the petitioner
is said to have been paid compensation in respect of 32 acres
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and 5 guntas only. It is stated that the award amount in respect
of the remaining land is neither paid to the petitioner nor
deposited in court as required under Section 31 of the LA Act.
It is claimed that an extent of 33 acres and 14 guntas (out of 65
acres 19 guntas) comprises land belonging to the petitioner.
But it is stated that the respondents are claiming the same to be
government kharab land, without any basis, and have withheld
the compensation amount though the said extent was notified in
the name of the petitioner.
Further, it is stated that another significant development
during the pendency of the petition is the coming into force of
the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (Act no
30/2013) (Hereinafter referred to as the ‘2013 Act’, for brevity).
The same is in force with effect from 1.1.2014. The LA Act
stands repealed from the above said date.
It is claimed that under Section 24(2) of Act No.30/2013,
as the award, in respect of the present proceedings had been
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made on 21.5.2002, i.e., five years prior to the commencement
of the said Act, but physical possession of the land not having
been taken, the acquisition proceedings have lapsed. It is also
claimed that the proceedings have lapsed in the further
circumstance that though it is claimed that an award had been
framed for 65 acres 19 guntas as on 21-5-2002, i.e., five years
prior to the commencement of the new Act, compensation in
respect of an extent of 33 acres 14 guntas had not been paid.
Hence it is sought that it be declared that with the coming into
force of the Act 30/2013, the acquisition proceedings stand
lapsed.
Re.WP 708/2000
The petitioner herein, Viswaneedam Trust, is said to be a
public charitable Trust, formed in the year 1963. The petitioner
claimed to be the owner of lands bearing Survey Nos. 32, 42,
43, 44, 45, 46 and 47 measuring about 35 acres in all. It was
claimed that the petitioner had grown a large number of
coconut, areca, banana, mango and other fruit bearing trees in
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the said lands. It was also claimed that there were structures
such as residential houses, servants quarters and cattle sheds on
the said lands. It was contended that though there were other
barren lands in the vicinity, the State having chosen to issue the
notifications dated 13.4.1999 and 26.10.1999, under Section
4(1) and Section 6(1) of the LA Act, respectively, proposing to
acquire the aforesaid lands, the petitioner had filed the petition
questioning the same.
There was a dispute about the petitioner’s claim to
ownership of the land, as it was claimed that respondent no.4,
(the petitioner in WP 37140/2000 claimed to be the actual
owner - who was said to have granted permissive possession to
the petitioner herein) was the actual owner. During the
pendency of this petition- it is claimed that the inter se dispute
as between the petitioner herein and respondent no.4 has been
resolved and the possession of the entire extent of land has been
redelivered to respondent no.4, the petitioner in WP
37140/2000. The petition is hence infructuous.
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Re. WP 19579/2001
This is the third petition filed by the very petitioner -
Trust, as in WP 3884/1999 and WP 37140/2000.
The present petition is filed challenging the acquisition
proceedings initiated vide notification under Section 4(1) and
Section 17(1) of the LA Act in respect of lands bearing Survey
nos.41,42 and 51 of Herohalli owned by the petitioner totally
measuring 3 acres and 34 guntas. It is stated that after the
issuance of the preliminary notification, no further proceedings
have been taken and hence the acquisition proceedings had
lapsed. It is stated that the petitioner continues in possession of
the lands to date.
The State government has resisted the petitions and it is
contended that the lands at Shrigandada Kaval, totally
measuring 172 acres and 22 guntas, which are the subject
matter of the first of these petitions – has indeed been notified
for acquisition – for a public purpose. It is contended that the
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procedure has been strictly complied with. In that, the
preliminary notification under Section 4(1) of the LA Act was
issued on 2.9.1994, the same was published in the Gazette on
3.9.1994 and in the village Chawadi on 11.10.1994 in respect of
the said lands. The notice under Section 4(2) of the LA Act
was issued to the Petitioner -Trust and an enquiry under Section
5-A was conducted. The Petitioner- Trust had filed its
objections. The objections were considered and over-ruled and
a final notification under Section 6(1) of the LA Act was issued
on 10.10.1996 and the same was published in the gazette on
31.10.1996.
That after the preliminary notification dated 3.9.1994 and
the publication in the Village Chawadi on 11.10.1996, one
Rajajinagar House Building Co-operative Society, had filed a
writ petition in WP 28988/1994 before this Court and there was
an order of stay of further proceedings on 22.12.1994, which
continued to be in force upto 22.12.1995. The said writ petition
was dismissed on 22.12.1995 and the final notification under
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Section 6(1) of the LA Act was issued on 10.10.1996 and the
publication in the Village Chawadi was on 6.12.1996.
Thereafter, the Rajajinagar House Building Co-operative
Society, again, had filed another writ petition in WP 6880 of
1997 and there was yet another order of stay of proceedings on
10.9.1998. It is contended that an enquiry under Sections 9 and
10 of the LA Act had been completed and the draft award had
been sent to the Deputy Commissioner and the same had been
returned on noticing that there was an order of stay in the above
proceedings, on 31.3.1999.
It is contended that the assertion as to there being a
violation of Section 11-A of the LA Act and the award not
being passed within two years and the proceedings having
lapsed under Section 11-A are not tenable. It is stated that from
the date of notifications under Sections 4(1) and 6(1) of the LA
Act, excluding the period during which there were orders of
stay of the proceedings in various writ petitions, the
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notifications were well within time and the award would
therefore be valid.
The APMC, which was impleaded as a respondent in the
first of these petitions, has admitted that by a notification dated
2.9.1994 issued under Section 4(1) of the LA Act, land
measuring 172.22 acres land, of Shrigandadakaval village,
Yeshwanthpur Hobli, Bangalore North Taluk, was proposed to
be acquired for a public purpose, namely, for the establishment
of a Mega Market by it. And that declaration was made by
issuing a final notification under Section 6(1) of the LA Act on
10.10.1996 declaring that the said lands were being acquired for
the above purpose. It is claimed that on the basis of instructions
by the SLAO, Bangalore, that it had deposited a sum of
Rs.9,14,14,837/- on 29.8.1998 towards the approximate cost of
acquisition.
It is further stated that by a separate notification dated
13.4.1999 issued under Section 4(1) of the LA Act, an area
measuring 104.5 acre situated at Herohally village,
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Yeshwanthpur Hobli, Bangalore North Taluk, was proposed to
be acquired for formation of the same Mega Market by it. The
said lands were situated adjacent to the lands proposed to be
acquired at Shrigandadakaval. It is asserted that after following
the necessary procedure, a declaration was made under Section
6(1) of the LA Act, on 26.10.1999. It is stated that while issuing
the notification, instead of mentioning the total area as 104.5
acre, an area measuring 100.11 acres of land in Herohally was
declared to have been acquired for a public purpose. It is
claimed that at the request of the SLAO, it had deposited a sum
of Rs.5,56,09,054/- on 6.12.2000 towards the approximate cost
of acquisition for the entire extent of 104.5 acre. It is pointed
out that when the final notification indicated 100.11 acres of
land was acquired, leaving out 3.34 acre, it is stated that the
APMC had made a representation to the State Government to
bring to its attention that the said area of land could not have
been left out, as the same was situated in the midst of the area
of land to be acquired. It was also demonstrated that without
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acquisition of the said extent of land, APMC would not be in a
position to effectively form a Mega Market. Therefore, it was
requested that the said portion of land also be acquired. It is
thereafter that a preliminary notification dated 3.4.2001 was
issued under Section 4(1) of the LA Act, proposing to acquire
3.34 acres of land situated in Herohally village for the purpose
of formation of a Mega Market.
It is claimed that after the final notification was issued in
respect of lands situated in Herohally village, the concerned
authority had passed an award in respect of 100.11 acres and
thereafter delivered possession of 65.19 acres to the APMC on
6.10.2000 and out of 65.19 acres of land handed over to the
APMC, 33.14 acres was said to have been notified as phut
kharab in the revenue records. And that after taking delivery of
possession of 65.19 acres, the APMC has fenced the said area
with barbed wire at a cost of Rs. 3,96,299/- and had also made
security arrangements to the protect the said area.
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It is stated that a writ petition, in WP 6880/97 was
presented before this Court by the Rajajinagar House Building
Co-operative Society, challenging the acquisition of 172.22
acres of land situated at Shrigandadakaval, for the benefit of the
APMC, on the ground that the said land ought to have been
acquired for the benefit of the Society for the formation of a
residential colony and ought not to have been acquired for the
purposes of a Mega Market.
It is stated that it was in the above circumstances that the
writ petition in WP 3884/1999 challenging the preliminary
notification dated 3.9.1994 and the final notification dated
10.10.1996, acquiring 172.22 acres of land situated at
Shrigandadakaval for the benefit of the Market Committee, was
filed by the petitioner - Trust and that there was an order of stay
of dispossession.
It is stated that the writ petition in WP 708/2000 filed by
one Vishwaneedam Trust challenging the preliminary
notification dated 13.4.1999 and the final notification dated
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13.4.1999 acquiring 100.11 acres of land situated at Herohally
village, Yeshwanthpur Taluk, Banglaore North Taluk, for the
purpose of formation of a Mega Market, but had confined its
claim to an extent of 35 acres of land, on the ground that it was
the owner of the said portion of land. And that an interim order
had been granted in the said writ petition on 13.1.2000 by this
Court, staying dispossession.
It is contended that except WP 19579-85/2001, all the
other writ petitions were referred to the High Court Lok Adalat
with a view to find out as to whether a conciliation could be
effected for fixation of market value in respect of the acquired
lands by an amicable settlement. A series of sittings are said to
have taken place and at one stage of the proceedings, it was
pointed out by the APMC before the Lok Adalat that no
reliance could be placed on the proceedings of the meeting
dated 24.9.1999, which was relied upon by the petitioners for
the purpose of fixation of market value, for the simple reason
that the said proceedings were cancelled subsequently at
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another meeting held on 6.1.2000. Further, it was pointed out
that the entire item of lands involved in these writ petitions
were subject matter of proceedings before the Land Tribunal,
Bangalore, as regards determination of land holdings in excess
of the ceiling limit prescribed thereunder. Therefore, it was
contended that if the Tribunal were to hold that the lands vest in
the State Government, then the question of payment of
compensation would not arise and as such it was pointed out
before the Lok Adalat that it would not be appropriate to go
into the question of market value of the schedule lands and to
fix the same. It is in that background the cases were referred
back to this Court.
The State government, in the second of these petitions
(WP 37140/2000), has also pointed out that the lands involved
in these petitions are subject matter of proceedings before the
Land Tribunal, Bangalore North Taluk under Section 67(1)(b)
of the Karnataka Land Reforms Act, 1961 (Hereinafter referred
to as the ‘KLR Act’, for brevity).
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As already stated, the acquisition proceedings pursuant to
the preliminary notification dated 30.9.1994, were stayed by an
order passed in writ proceedings filed by the Rajajinagar House
building Society, challenging the acquisition proceedings, in
WP 28988/1994, dated 22.12.1994 and that order had remained
in force till the petition was said to have been dismissed on
23.12.1995. It is only thereafter that the final declaration was
said to have been issued on 10.10.1996. Therefore, excluding
the period during which the order of stay was in operation, the
final notification has been issued within the stipulated period of
one year.
That in so far as the lands which are the subject matter of
acquisition at Herohally are concerned, it is stated that the
notification under Section 4(1) of the LA Act was issued on
13.4.1999, invoking Section 17 of the LA Act, an enquiry under
Section 5-A was dispensed with. It is stated that the enquiry
under Sections 9 and 10 of the LA Act, was said to have been
conducted on various dates including on 15.2.2000. It is
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claimed that the land owners, who had participated had sought
for time to voluntarily hand over possession of the lands – but
had failed to do so. It is claimed that ultimately, possession of
the lands was said to have been taken on 6.10.2000 and a
notification under Section 16(2) was said to have been
published on 2.11.2000.
It is denied that there was a final settlement as regards the
proposal to pay compensation, which was tentatively pegged at
Rs.9.50 lakh per acre, in respect of the lands at Herohally and
Rs.15.00 lakh in respect of the lands at Srigandada Kaval. It is
claimed that the acquiring body was not in favour of the
settlement and hence the proposal was not finalized. It was
decided by the State government to frame a general award It is
asserted that the meetings held to discuss the proposed
valuation and the correspondence exchanged was hence not in
the nature of firm decisions of the State government and were
tentative attempts towards making a consent award. It is
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contended that the petitioner cannot claim any advantage on
the basis of the said meetings and discussions.
It is admitted by the State Government that the
compensation amount has not been paid or deposited in view of
the subject lands being subject matter of proceedings before the
Land Tribunal, Bangalore North Taluk, and that the matter is
awaiting adjudication before the said Tribunal.
It is asserted that the acquisition notifications have been
issued in time. That the acquisition of lands at Shrigandada
Kaval was under the ordinary procedure and hence an enquiry
under Section 5-A was conducted and a report was submitted to
the government. Whereas in respect of the lands at Herohally,
the emergency clause was invoked and hence a notice under
Section 4(2) of the LA Act was issued, but an enquiry under
Section 5-A was dispensed with and an award was said to have
been made and approved, but there was an order of stay in these
proceedings and hence no further steps could be taken. In
respect of Shrigandada Kaval, it is claimed that the award was
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framed but before it could be approved – there was an order of
stay of dispossession as per order dated 13.1.2000 and hence
there were no further proceedings.
2. Shri Udaya Holla, Senior Advocate appearing on
behalf of the counsel for the petitioner - Trust, would, while
reiterating the above contentions on behalf of the petitioner,
emphasize that admittedly, the very lands which are the subject
matter of the acquisition proceedings, were also the subject
matter of adjudication under the provisions of the KLR Act.
And since it has been the consistent view taken in collateral
proceedings before this court as well as in the present
proceedings, that the challenge to the acquisition proceedings
could not be proceeded with, without the proceedings under
the KLR Act attaining finality, it would follow that the
acquisition proceedings itself were misconceived for if there
should be a determination of the excess holding declared and
should the land vest in the State government, the acquisition
proceedings are rendered redundant. On the other hand, should
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any part of the land be held by the Tribunal, not to be excess
holding, then the acquisition proceedings being kept in
abeyance, pending such determination, albeit at the instance of
this Court, would be to the serious prejudice and loss of the
petitioner, in the petitioner being granted compensation with
reference to proceedings initiated decades ago.
It is contended that the 2013 Act having come into force,
the LA Act stands repealed. In terms of Section 24(2) of the
2013 Act, in the background that an award for an extent of over
a 100 acres of land is purportedly made in the year 2002
(26.3.2002) i.e., five years prior to the 2013 Act coming into
force (1.1.2014), and since neither physical possession has been
taken nor the compensation amount had been paid or deposited,
in accordance with law, the acquisition proceedings are deemed
to have lapsed. It is pointed out that the award being in respect
of 100 acres and 11 guntas, compensation in respect of 69 acres
and 14 guntas has neither been paid or deposited in accordance
with law. It is also stated that it is a fact that out of the partial
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amount in deposit, the petitioner has withdrawn a sum of over
Rs.2 crore, this was without prejudice to the right of the
petitioner to prosecute the challenge brought to the acquisition
proceedings or the same being treated as an indication of
acquiescence. Especially in the light of an agreed amount of
compensation that was to be paid in terms of the minutes of a
high level meeting dated 24.09.1999, convened under the
Chairmanship of the Principal Secretary, Revenue Department,
wherein the valuation of the lands in question was settled in
order to pass a consent award.
It is further contended that apart from the physical
possession of the petitioner being protected under the orders of
this court from time to time in the above petitions, even the
extent of 65 acres 19 guntas of land in respect of which
physical possession is said to have been handed over to the
APMC by the SLAO is misleading and disputed. It is
contended that the significant aspect to be considered as to
when and how the purported possession was taken of the said
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extent in question from the petitioner by the SLAO. It is sought
to be demonstrated from the record and with reference to case
law- that possession of the land cannot be said to have been
taken in fact and in law from the petitioner. It is further
asserted that the purported possession exercised by the APMC
is by virtue of applications by it before this court seeking
permission to fence the said extent of land, being granted in the
face of strong opposition by the petitioner that APMC was not
in possession at all. The impression that APMC was in
physical possession was further strengthened by making an
application seeking permission of this court, to purportedly
hand over an extent of 9 acres of land out of the 65 acres, to the
Bangalore Development Authority (BDA) and the Bangalore
Water Supply and Sewerage Board (BWSSB), for the purpose
of formation of a road by the BDA and for the construction of
a overhead tank by the BWSSB. This court, while fully being
aware that such a permission could only be considered at the
instance of the State government, had proceeded to grant such
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permission – in the wake of a lackadaisical attitude of the State
government and its counsel in taking any steps in that direction.
Hence the assertions of the APMC of being in physical
possession is untenable and illegal.
It is contended that the acquisition proceedings in respect
of lands at Shrigandada Kaval and at Herohally being for the
same purpose of establishment of a Mega Market by the
APMC, it is inexplicable that resort is had to Section 17 of the
LA Act, and it is also perplexing that this is only in respect of
the lands at Herohally – while the normal procedure is sought
to be followed in respect of the lands at Shrigandada Kaval. It
is contended that having regard to the object of the acquisition,
the invocation of the emergency provision is wholly irregular
and results in a miscarriage of justice in the petitioner being
deprived of a valuable right of participation at an enquiry
preceding the acquisition.
A large number of authorities are cited to substantiate the
above contentions and in seeking that having regard to the
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present circumstances of the case and the position of law, relief
may be appropriately granted to the petitioner.
3. The learned Senior Advocate, Shri B. G. Sridharan,
appearing on behalf of the learned counsel for the APMC
would, on the other hand, contend, that in the admitted
circumstance that there were proceedings pending before the
Land Tribunal, Bangalore North Taluk, in respect of the very
same lands and the Land Tribunal by its order dated 12.1.2010
having determined the lands as being excess holdings, which
would vest with the State government and which was the
subject matter of challenge in proceedings before this court in
WP 4311/2010, having now been allowed by an order of this
bench, dated 24.3.2014, and the matter having been remitted to
the Tribunal for a fresh consideration - it would be appropriate
that these petitions be kept in abeyance pending disposal of the
said proceedings by the Tribunal. Attention is drawn to the
view expressed by another learned single judge, in a similar
situation, in these very proceedings, dated 25.10.2005.
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The said order reads as follows :
“In view of the order passed in
W.P.No.46841/01 directing the Land Reforms Tribunal
to proceed with the enquiry and as the finding to be
recorded by the Land Reforms Tribunal will have
direct bearing in deciding these writ petitions, these
writ petitions are adjourned awaiting the decision of
the Land Tribunal.
Liberty is given to both the parties to move the
court after the order of the Land Tribunal is passed.”
It is pointed out that the recourse to such a line of action
is for the obvious reason that if the lands in question are found
to be excess holdings, exceeding the ceiling limit under the
provisions of the LR Act, the same would vest in the State and
would be available to be handed over to the APMC, without the
need for acquisition proceedings. Even if it is to be found
otherwise, the acquisition proceedings having reached almost
the final stages and the APMC having deposited over Rs.15
crore towards the cost of acquisition, at the cost of the
exchequer, should not to be deprived the opportunity to contest
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the proceedings should such an eventuality arise. In the
meanwhile , the loss if any is entirely of the APMC and would
cause no prejudice to the petitioner, if these proceedings are
kept in abeyance pending adjudication by the Tribunal.
It is contended that even if this court is now inclined to
hear the petitions on merits, it is to be seen that the acquisition
proceedings had attained finality in all respects, except that
there were interim orders of stay of dispossession granted in
favour of the petitioner which had prevented the proceedings
from reaching a culmination.
It is sought to be pointed out that the APMC as the
beneficiary of the acquisition intends to establish a market for
the benefit of the farming community and the public in general,
the urgent need for the establishment of the market and the
direct benefit that it would bring to the consumer- apparently
had prompted the State government to invoke the emergency
provision in respect of the acquisition of lands at Herohally.
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This was also possibly warranted given the impediments that
were posed to the acquisition of the lands at Shrigandada Kaval.
It is asserted that the APMC has been put in possession of a
total extent of 65 acres 19 guntas of land at Herohally, as
recorded under the Official Memorandum of the SLAO, dated
6.10.2000, in respect of the following items of land :
Survey Numbers in Herohalli
Village, Bangalore North
Taluk, Bangalore
Extent
30 1 - 05
31 0 - 27
32 4 - 16
43 1 - 03
44 5 - 21
48 4 - 26
49 3 - 00
52:2 45 – 01
TOTAL 65 - 19
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It is also pointed out that the entire extent has been fenced and
protected from third party intruders.
It is further pointed out that there is a categorical
admission on behalf of the petitioner - Trust that possession of
the land had been voluntarily delivered as per letter dated
22.6.2002 and hence the petitioner is estopped from contending
that possession of the lands, atleast to the extent of 65 acres 19
guntas was not taken and handed over to the APMC.
It is further contended that the contention as to the
coming into force of the 2013 Act and the consequent lapsing
of proceedings, is not tenable having regard to the fact that the
proceedings initiated under the LA Act are saved, in the
absence of any delay attributable to any inaction on the part of
the State Government in either taking possession within the
stipulated time or in paying compensation within the prescribed
period. On both counts , it is contended, that in view of the
interim orders granted by this court in the course of these
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proceedings, it cannot be construed that Section 24(2) would
come into play.
It is also contended that the several authorities cited by
the other side would be authorities for the cases decided therein
and unless it is shown that the same can be applied to the facts
and circumstances of the present case on hand the same would
not be relevant. It is hence contended that the petitions be
dismissed, if in the event that this court is not inclined to defer
the matters, in the light of the contention hereinabove.
4. In the light of the above contentions and on an
examination of the record, the points that would arise for
consideration are as follows :
a. Whether the disposal of these petitions should be
deferred pending adjudication and determination by the
Land Tribunal, Bangalore North Taluk, of the excess
holdings or otherwise , under the provisions of the
Karnataka Land Reforms Act, 1961, of the very lands
which are the subject matter herein.
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b. Whether the possession of a portion of the lands in
question having said to have been given to APMC , can
be said to be valid and in accordance with law.
c. Whether the invocation of Section 17 of the LA Act in
the acquisition of a portion of the lands for the same
purpose was justified .
d. Whether the acquiring authority could keep in abeyance
the mandate to pay or deposit the compensation amount,
pending disposal of the proceedings before the Land
Tribunal in respect of the same lands.
e. Whether the acquisition proceedings have lapsed by
virtue of the 2013 Act.
As regards the first point hereinabove, is concerned, there
is no dispute that the proceedings under the provisions of the
KLR Act had been initiated much earlier to the Land
Acquisition proceedings, in respect of the same lands. It has
been the consistent view that the said proceedings pertaining to
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43
the determination of excess holding of lands beyond the ceiling
limit, is to be adjudicated in the first instance by the Land
Tribunal, before which the said proceedings are pending, and
that depending on the result of those proceedings, it may or
may not require these proceedings to be addressed. In that, if
the Land Tribunal should hold that the better portion of the
lands are excess holdings, the same would vest in the State, in
which event the acquisition proceedings to that extent would be
rendered infructuous. On the other hand, if the result is
otherwise it would then be necessary to decide these petitions,
one way or the other.
One of the compelling factors, in this court having
formed an opinion as to the propriety of keeping these
proceedings pending and in abeyance, till the decision of the
Land Tribunal and having adjourned the matter indefinitely, on
an earlier occasion, is the fact that the APMC, which is the
beneficiary of the acquisition proceedings has deposited a
substantial sum of money towards the cost of acquisition and
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44
has also expended other sums of money to safeguard that
portion of the lands of which it claims to have been put in
possession of by the acquiring authority.
The other circumstances which are probably relevant in
this court harbouring such a view, are that during the pendency
of these proceedings, the APMC had made an application in
I.A.No.1/2007, in W.P.37140/2000 seeking permission of this
court to deliver possession of 9 acres of land out of land bearing
Sy.no.52 of Herohalli, in favour of the Bangalore Development
Authority and the BWSSB, from out of the portion of 65 acres
and 19 guntas of land of which the APMC was said to have
been put in possession. This was in the background that the
BDA which was said to be forming a residential layout in the
vicinity intended to form a ring road to provide connectivity to
the said layout and hence required about 5 acres of land in land
bearing Sy.no.54 for the said purpose and had made a request to
the APMC, and a decision is said to have been taken to
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surrender the said extent to the BDA. A similar request is said
to have been made by the BWSSB for 4 acres of land to build a
water storage tank. This was also said to have been agreed to
by the APMC. At the hearing of the application it was pointed
out that the APMC may not have the authority or the locus
standi to seek any such relief, and any such request ought to
have emanated from the State. The counsel for the State
Government had then been called upon to make their stand
clear and to take necessary steps, as the need of the concerned
authorities was apparently for an urgent public purpose. But
having regard to the laconic attitude of the counsel for the State,
who chose not to take any initiative, as recorded by this Court
in its order dated 21-3-2007, the hand of this court was forced
to pass the following order, even in the absence of the State
Government conceding such a modality.
“(1) Application is allowed. Permission sought
for by the fourth respondent to handover 9 acres of
land as mentioned in the accompanying sketch to
enable the Bangalore Development Authority to form
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46
100 feet ring road and the remaining extent of land to
BWSSB to construct a water tank to supply water to
the residents of Sir M. Vishweswaraiah Layout is
granted. To that extent, interim order granted by this
Court on 4.12.2000 stands modified. However, the
compensation payable to the petitioner for the
aforesaid lands would be subject to the result of this
writ petition, and Bangalore Development Authority
and BWSSB would be liable to pay compensation to
the extent of the land made available to them at the
rate to be stipulated by this Court.
(2) The Land Reforms Tribunal, Bangalore
North Taluk, Bangalore is directed to dispose of the
petitioner’s application filed under section 66 of the
Karnataka Land Reforms Act which is numbered as
LRF 2099/74-75 on its file within three months from
the date of communication of this order and send a
copy of the order to this Court to enable this Court to
dispose of these pending writ petitions. The
Government is directed to ensure that the directions
issued in this order are complied with.”
Further, there was yet another application in
I.A.no.3/2008, filed by the APMC, to contend that after it was
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said to have been put in possession of about 65 acres and 19
guntas of land in Herohalli, the entire extent had been fenced
with barbed wire, but it was noticed that the said fencing was
being systematically dismantled and that there were attempts at
encroachment by several persons, apart from debris being
dumped on the land in question, hence permission was sought
to build a compound wall around the area. This application had
been allowed by an order dated 12.2.2009, thus :
“Under these circumstances the interest of
justice demands the extent of land, the possession of
which is given to the fourth respondent is to be
protected so that third parties interest are not created
during the pendency of the proceedings. However, it is
made clear if the fourth respondent were to put up any
compound wall, it is always subject to the result of
these petitions. The permission granted by this Court
to put up the compound wall or the fact that the fourth
respondent had spent considerable amount in putting
up the construction would in no way affect the rights of
the petitioners and the fourth respondent cannot plead
any equities on that ground. The ultimate object is to
protect the property and to hand over the property to
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the successful party. When the fourth respondent has
come forward to spend the money from its pocket,
protect the property and await the decision of this
Court, there cannot be any objection from any quarter
for taking such steps for protecting the property and
preserving the property. The order of status quo has
to be understood in that context.
4. In that view of the matter, I.A.3/2008 is
allowed as prayed for. It is made clear that the fourth
respondent shall not plead any equity and the said
construction would be subject to the result of the Writ
Petitions. The successful party would be entitled to the
benefit and improve on this property.”
It is hence understandable that this Court has consistently
retained these matters on the file of this Court, to ensure a
finality. But with the 2013 Act coming into effect, the
petitioner has sought to urge that the benefit of the provisions of
the said Act would be available to it. In this regard, an
application dated 24.02.2014 seeking to invoke the benefit of
the 2013 Act has been filed. The same is only to urge a point of
law.
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It is to be noticed that apart from the interim orders
restraining the State from proceeding with the acquisition
proceedings, granted from time to time in these petitions, there
are also other petitions filed by third parties – in which there
were interim orders restraining the State from proceeding with
the acquisition proceedings – inspite of the same, as claimed by
the APMC, substantial amounts towards the cost of acquisition
had been deposited by it before the possession of atleast 65
acres and 19 guntas were handed over to it out of a total extent
of about 276 acres and 27 guntas notified for acquisition. Such
possession is said to have been handed over on 6.10.2000. But
it is not in dispute that the entire compensation amount had not
been released nor was the petitioner held entitled to the same.
Though the withdrawal of about Rs.2.37 crore is admitted by
the petitioner, this is said to have been under protest and
without prejudice to the challenge to the acquisition
proceedings. The State government has categorically admitted
in its pleadings that the payment of compensation has been
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withheld in view of the pending proceedings before the Land
Tribunal, in respect of the very lands of the petitioner.
Paragraph 8 of the Statement of objections dated
25.9.2002, filed on behalf of the State in WP 37140-146/2000
reads thus :
“8. Regarding the allegations in paras 8 to 10
of the writ Petition that the compensation as per the
Act could not be paid to the land owners as held in the
Writ Petitions at Srigandakaval and Herohally village
on the ground that there is a dispute over the lands in
question and it is to be adjudicated by the Land
Tribunal, Bangalore North Taluk under the provisions
of the Act under Section 67(1)(b) and the matter is still
pending before the Land Tribunal and the petitioners
have appeared through their Advocates and the matter
has to be decided.”
This Court has also recorded as per order dated 4.12.2000
while granting an interim order as follows:
“The petitioners have filed these petitions for
quashing the preliminary notification dated 13.4.1999
(Annexure-B) issued under Section 4(1) and 17(4) of
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Land Acquisition Act, 1894 and final notification dated
26.10.1999 (Annexure-C) issued under Section 6(1) of
the Land Acquisition Act, 1894 in regard to
petitioners’ land measuring 104 acres 5 guntas
(situated in Sy.No.30, 31, 32, 41, 42, 43, 44, 45, 46, 47,
48, 49, 51 and 52 of Herohalli Village, Yeshwanthpur
Hobli, Bangalore North Taluk). Alternatively,
petitioners have sought a direction to respondents to
pay compensation in terms of the proceedings dated
29.4.1999 (Annexure-D). The interim prayer sought is
stay of the operation of the said preliminary
notification dated 13.4.1999, final notification dated
26.10.1999 (Annexure-B and C) insofar as the lands of
the petitioners are concerned.
2. Learned counsel for the APMC (4th
respondent) submitted that fourth respondent has
deposited a sum of Rs.4,98,92,264/- with the 3rd
respondent on 19.4.2000, and will also deposit a
further sum of Rs.67,16,719/- as required by the
Special LAO during this week, towards the acquisition.
He also stated that 3rd
respondent has taken possession
of 65 acres 19 guntas of land in pursuance of
Annexure-B and C and has delivered possession
thereof to the APMC, on 6-10-2000.
3. Section 17(3A) provides that before taking
possession of any land under sub-Section (1) of Sub-
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section (2), the Deputy Commissioner shall without
prejudice to the provisions of Sub-Section (3), tender
payment of eighty per centum of the compensation for
such land as estimated by him to the persons interested
entitled thereto, and pay it to them, unless prevented
by some one or more of the contingencies mentioned in
Section 31, sub-section (2), and where the Collector is
so prevented, the provisions of Section 31, sub-section
(2), (except the second proviso thereto), shall apply as
they apply to the payment of compensation under that
section.
4. Learned Government Pleader submitted that
80% payment could not be tendered because the
Assistant Commissioner has addressed a letter to the
Special Land Acquisition Officer on 26.5.1999 stating
that dispute under the Karnataka Land Reforms Act,
1961 is pending in regard to the lands and therefore,
80% of the estimated compensation could not be
disbursed till the disposal of the disputes.
5. But, strangely, four months thereafter, at a
meeting held on 24.9.1999, in which the Revenue
Secretary, Divisional Commissioner, Bangalore
Division, Inspector General of Stamps and
Registration, Bangalore, Special Deputy
Commissioner, Bangalore, Deputy Secretary to
Government, Revenue Department, Additional
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Director, Agriculture Department, Additional
Director, Agriculture Department, District Registrar,
Special Land Acquisition Officer, took part along with
the representatives of APMC and the petitioner, a
price of Rs.15 lakhs per acre for Lands in
Srigandadakaval and Rs.9.5 lakh per acre for the
lands in Herohalli was fixed and Khatedar were
required to execute agreements in Form-D. It is
however stated today that the said proceedings of the
meeting dated 24.9.1999 were subsequently cancelled
on 6.1.2000. The respondents have not yet produced
such cancellation, or the basis of the estimation of
compensation leading to the alleged deposit.
6. On the basis of the documents produced by
the petitioners, there is prima-facie violation of
Section 17(3A). The respondents are yet to produce
any document to come to a conclusion to the contrary.
Hence, there shall be an interim direction to all parties
to maintain stauts-quo in regard to the lands in
question until further orders. Liberty is reserved to
respondents to file statement of objections and
documents and seek modification or vacation of the
interim order. List the matter for preliminary hearing
in ‘B’ group on 4.1.2001.”
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It is thus evident that the State Government had no intention,
from inception, to release the compensation amount pending
disposal of the proceedings before the Land Tribunal.
It is also curious that the State Government in its
pleadings has been non-commital as regards the deposit of the
monies by the APMC and as regards possession of any portion
of the land having been handed over to it, or about the
corresponding compensation having been paid or deposited
before such possession could have been taken or handed over to
APMC.
In the above circumstances, there is indeed a window
which has opened for the Petitioner in seeking the benefit of the
provisions of the 2013 Act. It would hence be unfair and unjust
to keep these petitions pending and to enable the State to claim
that the delay or inaction if any, in the due process of law and
procedure being complied with in respect of the acquisition
proceedings, is only on account of the interim orders granted in
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these proceedings, when in the usual course the proceedings
would have lapsed if it is to be accepted that without the
proceedings before the Land Tribunal attaining finality, the
acquisition proceedings could not be taken forward.
Therefore in the above circumstance, it is not fair and just
to keep these matters in abeyance pending any decision by the
Land Tribunal in respect of the subject lands.
In so far as the second point framed for consideration is
concerned, the APMC is said to have been put in possession of
an extent of 65 acres and 19 guntas of land of Herohalli. The
sequence of events leading to the event of APMC having been
put in possession as above, is said to be as follows. The said
extent of land is part of the larger extent of land measuring
104.05 acres, which was proposed to be acquired vide
preliminary notification under Section 4 (1) read with Section
17 (4) of the LA Act, dated 13.4.1999. The final declaration
under Section 6 (1) of the LA Act was dated 26.10.1999. At
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this stage one Vishvaneedam Trust claiming interest in a
portion of land measuring about 35 acres of the said land had
preferred the aforementioned writ petition in W.P.708/2000,
and an interim order was issued staying dispossession over the
said extent.
A notice of an enquiry under Sections 9 & 10 of the LA
Act, to be held on 19.4.2000 is said to have been served on the
petitioner. It is thereafter that an Official Memorandum is seen
to have been issued, dated 6.10.2000, of handing over
possession of 65 acres 37 guntas of land to the APMC. The
writ petition in W.P.37140-146/2000 was filed by the petitioner
and an interim order directing the parties to maintain status quo
was issued by this court on 4.12.2000. The APMC is said to
have deposited a sum of Rs.5.56 crore as on 6.12.2000 with the
Special LAO, at his instance, towards the approximate cost of
acquisition for the entire extent of 104.05 acres of land.
Thereafter, the Special LAO is said to have passed an
award on 26.3.2002 in respect of the entire extent of 100 acres
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and 11 guntas of the lands notified. (An area of 3 acres and 34
guntas was inadvertently left out in the final declaration and
therefore a separate notification under Section 4 (1) of the LA
Act was issued on 3.4.2001) A notice dated 21.5.2002 was
issued to the petitioner to receive the compensation amount.
The petitioner is seen to have replied by a notice dated
22.6.2002 requesting that the compensation amount be paid
without prejudice to the challenge to the acquisition
proceedings in the present proceedings. The petitioner is said
to have received compensation in a sum of Rs.2.37 crore in
respect of 32 acres and 5 guntas, apparently excluding 35 acres
which was the subject matter of the Writ petition in
W.P.No.708/2000 and another extent of 34 acres 14 guntas
comprising unreserved kharab land claimed by the petitioner as
its own and which was notified for acquisition in the name of
the petitioner. A memo filed in these proceedings by the
APMC dated 17.7.2003 would state that the remaining amount
of the compensation amount is kept with the Special LAO . It
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is not claimed to have been deposited in court as contemplated
under Section 31 of the LA Act. The mandate of Section 17
(3-A) (1) of the LA Act, which requires payment of 80% of the
compensation amount has not been followed.
Having regard to the above sequence of events, it cannot
be said that the manner in which possession is said to have been
taken and handed over to the APMC was legal and valid. The
fact that the petitioner had received a portion of the
compensation amount under protest and has, at a point of time,
admitted to having delivered possession of some extent of the
lands atleast, as disclosed in a letter dated 22.6.2002, wherein
the petitioner has complained that it was mislead into believing
that it would be paid compensation as per the decision at the
meeting convened by the Secretary to Government of the
Revenue Department and attended by the Principal officers of
the APMC, apart from other officials of the State Government ,
wherein it was agreed that compensation would be paid to the
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petitioner at a market value of Rs.15 lakh per acre for lands at
Srigandada Kaval and at Rs.9.50 lakh per acre for lands at
Herohalli. It was on that basis that a request had been made to
deliver possession of the extent of 65.19 acres of land. The fact
that the petitioner has received a portion of the compensation
amount under protest is in consonance with the proviso to Sub-
section (2) of Section 31 of the LA Act. The petitioner also
claims to have made a reference to the competent civil court as
regards the adequacy of the compensation, at that point of time.
In so far as the third point for consideration is concerned, it is a
noticeable feature that the lands of the petitioner which are
sought to be acquired at Srigandada Kaval and the lands at
Herohalli are adjoining lands and are apparently sought to be
acquired as a compact block for the same purpose of
establishing a Mega Market by the APMC. The State has
however, chosen to apply the ordinary provisions of the LA Act
in respect of the lands at Srigandada Kaval, while invoking the
urgency provision in respect of the lands at Herohalli. It is
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evident that under Section 17 of the LA Act, the existence of
urgency is the guiding factor, it is not left to the subjective
determination of the State government, but would have to be
objectively decided by the Government considering all
circumstances. The above glaring circumstance can hardly be
explained. In any event there is not even an attempt by the
State Government to explain this incongruity. Therefore, it
may be said that the urgency in acquisition is not apparent.
In respect of the lands at Srigandada Kaval, measuring a
total extent of 172 acres and 22 guntas and which are the
subject matter of the notification under Section 4(1) dated
3.9.1994, and declaration under Section 6 (1) dated 31.10.1996,
it is noticed that there is no indication of publication of the
declaration under Section 6 (1) in the locality, as mandated
under Section 6 (2) of the LA Act. The Special LAO had
issued an endorsement to the effect that a draft award was made
on 12.8.1998 and the same had been sent for approval by the
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Government. This would indicate that the award was not
approved by the State Government on or before 9.11.1998, i.e.,
within two years from 31.10.1996, the date of publication of the
notification under Section 6 (1) of the LA Act. The writ
petition challenging the acquisition was filed on 4.2.1999.
In respect of the lands at Herohalli, measuring a total
extent of 104 acres belonging to the petitioner, which were the
subject matter of the notification under Section 4 (1) read with
Section 17 (4) of the LA Act dated 16.4.1999, declaration under
Section 6 (1) was issued as on 18.11.1999. Possession of the
lands to the extent of 65 acres and 37 guntas is said to have
been taken by the Special LAO and handed over to the APMC
as on 6.10.2000. The entire amount of compensation is neither
shown to have been paid or deposited in accordance with law.
The said acquisition was challenged in the above writ petition
in W.P. 37140-146/2000, there was an interim order directing
parties to maintain status quo, as on 4.12.2000. During the
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pendency of the petition, the Special LAO is said to have
passed an award dated 26.3.2002 in respect of 100.11 acres of
the said lands; It is evident that the award is passed well
beyond two years from the date of the final notification.
In respect of 3 acres and 34 guntas of land at Herohalli, which
ought to have been part of the lands notified for acquisition
under the notification dated 16.4.999 and which had been
apparently excluded inadvertently, were notified for proposed
acquisition, for the same purpose of establishment of the Mega
Market by the APMC, vide notification dated 3.4.2001, issued
under Section 4(1) read with Section 17(4) of the LA Act. The
above writ petition in WP 19759-85/2001 was filed challenging
the notification, there was no order of interim stay in the said
petition. But no further proceedings were taken and there is no
declaration under Section 6 of the LA Act.
Further, the 2013 Act having come into force with effect
from 1.1.2014, the LA Act stands repealed. It is seen that an
award for the entire extent of 100 acres and 11 guntas of the
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lands at Herohalli has been made in the year 2002. As
possession of the entire extent has not been taken nor the entire
compensation amount has been paid or deposited in accordance
with law, in terms of Section 24 (2) of the 2013 Act, the
acquisition proceedings have lapsed.
In this regard, the apex court in the case of Bharat Kumar
vs. State of Haryana & Another (Civil Appeal No.1971/2014),
while interpreting the scope and effect of the said Section 24 of
the 2013 Act has held thus :
“7. The learned counsel appearing for the
appellant, apart from the other contentions, would
bring to our notice Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition
Rehabilitation and Resettlement Act, 2013 (for short
“the Act, 2013”). He would contend that in view of
Section 24(2) of the Act, the award passed by the Land
Acquisition Collector is required to be set aside. In
aid of this submission, the learned counsel would
submit that although the award had been passed in the
appellant’s case, the physical possession of the land
had not been taken and the compensation has also not
been paid to the appellant. In support of this
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contention, the appellant has taken us through the
pleadings, both in the Writ Court as well as before this
Court, to contend that the physical possession of the
land continues to be with the appellant, in spite of the
award being passed by the Land Acquisition Collector.
8. To appreciate the contention raised by the
Learned Counsel for the Appellant, the said section is
required to be extracted.
“Section 24 of the Act 2013 is as under:
24.(1) Notwithstanding anything contained in
this Act in any case of land acquisition proceedings
initiated under the Land Acquisition Act, 1894,-
(a) where no award under section 11 of the said
Land Acquisition Act has been made, then, all
provisions of this Act relating to the determination of
compensation shall apply; or
(b) where an award under said section 11 has
been made, then such proceedings shall continue
under the provisions of the said Land Acquisition Act,
as if the said Act has not been repealed.
(2) Notwithstanding anything contained in
subsection (1), in case of land acquisition proceedings
initiated under the Land Acquisition Act, 1894, where
an award under the said section 11 has been made five
years or more prior to the commencement of this Act
but the physical possession of the land has not been
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taken or the compensation has not been paid the said
proceedings shall be deemed to have lapsed and the
appropriate Government, if it so chooses, shall initiate
the proceedings of such land acquisition afresh in
accordance with the provisions of this Act:
Provided that where an award has been made
and compensation in respect of a majority of land
holdings has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the
notification for acquisition under section 4 of the said
Land Acquisition Act, shall be entitled to
compensation in accordance with the provisions of this
Act.”
Sub-section (2) of Section 24 commences with a
non-obstante clause. It is a beneficial provision. In
view of this provision, if the physical possession of the
land has not been taken by the Acquiring Authority
though the award is passed and if the compensation
has not been paid to the land owners or has not been
deposited before the appropriate forum, the
proceedings initiated under the Act, 1894 is deemed to
have been lapsed.”
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And further, in the case of Pune Municipal Corporation
and another vs. Harakchand Misirimal Solanki and others
(2014) 3 SCC 183, it is laid down thus :
“10. Insofar as sub-section (1) of Section 24 is
concerned, it begins with non obstante clause. By this,
Parliament has given overriding effect to this
provision over all other provisions of 2013 Act. It is
provided in clause (a) that where the land acquisition
proceedings have been initiated under the 1894 Act
but no award under Section 11 is made, then the
provisions of 2013 Act shall apply relating to the
determination of compensation. Clause (b) of Section
24(1) makes provision that where land acquisition
proceedings have been initiated under the 1894 Act
and award has been made under Section 11, then such
proceedings shall continue under the provisions of the
1894 Act as if that Act has not been repealed.
11. Section 24(2) also begins with non obstante
clause. This provision has overriding effect over
Section 24(1). Section 24(2) enacts that in relation to
the land acquisition proceedings initiated under 1894
Act, where an award has been made five years or more
prior to the commencement of the 2013 Act and either
of the two contingencies is satisfied, viz; (i) physical
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possession of the land has not been taken or (ii) the
compensation has not been paid, such acquisition
proceedings shall be deemed to have lapsed. On the
lapse of such acquisition proceedings, if the
appropriate government still chooses to acquire the
land which was the subject matter of acquisition under
the 1894 Act then it has to initiate the proceedings
afresh under the 2013 Act. The proviso appended to
Section 24(2) deals with a situation where in respect of
the acquisition initiated under the 1894 Act an award
has been made and compensation in respect of a
majority of land holdings has not been deposited in the
account of the beneficiaries then all the beneficiaries
specified in Section 4 notification become entitled to
compensation under 2013 Act.
12. To find out the meaning of the expression,
“compensation has not been paid”, it is necessary to
have a look at Section 31 of the 1894 Act. The said
Section, to the extent it is relevant, reads as follows:
“31. Payment of compensation or deposit of
same in Court.-- (1) On making an award under
section 11, the Collector shall tender payment of the
compensation awarded by him to the persons
interested entitled thereto according to the award, and
shall pay it to them unless prevented by some one or
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more of the contingencies mentioned in the next sub-
section.
(2) If they shall not consent to receive it, or if
there be no person competent to alienate the land, or if
there be any dispute as to the title to receive the
compensation or as to the apportionment of it, the
Collector shall deposit the amount of the compensation
in the Court to which a reference under section 18
would be submitted:”
13. There is amendment in Maharashtra--
Nagpur (City) in Section 31 whereby in sub-section
(1), after the words “compensation” and in sub-
section (2), after the words, “the amount of
compensation”, the words “and costs if any” have
been inserted.
14. Section 31(1) of the 1894 Act enjoins upon
the Collector, on making an award under Section 11,
to tender payment of compensation to persons
interested entitled thereto according to award. It
further mandates the Collector to make payment of
compensation to them unless prevented by one of the
contingencies contemplated in sub-section (2). The
contingencies contemplated in Section 31(2) are: (i)
the persons interested entitled to compensation do not
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consent to receive it (ii) there is no person competent
to alienate the land and (iii) there is dispute as to the
title to receive compensation or as to the
apportionment of it. If due to any of the contingencies
contemplated in Section 31(2), the Collector is
prevented from making payment of compensation to
the persons interested who are entitled to
compensation, then the Collector is required to deposit
the compensation in the court to which reference
under Section 18 may be made.
15. Simply put, Section 31 of the 1894 Act
makes provision for payment of compensation or
deposit of the same in the court. This provision
requires that the Collector should tender payment of
compensation as awarded by him to the persons
interested who are entitled to compensation. If due to
happening of any contingency as contemplated in
Section 31(2), the compensation has not been paid, the
Collector should deposit the amount of compensation
in the court to which reference can be made under
Section 18.
16. The mandatory nature of the provision in
Section 31(2) with regard to deposit of the
compensation in the court is further fortified by the
provisions contained in Sections 32, 33 and 34. As a
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matter of fact, Section 33 gives power to the court, on
an application by a person interested or claiming an
interest in such money, to pass an order to invest the
amount so deposited in such government or other
approved securities and may direct the interest or
other proceeds of any such investment to be
accumulated and paid in such manner as it may
consider proper so that the parties interested therein
may have the benefit therefrom as they might have had
from the land in respect whereof such money shall
have been deposited or as near thereto as may be.
17. While enacting Section 24(2), Parliament
definitely had in its view Section 31 of the 1894 Act.
From that one thing is clear that it did not intend to
equate the word “paid” to “offered” or “tendered”.
But at the same time, we do not think that by use of the
word “paid”, Parliament intended receipt of
compensation by the landowners/persons interested. In
our view, it is not appropriate to give a literal
construction to the expression “paid” used in this
sub-section (sub-section (2) of Section 24). If a literal
construction were to be given, then it would amount to
ignoring procedure, mode and manner of deposit
provided in Section 31(2) of the 1894 Act in the event
of happening of any of the contingencies contemplated
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therein which may prevent the Collector from making
actual payment of compensation. We are of the view,
therefore, that for the purposes of Section 24(2), the
compensation shall be regarded as “paid” if the
compensation has been offered to the person interested
and such compensation has been deposited in the court
where reference under Section 18 can be made on
happening of any of the contingencies contemplated
under Section 31(2) of the 1894 Act. In other words,
the compensation may be said to have been “paid”
within the meaning of Section 24(2) when the
Collector (or for that matter Land Acquisition Officer)
has discharged his obligation and deposited the
amount of compensation in court and made that
amount available to the interested person to be dealt
with as provided in Sections 32 and 33.
18. The 1894 Act being an expropriatory
legislation has to be strictly followed. The procedure,
mode and manner for payment of compensation are
prescribed in Part V (Sections 31-34) of the 1894 Act.
The Collector, with regard to the payment of
compensation, can only act in the manner so provided.
It is settled proposition of law (classic statement of
Lord Roche in Nazir Ahmad v. King Emperor AIR
1936 PC 253 (2)) that where a power is given to do a
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certain thing in a certain way, the thing must be done
in that way or not at all. Other methods of
performance are necessarily forbidden.”
Keeping the above observations in view, in the instant
case, the award in respect of the lands at Herohalli was made
well before 5 years from the date of commencement of the 2013
Act. It is also evident that the entire amount of compensation
has neither been paid or deposited. The amount having been
deposited with the Special LAO by the APMC is of no avail
and cannot be held to be equivalent to compensation paid to the
landowners. Hence the acquisition proceedings pursuant to the
notification dated 16.4.1999 and declaration dated 18.11.1999,
shall be deemed to have lapsed under Section 24 (2) of the 2013
Act.
In the light of the above, it is concluded as follows:
a. The proceedings initiated under Section 66 of the KLR
Act in the year 1974 in LRF No.2099/74-75 being prior
in point of time, without those proceedings having
reached a finality, the State not being ready to proceed
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with the acquisition proceedings and even having
withheld the compensation amount on the footing that no
such contingency would arise if on culmination of the
proceedings under the KLR Act the lands would vest in
the State, is a stand that would defeat the acquisition
proceedings. The interim orders of stay granted by this
court from time to time and the pendency of these writ
petitions are incidental and are conveniently cited to
justify keeping the acquisition proceedings in suspended
animation, to the detriment and prejudice of the
petitioner, while ambiguously having chosen to go ahead
with further proceedings in having passed an award and
purportedly having handed over possession of a portion
of the land to the APMC notwithstanding an interim
order of this Court passed in respect of the said lands of
Herohalli.
b. The compensation amount that has been withdrawn by
the petitioner was only in respect of a portion of the land
of which possession was said to have been delivered to
the APMC. The State Government has expressly
indicated that it had no intention of releasing further
compensation to the petitioner till the disposal of the
proceedings before the Land Tribunal. Hence, the
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possession of the land to the extent of 65 acres and 19
guntas having been taken, was clearly illegal and
contrary to the provisions of the LA Act.
c. As the acquisition of land, both at Shrigandada Kaval and
Herohalli was for the same project, it is inexplicable that
the urgency provision has been pressed into service only
in respect of the lands at Herohalli and not in respect of
the lands at Shrigandada Kaval. This inconsistency
would on the face of it, demonstrate that there were no
circumstances prevalent to have recourse to the urgency
provision.
d. In the writ petition W.P.37140/2000, this Court was
prompted to grant an interim order only on being
appraised by the State Government that it is not in a
position to deposit or pay any compensation till there was
a finality to the proceedings pending before the Land
Tribunal, in respect of the same lands, and which
proceedings continue to be pending even as on date.
Therefore, there was no prospect of any further progress
either in the passing of an award, in respect of the lands
at Shrigandada Kaval or with regard to deposit of the
compensation amount pursuant to an award in respect of
the lands at Herohalli, for the benefit of the petitioner,
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even if there were no interim orders of this Court.
Hence, Section 24 of the 2013 Act would be attracted and
the entire acquisition proceedings would lapse.
e. If possession of 9 acres of land has been handed over to
the BDA and the BWSSB – without the State having
intervened and by virtue of the order of this Court dated
21.03.2007, and since the acquisition proceedings are
held to be bad – and in the absence of a determination of
compensation payable in respect of the land in question,
it would be appropriate to determine the compensation
payable in respect of such land as on date. The sum of
money received by the petitioner in the course of the
acquisition proceedings could be set off against the total
compensation amount payable after such determination
in respect of the 9 acres of land.
f. The State is liable to refund the entire amount deposited
by the APMC, in the course of the acquisition
proceedings. The APMC shall redeliver possession of
the portion of the land in its occupation. As any monies
expended by APMC towards the cost of construction of a
compound wall, etc., was at its risk and cost, subject to
the result of the petition, the APMC is precluded from
claiming any costs thereto.
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g. The writ petitions except the writ petition in
W.P.708/2000 are allowed in the light of Section 24(2) of
the 2013 Act and it is declared that the acquisition
proceedings under challenge, are deemed to have lapsed.
h. The writ petition in W.P.708/2000 is dismissed as having
become infructuous.
No order as to costs.
Sd/-
JUDGE
nv/ks*
