Karnataka High Court
Manjunatha Packing Pvt Ltd vs State Of Karnataka on 13 November, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 13th DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.45351-45352 OF 2011 (LA-RES)
BETWEEN:
Manjunatha Packing Private Limited,
A Company registered under the Companies
Act, 1956, having its office at No.32,
Mathai Building,
Prashanth Nagar,
T. Dasarahalli,
Officers Model Colony,
Bengalooru by its
Director P.N.Krishnamurthy.
...PETITIONER
(By Shri. Jayakumar S Patil, Senior Advocate for Shri. G.S.
Prasanna Kumar, Advocate)
AND:
1. State of Karnataka,
By its Secretary/Revenue Department,
M.S.Building,
Vidhana Veedhi,
Bengaloor - 560 001.
2
2. State of Karnataka,
By its Secretary/Urban Development
Department, Vikasa Soudha,
Vidhana Veedhi,
Bengalooru - 560 001.
3. The Deputy Commissioner,
Tumakuru District,
Tumakuru.
4. The Commissioner,
Tumakuru Urban Development
Authority, Tumakuru.
5. Bengalooru Electricity
Supply Company Limited,
Nrupathunga Road,
Bengalooru - 560 001,
By its Managing Director.
6. Superintending Engineer,
Bengalooru Electricity
Supply Company Limited,
Tumakuru Circle,
Tumakuru.
7. The Commissioner,
Tumakuru Mahanagara Palike,
Town Hall Circle,
Tumakuru.
8. S. Shivanna,
Aged about 62 years,
Son of Late Siddalingaiah,
Member of Legislative Assembly
3
and Hon'ble Minister for
Environment and Ecology,
Government of Karnataka,
Oorkere Village and Post,
Lingapura, NH-4,
Tumakuru.
[ Respondent No.8
impleaded vide court
Order dated 28.1.2013]
...RESPONDENTS
(By Shri. R.B. Satyanarayana Singh, Government Pleader for
Respondent Nos. 1 to 3
Shri. B. Srinivas, Advocate for Respondent No.8
Shri. V. Srinivas Raghavan, Advocate for Respondent No.7
Shri. M.S. Rajendra, Advocate for M/s. Holla and Holla,
Associates for Respondent No.4
Shri. V.Y. Kumar and Shri. G. Krishna Murthy, Advocates for
Respondent nos. 5 and 6 )
*****
These Writ Petitions filed under Articles 226 and 227 of
the Constitution of India praying to quash the impugned
notification dated 3.2.2011 and dated 28.2.2011 vide Annexure-
A and B issued by third respondent for acquisition of the
petitioner's property measuring 7 acres and 2 acres respectively
in Sy.No.23/1A bearing Municipal Khatha No.90/21, situated at
Upparahalli Village, Kaksaba Hobli, Tumakuru Taluk and
District.
These Writ Petitions coming on for Hearing this day, the
court made the following:
4
ORDER
Heard the learned Senior Advocate Shri Jayakumar S Patil, appearing for the learned Counsel for the petitioner and the learned Counsel for the respondents.
2. The brief facts leading up to these petitions are as follows:-
In the year 1951, the State Government is said to have acquired land measuring 9 acres in Survey No.23/1 of Upparahalli village, Kasaba Hobli, Tumakuru Taluk and District. The same was by recourse to Part-VII of the Land Acquisition Act, 1894 (Hereinafter referred to as the 'LA Act', for brevity) and the same was for the benefit of M/s Standard Brick and Tile Company Private Limited, in order to establish its brick industry. The same was handed over to the beneficiary in due compliance with Section 38 of the LA Act. Thereafter, the said company established its industry and was operating the same for more than 40 years.5
However, over a period of time, the establishment did not continue to function. In the meanwhile, the surrounding lands around the industry were declared as 'residential zone' according to the Comprehensive Development Plan 2021 (CDP) of Tumkur. It was also not possible thereafter for the industry to revive and continue functioning as there were several residential houses, which had come up in the surrounding area. Therefore, the said company namely, M/s Standard Brick and Tile Company Private Limited had approached the third respondent seeking permission to sell the land in terms of Section 44A of the LA Act. The said request had been forwarded to respondents 1 and 2 recommending the grant of permission to sell the land. Respondents 1 and 2 are said to have granted permission to the said company to sell the land as per letter dated 21.7.2008. The said letter merely states that the permission is granted under Section 44A of the LA Act and subject to Rule 8 of the Karnataka Land Acquisition (Company) Rules, 1973. Beyond this, there are no conditions 6 that were imposed. It is thereafter that the petitioner, after ascertaining that there was no impediment to purchase the property, had purchased the same under a registered sale deed 12.11.2008.
Having regard to the entire area surrounding the industry having been occupied by residential properties and since the area was declared as a residential zone in the CDP, the petitioner thought it fit to seek permission to form a residential layout in the property and therefore, approached the fourth respondent with a representation dated 25.11.2008 and the fourth respondent did not consider the same. Hence, the petitioner approached this court by way of a writ petition in WP 8146/2009. The said petition was disposed of by an order dated 3.6.2009 with a direction to the fourth respondent to consider the representation of the petitioner, within a period of two months from the date of the order and it was specifically observed that when the area around the petitioner's property was declared as a residential zone, the same ought to be kept in 7 view in considering the representation of the petitioner. However, it is stated that the fourth respondent passed a resolution inexplicably changing the nature of the land use in respect of the above area from residential to "public and semi- public purposes". The petitioner had challenged the same, as the said change of land user was without any background or explanation, by way of a writ petition in WP 24954/2009.
During the pendency of the petition, the State Government by an order dated 28.9.2009, reserved the above said area for residential purpose. In this view of the matter, this court disposed of the petition and directed the respondents to consider the representation for formation of a residential layout. Notwithstanding the turn of events, the fourth respondent again rejected the petitioner's representation seeking permission to form a residential layout, without assigning any reason. This was subject matter of yet another writ petition in WP 2537- 39/2010. It is highlighted that the land in question was earmarked for residential purpose and was clearly in the 8 residential zone according to the CDP. Even the sale in favour of the petitioner was with reference to the said circumstance. However, at the hearing of this petition, the State Government took a stand that the lands in question were needed for a public purpose and that the State Government would utilise it for public purpose.
3. It is the case of the petitioner that this court was lead to believe that the respondents had already applied their mind and were satisfied that the lands were needed for a public purpose and therefore, this court by order dated 30.10.2010 accepted the memo filed on behalf of the State, to the effect that the lands would be duly acquired by recourse to law and that the exercise would be completed within a period of three months and in the event that the State Government should not proceed further, within three months, in acquiring the land, the petitioner shall be permitted to form a residential layout as proposed.
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It is the further case of the petitioner that there was indeed no such intention on the part of the State Government and it was only at the behest of respondent no.4 that such a claim was made and it is subsequent to the order of this court dated 30.10.2010, that there was much exchange of correspondence, whereby respondent no.4 had gone out of its way in goading respondents 5 and 6, to make representations seeking acquisition and it is thereafter that the said respondents had made representations which have been acted upon, in seeking to issue preliminary notifications at Annexures A and B, which again, was done not within the period of 3 months as directed by this court, but after some delay and in this regard, the State had approached this court in seeking extension of time to carry out the exercise of acquisition.
The petitioner further points out that the notifications issued under Section 4(1) dated 3.2.2011 and 28.2.2011, in respect of 7 acres and 2 acres, respectively, are shown as being 10 required to be acquired, as directed by this court, which is not again the actual fact.
Pursuant to the said notifications, the petitioner had filed detailed objections to the same and filed these writ petitions. During the pendency of these writ petitions, since the State Government had taken further steps to issue the final declaration under Section 6 of the LA Act, the petition was suitably amended to challenge that action as well by raising additional grounds and an additional prayer. It is therefore contended that the petitioner having purchased the land on the basis of the permission granted to the petitioner's vendor in terms of Section 44A of the LA Act and there being no other condition imposed in respect of such sale, the petitioner, as an absolute owner of the said property, could not be mulcted with any conditions or imposed with any restrictions on the user of the land and the same could not be wrested from the petitioner on the ground that the land was originally granted for the purpose of running an industry and if the said land could no 11 longer be utilised for an industry, it could only be diverted for a public purpose and on that pretext, seek to acquire the land with reference to the terms of the original acquisition notwithstanding that the petitioner is, in the eye of law, the absolute owner of the said property and holds the same without any condition being imposed thereto.
4. The learned Senior Advocate, while taking this court through the record, to demonstrate that the entire procedure is ridden with mala fides, in a particular individual taking undue interest in ensuring that the petitioner does not secure permission to utilize the land for converting into a residential layout and deal with the same and that the same is made subject matter of acquisition proceedings, in the manner as aforesaid, would thus point out that the State Government is vested with the authority and power to acquire any land, including the present land in question, by recourse to due procedure of law. However, the procedure and the manner in which the land is now sought to be acquired, as seen from the documents that are 12 annexed to the present petitions, is clearly illegal and is not permissible and therefore, would submit that the entire proceedings be set at naught and in particular, Annexures - A, B, AA and AB are quashed.
5. The respondents have entered appearance and have filed pleadings to sustain the action of the several respondents and in particular, the acquisition proceedings.
It is noticed, as a matter of curiosity, that the State Government having acquired the land for the benefit of a private company, could not have done so in the first place. It is to be noticed that Part -VII of the LA Act, clearly places a bar on the acquisition of land for private companies.
Section 44B reads as follows :-
"44B. Land not to be acquired under this Part except for certain purpose for private companies other than Government companies.- Notwithstanding anything contained in this Act, no land shall be acquired under this Part, except for the purpose mentioned in clause (a) of sub- section (1) of section 40, for a private company, which is not a Government company.13
Explanation - "Private company" and "Government company" shall have the meanings respectively assigned to them in the Companies Act, 1956".
Therefore, from a plain reading of the above section, the Government could not have acquired the land at all for a private company.
Even with reference to the amendment to Section 3 brought about by the Amendment Act, namely, Mysore Act 17/1961, whereby the expression 'public purpose' was sought to be defined by substituting clause (f) of Section 3 as follows:-
"(f) the expression 'public purpose' includes -
(i) the provision of village sites;
(ii) the provision of land for planned development from public funds and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned;
(iii) the provision of land for town or rural planning under any law relating to such planning;
(iv) the provision of land, -
(a) for carrying out any housing scheme or health scheme sponsored by the Central 14 Government or any State Government or a local authority; or
(b) for clearing slum areas; or
(c) for relieving congestion; or
(d) for housing poor, landless, or displaced persons or persons residing in areas affected by floods;
(v) the provision of, -
(a) residence for any person holding an office of profit under the Central Government or a State Government, or accredited as a diplomatic consular or trade representative of a foreign Government;
(b) building for locating a public office;
(vi) the provision of land for corporations owned or controlled by the State, or other nationalized industries or concerns;
(vii) the provision of land for any local authority and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development;
(viii) the provision of land for a company, -
(a) where the land is needed for the construction of some work and such work is likely to prove substantially useful to the public; or 15
(b) where the land is needed by a building co-
operative society or corporation for the construction of houses;
(ix) the provision of land for any charitable trust."
Explanation:- "Charitable trust" includes a trust established or to be established for the relief of the poor, education, medical relief, or advancement of any other object of general public utility;"
Therefore, the above provision does not include a company such as the vendor of the petitioner. Therefore, the very acquisition for the benefit of the company was in the first place not sanctioned by law. This is noted as a mater of curiosity and academic interest.
However, insofar as the present permission granted in favour of the petitioner's vendor to sell the land being subject to Section 44A read with Rule 8 of the 1973 Rules, again would not indicate that there is any condition imposed in the manner in which the petitioner should utilize the land in question.16
Section 44-A of the LA Act and Rule 8 of the 1973 Rules read as follows:
" 44A. Restriction on transfer, etc. - No Company for which any land is acquired under this Part shall be entitled to transfer the said land or any part thereof by sale, mortgage, gift, lease or otherwise except with the previous sanction of the appropriate Government."
xxx " 8. Conditions under which sanction may be given for transfer of fund - Where a Company for which the land been acquired under, the act applies for the previous sanction of the State Government for the transfer of that land in any part thereof by sale gift, lease or otherwise no such sanction shall be given unless:
i) the proposed transfer of land along with dwelling houses amenities buildings or work if any is to some other company or where the Company is a co-operative society, such transfer is to any or all of its members or.
ii) Where the land has been acquired solely for the erection of dwelling houses for workmen employed by the company the proposed transfer and along with dwelling houses, if any is to such workmen or their dependent heirs.17
Provided that before giving any such sanction the State Government shall consult the committee." From a conjoint reading of the above said provisions, it is evident that Section 44A merely prescribes that any such sale could only be with the sanction of the State Government, which sanction has been obtained; and insofar as the condition under which the sanction is given for transfer of the land, it is again to be seen that excepting that the transfer should be in favour of any company, there is no further condition that on such transfer, the purchaser company should utilize it for any particular purpose. Therefore, there is no condition that could be read into the transaction, which requires the petitioner to use it for a particular purpose and therefore, there would be an absolute transfer in favour of the petitioner. The State Government could then be divested of any control over the land in question. Insofar as its stance, as observed in the course of the proceedings, which are placed on record to proceed on the footing that the land was acquired for the benefit of an industry 18 and that if no such industry could be run, the State Government was in a position to requisition the land for being utilised for some other public purpose could not be with reference with the original acquisition in favour of the vendor of the petitioner. The State Government no doubt has ample power and authority to acquire the land independently for any public purpose that could be projected.
6. Given the manner in which the entire exercise has taken place in the present case on hand, it was only to deprive the petitioner of the said land, in the manner that the petitioner proposed and the procedure adopted in depriving the petitioner of the land in holding that it should be used for a public purpose etc., if it could not run as an industry, is misplaced and is certainly not in consonance with the law. Therefore, the entire procedure followed and the manner in which the land is sought to be acquired, albeit on the basis of the orders passed by this court in WP 2537-39/2010 is clearly not in accordance with law.
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7. Hence, the writ petition is allowed. Annexures- A, B, AA and AB are quashed.
Respondent 5, the Bangalore Electricity Supply Company Limited and Respondent no.7, the Commissioner, Tumakuru City Municipal Council, Tumkur are concerned, these bodies claiming to have paid monies pursuant to the acquisition proceedings, cannot be said to be aggrieved as the State Government would address their claim to any such monies that are paid and by virtue of the present order, the acquisition proceedings being set at naught, it cannot be said that the respondents are in any manner aggrieved by this order.
Sd/-
JUDGE nv