w w w . L a w y e r S e r v i c e s . i n



Nandi Infrastructure Corridor Enterprise Limited No.1, Represented by its Authorised Signatory Srinath, Mangalore & Another v/s Government of Karnataka, Represented by Principal Secretary Commerce & Industries Department, Bangalore & Others

    Writ Petition Nos. 26085, 31407 of 2019, 1627 of 2021 (LA-KIADB)

    Decided On, 18 April 2022

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE S.R. KRISHNA KUMAR

    For the Appearing Parties: D.L.N. Rao, Sreenivasa Raghavan, Senior Counsels, T. Suryanarayana, Sushal Tiwari, Advocates, Vijayashankar, Senior Counsel, Murugesh V. Charati, Gowtham Bharadwaj, Advocates, D.N. Nanjunda Reddy, Senior Counsel, B.B. Patil, V.R. Sachin, B.S. Manjunath, M. Raviprakash, K. Narayana Swamy, Advocates, Sreenivas Raghavan, Senior Counsel, Sushal Tiwari, Nitin Prasad, Advocates.



Judgment Text

(Prayer: This W.P. is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned awards all dated 22.04.2019 passed by R-4 vide Anenxure-L to L20 and all dated 04.05.2019 passed by R-5 at Annexures-L-21 to L-27 as approved by R-1 Vide letter dated 24.05.2019 at Anenxure-V and etc.

This W.P. is filed under Article 226 of the Constitution of India praying to quash the impugned awards dated 02.07.2019 and 06.07.2019 passed by R-4 & 5 Annexures-W, W1, W2, W3, W4, W5, W6, W7, W8, W9, W10, W11, W12 and the impugned awards passed by the R-4 & 5 as approved by R-1 vide letter dated 11.07.2019 at Annexure-X and etc.

This W.P. is filed under Articles 226 and 227 of the Constitution of India praying to quash and set aside the impugned award dated 22.04.2019 passed by the R-4 Produced at Annexure-A and etc.)

1. On account of fast development of the cities of Bengaluru and Mysuru, which became leading centres for Industry, Trade and Commerce attracting tourists from all over the world, the traffic intensity between Bengaluru and Mysuru increased substantially; taking note of the same and realising that the traffic intensity will continue to increase with further growth and in order to ensure smooth and accident free traffic between Bengaluru and Mysuru, an express way between the two cities was proposed and an infrastructure corridor project technical report was prepared in 1995 which was authorised by the Government of Karnataka vide G.O. dated 20.11.1995. In pursuance of the same, a consortium consisting of various companies entered into a Memorandum of Understanding dated 20.02.1995 with the State Government; accordingly, a Framework Agreement (for short ‘FWA’) dated 03.04.1997 was entered into between petitioner Nos.1 – Nandi Infrastructure Corridor Enterprise Limited (for short ‘the NICE Ltd.,’) and the State Government. As per the said Agreement, the State Government undertook to acquire about 13,237 acres of land from private persons and about 6956 acres of Government land, in all, 20,193 acres was agreed to be conveyed and transferred in favour of NICE Ltd., for implementation of the Bangalore – Mysore Infrastructure Corridor Project (for short ‘the BMICP’).

From that time onwards, there have been several litigations on various aspects of the matter in relation to BMICP. In the year 2019, the SLAO proceeded to pass the impugned awards which are the subject matter of the present petitions.

2. W.P.No.26085/2019 and W.P.No.31407/2019 are filed by Nandi Infrastructure Corridor Enterprise Limited and Nandi Economic Corridor Enterprise Limited (for short ‘NICE’) challenging the impugned awards. In both the petitions, the State Government is arrayed as 1st respondent and the KIADB represented by its Chief Executive Officer and Executive Member as 2nd respondent; The Special Deputy Commissioner – KIADB (BMICP) as well as the Special Land Acquisition Officers (SLAO -1 and SLAO - 2), KIADB (BMICP) are arrayed as respondents 3 to 5 respectively. The respondents 6 to 56 are land losers who have been awarded compensation under the impugned awards. All the respondents have contested both the petitions and have specifically denied the various contentions / claims put forth by NICE.

3. In addition thereto, respondent Nos. 20 to 56 in the aforesaid two petitions have also preferred the connected W.P.No.1627/2021 challenging some of the impugned awards insofar as the quantum of compensation awarded in their favour is concerned. It is contended by them that the quantum of compensation awarded in their favour is inadequate and that the same deserves to be enhanced by this Court. This petition is contested by NICE which has disputed the various contentions urged by the land losers.

4. Suffice it to state that in all the three petitions, the legality, validity and correctness of the impugned awards have been challenged by the respective petitioners and since common questions of law and fact arise for consideration in all these three petitions, they are taken up together and disposed of by this common order.

5. Briefly stated, the contentions put forth by the petitioners in W.P.No.26085/2019 and W.P.No.31407/2019 are as under:-

5.1 The petitioners contend that the acquisition of lands for the purpose of BMICP was unsuccessfully challenged before this Court on several occasions and rejected vide order dated 21.09.1998 in H.T.Somashekar Reddy’s case which was confirmed by the Apex Court on 26.03.1999. Thereafter, the FWA and BMICP was once again challenged by J.C.Madhuswamy & others which was rejected by this Court vide order dated 03.05.2005 which was confirmed by the Apex Court vide order dated 20.04.2006; subsequently, the review petitions filed by the said persons as well as the State Government and its instrumentalities was also rejected by this Court on 02.11.2006.

5.2 It is contended that the appeal filed by one M.Nagabhushana for challenging acquisition of the lands was dismissed by the Apex Court on 02.02.2011 holding that the BMICP was in public interest and that the State should not do anything to release the land acquired for the project and to implement the same expeditiously. Subsequently, vide order dated 15.06.2011, one more batch of petitions challenging the land acquisition was dismissed by the Division Bench of this Court. It is contended that despite the aforesaid facts and circumstances, the State Government took a inimical stand against BMICP and attempted to scuttle its implementation, on account of which, contempt proceedings are pending before the Apex Court.

5.3 Petitioners contend that since the respondents did not take any steps to pass awards, petitioners filed W.P.Nos.35638-639/2012 before this Court for directions to the respondents to pass awards in respect of lands measuring about 344 acres, of which, possession had already been handed over to the petitioners; however, the two SLAOs – KIADB, the respondents 4 and 5 herein had failed and neglected to pass awards and pay compensation to the land owners. It is contended that though preliminary notifications under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 (for short ‘the KIAD Act’) had been issued between 19.12.1998 and 23.02.2009 and final notifications were issued between 18.02.2003 and 02.06.2009, awards were not passed by the respondents.

5.4 It is contended that vide order dated 29.11.2013, this Court allowed the petitions filed by the petitioners and directed the SLAOs to pass awards within a period of six months; in the said order, the contention of the respondents that the subject lands were excess lands was rejected. The said order was challenged before the Apex Court in SLP (C) Nos.8858-8859/2015, which was dismissed as withdrawn on 01.07.2015 . Subsequently, review petition in R.P.No.310/2016 was filed by the State Government which was also dismissed by this Court vide order dated 02.12.2016.

5.5 Petitioners contend that they initiated contempt proceedings in CCC Nos.1663-64/2014 on account of non compliance with the orders / directions of this Court. Meanwhile, the respondents 4 and 5 filed I.A.1/2014 and I.A.2/2014 in W.P.Nos.35638-639/2012 seeking extension of time which was granted by this Court by extending the time up to 31.03.2015 to pass awards, pursuant to which, the petitioners withdrew the contempt proceedings with liberty to file a fresh petition if the need arose.

5.6 Subsequently, on 31.03.2015, respondents 4 and 5 – SLAOs filed I.A.1/2015 in W.P.Nos.35638- 639/2012 seeking further extension of time but the said applications were not pressed by them. Since the respondents 4 and 5 failed to comply with the orders even thereafter, petitioners filed CCC No.615/2015 before this Court. In the said contempt proceedings, respondents 4 and 5 filed counter Affidavit putting forth false, frivolous and untenable contentions and sought to raise inflated demands on the petitioners for deposit of money to be utilised towards disbursement of compensation. The petitioners filed their detailed response and the matter was posted for hearing regarding framing of charge. On 04.10.2016, respondents 4 and 5 filed I.A.2/2016 in W.P.Nos.35368-369/2012 seeking certain clarifications regarding money to be deposited. The said application was disposed of by this Court vide order dated 27.10.2017 issuing several directions in favour of the several petitioners. Thereafter, respondents 4 and 5 commenced the exercise of passing of awards during the period March 2018 to June 2018 in respect of lands measuring about 194 acres out of the total extent of 344 acres; the compensation arrived at for acquisition of the aforesaid 194 acres was about Rs.53.72 crores.

5.7 The petitioners contend that the aforesaid awards were forwarded by the SLAOs to the Special D.C. – KIADB for approval, who in turn forwarded the same to the KIADB, who also forwarded the same to respondent Nos.1 – State for formal approval vide letter dated 03.11.2018. Thereafter, vide letter dated 13.11.2018, respondent Nos.2 – KIADB withdrew the said letter dated 03.11.2018 on the ground that the note of the Chief Secretary dated 05.11.2018 indicates that if the awards were passed as directed by this Court, the stand of the State Government regarding excess land before the Apex Court in the pending contempt proceedings would be weakened which would enable the petitioners to argue that there was no excess land acquired for the project; the said letter dated 13.11.2018 also states that further steps in the matter would be taken after obtaining opinion of the learned Advocate General; the note of the Chief Secretary records the directions issued by this Court in the aforesaid petitions to pass awards and that there was delay in passing the awards.

5.8 Petitioners contend that they have filed I.A.1/2018 to implead the CEO of KIADB as accused No.3 in the contempt proceedings and the matter was heard by this Court with the learned Advocate General representing respondents 4 and 5 – SLAOs, who sought time to pass awards in compliance with the earlier judgments of this Court and the same was recorded by the contempt court vide order dated 09.04.2019. Subsequently, the impugned awards have been passed which are assailed in the present petitions.

5.9 Petitioners contend that earlier proposed awards sent for approval vide letter dated 03.11.2018 of KIADB were passed in accordance with law and compensation had been determined based on the market value of the lands as on the date of the preliminary notification and the said awards ought to have been approved; instead as against the initial liability of Rs.53.72 crores for 194 acres, the liability of the petitioners to pay compensation as per the impugned awards comes to Rs.565.30 crores for 242 acres 11.87 guntas. Aggrieved by the impugned awards whereby the petitioners are called upon to pay higher compensation, the petitioners are before this Court by way of present petitions.

6. The 1st respondent – State Government has filed its statement of objections opposing the petitions inter alia contending that the petitioners are not the beneficiaries of the subject acquisition and the petitioners do not have any locus standi to challenge the award and that the petitions are liable to be dismissed. It is contended that Section 11 of the Land Acquisition Act, 1894 (for short ‘the L.A.Act’) mandates that an award shall be made only with the previous / prior approval of the State Government; in this context, it is stated that the awards passed in the year 2018 had not received any approval and that the same were not awards in the eye of law; it is submitted that so long as the said awards proposed in 2018 did not receive approval of the State Government as required in law and the awards are not deemed to have been passed and as such, it is not open for the petitioners to place reliance of the unapproved/ draft / proposed awards, which do not have any value in law.

6.1 It is submitted that Section 13-A of the said Act of 1894 is also applicable only to valid and effective awards which are duly passed after obtaining prior approval from the State Government and consequently, the awards of the year 2018 cannot be relied upon by the petitioners. The impugned awards fixing and quantifying the compensation by shifting the date from the date of the preliminary notifications commencing from the year 1998 were issued to achieve a just, fair and equitable compensation as per the law laid down by the Apex Court.

6.2 In addition to specifically denying the various allegations and claim made by the petitioners, the 1st respondent has contended that the impugned awards have been passed in accordance with law, there is no violation of statutory provisions, no abdication of statutory duty nor any mala fides attributable to the State Government and that the present petitions are liable to be dismissed.

7. In its statement of objections, respondents 2 to 5 – KIADB have put forth similar defences; in addition thereto, it is contended that as per the decisions referred to in the statement of objections, the petitioners do not have locus standi to challenge the impugned awards which have been passed in terms of Sections 29 and 30 of the KIAD Act. It is reiterated that the awards proposed in 2018 have not been approved and the same cannot be relied upon by the petitioners. It is also submitted that having regard to the specific opinion tendered by the learned Advocate General in his opinion dated 16.04.2019, it became imperative for the KIADB to pass the impugned awards which are just and proper having regard to the enormous delay in passing the awards. It is also contended that an award is only an offer and the award proceedings are merely administrative in nature and not judicial proceedings, particularly when the land losers are entitled to seek enhancement / re- determination of the award amounts. It is therefore contended that the respondents 2 to 5 - KIADB were fully justified in passing the impugned awards which do not warrant interference in the present petitions.

8. The private respondents – land losers have controverted the various allegations and claim put forth by NICE and have sought to support the impugned awards; as stated supra, in addition thereto, the respondents 20 to 56 who have also preferred W.P.No.1627/2021, sought for enhancement of compensation awarded under the impugned awards. It is relevant to state that apart from disputing the various contentions put forth by the State, KIADB and the private respondents, NICE has also opposed the claim of the land losers, respondents 20 to 56 who are the petitioners in W.P.No.1627/2021.

9. The petitioners have filed a common rejoinder and have contended that the issue regarding locus standi on the part of the petitioners was raised by the respondents earlier and rejected by this Court and as such, the said contention urged by the respondents is liable to be rejected. It is contended that the decision of the Apex Court in Peerappa Hanamanthappa Harijan vs. State of Karnataka & others – (2015) 10 SCC 469 and Satish Kumar Gupta vs. State of Haryana – (2017) 4 SCC 760 are not applicable, in view of the Agreements having been entered into between the petitioners and respondents 1 and 2 prior to the acquisition notifications and on this ground also, petitioners have locus standi to challenge the impugned awards.

9.1 Petitioners have also denied and disputed the various contentions urged by respondents 1 to 5 with regard to the awards of the year 2018 and referred to the documents in this regard. It is reiterated that the query referred to the learned Advocate General was only with regard to whether the stand of the State Government before the Apex Court would be affected, if awards are passed and there was no scope for the learned Advocate General to render any opinion with regard to fixation of the compensation and the opinion of the learned Advocate General with regard to fixation of higher compensation by shifting the date to be reckoned from the date of the preliminary notification to a subsequent date was beyond the scope and ambit of the opinion sought for from the learned Advocate General. It is therefore contended that the impugned awards which are based on the opinion of the learned Advocate General are arbitrary and illegal and deserve to be quashed.

9.2 It is contended that since the delay in passing the awards is solely and fully attributable to the respondents 1 to 5, the question of the petitioners being liable to pay compensation as per the impugned awards will not arise. It is also contended that the SLAO being a delegatee of the State Government exercises quasi judicial powers while passing the awards and the contention of the respondents that award proceedings are merely administrative in nature is incorrect. It is further contended that having regard to the fact that the delay is attributable only to the respondents 1 to 5, the impugned awards which revise the compensation by shift / postponing the relevant date from the date of the preliminary notification to a later date is clearly illegal, mala fide and arbitrary.

9.3 The petitioners, in addition to specifically denying the various contentions urged in the statement of objections have also reiterated the facts, grounds, and contentions urged in the petitions and have contended that they are entitled to relief sought for in the petitions.

10. Heard the learned Senior counsel for the petitioners and the learned Senior counsel and other counsel for the respective respondents and perused the material on record.

11. The petitioners have placed reliance on the following decisions:-

(i) Chimanlal Har Govind Das vs. Special Land Acquisition Officer – (1988) 3 SCC 751;

(ii) Ram Chand vs. Union of India – (1994) 1 SCC 44;

(iii) Competent Authority vs. Barangore – Jute Factory – (2005) 13 SCC 477;

(iv) Himalayan Tiles vs. Francis Victor Coutinho – (1980) 3 SCC 223;

(v) Peerappa Hanamantha Harijan vs. State of Karnataka – (2015) 10 SCC 469;

(vi) Venkatashamappa vs. State of Karnataka – ILR 2003 KAR 4496;

(vii) Naresh Kumar vs. State – (2019) 9 SCC 416;

(viii) Vijayadevi Naval Kishore Bhartia vs. Land Acquisition Officer – (2003) 5 SCC 83;

(ix) Ashok Kumar Sahu vs. Union of India – (2006) 6 SCC 704;

(x) Ashok Kumar Das vs. Universty of Burdwan – (2010) 3 SCC 616;

(xi) R. Annadanappa vs. State of Karnataka – W.P.Nos.31018-19/2012 Dated 20.12.2013;

(xii) M/s.Granules India vs. Union of India – Civil Appeal 593-594 of 2020 – Dated 23.01.2020;

(xiii) Bailamma vs. Purna Prajna House Building Co- operative Society – (2006) 2 SCC 416;

(xiv) Purtabpore Co. vs. Cane Commissioner – (1969) 1 SCC 308;

(xv) Bahadur Sinh Lakhubhai Gohil vs. Jagadish Bai M.Kamalia – (2004) 2 SCC 65;

(xvi) State of Karnataka vs. All India Manufacturers Association – (2006) 4 SCC 683;

(xvii) KIADB vs. Hanumakka & Others – MFA Nos.101713/2016 & connected matters Dated 08.01.2018;

(xviii) Smt.M.Shakuntalamma vs. State of Karnataka – W.P.Nos.64702/2016 Dated 08.08.2017;

(xix) Unitech Limited vs. TSIIC – 2021 SCC Online 99;

12. Per contra, the respondents have placed reliance upon the following decisions:-

(i) Peerappa Hanamantha Harijan vs. State of Karnataka – (2015) 10 SCC 469;

(ii) Satish Kumar Gupta vs. State of Haryana – (2017) 4 SCC 760;

(iii) Defence Enclave Resident’s Society vs. State of U.P. – (2004) 8 SCC 321;

(iv) Arun Kumar Agarwal vs. Smt.Radha Arun – ILR 2004 KAR 808;

(v) Kasturi vs. Iyyamperumal – (2005) 6 SCC 733;

(vi) Special Land Acquisition Officer vs. Anasuya Bai– (2017) 3 SCC 313;

(vii) Competent Authority vs. Barangore – Jute Factory – (2005) 13 SCC 477;

(viii) Gauri Shankar Gour vs. State of U.P. – (1994) 1 SCC 92;

(ix) Haji Saeed Khan vs. State of U.P. – (2001) 9 SCC 513;

(x) Razia Begum vs. Saheb Zyadi Anwar Begum – AIR 1958 SC 886;

(xi) Vijayadevi Naval Kishore Bhartia vs. Land Acquisition Officer – (2003) 5 SCC 83;

(xii) N.Boman Behram vs. State of Mysore – (1974) 2 SCC 316;

(xiii) Bangalore Mysore Infrastructure Corridor Area Planning Authority vs. Nandi Infrastructure Corridor Enterprise Ltd., - AIR 2020 SC 2747.

13. After having heard the learned Senior counsel and counsel for the parties, the following points arise for consideration:-

“ (i) Whether the petitioners do not have locus standi to maintain the present petition as contended by the respondents?

(ii) Whether the petition involving contractual matters is maintainable before this Court?

(iii) Whether the impugned awards are just, legal and proper?”

14. Before adverting to the rival contentions, it is necessary to refer to the undisputed facts leading to the present petitions, which are as under:-

(i) On 03.04.1997, FWA was entered into between petitioners and 1st respondent – State for implementation of the BMIC Project; subsequently, on 14.10.1998, petitioners have entered into an Agreement in this regard with the KIADB.

(ii) During the period from 19.12.1998 to 23.03.2009, preliminary notifications were issued by the State under Section 28(1) of the KIAD Act in an extent of 344 acres.

(iii) Between 18.02.2003 and 02.06.2009, final notifications under Section 28(4) of KIAD Act were issued.

(iv) Between 18.10.2003 and 19.07.2012, possession of the lands were taken by KIADB and handed over to petitioner No.2 vide possession certificates.

(v) On 01.07.2009, petitioners issues a letter to KIADB requesting them to pay compensation by passing awards; since KIADB does not pass any awards, one more letter dated 16.03.2012 was written by petitioners to KIADB.

(vi) Since no awards were passed, W.P.Nos.35638- 639/2012 were filed by the petitioners seeking directions to the SLAOs – KIADB to pass awards; on 29.11.2013, this Court allowed the said petitions and directed the SLAOs –KIADB to pass awards within a period of six months from the date of receipt of the copy of the order.

(vii) I.A.1/2014 and I.A.2/2014 were filed by the SLAOs – KIADB in W.P.Nos.35638-639/2012 seeking extension of time stipulated in the aforesaid order dated 29.11.2013; on 18.12.2014, this Court extended the period up to 31.03.2015; the contempt proceedings initiated by the petitioners in CCC Nos.1663-1664/2014 were withdrawn with liberty to file a fresh petition, if the need so arose.

(viii) On 31.03.2015, one more application I.A.1/2015 in W.P.Nos.35638-639/2012 was filed by the SLAOs – KIADB seeking extension of time yet again; the said application was not pressed.

(ix) On 01.07.2015, SLP (C) Nos.8858-59/2015 filed by the KIADB against the order dated 29.11.2013 passed by this Court in W.P.Nos.35638-639/2012 was dismissed as withdrawn at the instance of KIADB.

(x) On 27.09.2016, the KIADB filed one more application I.A.1/2016 in W.P.Nos.35638-639/2012 once again seeking extension of time; even this application was not pressed.

(xi) On 04.10.2016, I.A.2/2016 was filed by the SLAOs – KIADB in W.P.Nos.35638-639/2012 seeking clarifications regarding deposit to be made by the petitioners in terms of the Agreement dated 14.10.1998 entered into between petitioners and KIADB; by order dated 27.10.2017, this Court disposed of the said application by making certain observations.

(xii) Meanwhile, the State had filed review petition in R.P.No.310/2016 seeking review of this Court’s order passed in W.P.Nos.35638-639/2012; by order dated 02.12.2016, this Court dismissed the review petition also.

(xiii) Subsequent to the aforesaid litigations and orders, the SLAOs started passing the awards; between March, 2018 and June, 2018, awards were passed in respect of 194 acres out of 344 acres amounting to Rs.53.72 crores.

(xiv) On 03.11.2018, the aforesaid awards were sent by KIADB for approval to the State Government along with a letter dated 03.11.2018; however, on 13.11.2018, the KIADB withdrew the said letter stating that the Chief Secretary had put up a note that if awards were passed, the stand / defence of the State Government before the Apex Court would be weakened and that it was necessary to obtain the opinion of the Advocate General and proceed thereafter.

(xv) Meanwhile, the contempt proceedings in CCC No.615/2015 filed by petitioners, vide order dated 20.12.2018, this Court directed notice on the application for impleadment of CEO & EM of KIADB as a party to the contempt proceedings; on 09.04.2019, the contempt matter was adjourned pursuant to the submissions made by the learned Advocate General that the awards would be passed within a period of two weeks.

(xvi) On 16.04.2019, the learned Advocate General rendered an opinion that awards have to be passed in terms of the earlier proceedings, events and orders; however, in the said opinion, it is stated that the while passing the awards, the market value as on date has to be taken on account of enormous delay in passing the awards; KIADB forwarded the opinion to the Special Deputy Commissioner (BMICP) and SLAOs – KIDAB directing them to pass the awards as per the opinion of the learned Advocate General.

(xvii) On 22.04.2019, the SLAOs wrote letters to the Special Deputy Commissioner (BMICP) raising certain queries with regard to passing of fresh awards and the compensation to be calculated in view of awards already passed by them and sent for approval on 03.11.2018; in response to the said letters, the CEO of KIADB once again addresses a letter dated 22.04.2019 to the Special Deputy Commissioner (BMICP) and the SLAO – KIADB instructing them to pass the awards as directed in the letter dated 16.04.2019.

(xviii) On 22.04.2019, 4th respondent – SLAO passed the impugned award in respect of 126 acres 13.64 guntas amounting to Rs.407.87 crores and sent the same for approval to the State Government on 23.04.2019.

(xix) On 04.05.2019, 5th respondent – SLAO passed the impugned award in respect of 115 acres 38.23 guntas amounting to Rs.157.43 crores and sent the same for approval to the State Government on 08.05.2019.

(xx) On 24.05.2019, the State Government granted approval for the said awards, subject to the condition that the KIADB would be responsible and liable for payment of compensation of Rs.565,30,55,768/- in respect of 242 acres 11.87 guntas;

(xxi) The legality, validity and correctness of the aforesaid awards have been assailed in the present petitions.

In the backdrop of the aforesaid undisputed facts and circumstances, the points formulated above are taken up for consideration.

Re-Point No.1:-

15. The first question that arises for consideration is, whether the petitioners have locus standi to challenge the impugned awards in the present petitions.

15.1 As stated supra, W.P.Nos.35638-639/2012 were filed by the petitioners seeking a direction to the respondents therein i.e., the State Government and KIADB to pass awards pursuant to the acquisition notifications. In the said petitions, the respondents herein took up an identical defence with regard to the petitioners not having locus standi to maintain the writ petitions. This contention has been noticed by this Court in its final order dated 29.11.2013, wherein, at paragraph-14, this Court has referred to the said contention regarding lack / want of locus standi urged by the respondents and has come to the conclusion at paragraph-26 of the order that the petitioners herein are the beneficiaries of the acquisition since the land has been acquired for BMICP project and has recorded a categorical finding that the petitioners have locus standi to maintain the writ petitions. The said finding recorded by this Court is as under:-

“ 14. As against this, the learned counsel for the respondents-1 to 4 submitted that petitioners have no locus standi to maintain the writ petitions. Inviting our attention to Section 29 of the KIADB Act, the learned counsel for the respondents 1 to 4 submitted that petitioners are not interested persons and they have no locus standi to maintain the writ petitions. He also submitted that awarding of compensation is a matter between the State and land owners and the petitioners have nothing to do with it. He placed reliance on the decision of the Hon’ble Supreme Court reported in (2010) 14 SCC page 285 WEST BENGAL STATE WAREHOUSING CORPORATION vs INDRAPURI STUDIO PRIVATE LIMITED & ANOTHER to contend that the petitioners are not interested persons and therefore, they have no locus standi to maintain the writ petitions. He also submitted that the Secretary to PWD department, Government of Karnataka has filed an affidavit before the Hon’ble Supreme Court in contempt proceedings stating that excess of 554 acres of land has been handed over and it is contrary to the frame work agreement. Since the matter is seized before the Hon’ble Supreme Court, this court cannot direct the respondents to pass the awards. He also submitted that the decisions relied upon by the learned counsel for the petitioners do not apply to the fact situation of the present case. Therefore, the writ petitions may be dismissed.

15. The learned counsel for the applicants in I.A.Nos.1/2013, 2/2013 & 3/2013 contended that impleading applicants are necessary parties to the proceedings and therefore, they may be impleaded. It was also contended that an affidavit has been filed before the Hon’ble Supreme Court stating that excess of land has been handed over and the lands of the applicants are not required for the project and Civil Appeals are pending before Hon’ble Supreme Court and therefore, the applicants may be impleaded as parties to the proceedings.

16. The learned counsel for the respondents-2 & 3 submitted that PWD is a necessary party to the proceedings being a nodal agency and therefore, it may be impleaded as party to the proceedings.

17. We have carefully considered the submissions made by the learned counsel for the parties.

18. The points that arise for our consideration are:

(i) Whether I.A.Nos.1/2013, 2/2013, 3/2013 & 4/2013 need to be allowed?

(ii) Whether the respondents-3 & 4 can to be directed to pass the awards?

POINT NO. 1:

19. I.A.Nos.1/2013, 2/2013 & 3/2013 have been filed by the applicants who are the land owners to implead them as parties to the proceedings. I.A.No.4/2013 has been filed by the respondents 2 and 3 to implead PWD as party to the proceedings. The applicant in I.A.No.1/2013 is the owner of Sy.No.64/1 measuring 3 acres 1 gunta of Gottigere village. The applicant in I.A.No.2/2013 is the owner of Sy.No.44/1 measuring 2 acres 23 guntas of Madavara village. The applicant in I.A.No.3/2013 is the owner of Sy.No.34/3 measuring 1 acre 18 guntas of Doddathogur village. The lands of the applicants have been acquired for BMIC project. Possession has been handed over. The applicant in I.A.No.1/2013 has preferred Civil Appeal before Hon’ble Supreme Court in Civil Appeal No.761/2013. However, there is no stay or any other interim order restraining not to pass any award. The land has been acquired and acquisition proceedings have been upheld and there is no stay restraining not to pass any award. Therefore, in our considered view, the presence of the applicants is not required to consider the relief claimed in the writ petitions. Therefore, I.A.Nos.1/2013, 2/2013 & 3 /2013 are hereby rejected. Similarly, PWD is not a necessary party to the proceedings. Accordingly, I.A.No.4/2013 is hereby rejected.

POINT NO.2:

20. Insofar as the question as to whether the respondents-3 & 4 can to be directed to pass the awards is concerned, it is not in dispute that 344 acres of land mentioned in Annexure-A has been acquired for BMIC project. It is also not in dispute that possession of the land has been handed over to the petitioners. The acquisition proceedings have been concluded upto the Apex Court.

21. It was contended by the learned counsel for the respondents that Secretary, PWD department has filed an affidavit before the Hon’ble Supreme Court stating that excess of land has been handed over. The contention regarding excess of land has been considered by the Hon’ble Supreme Court in M.NAGABHUSHANA vs. STATE OF KARNATAKA AND OTHERS reported in 2011(3) SCC page 408. Hon’ble Supreme Court has observed as follows:

“38. In that view of the matter, this Court makes it clear that the State Government should complete the project as early as possible and should not do anything, including releasing any land acquired under this project, as that may impede the completion of the project and would not be compatible with the larger public interest which the project is intended to serve.”

Similarly, in contempt proceedings No.144/2006 in Civil Appeal Nos.3492-3294/2005, the Hon’ble Supreme court has observed that no land shall be denotified by the State Government until further orders. Therefore, it is clear that the contention regarding excess of land has been considered by the Hon’ble Supreme Court. Absolutely there is nothing on record to show as to which is that excess of land that has been handed over. It is stated, about 554 acres of land has been handed over in excess. The land involved in this case is about 344 acres. In the absence of any material to show with regard to excess of land handed over. It is difficult to accept the contention of the respondents and accordingly, it is rejected.

22. The Learned counsel for the petitioners contended that the petitioners have no locus standi to maintain the writ petitions. He placed reliance on the decision of Hon’ble Supreme Court reported in (2010) 14 SCC page 285 WEST BENGAL STATE WAREHOUSING CORPORATION vs INDRAPURI STUDIO PRIVATE LIMITED & ANOTHER.

23. As against this, the learned counsel for the petitioners contended that petitioners being the beneficiaries are interested persons and therefore, they can maintain the writ petitions.

24. In WEST BENGAL STATE WAREHOUSING CORPORATION Vs INDRAPURI STUDIO PRIVATE LIMITED AND ANOTHER (2010) 14 SC 285), the Hon’ble Supreme Court considering Section 2(d) of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 has held that beneficiaries have no locus standi to participate in the process of determination of compensation. However, in the decisions relied upon by learned counsel for the petitioners namely HIMALAYAN TILES AND MARBLE PRIVATE LIMITED V/S FRANCIS VICTOR COUTINHO reported in (1980) 3 SCC page 223, NEELANGANGABAI & ANOTHER vs STATE OF KARNATAKA & OTHERS reported in (1990)3 SCC page 617, N KRISHNAMACHARI vs MANAGING DIRECTOR, APSRTC, HYDERABAD & OTHERS reported in (1994)6 SCC page 74, NEYVELY LIGNITE CORPORATION LIMITED vs SPECIAL TAHSILDAR (LA) reported in (1995)1 SCC page 221 and DELHI DEVELOPMENT AUTHORITY vs BHOLA NATH SHARMA & OTHERS reported in (2011)2 SCC page 54, the Hon’ble Supreme Court considering the provisions of Land Acquisition Act has held that beneficiaries are interested persons and they have locus standi.

25. Section 2(11) of the KIADB Act provides that the expression ‘land’ and expression ‘persons interested’ have the same meaning assigned to them in Section 3 of the Land Acquisition Act, 1984.

26. Section 3(1) of the Land Acquisition Act defines the expression ‘person interested’ as follows:

“3(1):- The expression “person interested” includes all person claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land;”

Considering this provision, the Hon’ble Supreme Court has held that the person interested includes beneficiaries of acquisition also. Therefore, there is no merit in the contention that the beneficiaries are not interested persons and they cannot maintain the writ petitions. The land has been acquired for BMIC project. The petitioners are the beneficiaries. They have to pay the compensation, acquisition expenses and interest for the delayed period. Therefore, it cannot be said that the petitioners have no locus standi to maintain the writ petitions. Accordingly, it is rejected”.

15.2 It is an undisputed fact that the said judgment of this Court in the earlier round of litigation inter-parties in respect of the very same subject matter has attained finality and become conclusive and binding upon the State as well as the KIADB, whose contentions that the petitioners are not the beneficiaries and that they do not have locus standi have been rejected by this Court and consequently, the said findings operate as res judicata and places an embargo on the respondents to re-agitate and put forth the very same contentions all over again in the present petitions, which is clearly contrary to public policy and principles of res judicata. Under these circumstances, it is clear that in the light of the findings recorded in W.P.Nos.35638-638/2012, the petitioners herein have locus standi to maintain the present petitions on this ground alone.

15.3 A perusal of the material on record will also indicate that the various undisputed facts and circumstances which cumulatively establish that the petitioners are the beneficiaries of the acquisition and that they are not post acquisition allottees are as under:

* The Frame Work Agreement dated 03.04.1997 entered into between petitioners and the State as well as the Agreement dated 14.10.1998 between petitioners and KIADB, both prior to the preliminary notifications indicate that the land was acquired for the purpose of the petitioners’ BMIC Project.

* The covenants in the aforesaid Agreements that lands would be acquired for the purpose of the BMIC project of the petitioners.

* The various Government Orders including the orders dated 18.01.1997, 30.04.1997 and 04.07.1998, whereby various posts were created comprising of the Special Deputy Commissioners, SLAOs, Staff etc., exclusively dedicated and appointed for the purpose of BMIC project.

* The acquired land were handed over solely and exclusively to the petitioners and not any one else; in other words, the entire extent of land acquired under the subject acquisition was handed over only to the petitioners and no portion of acquired land was handed over or given / granted in favour of any one else.

* Except issuing possession certificates thereby handing over possession of the acquired lands to the petitioners, no allotment letter, lease-cum-sale agreement etc., which created right in favour of the petitioners, post agreements were executed thereby indicating that the entire acquisition was for the benefit of the petitioners.

* Reference to BMIC Project in the preliminary and final notifications as well as the awards also indicate that the land was acquired for the benefit of the petitioners.

* The mutual conduct of the petitioners, State Government and KIADB pre- acquisition and post – acquisition also indicate that both the State Government and KIADB have throughout held and represented that the lands were acquired for the benefit of the petitioners.

15.4 In the case of Himalayan Tiles (supra), the Apex Court held as under:-

8. It seems to us that the definition of “a person interested” given in Section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation. In the instant case, it is not disputed that the lands were actually acquired for the purpose of the company and once the land vested, in the Government, after acquisition, it stood transferred to the company under the agreement entered into between the company and the Government. Thus, it cannot be said that the company had no claim or title to the land at all. Secondly, since under the agreement the company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay a very heavy amount of money. For this purpose, the company could undoubtedly appear and adduce evidence on the question of the quantum of compensation.

9. So far as this aspect of matter is concerned, there appears to be a general consensus of judicial opinion that even though the company may not have any title to the property yet it certainly has a right to appear and put forward its case in the matter of determination of the quantum of compensation. In the case of Sunder Lal v. Paramsukhdas [AIR 1968 SC 366 : (1968) 1 SCR 362 : (1968) 1 SCJ 685] this Court observed as follows:

“It will be noticed that it is an inclusive definition. It is not necessary that in order to fall within the definition a person should claim an interest in land, which has been acquired. A person becomes a person interested if he claims an interest in compensation to be awarded. It seems to us that Paramsukhdas is a “person interested” within Section 3(b) of the Act because he claims an interest in compensation . . . .

It seems to us that Paramsukhdas was clearly a person interested in the objections which were pending before the court in the references made to it and that he was also a person whose interest would be affected by the objections, within Section 21. He was accordingly entitled to be made a party.”

10. In the case of Hindustan Sanitary-ware and Industries Ltd., Bahadurgarh v. State of Haryana [AIR 1972 P&H 59] Pandit, J. observed as follows:

“From the facts stated above, it is apparent that the compensation amount has to be paid by the two companies. If the said amount is increased by the learned Additional District Judge on a reference under Section 18 of the Land Acquisition Act, it would be the two companies, who would be prejudiced No authority even was cited by him that under similar circumstances any court had ever held that the persons, who had actually to pay the compensation, could not be allowed to lead evidence and say that the compensation amount be not enhanced.”

11. In the case of Comilla Electric Supply Ltd. v. East Bengal Bank Ltd., Comilla [AIR 1939 Cal 669 : 43 CWN 973 : (1939) 2 ILR 401 : 186 IC 17] while the High Court took the view that the company for whose benefit the land was acquired may not strictly be an interested person yet it had undoubtedly a right to appear and adduce evidence on the quantum of compensation. In this connection, Mukherjea, J., observed thus:

“Section 50, clause (2) purports to remedy this disability and it lays down that in any proceeding held before a Collector or court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation. The reason is plain. It is the company or the local authority who has got to pay the money in such cases and it would be unjust to deny them the right to appear and adduce evidence which would have a bearing on the amount of the compensation money.”

Roxburgh, J. made the observations:

“Thus the first question for decision is clearly settled by the above decision and there can be no doubt that in the circumstances at present being considered the company is a person interested, as defined in the Act, and is entitled to require a reference under Section 18 unless that right is restricted by the terms of the proviso to Section 50(2).”

12. In the case of M. Kuppuswami v. Special Tahsildar (L. A.) II Industrial Estate, Ambathur at Saidapet, Madras [(1967) 1 MLJ 329] Venkatadri, J. interpreting the definition of “interested person” observed as follows:

“The only question for consideration therefore is whether the petitioner is a person interested as defined in Section 3(b) of the Land Acquisition Act.

The definition section says that the expression ‘person interested’ includes all persons claiming an interest in compensation to be made on account of the acquisition of land under the Act. The expression ‘person interested, is very comprehensive and it does not profess to give an exhaustive definition. The expression ‘person interested’ has been interpreted by various courts, and the trend of the opinion seems to be that I should give a liberal interpretation. . . .

On a review of the case-law on the subject, it seems to me that the expression ‘person interested’ does not require that a person must really have an interest in the land sought to be acquired. It is enough if he claims an interest in compensation, as distinguished from an interest in the property sought to be acquired. As long as a person claims an interest in the compensation, he is a person interested within the meaning of the definition of that expression.”

13. The only case which appears to have taken a contrary view is a Division Bench decision of the Orissa High Court in the case of State of Orissa through the Land Acquisition Collector, Sambalpur v. Amarandra Pratap Singh [AIR 1967 Ori 180 : ILR 1967 Cut 510] where the High Court held that the expression “person interested” did not include a local authority or a company on whose behalf acquisition is made by the State. At the same time, it was clearly held that it was open to the company in any proceeding before the Collector or court to appear and adduce evidence for the purpose of determining the amount of compensation.

14. Thus, the preponderance of judicial opinion seems to favour the view that the definition of “person interested” must be liberally construed so as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation. In our opinion, this view accords with the principles of equity, justice and good conscience. How can it be said that a person for whose benefit the land is acquired and who is to pay the compensation is not a person interested even though its stake may be extremely vital? For instance, the land acquisition proceedings may be held to be invalid and thus a person concerned is completely deprived of the benefit which is proposed to be given to him. Similarly, if such a person is not heard by the Collector or a court, he may have to pay a very heavy compensation which, in case he is allowed to appear before a court, he could have satisfied it that the compensation was far too heavy having regard to the nature and extent of the land. We are, therefore, unable to agree with the view taken by the Orissa High Court or even by the Calcutta High Court that a company, local authority or a person for whose benefit the land is acquired is not an interested person. We are satisfied that such a person is vitally interested both in the title to the property as also in the compensation to be paid therefor because both these factors concern its future course of action and if decided against him, seriously prejudice his rights. Moreover, in view of the decision of this Court referred to above, we hold that the appellant was undoubtedly a person interested as contemplated by Section 18(1) of the Act. The High Court, therefore, committed an error in throwing out the appeal of the appellant on the ground that it had no locus to file an appeal before the Bench.

15.5 As held by the Apex Court in the aforesaid judgment coupled with the FWA and Agreement as well as other circumstances referred to above, in particular, the decision of this Court in W.P.Nos.35638-639/2012, I am of the considered opinion that the petitioners are the beneficiaries of the subject acquisition and that they have locus standi to maintain the present petitions.

15.6 The material on record indicates that the petitioners have sufficient locus standi to file the present petitions, since they are the beneficiaries of the subject acquisition which has been recognised, confirmed and upheld by this Court in W.P.Nos.35638-639/2012 dated 29.11.2013 and the said finding having attained finality and become conclusive and binding upon the respondents, the petitioners have sufficient locus standi; the decisions of the Apex Court in Peerappa’s case and Satish Kumar Gupta’s case are not applicable to the facts of the instant case, particularly when the petitioners was not a post acquisition allottee but a beneficiary who had entered into agreements with the State Government as well as KIADB prior to the preliminary notification coupled with the other material on record which indicates that the subject lands under the impugned awards were acquired pursuant to the said agreements and for the sole and exclusive benefit of petitioners and not any one else and consequently, the petitioners have locus standi to file the present petitions.

15.7 Insofar as the reliance placed by the respondents on Peerappa’s case (supra), in order to contend that it is the KIADB which is the beneficiary and not the petitioners herein is concerned, the said judgment is not applicable to the facts of the instant case for the simple reason that the judgment in W.P.Nos.35638-639/2012 was rendered inter-parties on 29.11.2013 prior to the decision in Peerappa’s case (supra), which was rendered on 30.07.2015; so also, the facts obtaining in Peerappa’s case were completely different from the facts of the instant case and the judgment of the Apex Court in Himalayan Tiles’ case (supra) has been distinguished in Peerappa’s case entirely on facts; under these circumstances, having regard to the peculiar and special facts obtaining in the instant case, which are distinguishable from the facts in Peerappa’s case, I am of the considered opinion that the judgment of the Apex Court in Peerappa’s case is not applicable to the facts of the instant case.

15.8 Similarly, the judgment of the Apex Court in Satish Kumar’s case (supra) was also rendered in the context of a post-acquisition allottee who had not entered into any pre-acquisition agreements, transactions etc., with either the State Government or the statutory authority and consequently, even this judgment rendered in a completely different fact situation cannot be said to be applicable to the facts and circumstances of the case on hand and consequently, no reliance can be placed on this judgment to come to the conclusion that the petitioners do not have locus standi to maintain the present petitions.

In view of the aforesaid discussion, Point No.1 is answered in favour of the petitioners by holding that they are the beneficiaries of the acquisition and that they have locus standi to maintain the present petitions.

Re-Point No.2:-

16. The next question that arises for consideration is, whether the present petitions relating to issues involving contractual matters i.e., the FWA dated 03.04.1997 and the Agreement dated 14.10.1998 entered into between the petitioners, the State and the KIADB respectively, is maintainable as contended by the respondents.

16.1 In this context, it is relevant to state that this very defence with regard to maintainability of the petitions was urged by the respondents in the earlier round of litigation which culminated before the Apex Court in the case of All India Manufacturers’s case (supra), wherein, the Apex Court held as under:-

The relief granted by the High Court

58. One final argument was made by Mr Divan as regards the relief granted by the High Court. To appreciate the argument, it is necessary to look at the relief granted in terms of para 42.2, which is as follows:

“Writ Petitions Nos. 45334 and 48981 of 2004 are allowed directing the State of Karnataka and all its instrumentalities including the Board to forthwith execute the Project as conceived originally and upheld by this Court in Somashekar Reddy case [(1999) 1 KLD 500 : (2000) 1 Kant LJ 224 (DB)] and implement the FWA in letter and spirit. Consequently, government orders dated 4-11-2004 and 17-12-2004 constituting the Review Committee and Expert Committee are quashed. The report submitted by these committees in pursuance to these orders and all subsequent actions taken incidental thereto are also quashed. Nandi is also directed to implement the Project as expeditiously as possible. Parties will bear their own costs in these two cases.”

59. Mr Divan strongly urged that the relief granted was wholly beyond the jurisdiction of the High Court under Article 226 of the Constitution, as it would amount to granting a decree for specific performance in writ jurisdiction. A reading of the relief granted by the High Court does not persuade us that it is so. The High Court merely directed that the Project and the FWA, as conceived originally and upheld by the High Court in Somashekar Reddy [(1999) 1 KLD 500 : (2000) 1 Kant LJ 224 (DB)] , should be implemented “in letter and spirit”. In other words, the High Court said that there is no scope for raising frivolous and mala fide objections for ulterior purposes. This, the High Court was fully entitled to do. It is trite law that when one of the contracting parties is “State” within the meaning of Article 12 of the Constitution, it does not cease to enjoy the character of “State” and, therefore, it is subjected to all the obligations that “State” has under the Constitution. When the State's acts of omission or commission are tainted with extreme arbitrariness and with mala fides, it is certainly subject to interference by the constitutional courts in this country. We may refer to Gujarat State Financial Corpn. v. Lotus Hotels (P) Ltd. [(1983) 3 SCC 379] in which a statutory corporation (the Gujarat State Financial Corporation) arbitrarily refused to grant the sanction of loans to entrepreneurs who had already acted on the basis of the sanction and had incurred expenditure and liabilities. The argument that the transaction was purely a contractual arrangement between the parties and, therefore, not amenable to writ jurisdiction, was categorically rejected by the following observations:

“13. Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct, to the respondent. In such a situation, the Court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty. A petition under Article 226 of the Constitution would certainly lie to direct performance of a statutory duty by ‘other authority’ as envisaged by Article 12.” [Ibid., at p. 387, para 13, per D.A. Desai, J.]

60. Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212 : 1991 SCC (L&S) 742] is another authority for the proposition that the State Government has to act reasonably and without arbitrariness even with regard to the exercise of its contractual rights. [Ibid., at pp. 235-43] In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay [(1989) 3 SCC 293 : AIR 1989 SC 1642] the situation was one in which a lease between the Bombay Port Trust and certain parties was terminated in exercise of contractual rights and the lease rent was abnormally increased. It was held that there was always an obligation on the part of public authorities in their acts of omission and commission to be reasonable. In Biman Krishna Bose v. United India Insurance Co. Ltd. [(2001) 6 SCC 477] the question was whether an insurance company could arbitrarily and unreasonably refuse the renewal of a policy. Considering that the insurance company, as a result of State monopoly in the insurance sector, had become “State” under Article 12 of the Constitution, this Court held that:

“… it [the insurance company] requires (sic) to satisfy the requirement of reasonableness and fairness while dealing with the customers. Even in an area of contractual relations, the State and its instrumentalities are enjoined with the obligations to act with fairness and in doing so, can take into consideration only the relevant materials. They must not take any irrelevant and extraneous consideration while arriving at a decision. Arbitrariness should not appear in their actions or decisions.” [Ibid., at p. 481, para 3, per V.N. Khare, J.]

61. Thus, it appears that no exception could be taken to relief granted in the judgment of the High Court impugned before us. All that the High Court has done is to reaffirm and require the State Government and its instrumentalities, as “State” under the Constitution, to act without arbitrariness and mala fides, especially in the matter of land acquisition. It is pertinent to note that the State had agreed (vide clause 5.1.1.1 of the FWA) in respect of the lands required under the FWA, that:

“GOK shall use its best efforts and cause its governmental instrumentalities to use their best efforts, to exercise its and their legal right of eminent domain (or other right of similar nature) under the laws of India to acquire the acquired land. Prior to acquiring any acquired land, GOK will obtain from the Company written confirmation of its willingness to purchase such acquired land from GOK at the purchase price (whether in the form of cash or comparable land) required under the laws of India (the ‘acquired land compensation’). GOK shall offer to the expropriated owners of the land the rehabilitation package specifically worked out for this Infrastructure Corridor Project with mutual consultation of the consortium and the Revenue Authorities in accordance with the applicable rules.”

62. In these circumstances, we find no reason to interfere with the said directions of the High Court. In the future also, we make it clear that while the State Government and its instrumentalities are entitled to exercise their contractual rights under the FWA, they must do so fairly, reasonably and without mala fides; in the event that they do not do so, the Court will be entitled to interfere with the same.

16.2 As can be seen from the aforesaid judgment, the Apex Court has categorically held that in future also, the State Government and its instrumentalities (KIADB) are duty bound to exercise their contractual rights under the FWA fairly, reasonably and without mala fides and in the event they do not do so, the Court would be entitled to interfere with the same. In the light of the specific finding and direction recorded by the Apex Court in relation to the FWA, I am of the view that the said defence urged by the respondents regarding maintainability of the petitions cannot be accepted.

16.3 It is also relevant to state that there is no nexus or connection between the validity, legality or correctness of the impugned awards to the FWA or the Agreement entered into between the petitioners and respondents; the dispute with regard to the impugned awards that arises in the present petitions does not relate to contractual matters / disputes but rather to the validity and legality of the impugned awards; merely because the petitioners have entered into Agreements with the respondents, it cannot be said that the issue in controversy involves dispute of contractual nature that cannot be decided in the present petitions and as such, the said contention urged by the respondents with regard to maintainability of the petitions is liable to be rejected.

16.4 The material on record also discloses that the duty cast upon the respondents to act fairly, justly and reasonably in relation to the Agreements entered into between them and the petitioners has been recognised, confirmed and upheld by the Apex Court as well as this Court in the earlier round of litigation including the case of State of Karnataka vs. All India Manufacturers Organisation – (2006) 4 SCC 683, wherein the jurisdiction of this Court to interfere under Article 226 of the Constitution of India has been upheld; the said decision inter-parties between the petitioners and respondents has attained finality and become conclusive and binding upon the respondents and consequently, it cannot be said that the petitions are not maintainable.

16.5 It is also significant to note that mere existence of a contract or an arbitration clause in the same does not oust the jurisdiction of this Court to exercise its jurisdiction under Article 226 of the Constitution of India as held in several decisions of the Apex Court as well as this Court including the decision in the case of Unitech Limited vs. TSIIC – 2021 SCC Online SC 99; accordingly, the petitions are maintainable on this ground also.

16.6 A perusal of the material on record will indicate that the issues in controversy that arise for consideration in the present petitions is with regard to the legality, validity and correctness of the impugned awards; enforcement of the rights and liabilities of the parties to the FWA or the Agreement between the petitioners and KIADB is not the subject matter involved in the present petitions; in other words, the legality or validity of the impugned awards does not arise out of any contractual dispute / matter arising out of aforesaid Agreements or its covenants and in the absence of disputed / complicated questions of fact arising in relation to the said Agreements coupled with the fact that the present dispute is only with regard to the impugned awards, it cannot be said that merely because the petitioners had entered into the FWA and Agreement with the respondents, the present dispute relates to contractual matters and are not capable of being adjudicated by this Court under Article 226 of the Constitution of India.

16.7 In the case of Unitech Limited case (supra), after referring to its earlier judgments, the Apex Court has reiterated that even if there was arbitration clause in a contract, a writ petition was maintainable and the same does not preclude this Court from exercising its jurisdiction under Article 226 of the Constitution of India. It is also relevant to state that the scope of the present petitions is with regard to the action of the State and the KIADB in passing the impugned awards and not with regard to interpretation or enforcement of contractual rights and liabilities under the Agreements and since no complicated / disputed questions of fact require adjudication for the purpose of determining the legality or validity of the impugned awards, I am of the view that the present petitions are maintainable.

Accordingly, Point No.2 is also answered in favour of the petitioners by holding that the petition is maintainable and by rejecting the various contentions urged by the respondents in this regard.

Re-Point No.3:-

17. Having come to the conclusion that the present petitions filed by NICE are maintainable and that NICE has locus standi to maintain the petitions, the next question that arises for consideration is whether the impugned awards are sustainable in law.

17.1 As stated supra, since the respondents did not pass awards even after a long lapse of time, petitioners approached this Court in W.P.Nos.35638-639/2012 wherein directions were issued to the respondents to pass awards; the said judgment of this Court attained finality despite attempts made by the respondents to challenge the same. Meanwhile, litigations in relation to the acquisition were also pending before this Court as well as before the Apex Court. It was only after the said directions issued to the State and the KIADB to pass awards were reiterated by this Court vide order on I.A.2/2016 in W.P.Nos.35638- 639/2012 dated 27.10.2017 that the SLAOs started passing awards between March, 2018 to June, 2018. It is an undisputed fact that the KIADB sent the said awards for approval to the State Government on 03.11.2018; however, the same were withdrawn on 13.11.2018 in view of the note of the Chief Secretary that if the awards are passed, the stand of the State Government with regard to excess land would be weakened and the opinion of the learned Advocate General has to be obtained before proceeding further.

17.2 In this context, it is relevant to state that a perusal of the letter at Annexure-Z dated 13.11.2018 written by the KIADB to the Principal Secretary, Department of Industries and Commerce, Bengaluru, will clearly indicate that both the original order dated 29.11.2013 passed by this Court in W.P.Nos.35638- 639/2012 as well as the aforesaid order dated 27.10.2017 have been referred to by the KIADB by stating that awards have been directed to be passed by this Court. The said letter also indicates that on 03.11.2018, the awards prepared by the SLAOs have been forwarded to the State Government; the said letter also refers to the note of the Chief Secretary which shows the details of the excess land of about 554 acres which were said to have been handed over to the petitioners and that several Affidavits have been filed before the Apex Court in contempt petition 96/2007 stating handing over of excess land of 554 acres to NICE as well as the fact that KIADB has handed over paper possession of 344 acres of land without passing award and without giving compensation to the land owners. The said note also states that the petitioners are asking for passing of awards for 344 acres of land based on this Court’s judgment in W.P.Nos.35638-639/2012, wherein it is directed that awards should be passed by holding that there is no proof of handing over excess land to the petitioners. In the said note, it is further stated that if the State Government and KIADB passes awards for 344 acres, the stand of the State Government before the Apex Court in the contempt proceedings will become weak and that the petitioners herein would argue that there is no excess land and will demand penalty of over Rs.25 crores from the State Government and KIADB. Under these circumstances, the Chief Secretary stated in the note that it was better to refer the file to the learned Advocate General for opinion regarding passing of award of 344 acres.

17.3 After referring to the aforesaid note, the KIADB requested the State Government to return the proposed award and that the same would be sent after the opinion of the learned Advocate General was taken in view of the aforesaid note of the Chief Secretary.

17.4 On 16.04.2019, learned Advocate General rendered an opinion that the KIADB and the State do not have any choice but to pass an award in view of the earlier orders passed by this Court in W.P.Nos.35638-639/2012; however, in the said opinion, it was stated that the market value of the property as on 16.04.2019 had to be taken having regard to the enormous delay in passing the award.

17.5 As can be seen from the aforesaid opinion rendered by the learned Advocate General, it is opined by him that the State and KIADB have no option / choice but to proceed to pass awards; however, the said opinion further states that the awards should take into account the market value as on date having regard to the enormous delay in passing the award; a perusal of the impugned awards will indicate that though Section 11 of the L.A.Act mandates that the market value should be reckoned as on the date of the preliminary notifications, the SLAOs have shifted the date to a date subsequent / later to the preliminary notifications based on the opinion of the learned Advocate General.

17.6 As rightly contended by the learned Senior counsel for the petitioners, the material on record, in particular the letter dated 03.11.2018 under which the KIADB sent the proposed awards for approval to the State Government will indicate that the SLAOs had taken the market value of the lands as on the date of the preliminary notifications; however, before the State Government could approve the said awards, the Chief Secretary put up a note with regard to passing of the awards on the ground that the defence of the State would be weakened before the Apex Court, if awards are passed and therefore, it is necessary that the opinion of the learned Advocate General had to be obtained; neither the letter dated 13.11.2018 written by the KIADB purporting to withdraw the proposed awards nor the note of the Chief Secretary or the query put forth to the learned Advocate General for opinion stated / indicated anything with regard to shifting of the date from the date of the preliminary notification; on the other hand, the letter, note and the query to the learned Advocate General was restricted and limited to only examining and giving an opinion with regard to feasibility of passing awards in the light of the contempt proceedings before the Apex court with regard to the excess land; needless to state that the said contempt proceedings did not relate to passing of the awards in respect of the lands already acquired. Under these circumstances, it is clear that the scope and ambit of the query posed to the learned Advocate General and the opinion sought for by him in the light of the undisputed directions issued by this Court in W.P.Nos.35638-639/2012 was only with regard to feasibility of passing the awards in view of the Apex Court proceedings and not with regard to shifting of the date; in other words, there was no occasion to consider the question with regard to shifting of the date from the date of the preliminary notification and the said shifting was not the subject matter of the earlier Court proceedings before this Court, proceedings before the Apex Court or the other material on record including the aforesaid communications, note, query etc., and consequently, the said opinion of the learned Advocate General which was clearly beyond the scope and ambit of the subject matter of opinion could not have been made the basis by the SLAOs to pass the impugned awards by shifting the date from the date of the preliminary notifications and the impugned awards are illegal, arbitrary and vitiated and liable to be quashed on this ground also.

17.7 As stated supra, pursuant to the aforesaid opinion of the learned Advocate General, the Principal Secretary writes a letter vide Annexure-P dated 16.04.2019 to the CEO, KIADB to take necessary steps and pass awards in terms of the said opinion of the learned Advocate General. Pursuant thereto, the CEO addresses a communication dated 20.04.2019 vide Annexure-Q to the Special Deputy Commissioner (BMICP) and SLAO (BMICP) calling upon them to immediately prepare and pass awards and send them for approval in terms of the opinion of the learned Advocate General. Upon receipt of the said letter, the SLAOs write letters at Annexures-R and S, both dated 22.04.2019 raising certain queries including, whether it was permissible to revise the awards already passed, since Section 13-A of the L.A.Act permitted only correction of clerical or arithmetical mistakes. In response thereto, the CEO, KIADB addressed a communication vide Annexure-T dated 22.04.2019 to the SLAOs and the Special Deputy Commissioner inter alia intimating them that under Rule 14 of the KIAD Rules, the SLAOs were empowered and authorised to pass awards and that accordingly, since the SLAOs were performing quasi judicial duties, it was not permissible to issue directions to them in this regard. It was also stated in the said letter that the awards prepared by the SLAOs earlier had not been approved and that since the contempt proceedings were coming up before the Apex Court on 24.04.2019, the SLAOs were directed to pass awards on the basis of the opinion of the Advocate General as well as the judgments of the Apex Court.

17.8 A perusal of the impugned awards will indicate that the opinion of the learned Advocate General as well as the judgments of the Apex Court referred to in the awards were the only two factors that were taken into account for the purpose of passing the awards by the SLAOs. As stated supra, in so far as the opinion of the learned Advocate General is concerned, the same with regard to shifting of the date to reckon the market value of the land from the date of the preliminary notification to a later date is concerned, the said opinion was beyond the scope and ambit of the query put forth to him and consequently, the said opinion could not have been made the basis by the SLAOs to pass the impugned awards.

17.9 Though it is sought to be contended by the respondents that the opinion of the learned Advocate General was not taken into account to pass the impugned awards, the said contention is clearly and factually incorrect in view of the aforesaid facts and circumstances, in particular, the correspondence referred to supra between the SLAOs, KIADB and the State Government, wherein the SLAOs have been directed to pass awards in consonance with and in terms of the said opinion. Under these circumstances, the said contention of the respondents that the opinion of the learned Advocate General did not have any bearing or impact on the impugned awards cannot be accepted.

17.10 The second factor/circumstance that has been taken into account by the SLAOs to shift the date to reckon the market value of the lands from the date of the preliminary notification to a later/subsequent dates is by placing reliance upon the following decisions of the Apex Court viz.,

a) Competent Authority Vs. Barangor Jute Factory C/w State of Madhya Pradesh Vs. Onkar Prasad Patel – (2005) 13 SCC 47;

b) Gaurishankar Gaur Vs. State of Uttar Pradesh – (1994) 1 SCC 92; and

c) Haji Saeed Khan Vs. State of Uttar Pradesh – (2001) 9 SCC 513.

17.11 In this context, it is relevant to state that as can be seen from the aforesaid decisions as well as various decisions of the Apex Court as well as this Court referred to supra by both sides, that the market value of the acquired lands has to be taken as on the date of the preliminary notification as contemplated under Section 11 of the L.A. Act, 1894; it has been held that under exceptional circumstances, where either the Apex Court or High Courts came to the conclusion that the acquisition proceedings themselves were liable to be quashed on account of certain illegalities or infirmities in the acquisition process/procedure, it was permissible only for the Apex Court in exercise of its powers under Articles 32 / 142 or the High Courts under Article 226 of the Constitution of India to shift the date to a later/subsequent date; however, this power to shift the date is available only to either the Apex Court or the High Courts and not definitely / certainly to the SLAOs or the State Government; in other words, a perusal of the decisions referred to supra, will indicate that in cases, where the Apex Court as well as this Court deemed it necessary to shift the date in order to do complete and substantial justice, inherent powers of the Courts were invoked and the dates were shifted in order to ensure no hardship, loss or prejudice would be caused to the land losers.

17.12 A perusal of the decisions relied upon by the SLAOs in the impugned awards referred to supra, will clearly indicate that in the said cases, the Apex Court has invoked its extra ordinary jurisdiction and powers under Article 142 of the Constitution of India and in the peculiar/special facts and circumstances obtaining in the said cases, the Apex Court had shifted the date to reckon the market value. The SLAOs clearly fell in error in placing reliance upon the said decisions of the Apex Court for the purpose of shifting the date from the date of the preliminary notification without appreciating that the said shifting of the date by the SLAOs or the State Government is not legally permissible in law either under the provisions of the L.A. Act, 1894 or the KIAD Act or the Rules or by any judicial precedent. It is also relevant to state that even as per the aforesaid judgments, shifting of the date from the date of the preliminary notification to any later / subsequent date has been done only up to the date of taking possession from the land losers. In the instant case, the impugned awards disclose that the SLAOs have shifted the date to a date subsequent / later to the date of taking possession. Under these circumstances, it is clear that the impugned awards purporting to shift the date suffers from several legal and factual infirmities and illegalities which vitiate the impugned awards, which deserve to be quashed on this ground also.

17.13 As stated supra, on 03.11.2018, the KIADB sent the awards for approval by taking the market value as on the date of the preliminary notification. Prior or subsequent to the said date, the land losers did not put forth any claim requesting shifting of the date; so also, even during award proceedings prior to 03.11.2018, no claim regarding shifting of the date was put forth by the land losers; further, there was no query put to the learned Advocate General nor was he asked for his opinion with regard to shifting of the date; similarly, the correspondence between the State Government, KIADB, SLAOs and the learned Advocate General indicate that there was no discussion regarding shifting of the date or with regard to revising the awards sent by the KIADB on 03.11.2018 and the only aspect discussed was with regard to passing of the awards already sent affecting the defence of the State before the Apex Court. Viewed from this angle also, the SLAOs clearly fell in error in shifting the date in the impugned awards which is not only contrary to law but also the aforesaid facts and circumstances of the case and consequently, the impugned awards deserve to be quashed on this ground also.

17.14 The material on record indicates that the petitioners have complied with the terms and conditions of the agreements entered into between them and the respondents 1 to 5 and the delay on the part of the respondents in passing the awards is not attributable to the petitioners; the previous round of litigation in relation to the subject matter of the petitions including the orders passed by this Court and the Apex Court will clearly indicate that there has been huge and enormous delay on the part of respondents 1 to 5 in passing the awards and consequently, the impugned awards fastening the liability to pay higher compensation upon the petitioners deserve to be set aside.

17.15 Though the last final notification was issued on 02.06.2009 by the respondents, the impugned awards were passed only in the year 2019 that too after repeated requests made by the petitioners and several directions issued by this Court and the Apex Court and as such, the impugned awards resulting in the liability to pay enhanced compensation upon the petitioners are incorrect and deserve to be quashed.

17.16 A perusal of the impugned awards will indicate that the impugned awards have been passed hastily and without any application of mind;

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no valid or cogent reasons have been assigned in the impugned awards, so as to permit shifting of the date for calculating the value of the land from the date of the preliminary notifications as contemplated under Section 11(1) of the L.A.Act to a later date, particularly when the delay and long gap between the date of the preliminary notifications and the impugned awards was not attributable to the petitioners. 17.17 Since the petitioners are beneficiaries of the acquisition, they were entitled to be heard during the course of an enquiry before passing the impugned awards under Section 11 of the L.A.Act and consequently, the impugned awards which have been passed without providing any opportunity to the petitioners, are violative of principles of natural justice and the same deserve to be quashed on this ground also. 17.18 It is contended on behalf of the State Government that Article 165(2) of the Constitution of India mandates that it shall be the duty of the learned Advocate General to give advise to the Government of the State upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor and to discharge the functions conferred upon him by or under the constitution or any other law for the time being in force. It is contended that in view of the aforesaid constitutional mandate, the SLAOs were justified in placing reliance upon the opinion of the learned Advocate General in order to pass the impugned awards. In my considered opinion, this contention is wholly misconceived, inasmuch as the said opinion of the learned Advocate General would have to be considered in the backdrop of the various facts and circumstances referred to supra, which clearly establishes that the scope and ambit of the opinion was restricted to the feasibility of passing the awards and not with regard to shifting of the date. Under these circumstances, even this contention of the respondents cannot be accepted. 17.19 It is contended on behalf of the petitioners that the SLAOs having passed the awards in the year 2018 and sent it for approval on 03.11.2018, it was not open for the State Government or the SLAOs to pass the impugned revised awards by enhancing / increasing the compensation payable to the land losers. In this context, it is contended that Section 13-A of the L.A.Act permits only correction of clerical or arithmetical mistakes or errors in the award and not pass revised awards. It is also contended that the power of the State Government under Section 15-A of the L.A.Act to exercise revisional jurisdiction in relation to acquisition proceedings is permitted only till awards are made by the SLAOs and since the awards had already been made and forwarded for approval on 03.11.2018, it was not permissible for the SLAOs or the State Government to pass the impugned revised awards. Alternatively, it is submitted that even assuming that Section 15-A of the L.A.Act permitted the State Government to exercise revisional powers, the same had to be exercised in terms of the proviso to Section 15-A of the L.A.Act, which mandates that the State Government shall not pass or issue any order or direction prejudicial to any person without affording such person a reasonable opportunity of being heard; it is therefore contended that in the light of the proposed awards forwarded by the SLAOs on 03.11.2018, by taking the date of the preliminary notification, before the State Government directed the said awards to be changed / modified by exercising revisional powers, it was incumbent upon the State to provide sufficient and reasonable opportunity to the petitioners, particularly when the change / modified awards directed enhanced / increased compensation payable by the petitioners. 17.20 It is contended by the respondents that the proposed awards forwarded by the SLAOs on 03.11.2018 were not awards in the eye of law, since prior approval had not been obtained before passing the same and consequently, it was open for the State Government to issue necessary directions to the SLAOs to pass awards. In this context, reliance is placed on Section 15-A of the L.A.Act (as inserted by Karnataka Act No. 17 of 1961) in order to contend that it was open for the State Government to exercise regional powers before an award was made i.e., before approval was granted by the State Government. Reliance is placed upon the decision of this Court in the case of N.Boman Behram vs. State of Mysore – AIR 1974 SC 1717. It was therefore contended that the impugned awards do not suffer from any illegality or infirmity. 17.21 Section 15-A was inserted by the State Government vide Karnataka Act No. 17 of 1961 w.e.f. 24.08.1961; the said provision conferring revisional powers upon the State Government did not contain any proviso to the said provision; the judgment of the Apex Court in Boman’s case (supra) was rendered prior to Section 15-A of the L.A.Act being inserted by the Central Government vide Central Act No.68 of 1984 w.e.f. 24.09.1984; there is no gainsaying the fact that Section 15-A of the L.A.Act as inserted by the Central Act No.68 of 1984 has the effect of repealing Section 15-A of the L.A.Act inserted by the State Act referred to supra; it follows therefrom that as on the date of the impugned awards, Section 15-A of the State Act had stood repealed and Section 15-A of the Central Act was in force; accordingly, the revisional powers by the State Government subsequent to the SLAOs’ forwarding the proposed awards on 03.11.2018 had to be exercised strictly in accordance with Section 15-A of the Central Act, in particular, the proviso which mandates that there should be strict adherence to the principles of natural justice which are inbuilt into the proviso by providing / affording reasonable and sufficient opportunity to the petitioners; to put it differently, in the light of the proviso to Section 15-A of the L.A.Act, it was absolutely essential that the State Government provides sufficient and reasonable opportunity to the petitioners before exercising revisional jurisdiction and issuing directions and passing orders to the SLAOs to pass awards after obtaining the opinion of the learned Advocate General. Under these circumstances, in the light of the undisputed fact that pursuant to the SLAOs submitting / forwarding the awards for approval on 03.11.2018, the impugned revised awards based on orders and directions issued by the State Government, thereby enhancing the compensation which would have to be payable by the petitioners is not only contrary to Section 15-A of the L.A.Act but also to the principles of natural justice and consequently, the impugned awards deserve to be quashed on this ground also. 17.22 Though both sides have referred to several other decisions in addition to the decisions discussed supra, in the light of the factual matrix of the instant case and the said decisions having been rendered in the peculiar/ special facts and circumstances of the said cases, I am of the view that the same may not be necessary to be adverted to for the purpose of adjudication of the present case. Accordingly, Point No.3 is answered in favour of the petitioners by holding that the impugned awards are illegal, arbitrary and vitiated and that the same deserve to be quashed and necessary directions are to be issued to the respondents to pass fresh awards within a stipulated timeframe. 18. In the result, I pass the following:- ORDER (i) W.P.No.26085/2019 and W.P.No.31407/2019 filed by the Nandi Infrastructure Corridor Enterprise Limited & another are hereby allowed; (ii) The impugned awards in W.P.No.26085/2019 at Annexures L to L-20 dated 22.04.2019 passed by respondent No.4 – Special Land Acquisition Officer -1, KIADB (BMICP), Bengaluru, as well as Annexures L-21 to L-27 dated 04.05.2019 passed by respondent No.5 – Special Land Acquisition Officer - 2, KIADB (BMICP), Bengaluru, are hereby quashed; (iii) The impugned awards in W.P.No.31407/2019 at Annexures - W to W-12 dated 02.07.2019 and 06.07.2019 passed by respondent No.4 – Special Land Acquisition Officer -1 and respondent No.5 – Special Land Acquisition Officer - 2, KIADB (BMICP), Bengaluru, are also hereby quashed; (iv) In view of W.P.No.26085/2019 and W.P.No.31407/2019 being allowed as stated supra, W.P.No.1627/2021 does not survive for consideration and the same is hereby disposed of. (v) The respondents 1 to 5 are hereby directed to pass fresh awards in accordance with law and after providing sufficient and reasonable opportunity to the petitioners and bearing in mind the observations made in this order 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.
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