IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT W.P.No.45227 of 2014 (LA-KIADB) BETWEEN:
Smt. Tilakamma W/o late Puttaraju, Aged about 43 years, Occ: D Group Employee in Health Department, Residing near Anganavadi Kendra, Tudurkatte, Tudur Village, Thirthahalli Taluk – 577 432, Shimoga District.
(By Sri. S.V. Prakash, Advocate) AND:
1. State of Karnataka Represented by its Principal Secretary, Revenue Department, M.S. Building, Bengaluru – 560 001.
2. Karnataka Industrial Area Development Board, Nrupathunga Road, Bengaluru – 560 001 ... Petitioner Represented by its Managing Director.
3. The Special Land Acquisition Officer K.I.A.D.B. Industrial Area, Baikampady, Mangaluru – 575 011.
4. The Deputy Commissioner Shimoga District, Shimoga – 577 201.
... Respondents (By Sri. Dildar Shiralli, HCGP for R-1 & R-4 Sri. P.V. Chandra Shekar, Advocate for R-2 & R-3) This writ petition is filed under Article 227 of the Constitution of India, praying to direct the respondents to pay compensation to the petitioner in respect of the land bearing Sy. No.26/5-3, measuring 2 acres situated at Sidlipura Village and the land measuring 2 acres in Sy. No.156, situated at Sidlipura Village as provided under the provisions of the Act with all statutory benefits.
This petition coming on for Hearing this day, the Court made the following::
O R D E R Petitioner claiming to be the owner of subject lands is invoking the extraordinary jurisdiction of this Court for a Writ of Mandamus to the respondents to pay to him the compensation on the ground that the said lands have been acquired by the State for the benefit of respondent-Karnataka Industrial Area Development Board (KIADB) by virtue of acquisition notifications in question.
2. Learned HCGP Sri.Dildar Shiralli for respondent Nos.1 and 4 and Sri.P.V.Chandrashekar, the learned Senior Panel Counsel for the respondents 2 & 3 resist the writ petition. The KIADB being the beneficiary of the alleged acquisition has filed the Statement of Objections accompanied by certain documents as Annexures.
3. Sri S.V.Prakash, the learned counsel for the petitioner vehemently contends that the State having issued the Final Notification u/s.28(2) of the Karnataka Industrial Areas Development Act, 1966 (hereafter ‘Act of 1966’), the title of the petitioner to the lands in question is divested of and the same is vested in the State, and further the possession of the lands having been taken already, the respondents are duty bound to pay the compensation forthwith. He further contends that the respondents are not justified nor competent now to deny compensation on the ground that the title to the lands is in dispute and that the KIADB is not willing to acquire the said lands since there is no provision in the Act of 1966, that can be invoked to countenance the said stand. Lastly, he submits that the respondents are estopped from disputing petitioner’s title to the lands merely because the Forest Department claims the said lands to be part of a Reserved Forest.
4. Learned Sr. Panel Counsel Sri P.V. Chandra Shekhar per contra submits that : It is true that the lands in question were the subject matter of acquisition pursuant to the Notification issued u/s.28 of Act of 1966; however the possession of the said lands was not taken inasmuch as the Forest Department sent communication with some evidentiary material to the effect that these lands along with other are a part of a Reserved Forest and therefore the KIADB resolved on 25.07.2011 to seek deletion thereof from the acquisition lest such acquisition would cost heavily; the said resolution has been forwarded to the Government for consideration as required by law and the SLAO of the KIADB vide letter dated 28.08.2015 at Annexure-R4 to the Statement of Objections has requested the Addl. Chief Secretary to the Government to leave all those lands from acquisition.
5. The learned Sr. Panel Counsel also submits that the contention of the petitioners to the contrary are not true and correct and that since possession of the lands is not taken, the question of accomplishment of the acquisition does not arise and therefore it is open to the State to drop these lands from acquisition as held by this Court in a catena of decisions. There is lot of force in this submission.
6. In the case of THOMAS PATRAO vs. STATE AND OTHERS, (2006) 5 KLJ 48, this Court at paragraphs 26 and 27 has observed as under:
“26. That brings me to the question as to what is the right course to be adopted by the Board, to cancel the acquisition, when declaration has been issued and possession of the land is not taken. I have already held that acquisition is not complete till possession is not taken by the State Government. Section 21 of the Karnataka General Clause Act, 1899, lays down that whereby any enactment, a power to issue Notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. Section 30 of the K.I.A.D.B. Act makes it clear that provisions of the Land Acquisition Act are applicable only in respect of enquiry and Award by the Deputy Commissioner, the reference to Court, the apportionment of compensation and payment of compensation in respect of the lands acquired under the Act. Therefore, Section 48 of the L.A. Act is not applicable to withdraw from acquisition where acquisition is made under the KIADB Act. Even under the L.A. Act, it has been held that Section 48(1) is not the only method in which the Government can withdraw from acquisition. Government can always cancel the Notification under Sections 4 and 6 by virtue of its power under Section 21 of the General Clauses Act and cancel the said notifications. In State of Madhya Pradesh v. Vishnu Prasad Sharma AIR 1966 SC 1593 it is held thus:
"The argument that Section 48(1) is the only method in which the Government can withdraw from acquisition has no force because the Government can always cancel the notifications under Sections 4and 6 by virtue of its powers under Section 21 of the General Clauses Act and this power can be exercised before the Government directs the Collector to take action under Section 7"
27. Thus, the State Government is competent to cancel the notifications issued under Section 28(2) and (4) of the KIADB Act by virtue of its power under Section 21 of the Karnataka General Clauses Act and this power can be exercised before taking possession of the lands. The State Government may also exclude that area from industrial area by issuing a notification under Section 4 of the KIADB Act”.
7. The contention of the petitioner that once a final notification is issued, the process of acquisition is accomplished and that the respondents are to be estopped from disputing the title of the prima facie owners, appears to be too far fetched. When a huge extent of land is acquired and the said land comprises of a huge number of bits belonging to several persons, sometimes mistakes do occur resulting into the land belonging to the Government itself is being made the subject matter of acquisition. The very idea of acquisition of land presupposes that the acquirer and the beneficiary of the acquisition are not the owners of the land; otherwise a land belonging to one cannot be a subject matter of acquisition for the benefit of oneself. Therefore, the plea of estoppel sought to be founded only on the contents of the acquisition notification appears to be weak.
8. There is yet another reason to deny main relief as sought for in the prayer column of the writ petition. As already stated above, the acquisition is inchoate till after the possession of the lands is taken. The petitioner except making a bare averment has not produced any material to show that the possession has been taken pursuant to acquisition notification. Now that the KIADB having passed a resolution seeking dropping of these lands from the acquisition, and the said resolution having been placed before the Government for taking action, directing the respondents to pay the compensation to the petitioner amounts to coercing the State to exercise the Power of Eminent Domain, which I am afraid this Court cannot do, subject to just exceptions.
9. The Apex Court speaking through E.S.Venkataramaiah.J., in the case of SPECIAL LAND ACQUISITION OFFICER, BOMBAY & OTHERS vs. M/S.
GODREJ & BOYCE, (1988) 1 SCC 50 at paragraph 7 has observed as under:
“7. If the Government decides to go ahead with the acquisition and to take possession of the land, it has powers to evict trespassers and to, secure possession of the land but, for this reason alone, they cannot be compelled to go ahead with the acquisition. In the conditions presently prevailing in major metropolitan cities, such eviction, for the Government, poses more serious difficulties than to a private person like the respondent company and it is common experience that, far from removing such encroachments, Government and municipalities are constrained to "regularise" them and provide them with civic necessities, Enactments like the Slums Act and the Urban Land Ceiling and Regulation Act have further complicated the situation. Where slum dwellers on a large scale occupy pieces of land, social and human problems of such magnitude arise that it is virtually impossible for municipalities, and no mean task even for the Government, to get the lands vacated. If the Government is reluctant to go ahead with the acquisition in view of these genuine difficulties, it can hardly be blamed. We see no justification to direct the Government to acquire the land and embark on such a venture. We are also of the opinion that the fact that the Government exercised the power of withdrawal after the writ petition was filed does not spell mala fides, once the existence of circumstances, which, in our opinion, justified the Governments decision to withdraw, is acknowledged”
10. In the above circumstances, this writ petition succeeds only in part; the 1st respondent-Government shall forthwith take a decision on the KIADB resolution dated 25.07.2011 in relation to its request for dropping of the petition lands from acquisition, in accordance with law.
It is needless to mention that the 1st respondent- Government shall give an opportunity of hearing to the land owners including the petitioner herein before taking a decision on the aforesaid resolution of the KIADB for dropping the lands from acquisition.
All the contentions of the parties are kept open. No costs.
Sd/- JUDGE UN/Snb