Karnataka High Court
Nirman Shelters Bangalore Pvt Ltd vs The State Of Karnataka on 26 November, 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26th DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.23581 OF 2019 (LA-KIADB)
BETWEEN:
NIRMAN SHELTERS BANGALORE PVT. LTD.
No.112, 'SEAA TOWER', 1ST FLOOR
KAVI LAKSHMISHA ROAD
SAJAN RAO CIRCLE, V.V.PURAM
BANGALORE - 560004
REPRESENTED BY ITS MANAGING DIRECTOR
SRI. V. LAKSHMINARAYAN
...PETITIONER
(BY SRI. S. M. CHANDRASHEKAR, SR. COUNSEL FOR
SRI. S. KALYAN BASAVARAJ, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF INDUSTRIES AND COMMERCE
DR. B. R. AMBEDKAR BEEDI
VIKAS SOUDHA
BANGALORE - 560001
REPRESENTED BY
ADDITIONAL CHIEF SECRETARY
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
III & IV FLOORS, KHANIJA BHAVAN
2
RACE COURSE ROAD
BANGALORE - 560001
REPRESENTED BY ITS CHIEF EXECUTIVE
OFFICER & EXECUTIVE MEMBER
3. THE SPECIAL LAND ACQUISITION OFFICER
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
KHANIJA BHAVAN, RACE COURSE ROAD
BANGALORE - 560001
... RESPONDENTS
(BY SMT. H. C. KAVITHA, HCGP FOR R1
SRI. PRABHULING K. NAVADAGI, SR. COUNSEL FOR
SRI. B. B. PATIL, ADV. FOR R2 & R3)
------
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER DATED 12.02.2019
PASSED BY R2 (ANNEXURE-A); DIRECT THE R2 TO DELETE
THE LANDS BEARING Sy.No.235(P) MEASURING 3 ACRES
20 GUNTAS, Sy.No.237(P) MEASURING 2 ACRES 26
GUNTAS, Sy.No.236(P) MEASURING 29 GUNTAS,
Sy.No.68/1(P) MEASURING 2 GUNTAS, IN ALL MEASURING
6 ACRES 37 GUNTAS INCLUDING KHARAB OF RAJAPURA
VILLAGE, JIGANI HOBLI, ANEKAL TALUK; AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.11.2021, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
The petitioner has filed a writ of certiorari quashing Annexure-A dated 21.2.2019 passed by respondent No.2-Karnataka Industrial Areas Development Board (KIADB).
2. Brief facts leading rise to filing of this petition are as under:
The petitioner was the owner of the lands Sy.No.68/1(p), 235(p), 236(p) and 237(p) of Rajapura Village, Jigini Hobli, Anekal Taluk, Bengaluru. The said lands were subject to acquisition proceedings under the preliminary notification dated 19.4.1997 issued under Section 28(1) of the Karnataka Industrial Area Development Act, 1966 (for short the KIAD Act) and final notification under Section 28(4) of the KIAD Act came to be issued on 24.7.2002. The said final notification was the subject matter for consideration in writ petition No.26821-824 of 2003 before this Court. 4 This Court dismissed the writ petition vide order dated 6.6.2003. The petitioner submitted a representation to respondent No.2 for reconveyance. Respondent No.2 placed the representation of the petitioner before the Board Meeting. The Board in its meeting held on 30.01.2006 passed a resolution stating that the request of the petitioner for re-conveyance be recommended to the Government subject to conditions. Respondent No.2 passed one more resolution dated 24.5.2007 withdrawing the resolution dated 30.1.2006. The petitioner being aggrieved by the resolution dated 24.5.2007 preferred a writ petition in W.P.No.10650 of 2007. This Court vide order dated 3.2.2014 allowed the aforesaid writ petition and quashed the resolution dated 24.5.2007 and liberty was reserved to respondent No.2 to take action after affording an opportunity of hearing to the petitioner. Respondent No.2 aggrieved by the order 5 passed in the aforesaid writ petition preferred a writ appeal in W.A.No.1610 and 1756 of 2014. The Division Bench modified the order passed in the aforesaid writ petition. Pursuant to the order passed in the writ appeal, the petitioner was called for hearing on 30.12.2014 vide notice dated 21.11.2014.
The executive members of respondent No.2 having heard the matter, rejected the request of the petitioner to reconvey vide order dated 21.2.2019. Hence, the petitioner aggrieved by the order dated 21.2.2019 has filed this writ petition.
2.1. Respondent No.2 has filed statement of objections contending that the writ petition filed by the petitioner is not maintainable either in law or facts. It is contended that the land of the petitioner was acquired by due process of law. It is further contended that the petitioner has called in question the acquisition proceedings in W.P.No.26821- 6 284/2003. The said writ petition came to be dismissed upholding the acquisition proceedings and the said order was confirmed by the Hon'ble Supreme Court. The said proceedings has attained finality. It is further contended that respondent No.2 has taken possession of land in terms of the mahazar drawn on 3.7.2002 and possession of lands were handed over to the Board and further contended that the Special Land Acquisition Officer of KIADB passed a general award. It is further contended that in terms of Section 28(5) of the KIAD Act 1966 with the issuance of notification under Section 28(4) of the aforesaid Act, the lands stand vested in the State free of all encumbrances by operation of law. It is also contended that the acquisition proceedings have been concluded and the petitioner has no right in seeking for re-conveyance of the lands by virtue of the Board of resolution dated 30.1.2006. It is contended that the said resolution 7 has been withdrawn in the meeting held on 24.5.2007. It is also contended that as per the directions issued by this Court, the petitioner was heard and respondent No.2 after hearing the petitioner has issued the impugned endorsement. It is contended that there are no grounds to entertain the writ petition. Hence, prayed to dismiss the writ petition.
3. Heard learned Senior Counsel Sri S.M.Chandrashekar for petitioner and Sri Prabhuling Navadagi, learned Senior Counsel for respondent Nos. 2 and 3 and learned HCGP for respondent No.1.
4. Learned senior counsel for the petitioner submits that the petitioner aggrieved by the resolution dated 24.5.2007 filed a writ petition in W.P.No.10650/2007 and this Court vide order dated 3.2.2014 allowed the writ petition, quashed the 8 resolution dated 24.5.2007 and remitted the matter to the respondent-Board to afford a hearing to the petitioner and thereafter to reconsider the same. He further submits that the resolution dated 30.1.2006 was not quashed. He further submits that respondent No.2 on the basis of the opinion furnished by the Advocate General has passed the impugned order without applying its mind. He further submits that the petitioner has applied for re-conveyance of land in question by executing the sale deed in favour of the petitioner. The Board passed a resolution on 30.1.2006 resolving to recommend to the Government for re-conveyance subject to conditions. He further submits that the impugned order is passed by the Chief Executive Officer is without jurisdiction. He further submits that the Board has jurisdiction to pass order. He further submits that the writ petition 9 be allowed, matter be remitted to the Board to reconsider the request of the petitioner for reconveyance. He further submit that the petitioner has formed a layout and sold it to the third party and the third party right is created and he further submits that the petitioner is in possession of the land in question. He further submits that respondent No.2 has passed the order contrary to the order passed in the aforesaid writ petition. Hence, on these grounds he prays to allow the writ petition.
5. Per contra, learned Senior counsel Sri Prabhuling Navadagi for respondents No.2 and 3 submits that land owner's son filed a writ petition in W.P.No.14391/2006 challenging the acquisition proceeding. The said writ petition came to be dismissed upholding the acquisition proceedings. He further submits that the said order was confirmed by the Hon'ble Apex Court in the SLP. He further submits 10 that the SLAO has already acquired and possession of the land was taken under mahazar. He further submits that possession of the land was handed over to the KIADB and third party right is created by KIADB. He further submits that there is no provision under the KIAD Act for reconveyance and no power is vested with the Board for reconveyance. He further submits that the Board has authorised the Chief Executive Officer to authenticate all permissions, orders, decision etc. under Section 14 of KIAD Act vide office order dated 14.6.2010. He submits that the Chief Executive Officer was justified in passing the impugned order. He further places reliance on the judgment of the Hon'ble Apex Court in the case of BENGALURU DEVELOPMENT AUTHORITY AND OTHERS V. R.HANUMAIAH AND OTHERS reported in (2005)12 SCC 508 and also the judgment of the Hon'ble Apex Court in the case of MYSORE URBAN 11 DEVELOPMENT AUTHORITY BY ITS COMMISSIONER V. VEER KUMAR JAIN AND OTHERS reported in (2010) 5 SCC 791. Hence, on these grounds he prays to dismiss the writ petition.
6. Perused the records and considered the submissions made by learned counsel for the parties.
7. Respondent No.3 issued a preliminary notification under Section 3(1), (1e) and Section 28(1) of the KIAD Act and issued final notification under Section 28(4) of the KIAD Act in respect of the land in question. The acquisition proceedings were called in question in the writ petition in W.P.No.26821-284/2003. This Court dismissed the writ petition upholding the acquisition proceedings vide order dated 6.6.2003. The original land owners challenged the acquisition proceedings through GPA holder i.e. the son of the petitioner in 12 W.P.No.12970/2006 challenging the preliminary and final notifications. This Court dismissed the writ petition vide order dated 2.7.2010 upholding the acquisition proceedings in respect of the schedule property. The petitioner filed a review petition in R.P.No.286/2010 and 287/2010 before the Co- ordinate Bench. The Co-ordinate Bench heard the matter in Review Petition and dismissed the petitions vide order dated 11.8.2010. The original land owners through GPA holder filed a writ appeal in W.A.No.3202-206/2010 before the Division Bench. The Division Bench dismissed the writ appeal vide order dated 20.11.2012. The original land owners aggrieved by the orders passed in the writ petition and confirmed in the writ appeal, preferred SLP before the Hon'ble Apex Court in SLP No.27380-397/2013. The Hon'ble Apex Court vide order dated 13.1.2017 dismissed the SLP upholding the acquisition 13 proceedings. The said acquisition proceedings has attained finality.
8. The petitioner being aggrieved by the acquisition proceedings has filed W.P.No.9656/2017 challenging the acquisition proceedings on different grounds. The petitioner has withdrawn the aforesaid writ petition with a liberty to challenge the acquisition proceedings, if need arises.
9. It is the case of the petitioner that the Board has passed a resolution dated 30.1.2006 in its meeting and resolved that the request for reconveyance be recommended to the Government in view of the special link of 18 meters road and give up the land falling in the proposed area of the industrial estate and in view of the same, the Board can compensate with the proportionate land on the southern side of the road of plot No.273. The 14 petitioner filed a writ petition in W.P.No.11822/2006 for implementation of the resolution dated 30.1.2006. In the meantime, the petitioner filed a review of the order dated 6.6.2003 passed in W.P.No.26821- 284/2003. Respondent No.3 passed an award which was approved by the State on 6.12.2006. Respondent No.2-Board passed one more resolution dated 24.5.2007 in its meeting withdrawing the resolution dated 30.1.2006 which was communicated to the petitioner vide letter dated 23.6.2007.
10. The petitioner on the basis of the resolution dated 30.1.2006 is seeking for reconveyance. There is no provision in the Act and the Rules framed thereunder enabling the KIADB to reconvey the land acquired to implement a Scheme for forming of industrial sites. In the absence of any provision in the Act or Rules framed thereunder authorising the Board- KIADB to reconvey the land in favour of the petitioner, 15 the Board cannot be compelled to reconvey the land in question on the ground that it had promised to do so. The rule of promissory estoppel cannot be availed to permit or to condone a breach of law. It cannot be invoked to compel the Board to do an Act prohibited by law. It would be going against the Statute. The principle of promissory estoppel would under the circumstances cannot be applicable to the case in hand.
11. It is well settled that there cannot be estoppel against a Statute. In TISCO Ltd. V. STATE OF JHARKHAND reported in (2005) 4 SCC 272, the Hon'ble Apex Court in paragraphs 53 and 54 has observed thus :
"53 This is not a case where the appellant altered its position pursuant to or in furtherance of a promise made to it by the State. The doctrine of promissory estoppel, therefore is not applicable. It is 16 not even a case where the doctrine of legitimate expectation could be invoked.
54. We however are not oblivious that the doctrine of promissory estoppel would be applicable where a representation has been made by the State in the exercise of its power to exempt or abolish a commodity as taxable commodity. Such promise, however, must be made by the persons who have the power to implement the representation".
12. Merely on the basis of the resolution passed by the Board, the Board has no authority to reconvey. The learned Senior counsel for the petitioner has not been able to place reliance on any of the provisions in the Act or on the Rules framed thereunder which enables the Board to reconvey the land. Thus the arguments advanced by the learned Senior counsel for the petitioner that on the basis of 17 the resolution the petitioner has got a right to seek for reconveyance cannot be accepted.
13. The learned Senior counsel submits that the impugned order is passed by the Chief Executive Officer and Executive Member of the Board. He further submits that that the Chief Executive Officer has no jurisdiction to pass the impugned order and it is only the Board which has jurisdiction to pass an order. He further submits that Board has not authorised the Chief Executive Officer to pass the impugned order. In support of his contention he has placed reliance on the judgment of this Court in ABHAYA TECHNOLOGIES PVT. LTD. V. STATE OF KARNATAKA reported in 2012 (3) Kar. L.J. 169.
14. In order to consider the contention of the learned counsel for the petitioner, it is necessary to consider Section 14 of the KIAD Act which reads as under :
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"14. General powers of the Board.
- Subject to the provisions of the Act, the Board shall have the power, -
(a) to (f) xxxx
(g) to delegate any of its powers generally or specially to the Executive Member;
i) to do any such other things and perform such acts as it may think necessary and expedient for the proper conduct of its functions, and the carrying into effect the purpose of this Act.
Section 14(g) of the KIAD Act contemplates that the Board has power to delegate any of its powers generally or specially to the Executive Member. Section 14(i) of the KIAD Act contemplates to do such any other things, perform such acts as it may think necessary for the proper conduct of its function and the carrying into effect the purpose of this Act.
15. Respondents No.2 and 3 have produced the office order dated 14.6.2010. The Board in its meeting held on 25.1.2010 decided to delegate the powers to 19 the Chief Executive Officer and the Executive Member, KIADB, the Authorised Officers of the KIADB, for authentication of documents including to grant permissions, orders, decisions etc. From the perusal of the office order, it is apparent that the Board has authorised the Chief Executive Officer and Executive Member to take a decision in the exercise of the power conferred under Section 14(g) of the KIAD Act. The Chief Executive Officer was justified in passing the impugned order. Thus the contention of the learned counsel for the petitioner cannot be accepted.
16. The acquisition proceedings are concluded. Possession of land in question was handed over to KIADB. KIADB had created third party right/ interest in the property in question. The said land is not available to KIADB for reconveyance.
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In view of the above discussion, I do not find any grounds to entertain the writ petition. Accordingly, the writ petition is dismissed.
SD/-
JUDGE rs