IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO. 1844/2019 (LA-KIADB) BETWEEN:
SMT. B V. SMITHA W/O LATE B.V. SRINIVAS AGED ABOUT 50 YEARS R/AT NO.91, 4TH CROSS RELIABLE RESIDENCY, 1ST LPHASE HARALUR ROAD SOMASANDRA PALLYA HSR 2ND SECTOR BANGALORE 5600102.
(BY SHRI D.N. MANJUNATH, ADVOCATE) AND:
1. SMT. YASHODA VEERAMAYANNA W/O H R LAKSHMINARAYANA AGED ABOUT 66 YEARS R/A NO.31375, NEUMA DRIVE CATHEDRAL CITY CALIFORNIA - 92234, USA REP. BY HER GPA HOLDER SRI. B.V. MANJUNATH S/O LATE M B V MAYANNA AGED ABOUT 65 YEARS R/A NO.58, 2ND MAIN ROAD ... APPELLANT MAHALAKSHMIPURAM BANGALORE - 560086.
2. KARNATKA INDUSTRIAL AREA DEVELOPMENT BOARD NO.49, 4TH AND 5TH FLOOR EAST WING KHANIJA BHAVAN RACE COURSE ROAD BANGALORE 560001 REP. BY CHIEF EXECUTIVE OFFICER & EXECUTIVE DIRECTOR KIADB-METRO, BANGALORE.
3. THE SPECIAL LAND ACQUISITION OFFICER KIADB-METRO NO.14/3, ARAVIND BHAVAN NRUPATHUNGA ROAD BANGALORE - 560001.
4.THE SPECIAL DISTRICT OFFICER KIADB-METRO NO.14/3, ARAVIND BHAVAN NRUPATHUNGA ROAD BANGALORE - 560001.
5. SRI. B.V. VENUGOPAL S/O LATE B. M. BYRAPPA AGED ABOUT 70 YEARS R/AT NO.3, CHAMUNDESHWARI NAGARA LAGGERE BANGALORE - 560058.
6. SRI. B.M. MARANNA S/O LATE MAYANNA AGED ABOUT 81 YEARS R/A NO.1101, DR. RAJKUMAR ROAD 4TH BLOCK, RAJAJINAGAR BANGALORE - 560010.
(BY SHRI SANDESH C.R. FOR C/R1) ---
... RESPONDENTS THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 15/04/2019 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.47161/2018(LA-KIADB) AND CONSEQUENTLY DISMISS THE WRIT PETITION, BY ALLOWING THIS WRIT APPEAL AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant.
2. The appellant is the 6th respondent and the first respondent is the petitioner before the learned Single Judge. By the impugned order passed by the learned Single Judge in the writ petition filed by the first respondent, an application made by the second to fourth respondents herein for deposit of the compensation amount before the jurisdictional Court under Section 30 and 31 of the Land Acquisition Act, 1894 was allowed. The learned Single Judge observed that now the issue of entitlement of the parties to receive compensation will be decided by the reference Court.
3. The first submission of the learned counsel appearing for the appellant is that in view of the consent decree passed in Regular First Appeal No.1764/2007 on 27th July 2010, the first respondent cannot claim share in the acquired land inasmuch as the decree passed by the Trial Court in which a share was provided to the first respondent has been modified in terms of the compromise in Regular First Appeal No.1764/2007 and that the compromise does not provide any shares. His further submission is that even a review petition filed by the first respondent was disposed of by granting liberty to the first respondent to secure a decree on determination of her share and therefore, the first respondent has to file a suit.
4. He relied upon a decision of the Apex Court in the case of Bimal Kumar and another vs. Shakuntala Debi and Others1. He submitted that in any event as per the provision of The Karnataka Industrial Areas Development Act, 1966 the reference ought to have been made under 2013 Act not under Section 30 of the Land Acquisition Act, 1894.
1 (2012) 3 SCC 548 5. We have considered the submissions. By the impugned order, the learned Single Judge has not decided the issue of entitlement of the parties to receive compensation. He has observed that the issue shall be decided by the reference Court.
6. Regular First Appeal No.1764/2007 was preferred against the decree of the trial Court. Under the said decree, a share was provided to the first respondent. A review petition was filed by the first respondent seeking review of the consent decree in the appeal. In fact, while disposing of the review petition, the Division Bench of this Court accepted the fact that the first respondent had a share in the property. Paragraph 7 of the said order in the review petition reads thus:
“7. On hearing learned counsel, we are of the view that share of the review petitioner- defendant No.7 was identified in para 42 of the judgment as she being entitled to get 1/40th share along with defendant Nos.5 and 8 in the suit properties except plaint schedule ‘G’ property. Therefore, we are of the view that until and unless a decree was obtained by the petitioner, the question of entertaining the plea of the review petitioner would be a futile exercise, since even though the share of the petitioner has been identified by the trial Court, the same has not culminated into a decree.”
7. The Division Bench observed that the first respondent is entitled to get a share but she can get the share only after securing a decree. In any case, the first respondent was not a party to the compromise in Regular First Appeal No.1764/2007 and hence, the said compromise is not binding on her. The decision of the Apex Court in Bimal Kumar (supra) will not help the appellant especially when in the review petition filed by the first respondent, the Division Bench accepted that she has a share.
8. As regards the last submission, the provisions of the Land Acquisition Act, 1894 have been incorporated in the provisions of the Karnataka Industrial Areas Development Act, 1966. It is for this reasons that the learned Single Judge observed that the entitlement of the parties to a compensation will be decided by the Civil Court in a reference for apportionment.
Hence, we find no error in the impugned judgment and accordingly, the appeal is dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE SN