Karnataka High Court
Smt. Dyavamma vs The State Of Karnataka on 11 December, 2020
Author: S R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.50771 OF 2019 (LA-KIADB)
BETWEEN:
SMT. DYAVAMMA
AGED ABOUT 72 YEARS
W/O YALAPPA, R/AT
NAGANAYAKANAHALLI
VILLAGE, CHANNARAYAPATANA
HOBLI, DEVANAHALLI TALUK
BENGALURU RURAL DIST. ... PETITIONER
(BY SRI. C. M. NAGABUSHANA, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF COMMERCE
AND INDUSTRIES, VIKASA SOUDHA
DR. AMBEDKAR ROAD
BENGALURU - 560 001
REP. BY ITS PRINCIPAL SECRETARY
2. KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
4TH AND 5TH FLOORS, EAST WING
KHANIJA BHAVAN, RACECOURSE ROAD
BENGALURU - 560 001
REP. BY ITS CHIEF EXECUTIVE OFFICER
3. THE SPECIAL LAND
ACQUISITION OFFICER-II
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
2
4TH AND 5TH FLOORS
EAST WING KHANIJA BHAVAN
RACECOURSE ROAD
BENGALURU - 560 001 ... RESPONDENTS
(BY SRI. A. C. BALARAJ, AGA FOR R1;
SRI. GOPAL V. BILLALMANE, ADV. FOR R2 AND R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH NOTIFICATION DATED 06.11.2014 ISSUED BY
THE R-1 UNDER SECTIONS 1(3), 3(1), 28(1) AT
ANNEXURE-A FINAL NOTIFICATION DATED 15.11.2018,
ANNEXURE-B ISSUED BY THE R-1 UNDER SECTION
28(4) IN SO FAR AS PETITIONERS SCHEDULE
PROPERTY CONCERNED AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
In this petition, petitioner seeks quashing of the impugned notifications at Annexure - A dated 06.11.2014 and final notification at Annexure - B dated 15.11.2018 and for other reliefs.
2. The material on record indicates that on 06.11.2014, the KIADB issued a notification under Section 3 (1) 1 (3) and 28 (1) of the Karnataka Industrial Areas Development Act, 1966 (for short 'the Act') declaring the area where the schedule 3 property i.e., the land bearing Sy.No.37/3 measuring 1 acre 11 guntas of Naganayakanahalli Village, Channarayapatana Hobli, Devanahalli Taluk, Bengaluru Rural District was situated as an industrial area and proposing to acquire the same for industrial purpose.
3. On 02.02.2015, the petitioner submitted detailed objections citing various reasons as to why schedule property should be dropped from the acquisition proceedings. It is the grievance of the petitioner that despite submitting the aforesaid detailed objections, the KIADB has not followed the mandatory procedure prescribed under Section 28 (2) and has proceeded to mechanically pass the order under Section 28 (3) of the Act followed by the final notification dated 15.11.2018. Accordingly, aggrieved by the impugned order and notification, petitioner is before this Court by way of the present petition.
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4. Learned counsel for the petitioner also invites my attention to the objections filed by the petitioner to the preliminary notification in order to contend that it was specifically stated by the petitioner that schedule property was being used by the petitioner and her family members for the purpose of grape garden. In this regard, the petitioner had sunk two borewells and land was being used for the aforesaid cultivation which was situated close to the house of the petitioner and her family members. She had also specifically contended that apart from schedule property, petitioner and her family members did not own and possess any other land and that the income derived from the grape garden was the only source of income for the petitioner and her family members for their livelihood and consequently, if the same were to be acquired, they would lose their only source of income for their livelihood resulting in great loss and hardship to them. It was also stated 5 in the objections that soil test has been conducted in respect of soil of the schedule property which indicated that the land was fertile for grape cultivation which was being grown. It was also stated that apart from the fact that water from the two borewells was being used for drinking as well as cultivation purposes, huge amounts of money as well as effort had gone into development of the schedule property and as such, if the schedule property was acquired, petitioner would be put to irreparable injury and hardship.
5. Learned counsel for the petitioner also invited my attention to the order under section 28 (3) passed by the KIADB in order to contend that a perusal of the same will indicate that despite aforesaid detailed objections submitted by the petitioner opposing acquisition of the schedule property the same had neither been considered nor referred to, before it was over ruled by the KIADB 6 in the report and in the order passed under Section 28 (3) of the Act.
6. In this context, reliance is placed by the co-ordinate bench of this Court in the case of Sri.H.M.Venkataswamy vs. the State of Karnataka and others in W.P.No.15514/2008 dated 21.06.2012 in order to contend that the scope and ambit of enquiry contemplated under Section 28 (2) and 28 (3) of the Act is similar and akin to an enquiry to Section 5-A of the Land Acquisition Act, 1894 which mandates that proper consideration of the objections of the land owner had to be conducted in the enquiry before passing any order.
7. It was submitted that a perusal of the order under Section 28 (3) will clearly indicate that despite the aforesaid detailed objections submitted by the petitioner, there was absolutely no application of mind of the KIADB before passing the impugned order and KIADB had mechanically over 7 ruled the objections without assigning cogent or valid reasons. It was therefore submitted that having regard to the aforesaid facts and circumstances and mandatory provisions contained in Sections 28 (2) and 28 (3) of the Act, the impugned order under the Section 28(3) and the impugned notification under Section 28 (4) of the Act deserves to be quashed. It is also submitted that having regard to the Government circular at Annexure-F dated 18.03.2013 exempting garden lands from acquisition by the KIADB, the schedule property which is also a garden land deserves to be dropped from acquisition proceedings.
8. Per contra, learned counsel for the KIADB while reiterating the averments made in the statement of objections submits that a perusal of the impugned order under Section 28 (3) passed by the KIADB clearly indicates that the objections of the petitioner had been carefully considered by the 8 KIADB before passing the said order. It was submitted that there was total application of mind by the KIADB before the order under Section 28 (3) of the Act was passed and the petitioner was given sufficient opportunity in this regard and consequently, the present petition is liable to be dismissed.
9. It is further submitted that when individual/private interest is pitted against larger public interest, it is well settled that larger public interest will be prevail and petitioner being owner of only a small extent of 1 acre 11 guntas of land, he cannot oppose acquisition proceedings, particularly, when compensation awarded by the KIADB would be sufficient to enable the petitioner to acquire land elsewhere for the purpose of grape garden. It is submitted that the order under Section 28 (3) is a speaking order and does not warrant interference by this Court.
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10. Learned counsel for the KIADB submits that in the absence of any reference to the State Government circular at Annexure-F dated 18.03.2013 under the provisions of KIADB Act or rules or regulations, no reliance can be placed upon said circular by the petitioner in order to contend that impugned order and notification are to be quashed. It is contended that at any rate, the said circular is not applicable to the schedule property which is not a garden land as defined under Section 2 (8) (c) (i) of the Karnataka Land Revenue Act, 1964. It is therefore submitted that there is no merit in the petition and the same is liable to be dismissed.
11. I have given anxious consideration to the rival submissions and perused the material on record.
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12. In so far as the contention urged on behalf of the learned counsel for the petitioner with regard to non application of mind by the KIADB before passing the impugned order under Section 28 (3) of the Act, the said question came up for consideration before this Court in Sri.H.M.Venkataswamy's case stated supra. In the said decision, this Court held as under:-
"It is clear that the petitioner has filed objections to the notice issued under Section 28(2) of the Act opposing the acquisition of the land in question. He has raised several grounds in his objections opposing the acquisition. The order at Annexure-G dated 26.11.2007 (item No.32) passed under Section 28 (3) of the Act by the 3rd respondent would clearly indicate that the 3rd respondent has not considered the objections except stating that the land is situated at the center of the proposed layout. Learned counsel for the petitioner has produced a sketch, which shows that the land is situated at the corner of the proposed layout. It is clear that the 3rd respondent has not applied his mind while passing the order.11
6. In THE BARIUM CHEMICALS LTD. AND ANOTHER Vs. A.J.RANA AND OTHERS - AIR 1972 SC 591, the Apex Court was considering the meaning of the word 'consider'. It has been held thus:
"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 - Permanent Edn: Vol.8-A to 'consider' means to thing with care. It is also mentioned that to 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 mind regarding the necessity to obtain and examine the documents in question in since qua non for the making of the order. If the impugned order were to show that there has been no careful 12 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."
7. This Court in the case of D.HEMACHANDRA SAGAR AND ANOTHER Vs. STATE OF KARNATAKA AND OTHERS - 1999 (1) KLJ 510 was considering the case relating to consideration of objections by the Bangalore Development Authority under Section17 (5) of the Act. It has been held as under:-
"A statutory Authority like BDA evolves its own procedure to consider the representations filed by the owners in respect of the proposed acquisition. There is no hard and fast rule that the Authority itself should consider each of the representations before making appropriate orders. However, it is settled that the consideration of the representation by any Authority should be in the manner recognised by law. 'Consideration of representation' postulates that the Authority concerned has thought over the matter by applying its mind to the relevant portion of the representations and may make its recommendation assigning reasons for 13 such recommendation. Mere extracting the nature of objections and his remarks without assigning reasons is no consideration at all."
8. The Apex Court in the case of HINDUSTAN PETROLEUM CORPN. LTD., Vs. DARIUS SHAPUR CHENAI AND OTHERS - 2005 (7) SCC 627, was considering the scope of Section 5-A of the Land Acquisition Act. It has been held as under:-
"The Land Acquisition Act is an expropriatory legislation. In such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300-A of the Constitution of India, the State in exercise of its power of 'eminent domain' may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefore must be paid."
It has been further held as under:-
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"The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also the purpose and in this regard ordinarily, the jurisdiction of the court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. The court in a case, where there has been total non- compliance or substantial non-compliance of the provisions of Section 5-A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub- section (3) of Section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision making process itself is in question, the power of judicial review can be exercised by the court in the event the order impugned suffers from well- known principles, viz., illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner."
9. For the reasons stated above, I am of the view that the order passed under Section 28 15 (3) of the Act and the final notification issued under Section 28 (4) of the Act at Annexure - C insofar as the petition schedule property is concerned requires to be quashed."
13. The aforesaid decision of this Court in H.M.Venkataswamy's case stated supra clearly indicates that before passing an order under Section 28 (3) of the Act, it is incumbent upon KIADB to apply its mind and pass a well reasoned and speaking order by assigning cogent and valid reasons, failing which the same would be voilative of principles of natural justice. It is equally well settled that any order which is unreasoned, non speaking, cryptic and without application of mind and also without considering the objections urged by the petitioner would be not only contrary to principles of natural justice but also voilative of mandatory requirements of Sections 28 (2) and 28 (3) of the Act and same would be vitiated on this ground alone.
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14. As rightly contended by the learned counsel for the petitioner, despite several reasons stated by the petitioner and other objections put forth by her opposing the acquisition, the KIADB has neither considered nor referred to or appreciated the same prior to passing impugned order under Section 28 (3) of the Act. Though KIADB has referred to statement of objections filed by the petitioner, the various contentions urged therein have neither been dealt with nor answered by the KIADB while passing order under Section 28 (3) wherein, KIADB merely stated that the schedule property was required for industrial purpose since adequate compensation would be awarded.
15. Under these circumstances, in the facts and circumstances of the instant case, in the light of non-speaking, cryptic and unreasoned order passed by the KIADB under Section 28 (3) of the Act without any application of mind, I am of the 17 view that the impugned order is arbitrary and illegal and being voilative to the principles of natural justice, the same deserves to be quashed on this ground alone.
16. In so far as contention urged on behalf of the petitioner placing reliance on the Government Circular at Annexure - F dated 18.03.2013, the same will have to be considered by the KIADB while reconsidering the claim of the petitioner afresh while passing order under Section 28 (3) of the Act.
17. In so far as the other contentions urged on behalf of the KIADB with regard to the merits of the claim put forth by the petitioner opposing the acquisition itself, the same need not be gone into in view of my finding above, that the impugned order under Section 28 (3) is voilative of principle of natural justice and matter deserves to be remitted back to the KIADB in terms of the decision of this Court in Sri.H.M.Venkataswamy's case without 18 expressing any opinion on the merits/demerits of any of the said contentions. In the result, I pass the following:-
ORDER
i) Petition is hereby allowed.
ii) The impugned order at Annexure - D dated 05.03.2018 and final notification at Annexure - B dated 15.11.2018 in so far as they relate to schedule property of the petitioner are hereby quashed.
iii) The matter is remitted back to KIADB to proceed further in the matter in relation to the schedule property from the stage of holding an enquiry under Section 28 (3) of the Act and proceed further strictly in accordance with Sections 28 (2) and 28 (3) of the Act and complete the same within a period of three months from the date of receipt of copy of this order.19
iv) It is needless to state that while reconsidering the objections/claims of the petitioner as stated supra, petitioner is at liberty to produce additional documents and respondents shall consider the same bearing in mind the State Government circular at Annexure - F dated 18.03.2013.
Sd/-
JUDGE MH/-