Karnataka High Court
Govinda Raju M vs The State Of Karnataka on 11 February, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11th DAY OF FEBRUARY 2014
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.11912 to 11921 OF 2010 (LA-KIADB)
BETWEEN:
1. Govinda Raju .M
Son of Late Gangamma,
Aged 54 years,
Residing at No.552,
2nd Block, Peenya,
Bangalore - 560 058.
2. Srinivasa,
Son of Late Gangamma,
Age 53 years,
Residing at No.552,
2nd Block, Peenya,
Bangalore - 560 058.
3. Muniyamma,
Wife of Rajanna,
Daughter of Late Gangamma,
Age 48 years,
Residing at 1718-2,
Peenya,
Bangalore - 560 058.
2
4. Venkataramanna,
Son of Late Gangamma,
Age: 45 years,
Residing at No.552,
2nd Block, Peenya,
Bangalore - 560 058.
5. M. Ramesh,
Son of Late Gangamma,
Age: 41 years,
Residing at No.552,
2nd Block, Peenya,
Bangalore - 560 058.
6. M. Mangala,
Wife of Rajanna,
Daughter of Late Gangamma,
Age 38 years,
Residing at No.546,
Peenya,
Bangalore - 560058.
7. Somashekar,
Son of Late Gangamma,
Age: 36 years,
Residing at No.552,
2nd Block, Peenya,
Bangalore - 560 058.
...PETITIONERS
(By Shri. Ashok B Patil, Advocate )
3
AND:
1. The State of Karnataka
By its Secretary,
Department of Major and
Medium Industries,
Vidhana Soudha,
Dr. Ambedkar Veedhi,
Bangalore - 560 001,
Karnataka.
2. The Karnataka Industrial Areas
Development Board,
Represented by its Secretary,
No.14/3, II Floor,
Rashtropathana Parishat Building,
N.T.Road,
Bangalore - 560 001,
Karnataka.
3. The Special Land Acquisition Officer,
Karnataka Industrial Areas
Development Board,
No.14/3, II Floor,
Rashtropathana Parishat Building,
N.T.Road,
Bangalore - 560 001,
Karnataka.
4. JMJ Education Society,
(Acharya Institute of Management
Sciences) Sy.No.6/10,
Peenya II Phase,
Bangalore - 560058,
4
Represented by its
Authorized Representative,
Shri. B.M. Reddy.
5. A. Sendil Kumar,
Chamundi CNC,
Proprietor, No.1024,
10th Main, Prakash Nagar,
Bangalore.
6. M/s. Power Tech.
5th Main, 3rd Phase,
Peenya Industrial Area,
Bangalore - 560 058,
a Proprietary concern,
Represented by its Proprietor,
Shri. Mohan.
7. GG Tronics India Private Limited,
No.SB-168, 3rd Cross,
1st Stage, Peenya Industrial Estate,
Bangalore - 560 058.
8. K. Nagabhushan,
(Venkateshwara Service Station),
No.2, Shri. Venkateshwara Nilaya),
Abbigere Extension,
Chikkabanavara Post,
Bangalore - 560 090.
9. Venkatesh A.S.,
(V.C.Industries),
No.327, 2nd Main,
Shrigandadakavalu,
Nagarabhavi,
5
Bangalore - 560 091.
10. M.A. Joju,
(Peenya Packing Industry)
No.139/140, 9th Cross,
III Phase, Peenya Industrial Area,
Bangalore - 560 058.
11. J. Shanthi,
Since deceased by her
Legal representativea
11a) Jeevanandam,
Son of P. Ramaraju,
H/o. Late J. Shanthi,
Aged about 44 years,
11b) J. Vishwanath,
Son of Jeevanandam,
Aged about 13 years,
11c) J. Mahema Rani,
Daughter of Jeevanandam,
Aged about 3 years,
No.2 and 3 are since minors,
Represented by their father
Next friend and natural guardian,
Shri. Jeevanandam.
All are residing at No.114,
33rd Main, N.S.Badavane,
Near Nandini Layout,
Laggere,
Bangalore - 560 058.
6
12. Shri. D.A. Fazuluddin,
SP-3, NGEF,
Industrial Estate,
Mahadevpura Post,
White Field Road,
Bangalore - 560 042.
...RESPONDENTS
(By Shri. M.B. Naragund, Advocate for Respondent Nos.2 and 3
Shri. D. Nagaraj, Additional Government Advocate for
Respondent No.1
Shri. P.N. Rajeshwar, Advocate for Respondent No.4
Shri. K.S. Devaraj, Advocate for Respondent Nos. 5 to 9 and 12
Smt. Manjula K.H., Advocate for Respondent No.7
Shri. Jayaprakash .B, Advocate for Respondent Nos. 10 and 11(a
to c) )
*****
These Writ Petitions filed under Article 226 of the
Constitution of India, praying to declare that the acquisition
proceedings initiated under the notification bearing dated
03.03.1992 (Annexure-B) and under the notification bearing dated
30.10.1992 (Annexure-E) issued by first respondent is vitiated by
fraud on power and quash the same.
These petitions, having been heard and reserved on
23.1.2014 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
7
ORDER
The facts of the case are as follows:
2. The petitioners claim to have inherited land bearing Survey no.6/10, measuring 5 acres and 30 guntas, situated at Peenya village, Bangalore North Taluk. It is stated that even during the life time of the predecessor in title, in the year 1970, the land had been notified for acquisition under the provisions of the Karnataka Industrial Area Development Act, 1966 (Hereinafter referred to as the 'KIAD Act', for brevity). And the same had been challenged before this court in a writ petition in WP 4707/1970. The said writ petition was allowed and the proceedings were quashed by an order dated 28.11.1973.
Though liberty had been reserved to the respondents to initiate fresh proceedings, it was only 22 years later that the very lands were again notified for acquisition vide notification dated 3.3.1992. Though objections were filed , it is claimed that the same were not considered and a final notification was issued under Section 28(4) of the KIAD Act, on 9.9.1992. The same was 8 challenged before this court in writ proceedings in WP 171/1993. The said petition was dismissed by an order dated 31.5.2002. An appeal was filed in WA 3657/2002, which was also dismissed by an order dated 5.9.2007. The said order was unsuccessfully carried to the apex court .
It is thereafter it was learnt by the petitioner that the KIADB had allotted an extent of 2 acres and 36 guntas of land to the fourth respondent, a tenant under the petitioners. The said respondent is said to be running an educational institution, namely, Acharya Institute of Management Science, in an area of 1 acre and 20 guntas. It is alleged that the Order of allotment in favour of the fourth respondent is made by the Minister for Major and Medium Industries, of the State Government of Karnataka. It is further alleged that it is made to seem that the said respondent is a technical educational institution and would purportedly fall under the definition of " Industrial Infrastructural facilities " as contemplated under the provisions of the KIAD Act. On the other hand, it is claimed that it is a private commercial venture, with 9 little or no governmental control. It is contended that the allotment made is highly irregular and that the Minister had no jurisdiction to have made the allotment. To compound the irregularity, the allottee is neither an industry nor can it be construed as an Industrial infrastructural facility.
It is further contended that the Chief Executive Officer of the KIADB is said to have put up a note dated 31.1.2009 to the Minister for Large and Medium Scale Industries, identifying the names of six applicants, who had sought allotment of industrial plots in the land in question and the same is said to have been cleared, which is again said to be irregular.
It is on these primary grounds on which the present petition is brought.
3. Respondents 2 and 3, namely, the KIADB and the Land Acquisition Officer (LAO) have entered appearance through counsel and have filed objections to the petition contending that 10 the petition is barred by res judicata in view of the earlier proceedings as admitted by the petitioners themselves.
It is further contended that the purported controversy sought to be raised in respect of possession of the land not having been taken as claimed and the same having become apparent in earlier proceedings is an incorrect interpretation of the circumstances and that in any event it is now redundant in view of the challenge to the proceedings having been set at naught and the same having attained finality. Further if by operation of law the land vests in the State on the issuance of the notification under Section 28(4) of the KIAD Act, the alleged inconsistency as to the dates of taking physical possession is not material.
In so far as the contention that the lands have been diverted for a user other than contemplated under the Act, is not at all a ground available to the petitioners who have been divested of their right over the land. The allotment in favour of Respondents 4 to 12 cannot be characterized as not being for industrial purposes or such other allied purposes as contemplated under the Act. This is 11 especially so when the petitioners are not before this court as unsuccessful applicants for allotment who have been deprived of allotment. Hence the petitioners are not competent to prefer this petition on that ground.
In so far as the irregularity urged in the Minister for Industries having made the allotments, the allegations cannot be sustained as it is not in dispute that the KIADB is bound under Section 17 of the KIAD Act to abide by the general and specific directions of the Government. It is pointed out that under the Rules governing the Transaction of Business of the Government of Karnataka, the Board is under the control of the Ministry of Commerce and Industries - headed by the concerned Minister. The applications for allotment made to the Board by the respondents 4 to 12 having been placed before the Minister, having regard to the peculiar circumstance of the case, and a decision having been taken, which has been implemented by the Board, it cannot be said to be illegal or irregular, vitiating the acquisition proceedings.
12
It is emphasized that the informed opinion in having characterized the institution run by the fourth respondent as an 'industrial infrastructural facility' cannot be a ground to accuse the respondents of having perpetrated a fraud on power.
It is hence contended that the petition be dismissed .
4. Respondent no.4, a Society, in whose favour allotment has been made of a portion of the land, has in its statement of objections contends that it is a bona fide allottee, managing and administering an educational institution in the allotted land and has been in occupation since the year 2009.
Though KIADB may have indicated that the object of acquisition was for the purposes of establishing a multi-storied building for high-tech and electronic industries, the change of user if any, is at the discretion of the KIADB, without compromising on its main objectives and purposes. As long as that is satisfied, a challenge on the ground of diversion for yet another allied use cannot be sustained.
13
It is contended that the Society has obtained all sanctions and permissions from the State government and other regulatory bodies as relevant and applicable for running the educational institutions. It is contended that the courses imparted by the respondent falls within the definition of Industrial amenities in Section 2(1) of the KIAD Act, read with notification No.CI 86 SPQ 90 dated 13.3.1991. And further, that the activities carried on falls within the definition of Infrastructural Facilities in Section 2(7) of the KIAD Act .
It is asserted that its activity in training students in the area of management and administration of industries falls within the scope of Sections 2(1) and (7a) of the KIAD Act, which is for the benefit of the Industry and serves the purposes with which KIAD defines industrial amenities and Industrial Infrastructural facilities.
It is contended that the Institution run by the fourth respondent is a source of supply of trained managerial personnel apart from academicians. The managerial trainers and trainees are also the need of the industries apart from technical personnel. 14 Depending upon the nature of need, industries - both among public and private sectors - that have approached the respondent's institution have obtained training and consultancy for their personnel and for their units at various levels over the last several years. The Industry - beneficiaries, who have had their personnel trained and industries per se have been consulted over the last several years, include Karnataka Leather Industries Development Corporation Limited, ISRO Telemetry Tracking and Command Network, Ashok Travels and Tours, International Society for Third Section Research, Infosys Technologies Limited, Nettur Technical Training Foundation, Schenider Electric, The Leela Palace Kempinski, Bangalore and others. As such, the respondent was a complement to industries and as such its activity was inevitably a component of industries and therefore, the respondent has been both a facility and amenity to the industries, for the last several years.
15
It is contended that the training imparted to and the expertise acquired by the trainees had a wide market in the industrial domain throughout India in as much as, respondent No.4 had always been one of the 50 top institutions in India amongst several institutions. It is so ranked over several years. As such, the industries have always treated Respondent No.4 as a component of themselves - product being human resources, training and consultancy requirements of the industry. As such, allotment of land to respondent No.4, which was more or less in the nature of ratification of what petitioners' mother had done several years ago. As such, this respondent can never, but was never treated alien to the industry. By conduct, the petitioners are estopped from pleading to the contrary.
It is contended that the formal request for allotment of land was in the letter seeking allotment and filling up of form of application was to furnish the details about the applicant, which is informatory in nature. As such, no procedure had been bye- passed, much less any information was withheld or false 16 information was furnished nor was there any irregularity in filing the application by this respondent seeking allotment of land. Moreover, the respondent had submitted the application for allotment of land quite after KIADB issued the letter of intent to allot the land to respondent No.4 The office of the KIADB, has processed the original application filed by the respondent. As the land was given to educational institution, it had to follow procedure and provide safeguards. After inspecting the land sought over, which building existing for years and institution was being run, KIADB had to ascertain as to whether there existed any industry polluting the atmosphere within a radius of a mile from the land claimed as educational institute cannot be located in a polluted area. Life and health of over 1,500 students could not also have been risked by the Institution. Accordingly, after spot inspection, the Assistant Executive Engineer of KIADB filed the report stating the existence of no such hazardous and polluting industries in the vicinity. Thus, original application for allotment of land, office 17 notings, request to the assistant executive engineer of KIADB to report on the state of hazardous and polluting industries in the vicinity, feasibility of allotment etc., were scrutinized at the Government level and the Minister of Karnataka, as an officer, who is the ex-officio executive head of the State for Large and Medium Scale Industries, in that capacity, ordered allotment of land to this respondent, which power the Minister statutorily always had. It was on the original application of this respondent, seeking allotment of land only to ratify its possession. As such, every thing is done transparently, without suppressing anything and within the framework of law. As such, irregularities and illegalities in allotment of land to the respondent, imputed to the respondent are untenable and denied as false.
The other respondents, who are said to be allottees of portions of the land in question, have uniformly stated that the only allegation against the said respondents is of being beneficiaries by virtue of an allegedly irregular procedure having been followed in processing their applications for allotment . It is 18 pointed out that the same is not in violation of the law and procedure and cannot be termed arbitrary in view of Section 17 of the KIAD Act read with Rule 13 of the Regulations governing the disposal of lands by the KIADB.
5. In the light of the above facts and circumstances, it is seen that the present petitioners claim to be legal heirs of the erstwhile land owner, who had unsuccessfully challenged the acquisition proceedings. In the present petition, they seek to question the manner of allotment of the acquired land to beneficiaries, albeit on the ground that Respondent no.4, an allottee, was not an industry nor could be termed as an institution which is an 'industrial infrastructural facility', and on the ground that the allotments have been made by the Minister for Industries in an arbitrary and opaque manner and hence the acquisition proceedings ought to be set at naught. This would essentially require this court to examine the locus standi of the petitioners in raising such a challenge notwithstanding that the petitioners would 19 be precluded from challenging the acquisition proceedings for a second time as it were, in view of the earlier proceedings having attained finality.
It is not in dispute that the lands were duly acquired by the State in accordance with law and have also been allotted to third parties, who are the respondents 4 to 12 herein. It is not the case of the petitioners that they were unsuccessful applicants for allotment and are therefore aggrieved by the alleged irregularity in allotment or an alleged diversion of user of the acquired land. The object of the petition is hence obscure. In that, even if the petitioners are in a position to establish that there was an apparent violation of law in the allotment, there is no possibility of the land being reverted to the erstwhile land owners, to wit, the petitioners. It is, therefore, necessary for this court to proceed with circumspection in subjecting the allotments or the bona fides of the beneficiaries to any degree of scrutiny- at the behest of the petitioners.
20
The complete records pertaining to the proceedings were made available to the court by the State. It is seen from the File bearing No.18163 that the following sequence of events emanate. A letter dated 7.7.2008 is addressed by the President of the fourth respondent - Society to the Minister for Industries, along with an application for allotment of land for its Institution, which was already in existence on the land. A consultation process is initiated as between the KIADB, the Principal Secretary to the Government, Commerce and Industries Department, resulting in the Minister issuing an order dated 30.10.2008, directing the Board to allot land measuring 2 acres and 36 guntas of land in Survey no.6/10 of Peenya and to hand over symbolic possession (since the fourth respondent was already in possession) in favour of the fourth respondent Society - for its Acharya Institute of Management Sciences, after collecting the rate prescribed by the Board. A letter dated 5.12.2008 is issued prescribing the rate of Rs.200 lakh per acre. Allotment is made vide letter dated 18.12.2008, on a perpetual lease basis. By Resolution dated 21 17.8.2009, the KIADB has endorsed the perpetual lease and deferred the request for execution of a sale deed.
6. On the other hand, the learned counsel for the petitioner has sought to highlight the following from the file to assert that the acquisition proceedings are rendered a colourable exercise and a 'fraud on power', as the Institution of the fourth respondent was existing on the land even prior to the notification under Section 28(1) of the KIAD Act.
It is pointed out that the request of the Society was for allotment of land in favour of an Institution already existing. That the request is made in July, 2008 and the Minister has directed allotment in October, 2008. That the notification dated 4.12.2008 issued by the Board, under Section 28(8) of the KIAD Act is contrary to its representation in earlier proceedings. It is also urged that the original intention, in the year 2005 to make allotment of the land to Industrial Training Institutes, could not be equated to making an allotment in favour of the fourth respondent. 22 And further that the Regulations governing the KIADB empower the Board to make allotments and that the same cannot be relegated to the Minister, and that the Minister could not order allotment in purported exercise of power under Section 17 of the KIAD Act.
It is not in dispute that in so far as the allotment is concerned the KIADB is vested with the power and discretion under the Regulations governing it. It is not the case of the petitioners that the KIADB had rejected or refused allotment and it is thereafter that the Minister concerned had intervened. The KIADB was under the control of the Ministry of Commerce and Industries headed by the Minister for Large and Medium Scale Industries. The applications for allotment were indeed made by Respondents 4 to 12, to the KIADB. The minister was not without jurisdiction in having taken a decision as to allotment, duly endorsed by the KIADB. The transaction by way of a perpetual lease in favour of the fourth respondent, further ensures that there is no possibility of the land being utilized for any 23 purpose other than the continued running of the Institute of Management studies. The contention of the petitioners as to the allotment being illegal or irregular cannot be accepted.
In so far as the question whether the institution of the fourth respondent could be considered as 'industrial infra-structural facility' as defined under the KIAD Act is concerned, the question is no longer res integra as such a question has been answered by a division bench of this court in the case of Muninanjappa & others v. The State of Karnataka (W.A. 3135 to 3137/2010, decided on 20.11.2012). In answering the question: " Whether acquiring land for a hospital or school or college, falls within the definition of Industrial Infrastructure facilities.?", the division bench has held thus :
"POINT (c): HOSPITAL, SCHOOL, COLLEGE
26. Section 2(6) defines 'Industrial area' to mean any area declared to be an industrial area by the State Government by notification which is to be developed and where industries are to be accommodated and industrial infrastructural facilities 24 and amenities are to be provided and includes, an industrial estate. It is by Act No.11 of 1997, Industrial Infrastructural facilities and amenities are included in the definition of industrial area. Infrastructural facilities is also defined in Section 2(7a) as under:
"industrial infrastructural facilities' means facilities which contribute to the development of industries established in industrial area such as research and development, communication, transport, Banking, Marketing, Technology parks and Townships for the purpose of establishing trade and tourism centres; and any other facility as the State Government may by notification specify to be an industrial infrastructural facility for the purposes of this Act".
27. Therefore, it is clear, the State Government is vested with the power to specify what are the amenities which are to be provided in an industrial area. In fact, Section 2(1) defines 'Amenity'. Amenity includes road, supply of water or electricity, street lighting, drainage, sewerage, conservancy and such other convenience, as the State Government may by notification specify to be an amenity for the purposes of this Act. By virtue of the said Sub-Section (1) of 25 Section 2, Government of Karnataka has issued a notification on 13th March 1991 specifying what are the amenities for the purpose of the Act. The said notification reads as under:
"Notification No.CI 86 SPQ 90, Bangalore, dated 18th March 1991 In exercise of the powers conferred by sub-section (1) of Section 2 of the Karnataka Industrial Areas Development Act (Karnataka Act 18 of 1966) the Government of Karnataka hereby specified the following as amenities for the purpose of the said Act.
They shall come into force from the date of their publication in the official gazette.
Banks, Post offices, Telephone and Telex Exchanges, Canteens, Fire Brigade and other service facilities including Zerox facilities.
Disposal of solid wastes and setting up effluent treatment plants.
Temp/Taxi Terminals, Bus depot and automobile service centres.
R & D Centres, Technical Institutes, Training Institutes, Educational Institutions, Power Sub-Stations and diesel power generating stations and water supply works.26
Hospitals, dispensaries, Hotels, Motels and Health and Holiday Resorts, Cinema Theatres.
Inland container depot, Air Cargo
Complex, Weigh Bridges, Godowns and
Warehouses.
Storage and outlets of LPG Cylinders,
Chemicals solvents, Petrol, Diesel, Kerosene and other oils.
Shops for vending of spare parts, Engineering goods, paints and other materials required by the industrial undertakings, food and bakery products etc., Offices of the Organisations such as Karnataka Industrial Areas Development Board, Karnataka State Financial Corporation, Karnataka State Pollution Control Board, Karnataka Electricity Board, etc., which monitor and contribute to industrial development and such other organizations for the benefit of the industrial units.
Housing tenements including housing sites for the employees of industries. By order and in the name of the Governor of Karnataka T.R. Renuka Aradhya Under Secretary to Government(ID) Commerce & Industries Department."27
28. Therefore, the "amenity" includes R & D Centres, Technical Institutes, Training Institutes, Educational Institutions, Power Sub-Stations and Diesel Power generating stations and water supply works, Hospitals, dispensaries, Hotels, Motels and Holiday Resorts and cinema theatres. Therefore, in view of the aforesaid notification issued under Section 2(1) of the Act, establishment of an Educational Institution which is a Nursing School or Nursing College or established by a Hospital like Heart, Cancer Hospitals would fall within the definition of amenity and the land is acquired for the purpose of setting up the said amenities is an industrial purpose under the Act."
The learned counsel for the petitioner has referred to a large number of authorities, in support of the petition. It is unnecessary to refer to each of them and distinguish or otherwise discuss the findings and observations therein, in the light of the circumstances of this case, as the petition fails on primary contentions. 28
In the above view of the matter, the petition lacks merit and is dismissed.
Sd/-
JUDGE nv*