Karnataka High Court
Nirman Shelters Bangalore Pvt Ltd vs The State Of Karnataka on 18 January, 2022
Bench: Chief Justice, Suraj Govindaraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT APPEAL NO.45/2022 (LA-KIADB)
BETWEEN
NIRMAN SHELTERS BANGALORE PVT. LTD.,
NO.112, "SEAA TOWER", 1ST FLOOR
KAVI LAKSHMISHA ROAD
SAJAN RAO CIRCLE, V.V.PURAM
BANGALORE - 560 004
PRESENTLY AT:
NO.45-ANN, NISARGA LAYOUT
NEAR KOPPA GATE
BANNERGHATTA ROAD
BENGALURU - 560 083
REPRESENTED BY ITS
MANAGING DIRECTOR
SRI V.LAKSHMINARAYAN
..APPELLANT
(BY SRI S M CHANDRASHEKAR, SENIOR ADVOCATE FOR
SRI S KALYAN BASAVARAJ, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF INDUSTRIES AND COMMERCE
DR. B R AMBEDKAR VEEDI
VIKAS SOUDHA
2
BENGALURU - 560 001
REP. BY ADDITIONAL CHIEF SECRETARY
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
III & IV FLOORS, KHANIJA BHAVAN
RACE COURSE ROAD
BANGALORE - 560 001
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 - 560 001
...RESPONDENTS
(SRI PRABHULING K NAVADGI, ADVOCATE GENERAL A/W
SRI S S MAHENDRA, AGA FOR R-1;
SRI PRABHULING K. NAVADGI, SENIOR ADVOCATE FOR
SRI B.B.PATIL, ADVOCATE FOR CAVEATOR/R-2 & R-3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE IMPUGNED ORDER DATED 26.11.2021 PASSED BY THE
LEARNED SINGLE JUDGE IN W.P.NO.23581/2019 (LA-KIADB)
AND ALLOW THIS WRIT APPEAL AND ETC.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THROUGH VIDEO CONFERENCING THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:
3
JUDGMENT
Heard Mr.S.M.Chandrashekar, learned Senior Advocate for the appellant as well as learned Advocate General appearing for the respondents.
2. This intra-Court appeal has been filed challenging the impugned judgment and order passed by the learned Single Judge in Writ Petition No.23581/2019 whereby, the writ petition preferred by the appellant/petitioner has been dismissed.
3. Learned Senior Advocate for the appellant/petitioner submits that in the earlier round of litigation, the learned Single Judge, vide judgment and order dated 03.02.2014 passed in Writ Petition No.10650/2007 (LA- KIADB), had allowed the writ petition and the resolution of the Board dated 23.06.2007 was quashed and the matter was remitted back to the respondent to afford a hearing to the appellant/petitioner and thereafter to reconsider and proceed in terms of the resolution dated 30.01.2006. It is submitted that in the writ appeals preferred by the respondent No.3, the order passed by the writ Court was upheld and only a slight modification in the order was passed according to which, the 4 respondent was required to afford a hearing to the appellant/petitioner and thereafter to reconsider the matter on the basis of the decision that may be taken by the respondent after hearing the appellant/petitioner.
4. It is submitted by learned Senior Advocate for the appellant/petitioner that it was the Board of respondent No.3 which was authorised to take a decision pursuant to the directions issued by the Court in the earlier round of litigation. However, the matter was not placed before the Board and it was only the Chief Executive Officer of respondent No.3, on the basis of the alleged delegation of power, has taken the decision that deletion of the land in the present case is not possible as the possession of the said land has been taken and also allotment in the said land has been made.
5. The submission is that there was no specific delegation of power in favour of the Chief Executive Officer who has passed the order which was under challenge before the writ Court, moreover, there could be no delegation in this regard as it was the direction of the writ Court affirmed in the writ appeals that the Board had to take a decision and not any other person authorised by it. It is submitted that the learned 5 Single Judge has failed to consider this relevant aspect of the matter and has wrongly dismissed the writ petition preferred by the appellant/petitioner.
6. Learned Advocate General appearing for the respondents, on the other hand, submits that sub-section (g) of Section 14 of the Karnataka Industrial Areas Development Act, 1966 (for short "the KIAD Act") contemplates that the Board has the power to delegate any of its powers generally or specially to the Executive Member. Sub-section (i) of Section 14 of the KIAD Act contemplates to do such other things and perform such acts as it may think necessary or expedient for the proper conduct of its functions and the carrying into effect the purposes of the Act. It is submitted that the Chief Executive Officer was to act on behalf of the respondent No.3 and as such, the office order dated 14.06.2010 was issued in his favour by the Board in its meeting dated 25.01.2010. The power of the Board was delegated to the Chief Executive Officer and the Executive Member for authentication of the documents including to grant permissions, orders, decisions etc. The submission is that it was apparent that the Board has authorised its Chief Executive Officer and the Executive 6 Member to take a decision in the exercise of power conferred under sub-section (g) of Section 14 of the KIAD Act and as such, it cannot be said that the order impugned before the writ Court was without jurisdiction.
7. It is also submitted that in fact, the writ petition preferred by the appellant/petitioner was itself not maintainable in view of the fact that the proceedings for acquisition of the land in question were initiated on 19.04.1997. The acquisition proceedings were finalised on 27.04.2002. After the finalisation of the acquisition proceedings, the writ petitions challenging the acquisition were filed in the year 2003 which were dismissed. Thereafter, the writ appeals preferred before the Division Bench were also dismissed and thereafter, the Special Leave Petitions preferred before the Apex Court were also dismissed. It is submitted that the land in question was handed over to KIADB on 16.07.2002 and the KIADB had thereafter transferred the land in question to a third party. His submission is that after the finalisation of the acquisition proceedings, the writ petition preferred by the appellant/petitioner on the basis of some resolution passed by the Board or taking the plea that there 7 was some conflict in the provisions of the KIAD Act with respect to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was not maintainable.
8. In rejoinder to the aforesaid submissions of the learned Advocate General, the learned Senior Advocate for the appellant/petitioner submits that Section 4 of the KIAD Act clearly stipulates that the State Government may at any time, by notification, exclude from any industrial area, any area or include therein any additional area, as may be specified in such notification. The submission is that the State Government had absolute power to alter the land in question and reconvey it at any stage and the finalisation of the acquisition proceedings or transfer of the land in question would not have any effect. It is also submitted that in fact, the alleged delegation of power under sub-section (g) of Section 14 which has been relied by the respondent was not placed on record and the appellant/petitioner had not been given the opportunity to go through the same. The copy of the order giving power of delegation in favour of the Chief Executive Officer was shown to the Court and the same was 8 relied by the learned Single Judge. In this regard, it is also submitted that it was a general power of delegation and there was no specific delegation of power with respect to the land in question and as such, in view of the direction issued by the Court in the earlier round of litigation, the respondent could not rely on the general delegation of power and therefore, the order passed by the Chief Executive Officer rejecting the claim of the appellant/petitioner was wrong and illegal.
9. We have considered the submissions made by learned Senior Advocate for the appellant as well as learned Advocate General appearing for the respondents and gone through the record.
10. The learned Single Judge has considered in detail the order impugned which was challenged before the writ Court and has also taken into consideration the earlier direction issued by the writ Court which was modified in the writ appeals. The learned Single Judge has taken the view that the acquisition proceedings were concluded, the possession of the land in question was handed over to KIADB, the KIADB had created third party right/interest in the property in question and the land is not available to KIADB for 9 reconveyance. The learned Single Judge has also taken note of the fact that under sub-section (g) of Section 14 of the KIAD Act, the Board has been empowered to delegate any of its powers generally or specially to its Executive Members. Section 14 of the KIAD Act is reproduced below:
"14. General powers of the Board.- Subject to the provisions of the Act, the Board shall have power,-
(a) to acquire and hold such property, both movable and immovable as the Board may deem necessary for the performance of any of its activities and to lease, sell, exchange or otherwise transfer any property held by it on such conditions as may be deemed proper by the Board;
(b) to purchase by agreement or to take on lease or under any form of tenancy any land, to erect such buildings and to execute such other works as may be necessary for the purpose of carrying out its duties and functions;
(c) to provide or cause to be provided amenities, industrial infrastructural facilities amenity and common facilities in industrial areas and construct and maintain or cause to be maintained works and buildings therefor;
(d) to make available buildings on lease or sale or lease-cum-sale to industrialists or persons intending to start industrial undertakings;
(e) to construct buildings for the housing of the employees of industries;10
(f) (i) to allot to suitable persons premises or parts thereof including residential tenements in the industrial areas established or developed by the Board;
(ii) to modify or rescind such allotments, including the right and power to evict the allottees concerned on breach of any of the terms or conditions of their allotment;
(iii) to resume possession of premises or part thereof including residential tenements in the industrial area, or industrial estate in the manner provided in Section 34-B;
(g) to delegate any of its powers generally or specially to the Executive Member;
(h) to enter into and perform all such contracts as it may consider necessary or expedient for carrying out any of its functions; and
(i) to do such other things and perform such acts as it may think necessary or expedient for the proper conduct of its functions, and the carrying into effect the purposes of this Act."
11. A perusal of sub-section (g) of Section 14 of the KIAD Act clearly shows that the Board has right to delegate any of its powers generally or specially to its Executive Member including the Chief Executive Officer who is undisputedly an Executive Member. Sub-section (i) of Section 14 of the KIAD Act contemplates to do such other things and 11 perform such acts as it may think necessary for the proper conduct of its functions and the carrying into effect the purposes of the Act. As such, it is very much clear that there can be delegation of power by the Board to its Executive Member, and the Chief Executive Officer being the Executive Member of the Board was fully authorised to exercise that power of delegation given in his favour while performing the work of the Board and on its behalf.
12. So far as the contention of the learned Senior Advocate for the appellant/petitioner that in view of the direction issued by the writ Court, only the Board was authorised to act and there can be no delegation of power is concerned, suffice it to note that the Board will include its Officers including the Chief Executive Officer, and the Chief Executive Officer, in view of sub-section (g) of Section 14 of the KIAD Act, can very well act on behalf of the Board and as such, we do not find any force in the submission of the learned Senior Advocate for the appellant in this regard. Moreover, it is also to be noted that the appellant/petitioner had appeared before the Chief Executive Officer and the Executive Member on 30.12.2014 for the purpose of hearing 12 and in the said proceedings, he had not taken any such objection regarding the competence of the Chief Executive Officer, thereby accepted the delegation. It is, therefore, not permissible to the appellant now to raise this issue and further the litigation, which has been going on since 2012.
13. So far as the contention of the learned Senior Advocate for the appellant/petitioner that in view of Section 4 of the KIAD Act, the State Government had absolute power to exclude from any industrial area, any area or include therein any additional area, as may be specified in such notification and in view of Section 4, the State Government can reconvey the land in question is concerned, we are of the considered view that Section 4 of the KIAD Act empowers the State Government, by notification, to exclude any area of the land acquired or include therein any additional area that may have been specified in such notification at any time, but it does not mean that the same can be done particularly when the acquisition proceedings have been finalised and possession has been transferred and third party rights have been created. In the present case, the State Government had acquired the land for which the proceedings were finalised in the year 2002 13 and thereafter, the land was transferred to KIADB in the year 2002 and the KIADB in turn had thereafter transferred the land in question to a third party i.e., the industrial unit. Once the possession of the land has been handed over, there was no question of reconveyance of the same. The learned Single Judge has rightly taken the view that the acquisition proceedings are concluded, the possession of the land in question has been handed over to KIADB which in turn has created third party right in the property in question, as such, the said land is not available to KIADB for reconveyance.
14. We do not find any force in the contentions raised by learned Senior Advocate for the appellant and as such, the writ appeal is dismissed at the admission stage.
15. The pending interlocutory applications do not survive for consideration and are accordingly disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE bkv