IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA W.P.Nos.59467 – 59469/2015 (LA – KIADB) BETWEEN:
SRI R.UMASHANKAR S/O LATE T.RAMARAJU AGED ABOUT 52 YEARS, R/AT DASEGOWDANA DODDI, MEDAMARANAHALLI POST, HAROHALLI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT-562112. ... PETITIONER [BY SRI H.S.DWARAKANATH, ADV. FOR SRI P.PRAMOD, ADV.] AND:
1. KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD, NO.14/3, R.P. BUILDING, 2ND FLOOR, NRUPATHUNGA ROAD, BANGALORE-560 001.
BY ITS CHIEF EXECUTIVE OFFICER 2. THE SPECIAL LAND ACQUISITION OFFICER-1 KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD NO.14/3, R.P. BUILDING, 2ND FLOOR, NRUPATHUNGA ROAD, BANGALORE-560 001.
3. THE STATE OF KARNATAKA BY ITS SECRETARY COMMERCE & INDUSTRIES DEPARTMENT VIKASA SOUDHA, Dr. AMBEDKAR VEEDHI, BANGALORE-560 001.
4. THE KARNATAKA STATE PRINTERS ASSOCIATION (REGD.) ‘MUDRANA BHAVANA’, No.44, AVENUE ROAD, BANGALORE-560042 REP. BY ITS PRESIDENT Mr. ASHOK KUMAR.
5. PRINTECH PARK CLUSTER BANGALORE (REGD.) (A UNIT OF KARNATAKA STATE PRINTERS ASSOCIATION) No.84/1, 6TH CROSS, 4TH MAIN, CHAMRAJAPETE, BANGALORE-560018 REP. BY ITS CHAIRMAN.
(CAUSE TITLE AMENDED VIDE COURT ORDER DATED 02.03.2016.) …RESPONDENTS [BY SRI B.B.PATIL, ADV. FOR C/R-1 & R-2; SRI B.J.ESHWARAPPA, AGA FOR R-3;
SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR SRI M.S.RAGHAVENDRA PRASAD, ADV. FOR R-4 & R-5.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED PRELIMINARY NOTIFICATION DATED 22.07.2006 PUBLISHED IN THE KARNATAKA GAZETTE EXTRA- ORDINARY DATED 22.07.2006 AT ANNEXURE-B AND ALSO THE IMPUGNED FINAL DECLARATION DATED 23.09.2015 VIDE ANNEXURE-P ISSUED BY THE R-3 IN SO FAR AS IT RELATES TO ACQUISITION OF THE PETITIONERS LAND BEARING SY.NO.113 MEASURING 2 ACRES 39 GUNTAS, SY.NO.114 MEASURING 1 ACRE 04 GUNTAS AND SY.NO.117 MEASURING 4 ACRES IN AD MEASURING 8 ACRES 03 GUNTAS SITUATED AT MEDAMARANAHALLI VILLAGE, HORAHALLI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT AS ILLEGAL BY ISSUING A WRIT OF CERTIORARI.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the preliminary notification dated 22.07.2006 and the final declaration dated 23.09.2015 at Annexures-B and P respectively insofar as it relates to acquisition of the petitioner’s land bearing Sy.No.113 measuring 2 acres 39 guntas, Sy.No.114 measuring 1 acre 04 guntas and Sy.No.117 measuring 4 acres in admeasuring 8 acres 03 guntas situated at Medamaranahalli village, Harohalli Hobli, Kanakapura Taluk, Ramanagara District inter alia challenging the order dated 30.07.2014 passed by the respondent No.2 in respect of the aforesaid lands at Annexure-N whereby an order has been passed under section 28[3] of the Karnataka Industrial Area Development Act, 1966 [‘KIAD Act’ for short].
2. The petitioner is claiming to be the absolute owner of the lands mentioned aforesaid. It transpires that the notification under Section 28[1] of the Act was issued notifying the said lands for acquisition with other lands on 22.07.2006. Final declaration was issued under Section 28[4] of the Act on 31.01.2007. The petitioner had filed W.P.No.14265/2008 questioning the land acquisition proceedings before this Court. The learned Single Judge dismissed the petition. However, on appeal filed by the petitioner in W.A.No.17176/2011, the Division Bench of this Court was pleased to allow the appeal with a direction to the respondents to consider the case along with the other connected matters in order to find out whether the petitioner’s land is also fully developed and construction activities has not been placed or not. KIADB was directed to pass similar order, in the present petitioner’s case also considering the case of this petitioner.
3. In pursuance to the orders passed in W.A.No.17176/2011 the respondent No.2 has issued notice to the petitioner to file objections, if any. The petitioners have filed detailed objections. The respondent No.2 has passed the order under Section 28[3] of the Act deciding to acquire the present lands pursuant to which the respondent No.3 has issued final notification dated 23.09.2015 and further the respondent No.2 has issued notice dated 05.11.2015 to handover possession of the lands in question. Being aggrieved by the same, the petitioner is before this Court.
4. Learned Senior Counsel Sri.H.S.Dwarakanath, appearing for the petitioner would submit that the order at Annexure-N passed under Section 28[3] of the Act is not in conformity with the directions issued by this Court in W.A.No.17176/2011. It was argued that the photographs placed on record at Annexure-H series would depict the status of the land fully developed. The joint measurement report at Annexure-C substantiates the same. Indeed, the petitioner was not heard on 25.06.2014 but Annexure-R4 filed by the Board indicates that Sri.R.Umashankar and Sri.Kodandaraju have accepted for acquisition and sought for adequate compensation. The said document does not bear the signature of the petitioner. It was further argued that the respondent Nos.4 and 5 – beneficiaries have no locus in the matter since the allotment letter at Annexure-S dated 14.05.2006 demonstrates that the said allotment was made in favour of respondent Nos.4 and 5 prior to the issuance of the final declaration dated 20.12.2006. Lease cum sale agreement dated 22.08.2008 shows the description of the properties allotted to the said respondents – beneficiaries as Plot Nos.18 to 32 in Harohalli I Phase, Industrial Area comprised in Sy.No[s].70[P], 136, 137[P], 138[P] and 139[P] of Medamaranahalli whereas Annexure-R5/Annexure-N discloses the properties situated at Harohalli II Phase. The Industrial layout plan at Annexure-V1 shows Sy.No.113 with different Plot numbers. Hence, the respondents – beneficiaries have no claim in the petition properties. The joint survey report clearly establishes that the petition lands are fully developed but the official respondents have failed to consider the same. It was argued that the order of possession at Annexure-R7 is not drawn by the competent authority. Hence, these writ petitions.
5. Learned Senior counsel Sri.Ashok Haranahalli representing the learned counsel for the respondent Nos.4 and 5 submitted that the Plot Nos.18 to 32 in Sy.No.139[P] of Medamaranahalli Village has been allotted to the said respondents pursuant to bifurcation of Sy.No.113. Hence, there is no dispute regarding the identification of the plot numbers, the allotment made to the respondents. Learned Senior counsel argued that the Plots allotted to the beneficiaries - respondent Nos.4 and 5 are carved out from the land bearing Sy.No.113 belonging to the petitioner herein. The lands in question are not fully developed as reflected in the Joint Survey Report. Hence, the action of the official respondents in issuing the fresh final declaration under Section 28(4) of the Act dated 23.09.2015 is in accordance with law. It was argued that the lands in question are already handed over to the beneficiaries – respondent Nos.4 and 5.
6. Learned counsel Sri. B.B. Patil appearing for the KIADB contended that the officials of respondent No.2 inspected the petitioner’s land on 25.06.2014 and recorded the nature of developments made by the petitioner in the land in question in terms of the order passed by the Division Bench in W.A.NO.17176/2011. The lands not being fully developed, the order under Section 28(3) of the Act and subsequently the Final Notification has been passed. It is submitted that the lands in question comes in the middle of the industrial layout and no such land of the industrial layout can be dropped from acquisition. Hence, no exception can be found with the decision of the official respondents. Learned counsel submitted that the lands in question have been taken possession as far back as on 26.12.2016 by the State Government and the same has been handed over to the Board and in turn to the beneficiaries - respondent Nos.4 and 5.
7. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the material on record.
8. The Joint Survey Report dated 20.12.2006 clearly evinces the existence of the trees namely coconut, teak, silver, mango, mathi, jamboo; borewell, ACC roofed residential house. The specific directions in W.A.No.17176/2011 issued to the KIADB was to consider the case of the petitioner along with other connected matters in order to find out whether the petitioner’s land is also fully developed and construction activities has been placed or not.
9. The word “consider” according to the Shorter Oxford Dictionary means ‘to view attentively; to survey; to examine; to inspect; to look attentively; to contemplate mentally; to think over; mediate on; give heed to; take note of; to think deliberately; bethink oneself; to reflect’. It is, therefore, necessary that careful application of mind regarding the examination of fully developed land is sine quo non for making the order. This view is fortified by the judgment of the Hon’ble Apex Court in the case of The Barium Chemicals Ltd., and another vs. A.J. Rana and others reported in AIR 1972 SUPREME COURT 591, wherein it is observed thus:-
“15. …………… It is, therefore, manifest that careful thinking or due application of the mind regarding the necessity to obtain and examine the documents in question in sine qua non for the making of the order. If the impugned order were to show that there has been no careful thinking or proper application of the mind as to the necessity of obtaining and examining the documents specified in the order, the essential requisite to the making of the order would be held to be non-existent.
16. A necessary corollary of what has been observed above is that mind has to be applied with regard to the necessity to obtain and examine all the documents mentioned in the order. An application of the mind with regard to the necessity to obtain and examine only a few of the many documents mentioned in the order, while there has been no such application of mind in respect of the remaining documents, would not be sufficient compliance with the requirements of the statue. If, however, there has been consideration of the matter regarding the necessity to obtain and examine all the documents and an order is passed thereafter, the Court would stay its hand in the matter and would not substitute its own opinion for that of the authority concerned regarding the necessity to obtain the documents in question.”
10. The main thrust of the controversy remains unanswered by the official respondents. The existing trees and structures, wells, lying within the area notified though admitted and considered, based on the opinion of the Deputy Development Officer, an order under Section 28(3) of the Act has been passed for the reason that the lands are situated in the middle of the industrial layout rather than examining whether the lands are fully developed in terms of the order passed by this Court in W.A.No.17176/2011 or not. In addition to this, the allotment letter issued to the beneficiaries prior to issue of final declaration as well as the discrepancies found in the description of the Plots allotted to the beneficiaries vis-à-vis the lands in question would certainly raise a suspicion in the mind of the Court as regards the identification of the property which necessarily requires to be addressed by the official respondents. Hence, the order passed under Section 28(3) of the Act suffers from the vice of arbitrariness and lack of application of mind which requires to be set aside. Consequently, the final declaration dated 23.09.2015 at Annexure - P deserves to be set aside.
11. Accordingly, the Order dated 30.07.2014 bearing No.LAQ/636/2014-15 passed by respondent No.2 at Annexure - N in respect of the land bearing Sy.No.113 measuring 2 acres 39 guntas, Sy.No.114 measuring 1 acre 04 guntas and Sy.No.117 measuring 4 acres in admeasuring 8 acres 03 guntas situated at Medamaranahalli Village, Harohalli Hobli, Kanakapura Taluk, Ramanagara District, is set-aside. The final declaration No.CI/113/SPQ/2015 dated 23.09.2015 at Annexure ‘P’, is also quashed.
12. The proceedings are restored to the file of the respondent No.2 to re-consider the case of the petitioner along with other connected matters as directed by the Division Bench of this Court in W.A.No.17176/2011 (LA-KIA) (DD 04.10.2012) in order to find out whether the petitioner’s land is fully developed and construction activity had been placed or not, if so, KIADB is directed to pass similar orders, in the present case also considering the case of the others by holding a fresh joint survey after providing an opportunity of hearing to all the stake holders involved.
13. The compliance of this order shall be made in an expedite manner, in any event, not later than three months from the date of receipt of the certified copy of this order.
With the aforesaid observations and directions, the writ petitions stand disposed of.
Sd/- JUDGE NC/PMR