TaxTMI 
TaxTMI 
2021 (3) TMI 1448
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.... issued under Section 28(4) of the KIAD Act at Annexures-C & D respectively to the writ petition. The petitioner sought for a declaration that the acquisition proceedings initiated under the KIAD Act had lapsed as per Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the '2013 Act' for the sake of brevity) in respect of the following lands: Sl. No. Village Sy. No . Extent 1 Hosakerehalli 71/2 7A 6G 2 Pantharpalya 30 1A 23G 3 Pantharpalya 26 1A 08G 4 Pantharpalya 27 1A 02G 5 Pantharpalya 28 20 guntas 6 Pantharpalya 29 33 guntas 7 Pantharpalya 31 08 guntas 8 Pantharpalya 32 26 guntas 9 Pantharpalya 33 2A 1G 10 Pantharpalya 34 1A 31G 11 Pantharpalya 35 1A 08G 12 Pantharpalya 36 1A 10 G 13 Pantharpalya 45 2A 16G 3. According to the appellant/petitioner, the lands were acquired by late Patel Chikkahanumaiah under the respective inams abolition proceedings. Later, the lands were settled amongst the family me....
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....itions and those were not considered by the learned Single Judge. He submitted that the acquisition of the lands for the benefit of respondent No. 4 is not in accordance with law and that the acquisition may be quashed insofar as the aforesaid extent of lands are concerned. The learned counsel for the appellant further submitted that there are certain additional documents which have to be considered in this appeal. If the same are considered, the impugned judgment would have to be then set aside. 9. Per contra, learned Senior Counsel appearing for Respondent No. 4 as well as learned counsel appearing for the Karnataka Industrial Areas Development Board ('KIADB' for short) submitted that the learned Single Judge has rightly dismissed the writ petition for two main reasons: firstly, that the appellant herein suppressed the fact that he had earlier approached this Court in W.P. Nos. 43358-59/2003 assailing the very same acquisition process. Those writ petitions were partly allowed by order dated 18.12.2003, inasmuch as, 40% of the acquisition was quashed, whereas 60% of the acquisition was sustained against the appellant herein. The appellant as well as respondent No. 4 had....
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....Petitioners lands are concerned. ii) Issue a Writ in the nature of Certiorari there by quashing the declaration notifications issued u/s. 28(4) of the KIAD Act 1966 bearing No. CI 196 SPQ 98 dated 08.04.2003, 05.07.2003 produced and marked as ANNEXURE-C and D respectively in so far as the Petitioner's lands are concerned. iii) Declare that the Proceedings initiated under the KIAD Act 1996 in so far as the Petitioner's lands are concerned are lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. iv) Issue any appropriate writ, order or directions as this Hon'ble Court deems fit to grant in the circumstances of the case, in the ends of justice and equity." 13. On perusal of the same, it would clearly indicate that in the writ petition, petitioner had sought a two-fold prayer: one, seeking quashing of the acquisition notifications and the second, seeking a declaration that the acquisition of the lands in question had lapsed under Section 24(2) of the 2013 Act. 14. As far as first prayer is concerned, the filing of the writ petition seeking relief of quas....
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....reement with the finding of the High Court on this issue." 17. Therefore, the appellant herein could not have assailed the acquisition for the second time by filing the writ petition. Hence, the writ petition was liable to be dismissed on the ground of res judicata. Even if the learned counsel for the appellant now contends that the appellant had certain other documents to be produced, we think that the same cannot be permitted to be furnished as the principles of constructive res judicata would also apply. 18. The relevant judgments on this appeal of the matter are as under: (a) The decision of the Apex Court in M. Nagabhushana vs. State of Karnataka, [2011 (3) SCC 408], (M. Nagabhushana) in respect of acquisition for the very same project under consideration on the principles of constructive res judicata and principles of analogous to the same can also be usefully cited as follows: "In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of constructive res judicata, as explained in Explanation IV to Section 11 CPC, are also applicable to writ petitions." (b) The Apex Court, in....
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....s been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. It was further held that Section 11 of the CPC applies to the public interest litigation as well but it must be proved that the previous litigation was the public interest litigation, not by way of a private grievance, which was bonafide which is common and is agitated in common with others. (e) In fact, in Manipur Vasant Kini vs. Union of India & Others, [1998 (3) KLJ 121], (Manipur Vasant Kini), a Division Bench of this Court has held that principle of res judicata applies even to public interest litigation initiated under Article 226 of the Constitution of India, even though such proceedings are not governed by the Code of civil procedure. A decision given on merits in respect of a public right claimed by the petitioners in common with others, would bind not only the petitioners, but also all other persons interested in such right and would operate as res judicata barring subsequent petition in respect of same matters. (f) Nagaraj (Dead) by LRs And Others vs. B.R. Vasudeva Murthy And Others, [2010 (3) SCC 353], (Nagar....
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....w ground under Section 24(2) of the 2013 Act by contending that even if the earlier round of litigation did not lead any fruitful result and although the acquisition was upheld, nevertheless on the basis of Section 24(2) of the 2013 Act, the acquisition of land in question must be deemed to have lapsed. In that regard, it is not necessary for us to dwell into the matter afresh, inasmuch as the Hon'ble Supreme Court has already decided the issue in the case of Anasuya Bai. That judgment has been followed by this Court in the case of the D. Sharanappa and Others vs. State of Karnataka, Department of Commerce and Industries, represented by its Secretary and Others, [ILR 2018 KAR 3250], (D. Sharanappa) (Judgment authored by one of us, Nagarathna. J.), wherein it has been categorically held that Section 24(2) of 2013 Act is not applicable to an acquisition proceeding initiated under the provisions of the KIAD Act. 22. Before considering this point, it would be relevant to extract Section 24(2) of 2013 Act. Section 24 of 2013 Act reads as under: "24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases: (1) Notwithstanding anyth....
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....ard has been made under the Land Acquisition Act, in which case the more beneficial provisions of the 2013 Act relating to determination of compensation shall apply, or where an award has been made under Section 11, land acquisition proceedings shall continue under the provisions of the Land Acquisition Act as if the said Act had not been repealed. 12. To Section 24(1)(b) an important exception is carved out by Section 24(2). The necessary ingredients of Section 24(2) are as follows: (a) Section 24(2) begins with a non-obstante clause keeping sub-section (1) out of harm's way; (b) For it to apply, land acquisition proceedings should have been initiated under the Land Acquisition Act: (c) Also, an award under Section 11 should have been made 5 years or more prior to the commencement of the 2013 Act; (d) Physical possession of the land, if not taken, or compensation, if not paid, are fatal to the land acquisition proceeding that had been initiated under the Land Acquisition Act: (e) The fatality is pronounced by stating that the said proceedings shall be deemed to have lapsed, and the appropriate Government, if it so chooses, ....
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....n or not especially the compensation is not paid or deposited in Court such proceedings deem to have been lapsed. In the instant case, it is not the case of the respondent that award is not required to be passed under the provisions of the LA Act. When the award is required to be passed under the LA Act, the respondents cannot contend that the provisions of the new Act cannot be made applicable on account of nonpayment of compensation within a period of five years.' 29. This approach of the High Court, we find, to be totally erroneous. In the first instance, the matter is not properly appreciated by ignoring the important aspects mentioned in para 28 above. Secondly, effect of non-applicability of Section 11-A of the old LA Act is not rightly understood. The High Court was not oblivious of the judgment of this Court in M. Nagabhushana case which is referred by it in the aforesaid discussion itself. This judgment categorically holds that once the proceedings are initiated under the KIAD Act, Section 11-A of the old LA Act would not be applicable. Such an opinion of the Court is based on the following rationale: (M. Nagabhushana case, SCC pp. 420-22, paras 29-36) ....
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....d Act do not apply to the BDA Act. Subsequently, the Constitution Bench of this Court in Offshore Holdings (P) Ltd. v. Bangalore Development Authority, held that Section 11-A of the said Act does not apply to acquisition under the BDA Act. 33. The same principle is attracted to the present case also. Here also on a comparison between the provisions of the said Act and the KIAD Act, we find that those two Acts were enacted to achieve substantially different purposes. Insofar as the KIAD Act is concerned, from its Statement of Objects and Reasons, it is clear that the same was enacted to achieve the following purposes: 'It is considered necessary to make provision for the orderly establishment and development of industries in suitable areas in the State. To achieve this object, it is proposed to specify suitable areas for industrial development and establish a Board to develop such areas and make available lands therein for establishment of industries.' 34. The KIAD Act is of course a self-contained code. The said Act is primarily a law regulating acquisition of land for public purpose and for payment of compensation. Acquisition of land under the s....
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....tion 24(2) of 2013 Act, is not applicable to an acquisition under the BDA Act and also in so far as acquisition under the KIAD Act is concerned. Therefore, the aforesaid dictum is conclusive and is squarely applicable to the case on hand. Section 24 of 2013 Act does not apply to acquisition initiated under provisions of KIAD Act. Therefore, point No. 3 could be accordingly answered. Thus, from the aforesaid dicta of the Hon'ble Supreme Court, the applicability of Section 24 of 2013 Act to acquisition of land under KIAD Act is excluded. 27. Moreover, the scheme and object of KIAD Act is different from LA Act, 1894. The KIAD Act has been enacted by Karnataka Legislature to make special provisions for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein, and for that purpose to establish an Industrial Areas Development Board and for purposes connected with the matters aforesaid. Under Section 3(1), the State Government may, by notification, declare any area in the State to be an industrial area for the purposes of this Act along with the limits of the area to which it....
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....ction (5), the State Government may, by notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorised by it in this behalf within thirty days of the service of the notice. (7) If any person refuses or fails to comply with an order made under sub-section (5), the State Government or any officer authorised by the State Government in this behalf may take possession of the land and may for that purpose use such force as may be necessary. (8) Where the land has been acquired for the Board, the State Government, after it has taken possession of the land, may transfer the land to the Board for the purpose for which the land has been acquired." 28. Section 29 deals with payment of compensation, which is extracted as under: "29. Compensation: (1) Where any land is acquired by the State Government under this Chapter, the State Government shall pay for such acquisition compensation in accordance with the provisions of this Act. (2) Where the amount of compensation has been determined by agreement between the State Government and the person to be co....
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....ealt with the provisions dealing with enhancement of compensation by the reference Court by the land owner seeking a reference for a higher compensation. Part IV dealt with apportionment of compensation, while Part V of the said Act concerned with payment. Acquisition of land for companies was dealt with in Part VII of the said Act and a special procedure was prescribed. Part VIII pertained to miscellaneous provisions. 32. Revisiting the words of Section 24 of the 2013 Act, what is significant to note is the fact that the said Section expressly refers to land acquisition proceedings initiated under the LA Act, 1894. The said Section-does not incorporate the words "or proceedings initiated under any other enactment". Therefore, the expression "land acquisition proceedings initiated under the LA Act, 1894" are significant and must be given its natural and plain meaning and the said expression cannot be given an expansive interpretation by adding words to the provision, in the absence of the provision itself giving rise to any such implication. In this regard, the rules of interpretation of a statute would become relevant and reliance could be placed on guiding principles of interp....
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....nder any other Central or State enactment. Therefore, the words "acquisition proceedings initiated under any other enactment" cannot be added or supplemented by the Court after the expression "in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894" under both sub-sections 1 and 2 of Section 24 of 2013 Act. Further, the short title of Section 24 of 2013 Act reads as "Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases." This is another indication that Section 24 applies only to those acquisition "initiated" under the provisions of LA Act, 1894. 35. Further, Section 24 creates a new right in favour of land owners in as much as they are entitled to relief under certain circumstances as stipulated in Section 24 of the Act. One such relief is under subsection (2) of Section 24 of the Act, dealing with lapse of acquisition by a fiction. It is a deeming provision, provided the stipulations therein are complied with or the conditions mentioned therein exist. One overbearing condition is that the acquisition must have been initiated under the provisions of LA Act, 1894. Thus, if acquisition is initiated unde....
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....d to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals." 40. Therefore, what is saved under Section 114 of 2013 Act are only those acts and actions initiated under the provisions of the LA Act, 1894, which ought to be saved having regard to the provisions of Section 6 of the General Clauses Act, 1897. Section 6 of the General Clauses Act, 1897, reads as under: "6. Effect of repeal.-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not.- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or....
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....ated under the provisions of the KIAD Act are "land acquisition proceedings initiated under the provisions of the LA Act, 1894". 42. As already observed, Section 24 of the 2013 Act creates a new right in the land owners. For the exercise of said right, certain conditions have to exist, the most significant of them being, the initiation of proceedings for acquisition under the provisions of the LA Act, 1894. Therefore, the said words must be given a natural interpretation and not an expansive or wide interpretation, so as to extend the right under Section 24 even in respect of and owners whose lands are subjected to acquisition under any State enactment, such as the KIAD Act or BDA Act or Karnataka Urban Development Act, 1987 (KUDA Act). In fact, the Parliament itself has been conscious of the fact that 2013 Act repeals and substitutes only LA Act, 1894, and not any other Central enactment or for that matter any other State enactment dealing with acquisition of lands. This is evident from Section 105 of the 2013 Act, which reads as under: "105. Provisions of this Act not to apply in certain cases or to apply with certain modifications: (1) Subject to sub-section (3), the....
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.... 6. The Metro Railways (Construction of Works) Act, 1978 (33 of 1978). 7. The National Highways Act, 1956 (48 of 1956). 8. The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962). 9. The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952). 10. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948). 11. The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957). 12. The Electricity Act, 2003 (36 of 2003). 13. The Railways Act, 1989 (24 of 1989)." 44. Therefore, Parliament itself has listed the Central enactments to which 2013 Act does not apply. This is because Parliament was conscious of the fact that LA Act, 1894 was substituted by the 2013 Act, which is distinct and different from the other Central enactments enumerated in the Fourth Schedule to the 2013 Act or State enactments. 45. In the circumstances, it is concluded and held that Section 24 does not take within its scope nor does it apply to, acquisitions which have been initiated under the provisions of any other enactment particularly, State e....
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....e acquisition has lapsed. More pertinently, having regard to the judgments of the Hon'ble Supreme Court in the case of M. Nagabhushana and Anasuya Bai, which are directly under the provisions of KIAD Act, the judgment in Ram Chand's case, which is concerning a situation prior to the insertion of Section 11-A to 1894 Act would also not apply. Consequently, the judgment of this Court in H.N. Shivanna cannot be held to be good law so as to have a binding effect. As already noted, H.N. Shivanna has ignored the dictum of the Hon'ble Supreme Court in M. Nagabhushana. Further, Anasuya Bai has also relied upon, inter alia, M. Nagabhushana to set aside the judgment of the Division Bench of this Court. Further, this Court in Ashwathanarayana, did not refer to the judgments of the Hon'ble Supreme Court in Offshore Holdings (P) Limited and Girnar (3), but, reliance was placed on H.N. Shivanna to grant relief to the petitioners therein. But in view of the judgment of the Hon'ble Supreme Court in Bangalore Development Authority, which arose from the judgment of this Court in Ashwathanarayana, it could be observed that H.N. Shivanna is no longer good law. Therefore, the petiti....