JUDGMENT
The Appellants who were petitioners in W.P No. 11955/2008, being not satisfied with the order of the learned Single Judge by his order dated 9.11.2012, has filed this writ appeal.
2. Heard the learned counsel for the parties. The admitted facts in this appeal are as hereunder:-
3. Accordingly to the appellants, they are owners of the land bearing Sy. No. 123/1 measuring 4 acres 9 guntas and land in Sy. No. 123/2 measuring 1 acre of Anaganahalli Village, Eelagola Hobli, Srirangapatna Taluk, Mandya District.
4. The first respondent initiated acquisition proceedings to acquire the aforesaid land in order to develop the land as industrial area on behalf of Karnataka Industrial Area Development Board. The preliminary notification was published in the Karnataka Gazette on 15.9.2000 and final declaration was published by the authority on 15.6.2005
5. According to the appellant, no notice as required U/s 29(3) of the Karnataka Industrial Area Development Act, 1965 (hereinafter called as the ‘KIAD Act’), was served upon the appellant and they were not heard before passing any award.
6. It is specific case of the Appellant that the Deputy Commissioner, Mandya unilaterally has fixed the compensation at the rate of Rs. 5,50,000 per acre as if the same was passed by consent. The appellants were not parties to the award and they were not notified. Contending that the Dy. Commissioner was found to determine the compensation of the acquired land within the time prescribed under Section 11 of the Act and the same is not done. Hence in view of Section 11(9) of the L.A Act, the land acquisition proceedings are required to be considered as lapsed. Therefore, the writ petition came to be filed to quash Annexure A-preliminary notification dated 15.9.2000 and final declaration dated 15 6.2005 ad to declare that the proceedings initiated by respondents 1 and 2 U/s 28(1) of Act has lapsed and sought direction against the respondents to hand over possession to the appellants.
7. The respondents 2 and 3 filed counter before the learned Single Judge. According to them, the writ petition filed by the petitioner was not maintainable. It was contended that the Deputy Commissioner, Mandya has passed consent order after hearing all the farmers and the petitioner children namely Parmesh, Lakshmamma and Sunil. Therefore, the compensation determined has been based U/s 30 of L.A Act before the learned Civil Judge, Srirangapatna and they also contended that the writ petition is not maintainable.
8. The learned Single Judge after hearing the parties came to the conclusion that there is no consent award passed by the Deputy Commissioner in respect of the acquired land of the appellant since there is no agreement as required U/s 10B of the Karnataka Land Acquisition Rules, 1965 in Form No. D. He also came to the conclusion that no notice is served upon the petitioner before passing the award by the Deputy Commissioner, Mandya and ultimately, the learned Single Judge came to the conclusion that since the award has not been passed within reasonable time, the final notification dated 15.6.2005 shall be considered as the basis for determining the compensation and pass award in accordance with law. Accordingly, the writ petition came to be disposed directing the respondents to pass award treating the date of final declaration as the basis for determining the compensation.
9. Being aggrieved by the order of the learned Single Judge passed this writ appeal is filed. We have heard the learned counsel for both the parties.
10. Sri. G.B Shastry, learned counsel for the appellants submit that the learned Single Judge has committed an error in directing the respondents to reckon the date of final declaration as the basis for determining the compensation. According to him when the award is not passed within the reasonable time in view of the Land Acquisition Rehabilitation and Re-settlement Act, 2013, the acquisition proceedings are deemed to have been lapsed. According to him, Section 11(A) of the Land Acquisition Act is squarely applicable to the facts of the case. Therefore, he submits that in view of the New Act, since the respondents has not even passed the award.
11. It is not in dispute that the order of the learned Single Judge has not been questioned by the respondents. In other wards, the respondents are satisfied with the order of the learned Single Judge in directing them to pass the award and treat the date of final declaration as the basis to determine the compensation. But the facts remain till today the respondents have not passed any award as directed by the learned Single Judge. It is the specific case of the KIADB that New Act is not applicable to the case and Section 24(2) of the New Act cannot be made applicable since the land acquisition has been finalized under L.A Act and the proceedings have passed under KIADB act. as per Section 30 of the KIADB Act, the award is passed U/s 11 of the L. A Act. So the provisions of the new act cannot be pressed into service by the respondents. If all acquisition proceedings is initiated under KIADB Act it cannot be held that the acquisition is lapsed even though the award is not within the period of 5 years and even if the compensation is not tendered or deposited.
12. Having heard the learned counsel for the parties what is considered to be by us is that whether after the award U/s 11 of the L.A Act even acquisition proceedings are initiated under KIADB Act in view of Section 24(2) of New Act, the acquisition proceedings would lapse or not. Even we hold that New Act is not applicable and if the award is not within reasonable time from the date of order of the learned Single Judge and final declaration dated 15.6.2005, it is permissible for the KIADB to contend that acquisition is deemed to have been lapsed. In order to appreciate whether the New Act is applicable, the provisions of Section 24 of the New Act is extracted below:-
24. Land Acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.- (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings in initiated under the Land Acquisition Act, 1894,-
(a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) where an award under said Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section(1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act.
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
13. It is also noted that the acquisition proceedings including preliminary and final declaration have been passed under the provisions of the KIADB Act. But there is no provisions under the KIADB Act to pass an award and award has to be passed only under the provisions of the L.A Act 1894. If the award has to be passed under L.A Act, whether the new act can be pressed into service to hold the acquisition proceedings are lapsed on account of non-passing of award within a period of 5 years U/s 11. If the award is passed under L.A Act, the enquiry has to be conducted by the Deputy Commissioner or Collector before passing the award. Section 11A contemplates if the award is not passed within 2 years from the date of publication of the final declaration, the entire proceedings for acquisition of the land shall automatically stands lapsed. It is no doubt true the Hon'ble Supreme Court in the case of M. NAGABHUSHANA v. STATE OF KARNATAKA, (2011) 3 SCO 408 has held that Section 11-A of the act is no application in respect of the land acquired under the provisions of the Karnataka Industrial Areas Development Act. We have to consider in this appeal as to whether Section 24(2) of the New Act is applicable in order to hold that the acquisition proceedings deemed to be lapsed due to non-payment of compensation and non-passing of the award within a period of five years from the date of declaration and with effect from non-payment of compensation to the land owners.
14. The New Act does not say whether the Act is applicable to the land acquired under the provisions of the Karnataka Land Acquisition Act 1894. What Section 24 says that if the award is not passed U/s 11 of the Act and the compensation is not paid within 5 years or more prior to new act, if the physical possession of the land is taken or not especially the compensation is not paid or deposited in Court such proceedings deem to have been lapsed. In the instant case, it is not case of the respondent that award, is not required to be passed under the provisions of the L.A Act. When the award is required to be passed under L.A Act, the respondents cannot contend that the provisions of New Act cannot be made applicable on account of non payment of compensation within a period of five years.
15. In the instant case, though the preliminary notification was issued on 15.9.2000 and final declaration on 15.6.2005, till today the award has not been passed. Even now the respondents is not ready to pass the award afresh based on the date of final notification. So we are of the view that there is lapse on the part of the respondents in passing the award for more than a decade even after order of the learned Single Judge. So we are of the opinion that the acquisition proceedings are deemed to have been lapsed.
16. After conclusion of the arguments, an option was given to the respondents to pass award treating today's date as the basis of determining the compensation under the provisions of the New Act. The respondents are not willing to make use of the opportunity, and they are not willing to pay compensation to the land owners considering today's date as the basis for determining the compensation.
17. In the circutnstances, we have no option than to allow this writ appeal holding that the proceedings initiated by the KIADB acquiring the land of the appellant vide Annexure A and B are deemed to be lapses. The parties to bear their costs.