2021 (8) TMI 1415 - KARNATAKA HIGH COURT

Validity of the notifications issued under the Karnataka Industrial Area Development Board Act, 1966 - Seeking relief that provisions of 1966 Act have been impliedly repealed on commencement of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013.

Whether the provisions of Karnataka Industrial Areas Development Act, 1966 are repugnant to the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013? - HELD THAT:- 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.

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 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 - 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.

Thus, in exercise of powers under Proviso to Article 254(2), the Parliament can enact an subsequent law in respect of same matter, in respect of which State legislature has enacted a law under Article 254 (2). The 1966 Act and 2013 Act have been enacted in respect of different subject matters as stated hereinabove. Therefore, Article 254(2) does not apply to the fact situation of these cases.

Whether the Karnataka Industrial Areas Development Act, 1966 is impliedly repealed on coming into force of the Right to Fair Compensation ad Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013? - HELD 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 a provision for repealing the same. Therefore, the Doctrine of implied repeal cannot be invoked in the fact situation of the case. As already 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 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.

Whether Karnataka Industrial Areas Development Act, 1966 is a special enactment vis a vis Right to Fair Compensation and transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013? - HELD THAT:- The 1966 Act had been enacted with the object of establishment of industrial areas, promoting the establishment and orderly development of industries and establishment of industrial areas development board. The 1966 Act incidentally deals with acquisition of land for the purposes of development by the Board. In pith and substance the 1966 Act is the law enacted under Entry 24 of List II of the seventh schedule to the Constitution of India and is a law enacted with sole purpose of development of industrial areas, industrial estates and growth and development of industries within the State. Therefore, 1966 Act is a special law, whereas, 2013 Act, which deals with acquisition of the land is a general law. Thus, the issue is answered.

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? - HELD THAT:- 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 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 - the issue is also answered in the negative and it is held that assent granted by the President on 26.05.1996 to 1966 Act did not lapse on coming into force of 2013 Act.

What is the effect of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Karnataka Amendment) Act, 2019 (Act No.16 of 2019) on Right to Fair Compensation and transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013? - HELD THAT:- The provisions of 2013 Act have been amended by the State Legislature by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Karnataka Amendment) Act, 2019, the aforesaid amendment act had received the assent of the President on 16.07.2019. By the aforesaid Amendment Act, several provisions of 2013 Act have been amended, however, the amendments which are relevant for decision of the controversy involved in these appeals are, Amendment of Section 2, insertion of Sections 10A, 23A, 30A and 31A.

The KIADB vide its resolution dated 27.08.2016 has resolved to determine the amount of compensation in respect of the land which may be acquired under 1966 Act as per Schedule I of 2013 Act. Therefore, the grievance of the owners of the land in so far as it pertains to payment of lesser compensation under 1966 Act does not survive. It has been urged on behalf of the owners of the land that the provisions of the Karnataka Amendment Act 2019 are arbitrary and are opposed to all canons of law and voilative of Article 21. However, except for making such a statement no material has been brought on record to show as to how the provisions of Amendment Act are either arbitrary, voilative of Article 21 of the Constitution of India or unconstitutional. The provisions of the Amendment Act cannot also be said to be in violation of Section 108 of 2013 Act which provides an option to the affected families to avail better compensation an rehabilitation and resettlement, if state law or policy so provides. Thus, it is held that provisions of 2013 Act have been validly amended by the State legislature - the issue is thus answered.

Whether provisions of Section 24(2) of 2013 Act apply to proceeding under 1966 Act? - HELD THAT:- A division bench of this court in ANANTHASWAMY VERSUS THE STATE OF KARNATAKA AND ORS. [2021 (3) TMI 1448 - KARNATAKA HIGH COURT] by placing reliance on decision of Supreme Court in ANASUYA BAI supra has also held that Section 24(2) of 2013 Act does not apply to proceeding under Section 1966 Act. Thus, the aforesaid issue is also answered in the negative and it is held that Section 24(2) does not apply to proceeding under 1966 Act.

The finding recorded by the learned Single Judge that since, the State Government has adopted the National Manufacturing Policy, and therefore, the provisions of 1966 Act would be redundant unless al the provisions of 2013 Act are introduced to safeguard the interest of the land owners cannot be sustained. Similarly, the finding recorded by the learned Single Judge that since, acquisition of land for industrial and manufacturing purposes is now declared a primary public purpose under 2013 Act, the 1966 Act which is silent with regard to feasibility of acquisition of particular land for industrial purposes should conform to provisions of 2013 Act, otherwise must perish is sans substance. Similarly, the finding that State Government cannot be permitted to over write provisions of 2013 Act by resorting to unbridled powers under 1966 Act and that entire field of establishment of industrial areas is covered by 2013 Act, also does not deserve acceptance.

Let the writ petitions be listed before learned single judge to examine the validity of the proceedings initiated under the 1966 Act - appeal allowed.