dated this the 04 before: the honourable mr. justice...
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 04Th
DAY OF MARCH 2014
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.41504-41505 AND 41732-41744 OF 2010
(LA-KIADB)
BETWEEN:
1. Sri. Chetan P Tayal,
Son of Late Nandkishore Tayal,
Aged 56 years,
Residing at No.E-2,
Manytha Park,
Outer Ring Road,
Near Hebbal Flyover,
Bangalore.
2. Sri. S.K. Srinivasa,
Son of Kempaiah,
Aged about 37 years,
Residing at No.84,
A & B Block,
Ramakrishna Nagar,
Mysore.
3. Sri. K. Ramesh,
Aged about 40 years,
Son of K.N.Krishna Reddy,
Kachanayakanahalli Village,
Anekal Taluk,
2
Bangalore Rural District.
[writ petition stands dismissed
As against petitioner no.3
Vide order dated 18.3.2011]
2 and 3 are represented by their
Power of Attorney Holder,
Sri. Chetan P Tayal,
First Petitioner.
4. Sri. Mahesh Kumar Tayal,
Son of Late Nandikishore Tayal,
Aged 44 years,
Residing at No.39/1-1,
10th Cross, Chorul Palya,
Vijayanagar,
Bangalore – 560 023.
…PETITIONERS
(By Shri. V. Lakshminarayana, Advocate for Petitioners 1, 2 and 4
Writ petition stands dismissed as against petitioner no.3 vide order
dated 18.3.2011)
AND:
1. State of Karnataka,
Represented by the Principal
Secretary to Revenue Department,
Vidhana Soudha,
Dr. Ambedkar Road,
Bangalore – 560 001.
2. The Deputy Commissioner,
Bangalore Urban District,
Bagnalore.
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3. The Karnataka Industrial Area
Development Board,
Bangalore,
Represented by its Chairman.
4. The Special Land Acquisition Officer,
Karnataka Industrial Area Development Board,
Bangalore.
5. State of Karnataka ,
Represented by Principal Secretary,
Industries and Commerce Department,
Vikasa Soudha,
Bangalore – 560 001.
6. State of Karnataka,
Represented by Principal Secretary,
Urban Development Department,
M.S.Buildings,
Bangalore.
7. Development Officer,
Karanataka Industrial Area Development Board,
Mysore.
8. The Director,
Town Planning Department,
M.S.Buildings,
Bangalore – 560 001.
9. Karnataka Housing Board,
Represented by its Commissioner,
Kavery Bhavan,
Bangalore – 560 009.
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…RESPONDENTS
(By Shri. D. Nagaraj, Additional Government Advocate for
Respondent Nos. 1, 2, 5, 6 and 8
Shri. B.B. Patil, Advocate for Respondent Nos. 3, 4 and 7
Shri. B.V. Sabarad, Advocate for Respondent No.9 )
*****
These Writ Petitions filed under Articles 226 and 227 of the
Constitution of India, praying to quash the entire acquisition
proceedings in pursuance of the notifications under Section 3(1),
1(3) and 28(1) dated 18.3.2006 produced at Annexure-D, D1 and
D2 and notification under Section 28(4) dated 6.9.2010 published
in the official gazette on 7.9.2010 vide Annexure-A2, and
notification under Section 28 (6) dated 12.10.2010 in No.16/728,
in respect of Sy.No.263 vide Annexure-L dated 12.10.2010 in
No.18 in respect of Sy.No.265 vide Annexure-L1 dated
12.10.2010 in No.15 in respect of Sy.No.260 vide Annexure-L2
dated 12.10.2010 in No.14 in respect of Sy.No.259 vide
Annexure-L3 dated 12.10.2010 in No.13 in respect of Sy.No.206
vide Annexure-L4 dated 12.10.2010 in No.6 in respect Sy.No.130
vide Annexure-L5 dated 12.10.2010 in No.1 in respect of
Sy.No.82/1 vide Annexure-L6 dated 13.12.2006 in respect of
Sy.No.131 vide Annexure-L7 dated 13.12.2006 in respect of
Sy.No.132 vide Annexure-L8 and dated 13.12.2006 in respect of
Sy.No.130 vide Annexure – L9 issued by the Karnataka Industrial
Area Development Act under Section 28(4) produced at
Annexure-A2 and L, L1 to L9 so far as petitioners lands are
concerned arbitrary and violative of Article 14 and without the
Authority of Law and etc;
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These petitions, having been heard and reserved on
26.02.2014 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
O R D E R
The petitioners claim to be owners of the lands bearing
Survey nos.96/45N, 96/20, 197, 130, 132, 203, 259, 264, 96/P1,
206, 131, 82/1, 25/1, 260 and 263 of Koorgally village, Mysore
District. The first petitioner is said to be the power of attorney
for the owners, S.K.Srinivasa and K. Ramesh, shown as the
second and third petitioners in these proceedings and he is said to
have transferred the properties in favour of the fourth petitioner.
It is also stated that K.Ramesh had sought to cancel the power of
attorney granted in favour of the first petitioner and that is said to
be subject matter of a pending civil suit.
The above said lands are said to have been notified as an
industrial area under the Karnataka Industrial Area Development
Act, 1966 (Hereinafter referred to as the ‘KIAD Act’, for brevity).
It is stated that the very lands are notified as residential area under
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the provisions of the Karnataka Town and Country Planning Act,
1961 (Hereinafter referred to as the ‘KTCP Act’, for brevity).
The same are indicated as falling within the planning area of the
Mysore City Planning Area. This is also reflected in the
Comprehensive Development Plan (CDP).
2. It is stated that a notification under Section 28(1) of the
KIAD Act was issued on 18.3.2006 and a final notification under
Section 28(4) was issued on 5.12.2006. This was subject matter
of challenge before this court in a writ petition in WP 5711/2008.
The said petition was allowed on 6.4.2009. The matter was
remitted to the authorities for fresh consideration.
It is alleged that that the petitioners were not heard after the
matter was remitted though objections had been filed on their
behalf. Incidentally, the petitioners claimed to have entered into a
joint development agreement with the Karnataka Housing Board
(KHB), which was said to have been approved by the State
government, in respect of the very lands.
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It is submitted that the respondents having chosen to
proceed further with the acquisition proceedings, notwithstanding
the above position, the respondents having issued notice under
Section 28(6) of the KIAD Act, dated 12.10.2010, which is the
provocation for the present petition.
3. Respondents 3 and 4 have filed objections to contend
that after remand of the matter as aforesaid, notices had been
issued and the petitioner no.1 represented by an agent had sought
time to make submissions, at the hearing fixed on 26.6.2010.
Thereafter, at the next date of hearing, 5.7.2010, it transpires that
respondents 2 and 3 are said to have appeared and indicated that
they have no objection if the land is acquired, but they had
demanded a compensation of Rs.35 lakh per acre, which was
grossly disproportionate to the fair market value according to the
respondents.
It transpires that the petitioner no.1 having failed to make
any oral submissions in spite of opportunity granted, the authority
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had proceeded to consider the written objections and overruled the
same as they were untenable. It is hence contended that the
complaint of opportunity of a personal hearing not having been
granted is misleading and unfair.
It is contended that a total extent of 544.16 acres of land
was acquired and the petitioner no.1 lays claim to an extent of
16.39 acres spread over land bearing various survey numbers.
Petitioner no.2 claiming an extent of 11 acres 17 guntas in
different survey numbers is said to have acquiesced in the
proceedings and has received the compensation amount. While
petitioner no.3 who has a claim to an extent 12.02 guntas had also
agreed to the acquisition but was only claiming a higher
compensation.
It is claimed by the respondents that except for an extent of
11.38 acres of land, which was denotified after taking into
consideration the fact that there was a letter intent issued in the
establishment of a petrol pump over a certain extent, the existence
of a brick factory and a portion abutting a reserve forest, the rest
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of the area acquired had been developed into an industrial area,
particulars of such development and allotment to industrial
entrepreneurs is produced.
It is contended that in so far as the acquisition being without
regard to the land use and the zonal regulations is misleading, as
there was prior consultation with the Urban Development
Authority and other agencies as to the availability of the land for
purposes of industrial development. The material particulars are
produced in this regard.
4. The KHB has filed its statement of objections to clarify
as to the claim made by the petitioner no.1 in regard to a joint
venture said to have been agreed upon as follows:-
That M/s Bharat Infra Tech Private Limited, Bangalore had
submitted a proposal dated 12.12.2005 to the KHB for taking up a
Joint Venture Project in Survey No.96/45N,
130,131,132,203,96/20,197,260,259,264,96/P1, 206, 96,202,42,
144/2, 145, 146, 201, 265 etc., of Koorgalli. The proposal was
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submitted by the first petitioner as the Managing Director of the
company. The Board in its 396th meeting held on 10.1.2006
resolved to take up the Joint Venture Project without any
financial commitment on its part and to enter into a memorandum
of agreement with the approval of the Government with M/s
Bharat Infra Tech Private Limited. On 7.2.2006, a communication
was sent to the company in this regard. The KHB submitted a
proposal to the Government on 25.7.2006, seeking approval for
entering into a memorandum agreement with the company. The
said company, in its letter dated 26.9.2006, had requested the then
Housing Minister to expedite the process of entering into a Joint
Venture Agreement and also requested to inform the Karnataka
Udyoga Mitra to drop their proposal stating that the lands in
question are proposed by the Karnataka Industrial Area
Development Board (KIADB) for acquisition to develop an
industrial area. Due to various reasons, including the issues of
company’s ownership, no further steps could be taken to enter
into a Joint Venture Agreement. The approval of the Government
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to the Joint Venutre is yet to be received. The KHB has not
entered into Joint Venture Agreement with M/s Bharat Infra Tech
Private Limited, Bangalore. In the background of these facts, the
Government has called for re-submission of proposal in their letter
dated 5.6.2013.
5. It is further stated by the respondents 3 and 4 in a
second additional statement of objections as follows :
That in terms of notifications under Sections 3(1) and 1(3)
of the KIAD Act, a total of 606.10 acres were notified as
industrial lands. In terms of notification under Section 28(1) of
the KIAD Act, 559.05 acres were notified. And of the said lands
notified under Section 28(1), 544.16 acres were notified under
Section 28(4) of the KIAD Act. Further, of the total lands
notified under Section 3(1), 11 acres 28 guntas have been deleted
under Section 4 of the KIAD Act. It is contended that under the
notification under Section 4 of the KIAD Act, taking into
consideration a letter of intent for establishment of a petrol pump
and the presence of a brick factory and certain portion abutting
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reserved forest, an extent of 11 acres 28 guntas was denotified
vide notification dated 5.12.2006.
It is contended that of the said lands, in all, 472 acres have
been developed as an industrial layout. The break up providing
for available lands for allotment after making provision for
amenities, road etc., is as under:-
Under Section 28(4) : 544-16
Total lands : 472-00
Roads : 69-21
Civic Amenities : 40-17
Park and Open Space : 34-80
Water Bodies (Tanks) : 34-07
Land available for
Allotment : 293-75
Lands allotted so far : 196-13
Balance Land available
for allotment : 97-62
It is contended that of the entire developed lands, in
respect of an extent of 120 acres, the board by its resolution in its
304th board meeting, has resolved that a proposal for deletion of
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the lands may be forwarded to the State Government. The
acquisition proceedings dated 28.10.2011 and 29.10.2011 held
under the chairmanship of Commissioner, Industrial Area
Development and the Director of Industries and Commerce
Department, has constituted a committee to dwell upon the said
proposal and give a finding as regards the said deletion.
It is hence asserted that the writ petition is without merit.
6. By way of a rejoinder on behalf of the petitioners, it is
contended as follows:
That the acquisition proceedings initiated by the
respondents is bad in law because, there is no enquiry conducted
in accordance with law. After the remand made by this court, the
notices dated 1.9.2009 were issued directing the petitioners to
appear before the Land Acquisition Officer on 30.10.2009 at 11
a.m. and the said notices were served on the petitioners on
12.10.2009, that is earlier to the date of hearing. An application
for adjournment was filed on 30.10.2009.
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A detailed objection was filed on 1.12.2009 and the same
was received by the respondents on 2.12.2009. The enquiry
notices dated 15.6.2010, one fixing the date of hearing on
18.6.2010 and another fixing the date of hearing on 26.6.2010,
were issued. Both the notices were served on the petitioner on
17.6.2010 in the evening. A letter was given seeking seven days
time.
One more notice dated 6.7.2010 was issued directing the
petitioner to appear on 14.7.2010. On 14.7.2010 at 5.15 a.m.,
objections were duly filed.
On the above dates of hearing, a request was made that the
detailed objections dated 2.12.2009 filed by the petitioner may be
read as part and parcel of the present objections. It is thereafter no
further opportunity was given to the petitioner. Even then, on
23.7.2010, a letter was addressed by the petitioner to the Director
of the KIADB about the release of the lands. The petitioner had
again addressed a letter on 30.11.2010 to withdraw the notices
issued under section 28(6) and also a letter on 3.12.2010. These
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proceedings would indicate that the enquiry conducted by them is
not in accordance with law.
In view of the judgment of the apex court in M/s Usha Stud
and Agricultural Farms Private Limited vs. State of Haryana,
AIR 2013 SC 1282, the enquiry conducted is not in accordance
with law, since the petitioner is deprived of his right to lead
evidence and right to personal hearing. Para -31 of the said
judgment reads thus:
“The appropriate Government while issuing a
declaration under Section 6 of the Land Acquisition Act
is required to apply its mind not only to the objections
filed by the owner of the land in question but also to the
report submitted by the Collector by making such
further enquiry therein as he thinks necessary and also
recommendation made by him in that behalf. “
Para 30 of the judgment reads that the objector has a right to
appear in person or through a Pleader and substantiate his
evidence by evidence and arguments.
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It is contended that if the recommendation made by the
Land Acquisition Officer is defective, acceptance of the report is
also bad in law in view of the decision of the Supreme Court in
Sandoor Manganese Iron Ore limited vs. The State of Karnataka,
2010(13) SCC 1, wherein it has been held that if the
recommendation is defective, all consequential orders including
subsequent approval by the Central Government are also liable to
be quashed.
It is contended that in the records before the State
Government, the entire statement of objections filed by the
petitioners is not available. Objections filed on 2.12.2009,
23.7.2010, 30.11.2010, 3.12.2010 and 26.12.2010 was not
considered. The objections filed on 14.7.2010 alone was in the
Government file. Therefore, there is no application of mind.
It is contended that if the enquiry would have been
conducted properly, all the documents would have been produced
by the enquiry officer. The same could not be produced because
one each and every date of hearing, the notice used to be served
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either in the evening of the previous day of hearing or sometime
previous day of date of hearing. Under the circumstances, the
petitioner contends that there is violation of principles of natural
justice.
The Preliminary Notification dated 18.3.2006 was issued to
an extent of 606.10 acres of land. But the final notification was
confined to 544.16 acres of land. Both in the preliminary and
final notification, Survey No.5,6,7,10,11,12 to 76 and 87 to 92 are
omitted.
The final notification in respect of the petitioners were
issued on 6.9.2010, but on 3.10.2007, 510 acres of land in the
surrounding area of Koorgalli village has been deleted. In view
of the letter dated 30.8.2010, 120 acres of land for the purpose of
Ashraya Scheme, school building, public building, extension of
village has been deleted, out of 544.16 guntas of land.
It is contended that the State Government on 3.10.2007 had
issued two notifications, one proposing to acquire 598.16 acres of
land out of 722.05, in which, Kharab is 123.29 acres and another
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extent of 510.37 acres of land has been deleted from acquisition
under the same notification. Thus, the land belonging to M/s.
Parshwanath Builders in Bastipura Village, which is adjacent to
Koorgalli, which lands are in the midst of industrial area shown in
Sy.Nos.6 to 12, 21 to 26, 34, 35, 36, 42, 43, 48 to 54, the survey
numbers of which have been marked in the Village Map. There
was further recommendation of 42.17 acres of land. Again, there is also a
proposal to acquire land to an extent of 45.27 acres, which proposal was
returned.
The Deputy Commissioner, Mysore District, after official
notification, has converted the following lands for residential purpose to form
a residential layout by means of six letters – two of the letters dated
20.07.2009, another two dated 18.02.2010 and the remaining two letters
dated 09.04.2010 and 22.12.2010.
I. Ilawala Hobli, Koorgalli II. Ilawala Hobli, Koorgalli III.Ilawala Hobli, Koorgalli
Sy. Extent Sy. Extent Sy. Extent
No. (A-G) No. (A-G) No. (A-G)
139/2 2-38 152/2 2-00 139 2-01
139/2 2-39 154 3-00
143/1 0-34½ 154 1-00
144/1 0-24
144/2 1-13½
Total 5-31
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IV.Ilawala Hobli, Koorgalli
V.Ilawala Hobli, Koorgalli
VI. Ilawala Hobli, Koorgalli
Sy. Extent
No. (A-G)
Sy. Extent
No. (A-G)
Sy. Extent
No. (A-G)
143/2 0-17
143/3 0-17½
148/1 1-20
148/2 0-20
Total 0-34½
On 20.07.2009, the following survey numbers of Koorgalli
Village, Ilwala Hobli, Mysore Taluk, Mysore District were
converted vide order dated ALN(1):CR:25:2009-10 in favour of
Sri. K.S. Lakshminarayana Rao, S/o. Late Sri. Srikantaiah.
Sy. Extent
No. A – G
156/1 2 – 3
156/2 0 – 35
144/2 0 – 24
144/2 1.13½
Total 8 – 29
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By another order bearing No. ALN (1) CR 365/2008-2009
dated 20.07.2009, the following lands were converted in favour of
Sri. K.S. Lakshminarayana Rao, S/o. Late Sri. Srikantaiah.
Extent Sy.
No.
A – G
152/2
154
2 – 0
4 – 0
Total
6 – 0
By Order bearing No.ALN(1):CR:264/2009-2010 dated
18.02.2010, the following land was converted in favour of
Sri.Lakshminarayana Rao, S/o. Late Sri. Srikantaiah.
Extent
Sy.
No.
A – G
139
2 - 2
21
By Order bearing No.ALN(1):CR.335/2009-2010 dated
09.04.2010, the following land was converted in favour of Sri.
Lakshminarayana Rao, S/o. Late Sri.Srikantaiah.
Extent Sy.
No.
A – G
148/1
1 – 20
By Order bearing No.ALN(1):CR.67/2010-2011 dated
22.10.2010, the following land was converted in favour of Sri.
Lakshminaryana Rao, S/o. Late Sri. Srikantaiah.
An extent of 197 acres of land has been released in favour
of M/s.Subramanya Constructions by the Government. These,
survey numbers are in the middle of the area which has been
already acquired.
Sy.No. Extent
A - G
148/2 0 20
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The Government further on the day when the final
notification was issued, has deleted by means of a notification
dated 5.12.2006, land measuring 1 acre 20 guntas bearing Survey
No.96/229, land measuring 4 acres 31 guntas situated in
Sy.No.133 and land measuring 5 acres 17 guntas situated in
Sy.No.138. Initially, Sy.Nos. 130, 131, 132 and 133 are adjoining
Sy.No.132, which is a subject matter of the petitioners, whose
properties are situated in Sy.Nos. 130, 131 and 132.
Since the petitioner’s land should have been designated for
residential purpose and in the corner of the area, if it is excluded,
the same would not come in the way of implementation of any
Scheme. Thus, the petitioners are entitled for deletion of lands in
view of the promises made by the Housing Board.
It is in the light of these details and information on the basis
of which it is claimed that it would be possible to supplement the
written objections effectively with necessary elaboration and
explanation, at a personal hearing, which it is claimed, has been
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denied and that it is a crucial omission depriving a valuable right
to the petitioners.
In the light of the above facts and circumstances and in the
admitted circumstance that the petitioners have not been provided
a personal hearing as regards the several allegations that are
sought to be established by the production of innumerable
documents, it would be appropriate if the petitioners are afforded a
personal hearing and are permitted to justify their stand.
Accordingly, the writ petitions are allowed in part, the
impugned notification under Section 28(4) is quashed in so far as
the petitioners are concerned, in that, the respondents may
recommence proceedings from the stage of hearing objections
under Section 28(3) of the KIAD Act. The petitioners shall be
provided a personal hearing, in the respondents proceeding
further.
Sd/-
JUDGE