G.S. SHASHIDHAR v. STATE OF KARNATAKA

Brief facts of the case are that, the petitioners claim that they are the owners of Sy.Nos.77, 6/1A and 6/1B of P.Gollahalli and Gowdanahalli Village of Tumkur, to an extent of 4 17 guntas, 2 6 guntas 2 acre 9 guntas respectively, which are coconut and arecanut garden.

4. The petitioners' land were notified for acquisition under Preliminary Notification dated 19.07.2010 under Section - 4 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023 28(1) of the 1966 Act and Final Notification for acquisition was issued on 30.10.2014 under Section 28(4) of the 1966 Act. The said acquisition notifications were challenged W.P.No.9067/2015 on various grounds. It is stated that during the hearing of the writ petition along with other connected writ petitions on 01.09.2023, an application for amendment was filed by the learned counsel for the petitioners to include additional facts and additional prayer to the writ petition. Additional prayer sought by the petitioners reads as follows: "6) To add prayer iv after prayer iii :- Prayer iv:- Issue a writ of mandamus or any other appropriate writ or order or direction holding that the provisions of the KAD Act 1966 are repugnant to the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 and also is opposed to Articles 14, 19, 21 and 300A of the Constitution. or in the alternative Hold that the KIADB Act 1966 has become redundant having regard to the passing of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (Act XXX of 2013) by the parliament to meet the ends of justice." The said application came to be dismissed along with the Final Order i.e., I.A.No.1/2023 in W.P.No.9067/2015. The petitioners - 5 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023 aggrieved by the rejection of writ petition as well as rejection of I.A.No.1/2023 for amendment are before this Court in this appeal.

5. Heard the learned counsel Sri. Narayana Bhat.M., for appellants/petitioners and learned Advocate General Sri. Shashikiran Shetty for Sri. P.V.Chandrashekar, learned counsel respondent Nos.2 and 3 along with Smt.B.Sukanya Baliga, learned Additional Government Advocate for respondent No.1. Perused the writ appeal papers and the decisions filed in bulk by the learned counsel for the appellants/petitioners.

6. Learned counsel Sri. Narayana Bhat would contend that along with the challenge to the Notifications issued for acquisition, virus of the 1966 Act was sought to be challenged by way of amendment by filing I.A.No.1/2023. Learned counsel would further submit that the learned Single Judge rejected the said I.A. challenging the virus of 1966 Act on the ground that the applications were filed after the arguments of the petitioners were concluded. Learned counsel would further submit that the challenge to the Provisions of 1966 Act would - 6 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023 become relevant and unless the learned Single Judge examine the virus of 1966 Act vis-à-vis the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short '2013 Act') could not have rejected the writ petition and I.A.No.1/2023 for amendment.

7. Learned counsel Sri. Narayana Bhat canvasses the following issues: (a) Having regard to the 2013 Act, the Provisions of 2013 Act are required to be made applicable to the acquisitions under the 1966 Act. (b) Section 103 of 2013 Act would state that the provisions of 2013 Act are in addition to existing laws. (c) Schedule IV to 2013 Act would not include 1966 Act. Hence, exemption of 2013 Act cannot be claimed. (d) The 1966 Act dealing with acquisition of estate enacted under Entry 24 of List II and is not enacted under Entry of 43 of List III of the Seventh Schedule of the Constitution of India, hence President's assent is not necessary. (e) The decision in the case of SPECIAL LAND ACQUISITION OFFICER, KIADB, MYSORE AND ANOTHER vs. ANASUYA - 7 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023 BAI (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS reported in (2017) 3 SCC 313, is not applicable to the facts of the present case since it does not deal with virus of 1966 Act. Hence, the same is not applicable. (f) The 2013 Act, which is a Central Act would prevail over State Law i.e., 1966 Act.

8. In support of the above contentions, learned counsel Sri. Narayana Bhat places reliance on the decision of the Hon'ble Apex Court in the case of RUSTOM CAVASJEE COOPER vs. UNION OF INDIA reported in 1970 (1) SCC 248. Further, learned counsel would place reliance on the decision of the Hon'ble Apex Court in the case of AMBICA QUARRY WORKS vs. STATE OF GUJARAT AND OTHERS reported in (1987) 1 SCC 213 and also the decision in the case of BHAVNAGAR UNIVERSITY v. PALITANA SUGAR MILL (P) LTD. AND OTHERS reported in (2003) 2 SCC 111, to say that the ratio of decision to be understood in a fact situation of the particular case and it is an Authority what it actually decides. Learned counsel Narayana Bhat has referred to more than 34 case laws and the same would be referred if it is relevant for arriving at decision in the present appeal. - 8 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023

9. Per contra, learned Advocate General Sri.Shashikiran Shetty submits that 1966 Act is a Special Act, whereas 2013 Act is General Law. It is further submitted that the issue raised by the learned counsel for the petitioners is entirely answered by the Coordinate Bench of this Court in W.A.No.1105/2019 and connected writ appeals, disposed of on

24.08.2021. Learned Advocate General invites attention of this Court to various paragraphs of the above said judgment and submits that Section 24(2) of 2013 Act does not apply to the proceeding under 1966 Act, in the light of findings recorded in the said decision. Thus, learned Advocate General would pray for dismissal of the writ appeal.

10. Having heard the learned counsel for the parties and on perusal of the entire writ appeal papers, the decisions placed on record by the learned counsel for the petitioners and the decisions placed on record by the learned Advocate General on behalf of the respondents, we are of the opinion that the contentions raised by the petitioners are dealt with by Coordinate Bench of this Court in W.A.No.1105/2019 and connected matters decided on 24.08.2021. - 9 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023

11. The points considered by the Coordinate Bench in the above stated decision reads as follows: "POINT NO. (i) : The State Government cannot any longer exercise power under Section 3 of the KIAD Act without conforming to the pre-requisites as prescribed under the 2013 Act, nor work the other provisions of the Act, without also adhering to other mandatory provisions of the 2013 Act and the Rules there under. The Scheme under the KIAD Act as it prevails is inconsistent with the provisions of the 2013 Act in terms of Article 254(2) of the Constitution of India and is hence no longer valid as an independent enactment. POINT NO. (ii): Section 24(2) of the 2013 Act is applicable to an acquisition initiated under the provisions of the KIAD Act. POINT NO. (iii): By virtue of Section 24(2) at whatever point of time the vesting of land may have taken place, there is a divesting, in terms thereof, as it provides for a lapsing' of the acquisition proceedings, if the conditions specified therein are satisfied. POINT NO. (iv): The recent decision of the Apex Court in Civil Appeal No. 353/2017, the Special Land Acquisition Officer, KIADB, Mysore vs. Anasuya Bai, dated 25.01.2017 did not involve a challenge to the constitutional validity of the provisions of the KIAD Act and hence does not advance the case of respondents. - 10 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023 The petitions to be posted for hearing on facts and the merits of each case for final disposal." Point Nos.1, 2, 3 and 4 at Para-27 of the above decision i.e., Entry 24 of List II, Entry 7 & 52 of List I and Entry 42 of List III of the Seventh Schedule of the Constitution of India, are extracted and the same is considered in Para-28 of the said decision, which reads as follows: "28. It is well settled in law that declaration by Parliament by law to assume control over any particular industry in public interest is a sine-qua-non to clothe the Parliament with power under Entry 7 and Entry 52 of List I to legislate in respect of that industry, otherwise, industry as a general head of legislation is in exclusive sphere of State Legislative activity pursuant to Entry 24 of List II of Seventh Schedule to Constitution. The legislative power of State under Entry 24 of List II is evaded only to the extent, control is assumed by the Parliament pursuant to a declaration [See: 'ISHWARI KHETAN SUGAR MILLS (P) LTD. STATE OF UTTAR PRADESH & OTHERS', (1980) 4 SCC 136]."

12. Paragraph Nos.32 and 42 of the above decision reads as follows: "32. The true intent of the Act determines the validity of an Act. Real and true character of legislation is found with regard to pith and substance of the Act. The 2013 Act, which is a law relating to acquisition of - 11 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023 land and matters incidental thereto i.e., rehabilitation is resettlement and compensation is in pith and substance the law relating to acquisition of land, has been enacted in exercise of powers under Entry 42 of List III. whereas, 1966 Act has been enacted in exercise of powers under Entry 24 of List II. The 1966 Act is an Act, which in pith and substance deals with establishment of Industrial areas in the State of Karnataka and generally to promote establishment and orderly development of industries therein and for matters incidental thereto. The 1966 Act has been enacted under Entry 24 of List II to the Seventh Schedule to the Constitution of India. Both the enactments i.e., 1966 Act and 2013 Act taken together, as well as its objects and effect of the provisions of the Act it is evident that the establishment, growth and development of industries in the State of Karnataka or development of land for the Board does not fall either within Entry 7 or Entry 52 of List I to Seventh Schedule to the Constitution of India. It is pertinent to note that no declaration under Entry 52 of List I relating to 2013 Act or relating to matters covered by 1966 Act has been made. Both the Acts have been enacted under different Entries. Merely because 1966 Act incidentally provides for acquisition of land for industries, it cannot be held that 1966 Act has been enacted under Entry 43 of List III of Seventh Schedule to the Constitution of India. Since, both the statutes have been enacted under different entries in different Lists, therefore, the question of repugnancy does not arise.

42. Thus, it is evident that the provisions of 2013 Act are in addition to any other law for the time being in force. In other words, from Section 103 of 2013 Act, it can safely be inferred that parliament while enacting 2013 Act had the knowledge of existing laws and did not provide for repealing the same. Therefore, the Doctrine of implied repeal cannot be invoked in the fact situation of the case. As already for a provision - 12 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023 noticed, 2013 Act is a law relating to acquisition under Entry 42 of List III and 1966 Act is a law relating to industries under Entry 24 of List II of the seventh schedule to the Constitution of India. Thus, 2013 Act does not deal with the prohibited field viz., Industries and therefore, the doctrine of occupied field does not apply to the fact situation of the case. Similarly, 2013 Act is not a special law and therefore, it is not a case where special law is enacted in respect of field, which general law occupies. Therefore, 2013 Act not being a special law does not occupy the field in respect of subject matter in respect of which 1966 Act has been enacted. Thus, the issue No.2 is also answered in the negative and it is held that provisions of 1966 Act are not impliedly repeal on coming to force of 2013 Act.

13. The Coordinate Bench also considered the question whether the sanction given by the President on 26.05.1966 to Karnataka Act No.18 of 1966, stood lapsed or come to end on coming into force of the 2013 Act. While considering the said issue, the Coordinate Bench also considered Article 31A of the Constitution of India and answered at Paragraphs-47 and 49 as follows: "47. Thus, regarding the law framed by state legislature in respect of subject matter provided in clauses (a) to (e) of Article 31A(1), which includes the law providing for acquisition of estates, assent of the President is required to be taken before such a law enacted by the state legislature becomes effective.

49. Thus, there is a fundamental distinction between obtaining assent of the President under Article 31A(1) of the Constitution and Article 254(2) of the Constitution of India. The assent of the President under - 13 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023 Article 254(2) of the Constitution is required to be taken when there is a repugnancy between the law enacted by the State legislature and the Parliament. In the instant case, the 1966 Act as well as 2013 Act have been enacted under Entry 24 of List II and Entry 42 of List III of Seventh Schedule to the Constitution of India. A part of the state legislation affects property rights, therefore the assent of President of India is taken under Article 31A(1) of the Constitution of India and no assent was required to be taken under Article 254(2) of the Constitution as there is no repugnancy between the 1966 Act and 2013 Act. Even otherwise merely because assent of the President has been taken, the presumption with regard to repugnancy does not arise as the burden to prove that there has been repeal by implication lies on the party asserting the same which has not been discharged in this case.

14. The Coordinate Bench also considered R.C. COOPERS case (supra) referred by the learned counsel for the petitioners while coming to the conclusion that 1966 Act is a Special Act, whereas, 2013 Act is a General Law. There is no dispute with regard to the principles laid down by the Hon'ble Apex Court in the cases of AMBICA QUARRY WORKS and BHAVNAGAR UNIVERSITY (supra). It is true that ratio of the decision to be understood in the fact situation of the particular case and it is Authority what it actually decides. In the instant case, the petitioners have questioned the virus of 1966 Act vis-à-vis applicability of 2013 Act. The validity of 1966 Act and applicability 2013 Act already decided - 14 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023 W.A.No.1105/2019 and connected writ appeals. Therefore, the ratio of the above two decisions would not come to the aid of the petitioners herein.

15. In ANASUYA BAI case (supra), the Hon'ble Apex Court has specifically held that Section 24(2) of 2013 Act would have no application to the cases of acquisition under 1966 Act. The same holds good even to this date. Hence, petitioners cannot contend that ANASUYA BAI case (supra) is not applicable to the facts of the present case.

16. The decision of the Coordinate Bench of this Court in W.A.No.1105/2019 and connected matters were brought to the notice of the petitioners and they were apprised of the fact that contentions raised by them in the present appeal is already answered by the Coordinate Bench. Despite the same, the petitioners urged this Court to again reconsider the issues raised by them in the present writ appeal.

17. No litigant could seek for reopening the settled issues, unless he points out extraordinary ground or ground worth reconsideration. In the present case, no extraordinary ground is made out to reconsider the issues raised, which were - 15 - NC: 2024:KHC:49366-DB WA No. 1394 of 2023 already decided by the Coordinate Bench of this Court. There is no reason to disagree with the findings of the Coordinate Bench. We are not inclined to interfere with the order of the learned Single Judge. Accordingly, writ appeal stands dismissed with cost of Rs.1,00,000/- payable by the appellants to the Karnataka State Legal Services Authority within one month and to produce receipt for having paid the cost before the Registrar General of this Court. Sd/- (S.G.PANDIT) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SMJ List No.: 1 Sl No.: 33