Karnataka High Court
Prabhakar Anant Sawant Desai vs State Of Karnataka on 20 June, 2013
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION Nos.9617-9618/2013 (LA-KIADB)
C/W WRIT PETITION Nos.51532-51534/2012,
WRIT PETITION Nos.51528-51530/2012
AND WRIT PETITION Nos.1622-1623/2013
AND WRIT PETITION Nos.6862-6869/2013
AND WRIT PETITION No.2887/2012
W.P.Nos.9617-9618/2013:
BETWEEN:
Prabhakar Anant Sawant Desai,
Aged about 68 years,
R/at No.1, 14 A Cross,
10th Main, Malleshwaram,
Bangalore - 560 003.
Represented by its General
Power of Attorney holder
Akshaye Kothaneth,
Aged about 38 years,
S/o Ajit Kothaneth,
140, Gangadhar Chetty Road,
Ulsoor, Bangalore-560 042. ...Petitioner
(By Sri S.V.Giridhar, Advocate)
AND:
1. State of Karnataka,
Rep. by its Principal Secretary
to the Department of Commerce
and Industry (Industrial Development),
Vidhana Soudha, Bangalore-560 001.
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2. Karnataka Industrial Area Development Board,
By its Managing Director,
2nd Floor, Rashtrothana Parishat,
No.14/3A, Nrupathunga Road,
Bangalore - 560 001.
3. The Special Land Acquisition Officer-2,
KIADB, Zonal Office, Bangalore Division,
No.14/3, Nrupathunga Road,
Bangalore - 560 001.
4. Board of Control for Cricket in India,
Brabourne Stadium, North Stand,
Veer Nariman Road,
Mumbai - 400 020,
Rep. by its President. ... Respondents
(By Sri H.T.Narendra Prasad, AGA for R-1,
Sri Basavaraj V.Sabarad, Advocate for R-2 and R-3,
Sri W.M.Sundara Murthy, Advocate for R-4)
These writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to call for the records on the file
of R1 to R3 i.e., as maintained with State High Level Clearance
Committee as also with the KIADB culminating in issuance of
final notification, dated 8.12.2011 as at Annexure-G and etc.
W.P.Nos.51532-51534/2012:
BETWEEN:
1. Sri Sunil Bhatia,
Aged about 37 years.
2. Sri Suresh Bhatia,
Aged about 47 years.
Both the petitioners are the
S/o Sri M.M.Bhatia,
R/at No.4406/7/8, High Point,
No.45, Palace Road, Bangalore-1.
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3. Sri Ashwathnarayan,
S/o M.Anjanappa,
Aged about 43 years,
R/at No.34, Harihara Nilaya,
Mangala Layout, 16th Cross,
Oil Mill Road, Bangalore-560 084.
Rep. by his GPA Holder
Sri Suresh Bhatia. ...Petitioners
(By Sri S.Mahesh, Advocate)
AND:
1. State of Karnataka,
Rep. by its Secretary,
Department of Commerce
and Industry (Industrial Development),
Vidhana Soudha, Bangalore-560 001.
2. Karnataka Industrial Area Development Board,
By its Managing Director,
2nd Floor, Rashtrothana Parishat,
No.14/3A, Nrupathunga Road,
Bangalore - 560 001.
3. The Special Land Acquisition Officer-2,
KIADB, Zonal Office, Bangalore Division,
No.14/3, Nrupathunga Road,
Bangalore - 560 001.
4. Board of Control for Cricket in India,
Brabourne Stadium, North Stand,
Veer Nariman Road,
Mumbai - 400 020,
Rep. by its President. ... Respondents
(By Sri H.T.Narendra Prasad, AGA for R-1,
Sri Basavaraj V.Sabarad, Advocate for R-2 and R-3,
Sri W.M.Sundara Murthy, Advocate for R-4)
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These writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to quash acquisition of the
petitioners said property from the final notification dated
8.12.2011, and etc.
W.P.Nos.51528-51530/2012 AND 1622-1623/2013
AND 6862-6869/2013:
BETWEEN:
1. Smt. Lakshmi Gopal Makhija,
W/o Gopal Makhija,
Aged about 56 years.
2. Smt. Anju Ahuja,
W/o Rajeev Hassanand,
Aged about 35 years.
3. Mr.Gaurav Ahuja,
S/o Naraindas Bodaram,
Aged about 24 years.
All are R/at No.32, 33 and 34,
3rd Floor, SNS Chambers, 239,
Sankey Road, Sadashivanagar,
Bangalore - 560 080.
All the petitioners are represented
by their GPA Holder
Sri Naraindas Bodaram,
S/o late Bodaram Ahuja. ...Petitioners
(By Sri S.Mahesh, Advocate)
AND:
1. State of Karnataka,
Rep. by its Secretary,
Department of Commerce
and Industry (Industrial Development),
Vidhana Soudha, Bangalore-560 001.
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2. Karnataka Industrial Area Development Board,
By its Managing Director,
2nd Floor, Rashtrothana Parishat,
No.14/3A, Nrupathunga Road,
Bangalore - 560 001.
3. The Special Land Acquisition Officer-2,
KIADB, Zonal Office, Bangalore Division,
No.14/3, Nrupathunga Road,
Bangalore - 560 001.
4. Board of Control for Cricket in India,
Brabourne Stadium, North Stand,
Veer Nariman Road,
Mumbai - 400 020,
Rep. by its President. ... Respondents
(By Sri H.T.Narendra Prasad, AGA for R-1,
Sri Basavaraj V.Sabarad, Advocate for R-2 and R-3,
Sri W.M.Sundara Murthy, Advocate for R-4)
These writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to quash acquisition of the
petitioners said property from the final notification dated
8.12.2011 under Annexure-E and etc.
W.P.No.2887/2012:
BETWEEN:
Sri S.Keshava Murthy,
S/o Sri D.Selvaraju,
Aged about 40 years,
Owner of Sy.No.12/2,
Kodagurki Village, Kasaba Hobli,
Devanahalli Taluk,
Bangalore Rural District,
Presently R/at No.10/31,
6th 'B' Cross, Balaji Nagar,
Banashankari 3rd Stage,
Bangalore - 560 085. ...Petitioner
(By Sri M.Shivaprakash, Advocate)
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AND:
1. The State of Karnataka,
Rep. by its Chief Secretary,
Vidhana Soudha, Bangalore.
2. The Secretary,
Department of Commerce and Industries,
State of Karnataka,
Vidhana Soudha, Bangalore.
3. The Executive Member and
Chief Executive Officer,
Karnataka Industrial Areas Development Board,
Nrupathunga Road,
Bangalore.
4. The Special Land Acquisition Officer-II,
No.2, KIADB Regional Office,
No.14/3, 1st Floor,
Nrupathunga Road,
Bangalore.
5. The Board of Control for Cricket in India,
Brabourne Stadium, North Stand,
Veer Nariman Road, P.B.No.11094,
Mumbai - 400 020,
By its President
Sri Narayanaswamy Srinivasan. ... Respondents
(By Sri H.T.Narendra Prasad, AGA for R-1 and R-2,
Sri Basavaraj V.Sabarad, Advocate for R-3 and R-4,
Sri W.M.Sundara Murthy, Advocate for R-5)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to call for the entire records from
the office of R1 to R4 with respect to notification bearing No.CI
13 SPQ 2011.
These writ petitions coming on for preliminary hearing in
'B' group this day, the Court made the following:
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ORDER
In all these petitions, the acquisition of the lands measuring 60 acres 37 guntas for the benefit of the respondent Board of Control for Cricket in India ('Cricket Board' for short) for establishing the Cricket Academy is called into question. The challenge is raised to the final notification, dated 8.12.2011 issued under Section 28(4) of the Karnataka Industrial Areas Development Act, 1966 ('KIAD Act' for short).
2. The learned advocates for the petitioners Sriyuths S.V.Giridhar and S.Mahesh submit that there is no provision for acquiring the land for the purpose of establishing the Cricket Academy under the KIAD Act. They submit that none of the objections filed by the petitioners are considered by the respondent Special Land Acquisition Officer ('SLAO' for short). They submit that on the adjourned date of 1.6.2011, there was no hearing at all. Only the objections were received with the assurance that the next date of hearing would be intimated to the petitioners. They submit that as many as 50 objectors were present on the said day. They bring to my notice the objections filed in response to the preliminary notification issued under Section 28(1) of the KIAD Act. Even when their objections are 8 specific and definitive, they are not even referred to, much less considered in the order which the respondent SLAO has passed under Section 28(3) of the KIAD Act.
3. Sri H.T.Narendra Prasad, the learned Additional Government Advocate appearing for the State Government prays for the dismissal of these petitions.
4. Sri Basavaraj V.Sabarad, the learned counsel appearing for the acquisition body - Karnataka Industrial Areas Development Board ('KIADB' for short) and its SLAO submits that although the petitioners have filed the detailed objections, they appear to have given them up in the course of hearing. On 1.6.2011 they did not oppose the acquisition as such. On the other hand, some of the petitioners/their representatives only sought higher compensation.
5. Sri W.M.Sundara Murthy, the learned counsel for the respondent Cricket Board submits that although the Cricket Board has deposited the amounts with the KIADB long ago, the possession is not made over to it. Therefore, it is no more interested in taking the lands in question. It has already written to the KIADB seeking the refund of the amounts with interest. 9 He prays for a direction to the KIADB to refund the amounts with interest.
6. The submissions of the learned advocates have received my thoughtful consideration. The first question that falls for my consideration is whether the SLAO has considered the petitioners' objections as prescribed by law? To answer this question, it is necessary to refer to the provisions contained in Section 28(3) of the KIAD Act.
"28. Acquisition of land.-
(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."
7. The perusal of the objections filed by the petitioners in response to the 28(1) preliminary notification reveals that they have shown the following causes for opposing the acquisition:
(a) The lands in question are fertile agricultural lands.
They are wet (¤ÃgÁªÀj) lands.
(b) There is no provision under the KIAD Act for the acquisition of the land for the Cricket Academy. Under the KIAD Act, land can be acquired only for 10 the purpose of industrial development. Cricket Academy is not an infrastructure project also.
(c) Section 28(1) notification is not preceded by the notification under Section 3 of the KIAD Act.
(d) The lands in question are not suitable for the establishment of Cricket Academy. The alternative lands are available for the establishment of Cricket Academy.
8. None of these objections are referred to, much less considered in the order, dated 18.8.2011 passed under Section 28(3) of the KIAD Act. The word 'consider' is vividly explained by the Honb'le Supreme Court in the case of THE BARIUM CHEMICALS LTD. AND ANOTHER v. A.J.RANA AND OTHERS reported in AIR 1972 SC 591 as follows:
"15. The words 'considers it necessary' postulate that the authority concerned has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word 'consider' is 'to view attentively, to survey, examine, inspect (arch), to look attentively, to contemplate mentally, to think over, meditate on, give heed to, take note of, to think deliberately, bethink oneself, to reflect' (vide Shorter Oxford Dictionary). According to Words and Phrases -11
Permanent Edn: Vol.8-A to 'consider' means to think with care. It is also mentioned that 'to consider' is to fix the mind upon with a view to careful examination; to ponder; study; meditate upon, think or reflect with care. It is, therefore, manifest that careful thinking or due application of the mind regarding the necessity to obtain and examine the documents in question in sine qua non for the making of the order. If the impugned order were to show that there has been no careful thinking or proper application of the mind as to the necessity of obtaining and examining the documents specified in the order. The essential requisite to the making of the order would be held to be non-existent."
9. It is also profitable to refer to the Apex Court's judgment in the case of RAGHBIR SINGH SEHRAWAT v. STATE OF HARYANA AND OTHERS reported in (2012) 1 SCC 792 wherein it is held that the Land Acquisition Officer is required to consider the land-owners plea against the acquisition of land. The recommendations in his report must be reflective of to the objective application of mind to the objections filed by the land-owners. The Apex Court has this to say in paragraph No.40:
"40. Though it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing 12 to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons."
10. The summary rejection of the petitioners' objections on the ground that the lands in question are required for establishing the Cricket Academy does not amount to the consideration of the petitioners' objections. The Apex Court in the case of KAMAL TRADING PRIVATE LIMITED v. STATE OF WEST BENGAL AND OTHERS reported in (2012) 2 SCC 25 has this to say in paragraph No.28 of its judgment:
"28. By no stretch of imagination, can it be said that the Second Land Acquisition Officer had applied his mind to the objections raised by the appellant. The abovequoted paragraphs are bereft of any recommendations. The Second Land Acquisition Officer has only reproduced the contentions of the officers of the acquiring body. The objections taken by the appellants are rejected on a very vague ground. Mere use of the words "for the greater interest of public" does not lend the report the character of a report made after application of mind. Though in our opinion, the declaration under 13 Section 6 of the LA Act must be set aside because the appellant was not given hearing as contemplated under Section 5-A(2) of the LA Act, which is the appellant's substantive right, we must record that in the facts of this case, we are totally dissatisfied with the report submitted by the Second Land Acquisition Officer. His report is utterly laconic and bereft of any recommendations. He was not expected to write a detailed report but, his report, however brief, should have reflected application of mind. Needless to say that as to which report made under Section 5-A(2) could be said to be a report disclosing application of mind will depend on the facts and circumstances of each case."
11. On the ground of the non-consideration of the petitioners' objections, these petitions deserve to be allowed. The recording of reasons ensures that the SLAO applies his mind to the case and the reasons that impelled him to take the decision in question are tenable.
12. Further, the opportunity of personal hearing to the land-owners is not an empty formality. It is a right given to the land-owners against the arbitrary exercise of power in acquiring the land. In the instant case, it is humanly not possible for any SLAO to hear as many as 50 objectors, consider them and dispose them of on a single day.
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13. For yet another reason too, the acquisition proceedings are liable to be invalidated. Admittedly, the beneficiary Cricket Board has sought only 49 acres 39 guntas, whereas the impugned notification is for an extent of 60 acres 37 guntas. The land cannot be acquired indiscriminately, recklessly and excessively. The minimum land audit requirement does not appear to have taken place.
14. The Apex Court in the case of Raghbir Singh Sehrawat (supra) is pleased to observe as follows:
"41. Before concluding, we deem it necessary to observe that in recent past, various State Governments and their functionaries have adopted very casual approach in dealing with matters relating to the acquisition of land in general and the rural areas in particular and in a large number of cases, the notifications issued under Sections 4(1) and 6(1) with or without the aid of Section 17 and the consequential actions have been nullified by the courts on the ground of violation of the mandatory procedure and the rules of natural justice..............
"42. It is difficult, if not impossible, to appreciate as to why the State and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute. As noted by the National Commission of Farmers, the acquisition of 15 agricultural land in the name of planned development or industrial growth would seriously affect the availability of food in future. After independence, the administrative apparatus of the State has not spent enough investment in the rural areas and those who have been doing agriculture have not been educated and empowered to adopt alternative sources of livelihood. If land of such persons is acquired, not only the current but the future generations are ruined and this is one of the reasons why the farmers who are deprived of their holdings commit suicide."
43. It also appears that the authorities concerned are totally unmindful of the plight of those sections of the society, who are deprived of their only asset like small house, small industrial unit, etc. They do not realise that having one's own house is a lifetime dream of a majority of the population of this country......... Therefore, before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes. If the acquisition of private land becomes absolutely necessary, then too, the authorities concerned must strictly comply with the relevant statutory provisions and the rules of natural justice.
15. In the result, I allow these petitions quashing the order, dated 18.8.2011 passed under Section 28(3) of the KIAD Act. Consequently the final notification, dated 8.12.2011 passed under Section 28(4) of the KIAD Act also becomes unsupportable 16 and unsustainable. They are therefore quashed insofar as they pertain to the petitioners' lands.
16. It is made clear that Section 28(1) notification is kept intact. The petitioners shall appear before the SLAO on 16.7.2013 without waiting for any notice from him. On considering their objections and giving them an opportunity of hearing, the SLAO shall pass the order under Section 28(3) of the KIAD Act afresh. Depending on the outcome of the 28(3) order, the question of issuing or not issuing the notification under Section 28(4) would arise. While reconsidering the matter, the concerned authority shall also take into account the subsequent development of the ultimate beneficiary Cricket Board's changed decision.
17. I do not propose to pass any order on the request of the Cricket Board for a direction to the KIADB to return the amounts with interest because, these petitions are not filed by the Cricket Board. They are filed by the land-owners impugning the acquisition proceedings. Needless to observe that the Cricket Board always has the liberty to initiate the appropriate proceedings for the refund of the amounts with interest. 17
18. But there is no reason as to why the KIADB should not consider the Cricket Board's representation, dated 4.5.2013 in accordance with law and as expeditiously as possible.
19. These petitions are allowed to the extent indicated hereinabove. No order as to costs.
Sd/-
JUDGE MD