TaxTMI 
TaxTMI 
2012 (11) TMI 1333
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.... 6 and 7 in the said writ petition are the absolute owners in Sy. No. 68/1 measuring 3 acres 5 guntas situated in the same Village. Similarly, petitioner Nos. 8 to 10 in the writ petition are the absolute owners of the land bearing Sy. No. 236 measuring 1 acre 39 guntas as well as Sy. No. 237 measuring 30 guntas situated in the same Village. Petitioner Nos. 11 to 13 are the absolute owners of the land in Sy. No. 237 measuring 3 acres 18 guntas situated in the same Village. The petitioners in W.P. No. 12970/2006 are the absolute owners of the land in Sy. No. 235 measuring 4 acres 6 guntas in the said Village. 2. The Government of Karnataka issued a notification under Section 3(1) of the Karnataka Industrial Areas Development Act, 1966 (for short hereinafter referred to as "the Act") declaring that the lands bearing various survey numbers in Villages Jigani, Bandenallasandra, Yarandahalli, Kyalasanahalli and Rajapura of Anekal Taluk, Jigani Hobli as "industrial area". In all an extent of 988 acres 6 guntas were notified. Subsequently by a notification dated 19.04.1997 one more notification came to be issued under Section 1(3) of the Act making Chapter 7 of the act applicable to th....
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....sive notifications. 4. Relying on the judgment of the Apex Court in the case of The State of Madhya Pradesh and Others vs. Vishnu Prasad Sharma And Others reported in AIR 1966 SC 1593, the learned Single Judge on consideration of the aforesaid contention was of the view that the scheme under the Land Acquisition Act is totally different from the scheme under the Act. In fact the Apex Court also has held that the scheme of acquisition under these two Acts are different and therefore the provisions of the Land Acquisition Act cannot be read into the Act. Therefore, the learned Single Judge held successive notifications under Section 28(4) of the Act is permissible, as such, he upheld the impugned acquisition. The learned Single Judge also dismissed these writ petitions on the ground that much water has flown after the issue of notification. There is inordinate delay in the petitioners approaching the Court challenging the acquisition. In the meanwhile the layout has been formed, sites are allotted to various industrialists, third party interests have set in and therefore, he was of the view, this is not a case where he should interfere under Article 226 of the Constitution. Aggrie....
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....vants and workman,- to enter upon and survey and take levels of any land in such locality; to dig or bore into the subsoil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so. 5. Payment for damage.- The officer so authorized shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and, in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at o....
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....mpany, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing. (underlining by us) 8. The Apex Court formulated the question for consideration as under: (11a) The question whether only one notification under S. 6 can be issued with respect to land comprised in the notification under S. 4(1) and thereafter the notification under S. 4(1) exhausts itself and cannot support any further notification under S. 6 with respect to such land depends upon the construction of Ss. 4, 5-A and 6 of the Act and on the connection between these provisions xxxx. Then at para-15 it is held as under: 15. xxxxxx The purpose of the notification under Section 4(1) clearly is to enable the government to take action under S. 4(2) in the matter of survey of land to decide what particular land in the locality specified in the notification under Section 4(1) it will decide to acquire. Another purpose of the notification under S. 4(1) is to give opportunity to persons owning land in that locality to make objections under S. 5-A. These objections are considered by the Collector and after considering a....
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.... a declaration as to the particular land out of the locality notified in S. 4(1) which it will acquire. It is clear from this intimate connection between Ss. 4, 5A and 6 that as soon as the government has made up its mind what particular land out of the locality it requires, it has to issue a declaration under S. 6 to that effect. The purpose of the notification under Section 4(1) is at this stage over and it may be said that it is exhausted after the notification under S. 6. If the government requires more land in that locality besides that notified under S. 6, there is nothing to prevent it from issuing another notification under S. 4(1) making a further survey if necessary, hearing objections and then making another declaration under S. 6 xxxxxx. Further they proceeded to hold as under: It seems to us clear that once a declaration under S. 6 is made, the notification under S. 4(1) must be exhausted, for it has served its purpose. There is nothing in Ss. 4, 5-A and 6 to suggest that S 4(1) is a kind of reservoir from which the government may from time to time draw out land and make declarations with respect to it successively. If that was the intention behind sections....
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....onstitution nor Article 31(2) of the Constitution. The amended provisions read as under: 5A. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4. sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government The decision of the appropriate Government on the objections shall be final. (3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act. 6. and different declarations may be made from time to time in respect of different parcels of any land covered by the ....
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.... 28(4) of the Act, in respect of those portions of the land which were not included in the first notification under Section 28(1). The unamended Section 6(1) is in pari materia with Section 28(4) of the Act. 14. It is in this context, it is necessary to look into the provisions under the Act and to find out whether they are in pari materia with the provisions of the Land Acquisition Act. 15. Section 28 of The Karnataka Industrial Areas Development Act, 1966 reads as under: Acquisition of land: (1) If at any time, in the opinion of the State Government, any land is required for the purpose of development by the Board, or for any other purpose in furtherance of the objects of this Act, the State Government may by notification give notice of its intention to acquire such land. (2) On publication of a notification under subsection (1), the State Government shall serve notice upon the owner or where the owner is not the occupier, on the occupier of the land and on all such persons known or believed to be interested therein to show cause; within thirty days from the date of service of the notice, why the land should not be acquired. (3) After considering ....
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.... issue a declaration by way of a notification under Section 28(4). The words used are "any land" and not all land notified. In fact now the question whether these two provisions are identical or in pari materia is no more res integra. 17. The Apex Court in the case of P. Narayanappa and Another Vs. State of Karnataka and others reported in (2006) 7 SCC 578 dealt with the question whether provisions for acquisition of the land under the Act as contained in Section 28 is identical with the provisions contained in Sections 4, 5A and 6 of the Land Acquisition Act. After elaborately considering the scheme of both the Acts and setting out various definitions and provisions contained in both the Acts at para-13 they have held as under: 13. The provision for acquisition of land under the Act is contained in Section 28 which is somewhat different from the provisions contained in Section 4, 5-A and 6 of the Land Acquisition Act. The legislature in its wisdom thought it proper to make a specific provision for acquisition of the land in the Act itself rather than to take recourse to Sections 4 and 6 of the Land Acquisition Act. A plain reading of sub-section (1) of Section 28 would....
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....ssue a declaration under Section 6(1). Correspondingly there is no provision in the Act for considering all objections made to the notification under Section 28(1) of the Act. There is no provision for submission of one report to the Government. There is no provision for consideration of any such report by the Government before issuing a declaration under section 28(4) of the Act. On the contrary, the language of the Act makes it very clear the Government has to consider the cause shown by the owner of the land and may pass such order as it deems fit and if it is satisfied that any such land should be acquired for the purpose specified in the notification, it may issue a declaration. In the light of the marked difference in the language employed in Section 28, there is no scope for holding that successive notifications are not permissible in law. In fact the legislature did not amend the Act because in the Act the provisions similar to consideration of all objections together, submission of a report and consideration of a report and issuing final notification are conspicuously missing. If those words had been there and if they had not been amended, then the judgment of the Apex Cou....
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.... acquire such land. When such a land is notified it is not as if every owner of the land would object to the acquisition. There are number of owners of the land who may be willing to give their consent to acquisition of the land and accept compensation payable under the Act. At the same time the very object of enacting this Act is establishment and development of industrial area and for making available industrial land to the private entrepreneurs to start industries. If a land owner chooses to challenge the acquisition, certainly it takes time before the acquisition is completed. Therefore, under the scheme it is open to the Government to issue a notification under Section 28(4) in respect of lands where there is no opposition to the acquisition or where they are able to serve the land owners, consider their objections and issue notification for acquisition. If there is any delay in service of notice, if there are contests and any order of stay or injunction is obtained from Courts, it is not necessary for the Government to wait for conclusion of those proceedings before it could issue a notification under Section 28(4) of the Act. That is precisely the reason why as is clear from....
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....d judgment held as under: 17. The effect of delay has been considered by the Supreme Court in Ram Chand vs Union of India 1989(3) K.L.J. P. 17. Though the said case dealt with the delay between the date of Final Notification and the date of passing of the award, the principles enunciated therein will equally apply in respect of the delay between the Preliminary Notification and Final Notification. The following observations are apposite: It is settled that in a statute where for exercise of power no time limit is fixed, it has to be exercised within a time which can be held to be reasonable. The authorities are enjoined by the statute concerned, to perform their duties within a reasonable time and a such they are answerable to the Court, why such duties have not been performed by them, which has caused injury to the claimants. The Supreme Court held that where the compensation is pegged down to the date of preliminary notification and there is inordinate delay, the market rate as on the date of preliminary notification becomes a fraction of the market rate prevailing at the time of passing of the award and taking of possession and that would be unjust to ....
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.... years is stipulated insofar as making of an award is concerned. The whole object behind this amendment is that once a land is notified for acquisition, further proceedings should be taken as early as possible so that the owner of the land would get compensation representing the market value as on the date of the said notification. Therefore, under the Land Acquisition Act, if a final declaration is not made within one year from the date of preliminary notification and if no award is passed within two years from the date of final declaration, entire acquisition proceedings would lapse. However, similar provisions are not contained in the Act. In the absence of such provisions the issue of a final notification as well as passing of an award could be indiscriminately delayed. In this regard in the case of State of Gujarat Vs. Patel Raghav Natha reported in AIR 1969 SC 1297, the Apex Court was considering the question whether in a statue, if for exercise of the power, no time-limit has been fixed, can the authority which has to exercise such power can exercise the same at any time. In that context it was held as under: The question arises whether the Commissioner can revise a....
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....iling which the whole proceedings is vitiated. 30. In the case of Tiverton and North Devon Rly. Co. v. Robert Francis Loosemore it was held as under: If nothing more was done, and the Company has slept upon their rights, and certainly if the delay cannot be explained, they should be held to be disabled from going on with any compulsory purchase,..... 31. House of Lords in the case of Birmingham City Corpn. V. West Midland Baptist (Trust) Assn. reported in (1969) 3 All ER 172 pointed out how the land acquisition proceedings should be conducted in such a manner that the person affected by the land acquisition, gets substantially the value of his land, which he would have got on the date of his dispossession. It was said The principle and the rule cannot be reconciled except on the basis that the total value to the owner at the date of the notice to treat is always substantially the same as the value at the date of the expulsion. 32. In fact, it is this principle which is now incorporated by way of amendment to Section 6(1) as well as by introduction of Section 11A under the Land Acquisition Act. It is in this context, when such provisions are not contained ....
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....d statutory requirement of the payment of the market value to the persons, whose lands have been compulsorily acquired, is not being circumvented and violated by keeping the land acquisition proceedings pending for more than a decade and half, without making the awards and paying the compensation, which has been pegged to the dates of notifications under sub-section (1) of Section 4 of the Act, which in the present cases had been issued 14 to 21 years before the making of the awards. If a person is paid compensation in the year 1980/1981 at the market rate, prevailing twenty years before, will that be compliance of the constitutional and statutory mandate? Ignoring the escalation of the market value of the lands, especially near the agglomeration or metropolitan cities, will amount to ignoring an earthquake and courts can certainly take judicial notice of the said fact. The interest and the solatium, which had to be paid under the provisions of the Act, are linked with the market value of the land with reference to the date of the notification under sub-section (1) of Section 4 of the Act. If a decision had been taken as early as in the year 1966, by issuance of the declaration und....
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....eting the acquisition proceedings. It is by operation of law as contained in the statute. Merely because such a provision is not found in an enactment, it does not mean limitation is not a bar at all. If such a prescription is not there expressly in any enactment it is not possible to hold that such an acquisition has lapsed relying on the provisions contained in the Land Acquisition Act. In other words, the provisions of the Land Acquisition Act cannot be read into the Act or such similar statutes. But nonetheless in order to decide what is the reasonable time within which authorities have to exercise their power either for issue of a final notification or for passing of the award is concerned, certainly the Parliament intendment as contained in this provision cannot be completely lost sight of. On the contrary, it acts as a guide. It expresses the will of the Parliament. It has to be given due weight. When this acquisition proceedings were delayed endlessly and land owners were deprived of just compensation under law and consequently the constitutional right was violated, the Parliament amended the Land Acquisition Act prescribing the time limit. According to the Parliament, one ....
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....er the statute, having regard to the fact that the right to property is a constitutional right and the person whose land is sought to be acquired is entitled to compensation at the market rate, such a compensation has to be paid to him at the earliest and therefore, the power of acquisition should be exercised within a reasonable time so that the person who lost the land is duly compensated at the earliest point of time. 36. In the light of the aforesaid legal position, we have to decide the writ petitions on the basis of the facts of this case. The facts are not in dispute. The petitioners' lands were notified for acquisition under Section 1(3) and Section 3(1) and Section 28(1) of the KIAD Act on 19.04.1997. After the issuance of the said notification admittedly, all the petitioners have sold the lands, which were notified for acquisition under different registered sale deeds on 07.08.1997 i.e., within 3 1/2 months from the date of preliminary notification. The first final notification under Section 28(4) of the Act came to be issued on 20.07.1999. In the said final notification these lands were not included. Therefore, they have no cause or occasion to challenge the said ....
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....sition, the final notification ought to have been issued within a reasonable time of one year and the award ought to have been passed within a reasonable time of two years from the date of final notification and in the instant case, the final notification had been issued nearly after five years from the date of preliminary notification and the award having been passed nearly after 4 years 8 months from the date of final notification, the entire acquisition proceedings lapses. Certainly, the said ground would have been a valid ground for the petitioners, if they had not sold their property immediately after the preliminary notification. On the day they filed the writ petitions they were not the owners of the property. The principle underlying acquisition being vitiated on account of delay is, once a preliminary notification is issued, the compensation payable being the market value, the said value is pegged to the date of preliminary notification. Any delay in issuance of final notification and passing of the award determining compensation would obviously affect the interest of the land owners because they are paid compensation on the basis of the market value prevailing on the date....