Karnataka High Court
Irappa S/O. Yallappa Yankanchi vs The State Of Karnataka on 2 March, 2017
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
WRIT PETITION Nos.75645-75654/2013 (LA-KIADB)
BETWEEN
1. IRAPPA S/O. YALLAPPA YANKANCHI
AGE: 56 YEARS, OCC: AGRICULTURE
R/O. ACHANUR, TQ & DIST: BAGALKOT
2. CHANDRASHEKHARAYYA S/O. BASAYYA VASTRAD
AGE: 90 YEARS, OCC: AGRICULTURE
R/O. ACHANUR, TQ & DIST: BAGALKOT
3. GIRIYAPPA S/O. ADIVEPPA SANGONDI
AGE: 66 YEARS, OCC: AGRICULTURE
R/O. ACHANUR, TQ & DIST: BAGALKOT
4. MAHADEVAPPA S/O. GIRIYAPPA BARKER
AGE: 48 YEARS, OCC: AGRICULTURE
R/O. ACHANUR, TQ & DIST: BAGALKOT
5. MALLAPPA GIRIYAPPA BARKER
AGE: 35 YEARS, OCC: AGRICULTURE
R/O. ACHANUR, TQ & DIST: BAGALKOT
6. IRAYYA S/O. RACHAYYA BIDARIKOTIMATH
AGE: 48 YEARS, OCC: AGRICULTURE
R/O. ACHANUR, TQ & DIST: BAGALKOT
7. NINGAPPA GIRIYAPPA CHOUDAKI
AGE: 70 YEARS, OCC: AGRICULTURE
R/O. ACHANUR, TQ & DIST: BAGALKOT
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8. PACHCHESAB S/O. LALSAB AGASAR
AGE: 30 YEARS, OCC: AGRICULTURE
R/O. ACHANUR, TQ & DIST: BAGALKOT
9. CHANABASAYYA SIDDAYYA HIREMATH
AGE: 46 YEARS, OCC: AGRICULTURE
R/O. ACHANUR, TQ & DIST: BAGALKOT
...PETITIONERS
(BY SHRI S.B. HEBBALLI, ADVOCATE)
And:
1. THE STATE OF KARNATAKA
R/BY THE SECRETARY
COMMERCE AND INDUSTRIAL DEPARTMENT
M.S. BUILDING, BANGALORE
2. THE SPECIAL LAND ACQUISITION OFFICER
KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD
LAKAMANAHALLI, DHARWAD
3. NK UTILITIES LTD.,
NO.2, 1ST MAIN, IST CROSS, RMV II STAGE,
DOLLARS COLONY BANGALORE
R/BY ITS MANAGING DIRECTOR
...RESPONDENTS
(BY SHRI K. VIDYAVATHI, AGA FOR R1;
SRI SHASHANK HEGDE, ADVOCATE FOR R2;
SRI HARIKRISHNA HOLLA, ADVOCATE. FOR R-3)
THESE WRIT PETITIONS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO I.
QUASH THE IMPUGNED GOVERNMENT ORDER
DATED:18/06/2010 ISSUED BY RESPONDENTN O.1, IN SO FAR
AS PETITIONERS ARE CONCERNED, A COPY OF WHICH IS
PRODUCED HEREIN AS PER ANNEXURE-N. II. QUASH THE
IMPUGNED NOTIFICATION DATED:05/07/2011 ISSUED UNDER
SECTION 1(3) OF THE ACT BY THE RESPONDENT NO.1, IN SO
FAR AS PETITIONERS ARE CONCERNED, A COPY OF WHICH IS
PRODUCED HEREIN AS PER ANNEXURE-K. III. QUASH THE
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IMPUGNED NOTIFICATION DATED:05/07/2011 UNDER SECTION
3(1) OF THE ACT BY THE RESPONDENT NO.1, IN SO FAR AS
PETITIONER ARE CONCERNED, A COPY OF WHICH IS
PRODUCED HEREIN AS PER ANNEXURE-L. IV. QUASH THE
IMPUGNED NOTIFICATION DATED:05/07/2011 ISSUED UNDER
SECTION 28(1) OF THE ACT BY RESPONDENT NO.1 IN SO FAR
AS PETITIONERS ARE CONCERNED, COPY OF WHICH ARE
PRODUCED HEREIN AS PER ANNEXURE-M. V. QUASH THE
IMPUGNED FINAL NOTIFICATION DATED:10/09/2012 ISSUED
UNDER SECTION 28(4) OF THE ACT BY RESPONDENT NO.1 IN
SO FAR AS PETITIONER ARE CONCERNED COPY OF WHICH ARE
PRODUCED HEREIN AS PER ANNEXURE-R.
THESE WRIT PETITIONS COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners state that they are residents of Achanur village in Bagalkot Taluk and District and they are agriculturists. The State of Karnataka proposed to acquire 63 acres 5 guntas of agricultural land under the provisions of Karnataka Industrial Area Development Board Act, hereinafter referred to as `the Act' for short. In the notification issued by the Government, the land belonging to the petitioners is also notified. Being aggrieved by the same, they have preferred these writ petitions.
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2. Notifications under Section 1(3) and 3(1) of the Act have been issued. The land was acquired for the purpose of establishment of 300 MW Coal based Power Plant by the respondent No.3 company. It is stated, under Section 3(1) of the Act, the State Government must declare an industrial area by issuing notification. Under Section 28(1) of the Act, the Government initially has to form its opinion for the requirement of the land for the public purpose for development by the Board or for any other public purpose in furtherance of the object of the Act. As long as notification u/s 3(1) has not been issued, it is a legal presumption that the government has not formed an opinion for requirement of the land for the purpose of public and also for the purpose of Board for furtherance of industrial activities. Unless and until notifications are issued with prior opinion of the government declaring an area as industrial area, proceeding with the acquisition is null and void. Initially the government initiated proceedings for 5 acquisition of land for respondent No.3 at Kagalagomba village at Bagalkot Village and thereafter it has been shifted to Achanal village of Bagalkot Taluk at the request of the third respondent. Shifting from one place to another place it is only at the instance of respondent No.3 and in the opinion of the government, it was not required. This itself shows non-application of mind by the Government. The impugned action of the respondents is to be set aside on the ground of non- application of mind. In the absence of opinion formed for declaration of an area as industrial area, further act of the respondents in issuing the notification for acquisition is to be held as bad in law. The petitioners have made representations to the respondents stating that they are agriculturists for generation. If it is acquired in contravention of the provisions of the Act, it is nothing but deprival of their right to life. On these grounds, the learned counsel for the petitioners submit 6 to allow these petitions and set aside the acquisition proceedings.
3. Though the petitioners have submitted representations, the representations have not been considered and board has not forwarded them to the Government. Hence non-consideration of the representation is violation of sub-section (3) of Section
28. The recommendation of the Board to the Government u/s 28(4) of the Act along with objections for consideration of the Government and in turn the Government also not considered the objections of the petitioners and also the impugned action of the SLAO in non consideration of the objections is not proper. Hence it is submitted, action of the respondents is in violation of Section 28(2), (3) and (4) of the Act. Initially the government has to declare area as an industrial area and thereafter it shall express its opinion that notification for acquiring the land for the purpose of the 7 Board and it shall not permit for acquiring by a particular company. The impugned action of the respondents is contrary to Section 28 of the Act.
4. In support of his submission, the learned counsel referred to judgment reported in ILR 2012 KAR 4691 (Haribhau Siddapa Patil & Others vs., The State of Karnataka, Represented. by its Secretary & Others), in which the acquisition made for the benefit of private society for industrial purpose has been held as in contravention of Section 28 of the KIADB Act and it further held that concept of public purpose is not the same as private project for the benefit of private society and the judgment referred by the petitioners, it is submitted was taken to Supreme Court in SLP 35287- 35288/2012 by the respondent society and the Hon'ble Supreme Court has dismissed the SLPs. It is also referred to the judgment of this Court and submitted that in all those cases, it has been held that the purpose 8 for acquisition should be public purpose and any contravention of the purpose for private company, it is bad in law.
5. In (2013) 2 KCCR 1108 (Kakaral Ravikumar, Koppa & Others vs., The State of Karnataka, represented. by its Commissioner for Industries Development & Director of Commerce & Industries, Bangalore), it has been held that the Act, it can only be for the purpose of developing of the said lands as an industrial area and by the Board and for the benefit of private industrial area or company particularly as the notices are issued under sections 3(1) and 1(3) and 28 of the Act and the said lands are notified for acquisition for the purpose of board and when once it is so, cannot be diverted for private industry.
6. The respondent No.3 beneficiary filed statement of objections. It is submitted that he made request to the respondents 1 & 2 Government expressing its 9 intention to establish Coal Base 300 MW Power Project at Achanal village of Bagalkot Taluk and the respondent No.2 Board has issued notifications dated 05.07.2011 under the provisions of 1(3) and 3(1) and 28(1) of the Act. The Government also issued notification u/s 109 of the Karnataka Land Revenue Act empowering the third respondent to purchase directly from the land owners. Accordingly, it has procured 170 and odd acres and remaining land for an extent of 63 acres for which notification has been issued directing the Board to acquire the land. In the circumstances, the acquisition made by issuance of notification u/s 109 of KLR Act and also under the provisions of the Act, no errors have been committed and petitions are to be dismissed.
7. It has also relied upon the judgment reported in 1997 KLJ 410 (N Somashekar & others v. State of Karnataka & others). The respondents also considered the case of the third respondent for establishment of 10 Coal Base Company for meeting the need of power in the State and lack of power generation. The third respondent purchased the land from the land-owners only after issuance of notification under Section 109 of the KLR Act. Section 28 of the KIADB Act permits for acquisition of land for private company for the public purpose. In the circumstances, there is no violation of provisions Section 28 of the Act. It is further submitted, they have invested huge amount for the establishment of the power plant and even followed the order of the State Government dated 18.6.2010 and such other conditions imposed by the State Government. Thus they pray for dismissal of the writ petitions.
8.The respondent No.2 KIADB filed statement of objections. It is submitted that acquisition proceedings were initiated by the Board for the benefit of respondent No.3 by issuing notifications under Sections 3(1), 1(3) and 28(1) dated 5.7.2011. The whole proceedings has 11 been stalled at the instance of the petitioners who are claimed to be the owners of only 63 acres.
9. The respondent No.1 Government of Karnataka also filed statement of objections. The learned Government Advocate submits to dismiss these petitions since the petitioners have not satisfied this Court for exercise of discretionary power under Article 226 of the Constitution. The petitioners have filed application for enhancement of compensation under Section 18(1) of the Land Acquisition Act. When application is filed for enhancement of compensation, it is not appropriate for them to question the notifications. It is further stated that the State of Karnataka has enacted legislation called Karnataka Industries (Facilitation) Act, 2002 with avowed purpose to industrial development to simplify the requirement from time to time. Section 3 of the Act provides for constituting the State High level Single Clearance 12 Committee and Section 9 of the above mentioned Act provides for constituting State High level Single Clearance Committee for examining and considering the proposals received from the entrepreneurs. The State High Level Committee above Rs.50 crores whereas the District Clearance Committee considers the project involving of Rs.3 crores and Rule 5 of the Karnataka Industries (Facilitation) Rules, 2003 the District Level Clearance Committee consists of 19 members including several senior officers of Forest Department, the Deputy Commissioner for the purpose of consideration of application filed as one by the respondent No.3.
10. The Respondent No.3 had approached Karnataka Udyog Mitra under the provisions of Karnataka Industries (Facilitation) Act, 2002 for setting up of thermal power station. Therefore, rightly sites were identified at Bagalkot District by Respondent No.3 and it had sought totally 500 acres. Application of the 13 third respondent has been considered under the Facilitation Act, 2002 and Government has approved the project of respondent No.3 in the 16th State High Level Clearance Committee Meeting to establish 300 MW Coal Base Project by its proceedings dated 19.11.2008. Hence the learned counsel submitted that as it is alleged by the petitioners, it is not true that the respondents have not applied their mind in expressing its opinion for the purpose of establishing company for acquisition of land for respondent No.3. The third respondent approached the State Government for issuance of notification under Section 109 of Karnataka Land Reforms Act, 1971. The third respondent was permitted to acquire certain land. Majority of the villagers voluntarily sold their land and they have accepted. When such being the case, these petitioners who are owners of 63 acres raised these petitions which are liable to be dismissed. Accordingly, the same may be dismissed.
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11. In challenging the action of the Government for issuance of notification u/s 3(1), 1(3) it is submitted that the petitioners have no locus standi to challenge. If at all, they are aggrieved, only entrepreneurs could have challenged. On this ground alone the petitions are liable to be dismissed. The respondent has relied upon decision in (1997) 7 SCC 410 (N Somashekar vs., STate of Karnataka) and the decision of the Hon'ble Supreme Court in (2006) 7 SCC 578 (P Narayanappa & another vs., State of Karnataka & others).
12. It is further submitted that Section 3(za) of the Right to Fair Compensation, Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013 hereinafter referred to as 2013 Act which defines the public purpose activities as specified in sub-section (1) of Section 2. Sub-Section (1) defines that to refer sub- clause (2) of sub-clause (b) to Section 2 which defines that projects involving agro-processing, supply of 15 inputs to agriculture, warehousing, cold storage facilities, marketing infrastructure for agriculture and allied activities such as dairy, fisheries, and meat processing, set up or owned by appropriate government or by farmers' cooperative or by an institution set up under a statute. Sub-Section (2) of Section 2 of clause
(b) that for private companies for public purpose as defined in sub-section (1). Sub-Section 3 of Section 2(b) of the Act provides, private companies, the prior consent of at least eighty per cent of those affected families, as defined in sub-clauses (I) and (v) of clause (c) of Section 3; By referring all these provisions under the new Act, the learned Government Advocate submits that what is public purpose has been elaborated in the new Act to include the activities of the third respondent who sought to produce electricity for the State, which benefits to the public at large and accordingly activity is one of public purpose. Hence the learned government advocate sought to dismiss these petitions. 16
13. I have heard the respective parties.
14. On the basis of submissions made by the respective parties the facts are clear. The third respondent made an application under the Industrial Facilitation Act, 2002 for establishment of Power Generation Unit and he also requested the Government to allot about 500 acres of land. The Government instead of permitting the third respondent to acquire or purchase for about 500 acres, it has allowed the third respondent to purchase 170 acres 19 guntas u/s 109 of the Karnataka Land Revenue Act. The respondent No. 1 applied its mind for the purpose of acquisition. The notification issued under the provisions of the Karnataka Industrial Area Development Act the object of which is to establish and encourage industrial activities in the State which is social beneficial Act for the purpose of industrialization. First applicability of the entire Act for which the notification is to be made u/s 17 3(1) of the Act. Under Section 3(1) of the Act State government has to notify and declare the area as an industrial area, thereafter acquisition has to be made for the purpose of Board. In the instant case, the enabling provision for acquisition of land, two provisions namely Section 3 & Section 28 of the Act. As it is submitted by the petitioners, unless notification is made u/s 3 of the Act for declaring the area as an industrial area, notification shall not be issued for the purpose of acquisition. There are two aspects which are to be kept in mind, one is when the acquisition is for the Board for the purpose of allotment then also Section 3 notification has to be issued declaring the area as industrial area and thereafter notification has to be issued under section 28 for the purpose of calling for acquisition for the benefit of the Board and in turn the Board is supposed to allot the land for the beneficiary. In the instant case, acquisition was not made for the benefit of the Board. Acquisition was sought to be made about 63 18 acres by the Board for the benefit of the third respondent since he had applied under the provisions of Industrial Facilitation Act, 2002. Facilitation Act, 2002 enable the industrial entrepreneurs to submit application under the Karnataka Udyog Mitra and their project report submitted by them has to be processed by the committee constituted under the Act. In the instant case, the Committee processed the same. But for the purpose of acquisition of land, KIADB Act is an enabling Act. The process of application made by the third respondent and issuance of notification u/s 28(1)(2), (3) and (4) itself demonstrates that the government has applied its mind for the purpose of issuance of notification for acquisition of the said land. But the question whether the government has applied its mind for the purpose of issuance of notification. In order to give answer to the said question, Section 28 is to be emphasized much. In the said provision, the State Government has to express its opinion if it is on its 19 opinion of the government, it was required for the purpose of development by the Board or for the purpose of furtherance of the object. Reading of these provisions makes clear the following.
15. The State Government has expressed its opinion by processing the application made by the third respondent for the purpose of granting permission to notify for the Board for acquisition of 63 acres of land. The acquisition is by the Board and the purpose of issuance of notification is for the public in nature and also to fulfill the objects of the Act. Whether the issuance of notification for company whether it is public purpose or not was discussed by this Court in the judgment referred by the petitioner reported in ILR 2012 KAR 4691, referred to supra. At Para 32 concept of public purpose has been discussed. Before proceeding further the subject matter in the said case has to be discussed.
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16. Farmer society was constituted registered under the Karnataka Cooperative Societies Act. The society itself promoted a company, sought some land for the purpose of agricultural industry, approached the government for acquiring of the land. Hence the land was acquired for the benefit of the society. That is questioned by the land losers on the ground that it is contrary to public purpose and it is the case of the petitioner therein that the acquisition was for the benefit of private company and it was in no stretch of imagination it is public purpose. This Court held that "concept of public purpose whether as understood in the Land Acquisition Act, 1894 or under the Karnataka Industrial Area Development Board Act, 1966, is not the same as a private project and for the benefit of a private society. It is obvious from a perusal of the manner in which developments have taken place that the entire State machinery including the so called Single Window Agency and the Board have all been activated and have 21 been made to work with great speed to please 5th respondent society, that too for acquiring the private lands in the name of public purpose."
17. Reading of the above judgment of this court, it is understood there could not have been acquisition of land for the purpose of benefit of private entrepreneurs. Though Facilitation Act 2002 was prevailing then, there is no discussion made by the Court. Public Purpose was understood as if the company was supposed to make by private company since it was a cooperative society. Again the Court at Para 40 it has been held that all further proceedings are just gone through to sub serve this request of the 5th respondent. It is a clear case of non application of mind, abdication of statutory responsibility and instance of colourable exercise of power by giving a picture of public interest being involved in a situation where pure private purpose is sought to be served".
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18. KIADB Act has not defined the term "Public Purpose". However, public purpose has been referred in Section 28 of the Act. In the absence of specific definition in respect of public purpose in the Act, which came into force on 1.1.2014, it has to be examined. As already referred earlier, the public purpose has been referred in Section 2 sub-section (2) (b) which provides acquisition of land consent, compensation, rehabilitation and resettlement shall also apply, when the appropriate government acquires land for the following purposes namely,
(a) for public private partnership projects, where the ownership of the land continues to vest with the Government, for public purpose as defined in sub-section (1);
(b) for private companies for public purpose, as defined in sub-section (1):
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19. A conjoint reading of these provisions makes it clear even acquisition of land for private purpose in the public nature that is also can be treated as benefit of the public. Sub-Section (3) and also sub-clauses (a) &
(b) thereof in addition to the KIADB Act are applicable.
20. Section 103 of the new Act which contemplates that the provisions of this Act shall be in addition to any other law for the time being in force. For the said purpose, new Act is read in addition to the KIADB Act which makes land acquired for the private companies it is also to be treated as public purpose. Public Purpose in respect of the present case is that for power generation is to be made for the public at large to the State as a whole. May be third respondent is a private entrepreneurs but at the back and in the larger extent power generation is for the entire State. Indeed State has decided to tap power from the same and also vend power which would go to the private persons by 24 extending State's subsidy for the said purpose. In considering the said aspect application of third respondent was to be treated as public purpose. Power generation is required for the public. Accordingly, the public purpose attracts Section 28 of the Act.
21. Section 28 of the Act further states that the purpose in furtherance of the objects of the Act, if it is elaborated, it could be understood object of this Act is for industrialization and unless the effort made by the third respondent is not permitted to establish industry, the very object of this would not be served. Under these circumstances, in furtherance of the object encourage the private persons to establish establishment which is to be decided whether it is for the general public at large and the purpose for which it intends to establish it is for the public at large. Hence the ingredients of public purpose it is satisfied. Accordingly, it has been answered.
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22. The submission of the petitioners that the notification issued for acquisition of the land and the said application objections has not been considered by the SLAO. The said submission has been examined in the resolution of the respondent Board. In the proceedings in CI 414 SPQ 2012 in which item No.3 it has been referred that:
"3. ¥ÁæxÀ«ÄPÀ C¢ü¸ÀÆZÀ£A É iÀÄ°è M¼ÀUÉÆArgÀĪÀ d«Ää£À ¨sÀƪÀiÁ°ÃPÀgÀÄ/»vÁ¸ÀQÛzÁgÀjUÉ «±ÉõÀ ¨sÀƸÁé¢üãÁ¢ü PÁjAiÀĪÀgÀÄ PÀ®A 28(2)gÀr £ÉÆÃn¸À eÁj ªÀiÁr, «ZÁgÀuÉ £ÀqɹzÁUÀ ºÉaÑ£À ¨sÀƪÀiÁ°ÃPÀgÀÄ ¨sÀƸÁé¢Ãü £ÀPÉÌ DPÉëÃ¥ÀuÉU¼ À £ À À Äß ¸À°è¹gÀÄvÁÛgÉ ºÁUÀÆ PÉ®ªÀÅ ¨sÀƪÀiÁ°PÀgÀÄ d«ÄãÀÄ PÀ¼z É ÀÄPÉƼÀÄîªÀ PÀÄlÄA§zÀ M§â ¸Àz¸ À Àå¤UÉ CªÀgÀ «zÁåºÀðvÉUÉ C£ÀÄUÀÄtªÁV GzÉÆåÃUÀ PÀ°à¹PÉÆqÀĪÀAvÉ DPÉëÃ¥ÀuÉUÀ¼£ À ÀÄß ¸À°è¹gÀÄvÁÛg.É F J®è DPÉëÃ¥ÀuÉUÀ¼À£ÀÄß vÀ½î ºÁQ ¸ÁªÀðd¤PÀgÀ C£ÀÄPÀÆ®PÁÌV ºÁUÀÆ PÉÊUÁjPÁ ZÀlĪÀnPÉU¼ À £ À ÀÄß GvÉÛÃf¹, DyðPÀ C©üªÀÈ¢ÝUÉƽ¸ÀĪÀ GzÉÝñÀ¢AzÀ ¨sÀƸÁé¢Ãü £À ¥ÀQæ A æ iÉÄAiÀÄ£ÀÄß ªÀÄÄAzÀĪÀgɸ® À Ä PÀ®A 28(3)gÀ DzÉñÀª£ À À Äß ¢£ÁAPÀ 17.01.2011gÀAzÀÄ ºÉÆgÀr¹gÀÄvÁÛgÉ (¥ÀÄl: 17jAzÀ25). ¥ÁæxÀ«ÄPÀ C¢ü¸ÀÆZÀ£ÉUÉ 63-05 JPÀgÉ d«ÄãÀÄ M¼À¥ÀnÖzÀÄÝ, eÉ.JA.¹.AiÀÄAvÉ 11-27 JPÀgÉ d«ÄãÀÄ ºÉZÀÄѪj À AiÀiÁV §A¢zÀÄÝ, 26 F d«ÄãÀÄUÀ¼£ À ÀÄß PÀA¥À¤AiÀÄÄ Rjâ¹gÀĪÀÅzÁV w½¹gÀĪÀ PÁgÀt, EzÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹, G½PÉ 63-05 JPÀgÉ d«Ää£À ¨sÀƸÁé¢Ãü £Àª£ À ÀÄß ªÀÄÄAzÀĪÀgɸ® À Ä ºÁUÀÆ PÀ®A 28(4)gÀ CAwªÀÄ C¢ü¸ÀÆZÀ£É ¥Àæ¸ÁÛªÀ£A É iÀÄ£ÀÄß vÀAiÀiÁj¹, ¸À°è¹gÀÄvÁÛg.É "
23. Thus the objections have been considered and rejected on the ground that the acquisition was for the public purpose and also third respondent accepted the direction of the Government to provide training to each family who lends land and also they undertook to develop education and other infrastructures in the surrounding villages. That shows that the objectives have been considered by the Government, has been signed by the Chief Secretary and the Hon'ble Minister then and other officials. Further it has been approved by the Cabinet. From the concerned file it is found notification was issued on 10.9.2012 u/s 28(4) after having considered the objections. On saying so, the government has issued final notification. Hence submission of the petitioners that there is no 27 application of mind on the part of the respondents in not considering the objections, non application of mind same has to be rejected and it is accordingly rejected.
24. The judgment referred by the petitioners ILR 2012 KAR 4691 in which para 42 in respect of Facilitation Act, 2002 it has been held that:
"42. It is also high time that the State Government to introspect as to whether all its private and purpose can be fulfilled in the name or in the guise of extending facilities to entrepreneurs under the provisions of the Karnataka Industries (facilitation) Act, 2002. While acquisition in favour of a private society is not totally flowned under the provisions of the acquisition act, it should be spelt out so and not to lend a colour of public purpose is to be used, particularly, as it is presumed in situations of issue of the notifications under sections 3(1), 1(3) and 28(1) of the Act, it should be really so and not a pretence. An acquisition of a small extent of 13 acres 27 guntas of land for the 28 benefit of a private party can never partake the character of `public purpose' however laudable the intentions and objects of the may be and however good and efficient the project that is likely to be set up by the private society may be."
25. Two other grounds taken by the petitioners are; under Section 28 of the Act the Government could acquire only for the Board and not for the company. It is true plain reading of Section 28 of the Act which provides for the government to acquire land only for the Board.
26. Under section 3(1) of the Act concept of public purpose has been specified by the Government and government has decided to issue notification u/s 109 of the Karnataka Land Revenue Act permitted the third respondent to acquire land directly from the owners in doing so it can be understood that there is application of mind by the government.
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27. The third respondent made submission that he has accepted the conditions put by the government namely that he would provide employment each family of land loser and provide education facilities and he would improve infrastructure in the surrounding villages and it is for the petitioners and the land losers to make application and avail such benefit and the third respondent is duty bound to consider the said applications.
28. For the above reasons, I am of the view that there are no grounds to interfere with the acquisition and subject to the above observations, the writ petitions are liable to be disposed of.
Accordingly, with the above observations, the writ petitions are dismissed.
Sd/-
JUDGE akd*