IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.32886/2017 (LA-RES) BETWEEN B.T.MUDLAIAH, S/O BYATAPA, AGED ABOUT 57 YEARS, R/O SIRIVARA VILLAGE, HEBBUR HOBLI, TUMKUR TALUK, TUMKUR DISTRICT 572101. ... PETITIONER (BY SRI RAGHU R., ADV.) AND 1. THE SECRETARY, THE GOVERNMENT OF KARNATAKA, DEPARTMENT OF LAND ACQUISITION, VIDHANA SOUDHA, BANGALORE 01.
2. THE DEPUTY COMMISSIONER, TUMKUR DIVISION, TUMKUR DISTRICT, TUMKUR 572 101.
3. THE SPECIAL LAND ACQUISITION OFFICER, HEMAVATHI CHANNEL ZONE, TUMKUR DISTRICT 572101.
4. THE CHIEF ENGINEER HEMAVATHI CANAL ZONE KUNIGAL ROAD, TUMKUR DISTRICT 572101. ... RESPONDENTS (BY SRI VIJAYAKUMAR A.PATIL, AGA FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANEX-G ORDER DATED 26.11.2016 PASSED BY THE SPL.LAND ACQUISITION OFFICER AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. In this writ petition, petitioner is challenging Annexure-G order dated 26.11.2016 passed by the Special Land Acquisition Officer, Hemavathi Channel Zone, Tumkur, thereby rejecting the application filed by petitioner under Section 28A of the Land Acquisition Act, 1894 (for short ‘the Act’).
2. Facts involved in the case briefly stated are, an extent of 35 guntas of land comprised in Sy.No.157 situated at Sirivara Village, Hebbur Hobli, Tumkur Taluk was acquired by the State for the purpose of Hemavathi Canal Project. An award was passed and award notice dated 13.03.1998 was issued. Petitioner filed a belated application under Section 18(1) of the Act on 23.07.1998. The matter was therefore not referred to the Civil Court.
3. Petitioner moved the Civil Court under Section 18(3)(b) of the Act by filing a miscellaneous petition No.(LAC)Misc.3/2002 after the expiry of 3 years 90 days. The said miscellaneous petition was dismissed on 16.08.2012. While dismissing the miscellaneous petition, the Civil Court noticed the fact that the Land Acquisition Officer had failed to refer the matter to the Civil Court but having regard to the lapse on the part of petitioner in not leading any evidence, learned Judge came to the conclusion that no case was made out to hold that compensation awarded was not proper.
4. It is relevant to notice, at this stage, that petitioner had moved an application before the Land Acquisition Officer under Section 28A of the Act based on the judgment passed in the case of comparable lands acquired under the same preliminary notification in respect whereof the Civil Court had enhanced the compensation. The Land Acquisition Officer has rejected the application of petitioner on the ground that as the Civil Court had found in the miscellaneous petition that compensation amount awarded by the Land Acquisition Officer was proper, there was no provision for considering the application filed under Section 28A of the Act for re-determination of the compensation. It is this order that has been challenged in this writ petition.
5. Learned counsel for petitioner placing strong reliance on the judgment in the case of UNION OF INDIA AND ANOTHER VS. HANSOLI DEVI AND OTHERS – AIR 2002 SC 3240 contends that as the miscellaneous petition filed by petitioner under Section 18(3)(b) of the Act has been dismissed and the matter was not referred for consideration of the application filed under Section 18(1) seeking enhancement of compensation, the matter is fully covered by the Constitution Bench judgment of the Apex Court.
6. Sri Vijayakumar A. Patil - learned Additional Government Advocate was directed to secure instructions in this regard. Learned Additional Government Advocate has addressed his arguments.
7. On perusal of the order dated 16.08.2012 passed by the Principal Senior Civil Judge and CJM, Tumkur in miscellaneous petition No.(LAC)Misc.3/2002, it is clear that the said miscellaneous petition was dismissed on the ground that petitioner did not lead evidence. Said miscellaneous petition was apparently filed seeking a direction to the Land Acquisition Officer to make reference of the dispute to the Civil Court for enhancement of compensation. In the miscellaneous petition question that would fall for consideration is as to whether petitioner had filed the application under Section 18(1) of the Act within a period of 90 days and whether the Land Acquisition Officer was justified in not making reference. The Civil Court has not examined this crucial aspects of the matter. It has gone in tandem and held that as no evidence was led by claimant hence, it could not be said that compensation awarded by the Land Acquisition Officer was not proper. Whether compensation awarded was proper or not was not the question that fell for consideration in the miscellaneous petition.
8. Therefore, it has to be stated in the facts and circumstances of the present case that petitioner’s application seeking enhancement of compensation was not referred to the Civil Court by the Land Acquisition Officer on account of bar of limitation. Petitioner was also unsuccessful in his petition filed under Section 18(3)(b) of the Act in securing such reference. Therefore, the judgment rendered by the Constitution Bench of the Apex Court in the case of UNION OF INDIA AND ANOTHER VS. HANSOLI DEVI AND OTHERS – AIR 2002 SC 3240 is clearly applicable to the facts of the present case. The Land Acquisition Officer was not right and justified in rejecting the application filed under Section 28A of the Act. He ought to have considered the application on merits and passed an order re-determining the compensation in accordance with law.
9. Hence, this writ petition is allowed. Impugned order is set aside. Land Acquisition Officer is directed to reconsider the matter and pass necessary orders / award within a period of three months from the date of receipt of a copy of this order. Petitioner is directed to appear before the Special Land Acquisition Officer, Hemavathi Channel Zone, Tumkur - 3rd respondent on 14.09.2017. The beneficiary of the acquisition – The Chief Engineer, Hemavathi Canal Zone, Tumkur / 4th respondent may also appear before the 3rd respondent through his representative on 14.09.2017.
Learned Additional Government Advocate is permitted to file memo of appearance within three weeks from today.
Sd/- JUDGE VP