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Karnataka High Court · body

2010 DIGILAW 1069 (KAR)

B. R. Pathi v. Special Land Acquisition Officer

2010-10-06

D.V.SHYLENDRA KUMAR

body2010
Judgment : Issue rule. 2. This matter has come up for further orders. 3. The order passed by this Court on 1.10.2010 reads us under: “This writ petition is listed for taking steps in respect of unserved 6th respondent. It is noticed that 6th respondent has residence at Bommanahally Village, Begur Hobli, Bangalore South Taluk, which is the same place where respondents 2 to 5, who are all brothers of 6th respondent, being children of B.K. Lakshmaiah, are residing. Respondents 2 to 5 are served but are not represented. In the circumstances, learned counsel for the petitioner has filed a memo for holding service on 6th respondent as sufficient as the notice issued to 6th respondent has been returned with postal shara “no such person” and “address insufficient” on two different occasions when notice was sought to be served on him, where as his brothers respondents 2 to 5 have been served at the same address and acknowledgements for having received notices by them are available in Court records. In the circumstances, service of notice on 6th respondent is held sufficient. Rule is issued as a perusal of the impugned order at Annexure-D passed by the first respondent Land Acquisition Officer disclose much more illegality and even a possible fraudulent order being passed by the first respondent to the detriment of the petitioner and for enriching respondents 2 to 6, particularly 6th respondent. Even while there was a dispute and the matter was required to be referred to the Civil Court for resolution of the dispute, the Land Acquisition Officer has ventured to determine the entire entitlement on his own and to the exclusion of the petitioner held that respondents 2 to 6 are entitled to receive the entire compensation amount, which is not a small sum. Therefore, first respondent is directed to be present before the Court along with relevant records on 6-10-2010, as requested by the learned Government Advocate. Furnish a copy of this order to learned Government Advocate”. 4. Writ petition is essentially, one for quashing Annexure-B (copy of the award dated 4.1.2007) and Annexure-D (copy of the order dated 27.5.2008) and for further amendment to direct the 1st respondent-the Special Land Acquisition Officer, national High Ways for High Way No.7, Bangalore, to refer the dispute between the petitioner-the owner and respondents 2 to 7. 5. 4. Writ petition is essentially, one for quashing Annexure-B (copy of the award dated 4.1.2007) and Annexure-D (copy of the order dated 27.5.2008) and for further amendment to direct the 1st respondent-the Special Land Acquisition Officer, national High Ways for High Way No.7, Bangalore, to refer the dispute between the petitioner-the owner and respondents 2 to 7. 5. On the other hand, the Civil Court has resolved the question as to the entitlement and apportionment of compensation payable in respect of the 5 guntas of land, which has a superstructured measuring about 506 Sq.mts. in Sy.No.3 of Bommanahalli Village, Begur Hobli, Bangalore South Taluk, in respect of which the first respondent has determined the compensation payable to the land owner to be a sum of Rs.79,59,961/-. 6. In terms of Annexure-B award dated 04.01.2007 passed by the Special Land Acquisition Officer and Authorised Officer has been given effect to in terms of further order dated 27.05.2008 (copy at Annexure-‘D’ to the petition) passed by the Special Land Acquisition Officer and Authorised Officer copy of which is produced at Annexure-D to the petition, wherein, the petitioners arrayed as parties claimants in the following order 1 to 7 and against the present respondents 2 to 6 (Mr. B.L. Sridhar, Mr. B.L. Babu, Mr. B.L. Somashekar, Mr. B.L. Rajshekar, Mr. B.L. Santhana Krishna) to this petition as rivals to the proceedings in the following order. 7. Under this order, the Special Land Acquisition Officer, purporting to resolve the competing claims between the petitioner and the respondents, for entitlement and apportionment of the compensation amount in respect of 5 guntas of land, in respect of which the compensation is determined at a sum of Rs.79,59,961/- in terms of the award dated 27.5.2008. Kannada 8. When translated to English: Compensation awarded in respect of 506 Sq.Mts. (5 guntas) to B.L. Sridhar, B.L. Babu, B.L. Somashekar, B.L. Rajshekar, B.L. Santhana Krishna are entitled for a sum of Rs.63,09,961/- in total. Bangalore City Co-operative Bank, Chamarajpet, Bangalore, is entitled for sum of Rs.16,50,000/- being amount that the bank can claim due to the loan raised by one Mr. B.L. Ganesh on the security of the property and therefore, the said amount representing his share in the compensation amount in respect of 5 guntas of land acquired is to be made over to the Bank. 9. B.L. Ganesh on the security of the property and therefore, the said amount representing his share in the compensation amount in respect of 5 guntas of land acquired is to be made over to the Bank. 9. The above order obviously having excluded the petitioner amongst claimants 2 to 7 figuring as applicants/claimants in the proceedings No.LAQ/NH-7/BHRC/CR/29/06-07 dated 27.5.2008 (copy at Annexure-D to the writ petition) and even without seeking for referring the matter for resolution by a civil court in terms of the provisions of subsection (4) of section 3H of the National Highways Act, 1956 (for short ‘the Act’) reading as under: “3H. Deposit and payment of amount- (4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.” And the writ petitioner being left high and dry by this course of action claiming that the petitioner has no other remedy to redress the injury, namely, the total denial of the compensation to which he is otherwise entitled to in law being son of Smt. R. Ramarathnamma along with one B.R. Sampangiramaiah and B.R. Srinivasagupta (claimants 3 and 4 before the special land acquisition officer), the present writ petition for the relief as noticed above. 10. Emergent notice had been issued to the respondents. Respondents are all served. 11. First respondent-special land acquisition officer who was represented initially by the Additional Government Advocate, is now represented by M/s. Singhania and Partners and Mr. 10. Emergent notice had been issued to the respondents. Respondents are all served. 11. First respondent-special land acquisition officer who was represented initially by the Additional Government Advocate, is now represented by M/s. Singhania and Partners and Mr. Sudeep, Advocate appears for the first respondent, who has now come up as successor to the Additional Government Advocate who was appearing for the special land acquisition officer earlier and who it appears is now Advocate for the first respondent for the reason that the National Highway Authorities for whose benefit the subject land was being acquired, namely for the purpose of construction of ‘elevated highway and six lane express way on the National Highway No.7 at 8.50 Kilometer’ on Bangalore Hosur Highway and the National Highway who were earlier dependent on the State Government and its special land acquisition officer for the purpose of acquisition for such a public purpose, it appears having now resolved to utilize the services of their own officers and not seek for the services of the officers from the State Government, particularly (as by the use of the revenue officials) the revenue department may be they had burnt their fingers and had a bitter experience. 12. It is with this background and in this state of affairs, I have both Mr. N.B. Vishwanath, learned Additional government Advocate who has filed power for the first respondent earlier and Mr. Sudeep, learned counsel who appears for first respondent as of now. 13. Be that as it may, some of the other respondents though served have remained absent. While the seventh respondent is represented by Sri B.C. Seetharma Rao, learned Advocate is not available. 14. It is in this background, the matter had come up before this court earlier and the order passed as indicated in the beginning of this order. 15. Mr. Seenappa G.V., the special land acquisition officer who has passed the order at Annexure-D present before the court and has furnished his present address and particulars which is also received and kept in the record of the writ petition. 16. Mr. 15. Mr. Seenappa G.V., the special land acquisition officer who has passed the order at Annexure-D present before the court and has furnished his present address and particulars which is also received and kept in the record of the writ petition. 16. Mr. Seenappa G.V. has stated that he has been transferred to the office of the Deputy Commissioner, Chikkaballapur and now it is attached to the Urban Development Cell of Chikkaballapur Town with the designation ‘Project Director’ and has been functioning so for the past about two years; that he had continued as a special land acquisition officer till November 2008 and thereafter he is working in the officer of the deputy Commissioner, Chikkaballapur. 17. With regard to the discrepancies noticed, the special land acquisition officer states that he cannot remember the details at this point of time unless the records are looked into. However, Mr. Vishwanath, learned Additional Government Advocate, who had filed power earlier pleads that records are not available today and given some time it can be made available, before the court. 18. the special land acquisition officer was directed to be present before the court only for the reason that the manner of disbursement of a huge amount of Rs.79,59,961/- in favour of only a few persons, that too who had figured as rivals in the application filed by as many as seven persons amongst whom figured the petitioner as fifth applicant and to the exclusion of all private applicants except for the Manager, City Co-operative Bank Limited, Bangalore who has been apportioned a sum of Rs.16,50,000/- as the amount belonging to one B.L. Ganesh who again figured as second respondent or a second rival in the application, only indicates that the entire amount has been disbursed in favour of the persons figuring as rivals to the determination dated 27.5.2008 and nothing in favour of the applicants though in terms of the statutory provisions noticed above, the disbursement of the amount should have awaited determination by the civil court and it was the duty of the special land acquisition officer to have referred the matter for resolution by the civil court whereas the special land acquisition officer has himself embarked upon such determination and even disbursement. 19. 19. Such course of action is not contemplated in law and to the detriment of the petitioner and others who were applicants before the special land acquisition officer in the proceedings dated 27.5.2008, naturally creates an impression of the special land acquisition officer acting in a hasty and preemptive manner to the detriment of the petitioner and possibly due to any collusion between the special land acquisition officer and the beneficiaries who have received the amount. 20. Mr. Seenappa, the special land acquisition officer who is before the court has stated that the amount has been disbursed jointly by the special land acquisition officer and the Highway authorities by means of cheques made over to the respondents in terms of the Award and further determination dated 27.5.2008 (copy at Annexure-D) and this is the development hitherto, but for further details he will have to refer to the records. 21. This court exercising the power of judicial review of administrative action will only look into the order passed by the administrative authorities and quasi judicial authorities as to the legality and the tenability of such orders and will not normally embark on either enquiring into the conduct and manner of functioning of such nor is it necessary for other quasi judicial functionary to appear before this court and explain the manner of conducting the proceedings, as quasi judicial function is not akin to an administrative function but is a determination on par with a judicial determination but by an administrative functionary. In such a situation, the quasi judicial functionary has to act only in terms of the statutory provisions and nothing else. 22. Yet another peculiar aspect in this case which is obvious, is that the award is passed by the predecessor officer by name C. Mohammed Kaleemullah, KAS, the special land acquisition officer and further order is passed by the successor special land acquisition officer, namely Seenappa G.V., who is present before the court today. 23. While the award per se cannot be found fault with as it as a determination of compensation in respect of lands acquired, in the absence of a further reference sought to the civil court for enhancement etc., there is no need to quash this award per se whether the award is passed bona fide or otherwise. 24. 23. While the award per se cannot be found fault with as it as a determination of compensation in respect of lands acquired, in the absence of a further reference sought to the civil court for enhancement etc., there is no need to quash this award per se whether the award is passed bona fide or otherwise. 24. While the award if not quashed, it may be necessary to examine the circumstances under which the award is passed by then special land acquisition officer as the whole proceedings is murky and seeks of possible favoritism, nepotism and victimization of persons like the petitioner. 25. In the circumstances, further order dated 27.5.2008 passed by the special land acquisition officer is not sustainable in law at all as the entitlement between the petitioner and other competitors should have been resolved only by the civil court and not by the special land acquisition officer. Therefore, it is inevitable to quash the order at Annexure-D by issue of a writ of certiorari. 26. Therefore while writ petition is allowed and rule is made absolute, it is further necessary to ensure awareness to the manner in which said proceedings go on and particularly in the matter of land acquisition proceedings and the further manner of identifying the persons who are entitled for receiving compensation and apportionment if there are competing claims etc.,. 27. As this court is not equipped to conduct such enquiry nor is it necessary to retain this petition on board only for such purpose, the Registrar General of this court is directed to forward a copy of this order along with the relevant records to the Karnataka Lokayukta and the Karnataka Lokayukta to hold an inquiry into the circumstances under which the said awards came to be passed by the special land acquisition officer, and also in the matter of determining the compensation to the land owners whose land had come to be acquired in the context of the scheme known as construction of ‘elevated highway and six lane express way on the National Highway No.7 at 8.50 kilometer’ on Bangalore Hosur Highway. 28. 28. The Karnataka Lokayukta also to enquire into the conduct of the special land acquisition officer who had passed the Award and also into the conduct and bona fides of the special land acquisition officer who has passed the order at Annexure-D and to take the enquiry to its logical conclusion, to ascertain if any untoward development, misconduct etc., are found in the course of such enquiry. 29. The matter is referred to the Karnataka Lokayukta as this court can take judicial notice of the level of corruption that has crept in such acquisition proceedings and the public exchequer being drained at the cost of the State and the citizens, to enrich the coffers of private persons whether they are entitled to such compensation or otherwise and bona fide users of land, who are the real land owners are being left in the lurch while trespassers, outsiders, tricksters are conferred with bounties by the special land acquisition officer by misusing and abusing their power in an arbitrary and whimsical manner. 30. It is for this reason, the matter requires further enquiry, investigation, scrutiny and examination at the hands of the Karnataka Lokayukta, to take the proceedings to its logical conclusion. 31. If any such misconduct or impropriety is found about said land acquisition officers, it is also open to the State Government to recover the amount personally from them if any loss has occurred to the beneficiaries or the State Government, by the misuse or abuse of power by the special land acquisition officers. 32. It is further directed that the first respondent should ensure that the amount already disbursed in favour of the respondents is recovered and kept in deposit before the civil court, to abide by the determination by the civil court for the entitlement amongst the various persons who figured in the order dated 27.5.2008 (copy at Annexure-D to the writ petition). 33. A writ of mandamus is issued to the first respondent-special land acquisition officer to refer the matter to the civil court in terms of sub-section (4) of section 3-H of the Act and the amount which is to be recovered forthwith from the person who have already received to be deposited before the civil court. 34. 33. A writ of mandamus is issued to the first respondent-special land acquisition officer to refer the matter to the civil court in terms of sub-section (4) of section 3-H of the Act and the amount which is to be recovered forthwith from the person who have already received to be deposited before the civil court. 34. Such course of action should be initiated within three months from today and the outcome placed before the civil court with such records to be placed before the civil court along with the reference order. 35. The reference to be made forthwith and at any rate not later than six weeks from the date of receipt of a copy of this order.