Karnataka High Court
Mangalore Refinery And Petrochemicals ... vs State Of Karnataka on 22 February, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
WRIT PETITION NO. 22685 OF 2023 (LA-KIADB)
C/W
WRIT PETITION NO.15168 OF 2023 (LA-KIADB)
IN WP.No.22685/2023
BETWEEN:
MANGALORE REFINERY
AND PETROCHEMICALS LTD.,
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956
KUTHETHOOR P.O, VIA KATIPALLA
MANGALORE - 575 030
REPRESENTED BY ITS AUTHORISED
SIGNATORY SRI. KANNAN D.,
... PETITIONER
(BY SRI. BASAVA PRABHU PATIL, SR. COUNSEL FOR
SRI. AJAY J NANDALIKE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
GOVERNMENT OF KARNATAKA
REPRESENTED BY ADDITIONAL
CHIEF SECRETARY- DEPARTMENT OF
INDUSTRIES AND COMMERCE
VIDHANA SOUDHA
AMBEDKAR VEEDHI
BENGALURU - 560 001.
2
2. THE SPECIAL LAND ACQUISITION
OFFICER KIADB, PLOT NO 12
BAIKAMPADY, MANGALORE - 575 011
REPRESENTED BY SPECIAL LAND
ACQUISITION OFFICER.
3. KARNATAKA INDUSTRIAL AREAL
DEVELOPMENT BOARD
4TH AND 5TH EAST WING
5TH FLOOR, KHANIJA BHAVAN
RACE COURSE ROAD
BENGALURU - 560 001
REPRESENTED BY ITS CHIEF EXECUTIVE
OFFICER AND EXECUTIVE MEMBER.
4. JEMCY PONNAPPA C.P.,
S/O C.P POONACHA,
AGED ABOUT 60 YEARS,
RESIDING AT 4TH BLOCK,
BYPASS ROAD,
KUSHALNAGAR, SOMAWARPET TALUK ,
KODAGU DISTRICT - 571 231.
... RESPONDENTS
(BY SMT. AZRA J. DUNDGE, AGA FOR R1;
SRI. K. SHASHIKIRAN SHETTY, SR. COUNSEL FOR
SRI. B.B. PATIL FOR R2 AND R3;
SRI. K.G. RAGHAVAN, SR. COUNSEL FOR
SRI. A. SAMPATH, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
i) QUASH THE NOTIFICATIONS DATED:15.12.2017 AND
25.11.2020 ISSUED UNDER SECTION 28(4) OF THE KIAD ACT
VIDE ANNEXURE -F AND ANNEXURE-F1 INSOFAR AS THEY
RELATE TO THE LANDS REFERRED IN THE AWARD BEARING
NO. LAQ S.R.3/2016-17/III PASSED BY THE SLAO, KIADB
DATED:07/07/2023 VIDE ANNEXURE-M AND ETC.
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IN WRIT PETITION No.15168 OF 2023
BETWEEN:
1. JEMCY PONNAPPA. C. P.
S/O C P POONACHA,
AGED ABOUT 60 YEARS,
4TH BLOCK, BYPASS ROAD,
KUSHALNAGAR, SOMWARPET TALUK,
KODAGU DISTRICT - 571 231
REP BY HIS GPA HOLDER,
MR ARJUN BALASUBRAMANYAM,
AGED ABOUT 38 YEARS,
S/O K N BALASUBRAMANYAN,
45, 11TH MAIN, 13TH CROSS,
MALLESHWARAM, BENGALURU - 560 003.
2. M/s.CASUBA INFRASTRUCTURE AND
DEVELOPMENT COMPANY
PARTNERSHIP FIRM
REGISTERED UNDER SECTION 58(1)
OF INDIAN PARTNERSHIP ACT 1932
PRESENTLY HAVING ITS OFFICE AT NO 14,
SRI NIKETAN, NANDI DURGA ROAD,
BENSON TOWN, BENGALURU - 560 003
REPRESENTED BY ITS PARTNER
MR ARJUN BALASUBRAMANYAM.
... PETITIONERS
(BY SRI. BASAVA PRABHU PATIL, SR. COUNSEL FOR
SRI. AJAY J NANDALIKE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY,
DEPT. OF COMMERCE AND INDUSTRIES
M S BUILDING, BENGALURU - 560 001.
4
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
KHANIJA BHAVAN,
RACE COURSE ROAD,
BENGALURU - 560 001
BY ITS CHIEF EXECUTIVE OFFICER.
3. THE SPECIAL LAND ACQUISITION OFFICER
K.I.A.D.B REGIONAL OFFICE,
BYKAMPADY INDUSTRIAL AREA,
NEW MANGALORE - 575 011.
4. THE DEPUTY COMMISSIONER
K.I.A.D.B REGIONAL OFFICE,
BYKAMPADY INDUSTRIAL AREA,
NEW MANGALORE - 575 011.
... RESPONDENTS
(BY SMT. AZRA J. DUNDGE, AGA FOR R1;
SRI. K. SHASHIKIRAN SHETTY, SR. COUNSEL FOR
SRI. B.B. PATIL FOR R2 TO R4;
SRI. BASAVA PRABHU PATIL, SR. COUNSEL FOR
SRI. AJAY J. NANDALIKE FOR PROPOSED RESPONDENT
NO.I.A. NO.2/2023)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS TO DISBURSE THE COMPENSATION AMOUNT
OF RS.197,28,34,758/- (RUPEES ONE HUNDRED NINETY
SEVEN CRORES TWENTY EIGHT LAKHS THIRTY FOUR
THOUSAND SEVEN HUNDRED FIFTY EIGHT ONLY) TO THE
PETITIONERS AS PER THE GENERAL AWARD DATED:
16/03/2023 BEARING NO.LAQ.S.R.3/2016-17/III VIDE
ANNEXURE-D AT THE EARLIEST.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED ON 31.01.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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ORDER
Writ Petition in W.P.No.22685/2023 is filed by the petitioner -Mangalore Refinery Petrochemicals Limited (MRPL) seeking quashment of notifications dated 15.12.2017 and 25.11.2020 issued under Section 28(4) of the Karnataka Industrial Areas Development Act, 1966 (KIAD Act) vide Annexure-F and F-1 insofar as they relate to lands referred to in the Award bearing No.LAQ.S.R.3/2016-2017/III passed by the Special Land Acquisition Officer (SLAO), Karnataka Industrial Areas Development Board (KIADB) dated 07.07.2023 vide Annexure-M and consequently to quash the award dated 07.07.2023 vide Annexure-M and for issue of writ of mandamus directing the respondent Nos.1, 2 and 3 to consider the representation of the MRPL dated 20.09.2023 vide Annexure-P to allot alternative land parcel of 170.96 acres belonging to Government for the purpose of setting up Rehabilitation and Resettlement of displaced persons.
2. Writ Petition No.15168/2023 is filed by the petitioners namely C.P.Jemcy Ponnappa and one M/s.Casuba Infrastructure and Development Company a registered 6 Partnership Firm (land owners) seeking issue of writ of mandamus directing respondents to disburse compensation amount of Rs.197,28,34,758/- to the petitioners as per the General Award dated 16.03.2023 bearing No.LAQ.S.R.3/2016- 2017/III vide Annexure-D at the earliest.
3. Facts leading up to filing of writ petition in W.P.No.22685/2023 filed by MRPL are:
a. That MRPL is a Schedule A Government of India Enterprises and subsidiary of Oil and Natural Gas Corporation Limited. MRPL operates under the administrative control of Ministry of Petroleum and Natural Gas, Government of India and manages an Oil Refinery in Mangaluru. In view of expansion of its business in refinery it had approached respondents 1 to 3 authorities seeking acquisition of land. The project of MRPL was placed before the 39th High Level Clearance Committee which was approved by the respondent No.1-State vide its order dated 14.09.2015. Pursuant thereof certain lands were acquired which were required to carry out Rehabilitation and Resettlement of 7 displaced persons to put up residential plots for such persons together with basic infrastructures with all civic amenities.
b. Respondent No.3-KIADB was on the look out for a suitable land required by MRPL. Respondent No.4
-Jemcy Ponnappa (land owner) and another person by name R.K.Nagendra had represented KIADB indicating they had more than 173.67 acres of land that could be acquired for MRPL. Based on which, Development Officer- KIADB, SLAO-KIADB and Joint Director-District Industrial Centre, Mangaluru conducted an inspection of the land on 20.08.2015 and reported to Deputy Commissioner on 31.08.2015 that the land could be acquired for industrial area. That the report indicated that lands were dry, wet and bhagayutu agricultural plot which are next to the Gurupura River having road connectivity and water facilities and the airport is around 4 kms away and that it was opined the said land was suitable.
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c. That said land owner along with one R.K.Nagendra continuously followed up and also made a detailed representation on 03.10.2015 requesting KIADB that their lands which are extremely suitable for the purpose of MRPL could be acquired. That the said representation also stated the lands located at Kandavara and Muloor Village have already been inspected and that they are acceptable for compensation in the lines with "present norms for land acquisition".
d. That pursuant to the report prepared and accepted by the Special Deputy Commissioner regarding suitability of the land, MRPL on a request from KIADB conveyed its consent for acquisition of the lands in Kandavara and Muloor Village belonging to the land owner and said R.K.Nagendra vide letter dated 07.12.2015. A formal request was also made for inclusion of the said land and an amendment to the earlier Government Order was issued on 20.02.2016. 9
e. That a final notification was issued under Section 28(4) of the KIAD Act on 15.12.2017 in respect of land to an extent of 90.685 acres in Muloor village and an extent of 52.555 acres in Kandavara Village to be acquired for the purpose of MRPL. By way of another notification dated 25.11.2020 an extent of 24.13 acres in Muloor village and 3.59 acres in Kandavara village was also acquired by KIADB.
f. That on the basis of said acquisition KIADB directed the MRPL to pre-deposit the compensation. Accordingly it has deposited 694.68 Crores during the year 2016-2017 towards total land acquisition cost. That a General Award was passed on 18.11.2020 by the SLAO.
g. That as the development of acquired land was entrusted to KIADB it began inspection of land during December, 2022 and filed a detailed project report. In the report it is pointed out that the land belonging to land owner and said R.K.Nagendra which were notified are situated in a valley portion and proposed layout bed 10 was 3 meters below the bed level of the river and that there is stagnation of water at major portion of the layout. That during rainy season high volume water run into the valley creating a lake type scenario. That the lands are situated next to Gurupura river which overflows into lands every rainy season.
h. That MRPL was requested by the project affected persons not to shift them to the area which is not good for a safe habitat. That as per the estimation of KIADB the total project cost would gravely increase to about 224.7 Crores for development of around 95.2 acres even without construction of residential buildings or any facilities required for rehabilitation and resettlement colony which is financially unviable. That apart there is a very high risk of land slide and land washing away in the case of flooding which is regular in the area during rainy season.
j. That land owner grossly misrepresented and gotten the report dated 20.08.2015 prepared from the Development Officer-KIADB, SLAO-KIADB and Joint 11 Director-District Industrial Centre, Mangaluru through illegal means. The inspection report deliberately suppressed the fact that the land is submerged more than 3 meters for atleast six months a year and the land is not suitable for habitation.
k. The land owner had stated that his land is agricultural land suitable for the purpose of MRPL. That even in the price fixation meeting convened on 28.02.2019 he did not mention that the land is converted. The land owner had even represented that he would be satisfied with the compensation as per the prevailing norms. But however, started filing writ petition seeking compensation under Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act, 2013 (Act, 2013) claiming the lands to be the converted lands. MRPL was not party to the said proceedings.
l. That the land owner in connivance with the KIADB officials knowing fully well that his proposal would go through had applied and obtained orders of 12 conversion of land from agriculture to non-agriculture purpose and accordingly filed writ petition in W.P.No.12699/2021 and obtained the order dated 21.10.2022 directing the respondent authorities to pass fresh award treating his land as converted land.
m. That this Court in the aforesaid order dated 21.10.2022 passed in W.P.No.12699/2021 had directed to notify and hear MRPL before passing any award. A copy of the said order was furnished by SLAO to MRPL vide letter dated 13.12.2022 seeking its opinion. MRPL by its letter dated 20.12.2022 sought details in relation to approximate rate per acre of converted land and if it was possible MRPL to forfeit land to an extent of 49.87 acres from acquisition process. In response, MRPL received letter dated 23.12.2022 from KIADB stating the cost of lands could be around 55.73 Crores if treated as converted lands. As the rate fixed by the District Administration was at Rs.80 lakhs per acre which was disbursed to all eligible land owners, MRPL submitted that it was not in agreement to pay higher compensation. Hence, sought for denotification of land 13 to an extent of 49.87 acres and objected for passing of fresh award by its letter dated 04.01.2023. As MRPL did not receive any reply to said letter it again addressed another letter dated 22.03.2023 seeking confirmation of denotification of said lands.
n. In the meanwhile it learnt about land owners filing writ petition in W.P.No.15168/2023 seeking direction to KIADB to disburse the compensation wherein KIADB had submitted fresh award dated 07.07.2023. That the fresh award is passed without hearing the MRPL.
o. In the circumstances MRPL addressed a letter dated 08.09.2023 to the Chief Secretary, Government of Karnataka seeking denotification of said lands subject matter of the General Award. It also addressed a letter dated 20.09.2023 to the respondent No.3 seeking allotment of alternate land in view of land belonging to land owners was unsuitable for the project apart from enhancement of cost of acquisition resulting in huge additional burden on the public exchequer. 14
p. That land owner had actively misrepresented regarding the utility of land to the respondents 2 and 3 and had thus induced them to acquire the lands.
q. That there has been a fraud of gigantic
proportion perpetuated by the land owners in
connivance with the KIADB officials at Mangaluru which resulted in acquisition of useless and water logged lands.
r. On these facts MRPL filed the petition seeking the reliefs as noted above.
4. Objection statement has been filed by the land owner to the said petition denying the petition averments wherein it is contended that:
a. The process of acquisition commenced by the State by issuing preliminary notification on 20.12.2016 declaring subject lands as an industrial area. A notification under Section 28(2) of KIAD Act was issued on 04.01.2017. Final Notification under Section 28(4) was issued on 15.12.2017. Possession of the land was taken on 01.03.2018 and handed over to KIADB on 15 29.01.2019. Three different awards have been passed relating to subject lands on 18.11.2020, 26.03.2023 and 07.07.2023. That the award dated 07.07.2023 has been approved by the State Government. In view of these developments petition seeking quashing of acquisition was not maintainable.
b. That the MRPL being beneficiary has no right to question the compensation awarded under Award dated 07.07.2023.
c. That prior to acquisition of subject lands, the officials of KIADB and MRPL had approached the land owner seeking concurrence to acquire the lands belonging to him. That the letter dated 03.10.2015 was issued by the land owner and R.K.Nagendra at the instructions of MRPL and officials of KIADB. MRPL and officials of KIADB had represented that land owner would be paid sufficient compensation and had thus, induced the land owner to consent for acquisition.
d. That out of 176 acres acquired at Muloor and Kandavara village 116 acres of land belong to land 16 owners and R.K.Nagendra. Of which 66 acres of land were agriculture in nature and remaining 50 acres were converted lands.
e. MRPL and KIADB officials had expressed their intention to acquire the lands belonging to land owner only after visiting the subject lands and after obtaining detailed project report that was prepared on 31.08.2015 regarding viability of the lands for the purpose of the project of MRPL. The notification was issued on 04.01.2017. Joint inspection, joint measurement, sketch and extract were prepared on 03.10.2017. It is only thereafter objections were called for from the land owners. Since the land owners had already given their consent they did not submit their objections.
f. The land owners who attended the rate fixation committee meeting in terms of notice under Section 28(3) of the KIAD Act had informed that they are interested in higher compensation as the lands were converted and a statement in this regard was made on 10.07.2017. The rate fixation committee after hearing 17 the objections had taken decision to pay compensation under consent award which was not agreeable. A consent award was passed fixing the compensation of Rs.80 lakhs per acre in respect of agricultural land. The land owners were not agreeable to receive the said award/compensation in respect of the converted land. Portions of properties acquired which are agricultural and non-agricultural converted lands are situated adjacent to each other.
g. In the general award dated 18.11.2020 produced in the contempt proceeding in
CCC No.174/2020 the compensation in respect of the land belonged to the land owners were fixed considering them to be the agricultural lands constraining filing of writ petition in W.P.No.12699/2021. This Court directed the respondent to fix the compensation to an extent of 49.925 acres considering it as converted lands.
h. The SLAO pursuant to the direction issued in the writ petition No. 12699/2021 had issued letter dated 13.12.2022 to the MRPL seeking its opinion regarding 18 fixation of compensation intimating the order passed in the said writ petition. In response MRPL had issued a reply dated 4.1.2023 indicating it would not be willing to pay higher compensation. Nowhere in the said letter did MRPL alleged that the subject lands belonging to the land owners were not viable for the project. But it only indicated that if the compensation was fixed more than 80 lakhs per acre it would not pay such higher compensation. Even after passing of the award dated 7.7.2023 MRPL by his letter dated 03.09.2023 expressed its unwillingness to pay higher compensation. Thus, the only grouse of the MRPL was with regard to higher compensation. No ground of any nature made regarding fraud or land being not viable for the project. Yet again by letter dated 20.09.2023 MRPL had reiterated its unwillingness to pay the higher rate of compensation and nothing else.
j. As regards the allegation of inducement by the land owners, obtaining conversion order subsequent to the notification and non viability of the lands for the project, it is contented that officials of KIADB and MRPL 19 had inspected the subject lands prior to initiation of process of acquisition. A report had been prepared, in terms of the said report it was found that the lands belonging to the land owners are viable for executing project. It is only then the subject lands were notified. The lands were converted much prior to the notification dated 20.12.2016. No fraud is played by the land owners in obtaining conversion to seek higher compensation as alleged.
k. The compensation is fixed by the SLAO at the first instance was pursuant to the order passed by this Court in W.P.No.12699/2021 on 16.03.2023 fixing the compensation at Rs.197,28,34,758/- which was unilaterally reduced in award dated 7.7.2023 by fixing the same at Rs.55,69,76,670/-.
l. That certain lands belonging to the MRPL in the very same villages have been utilized by GAIL India Ltd. and the compensation has been fixed at Rs.52,61,100/- for the converted lands in terms of the award passed by the Deputy Commissioner. Thus the market value of the 20 property that has been arrived at by the Deputy Commissioner is at Rs.52,61,100/- which is highly inadequate. That the only intention of filing of the petition is to delay and deny the entitlement of the land owners to the compensation.
m. The other allegations made in the writ petition with regard to MRPL incurring additional cost, viability of land etc., have been denied and hence sought for dismissal of the writ petition.
5. The KIADB in its statement of objections while denying the petition averments contended that;
(a) the land owners had misrepresented about the suitability of the lands to the project and the same amounted to misrepresentation and concealment of facts.
(b) It is further contended that MRPL and the KIADB had reciprocally communicated with each other and based on consents and reciprocal promises notifications in questions were issued notifying the lands belonging to the land owners and others for the project of MRPL. 21
(c) Reference is made to the order passed by this Court in W.P.No.12699/2021. It is also contended that KIADB has sought opinion of MRPL before passing the award who had replied the land rates are high and pleaded their inability to bear the cost and sought for denotification of lands. Taking note of the order dated passed in the said writ petition fresh award dated 7.7.2023 was passed under Section 30 of the Act, 2013.
(d) That the KIADB would take necessary action on the representation made by the MRPL in accordance with law.
(e) That the contract arrived at between the parties under misrepresentation is not executable and not valid. That the writ petition has no merits and substance. Petitioner is not entitled for the relief. Hence, sought for dismissal of the petition.
6. Facts leading up to filing of writ petition in W.P.No.15168/2023 filed by land owners are: 22
a. That Respondent No.1 State by preliminary notification dated:20.12.2016 issued under section 28(1) KIAD Act followed by the final Notification dated 15.12.2017 issued under Section 28(4) of the KIAD Act sought to acquire certain lands for the benefit of MRPL to carryout Rehabilitation and Resettlement of persons who are displaced by Phase IV Expansion Project of MRPL of its refinery. In the said notifications land situated in the villages known as Thenkayekkaru, Muloor and Kandavara.
b. That total extent of land belonging to the land owners notified under the aforesaid notifications is 176 acres. However, present petition is confined to the lands belonging to the land owners to an extent of 48 acres 96.5 cents situated at Muloor and Kandavara Villages of Gurupura Hobli, Mangaluru Taluk, Dakshina Kannada District (the subject lands).
c. Pursuant to the acquisition, possession of the subject land has been taken on 01.03.2018. Since the award had not been passed, land owners had filed 23 writ petition in W.P.No.15520/2019 which was allowed by order dated 22.04.2019 directing the respondent authorities to pass the award. By an endorsement dated 03.07.2019 and communication dated 14.06.2019 the land owners were informed that compensation would be paid under the Land Acquisition Act, 1894 (Act, 1894) and not under the Act, 2013. This led to filing of writ petition in W.P.No.33053/2019 by the land owners which was allowed by this Court on 01.02.2019 directing the respondent authorities to pass the award under Act, 2013. Non compliance of the said order resulted in land owners initiating contempt proceedings in C.C.No.174/2020 in which apparently a General Award dated 18.11.2020 was filed. In the said General Award it appears subject lands were treated as agricultural lands though according to the land owners subject lands were converted. This again constrained the land owners to file another writ petition in W.P.No.12699/2021 which was allowed by this Court by order dated 21.10.2022 quashing the 24 General Award dated 18.11.2020 and directing the respondents to pass fresh award under Section 30 of the KIAD Act read with Act, 2013 treating the subject lands of the land owners as converted lands within two months.
d. Since there was no compliance to the said order land owners yet again initiated contempt proceedings in C.C.C.No.364/2023 which is pending consideration. In the said proceedings respondent No.3-KIADB along with its statement of objections filed General Award dated 16.03.2023 for a sum of Rs.197,28,34,758/- however did not disburse the said amount to the land owners, constraining the land owners to file the writ petition in W.P.No.15168/2023.
7. Objection statements has been filed by the respondents 2 to 4 to the writ petition confirming the acquisition of the lands of the land owners. Averments with regard to land owners filing the writ petition seeking adequate compensation is also admitted. It is contended by the respondent 2 to 4 that award dated 07.07.2023 for Rs.55,69,76,660/- as per 25 Annexure-R1 has been passed and that same has been approved by the State Government on 07.09.2023. It is further contended that award is merely an offer and the land owners can seek enhancement of the same in accordance with law.
8. An application in IA No.2/2023 is filed by MRPL under Order 1 Rule 10(2) CPC seeking to implead itself as party respondent No.5 in the writ petition. In the affidavit accompanying the said application it is contended that the acquisition of lands was carried out by KIADB for the benefit of MRPL which has to bear the cost of entire acquisition and also cost to develop the land for its Rehabilitation and Resettlement purposes. That KIADB which is entrusted with the task of developing of the land for the benefit of MRPL had submitted report regarding suitability of the land wherein it is found that the entire land area is water logged during rainy reasons and is not suitable for the purpose to which it is acquired. That huge amount would have to be spent for the purpose of developing of the land. Subject land were acquired upon the misrepresentation and fraud played by the land 26 owners in collusion with official of KIADB. That MRPL had made several representations to the Government seeking withdrawal from acquisition of the lands so far as belonging to the land owners and the other lands which are lying in low areas and to substitute the same with suitable lands. That the above petition of the land owners is for disbursement of the compensation amount and if the compensation is disbursed impleading applicant would be put to hardship. Hence, sought for impleadment as party respondent.
9. Objection statement is filed to the said application by the land owners seeking rejection of the said application contending that MRPL and the officials of KIADB had studied the viability of the lands subject of land owners and only after conducting a joint inspection the respondent authorities proceeded to acquire the subject lands. That the MRPL by its letter 07.12.2015 had requested the respondent No.3 to notify the lands in Muloor and Kandavara village belonging to land owners and others. MRPL had also given consent to acquire the lands and the same was intimated to the land owners by letter dated 09.12.2015. The compensation was determined and has been paid in respect of all the acquired 27 lands except subject lands belonging to land owners. The compensation has been determined and has been directed to be paid to the land owners after several rounds of litigation by filing writ petitions before this Court. Entire acquisition process having been completed in the manner known to law, the application is filed merely because the awarded amount is high. That the present application is filed only to escape from the liability of payment of compensation. The allegation of non suitability, fraud and misrepresentation attributed on the land owners after six long years of the process of acquisition is unfortunate and uncalled for. That MRPL is not a necessary party to the said writ petition. Hence, sought for rejection of the application.
SUBMISSIONS:
10. Sri.Basava Prabhu Patil, learned Senior counsel appearing for MRPL reiterating the grounds urged in the memorandum of writ petition submitted that:
a. That the award dated 07.07.2023 is contrary to the direction issued by the Co-ordinate Bench of this Court in W.P.No.12699/2021 wherein a specific direction 28 was issued to respondents 2 and 3 to hear the MRPL before passing the fresh/new award. Thus, there is complete non-compliance of the said order resulting in violation of principles of natural justice requiring the entire award to be struck down.
b. MRPL being beneficiary of the acquisition ought to have been made party to the proceedings seeking enhancement of compensation and the respondent authorities without appreciating the said fact have passed the award.
c. Rehabilitation and Resettlement project has been undertaken by KIADB. Jemcy Ponnappa-land owner and one K.R.Nagendra by their communications dated 03.10.2015 addressed to Managing Director of MRPL and Chief Executive Officer of KIADB, though had offered their land for acquisition had indeed misrepresented and induced them to acquire their land. He further submits that the perusal of said documents at Annexure-C and D would indicate that they had expressed their willingness to give their land to KIADB if 29 they were compensated adequately in the lines with the norms for land acquisition. They had also represented that they would like to contribute their land for the cause of nation building and employment generation through industrialization. Thus, referring to the documents learned Senior counsel submitted that the land owners had not disclosed about the feasibility of the lands. He insisted that but for the representation and the follow up made by the land owners and said Nagendra KIADB would not have acquired the land.
d. Referring to Annexure-B a joint inspection report of KIADB dated 31.08.2015, learned Senior counsel submitted that the land owners managed to have said report prepared suitable to their requirements in collusion with officials of KIADB. Referring to the report produced at Annexure-G to the writ petition and the photographs shown therein learned Senior counsel submitted that the project site is not ideal for development of residential colony. He further points out that as per the report the area to an extent of 95.02 acres is in valley region with river Gurupura flowing 30 from East to West below the level of the river bed requiring raising the extent to about 3 meters high to avoid flood and formation of ponds which in turn requires additional expenses resulting in 30 to 45% higher amount than estimated. Thus, referring to the said report learned Senior counsel vehemently submitted that project being one for public purpose and lands having found to be non-suitable for the intended project cannot be accepted without consideration of the unnecessary financial burden on the public exchequer.
e. He further submitted that even if the suggestions made in the report with regard to raising the level of the land by land fill is accepted, since project is to rehabilitate displaced/effected persons by constructing residential colony they cannot be exposed to natural calamity of flood like situation which occurs on every rainy season.
f. Thus, he submitted that the respondent officials being misled and induced by the land owners and in collusion filed the initial reports regarding 31 feasibility and proceeded with acquisition. All these could have been avoided if only the land owners had disclosed about the location and nature of the lands in their communications at Annexures-C and D. Thus, he submits that the land owners have played fraud on the authorities in they acquiring the lands.
g. It is his further submission that even going by the contents of Annexures C and D land owners represented that their lands are predominantly agricultural lands being cultivated by their family members and that due to various personal and health issues they were unable to concentrate on farming and hence willing to sell the land to prospective buyers. He submitted that in the said communication the land owners had even agreed to be compensated in the lines within prevailing norms of land acquisition. That once the land owners were clear that their land would be acquired they have obtained purported conversion orders in respect of subject lands only with a malafide intention of seeking exorbitant rate of compensation. That this Court while passing the order in 32 W.P.No.12699/2021 directing the authorities to consider the land as converted land while awarding the compensation, had specifically directed to hear the MRPL and since there is no compliance to the said directions, the collusion between the land owners and KIADB officials in awarding the compensation considering the lands as converted lands is writ large.
h. He submitted that representations were made by MRPL vide communication dated 20.12.2022, 04.01.2023, 22.03.2023 seeking KIADB to provide details to MRPL for its review and records with regard to approximate rate that would cost in acquiring the lands of land owners pursuant to orders passed in W.P.No.12699/2021 and their financial implication.
That opinion was also sought if the subject lands measuring 49.87 acres could be denotified. However, there has been no response by the KIADB. KIADB proceeded to pass the impugned award on 07.07.2023 without reference to the representation made by MRPL. 33
j. In view of the aforesaid circumstances MRPL made a representation dated 29.09.2023 as per Annexure-P requesting for change of land and allotment of alternate land for the purpose of MRPL project which has not been considered by the respondent authorities.
k. By a memo dated 30.1.2024 filed on behalf MRPL 19 documents were produced. In that learned Senior Counsel specifically referred to document No.9 dated 12.05.2006 which is an agreement entered into between MRPL and KIADB. He pointed out the total cost of acquisition of the lands payable by MRPL is Rs.277,87,23,172/- which included service charges payable to KIADB at 10%. He also referred to clause 8 and 9 of the said document which according to Senior counsel provided for dropping of acquisition for various reasons at the instance of the MRPL. He also referred to document No.19 which is an extract of Karnataka Industrial Policy, 2014-19 wherein, under the heading "Policy measures" it is commended that readily available and adequate extant of land is a prerequisite for industrial development and the State should focus more 34 on making available allotable industrial lands with comprehensive infrastructure facility to the project proponents across the State. He also pointed out the measures recommended including following up of the guidelines of Act, 2013 in that emphasis on due care to be taken to ensure that only waste, barren, karab and dry land to be acquired for the industrial purposes.
l. Referring to the aforesaid documents learned Senior counsel submitted that in terms of the contract as a industrial policy it was the duty cast on the respondent/authorities to have ensured that the suitable land was made available for the benefit of the MRPL and if found otherwise the same was liable to be dropped from acquisition.
m. Thus, he submitted that in the aforesaid circumstances a Public Sector Undertaking like MRPL cannot be compelled to accept the acquisition which is tainted with misrepresentation, fraud and malafide and the entire acquisition as well as the award passed on 07.07.2023 requires to be quashed and set aside. 35
n. On the application for impleadment he submitted that MRPL is the beneficiary of the acquisition and entire cost of acquisition is borne by MRPL. Therefore it is a necessary party to the proceedings. He reiterated that despite specific direction by this Court to notify and hear MRPL before passing the fresh award no opportunity is given by SLAO. Hence seeks to allow the application.
o. He relied upon the following citations in support of his submissions;
(1) ROYAL ORCHID HOTELS LTD. VS. G. JAYARAM REDDY AND ANOTHERS (2011) SCC 608 (2) UDDAR GAGAN PROPERTIES LTD. VS.
SANTH SINGH AND OTHERS (2016) 11 SCC 378 (3) VIDARBA IRRIGATION DEVELOPMENT CORPORATION VS. SANTHOSH JANBA VARGHNE AND ANTOHER (2019) SC 650
11. Sri. K.G.Raghavan, learned Senior counsel appearing for the land owners refuting the contentions and allegations made by and on behalf of MRPL submitted that;
a. The records made available would reveal that the entire effort being made by MRPL is only to deny and deprive the legitimate entitlement of compensation 36 payable to the land owners who have lost their lands have not been paid their dues despite approaching this Court by filing several rounds of litigations by filing writ petitions. He submitted that allegation of fraud and misrepresentation are mere farce and a false facade raised in the petition to circumvent the liability of payment of compensation. He further submits that MRPL who actively participated in the entire process of acquisition right from the inception of acquisition has raised these false allegations of misrepresentation, false and malafide only when the award has been passed by the respondent-authorities considering the subject lands of the land owners as converted lands that too, in furtherance to the direction issued by this Court in W.P.No.12699/2021. Thus, he submitted MRPL has not approached this Court with clean hands requiring to be non-suited at the threshold.
b. Referring to document produced by the MRPL at Annexure-D namely, the joint inspection report, he submitted that the said joint inspection was conducted by responsible officers of the State who after inspection 37 have found that an extent of 173.67 acres belonging to land owner and one R.K.Nagendra was suitable for the project. He submitted that thereafter by letters dated 03.10.2015, the land owner and R.K.Nagendra addressing to the Managing Director of MRPL and Chief Executive Officer of KIADB had clearly stated that since MRPL was in need of lands and that their lands are situated adjacent to the proposed project could be acquired. He pointed out that in the said communication the land owners had clearly stated that their lands are situated adjacent to Gurupura River having density of water sources. He also pointed out that the said request was forwarded with a clear statement that MRPL could proceed if its suits the requirement. Pointing out the endorsement made on the letter dated 03.10.2015 wherein, it is written " please get it checked for feasibility and contiguous land" he emphasized that the land owners made no misrepresentation or played any fraud.
c. Referring to letter dated 7.12.2015 issued by MRPL he submitted that MRPL itself had requested the Special 38 Land Acquisition Officer, KIADB to notify the lands measuring 176 acres belonging to land owner and R.K.Nagendra. He also refers to the Government Order dated 20.02.2016 produced at Annexure-E wherein, companies request to include the land in Muloor and Kandwara village having been considered for its proposed expansion.
d. Thus, he submitted the notifications dated 15.12.2017 and 25.11.2020 were issued acquiring the lands of the land owners only after satisfaction and request of the MRPL and that there was no misrepresentation or fraud by the land owners as alleged.
e. He submitted that the land owners had obtained conversion of land usage from agricultural to non- agricultural purposes between 2003 to 2015 which is much prior to initiation of process of acquisition. He submitted that after completion of the acquisition process the possession of the lands were taken on 01.03.2018. Compensation in respect of agricultural 39 lands were paid on 18.07.2018. The land owners had approached this Court for determination of compensation in respect of their lands treating the same as converted lands. This Court had directed the authorities in its order dated passed in W.P.No.12699/2021 to award the compensation treating the land of the land owners as converted.
f. Adverting to the contention of non-compliance to the direction of this Court in the aforesaid order of hearing MRPL before passing the award, learned Senior counsel referred to the communication dated 13.12.2022 by the KIADB to General Manager, MRPL produced at Annexure-H informing MRPL about the order and the direction to notify MRPL as made by this Court. He also pointed out that the copy of the order passed by this Court in the said writ petition was also enclosed for the reference of MRPL. He submits that in the said letter Special Land Acquisition Officer had specifically called upon the MRPL to give its opinion or statement immediately.
40g. Further taking through the response of MRPL in their letter dated 20.12.2022, 4.01.2023 and 22.03.2023 produced at Annexures-J, K and L learned Senior counsel submitted that MRPL was only concerned with the additional financial implication in view of 49.87 acres of lands belonging to the land owner to be compensated treating it as the converted lands and had therefore sought if it was possible to denotify the same from the process of acquisition. He submitted that in view of the communication referred to above issued by the Special Land Acquisition Officer and duly responded by the MRPL the requirement of hearing the MRPL has been complied with.
h. He emphasized that the said communication do not even refer to any misrepresentation or fraud sought to be alleged in the writ petition. Thus, he submitted the allegations of misrepresentation or fraud are raised only to deny the entitlement of the land owners. j. Referring to the report at Annexure-G dated 22.12.2022 learned Senior counsel submitted that the 41 said report has been filed by KIADB in its capacity as the developer with the responsibility of implementing the project of the MRPL and not as the acquiring authority. He further submitted that the said report had been filed upon the opinion of consultant M/s.Alcon Consulting Engineers engaged by the KIADB. It is his further submission that the said report cannot be the basis for quashing the acquisition or the award. At the most, he submitted that the said report has to be read as a report of a developer indicating his cost for developing the lands and the same cannot be extended to hold that there was a fraud and misrepresentation on the part of the land owners.
k. As regard the plea for denotification learned Senior counsel submitted that once the acquisition process is completed in terms of KIAD Act and the award is passed there is no provision for denotification. He also submitted the acquisition is not a consent acquisition and the same has been pursuant to exercise of power of eminent domain by the respondent/State. What the State and its agency does with their land is their lookout 42 once acquired and the same cannot be denotified or returned to the owners that too after passing of the award.
l. That the writ petition filed by the MRPL after expiry of over 6 years of issuance of notification suffers from delay and laches.
m. He also submits that the challenge is only in respect of 49.87 acres of land as against 117.67 acres. That the substantial part of the compensation has already been paid to the land loosers and there is no substance in the writ petition.
n. On the question of application to implead MRPL as a party /respondent in the writ petition filed by the land owner it is his submission that there is nothing remained to be determined in the said writ petition and the same is filed only seeking direction to the respondent/KIADB to disburse the amount as per the award dated 16.03.2023. Further, MRPL having been given opportunity by SLAO before passing award at 7.7.2023 is not a necessary party in the writ petition. 43
o. Learned counsel relies upon the following citations in support of his submissions;
(1) JOINT COLLECTER RANGAREDDY, DISTRCT AND ANOTHER VS. D. NARASINGARAO AND OTHERS
-(2015) 3 SCC 695 (2) THOMAS PATRAO SINCE DECEASED BY HIS LR. AND ANOTHER VS. STATE OF KARNATAKA REP. BY ITS SECRETARY AND ANOTHER- ILR 2005 KAR. 4199
12. Sri. Shashikiran Shetty, learned Senior counsel appearing for the KIADB submitted that;
a. that the writ petition in W.P.No.22685/2023 filed by the MRPL is seeking quash of preliminary notification dated 15.12.2017 and the final notification dated 25.11.2020 and for consideration of it, representation. He submits that no relief is sought against the State or the KIADB.
b. He submits that the writ petition in W.P.No.15168/2023 filed by the land owners is seeking implementation of the award dated 16.03.2023 for Rs.197,28,34,73,814/- which was reduced by the award dated 7.7.2023 to Rs.55,69,76,600/-. That the said award of 07.07.2023 has been approved by the 44 Government on 07.09.2023. He submitted that writ petition in W.P.No.22685/2023 is filed by the MRPL seeking quash of award dated 07.07.2023. Thus, he submits that the State has discharged its function warranting no interference.
c. He further submitted that prior to acquisition consent of the land owners were obtained and it is a consent acquisition made by the State for MRPL and the same is not in exercise of power of eminent domain. State does not keep the land for its usage as the same was acquired for the benefit of MRPL. KIADB is not the beneficiary of the acquisition. Since the acquisition was at the instance of the parties, the role of the State as well as the KIADB is very limited. He emphasized that the State is giving the lands to the MRPL upon its request and not to the KIADB for its purposes or for its objects.
d. Referring to document no. 9 filed by the MRPL namely MOU dated 12.05.2016 he submitted that the same MOU pertains to an extent of 1050/- acres of land 45 and the clause 8 and 9 of the said MOU cannot be extended to the lands subject matter of this petition. e. He relies upon the following judgments
(i) order passed by the Division Bench of this Court in the case of LAKSHMI TOURISM CORPORATION VS. LAKE VIEW TOURISM CORPORATION AND ANOTHER passed in W.A.No.118/2023 dated 14.11.2022
(ii) SOMASHEKAR AND OTHERS VS. STATE OF KARNATAKA reported in 1997 Kant.L.J 410.
13. Sri. Sampath, learned counsel appearing for the land owners supplementing the submissions made by Sri.K.G.Raghavan, learned Senior counsel submitted that;
a. prayer sought by the MRPL in its writ petition is for quashing of the notifications dated 15.12.2017 and 25.11.2020 to the extent the lands referred to in the award dated 07.07.2023. He reiterated that the grounds urged for grant of said reliefs are misrepresentation, fraud and non-viability of the lands for the project. No reliefs can be granted on the grounds urged in the writ petition.
46b. He further submits that on issuance of final notification under section 28(4) of the KIAD Act is issued there is no provision under this Act to denotify the lands.
c. He submits the acquisition of the subject lands were made by the respondent/State in exercise of its power of eminent domain and not by any consent. Consent can only be given in the form of agreement for the purpose of passing the award as contemplated under the provisions of Section 29(2) of the KIAD Act. He submits perusal of notifications reveal that it was not the consent acquisition. Thus, sought for allowing of the writ petition filed by the land owners and dismissal of writ petition filed by MRPL.
ANALYSIS:
14. Heard. Perused the records.
15. The issuance of notifications dated 15.12.2017 and 25.11.2020 and acquisition of lands belonging to the land owners is not in dispute. It is also not in dispute that the possession of acquired lands has been taken and the award 47 has been passed by the respondent authorities. Contents of notifications and the award passed by SLAO reveal that entire process of acquisition is in accordance with relevant provisions of KIAD Act. In other words the lands have been acquired in exercise of powers conferred under Section 28 of KIAD Act, award has been passed and possession has been taken and the acquired lands have vested with the State in the manner known to law free from all encumbrances.
16. Though an extent of 170.96 acres is acquired under these notifications for the Phase IV Expansion Project of MRPL, subject matter of these two writ petitions is only an extent of 49.87 acres of non agricultural lands belonging to the land owners.
17. Writ Petition in W.P.No.22685/2023 is for quash of notifications dated 15.12.2017 and 25.11.2020 issued under Section 28(4) of KIAD Act, 1966 and also for quash of award dated 07.07.2023. While writ petition in W.P.No.15168/2023 is for the relief in the nature of direction to the respondent authorities to disburse the compensation amount of 48 Rs.197,28,34,758/- to the land owners as per the General Award dated 16.03.2023.
18. On hearing the submissions of the learned Senior counsel for the parties and on perusal of the records, following points arise for consideration:
1. Whether MRPL has made out a case for quashing of notifications dated 15.12.2017 and 25.11.2020 insofar as they relate to lands referred to in the award dated 07.07.2023 and consequently the award dated 07.07.2023 on the grounds as urged in the writ petition?
2. Whether the Landowners are entitled for direction to the Respondent Authorities to disburse the compensation amount of Rs.197,28,34,758/- as per General Award dated 16.03.2023?
3. Whether MRPL is a necessary party to the writ petition filed by the land owners?
POINT No.1:
19. At the outset it is necessary to note that the relief sought by MRPL in its Writ Petition in W.P.No.22685/2023 is primarily on the grounds that:49
a. the said parcel of land measuring 170.96 acres has been acquired at the instance of the land owners who have perpetuated fraud on the officials of KIADB; made false representation to MRPL; obtained change of land usage from agriculture to non-agriculture purpose with a malafide intention of seeking higher rate of compensation; and, that the said lands being unviable for its project.
b. There is no challenge to the acquisition on the grounds of any illegality or irregularity on the part of state authorities in exercising the power under the KIAD Act or the procedure adopted in acquiring the subject lands. Therefore there is no need to go into the mode and manner adopted for acquisition of the subject lands by the respondent-State.
20. Before adverting to the contentions and allegations made in the writ petition by MRPL attributing fraud and false representation on the landowners it is necessary at this juncture to refer to the Judgment of the Apex Court in the case of State of Andhra Pradesh Vs T. Suryachandra Rao 50 in Civil Appeal No.4461/2005 reported in AIR 2005 SC 3110 wherein referring to its earlier Judgments the Apex Court has encapsulated meaning of term "Fraud" and its consequences under different context, which are as under:
"8. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived.
Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Dr. Vimla v. Delhi Administration (1963 Supp. 2 SCR 585) and Indian Bank v. Satyam Febres (India) Pvt. Ltd. (1996 (5) SCC 550).
9. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath (1994 (1) SCC 1).
10. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion 51 or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi and Ors. (2003 (8) SCC 319).
11. ........
12. ........'Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false'."
13. ........
14. .....Suppression of a material document would also amount to a fraud on the court. (see Gowrishankar v. Joshi Amba Shankar Family Trust (1996 (3) SCC 310) and S.P. Chengalvaraya Naidu's case (supra).
15. "Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav's case (supra).
21. In the light of aforesaid enunciation of law on fraud and misrepresentation by the Apex Court it is to be seen that if MRPL has made out its case warranting quashment of notifications to the extent of lands subject matter of the petition on the grounds of fraud and misrepresentation.
22. Necessary at this juncture to refer to the joint inspection report produced at Annexure-B, which is a communication dated 31.08.2015 by the SLAO of KIADB addressed to the 52 Special Deputy Commissioner, KIADB. The subject of the said communication is acquisition of land measuring 173.67 acres of Kandavara and Muloor village, Mangaluru Taluk, Dakshina Kannada District for industrial area development of the Board. It also refers to letter dated 01.08.2015 issued by the Special Deputy Commissioner. The said communication reads as under:
PÀæ.¸ÀA:J¯ï.J.PÀÆå/¹.Dgï42/2015-16(II) ¢£ÁAPÀ:31.08.2015. «±ÉõÀ f¯Áè¢üPÁjUÀ¼ÀÄ PÀ.PÉÊ.¥Àæ.C.ªÀÄAqÀ½, ¨ÉAUÀ¼ÀÆgÀÄ.
EªÀjUÉ, ªÀiÁ£ÀågÉ, «µÀAiÀÄ: ªÀÄAqÀ½AiÀÄ PÉÊUÁjPÁ ¥ÀæzÉñÀPÁÌV zÀ.PÀ.f¯Éè ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆPÀÄ PÀAzÁªÀgÀ ªÀÄvÀÄÛ ªÀÄƼÀÆgÀÄ UÁæªÀÄUÀ¼À°è MlÄÖ 173.67 JPÀgÉ d«ÄãÀÄ ¸Áé¢üãÀ¥Àr¸ÀĪÀ PÀÄjvÀÄ. G¯ÉèÃR: vÀªÀÄä ¥ÀvÀæ ¸ÀASÉå:PÉLJr©/PÉÃAPÀ/¨sÀƸÁé(ªÀÄA)2467/6398/15-16 ¢£ÁAPÀ:01.08.2015.
ªÉÄð£À «µÀAiÀÄPÉÌ ¸ÀA§AzsÀ¥ÀlÖAvÉ ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆPÀÄ, PÀAzÁªÀgÀ ªÀÄvÀÄÛ ªÀÄƼÀÆgÀÄ UÁæªÀÄUÀ¼À°è MlÄÖ 173.67 JPÀgÉ d«ÄãÀ£ÀÄß PÉÊUÁjPÁ GzÉÝñÀPÁÌV ¸Áé¢üãÀ¥Àr¸ÀĪÀgÉÃ
1) ²æà Dgï.PÉ. £ÁUÉÃAzÀæ 2) ²æà ¹.¦.eÉ«Äì ¥ÉÆ£ÀߥÀàgÀªÀgÀÄ ªÀÄAqÀ½ PÁAiÀÄð¤ªÁðºÀPÀ C¢üPÁjAiÀĪÀjUÉ ªÀÄ£À« ¸À°è¹gÀÄvÁÛgÉ. ¸ÀzÀj ªÀÄ£À«AiÀÄ£ÀÄß vÁªÀÅ F PÀbÉÃjUÉ ªÀUÁðªÀuÉ ªÀiÁr-
¸ÀzÀj d«ÄãÀÄUÀ¼ÀÄ PÉÊUÁjPÉUÉ C©üªÀÈ¢Þ¥Àr¸À®Ä AiÉÆÃUÀåªÉÃ?, d«Ää£À vÀgÀºÀ ªÀÄÆ®¨sÆ À vÀ ¸ËPÀAiÀÄðUÀ¼À ªÀåªÀ¸ÉÜ EvÁå¢UÀ¼À §UÉÎ C©üªÀÈ¢Þ C¢üPÁj ªÀÄvÀÄÛ dAn ¤zÉÃð±ÀPÀgÀÄ, PÉÊUÁjPÁ PÉÃAzÀæ EªÀgÉÆA¢UÉ dAn ¸ÀܼÀ vÀ¤SÉ £Àqɹ ªÀgÀ¢ ¸À°è¸ÀĪÀAvÉ G¯ÉèÃRzÀ£ÀéAiÀÄ PÉÆÃjgÀÄwÛÃj. CzÀgÀAvÉ ¢£ÁAPÀ:20.08.2015gÀAzÀÄ ªÉÄð£À C¢üPÁjUÀ¼À ¸ÀªÀÄPÀëªÄÀ dAn ¸ÀܼÀ vÀ¤SÉ £ÀqɸÀ¯ÁVzÉ. ¥Àæ¸ÁÛ«vÀ 173-67 JPÉæ d«ÄãÀÄUÀ¼ÀÄ PÉÊUÁjPÁ ¥ÀæzÉñÀ C©üªÀÈ¢Þ¥Àr¸À®Ä AiÉÆÃUÀåªÁVgÀÄvÀÛzÉ. F d«Ää£ÉÆA¢UÉ ªÀÄzsÀå¨sÁUÀzÀ°è §gÀĪÀ EvÀgÀ PÉ®ªÀÅ d«ÄãÀÄUÀ¼À£ÀÄß ¨sÀƸÁé¢üãÀ¥Àr¹PÉÆAqÀ°è DAiÀÄPÀnÖUÉ M¼À¥ÀqÀÄvÀÛzÉ. F PÀÄjvÀÄ dAn ¸ÀܼÀ vÀ¤SÁ ªÀgÀ¢AiÀÄ£ÀÄß EzÀgÉÆA¢UÉ ®UÀwÛ¹zÉ.
DzÀÄzÀjAzÀ ¸À¢æ d«ÄãÀÄUÀ¼À£ÀÄß ¨sÀƸÁé¢Ã£À¥Àr¸À®Ä ªÀÄÄA¢£À PÀæªÄÀ PÉÊUÉƼÀÀÄzÁVzÉ.
vÀªÀÄä «±Áé¹, ¸À»/-
«±ÉõÀ f¯Áè¢üPÁjUÀ¼ÀÄ PÀ.PÉÊ.¥Àæ.C.ªÀÄAqÀ½, ¨ÉÊPÀA¥Ár ªÀÄAUÀ¼ÀÆgÀÄ.
53The joint inspection report which forms part of the said communication reads as under:
dAn ¸ÀܼÀ vÀ¤SÁ ªÀgÀ¢ "«±ÉõÀ ¨sÀƸÁé¢üãÁ¢üPÁjUÀ¼ÀÄ PÉ.L.J.r.© C©üªÀÈ¢Þ C¢üPÁjUÀ¼ÀÄ PÉ.L.J.r.© ªÀÄvÀÄÛ dAn ¤zÉÃð±ÀPÀgÀÄ f¯Áè PÉÊUÁjPÁ PÉÃAzÀæ ªÀÄAUÀ¼ÀÆgÀÄ EªÀgÀÄ ¢£ÁAPÀ:20.08.2015gÀAzÀÄ ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆPÀÄ PÀAzÁªÀgÀ ªÀÄvÀÄÛ ªÀÄƼÀÆgÀÄ UÁæªÀÄUÀ¼À°è MlÄÖ 173-67 JPÉæ d«ÄãÀ£ÀÄß ¸Áé¢üãÀ¥Àr¸À®Ä £ÀqɹzÀ dAn ¸ÀܼÀ vÀ¤SÁ ªÀgÀ¢.
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54
23. Perusal of the aforesaid communication and report would reveal that SLAO, KIADB Development Officer, Joint Director District Industrial Centre, Mangaluru conducted joint inspection and found that the lands including the subject lands of Kandavara and Muloor Village are Kushki, Thari and Bhagayutu lands and are more or less level lands situated near the National Highway No.13 on their Eastern side and Gurupura river flowing on their Southern side and the Bajpe International Airport situated about 4 kms away from the said lands. It is also pointed out that there are some undulation of lands on the Northern side.
24. Communication dated 03.10.2015 issued by C.P.Jemcy Ponnappa -land owner and R.K.Nagendra addressed to the Managing Director -MRPL and Chief Executive Officer of KIADB produced at Annexure-C reads as under:
55
3 October 2015.
The Managing Director Mangalore Refinery and Petrochemicals Limited Kuthethor PO via Katipalla Mangalore 575 030.
Respected Sir, Subject: Land Requirement for Rehabilitation and Resettlement for M/s Mangalore Refinery and Petrochemicals Limited (MRPL) It is learnt from the recent media reports that MRPL is need of 1000 acres of land for its expansion of its project which is preferred to be adjacent to the existing project. Since this going to be a very large land acquisition proposition for MRPL, there may be in need of huge land for Rehabilitation and Resettlement of the land losers in it's near vicinity land We, Mr.CPJemcy Ponappa and Mr.RK Nagendra, being an agriculturist family are holding around 250 acres of land in Kandavara and Mulur Villages, Gurpura Hobli, Mangalore Taluk. Due to various personal and health issues we are unable to concentrate on farming and hence we are willing to sell the land to any prospective buyer. Since we come to understand that MRPL procures land through the (Karnataka Industrial Area Development Board) KIADB, it would be appropriate for MRPL and KIADB, to consider the possibility of buying our land for the purpose mentioned herein if suits their requirement.
The land is situated at a distance of 5km from MRPL in Kandavara and Mulur Villages, Gurpura, and the land is adjacent to the Gurpura River. The area has a good density of water source and MRPL can consider the rehabilitation township for its land losers, with no issues relating to drinking water and connectivity, this land also abutting the National Highway (Mangalore Solapur Highway). The other benefits of the land includes near by religious establishments, schools, colleges etc. Our lands located at Kandavara and Mulur Villages, have already been jointly inspected upon by the Development Officer, Joint Director, Industrial Centre, Mangalore and The Special Land acquisition officer KIADB Bykampadi Mangalore, vide letter dated 31.08.2015 No S1.No.LA/C.R./42/2015-16(II), on the orders of Executive board of KIADB. Their opinion is favorable to industrial area development and township.
Since this land belonging to our family members being a single plot there will be no major issues relating to execution of land acquisition by MRPL. In this regard we will be willing to sell thus land to KIADB provided we are compensated adequately in lines with present norms for land acquisition. We would like to contribute out land for cause of Nation building and employment generation through industrialization.
We request you to forward your interest, if it suits your requirement to us through KIADB.
Thanking You
(CP Jemcy Ponappa) (RK Nagendra)
4th Block, By pass Road, Thyagaraj Road,
Kushala nagara Kodagu District 14 Block, kushalnagara,
Kodagu District
56
25. Perusal of the said communication would also reveal that the land owner and said R.K.Nagendra have also stated about the location of land, as stated in the joint inspection report and have also agreed for acquisition of lands subject to they being compensated adequately. The last sentence of the said communication reads that "we request you to forward your interest, if it suits your requirement to us through KIADB".
26. Endorsement is found on the top of said communication at Annexure-B addressed to Managing Director of MRPL wherein it is written "please get it checked for feasibility and contiguous land".
27. Communication dated 07.12.2015 produced at Annexure- D would reveal that MRPL had requested to notify the aforesaid land measuring 176 acres in Muloor and Kandavara villages offered by land owner Jemcy Ponnappa and R.K.Nagendra.
57
28. The Government Order at Annexure-E dated 20.02.2016 also refers to the request made by MRPL to include lands in Thenkayekaru, Muloor and Kandavara Villages for their proposed expansion which has been approved by the Government.
29. Preliminary Notification was issued under Section 28(1) of the KIAD Act on 20.12.2016. The Final Notifications dated 15.12.2017, 25.11.2020 were issued under Section 28(4) of KIAD Act.
30. The Notifications referred to above, make it very clear that the aforesaid lands were notified for acquisition and are accordingly acquired by the respondent authorities in exercise of powers under Section 28 of the KIAD Act for the expansion project of MRPL.
31. The aforesaid communications leading upto issuance of aforesaid notifications would indicate that there is complete transparency in the communications ensued between all the stakeholders atleast with regard to the nature, location and situation of the subject lands. Said communications have been addressed directly to MRPL and as already noted 58 endorsement found on the communication stating "Please get it checked for feasibility and contiguous land"
indicate that MRPL has also been part of verification of the situation and feasibility of the subject lands. Learned Senior counsel Sri.K.G.Raghavan submitted, and which is not denied by MRPL, that MRPL is located in one of the villages namely Kuthethoor Village which is just about 4 to 5 kilometers away from Muloor and Kandavara Village.
32. Communications have ensued between the parties from August 2015 till issuance of notification on 15.12.2017. Possession of land has been admittedly taken on 01.03.2018. Disputes and differences regarding quantum of compensation arose on and from 03.07.2019 when the land owners were informed that compensation will be paid under the Act, 1894 and continued upto passing of order dated 21.10.2022 in W.P.No.12699/2021 by this Court directing determination of compensation afresh treating the lands as converted lands. In the said order this Court has reserved liberty to respondent-SLAO to notify and hear MRPL before passing fresh award.
59
33. Thereafter KIADB communicated the aforesaid order of this Court to MRPL seeking its response. Even as could be seen infra, MRPL even in all its communications dated 20.12.2022, 04.01.2023 and 22.03.2023 issued in response to the letter of KIADB till filling of the present writ petition, has not whispered anything about alleged misrepresentation, fraud or any malafide on the part of the land owners. There is also no whisper with regard to lands being unviable. The only concern expressed by MRPL is enhanced cost of acquisition and its financial implication.
34. Much of the submissions are made adverting to the liberty reserved in favour of the respondent authorities in the order dated 21.10.2022 in WA.No.12699/2021 to notify and hear MRPL before passing the fresh/new award and contended that no such opportunity as directed by this Court was afforded to MRPL depriving it of its right of being heard resulting in deprivation of principles of natural justice.
35. It is contended by learned Senior counsel appearing for MRPL that non compliance of the direction given by the learned Single Judge in order dated in W.P.No.12699/2021 is 60 breach of its entitlement to be heard. MRPL being beneficiary of the project is a necessary party both in the proceedings before the SLAO and this Court.
36. Necessary at this juncture to refer to communication dated 13.12.2022 produced at Annexure-H addressed by SLAO to MRPL which reads as under:
No.LAQSR3/2016-17/III/709 Date:13.12.2022 To, General Manager (HR-Admin) MRPL, Kuthethuru P.O. Via Katipalla, Mangaluru-575 030.
Sir, Sub: MRPL 4th Stage Extension Project - Land acquisition under KIADB Act 1966- Mulur village Sy No.49/A6 etc., total extent 27.315 Acre and in Kandavara village Sy. No.65/5 etc., total Extent 22.55 acres - dispute in compensation payment-W.P. No. 12699/2021 (LA KIADB) order dated 21-10-2022- implementation-reg Ref: Judgement dated: 21-10-2022 passed in W.P. No:12699/2021 (LA-KIADB) passed by the Hon'ble High Court of Karnataka at Bengaluru.
Please find herein enclosed copy of the Judgement passed by the Hon'ble High Court of Karnataka at Bengaluru in W.P. No. 12699/2021 (LA-KIADB) dated:21-10-2022.
The Writ Petition was filed by Mr. Jemcy Ponnappa C.P. and another making the State Government of Karnataka and 3 others as respondents. The SLAO, Baikampady, Mangaluru is the 3rd Respondent. The Writ Petition was filed against the Award dated: 18- 11-2020 passed, fixing the award amount of Rs 15,37,36,459/- treating the acquired lands are as agricultural lands by the SLAO Baikampady, Mangaluru in accordance with directions issued in W.P. 33053/2019 order dated 16-12-2019 against the acquisition of land for the MRPL 4th stage extension Project in Mulur village in Sy. No.49/A6 etc., total extent 27.315 acres and in Kandavara village in Sy. No.65/5 etc., total extent 22.55 acres of land.
The Writ Petitioners have contended before the Hon'ble High Court of Karnataka at Bengaluru that the acquired lands are converted lands hence they should be compensated at converted rates. The High Court has upheld their contention and quashed the award passed by the 61 SLAO and directed to pass a fresh award taking into consideration of converted rate of lands within two months of the date of order time taking into consideration the date of receipt of certified copy of the said order.
In the order dated it has stated as "Liberty is also reserved in favour of concerned respondents to notify and hear the acquisition allotte i.e., Mangaluru Refineries and Petro Chemicals Limited before passing the fresh/ new award as directed above."
The copy of the earlier award dated: 18-11-2020 is enclosed for your perusal and needful action.
Therefore I request you to give your opinion/ statement in detail immediately.
Thanking You, Yours faithfully Sd/-
Special Land Acquisition Officer, KIADB, Bykampady Mangalore.
37. As could be seen the said communication is in compliance with the "liberty reserved in favour of the respondents "to notify MRPL about award to be passed". By the said communication MRPL has not only been notified as directed but has to be called by the SLAO to file its response/statement in detail.
62
38. In response to the said communication MRPL issued communications dated 20.12.2022, 04.01.2023 and 22.03.2023 produced at Annexures-J, K and L which reads as under:
Ref:Admin-1856/Cab-X1-61 Date: 20.12 2022 To, Special Land Acquisition Officer, KIADB, Baikampady, Mangalore Sir, Sub: W.P. No. 12699/2021 (LA-KIADB) order dated:
Ref: KIADB letter No LAQ SR 3/2016-17/III/709 dated 13-12-2022 addressed to MRPL We are in receipt of the subject letter from KIADB requesting MRPL for its opinion/statement on the judgement passed by the Hon'ble High Court of Karnataka for the land being acquired by KIADB in Survey nos 49/A6 etc in Mulur Village - total extent of 27.315 Acres and Survey nos 65/5 etc in Kandavara Village - total extent of 22.55 Acres.
As the Hon'ble High Court has upheld the contention of the petitioners and directed KIADB to pass fresh award considering the land being acquired as converted land within 2 months, KIADB is requested to provide the following details for MRPL's review and records
1. Approximate rate per acre of converted land at the referred area
2. In case MRPL decides to forfeit the subject land of 49.87 Acres from the acquisition process:
a. Will there be any major impact on the R & R layout being prepared by KIADB b. Will there be any additional financial implication on MRPL c. Is it possible to exclude the land from the acquisition process KIADB is requested to furnish above details for us to forward our opinion as desired vide above letter.
Thanking you, For Mangalore Refinery and Petrochemicals Limited Sd/- 20/12/22 Chief General Manager (Administration) Cc. Group General Manager - HR MRPL.63
Annexure -K Ref:Admin-1868/Cab-X1-61 Date:04.01.2023 To, Special Land Acquisition Officer KIADB, Baikampady, Mangalore - 575 011 Sir, Attn:Mr Binoy P.K. Subject: Judgement dated passed by the Hon'ble High Court in W.P. No. 12699/2021 (LA-KIADB) regarding 49.865 Acres in R & R Colony of MRPL Phase IV Project Mulur & Kandavara Villages Ref: 1. KIADB Letter ref. LAC SR 3/2016- 17/11/709 dated 13.12 2022 2 MRPL letter ref; Admin-1856/Cab-X1-61 dated 20.12.2022 3 KIADB Letter ref: LAQ SR 3/2016-17/III/748 dated 23.12.2022 on the above subject This has reference to the above KIADB letters requesting MRPL for its opinion/statement on the Hon'ble High Court order wherein the High Court has directed KIADB to pass a fresh award taking into consideration of converted rate of lands for the 49.865 Acres of land in Mulur & Kandavra Villages. Please also refer letter dated 23.12.2022 wherein KIADB have arrived at a cost of Rs 53.73 Cr towards acquisition of 49. 865 Acres considering the land as converted land.
As you are aware Rs 80 Lakh/Acre was fixed as Land compensation by the District Administration for the land being acquired for MRPL Phase IV Project and the same is being disbursed by KIADB for all the eligible land owners. However, as the land rate worked out by KIADB is higher than the rate fixed by the District Administration, MRPL is not in agreement to pay higher land compensation to this land parcel.
Considering the above, subject land parcel of 49.865 Acre be De- notified from the acquisition process at R & R Colony in Mulur & Kandavara Villages. Also, necessary communication be furnished to the Hon'ble High Court and the land owners, accordingly. Thanking you.
For Mangalore Refinery and Petrochemicals Limited, 4 Sd/-(04.01.2023) General Manager-Administration Cc:
1 Development Officer, KIADB, Mangalore 2 CEO & EM, KIADB, Khanija Bhavana, Bangalore
3. Group General Manager - HR, MRPL.64
Annexure -L Ref:MRPL/Admin-1905/Cab-X1-61 Date: 22.03.2023 To, The Special Deputy Commissioner KIADB. Khanija Bhavana.
Bangalore-01.
Sir, Subject: De-notification of 49.865 Acres in R & R Colony of MRPL Phase IV Project in Mulur & Kandavara Villages in DK District. Ref: 1. KIADB Letter ref: LAQ SR 3/2016-17/III/748 dated 23.12. 2022
2. MRPL letter ref: Admin-1868/Cab-X1-81 dated 04.01.2023 on the subject This is in continuation to above referred letter dated 04.01.2023 from MRPL communicating KIADB to de-notify the referred land parcel at the proposed R. & R colony In this regard, KIADB is requested to complete necessary formalities for de-notification and update MRPL on the actions taken by KIADB, for its information and records.
Thanking you.
For Mangalore Refinery and Petrochemicals Limited, Sd/-
General Manager - Administration Cc:
1. SLAO, KIADB, Mangalore
2. Development Officer, KIADB, Mangalore
3. Chief General Manager - Admin, MRPL.
39. Perusal of the aforesaid communication of SLAO and the response by MRPL as extracted hereinabove would clearly indicate all that MRPL was concerned was with regard to additional financial implications in granting compensation in respect of 49.87 acres of land belonging to the land owners and its request to exclude said parcel of land from acquisition 65 if possible and nothing more. As rightly pointed out by learned Senior counsel for the land owners, there is not even a whisper in these communications with regard to so called false representation, fraud or malafide either on the part of the land owners or on the part of officials of KIADB. There is also no whisper with regard to land being unviable and not feasible for the purpose of the project to be the reason for dropping from acquisition as sought to be made out in the writ petition.
40. There is no explanation of any nature whatsoever regarding MRPL not choosing to participate in the process of passing fresh award despite being notified by SLAO. No explanation regarding MRPL not taking any measures in safeguarding its own interest. After all the thrust of the MRPL is protecting public exchequer from being saddled with additional financial burden. Further it is also the case of MRPL that affected persons, who are going to be rehabilitated in the subject lands, have made representations to MRPL insisting it not to take the subject lands. If such representations were received by MRPL, why did it not take any action or atleast mention the same in its communications referred to above is 66 not explained. A larger question also required to be answered by MRPL as to how did it not notice atleast for over six years from the date of preliminary notification, that subject lands getting water logged during rainy season. Gurupura river flowing by southern side of the subject land and the same getting flooded year after year during the rainy season as contended by MRPL cannot be a matter of suppression or false representation. MRPL cannot be heard to be naïve of these aspects of the matter which is admittedly located just within 4 to 5 kilometers away from the subject land.
41. Necessary also to note that the total extent of land acquired for MRPL is in excess of 1050 acres. The dispute in these petitions in only to an extent of 49.87 acres. As such, the contentions vehemently urged on behalf of MRPL that this parcel of land is not viable and the same would saddle the public body and the public exchequer with additional financial burden also cannot be countenanced.
42. Further as rightly pointed out by learned Senior counsel for the land owners report at Annexure-G has come up on 22.12.2022 which is subsequent to passing of the order dated 67 21.10.2022 by this Court in W.P.No.12699/2021 whereby this Court had directed passing of the fresh award treating the lands to be converted lands.
43. Perusal of the said report would reveal that the same is prepared by M/s.Alcon Consulting Engineers (India) Pvt. Ltd., Bengaluru who is engaged by the KIADB for purpose of preparing a detailed project report along with technical and economical viability in respect of 95.2 acres of land.
Paragraph 4 of the said report under the heading "Development Works for Formation of Residential Layout"
refers to said extent of 95.2 acres of land being in a valley region with river Gurupura flowing from East to West having HFL of 5.65 to 5.75 meters requiring bringing up level of the layout to HFL of adjacent river by raising to the extent of
3.0m to avoid flood and formation of ponds. It also refers to additional cost of Rs.49.56 crores for the purpose of raising ground level and Rs.35.45 crores requiring to retain and keep intact the peripheral embankment of the layout by building a retaining wall. The said report as rightly pointed out by the learned counsel for the land owners is only a report with regard to cost involved in the development of the project. 68 The report does not support the case of MRPL with regard to land being unviable or unfeasible for the project. In any event the said report is issued through KIADB nor as an acquiring authority but admittedly as an agency which is engaged to implement the project.
44. Appropriate at this juncture also to refer the Memorandum of Understanding(MOU) dated 12.05.2016 which is entered into between MRPL and KIADB, produced at Document No.9 of the memo dated 30.01.2024 on behalf of MRPL wherein the said document is entered into broadly laying down the terms with regard to cost of acquisition and implementation of the project. The lands in Muloor and Kandavara village also form part of said MOU. The total extent of the land subject matter of said MOU is 1050 acres total cost estimated and payable by MRPL is Rs.277,87,23,172/- which includes 10% service charges payable to KIADB. Clauses 8 and 9 of the said MOU read as under:
"8. (a) If the acquisition proceedings are dropped in case of SUC's due to ommissions and commissions of Board /Govt, including delay in issue of the notification under section 28(1) or 28(4) of the KIAD Act., the entire amount of land cost deposited by the company is to be refunded.
(b) If the acquisition proceedings are dropped due to various reasons at the instance of the beneficiary company before issue of under Sec.28(1) the forfeiture is limited to 10% of the amount paid towards the cost of acquisition. 69 (C) If the acquisition proceedings are dropped at the instance of beneficiary company after issue of preliminary Notification under Sec.28(1) and before issue of final Notification under Sec.28(4) of the KIAD Act, 20% of the amount shall be forfeited out of the amount remitted by the company towards 40% cost of acquisition".
9(a) If the acquisition proceedings are dropped due to various reasons at the instance of beneficiary company after issue of final notification under Section 28(4), the forfeiture is limited to 20% of the amount paid towards the cost of acquisition. But the balance 80% amount remitted by the company could be refunded only after allotment of said land to any other industries and on realisation of the cost of land.
b) If any change is required in individual case, such proposals be examined based on the merits of each case and grounds of equity and such proposals shall be placed before the Board for consideration".
45. The aforesaid documents leave no doubt that MRPL and KIADB were aware of the nature of the land to be acquired and the responsibility and the consequences of the terms of the contract entered into between the two even as on 12.05.2016. At any rate these documents, correspondence would not give any ground for quashing of acquisition or setting aside of the award as sought for by MRPL.
46. The allegations regarding land owners obtaining conversion orders with a malafide intention of seeking higher compensation as made by MRPL is also unfounded. Learned Senior counsel for the land owners submitted a chart along with a sketch at the time of arguments in furtherance to statement of objections providing details of the applications 70 made seeking conversion of the lands, dates of challan regarding payment of necessary fees and orders of conversion. It is seen that the challan dates for conversion are 15.03.2003, 10.10.2008, 05.10.2015, 20.11.2015, 04.01.2017. The date of orders of conversion are 18.03.2003, 10.10.2008, 05.10.2015 and 04.01.2017. In any event plea of land owners of their land having been converted and the same to be treated as such for the purpose of determination of compensation has been accepted by this Court in its order dated 21.10.2022 in W.P.No.12699/2021 has attained finality. The said question cannot be gone into in this petition.
47. As already noted despite SLAO notifying the MRPL regarding said order in writ petition and calling upon the MRPL to file its statement, for the reasons best known MRPL has conspicuously remained silent. MRPL being a Public Sector Undertaking ought to have discharged its public trust obligation with due diligence. If it had considered itself a necessary party concerned about saving public exchequer ought to have participated in the proceedings, taken all steps required under law, even challenging the award as provided 71 under law before the competent authority. MRPL has done nothing except now filing this writ petition on a completely new and brought up theory of fraud, false representation and malafide that too after such a long lapse of time.
48. Interestingly respondent-KIADB has distanced itself from the entire controversy. However, a feeble attempt is made in its scanty statement of objections by stating that the land owners have misrepresented about the suitability of the land to the project and that a contract arrived at between the parties under misrepresentation is neither executable nor valid. It has sought dismissal of the writ petition filed by MRPL. Appropriate at this juncture to also refer to statement of objections filed by respondent-KIADB to the writ petition in W.P.No.15168/2023 filed by the land owners wherein as already noted KIADB has not taken any definite stand with regard to passing of the award dated 16.03.2023. It has neither denied nor admitted passing of the said award dated 16.03.2023. It has merely produced the award dated 07.07.2023 and has contended if the land owners were aggrieved they could seek enhancement of the same before appropriate forum. Learned Senior counsel Sri.Shashikiran 72 Shetty appearing for KIADB had categorically submitted that the State and the KIADB have merely acted upon the request made by both land owners and MRPL who had requested the State and the KIADB to acquire their land. That the acquisition was a consent acquisition and not in exercise of power of eminent domain. Both the parties having consented cannot retract from their position so as to make the State and the KIADB answerable to their actions. He further submitted KIADB pursuant to the Memorandum of Understanding entered into between MRPL and itself is entitled for its service charges for the purpose of developing and implementing the project. He however submitted that State under Section 4 of the KIAD Act is vested with power to denotify the land acquired which power is recognized by the Division Bench of this Court in the case of Lakshmi Tourism Corporation (supra). He further submits that issue with regard to power of the State to denotify need not be gone into as the MRPL has sought for quashing of notification and award on the grounds of fraud and misrepresentation. The stand of the respondent-KIADB in the matter in the considered opinion of this Court is neither in justification of acquisition nor against 73 it. It has simply taken a stand that it has a very limited role of developing the land which is acquired by the State for the purpose of project of MRPL and nothing else. In other words it has distanced itself from the controversies raised by both the MRPL and land owners. State on the other hand has neither filed any statement of objection nor has made its stand clear in the controversy.
49. From the holistic reading of the aforesaid material it cannot be said the land owners have perpetuated fraud by making false representation knowingly, recklessly and carelessly thereby have induced MRPL and the officers of the respondent authorities to acquire the subject land as sought to be contended. The allegation of collusion between the land owners and officials of KIADB also cannot be countenanced in view of active participation of MRPL in satisfying itself with regard to location and nature of the land further requesting the Government to acquire the said parcel of land.
50. Thus, in view of the above material records it cannot be accepted that MRPL and the officials of KIADB were misled and induced by the land owners. Reliance placed by learned 74 Senior counsel for MRPL on the Judgments of the Apex Court in the cases of Royal Orchid Hotels Ltd., and Uddar Gagan Properties Ltd., (supra) are of no avail to the fact situation of the case.
51. For the aforesaid reasons and analysis this Court is of the considered view that MRPL has not made out any grounds for granting of relief as sought for. Point No.1 is answered accordingly.
52. However, since the KIADB in the statement of objections has clearly stated that it would consider the request/representation of MRPL for allotment of alternate land in accordance with law, there is no requirement of issuing any direction in that regard.
POINT No.2:
53. Though landowners in their Writ petition in W.P.No.15168/2023 have sought for the relief in the nature of direction to the respondent authority to disburse the compensation amount of Rs.197,28,34,758/- as per the General Award dated 16.03.2023, necessary at this juncture to note that award dated 07.07.2023 was brought on record 75 by the respondent authorities in their statement of objections as per Annexure-R-1. In the said award dated 07.07.2023 amount determined is Rs.55,69,76,660/-. There is no Challenge to this award dated 07.07.2023.
54. The basis on which the said relief is sought in W.P.No.15168/2023 is that the land owners had approached this Court by filing writ petition No.33053/2019 against the endorsement and communication dated 03.07.2019 and 14.06.2019 by which the land owners were informed that the compensation be paid to them under the Act, 1894 and not under the Act, 2013. This Court allowing the said writ petition by its order dated 01.03.2019 directed the respondent authorities to pass the award under the Act, 2013. Alleging non compliance of the said order land owners initiated contempt proceedings in C.C.C.No.174/2020 in which proceedings a General Award dated 18.11.2020 was filed by the respondent authorities treating the lands as agricultural lands. This constrained the land owners to file another writ petition in W.P.No.12699/2021. This Court by order dated 21.10.2022 while setting aside the said General Award dated 18.11.2020 directed the respondents to pass fresh award 76 under Section 30 of KIAD Act read with the provisions of Act, 2013 treating the lands of the land owners as converted lands within two months thereof. Alleging non compliance of the said order land owners initiated contempt proceedings C.C.CNo.364/2023 along with the statement of objection the respondent No.3 had filed the General Award dated 16.03.2023 wherein it had determined the compensation payable at Rs.197,28,34,758/-. The said award is produced at Annexure-D to the writ petition obtained by the land owners under the Right to Information Act. Allegation of the land owners is that the said award has not been given effect to resulting in violation of rights of the land owners conferred under Article 300A of the Constitution of India.
55. Statement of objections were filed by KIADB wherein there is no reference to the award dated 16.03.2023 produced at Annexure-D of the writ petition. However, the same refers to an award dated 07.07.2023 passed by SLAO determining the compensation at Rs.55,69,76,660/- as per Annexure -R-1 and its approval by the State Government on 07.09.2023. A specific plea is made in the statement of objection by the respondent authorities that if the land owners are not satisfied 77 with the award passed on 07.07.2023 they are at liberty to seek enhancement of the same before appropriate forum in accordance with law.
56. Necessary also to refer that an application in I.A.No.3/2023 was filed by the land owners seeking direction to release the amount. Learned counsel for KIADB had sought time to seek instructions from the respondent-KIADB if the amount determined in the award dated 07.07.2023 could be released to the land owners, matter was accordingly adjourned on two occasions. On 23.09.2023 learned counsel appearing for KIADB submitted that KIADB was not in a position to release the amount as the MRPL for whose benefit the land was acquired was not willing to take possession of the land. However, a submission was made that given a month's time KIADB would release the amount of compensation determined under the award dated 07.07.2023. The said stance of the respondent -KIADB was opposed by the counsel for the land owners. This Court by its order dated 23.09.2023 taking into consideration of the submission made by the respondent -KIADB that award amount determined under award dated 07.07.2023 would be released and also 78 taking into consideration the contents of statement of objections that if land owners were not satisfied they could seek for enhancement of compensation before appropriate forum, and keeping open the question with regard to enhancement of compensation in appropriate proceedings before competent authority, this Court had permitted the respondent-KIADB to deposit Rs.55,69,76,660/- as per Annexure-R-1 within four weeks before this Court. Accordingly, KIADB has deposited the said amount on 12.10.2023 by way of a Demand Draft bearing No.902071 of Union Bank of India, Race Course Road, Bengaluru and the same is directed to be deposited in any Nationalised Bank in an interest accruing account. MRPL has filed application in I.A.No.2/2023 seeking to implead itself as a party respondent in the said writ petition.
57. Learned counsel for the land owners had vehemently submitted that when once an award is passed 16.03.2023 determining the compensation payable at Rs.197,28,34,758/- the SLAO would become functus officio and cannot alter the said award. Therefore it was contended that the subsequent award dated 07.07.2023 is nonest in the eye of law. It is also 79 contended the said award dated 07.07.2023 has not taken into consideration the interest component and also requirement of provisions of Act, 2013 of paying the award amount within 60 days.
58. As already noted in the statement of objections filed by respondent-KIADB there is neither denial of passing of the General Award dated 16.03.2023 produced as Annexure-D nor any admission thereon. However, the respondent-KIADB has furnished the award dated 07.07.2023 produced at Annexure-R-1 wherein compensation has been determined at Rs.55,69,76,660/-. The said conduct of the respondent authorities requires much to be answered by them. In the normal circumstances in the absence of any denial to the passing the award at Annexure-D, the same had to be given effect to, considering the checkered history of this matter. However, considering the huge difference between the amounts determined at Annexure-D General Award dated 16.03.2023 and Annexure-R-1 award dated 07.07.2023 which is Rs.197,28,34,758/- and Rs.55,69,76,660/- respectively and also in view of there being no challenge by the land owners to said award dated 07.07.2023, this Court is of the considered 80 view that liberty be reserved to the land owners to challenge the subsequent award dated 07.07.2023 or to seek appropriate remedy as provided under the relevant provisions of law before a competent authority. However, since pursuant to the order dated 23.09.2023 passed by this Court, amount of Rs.55,69,76,660/- has been deposited by respondent-KIADB, the said amount be released in favour of the land owners.
Point No.2 is answered accordingly.
POINT No.3:
59. An application in I.A.No.2/2023 has been filed by MRPL seeking itself to implead itself as party -respondent No.5 in W.P.No.15168/2023 contending itself to be a necessary party being beneficiary of the acquisition. Reliance is placed on the Judgment of the Apex Court in the case of Vidarbha Irrigation Development Corporation (supra) to contend that MRPL being beneficiary is entitled to participate in the proceedings pertaining to compensation and that award dated 07.07.2023 has been passed without hearing the MRPL. It is further submitted that since there was a direction by the Co- 81
ordinate Bench of this Court while passing order dated 21.10.2022 in W.P.No.12699/2021 to the respondent- KIADB/SLAO to provide an opportunity of hearing to MRPL before passing the fresh award. This point has been addressed while referring to the communication dated 13.12.2022 produced at Annexure-H issued by SLAO to MRPL and subsequent communications issued by MRPL dated 20.12.2022, 04.01.2023 and 22.03.2023 produced at Annexures J, K and L which are extracted hereinabove. MRPL was supplied with the order passed by this Court dated 21.10.2022 in W.P.No.12699/2021 by SLAO who had called upon MRPL for its response. MRPL for the reasons best known merely restricted itself to mere issuing the response as found at Annexures J, K and L above. There was no impediment of any nature whatsoever for MRPL to have participated itself in the process of passing of the award by SLAO on 07.07.2023 or to have challenged the same in the manner specifically provided under relevant law before the competent authority. In view of the material available on record MRPL cannot be heard to say that it did not have an opportunity to participate in the award proceedings or it was deprived of its right to be 82 heard. In that view of the matter MRPL cannot now seek to implead in the writ petition challenging the quantum of compensation awarded. In any event the writ petition of land owners is only seeking direction to the respondent authorities to disburse the amount already determined. There is no question of assessing or determining the process of passing the award involved in the writ petition.
60. Needless to state it is always open for MRPL, if so advised, to challenge the quantum of compensation awarded to the land owners in the manner known to law before the competent authority.
61. For the reasons aforesaid no grounds made out to implead MRPL as party respondent to W.P.No.15168/2023. Point No.3 is answered accordingly.
62. Before parting it is necessary to advert to the submissions made across the Bar as to the power and authority of the State and KIADB to denotify the land acquired under KIAD Act, 1966. Though in the instant petitions same need not be gone into as the situation of denotification has 83 not arisen but would be useful in this regard to refer to position of law that exist as on this date.
63. The Division Bench of this Court in the case of KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD VS. M. MAHADEVAPPA reported in 2014 SCC Online Kar. 1018 adverting to the contention regarding provision under KIAD Act to denotify the land when the acquisition is completed, at paragraphs 6, 7 and 8 of its Judgment while rejecting a review petition has held as under:
"6. The main contentions in the review petitions are that the finding of this Court based on the submissions of the learned Senior Counsel appearing for the KIADB that there is no provision under the KIADB Act to denotify the land when once the acquisition was completed was factually in correct and that the other submission that when once the land is acquired, the owners are entitled to compensation is also contrary to the Judgment of the Hon'ble Supreme Court in case of Jilubhai Nanbhai Khachar v. State of Gujarat reported in 1995 Supp (1) SCC 596. Therefore, on these two grounds the review petitions are filed.
7. Section 4 of the KIADB Act reads as hereunder:
"4. Alteration of industrial area: 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".
8. On perusal of Section 4 of the Act, we are of the view that the Government has power for issuing a notification to exclude any area from Industrial Area or including thereon any additional area as may be specified in such notification. But Section 4 of the Act does not empower the Government to denotify the land, which was acquired earlier and possession is taken by the Government and 84 delivered to the beneficiary. Therefore, we are of the view that Section 4 of the KIADB Act does not empower the Government to denotify the land, which is acquired and award is passed. At best Section 4 of the Act would come to the aid of the Government to exclude an area from the Industrial Area and include an area and utilize the same for any other public purpose and it empowers the Government to include an additional area as an Industrial area, which only says that an Industrial Area Corporation can be extended by acquiring additional extent of land. Therefore, we are of the view that Section 4 has no application to the present case".
64. Division Bench of this Court in the case of H.R.Jagadish and other Vs Special Land Acquisition Officer and others reported in (2014) 3 Kant. L.J.666(DB) wherein while considering challenge to an acquisition, the Division Bench referring to provisions of Section 3 and 4 of KIAD Act at paragraph 5 has held as under:
"5. Since the argument of the appellants is based on the provisions of Section 3 of the KIAD Act and the provisions of Section 4 are also relevant, the text of those provisions may be quoted hereunder:
"3. Declaration of industrial areas.- (1) The State Government may, by notification, declare any area in the State to be an industrial area for the purposes of this Act. (2) Every such notification shall define the limits of the area to which it relates.
4. Alteration of industrial area- 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."
Admittedly, the provisions for acquisition of lands are separate and distinctly enacted in Section 28 of the KIAD 85 Act. Therefore, the process and consideration for declaring any area in the State to be industrial area for the purpose of the Act are distinct and the process precedes the acquisition of land. Between the operation of both the provisions of Section 3 and Section 28, there are provisions of Section 4, which permit exclusion of any area or inclusion of any additional area in the industrial area declared under Section 3."
65. Another Coordinate Bench of this Court in the case of THOMAS PATRO (supra) wherein at paragraphs 25 and 27 this Court has held as under;
"25. Having regard to the facts and circumstances of the case, I am of the view that though the land gets vested when the declaration was issued, the petitioner is entitled for compensation only after acquisition of the land is complete under Sec.29 of the Act. The State Government cannot be compelled to acquire the land after its vesting when it was no longer possible to effectuate the intended purposed of acquisition. Till possession is not taken, the land owner is not entitled for compensation in respect of the notified lands".
27. Thus, the State Government is competent to cancel the notifications issued under Section 28(2) and (4) of the KIADB Act by virtue of its power under Section 21 of the Karnataka General Clauses Act and this power can be exercised before taking possession of the lands. The State Government may also exclude that area from industrial area by issuing a notification under Section 4 of the KIADB Act".
66. Similar view is taken by the Co-ordinate Bench of this Court in the case of MOOLA INVESTMENT (INDIA) PRIVATE LTD. VS. STATE OF KARNATAKA AND OTHERS 86 reported in 2015 SCC ONLINE KAR.5089 wherein at paragraph 4(A)(ii)(iv) has held as under;
"Par.4.(A) (ii) The scheme of acquisition of land envisaged under the provisions of 1966 Act is a bit in variance with that of the erstwhile Land Acquisition Act, 1894, so far as vesting of the acquired land in the State is concerned. Ordinarily, under the 1894 Act, the land will vest in the State once the award is passed and possession is taken, subject to certain exceptions which may not be of much relevance for our discussion. In the case of acquisition under the 1966 Act, the land will vest in the State once the Final Notification is issued u/s 28(4) and the question of taking possession and passing award would arise later.
(iv) Section 48 of the 1894 Act is structured on a legal premise arising from the statutory scheme that the government will have power to drop acquisition proceedings at any stage before possession is taken, obviously, that is the stage at which land is yet to vest in the State. As already observed above, the vesting of land in the State would happen on the passing of the award and taking its possession. The Division Bench in NANDI INFRASTRUCTURE, supra, framed the question at paragraph 19: ...Therefore, now the question is whether the State Government could have de- notified these lands after they vested with the State by virtue of notification under Section 28(4) of the KIAD Act. This question is answered in the subsequent paragraphs of the decision in a negative way. Of course, one of the factors for such a view was that the beneficiary of acquisition was not heard in the matter. However, it is only an added reason for the ratio and that the absence of such a reason would not rob away the precedential force of the said decision, as rightly argued by learned counsel for the Petitioner-beneficiary of acquisition who too was admittedly not heard before the denotification of lands".
67. However, the division Bench of this court in the case of (1) ROYAL ORCHID HOTELS LTD. VS. G. JAYARAM REDDY 87 AND ANOTHER (supra) at paragraph 6 and 7 has held as under:
"6.The State Government has exercised its power under Section 4 of the Act for issuing the impugned notifications at Annexures-H & J, wherein the lands in dispute are deleted from the acquisition proceedings.
Section 4 of the Act reads as under:
"4. Alteration of industrial area.- 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."
7. From a reading of the aforesaid provision, it is very clear that the powers under the said provision of law can be exercised by the State Government at any stage. Unlike Section 48 of the Land Acquisition Act, 1894, there is no provision under the Act which provides that the State has no power to take a decision to delete the lands notified for acquisition or to alter the industrial area after possession of the lands which were the subject matter of acquisition proceedings has been taken. Therefore, in our considered view, the learned Single Judge was not justified in holding that the State Government had erred in issuing the impugned notifications deleting the lands in dispute from the acquisition proceedings since the possession of the said lands were already taken."
68. There appears to be an anomaly with regard to power of the State Government and stage of exercise of such power to delete/denotify the acquired lands which may required to be addressed and clarified in an appropriate proceeding. 88 CONCLUSION:
69. In the facts circumstance of this matter this Court is of the considered view that the MRPL has not made out ground for quashing of the notifications and /or the impugned award dated 7.7.2023.
70. In view of land owners not having challenged the award dated 07.07.2023 which is passed subsequent to award dated 16.03.2023 and this Court having reserved liberty to the land owners to avail such remedy as may be available under the law before the appropriate authority including seeking of enhancement of compensation, they are not entitled for grant of relief as sought for. However, they are entitled for amount/compensation as determined under award dated 07.07.2023.
71. For the reasons assigned above, the MRPL need not be impleaded as party respondent in W.P.No.15168/2023.
With these observations, following;
89
ORDER
(i) Writ Petition No.22685/2023 filed by the MRPL is dismissed.
(ii) Writ petition in W.P.No.15168/2023 is partly allowed directing the respondent authorities to disburse amount of Rs.55,69,76,660/- determined under award dated 07.07.2023. Since the said amount is already deposited before this Court pursuant to the order dated 23.9.2023 the said amount be released in favour of the petitioners in W.P.No.15168/2023 forthwith.
(iii) I.A.No.2/2023 filed by MRPL seeking to implead itself as a party respondent No.5 in W.P.No.15168/2023 is rejected.
Sd/-
JUDGE SBN/RU