Sri. Mohammed Thanveer v. The State of Karnataka

(By Shri. B.B.Patil, Advocate for Respondent Nos. 2 and 3 Shri. H.T. Narendra Prasad, Government Pleader Respondent No.1) ***** These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the preliminary notification dated 9.1.2007 issued by the first respondent under Section 3(1) and 28(1) of the Karnataka Industrial Area Development Act, 1966 published in Official Gazette on 10.1.2007 vide Annexures- F and G issued by first respondent in so far as it related to the item nos. 1 and 2 of the Schedule Property and etc; IN W.P.Nos.39543-44 OF 2010 (LA-KIADB) BETWEEN: Sri. K. Mohan, Son of Purushotham Das, Aged about 45 years, …PETITIONER 3 Residing at No.F-5, Brindavan Apartment, Hosur Main Road, Adugodi, Bangalore – 560 030. (By Shri. P.Usman, Advocate ) AND:

1. The State of Karnataka, Represented by its Secretary, Department of Industries and Commerce, M.S.Building, Bangalore – 560 001.

2. Karnataka Industrial Area Development Board, Rashtrothana Building, Nrupathunga Road, Bangalore – 560 001, By its Chairman.

3. The Special Land Acquisition Officer, Karnataka Industrial Area Development Board, Kheny Building, Gandhinagar, Bangalore – 560 009. …RESPONDENTS (By Shri. B.B.Patil, Advocate for Respondent No. 2 Shri. H.T. Narendra Prasad, Government Pleader Respondent Nos. 1 and 3 ) ***** 4 These Writ Petitions are filed under Articles 226 and 227 of Constitution of India praying to quash the preliminary notification dated 9.1.2007 issued by the first respondent under Section 28(1) of the Karnataka Industrial Area Development Act, 1966, published in Official Gazette on vide Annexure-D in so far as it relates to the Shedule Property and etc; These Writ Petitions are coming on for Final Hearing this day, the court made the following: O R D E R The office to show the name of Shri B.B. Patil as appearing for Respondents 2 and 3 in the stead of Shri Sangolli, in W.P.41045-47/2010.

2. Heard the learned counsel for the petitioners. These petitions are heard together and disposed of by this common order having regard to the issues that are raised being almost identical.

3. The learned counsel for the petitioners would submit that the petitioners are the owners of lands which have been notified for acquisition under the provisions of the Karnataka Industrial Areas Development Act, 1966 (Hereinafter referred 5 to as the ‘KIAD Act’ for brevity). They seek to question the proceedings primarily on three grounds, which are common to both these petitions. Firstly, that in terms of the scheme of the Act, it is contemplated that Chapter-VII of the KIAD Act shall come into force in such area and from such date as the State Government may from time to time, by a notification specify in this behalf. Therefore, it is only on publication of a notification under sub-section (3) of Section 1 that the Chapter-VII could be brought into force in respect of a particular land. In the instant case on hand, it is sought to be contended that the State Government has issued a notification under Section 28(1) in the first instance and hence, any notification issued under sub- section (3) of Section 1, following such a notification would be invalid and inoperative and it would result in incongruity in the Chapter-VII being invoked even before the same can be applied at all as would be the result if a notification in the first instance under sub-section (3) of Section 1 is not issued. 6 Secondly, it is contended that insofar as the procedure contemplated under Section 28 insofar as the acquisition of land is concerned, it is seen from the tenor of sub-section (4) of Section 28 that immediately upon the issuance of a notification under Section 28(4), the land which is notified would vest in the State and it is thereafter that the land owner is notified as regards compensation. This is a departure from the procedure that is adopted under the Land Acquisition Act, 1894 (hereinafter referred to as the ‘1894 Act’ for brevity) and therefore, results in a serious discrimination insofar as the land owner being deprived of his property even before compensation is paid and therefore, seeks to question the vires of the section on that ground. Thirdly it is contended that though the name of the petitioners in each case was reflected in the RTC as on the date of issuance of the preliminary notification, the petitioners were not placed on personal notice of the proceedings as the kathedars even though their names were reflected in the RTC 7 and therefore, this results in the respondent – State being enabled to peg the value of the land payable as compensation from the date of such notification, even though the petitioners’ names were not reflected in the notifications, and therefore, the question of propriety of the same.

4. Per contra, the learned counsel for the respondents would contend that there is no substance in the grounds urged on any of the contentions. Firstly, it is pointed out that insofar as the allegation that there is incongruity in the issuance of a notification under Section 28(1) preceding a notification under sub-section (3) of Section 1 is concerned, is an incorrect assertion. As admitted by the learned counsel for the petitioners, though the notifications are published on the same date, the contention proceeds on the footing that since the notification under sub-section (3) of Section 1 is appended to the said notification after the notification under Section 28(1), it is sought to be contended that the notification under sub-section 8 (3) of Section 1 follows the notification under Section 28(1). This may not be the correct conclusion to be drawn from the placements of the notifications, as published. On the other hand, even if there was any such delay in the issuance of a notification under sub-section (3) of Section 1, it would not result in any invalidity. In this regard, he places reliance on a decision of the Apex Court in the case of AhujaIndustries Ltd. Vs. State of Karnataka and others(2003 (5) SCC 365), where an identical ground was urged, namely that the notification under Section 28(1) was prepared on 3.10.1997, whereas notification under Section 1(3) was prepared on 20.10.1997, that is 17 days thereafter. However, the same had been published on the same day. The Apex Court, while alluding to such an alleged inconsistency resulting in an incongruity, has found that it did not constitute a flaw, much less one which can render the acquisition proceedings legally bad or void, and therefore, would submit that the question is non longer res integra. 9 Insofar as the second contention that the vires of Section 28(5) is sought to be questioned on the ground that it declares that the land stands vested in the State immediately upon issuance of a notification under Section 28(4), is also not a question which would arise for consideration, as the position of law stands settled by the Apex Court which has addressed the scope of the provisions under the Land Acquisition Act vis-à- vis the Karnataka Industrial Areas Development Act. In M. Nagabhushana vs. State of Karnataka and others ((2011)3 SCC 408, the Apex Court, while comparing the provisions of Section 28(4) and 28(5) corresponding to the provisions of the Land Acquisition Act with particular reference to Section 16 of the 1894 Act, has held that, as laid down in earlier decisions, namely in Munithimmaiah vs. State of Karnataka ((2002) 4 SCC 326), as well as Offshore Holdings (P) Limited vs. Bangalore Development Authority ((2011) 3 SCC 139), which was considering a comparison between the provisions of the BDA Act and the 1894 Act, the Court has held that the same 10 principle is attracted as regards the comparison between the provisions of the 1894 Act and the KIAD Act, that they were enacted to achieve substantially different purposes. Insofar as the KIAD Act is concerned, it is to provide for the orderly establishment and development of industries in suitable areas in the State and that it is a self-contained code and it is a law regulating acquisition of land for public purpose and for payment of compensation, whereas acquisition of the land under the 1894 Act is not concerned solely with the purpose of planned development of any city. It has to cater to different situations which comes within the expanded horizon of public purpose and any such difference that may be present would not result in rendering the KIAD Act unconstitutional. Incidentally, the learned counsel for the respondents would also point out that insofar as the prejudice that may be caused to the petitioners in the land vesting in the State even prior to payment of compensation, does not result in a denial of compensation. On the other hand, Section 30 of the KIAD Act 11 provides for the application of the provisions of the 1894 Act insofar as they may be relevant for payment of compensation and for other purpose. Therefore, the petitioner is not in any manner prejudiced by virtue of the difference between the provisions and the procedure adopted insofar as the vesting of the land is concerned in as much as the petitioner is not deprived of compensation by any such difference that may exist under the two statutes and hence, it cannot be a ground to question the vires of sub-section (5) of Section 28. Insofar as the contention that the petitioners were not duly notified of the acquisition proceedings though they were the kathedars as on the date of the notification is concerned, the learned counsel for the petitioner would point out that insofar as the first of these petitions in W.P.Nos.41045-47/2010 is concerned, the petitioner was duly notified and he has filed his objections to the notification and the copy of the same is appended to the statement of objections Annexure-“R2” and it is only after consideration of the same that further proceedings 12 have been taken. Therefore, the procedure has been duly complied with in that regard. Insofar as the second of these petitions W.P.39543- 44/2010 is concerned, the petitioner’s name did not figure in the RTC as on the date of the preliminary notification. His predecessor from whom the petitioner may have purchased the property, was duly notified and objections had been filed by the said person. Therefore, there is no infirmity in the notification issued as regards the acquisition proceedings. Hence, he would submit that on all counts, there is no substance in the present writ petitions and the same be dismissed.

5. By way of reply, the learned counsel for the petitioners would submit that even if the petitions are to be dismissed on the ground that there is no merit in the several grounds urged, the further circumstance remains that the petitioners are mulcted with the value of the land pegged for purpose of compensation as on the date of the notification. The learned 13 counsel for the petitioners would submit that notwithstanding the merits on which the petitions could be dismissed, if at all, the fact remains that the petitioners who are admitted to be owners of land in question are denied the compensation on frivolous grounds and the petitioners are yet to receive the compensation in respect of the land in question. The learned counsel for the respondents would submit that though the compensation has been awarded in respect of the land in question, the respondents were left with no alternative, but to deposit the amount of compensation before the competent Civil Court in view of a dispute having been raised as to the entitlement of the amount of compensation and therefore, there is no denial of compensation and it is for the petitioners to go and satisfy the Civil Court as to the entitlement and to receive the compensation which is in deposit.

6. Therefore, on a consideration of the rival contentions and the legal position that pertains, there is no substance in these writ petitions and the same are dismissed. Insofar as the 14 petitioners’ contention they are deprived of compensation notwithstanding the fact that there can be no dispute of his ownership, is a matter which is vehemently contested by the respondents and since the respondents have deposited the amount, it is for the petitioners to work out their remedies before the competent Civil Court where the amount of compensation is said to have been deposited. Therefore, the dismissal of these petitions however is without prejudice to the bona fide claim of the petitioners, which shall be adjudicated by the Civil Court. Sd/- JUDGE KS