TMI Blog2017 (4) TMI 1639X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thereunder. 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inconsistent with the provisions of the 2013 Act in terms of Article 254(2) of the Constitution of India and is hence no longer valid as an independent enactment. Whether Section 24 of the 2013 Act is applicable to an acquisition initiated under the provisions of the KIAD Act? - HELD THAT:- Section 24(2) of the 2013 Act is applicable to an acquisition initiated under the provisions of the KIAD Act. Whether there could be a deemed divesting of the acquired land in terms of Section 24(2) of the 2013 Act, which provides for a lapsing of the acquisition proceedings if the conditions specified therein are satisfied, notwithstanding the deemed vesting of the land in terms of Section 28(5) of the KIAD Act? - HELD THAT:- 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 ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Represented by its Chief Secretary, Vidhana Soudha; The Principal Secretary, Commerce And Industrial Development Board, Bangalore Hon ble Mr. Justice Anand Byrareddy For the Petitioner : Shri V. Lakshminarayana, Senior Advocate for Shri V. Javahar Babu, Advocate). For the respondents : Shri Aditya Sondhi, AAG-III for Smt. R. Anitha, Government Pleader, for Respondent Nos.1 and 2; Shri Ashok Haranahalli, Senior Advocate along with Shri K. Shashikiran Shetty, Senior Advocate for Shri B.B. Patil, Advocate for R.3 And R.4) ORDER ANAND BYRAREDDY, J. 1. These petitions are heard and decided by this common order only on questions of law that arise for consideration. On facts, there are dissimilarities as to the circumstances pertaining, in several cases. However, the legal issues that arise, overlap. The findings arrived at on the legal issues would have to be applied to each given case, which would require this bench or such other bench to afford a further hearing to each individual petitioner, on the facts of each case, vis-a-vis the opinion expressed on the legal issues. Hence, it is made clear that this bench is not expressing any opinion as to the merits, on the facts of each case, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition to incorporate pleadings to claim the benefit of Section 24(2) of the 2013 Act. (Incorrectly mentioned as, Section 25(2) ) W.P. 18890/2013: 7. The petitioner herein claims to be the owner of lands bearing survey Nos. 7, 41, 73 and 106 of Jakkasandra village, measuring 3 acres 7 guntas, 1 acre 1 gunta, 2 acres 2 guntas and 1 acre, respectively. His two children are said to be physically handicapped. 8. The lands are said to be his only source of income. They are said to be fertile lands. The land in Survey No. 106 is said to be wet land. He is said to be a sericulturist too. 9. The petitioner is aggrieved by the very acquisition proceedings referred to above. W.P. 20367-20373 AND 20375-20380 AND 20382 AND 20384-88 OF 2013 10. There are 22 petitioners who have filed this common petition. They are all residents of Jakkasandra. Their land holdings vary from very small lands to large extents. 11. The petitioners herein have raised various grounds, questioning the wisdom and the bona fides of the State Government in proceeding with the acquisition proceedings. The petitioners have claimed the benefit of the 2013 Act, by virtue of which, it is claimed that the acquisition proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acre 16 guntas. 19. They are aggrieved by acquisition proceedings under the provisions of the KIAD Act, initiated vide preliminary notification dated 14.6.2013 and a final notification dated 12.2.2015. The petitioners have raised several grounds of challenge including the benefit of the 2013 Act, in questioning the acquisition proceedings. W.P. 859/2016: 20. The petitioner is said to be the owner of land in survey No. 164/2 of Madhugiri Village, Sira Taluk, Tumkur District, measuring about 25 guntas. The said land is said to have been acquired under the provisions of the KIAD Act, in terms of a final notification dated 19.8.2010. It transpires that the petitioner was notified as regards a meeting for fixing the market value. But it is claimed that even after a lapse of 3 years no progress was made in that direction. The petitioner is said to have approached this court by way of a writ petition in WP 11553/2013. The same was said to have been summarily disposed of with a direction to the respondents to consider the case of the petitioner. 21. It is stated that the respondents had failed to consider the case of the petitioner and had hence initiated proceedings for contempt of court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... managar taluk, measuring about 4 acres. The same was said to have been notified for acquisition vide notification dated 15.7.1997, under Section 28(4) of the KIAD Act. As no further steps were taken to determine and pay the compensation due to the petitioner, he is said to have approached this court by way of a writ petition in WP 829/2000, seeking appropriate directions, this court is said to have allowed the writ petition directing the respondents to take steps to deposit the compensation in a civil court, while noticing that there was a civil dispute as regards apportionment. It transpires there was no such deposit made by the respondents, even as on the date of the petition. 31. Hence the present petition, claiming the benefit of the provisions of the 2013 Act. W.P. 2907/2015 WP 46915/2016: 32. The petitioner claims to be the absolute owner of land bearing survey No. 70/1 and 70/3 measuring 7 guntas and 4 guntas of Medihalli, Bangalore East Taluk. It is claimed that the lands have long lost the character of agricultural lands as the surrounding area is completely built-up. The petitioner has obtained sanction of conversion of the land for residential purposes from the competent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with a notice to receive the compensation determined in respect of the land in question. The petitioner claims that he has continued in actual physical possession of the land till the date of the petition, thereby indicating that the respondents do not require the land for any development. 42. The petitioner hence claims the benefit of the provisions of the 2013 Act. W.P. 48824-840/2015: 43. These petitions are filed in the following background: 44. The first petitioner, Puttalakshmamma claims to be the owner of the lands in survey No. 66/2 measuring 3 acres 9 guntas, survey No. 67/1 measuring 3 acres 25 guntas and survey No. 67/2, measuring 5 acres 30 guntas situated in Nelahal village of Tumkur Taluk. 45. The second petitioner H. Prabanna claims to be the owner of lands in survey No. 60/3 and 49/2, respectively, measuring 3 acres 26 guntas and 1 acre 38 guntas, situated in Nelahal village of Tumkur Taluk and District. 46. The third petitioner, Kirshnappa claims to be the owner of land measuring 3 acres 20 guntas in survey No. 48 of Nelahal village. A copy of the Record of Right showing the name of the petitioner as the owner has been produced and marked as Annexure-D. 47. Seebe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 guntas in survey No. 26/2A situated in Nelahal village of Tumkur Taluk and District. 58. Vasant A. Gowda, petitioner No. 15 claims to be the owner in possession of 3 acres 30 guntas of land in survey No. 48 of Nelahal village, Tumkur Tlauk and District. 59. Similarly, Siddaramaiah, petitioner No. 16 claims to be the owner of the land measuring 8 acres 4 guntas in Sy. No. 64/1 of Nelahal village, Tumkur Taluk and District. 60. Thimmaiah, petitioner No. 17 claims to be the owner in possession of 3 acres 12 guntas of land in survey No. 49 of Kempadalahalli Village, Tumkur Taluk and District. 61. The above said lands, along with other lands are said to have been notified for acquisition under the provisions of the KIAD Act vide preliminary notifications dated 10.3.2015 and 23.4.2015, the petitioners are said to have filed objections opposing the acquisition proceedings and that the matter is at the stage of providing an opportunity of hearing to the petitioners. There is an interim order of stay of further proceedings granted by this court. 62. The petitioners have challenged the constitutional validity of Section 3, Chapter II and provisions of Chapter VII of the KIAD Act. 3. SUBM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and experts in the field of manufacturing and business environment . 68. The policy statement provides for the industries which will be given special attention and deals with various aspects. As far as the land is concerned, the policy statement vide Para 1.19 provides thus: Land has emerged as a major constraint for industrial growth in recent years. The Government will take measures to make industrial land available, which is critical for sustained industrial growth through creation of land banks by States; digitalization of land and resources and programs for utilization of lands locked under non-productive uses, including defunct or sick industries. 69. Attention is drawn to the following guidelines prescribed under the NMP: Following guiding principles will be applied by the State Government for the purpose: i. Preferably in waste lands; infertile and dry lands not suitable for cultivation. ii. Use of agricultural land to the minimum; iii. All acquisition proceedings to specify a viable resettlement and rehabilitation plan; iv. Reasonable access to basic resources like water; v. It should not be within any ecologically sensitive area or closer than the minimum distance specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving not invoked the provisions of the appropriate Act, namely, 2013 Act, which has come into force with effect from 01.01.2014, has erroneously invoked the KIAD Act, which does not contemplate any environmental impact study. It is thus evident that the State Government can recklessly identify any area for industrial development and can declare any area as an industrial area and extend the provisions of Chapter-VII to acquire those lands. Thus, it is contended, all the three Notifications issued by the State Government pertaining to the petitioners concerned are arbitrary and illegal and directly in conflict with the NMP and its own Government Order. 76. It is further contended that under Section 3 of the State Act, the State Government may declare any area in the State to be an Industrial Area for the purposes of the Act. The Notifications issued under Section 3 shall define the limits of the Area. 77. How an Industrial Area is Identified by the State Government, albeit through its Agency, the KIADB, is not reflected in the Notifications issued under Section 3(1) or under Section 1(3) of the Act. As to what are the criteria adopted to identify an area so as to declare it as an In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds for Industrial areas. 81. The Land Acquisition Act, 1894 being a general law in nature, many State Governments, had enacted special laws for establishment and development of Industries in the name of Industrial Area or Industrial Corridor or Industrial facilities. The State Government had enacted the Karnataka Industrial Areas Development Act, 1966 (Hereinafter referred to as the 'KIAD Act', for brevity). The said Act has received the assent of the President of India. In fact, Section 47 of the KIAD Act deals with Effect of provisions inconsistent with other laws. It provides that the provisions of the Act shall have effect notwithstanding anything inconsistent contained therein with any other law. The 2013 Act specifically provides for acquisition of lands for Industrial Areas. The provisions of the Central Act totally takes away the power of State Governments, hither to exercised under the State Acts for acquisition of lands for Industrial Areas. 82. Section 3(e) defines Appropriate Government as, in relation to acquisition of land situated within the territory of a State, the State Government. 83. Section 3(za) defines Public Purpose as the activities specified under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary that the State Government make a Notification under Section 3 declaring any area to be an industrial area for the purpose of the Act and it is mandatory that such notification shall define the limits of the area to which the Industrial area relates. 91. In view of the specific provision of Section 103 of the 2013 Act, which clearly states that the provisions of the Central Act shall be in addition to and not in derogation of, any other law for the time being in force, the State Government which is the appropriate Government for carrying out the provisions of this Act, cannot exclusively exercise power under the State Act, de hors the provisions of the Central Act. It is mandatory for the State Government to follow the provisions of the Central Act, in addition to the provisions of the State Act, if necessary, but as far as the acquisition of lands for establishment of industrial corridors or industrial areas, the Central Act is a self-contained code by itself and ignoring the Central Act, the State Government cannot resort to exercise power under the State Act. 92. The Central Government has made two sets of Rules, namely, The Right to Fair Compensation and Transparency i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power. It is an independent power provided for in a specific entry. Therefore, both the Union and the State would have power of acquisition and requisition of property. This portion is unquestionably established by the majority decision in R.C. Cooper vs. Union of India (11 Judges Bench) - (AIR 1970 SC 564), where Shah J, speaking for the majority of 10 Judges held as under: Power to legislate for acquisition of property is exercisable only under Entry 42 of List III, and not as an incident of the power to legislate in respect of a specific head of legislation in any of three lists. 97. After discussing the case law, it has been declared thus: 19. It thus clearly transpires that the observation in 'Cooper case' extracted above that power to legislate for acquisition of property is exercisable only under Entry 42 of List III and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three lists, is borne out from 'Rajahmundry Electric Supply Corporation Case' and 'Maharajadhiraja Sir Kameshwar Singh Case'. 98. The law laid down by the 11 Judges Bench in R.C. Cooper vs. Union of India, quoted by the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and as such, liable to be declared as unconstitutional. 103. The KIAD Act, can be divided into 2 parts; one relates to the Industrial areas referred to in Chapter II and establishment and constitution of the Board under Chapter III to VI. 104. The other part of the Act relates to acquisition of land in Chapter VII. However, the provisions in Chapter VII of the Act cannot be considered as a self contained code inasmuch as no guidelines are provided for acquisition of lands. 105. That apart, the entire Act except Chapter VII comes into force at once that is with effect from 26.05.1966. The peculiarity of this Act is that Chapter VII relating to acquisition of lands comes into force in such area and from such date as the State Government may, from time to time, specify by a notification. Thus, Chapter VII does not extend to the whole of State of Karnataka, but it only extends to different areas that may be notified by the State Government. There are no guidelines in the Act which provide as to the manner and method of identifying the areas which may be notified as Industrial areas under section 3 of the Act. Thus any land anywhere can be acquired by declaring such area as an Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 139 (Paragraphs 107 to 118). 111. The contention that Section 30 of the State Act providing for application of the Central Act No. I of 1894, is a legislation by incorporation has no bearing on the issue involved in examining whether the State Act is repugnant to the Central Act by virtue of proviso to Article 254 of the Constitution. The Central Legislation is a self contained code and the State Government which is the Appropriate Government under the Central Act is empowered to make rules in respect of the acquisition of land to achieve the object of the Act and one of the objects of the Act is to acquire lands for industries or Industrial Corridors, which is also the object under the State Act. 4. SUBMISSIONS BY SHRI K.G. RAGHAVAN, SENIOR ADVOCATE 112. Shri K.G. Raghavan, learned Senior Advocate, appearing for the learned counsel for the petitioners Shri Rajeshwar P.N., in WP 58807-809/2015, contends that the principal question which arises for consideration is whether Section 24 of the 2013 Act is applicable to an acquisition initiated and completed under the provisions of Section 28 of the KIAD Act, if the conditions specified in Section 24(2) of the 2013 Act are satisfied. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that Section 24(2) of the 2013 Act specifically refers to the acquisition initiated under the Land Acquisition Act, 1894 and therefore is inapplicable to the acquisition initiated under Section 28(1) of the KIAD Act is erroneous. Section 24 of the 2013 Act should not be read in isolation, but should be read in conjunction with Section 30 of the KIAD Act. Section 103 of the 2013 Act advances the contention of the petitioners to the effect that the provisions of the 2013 Act have to be read in conjunction with the provisions of the KIAD Act. 123. Furthermore, by virtue of Section 30 of the KIAD Act, a fiction of acquisition under the 1894 Act is created and that fiction is carried forward by applying the provisions of the Land Acquisition Act, 1894 in respect of the aforesaid four subjects to acquisition under the KIAD Act, even though nominally and formatively the acquisition is under Section 28 of the KIAD Act. This is the purport of the expression Mutatis Mutandis used in Section 30 of the KIAD Act, meaning thereby that all the provisions of the 1894 Act are applicable in respect of the aforesaid four subjects, but with modification in relation to minor details. The minor detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustrial Parks, SEZ, Tourism facilities and Agricultural markets, which is in pari materia under Section 2(7a) of the KIAD Act. Therefore, in a given situation there can be acquisition of land for the same purpose under the 2013 Act and acquisition of another piece of Land for similar purpose under the KIAD Act. It would be highly discriminatory and anomalous to hold that certain benefits accrue only in favour of the former and not to the latter. 131. The construction which advances a harmonious gel between various statutes within the Constitutional mandate has to be preferred by the Court. The Construction therefore, which harmoniously brings together Section 24 of the 2013 Act and Section 30 of the KIAD Act has to be preferred to a construction, which brings Section 24(2) of the 2013 Act in conflict with Section 30 of the KIAD Act. 132. The Judgment of the Supreme Court of India in the case of Offshore Holdings Private Limited vs. Bangalore Development Authority and others, (2011) 3 SCC 139 and Girnar Traders case do not address the question as raised and pronounced upon by this Court in Chikkatayamma's case. The position at present is not a mere exercise in the matter of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement of the judgment by the Supreme Court of India in Nagpur Improvement Trust case, in order to prevent the MRTP Act from the vice of discrimination. The judgment of the Bombay High Court is clearly distinguishable in as much as the KIAD Act is not an enactment for regulating the planning activity like the Karnataka Town and Country Planning Act, 1961. As the preamble of the KIAD Act suggests that the Act is meant to secure the establishment of Industrial areas in the State of Karnataka. It is needless to state that for the purpose of establishing the industrial areas, the enactment contemplates a substantial second part, namely, the power to acquire under Chapter VII. The objects under the KIAD Act is two-fold namely, (1) establishing an industrial area and (2) acquisition of land for the purpose of establishing industrial area. This is fortified by the requirement of declaration under Section 3(1) of the said Act. In structure and content, the KIAD Act is different from the structure and content of MRTP Act and therefore the judgment of the Bombay High Court is clearly inapplicable to the facts of the instant case. In the context of structure of the MRTP Act, the Bombay High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of referential legislation and not by doctrine of incorporation and therefore, in the absence of necessary amendments to the State Act, it would be void and inoperative. 141. Moreover, the State amendment seeking to incorporate Section 105-A in the Central Act, would exhibit the repugnancy between both the Acts. The impugned notification is repugnant, void and inoperative, because of the Central Act, in the light of Article 254(1) of the Constitution of India. 142. Regarding the Doctrine of Repugnancy, the Apex Court in State of Kerala v. Mar Appraem Kuri Co. Ltd., (2012) 7 SCC 106, has held as under:- 47. The question of repugnancy between parliamentary legislation and State legislation arises in two ways. First, where the legislations, though enacted with respect to matters in their allotted spheres, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, the parliamentary legislation will predominate, in the first by virtue of non-obstante clause in Article 246(1); in the second, by reason of Article 254(1). 143. Article 254(2) deals with a situation where, the State legislation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the same matter. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two legislations cover or relate to the same subject matter. The test for determining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e. the pith and substance of the two legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire filed covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring abut the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the Article. 153. It is therefore clear that the provision of Article 254(2) applies only where the two enactments in question substantially, and in pith and substanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htra and others, (1970) 3 SCC 323, while examining the constitutional validity of the Maharashtra Industrial Development Act, 1962, an enactment that is pari materia to the KIAD Act, held as follows: 15. It is in the background of the purposes of the Act and powers and functions of the Corporation that the real and true character of the legislation will be determined. That is the doctrine of finding out the pith and substance of an Act. In deciding the pith and substance of the legislation, the true test is not to find out whether the Act has encroached upon or invaded any forbidden field but what the pith and substance of the Act is. It is true intent of the Act which will determine the validity of the Act. Industries come within Entry 24 of the State List subject to the provision of Entry 7 and Entry 52 of the Union List of the Constitution. Entry 7 of the Union List relates to industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war. Entry 52 of the Union List relates to Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest. The establishment, growth and devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the degree of invasion into the domain assigned to the other Legislature but by its pith and substance. The true nature and character of the legislation is to be analysed to find whether the matter falls within the domain of the enacting Legislature. The incidental or ancillary encroachment on a forbidden field does not affect the competence of the legislature to make the impugned law. 160. A Constitution Bench of the Supreme Court in Rajiv Saran vs. State of Uttarakhand, (2011) 8 SCC 708, while examining whether the Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 was repugnant to the provisions of the Forest Act, 1927 held as follows:- 38. As discussed hereinbefore KUZALR Act is a law principally relatable to Entry 18 (land) of List II read with Entry 42 in List III of the Seventh Schedule of the Constitution and only incidentally trenches upon forest i.e., Entry 17A/List-III of the Seventh Schedule of the Constitution. 161. The Court then proceeded to expound on the principles governing repugnancy under Article 254 of the Constitution and held as follows:- xxx xxx While considering the issue of repugnancy what is required to be considered is the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise. 164. It is contended that the land acquisition, as contemplated in Chapter VII of the KIAD Act is only ancillary and incidental to the main object of the legislation (i.e., Industrial Development). A perusal of the KIAD Act in toto will indicate that the enactment largely deals with the establishment and growth of industries in Karnataka. Section 3 in Chapter II calls for the declaration of certain areas as industrial areas by the State Government. Section 5 in Chapter III of the Act, provides for the establishment and incorporation of the Karnataka Industrial Areas Development Board, for the purposes of securing the establishment of industrial areas in the State of Karnataka and generally for promoting the rapid and orderly establishment and development of industries and for providing industrial infrastructural facilities and amenities in industrial areas in the State. The powers and functions of the Board are provided in Chapter IV of the Act. The functions of the Board, as enumerated in Section 13 of the Act are all in relation to the development and growth of industries and industrial areas. The powers of the Board, as conferred by Section 14, are plenary in nature and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. As such, the KIAD Act is not repugnant to the 2013 Act. 168. Section 103 of the 2013 Act discloses the intention of the legislature to harmonize the Act with all other legislations. The Supreme Court in KSL and Industries Limited vs. Arihant Threads Limited and others, (2015) 1 SCC 166, while examining whether there was any conflict between the Sick Industrial Companies (Special Provisions) Act, 1985 and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, interpreted Section 34(2) of the latter Act pari materia with Section 103 of the Land Acquisition Act, 2013 as follows:- xxx xxx Though the RDDB Act is the later enactment, Sub-section (2) of Section 34 specifically provides that the provisions of the Act or the rules thereunder shall be in addition to, and not in derogation of, the other laws mentioned therein including SICA. The term not in derogation clearly expresses the intention of Parliament not to detract from or abrogate the provisions of SICA in any way. This, in effect must mean that Parliament intended the proceedings under SICA for reconstruction of a sick company to go an and for that purpose further intended that all other proceedings again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation divesting the pre-existing rights of its owner. 174. The Supreme Court in M. Nagabhushana v. State of Karnataka, (2011) 3 SCC 408, distinguished the KIAD Act from the 1894 Act in the following Manner. 29. Therefore, on a combined reading of the provisions of Sections 28(4) and 28(5) of the KIAD Act, it is clear that on the publication of the notification under Section 28(4) of the KIAD Act, i.e., from 30.03.2004, the land in question vested in the State free from all encumbrances by operation of Section 28(5) of the KIAD Act, whereas the land acquired under the said Act vests only under Section 16 thereof, which runs as under: 16. Power to take possession; When the collector has made an award under Section 11 he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. 30. On a comparison of the aforesaid provisions, namely, Section 28(4) and 28(5) of the KIAD Act with Section 16 of the said Act, it is clear that the land which is subject to acquisition proceedings under the said act gets vested with the Government only when the collector makes on award under Section 11, and the Government takes possession. Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 24(2) is a legal fiction. 21. The argument on behalf of the Corporation that the subject land acquisition proceedings have been concluded in all respects under the 1894 Act and that they are not affected at all in view of Section 114(2) of the 2013 Act, has no merit at all, and is noted to be rejected. Section 114(1) of the 2013 Act repeals 1894 Act. Sub-Section (2) of Section 114, however, makes Section 6 of the General Clauses Act, 1897 applicable with regard to the effect of repeal but is subject to the provisions in the 2013 Act. Under Section 24(2) land acquisition proceedings initiated under the 1894 Act, by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the commencement of 2013 Act and possession of the land is not taken or compensation has not been paid 184. It is settled position that deeming provisions have limited application. In State of Maharashtra v. Lajit Rajshit Shah Others, (2000) 2 SCC 699, the Supreme Court held as follows- 6........ It is well known principle of construction that in interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mean 'cause, process or action to begin'. The proceedings for acquisition under the Land Acquisition Act, 1894 commence or begin with the issuance of the Section 4 notification . 187. It is contended that the provision of lapse under Section 24(2) will not apply to acquisitions under the KIAD Act, in light of decisions of the Supreme Court in Nagabhushan's case, Pratap's case, Satendra Prasad's case, and in the Offshore Holdings case, that once the land vests in the Government, the provisions of lapsing will not apply. Furthermore, a bare reading of the same will indicate that the lapse of acquisition could occur where the award has been passed 5 years or more prior to the commencement of the Act, but physical possession of the land has not been taken, or compensation has not been paid. It is contended that the present set of facts do not fit in to either of the aforementioned situations. 188. In the light of the above, it is contended that Section 24 is wholly inapplicable to acquisition proceedings commenced under the KIAD Act. 7. SUBMISSIONS OF SHRI ASHOK HARNAHALLI AND SHRI SHASHIKIRAN SHETTY, SENIOR ADVOCATES 189. Shri Ashok Harnahalli, Senior Advocate alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that Entry-24 of List-II, that is the State List deals with Industries subject to the provisions of Entries 7 and 52 of the List-1. The KIAD Act is enacted in terms of the powers vested with the State. Legislature under Entry-24 of the State List, that List No. II. It is further contended that Entry-7 of the Union List provides for Industries declared by the Parliament by law to be necessary for the purpose of defense or for the prosecution of war and Entry 52 of the same lists provides for industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest. The issue of considering the entries and the concept of repugnancy is dealt within Shri Ramtanu Co-operative Housing Society Limited vs. State of Maharashtra, (1970) 3 SCC 23, at Para-15. 198. Reliance is placed on the following authorities:- i) M/s. Hoechst Pharmaceuticals Limited and others vs. State of Bihar and other, (1983) 4 SCC 45 at Paras 41, 51, 54 and 57. ii) Rajiv Sarin and another vs. State of Uttarakhand and others, AIR 2011 SC 3081 at paras 28, 30 and 35. iii) K.T. Plantation Private Limited and another vs. State of Karnataka, AIR 2011 SC 3430, at Paras 65, 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provides for reading of provisions of the 1894 Act into the KIAD Act. The said section is legislation by incorporation. Referential legislations fall under two categories, that is by reference and by incorporation. Where a statute by specific reference incorporates the provisions of another statute, as of the time of adoption and where a statute incorporates by general reference, the law concerning a particular subject as a genus. In terms of rules of statutory interpretation, it is provided that in case of the former the subsequent amendment made in the referred statute cannot automatically be read into the adopting statute. In case of the latter, it may be presumed that the legislative intent was to include all the subsequent amendments also. This principle of construction of reference statute has been neatly summed by Sutherland (Sutherland's Statutory Construction) thus: A statute which refers to the law or a subject generally adopts the law on the subject as of the time the law invoked. This will include all the amendments and modification of the law subsequent to the time the reference statute was enacted. 206. There is a distinction between a mere reference to or a cit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation and another vs. Harakchand Misirimal Solanki and others, (2014) 3 SCC 183, the entire Land Acquisition Act, 1894 is repealed. What is saved is only the rights envisaged under Section 24(2) of the Act. 211. The land acquisition proceedings would commence from the date of the preliminary notification being issued and conclusion of the land acquisition proceedings would be when the possession of the land is taken and compensation amount is paid. 212. It is contended that KIAD Act is a self contained Act in so far as the objects of industrialisation and development of industrial areas is concerned. In so far as the completion of the acquisition proceedings is concerned, since there is no provision under the KIAD Act to pay compensation, it has to fall back on the 1894 Act. This is so in so far as the enquiry proceedings, reference and award proceedings. 213. It is an admitted fact that though KIAD Act came into effect in 1966, the Land Acquisition Act, 1894 was also being followed by the State Government for the purpose of passing of an award and payment of compensation. Therefore, applicability of the provisions of the 1894 Act in relation to the award and reference is not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. Therefore, KIAD Act hitherto was supplemented by the Land Acquisition Act, 1894, based on this analogy, there is no reason not to apply the 2013 Act in place of the repealed statute in view of Section 8 of the General Clauses Act, 1897. 221. It is contended that the argument that acquisition proceedings being initiated under the 1894 Act being relevant would require a reference to the definition initiate or initiation or initiated . The word initiated refers to past proceedings. The word initiate refers to stages of proceedings. The word initiated includes the proceedings already initiated and refers to the stage of the proceedings as on the date when the Act No. 30/2013 came into effect. 222. When acquisition proceedings already initiated, but not concluded, as on 01.01.2014, denotes where physical possession is not taken or payment of compensation is not made despite an award. Therefore, the acquisition proceedings which are pending on 01.01.2014, Section 24(2) would be applicable to the award proceedings despite the acquisition initiated under the KIAD Act. 223. In view of Section 30 of the KIAD Act read with the word 'initiated' envisage award proceedings pending as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, Section 28(6), 28(7) and 28(8) of the KIAD Act would be rendered otiose. Therefore, such a contention cannot be accepted. 228. The payment of compensation ought to be proved by cogent material of the same having been offered or deposited for the benefit of the land owner and not to expect the land owner to have demanded it as laid down by the Supreme Court in Aligarh Development Authority vs. Megh Singh and others,. Therefore, there is no reason to presume that the compensation is deemed to have been paid. 229. It is contended that the acquisition proceedings can be challenged at various stages as laid down by the Apex Court in Anil Kumar Gupta vs. State of Bidar, (2012) 12 SCC 443, which are as follows. (i) When the preliminary notification was issued (ii) When notification under section 6 was issued (iii) When notice to pass an award was issued under section 9 and 10 (iv) After the award is passed under Section 11-A (v) When possession is taken or after the possession is taken (vi) When de-notification of other owners under the same notification similar treatment is not extended to an owner in terms of Article 14 of the Constitution of India, petition can be filed. 230. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of great significance and differs from the expression 'lapse', used under Section 11-A of the Act. Therefore, deemed lapsing is different from mere lapsing used by the legislature. 234. The Supreme Court has stated in Girnar Traders v/s. State of Maharashtra's case, (2011) 3 SCC 161 para 168 as follows: There are different kinds of vesting of land as mentioned in the two acts. The state Act has multidimensional purposes leading to primary object of planned development, while the Central Act has only one dimension i.e. acquisition of land for a specified public purpose. The Land, in terms of section 16 of the central Act shall vest in the state free of encumbrances only when the compensation is paid and possession of the land is taken under that Act. Section 48 of the Central Act empowers the state to withdraw from acquisition of any land of which possession has not been taken, despite the facts that award may have been pronounced in terms of section 11 of the central Act. But once there is complete vesting of land in the state it amounts to transfer of title from owner to the state by fiction of law. 235. A similar provision fell for consideration before the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 of the KIADB Act, the Act does not exclude applicability of the Land Acquisition Act, 1894. Reliance is placed on Aresh alias Ashok J Mehta (dead) by Lrs v/s. Special Tahasildar, Belgaum, Karnataka another, (2013) 4 SCC 349 paras 21 to 23. 243. Even under the 1894 Act, when a consent award is passed, if solatium and interest, are denied, the aggrieved can approach a Court of law. Reliance is placed on Krishnabai Others vs. Special Land Acquisition Officer (Claims), Upper Krishna Project another, ILR 2009 Kar 4417 para 6. 244. The acquisition of land for a private company is not permitted under the KIAD Act. Reliance is placed on Shri Ramtanu Co-operative Housing Society Limited and another vs. State of Maharashtra and others, 1970(3) SCC 323 para 21. 245. Acquisition of land for a private company is not for a public purpose. Acquisition can be permitted only under Chapter VI of the Land Acquisition Act, 1894. Reliance is placed on Devinder Singh and other vs. State of Punjab and others, AIR 2008 SC 261 para 41. It has been laid down as follows: In the case of acquisition of land for a private company, existence of a public purpose being not a requisite criteria other statutory r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty of the Court to ensure that the rights derived from the said amendment, shall not be deprived to a citizen having regard to the object of the statutes. Since the right to property is a constitutional right under Article 300A of the Constitution of India and also a human right. 252. Having heard the learned Counsel appearing on behalf of the petitioners and the learned counsel appearing for the respondents, the several legal issues that arise for consideration may be stated as follows: POINTS FOR CONSIDERATION: i) Whether Section 3(1) and Sections 28 to 31 of the KIAD Act are repugnant to the provisions of the 2013 Act. ii) Whether Section 24 of the 2013 Act is applicable to an acquisition initiated under the provisions of the KIAD Act. iii) Whether there could be a deemed divesting of the acquired land in terms of Section 24(2) of the 2013 Act, which provides for a lapsing of the acquisition proceedings if the conditions specified therein are satisfied, notwithstanding the deemed vesting of the land in terms of Section 28(5) of the KIAD Act. iv) Whether the decision of the Apex Court in Civil Appeal No. 353/2017, The Special Land Acquisition Officer, KIADB, Mysore v. Anas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence claimed that the KIADB had deposited the entire amount of compensation payable to the respondents, before the civil court, as on 8-3-2007. 258. At that stage, a writ petition is said to have been filed by the respondents, praying for quashing of the preliminary and final notifications on the following grounds: (a) that the Deputy Commissioner had not passed any award under Section 11 of the 1894 Act. (b) that the entire proceedings had lapsed as no award was passed within two years from the date of the final notification. (c) that in the absence of a consent award, the Deputy Commissioner ought to have passed a regular award, within two years from the date of final notification, in terms of Section 11 A of the 1894 Act. (d) that the respondent had never appeared before the Advisory Committee and had not participated in any meetings and hence had never acceded to the consent award. 259. The petition was said to have been allowed by a learned Single judge of this court, in part, holding that the respondents were not parties to the consent award. However, the appellants were directed to proceed with the fixing of the market value as on the date of final notification. The plea o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensation 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 case of the respondent that award is not required to be passed under the provisions of LA Act. When the award is required to be passed under LA Act, the respondents cannot contend that the provisions of New Act cannot be made applicable on account of non-payment of compensation within a period of five years. 262. The Apex Court in setting aside the judgment of the Division Bench of this court has referred to the decision in Nagabushna v. State of Karnataka, (2011) 3 SCC 408, wherein it was held that when once proceedings are initiated under the KIAD Act, Section 11A of the 1894 Act would not be applicable. This opinion was based on the following rationale expressed in Nagabushna: 22. Having said so, it also needs to be kept in mind that a large chunk of land was acquired by the appellants and a minuscule part thereof belonged to the respondents herein. Further, insofar as respondents are concerned, it even undertook the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h November, 2012 permitted the appellants to proceed on the basis of the Gazette notification dated 15th June, 2005 acquiring the land and determine the compensation by making an award in this behalf. By this process, appellants were allowed to proceed afresh to determine the compensation under Section 29(2) of the KIAD Act by reaching an agreement with the respondents, and failing which to refer the case to the Deputy Commissioner under Section 29(2) for determination of the amount of compensation. The learned Single Judge, by adopting this course of action, specifically rejected the contention of the respondents herein to quash the proceedings. 24. The Division Bench of the High Court by the impugned judgment, however, has quashed the acquisition proceedings itself holding that they have lapsed. For this purpose, the High Court has taken aid of Section 24 of the New LA Act in the following manner: 13. It is also noted that the acquisition proceedings including preliminary and final declaration have been passed under the provisions of the KIADB Act. But there is no provisions under the KIADB Act to pass an award and award has to be passed only under the provisions of the LA Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the first sentence in paragraph 29 of the said judgment. 265. Since the validity of the provisions of the KIAD Act are directly in challenge in some of these petitions, it cannot be said that these petitions are rendered infructuous by the said decision of the Apex Court. 10. DISCUSSION ON POINT No. i) Whether Section 3(1) and Sections 28 to 31 of the KIAD Act are repugnant to the provisions of the 2013 Act. 266. Insofar as the above question is concerned, the question of repugnancy can arise only when both the Legislatures are competent to legislate with respect to the same subject, viz., a subject included in the Concurrent List (List III). There is no provision for a Union law to be void by reason of its inconsistency with any State law. But a State law will be void by reason of its being inconsistent with a Union law, subject of course to clause (1) of Article 254 of the Constitution of India. 267. Article 254 is reproduced hereunder for ready reference. 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence created by a previous one, and imposes a different punishment or varies the procedure, earlier statute is repealed by the later statute . But in Karunanidhi's Case, the above principle was not applied. 269. In that case, the Court held: Although the ingredients of criminal misconduct as defined in S. 5(1)(d) of the Prevention of Corruption Act are substantially the same, in the State Act, than the one contained in the Central Acts. It is, therefore, manifest that the State Act does not contain any provision which is repugnant to the Central Act, but is a sort of complimentary Act which runs 'pari passu' the Central Acts mentioned above . In Vijay Kumar Sharma vs. State of Karnataka, AIR 1990 SC 2072, the Court summarized the law and laid down eleven ways in which repugnancy or inconsistency may arise. 1. There may be direct repugnancy between the two provisions; 2. Parliament may evince its intention to cover the whole field by laying down an exhaustive code in respect thereof displacing the state Act, provision or provisions in that Act. The Act of Parliament may be either earlier or subsequent to the State law. 3. The inconsistency may be demonstrated not necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Concurrent List (List III of the Seventh Schedule). Only when it finds the incompatibility or irreconcilability of both Acts or provisions or the two law cannot stand together, the Court is entitled to declare the State law to be void or repealed by implication; 11. The assent of the President of India Under Art. 254(2) given to a State law/provision/provisions therein accord only operational validity though repugnant to the Central law; but by subsequent law made by the Parliament or amendment/modification, variation or repeal by an Act of Parliament renders the State law void. The previous assent given by the President does not blow life into a void law. 270. It is no doubt laid down in Shri Ramtanu Co-operative Housing Society Ltd. Case, supra, while examining the constitutional validity of the Maharashtra Industrial Development Act, 1962, which is said to be pari materia to the KIAD Act, that the pith and substance of the Act was establishment, growth and organisation of industries, acquisition of land in that behalf and carrying out the purposes of the Act by setting up the Corporation as one of the limbs or agencies of the Government. The powers and functions of the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply a non-existent criteria for acquiring land under the provisions of the KIAD Act, to the detriment and in discrimination of the land owners suffering acquisition under the provisions of the KIAD Act. 273. To elaborate further on the above, the following statements from the Statement of Objects and Reasons to the 2013 Act may be noticed: xxxxxxx 3. There have been multiple amendments to the Land Acquisition Act, 1894 not only by the Central Government but by the State Governments as well. Further, there has been heightened public concern on land acquisition, especially multi-cropped irrigated land and there is no central law to adequately deal with the issues of rehabilitation and resettlement of displaced persons. As land acquisition and rehabilitation and resettlement need to be seen as two sides of the same coin, a single integrated law to deal with the issues of land acquisition and rehabilitation and resettlement has become necessary. Hence the proposed legislation proposes to address concerns of farmers and those whose livelihoods are dependent on the land being acquired, while at the same time facilitating land acquisition for industrialization, infrastructure and urbaniza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefits of 2.5 acres of land or extent of land lost to each affected family; one time financial assistance of Rs. 50,000; twenty-five per cent additional rehabilitation and resettlement benefits for the families settled outside the district; free land for community and social gathering and continuation of reservation in the resettlement area, etc. 274. The preamble to the Act is relevant: An Act to ensure, in consultation with institutions of local self government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanization with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Social Impact Assessment Report is further appraised by an expert group. Finally, the State Government makes a further appraisal of the Social Impact Assessment report. There is a complete bar on acquisition of irrigated multi-cropped land, except as a last resort and for certain projects such as railway lines and roads, as laid down in Chapter III. 277. Chapter IV contains elaborate provisions for determination and payment of compensation. 278. The deep concern for rehabilitation and resettlement of displaced land owners is demonstrated by Chapters V through VIII being dedicated to ensure the same. 279. Further according to the NMP, declared by the Government of India as on 4-11-2011, industrial growth is intended to be achieved by the Union government in partnership with the States. The 2013 Act provides for acquisition of land for infrastructure projects, which includes Industrial Corridors and NIMZ, as designated under the Policy. The NMP is adopted by the State Government vide Government Order dated 27-2-2015. The Policy further states, while the NIMZ is an important instrumentality, the proposals contained in the policy apply to manufacturing industry throughout the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial purposes, the lot of the land owners and their plight and a host of other concerns which the 2013 Act provides for, the working of the KIAD Act should strictly conform to provisions of the 2013 Act prescribing checks and balances, preceding the acquisition of land and in the process of acquisition and thereafter, or perish. 283. Further, in view of the specific provision under the 2013 Act, namely, Section 103, which lays down that the provisions of the Central Act shall be in addition to and not in derogation of, any other law for the time being in force, the State Government which is the appropriate government for carrying out the provisions of the Act, cannot exclusively exercise power under the KIAD Act, de hors the provisions of the 2013 Act. It is mandatory for the State Government to follow the provisions of the 2013 Act in addition to the provisions of the KIAD Act, if necessary. But in so far as the acquisition of lands for establishment of Industrial corridors, industrial areas or industrial clusters, the 2013 Act is a self contained code by itself and the State government is precluded from overriding the said provisions of the 2013 Act, by resorting to the unbridled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration and award. Rule 10 provides for publication of declaration and acquisition has contemplated in section 19(1) of the Act. Rule 11 provides for land acquisition ward referred in Section 23. Rule 15 is very important hence it is extracted:- 15. Limits of extent of land under sub-section (3) of section 2. - The limits of extent of land referred to in Clause (a) of sub-section (3) of Section 2 shall be twenty hectares in urban areas and forty hectares in rural areas. 289. The State Government which is the appropriate Government under the Central Act has made rules known as The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Karnataka) Rules, 2015 published vide Notification No. RD 152 AQB 2013, Bangalore dated 17.10.2015, for carrying out the provisions of the Act. 290. Chapter-II of the State Rules provide for social impact assessment, under Rules 3 to 15 which can be referred to. Rule-2 contemplates as to how the social impact assessment report, recommendations of the export group etc. have to be considered by the Deputy Commissioner. The important aspect is that where the land is sought to be acquired for the purposes as specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial areas is covered under the Central Act, the provisions of the State Act are redundant and such provisions as are directly in conflict with the provisions of the Central Act are repugnant and inoperative, as contemplated under Articles 245 and 246 of the Constitution of India. 296. 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 thereunder. 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. 11. DISCUSSION ON POINT No. ii) Whether Section 24 of the 2013 Act is applicable to an acquisition initiated under the provisions of the KIAD Act. 297. On the next point for consideration as to whether Section 24(2) of the 2013 Act is applicable to an acquisition initiated under the provisions of the KIAD Act is concerned, it is urged that the said Section is a deeming provision and would apply only wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as the KIAD Act is not an enactment for regulating the planning activity like the Karnataka Town and Country Planning Act, 1961. As the preamble of the KIAD Act suggests the Act is meant to secure the establishment of Industrial areas in the State of Karnataka. It is needless to state that for the purpose of establishing the industrial areas the enactment contemplates a substantial second part, namely, the power to acquire under Chapter - VII. The objects of under the KIAD Act, is two fold namely (1) establishing industrial area and (2) acquisition of land for the purpose of establishing industrial area. This is fortified by the requirement of declaration under Section 3(1) of the said Act. In structure and content the KIAD Act is different from the structure and content of M.R.T.P. Act and therefore the judgment of the Bombay High Court is clearly inapplicable to the facts of the instant case. In the context of structure of the M.R.T.P. Act, the Bombay High Court Came to the conclusion that the provisions of the 1894 Act, were made part of the M.R.T.P. Act by incorporation and not by reference. 300. The provisions contained in Section 24 of the 2013 Act are applicable to the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in respect of acquisition proceedings initiated under the 1894 Act. However, that is required to be understood in the context of Section 30 of the KIAD Act, as meaning acquisition under Section 28 of the KIAD Act. In other words the statement in Section 24(2) initiated under the Land Acquisition Act, 1894 to be read and understood as initiated under the Karnataka Industrial Areas Development Act, 1966 read with the Land Acquisition Act, 1894. This is a minor change which is the effect of the use of the phrase Mutatis Mutandis under Section 30 of the KIAD Act. It does not amount to rewriting the Section. 308. Sections 23, 24 and 25 of the 2013 Act relate to enquiry and making of an award. The same are analogous to Sections 11 and 12 of the 1894 Act. 309. Section 23 of 2013 Act relates to enquiry and award by the Collector which is squarely within the purview of Section 30 of the KIAD Act. 310. Section 25 is also pertaining to making of an award. Section 24 deals with the effect of not making an award. 311. Therefore, to say that Section 24 alone is inapplicable and not covered within the scope of Section 30 of the KIAD Act is an artificial construction which requires to be negati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 24 of the 2013 Act and Section 30 of the Karnataka Industrial Areas Development Act, 1966 has to be preferred to a construction which brings Section 24(2) of the 2013 Act in conflict with Section 30 of the KIAD Act, 1966. 317. Section 24(2) of the 2013 Act is applicable to acquisition proceedings under the KIAD Act. 318. Incidentally, it is brought to the attention of this bench that a co-ordinate bench of this court has had occasion to address the question, whether the provisions of the 2013 Act are applicable to the lands sought to be acquired under the provisions of the KIAD Act and if found applicable, then whether Section 24(2) would come into play and to what effect? (W.P. 51377 W.P. 52037-042/2014, M. Somashekar others v. State of Karnataka others, dated 15-12-2016) And it is held as follows: 19. In the background of the above, if the effect of provisions of Act 30 of 2013 (New Land Acquisition Act) particularly application of Section 24 of the said Act is examined, the inescapable conclusion would be that no matter whether the acquisition of the land was initiated under the provisions of Land Acquisition Act 1894 or under the provisions of Karnataka Industrial Areas Dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the provisions of the Old Act as if the Old Act had not been repealed. This sub-section (1) of Section 24 has no application because it is stated in the Statement of objection filed by respondent No. 4 that Award was passed on 10.12.2008 and was approved by the Government on 16.11.2009. But, sub-section (2) of Section 24 states that where an Award has been made under the provisions of the Land Acquisition Act, 1894, five years or more, prior to the commencement of the New Land Acquisition Act but physical possession of the land has not been taken or the compensation has not been paid, the said proceedings shall be deemed to have lapsed and the appropriate Government if it so chooses, shall initiate the said proceedings afresh in accordance with the provisions of the New Act. 21. The question is whether sub-section 2 of Section 24 has any application to the facts and circumstances of the present case. As referred to in the preceding paragraphs by considering the ratio of the judgments of the Apex Court that for the purpose of determination and payment of compensation there cannot be any discrimination between one land owner whose lands are acquired under the Land Acquisition Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnataka Industrial Areas Development Act, 1966 would be violative of his right under Article 14 of the Constitution of India. Therefore, Section 24 of the new Act in essence deals with determination of compensation and payment thereof in respect of acquired lands prior to New Land Acquisition Act came into force. The effect of Sub-section 2 of Section 24 would be that cases where acquisition was initiated prior to new Land Acquisition Act came into force which had not been completed despite lapse of five years or more from the date of passing of Award by paying compensation or by taking physical possession of the land, the said proceedings cannot be continued under the Old Act because payment of compensation under the provisions of Old Act would be unrealistic, unfair and result in depriving the owners of their legitimate right for fair compensation guaranteed under Article 300A of the Constitution R/w Article 14 of the Constitution. Therefore, if the Government intends to acquire such land, it has to initiate fresh proceedings whereupon compensation shall be payable based on the market value of the land as on the date of publication of preliminary notification. This result will en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts under the local laws can be extended to the land losers, if the local laws do not provide for atleast minimum benefits as stipulated in the New Land Acquisition Act, 2013, then enforcing such provisions would certainly incur the wrath of Article 14 of the Constitution, in so far as the land losers are concerned. 28. Hence, it has to be stated that if the amendment made to the Land Acquisition Act by enacting a new legislation is not imported into the KIAD Act, it would render the KIAD Act wholly unworkable offending Article 14 especially in the context of the provisions under Section 24(2) of the Act of which we are now concerned. Therefore, the fact that the KIAD Act incorporates certain provisions of the LA Act regarding payment of compensation etc., and therefore, it is a legislation by incorporation does not make any difference in protecting the interest of the land losers in getting fair compensation and other benefits as provided in Section 24(2) of the Act. 29. When it comes to payment of compensation, it includes determination of compensation, the market value payable, the solatium, interest and other amounts as provided under the New Act and also necessarily includes pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts absolutely in the State Government, free from all encumbrances on publication of the declaration in terms of sub-section (4), the State is required to complete the formality of taking over physical possession of the land. It is only thereafter that such possession could be transferred to the KIADB. The process is to be evidenced by acceptable documentation. 323. Sub-section (2) of Section 24 of the 2013 Act reads thus: (2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act: Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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