IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.30095/2017 (LA-KIADB) BETWEEN MR.RUDOLPH MASCARENHAS, AGED ABOUT 70 YEARS, S/O. MR. LOUIS MASCARENHAS, NOW. R/AT APARTMENT NO. 16, 15TH FLOOR, MANTRI ALTIUS, CUBBON ROAD, (RAJ BHAVAN ROAD), BENGALURU 560001. ... PETITIONER (By Sri SHASHIKIRAN SHETTY, SR.COUNSEL FOR Smt. LATHA S.SHETTY, ADV.) AND 1. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY, COMMERCE & INDUSTRIES, VIKASA SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE 560001 2. SPECIAL LAND ACQUISITION OFFICER KARNATAKA INDUSTRIAL DEVELOPMENT BOARD, OFFICE -2, NO. 49, KHANIJA BHAVAN EAST WING, 5TH FLOOR, RACE COURSE ROAD, BENGALURU 560001.
3. KARNATAKA INDUSTRIAL DEVELOPMENT BOARD, BY ITS CHIEF EXECUTIVE, NO. 49, KHANIJA BHAVAN RACE COURSE ROAD, BENGALURU 560001.
4. M/s. ROYAL FRAGRANCES PVT.LTD., ... RESPONDENTS (R4 DELETED V/C/O DT.6.10.2017) (By Sri VIJAYA KUMAR A.PATIL, AGA FOR R1; Sri B.B.PATIL, ADV. FOR R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION UNDER SEC.3(1) OF KIADB ACT 1966 PASSED BY R-
1 VIDE NOTIFICATION DATED 10.12.2001 AT ANNEX-A; AND TO QUASH THE NOTIFICATION UNDER SEC.28(1) OF KIADB ACT 1966 PASSED BY R-1 DATED 10.12.2001 AT ANNEX-A1;
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Petitioner has filed this writ petition seeking a declaration that acquisition of land measuring 1 acre 33 guntas comprised in Sy.No.29/1 situated at Kariyammana Agrahara Village, Varthur Hobli, Bengaluru South Taluk for the benefit of Karnataka Industrial Area Development Board (for short, ‘KIADB’) vide preliminary notification dated 10.12.2001 has stood lapsed. Several other reliefs are sought.
2. Main grievance made in the writ petition is that although acquisition proceedings under Karnataka Industrial Areas Development Act, 1966 (for short, ‘the Act’) were initiated as per preliminary notification dated 10.12.2001 followed by final notification dated 23.02.2004, neither possession of the land has been taken, nor any compensation has been paid to the petitioner by passing an award and therefore, acquisition proceedings initiated have to be declared as abandoned/lapsed.
3. It is not in dispute that final notification was issued on 23.02.2004 acquiring the land for the purpose of KIADB. It is also not in dispute that land in question has not been so far utilised for the purpose for which it was acquired. There is no denial of fact that no award has been passed and no compensation has been paid to the petitioner who is the land owner.
4. Main contention urged by Sri B.B.Patil, learned counsel for KIADB is that as an order has been passed under Section 28(8) of the Act handing over possession of land in question in favour of KIADB by the authorities of the State Government, petitioner cannot contend that he has continued to be in possession of the land. It is his further submission that as the land has vested in the KIADB, question of seeking declaration that acquisition has stood lapsed does not arise.
5. Sri Shashikiran Shetty, learned Senior Counsel appearing for the petitioner has placed reliance on the order dated 17.08.2017 passed by this Court in W.P.Nos.34313-317/2016 to contend that when the respondent – authorities are conferred with a power regarding acquisition of land, the same has to be exercised in a reasonable manner. Reasonable exercise of power includes exercise of same within a reasonable period. He further points out by inviting the attention of the Court to paragraphs 14 to 19 of the said order that delay of 7 years in passing award and in paying compensation has been held to have vitiated acquisition proceedings because the KIADB had not taken any action either to take possession of the land or to pass any award or to pay any compensation in the facts of the said case. Indeed, this Court after referring to the judgment of the Apex Court in the case of RAMCHAND AND OTHERS VS. UNION OF INDIA – (1994) 1 SCC 4 and the judgment of the Division Bench of this Court in the case of H.N.SHIVANNA & OTHERS Vs. STATE OF KARNATAKA & ANOTHER – (2013) 4 KCCR 2793 has held that delay of 7 years in passing the award had rendered the acquisition proceedings lapsed due to inaction on the part of KIADB.
6. In the instant case, although learned counsel for respondent – KIADB submits that possession of land has been taken over as is evident from Annexure-R3, the said submission cannot be accepted having due regard to the fact that on 05.05.2015 as per the letter addressed by the Special Land Acquisition Officer-2, KIADB, Bengaluru to the Special Deputy Commissioner, KIADB, Bengaluru, it has been made clear that possession of land has not been taken and no award has been passed. In addition, this letter which is produced at Annexure- Q discloses that certain shops have been constructed in the land and developments in the form of apartments and houses have come up in the surrounding lands. Therefore, it cannot be said that possession of the land was taken over by the KIADB and the land stood vested in the KIADB. In any event, as held by this Court, by referring to the judgment of the Apex Court in Ramchand’s case and the judgment of the Division Bench of this Court in Shivanna’s case as also various other judgments as is evident from the order dated 17.08.2017 passed in W.P.Nos.34313-317/2016, even where no time limit is fixed for exercise of power in passing the award and for payment of compensation, the same has to be exercised within a reasonable period of time. The authorities are enjoined with a function to perform their duties within a reasonable time. In Shivanna’s case, Division Bench of this Court has held that though no time limit has been fixed for passing the award as per KIAD Act, award is required to be passed within a reasonable period and as expeditiously as possible.
7. In the instant case, for the last 15 years from the date of final notification, no steps have been taken by the KIADB to pass an award and to pay any compensation to the land loser. Such an action on the part of the KIADB cannot be justified. Petitioner cannot be deprived of his right over the land in question. Therefore, the inescapable conclusion is that the respondent – authorities have abandoned the acquisition and the acquisition proceedings have stood lapsed on account of the total inaction on the part of the respondent in utilizing the land by paying compensation to the petitioner.
Hence, writ petition is allowed declaring that acquisition proceedings in respect of land in question have lapsed.
Sd/- JUDGE PKS