TMI Blog2023 (9) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Whether the petitioners are entitled to compensation under the Land Acquisition Act, 1894 or under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act ,2013, in respect of lands acquired pursuant to preliminary notification issued after 01.01.2014 u/s 28(1) of the Karnataka Industrial Area Development Act, 1966? HELD THAT:- The claim of the petitioners is for grant of compensation under the Act, 2013. Though respondent authorities and the appellant herein do not seriously dispute grant of compensation under the Act, 2013, except stating that the package compensation offered by the appellant herein applying provisions of Act, 2013 is only for the limited purpose of passing consent award and if it was not accepted the compensation would be awarded in accordance provisions of KIAD Act, 1966, it is necessary at this juncture to refer to the very notification dated 15.10.2015 issued under Section 28(1) of the KIAD Act, 1966 seeking to acquire the subject property in that it is stated that compensation for acquisition would be paid in terms of Act, 2013. When a representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate entity has been brought into existence, submission was made on behalf of the appellant that since payment of compensation, repayment of debt is the responsibility of the appellant- BMRCL it has locus standi to question the payment of compensation under Act, 2013, even before the amendment brought in to Section 30 of KIAD Act, 1966, it is necessary to refer to Annexure-H a communication dated 21.10.2016 addressed by BMRCL to the Special Land Acquisition Officer- respondent No. 7 with respect to providing package compensation. In that taking into consideration of the Notification dated 21.10.2016 and the value of land, solatium of 100% and the interest at 12% as provided under Section Act, 2013 has been calculated. Based on the said compensation package notices under Section 29(2) of KIADB Act, 1966 has been issued by KIADB and in furtherance thereof, general award as per Annexure-H1 has been passed by KIADB on 29.05.2018 though rejected by the petitioners. Appellant has made out a case for maintainability of the writ appeal, cannot be heard to say that the respondents/petitioners are not entitled to payment of compensation under Act, 2013. Similarly, though no appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m payment of income tax and from deduction of tax at source under the Income Tax Act, 1961. (f) The appellants and respondent-authorities herein are consequently directed to pass fresh/modified awards and to do all deeds and things as required under the Act, 2013 by granting exemption from tax under Income Tax Act, 1961 within a period of three months from the date of receipt of the copy of the order. (g) The appellant and respondent-authorities are also directed to disburse/pay the compensation already deposited by them as per the earlier award and the amount deposited by the appellants before the court was also directed to be released in favour of the respondents. 2. Contempt petition in CCC No. 1047/2022 has been filed by the respondents complaining disobedience of the aforesaid order of the learned Single Judge. 3. Since these appeals are filed against the common order involving common facts and issues they are heard together and taken up for common disposal. 4. Brief facts leading to filing of these appeals are that Respondents 1 and 2 in W.A. No. 890/2022 claiming to be owners of properties bearing identification No. R1E-235 and No. R1E-235A situated at Sadaramangala Village, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, arbitrary and discriminatory. That since the payment of Income tax on the compensation is exempted under Section 95 of Act 2013, the deduction of tax at source was illegal, discriminatory and arbitrary and contrary to the provisions of Act, 2013 as well as Income Tax Act, 1961 and the Circular dated 25.10.2016 issued by Central Board for Direct Taxes. 8. The said writ petitions were resisted by the respondent authorities questioning the very maintainability in view of availability of alternate remedy of seeking enhancement of compensation before the Reference Court. It was contended that the compensation was required to be awarded under Act, 1894 and not under Act, 2013 as the same is not applicable in respect to the acquisition made by KIADB. That the deduction of tax at source was in accordance with provisions of law as no exemption is provided from payment of income tax on the compensation. 9. Considering the rival contentions, learned Single Judge framed following points for his consideration; (i) Whether the writ petitions are maintainable in view of the remedy of seeking enhancement of compensation before the reference court being available to the petitioners, who have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appropriate case , Sri. Dhananjay Joshi, learned Senior counsel appearing for appellants restricted the grounds of appeal to the following propositions by filing a memo dated 03.07.2023. 1. Whether the appellant is entitled to challenge the determination of compensation by the respondent No. 8 KIADB? 2. Whether the impugned Judgment dated 21.04.2022 is contrary to the law laid down by the Hon ble Supreme Court in Anasuya Bai and followed by this Hon ble Court in Sri. Ananthaswamy? 3. Whether the Hon ble Writ Court s reliance on Jalaja is sustainable? 4. Is the Hon ble Supreme Court s decision in Nagpur Improvement Trust of any assistance to the Respondent No. 1? 5. Whether the decisions of this Hon ble Court in Mahesh and in Jemcy Ponnappa of any assistance to the Respondent No. 1? 13. Adverting to above said propositions, learned Senior Counsel Sri. Dhananjay Joshi submitted that: 13.1 The appellant has locus standi to maintain the writ appeal as it is not an allottee of land by the KIADB. That on the other hand, the appellant is a party to the Memorandum of Understanding dated 24.02.2017. That, appellant is a joint Venture Company, incorporated for the purpose of implementin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the KIAD Act, 1966 and that it is only the State Government under Section 29 of the KIAD Act, 1966 is vested with the power to determine the compensation payable for acquired land. That since the KIADB is only a creature of statute it cannot exercise any power or authority beyond what is granted thereunder. As such, he submitted that the resolution passed by the Board referred to and relied upon in the case of Jalaja was one without authority of law. 13.3 He also submitted that the decision of the Apex Court in the case of Nagpur Improvement Trust Vs Vithal Rao and others reported in (1973)1 SCC 500 is of no avail to the case of respondents as the Apex Court at paragraph 28 of the said Judgment as held that when the object of acquisition is the same, there cannot be discrimination in determination of compensation. Referring to the Judgment of the Apex Court in the case of Girnar Traders Vs State of Maharashtra reported in (2011)3 SCC 1, he submitted that the Apex Court has declared that MRTP Act, 1966 is a self contained code and there is no conflict with the Land Acquisition Act, 1894 as the object of said two legislations are different. He also submitted that the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date on which Act, 2013 came into force, acquiring authorities cannot be permitted to apply provisions of repealed Land Acquisition Act, 1894 as the same would run contrary to Article 14 of the Constitution of India. Reliance is placed on paragraph 30 of the Judgment of the Apex Court in the case of NAGPUR IMPROVEMENT TRUST (supra) wherein the Apex Court has held that if the existence of two acts enables the State to give one owner different treatment from another equally situated, the owner who is discriminated against can claim protection of Article 14. That it is immaterial under which Act and for what purpose the land is acquired as far as land losers are concerned the differential standard of compensation cannot be applied. He also relied upon the Judgment of the Apex Court in the case of Girnar Traders (supra) to contend that where the statutes are considered as self contained code, the legislation by incorporation or by reference has no relevance. Consequently the Government had effectuated the enhancement made in LA (Amendment) Act, 1984 to KIAD Act, 1966 without considering legislation by incorporation. 14.3 That since there is no challenge to the impugned order by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant cannot be considered to be a contract in the eye of law, as the same is not expressed to be made by the President or the Governor of the State and is not in accordance with Article 299 of the Constitution of India. 14.8 That the appellant has not made out any grounds as to how it is aggrieved by passing of the award by applying the provisions of Act, 2013 and payment of compensation would not come in the way of implementation of the Metro Rail Project. Besides, claim for compensation is a statutory right of the land losers. Hence, he seeks for dismissal of the appeal. W.A. No. 1070/2022 15. Sri. E.I. Sanmathi, learned counsel appearing for Central Board of Direct Taxes and another for the appellants in W.A. No. 1070/2022 reiterating the grounds urged in the memorandum of appeal submitted; 15.1 that the respondent had never taken a plea before passing of an award that they are entitled for compensation under Act, 2013 and not under the Act, 1894. As such the reliance placed on Circular dated 25.10.2016 issued by CBDT is incorrect as the said circular is applicable with respect to the awards passed under Act, 2013 only and the same is stipulated under clause 3 of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the claim of the respondent Nos. 1 and 2 for payment of compensation under Act, 2013 on par with the compensation paid in the cases of Mahesh, Jalaja, Jemcy Ponnappa is unjustifiable. 18. Sri. S.S. Mahendra, learned Additional Government Advocate appearing for the State submitted that under the provisions of KIAD Act, 1966 it is the State which is vested with powers to determine and award compensation and no such power is provided to be exercised by the Board. As such, 343rd Resolution passed by the Board is without authority. He submitted that the amendment to the KIAD Act namely, Section 30 was brought in only in the year 2022 and the same cannot be given retrospective effect as in the instant case, the acquisitions were made prior to the said Amendment. Thus he submitted the order impugned is unsustainable. 19. Heard and perused the records. 20. The principal reliefs sought for in the writ petitions is on the premise that in respect of all acquisitions made on and after 01.01.2014 under the KIAD Act, 1966 the compensation and benefits shall be awarded in terms of provisions of Act, 2013 and for the benefit of exemption from payment of income tax on the said compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct the tax at source in the compensation amount calculated as per package compensation. That it is further stated that the calculation of package compensation is only for the purpose of consent award and if the land owner did not accept the said package compensation then the respondent No. 7 could pass the general award under the provisions of KIAD Act, 1966. 24. As noted above, the claim of the petitioners is for grant of compensation under the Act, 2013. Though respondent authorities and the appellant herein do not seriously dispute grant of compensation under the Act, 2013, except stating that the package compensation offered by the appellant herein applying provisions of Act, 2013 is only for the limited purpose of passing consent award and if it was not accepted the compensation would be awarded in accordance provisions of KIAD Act, 1966, it is necessary at this juncture to refer to the very notification dated 15.10.2015 issued under Section 28(1) of the KIAD Act, 1966 seeking to acquire the subject property in that it is stated that compensation for acquisition would be paid in terms of Act, 2013. When a representation to pay the compensation is under Act, 2013 is made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Mahesh and other land losers have been granted compensation in terms of the award dated 30.01.2020 as per Annexure-AN under the provisions of Act, 2013. It is also relevant to note that the State Government by its letter dated 08.08.2019 bearing No. CI 176 SPA 2019 had reiterated and reaffirmed the resolution of the KIADB to pay the compensation under the Act, 2013. 30. The contention of the appellant that KIADB under the scheme of Act, 1966 is not having any power or authority in the matter of determination and payment of compensation which power and authority is vested exclusively in the State Government though appears to be tenable, however, in view of the fact that the resolution of the KIADB passed in its 343rd meeting referred to hereinabove has apart from being given effect to has been accepted and reiterated by the State Government in its communication referred to above, the said contention pales into insignificance. That apart KIADB in the aforesaid proceedings namely Puttalakshmma and Jalaja has relied upon said resolution enabling this Court to accept the contentions of the land losers of their entitlement for compensation under Act, 2013. As already noted above, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 issued by the appellant as noted above, the appellant cannot be heard to contend otherwise. This is notwithstanding the acceptance and giving effect of the resolution dated 27.10.2016 passed by the KIADB in its 343rd meeting in the earlier cases referred to above. 34. For the aforesaid reasons and analysis though the appellant has made out a case for maintainability of the writ appeal, cannot be heard to say that the respondents/petitioners are not entitled to payment of compensation under Act, 2013. 35. Similarly, though no appeal is preferred by the State and the KIADB, a feeble attempt is made by them to contend that the payment of compensation under Act, 2013 was made in the cases of Puttalakshmamma, Jalaja, Mahesh and Jemcy Ponnappa as the said cases were not concerned with the acquisition of land of BMRCL, the said submissions cannot be countenanced in view of the law laid down by the Apex Court in the case of Nagpur Improvement Trust (supra), wherein the Apex Court has held that if the existence of two acts enables the State to give one owner different treatment from another equally situated, the owner who is discriminated against can claim protection of Article 14. That i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Income Tax Act. In the light of the above position, learned counsel for the appellant in W.A. No. 1047/2022 submitted that in view of subsequent amendment to the Income Tax Act, inserting Section 194 LA into Income Tax Act vide Finance Act, 2017 with effect from 01.04.2017 and by inserting second proviso after the amendment, a distinction has been made that the exemption from payment of income tax and from deduction of tax at source can be provided only in respect of acquisition made under Act, 2013 and not under KIADB Act, 1966. Therefore, he submits the benefit of exemption cannot be extended. He also refers to provisions of Section 10(37) of the Income Tax Act, 1961. 40. As rightly taken note of by the learned Single Judge that in the background of upholding the contention of the respondents/writ petitioners of their entitlement of compensation under the provisions of Act, 2013, the entire benefit including the benefit under Section 96 of the said Act, 2013 has to be extended in its entirety. More so, as already noted even BMRCL, which is the appellant in the connected matter challenging the relief granted in favour of respondent/writ petitioners for determination of their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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