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Karnataka High Court

Sri B C Lokesh vs The State Of Karnataka on 9 March, 2023

Author: Krishna S Dixit

Bench: Krishna S Dixit

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                                                  WP No. 968 of 2023




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 9TH DAY OF MARCH, 2023
                                                                       R

                                    BEFORE

                 THE HON'BLE MR JUSTICE KRISHNA S DIXIT

                WRIT PETITION NO. 968 OF 2023 (LA-KIADB)
             BETWEEN:

             SRI. B C LOKESH,
             S/O LATE CHIKKAMNIYAPPA,
             AGED ABOUT 45 YEARS,
             R/A BAGALURU VILLAGE,
             JALA HOBI, YELAHANKA TALUK,
             BENGALURU-562 149.
                                                      ... PETITIONER
             (BY SRI.I TARANATH POOJARY, SENIOR COUNSEL A/W
                 MISS. VEENA T N, ADVOCATE)

             AND:

             1. THE STATE OF KARNATAKA,
                BY ITS UNDER SECRETARY,
                DEPARTMENT OF COMMERCE AND INDUSTRIES,
Digitally
signed by       M S BUILDING, DR AMBEDKAR VEEDHI,
CHETAN B C      VIDHANA SOUDHA, BENGALURU-560 001.
Location:
HIGH
COURT OF     2. SPECIAL DEPUTY COMMISSIONER,
KARNATAKA       KIADB, NO.49, KHANIJA BHAVANA,
                EAST WING, 5TH FLOOR,
                RACECOURSE ROAD, BENGALURU-560 001.

             3. THE SPECIAL LAND ACQUISITION OFFICER,
                KIADB, NO.39, SHANTI GRUHA,
                BHARATH SCOUT AND GUIDES BUILDING,
                4TH FLOOR, PALACE ROAD, BENGALURU-560 001.
                                                       ... RESPONDENTS
             (BY SRI.R SRINIVASA GOWDA, AGA FOR R1;
                 SRI. B B PATIL, ADVOCATE FOR R2 & R3)
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                                       WP No. 968 of 2023




     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND  OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE NOTIFICATION DTD 10.10.2022 ISSUED BY THE
R1 U/S 28(4) OF THE KIADB ACT MADE IN NO.CI 84 SPQ (E)
2021, VIDE ANNEXURE-A, IN SO FAR AS IT RELATES TO THE
PETITONERS LAND WHICH HAS BEEN IDENTIFIED AS BLOCK
NO.22 IN SY.NO.176 MEASURING 2 ACRES (AS PER THE
GRANT     CERTIFICATES    AND    REVENUE     RECORDS
SY.NO.177/P41) OF BAGALURU VILLAGE, JALA HOBLI,
YELAHANKA TALUK, BENGALURU URBAN DISTRICT AND ETC.,

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
                       ORDER

Petitioner is knocking at the doors of writ Court for assailing the acquisition of his land admeasuring 2 Acres- 0 Guntas in Sy.No.176 of Bagaluru Village, Yelahanka Taluk, in Bengaluru Urban District, vide Final Notification dated 10.10.2022 issued by the 1st Respondent - State under section 28(4) of the Karnataka Industrial Areas Development Act, 1966 at Annexure-A. He has also sought for the quashment of Notification dated 10.08.2022 issued u/s 3(1) of the 1966 Act at Annexure-B whereby the area in which the subject land is subsumed has been declared to be an industrial area.

WP No. 968 of 2023

2. After service of notice, the 1st Respondent - State has entered appearance through the learned AGA; the Respondent - KIADB & its officials are represented by their Sr. Panel Counsel and they have filed the Statement of Objections & Addl. Statement of Objections resisting the Writ Petition.

3. THE FOUNDATIONAL FACTS OF THE CASE:

i) Petition property is a 'granted land' and not the one bought by the grantee by his toil. The grantee was subject to certain terms & conditions that are reflected in a copy of the document at Annexure-A. After the death of original grantee, his widow Smt.Chikkamuniyamma succeeded to the estate, and after her demise, Petitioner claims succession thereto.

ii) Earlier, the petition land along with many other was proposed for acquisition vide Preliminary Notification dated 16.12.2006 followed by the Final Notification dated 09.04.2008, by referring to Sy.No.177 when it was Sy.No.176. Joint measurement was undertaken followed -4- WP No. 968 of 2023 by taking over of entire area comprised in the Notifications including the said land. There was some official correspondence between KIADB and the revenue officials about the discrepancy as to the survey number in which the petition land is situate. However, the lands were dropped from acquisition vide Notification dated

04.12.2010. Way back in 2013, Smt.Chikkamuniyamma being the khatadar of the land, in response to Tahasildar's notice, has requested the KIADB for the payment of compensation since possession of the land was already taken over.

iii) The acquisition under the earlier Notifications of huge extent of about 200 Acres of land was for the purpose of a hardware park project. Petition land is a small bit compared to the rest and the same is subsumed in the subject industrial area. Because of the discrepancy, as already mentioned above, it was denotified and therefore, its designation as part of industrial area u/s 3 -5- WP No. 968 of 2023 and its acquisition u/s 28 have been made afresh vide impugned Notifications.

iv) Petitioner seeks to falter the same on the grounds that: designation of the subject land as an industrial area and its fresh acquisition are contrary to law; the Notifications have been issued in the name of deceased mother; the entire exercise was bona fide and smacks of legal malice; the act of the respondents is discriminatory of the petitioner; the acquisition is 'not for the public purpose but to feed the requirement of a private software company...' i.e., M/s. Nethra Software Technologies Ltd which gained allotment even before acquisition process. Counsel for the petitioner has passionately argued the matter placing reliance upon certain Rulings. The KIADB having filed its Statement of Objections and Addl. Statement of Objections, resists the Writ Petition; its Senior Panel Counsel made submissions with equal passion in justification of the impugned Notifications.

WP No. 968 of 2023

4. Having heard the learned counsel for the parties and having perused the Petition papers, this Court declines indulgence in the matter for the following reasons:

a) Petition property as already mentioned above is only a 'granted land' and not the one bought by the grantee by his toil. Although a government grant feeds the title, law recognizes a certain difference between a 'granted land' and a 'private property'. The difference in degrees of ownership that lies between a 'granted land' and a private land assumes significance while adjudging the acquisition of 'granted land' by the government i.e., the grantor for a public purpose on payment of compensation. It cannot be disputed that the grantor has retained discretion to rescind the grant on the proven violation of the terms of grant. In other words, the level of resistance to acquisition of a 'granted land' cannot be as high as in the case of acquisition of a 'private land' there being no difference when it comes to payment of compensation. This critical difference needs to be kept in -7- WP No. 968 of 2023 view when grantee of the land lays a challenge to its acquisition heavily banking upon the constitutional guarantee to the private property u/a 300A, more particularly, when the very grant is admittedly subject to certain conditions that diminish the measure of ownership.

An argument to the contrary cannot be sustained without turning a Nelson's Eye to the apparent differences relevant for the classification of persons holding 'absolute ownership' and 'restricted ownership' over the properties. It hardly needs to be stated that equality is violated not only when equals are treated unequally but unequals are meted out unequal treatment vide E.P.ROYAPPA VS. STATE OF TAMIL NADU, AIR 1974 SC 555.

      b)      The    acquisition       in    question     is   for    the

accomplishment        of    a   public       purpose     of    enormous

importance for the industrial growth that would eventually generate employment and wealth, namely the Hardware Park Project. It comprises of a huge extent of land within which petitioner's land of frugal extent is subsumed, not at -8- WP No. 968 of 2023 the periphery but somewhere a bit right or a bit left of the center. Should the acquisition be voided, the petition land would be a small island with no facility for ingress & egress, as rightly contended by learned Senior Panel Counsel of the KIADB. How and what for such a land can be made use of by the owner when acquisition of rest of the lands around has already been accomplished, remains a riddle wrapped in enigma. The explanation that the petitioner would continue to be owner of the said land regardless of diminished user potential, is too farfetched an argument that belittles the pragmatics of public interest of the community at large qua the private interest of an individual, more particularly when the gamut of power of eminent domain that was otherwise restricted by the then availing fundamental right to property u/a 19(1)(f) has been since relegated to as a diminished constitutional guarantee u/a 300A vide 44th Amendment, as has been discussed in M/S K.T. PLANTATION PVT. LTD. V. STATE OF KARNATAKA (2011) 9 SCC 1.

WP No. 968 of 2023

c) Earlier the subject land along with the other was earmarked as industrial area u/s 3 and notified for acquisition u/s 28 of the 1966 Act; after accomplishing the joint measurement of the entire area, the possession thereof was assumed by the KIADB way back in the year 2008, is the case of very petitioner himself. There was some discrepancy in mentioning the correct survey number i.e., Sy.No.176 instead of Sy.No.177 and in that connection, there was official correspondence between the SLAO and the Revenue officials. The khatadar namely Smt.Chikkamuniyamma the widow of original grantee who is none other than the mother of petitioner herein vide representation dated 24.6.2013, had specifically claimed compensation and not the subject land back; that amounts to acquiescing in the taking over of the land, although that was dropped from acquisition vide Notification dated 4.12.2010. The project in question for which the entire area has been taken is accomplished. Even the subject land has been allotted in favour of M/s Nethra Software Technologies Ltd., on 9.11.2017 followed by the issuance

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of a Possession Certificate dated 13.8.2019. In the backdrop of all this, the impugned Notifications have been issued to formalize the acquisition and thereby, provide for the payment of compensation. Thus, whatever right that availed to lay a challenge to the acquisition stood waived by the act of petitioner's mother in claiming compensation for the land actually taken and on such substratum, allotment has been made by the KIADB after the allottee remitted the specified amount as consideration therefor. In the light of all this, the arguable infirmities in the subject acquisition pale into insignificance.

d) Where huge extent of lands are acquired for public purpose, namely the project of the kind, at times, small pockets of lands pose some difficulty, may be because of inadvertence or otherwise of the officials concerned. Some infirmities have crept into the acquisition process. Such instances galore in the Law Reports and standard books on land acquisition. Voiding acquisition of such a small pocket of lands will have undesirable

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consequences on the project as a whole for which other lands in a huge extent have been notified; sustaining such an acquisition, notwithstanding the arguable lacunae therein would protect the public interest and some damages can be awarded in addition to compensation to set right the injustice so that a fair balancing of competing interests is achieved. That is how a Writ Court has to individualize justice keeping in view a host of factors that enter the fray of dispute. Such things cannot be done with arithmetical accuracy, hardly needs to be stated.

e) The submission of petitioner's counsel that his client's land came to be denotified from acquisition way back in the year 2010, despite that the KIADB having retained possession has allotted the same for the establishment of a private industry and therefore, the present acquisition which seeks to legalize the same smacks of legal malice, appears to be a attractive at the first blush. But its deeper examination shows otherwise; things are not that simple when acquisition is of hundreds

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of acres of land for a specified project. What one has to keep in mind is: the State has a vast power of eminent domain which Article 300A itself recognizes; there is no property that is completely immune from acquisition for public purpose; at times, in respect of small portions of acquired lands, some infirmities may crop up; in such circumstances, invalidating the acquisition of a small portion would thoroughly jettison the underlying public purpose. Therefore, justice can be done for the violation of private property rights by sanctioning secondary remedies such as awarding damages or the like. The argument that even if heavens fall down, the interest of the petitioner should be protected by voiding the acquisition only reminds of moneylender Shylock's claim for one pound of flesh in Shakespeare's 'Merchant of Venice'. What Portia with a brainwave told Shylock is worth mentioning:

"The contract says you may have a pound of flesh, but not a drop of blood. If you spill any of his blood, you will be committing a crime..."

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f) To overcome the discrepancy, the present acquisition is notified and an attractive compensation at the rate of Rs.2.75 Crore is also offered. Should the same be set at naught, that would affect the very accomplishment of the Project in a wholesale way and to the huge prejudice of public interest. In other words, public interest would be better served by upholding the acquisition than by voiding it, of course subject to payment of certain amount by way of damages. This would not militate against the ratio of the Apex Court decision in M/S. GIRIAS INVESTMENT PVT.LTD. VS STATE OF KARNATAKA (2008) 7 SCC 53, paras 13, 14 & 19, which in turn refers to STATE OF PUNJAB Vs. GURDIAL SINGH, (1980) 2 SCC 471. Therefore, the reliance placed by petitioner's counsel on these Rulings would not much come to his aid, more particularly, when his clients mother having waived the right to challenge to the taking over of the land as such despite absence of acquisition process.

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g) The contention of petitioner's counsel that once the land was denotified from acquisition, the KIADB ought to have restored its possession to his client whereas even before freshly notifing the acquisition, it allotted the same in favour of M/s Nethra Software Technologies Ltd., cannot be examined by this court in the absence of the said allottee being a party eo nomine to these proceedings. It hardly needs to be stated should petitioner's contention be upheld, the acquisition has to be set at naught and eventually, the apple cart of the allottee would be upset without an opportunity of hearing. It is not that the allottee has been gifted with the subject land or that he has got it for a song. He is a substantial stakeholder in the litigation, having paid heavy amounts for the allotment in question and may be that by this time, he has developed the allotted land. The said allottee apparently is a proper party if not a necessary party in the light of Apex Court decision in RAZIA BEGUM vs. SAHEBZADI ANWAR BEGUM, AIR 1958 SC 886. There is absolutely no reason or rhyme for the petitioner to have

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him not arrayed as a party to the proceeding. Thus, petition is bad for non-joinder of a necessary party, regardless of its arguable merits.

h) The next contention of petitioner's counsel that the State could not have notified the acquisition of his client's land only for the purpose of sustaining the allotment made in favour of M/s Nethra Software Technologies Ltd., earlier once denotification having been issued, is bit difficult to countenance. Ordinarily, the allotment of land should follow the accomplishment of acquisition, is true. However, as already mentioned above, fresh acquisition is undertaken in the discharge of power of eminent domain for legalizing what has been done de facto. It is not that all such cases would per se smack of legal mala fide or exhibit proprietary bias on the part of authorities. The petitioner's land once having been notified for acquisition came to be dropped from it way back in 2010, cannot be disputed. In the meanwhile, the possession of the land was taken over soon after the joint

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measurement of the industrial area; petitioner's mother Smt.Chikkamuniyamma did not seek the land back but had sought for payment of only compensation by writing to the KIADB way back in the year 2013. Acting on the same, the land was retained by the KIADB and later, has been allotted to M/s Nethra Software Technologies Ltd., on the payment of price. The present acquisition formalizes the de facto position and thereby, facilitate the payment of compensation to the owner in terms of SLAO's letter dated 9.1.2015 addressed to Tahasildar about the difficulty of making payment without such formalization, which the land owners were pressing for by obstructing developmental activities. This compensation now offered is on the basis of fortuitously escalated prices in terms of extant Notified Guideline Values. Therefore, the said contention does not much come to the aid of petitioner.

i) The vehement argument of petitioner's counsel that the impugned notifications have been issued in the name of dead person namely his mother

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Smt.Chikkamuniyamma and as a consequence, petitioner had no opportunity of filing the objections to the proposal for acquisition after the Preliminary Notification u/s 28(1) was issued, again will not come to his aid, he having admittedly filed ones. Ordinarily, the acquisition is notified with the name of khatadar; the entries in the revenue records or property records enjoy presumptive value. Had the petitioner got his name mutated after getting deleted his mother's or had he placed on record some material to vouch any such claim for mutation, there could have been some scope for such an argument. Even otherwise, the text of section 28 of the 1966 Act being a bit in variance with that of the provisions of section 4(1) of the erstwhile Land Acquisition Act, 1894 and of section 17 of the Bangalore Development Authority Act, 1976, such a contention cannot be countenanced. In the former, the paper work for acquisition is 'khatadar specific' unlike in cases of acquisition notified under the latter, wherein some reasonable enquiry is required to be done for ascertaining the 'persons interested in the land'. An

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argument to the contrary blurs the boundary lines of schemes of acquisition envisaged under these statutes and thus, runs counter to the scope of section 28 of the 1966 Act.

j) The last contention of the petitioner that the 2013 representation of his mother seeking compensation for the land in question cannot be construed as the waiver of her right to litigate over acquisition since she was an illiterate lady, is difficult to agree with. Firstly, petitioner has suppressed the said representation from the court and from the KIADB as well inasmuch as in his original pleadings, he has not made even a whisper of that. In all fairness, he ought to have mentioned about the said representation and then structured the plea of the kind. It is only after the KIADB filed its objections, such a plea of anti-waiver is put forth. A perusal of the original records that were shown to the court shows that Smt.Chikkamuniyamma had made the subject representation which obviously is not in dispute. Secondly,

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the petitioner in rejoinder dated 17.2.2023 at paragraph No.4 have specifically admitted '...the KIADB had disbursed compensation in respect of other acquired land bearing Sy.No.176/38 to the petitioner's mother based on her legal entitlements.'

k) The above apart, petitioner has suppressed a related case in W.P.No.40249/2014 in which interim order restraining disbursement of compensation has been issued by a Coordinate Bench of this Court, wherein petitioner happens to be 6th respondent and his mother Smt.Chikkamuniyamma 3rd respondent, therein. He has also suppressed the pendency of P.C.R.No.8867/2012, later registered as C.C.No.20925/2012 wherein he happens to be one of the accused before IX ACMM Court, Bangalore in connection with the offence of cheating namely drawing of entire compensation in respect of the subject land. The explanation offered at paragraphs 6 & 8 that 'it is by inadvertence the petitioner has not stated about' the said case and the interim order and 'petitioner

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would have certainly brought that...to the notice of this Hon'ble court at appropriate stage and had no intention of suppressing it' hardly constitutes a plausible explanation. The earlier Writ Petition being fought, with the petitioner and his mother as respondents itself militates against the said contention. This conduct of the petitioner preempts him from countering respondents' contention of waiver of challenge to the acquisition. Therefore, petitioner's reliance on Apex Court decision in BASHESHAR NATH VS. INCOME TAX OFFICER, 1959 SUPPL (1) SCR 528 does not much come to his help, differential fact matrix of the said Ruling being an added point for making it uninvocable.

l) There is yet another reason for not granting interference in the matter: petitioner had filed the objections dated 5.9.2022 to the Preliminary Notification issued u/s 28(1) for acquisition; the same came to be overruled after consideration vide order dated 20.9.2022; the Final Notification has been issued u/s 28(4) of the 1966 Act; the SLAO of the KIADB has passed the general

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award dated 12.1.2023 determining the compensation amount at the rate of Rs.2.75 crore per acre. Award notice has also been issued on 17.1.2023. A huge sum of Rs.3,22,80,387/- has been deposited in L.A.C.No.3/2023 before the Senior Civil Judge Court at Devanahalli vide Union Bank cheque dated 25.1.2023, presumably because of pendency of W.P.No.40249/2014 in which there is an interim stay against disbursal of compensation. It is open to the Petitioner or any other persons interested in the land either to accept the compensation as offered or to seek reference for enhancement, by establishing their credentials. It is also open to the petitioner to file a suit for damages for working out the secondary remedies, if any, in accordance with law.

In the above circumstances, this Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, costs having been made easy.

It is made clear that nothing herein above contained shall come in the way of petitioner seeking damages for

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the arguable lapses attributable to the respondents herein by framing appropriate proceedings, in accordance with law.

Sd/-

JUDGE Snb/