Karnataka High Court
Narayan S/O. Bhimarao Kademani vs The State Of Karnataka on 26 July, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 71377 of 2012
C/W WP No. 60868 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 71377 OF 2012 (LA-RES)
C/W
WRIT PETITION NO. 60868 OF 2011 (LA-KIADB)
IN WRIT PETITION NO. 71377 OF 2012:
BETWEEN:
SRI NARAYAN S/O BHIMARAO KADEMANI
SINCE DECEASED REPRESENTED BY HIS LRS
1(A) SRI MOHAN
S/O NARAYAN KADEMANI
AGED ABOUT 64 YEARS
OCC: BUSINESS, R/O II CROSS,
MALMADDI, DHARWAD.
1(B) MAMTA SANTOSH KATAGI
AGED ABOUT 60 YEARS
OCC:HOUSEHOLD
Digitally signed by B R/O: C/O RAMAPPA SUNAGAR
K
MAHENDRAKUMAR OPP TO HUBLI RESIDENTCY
Location: HIGH
COURT OF
BHAIRIDEVARKOPPA
KARNATAKA HUBBALLI.
...PETITIONERS
(BY SRI. VIVEKANANDA B. HOSMATH, ADVOCATE AND
SRI. SUNIL S DESAI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
REVENUE DEPARTMENT
VIDHANA SOUDHA,
BANGALORE-1.
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NC: 2024:KHC-D:10644
WP No. 71377 of 2012
C/W WP No. 60868 of 2011
2. THE ASSISTANT COMMISSIONER
KARNATAKA INDUSTRIAL DEVELOPMENT BOARD,
LAKAMANAHALLI, DHARWAD DIVISION
DHARWAD-1.
3. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD, BY ITS SECRETARY
14/3, NRUPATUNGA ROAD, BANGALORE-1.
4. J S S MAHAVIDYAPEETHA
REPRESENTED BY ITS SECRETARY,
JAGADGURU DR. SRI. SHIVARATHRI,
RAJENDRA CIRCLE, MYSORE-570 004.
5. SRI. S.B. KADEMANI
SINCE DECEASED BY HIS LRS
5(A) SRI. DEVARAJ S/O. SRINIVAS,
KADEMANI, AGED MAJOR,
OCC: BUSINESS, R/O. INDIRA
PROJECTS, BANASHANKARI
ARCYAD, NCM, HUBLI.
5(B) SRI. YESHWANTH S/O SRINIVAS
KADEMANI, AGE MAJOR
OCC: BUSINESS, R/O INDIRA PROJECTS
BANASHANKARI ARCYAD, NC M, HUBLI.
5(C) SRI. RANGANATH S/O SRINIVAS
KADEMANI, AGE MAJOR
OCC: BUSINESS, R/O INDIRA PROJECTS
BANASHANKARI ARCYAD, NCM, HUBLI.
6. SRI. R.B. KADEMANI
AGE:MAJOR
OCC:AGRICULTURE
R/O. ANNIGERI, TQ:NAVALGUND,
DISTR:DHARWAD.
7. SRI. T.B. KADEMANI
AGE:MAJOR, OCC:AGRICULTURE,
R/O. ANNIGERI,
TQ:NAVALGUND, DIST:DHARWAD.
...RESPONDENTS
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NC: 2024:KHC-D:10644
WP No. 71377 of 2012
C/W WP No. 60868 of 2011
(BY SRI. ASHOK T KATTIMANI, AGA FOR R1;
SRI. VEERESH R BUDIHAL, ADVOCATE FOR R2;
SMT. SHARMILA M PATIL, ADVOCATE FOR R3;
SRI. MAHESH WODEYAR, ADVOCATE AND
SRI. NAVEEN CHATRAD, ADVOCATE FOR R4;
R5(A-C), R6 AND R7 STANDS DISMISSED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE, A WRIT
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI
QUASHING THE IMPUGNED NOTIFICATION ISSUED BY THE
1ST RESPONDENT UNDER SECTION 28(4) OF KIADB. ACTY
DATED 6.2.2008 AS PER ANNEXURE-L AS ILLEGAL AND VOID,
IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,
IN WRIT PETITION NO. 60868 OF 2011:
BETWEEN:
1. SRI. BHIMAPPA S/O TIMMANNA KADEMANI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O RADDIGERI STREET, ANNIGERI,
TQ: NAVALGUND, DIST:DHARWAD-582 201.
2. SHRI. RANGANNA S/O TIMMANNA KADEMANI,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O RADDIGERI STREET, ANNIGERI,
TQ: NAVALGUND, DIST: DHARWAD-582 201.
3. SHRI. VENKATESH S/O TIMMANNA KADEMANI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O RADDIGERI STREET, ANNIGERI,
TQ: NAVALGUND,
DIST: DHARWAD-582 201.
4. SHRI. ANAND S/O TIMMANNA KADEMANI,
AGE: 32 YEARS,
OCC: ADVOCATE,
R/O RADDIGERI STREET, ANNIGERI,
TQ: NAVALGUND, DIST: DHARWAD-582 201.
...PETITIONERS
(BY SRI. VAISHALI H HADIMANI., ADVOCATE)
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NC: 2024:KHC-D:10644
WP No. 71377 of 2012
C/W WP No. 60868 of 2011
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY,
REVENUE DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE - 560 001.
2. THE SPECIAL LAND ACQUISITION OFFICER,
KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD,
LAKKMANHALLI, DHARWAD DIVISION,
DHARWAD - 580 001.
3. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
BY ITS SECRETARY,14/03,
NRUPATHUNGA ROAD,
BANGALORE - 560 001.
4. J.S.S.MAHAVIDYAPEETH
JAGADGURU SHREE SHIVARATHRI
RAJENDRA CIRCLE, MYSORE-570004
REP BY ITS SECRETARY
C G BETSURMATH S/O GANGAIAH
AGED ABOUT 65 YEARS
OCC: EXECUTIVE SECRETARY
R/O J.S.S.MAHAVIDYAPEETH
JAGADGURU SHREE SHIVARATHRI
RAJENDRA CIRCLE, MYSORE-570004.
...RESPONDENTS
(BY SRI. ASHOK T KATTIMANI, AGA FOR R1;
SMT. SHARMILA M PATIL, ADVOCATE FOR R2;
SRI. GANGADHAR J M, ADVOCATE AND
SRI. PRAVEEN P TARIKAR, ADVOCATE FOR
IMPLEADING R4;
SRI. P N HATTI, ADVOCATE FOR R2 AND R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO IT IS MOST
HUMBLY SUBMITTED THAT IN THE LIGHT OF THE ABOVE
SUBMISSION, THE NOTIFICATION PASSED ON
NO.CI.25.SPQ.2008 ON FEB 6 2008, IN THE OFFICIAL
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WP No. 71377 of 2012
C/W WP No. 60868 of 2011
GAZETTE UNDER SECTION 28(4) OF THE KARNATAKA
INDUSTRIAL AREA DEVELOPMENT ACT, 1966 AT ANNEXURE-
H MAY BE QUASHED FOR BEING AGAINST THE SETTLED
PRINCIPLES OF LAW AND FACTS AND ETC.,
THESE PETITIONS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The challenge in these petitions is to the notification dated 6.2.2008 issued by Respondent No.1 under Section 28(4) of the Karnataka Industrial Area Development Act, 1966 (hereafter referred to as the 'KIAD Act, 1966'). The petitioners also seek a declaration that the acquisition of their land is contrary to law and against the objectives of the KIAD Act, 1966. Consequently, the petitions are considered together and disposed of collectively.
2. The petitioners assert that Sri Bhimappa Thimmappa Kademani was the propositus of the Hindu Undivided Joint Family. Following his demise, his eldest son, Srinivas Bhimappa Kademani, became the Kartha of the joint family property. From the income derived from this joint family property, he purchased the land bearing Block 127, measuring 27 acres and 4 guntas, in Kelegeri village.
3. Respondent No.3, KIADB, issued a preliminary notification dated 10.2.1981 under Section 28(1) of the KIAD Act, 1966, proposing to acquire the subject land for the establishment of industries. This culminated in a final notification dated 5.11.1981 under Section 28(1) of the KIAD Act, 1966. This prompted NB -6- NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 Kademani, the petitioner in WP No.71377/2012, and MB Kademani to approach this Court in WP No.6448/1982 and WP No.6449/1982, challenging the final notification. This Court, by order dated 26.7.1994, quashed the final notification primarily on the grounds that the objections submitted by the petitioners were not considered as required under Section 28(3) of the KIAD Act, 1966, and reserved liberty to the authorities to continue the acquisition proceedings after hearing the petitioners under Section 28(3) of the KIAD Act, 1966.
4. The petitioners assert that following the order passed by this Court, the respondent KIADB did not take any further steps to proceed with the acquisition. Instead, in its 143rd general body meeting dated 11.07.1989, it resolved to give up/withdraw from the acquisition in respect of Sy.Nos.112, 113, and 127, as evident from Annexure-K in WP No.71377/2012.
5. The respondents Nos. 6 and 7 in WP No. 71377/2012 filed a suit, OS No. 61/2005, seeking partition and separate possession of their legitimate share in the subject land among other properties. In that suit, an order of temporary injunction was granted, restraining the parties from alienating the suit property, including the subject land.
6. The petitioners assert that respondent No. 5(c) in WP No. 71377/2012 appears to have informed the KIADB (Karnataka Industrial Areas Development Board) about the court's order and the demise of his father, in whose name the record of rights for the -7- NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 subject land was registered. He requested the KIADB to delete the name KIADB from the records.
7. In light of these circumstances, respondent No. 4 sought information from respondent No. 3 - KIADB regarding the status of the acquisition proceedings and requested the acquisition of the subject land for their benefit, with the landowner's consent.
8. In response to respondent No. 4's request, the Special Deputy Commissioner of KIADB issued a communication to the Special Land Acquisition Officer, instructing him to ascertain the actual status of the matter and determine if there were any pending court cases involving the owners of the subject land. Subsequently, the legal representatives of the deceased S.B. Kademani submitted a letter asserting their ownership of the subject land and consenting to its acquisition in favor of respondent No. 4.
9. The Special Land Acquisition Officer submitted a report to the Special Deputy Commissioner regarding the consent for the acquisition of the land for the benefit of respondent No. 4. Based on this report, respondent No. 3 decided to continue the acquisition proceedings from the stage of Section 28(3) of the Karnataka Industrial Areas Development Act, 1966, for acquiring the subject land for the benefit of respondent No. 4. The Special Land Acquisition Officer, after conducting an inquiry under Section 28(3) of the Act, passed an order stating that there was no objection to the acquisition of the land for the benefit of respondent No. 4. Based on this order, respondent No. 3 issued a final -8- NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 notification under Section 28(3) of the Act, which was published in the gazette on 6th February 2008. Hence, these petitions.
10. During the pendency of these petitions, OS No. 61/2005 was decreed, holding that the subject land is a joint family property and recording a finding that the acquisition was not challenged.
11. Submissions of Sri M.R. Naik, learned Senior Counsel representing the petitioners, are as follows:
a) A final notification issued after a lapse of more than 27 years from the date of the preliminary notification, in the context of the KIADB having resolved to drop the acquisition of the subject land and then reviving it at the behest of respondent No. 4, is actuated by malafides and illegalities. Furthermore, since the final notification was not issued within a reasonable time, the entire acquisition proceedings have lapsed by operation of law.
12. The impugned final notification was issued for acquiring the subject land for the benefit of respondent No. 4 for the establishment of educational institutions. This purpose is different from that specified in the preliminary notification issued under Section 28(1) of the Act, 1966. Consequently, the acquisition of the subject land solely for the establishment of educational institutions, rather than for providing an amenity in an industrial area, exceeds the scope of the provisions of the Act, 1966.
-9-NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 Therefore, the impugned land acquisition cannot proceed if the notified dominant objective of the acquisition is not fulfilled.
13. Furthermore, the learned Senior Counsel argued that notices were issued by respondent No. 3 only to the legal heirs of S.B. Kademani, who had initially volunteered to consent to the acquisition of the subject lands. This initiation of proceedings from the stage of Section 28(2) was done by referring to the order of this Court in WP No. 6448/1982 and WP No. 6449/1982. However, since the subject property is part of joint family property, and the property in question had fallen to the share of the coparcener petitioner herein, N.B. Kademani, son of S.B. Kademani, no notice was issued to the petitioner. Additionally, he argued that the notice allegedly served on S.B. Kademani in 1984 was, in fact, not served at all.
14. Thus, an order issued under Section 28(3) of the Act, 1966, after a lapse of over 17 years, blatantly disregarded Section 28(2) of the Act, which mandates the issuance of notice to the occupier of the land proposed to be acquired under the Act, prior to the issuance of an order under Section 28(3). Hence, the learned Senior Counsel contends that the acquisition proceedings have been vitiated from the start due to a colorable exercise of executive action.
15. In support, he places reliance on the following decisions:
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1) Sri Venugopal V R and others -vs- State of Karnataka and others (WP No.34313/2016) (DD 17.8.2017).
2) The Special Land Acquisition Officer KIADB and others
-vs- Sri K B Lingaraj and others in WA No.6819/2017 & 6820/2017 (DD 28.9.2020).
3) K B Lingaraju and others -vs- State of Karnataka and others in WP No.34318/2016.
4) The Special Land Acquisition Officer and others -vs-
Sri K B Lingaraju in WA No.6819/2017 (DD 28.9.2020).
5) The KIADB and others -vs- The State and others in WA No.100219/2018 (DD 5.12.2018).
6) Smt.Chowdamma and others -vs- The State and others in WP No.29135/2018 (DD 15.2.2021).
7) Sri Chikkathayappa Reddy and others -vs- The State and others in WP No.26290/2010 (DD 28.2.2022).
8) Sri H N Shivanna and others -vs- State of Karnataka and others WA No.3189/2010 (DD 20.11.2012).
9) The KIADB and others -vs- Smt. Anitha in WA No.2402/2014 (DD 12.4.2016).
10) Sri Ashok Kumar and others -vs- The State and others in WP No.201572/2015 (DD 27.2.2015).
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16. Submissions of Sri Basavaraj Sabarad, learned Senior Counsel representing the respondent - KIADB:
a) The final notification was published on 6th February 2008. The challenge to this notification was made by the petitioner in WP No. 60868/2011 on 1st February 2011 and by the petitioners in WP No. 71377/2012 on 18th October 2012, after an inordinate delay of more than three to four years, respectively. The petitioners have not offered a plausible explanation for the delay. Therefore, the writ petitions are liable to be dismissed on the grounds of delay, laches, and acquiescence of the acquisition proceedings. In support, he places reliance on the following decisions:
1) AIR 1974 SC 2077 (Afltoon and ors. -vs- Lt. Governor of Delhi)
2) AIR 1975 SC 2190 (State of Mysore and ors. -vs-
Narasimha Ram)
3) (1996) 6 SCC 445 - (State of Rajasthan -vs- D R Laxmi and ors)
4) (1996) 11 SCC 501 - (Municipal Corporation of Greater Bombay -vs- IDICP and ors)
5) ILR 1991 KAR 3203 - (Abdul Khader Mekhri -vs- State of Karnataka)
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b) The petitioners are guilty of suppressing material facts, making false statements, and withholding material information. Notice under Section 28(2) was issued to the petitioners, Sri Narayan Bhimarao Kademani, as well as to his brother, Srinivas Rao Kademani, on 27th November 1984, and they acknowledged the receipts of the notices. Upon service of the notice, Narayan Bhimrao Kademani filed objections on 3rd January 1985 and 4th January 1985. Subsequently, the SLAO, after providing an opportunity for a hearing, passed an order dated 26th January 1986 for acquisition.
17. In the absence of a challenge to the notifications under Sections 3(1) and 1(3), and the preliminary notification issued under Section 28(1), these writ petitions challenging only the final notification under Section 28(4) are not maintainable.
18. The acquisition proceedings were initiated for the formation of an industrial area encompassing about 227 acres. The final notification dated 30th October 1981 was quashed, but not the preliminary notification. Therefore, mentioning the name of respondent No. 4 in the final notification cannot be deemed as acquisition for respondent No. 4.
19. Education falls under the ambit of amenity as per the government notification dated 19th March 1991 issued under Section 2(1) of the KIAD Act, 1966, and also as an infrastructural facility under Section 2(7)(a) of the Act. In support, he placed reliance on the following decisions:
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1) WA No.1360/2008 - (H S Somashekar -vs- State of Karnataka and others)
2) SLP (C) No.27778-27816/2011 (DD 25.8.2015) - (H S Somashekar -vs- State of Karnataka and others)
3) WA No.3135/2010 - (Muninanjappa L & ors. -vs- State of Karnataka & ors.)
20. This Court as well as the Apex Court have consistently taken a view that the limitation prescribed under the Land Acquisition Act in connection with different processes cannot be applied in the cases of acquisition under the KIAD Act, 1966 as it is a special enactment with specific purpose. In support, he placed reliance on the following decisions:
1) (2017) 3 SCC 313 - KIADB, Mysore and another -vs-
Anasuya Bai and others.
2) (2011) 3 SCC 408 - (Nagabhushana -vs- State of Karnataka)
3) WA 1451/2018 (DD 2.3.2021) - (Ananthaswamy -vs- State of Karnataka & ors)
21. Assuming that no notices were served on the petitioners, no prejudice was caused to them, and their grievance is merely about the compensation payable for the acquired land. Their interest is protected by the decree passed by the Civil Court
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 in OS No. 61/2005, which entitles them to a certain share in the compensation amount for the acquired land.
22. Respondent Nos. 5(a) to 5(c), who were notified khatedars, consented to the acquisition and received the entire compensation amount of Rs.1,08,40,000/-. The writ petitions against them were dismissed on 11th February 2014, and in their absence, the claim of the petitioners cannot be adjudicated.
23. Sri Jayakumar S. Patil, learned Senior Counsel representing respondent No. 4, submitted that an appropriate order may be passed on the joint memo recording the terms of settlement between the petitioners and respondent No. 4.
24. After carefully considering the arguments of the learned counsel for the parties, the key points that arise for deliberation in these petitions are as follows:
1. Whether there was compliance with the mandatory provision contained in Section 28(3) before issuing the final notification under Section 28(4)?
2. In the absence of a prescribed limitation, can the KIADB issue a final notification after the expiry of a period of 27 years from the date of the preliminary notification?
3. Whether the respondents can acquire land for the sole purpose of establishing an educational institution as an amenity or
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 for a different purpose than the one notified under Section 28(1) of the KIAD Act?
4. Whether the instant writ petitions are plagued with delay and laches, and if so, whether it can be condoned?
5. Whether the acquisition proceedings are vitiated on the grounds that it is a case of colorable exercise of power by the concerned authorities?
25. Before addressing the points raised for deliberation, it is necessary to divulge the facts of the case that led to the filing of these petitions.
26. Point No.1. In this instance, the preliminary notification was issued on 10th February 1981, and the final notification was published on 12th February 1982. However, this final notification was quashed by this Court in WP No. 6448/1982 and a connected petition via an order dated 26th April 1984 due to non-compliance with the mandatory provision contained in Section 28(3) of the Act, 1966. Following the order of remand passed by this Court, a notice dated 21st November 1984/27th November 1984 was issued, to which the petitioner in WP No. 71377/2012 filed objections, requesting the acquisition proceedings to be dropped. Despite these objections, the Special Land Acquisition Officer recommended acquisition via an order dated 26th January 1986. The KIADB subsequently sent a proposal to the State Government to issue and publish the final notification, followed by subsequent reminders.
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27. The State Government did not approve the proposal sent by the KIADB. Consequently, the Board, in its 143rd General Body Meeting dated 11.7.1989, resolved to withdraw from the acquisition of land in Sy.No.127, among other lands. Respondent No. 5(c) submitted a representation dated 30th May 2006 to the KIADB to delete the name of the KIADB from the record of rights and to enter his and his brother's names instead.
28. Given these circumstances, respondent No.4 requested the KIADB, stating that the legal heirs of the deceased S.B. Kademani were agreeable to hand over possession of the land through the concerned acquisition. The legal representatives of the deceased S.B. Kademani, suppressing the pendency of the suit in OS No. 61/2005 and the temporary injunction granted on 22nd December 2005, which restrained the parties from alienating the subject land, submitted a consent letter on 16th January 2007, asserting ownership and consenting to acquisition. The Special Land Acquisition Officer submitted a report to the Special District Commissioner, KIADB, on 2nd March 2007 regarding the consent and pendency of the suit but did not mention the interim order that was in effect or the resolution passed by the Board in its 143rd General Body Meeting to withdraw from the acquisition of the subject land. The KIADB then decided to continue from the stage of Section 28(3), following the preliminary notification dated 10th February 1981.
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29. The SLAO, KIADB, claims to have issued a notice dated 21st September 2007 to the petitioners to show cause as to why the land should not be acquired. On this notice, the Village Accountant, Attikola, made an endorsement dated 3rd October 2007, stating that when he attempted to serve the notice to Narayana Bhim Rao Kademani, the petitioner in WP No. 71377/2012 at Malmaddi, Dharwad, he was informed that the address provided was insufficient. Thus, the service of notice could only be effected if a sufficient address was furnished. The Tahsildar, Dharwad, endorsed the notice on 15th October 2007, informing the Special Land Acquisition Officer, KIADB, that the concerned person was not residing at the address provided. The notice was received by the office of SLAO on 24th October 2007.
30. The order sheet dated 4th October 2007, which pertains to the enquiry under Section 28(3), indicated that Ranganath Srinivasrao Kademani, respondent No. 5(c), appeared before the SLAO, stating he was ready to give the land on acquisition to the KIADB. Therefore, the petitioner in WP No. 71377/2012, Narayan s/o Bhimappa Kademani, who was the petitioner in WP No. 6489/1982, and the father of the petitioner in WP No. 60868/2011, Thimmappa Bhimrao Kademani, who was plaintiff No. 2 in OS No. 61/2005, were not issued notices to file objections and were not provided with an opportunity for a personal hearing as mandated under Section 28(3), despite the direction issued by this Court in WP Nos. 6448 & 6449 of 1982. Based on the consent given by Ranganath Srinivasrao Kademani, the SLAO
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 passed an order dated 6th October 2007, stating that there was no objection to the acquisition of land for the benefit of respondent No. 4. This order preceded the endorsement made by the Tahsildar on 15th October 2007 on the notice issued by the SLAO, stating that the concerned individual was not residing at the provided address.
31. Upon receiving and accepting the proposal sent by the KIADB, the State Government published the final notification under Section 28(4) on 6th February 2008. It is pertinent to note that the final notification was issued after a lapse of 28 years from the date of the issuance of the preliminary notification.
32. The KIADB has produced vouchers for the payment of compensation made under Section 29(2) of the KIAD Act to respondents No. 5(a) to 5(c) and cheques for sums of Rs.28,61,086/- and Rs.14,30,542/-, respectively, as shown in Annexures-R7 and R8. An agreement was entered into between the State Government and respondents No. 5(a) to 5(c), but not with the petitioner in WP No. 71377/2012, who was issued a notice to participate in the enquiry under Section 28(3) but was not served with the notice. Therefore, in the absence of an agreement with all the owners, the compensation paid and received by respondents No. 5(a) to 5(c) is not binding on the petitioners, and the acquisition cannot be said to be by consent.
33. In light of the above facts, the key points raised for deliberation must be considered with reference to the relevant
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 provisions of the KIAD Act and the legal principles established by the Apex Court and this Court regarding those provisions.
34. The objective of the Act, 1966, is to make necessary provisions for the orderly establishment and development of industries in suitable areas within the State. Chapter VII of the Act deals with the acquisition and disposal of land. Section 28 of the Act addresses land acquisition, and its provisions are as follows:
Sub-Section (1) states that if, at any time, the State Government deems land necessary for development by the Board or for any other purpose in furtherance of the Act's objectives, it may issue a notification announcing its intention to acquire such land.
Sub-Section (2) requires the service of a notice to the landowner to show cause within 30 days why the land should not be acquired.
Sub-Section (3) mandates that an opportunity be given to the landowners to be heard. The State Government must consider any objections raised by the landowners and may then pass such orders as it deems appropriate.
Sub-Section (4) stipulates that after passing an order under Sub-Section (3) and if the State Government is satisfied that the land is required for the purpose specified in the notification issued under Section 1, a declaration shall be made by notification in the official gazette.
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35. After issuing the preliminary notification, the only requirements are to serve a notice on the landowner to show cause why the land should not be acquired, conduct an enquiry to consider any objections submitted by the landowners, provide an opportunity for a personal hearing, and, after considering the objections, publish the final notification.
36. In the case of Poojari Peddanna v. State and Others 2009(5) Kar L J 556, the coordinate Bench of this Court examined whether service of notice under Section 28(2) of the Act on all interested parties is mandatory or directory. Referring to the decisions of the Hon'ble Supreme Court in Ahuja Industries Limited v. State of Karnataka (AIR 2003 SC 3519) and Devinder Singh v. State of Punjab (AIR 2008 SC 261), it was ruled that non-service of notice on the legal representatives of the original grantee, despite the respondent's awareness of the pending proceedings, constitutes absolute non-compliance with the mandatory provisions contained in Section 28(2) of the Act.
37. In the present case, the father of the petitioner in WP No.60868/2011 was plaintiff No. 2 in OS No.61/2005. The pendency of the partition suit concerning the subject land was well within the knowledge of the respondent KIADB. Despite this knowledge, the KIADB did not issue a notice under Section 28(2) or provide a personal hearing as required by Section 28(3). Similarly, the petitioner in WP No.71377/2012 was not issued a
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 notice under Section 28(2) nor provided a personal hearing as required by Section 28(3), as evidenced by the endorsements made by the Tahsildar and the Village Accountant on the notice issued by the Special Land Acquisition Officer. Therefore, the non- compliance with the mandatory provisions of Section 28(2) and (3) of the KIAD Act, 1966, vitiates the acquisition proceedings. Accordingly, Point No. 1 is answered in the negative and in favor of the petitioner.
38. Point No. 2. The preliminary notification was issued on October 30, 1981. The final notification dated February 12, 1982, was subsequently quashed by this Court on July 26, 1984. Upon remand, the KIADB, during its 143rd General Body Meeting dated 11.7.1989, resolved to withdraw from the acquisition of the subject land. However, on November 6, 2006, respondent No. 4 requested the KIADB to proceed with the acquisition of the subject land. In response, the Special Deputy Commissioner of KIADB directed the Special Land Acquisition Officer to verify the status of the acquisition and check for any pending cases.
39. Following this, based on a consent letter from the legal representatives of the deceased S.B. Kademani, an enquiry was conducted under Sections 28(2) and (3) of the Act. Notably, notices were not issued during this enquiry, which ultimately led to the publication of the final notification on February 6, 2008. This final notification was issued after an inordinate delay of 27 years.
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40. A review of the provisions contained in Section 28 of the Act indicates that while there is no specific time limit prescribed for issuing the final notification from the date of the preliminary notification issued under Sub-Section (1), it is implicit that the final notification should be published within a "reasonable time" if no specific time frame is established by law.
41. The concept of what constitutes reasonable time can be subjective and is determined on the facts and circumstances of the case including the purpose of the acquisition, the procedures involved and impact on the land owners. The market value of the lands is often pegged to the date of preliminary notification. Meaning, the compensation to the landowner is calculated based on the value of land as it was on the date of the preliminary notification rather than its value at the time of the final notification.
42. The Division Bench of this Court in Shimoga Urban Development Authority by its Commissioner and Another v. State of Karnataka by its Secretary (ILR 2002 KAR 2078), referencing the Apex Court's decision in Ramchand and Others v. Union of India and Others (1994) 1 SCC 44, ruled that when a statute does not prescribe a time limit for exercising a power, it must be exercised within a time frame that can be deemed reasonable. The Division Bench further observed that, according to the Supreme Court, when compensation is pegged to the date of the preliminary notification and there is an inordinate delay, the market value as of the preliminary notification becomes a fraction
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 of the market rate prevailing at the time of passing the award and taking possession, which is unjust to the landowners.
43. In H.N. Shivanna and Ors v State of Karnataka and Ors, WA 3189/2010 : AIR 2013 KAR 163 , the Division Bench, referring to the Shimoga Urban Development Authority by its Commissioner and Another v. State of Karnataka by its Secretary (ILR 2002 KAR 2078) case and a series of Apex Court decisions, held that even if no period is prescribed under the Act for issuing the final declaration or passing the award, it does not imply that limitation is not a bar. A period of two years was considered reasonable for issuing a final declaration, provided there are no legal or procedural obstacles. If the final declaration is not issued within this period, the land acquisition proceedings lapse, regardless of the absence of a specific provision in the Act. Although the decision in Shivanna's case was challenged before the Apex Court, which dismissed the special leave petition while keeping the position of law open, the decision of the Division Bench in Shimoga Urban Development Authority remains final.
44. Regarding the abandonment of acquisition proceedings due to delay and inaction by the KIADB, the Division Bench in Special Land Acquisition Officer and Others v. Sri Venugopal V. and Others (WA No. 6820/2017, dated September 28, 2020) dismissed the writ appeal and affirmed the co-ordinate bench's order, stating that a delay of nearly seven years in passing the award for land acquisition under the Act, 1966
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 leads to the lapse of the acquisition proceedings. The co-ordinate bench in WP No. 34313-317/2016 (dated August 17, 2017), referring to Tukaram Kana Joshi & Others v. M.I.D.C. (AIR 2013 SC 565), Ram Chand and Others v. Union of India (1994 1 SCC
44), and H.N. Shivanna and Ors v. State of Karnataka and Ors WA 3189/2010 AIR 2013 KAR 163, noted that there is a legal obligation on the competent authority to conclude acquisition proceedings within a reasonable time.
45. Similarly, this Court in Special Land Acquisition Officer v. Sri K.B. Lingaraju (WA No. 6819/2017, dated September 28, 2020) upheld the decision of the co-ordinate bench in WP No. 34318/2016 (dated August 17, 2017), ruling that a delay of nearly seven years in passing the award for land acquisition under the Act, 1966 results in the lapse of the acquisition proceedings.
46. In this case, no order of restraint was in place against the KIADB acquiring the land. The final notification pertained only to the subject land, and there were no impediments to commencing the acquisition proceedings. Unlike cases involving large extents of land, where the State Government delayed action from the date of the proposal sent by the KIADB, the proceedings here were inordinately delayed due to extraneous considerations and a lack of reasonable explanation. Consequently, the entire acquisition proceedings have lapsed due to the failure to issue the final notification within a reasonable time. Therefore, Point No. 2 is answered in the negative and in favor of the petitioners.
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011
47. Point No. 3. The preliminary notification under Section 28(1) was issued for the establishment of industries, proposing to acquire the subject land among other lands, totaling an extent of 223 acres. At the behest of Respondent No. 4, the final notification under Section 28(4) was published for the benefit of Respondent No. 4. The KIADB decided on July 11, 1999, to exclude an extent of 43 acres and 19 guntas of land in Sy. Nos. 112, 127, and 113 from the acquisition. Subsequently, on March 25, 2000, a resolution was passed to hand over possession of the land in Sy. No. 127 to M/s. Nandi Engineering Ltd.
48. On November 6, 2006, Respondent No.4 communicated with the KIADB, stating that it had already been allotted 100 acres of land by the KIADB for its technical training institute. In the neighborhood, a campus had been built, establishing educational institutions in a small part of the campus, with other educational institutions planned. Respondent No. 4 expressed a desire to acquire 27.04 acres of land in Sy. No. 127 through a consent acquisition, citing that the proposed land did not have a good approach and was abutting a main road.
49. The purpose of the acquisition specified in the preliminary notification under Section 28(1) was for the establishment of industries. However, the final notification was issued to acquire the subject land for the benefit of Respondent No. 4 to establish educational institutions.
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011
50. According to Section 28(4), the final notification must be published to acquire land for the purpose specified in the notification issued under sub-Section (1). The final declaration runs contrary to the purpose stated in sub-Section (1), which implies that the acquisition of the subject land, initially abandoned, was revived at the instance of Respondent No. 4 for extraneous reasons instead of initiating the acquisition process afresh.
51. The term `amenity,' as defined under Section 2(1), includes roads, water supply, street lighting, drainage, sewerage, conservancy, and other conveniences specified by the State Government by notification.
52. The term 'industrial infrastructural facilities,' as defined under Section 2(7-a) of the KIAD Act, refers to facilities that contribute to the development of industries established in an industrial area, as enumerated therein, and any other facilities specified by the State Government by notification. This provision was inserted by Act No. 11 of 1997. Thus, facilities and amenities in an industrial area are ancillary to the establishment of industries in that area, and only those facilities specified under the Act are ancillary and subordinate to the industries established in an industrial area.
53. In P. Narayanappa and Another v. State of Karnataka (AIR 2006 SC 3001), the Apex Court addressed the
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 issue where the impugned notification issued under Section 28(1) did not specify that the land was to be acquired for a technology park, research and development center, shopping mall, engineering college, residential apartments, etc., depriving landowners of their right to proper and effective representation under Section 28(2) of the Act. The Court concluded that the land was acquired for industrial development and vested with the KIADB, which had the authority to allocate it to private entities for orderly industrial development. It was determined that it is not necessary to detail the nature of the industry or facility in the notification under Section 28(1). The key test is whether the land is acquired for development by the Board or any other purpose that furthers the objectives of the Act, as stated in Section 28(1).
54. The Division Bench of this Court in M/s Century Central, Palace Road, Bangalore v. State of Karnataka and Ors. 2015 (3) Kar.L.J. 293 (DB), referencing P. Narayanappa and Another v. State of Karnataka (AIR 2006 SC 3001), ruled that the impugned notification specified certain amenities, including technical and training institutes and educational institutions, as conveniences contributing to orderly industrial development. It further held that, based on a combined reading of the Act and the notifications, acquiring land solely for establishing an educational institution is not permissible under the KIAD Act. It emphasized that while industrial infrastructural facilities and amenities are crucial for the functioning of industries in an industrial area, an area cannot be
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 designated as an industrial area solely for expanding an educational institution in the absence of industrial development.
55. In Somashekar v. State of Karnataka (supra), relying on P. Narayanappa and Another v. State of Karnataka (AIR 2006 SC 3001), the Division Bench ruled that land can be acquired under the KIAD Act for the establishment of institutions like Rajiv Gandhi Medical University, provided it is for the orderly development of an industrial area.
56. Furthermore, in Muninanjappa L and Others v. State of Karnataka and Ors. WA No.3135/2010, the Division Bench ruled that hospitals, schools, and colleges fall within the category of industrial infrastructure facilities. There is no dispute regarding the ratio laid down in that case.
57. Thus, based on the ratios established by the Apex Court and this Court, it can be inferred that while the KIAD Act does not require that a notification under Section 28(1) must specify the exact nature of the activity to be undertaken on the acquired land, it does not mean that land can be acquired solely for establishing and expanding amenities such as educational institutions in the absence of industrial establishments.
58. Therefore, in this case, where the KIAD Act, 1966 was invoked to acquire land solely for expanding the educational society of Respondent No. 4, the entire acquisition process stands
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 vitiated due to a colorable exercise of power. Accordingly, Point No. 3 is answered in the negative and in favor of the petitioners.
59. Point No. 4. In State of A.P. v. Surya Chandra Rao (2005 (6) SCC 149), the Apex Court elaborated on the concept of fraud, stating that in public or administrative law, fraud arises from a deception that involves the disclosure of incorrect facts, knowingly and deliberately, to exercise jurisdiction that would otherwise not have been exercised. The misrepresentation must relate to conditions outlined in a section, concerning the existence or non-existence of which power can be exercised. Hence, if the exercise of power involves exceeding the jurisdiction conferred by the legislature or defeating statutory provisions through subterfuge or for irrelevant considerations, it constitutes a fraud in law and amounts to a colorable exercise of power.
60. Citing earlier decisions in Narayana Reddy v. State of Karnataka (ILR 1991 KAR 2248, decided on January 1, 1991) and HMT House Building Cooperative Society v. Syed Khader & Ors (AIR 1995 SC 2244), where the Court had annulled mala fide acquisition proceedings as a colorable exercise of power--because members who were neither employees of HMT nor residing within the society's jurisdiction were admitted, and land was acquired under the Land Acquisition Act, 1894 for extraneous considerations--the Supreme Court in Vyalikaval House Building Co-operative Society v. Chandrappa (2007 (9) SCC 304) upheld the decision to allow a writ petition in a Letters Patent Appeal filed
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 after a delay of fourteen years. The challenge was based on the finding that the acquisition was mala fide and fraudulent. The Court also concluded that money paid for settlement in such cases was at the risk of the petitioner society.
61. In State of Punjab v. Gurdial Singh (1980 2 SCC
471), the Supreme Court had observed that where land was notified for industrial development under the Land Acquisition Act, 1894, and was later allocated to private builders for residential apartments--contrary to the intended use--the acquisition was deemed a colorable exercise of power. The Court affirmed that fraud on power voids the order if it is not exercised bona fide for the intended purpose.
62. In Greater Noida Industrial Development Authority v. Devendra Kumar (2011 12 SCC 375), the Court noted that when land acquired for industrial development was instead allotted for residential purposes within weeks of the notification, it constituted a colorable exercise of power. The State Government's evasive responses about land usage further supported the finding of fraud.
63. In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (AIR 2013 SC 565), where State functionaries had taken possession of land in 1964 without compensating the owners, the Court referenced that deprivation without legal sanction does not equate to valid acquisition. It observed that delay in challenging
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 unlawful dispossession should not bar the claim if substantial justice was violated, even if acquisition proceedings had lapsed due to inaction by authorities.
64. Additionally, in Union of India v. N. Murugesan (2022 2 SCC 25), the Supreme Court emphasized that delay and laches are matters of fact and prejudice, and may not apply if fraud is proven. The Court noted that condonation of delay involves examining the length of delay and the nature of actions taken during that period, and it may be unreasonable to challenge settled schemes based on technical delay.
65. In B. Mahadevappa v. The Deputy Commissioner (W.P. 43155/2011 : DD 11.06.2024), this Court ruled that the State Government cannot dispossess individuals of their constitutionally protected property rights without following due process, even if the writ petition is delayed. The Court stated that unjust enrichment by the State Government and unlawful possession do not confer any right to the State Government.
66. Given that the final notification was published after 28 years from the date of issuance of preliminary notification, and the writ petitions were filed on February 1, 2011, and October 18, 2012, respectively, it is improper and unacceptable for the KIADB to argue that the petitions should be dismissed on the grounds of delay and laches. The principle of equity prevents a party from benefiting from wrongful conduct and protects the enjoyment of
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 rights that have become permanent due to the passage of time. The KIADB's conduct signifies a waiver of the right to the land proposed for acquisition. Moreover, fraud on power renders limitations on remedies ineffective. Therefore, the KIADB's claim that the writ petitions are barred by delay and laches is without merit and is hereby rejected. Accordingly, Point No. 4 is answered in favor of the Petitioners.
67. Point No. 5. In light of the discussion of facts in the instant case, the restrictive scope of the invoked provisions of law, and the relevant case laws elucidated in the preceding paragraphs, it is reasonable to conclude that the impugned acquisition proceedings, which initially lapsed after the expiry of a reasonable time and were subsequently revived for extraneous and irrelevant considerations, and at the behest of individuals not involved in the decision-making process under the governing statute, amount to a colorable exercise of power. Consequently, these proceedings are vitiated and are hereby quashed to the extent of the acquisition of the lands belonging to the petitioner. Accordingly, Point No. 5 is answered in favor of the petitioner.
68. There is no necessity to challenge the preliminary notification when the final notification was not issued within a reasonable time, more so when the preliminary notification stands lapsed by operation of law and cannot be legally enforced and given effect to the extent of the lands of the petitioners herein, morefully described in the sketch annexed to the joint memo.
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69. The petitioners and Respondent No. 4 have filed a joint memorandum stating that, during the pendency of these petitions, the Trial Court in OS No. 61/2005 decreed the suit, allotting a 1/4th share in all the suit schedule properties, including the subject land, among the four brothers. The Trial Court observed that the compensation amount is divisible among the four branches. The dispute between the petitioners and Respondent No. 4 has been amicably resolved. The partition suit is yet to be concluded, and the legal heirs of Respondent No. 5, along with other members of the joint family, have not challenged the acquisition and will not claim any further rights over the 1/4th share allocated to each of the petitioners in the subject land.
70. Consequently, the petitioners have no objection to quashing the acquisition concerning their 2/4th share of the subject land. Enclosed with the joint memorandum is a copy of the sketch demarcating the boundaries and dividing the land in question, which forms part of the memorandum.
71. Accordingly, I order the following:
ORDER
i) The petitions are allowed.
ii) The impugned final notification dated 30.10.1981 issued by the Respondent No.1 is quashed to the extent of 6 acres 31 guntas belonging to the petitioners in WP
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NC: 2024:KHC-D:10644 WP No. 71377 of 2012 C/W WP No. 60868 of 2011 No.71377/2012 and 6 acres 31 guntas belonging to the petitioner in WP No.60868/2011, as demarcated in the sketch annexed to the joint memo and the impugned notification to an extent of 13 acres 22 guntas demarcated in the sketch annexed to the joint memo, is hereby confirmed.
iii) The Revenue Authorities are hereby directed to delete the name of KIADB in the record of rights to the extent of land as demarcated in the sketch annexed to the joint memo filed on 24.6.2024 within four weeks from the date of receipt of certified copy of this order. Upon application submitted by the petitioners, the Revenue Authorities are directed to mutate the name of the petitioners in the revenue records, to the extent of land demarcated in the said sketch, in accordance with law.
In view of disposal of these writ petitions, pending I.As., if any do not survive for consideration.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE BKM