Karnataka High Court
Sri H M Venkataswamy S/O Late H.V. ... vs The State Of Karnataka on 21 June, 2012
Author: S.Abdul Nazeer
Bench: S. Abdul Nazeer
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE S. ABDUL NAZEER
WRIT PETITION No. 15514/2008 (LA-KIADB)
BETWEEN :
Sri. H.M. Venkataswamy
Aged about 70 years
S/o. late H.V. Munivenkatappa
R/o. Singahalli Village
Jala Hobli
Bangalore North Taluk ... PETITIONER
(By Sri. C.M. Nagabhushana, Adv.)
AND :
1. The State of Karnataka
Department of Commerce and Industries
Vikasa Soudha, Dr. Ambedkar Road
Bangalore 560 001
Reptd. by its Principal Secretary
2. The Karnataka Industrial Areas Development
Board, No.14/3, 2nd Floor
Rashtrothana Parishat Building
Nrupathunga Road
Bangalore 560 001
Reptd. by its Chief Executive Officer &
Executive Member
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3. The Special Land Acquisition Officer
The Karnataka Industrial Areas Development
Board, No.3, 3rd Floor
Kheny Building, 1st Cross
Bangalore 560 009 ... RESPONDENTS
(By Sri. H.T. Narendra Prasad, HCGP for R-1
Smt. Gowhar Unnisa, Adv. for R-2 and R-3)
This writ petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the
notification dated 7.8.2006 as per Annexure-A and etc.
This writ petition coming on for Preliminary Hearing
'B' Group this day, the Court made the following:
ORDER
The subject matter of this writ petition is the land bearing Sy. No.126 situated at Singahalli, Jala Hobli, Bangalore North Taluk, measuring 5 acres, morefully described in the schedule to the writ petition and hereinafter referred to as the schedule property. The State Government issued a notification as per Annexure-A dated 7.8.2006 under Section 3(1) of the Karnataka Industrial Areas Development Act, 1966 (for short the Act) declaring certain areas to be an industrial area for the purpose of the 3 Act. This was followed by a preliminary notification dated 7.8.2006 issued under Section 28(1) of the Act proposing to acquire the land for the formation of an industrial layout. The petitioner was issued with a notice under Section 28(2) of the Act. In response to the said notice, he has filed objections as per Annexure-D dated 18.10.2006. The said objections was over ruled by the 3rd respondent by his order passed at Annexure-G dated 26.11.2007 (item No.32) and the final notification as per Annexure-C was issued on 25.9.2008. The petitioner has called in question the validity of the said notifications in this writ petition.
2. Learned Counsel for the petitioner would contend that before issuing a notification under Section 3(1) of the Act at Annexure-A, the State Government has not framed a policy for acquiring the land. It is further contended the petitioner has filed a detailed objection at Annexure-D dated 18.10.2006 opposing the acquisition of the land. Without considering the objections, the 3rd respondent has passed an order at Annexure-G followed by the final 4 notification at Annexure-C dated 25.9.2008. Therefore, the order passed under Section 28(3) of the Act at Annexure-G and the final notification issued under Section 28(4) of the Act at Annexure-C require to be quashed.
3. On the other hand, learned counsel for the respondents have sought to justify the order at Annexure-G as also the final notification at Annexure-C impugned herein.
4. I have heard the learned counsel appearing for the parties.
5. It is clear that the petitioner has filed objections to the notice issued under Section 28(2) of the Act opposing the acquisition of the land in question. He has raised several grounds in his objections opposing the acquisition. The order at Annexure-G dated 26.11.2007 (item No.32) passed under Section 28(3) of the Act by the 3rd respondent would clearly indicate that the 3rd respondent has not considered the objections except stating that the land is situated at the 5 center of the proposed layout. Learned counsel for the petitioner has produced a sketch, which shows that the land is situated at the corner of the proposed layout. It is clear that the 3rd respondent has not applied his mind while passing the order.
6. In THE BARIUM CHEMICALS LTD. AND ANOTHER Vs. A.J.RANA AND OTHERS - AIR 1972 SC 591, the Apex Court was considering the meaning of the word 'consider'. It has been held thus:
"The words 'considers it necessary' postulate that the authority concerned has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word 'consider' is 'to view attentively, to survey, examine, inspect (arch), to look attentively, to contemplate mentally to think over, meditate on, give heed to, take note of, to think deliberately bethink oneself, to reflect' (vide Shorter Oxford Dictionary). According to Words and Phrases - Permanent Edn: Vol.8-A to 'consider' means to think with care. It is also 6 mentioned that to 'consider' is to fix the mind upon with a view to careful examination; to ponder; study; meditate upon, think or reflect with care. It is therefore, manifest that careful thinking or due application of the mind regarding the necessity to obtain and examine the documents in question in since qua non for the making of the order. If the impugned order were to show that there has been no careful thinking or proper application of the mind as to the necessity of obtaining and examining the documents specified in the order, the essential requisite to the making of the order would be held to be non-existent."
7. This Court in the case of D. HEMACHANDRA SAGAR AND ANOTHER Vs. STATE OF KARNATAKA AND OTHERS - 1999 (1) KLJ 510 was considering the case relating to consideration of objections by the Bangalore Development Authority under Section 17(5) of the Act. It has been held as under:
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"A statutory Authority like BDA evolves its own procedure to consider the representations filed by the owners in respect of the proposed acquisition. There is no hard and fast rule that the Authority itself should consider each of the representations before making appropriate orders. However, it is settled that the consideration of the representation by any Authority should be in the manner recognised by law. 'Consideration of representation' postulates that the Authority concerned has thought over the matter by applying its mind to the relevant portion of the representations and may make its recommendation assigning reasons for such recommendation. Mere extracting the nature of objections and his remarks without assigning reasons is no consideration at all."
8. The Apex Court in the case of HINDUSTAN PETROLEUM CORPN. LTD., Vs. DARIUS SHAPUR CHENAI AND OTHERS - 2005 (7) SCC 627, was considering the scope of Section 5-A of the Land Acquisition Act. It has been held as under:
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"The Land Acquisition Act is an expropriatory legislation. In such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. Section 5A of the Act confers a valuable and important right in favour of a person whose lands are sought to be acquired and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right. The State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid". It has been further held as under:
" The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also the purpose and in this regard ordinarily, the jurisdiction of the Court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must 9 scrupulously be complied with. For the said purpose, Sections 4, 5 and 6 of the Act must be read conjointly. The Court in a case, where there has been total non-compliance or substantial non-compliance of the provisions of Section 5-A of the Act cannot fold its hands and refuse to grant a relief to the writ petitioner. Section 6(3) of the Act renders a declaration to be a conclusive evidence. But when the decision making process itself is in question, the power of judicial review can be exercised by the Court in the event the order impugned suffers from well-known principles, viz., illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power, it must be done in a fair and reasonable manner."
9. For the reasons stated above, I am of the view that the order passed under Section 28(3) of the Act and the final notification issued under Section 28(4) of the Act at Annexure-C insofar as the petition schedule property is concerned requires to be quashed.
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10. In the result, I pass the following order:
The writ petition is allowed. The order passed by the 3rd respondent at Annexure-G dated 26.11.2007 (item No.32) and the final notification at Annexure-C dated 25.9.2008, insofar as the petition schedule property is concerned, is hereby quashed. The 3rd respondent is permitted to proceed further in the matter from the stage of holding an enquiry under Section 28(3) of the Act and proceed further in the matter in accordance with law. No costs.
Sd/-
JUDGE.
Cs/-