TMI Blog2012 (11) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... owners in Sy. No. 68/1 measuring 3 acres 5 guntas situated in the same Village. Similarly, petitioner Nos. 8 to 10 in the writ petition are the absolute owners of the land bearing Sy. No. 236 measuring 1 acre 39 guntas as well as Sy. No. 237 measuring 30 guntas situated in the same Village. Petitioner Nos. 11 to 13 are the absolute owners of the land in Sy. No. 237 measuring 3 acres 18 guntas situated in the same Village. The petitioners in W.P. No. 12970/2006 are the absolute owners of the land in Sy. No. 235 measuring 4 acres 6 guntas in the said Village. 2. The Government of Karnataka issued a notification under Section 3(1) of the Karnataka Industrial Areas Development Act, 1966 (for short hereinafter referred to as the Act ) declaring that the lands bearing various survey numbers in Villages Jigani, Bandenallasandra, Yarandahalli, Kyalasanahalli and Rajapura of Anekal Taluk, Jigani Hobli as industrial area . In all an extent of 988 acres 6 guntas were notified. Subsequently by a notification dated 19.04.1997 one more notification came to be issued under Section 1(3) of the Act making Chapter 7 of the act applicable to the lands which are mentioned in the said notification. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of The State of Madhya Pradesh and Others vs. Vishnu Prasad Sharma And Others reported in AIR 1966 SC 1593, the learned Single Judge on consideration of the aforesaid contention was of the view that the scheme under the Land Acquisition Act is totally different from the scheme under the Act. In fact the Apex Court also has held that the scheme of acquisition under these two Acts are different and therefore the provisions of the Land Acquisition Act cannot be read into the Act. Therefore, the learned Single Judge held successive notifications under Section 28(4) of the Act is permissible, as such, he upheld the impugned acquisition. The learned Single Judge also dismissed these writ petitions on the ground that much water has flown after the issue of notification. There is inordinate delay in the petitioners approaching the Court challenging the acquisition. In the meanwhile the layout has been formed, sites are allotted to various industrialists, third party interests have set in and therefore, he was of the view, this is not a case where he should interfere under Article 226 of the Constitution. Aggrieved by the said order dated 02.07.2010 the petitioners preferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so. 5. Payment for damage.- The officer so authorized shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and, in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other chief revenue officer of the district, and such decision shall be final. 5A. Hearing of objections.- (1) Any person in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether only one notification under S. 6 can be issued with respect to land comprised in the notification under S. 4(1) and thereafter the notification under S. 4(1) exhausts itself and cannot support any further notification under S. 6 with respect to such land depends upon the construction of Ss. 4, 5-A and 6 of the Act and on the connection between these provisions xxxx. Then at para-15 it is held as under: 15. xxxxxx The purpose of the notification under Section 4(1) clearly is to enable the government to take action under S. 4(2) in the matter of survey of land to decide what particular land in the locality specified in the notification under Section 4(1) it will decide to acquire. Another purpose of the notification under S. 4(1) is to give opportunity to persons owning land in that locality to make objections under S. 5-A. These objections are considered by the Collector and after considering all objections he makes a report containing his recommendation on the objections to the appropriate government whose decision on the objections is final Section 5-A obviously contemplates consideration of all objections made to the notification under S. 4(1) and one report thereafter by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration under S. 6 to that effect. The purpose of the notification under Section 4(1) is at this stage over and it may be said that it is exhausted after the notification under S. 6. If the government requires more land in that locality besides that notified under S. 6, there is nothing to prevent it from issuing another notification under S. 4(1) making a further survey if necessary, hearing objections and then making another declaration under S. 6 xxxxxx. Further they proceeded to hold as under: It seems to us clear that once a declaration under S. 6 is made, the notification under S. 4(1) must be exhausted, for it has served its purpose. There is nothing in Ss. 4, 5-A and 6 to suggest that S 4(1) is a kind of reservoir from which the government may from time to time draw out land and make declarations with respect to it successively. If that was the intention behind sections 4, 5-A and 6 we would have found some indication of it in the language used therein. But as we read these three sections together we can only find that the scheme is that S. 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4. sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government The decision of the appropriate Government on the objections shall be final. (3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act. 6. and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub-section (2): (underlining by us) 12. Now by virtue of these amended provisions, after an enquiry under Section 5A, the Collector is vested with the power to make different re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Land Acquisition Act. 15. Section 28 of The Karnataka Industrial Areas Development Act, 1966 reads as under: Acquisition of land: (1) If at any time, in the opinion of the State Government, any land is required for the purpose of development by the Board, or for any other purpose in furtherance of the objects of this Act, the State Government may by notification give notice of its intention to acquire such land. (2) On publication of a notification under subsection (1), the State Government shall serve notice upon the owner or where the owner is not the occupier, on the occupier of the land and on all such persons known or believed to be interested therein to show cause; within thirty days from the date of service of the notice, why the land should not be acquired. (3) After considering the cause, if any, shown by the owner of the land and by any other person interested therein, and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit. (4) After orders are passed under sub-section (3), where the State Government is satisfied that any land should be acquired for the purpose specified in the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the land under the Act as contained in Section 28 is identical with the provisions contained in Sections 4, 5A and 6 of the Land Acquisition Act. After elaborately considering the scheme of both the Acts and setting out various definitions and provisions contained in both the Acts at para-13 they have held as under: 13. The provision for acquisition of land under the Act is contained in Section 28 which is somewhat different from the provisions contained in Section 4, 5-A and 6 of the Land Acquisition Act. The legislature in its wisdom thought it proper to make a specific provision for acquisition of the land in the Act itself rather than to take recourse to Sections 4 and 6 of the Land Acquisition Act. A plain reading of sub-section (1) of Section 28 would show that land can be acquired for the purpose of (i) development by the Board, or (ii) for any other purpose in furtherance of the objects of the Act Sub-section (3) of Section 28 is similar to Section 5-A of the Land Acquisition Act and the final notification is issued under Sub-section (4) of Section 28. The necessary precondition for a valid notification under sub-section (4) of Section 28 is that the State Government s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government has to consider the cause shown by the owner of the land and may pass such order as it deems fit and if it is satisfied that any such land should be acquired for the purpose specified in the notification, it may issue a declaration. In the light of the marked difference in the language employed in Section 28, there is no scope for holding that successive notifications are not permissible in law. In fact the legislature did not amend the Act because in the Act the provisions similar to consideration of all objections together, submission of a report and consideration of a report and issuing final notification are conspicuously missing. If those words had been there and if they had not been amended, then the judgment of the Apex Court would have to be applied with full force. Therefore, merely because the State legislature did not bring about any amendment as was done by the Parliament, it would in no way support the case of the petitioners. Such an amendment in the facts of this case was wholly unnecessary. 19. In the light of what is stated above we are of the view that the learned Single Judge was justified in holding that under the Act, issuance of successive decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land owner chooses to challenge the acquisition, certainly it takes time before the acquisition is completed. Therefore, under the scheme it is open to the Government to issue a notification under Section 28(4) in respect of lands where there is no opposition to the acquisition or where they are able to serve the land owners, consider their objections and issue notification for acquisition. If there is any delay in service of notice, if there are contests and any order of stay or injunction is obtained from Courts, it is not necessary for the Government to wait for conclusion of those proceedings before it could issue a notification under Section 28(4) of the Act. That is precisely the reason why as is clear from the language employed in Sections 28(3) and (4), the Government is empowered to consider the cause shown by each owner and pass appropriate orders and issue declarations in respect of such owners under Section 28(4) of the Act. It serves the object of the Act. Similarly it also enables the owners of the land who are consenting for acquisition to get compensation expeditiously. Therefore, seen from all angles the legislature has consciously avoiding the pit falls which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of power no time limit is fixed, it has to be exercised within a time which can be held to be reasonable. The authorities are enjoined by the statute concerned, to perform their duties within a reasonable time and a such they are answerable to the Court, why such duties have not been performed by them, which has caused injury to the claimants. The Supreme Court held that where the compensation is pegged down to the date of preliminary notification and there is inordinate delay, the market rate as on the date of preliminary notification becomes a fraction of the market rate prevailing at the time of passing of the award and taking of possession and that would be unjust to the land owners. 18. In this case the Authority has not explained the inordinate delay. Even if it is assumed that the delay upto 15.3.1989 is explained by reason of the fact that the scheme was approved by the Government under Section 18(3) of the Act on that day, there is absolutely no reason forthcoming for the delay of more than 3 years between 15.3.1989 to 2.6.1992. In this case, the land owners have approached this Court in the year 1992 immediately after the Final Notification and are having the benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final declaration, entire acquisition proceedings would lapse. However, similar provisions are not contained in the Act. In the absence of such provisions the issue of a final notification as well as passing of an award could be indiscriminately delayed. In this regard in the case of State of Gujarat Vs. Patel Raghav Natha reported in AIR 1969 SC 1297, the Apex Court was considering the question whether in a statue, if for exercise of the power, no time-limit has been fixed, can the authority which has to exercise such power can exercise the same at any time. In that context it was held as under: The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. 25. The said view was reiterated by the Apex Court in the case of Mansaram Vs. S. P. Pathak reported in (1984)1 SCC 125 at para-12, it is held as under: But as stated earlier, where power is conferred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the land acquisition, gets substantially the value of his land, which he would have got on the date of his dispossession. It was said The principle and the rule cannot be reconciled except on the basis that the total value to the owner at the date of the notice to treat is always substantially the same as the value at the date of the expulsion. 32. In fact, it is this principle which is now incorporated by way of amendment to Section 6(1) as well as by introduction of Section 11A under the Land Acquisition Act. It is in this context, when such provisions are not contained in the Act, the Apex Court in the case of Ram Chand's case at para-27 held as under: According to us, after the judgment of this Court in Aflatoon case on August 23, 1974, the reasonable time for making the awards was about two years from the date. Beyond two years, the time taken for making of the awards will be deemed to be unreasonable. As such, after expiry of the period of two years, some additional compensation has to be awarded to the cultivators. Taking into consideration the interest of the cultivators and the public, instead of quashing the proceedings for acquisition, we direct that the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal and statutory mandate? Ignoring the escalation of the market value of the lands, especially near the agglomeration or metropolitan cities, will amount to ignoring an earthquake and courts can certainly take judicial notice of the said fact. The interest and the solatium, which had to be paid under the provisions of the Act, are linked with the market value of the land with reference to the date of the notification under sub-section (1) of Section 4 of the Act. If a decision had been taken as early as in the year 1966, by issuance of the declaration under Section 6, that the lands belonging to the different cultivators, who held those lands within the ceiling limit for cultivation, were needed for public purpose, respondents should have taken steps for completion of the acquisition proceedings and payment of compensation at an early date. In the present cases, unless a justification is furnished on behalf of the respondents, can it be said that the statutory power of making an award under Section 11 as been exercised within a reasonable time from the date of the declaration under Section 6? Due to escalation in prices of land, more so in this area, during the preceding to decad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication or for passing of the award is concerned, certainly the Parliament intendment as contained in this provision cannot be completely lost sight of. On the contrary, it acts as a guide. It expresses the will of the Parliament. It has to be given due weight. When this acquisition proceedings were delayed endlessly and land owners were deprived of just compensation under law and consequently the constitutional right was violated, the Parliament amended the Land Acquisition Act prescribing the time limit. According to the Parliament, one year is the reasonable time for passing of a final declaration and two years is the time for passing of an award. If within those periods the final declaration is not issued, the award is not passed, the whole acquisition lapses. The Act is enacted for industrial development which has to be done expeditiously. Such an industrial development results in generation of employment and economic growth of the State. If the land is required for such public purpose a special enactment was enacted for speedy acquisition of land. Merely because the provisions contained in Section 6(1) and 11A is not incorporated in this Act or after the Parliament amended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) and Section 3(1) and Section 28(1) of the KIAD Act on 19.04.1997. After the issuance of the said notification admittedly, all the petitioners have sold the lands, which were notified for acquisition under different registered sale deeds on 07.08.1997 i.e., within 3 1/2 months from the date of preliminary notification. The first final notification under Section 28(4) of the Act came to be issued on 20.07.1999. In the said final notification these lands were not included. Therefore, they have no cause or occasion to challenge the said notification. After the said notification, probably, out of curiosity they approached the authority to find out whether their lands are intended to be acquired. An endorsement came to be issued on 04.07.2000 informing them that their lands have not been acquired under the final notification. It is thereafter on 27.04.2002, the second final notification came to be issued including the petitioners' lands. When their lands were included in this second final notification, they did not choose to challenge the said order. The reason is obvious. They had already sold the said property and they had lost interest in the said property. 37. In fact after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petitions they were not the owners of the property. The principle underlying acquisition being vitiated on account of delay is, once a preliminary notification is issued, the compensation payable being the market value, the said value is pegged to the date of preliminary notification. Any delay in issuance of final notification and passing of the award determining compensation would obviously affect the interest of the land owners because they are paid compensation on the basis of the market value prevailing on the date of the preliminary notification. In the instant case, the question of paying the compensation would not arise since within three months from the date of preliminary notification, the petitioners have sold the property. Therefore, it is clear that the petitioners did not intend to retain the property and hence have sold the property within three months from the date of preliminary notification. They got the market price and enjoyed the said value of the property. Now they cannot be heard to say that the final notification, which is issued 4 years 8 months after the preliminary notification, vitiates the acquisition proceedings, on the ground that they are dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
