IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION Nos. 15007-15009/2016 (LA-HS) & WRIT PETITION No. 22027/2016 C/W WRIT PETITION No. 37712/2016 (LA-HS) & WRIT PETITION No. 51020/2016 IN W.P. Nos. 15007-15009/2016 & W.P. No. 22027/2016:
BETWEEN:
1. SRI K M KRISHNA S/O MALLAIAH K M AGED ABOUT 48 YEARS R/A VHB ROAD, K R PET MANDYA DISTRICT-571426 2. SRI K M MAHESH S/O MALLAIAH K M AGED ABOUT 42 YEARS R/A VHB ROAD, K R PET MANDYA DISTRICT-571426 3. SRI K M MAHALINGA S/O MALLAIAH K M AGED ABOUT 40 YEARS R/A VHB ROAD, K R PET, MANDYA DISTRICT-571426 (BY SRI. K N NITISH,ADVOCATE FOR SRI. K V NARASIMHAN, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY SECRETARY HOUSING AND URBAN DEVELOPMENT M S BUIDLING, BANGALORE-560001 … PETITIONERS 2. THE DEPUTY COMMISSIONER MANDYA DISTRICT MANDYA-571401 3. ASSISTANT COMMISSIONER PANDAVAPURA SUB DIVISION PANDAVAPURA MANDYA DISTRICT-571435 4. THE TOWN MUNICIPAL COUNCIL, KRISHNAREJA PETE @ TALUK MANDYA DISTRICT – 571426 BY ITS CHIEF OFFICER (AMENDED V.C.O. 09.11.2018) (BY SRI. DILDAR SHIRALLI, HCGP FOR R1-3; SRI. G M ANANDA, ADVOCATE FOR R4) … RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PRELIMINARY NOTIFICATION ISSUED UNDER SEC.3(1) OF THE KARNATAKA ACQUISITION OF LAND FOR GRANT OF HOUSE SITES ACT, 1972 DATED 06.07.1976 PUBLISHED IN OFFICIAL GAZETTE ON 24.07.1976 IN NO.HLA 3/76-77 AT ANNEX-A AND THE FINAL NOTIFICATION ISSUED UNDER SEC.3(4) OF THE SAID ACT DATED 28.06.1979 AT ANNEX-B;
IN W.P. No. 37712/2016 & W.P. No. 51020/2016:
BETWEEN:
SRI RAMESH S/O LATE NANJEGOWDA AGED 54 YEARS R/A K R PET MANDYA DISTRICT – 571426 (BY SRI. K N NITISH,ADVOCATE FOR SRI. K V NARASIMHAN, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY SECRETARY HOUSING AND URBAN DEVELOPMENT M S BUILDING, BANGALORE - 560001 2. THE DEPUTY COMMISSIONER MANDYA DISTRICT, MANDYA - 571401 …PETITIONER 3. ASSISTANT COMMISSIONER PANDAVAPUARA SUB DIVISION PANDAVAPURA MANDYA DISTRICT – 571435 4. THE TOWN MUNICIPAL COUNCIL, KRISHNAREJA PETE @ TALUK MANDYA DISTRICT – 571426 BY ITS CHIEF OFFICER (AMENDED V.C.O. 09.11.2018) …RESPONDENTS (BY SRI. DILDAR SHIRALLI, HCGP FOR R1-3; SRI. G M ANANDA, ADVOCATE FOR R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PRELIMINARY NOTIFICATION ISSUED UNDER SECTION 3(1) OF THE KARNATAKA ACQUISITION OF LAND FOR GRANT OF HOUSE SITES ACT 1972 DATED 6.7.1976 PUBLISHED IN OFFICIAL GAZETTE ON 24.7.1976 IN NO.HLA 2/76-77 AT ANENXURE-A AND THE FINAL NOTIFICATION ISSUED UNDER SECTION 3(4) OF THE SAID ACT DATED 22.01.1979 AND GAZETTED ON DATED 28.6.1979 AT ANENXURE-B THESE W.P. Nos. 15007-15009/2016 & 22027/2016 ARE COMING ON FOR ORDERS AND W.P. Nos. 37712/2016 & 51020/2016 ARE COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioners are before this Court calling in question the acquisition of their lands initiated by a Preliminary Notification dated 24.07.1976 under Section 3(1) followed by the Final Notification dated 28.06.1979 at Annexures-A and B respectively, inter alia, on the ground that no compensation has been paid as re-determined by the order dated 04.02.1999 at Annexure-D and also that the possession of the lands in question has not been taken by the acquiring body under the provisions of a special State enactment namely, the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereafter ‘Act’ for short) 2. After service of notice, the respondent Nos. 1 to 3 are represented by learned HCGP, Mr. Dildar Shiralli and the fourth respondent – Town Municipal Council is represented by its Panel Counsel, Sri G.M.Ananda who has also filed Statement of Objections resisting the writ petitions.
3. Learned counsel for the petitioners vehemently submits that Section 5 of the Act refers to the erstwhile Land Acquisition Act, 1894 by way of referential incorporation; that the said LA Act having been now repealed by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 w.e.f. 01.01.2014, the acquisition stands nullified. He also submits that no compensation has been paid either to the petitioners or to the predecessors of the petitioners under the order dated 04.02.1999 whereby re-determination of compensation was made and further, the possession of the land continues with the petitioners only. That being so, the acquisition stands lapsed.
4. Per contra, learned HCGP and the learned Panel Counsel for the beneficiary – TMC vehemently contend that the petitioners have approached the Court with enormous delay with no explanation offered therefor; the predecessors in title/ancestors of the petitioners have accepted the compensation as is evidenced by Ledger Extract at Annexure- R(4)(d) and R(4)(e) to the Statement of Objections filed by the TMC; the possession of the lands has been long back taken over although the allotment of the sites is yet to be made subject to approval from the side of the Government. So contending, they have sought for dismissal of the writ petitions with costs.
5. I have heard the learned counsel for the petitioners and the learned HCGP and also the learned Panel Counsel appearing for the TMC. I have perused the Writ Petition papers and the Statement of Objections as well, I have also read the judgment of the Apex Court in the case of Mariyappa & Others Vs. State of Karnataka and Others reported in 1998 (3) SCC 276.
6. The petitioners are liable to be non-suited on the following grounds:
(a) admittedly, decades have lapsed since the acquisition was made and that there is no due explanation offered for the inordinate delay brooked in approaching the writ court. It is a settled legal position that law will come to the aid of the vigilant and not of the tardy and sleepy;
(b) the documents at Annexures R(4)(d) and R(4)(e) to the Statement of Objections filed by the fourth respondent- TMC irrefutably show that the predecessors in title having received the compensation are deemed to have acquiesced in the acquisition and that they have signed the Remittance Register acknowledging the receipt of the compensation;
(c) it is a settled legal position that the acceptance of compensation without any protest amounts to the land-loser getting his right to challenge the same forfeited subject to just exceptions, that are lacking in this case. Countenancing a contra argument amounts to permitting the litigant to blow hot and cold to the prejudice of the other side;
(d) the petitioners have taken up an evasive averment at Paragraph No.4 of their writ petitions which reads as “xxxxx.Till today, the respondents have not paid compensation to the petitioners or their predecessors in interest as per the order at Annexure-D.xxxxx” This Annexure-D order is only a re-determination of compensation. Fairness required that the petitioners should have acknowledged the receipt of compensation by their predecessors in title/ancestors. This is unbecoming of a litigant who invokes the extraordinary jurisdiction of Writ Court;
(e) the reliance on the decision of the Apex Court in the Ruling stated above does not come to the aid of the petitioners. Its ratio apparently emerging from altogether a different fact matrix; otherwise also acquiescence in acquisition as discussed above disentitles the petitioners to take any advantage of the said decision, which explained about the referential incorporation of LA Act, 1894 in the State Act of 1972 in question;
(f) the version of the fourth respondent-TMC that the possession of the land was taken although the sites are yet to be allotted to the intended beneficiaries cannot be doubted; even in this respect, the petitioners have falsely averred that they were continuing in the possession of the lands in question, and (g) the justice of the case requires that this acquisition should not be set at naught at this length of time especially when the same was for the benefit of providing house sites to the weaker sections of the society and therefore, the individual interest of the petitioners should yield to a larger public interest.
In the circumstances, these writ petitions fail and accordingly, they are dismissed. However, this dismissal will not come in the way of petitioners claiming payment of re- determined compensation under the order dated 04.02.1999 at Annexure-D, in accordance with law, if the same is due.
No costs.
Sd/- JUDGE Bsv