IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.17568-570 OF 2012 (GM-RES) BETWEEN:
1. MR. N. RAJANNA S/O LATE NANJAPPA AGED ABOUT 62 YEARS R/O THIRUMENAHALLI VILLAGE MANDUR POST, BIDARAHALLI HOBLI BANGALORE EAST TALUK BANGALORE-560049.
2. MR. N. KRISHNAPPA S/O LATE NANJAPPA AGED ABOUT 64 YEARS R/O THIRUMENAHALLI VILLAGE MANDUR POST, BIDARAHALLI HOBLI BANGALORE EAST TALUK BANGALORE-560049.
3. DR. MUNIRATHNAM S/O LATE NANJAPPA AGED ABOUT 59 YEARS R/O THIRUMENAHALLI VILLAGE MANDUR POST, BIDARAHALLI HOBLI BANGALORE EAST TALUK BANGALORE-560049.
SINCE DECEASED REP. BY LEGAL HEIRS 3(a) DR. NANDINI N W/O LATE N. MUNIRATHNAM AGED ABOUT 55 YEARS R/AT. No.20, THIRUMENAHALLI MANDUR POST, BIDRAHALLI HOBALI THIRUMENAHALLI, EAST TALUK BANGALORE-49.
3(b) DR. AVINASH M S/O LATE N. MUNIRATHNAM AGED ABOUT 29 YEARS R/AT. No.20, THIRUMENAHALLI MANDUR POST, BIDRAHALLI HOBALI THIRUMENAHALLI EAST TALUK BANGALORE-49.
3(c) MR. RITHESH M S/O LATE N. MUNIRATHNAM AGED ABOUT 27 YEARS R/AT. No.20, THIRUMENAHLLI MANDUR POST, BIDRAHALLI HOBALI THIRUMENAHALLI EAST TALUK BANGALORE-49.
(By Mr. M. SHAMIL, ADV., FOR Mr. P.B. AJIT, ADV.,) AND:
1. THE STATE OF KARNATAKA … PETITIONERS MINISTRY OF COMMERCE & INDUSTRIES REP. BY ITS SECRETARY 1ST FLOOR, VIKASA SOUDHA DR. AMBEDKAR VEEDHI BANGALORE-560001.
2. THE APPELLATE AUTHORITY AND ADDITIONAL CHIEF SECRETARY GOVERNMENT OF KARNATAKA COMMERCE & INDUSTRIES DEPARTMENT BANGALORE-560001.
3. M/S NEC REAL ESTATE PVT. LTD A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGIONAL OFFICE AT NO.540 3RD FLOOR, CMH ROAD, INDIRANAGAR BANGALORE-38.
REP BY ITS AUTHORISED REPRESENTATIVE MR. KIRAN POONACHA.
4. DESK OFFICER (TECHNICAL CELL) COMMERCE & INDUSTRIES ROOM NO.106, 1ST FLOOR VIKASA SOUDHA DR. AMBEDKAR VEEDHI BANGALORE-560001.
… RESPONDENTS (By Mr. DHYAN CHINAPPA, SR. COUNSEL FOR C/R3 Smt. NILOUFER AKBAR, AGA FOR R1, R2, & R4) - - -
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 23.4.2012 VIDE ANNEXURE-R PASSED BY THE 2ND RESPONDENT. AND IN THE ALTERNATIVE, QUASH THE DECISION OF SHLCC CONSTITUTED UNDER THE PROVISIONS OF THE KARNATAKA INDUSTRIES (FACILITATION) ACT IN 15TH MEETING HELD ON 21ST AUGUST 2008 IN SUBJECT NO.4 VIDE ANNEXURE-K PASSED BY THE 2ND RESPONDENT & ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.M.Shamil, learned counsel for Sri.P.B.Ajit, learned counsel for the petitioners.
Sri.Dhyan Chinappa, learned counsel for the respondent.No.3.
Sri.Niloufer Akbar, learned additional Government Advocate for respondent Nos.1, 2 and 4.
2. These writ petitions are admitted for hearing.
With consent of the parties, the same are heard finally.
3. In these petition the petitioner inter alia seeks quashment of the order dated 23.04.2012 contained in Annexure-R passed by respondent No.2. In the alternative the petitioner has sought the relief of the decision dated 21.08.2008 passed under the Karnataka Industries (Facilitation) Act, 2002 (hereinafter referred to as ‘the Act’ for short) as well as government order dated 18.11.2008. In order to appreciate petitioner’s challenge to the impugned order, few facts need mention, which are stated infra:
The petitioners claims to be occupants of 260 acres of land situate at Challakunte Village, Jala Hobli, Bangalore North Taluk. The respondent No.3 proposed a project on the aforesaid lands for construction of a Tourist Complex, Commercial Space, Financial hub, Research and Development facilities with residential condominium, service apartment and medical City. The SHLCC constituted under the Act, rejected the proposal in its 13th meeting on the ground that the lands are classified as agricultural lands. It is the case of the petitioners that the aforesaid committee in violation of standards accorded the approval of project in question on 18.11.2008. the State Government subsequently withdrew its notification. The division bench of this Court by an order dated 6.10.2010 set aside the order passed by the state government dated 26.11.2011 reserving the liberty to the government to initiate action for cancellation of the order subject to the condition that the petitioner shall be heard. However, the state government did not initiate any action. Being aggrieved the petitioner filed an appeal which was rejected by an order dated 23.04.2012. In the aforesaid factual background, the petitioner have approached this Court.
4. Learned counsel for the petitioners submitted that the land in question falls within the agricultural zone. It is also submitted that until and unless 90% of the land owners had given the consent, the land cannot be acquired and the land tribunal has already decided in favour of the land owners. It is also submitted that there is prohibition of construction activity around 500 yards of the notified area declared under the works of defence Act, 1903. It is further submitted that the District Commissioner has issued the notification which cannot be issued. On the other hand, Learned Senior Counsel for respondent No.3 has submitted that the use of the land in question has been changed to industry zone by the SHLCC and in case the land is utilized for the purposes of the project, the occupants will get compensation. It is also submitted that in view of the order passed by the State Government in the year 2008, the consent of 75% of the land owners is required to be obtained and not 90% as contended by the petitioners and in fact the appeal which was preferred by the petitioners was not maintainable.
5. I have considered the submission made by the both counsel for the parties. From perusal of Section 18 of the Act it is evident that any person aggrieved by the State level Clearance Committee, State level Single window committee disapproving the project may within 30 days file an appeal before the Appellate Authority. In the instant case, since, the project was approved therefore, the appeal preferred by the petitioners was not maintainable before the Appellate Authority and the same has rightly been rejected by order dated 23.04.2012 which does not call for any interference under Article 227 of the Constitution of India. So far as the challenge to the order dated 21.08.2008 and 18.11.2008 by which the project in question has been approved, the same falls within the realm of policy decision taken by the state government and this court in exercise of powers of judicial review cannot interfere with the same as this court cannot sit in appeal over the decision taken by SHLCC and the state government. However, it will be open to the petitioner to approach the state government with regard to his grievance. Needles to state that the petitioner approaches the state government by filing an representation the appropriate decision shall be taken by the State Government on the aforesaid representation in accordance with law. It is made clear that his court has not expressed any opinion on the merits of the case.
Accordingly, the petitions are disposed of.
Sd/- JUDGE SS