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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
S. ABDULNAZEER, J.
THOMAS PATRAO (DECEASED) BY L.R.
v
STATE OF KARNATAKA AND OTHERS
Writ Petition No. 9146 of 2001 (LA-KIADB)
Decided on 27th June, 2005
KARNATAKA GENERAL CLAUSES ACT, 1899 - Section 21 -Statutory power in case of notification -Power to issue -Includes power to add, alter rescind etc.,
[S. Abdul Nazeer, J]: Sec.21 of the Karnataka General Clause Act, 1899, lays down that whereby any enactment, a power to issue Notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
Cases Referred: AIR 1970 Bom. 232; AIR 1966 Bom. 194.
Followed: AIR 1970 SC 1771; ILR 2001 Kar 638; AIR 1957 SC 344; ILR 2002 Kar 4693; AIR 1987 SC 2421; AIR 1966 SC 1593; AIR 1970 SC 1576.
0bject -Stated - KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ACT, 1966 - [S. Abdul Nazeer, J]: The Karnataka Industrial Areas Development Act, 1966, is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and to generally 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.
Cases Referred: AIR 1970 Bom. 232; AIR 1966 Bom. 194.
Followed: AIR 1970 SC 1771; ILR 2001 Kar 638; AIR 1957 SC 344; ILR 2002 Kar 4693; AIR 1987 SC 2421; AIR 1966 SC 1593; AIR 1970 SC 1576.
Taking possession
Taking possession -State Government cannot be compelled to take possession of vested lands.
[S. Abdul Nazeer, J]: Though the land gets vested when the declaration was issued, the petitioner is entitled for compensation only after acquisition of the land is complete under Sec.29 of the Act. The State Government cannot be compelled to acquire the land after its vesting when it was no longer possible to effectuate the intended purpose of acquisition. Till possession is not taken, the land owner is not entitled for compensation in respect of the notified lands.
Payment of compensation
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ACT, 1966 - Section 28 -Payment of compensation -After declaration under sub-section (4), land vests in Government -Is compensation payable upon such vesting? Held, compensation is payable only after acquisition is completed and possession taken.
[S. Abdul Nazeer, J]: Having regard to the scheme of the Act, acquisition is not complete without taking possession and compensation is not payable unless the acquisition is complete. After issuance of a declaration under Section 28(4) of the Act, there is a separate procedure provided for taking possession. Sub-section (6) of Section 28 states that after the vesting of the land, 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. Sub-section (7) of Section 28 states that if any person refuses or fails to comply with an order made under sub-section (5), the State Government or any Officer authorized 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. In sub-section (8) of Section 28 it is stated that 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. Section 29 states that where the land is acquired by the State Government it shall pay compensation for such acquisition. Therefore, it is only after acquisition of the land, the land owner is entitled for compensation and not after vesting.
Payment of compensation
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ACT, 1966 - Section 29 -Payment of compensation -The word used is acquired not vested -Hence, compensation is payable only after acquisition of land and not upon vesting of land in the Government.
[S. Abdul Nazeer, J]: The word acquire has to be given a meaning in the context. In the present context it postulates change of relationship in respect of the property in question. The State Government becomes the absolute owner of the vested property after taking its possession. The intention of the legislature is clear from the language employed in Section 29 of the Act. The compensation is payable to the land owner only after acquisition of the property. If the intention of the legislature was to pay compensation after vesting of the land, the legislature world have used the word vested instead of the word "acquired" in Section 29 of the Act.
words and phrases - Acquired - Acquired -In Black s Law Dictionary (7th Edition) the meaning assigned to the word acquired is to take possession or control of . In Shorter Oxford English Dictionary one of the meanings assigned to the word acquired is to receive and to come into possession of .
Cases Referred: AIR 1970 Bom. 232; AIR 1966 Bom. 194. Followed: AIR 1970 SC 1771; ILR 2001 Kar 638; AIR 1957 SC 344; ILR 2002 Kar 4693; AIR 1987 SC 2421; AIR 1966 SC 1593; AIR 1970 SC 1576.
words and phrases - Vest - Vest -The word "vest is a word of variable import as is evident from different Indian statutes. It has not got a fixed connotation meaning in all cases that the property is owned by the person or authority in whom it vest. The meaning of the word "vest" has to be understood in the context in which it is used. In the present case, though title vests with the State Government on publication of declaration, acquisition of the land is not complete without taking possession.
Cases Referred: AIR 1970 Bom. 232; AIR 1966 Bom. 194. Followed: AIR 1970 SC 1771; ILR 2001 Kar 638; AIR 1957 SC 344; ILR 2002 Kar 4693; AIR 1987 SC 2421; AIR 1966 SC 1593; AIR 1970 SC 1576.
KARNATAKA GENERAL CLAUSES ACT, 1899 - Section 21 - Statutory power in case of notification - Section 21 -Statutory power in case of notification -Power to issue -Includes power to add, alter rescind etc., [S. Abdul Nazeer, J]: Sec.21 of the Karnataka General Clause Act, 1899, lays down that whereby any enactment, a power to issue Notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
Cases Referred: AIR 1970 Bom. 232; AIR 1966 Bom. 194. Followed: AIR 1970 SC 1771; ILR 2001 Kar 638; AIR 1957 SC 344; ILR 2002 Kar 4693; AIR 1987 SC 2421; AIR 1966 SC 1593; AIR 1970 SC 1576.
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ACT, 1966 - Damages - Section 30 -Damages -Declaration made -Land vested in Government -Possession not taken -)wners not entitled to compensation nor allowed to make any improvement -Hence principle under Section 48(2) of Land Acquisition Act should be applied -Such owners entitled are to damages. [S. Abdul Nazeer, J]: Acquisition proceedings have commenced in 1996. Though possession was not taken, title of the property vested with the State Government. The Petitioner was prevented from making any Improvement in the land. The Petitioner is not entitled to compensation as the lands are not acquired by the State Government. If acquisition of land under L.A. Act is withdrawn under sub-section (1) of Section 48 of the L.A. Act, the owner/person interested is entitled for damages suffered by them together with all costs reasonably incurred by him in the prosecution of the proceedings. However Section 48 of the L.A. Act is not applicable to the acquisition under K.I.A.D.B Act. The principle underlying Section 48(2) of the L.A. Act should be made applicable to K.I.A.D.B Act, instead of driving the land owner/person interested to Civil Court for claiming damages.
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ACT, 1966 - Preamble - Object of the Act - 0bject -Stated. [S. Abdul Nazeer, J]: The Karnataka Industrial Areas Development Act, 1966, is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and to generally 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.
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ACT, 1966 - Section 28 - Payment of compensation - Section 28 -Payment of compensation -After declaration under sub-section (4), land vests in Government -Is compensation payable upon such vesting? Held, compensation is payable only after acquisition is completed and possession taken. [S. Abdul Nazeer, J]: Having regard to the scheme of the Act, acquisition is not complete without taking possession and compensation is not payable unless the acquisition is complete. After issuance of a declaration under Section 28(4) of the Act, there is a separate procedure provided for taking possession. Sub-section (6) of Section 28 states that after the vesting of the land, 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. Sub-section (7) of Section 28 states that if any person refuses or fails to comply with an order made under sub-section (5), the State Government or any Officer authorized 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. In sub-section (8) of Section 28 it is stated that 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. Section 29 states that where the land is acquired by the State Government it shall pay compensation for such acquisition. Therefore, it is only after acquisition of the land, the land owner is entitled for compensation and not after vesting.
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ACT, 1966 - Section 29 - Payment of compensation - Section 29 -Payment of compensation -The word used is acquired not vested -Hence, compensation is payable only after acquisition of land and not upon vesting of land in the Government. [S. Abdul Nazeer, J]: The word acquire has to be given a meaning in the context. In the present context it postulates change of relationship in respect of the property in question. The State Government becomes the absolute owner of the vested property after taking its possession. The intention of the legislature is clear from the language employed in Section 29 of the Act. The compensation is payable to the land owner only after acquisition of the property. If the intention of the legislature was to pay compensation after vesting of the land, the legislature world have used the word vested instead of the word "acquired" in Section 29 of the Act.
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ACT, 1966 - Section 30 - Cancellation of acquisition - Section 30 -Cancellation of acquisition -Can be done before taking possession. [S. Abdul Nazeer, J]: The State Government is competent to cancel the notifications issued under Section 28(2) and (4) of the KIADB Act by virtue of its power under Section 21 of the Karnataka General Clauses Act and this power can be exercised before taking possession of the lands. The State Government may also exclude that area from industrial area by issuing a notification under Section 4 of the KIADB Act.
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ACT, 1966 - Taking possession - Taking possession -State Government cannot be compelled to take possession of vested lands. [S. Abdul Nazeer, J]: Though the land gets vested when the declaration was issued, the petitioner is entitled for compensation only after acquisition of the land is complete under Sec.29 of the Act. The State Government cannot be compelled to acquire the land after its vesting when it was no longer possible to effectuate the intended purpose of acquisition. Till possession is not taken, the land owner is not entitled for compensation in respect of the notified lands.
KARNATAKA LAND REFORMS ACT, 1961 - Applicability - Section 48(2) -Applicability -Declaration under the Karnataka Industrial Areas Development Board Act, 1966 -Possession not taken -Owners not entitled to compensation nor allowed to make any improvement -Hence, principle under Section 48(2) should be applied -Such owners are entitled to damages. [S. Abdul Nazeer, J]: Acquisition proceedings have commenced in 1996. Though possession was not taken, title of the property vested with the State Government. The Petitioner was prevented from making any Improvement in the land. The Petitioner is not entitled to compensation as the lands are not acquired by the State Government. If acquisition of land under L.A. Act is withdrawn under sub-section (1) of Section 48 of the L.A. Act, the owner/person interested is entitled for damages suffered by them together with all costs reasonably incurred by him in the prosecution of the proceedings. However Section 48 of the L.A. Act is not applicable to the acquisition under K.I.A.D.B Act. The principle underlying Section 48(2) of the L.A.Act should be made applicable to K.I.A.D.B Act, instead of driving the land owner/person interested to Civil Court for claiming damages.
Acquired
WORDS AND PHRASES - Acquired -In Black s Law Dictionary (7th Edition) the meaning assigned to the word acquired is to take possession or control of . In Shorter Oxford English Dictionary one of the meanings assigned to the word acquired is to receive and to come into possession of .
Vest
WORDS AND PHRASES - Vest -The word "vest is a word of variable import as is evident from different Indian statutes. It has not got a fixed connotation meaning in all cases that the property is owned by the person or authority in whom it vest. The meaning of the word "vest" has to be understood in the context in which it is used. In the present case, though title vests with the State Government on publication of declaration, acquisition of the land is not complete without taking possession.
Applicability
Land Acquisition Act, 1894 - Section 48(2) -Applicability -Declaration under the Karnataka Industrial Areas Development Board Act, 1966 -Possession not taken -Owners not entitled to compensation nor allowed to make any improvement -Hence, principle under Section 48(2) should be applied -Such owners are entitled to damages.
[S. Abdul Nazeer, J]: Acquisition proceedings have commenced in 1996. Though possession was not taken, title of the property vested with the State Government. The Petitioner was prevented from making any Improvement in the land. The Petitioner is not entitled to compensation as the lands are not acquired by the State Government. If acquisition of land under L.A. Act is withdrawn under sub-section (1) of Section 48 of the L.A. Act, the owner/person interested is entitled for damages suffered by them together with all costs reasonably incurred by him in the prosecution of the proceedings. However Section 48 of the L.A. Act is not applicable to the acquisition under K.I.A.D.B Act. The principle underlying Section 48(2) of the L.A.Act should be made applicable to K.I.A.D.B Act, instead of driving the land owner/person interested to Civil Court for claiming damages.
Cases Referred: AIR 1970 Bom. 232; AIR 1966 Bom. 194.
Followed: AIR 1970 SC 1771; ILR 2001 Kar 638; AIR 1957 SC 344; ILR 2002 Kar 4693; AIR 1987 SC 2421; AIR 1966 SC 1593; AIR 1970 SC 1576.
In this case, the petitioner has sought for quashing the Endorsement dated 12-7-2000 (Annexure-A) and the resolution dated 18-5-2000 (Annexure-B) passed by the second respondent, resolving to regrant the land in question to the petitioner.
2. Brief facts of the case are as follows:
Petitioner was the owner of about 10 acres of land at Sy. No. 58/1 of Kalavar Village, Mangalore Taluk, out of which certain extent of land was acquired by the State Government in the year 1992 for the benefit of the Karnataka Industrial Areas Development Board (for short ‘Board’). The 4th respondent against proposed to acquire additional extent of 4 acres 38 cents of lands of the petitioner in the same survey number for the similar purpose. A notification under Section 28(2) of the Karnataka Industrial Areas Development Act, 1966 (for short ‘the Act’), was issued to that effect. A notice under Section 28(2) of the Act was issued to the petitioner calling upon him to file objections as per Annexure-C. Petitioner filed his objections to the said notice vide Annexure-D objecting to the acquisition of the said land. The objections were overruled and a declaration was issued as per Section 28(4) of the Act in the Official Gazette. Thereafter the petitioner requested for payment of compensation in respect of the said land. Respondent 4 has issued an endorsement as per Annexure-F stating therein that the compensation will be paid in due course. It is the case of the petitioner that though acquisition proceedings started in the year
1996-97, till this day compensation has not been paid. On account of this process, petitioner was deprived of the enjoyment of the schedule property and was prevented from making any improvement in the land. At this stage, the respondents have decided to drop the acquisition proceedings as per Annexure-A and regrant the land to the petitioner as per Annexure-B. The petitioner has challenged the said action of the 4th and 2nd respondents respectively in this petition.
3. The second respondent has filed its objections. It is contended that after issuance of the declaration, the respondents have not taken possession of the land in question. The petitioner continues to be in possession of the said land. It is further contended that by the letter dated 3-3-1999 the petitioner had sought for deletion of some portion of the land from acquisition. Therefore, he is estopped from demanding the acquisition of the land. It is further contended that there are certain other legal heirs of the late Alex Patrao, the Kathedar. They have filed a suit in O.S. No. 285 of 1999 for adjudication of their claims in respect of the land, which is pending before the V Additional Civil Judge, Junior Division, Mangalore. The land in question was proposed to be acquired for the benefit of 3rd respondent-Company. The 3rd respondent has intimated that it does not require the land because the shape of the land will not serve its purpose and that the unauthorised construction on the land will raise the liability to pay compensation and further that the ownership of the land is in dispute. Similar objections are filed by the 3rd respondent.
4. Sri K.M. Nataraj, learned Counsel appearing for the petitioner submits that once the State Government has issued the declaration under Section 28(4) of the Act, lands vests with the State Government absolutely free of all encumbrances. Therefore, it was incumbent upon the State Government to pay compensation in accordance with Section 29 of the Act. It cannot drop the land from acquisition as has been proposed in Annexure-A, nor can it regrant the land. The petitioner is not willing for regrant of the said land.
5. Sri Basavaraj V. Sabarad, learned Counsel for the Board submits that the land in question is not suitable for the purpose for which it was proposed to be acquired. Therefore, it has proposed for regrant of the land. He further submits that if the Board does not want to go ahead with the acquisition, it can
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