IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.Nos.42174-175/2017 (BDA-) BETWEEN 1. MR.K.M.NARAYANA S/O LATE K.MUNINANJAPPA R/AT NO.115/28, 5TH CROSS, 5TH MAIN, KATRIGUPPE, BANASHANKARI 3RD STAGE, BANGLAORE 560 085.
2. MR.K.M.RAMA MURTHY S/O LATE K.MUNINANJAPPA R/AT NO.436, GANIGAS STREET, KENGERI, BANGALORE 560 060. ... PETITIONERS (By Sri P.S.RAJAGOPAL, ADV. FOR Sri IRISHAD AHMED B.M., ADV.) AND 1. THE BANGALORE DEVELOPMENT AUTHORITY CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE 560 003, REP BY ITS COMMISSIONER.
2. THE STAWTE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, VIKAS SOUDHA, BANGALORE 560 001. ... RESPONDENTS (By Sri VIJAYA KUMAR A.PATIL, AGA FOR R2; Sri NARENDRA GOWDA, ADV. FOR R1) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS EITHER TO PAY THE COMPENSATION AMOUNT TOGETHER WITH SOLATIUM IN TERMS OF THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISIITION, REHABILITATION AND RESETTLEMENT ACT, 2013 OR TO ALLOT THE PETITIONERS 100% ALTERNATIVE LAND IN A WELL - DEVELOPED AREA TOGETHER WITH SOLATIUM FROM 2008 TILL DATE IN LIEU OF THE PETITIONERS' LAND I.E., 22 GUNTAS (23958 SQ. FT.,) UNAUTHORISEDLY UTILISED BY THE RESPONDENTS, AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. In this writ petition, petitioners are seeking a direction to the respondents-Bengaluru Development Authority (for short, ‘BDA’) and the State Government to either pay compensation together with all admissible statutory sums under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, ‘New Act’), or to allot 100% alternate land in a well developed area together with damages for having unauthorizedly utilized the land belonging to the petitioners measuring 22 guntas comprised in Sy. No.90/4 of Valagerahalli village, Bengaluru South Taluk.
2. Facts as narrated in the writ petition and as are discernable from the materials on record and also as per the original records made available by the learned Counsel for the BDA disclose that Preliminary Notification was issued on 19.01.1989 proposing to acquire the land in question along with several other lands for formation of Gnana Bharathi Layout. This was followed by Final Notification dated 03.03.1994. Award has been passed on 23.03.1996 determining compensation payable to the petitioners. Possession of the land was allegedly taken over on 20.04.1996. However, no compensation was paid either immediately after passing of the award or before taking over possession of the land. However, it is contended by the learned Counsel for the BDA that a cheque dated 20.11.2009 in respect of the compensation amount was deposited in the Civil Court on 24.11.2009.
3. It is not forthcoming from the records as to why the Land Acquisition Officer or for that matter, BDA did not pay the compensation for the acquired land before taking over possession as required in law. It is also not forthcoming from any plausible and acceptable explanation from the BDA as to why the compensation was required to be deposited in the Civil Court that too after a lapse of 13 years from the date of passing of the award. This omission and inaction on the part of the BDA in not paying compensation to the land losers – petitioners, as rightly contended by the learned Senior Counsel Mr. P.S.Rajgopal, is highly depreciable and has indeed resulted in serious loss and prejudice to the petitioners.
4. It has to be noticed here that as per Section 31(1) of the Land Acquisition Act, on making an award under Section 11, the Collector shall tender compensation awarded by him to the persons interested and entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. Section 31(2) states that if they (persons entitled) shall not consent to receive it or if there be no person competent to alienate the land, or if there be any dispute to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of compensation in the Court to which a reference under Section 18 would be submitted.
5. In the light of the language used in Section 31, it emerges that the Land Acquisition Officer is enjoined with a duty to tender the compensation amount to the land loser entitled for receiving the same according to the award and shall pay it to him unless he was prevented by any of the reasons enumerated in sub-section (2) of Section 31. The reasons enumerated in sub-section (2) of Section 31 disclose that if there was no consent by the land losers or the interested persons to receive the compensation or they were not competent to alienate the land or if there was dispute with regard to the title to receive the compensation and/or as to the apportionment of it, then only the Collector shall deposit the amount of compensation in the court to which reference under Section 18 would be submitted. Otherwise, there is no justification for the Land Acquisition Officer to arbitrarily deposit the amount of compensation without even tendering the same to the persons entitled.
6. In the facts of the present case as already noticed above, there is absolutely nothing to show that petitioners were issued with Section 12(2) notice upon passing of the award or that they were tendered the compensation amount. There is also no material to show why BDA maintained silence till 2009 for 13 years from the date of passing of the award. In addition, there is absolutely no material to show why it persuaded itself to deposit the amount in Civil Court without tendering it to the land owners or paying the same to the land losers. In such circumstances, the inescapable conclusion is that petitioners have been deprived of their valuable land under acquisition for the alleged public purpose without paying any compensation and without adopting due process of law. Their rights under Articles 31A and 300A of the Constitution of India are violated. Petitioners have to be adequately compensated for deprivation of their land.
7. While dealing with the scope and nature of Section 31 of the Land Acquisition Act, 1894, the Apex Court in the case of PUNE MUNICIPAL CORPORATION & ANOTHER VS HARAKCHAND MISIRIMAL SOLANKI & OTHERS – (2014) 3 SCC 183, held in para 14 to 16 and para 18 as under:
“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 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 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.
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 [Nazir Ahmad v. King Emperor, (1935-36) 63 IA 372 : (1936) 44 LW 583 : AIR 1936 PC 253 (2)] ) that where a power is given to do a 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.”
8. The above view has been affirmed in the case of DELHI DEVELOPMENT AUTHORITY Vs. KUSHAM JAIN AND ANOTHER- (2016) 16 SCC 254. It has been held that only when certain contingencies as envisaged under Section 31(2) arise, the compensation amount can be deposited in Court. Para 5 and 6 of the Judgment of Apex Court are usefully extracted hereunder:
“5. The question of deposit in court arises only in the event of a contingency as provided under Section 31(2) of the Land Acquisition Act, 1894. Section 31(2) of the Act reads as under:
31. Payment of compensation or deposit of same in court.—(1) * * * (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 compensation in the court to which a reference under Section 18 would be submitted:
Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount:
Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18:
Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.
6. There is no case for the appellant that any of such contingencies had arisen compelling the Land Acquisition Collector for depositing the amount of compensation in court. Quite strangely, what is deposited in court in the year 2013 is the amount in terms of the award passed in the year 1986, without any interest as provided under the Act for the intervening period. Had there been a deposit in 1986, the landowner could have sought for an investment of the money in interest bearing deposits or other approved securities, as per Section 33 of the 1894 Act. In any case, such deposit in court which is not contemplated or permitted under the Land Acquisition Act, 1894 cannot be treated as a payment of compensation to landowners for the purpose of Section 24(2) of the 2013 Act. The payment of compensation/deposit in court has to be made as per the provisions under the 1894 Act, and, in no other way, as held by this Court in Pune Municipal Corpn. v. Harakchand Misirimal Solanki [Pune Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] . The payment or deposit having not admittedly been done in terms of the 1894 Act, the deeming provision on lapse under Section 24(2) of the 2013 Act has to operate.”
9. Hence, it become abundantly clear that the acquiring authority has to make every effort to tender compensation to land owners/land losers. In the case of ALIGARH DEVELOPMENT AUTHORITY Vs. MEGH SINGH AND OTHERS – (2016) 12 SCC 504, the Apex Court has held that the approach required under law is “go and give” and not “come and get” the compensation amount.
10. Having regard to the facts and circumstances of the present case and as admittedly since no compensation has been paid to the petitioners and as they have been deprived of their valuable possession of the land for all these years, petitioners are entitled for the relief sought for.
11. Hence, this writ petition is allowed. BDA is directed to grant equal extent of land measuring 22 guntas of similar value having similar potentiality in the nearby locality, or in the alternative, to pay compensation treating the land as having been acquired today in terms of the provisions contained under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Compliance of this order shall be ensured within 60 days from the date of receipt of a copy of this order.
Sd/- JUDGE KK