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2022 DIGILAW 1495 (KAR)

Arun Kumar v. State of Karnataka

2022-11-22

S.R.KRISHNA KUMAR

body2022
JUDGMENT/ORDER 1. In this petition, petitioners have sought for the following reliefs:- " a) Issue a writ of certiorari or any other appropriate writ, order or direction of like nature, quashing the impugned award notice Sl.No.KIADB/Acquisition (Da) / Gail India Ltd., 01/2019-20/875 dtd.: 31/12/2021 as per Annexure-P and award No. KIADB/Land Acquisition (D4) Gail India Ltd., /01/2019-20/314 dtd.: 29/7/2021 at Annexure-Q. passed by the respondent No.2 as violated of natural justice and constitutional rights of the petitioners, in the interest of justice and equity. (a.a) Issue writ of Mandamus directing the respondent to pass award as per the New Karnataka Industrial Area Development (Amendment) Act, 2022 as per the Constitutional right considering the Market Value and schedule -I of Right to fair compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013." b) Issue any such other Writs, orders or directions as this Hon'ble Court deems fit to grant under the facts and Circumstances of the case in the interest of justice." 2. Heard learned counsel for the petitioners and learned AGA for the 1st respondent - State as well as the learned counsel for respondents 2 to 4 and perused the material on record. 3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioners, on instructions, submits that though several facts, grounds and reliefs have been urged and sought for in the petition, the petitioners are aggrieved only by the Award dtd. 29/7/2021 passed by the 2nd respondent for the purpose of contending that in the light of the undisputed fact that the Preliminary Notification under Sec. 28(2) of the Karnataka Industrial Areas Development Act, 1966 (for short 'the KIAD Act') was issued by the respondents on 27/8/2020, after coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 'the said Act of 2013'), the petitioners would be entitled to compensation in terms of the said Act of 2013 and not under the Land Acquisition Act, 1894 (for short 'the L.A.Act'), as wrongly applied by the respondents, who have erroneously passed the impugned Award under the L.A.Act and not under the said Act of 2013 and as such, the impugned award deserves to be quashed. It is also submitted on instructions that insofar as the other grounds and contentions urged in the petition except the challenge to the award, are not pressed by the petitioners. In support of his contention, learned counsel for the petitioners relies upon a decision of this Court in the case of M/s. Sri.Balaji Corporate Services and another vs. Union of India and others - W.P.No.43206/2018 c/w W.P.No.53716/2017 dtd. 21/4/2022. 4. Per contra, learned counsel for the respondents submit that since the petitioners are not satisfied with the quantum of compensation awarded by the respondents in the impugned Award, the only remedy available for the petitioners is to seek reference to the Civil Court for enhancement of compensation and on this ground also, the present writ petition is not maintainable. It is further submitted that Sec. 30 of the KIAD Act, was amended w.e.f 5/4/2022 and the same is prospective and not retrospective and would not apply to the acquisition proceedings initiated prior to 5/4/2022 and consequently, the petition is liable to be dismissed. 5. A perusal of the material on record will indicate that it is an undisputed fact that the acquisition proceedings, in relation to the subject property were initiated pursuant to the Preliminary Notification dtd. 27/8/2020, which was issued subsequent to 1/1/2014 when the said Act of 2013 came into force. Under identical circumstances, in Sri.Balaji's case supra, this Court held as under:- "12. On overall consideration of the entire material on record, the legal principles that emerge from the aforesaid discussion can be summarised as under:- (i) All awards passed and compensation payable / paid in favour of land losers pursuant to preliminary notification under Sec. 28(1) of the Karnataka Industrial Areas Development Act, 1966, issued subsequent to 1/1/2014 would have to be under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and not under the Land Acquisition Act, 1894. (ii) All awards passed and compensation payable / paid in favour of land losers under the awards or by way of agreement subsequent to 1/1/2014 in respect of KIADB acquisitions would be exempt from payment of income tax. (iii) All awards passed and compensation payable / paid in favour of land losers under the awards or by way of agreement subsequent to 1/1/2014 in respect of KIADB acquisitions would also be exempt from tax deduction at source (TDS). 13. (iii) All awards passed and compensation payable / paid in favour of land losers under the awards or by way of agreement subsequent to 1/1/2014 in respect of KIADB acquisitions would also be exempt from tax deduction at source (TDS). 13. In the result, I pass the following:- ORDER (i) W.P.No.43206/2018 and W.P.No.53718/2017 are hereby allowed; (ii) The impugned awards in W.P.43206/2018 at Annexure-AC dtd. 25/10/2018 and Annexure-AD dtd. 25/10/2018 are hereby quashed; (iii) The impugned Endorsement in W.P.43206/2018 at Annexure-S dtd. 19/9/2018 is hereby quashed; (iv) The impugned Official Memorandum at Annexure-A in W.P.No.53718/2017 dtd. 6/10/2017 is hereby quashed and respondents are directed to refund the amount deducted from the petitioners towards tax deduction at source(TDS) together with applicable from the date of deposit till the date of refund; (v) It is declared that the petitioners in both the petitions are entitled to compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; (vi) It is also declared that the compensation payable in favour of the petitioners in both the petitions is exempt from payment of income tax as well as exempt from tax deduction at source(TDS) under the Income Tax Act, 1961; (vii) The respondents are directed to pass fresh/modified awards in favour of the petitioners in both the petitions and do all such appropriate acts, deeds and things and pass/issue suitable orders, communications etc., for the purpose of payment of compensation in favour of the petitioners under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and by granting/giving exemption from payment of income tax as well as exemption from tax deduction at source(TDS) under the Income Tax Act, 1961 as expeditiously as possible and at any rate, within a period of three months from the date of receipt of a copy of this order; (viii) The respondents are directed to disburse/pay the compensation already deposited by them as per the impugned awards as expeditiously as possible in favour of the petitioners who would be entitled to receive/withdraw the same without prejudice to their rights and contentions; (ix) It is further directed that the amount(s) deposited by the respondents before this Court shall be released in favour of the petitioners who would be entitled to receive/withdraw the same without prejudice to their rights and contentions. 6. 6. Applying the principles laid down by this Court in the aforesaid judgment, I am of the considered opinion that having regard to the undisputed fact that the acquisition proceedings in relation to the subject land having been initiated on 27/8/2020 subsequent to 1/1/2014 when the said Act of 2013 came into force, the impugned award directing payment of compensation under the L.A.Act 1894, is vitiated and the same deserves to be set aside and necessary directions are to be issued to the respondents to pass fresh awards in terms of the judgment of this Court in Balaji's case supra. 7. In the result, I pass the following:- ORDER (i) The writ petition is hereby allowed and disposed of in terms of the decision of this Court in the case of M/s. Sri.Balaji Corporate Services and another vs. Union of India and others - W.P.No.43206/2018 c/w W.P.No.53716/2017 dtd. 21/4/2022. (ii) The impugned Award dtd. 29/7/2021 passed by the 2nd respondent - SLAO is hereby quashed. (iii) The respondents are directed to pass fresh / new award in terms of the aforesaid judgment referred to supra in accordance with law, as expeditiously as possible within a period of three months from the date of receipt of a copy of this order.