1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE15H DAY OF DECEMBER, 2016 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.51377/2014 & W.P.Nos.52037-042/2014 (LA-KIADB) BETWEEN1 M.SOMASHEKAR, ® S/O LATE MUNIYAPPA, AGED ABOUT56YEARS, R/AT NO.85/2, PRAKASH LAYOUT, VARTHUR, BANGALORE-560 087. S.V.GOPALA REDDY, S/O LATE VENKATASWAMY REDDY, AGED ABOUT55YEARS, R/AT SORAHUNASE VILLAGE, VARTHUR HOBLI & POST, BANGALORE-560 087. SMT.S.N.KANTHAMMA @ S.N.SHANTHAMMA, W/O S.R.RAJANNA, AGED ABOUT54YEARS, RESIDING AT NO.574, 3RD STAGE, MADURANAGAR, VARTHUR POST, BANGALORE-560 087. APPANNA, S/O ERAPPA, AGED ABOUT76YEARS, R/AT CHIKKANEKUNDHI, SARJAPURA HOBLI, ANEKAL TALUK, MUTHASANDRA POST, BANGALORE-560 087. YELLAPPA, S/O LATE GURAPPA, AGED ABOUT88YEARS, R/AT3D STAGE, MADURANAGAR, 2.
3. 4.
5. 2 VARTHUR POST, BANGALORE-560 087. ... PETITIONERS (By Sri JAYAKUMAR S.PATIL, SR.COUNSEL FOR Sri S.MAHESH, ADV.) AND1 STATE OF KARNATAKA, DEPARTMENT OF INDUSTRIES AND COMMERCE, M.S.BUILDING, DR.AMBEDKAR ROAD, BANGALORE-560 001 REP. BY ITS SECRETARY. KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD, NO.49, KHANIJA BHAVAN, EAST WING, 5TH FLOOR, RACE COURSE ROAD, BANGALORE-560 001. REP.BY ITS CHIEF EXECUTIVE OFFICER AND EXECUTIVE MEMBER. 2.
3. THE SPECIAL LAND ACQUISITION OFFICER KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD, NO.49, KHANIJA BHAVAN, EAST WING, 5TH FLOOR, RACE COURSE ROAD, BANGALORE-560 001.
4. BANGALORE WATER SUPPLY AND SEWERAGE BOARD, CCAUVERY BHAVAN, BANGALORE-560 001 REPRESENTED BY ITS CHAIRMAN. ... RESPONDENTS (By Sri D.L.N.RAO, SR.COUNSEL FOR Sri GURUDEV I.GACHCHINAMATH, ADV. FOR R4; Sri ASHOK N.NAYAK, ADV. FOR R1; Sri R.B.SATHYANARAYANA SINGH, AGA FOR R1) THESE WRIT PETITIONS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA, PRAYING TO].QUASH THE PRELIMINARY NOTIFICATION DTD.6.2.2006 PUBLISHED IN THE KARNATAKA GAZETTE ON82.2006 VIDE ANNEX-B AND THE FINAL NOTIFICATION DTD.17.12.2007 PUBLISHED IN THE KARNATAKA GAZETTE ON1812.2007 VIDE ANNEX-F AS AGAINST THE PETITIONERS LANDS BEARING SY.NO.370, 371/1, 375/2, 377/3, 377/6, 377/7 AND396ALL SITUATED AT AMANI BELLANDUR3KHANE VILLAGE, VARTHUR HOBLI, BANGALORE EAST TALUK AND SET ASIDE THE ACQUISITION PROCEEDINGS OF THE LANDS BELONGING TO THE PETITIOENRS AND ETC. THESE PETITIONS COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER1 All the petitioners are owners of agricultural lands comprised in different survey numbers situated in Amani Belandur Khane Village, Varthur Hobli, Bengaluru East Taluk. By preliminary notification dated 06.02.2006 published in the Karnataka Gazette dated 08.02.2006, the lands in question were proposed to be acquired under Section 28(1) of the Karnataka Industrial Area Development Act, 1966 (for short, ‘the KIAD Act’) for establishing and developing industries by the Karnataka Industrial Area Development Board (for short, ‘KIADB’). This was preceded by declaration of industrial area made under Section 3(1) of the KIAD Act. It is urged by the petitioners that by virtue of the action of the Bengaluru Development Authority (for short, ‘BDA’), which is the planning authority for approving a comprehensive development plan for the city of Bengaluru, particularly the publication of the revised Master Plan, 2015 showing land use for each parcel of lands within the planning area, lands belonging to the petitioners 4 have been classified as residential. It is also urged by them that as KIADB did not proceed with the acquisition for a long time petitioners were under bonafide belief that the proposed acquisition had been given up. It is also further urged that when petitioner No.1 desired to sell his land comprised in Sy.No.371/1 and as the purchasers wanted certificate disclosing non-acquisition of land, petitioner No.1 sought for such a certificate whereupon the officers of KIADB disclosed on 19.09.2014 that the lands were under acquisition hence they could not issue any no objection certificate and they were also shown final notification dated 17.12.2007 issued by the State Government as per Annexure-F. It is only thereafter, by obtaining further details as regards the acquisition proceedings, they could approach this court challenging the acquisition. Thus the petitioners have challenged the acquisition of their land.
2. Petitioners have contended that they were not issued with any notice of the proposed acquisition of the lands of petitioners for setting up sewage treatment plant by Bengaluru Water Supply and Sewage Board (for short ‘BWSSB’) – respondent No.4 herein. They have urged that petitioners were 5 completely kept in dark about the said proceedings and all further proceedings pursuant to the final notification. They have also urged that notices pertaining to the award was not issued to them, nor the amount of compensation was paid or deposited. Petitioners have produced a copy of RTI application submitted to the Special Land Acquisition Officer, KIADB and the reply given by the KIADB at Annexures- G and G1 respectively showing that admittedly the compensation amount was neither paid, nor deposited. Petitioners have also contended that in all the revenue records in respect of lands in question, names of the petitioners were shown as owners and they have been in possession and enjoyment of the properties. They have further contended that mahazar drawn allegedly taking over possession of lands is a created one wherein false statements have been made stating that villagers have refused to sign the mahazar.
3. Petitioners have urged that in terms of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, ‘the new Act’) entire acquisition proceedings stand lapsed as no compensation was paid, nor possession was taken even though 6 period of 5 years and more had lapsed after passing of the award as on the date of commencement of the new Act. It is also urged by the petitioners that the new Act applied to acquisition of the land for various public sector undertakings for public purpose including for various infrastructural projects and also for water harvesting and water conservation structures and sanitation. Therefore, as the lands of the petitioners have been acquired for public purpose for the benefit of BWSSB – respondent No.4 herein to set up a sewage treatment plant which related to sanitation the same would be covered under Section 2(b)(iv) of the new Act. That the provisions of the new Act were applicable to the acquisition of the lands of petitioners and hence, petitioners were entitled for the benefits of all rights flowing under the new Act.
4. Respondents have resisted the petition by filing statement of objections. They have contended that the petition filed after lapse of 7 years from the date of issuance of final notification was hit by delay and latches. They have highlighted the public purpose for which the lands have been acquired, inasmuch as treatment of sewage water has attained importance having due regard to the volume of discharge of wastage and hence, 7 establishment of sewage treatment plant was of immense importance. They have contended that the lands in question were the most feasible lands for establishment of sewage treatment plant. It is further urged by them that under the very notification, large extent of land had been notified for the same purpose and some of the land owners challenged the very notification in W.P.Nos.6326-6343/2009 connected with W.P.No.5650/2008. The said writ petitions were dismissed and therefore, as the challenge to the acquisition has attained finality, present writ petition is not maintainable.
5. The BWSSB – respondent No.4 herein has contended that it has already deposited Rs.13,13,00,390/- towards land acquisition cost to the KIADB and that the work undertaken to prevent the flow of sewage water into the open storm water drains and into the lakes situated in and around Bengaluru City is of great importance and therefore, there is absolutely no justification for the petitioners to stall the project by presenting this writ petition.
6. I have heard Sri Jayakumar S.Patil, learned Senior Counsel appearing for the petitioners, Sri D.L.N.Rao, learned 8 Senior Counsel appearing for respondent No.4 – BWSSB and also learned Additional Government Advocate.
7. The principal question that arises for consideration is whether the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 are applicable to the lands of the petitioners?. If it is held that the provisions of the new Act are applicable, then whether Section 24(2) of the new Act comes into play and to what effect?.
8. Sri D.L.N.Rao, learned Senior Counsel appearing for respondent No.4 contends that KIAD Act is a complete code in itself and the limitation prescribed under the Land Acquisition Act has no application to the acquisition under KIAD Act or for that matter BDA Act; indeed, it has been held by the Apex Court that period of 2 years prescribed for passing award from the date of publication of final notification under Section 6 of the Land Acquisition Act has been held to be not applicable to the acquisition under BDA Act. He has placed reliance on the following judgments:
1. M.NAGABHUSHANA VS. STATE OF KARNATAKA AND OTHER – AIR2011SC1113 9 OFFSHORE HOLDINGS PRIVATE LIMITED Vs. BANGALORE DEVELOPMENT AUTHORITY & OTHERS – (2011) 3 SCC139 GIRNAR TRADERS (3) Vs. STATE OF MAHARASHTRA AND OTHERS – (2011) 3 SCC1 2.
3. 9. He has also placed reliance on the judgment in the case of SHRI RAMTANU CO-OOPERATIVE HOUSING SOCIETY LTD. AND ANOTHER Vs. STATE OF MAHARASHTRA – AIR1970SC1771to urge that there was no repugnancy between the Central Act and the provisions of the KIAD Act even if doctrine of pith and substance was applied. He has also urged that petition is liable to be dismissed only on the ground of delay and latches for which reliance has been placed on the judgment in the case of BRIJESH KUMAR & OTHERS Vs. STATE OF HARYANA & OTHERS (2014) (11) SCC351 He has also placed reliance on Section 30 of KIAD Act to contend that provisions of the Land Acquisition Act, 1894 have been made applicable mutatis- mutandis in respect of enquiry, award, reference etc. and hence it was a case of legislation by incorporation. Therefore, any amendment, change including repeal of the Land Acquisition Act, 1894, by Act No.30 of 2013 would not affect Section 30 of 10 KIAD Act and application of Land Acquisition Act, 1894 to the extent incorporated. In this regard, he has placed reliance on the judgment in the case of GAURI SHANKAR GAUR AND OTHERS Vs. STATE OF U.P. AND OTHERS – (1994) 1 SCC92 10. In reply, Sri Jayakumar S.Patil, learned Senior Counsel appearing for petitioners contended that if the argument regarding non applicability of the amended provisions of Land Acquisition Act as per Section 30 of KIAD Act is logically extended, then provisions of Section 23(1A) of Land Acquisition Act, regarding payment of additional sum, Section 23(2) regarding payment of 30% solatium and provisions of Section 28 regarding payment of interest as amended vide Act 68 of 1994 would be also not applicable for the lands acquired under the provisions of KIAD Act and the result would be the land owners would be entitled for payment of lesser compensation, based on the provisions of the unamended Land Acquisition Act as they stood prior to the amendment Act No.68 of 1984. It is urged by him that this situation would result in discriminatory treatment in the matter of payment of compensation to those whose lands were acquired under the Land Acquisition Act as compared to those whose lands are acquired under KIAD Act 11 and would therefore, be violative of Article 14 of the Constitution. In this regard, he has placed reliance on the judgment of the Apex Court in the case of WESTERN COALFIELDS LIMITED Vs. SPECIAL AREA DEVELOPMENT AUTHORITY, KORBA AND ANOTHER – (1982) 1 SCC125 (paragraph
16) wherein it is held that non-applicability of subsequent amendments to the Land Acquisition Act in respect of provisions where incorporation was done prior to the amendment is not an inflexible or an absolute proposition. Reliance is also placed on the following judgments in this regard- 1. 2.
3. 4.
5. NAGPUR IMPROVEMENT TGRUST AND ANOTHER Vs. VITHAL RAO AND OTHERS – (1973) 1 SCC500 THE STATE OF M.P. Vs. M.V.NARASIMHAN – AIR1975SC1835 THE LAND ACQUISITION OFFICER, CITY IMPROVEMENT TRUST BOARD Vs. H.NARAYANAIAH AND OTHERS – (1976) 4 SCC9 NAGPUR IMPROVEMENT TRUST Vs. VASANTRAO AND OTHERS – (2002) 7 SCC657 MAHARASHTRA STATE ROAD TRANSPORT CORPORATION Vs. STATE OF MAHARASHTRA AND OTHERS – (2003) 4 SCC200 12 11. It is true legislation by incorporation amounts ‘to writing those sections into the new Act as if they had been actually written in it with pen or printed in it’. Therefore, repeal of the provisions of the earlier Act or any amendment or alteration in it can have no effect on the adopting Act because it had become part of the new statute and remained untouched by what happened to the parent Act. This principle is well recognized (see - (1994) 1 SCC92– paragraph 44).
12. As held by the Apex Court in the case of M.NAGABHUSHANA VS. STATE OF KARNATAKA AND OTHER – AIR2011SC1113 the KIAD Act is a self-contained code, therefore, acquisition under KIAD Act does not lapse due to non-compliance with the provisions of Section 11A of the Central Act – Land Acquisition Act as amended by Act No.68 of 1984. The KIAD Act has been enacted to achieve the object of orderly establishment and development of industries in suitable area in the State and in that regard a Board known as Industrial Development Board was proposed to be established to develop such areas and make them available for establishment of industries. Hence, KIAD Act being a self- contained code, the Central Act is not supplemental to it and 13 the proceedings under KIAD Act will not lapse by operation of Section 11A.
13. In the case of GIRNAR TRADERS (3) Vs. STATE OF MAHARASHTRA AND OTHERS – (2011) 3 SCC1 a Constitution Bench of the Apex Court has held that Section 11A of the Land Acquisition Act 1894 as amended by Act No.68 of 1984 had no application to Maharashtra Regional and Town Planning Act 1966, as the later Act was a self contained Act as regards the time frame of acquisition prescribed and the consequence of default thereof including lapse of acquisition proceedings. The Apex Court in the said decision held that the MRTP Act, 1966 was a self-contained code with predominant purpose of planned development and other matters which had to be construed to achieve the said predominant purpose. In this context, it was held that reference to some of the provisions of Land Acquisition Act, 1894 in the MRTP Act was only for limited purpose of acquiring the land and therefore, provisions of the Central Act cannot be made use to hamper or obstruct the purpose and object of MRTP Act and hence, Section 11A of the Land Acquisition Act could not be read into the provisions of MRTP Act, 1966. 14 14. As per judgment in the case of SWARNA LATA Vs. STATE OF HARYANA – (2010) 4 SCC532 the Apex Court has held that when a person challenges preliminary notification, it has to be done within a reasonable period and if acquisition is challenged at a belated stage, the petition deserves to be dismissed only on the said ground.
15. It is therefore clear that Karnataka Industrial Areas Development Act is a complete code by itself and provisions of Land Acquisition Act namely Central Act 1 of 1894 have been made mutatis mutandis applicable in respect of Enquiry and Award by the Deputy Commissioner, Reference to the Civil Court, Apportionment of compensation and Payment of compensation in respect of acquired land as is clear from Section 30 of The Karnataka Industrial Areas Development Act, 1966. It reads as under:- 30. Application of Central Act 1 of 1894.- The provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894) shall mutatis mutandis apply in respect of the enquiry and award by the Deputy Commissioner, the reference to Court, the apportionment of compensation and the payment of compensation, in respect of lands acquired under this Chapter. 15 Even though Section 30 incorporates the provisions of Land Acquisition Act, 1894 as regards enquiry, passing of award and payment of compensation and therefore it has to be categorized as legislation by incorporation, subsequent amendment to the Land Acquisition Act, insofar as it pertains to payment of compensation to the land losers cannot be said to be inapplicable. Indeed even in the judgment of the Apex Court dealing with the effect of Section 11A introduced by Land Acquisition Amendment Act, Act 68 of 1984, that is in M. NAGABHUSHANA Vs. STATE OF KARNATAKA AND ORS. – AIR2011SUPREME COURT1113& OFFSHORE HOLDINGS PRIVATE LIMITED Vs. BANGALORE DEVELOPMENT AUTHORITY AND OTHERS – (2011) 3 SUPREME COURT CASES139 it has not been laid down that for determining and paying compensation to the land losers the amended provisions of the Land Acquisition Act as per Sec.23(1) (A) and Sec.23(2) or for that matter Section 28 were not applicable. The contention, therefore, that in respect of legislation by incorporation the subsequent amendment to the Land Acquisition Act will not apply cannot be taken as absolute proposition. 16 16. In the case of NAGPUR IMPROVEMENT TRUST Vs. VITHAL RAO AND OTHERS – 1975 (1) SUPREME COURT CASES500 a constitution bench comprising Seven Hon’ble Judges of the Apex Court was dealing with the question whether different principles of compensation can be applied if the land was acquired for or by an improvement trust or Municipal Corporation or the Government because as far as the owner was concerned, it did not matter to him whether land was acquired by one authority or the other. The Apex Court has laid down that Government could acquire land for a housing accommodation, either under the Land Acquisition Act or under the City Improvement Act; the well settled position being that State can make a reasonable classification for the purpose of legislation as long as the acquisition was founded on intelligible differentia and the differentia had rational relation with the object sought to be achieved by the legislation in question. The Apex Court has held that it must be borne in mind that the object itself shall be lawful and the object cannot be discriminatory because if the object was to discriminate against one section of the minority, the discrimination cannot be justified on the ground that there was reasonable classification. 17 In Para No.27 the Apex Court has raised the question as under:- 27. What can be reasonable classification for the purpose of determining compensation if the object of the legislation is to compulsorily acquire land for public purposes?. The Apex Court has answered the same in the succeeding Paras No.28 to 31, as under:- 28. It would not be disputed that different principles of compensation cannot be formulated for lands acquired on the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is a politician or an advocate. Why is this sort of classification not sustainable?. Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type.
29. Can classification be made on the basis of the public purpose for the purpose of compensation for which land is acquired?. In other words can the Legislature lay down different principles of compensation for lands acquired say for a hospital or a school or a Government 18 building?. Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Government building at 70% of the market value?. All three objects are public purposes and as far as the owner is concerned, it does not matter to him whether it is one public purpose or the other. Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classification be made on the basis of the authority acquiring the land is acquired for or by an Improvement Trust or Municipal Corporation as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.
30. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated 19 the owner who is discriminated against, can claim the protection of Article 14.
31. It was said that if this is the true position of the State would find it impossible to clear slums, to do various other laudable things. If this argument were to be accepted it would be totally destructive of the protection given by Article 14. It would enable the State to have one law for acquiring lands for hospital, one law for acquiring lands for schools, one law acquiring lands for clearing slums, another for acquiring lands for Government buildings; one for acquiring lands in New Delhi and another for acquiring lands in Old Delhi. It was said that in many cases, the value of the land has increased not because of any effort by the owner but because of the general development of the city in which the land is situated. There is no doubt that this is so, but Article 14 prohibits the expropriation of the unearned increment of one owner while leaving his neighbour untouched. The neighbour could sell his land and reap the unearned increment. If the object of the legislation is to tax unearned increment it should be done throughout the State. The State cannot achieve this object piece meal by compulsory acquisition of land of some owners leaving others alone. If the object is to clear slums it cannot be done at the expense of the owners whose lands are acquired, unless as we 20 have said the owners are directly benefited by the scheme. If the object is to build hospitals it cannot be done at the expense of the owners of the land which is acquired. The hospital, schools etc. must be built at the expense of the whole community.
17. Again the Apex Court in WESTERN COALFIELDS LIMITED VS. SPECIAL AREA DEVELOPMENT AUTHORITY, KORBA AND ANOTHER – (1982) I SUPREME COURT CASES125 it has laid down in Para No.16 as under:- 16. The principle, broadly, is that where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second (see Clarke v. Bradlaugh). Likewise, logically, where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it (see Secretary of State for India-in-Council V. Hindusthan Cooperative Insurance Society Ltd). But these rules are not absolute and inflexible. In the case last cited, the Privy Council qualified its statement of the law by saying that the principle, that an amendment of the first law which is not expressly made applicable to the subsequent incorporating Act cannot be 21 deemed to be incorporated into the second Act, applies “if it is possible for the subsequent Act to function effectually without the addition” (IA Page 267). Besides, as held by a Constitution Bench of this Court in the Collector of Customs, Madras V. Nathella Sampathu Chetty, the decision of the Privy Council could not be extended too far so as to cover every case in which the provisions of another statute area adopted by absorption (see SCR page 837). Finally, in State of M.P. V. M.V. Narasimhan, this Court held, after an examination of the relevant decisions, that the broad principle that where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act, is subject to four exceptions, one of which is that the principle will not apply to cases “whether the subsequent Act and the previous Act are supplemental to each other. In the case of THE LAND ACQUISITON OFFICER, CITY18 IMPROVEMENT TRUST BOARAD V. H. NARAYANAIAH AND OTHERS – (1976) 4 SUPREME COURT CASES9 the Apex Court has observed in Para Nos.21 and 22 that an acquisition proceeding without providing for award of compensation on 22 some principle is unthinkable; Such a situation would have invited an attack on the validity of the acquisition itself. The Apex Court while construing the provisions with regard to the date of determination of market value for the purpose of payment of compensation under the City of Bangalore Improvement Act 1945, held that Section 23 of Land Acquisition Act, 1894 was applicable. The observations made in para nos.21 and 22 of the judgment can be usefully extracted hereunder.
21. Non-specification of a different principle or procedure in the Act, governing award of compensation under the Bangalore Act, far from indicating, as learned Judges of the High Court erroneously opined, that Section 23(1) of the Acquisition Act was not applicable here at all, was one of the strongest arguments for holding that it is covered by the general provisions applied by Section 27 of the Bangalore Act. An acquisition proceeding without providing for award of compensation on some principles is unthinkable. Such a situation would have invited an attack on the validity of the acquisition itself. But, as we have already observed, there is no such challenge here. 23 22. There was some argument on the meaning of the words “so far as they are applicable”, used in Section 27 of the Bangalore Act. These words cannot be changed into “in so far as they are specifically mentioned” with regard to the procedure in the Acquisition Act. On the other hand, the obvious intention, in using these words, was to exclude only those provisions of the Acquisition Act which become inapplicable because of any special procedure prescribed by the Bangalore Act (e.g. Section
16) corresponding with that found in the Acquisition Act (e.g. Section 4(1)].. These words bring in or make applicable, so far as this is reasonably possible, general provisions such as Section 23(1) of the Acquisiton Act. They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act. They amount to laying down the principle that what is not either expressly, or, by a necessary implication, excluded must be applied. It is surprising to find misconstruction of what did not appear to us to be reasonably open to more than one interpretation. In the background of the above, if the effect of provisions 19. 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 24 acquisition of the land was initiated under the provisions of Land Acquisition Act 1894 or under the provisions of Karnataka Industrial Areas Development Act 1966, for the purpose of payment of compensation, if the amended provisions of the New Land Acquisition Act are applicable, compensation has to be paid as per the said provisions. Otherwise, it will lead to discriminatory treatment resulting in violation of fundamental rights of the land looser under Article 14 of the Constitution. It is useful, at this stage, to refer to Section 24 of the New Land Acquisition Act. It reads as under:- 24. Land acquisition process under Act No.1 of 1984 shall be deemed to have lapsed in certain cases. – (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894),- (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or (b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said 25 Land Acquisition Act, as if the said Act has not been repealed. (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 holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
20. A careful perusal of Section 24(1) would show that if, as on the date the New Act came into force with effect from 1.1.2014 no Award under Section 11 of the Land Acquisition 26 Act has been made, then the provisions of the New Act relating to determination of compensation shall be applicable. But, where an Award has already been made, then the proceedings shall continue under 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 27 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 and another land owner whose lands are acquired under the Karnataka Industrial Areas Development Act.
22. The New Land Acquisition Act insofar as it provides for right to fair compensation would be applicable even where the acquisition was under the State law namely Karnataka Industrial Areas Development Act wherever the acquisition was incomplete in that Award was not passed or possession was not taken for five years or more from the date of passing of award. By virtue of Section 24(2) cases where acquisition had resulted in passing of the award five years or more prior to the commencement of the New Act but physical possession of the same had not been taken or compensation had not been paid the proceedings shall be deemed to have lapsed. However, the State would be entitled to initiate fresh proceedings in accordance with the provisions of the New Act. The scope, purpose and object of the provisions in the new Act including Section 24(2), if carefully considered, it cannot be equated to or 28 restricted for the scope and object of Section 11A introduced by the Amending Act, Act 68/1984.
23. The purpose and intent behind this provision enacted by the Parliament in the new Act is to ensure that a person who has not been paid compensation for several years cannot be forced to part with his land for payment of compensation under the provisions of the Old Land Acquisition Act which provisions were regarded as insufficient and inadequate for ensuring payment of comprehensive fair compensation package for the land owners by adopting a scientific method for calculation of market value coupled with a comprehensive rehabilitation and resettlement package for land owners including subsistence allowance, jobs, houses, transportation allowance and resettlement allowance etc. This is evident from the many laudable objects contained in the statement of objects and reasons to the New Land Acquisition Act. If such benefit is available to a person whose land has been acquired under the Land Acquisition Act and in whose favour though award had been passed under Section 11 of the Land Acquisition Act 1894, five years or more prior to the commencement of the New Land Acquisition Act but physical possession thereof had not been 29 taken or compensation had not been paid, then denial of such benefit in favour of land owners whose lands had been acquired under the provisions of the Karnataka 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 30 notification. This result will ensure no matter whether the acquisition proceedings had been initiated under the Land Acquisition Act or under the Karnataka Industrial Areas Development Act, as long as the intention behind the legislation is to provide just and fair compensation by introducing a deeming clause that old acquisition proceedings falling under sub section 2 of Section 24 of the New Land Acquisition Act stand lapsed. It is immaterial whether the Old Acquisition was under the Land Acquisition Act or under any of the provisions of Karnataka Industrial Areas Development Act because as per Section 29 and 30 of Karnataka Industrial Areas Development Act, the provisions of the Land Acquisition Act shall mutatis mutandis apply in respect of enquiry and award, reference to Court, apportionment of compensation and payment of compensation.
24. In the case of State of Madhya Pradesh Vs M.V.Narasimhan – AIR1975SC1835 the Supreme Court has laid down four exceptions to the Rule of Legislation by incorporation, which are as under: (a) where the subsequent Act and the previous Act are supplemental to each other; 25. 31 (b) where the two Acts are in pari material; (c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act. In Nagabhushan’s case (AIR2011SC2113 and in Girinar Traders’ case (2011)3 SCC1, the Apex Court has held that KIAD Act and the MRTP Act being self contained Codes, Section 11A which pertained to time frame of acquisition and the consequence of default thereof including lapse of acquisition proceedings was inapplicable for the acquisition under KIAD & MRTP Acts because reference to some of the provisions of the Land Acquisition Act in KIAD & MRTP Act was for a limited purpose and could not be made use of to hamper the purpose and object of the local enactments. In addition, it has been held that the Central Act could not be treated as supplemental to the local enactments. 32 26. The scenario has completely changed in the light of enactment of new LA Act. Need for preparation of a social impact assessment report before publication of preliminary notification (Sections 4 to 9 of LA, 2013) exclusion of multi- cropped lands from acquisition (Section 10), provisions for preparation of Rehabilitation and Re-settlement Scheme (Sections 16 to
18) award of 100% solatium, (Section
30) allotment of alternative land, one time subsistence allowance, special provisions for SC/STs, etc., have introduced sea change in the matter of acquisition of land for public purpose.
27. Even a perusal of Sections 107 & 108 of the New Act makes it clear that the State Legislatures are free to enact any law to provide enhanced or additional benefits to the land loosers regarding higher compensation or better rehabilitation. This, further makes it clear that while better benefits under the local laws can be extended to the land loosers, 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 loosers are concerned. 33 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 loosers 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 payment of the same compensation to such of the old cases which fall under Section 24. No discrimination can be made with reference to the purpose of acquisition or the provisions of law under which the acquisition is made in the matter of extending the benefits regarding payment of compensation as the same will tantamount to discriminatory treatment violative of the rights of 34 land owners under Article 14 of the Constitution. Therefore, provisions of Section 24 have to be held to be applicable even in case where the land is acquired under Karnataka Industrial Areas Development Act.
30. It is also brought to the notice of the Court that this Court has already held in the case of SMT. K.M.CHIKKATHAYAMMA & OTHERS VS STATE OF KARNATAKA & OTHERS – 2016(2) AKR737 that provisions of Section 24(2) of the New LA Act, 2013, are applicable to acquisition proceedings under the Bangalore Development Authority Act, and the Karnataka Urban Development Authority Act.
31. The next question that arises for consideration is, whether in the facts and circumstances of the present case, award was passed five years or more prior to the coming into force of the New Land Acquisition Act, that is to say five years prior to 1.1.2014, but physical possession of the land has not been taken or compensation has not been paid?..
32. It is apparent from Annexures-G & G1 – applications filed under the RTI Act by the petitioner on 01.08.2014 and the endorsement issued by the Special Land Acquisition Officer-II, 35 KIADB, Bengaluru, dated 26/27.08.2014 that possession of the acquired lands has not been taken. Even in the revenue records which are produced at Annexures-A1 & A2, names of some of the petitioners have been continued in respect of Sy. Nos.370, 371, 375 & 377/2. There is no notification issued evidencing taking over possession of the lands. At any rate, there is no material at all produced to show that compensation in respect of the acquired lands belonging to the petitioners has been paid or deposited. No material is produced by the respondent to show that the award amount has been paid or deposited. In such circumstances, it has to be held that acquisition proceedings have stood lapsed in the light of the provisions contained under Section 24(2) of the New Land Acquisition Act, 2013.
33. Hence, these writ petitions are allowed. It is held that the acquisition proceedings commenced and continued in respect of the lands in question have stood lapsed. PKS Sd/- JUDGE