Karnataka High Court
Sri Shetti Umesh vs The State Of Karnataka on 18 December, 2023
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 30274 OF 2008 (LA-KIADB)
BETWEEN:
1. SRI SHETTI UMESH
S/O MADHUKAR,
AGED ABOUT 49 YEARS
2. SRI. SHETTI SHARASCHANDRA
S/O MADHUKAR
AGED ABOUT 47 YEARS
3. SHETTI RAJENDRA
S/O MADHUKAR
AGED ABOUT 45 YEARS
4. SMT. SHETTI SUMITHRA @ TARABAI
S/O MADHUKAR
AGED ABOUT 68 YEARS
5. SMT SHETTI VIJAYALAKSHMI
D/O MADHUKAR & W/O SRI.RAMESH
AGED ABOUT 51 YEARS
6. SMT. SHETTI USHA
D/O MADHUKAR
W/O GAJANAN SHETTI
AGED ABOUT 41 YEARS
7. SMT. SHETTI LENA
D/O MADHUKAR
W/O RAMANANT SHETTI,
AGED ABOUT 36 YEARS
ALL ARE R/AT
TARIHAL VILLAGE,
HOBLI & TALUK HUBLI
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DHARWAD DISTRICT AND
ARE REPRESENTED BY THEIR
GPA HOLDER,
SRI.SHETTI SHARASCHANDRA,
S/O MADHUKAR PETITIONER NO.2
...PETITIONERS
(BY SRI CHANDRAKANTH R. GOULAY, ADVOCATE FOR
SRI.SUNIL.S.DESAI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPT OF COMMERCE AND INDUSTRIES
M S BUILDING, VIDHANAVEEDHI,
BANGALORE-560001
2. M/S KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
BY ITS MANAGING DIRECTOR,
NRUPATHUNGA ROAD, BANGALORE-560001
3. THE SPECIAL LAND ACQUISITION OFFICER
M/S KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD, LAKKAMMANAHALLI
INDUSTRIAL AREA, PLOT NO.33/A,
P B ROAD, DHARWAD-580 004.
...RESPONDENTS
(BY SRI.SHIVAPRABHU.S.HIREMATH, AGA FOR R1;
SRI BASAVARAJ V.SABARAD, SENIOR COUNSEL FOR
SRI.P.N.HATTI, STANDING COUNSEL FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
PRELIMINARY NOTIFICATION DTD: 19.08.2006 AT ANNEXURE-
A, THE FINAL NOTIFICATION DTD: 06-10-2007 AT ANNEXURE-
C AND A COMMUNICATION DTD: 25.10.2007 AT ANNEXURE-D,
ISSUED BY 3RD RESPONDENT AND ETC.,
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THIS PETITION HAVING HEARD AND RESERVED FOR
ORDERS ON 26.09.2023 COMING ON FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned petition is filed by the land owners questioning the preliminary notification vide Annexure-A proposing to acquire the petition land and the consequent final notification vide Annexure-C issued by the respondent No.3.
2. The subject matter of the captioned petition is land bearing Sy.No.62/A, Block-2, measuring 24 acres 39 guntas. The respondent No.3 vide preliminary notification dated 19.08.2006 issued under Section 28(1) of the Karnataka Industrial Area Development Board Act, 1966 (for short 'the Act') proposed to acquire the petition land. The petitioners filed objections to the notification. The respondent No.3 issued final notification under Section 28(4) and thereby acquired the petition land. The petitioners grievance is that preliminary notification is found to be totally defective as the petition land is situated in Hubli Taluk and not in Dharwad Taluk and therefore, the petitioners claim that rectification, if any, has to be done 4 only by a fresh notification. The petitioners have also questioned the impugned preliminary and final notifications on the ground that the same runs contrary to the Circular issued by the State on 03.03.2007 wherein State has issued several directives not to acquire garden lands. The petitioners are also challenging the acquisition proceedings on the ground that the petition land is not properly valued. The petitioners however have contended that the objection raised cannot be taken as a consent for issuance of notification under Section 16(2). The petitioners grievance is that the respondent No.3-acquiring authority was not justified in assessing the value of the land at the rate of Rs.13,36,000/- per acre.
3. The grievance of the petitioners is that, though detailed objections are filed pursuant to issuance of preliminary notification, the acquiring authority has not properly considered the objections before proceeding to issue final notification. The petitioners claim is that respondent No.3-acquiring authority has not secured details of the lands and its NA potential for the purpose of 5 passing an award. The petitioners have also placed reliance on two valuation reports to substantiate their claim in regard to existence of plants, trees and herbs apart from existing structures which are also separately valued.
4. The respondent No.2-Board and respondent No.3-acquiring authority have filed statement of objections to counter the claim made by the petitioners in the captioned petition. Countering the claim of the petitioners that they were not properly heard and the objections were not considered by the respondent No.3, the contesting respondents claim that the objections tendered by the petitioners were dealt with and examined. The respondent No.2-Board has claimed that objections were personally and individually heard on 08.12.2006 and appropriate order is passed while rejecting the objections tendered by the petitioners and while over-ruling the objections tendered by the petitioners, the acquiring authority has notified that additional amount will be paid to the existing 6 structures of the acquired land by securing valuation report from the concerned authorities.
5. While examining the claim of the petitioners that the lands acquired are undervalued, the respondent No.2-Board has contended that the valuation arrived at Rs.13,36,000/- is in accordance with law and therefore, the objections in regard to the proper valuation of the acquired land cannot be entertained. While justifying the error that has crept in while issuing the preliminary notification in regard to the Taluka under which the acquired land is located, the respondent No.2-Board would contend that it is well within the authority of respondent No.2-Board to pass a resolution and rectify the mistake. The acquired land through oversight is notified as located in Dharwad Taluk instead of Hubli Taluk and the same is rectified by passing a resolution to that effect and therefore, contesting respondents have contended that no serious prejudice is caused to the petitioners/land owners.
6. The petitioners have filed a rejoinder and in the rejoinder, the petitioners have contended that the lands 7 though acquired, possession is not delivered and that petitioners are still in possession and enjoyment of the petition land and they are cultivating the same. The petitioners have also brought to the notice of this Court that interim order of stay granted on 31.07.2008 continues to operate. The petitioners have further stated that respondents have not taken any action to take possession. Placing reliance on Government Circular dated 03.03.2007, petitioners have reiterated and claimed that the land admittedly being a garden land could not have been acquired in terms of Circular dated 03.03.2007. The petitioners have further contended that though Circular was issued prior to preliminary notification, however, the Circular dated 03.03.2007 is much prior to issuance of final notification which is dated 06.10.2007. The petitioners have placed additional list of documents along with rejoinder to further substantiate their claim.
7. Learned counsel reiterating the grounds urged in the petition and rejoinder would vehemently argue and contend that the present preliminary notification and 8 consequent final notification is squarely hit by Circular issued by the Government dated 03.03.2007, wherein the Circular issued by the Commerce & Industries Department has laid down certain guidelines and acquiring authority is directed not to acquire the garden land. Reliance is placed on the judgment rendered by the Division Bench of this Court in W.A.No.2352/2014. Referring to the said judgment, learned counsel would contend that the judgment rendered by the Division Bench is squarely applicable to the present case on hand and therefore, the Circular dated 03.03.2007 issued by the State authority binds the respondents/authorities. He would seriously contest the claim of the Board that possession is already taken.
8. To counter the Board's claim in regard to possession, learned counsel for the petitioners has placed reliance on the additional documents produced along with rejoinder. Referring to the material on record, more particularly the objections tendered by the petitioners which is produced at Annexure-B, he would point out that 9 respondents have not taken possession and the land is not developed. He would further contend that the petition land continues to retain the character of agricultural land.
9. To buttress his arguments, he has placed reliance on the following judgments:
"1. Sri.Mallaiah Vs. State of Karnataka and others dated 23.08.2012 (Justice Abdul Nazeer) regarding Garden lands - WP No.6755/2012 (LA- KIADB).
2. The Barium Chemicals Ltd and another Vs. A.J.Rana and Others - AIR 1972SC 591.
3. D.Hemachandra Sagar and another Vs. State of Karnataka and others - 1999 (1) KLJ 510.
4. Hindustan Petroleum Corporation Ltd Vs. Darius Shapur Chenai and others - 2005 (7) SCC
627.
5. Mallegowda and others Vs. State of Karnataka, rep by its Secretary, Commerce & Industries Department and others - ILR 2010 KAR 4930.
6. Raghbir Singh Sehrawat Vs. State of Haryana & others - (2012) 1 SCC 792.
7. Karnataka Industrial Areas Development Board Vs. C.Kenchappa & others referred and considered - AIR 2006 SC 2038.
8. Smt.Rathnamma Vs. State of Karnataka & others - WP No.31702/2018 (L-KIADB) Dated:
29.11.2018.10
9. Sri.K.B.Lingaraju & anr Vs. State of Karnataka & Others - WP No.34318-322/2016 & 34323-326/2016 (LA-KIADB) Dated: 17.08.2017.
10. Dyavamma Vs. State of Karnataka - WP No.50791/2019."
10. Referring to the additional statement of objections as well as rejoinder, he would vehemently argue and contend that even in the record of rights, the name of the petitioners for the year 2004-05 till 2015-16 is shown. Referring to the revenue records, he would contend that the petitioners names are still found in the ownership column. No changes are effected in the revenue records inspite of acquisition. He would further contend that around 6,000 trees are situated in the petition land and 5 acres of land which is in the middle of the acquired land is cultivable wherein crops like jowar, chilli are grown. Reliance is also placed on additional documents which are produced at Annexures-I to VII.
11. Learned Senior Counsel while countering the petitioners claim referring to the averments made in the writ petition as well as objections tendered by the petitioners would point out that objections are not against 11 acquisition but petitioners are insisting for higher compensation. Learned Senior Counsel while referring to the objections tendered by the petitioners to the proposal to acquire petition land, would contend that it is the petitioners case that the land in question has got NA potential and the petitioners need the existing trees to be used as firewood for hotel business since petitioners own several lodgings. Referring to para 16 of the objections, learned Senior Counsel would point out that the petitioners are resisting the acquisition by contending that if acquisition of the petition land is not set aside, the petitioners business would be affected. He would also contend that the acquired land had got NA potential is also not disputed by the petitioners. Learned Senior Counsel referring to the material on record would also point out that the acquired land is abutting to the KIADB land.
12. While addressing his arguments in regard to the nature of acquired land, he would point out that the entire extent is not garden land. He has placed reliance on Annexure-R2 to indicate that entire extent is not 12 cultivable. While countering the petitioners claim in regard to possession, learned Senior Counsel would place reliance on Annexure-D to the writ petition and contend that notice was issued in Section 28(6) calling upon the petitioners to handover possession. Reliance is also placed by the learned Senior Counsel on Annexure-R6 to indicate that possession is taken on 11.12.2007.
13. Insofar as Circular dated 03.03.2007, he would point out that same is pursuant to notification and therefore, the Circular issued by the Government issuing guidelines not to acquire garden lands being prospective in nature has no application to the present case on hand. He would further contend that even otherwise, this Circular has no application as the entire extent is not garden land and the same is admitted by the petitioners in the objections tendered vide Annexure-B. Referring to the date of taking possession, learned Senior Counsel would bring to the notice of this Court that there is delay and laches on the part of the petitioners in not immediately approaching the Court. He would point out that the writ 13 petition is filed on 30.07.2008 and there is delay of 9 months.
14. Learned Senior Counsel countering the claim of the petitioners that they are in lawful possession has also placed reliance on the Mahazar which is preceded by notice under Section 28(6) which is produced by the petitioners at Annexure-D. Learned Senior Counsel bringing to the notice of this Court that on account of final notification issued under the Act, the acquired lands automatically vest with the Board and the fact that respondent No.2-Board's name is duly mutated to the revenue records, he would point out that the petitioners cannot assert possession. Reliance is also placed on column No.9 of the revenue records indicating that respondent No.2-Board's name is found in the cultivators column. Referring to the revenue records, learned Senior Counsel would also bring to the notice of this Court that these revenue records do not disclose any information. He would point out that the respondent No.2-Booard has 14 acquired about 231 acres of land and only petitioners have resisted the acquisition by filing the captioned petition.
15. Heard learned counsel appearing for the petitioners and learned Senior Counsel for the respondent- KIADB. I have also given my anxious consideration to the averments made in the petition, rejoinder, statement of objections filed by the contesting respondents and additional statement of objections. I have also given my anxious consideration to the judgments cited by both the parties.
16. On meticulous examination of the contentions raised by both the parties and also having examined the grounds urged in the petition, two points arise for consideration:
1) The petitioners are resisting the acquisition proceedings on the ground that there is a defect in the notification as location of the land is not properly described in the preliminary notification.
2) The second ground of objection is that petitioners have invested huge amount and have developed the lands 15 and therefore, are placing reliance on Circular issued by the Government dated 03.03.2007. The petitioners claim that garden land cannot be acquired for any developmental purpose and therefore, the impugned notification are sought to be quashed insofar as petition land is concerned.
17. Now let me examine the first ground of objections raised by the petitioners in the captioned petition. The petitioners contention is that in the preliminary notification, the land is notified as situated at Dharwad Taluk instead of Hubli Taluk. But, however, it is not in dispute that the village name is correctly notified in the preliminary notification. The respondent No.2-Board by resolution has rectified the Taluk as Hubli in place of Dharwad.
18. The object of notifying the proposal is to enable the land owners to object and apprise the acquiring authority and also to make out a case to drop the lands from the proposed acquisition. The right conferred on a citizen under Section 5(A) is a valuable right. It provides 16 an opportunity to an aggrieved citizen to represent to the Government about the injustice and inappropriateness of the steps proposed to be taken. In the present case on hand, the petitioners were notified and they have filed detailed objections before the competent authority. Therefore, what emerges is that it is not the case of the petitioners that on account of wrong description of the petition lands, they were not given a fair opportunity to contest and object the acquisition under Section 5(A) of the Land Acquisition Act. It is also not the case of the petitioners that on account of faulty newspaper publication, they were denied an opportunity of participating in the enquiry under Section 5(A). The fact that petitioners have filed detailed objections which is evident from Annexure-B to the petition, the petitioners contention that preliminary notification is found to be faulty as the land is shown to be situated in Dharwad Taluk instead of Hubli Taluk cannot be acceded to. If there is a proper enquiry and the grounds urged in the writ petition does not indicate that they were denied a fair 17 opportunity has not caused serious prejudice on account of mentioning wrong Taluk in the preliminary notification.
19. The next objection raised by the petitioners is that their objections were not properly considered and the investment and development made by the petitioners are also ignored by the acquiring authority and therefore, the impugned notifications are challenged. The petitioners are questioning the valuation made by the acquiring authority at Rs.13,36,000/- per acre. The petitioners claim that the value of the land as on the date of acquisition was Rs.21,00,000/- per acre. In the rejoinder and additional grounds, petitioners are also questioning on the ground that the same contravenes the Circular issued by the Government on 03.03.2007, wherein the State has issued certain directives not to acquire garden land. On reading the objections filed by the petitioners, their contention that the entire land is a garden land appears to be factually incorrect. The petitioners claim is that they have developed the land and the land in question has several trees.
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20. Now in the light of the objections raised by the petitioners, let me examine the State and its agencies right to acquire private property, more particularly, when the proposed land is acquired to form industrial areas and providing infrastructure in the industrial areas. The expression 'eminent domain' means the right inherent in every sovereign. The said expression provides that private property can be utilized for public purpose by adequately compensating the land owners. It is trite law that 'eminent domain' is an essential constituent and the authorities in support of the amplified definition of 'eminent domain' as the power of the sovereign to take property for public use without owners consent upon making just compensation.
21. It is equally trite law that in land acquisition matters, the authorities must exercise statutory discretion which should be based on reasonable ground. Vice of hostile discrimination vitiates land acquisition process which may warrant quashing including the notification for acquisition. The very object of compulsory acquisition is in 19 exercise of power of eminent domain by the State against the wishes or willingness of the owner or person interested in the land. Therefore, so long as public purpose subsist, the exercise of power of eminent domain cannot be questioned.
22. Industrial development, being a linchpin of economic growth, relies heavily on the strategic acquisition of land by the State. The establishment and growth of industries are intricately linked to job creation, technological innovation, and the overall prosperity of a nation. As such, the acquisition of land for industrial purposes becomes not merely an option but a compelling imperative for governments seeking to bolster their economic foundations. Moreover, the utilization of eminent domain for industrial development aligns with broader objectives of infrastructure enhancement. Industrial zones necessitate supportive infrastructure, and the acquisition of land facilitates the implementation of comprehensive development projects, including roads, power supply, and water facilities. This not only caters to 20 the specific needs of industries but also redounds to the benefit of the larger community through improved connectivity and civic amenities.
23. In the pursuit of industrial development, the acquisition of land is inextricably linked to job creation, addressing one of the most pressing socio-economic challenges. Industries, often labor-intensive, become crucibles of employment opportunities, directly impacting the livelihoods of individuals and contributing to the overall well-being of society. The state's assertion of eminent domain for industrial purposes thus resonates with the imperative to mitigate unemployment and elevate the standard of living.
24. It is incumbent upon the authorities to exercise this power judiciously, balancing the public interest with the rights of individual landowners. While land losers may object to the acquisition, the legal framework typically considers the greater good achieved through industrial development. The presence of trees, plants, or other natural elements on the land does not, in itself, constitute 21 an absolute objection, as the overarching objective is the advancement of public welfare through economic progress.
25. The respondent No.2-Board has in fact acquired 231 acres of land and the entire project is stalled in view of pendency of the captioned petition since the subject matter of the captioned petition measures 24 acres. It is borne out from the records that the project undertaken by the respondent No.2-Board is integrated and indivisible project. It is also borne out from the records that the proposed land which is now acquired is abutting to the KIADB land.
26. Though petitioner is seeking quashing of the proceedings, no material is placed on record to indicate that the procedure contemplated under Sections 4 and 6 is not complied. On reading of the grounds in the rejoinder, the material placed on record also does not indicate that mandatory requirements of Section 4(1) and Section 6 are violated. Judicial scrutiny often operates within a framework of limited review, emphasizing questions of law 22 rather than reevaluating factual determinations made by the executive during the acquisition proceedings.
27. The material placed on record by the petitioners does not indicate that respondent No.2-Board has committed any illegality which would warrant judicial review. In absence of any material indicating the legal malice, the impugned notifications proposing to acquire petitioners land cannot be interfered with. As rightly pointed out by the learned Senior Counsel, the notifications are questioned on the ground that the petitioners have invested huge amount and the lands are developed. On reading the objections at Annexure-B, this Court is more than satisfied that petitioners are aggrieved more by the compensation determined by the acquiring authority. More thrust is on the quantum determined by the acquiring authority. The objection to the preliminary notification also gives an indication that petitioners are into hotel business and they have admitted that major portion of income from hotel business is spent for development of the said land.
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28. It is equally trite law that once land is acquired, it vest with the State free from all encumbrances. Therefore, the petitioners claim that they are still in possession also cannot be acceded to.
29. For the reasons stated supra, I pass the following:
ORDER The writ petition is dismissed.
The pending interlocutory application, if any, does not survive for consideration and stands disposed of.
Sd/-
JUDGE CA