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2012 DIGILAW 494 (KAR)

Chikkanna v. State of Karnataka

2012-06-18

S.ABDUL NAZEER

body2012
ORDER S. Abdul Nazeer, J.: Petitioner was the owner of the lands bearing Sy. Nos. 20/1 measuring 9 guntas, 29/2 measuring 3 acres 39 guntas, 30/1 measuring 1 acre 21 guntas, 30/4 measuring 1 acres 7 guntas and 79 measuring 1 acre 15 guntas of Hinnaki Village, Jigani Hobli, Anekal Taluk, Bangalore Urban District. The said lands have been acquired by the State Government for a housing scheme. The petitioner has agreed for passing an award by consent under Section 11(2) of the Land Acquisition Act, 1894. In this connection, agreements have been entered into between the petitioner and the 4th respondent on 3.2.2009. Consent awards were passed by the 4th respondent on 4.2.2009. Possession of the land was taken on 15.10.2011. Thereafter, the petitioner filed a representation at Annexure-E dated 14.3.2012 requesting the 4th respondent to permit him to avail the benefit of the scheme at Annexure-C dated 2.12.2010 whereby the State Government has decided to allot the developed land to the land owners in the ratio of 60:40 in lieu of compensation. Since the said representation has not been considered, the petitioner has filed this writ petition for a mandamus directing the 4th respondent to consider the same. 2. Learned Counsel for the petitioner submits that the petitioner is entitled to avail the benefit of the scheme at Annexure-C dated 2.12.2010 as his lands have been acquired. He has made a representation as per Annexure-E dated 14.3.2012 requesting the 4th respondent to grant him the benefit under the scheme. It is further submitted that in M/s. Sun Agro Tech Floriculture Unit and Others Vs. State of Karnataka and Others (W.P. No.2650/2007 disposed of on 21.07.2011), this Court has allowed the writ petition and has directed the competent authority to consider a similar representation in accordance with law. The petitioner is also entitled for the similar relief in this writ petition. 3. On the other hand, learned Counsel for respondent Nos.3 and 4 submits that the petitioner is not entitled to avail the benefit of the scheme at Annexure-C. It is argued that after the final notification dated 2.11.2006, the consent awards were passed on 4.2.2009. He has drawn my attention to the consent awards produced along with the statement of objections as also the agreements entered into between the parties and the indemnity bonds executed by the petitioner in terms of the agreements. 4. He has drawn my attention to the consent awards produced along with the statement of objections as also the agreements entered into between the parties and the indemnity bonds executed by the petitioner in terms of the agreements. 4. I have carefully considered the arguments of the learned Counsel for the parties made at the Bar and perused the materials placed on record. 5. It is not in dispute that the lands of the petitioner have been acquired by the State Government for the benefit of the 3rd respondent. After the declaration, the petitioner has informed the 4th respondent by his letter at Annexure-R1 dated 4.12.2008 that suits are pending in respect of lands and that he will receive the compensation as per the agreements after solving the differences. The agreements have been entered into between the petitioner and the 4th respondent as per Annexures-R4 and R9 dated 3.3.2009 and 3.2.2009 respectively. The terms and conditions of R4 and R9 are similar. The relevant clauses in the agreement at R-4 are as under: "This agreement has been issued after a thorough discussion on all the points pertaining to the acquisition of the lands of the owners. The parties to this agreement have spontaneously, willingly and with full knowledge of the facts and consequences of the agreement, have entered into this agreement. For the land or building or trees covered under this agreement for which compensation is mutually determined in this agreement by voluntary consent, the owners shall not seek enhancement of compensation, under Section 18 of the Land Acquisition Act, 1894. Now therefore, in consideration of the sum of Rs.93,50,000-00 (Rupees Ninety Three Lakhs Fifty Thousand Only) representing the full and final settlement paid by the Karnataka Housing Board to the owner (the receipt of which the owners are hereby acknowledges) the owners are hereby agrees with the Board as follows: 1. The owners have received a sum on Rs.93,50,000-00 (Rupees Ninety Three Lakhs Fifty Thousand Only). 2. The owners have received a sum on Rs.93,50,000-00 (Rupees Ninety Three Lakhs Fifty Thousand Only). 2. If hereinafter it transpires that the owner is not entitled at all or is not exclusively entitled to the entire amount of compensation payable in respect of the said property or if the Govt./Karnataka Housing Board shall be required to pay compensation to any other person the owner shall on demand, refund to the Board and said sum of Rs.93,50,000-00 (Rupees Ninety Three Lakhs Fifty Thousand Only) such lesser sum as may be determined as refundable by him to Karnataka Housing Board and shall also indemnify the Board against any loss or damage suffered or any cost, charges of expenses incurred Govt./Karnataka Housing Board, Bangalore by reason of the payment to him. 3. Without prejudice to any other remedies for the enforcement of any refund or indemnity the Govt./Karnataka Housing Board, Bangalore, may recover any refund or any sum due under this agreement as arrears of land Revenue." 6. The petitioner has filed affidavits as per Annexures-R3 and R7 in this regard. The indemnity bonds as per Annexures-R5 and R8 have been filed in furtherance of the terms of the agreements. On the basis of the agreements, consent awards were passed on 4.2.2009 as per Annexures-R2 and R6. 7. Section 11(2) of the Land Acquisition Act, 1894, provides for passing the award in terms of the agreement entered into between the persons interested in the land and the Land Acquisition Officer. It states that not withstanding anything contained in sub-section (1) of the Act, if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement 8. The Apex Court in State of Karnataka and Another Vs. The Apex Court in State of Karnataka and Another Vs. Sangappa Dyavappa Biradar and Others [2005 (2) AIR SCW 1775] has held that when the consent awards were passed, statements were also made by the respective villagers declaring that they would not approach any Court for enhancement of the compensation for any other reason, the application in terms of Section 18 of the Act before the Special Land Acquisition Officer seeking reference to the Civil Court for determination of quantum of compensation were not maintainable. 9. In the instant case, in terms of the agreements at Anenxures-R4 and R9, the Board has agreed to pay a sum of Rs.93,50,000/- towards compensation in full and final settlement. As has been notice above, the petitioner has also filed affidavits and the indemnity bonds in furtherance of the agreements. Based on the agreements, consent awards dated 4.2.2009 were passed as per Annexures-R2 and R6 respectively. When the petitioner has received the compensation in terms of the agreements in full and final settlement, he cannot claim the benefit of the scheme at Annexure-C, which is beyond the terms of the agreements as also the consent awards. Thus, the petitioner is not entitled to claim the developed land in lieu of the compensation in accordance with the scheme referred to above. 10. It is well established that no one can ask for a mandamus without a legal right. The applicant must show that he has a judicially enforceable right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. A mandamus cannot be issued to direct an authority to do a thing, which it has no legal power to do [See Mani Subrat Jain Etc. Vs. State of Haryana and Others ( AIR 1977 SC 276 ). When the petitioner has no legal right to claim the benefit of the scheme at Annexure-C, because of the consent awards, he cannot seek a writ of mandamus to consider his representation wherein he has sought for availing the benefit of the scheme at Annexure-C. 11. It is contended by the learned Counsel for the petitioner that in W.P. No.2650/2007, this Court has directed the Housing Board to consider a similar representation by order dated 21.7.2011. It is contended by the learned Counsel for the petitioner that in W.P. No.2650/2007, this Court has directed the Housing Board to consider a similar representation by order dated 21.7.2011. It is further contended that, in obedience of the said order, the Housing Board has considered the representation and has permitted petitioners therein to avail the benefit of the scheme. First of all, the petitioner has not produced any materials to show that the petitioners in W.P.No.2650/2007 have been granted the benefit of the scheme at Annexure-C. This Court has only directed the respondents therein to consider the application of the petitioners in accordance with law. Assuming that the 4th respondent has illegally permitted the petitioners in the said writ petition to avail the benefit of Annexure-C scheme, that cannot be a ground for allowing this writ petition and permitting the petitioner to avail the benefit of the scheme on the ground of discrimination. It is settled that a party cannot claim that since something wrong has been done in another case, direction should be given for doing another wrong. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment pre-supposes is the existence of similar legal foothold. No one has a right to claim performance of an unlawful or illegal act. The jurisdiction under Article 226 is not intended to perpetuate illegalities, but to strike at them. If a person who has a legal right is denied the benefit of it, while others having a similar right are given the benefit of such right, then there is discrimination, and a mandamus may be issued to ensure that he also gets a similar benefit. But, if a person who does not have a right is given a benefit contrary to law, then the illegal act itself will be struck down and there can never be a mandamus to repeat the illegal act to favour others (See Union of India & Another Vs. International Trading Co. & Another, [ 2003 (5) SCC 437 ]. 12. For the reasons stated above, I decline to entertain this writ petition. It is accordingly dismissed. No costs. Writ Petition dismissed.