Karnataka High Court
Baburao vs The State Of Karnataka on 26 July, 2024
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NC: 2024:KHC-K:5408
WP No. 201305 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.201305 OF 2018 (LA-KIADB)
BETWEEN:
BABURAO
S/O LATE MADEPPA CHAMALLE,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O TRIPURANT VILLAGE,
TQ: BASAVAKALYAN DIST: BIDAR.
...PETITIONER
(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF INDUSTRIES AND COMMERCE
VIDHAN SOUDHA, BANGALORE-560001.
REPRESENTED BY ITS SECRETARY
2. THE KARNATAKA INDUSTRIAL DEVELOPMENT BOARD
Digitally signed BANGALORE REPRESENTED BY ITS CHIEF EXECUTIVE
by OFFICER.
MARKONAHALLI
RAMU PRIYA
Location: HIGH 3. THE SPECIAL LAND ACQUISITION OFFICER,
COURT OF
KARNATAKA KARNATAKA INDUSTRIAL DEVELOPMENT BOARD,
KAPNOOR INDUSTRIAL AREA,
HUMNABAD ROAD, KALABURAGI-585103.
4. THE DEPUTY COMMISSIONER
BIDAR-585401.
...RESPONDENTS
(BY SRI. A. M. NAGRAL, ADVOCATE FOR R2 AND R3;
SMT. AARTI PATIL, HCGP FOR R1 AND R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
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WP No. 201305 of 2018
NOTIFICATION ANNEXURE-J DATED 14.06.2011 IN NO.¹L 112
J¸ï.¦.PÀÆå 2011 ISSUED UNDER SECTION 3(1) KIADB ACT BY
RESPONDENT NO.1, ANNEXURE-K, DATED 14.06.2011 IN NO.¹L 112
J¸ï.¦.PÀÆå 2011 ISSUED UNDER SECTION 28(1) OF KIADB ACT AND
ANNEXURE-P DATED 31.03.2017 NO.¹L 44 J¸ï.¦.PÀÆå 2015 ISSUED
BY RESPONDENT NO.1 UNDER SECTION 28(4) OF KIADB ACT IN
RESPECT OF LAND SY. NO.221/6 MEASURING 4 ACRE 38 GUNTAS
SITUATED AT TRIPURANT VILLAGE, TQ: BASAVAKALYAN, DIST:
BIDAR, IN ENDS OF JUSTICE AND EQUITY AND ETC.
THIS PETITION, COMING ON FOR ORDERS THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE R.NATARAJ
ORAL ORDER
(PER: HON'BLE MR. JUSTICE R.NATARAJ) The petitioner has challenged a notification bearing No.¹L 112 J¸ï.¦.PÀÆå 2011 issued under Section 3(1), 28(1) of the Karnataka Industrial Areas Development Act, 1966 ("KIAD Act, 1966" for short) dated 14.06.2011 and the notification bearing No.¹.L. 44 J¸ï.¦.PÀÆå.2015 dated 31.03.2017 under Section 28(4) of the KIAD Act, 1966 in respect of the property bearing Sy.No.221/6 measuring 4-38 acres situated in Tripurant village, Basavakalyan taluk, Bidar district. The petitioner has sought -3- NC: 2024:KHC-K:5408 WP No. 201305 of 2018 for a writ in the nature of mandamus to drop the acquisition proceedings in respect of the aforesaid land.
2. The petitioner contends that he is the owner of the garden land bearing Sy.No.221/6, Tripurant Village, Basavakalyan Taluk measuring 4-31 acres, where he has raised mango and lemon trees and has undertaken intercropping of ginger. He contends that between his land and the highway there were three other parcels of land. He contends that the land bearing Sy.Nos.124, 125 and 99 of Tripurant village are very near to the State/National highway while his land is situate far away and the approach to his land is from the State highway.
3. He contends that the land in Sy.Nos.114, 120, 121, 122, 123 and 105 were acquired by the respondent No.2 for industrial purpose, of which it had utilised 30% and the remaining 70% remained unutilised. When things stood thus, respondent No.2 proposed to acquire land for establishment of an 'Auto park' and thus, proposed to acquire Sy.Nos.124 and
125. However, the owners of land in Sy.Nos.124 and 125 objected claiming that they belonged to Scheduled caste and -4- NC: 2024:KHC-K:5408 WP No. 201305 of 2018 that Sy.Nos.124 and 125 was the only land that they had and that they were dependant on it for their livelihood. The petitioner alleged that the owner of Sy.Nos.124 and 125, named Mr. Ankappa belonged to Kabbaliga caste which was not a Schedule caste. The respondent No.3 submitted a report dated 10.06.2010 to Special Deputy Commissioner of respondent No.2 that Sy.No.125/4 and 125/5P was converted for non agricultural purposes and a layout of sites was formed which were sold to various persons. He also reported that if Sy.Nos.98 and 99 are acquired then Sy.Nos.124 and 125 would have connectivity to the National Highway. The Special Deputy Commissioner of respondent No.2 claimed that the report of respondent No.3 was not clear and therefore, by a letter dated 26.06.2010 instructed respondent No.3 to conduct spot inspection of the land and submit a comprehensive report with supporting documents. The respondent No.3 purportedly inspected Sy.Nos.124 and 125 on 24.08.2010 and held that Sy.Nos.124 and 125 was converted and house sites were formed and sold and that it belonged to persons belonging to Scheduled Caste who were dependant on it. He recommended that instead of Sy. Nos.124 and 125, the land in Sy. Nos.221, -5- NC: 2024:KHC-K:5408 WP No. 201305 of 2018 131 and 132 measuring 54-11 acres was suitable for establishment of 'Auto park' and could be acquired. The respondent No.3 placed the report before the Special Deputy Commissioner of respondent No.2 on 04.09.2010. Based on the aforesaid, the respondent No.1 dropped the acquisition of land bearing Sy.Nos.124, 125/1, 125/2 to 125/5, 125/5P1 to 125/5P4, 125/6 to 125/10 totally measuring 33-05 acres and took out proceedings to acquire Sy.Nos.131, 132 and 221 by issuing a notifications dated 14.06.2011 under Sections 1(3) and 3(1) and Section 28(1) of the KIAD Act, 1966. A notice dated 12.07.2012 was served on the petitioner calling upon him to submit his objections, if any. The petitioner and similarly placed persons submitted their common objections on 16.10.2012. The Basavakalyan Development Board submitted its objections contending that with the assistance of KUIDFC, it had beautified the area by erecting a circular plaza, children park, food court, toilet block, murals etc. at a cost of Rs.2,60,00,000/-. It had also created infrastructure such as parking lot, check dam and a park for the visiting tourists and a shrine dedicated to saint Akkamahadevi was constructed. -6-
NC: 2024:KHC-K:5408 WP No. 201305 of 2018
4. It claimed that land in Sy.Nos.131, 132 and 221 was on a slope and that it proposed to construct a dam below and collect water and to develop a park. It claimed that it had already spend Rs.3,00,00,000/-. It is contended that large amounts would have to be expended for levelling Sy.Nos.131, 132 and 221 to make it usable for an industrial area. It claimed that if auto park is established in Sy.Nos.131, 132 and 221, there was every likelihood of the facilities created by it going waste. It recommended that land in Sy.Nos.210/1, 202 and 201 of Sastapur was suitable for a truck terminal. It claimed that Sy.Nos.131, 132 and 221 were on a steep slope and were not suitable for auto park. It contended that the Assistant Commissioner and Assistant Regional Transport officer had conducted a joint inspection and reported that Sy.Nos.131, 132 and 221 were not suitable for either a truck terminal or an auto park.
5. The respondent No.3 took note of a letter dated 20.06.2012 addressed to him by the Chief Executive Officer and Executive member of KIADB where it was stated that the Chief Executive Officer had inspected the land in Sy.Nos.131, 131/2, 131/5, 132/1 to 5, 221/1 to 6 of Tripurant and -7- NC: 2024:KHC-K:5408 WP No. 201305 of 2018 Sy.No.202 of Sastapur and found that there was an unauthorised layout formed in land at Tripurant village and therefore directed the respondent No.3 to continue the acquisition process of land in Tripurant village. He also took note of the letter dated 29.06.2012 addressed to him by the Special Deputy Commissioner of KIADB that the Chief Executive Officer and Executive Member of Board had inspected Sastapur land and had directed the acquisition of Tripurant village land to be continued.
6. Therefore, the respondent No.3 rejected the objections of the petitioner as well as the Basavakalyan Development Board on 10.12.2013 an directed acquisition of 54-21 acres in Sy.Nos.131, 131/2, 131/5, 132/1 to 5, 221/1 to
6.
7. Following this, a notification under Section 28(4) of the KIAD Act, 1966 was published on 31.03.2017. The respondent No.3 issued a notice under Section 29(2) to determine the compensation payable in respect of Sy.Nos.221/1 to 6 on 27.02.2018.
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NC: 2024:KHC-K:5408 WP No. 201305 of 2018
8. Being aggrieved by the notification under Section 28(4) of the KIAD Act, 1966 the petitioner is before this Court.
9. The petitioner has challenged the acquisition apparently on four grounds, namely;
(i) That he was discriminated vis-à-vis the owners of land bearing Sy.Nos.124, 125, 98 and 99. He contends that the aforesaid lands were similarly situated as his land. He contends that though Sy.Nos.124, 125, 98 and 99 lay adjacent to National Highway, they were deleted from acquisition on the ground that they were converted for non-agricultural use and the owners belonged to Scheduled Caste. He contends that land bearing Sy.Nos.124, 125 and 99 were not converted for non agricultural purpose in the year 2011, but, was done subsequently in the year 2015. He therefore contends that land of the petitioner as well as Sy.No.124 and 99 were similarly situate and hence, the petitioner was entitled to be treated alike as he too belonged to Scheduled caste.
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NC: 2024:KHC-K:5408 WP No. 201305 of 2018
(ii) That, there were several fruit bearing trees in his land and was a garden land which was not suitable for industrial purposes.
(iii) That, the objection raised by the petitioner pursuant to the notice under Section 28(2) of the KIAD Act, 1966 was not considered. He also contends that the consideration of the objections had to be done by respondent No.1 and not by respondent No.3 who was attached to the office of respondent No.2. In support of his contention, he relied upon the judgment of the Division Bench of this Court in the case of A. Janardhan Shetty & Anr. etc. etc. vs. Shantamma and Ors. etc. reported in 2009 (5) AIR Kar R 343.
(iv) He also contended that the objections of the petitioner and similarly situated persons were referred to the Basavakalyan Board for a report and that the Board had submitted a report to the Special Land Acquisition Officer, wherein it was mentioned as follows:
"F ªÉÄîÌAqÀ ¸À.£ÀA.124 ªÀÄvÀÄÛ 125 d«ÄãÀÄUÀ¼ÀÄ ¨sÀÆ¥ÀjªÀvÀð£ÉAiÀiÁVzÀÄÝ ªÀ¸Àw £ÀªÉñÀ£ÀUÀ¼ÀÄ C©üªÀÈ¢Þ ¥Àr¹
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NC: 2024:KHC-K:5408 WP No. 201305 of 2018 ªÀÄvÀÄÛ §qÁªÀuÉ «AUÀr¹ ¤ªÉñÀ£ÀUÀ¼ÀÄ ªÀiÁgÁl ªÀiÁqÀ¯ÁVzÉ. C®èzÉà F d«ÄãÀÄUÀ¼ÀÄ ºÀjd£À ºÁUÀÆ Vjd£À ¸ÀªÀÄÄzÁAiÀÄPÉÌ ¸ÉÃjzÀÄÝ F d«ÄãÀÄUÀ½AzÀ §gÀĪÀ GvÀà£ÀߢAzÀ fêÀ£À ¸ÁV¸ÀÄwÛgÀĪÀÅzÁV ¸ÀܽÃAiÀÄ ªÀiÁ»w¬ÄAzÀ w½zÀÄ §A¢zÉ."
10. Notwithstanding the report of the Basavakalyan Development Board, respondent No.3 in terms of its order dated 10.12.2013 under Section 28(3) of the KIAD Act, 1966 held that:
"ªÀiÁ£Àå ªÀÄÄRå PÁAiÀÄð¤ªÀðuÁ¢üPÁjUÀ¼ÀÄ, ºÁUÀÆ PÁAiÀÄ𠤪ÁðºÀPÀ ¸ÀzÀ¸ÀågÀÄ PÉLJr© ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀ DzÉñÀzÀAvÉ ªÀiÁ£Àå «±ÉõÀ f¯Áè¢üPÁjUÀ¼ÀÄ, PÉLJr© ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀ ¥ÀvÀæ ¸ÀASÉå PÀPÉÊ¥ÀæªÀÄA/PÉÃA.PÀ/¨sÀƸÁé/UÀÄ/2005/4304/2012-13, ¢£ÁAPÀ: 29-06- 2012 gÀ°è ¸ÀÆa¹zÀAvÉ ©ÃzÀgÀ f¯Éè §¸ÀªÀPÀ¯Áåt vÁ®ÆQ£À wæ¥ÀÄgÁAvÀ UÁæªÀÄzÀ°è CmÉÆÃ¥ÁPÀð ¸Áܦ¸ÀĪÀ ¸À®ÄªÁV ¸ÀªÉð £ÀA§gÀ 221/1, 2, 3, 4, 5, 6 gÀ «¹ÛÃtð 26-26 JPÀgÉ d«ÄãÀÄUÀ¼ÀÄ CmÉÆÃ¥ÁPÀ𠤪ÀiÁðtPÁÌV ¸ÀÆPÀÛ ªÁVgÀĪÀÅzÀjAzÀ ¸ÀzÀj CfðzÁgÀgÀ CfðAiÀÄ£ÀÄß vÀ½î ºÁQ ¸ÀzÀgÉ d«ÄãÀ£ÀÄß ¨sÀƸÁé¢üãÀ ¥Àr¹PÉƼÀî®Ä ªÀÄAqÀ½AiÀÄ wêÀiÁð£ÀPÉÌ PÁ¬ÄÝj¹, MlÄÖ 26-26 JPÀgÉ d«ÄãÀ£ÀÄß ¨sÀƸÁé¢üãÀ ¥Àr¹PÉƼÀî®Ä ¥Àæ¸ÁÛ¦¹gÀÄvÉÛãÉ."
and directed the acquisition of the land of the petitioner and others. Consequent to which, a final notification was issued notifying the land of the petitioner. It is therefore, contended
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NC: 2024:KHC-K:5408 WP No. 201305 of 2018 that there is no proper application of mind by respondent No.3 in considering the objections filed by the petitioner to the notification.
11. The contesting respondents have filed their objections contending that the Hon'ble Apex Court in the case of M. Nagabhushana Vs. State of Karnataka and others reported in (2011) 3 SCC 408 had held that once a notification is issued under Section 28(4) of the KIAD Act, 1966, the land vests in the State absolutely free from all encumbrances. Therefore, it is contended that the land in question vested in the respondents. They also contended that the question of applicability of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 does not arise as the provisions of the Act of 2013 is not applicable to an acquisition under the KIAD Act, 1966. Reliance is placed on the judgment of the Division Bench of this Court in the case of Special Land Acquisition Officer, KIADB, Mysore and another Vs. Anasuya Bai (d) by Lrs and others. It is also contended that the Hon'ble Apex Court in the case of M/s. Girias Investment Pvt. Ltd., and another Vs. State of Karnataka
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NC: 2024:KHC-K:5408 WP No. 201305 of 2018 and others reported in AIR 2008 SC (Supp) 860 had held that there is no need to personally hear the land losers. Therefore, it is contended that the grievance of the petitioner was considered by respondent No.3 and hence, the acquisition cannot be disturbed at the instance of respondent No.3. Learned counsel for respondent No.3 along with the statement of objections has enclosed a copy of sketch of the proposed "Auto Park" to be established in the lands acquired.
12. To a pointed query, whether respondent No.3 had passed an award, learned counsel for the respondents fairly conceded that no award is passed till date and physical possession is also not taken though the land is vested in the State Government.
13. I have considered the submissions of the learned counsel for the petitioner and the learned counsel for respondents.
14. A perusal of the sketch attached to the statement of objections filed by respondents shows that the lands bearing Sy.Nos.124 and 125 abuts the land of the petitioner. Another sketch which is placed on record by the learned counsel for the
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NC: 2024:KHC-K:5408 WP No. 201305 of 2018 petitioner shows that the land bearing Sy.Nos.124 and 125 abuts the National Highway. It is not known as to how the land of the petitioner is different from the lands bearing Sy.Nos.124 and 125, which were dropped from acquisition on the premise that the owners of land bearing Sy.Nos.124 and 125 belonged to Scheduled Caste and that those lands were converted for non-agricultural purpose. The deletion of lands bearing Sy.Nos.124 and 125 was not based on any notification issued by the State Government or based on any Acts or Order passed by the State Government. Since the property of the petitioner lay adjacent to the property bearing Sy.Nos.124 and 125, the Land Acquisition Officer was bound to look into the question whether there was any discrimination in the matters of identification of properties for acquisition. This is also the law declared by the Apex Court in the case of Bondu Ramaswamy and others vs Bangalore Development Authority and others reported in AIR ONLINE 2010 SC 216.
15. Be that as it may, when the Basavakayan Development Board which had inspected the property in question on the basis of a reference made by respondent No.3 and had categorically recommended that the land of the
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NC: 2024:KHC-K:5408 WP No. 201305 of 2018 petitioner was undulated and was not suitable for establishment of an auto park, the same ought to have been considered by respondent No.3.
16. A perusal of the order passed by respondent No.3 under Section 28(3) of the KIAD Act, 1966, shows that the respondent No.3 even after perusing the report of the Basavakalyan Development Board, had proceeded to reject the objections of the petitioner, based on the directive of the Chief Executive Officer of Basavakalyan. The consideration of objections under Section 28(3) of the KIAD Act, 1966 is mandatory and is the only avenue where a land looser can ventilate his grievance and is akin to Section 17(5) of the Bangalore Development Authority Act, 1976, Section 28(3) of KIAD Act, 1966 and Section 5A of the Land Acquisition Act. This is a statutory valuable right given to a land owner to oppose the acquisition on any lawful grounds and therefore, has to be given full flow. [Refer: Kolkata Municipal Corporation and another vs Bimal Kumar Shah and others reported in 2024 SCC Online SC 968.]
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17. In the case on hand, when all the development authorities were of the opinion that the land in question was not suitable for the intended project, respondent No.3 must have considered the objections from that perspective rather than yielding to the directive of the Chief Executive Officer of the Board. Even otherwise, since it is stated that no steps are taken for passing an award not only in respect of the land of the petitioner but also in respect of the entire 54-21 acres of land notified, no useful purpose would be served in keeping the notification alive. In view of the above, there was apparently no application of mind by respondent No.3 while considering the objections filed to the notification, which definitely is not in the spirit of ensuring transparency in acquisition of land.
18. Consequently, this petition is allowed in part and final notification dated 14.06.2011 in so far as the land of the petitioner is quashed. The respondent No.3 is directed to reconsider the objections of the petitioner in the light of the report of the Basavakayan Development Board as well as the fact that the land in question is used for raising a garden and also that immediate adjacent lands in Sy.Nos.124 and 125 were left out from acquisition. This exercise shall be done by
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NC: 2024:KHC-K:5408 WP No. 201305 of 2018 respondent No.3 within a period of three months from the date of a receipt of a copy of this order. The respondent No.1 may thereafter take suitable steps in accordance with law.
All contentions are kept open.
Sd/-
(R.NATARAJ) JUDGE NJ,LG,RSP List No.: 1 Sl No.: 31