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2017 Supreme(Kar) 397
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ANAND BYRAREDDY, J.
J. Venkatesh Reddy, S/o. Gurumurthy Reddy & Ors. - Petitioners
Vs.
The State of Karnataka & Ors. - Respondents
Writ Petition Nos.59461-59462 of 2014 Connected With Writ Petition Nos. 18861, 18890 and 23750-23752 of 2013, Writ Petition Nos.20367-20373 and 20375-20380 and 20382 and 20384-88 and 49228 & 50925-50936 of 2013 [LA-KIADB] In Writ Petition No.30920, 35461 of 2014 [LA-KIADB], Writ Petition Nos.32416, 51805-51807, 40473-40474, 41641-41642, 44987-44988, 48824-48840, 58807-58809 of 2015 [LA-KIADB], Writ Petition No.859 of 2016 [LA-KIADB], Writ Petition No.17272 of 2014 (LA-KIADB), Writ Petition Nos.2907 of 2015 and 46915 of 2016 (LA-KIADB)
Decided On : 19-04-2017
For the Petitioners:Shri V. Lakshminarayana, Senior Advocate for Shri V. Javahar Babu, Advocate.
For the Respondents:Shri Aditya Sondhi, AAG-III for Smt. R. Anitha, Government Pleader, Shri Ashok Haranahalli, Senior Advocate along with Shri K. Shashikiran Shetty, Senior Advocate for Shri B.B. Patil, Advocate.
Headnote:RIGHT TO FAIR COMPENSATION & TRANSPARENCY IN LAND ACQUISITION, REHABILITATION & RESETTLEMENT ACT, 2013 – Sections 24(2), 103 & Karnataka Industrial Areas Development Act (18 of 1966), Sections 30, 28 – Acquisition of land for industrial purposes under Act of 1966 – Lapse of proceedings – There is no rule that Section 24 (2) of 2013 Act, specifically refers to acquisition initiated under, 1894 Act and therefore is inapplicable to acquisition initiated under Section 28(1) of KIAD Act. Section 24 of 2013 Act, should not be read in isolation, but should be read in conjunction with Section 30 of KIAD Act. Section 103 of 2013 Act advances contention to effect that provisions of 2013 Act, have to be read in conjunction with provisions of KIAD Act. By virtue of Section 30 of KIAD Act, fiction of acquisition under 1894 Act is created and that fiction is carried forward by applying provisions of 1894 Act in respect of aforesaid four subjects to acquisition under KIAD Act, even though nominally and formatively acquisition is under Section 28 of KIAD Act. This is purport of expression "Mutatis Mutandis" used in Section 30 of KIAD Act, meaning thereby that all provisions of 1894 Act, are applicable in respect of aforesaid four subjects but with modification in relation to minor details. Minor details include specification of Section or an Officer and like. Section 24 (1) and 24(2) of 2013 Act, on face of it seem to suggest their applicability in respect of acquisition proceedings initiated under 1894 Act. However, that is required to be understood in context of Section 30 of KIAD Act, as meaning acquisition under Section 28 of KIAD Act. In other words statement in Section 24(2) "initiated under Land Acquisition Act, 1894" to be read and understood as "initiated under Karnataka Industrial Areas Development Act, 1966 read with Land Acquisition Act, 1894." This is minor change which is effect of use of phrase "Mutatis Mutandis" under Section 30 of KIAD Act. It does not amount to rewriting Section. Construction which advances harmonious gel between various statutes within Constitutional mandate has to be preferred by Court. Construction therefore which harmoniously brings together Section 24 of 2013 Act and Section 30 of Karnataka Industrial Areas Development Act, 1966 has to be preferred to construction which brings Section 24(2) of 2013 Act in conflict with Section 30 of KIAD Act, 1966. Therefore, Section 24(2) of 2013 Act is applicable to acquisition proceedings under KIAD Act.
RIGHT TO FAIR COMPENSATION & TRANSPARENCY IN LAND ACQUISITION, REHABILITATION & RESETTLEMENT ACT, 2013 – Section 24(2) – Karnataka Industrial Areas Development Act (18 of 1966), Section 28(5) – Vesting of land in State – Deemed divesting – Section 28 of Act of 1966 vesting land in State Government free from all encumbrances on publication of declaration of acquired land – Section 24(2) of Act of 2013 providing for lapsing of acquisition proceedings upon non-fulfilment of conditions specified – By virtue of Section 24(2), at whatever time vesting of land taking place, there is deemed divesting upon fulfilment of conditions specified.
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ACT, 1966 -Sections 3(1), 28, 29, 30, 31 & Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act (30 of 2013), Preamble, Section 2 – Repugnancy of laws made by State and Parliament – Validity of KIAD Act of 1966 – Question of repugnancy can arise only when both Legislatures are competent to legislate with respect to same subject, viz. subject included in Concurrent List (List III). There is no provision for Union law to be void by reason of its inconsistency with any State law. But State law will be void by reason of its being inconsistent with Union law, subject of course to clause (1) of Article 254 of Constitution. Main object of KIAD Act, is to secure establishment of industrial areas in State of Karnataka and generally to promote establishment and orderly development of industries therein, but if provisions of KIAD Act, are silent as regards criteria for declaring an industrial area and is not adequate and relevant any longer when viewed in light of object and tenor of 2013 Act, which is all encompassing in its breadth and sweep and also has within its ken orderly development of industries in tandem with National Manufacturing Policy(NMP). State Government having adopted National Manufacturing Policy, KIAD Act, would be rendered redundant unless all provisions of 2013 Act, which are introduced to safeguard interest of landowners are adhered to. For otherwise, it is incongruous for State Government, having adopted NMP, to apply certain criteria for acquiring land for purposes of manufacturing zones contemplated under NMP and to apply non-existent criteria for acquiring land under provisions of KIAD Act, to detriment and in discrimination of land owners suffering acquisition under provisions of KIAD Act. -
With coming into force of 2013 Act, compulsory acquisition of land anywhere in country can only be in accordance with provisions of same. Acquisition of land for industrial and manufacturing purposes is now declared primary public purpose under 2013 Act. KIAD Act which is silent in all respects as to feasibility of acquisition of particular land for industrial purposes, lots of land owners and their plight and host of other concerns which 2013 Act provides for, working of KIAD Act should strictly conform to provisions of 2013 Act, prescribing checks and balances, preceding acquisition of land and in process of acquisition and thereafter, or perish. In view of specific provision under 2013 Act, namely, S. 103, which lays down that provisions of Central Act shall be in addition to and not in derogation of, any other law for time being in force, State Government which is appropriate Government for carrying out provisions of Act, cannot exclusively exercise power under KIAD Act, dehors provisions of 2013 Act. It is mandatory for State Government to follow provisions of 2013 Act, in addition to provisions of KIAD Act, if necessary. But insofar as acquisition of land for establishment of Industrial corridors, industrial areas or industrial clusters, 2013 Act is self-contained code by itself and State Government . is precluded from overriding said provisions of 2013 Act, by resorting to unbridled powers under KIAD Act. It is not open for State Government . to acquire lands for industrial areas under State Act, especially for establishment of NIMZ, which is concept under NMP of Government of India. Even otherwise, entire field of establishment of industrial areas is covered under Central Act, provisions of State Act are redundant and such provisions as are directly in conflict with provisions of Central Act are repugnant and inoperative, as contemplated under Articles 245 and 246 of Constitution. State Government cannot any longer exercise power under Section 3 of KIAD Act without conforming to pre-requisites as prescribed under 2013 Act, nor work other provisions of Act without also adhering to other mandatory provisions of 2013 Act, and Rules thereunder. Scheme under KIAD Act, as it prevails is inconsistent with provisions of 2013 Act in terms of Article 254 (2) of Constitution and is hence no longer valid as an independent enactment.
These petitions are heard and decided by this common order only on questions of law that arise for consideration. On facts, there are dissimilarities as to the circumstances pertaining, in several cases. However, the legal issues that arise, overlap. The findings arrived at on the legal issues would have to be applied to each given case, which would require this bench or such other bench to afford a further hearing to each individual petitioner, on the facts of each case, vis-a-vis the opinion expressed on the legal issues. Hence, it is made clear that this bench is not expressing any opinion as to the merits, on the facts of each case, except noticing the bare facts, in context.
WP 59461-62/2014:
The petitioner claims to be the absolute owner of agricultural land bearing survey no.55/1 measuring 5 acres, at Jakkasandra village, Malur taluk, Kolar district. He is said to have acquired the land under a sale deed dated 22-10-2011. He is said to be growing horticultural crops on the land.
A Notification under Sections 3(1), 1(3) and Section 28(1) of the Karnataka Industrial Areas Development Act, 1966, (Hereinafter referred to as the ‘KIAD Act’, for brevity) dated 13.3.2012, is said to have been issued by the State Government, declaring an area comprising about 696 acres of land of Jakkasandra village, including the petitioner's land, as an industrial area to be developed and proposing to acquire the same. A Final Notification under Section 28(4) dated 4.12.2012, is said to have been issued restricting the area of land to be acquired to 627 acres.
It is claimed that notwithstanding the initiation of the acquisition proceedings, the respondents have neither taken physical possession of the land nor have paid any compensation and that with the coming into force of The Right to Fair Compensation And Transparency In Land Acquisition And Resettlement Act, 2013 (Hereinafter referred to as the, 2013 Act', for brevity) with effect from 1.1.2014 and by virtue of Section 24(2) thereunder, the acquisition proceedings in question are deemed to have lapsed and seeks a declaration to that effect. Alternatively, it is sought that the petitioner be held entitled to compensation in accordance with the 2013 Act.
WP 18861/2013:
The petitioner herein claims to be the owner of land measuring 2 acres 1 and 1/2 guntas of land in land bearing Survey no.42/1 of Jakkasandra village. The land is said to have been converted for non-agricultural purposes as per an Order of the competent authority, dated 29.5.2012. He is also said to have obtained a sanction for the formation of a housing layout, from the Assistant Director, Town & Country Planning Authority, Kolar, as on 28.6.2012. He claims to have formed about 38 house sites and some of the sites are said to be the subject matter of agreements of sale with third parties.
The said land is also the subject matter of the very same acquisition proceedings referred to in the first of these cases. The petitioner has sought amendment of the petition to incorporate pleadings to claim the benefit of Section 24(2) of the 2013 Act. (Incorrectly mentioned as, "Section 25(2)")
WP 18890/2013:
The petitioner herein claims to be the owner of lands bearing survey nos.7,41,73 and 106 of Jakkasandra village, measuring 3 acres 7 guntas, 1 acre 1 gunta, 2 acres 2 guntas and 1 acre, respectively. His two children are said to be physically handicapped.
The lands are said to be his only source of income. They are said to be fertile lands. The land in Survey no.106 is said to be wet land. He is said to be a sericulturist too.
The petitioner is aggrieved by the very acquisition proceedings referred to above.
WP 20367-20373 AND 20375-20380 AND 20382 AND 20384-88 OF 2013
There are 22 petitioners who have filed this common petition. They are all residents of Jakkasandra. Their land holdings vary from very small lands to large extents.
