Karnataka High Court
Sri B M Shivakumar vs The Deputy Commissioner on 22 April, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
W.P. NO.10721 OF 2021 (GM-RES)
BETWEEN
1 . SRI. B. M. SHIVAKUMAR
S/O B. M. MARIYAPPA,
AGED ABOUT 48 YEARS,
KRISHNAPRIYA CONVENTION HALL &
S L OFFICE, NO.47,
KENGERI, MYSURU ROAD,
BENGALURU-560 060.
2 . SMT. V. K. CHANDRAMANI
W/O B. M. PRAKASH,
AGED ABOUT 46 YEARS,
RESIDING NEAR BIOCON,
HEBBAGODI VILLAGE,
ATTIBELE HOBLI, ANEKAL TALUK,
ELECTRONIC CITY POST,
BENGALURU-560 100.
...PETITIONERS
(BY SRI. RAVI B. NAIK, SENIOR ADVOCATE FOR
SMT. VIJETHA R. NAIK, ADVOCATE)
AND
1. THE DEPUTY COMMISSIONER
RAMANAGARA DISTRICT,
RAMANAGARA -500 072.
2
2. BANGALORE-MYSORE INFRASTRUCTURE
CORRIDOR AREA PLANNING AUTHORITY,
NO.5, 2ND FLOOR, LOOPLANE,
RACE COURSE ROAD,
BENGALURU-560 009.
REP. BY ITS MEMBER SECRETARY.
3. THE PUBLIC WORKS, PORTS AND
INLAND WATER TRANSPORT DEPARTMENT
(BMICP), VIDHANA SOUDHA,
BENGALURU-560 001.
REP. BY ITS PLANNING
CO ORDINATION OFFICER
....RESPONDENTS
(BY SMT. ROOPA K.R., HCGP FOR R1;
SRI. YOGESH D. NAIK, ADVOCATE FOR R2;
SRI. MURUGESH V. CHARATI, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSEMENT ISSUED BY THE RESPONDENT NO.2 TO THE
RESPONDENT NO.1 DATED 07.12.2019 VIDE (A)
BMICAPA/BHOOPANE-02/414/2019-2020/1739 AND (B)
BMICAPA/BHOOPANE-02/415/2019-2020/1734 TO REJECT THE
CONVERSION APPLICATION SUBMITTED BY PETITIONERS,
PRODUCED AS ANNEXURE-K AND ANNEXURE- L AND; ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this petition, petitioners have sought for quashing the endorsement dated 07th December, 2019 vide Annexure-K ad L issued by the second respondent to the first respondent herein 3 to reject the conversion application submitted by the petitioners in respect of the schedule land.
2. Brief facts for adjudication of this writ petition are that, petitioners claim to be owners in possession of the land bearing Sy.No.29/3 (old Sy.No.29/1) situated at Vajarahalli Village, Bidadi Hobli, Ramanagara Taluk & District measuring 7 acres 9 guntas. It is the case of the petitioners that, said land was subject matter of acquisition for the purpose of Bengaluru- Mysuru Infrastructure Corridor (for short, hereinafter referred to as 'BMIC') and as such, acquiring authority had issued notification dated 21st July, 1999 under Section 28(1) of Karnataka Industrial Area Development Act, acquiring aforementioned land for the purpose of BMIC. It is further stated in the writ petition that, the acquiring authority-Karnataka Industrial Area Development Board (for short hereinafter referred to as "KIADB"), failed to initiate any further steps to conclude the acquisition proceedings and as such, the said acquisition proceedings were challenged before this Court in Writ Petition Nos.10487 of 2019 and 10488 of 2019. This Court, by 4 order dated 13th June, 2019 (Annexure-E and F), quashed the preliminary notification dated 21st July, 1999 issued insofar as petitioners land is concerned. The order passed by this Court in one such writ petitions was challenged in Writ Appeal No.2402 of 2014 and the Division Bench of this Court, by order dated 12th April, 2016 (Annexure-G), dismissed the appeal filed by the acquiring Authority and same has reached finality. In the meanwhile, petitioners herein have made an applications to the Deputy Commissioner, Ramanagar District, seeking conversion of the land for residential purpose. The Deputy Commissioner, by endorsements dated 16th August, 2021 and 18th June, 2021 (Annexure-H and H1), rejected the prayer made by petitioners for conversion of land to residential purpose. It is also forthcoming from the writ petition that the 2nd respondent-BMIC has addressed a letter dated 07th December, 2019 (Annexure-L) to the Deputy Commissioner, Ramanagar, opining that the said land has been earmarked for the purpose of formation of BMIC Township-2. It is also forthcoming from the letter dated 04th October, 2020 (Annexure-Q) wherein, the acquiring authority- KIADB has addressed letter to the 2nd respondent herein stating 5 that as the preliminary notification issued with regard to the acquisition of the aforementioned land has been set aside by this court in Writ Petitions No.10487 and 10488 of 2019 (Annexures- E and F), respectively, accordingly, no further action would be taken as the said orders are not challenged in appeal. It is the grievance of the petitioners that, since the schedule land has neither been acquired for the purpose of formation of BMIC Township by the respondents-authorities nor acquired by the authorities for public purpose, petitioners have approached this Court in the present writ petition, seeking direction to the respondent-authorities for issue of writ of mandamus to consider afresh the applications dated 29th November, 2019 filed by petitioners.
3. The 2nd Respondent filed detailed statement of objections countering the averments made in the writ petition and has taken up the contention that the said land will be acquired for the purpose of formation of BMIC Township and accordingly, sought for dismissal of this writ petition. 6
4. The respondent-State has filed statement of objections, and have taken up the contention that there was an agreement entered into between Government of Karnataka and Nandi Infrastructure Corridor Enterprise Ltd. (for short hereinafter referred to as "NICE") in order to facilitate the development of BMIC and further growth of Commerce and Trade industry, so also, Tourism; and therefore, the lands will be required for the purpose of formation of BMIC Township. Accordingly, respondent-authorities sought for dismissal of the writ petition.
5. This court by order dated 21st March, 2022 directed the Deputy Commissioner of Ramanagara to file an affidavit with regard to feasibility of land for the purpose referred to above and pursuant to the same, the Deputy Commissioner of Ramanagara filed affidavit dated 22nd April, 2022, reiterating the averments made in the statement of objections. The Deputy Commissioner, Ramanagara District is also present before the Court.
6. I have heard Sri Ravi B. Naik, learned Senior counsel appearing on behalf of Smt. Vijetha R. Naik for petitioners; Smt. 7 Roopa K.R., learned High Court Government Pleader for respondent No.1; Sri. Yogesh D. Naik learned counsel for respondent No.2; and Sri. Murugesh V. Charati, learned counsel for respondent No.3.
7. Sri. Ravi B. Naik, learned Senior Counsel appearing for petitioners, referring to the impugned endorsement passed by respondent No.1, submitted that the schedule lands are proposed for acquisition for the purpose of Bengaluru-Mysuru Infrastructure Corridor, however, the said notification issued by the State Government was set aside by this court and same was confirmed by the Division Bench in Writ Appeal No.2402 of 2014 and same has reached finality. He further contended that petitioners are neither able to develop the land nor covert the lands for residential purpose for personal use on the ground that the application made by the petitioners seeking conversion of land was rejected by the 1st respondent herein by endorsement dated 16th August, 2021 and 18th June, 2021 as per Annexures- H and H1 respectively and therefore, he contended that the neither the respondent-authorities are acquiring the land 8 belonging to the petitioners nor allowing the petitioners to develop the land for personal use and said action on the part of the respondent-authorities is violation of Article 300A of Constitution of India. Accordingly, he sought for interference of this Court.
8. Per contra, Sri Yogesh D. Naik, learned counsel appearing for the respondent No.2 sought to justify the action of respondent No.2 by reiterating the averments made statement of objections. He further contended that by Annexures-K and L the 2nd respondent herein has communicated to the 1st respondent with regard to formation of BMIC Township-2 and as such, he further contended that the said land is earmarked for the said purpose and therefore, the petitioners are not entitled for the relief sought for by them.
9. Smt. Roopa K. R., learned HCGP, argued that the Writ Petition is not maintainable as the petitioners have to exhaust the remedy available under Section 49C of the Karnataka Land Revenue Act, and therefore, writ petition be dismissed in limine. She further contended that the subject land 9 is required for the purpose of formation of Bengaluru-Mysuru road by Nandi Infrastructure Corridor Enterprise and therefore, the application made by the petitioners for conversion of land for non-agriculture purpose cannot be considered. Accordingly, she justified the endorsement Annexure-H and H1 made by 1st respondent. She also made endeavor to submit that 1st respondent herein, in his affidavit, has stated that the State Government has entered into an agreement with NICE in order to facilitate the development of Bengaluru-Mysuru Infrastructure Corridor and therefore, the subject land is required for the said purpose and as such, she justified the action of 1st respondent in rejecting the claim made by the petitioners for conversion of land.
10. Sri Murugesh V. Charati, learned counsel appearing for the respondent No.3, supported the arguments advanced by the learned counsel appearing for respondents 1 and 2 and in addition, he submitted that, in the event if the conversion of the land is accorded as prayed for by the petitioners, the same would alter the agreement entered into by the State Government 10 and NICE and accordingly, sought for the dismissal of the Writ Petition.
11. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that petitioners herein are owners in possession of the schedule land mentioned in the writ petition. Perusal of writ papers would indicate that respondent-authorities have initiated proceedings for acquisition of the land for the purpose of formation of the BMIC Township and in this regard, preliminary notification was issued by the respondent-Government dated 21st July, 1999 under Section 28(1) of Karnataka Industrial Areas Development Act, 1966 and the said notification was challenged before this court in Writ Petition No.10487 of 2019 and this court, by order dated 13th June, 2019 allowed the Writ Petition and as such, quashed the preliminary notification dated 21st July, 1999 insofar as the land belonging to the petitioners as per Annexure-E. Similar order was passed in Writ Petition No.10488 of 2019 as per Annexure-F. It is pertinent to mention here that, under similar circumstance, the appeal filed by the respondent-KIADB 11 in writ appeal No.2402 of 2014 challenging the order of the learned Single Judge passed in Writ petition No.11839 of 2014, came to be dismissed by this Court by order dated 12th April, 2016, consequently, confirmed the order passed by the learned single Judge, quashing the preliminary notification therein. Petitioners herein are also similarly placed like the petitioners in Writ Petition No.11839 of 2014 and applying the law declared by the Division Bench in the aforementioned writ appeal, so also, in terms of the law declared by the Hon'ble Apex Court in the case of SUKH DUTT RATRA AND ANTOHER v. STATE OF HIMACHAL PRADESH AND OTHERS made in Civil Appeal No.2273 of 2022 decided on 06th April, 2022, wherein the Hon'ble Apex Court has held that nobody can be deprived of liberty of property without due process of law or authorization of law, I am of the view that the lands of the petitioners in this petition is free from encumbrance. It is also pertinent here to refer to the dictum in of Hon'ble Supreme Court in the case of VIDYA DEVI v. STATE OF HIMACHAL PRADESH reported in (2020)2 SCC 569 wherein it is held that the right over the property of the person cannot be curtained without due process of law and right to property is 12 human right and a constitutional right guaranteed under Article 300A of Constitution of India. Following the law declared by the Hon'ble Apex Court in the above cases, I am of the view that the respondents have not come forward to say that the land is required for the purpose of formation of BMIC Township and acquisition proceedings would be initiated in due course and on the other hand not allowing the petitioners to develop the land for personal use, amounts to interference with the property right of the petitioners under Article 300A of Constitution of India. In that view of the matter, I am of the view that writ of mandamus be issued to the respondent No.1 herein to re-consider the application as uploaded by the petitioners which had resulted in passing the endorsement dated 16th August, 2021 and 18th June, 2021 produced at Annexures- H and H1 respectively afresh and pass orders in accordance with law. Though learned HCGP has raised preliminary objection with regard to alternative remedy, however, taking into consideration the violation of constitutional right guaranteed under Article 300A of Constitution of India and as the respondents herein have not considered the applications made by the petitioners seeking conversion of the land as per 13 the provisions contained under Karnataka Land Revenue Act, I am of the view that, there is no impediment for this court to exercise writ jurisdiction to direct the respondent-authorities to consider the same afresh in accordance with law.
12. Accordingly, writ petition is allowed. Endorsements dated 07th December, 2019 vide Annexure-K ad L issued by the second respondent to the first respondent herein to reject the application made by the petitioners seeking conversion of land for non-agricultural purpose, is quashed. It is made clear that this court has not expressed any opinion in respect of consideration of the applications by 1st respondent in accordance with the provisions contained under Karnataka Land Revenue Act. Respondent-authorities shall consider the applications made by the petitioners at the earliest and in any event, within an outer limit of 30 days from the date of receipt of certified copy of this order.
Sd/-
JUDGE SB/ARK