Karnataka High Court
Mrs Mathekar Taherunissa Since Dead By ... vs State Of Karnataka on 23 August, 2013
Author: D.V.Shylendra Kumar
Bench: D V Shylendra Kumar
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 23rd day of August, 2013
BEFORE:
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
Writ Petition No. 15027 of 2007 (LA-KIADB)
BETWEEN:
1. MRS MATHEKAR TAHERUNISSA
SINCE DEAD BY LRs
(a) S RASHEED AHMED
AGED ABOUT 70 YEARS
H/O MATHEKAR TAHERUNISSA
(b) S ANEES AHMED
AGED ABOUT 33 YEARS
(c) S ZAKI AHMED
AGED ABOUT 30 YEARS
(d) S NASEERA FARHEEN
AGED ABOUT 40 YEARS
(e) S HUMERA TASKEEN
AGED ABOUT 38 YEARS
(f) S RIZWANA KAUSER
AGED ABOUT 36 YEARS
(g) S SARIYA SULTANA
AGED ABOUT 34 YEARS
(h) S BUSHRA TASNEEM
AGED ABOUT 31 YEARS
2
P1(b) TO P1(h) ARE THE
SONS / DAUGHTERS OF
MATHEKAR TAHERUNISSA
AND P1(a) TO P1(h) ARE
R/AT SINGAHALLI
OPP. PALYA GATE
YALHANKA HOBLI,
BANGALORE NORTH TALUK
BANGALORE DISTRICT
2. MRS MATHEKAR KAMRUNISSA
SINCE DEAD BY LRs
(a) S AHMED BASHA
AGED ABOUT 62 YEARS
H/O MATHEKAR TEHARUNNISSA
(b) ANJUM ARA
AGED ABOUT 35 YEARS
D/O MATHEKAR TEHARUNNISSA
(c) S MASOOD AHMED
AGED ABOUT 34 YEARS
S/O MATHEKAR TEHARUNNISSA
(d) S KALID
AGED ABOUT 30 YEARS
S/O MATHEKAR TEHARUNNISSA
P2(a) TO P2(d) ARE R/AT NO.10/61
MEENAKSHI KOIL STREET
3RD CROSS, SHIVAJINAGAR
BANGALORE - 560 051 ... PETITIONERS
[By Smt Radha Jayanthi C S, Adv. and
Sri N Bayya Reddy, Adv.]
AND:
1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF INDUSTRIES
AND COMMERCE
3
VIDHANA SOUDHA
BANGALORE - 560 001
2. THE SPECIAL LAND
ACQUISITION OFFICER
KARNATAKA INDUSTRIAL
AREAS DEVELOPMENT BOARD
NO.3/2, KERAI BUILDING
I CROSS, GANDHI NAGAR
BANGALORE - 560 009
3. THE CHAIRMAN
KARNATAKA INDUSTRIAL
AREAS DEVELOPMENT BOARD
PEENYA INDUSTRIAL ESTATE
BANGALORE ... RESPONDENTS
[By Sri R Omkumar, AGA for R1;
Sri N Devahdass, Sr. Counsel for
Sri Shivaprabhu S Hiremath, Adv. for R2 & R3]
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THE
NOTIFICATION DATED 07.08.2006 AS PER ANNEXURE - C ISSUED
UNDER SECTION 3(1) OF THE ACT DECLARING ONE ACRE LAND IN
SY.NO.9, SINGAHALLI, JALA HOBLI, YELAHANKA HOBLI, AS AN
UNAUTHORIZED, ILLEGAL AND UNCONSTITUTIONAL AND ETC.,
THIS PETITION COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The Government of Karnataka had issued three Notifications in file CI 247/SPQ/2006 dated 7.8.2006 under the provisions of the Karnataka Industrial Areas Development Act, 1966. The first notification issued under 4 section 3[1] of the Act was to declare as industrial area. The lands located in Bandakodagehallipalya, Singahalli, Arebinnamangala, Gollahalli Village of Jala Hobli, Bangalore North Taluk, Bangalore District, covering total extent of 1209.09½ acres of land spread over these four villages declaring the land covered by notification to be an industrial area.
2. The second notification was to extend the provisions of Chapter - VII of the Act and make it applicable to lands notified and covered by section 3[1] of the Act. The third notification was issued u/s. 28[1] of the Act evincing interest to acquire notified lands as subject lands were to be developed as industrial area by the Board. This acquisition proceedings is for the convenience sake, referred to as 'first acquisition proceedings' in this order.
3. While the first acquisition proceedings under the Notification dated 7.8.2006 referred to above was still at a preliminary stage, the State Government came up with a 5 like set of notifications i.e., notifications under sections 3[1], 1[3] and 28[1] of the Act in Proceedings bearing No.CI/3/SPQ/2007 all dated 9.1.2007 and published in the Karnataka Gazette on 10.1.2007. These notifications were in respect of total extent of 1069 acres 9 guntas of land comprising villages of Dummanahalli, Singahalli and Unasuru Villages in Bangalore North Taluk and in Jonnahalli, Baladimmanahalli, Kavadadasanahalli, Batramaranahalli, Bettikote in Devanahalli Taluk of Bangalore District as indicated in the schedule to the notifications. This acquisition proceedings is for convenience sake referred to as 'second acquisition proceedings'. The proceedings under these two acquisition proceedings progressed separately.
4. Insofar as writ petitioners are concerned, while an extent of 1 acre of land belonging to the petitioners in Sy. No.9 of Singahalli Village had been notified from out of 12 acres 29 guntas of land, in the second acquisition 6 notification the entire extent of 12 acres 29 guntas was notified for acquisition.
5. This writ petition is presented by owners of an agricultural land measuring an extent of 12 acres 29 guntas in Sy No 9 of Singahalli village, Jala Hobli, Bangalore north taluk. Petitioners claim that they have purchased this parcel of land as per sale deed of the year 1975 precisely on 1-7-1975 from its erstwhile owner and thereafter the petitioners' names figure in the revenue records. Petitioners having expired during the pendency of this writ petition, their legal heirs have come on record.
6. In respect of land in question, a preliminary notification dated 7-8-2006 had come to be issued under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 [for short, the Act], following a notification issued under Section 3(1) of the Act, declaring the area covered under the notification including the land 7 of the petitioners measuring 1 acre as an industrial area for the purpose of the Act.
7. The notification under Section 3(1) of the Act while is at Annexure-C to the writ petition, the specific land of the petitioner measuring an extent of one acre in Sy No 9 is at Sl No 9 of this notification and marked as Annexure-C1. The preliminary notification under Section 28(1) of the Act following the declaration dated 7-8-2006 is produced at Annexure-D to the writ petition and is also of the same date.
8. It is the case of the petitioners that they had received a notice under Section 28(2) of the Act in respect of an extent of one acre of land and a copy of which is produced at Annexure-E. Petitioners had filed their objections, contending that petitioners had developed the land which was earlier a barren land to a plantation and had grown fruit-bearing trees. It is also claimed that there is a farm house in the land and the petitioners are residing in it. It 8 is also pleaded that some 80 members in the family and other labourers were all in the farm house and they will be put to hardship and injury if the land is acquired for an industrial purpose etc.
9. It is also the case of the petitioners that they have not received any further intimation about the developments in this regard by way of follow up action. It is pleaded that to their shock and surprise, petitioners received another notice from the special land acquisition officer, Karnataka industrial areas development board, Bangalore, calling upon the petitioners to hand over possession of the entire extent of 12 acres 29 guntas of land in Sy No 9, by notice issued under Section 26(6) of the Act instead of one acre of land as had been notified in the preliminary notification at Annexure-D bearing No CI 247 SPQ 2006, dated 7-8-2006, published in the official gazette on the same day.
10. It is thereupon, the petitioners claim, they had made enquiries and learnt that notice issued to them under 9 Section 28(6) of the Act had been preceded by a final notification issued under Section 28(4) of the Act in No CI 266 SPQ 2007 dated 15-5-2007, published in the official gazette dated 17-5-2007, a copy of which is produced at Annexure-H to the writ petition. The portion indicating the land of the petitioners is marked as Annexure-H1.
11. It is in this background, this writ petition is presented, inter alia, on the grounds that while the notification issued by the respondent-state under Section 3(1) of the Act declaring the area as an industrial area only refers to an extent of one acre of land in Sy No 9, the final notification, on the other hand, has indicated that it is 12 acres 29 guntas; that the inclusion of additional extent of land is without authority of law and even the notice issued under Section 28(2) of the Act calling upon the petitioners to file objections, if any, was with reference to an extent of one acre of land proposed for acquisition and it had also been objected to, but the notice issued under Section 28(6) 10 of the Act had called upon the petitioners to hand over the entire extent of 12 acres 29 guntas of land; that the subject land was not required to be developed as an industrial area; that it was unfit for such purpose; that the declaration issued under Section 3(1) of the Act did not specify as to the precise nature of the industry that was sought to be developed; that the powers available under the Act have been exercised in an arbitrary and whimsical manner. It is in such background, the petitioners have sought for the following relief:
i) declaring the Notification dated 7.8.2006 as No.CI 247 SPQ 2006 as per Annexure -
C issued under Section 3(1) of the Act declaring one acre land in Sy.No.9, Singahalli, Jala Hobli, Yelhanka Hobli as an unauthorized, illegal and unconstitutional;
ii) declaring the Notification dated 7.8.2006 in No.CI 247 SPQ 2006 issued under Section 28(1) of the Act as per Annexure -
D proposing to acquire one acre of land in Sy.No. 9 of Singahalli as unjust, inequitable and contrary to public purpose;
11
iii) declaring the Notification dated 15.5.2007, No.CI 226 SPQ 2007 issued under Section 28(4) of the Act as per Annexure - H proposing to acquire 12 Acres 29 Guntas of land in Sy.No.9 of Singahalli as vitiated, illegal and unconstitutional;
iv) declaring the Notice issued to the petitioners dated 9.7.2007 in No.KIADB LAQ SLAO 825/07-08 under Section 28(6) vide Annexure - G as illegal, unauthorized, vitiated and unconstitutional;
v) quash the said Notifications in so far as they relate to 1 Acre / 12 Acres 29 Guntas of land in Sy.No.9 of Singahalli, Jala Hobli, Yelhanka Taluk as illegal and irregular and
vi) award court costs and such other reliefs as the situation demands in the interest of justice.
12. Notice had been issued to the respondents. The state is represented by Sri R Omkumar, learned AGA and Ms M C Nagashree, learned government pleader and the respondents 2 and 3 - KIADB - are represented by Sri N Devhadass, learned senior advocate, instructed by Sri Shivaprabhu S Hiremath, advocate.
12
13. Statement of objections has been filed on behalf of the state government on 27-1-2011, supported by the affidavit of under secretary to government, commerce and industries department, Bangalore. It is stated in this statement of objections that the challenge is on the premise that final notification dated 15-5-2007 is at variance with the preliminary notification and the declaration under Section 3(1) of the Act dated 7-8-2006, but the final notification dated 15-5-2007 even has the reference indicating therein that it is not based on the preliminary notification dated 7- 8-2006, but is based on the declaration under Section 3(1) of the Act and preliminary notification under Section 28(1) of the Act, both dated 9-1-2007; that this latter preliminary notification dated 9-1-2007 was in respect of a different purpose viz., for setting up of aircraft components manufacturing units, otherwise known as aerospace project, in and around Bangalore international airport, Devanahalli and as under this notification, the entire extent of 12 acres 29 guntas of land in Sy No 9 of Singahalli 13 village had been notified for acquisition and the earlier notification in respect of the land of petitioners has not been proceeded with and in the final notification issued with reference to preliminary notification dated 7-8-2006 issued under Section 28(4) of the Act and dated 25-9-2008, an extent of one acre of land of the petitioners notified in the preliminary notification had been given up and not included. It is also pointed out that there is a clear reference in the final notification in respect of aerospace project issued under Section 28(4) of the Act a different preliminary notification dated 9-1-2007, which had been gazetted on 10-1-2007. It is averred that though the petitioners had knowledge of this position, even as revealed in the final notification which is under challenge at Annexure-H to the writ petition, it is projected as though this final notification is based on the preliminary notification with reference to another acquisition proceedings. It is claimed that such a challenge is virtually misleading and suppressing the material facts etc. 14 It is asserted that an extent of 12 acres 29 guntas of land in Sy No 9 of Singahalli village belonging to petitioners had been notified as an industrial area under Section 3(1) of the Act by notification dated 9-1-2007, published in the official gazette dated 10-1-2007. It is also pleaded that the preliminary notification issued under Section 28(1) of the Act was also on the same day and indicated that the land was required for formation of aerospace project. The final notification with reference to this preliminary notification is dated 15-7-2007 and published in the official gazette on 17-5-2007.
14. In so far as the service of notice under Section 28(2) of the Act in respect of the proposal for acquisition of land issued under Section 28(1) of the Act is concerned, it is averred that as the petitioners were not available at the subject land proposed for acquisition, notice under Section 28(2) of the Act was served by way of affixure and by drawing a mahazar on the spot and thereafter orders were 15 passed under Section 28(3) of the Act on 28-2-2007 and then followed the final notification issued under Section 28(4) of the Act dated 15-5-2007, published in the official gazette dated 17-5-2007.
15. The decision for identifying 1000 acres of land required for the aerospace project had been taken in the meeting held on 3-11-2006 under the chairmanship of chief secretary to government of Karnataka and the chief executive officer and executive member of the board was directed to identify 1000 acres of land near Bangalore international airport at Devanahalli to develop a cluster for aircraft components manufacturing industries. A copy of the proceedings dated 3-11-2006 is produced as Annexure- R3 to the statement of objections.
16. The board in its meeting held on 1-3-2007, had given post facto approval of the proposed acquisition and a copy of this resolution is produced at Annexure-R4 to the statement of objections.
16
17. Under such circumstances, it is asserted that an extent of 12.29 acres of land in Sy. No.9 of Singahalli Village of Jala Hobli had been notified as industrial area under Notification dated 9.1.2007 issued under section 3[1] of the Act and on the same day had been issued preliminary notification under section 28[1] of the Act and thereafter notice under section 28[2] of the Act also had been served on the petitioners by way of affixture.
18. It is also asserted that acquisition being for the purpose of establishing aerospace project which is in the interest of the State as a whole and larger public interest, the acquisition is for public purpose and therefore cannot be interfered by the courts on the allegations made by the petitioners and has prayed for dismissal of the writ petition.
19. In the background of such developments, this court having queried as to whether the State Government could have issued simultaneous notifications under sections 3[1], 1[3] and 28[1] of the Act and related queries, the State 17 Government has filed additional statement of objections dated 27.6.2011 placing reliance on the Judgment of the Supreme Court in the case of 'M/s. AHUJA INDUSTRIES LIMITED v. STATE OF KARNATAKA & OTHERS' reported in AIR 2003 SC 3519 and also decision of the Supreme Court in the case of 'HMT LIMITED v. MUDAPPA AND OTHERS' reported in 2007 [3] KCCR 1985 and specifically to the observations made at paragraph-28 wherein the Supreme Court had held that there is no bar for simultaneous issue of notifications under sections 3[1], 1[3] and 28[1] of the Act.
20. On behalf of the respondents 2 & 3 - Special Land Acquisition Officer and Chairman of the Board, the first statement of objections was filed on 21.6.2010 just by denying the averments in the writ petition and urged for dismissal of the writ petition. Thereafter, additional statement of objections was filed on behalf of respondents 2 & 3 indicating that total extent of land sought to be 18 acquired as per the preliminary notification dated 9.1.2007 and published in the Karnataka Gazette dated 10.1.2007 was an extent of 1069 acres in various villages including Singahalli Village wherein the petitioners' land in Sy. No.9 was located measuring an extent of 12 acres 29 guntas. Other developments leading to the publication of final notification under section 28[4] of the Act dated 15.05.2007 published in Karnataka Gazette dated 17.05.2007 are all narrated and copy of the final notification is also produced as Annexure-R4.
21. It is also averred that the final notification relating to acquisition of lands as per the preliminary notification dated 7.8.2006 [Annexure-D to the writ petition] vide No.CI- 397/SPQ/2007 dated 25.08.2008 covering an extent of 1028.19 and odd acres in four villages was published and in this final notification, the land of the petitioners in Sy. No.9 of Singahalli Village is not included as it was acquired vide final notification dated 15.5.2007 issued with reference 19 to the second acquisition proceedings. The final notification dated 25.8.2008 is produced as Annexure-R9 to the additional statement of objections.
22. Another additional statement of objections was filed on 6.6.2011. In this statement, it was indicated that proposal for acquisition of one acre of land in Sy. No.9 of Singahalli Village belonging to the petitioners under the preliminary notification of the year 2006 for the purpose of establishing an industrial area was dropped as the land in Sy. No.9 was included for acquisition in the acquisition proceedings for the purpose of aerospace project. It is for convenience, referred to as 'second acquisition proceedings' and it is indicated here that the notice under section 28[2] of the Act under the second acquisition proceedings was effected by way of affixture for the reason that the petitioners were not available and the report of the Special Land Acquisition Officer in proceedings under section 28[3] dated 28.2.2007 indicating that no objections were filed to 20 the proposed acquisition proceedings and recommendation therein produced as Annexure-R8 to the additional statement of objections. The development leading to issue of the final notification under section 28[4] of the Act dated 15.5.2007 and published in the Gazette on 17.5.2007 is again produced as Annexure-R19 and notice issued to the petitioners under section 28[6] of the Act is produced as Annexure-R20. It is asserted that all these documents support the version of the respondents that acquisition are valid acquisitions and therefore have urged for dismissal of the writ petition.
23. In response to certain queries of this court, the details of lands acquired for aerospace project, extent and the amount of compensation already paid is also placed before the court as Annexure-R21. The manner in which aerospace project had been approved in favour of the companies by the Board and related information are all 21 placed before the court in the form of Annexures - R22 & R23.
24. The Board has filed yet another additional statement of objections dated 6.7.2011 tracing the history of conception of aerospace project of the State under the new industrial policy for the years 2006-2011. The persons and companies who had evinced interest in this project are all indicated and the manner of utilization of the land acquired under the second acquisition proceedings for aerospace project. It is indicated that available lands is fully utilized by way of allotment to 43 approved projects; that there was still additional demand and the aerospace industrial area is developed as per the approved layout plan, laying of roads etc; that the amount is deposited in favour of the BWSSB for such purpose. The amount of compensation paid in favour of land owners in respect of extent of 670.26 acres to be at Rs.369.19 crores is also stated and expenditure statement towards industrial development is produced as 22 Annexure-R32. The earlier developments are all produced in the form of Annexure-R24 plan and other things upto Annexure-R31.
25. In the additional statement of objections dated 13.04.2012 filed on behalf of respondents 2 & 3, a village map of Singahalli Village is produced indicating location of Sy. No.9 of the Singahalli Village and copy of the Google picture of Singahalli Village is also produced indicating that developments relating to formation of roads have taken place.
26. Statements are filed thereafter indicating that joint survey was said to be conducted for identifying the actual extent of land in possession of the petitioners etc. It is indicated that in view of certain discrepancies, a proposal had been sent to the State Government for reduction of extent proposed for acquisition in the preliminary notification issued under section 28[1] of the Act and the final notification issued under section 28[4] of the Act 23 reducing the extent of land proposed for acquisition to 3 acres 3 guntas instead of 12 acres 29 guntas as originally proposed.
27. On behalf of the State Government, Sri. Omkumar, learned Additional Government Advocate submits that in view of such developments, the State Government had issued a corrigendum dated 6.8.2013 effecting corrections in the preliminary notification dated 9.1.2007 published in the gazette on 10.1.2007 and the final notification dated 15.5.2007 published in the gazette on 17.5.2007 in respect of the lands acquired for aerospace project, particularly, correcting the extent of land belonging to the petitioners in Sy. No.9 from the original proposal indicating that the petitioners had been shown as Khatedars of extent of 11 acres 27 guntas excluding the kharab land was actually found to be in possession of 3 acres 3 guntas and therefore the extent of land is limited to 3 acres 3 guntas in this 24 survey number as per the corrigendum which is placed before the court along with memo dated 22.8.2013.
28. Objections are also filed on behalf of the petitioners to this corrigendum and notification; that it is only an attempt to bypass the direction issued by this court earlier; that the corrigendum had not been issued with due compliance of the directions issued by this court and court after noticing that there was several defects in acquisition proceedings so far as petitioners' land is concerned had observed that the State Government can withdraw the notification which were found to be defective; that the State instead of doing so, has proceeded to issue a corrigendum as though all earlier proceedings were in order etc., but it is not so.
29. This writ petition by the land owners questioning the legality of the acquisition proceedings and particularly the large extent of land notified for acquisition by the State Government under the provisions of the Act though was confining to an extent of 12 acres 29 guntas of land notified 25 under the notifications under the ownership of the petitioners, was nevertheless being examined on a larger scale as public interest is involved in any acquisition proceedings of land, more so, agricultural land and in this case for industrial purpose such as setting up of aerospace project. However, writ petitioners have confined their interest to the extent of 12 acres 29 guntas notified under the notifications preliminary and final and notice issued to them for handing over possession of the subject land. In the wake of the production of records and the considerable material placed before the court about the background leading to issue of preliminary notification for acquisition of land for aerospace project and material placed before the court, it is to be noticed that the implementation of the project is under process in respect of acquired lands and therefore the larger question is not pursued, but interest of the petitioners under the acquisition proceedings alone can be examined and this question can be examined as to whether the petitioners can claim any relief in the wake of 26 the development of law relating to acquisition of land under the Act.
30. The first contention urged on behalf of the petitioners is that issue of final notification proposing to acquire larger extent of land - an extent of 12 acres 29 guntas in Sy. No.9 of Singahalli Village had not been preceded by issue of preliminary notification under section 28[1] of the Act nor petitioners had been served with personal notice under section 28[2] of the Act and therefore they have been deprived of an opportunity to file their objections; that in the absence of the preliminary notification preceding issue of final notification under section 28[4] of the Act in respect of lands of the petitioners, the entire proceedings are of no effect in law insofar as petitioners are concerned and therefore all proceedings should be quashed. What is urged is that the preliminary notification of the year 2006 only proposes to acquire an extent of 1 acre of land belonging to the petitioners in Sy. No 9 of Singahalli Village. 27
31. In response, the respondents both the State Government and the Board have produced the Notification dated 9.1.2007 gazetted on 10.1.2007 and what is specifically pointed out on behalf of the petitioners is that amongst the three notifications said to have been issued on 9.1.2007 and under sections 3[1], 1[3] and 28[1] of the Act, the only notification under section 3[1] is gazetted and not the other two notifications, viz., notification under section 1[3]of the Act and further notification under section 28[1] of the Act evincing interest of the State Government to acquire the lands notified therein.
32. On behalf of the State Government and the Board, it is urged that all the three notifications are gazetted and not merely the notification dated 9.1.2007 issued under section 3[1] of the Act. Respondents have produced copies of the gazette publication of the notifications etc.
33. A close scrutiny of the gazette publication dated 10.1.2007 indicates that there are three notifications and 28 here while the first notification is immediately below the heading and the date 10.1.2007 of the Gazette the second notification is shown as C¢ü¸ÀÆZÀ£É-2 and follows after completion of the first notification and likewise the third notification under section 28[1] of the Act is also numbered.
34. Smt. Radha Jayanthi, learned counsel for petitioners while has urged that the acquisition proceedings for the aerospace project leading to final notification is of no significance or legal effect in law as it is not preceded by preliminary notification and has placed reliance on the observations made in paragraph-8 of the Judgment of the Supreme Court in the case of M/S AHUJA INDUSTRIES [supra]; that it is only by issue of preliminary notification, the State Government evinces interest to acquire the land notified in an industrial area and if not there cannot be any further developments. The argument proceeds on the premise and as urged in the writ petition that no 29 preliminary notification under section 28[1] of the Act had been issued at all, but as pointed out by Sri. Omkumar, learned Additional Government Advocate and counsel for the Board, in the gazette publication dated 10.1.2007 all three notifications are found together one following the other and it is not as though final notification issued for acquisition of the petitioners' lands in Sy. No.9 as per Government Proceedings in CI 266/SPQ/2007 dated 15.5.2007 and gazetted on 17.05.2007 is not preceded by issue of a preliminary notification.
35. The first preliminary notification which the State Government has issued proposing acquisition of one acre of land is followed up by a different final notification and in that final notification, the proposal to acquire one acre of land belonging to petitioners in Sy. No.9 has been dropped.
36. In so far as the service of notice on the petitioners in respect of the proposal for acquisition to the entire extent of their land in Sy No 9 is concerned, it is the case of the 30 petitioners that assuming it has been published, without conceding, petitioners have not received any notice under Section 28(2) of the Act calling upon them to show cause within 30 days from the date of receipt of notice as to why the land should not be acquired and in this regard, submission of learned counsel for petitioners is that the stand of the respondents that service of notice by affixture at the premises of the petitioners cannot be accepted as a service of notice under Section 28(2) of the Act on the land owners, which is not an empty formality and at any rate it is a mandatory requirement and has to be complied with. Learned counsel for petitioners has submitted that non- compliance with this mandatory requirement inevitably vitiates the acquisition proceedings in respect of entire extent of 12 acres 29 guntas of land and the acquisition proceeding following the Section 28(2) notice, in respect of the land in the name of the petitioners should be quashed. In support of this contention, learned counsel for petitioners has placed reliance on the decision of a Division 31 Bench of this court in the case of KULKARNI H G vs ASSISTANT COMMISSIONER, BELGAUM [1976(1) KAR LJ 290]. The observation contained in para-29 of this judgment indicating that the defence of the state and the board that notice under Section 28(2) of the Act had been served by way of affixture to defend the acquisition proceedings is negatived by the division Bench observing, inter alia, that '.. we do not think such service is in sufficient compliance with the requirement of the statute. ...'. It is also observed that until and unless the mandatory requirement of personal service of notice under Section 28(2) of the Act is effected on the owner/khatedar of the subject land, all proceedings subsequent to such issue of preliminary notification under Section 28(1) of the Act get vitiated and such later proceedings have been quashed.
37. Reliance is also placed on the judgment of a single judge of this court in the case of S C KEMPAIAH vs KARNATAKA INDUSTRIAL AREAS DEVELOPMENT 32 BOARD [1980(2) KAR LJ 403], wherein it is noticed that once the landowners are served with notice under Section 28(2) of the Act, then follows the requirement of giving them personal hearing before the government to take a decision to pass order as required under sub-sections (2) and (3) of Section 28 of the Act and in such an event, acquisition proceedings of subject land get vitiated in view of violation of the statutory provisions. It is held that a declaration under Section 28(4) of the Act and its application on the final notification and so also a notice to be served under Section 28(6) of the Act to deliver possession of subject land by the owners, get invalidated and vitiated and only deserves to be quashed, if there is no compliance with the provisions of sub-sections (2) and (3).
38. Reliance is also placed on another single judge decision of this court in the case of MAHESH K CHAWLA vs STATE OF KARNATAKA [ILR 2011 KAR 1725], to submit that when a declaration under Section 28(4) of the 33 Act shows that a parcel of land in respect of which preliminary notification has not been issued, no opportunity of hearing was accorded following service of notice under Section 28(2) of the Act, the acquisition proceedings cannot stand and this position was in fact conceded in this case by the learned Advocate General after examining the factual and legal position and therefore urges that in the instant case also, a declaration for acquisition of the entire extent of land belonging to the petitioner in Sy No 9 was not proceeded by proper preliminary notification under Section 28(1) of the Act and therefore subsequent proceedings should also be quashed.
39. On the other hand, Sri N Devhadass, learned senior counsel appearing for respondent-board and Sri R Omkumar, learned AGA, appearing for the first respondent- state, have both strongly urged that in the present case, there was a preliminary notification issued in respect of second acquisition proceedings which had preceded the 34 final notification under Section 28(4) of the Act, it had been issued on 9-1-2007 and gazetted on 10-1-2007; that the final notification in fact recited this preliminary notification dated 9-1-2007 and not the preliminary notification which had been issued for the first acquisition proceedings for an extent of one acre of land in Sy No 9 belonging to the petitioners; that the petitioners have deliberately overlooked this factual position and trying to mislead this court that it is as though no preliminary notification issued for the purpose of second acquisition proceedings for setting up aerospace project.
40. Learned counsel for respondents have also urged that service by way of affixture is sufficient service for the purpose of under Section 28(2) of the Act and even otherwise it is contended that non-service of individual notice would not in any vitiate the acquisition proceedings and have placed reliance on the judgment of a Full Bench of this court in the case of K RANGASWAMY vs STATE 35 OF KARNATAKA [ILR 1992 KAR 1483], wherein it is held that service of individual notice on the landowners under the provisions of Land Acquisition Act, 1894 [for short, LA Act], 1894 [for short, LA Act], as amended by the State government, on the owner of subject land proposed for acquisition is not mandatory and it is only directory and publication in the official gazette and the locality is sufficient safeguard for the owner of the land.
41. Reliance is also placed on the judgment of the Supreme Court in the case of MAHADEO vs SUB- DIVISIONAL OFFICER [(1997) 8 SCC 487], wherein the Supreme Court had occasion to observe that non-service of individual notice under the LA Act for the purpose of Sections 4(1) and 55 of the LA Act does not render the notification under Section 4(1) ineffective and therefore urges that non-service of individual notice cannot be of any significance.
36
42. While the judgment of the Supreme Court in the case of M/S AHUJA INDUSTRIES LTD [supra] is relied upon to submit that the issue of notice under Sections 3(1), 1(3) and 28(2) of the Act simultaneously is valid, the judgment of the Supreme Court in the case of HMT LTD [supra], wherein the Supreme Court has observed that the scheme of Section 28(1) of the Act is similar to Section 4(1) of LA Act and therefore submits that non-service of personal notice under Section 28(2) of the Act does not vitiate the preliminary notification and moreover there is no challenge to the preliminary notification issued under Section 28(1) of the Act in respect of the second acquisition proceedings.
43. A memo dated 22.08.2013 is placed before the court on behalf of the State Government signed by Smt. M.C. Nagashree, learned Government Pleader. To this memo is attached copy of the Karnataka Gazette dated 7.8.2013 publishing a corrigendum notification bearing No.CI/423/SPQ/2013, Bangalore, dated 6.8.2013 issued 37 by the Department of Commerce and Industries, Government of Karnataka. The notification recites that as per the notification dated 9.1.2007 published in the Karnataka Gazette dated 10.1.2007, the notification issued under section 28[1] of the Act in No.CI/3/SPQ/2007 dated 9.1.2007 had been published proposing to acquire lands in several survey numbers of Singahalli Village, Jala Hobli, Bangalore North Taluk, Bangalore for the purpose of acquiring these lands to develop an industrial area comprising pages 1 to 87 of the Gazette and another Notification in No.CI/266/SPQ/2007 dated 15.5.2007 had been published in the Gazette dated 17.05.2007 in pages 1 to 37 publishing the said Notification issued under section 28[4] of the Act. It is recited therein that as per a survey report conducted on 17.05.2012, it indicated that the Khatedars in Sy. No.9 of Singahalli Village while had khata in respect of 11 acres 27 guntas of land, but were in actual possession of only an extent of 3 acres 3 guntas of land, to restrict the land notified for proposed acquisition and 38 further notification under section 28[4] of the Act, corrigendum notification is issued.
44. The corrigendum notification purports to have corrected the extent of lands, ownership of petitioners in Column No.2 and Anubhavdars in Column No.3 from the original 12 acres 29 guntas including 32 guntas of kharab land and balance 11 acres 37 guntas to 3 acres 3 guntas in Sy. No.9 of Singahalli Villae retaining the names of owners in column No.2 and Anubhavdar in Column No.3 of the Notification under section 28[1] of the Act and likewise name of the owner and Anubhavdar in Column Nos. 2 & 3 of the Notification under section 28[4] of the Act, but modifying the extent of land acquired for the purposes of the Act i.e., only 3 acres 3 guntas.
45. Learned counsel for respondents have also submitted that on the issue of a corrigendum to the preliminary and final notifications for acquisition of land in respect of aerospace project, the writ petition does not survive for 39 further examination, as the preliminary notification, assuming that it has been questioned, is no more in existence and now substituted by the corrigendum etc.
46. The first acquisition proceedings and the second acquisition proceedings are different proceedings. Insofar as the petitioners are concerned, the first acquisition proceedings has come to an end and it is only under the second acquisition proceedings for the aerospace project, the subject land of the petitioners had been notified under preliminary notification followed by issue of notice to petitioners only by way of affixture and not by way of personal service even as admitted by respondents and proceeding further on the premise that there was no objection leading to final notification; that in the circumstances, it is to be held that the final notification dated 15.05.2007 cannot be said to be without issue of preliminary notification. However, legality of the 40 proceedings so far as petitioners are concerned for want of personal notice is still required to be examined.
47. On a perusal of the provisions of Section 28 of the Act, reading as under:
28. Acquisition of land.
(1) If at any time, in the opinion of the State Government, any land is required for the purpose of development by the Board, or for any other purpose in furtherance of the objects of this Act, the State Government may by notification, give notice of its intention to acquire such land.
(2) On publication of a notification under sub-
section (1), the State Government shall serve notice upon the owner or where the owner is not the occupier, on the occupier of the land and on all such persons known or believed to be interested therein to show cause, within thirty days from the date of service of the notice, why the land should not be acquired.
(3) After considering the cause, if any, shown by the owner of the land and by any other person interested therein, and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit.
(4) After orders are passed under sub-section (3), where the State Government is satisfied that 41 any land should be acquired for the purpose specified in the notification issued under sub- section (1), a declaration shall, by notification in the official Gazette, be made to that effect. (5) On the publication in the official Gazette of the declaration under sub-section (4), the land shall vest absolutely in the State Government free from all encumbrances.
(6) Where any land is vested in the State Government under sub-section (5), the State Government may, by notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorised by it in this behalf within thirty days of the service of the notice.
(7) If any person refuses or fails to comply with an order made under sub-section (5), the State Government or any officer authorised by the State Government in this behalf may take possession of the land and may for that purpose use such force as may be necessary.
(8) Where the land has been acquired for the Board, the State Government, after it has taken possession of the land, may transfer the land to the Board for the purpose for which the land has been acquired.
it is to be seen that the provisions of the Act relating to acquisition of land under Section 28 are definitely more harsh on the landowners and only safeguard given to the 42 landowners is putting on notice that the land notified under Section 28(1) of the Act is proposed for acquisition for the purpose of development by the board and a notice under Section 28(2) of the Act is to be issued to them proposing acquisition of the land. Though the preliminary notification may be published in the official gazette, for all practical purposes, it is only on issue of notice to the landowners under Section 28(2) of the Act and the landowners come to know of the proposed acquisition and the landowners get an opportunity to file objections to the proposed acquisition and hearing under Section 28(3) of the Act by the state government, examining the objections to the proposal as raised by the landowners and consideration of the same for the purpose of government passing an order, is the only safeguard to the landowners. Then follows issue of a declaration and notification under Section 28(4) of the Act and another publication of the notification in the official gazette, the land automatically vests in the state government in terms of under Section 43 28(5) of the Act and thereafter the state government issuing a notice in writing on the landowner or the person in possession of the land, to surrender or deliver possession thereof to the state government within 30 days from the date of receipt of the notice. Failure to comply automatically results in the procedure envisaged under section 28(7) of the Act coming into the picture, taking possession of the subject land on the expiry of 30 days and on non-compliance by the landowner, even by using force for taking possession. Thereafter, the state hands over the possession of the land to the board.
48. It can be noticed that such a land being divested of the owner and vested with the state and handing over the possession to the board by the state government are not necessarily linked to the determination and payment of compensation and even before it is done, the state government may take possession of the land under Section 28 of the Act. In such a situation, if even a personal notice 44 is not effected on the landowner, as has happened in this case, the landowner will be surprised and shocked when he/she receives a notice for handing over possession, in the sense, the land has been vested with the state government under the provisions of Section 28 of the Act. It is, therefore, I am of the view that non-service of individual notice, in the present case under the provisions of Section 28 of the Act, has a greater affectation on the landowners and is not the same as in the case of provisions of LA Act, where a landowner gets another opportunity before taking possession i.e. before passing of the award.
49. Under the judgments relied upon by the learned counsel for petitioners, it has been clearly held in the earliest of cases that even service by way of affixture is no service for the purpose of Section 28(2) of the Act and therefore the argument on behalf of the respondents that even for the purpose of Section 28(2) of the Act, it should be held to be directory and not mandatory, as has been ruled 45 in the case of preliminary notification issued under Section 4(1) of the LA Act, cannot be accepted. Even the language of Section 4(1) of the LA Act is not in pari materia with the language in Section 28(2) and therefore under Section 28(2) of the Act, a personal service of notice on the landowners in respect of the proposal for acquisition of their lands is mandatory. The argument on behalf of the petitioners to this extent succeeds to hold that the proceedings subsequent to the issue of preliminary notification under Section 28(1) of the Act get vitiated by the non-service of personal notice of proposal of acquisition of the land of the petitioners.
50. In so far as the argument relating to corrigendum is concerned, while it is objected to and strongly opposed by filing objections on behalf of the petitioners, it is to be noticed that this is pursuant to certain developments during the pendency of this writ petition and though the validity of the preliminary notification under Section 28(1) of the Act is to be upheld, as notification was gazetted on 46 10-1-2007, for which material is placed before the court by the respondents, the argument on behalf of the petitioners regarding want of service of notice under Section 28(2) of the Act holds good and therefore all further proceedings are required to be quashed in so far as the land notified under Section 28(1) of the Act and belonging to the petitioners herein, located in Sy No 9 of Singahalli village, Jala Hobli, measuring 12 acres 29 guntas, as indicated in the preliminary notification dated 9-1-2007, published in the official gazette dated 10-1-2007. Therefore, the corrigendum cannot stand, as it is a corrigendum for correcting the extent of land notified, both in the preliminary notification and in the final notification. When the final notification relating to the land belonging to the petitioners stands quashed for non-service of personal notice on the landowners, the corrigendum also falls to the ground and cannot survive independently. 47
51. The argument relating to corrigendum cannot also be examined and accepted, as the validity of the acquisition proceedings in so far as the land of the petitioners is concerned, is examined on the basis of the position as it prevailed on the date of issue of notifications under sub- sections (1) and (4) of Section 28 of the Act and not on the basis of subsequent development.
52. It is also to be noticed that while it is open to the state government to proceed further, if they so desire, subsequent to the preliminary notification dated 9-1-2007, but it should be strictly in conformity with the preliminary notification and not otherwise. It is also open to the state government to give up acquisition proceedings in its entirety in so far as the petitioners' land is concerned, and go in for a fresh acquisition, if they are so advised and if necessary.
53. In the result, this writ petition is allowed in part, all proceedings subsequent to issue of notification under 48 Section 28(1) of the Act dated 9.1.2007 and gazetted on 10.1.2007, in respect of the subject land of the petitioners measuring an extent of 12 acres 29 guntas in Sy No 9 of Singahalli village, Jala Hobli, Bangalore north taluk, initiated under Section 28(4), 28(5) and 28(6) of the Act notified under the second acquisition proceedings stand quashed by issue of writ of certiorari. Rule made absolute to this extent.
Sd/-
JUDGE *pjk/AN