Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 552 (KAR)

L. VENKATESH v. STATE OF KARNATAKA

2013-04-22

B.S.PATIL

body2013
ORDER B.S. PATIL, J.-Petitioners were the owners of land bearing Sy. No. 78 of Arehalli Village in Doddaballapur Taluk totally measuring 12 acres 6 guntas. 2. The case of the petitioners is that large extent of land has been acquired by the State Government for the benefit of the Karnataka Industrial Area Development Board (for short, 'the KIADB') for industrial purpose including the land of the petitioners. Notification under Section 28(1) of the Karnataka Industrial Area Development Act (for short, 'the Act') was issued on 22.05.2005, followed by the final declaration issued under Section 28(4) of the Act on 01.03.2005. Petitioners had earlier approached this Court challenging the acquisition proceedings by filing W.P. No. 11327/2006. In the said writ petition, petitioners had made it clear that they had no objection for acquisition of land for industrial purpose, but their grievance was only directed against the respondent not leaving adequate space in between the industrial plots and the village consisting of dwelling houses, so as to ensure that the industries do not cause pollution of all kinds. The said writ petition was disposed on 19.12.2007 with a direction to the respondents to consider the representation made by the petitioners to leave adequate space of 100 meters. between the village boundary and the industries to be set up. 3. Pursuant to this order, the Special Land Acquisition Officer, KIADB, considered the representation of the petitioners and passed an order on 25.10.2008 holding that there was no possibility of any pollution. This order passed by the Special Land Acquisition Officer was challenged in W.P. No. 3601/2010. This Court disposed of the said writ petition vide Annexure-K order dated 24.05.2012 making it clear that no specific order could be passed in the matter as it was pointed out that industries had already come up and that such of the industries which were established were not parties to the said writ petition. However, it was observed that KIADB should not have formed an industrial area without leaving the lung space and that the Pollution Control Board and the Industries & Commerce Department should desist from permitting establishment of industries adjoining the villages. In case, the villagers were to approach, they were directed not to permit industries at least within 100 meters from the village limits. 4. In case, the villagers were to approach, they were directed not to permit industries at least within 100 meters from the village limits. 4. On going through the previous litigation instituted by the petitioners, it emerges that challenge made to the acquisition has been negatived and certain observations are made by this Court to ensure that establishment of industries in the vicinity of the village should not lead to pollution and health hazard. 5. At the outset, learned counsel for the petitioners, confronted with these developments in the past culminating in the orders passed by this Court, submits that he is only confining the grievance of the petitioners to prayer 3 which is an alternative prayer made seeking a direction to the respondents to forthwith pay compensation for the lands acquired from the petitioners by fixing the date of the award notice dated 29.06.2012 as the date for determination of the market value of the land. 6. It is in this background, I have heard the learned counsel for the parties only in respect of prayer No. 3 as the other reliefs have been given up and are not required to be considered. 7. On careful perusal of the pleadings and the contentions advanced by both the parties, I find from the stand taken in the statement of objections filed by the KIADB that a draft award came to be passed by the Special land Acquisition Officer as back as on 21/27.11.2007 in respect of the petitioners. This award was sent for approval of the Government. But the same was approved by the Government only on 10.05.2012 and it is thereafter award notice was sent to the petitioners. It is thus clear from the very stand taken by the KIADB that there was a delay of nearly 5 years in the approval of the draft award which has resulted in delay in paying the compensation. 8. In the case of Ram Chand and others vs. Union of India and others, (1994) 1 SCC 44 , the Apex Court has held referring to Article 31A of the Constitution of India that the constitutional and statutory requirement of payment of market value to the persons whose lands have been compulsorily acquired cannot be circumvented and violated by keeping the land acquisition proceedings pending for several years without making an award and paying the compensation. The Apex Court, while taking note of the fact that determination of the market value is pegged to the dates of notifications issued under Sub-section (1) of Section 4 of the Land Acquisition Act, has took exception to the delay of about 14 to 21 years in the case before it in passing the awards. The Apex Court at the end of paragraph 14 has observed as under: "......... 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 urban 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 have 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 declarations under Section 6, that the lands belonging to the different cultivators, who held those lands within the ceiling limit for cultivation, were needed for public purpose, respondents should have taken steps for completion of the acquisition proceedings and payment of compensation at an early date. In the present cases, unless a justification is furnished on behalf of the respondents, can it be said that the statutory power of making an award under Section 11 has been exercised within a reasonable time from the date of declaration under Section 6? Due to escalation in prices of land, more so in this area, during the preceding two decades, in reality, the market rate, on the date of the notification under Section 4(1) is a mere fraction, of the rate prevailing at the time of its determination in the Award." 9. Learned counsel for the petitioner placed strong reliance on the judgment rendered by this Court in W.P. No. 28962/2009 disposed of on 16.09.2011 wherein this Court in some what similar circumstances has held that the date of determination of the market value has to be postponed to the date of the judgment having regard to the delay in finalizing the acquisition proceedings. This judgment has been upheld by the Division Bench of this Court in W.A. No. 1309/2012 disposed of on 25.03.2013. 10. In Bondu Ramaswamy and others vs. Bangalore Development Authority and others, (2010) 7 SCC 129 , the Apex Court has observed as under in paragraph 153.2: "Where the acquisition is for industrial or business houses (for setting up industries or special economic zones, etc.), the Government should play not only the role of the land acquirer but also the role of the protector of the land-losers. As most of the agriculturists/small holders who lose their land, do not have the expertise or the capacity for a negotiated settlement, the State should act as a benevolent trustee and safeguard their interests. The Land Acquisition Collectors should also become Grievance Settlement Authorities. The various alternatives including providing employment, providing equity participation, providing annuity benefits ensuring a regular income or life, providing rehabilitation in the form of housing or new businesses, should be considered and whichever is found feasible or suitable, should be made an integral process of the scheme of such acquisitions. If the Government or Development Authorities act merely as facilitators for industrial or business houses, mining companies and developers or colonizers, to acquire large extents of land ignoring the legitimate rights of the landowners, it leads to resistance, resentment and hostility towards the acquisition process." 11. Therefore, in my considered view, the petitioners in these matters cannot be paid compensation determined based on the market value obtained as on the date of the preliminary notification dated 22.05.2005 because there is unjustified and unexplained delay of 5 years from the date of draft award dated 21/27.11.2007 till the award is approved by the State Government (10.05.2012). If the market value of the land is paid in the year 2013 based on the determination made with reference to notification issued Section 4(1) of the Act on 22.05.2005, the amount determined becomes unrealistic and the compensation payable would be neither just nor fair. While some amount of delay in the process of finalization of the acquisition proceedings is unavoidable, the same cannot be ignored where the delay is unreasonable and unexplained. In the instant case, the delay between 2007 to 2012 in approving the award and in paying compensation is unreasonable as it has remained unexplained. 12. The landowners cannot be penalized for the delay. In the instant case, the delay between 2007 to 2012 in approving the award and in paying compensation is unreasonable as it has remained unexplained. 12. The landowners cannot be penalized for the delay. As their only available piece of land is acquired, they are entitled for payment of just and reasonable compensation. It will not be a just and reasonable compensation, in the instant case, if the market value is determined with reference to the date of preliminary notification, i.e., 22.05.2005. Hence, in my considered view, ends of justice in the present case require, keeping in mind the facts and circumstances of the case and the law declared by the Apex Court and also by this Court referred supra, that the market value shall be determined with reference to the date of approval of the award by the State Government, i.e., 10.05.2012. Therefore, the Special Land Acquisition Officer is directed to take the said date into consideration as the date for fixing the market value of the acquired land, pass a fresh award and disburse the amount within a period of six months from the date of receipt of a copy of this order.