TMI Blog2021 (3) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... ant/petitioner had approached this Court in WP. Nos. 43358-59/2003. The said writ petition was partly allowed by the learned Single Judge of this Court by order dated 18.12.2003, inasmuch as 40% of the acquired lands i.e. the acquisition of the lands for township, construction of conventional centre are concerned was quashed. Insofar as 60% of the lands sought to be acquired for the formation of peripheral road, link road, service road and ramps are concerned were upheld. Seeking a declaration that the acquisition of the lands in question had lapsed under Section 24(2) of the 2013 Act - HELD THAT:- Section 24 of the 2013 Act creates a new right in the land owners. For the exercise of said right, certain conditions have to exist, the most significant of them being, the initiation of proceedings for acquisition under the provisions of the LA Act, 1894. Therefore, the said words must be given a natural interpretation and not an expansive or wide interpretation, so as to extend the right under Section 24 even in respect of and owners whose lands are subjected to acquisition under any State enactment, such as the KIAD Act or BDA Act or Karnataka Urban Development Act, 1987 (KUDA Act). I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t applicable to an acquisition proceeding initiated under the provisions of the KIAD Act. Hence, there are no merit in the appeal. Appeal dismissed. - B.V. Nagarathna And Neranahalli Srinivasan Sanjay Gowda, JJ. For the Appellant : B.V. Raman, Advocate. For the Respondents : Vani H., AGA, P.V. Chandrashekar, Advocate, R.V.S. Naik, Senior Counsel for T. Suryanarayana and Nitin Prasad, Advocates. JUDGMENT B.V. NAGARATHNA, J. 1. The legality and correctness of the order dated 25.04.2018 passed in WP Nos. 19348-349/2016 and 23686-696/2016 by the learned Single Judge is called in question in this intra-Court appeal. 2. Briefly stated, the facts are, appellant/petitioner had questioned the preliminary notifications bearing No. CI 196 SPQ 98 dated 19.12.1998, 29.01.2003 issued under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 (hereinafter referred to as the 'KIAD Act' for the sake of convenience) at Annexures-A B respectively and the declaration and final notifications bearing No. CI 196 SPQ 98 dated 08.04.2003 and 05.07.2003 issued under Section 28(4) of the KIAD Act at Annexures-C D respectively to the writ petition. The petitioner sought for a declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Manufacturers Organisation), concerning the very same project, dismissed the writ petition. Being aggrieved, the appellant/petitioner has preferred this appeal. 7. We have heard Sri. B.V. Raman, learned counsel for the appellant, Sri. P.V. Chandrashekar, learned counsel for respondent Nos. 2 3, and Sri. R.V.S. Naik, learned Senior counsel for Sri. T. Suryanarayana and Sri. Nitin Prasad, learned counsel for caveator/respondent No. 4. and Smt. Vani H., learned Additional Government Advocate for respondent No. 1 and perused the material on record. 8. Learned counsel for the appellant at the outset submitted, the impugned order was passed without hearing the learned counsel for the appellant as he was not present in Court on the day the case was disposed of. He further submitted that there are certain facts and contentions which have been adverted to in the writ petitions and those were not considered by the learned Single Judge. He submitted that the acquisition of the lands for the benefit of respondent No. 4 is not in accordance with law and that the acquisition may be quashed insofar as the aforesaid extent of lands are concerned. The learned counsel for the appellant further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the submissions of the learned Senior Counsel appearing for respondent No. 4 and learned counsel appearing for respondent Nos. 2 3. 12. We have considered the submissions made at the Bar in light of the impugned order and the judgment of the Hon'ble Supreme Court in the case of Anasuya Bai and also the fact that the appellant herein had earlier approached this Court seeking quashing of the very same acquisition proceedings. For a better understanding of the matter, it would be useful to extract the prayers sought by the appellant in the writ petition as under: Wherefore, the Petitioners pray for: i) Issue writ of certiorari quashing the preliminary notifications bearing No. CI 196 SPQ 98 dated: 19.12.1998, 29.01.2003 issued u/s. 28(1) of the KIAD Act 1966, produced and marked as ANNEXURE-A and B respectively in so far as the Petitioners lands are concerned. ii) Issue a Writ in the nature of Certiorari there by quashing the declaration notifications issued u/s. 28(4) of the KIAD Act 1966 bearing No. CI 196 SPQ 98 dated 08.04.2003, 05.07.2003 produced and marked as ANNEXURE-C and D respectively in so far as the Petitioner's lands are concerned. iii) Declare that the Proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n). Paragraph 79 of the said judgment reads as under: 79. The learned Single Judge erred in assuming that the lands acquired from places away from the main alignment of the road were not a part of the Project and that is the reason he was persuaded to hold that only 60% of the land acquisition was justified because it pertained to the land acquired for the main alignment of the highway. This, in the view of the Division Bench, and in our view, was entirely erroneous. The Division Bench was right in taking the view that the Project was an integrated project intended for public purpose and, irrespective of where the land was situated, so long as it arose from the terms of the FWA, there was no question of characterising it as unconnected with a public purpose. We are, therefore, in agreement with the finding of the High Court on this issue. 17. Therefore, the appellant herein could not have assailed the acquisition for the second time by filing the writ petition. Hence, the writ petition was liable to be dismissed on the ground of res judicata. Even if the learned counsel for the appellant now contends that the appellant had certain other documents to be produced, we think that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantially issue in such suit. According to the Apex Court an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. According to the Apex Court, the principle underlying Explanation IV is that there the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. It was further held that Section 11 of the CPC applies to the public interest litigation as well but it must be proved that the previous litigation was the public interest litigation, not by way of a private grievance, which was bonafide which is common and is agitated in common with others. (e) In fact, in Manipur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing the writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. Where there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, the petition may be dismissed at the threshold without considering the merits of the claim. The same rule was re-iterated in the case of G. Jayashree and others vs. Bhagwandas S. Patel and others, [2009 (3) SCC 141], (G. Jayashree) and also in Dalip Singh vs. State of Uttar Pradesh and others, [(2010) 2 SCC 114] (Dalip Singh). 21. That apart, it is also noted that the appellant has sought to raise a new ground under Section 24(2) of the 2013 Act by contending that even if the earlier round of litigation did not lead any fruitful result and although the acquisition was upheld, nevertheless on the basis of Section 24(2) of the 2013 Act, the acquisition of land in question must be deemed to have lapsed. In that regard, it is not necessary for us to dwell into the matter afresh, inasmuch as the Hon'ble Supreme Court has already decided the issue in the case of Anasuya Bai. That judgment has been fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the acquisition would lapse, on the existence of conditions as stated in sub-Section (2) of Section 24. Same is the case with regard to Clauses (a) and (b) of sub-Section (1) of Section 24. 24. The said Section has been interpreted by the Hon'ble Supreme Court in the case of Delhi Development Authority vs. Sukhbir Singh and others, [ (2016) 16 SCC 258] (Sukhbir Singh). In said case the acquisition was under the provisions of LA Act, 1894 and not under any other Central or State enactment. Further, it has been held as under: 11. Section 24(1) begins with a non-obstante clause and covers situations where either no award has been made under the Land Acquisition Act, in which case the more beneficial provisions of the 2013 Act relating to determination of compensation shall apply, or where an award has been made under Section 11, land acquisition proceedings shall continue under the provisions of the Land Acquisition Act as if the said Act had not been repealed. 12. To Section 24(1)(b) an important exception is carved out by Section 24(2). The necessary ingredients of Section 24(2) are as follows: (a) Section 24(2) begins with a non-obstante clause keeping sub-section (1) out of ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-payment of compensation and non-passing of the award within a period of five years from the date of declaration and with effect from non-payment of compensation to the landowners. 14. The new Act does not say whether the Act is applicable to the land acquired under the provisions of the Karnataka Land Acquisition Act, 1894. What Section 24 says that if the award is not passed under Section 11 of the Act and the compensation is not paid within 5 years or more prior to new Act, if the physical possession of the land is taken or not especially the compensation is not paid or deposited in Court such proceedings deem to have been lapsed. In the instant case, it is not the case of the respondent that award is not required to be passed under the provisions of the LA Act. When the award is required to be passed under the LA Act, the respondents cannot contend that the provisions of the new Act cannot be made applicable on account of nonpayment of compensation within a period of five years.' 29. This approach of the High Court, we find, to be totally erroneous. In the first instance, the matter is not properly appreciated by ignoring the important aspects mentioned in para 28 above. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11-A are not attracted and the acquisition proceedings will not lapse. (Pratap case, SCC p. 8, para 12). 32. In Munithimmaiah v. State of Karnataka, this Court held that the provisions of Sections 6 and 11-A of the said Act do not apply to the provisions of the Bangalore Development Authority Act, 1976 (the BDA Act). In SCC para 15 at p. 335 of the Report this Court made a distinction between the purposes of the two enactments and held that all the provisions of the said Act do not apply to the BDA Act. Subsequently, the Constitution Bench of this Court in Offshore Holdings (P) Ltd. v. Bangalore Development Authority, held that Section 11-A of the said Act does not apply to acquisition under the BDA Act. 33. The same principle is attracted to the present case also. Here also on a comparison between the provisions of the said Act and the KIAD Act, we find that those two Acts were enacted to achieve substantially different purposes. Insofar as the KIAD Act is concerned, from its Statement of Objects and Reasons, it is clear that the same was enacted to achieve the following purposes: 'It is considered necessary to make provision for the orderly establishment and development of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State of Karnataka [(2002) 4 SCC 326] (Munithimmaiah), Offshore Holdings (P) Ltd. v. Bangalore Development Authority [(2011) 3 SCC 139] (Offshore Holdings), (arising under the Bangalore Development Authority Act, 1976 ('BDA Act' for short)) and Girnar Traders (3) v. State of Maharashtra [(2011) 3 SCC 1] (Girnar Traders (3)), to hold that the provisions of the LA Act, 1894 and the BDA Act, 1976 being distinct, Section 24(2) of 2013 Act, is not applicable to an acquisition under the BDA Act and also in so far as acquisition under the KIAD Act is concerned. Therefore, the aforesaid dictum is conclusive and is squarely applicable to the case on hand. Section 24 of 2013 Act does not apply to acquisition initiated under provisions of KIAD Act. Therefore, point No. 3 could be accordingly answered. Thus, from the aforesaid dicta of the Hon'ble Supreme Court, the applicability of Section 24 of 2013 Act to acquisition of land under KIAD Act is excluded. 27. Moreover, the scheme and object of KIAD Act is different from LA Act, 1894. The KIAD Act has been enacted by Karnataka Legislature to make special provisions for securing the establishment of industrial areas in the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification issued under subsection (1), a declaration shall, by notification in the official Gazette, be made to that effect. (5) On the publication in the official Gazette of the declaration under sub-section (4), the land shall vest absolutely in the State Government free from all encumbrances. (6) Where any land is vested in the State Government under sub-section (5), the State Government may, by notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorised by it in this behalf within thirty days of the service of the notice. (7) If any person refuses or fails to comply with an order made under sub-section (5), the State Government or any officer authorised by the State Government in this behalf may take possession of the land and may for that purpose use such force as may be necessary. (8) Where the land has been acquired for the Board, the State Government, after it has taken possession of the land, may transfer the land to the Board for the purpose for which the land has been acquired. 28. Section 29 deals with payment of compensation, which is extracted as under: 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration, the appropriate government could acquire the land in accordance with the Act. In fact, Part II of the LA Act, 1894, dealt with acquisition which contemplated procedure for the passing of an award; notifying persons interested and taking possession of the land. Part II of the said Act, dealt with the provisions dealing with enhancement of compensation by the reference Court by the land owner seeking a reference for a higher compensation. Part IV dealt with apportionment of compensation, while Part V of the said Act concerned with payment. Acquisition of land for companies was dealt with in Part VII of the said Act and a special procedure was prescribed. Part VIII pertained to miscellaneous provisions. 32. Revisiting the words of Section 24 of the 2013 Act, what is significant to note is the fact that the said Section expressly refers to land acquisition proceedings initiated under the LA Act, 1894. The said Section-does not incorporate the words or proceedings initiated under any other enactment . Therefore, the expression land acquisition proceedings initiated under the LA Act, 1894 are significant and must be given its natural and plain meaning and the said expression can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act repeals only LA Act, 1894, and not any other Central or State enactment dealing with acquisition. Therefore, what are sought to be saved under Section 24 of the 2013 Act, are those acquisitions initiated only under LA Act, 1894 and not any acquisition initiated under any other Central or State enactment. Therefore, the words acquisition proceedings initiated under any other enactment cannot be added or supplemented by the Court after the expression in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 under both sub-sections 1 and 2 of Section 24 of 2013 Act. Further, the short title of Section 24 of 2013 Act reads as Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases. This is another indication that Section 24 applies only to those acquisition initiated under the provisions of LA Act, 1894. 35. Further, Section 24 creates a new right in favour of land owners in as much as they are entitled to relief under certain circumstances as stipulated in Section 24 of the Act. One such relief is under subsection (2) of Section 24 of the Act, dealing with lapse of acquisition by a fiction. It is a deeming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA Act, 1894. Section 114 reads as under: 114. Repeal and Saving: (1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed. (2) Save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals. 40. Therefore, what is saved under Section 114 of 2013 Act are only those acts and actions initiated under the provisions of the LA Act, 1894, which ought to be saved having regard to the provisions of Section 6 of the General Clauses Act, 1897. Section 6 of the General Clauses Act, 1897, reads as under: 6. Effect of repeal.-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not.- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired accrued or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Act, the acquisition proceedings initiated under the said Act cannot be considered on par, so as to hold that land acquisition proceedings initiated under the provisions of the KIAD Act are land acquisition proceedings initiated under the provisions of the LA Act, 1894 . 42. As already observed, Section 24 of the 2013 Act creates a new right in the land owners. For the exercise of said right, certain conditions have to exist, the most significant of them being, the initiation of proceedings for acquisition under the provisions of the LA Act, 1894. Therefore, the said words must be given a natural interpretation and not an expansive or wide interpretation, so as to extend the right under Section 24 even in respect of and owners whose lands are subjected to acquisition under any State enactment, such as the KIAD Act or BDA Act or Karnataka Urban Development Act, 1987 (KUDA Act). In fact, the Parliament itself has been conscious of the fact that 2013 Act repeals and substitutes only LA Act, 1894, and not any other Central enactment or for that matter any other State enactment dealing with acquisition of lands. This is evident from Section 105 of the 2013 Act, which reads as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (18 of 1885). 6. The Metro Railways (Construction of Works) Act, 1978 (33 of 1978). 7. The National Highways Act, 1956 (48 of 1956). 8. The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962). 9. The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952). 10. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948). 11. The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957). 12. The Electricity Act, 2003 (36 of 2003). 13. The Railways Act, 1989 (24 of 1989). 44. Therefore, Parliament itself has listed the Central enactments to which 2013 Act does not apply. This is because Parliament was conscious of the fact that LA Act, 1894 was substituted by the 2013 Act, which is distinct and different from the other Central enactments enumerated in the Fourth Schedule to the 2013 Act or State enactments. 45. In the circumstances, it is concluded and held that Section 24 does not take within its scope nor does it apply to, acquisitions which have been initiated under the provisions of any other enactment particularly, State enactment, such as, KIAD Act, BDA Act or KUDA Act. The said Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in the case of M. Nagabhushana and Anasuya Bai, which are directly under the provisions of KIAD Act, the judgment in Ram Chand's case, which is concerning a situation prior to the insertion of Section 11-A to 1894 Act would also not apply. Consequently, the judgment of this Court in H.N. Shivanna cannot be held to be good law so as to have a binding effect. As already noted, H.N. Shivanna has ignored the dictum of the Hon'ble Supreme Court in M. Nagabhushana. Further, Anasuya Bai has also relied upon, inter alia, M. Nagabhushana to set aside the judgment of the Division Bench of this Court. Further, this Court in Ashwathanarayana, did not refer to the judgments of the Hon'ble Supreme Court in Offshore Holdings (P) Limited and Girnar (3), but, reliance was placed on H.N. Shivanna to grant relief to the petitioners therein. But in view of the judgment of the Hon'ble Supreme Court in Bangalore Development Authority, which arose from the judgment of this Court in Ashwathanarayana, it could be observed that H.N. Shivanna is no longer good law. Therefore, the petitioners herein cannot be granted relief on the basis of the dictum of the Division Bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e years or more prior to the commencement of the Act of 2013, the physical possession of the land has not been taken, or the compensation has not been paid, the proceedings shall be deemed to have lapsed, and such proceedings cannot continue as per the provisions of Section 24(1)(b) of the Act of 2013. x x x 151. The Section 24(2) of the Act of 2013 is to be interpreted consistent with the legislative intent, particularly when it has provided for the lapse of the proceedings. It has to be interpreted in the light of provisions made in Sections 24 and 114 of the Act of 2013 and Section 6 of the General Clauses Act, what it protects and to what extent it takes away the rights of the parties. Undoubtedly, Section 24(2) has retroactive operation with respect to the acquisitions initiated under the Act of 1894 and which are not completed by taking possession nor compensation has been paid in spite of lapse of 5 years and proceedings are kept pending due to lethargy of the officials. The drastic consequences follow by the provisions contained in Section 24(2) in such cases. x x x 172. A reading of section 24(2) shows that in case possession has been taken even if the compensation has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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