@JUDGMENTTAG-ORDER
A.S. Bopanna, J.@mdashThe petitioner is assailing the notifications dated 13.05.2011 and 09.04 2012 issued under section 4(1) and 6(1)of the Land Acquisition Act (hereinafter referred to as ''the LA Act'' for short) whereunder the property belonging to the petitioner has been acquired by the respondents No. 2 and 3 for formation of a road connecting the SEZ area.
2. The petitioner claims to be the owner of the property bearing Assessment No. 50/1A, Khatha No. 177/1A carved out of Sy. No. 50/1A, Nagawara village, Kasaba Hobli, Bangalore North Taluk which is presently within the jurisdiction of the Bruhat Bangalore Mahanagara Palike (''BBMP for short). The manner in which the petitioner acquired title to the said property and the subsequent enjoyment thereof is referred to in the petition. The grievance of the petitioner is that the respondents No. 2 and 3 without notifying the name of the petitioner in the notification issued under Section 4(1) of the LA Act and without conducting an enquiry as provided under Section 5Aof the LA Act has deprived the petitioner the benefit of the property by including the same in the declaration issued under Section 6(1) of the LA Act. The contention is also that the acquisition is not for public purpose as it would only benefit the SEZ project of L.T. Karle company. The acquisition is bad for not obtaining the approval of the Corporation and the State Government as required under the Karnataka Municipal Corporations Act, 1976 (the ''KMC Act'' for short) is the further contention.
3. The respondents have filed their objections as also the additional objection statement justifying the acquisition proceedings. The reason for which the name of the petitioner was not indicated in the notification issued under Section 4(1) of the LA Act has been explained by referring to the RTC extract wherein the name is not depicted. However, the petitioner herself having claimed right to the property had participated in Section 5A enquiry and in that view, the name of the petitioner has been notified in the declaration under Section 6of the LA Act. The petitioner has also participated in the award proceedings. It is their contention that the petitioner has approached this Court belatedly after nearly two years from the date of notification with a malafide intention. In that regard, reference is also made to an earlier petition filed by one Sri C. Kantharaj who is also a member of the same family. Having failed in the said petition, at a stage, when the writ appeal was about to be disposed of, the instant petition has been filed. The need for acquiring the property and the approval obtained has been explained and in that view, the acquisition is sought to be sustained. In the rejoinder filed by the petitioner, the petitioner having participated in Section 5A enquiry has been disputed and in that light contention has been raised with regard to the right available to a land owner from the stage of issue of notification under Section 4(1) of the LA Act. In that view, it is contended that the non-inclusion of the name in the notification under Section 4(1) of the LA Act and also the denial of opportunity to participate in Section 5A enquiry by issue of notice would vitiate the acquisition.
4. Based on the said averments, I have heard Sri S.P. Shankar, learned senior counsel on behalf of Sri K.H. Thimmaiah, learned counsel for the petitioner, Sri M.R. Naik, learned senior counsel on behalf of Sri I.G. Gachchinamath, learned counsel for the respondents No. 2 and 3 and Sri S.V. Girikumar, Additional Government Advocate for respondent No. 1 and perused the petition papers.
5. At the outset, it is to be noticed that the issue as to whether the acquisition is for a public purpose in the light of the contention that it is being acquired for benefiting a particular project and also as to whether the alignment of the road could be altered to avoid the property of the petitioner being acquired need not be reconsidered by this Court since such contentions which had been raised with regard to the very same notification, and the property bearing the very same Sy. No. 50/1A had arisen for consideration in W.P. No. 38341/2012 filed by Sri C. Kantharaj. A learned judge of this Court by the order dated 03.01.2014 has negatived the said contention. The order passed by the learned Single Judge had been assailed in W.A. No. 490/2014 which was dismissed by the Hon''ble Division Bench. In that view, the fact that the acquisition is for a public purpose is a foregone conclusion.
6. The other contention of the learned senior counsel for the petitioner is that the acquisition is vitiated for noncompliance of the requirements contemplated under the Karnataka Municipal Corporations Act. It is contended that Section 175 of the Act provides for the manner in which the property is to be acquired by the Corporation. In that view, the sanction of the Corporation as well as the Government is required. It is in that regard contended that the approval has not been obtained and therefore the proceedings are liable to be set-aside. The learned senior counsel for the respondents on the other hand has referred to the documents produced along with the additional objection statement. The Subject No. 17/2010-11 contained in Annexure-R9 is referred, which is the extract of the proceedings dated 29.05.2010 of the Corporation. The said proceedings has been sent to the Government through the communication dated 07.06.2010 at Annexure-R10. The Government has accorded its approval as at Annexure-R16. Therefore the said documents indicate that both the corporation as well as the Government has sanctioned the acquisition.
7. The learned senior counsel for the petitioner by referring to the provisions contained in Sections 4(1), 6(1), 5A and 45 of the LA Act read with Rule 3 of the Karnataka Land Acquisition Rules would contend that the same would provide for a detailed procedure to be followed by the acquiring authority before divesting the right of the land owner to enjoy such property. In that regard, it is contended that the right to possess and enjoy the property though not a fundamental right is a constitutional right, which right is protected under Article 300A of the Constitution of India. Hence, the denial of such right can only be by due process of law. If that be the position, the procedure as contemplated in law is to be strictly adhered to by notifying the name of the owner of the property in the preliminary notification proposing the acquisition and providing opportunity to put forth the objections which is to be considered after issue of notice in an enquiry which is meaningful and after considering all aspects. To support the said contention, reliance is placed on the following decisions:
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ii)
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v) Order in W.P. No. 5095/1969 (DD 03.08.1972)
vi)
8. The learned senior counsel appearing for the respondent on the other hand would contend that it is too late in the day for the petitioner to raise a contention in the manner as has been done with regard to denial of opportunity. Though there can be no dispute with regard to the legal position as enunciated in the cited decisions or otherwise the same does not enure to the benefit of the petitioner. It is pointed out that the petitioner along with her husband had taken part in the Section 5A enquiry voluntarily and thereafter had also recorded her statement with regard to the entitlement of compensation. The name of the petitioner no doubt did not figure in Section 4(1) notification which is due to the fact that the revenue records (RTC) did not contain the name of the petitioner and as such the name of the persons which were indicated therein was notified. However, when the petitioner claimed that she had right in respect of the property, her statement was recorded wherein she has relied upon the documents to claim right to the property. In the said proceedings, she has not opposed the acquisition but has claimed right and thereafter has sought compensation. Despite being aware of the proceedings as far back as in the year 2012, she did not choose to assail the same until the present writ petition is filed on 07.02.2014. It is his case that the present writ petition is an abuse of process of law as it has been filed only at a stage when the petitioner in a W.P. No. 38341/2012 had failed therein and his appeal was also at the stage of disposal. The petitioner therein is none other than a family member of the petitioner herein. The delay in approaching this Court would be fatal to the instant writ petition is the contention and in that regard, the decisions in the case of
9. The cumulative perusal of the decisions relied upon by the learned senior counsel for the petitioner would no doubt indicate the legal position with regard to the procedure that is required to be followed when the property belonging to the land owner is sought to be acquired. No doubt, the indication of the name of the landowner in notification issued under Section 4(1) of LA Act is an important facet of initiating the acquisition proceedings since the proposal thereto would be the first step requiring the land owner to put forth the objections, if any and for the said purpose, the appointment of the Land Acquisition Officer to conduct the further proceedings under Section 5A onwards would also be notified. Therefore, even if for any reason, the name of the landowner is not indicated in the Section 4(1) notification, before the declaration is issued under Section 6(1) of the Act notifying therein the name of any land owner, the opportunity to have a say in the enquiry under Section 5A of the Act is a requirement which cannot be dispensed. The consideration in that regard should be to find out as to whether the land owner had such opportunity in taking part in the proceedings. If the participation in the enquiry under Section 5Adespite the name not being included in Section 4(1) notification is established, the decisions relied on by the learned senior counsel for the petitioner would be of no assistance. But, if it is to the contrary, the proceedings would get vitiated.
10. In that light, a perusal of the writ papers in the background of the documents relied upon by the learned senior counsel on behalf of the respondents would disclose that the petitioner had appeared before the Land Acquisition Officer and her statement was recorded on 07.09.2011. A copy of which is produced at Annexure-R12. Preceding the same, a notice dated 27.07.2011 was issued to the petitioner as at Annexure-R11 referring to the right that was claimed by the petitioner and requiring her to appear for the enquiry. The signature that has been affixed by way of acknowledgment is stated to be that of the husband of the petitioner and it is the same signature which is found along with the signature of the petitioner in the deposition of the petitioner as well. Subsequent thereto, the declaration under Section 6(1) of the LA Act was published on 09.04.2012. Thereafter the petitioner has recorded her statement before the Land Acquisition Officer on 11.06.2012 relating to the claim of compensation. The said deposition has also been signed by the petitioner and a copy of it has been received by the husband of the petitioner. The said deposition is at Annexure-R13.
11. The learned senior counsel for the petitioner however sought to dispute the statement of the petitioner by contending that she has not at all appeared before the LAO. Such contention at this stage would have to be taken with a pinch of salt. In fact, this Court was astonished at the vehemence with which such contention was put forth despite all other attendant circumstances to the contrary. I am of the said opinion for the reason that the lis is not between the private parties so as to assume that there is a possibility of the other party forging the signature of the opposite party to derive benefit. In such case, there would be a possibility of a private party who is seeking to take benefit having had knowledge of the manner in which a person would sign and then attempt to forge the same. In the instant case, the contention put forth on behalf of the petitioner is that she never appeared before the Land Acquisition Officer pursuant to the initiation of the proceedings as she was unaware of the same and the documents relied on are fabricated. If that be the case, the petitioner should be a total stranger to an officer who is discharging official functions. In such event, I fail to understand as to how an officer could have imagined the shape or the manner in which a party would sign in her name and affix it, that too when the signature of the husband of the petitioner is also affixed therein.
12. Though the learned senior counsel for the petitioner sought to caution this Court against making a comparison of the signature found in the said documents with the signature made in the vakalathnama as also the verifying affidavit, the comparison is not for the purpose of scientific precision, but the bare comparison to the naked eye would indicate that they are similar. The officer concerned in any event at that stage would not have had an idea as to how the petitioner would sign in her name so as to forge it. If these aspects are kept in view, the presumption about the validity of an act done by the officer in the official capacity in accordance with law and the petitioner having signed will have to be presumed. If such presumption was to be rebutted, the petitioner should have made out a strong case by producing relevant material and not by raising vague contention. Even otherwise, the sequence would indicate that the notice dated 27.07.2011 had been issued to the petitioner and the statement was recorded on 07.09.2011 and as rightly pointed out by the learned senior counsel for the respondents, the contents of the deposition with reference to the nature of right as claimed by the petitioner and the documents relied on could not have been either imagined or assumed by the officer nor could the documents have been procured clandestinely.
13. Further, as noticed, the final notification under Section 6(1) was issued on 09.04.2011 and the statement relating to compensation was recorded on 11.06.2012. The award notice has also been issued on 22.12.2012 and the award amount has been deposited in the Civil Court. The petitioner did not choose to assail the final notification dated 09.04.2012 earlier, until the instant petition was filed on 07.02.2014. The intervening circumstances would disclose that the petitioner not only had knowledge of the acquisition proceedings yet had not opposed the acquisition as she had acceded to the same by seeking compensation. In the statement recorded also, it was only to claim right to the said property and the compensation thereof and not to oppose the acquisition much less on the grounds presently raised. Hence, at this distant point in time, the petitioner cannot be heard to complain that opportunity had been denied to her and it cannot be considered as a case where the petitioner is being divested of her property without due process of law so as to offend Article 300-A of the Constitution as contended.
Hence, for all the aforestated reasons, I see no merit in this petition. The same is accordingly dismissed. No costs.
