IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD WRIT APPEAL NOS. 799-801/2019 (LA-KIADB) BETWEEN:
1.KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD, ARAVINDA BHAVANA NRUPATHUNGA ROAD, BANGALORE-560 001 PRESENTLY AT NO.49, 5TH FLOOR EASTERN WING, KHANIJA BHAVANA RACE COURSE ROAD, BENGALURU-560 001 REP BY ITS SPECIAL DEPUTY COMMISSIONER 2.THE SPECIAL LAND ACQUISITION OFFICER KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD, NRUPATHUNGA ROAD BANGALORE-560 001, PRESENTLY AT THE SPECIAL LAO, NIMZ, KIADB 1ST FLOOR, MARUTHI TOWER NEAR SIT MAIN GATE TUMKUR-572 103 ... APPELLANTS (BY SRI P V CHANDRASHEKAR, ADVOCATE) AND:
1.SHIVAMMA W/O LATE Y.B.SIDDALINGAIAH AGED ABOUT 70 YEARS R/A YELADADLU VILLAGE HALADODLU POST, KORA HOBLI TUMKUR TALUK & DISTRICT PIN-572 128 2.NANJUNDAPPA S/O SEEBILINGAIAH AGED ABOUT 75 YEARS R/O YELADADLU VILLAGE HALADODLU POST, KORA HOBLI TUMKUR TALUK & DISTRICT PIN-572 128 3.Y.S. SIDDESH S/O LATE Y.B.SIDDALINGAIAH AGED ABOUT 41 YEARS R/O YELADADLU VILLAGE HALADODLU POST, KORA HOBLI TUMKUR TALUK & DISTRICT PIN-572 128 4.THE STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY DEPARTMENT OF COMMERCE AND INDUSTRIES VIKASA SOUDHA, BANGALORE-560 001 ... RESPONDENTS (BY SRI V B SIDDARAMAIAH, ADVOCATE FOR R-1 TO 3; SRI P B ACHAPPA, AGA R-4) THESE WRIT APPEALS ARE FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 16/01/2019 PASSED IN W.P.NOS.12174- 12176/2014 [LA-KIADB] BY THE LEARNED SINGLE JUDGE OF THIS COURT.
THESE WRIT APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT The first appellant is the Karnataka Industrial Area Development Board (for short ‘the said Board’) which was constituted under the provisions of the Karnataka Industrial Areas Development Act, 1966 (for short ‘the said Act of 1966’). The first to third respondents are the writ petitioners before the learned Single Judge. In the writ petitions, the challenge was to Annexure-F to the petitions which is an endorsement issued by the third respondent in the writ petitions. The said endorsement decides the plea of the writ petitioners regarding payment of compensation for the eucalyptus trees standing on the lands which were compulsorily acquired. While rejecting the said prayer, the Special Land Acquisition Officer stated that the first to third respondents can cut the trees standing on the lands acquired. Being aggrieved by the said endorsement, the writ petitions were filed by the first to third respondents. By the impugned judgment and order, the writ petitions were partly allowed. Paragraphs 10 and 11 of the impugned order read thus:
“10. In the above circumstances, these writ petitions succeed in part; a Writ of Mandamus issues directing respondents 2 and 3 to consider petitioners representation dated 25.07.2013 at Annexure-E, ignoring Condition No.4 mentioned above stipulated in the Circular dated 19.07.2001 at Annexure-AA and by treating the trees in question as being part of the land acquired, for the purpose of determination of compensation, within three months and further to inform the petitioners the result of such consideration forthwith.
11. It is open to the respondents 2 and 3 to solicit any information or document from the side of the petitioners as are required for due consideration of the aforesaid representation subject to the rider that no delay shall be brooked in that guise.”
2. The learned counsel appearing for the appellants submitted that under the provisions of the said Act of 1966, trees will be included in the definition of ‘land’. However, as the eucalyptus trees can be always removed by the first to third respondents, rightly, a decision was taken not to grant compensation in respect of the said trees. He stated that as regards the other trees, compensation has been granted. He further submitted that as the first to third respondents can take away the eucalyptus trees, it is not necessary to grant any compensation in respect of the said trees.
3. We have considered his submissions. Under sub- section (3) read with sub-section (2) of Section 29 of the said Act of 1966, if, on account of acquisition of a land under the provisions of the said Act of 1966, compensation cannot be determined by agreement, the case is required to be referred to the Deputy Commissioner for determination of the amount of compensation to be paid for such acquisition. Section 30 of the said Act of 1966 specifically lays down that the provisions of the Land Acquisition Act, 1894 (for short ‘the said Act of 1894’) shall mutatis mutandis apply in respect of the enquiry and award by the Deputy Commissioner. Thus, the power of the Deputy Commissioner to fix compensation as per sub-section (3) of Section 29 has to be exercised as per the provisions of the said Act of 1894. Under Section 23 of the said Act of 1894, the factors which should be taken into consideration for determining the amount of compensation to be awarded in respect of the acquired land have been set out. The second item in Section 23 is of the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector taking possession thereof. Therefore, the damage sustained on account of the standing crops or trees on the date on which the possession of the acquired land is taken over is a factor and a matter to be considered for determining the compensation. Under sub-section (11) of Section 2 of the said Act of 1966, the expression ‘land’ is defined as per the definition in the said Act of 1894. The definition of ‘land’ in Clause (a) of Section 3 of the said Act of 1894 is very wide which includes benefits arising out of and things attached to the earth or permanently fastened to anything attached to the earth. Therefore, trees are included in the definition of “land”. Coming back to Section 23 of the said Act of 1894, the damage caused to the owner of the acquired land by reason of the taking of any standing crops and trees in existence on the date of taking over possession will be a part of the compensation.
4. Our attention is invited to the Circular which was subject matter of challenge before the learned Single Judge. Clause 4 of the said Circular provides that malkies such as eucalyptus, casurina and other firewood trees shall not be considered for payment of compensation, but the land owners may be permitted to remove the malkies. Guidelines have been issued by the said Board. The learned Single Judge, in the impugned order, has directed consideration of the claim for compensation in respect of the trees by ignoring Clause 4.
5. Elaborate scheme under the said Act of 1894 for determination of compensation is also applicable to the acquisition under the said Act of 1966. Every case has to be dealt with by the Collector on its own merits for determining the compensation guided by Section 23 and Section 24 of the said Act of 1894.
6. A direction cannot be issued by the Executive directing the Collector or his nominee to determine the compensation in a particular manner in respect of particular class of lands. Section 11 of the said Act of 1894 contemplates an enquiry to be made by the Collector for determining the compensation. After finding that such a direction which is contained in Clause 4 of the said Circular could not have been issued as it will be contrary to the said Act of 1894 and consequently to the said Act of 1966, the learned Single Judge has directed to ignore Clause 4 in the said Circular while fixing the compensation.
7. Whether the first to third respondents are entitled to a specific amount by way of compensation on account of eucalyptus trees or not is an issue which can be decided by holding of an enquiry. However, the contention that as the first to third respondents are entitled to cut and take away the trees, they are not entitled to compensation is completely erroneous and rightly rejected by the learned Single Judge. We, therefore, find absolutely no error in the view taken by the learned Single Judge.
8. Accordingly, the appeals are dismissed. There will be no order as to costs.
The pending interlocutory application does not survive and is disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv