@JUDGMENTTAG-ORDER
Ashok B. Hinchigeri, J.@mdashThe acquisition of land vide preliminary Notification, dated 2nd June, 2006 and final Notification (declaration), dated 16th August, 2006 under Karnataka Industrial Areas Development Act, 1966 (hereinafter called ''the KIAD Act'' for short) is being assailed in these three petitions. The land in question measures 1 acre 35 guntas at Survey No. 41 of Kadubisanahalli Village, Varthur Hobli, Bangalore East Taluk. The acquisition of the said land is for the benefit of the third respondent.
2. Sri Navkesh Batra, the learned Counsel for the petitioner in W.P. No. 15716/06 has urged the following contentions:
(i) There is no valid Notification for bringing Chapter VII of the KIAD Act into force. In the absence of the Notification u/s 1(3) of KIAD Act, resorting to the acquisition proceedings u/s 28 of KIAD Act is bad in law.
(ii)(a) The acquisition of land under the KIAD Act is always for the purpose of establishing an industrial area or estate or for creating an amenity or the industrial infrastructure in the industrial estate to be established. In the instant case, admittedly, the land in question is acquired for housing P.G. Block, Electrical Block, Staff Quarters and Boys'' Hostel of the third respondent''s College. He culls out these particulars from the extract of the proceedings of meeting of State Level Single Window Clearance Committee held on 21.11.2005-(Annexure ''J'') and the letter, dated 12.12.2005 of Udyog Mitra (Annexure''K'').
(ii)(b) Sri Batra submits that the real reasons for resorting to acquisition of lands are only two:
(1) The third respondent''s New Horizon College of Engineering is falling short of land requirements, as prescribed by AICTE.
(2) The land in question is abutting the said College; the hutment dwellers and slum dwellers on the land in question and the construction labourers from North India are causing nuisance.
(ii)(c) He also brings to my notice the contents of the petitioner''s letter, dated 23rd December, 2005 (Annexure-Z) addressed to the second respondent. The same are extracted hereinbelow:
Infrastructure: The college has the best infrastructure. The college campus spreads in about 10 acres of land with well structured building, Electrical, Electronics, Computer and Mechanical laboratory block, International Boys and Girls hostels, Canteen, Basketball, Sports ground, Parking Area and a Lawn. As per AICTE norms an Engineering College shall have 10 acres of land for its undergraduate programmes. The college is currently operating on just 10 acres of land Survey Nos. 14(P), 39, 40, 42 Kadubisanahalli, Bangalore East Taluk and is falling just short of the requirement.
Security Threat: The said land Survey No. 41 is sandwiched between the college land Survey No. 39, 40 and 42. The students are facing constant threats from hut mates and miscreants day in and day out. The hut mates use the open ground as toilets and pollute the environment. The area has become totally unhygienic. We have more than 500 boys and girls staying in the hostel college campus who are facing threats everyday by the slum dwellers. This land has become a slum where all the construction labourers from North India have come and settled causing nuisance. During night they indulge in all kinds of Anti Social activities.
(iii) The learned Counsel also takes exception to the second respondent''s learned Counsel giving the legal opinion that acquisition and development of land for educational and research and development purposes would come within the purview of the KIAD Act, without there being any basis for the same.
(iv) When the Single Window Agency and Karnataka Udyog Mitra turned down the third respondent''s application for the acquisition and allotment of the land and as the Revenue Department had the difficulty in granting the permission for converting the lands from agricultural to non-agricultural character, the respondent Nos. 1 and 2 have resorted to the compulsory acquisition of lands. Sri Batra alleges both factual and legal mala fides.
(v) The purpose of acquisition as shown in the preliminary Notification is vague. The notification only states that the land in question is required for the third respondent''s benefit. Mentioning only the name of the party is no substitute for mentioning the purpose of acquisition. Unless the purpose is shown, the owners of the land or the persons interested therein cannot file meaningful objections to the proposed acquisition of lands.
(vi)(a) The compulsory acquisition of lands cannot be coupled with the consent acquisition. In exercise of the eminent domain, when the State wants to acquire the lands, the question of taking the consent does not arise at all. The very giving of the consent is violative of the provisions of Karnataka Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter called ''PTCL Act'' for short) because the consent obtained is not valid, the same being without the previous permission of the Revenue Authorities.
(vi)(b) He also brings to my notice that even after the issuance of the preliminary Notification, dated 2nd June, 2006, the respondent No. 3 has made further payments towards advance sale consideration to Poojari Peddanna, Rajanna and Chinnaswamy on as many as 11 dates.
(vii) Sri Batra submits that the whole exercise of acquisition and allotment are completed not at supersonic speed but at the lightening speed. He tries to substantiate his argument by drawing my attention to the following quick sequence of events:
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Sl. No. Date Description of Event
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1. 13.7.2006 Final Notification
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2. 16.8.2006 Notice u/s 28(6) of KIAD
Act demanding the surrender of the
possession.
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3. 5.9.2006 Issuance of allotment letter.
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4. 6.9.2006 Issuance of possession certificate in
favour of the third respondent.
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5. 8.9.2006 Execution of lease agreement in favour
of the third respondent.
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6. 19.9.2006 Sanctioning of the building plans.
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(viii)(a) The passing of the order u/s 28(3) of the KIAD Act and the issuance of final Notification u/s 28(4) of KIAD Act are unsustainable, as they are not preceded by the service of notice on the petitioner. He submits that the service of notice on the owner and the occupier of the land is a mandatory requirement, which has not been complied with in the present case. The learned Counsel brings to my notice the provisions contained in Section 28(2) of KIAD Act. The same are extracted hereinbelow:
28. Acquisition of land.:
(1) xxxx xxxx
(2) On publication of a Notification under Sub-section (1), the State Government shall serve notice upon the owner or where the owner is not the occupier, on the occupier of the land and on all such persons known or believed to be interested therein to show cause, within thirty days from the date of service of the notice, why the land should not be acquired.
(viii)(b) He submits that while the Government or the acquisition body is not obliged to hold a roving enquiry into the matter, the minimum that the respondent No. 1 and 2 ought to have done was to ascertain as to who are the persons interested in the land in question. The records, more particularly the agenda note for the additional subject No. 10 clearly mentions that the land in question is the granted land and that the proceedings are pending under PTCL Act. When the PTCL proceedings were within the knowledge of the respondent No. 1 and 2, the non-issuance of notice to the original grantees/their legal representatives is fatal to the further proceedings under KIAD Act.
(ix)(a) The application for allotment of land, by the third respondent is incomplete. Out of 13 columns, only 4 are filled up. As on the date of allotment also, the project report was not filed. In this regard, he brings to my notice the contents of para 20 of the allotment letter, dated 5th September, 2006 (Annexure ''T'') which reads as follows:
You are also requested to furnish brief project report.
(ix)(b) This being the factual position, the respondent No. 1 and 2 would not have resorted to acquiring the land in question and allotting it to the third respondent. The Regulation 4(c) of KIAD Regulations, 1969 (hereinafter called ''the said Regulations'' for short).
The Regulation 4(c) reads as follows:
4. Form of application:
(a) xxx xxx
(b) xxx xxx
(c) Applications which arc either incomplete or not accompanied by the earnest money fee of Rs. 100 shall not be considered.
(ix)(c) In view of this Regulation and the third respondent''s application being incomplete, the very consideration of its case is not only premature but is also in violation of the Regulation.
(x) Sri Batra sums up his submissions stating the third, respondent approached the respondent No. 1 and 2 with the cry "I am stuck, bail me out." The respondent No. 3 entered into an agreement of sale with Poojari Peddanna, Rajappa and Chinnaswamy. It has already paid an advance sale consideration of Rs. 55,85,000/- (Rupees fifty five lakh eighty five thousand). Having paid an advance sale consideration, but not getting the non-agricultural conversion or the permission to hold the land under the provisions of the Land Reforms Act and the impossibility of obtaining the permission under PTCL Act, the respondent No. 3 knocked the door of the second respondent.
3. Sri Mohan Kumar, the learned Counsel for the petitioner in W.P. No. 15628/06 states that he adopts the submissions made by Sri Navkesh Batra. He disputes that the petitioner has signed the sale agreement and that he has surrendered the possession of land in question to the first respondent. He disowns the signatures found on the possession certificate. He further brings to my notice that there is discrepancy between the possession certificate as found at Annexure-R6 to the third respondent''s statement of objections and Annexure-R7 as found to the second respondent''s statement of objections. Though both the possession certificates are identical in all other respects, the Revenue Inspector''s signature is found only on the latter; the same is not found on the former. According to Sri Mohan Kumar, this discrepancy raises the big question mark on the very taking of the possession.
4. Sri K. Subramanyam, the learned Counsel for the petitioner in W.P. No. 19504/2007 submits that the petitioner is the grand daughter of the original grantee, namely, late Poojari Ramaiah @ Rama Bhovi. The said Ramaiah had four sons, namely, (1) Poojari Peddanna, (2) Rajappa,(3) Chinnaswamy (respondent Nos. 4 to 6 herein) and (4) Venkatesh. The said Venkatesh died leaving behind him two daughters, the petitioner and her younger sister, Lakshmi (deceased). They all constituted Hindu undivided family. She along with her two nieces filed O.S. No. 831/03 seeking partition of three items of the property and for the allotment of 1/4th share therein for her and her nieces and for the relief of separate possession. The land in question is the first item in the three suit schedule properties. The respondents No. 4 to 6 herein are defendants 1 to 3 in the aforesaid suit. The petitioner has also obtained the interim order of status quo. It is the case of Sri Subramanyam that violating the interim order granted by the Civil Court and violating the provisions of PTCL Act, the respondent Nos. 4 to 6 have entered into an agreement of sale with the respondent No. 3 in respect of the property in question. He also states that he adopts the submissions urged by Sri Batra.
5. Sri Basavaraj Sabarad, the learned Counsel for the second respondent - Karnataka Industrial Areas Development Board has made his submissions as follows:
(i) The petitioner in W.P. No. 15716/06 has no locus standi to challenge the acquisition proceedings. Admittedly, the legal heirs of the original grantee sold the granted land to one Sri Santosh Kumar Garg without taking the permission of the Government under the provisions of PTCL Act. When the alienation of the granted land in favour of Santosh Kumar Garg was void, the question of Garg conveying any rights to the petitioner by the execution of sale deed does not arise at all. He further submits that the petitioner in W.P. No. 15628/06 has given his consent to the acquisition and that therefore he is estopped from challenging the acquisition proceedings.
(ii) The proposals submitted by the third respondent were not rejected by the State Level Single Window Clearance Committee and Udyog Mitra.
(iii) He denies the allegations of mala fides.
(iv) The legal opinion contained in the letter at Annexure-AB came to be tendered based on the information culled out from the file, which was sent with the second respondent''s letter, dated 16th February, 2006 seeking legal opinion.
(v) The acquisition of the land is of a small area and is based on the consent of the owners, since the third respondent was already holding agreements from the owners of the land.
(vi) The pendency of the proceedings under the PTCL Act is not reflected in the revenue records. The name of the petitioner does not appear in the revenue records. He further submits that Special Land Acquisition Officer is not obliged to hold the roving enquiry for collecting every bit of information regarding who are all the interested persons in the land in question. He further submits that by way of abundant caution, Notification is issued in the Kannada Daily, ''Kannada Prabha'' issue, dated 24th June, 2006 calling for objections.
(vii) As the petitioner has not filed the objections in response to the preliminary Notification published in the newspaper, he has no vested right to challenge the issuance of the final notification.
(viii) The Khatedars and Anubhavadars of the land in question namely, Poojari Peddanna, Rajappa and Chinnaswamy have voluntarily surrendered the possession of land to the acquiring authority.
(ix) The Research Institution is an amenity as per the definition contained in 2(1) of KIAD Act. The Government has already issued a Notification, dated 18th March, 1991 in this regard.
6. Sri Shekar Shetty, the learned Counsel for the respondent No. 3 has made his reply-submissions as follows:
(i)(a) The petitioner in Writ petition No. 15716/2006 has no locus standi to challenge the acquisition. The land in question was granted to Rama Bhovi and on his demise, his three sons, namely, Poojari Peddanna, Rajappa and Chinnaswamy became its owners. Without taking the previous permission of the Government, they sold it to Santhosh Kumar Garg. The sale in favour of Santhosh Kumar Garg is void ab initio, as the same is in violation of Section 4(2) of PTCL Act, which reads as follows:
Section 4(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.
(i)(b) When Garg himself could not have acquired any title and interest, the petitioner who purchased from Garg, can claim no right, title or interest in the property.
(i)(c) Sri Shekar Shetty has relied upon the following reported judgments in this regard:
(1)
(2)
(3)
(4) Narasimha Murthy v. State of Karnataka and Ors. ILR 1983 KLJ 396;
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12) K.L. Mallikarjunaiah v. The Deputy Commissioner, Hassan District and Ors. 1998(2) Kar LJ 199;
(13) Chinde Gowda v. Puttamma ILR 2008 KAR 1163 (SC);
(14) Linge Gowda v. Deputy Commissioner ILR 1992 KAR 209.
(i)(d) As the petitioner is not an aggrieved person, he cannot maintain this petition. Sri Shetty sought to draw support from the judgment of the Hon''ble Supreme Court in the case of
(ii) There was no rejection of the petitioner''s proposals by the Single Window Clearance Committee or by Udyoga Mitra; the respondent No. 3 was only advised to approach the revenue authorities.
(iii) The respondent No. 3 has already built the basement floor investing enormous sums of money.
(iv) Educational Institutions come within the definition of ''amenity'' u/s 2(1) of KIAD Act. Section 2(7-a) of the KIAD Act provides for the acquisition of land for research purpose. In the past also, the land was acquired under KIAD Act and allotted to a number of educational institutions. He has also relied on a judgment of the Hon''ble Supreme Court in the case of
(v) The respondent No. 3 is directed to pay the entire cost of acquisition independently of the amounts paid by the respondent No. 3 to Sriyuths Poojari Peddanna, Rajappa and Chinnaswamy. There was no bar to enter into an agreement of purchase. In this regard, he has relied on a judgment of the Hon''ble Supreme Court in the case of Murudeshwara Ceramics Limited and Anr. v. State of Karnataka and Ors. ILR 2002 KAR 273.
(vi)(a) Issuance of individual notices is not mandatory but only directory. In support of his argument, Sri Shekar Shetty relied on a judgment of this Court in the case of
14. ...In Section 4(1-A), there is nothing to show that service of individual notice is mandatory. It only states that Notification under Sub-section (1) of Section 4 shall also specify the date on or before which and the manner in which the objection to the proposed acquisition may be made. In the case on hand such a specification is made as is evident from the Notification issued u/s 4(1) (Annexure-E). In view of the publication of the Notification in the Official Gazette and publication of the substance of the Notification in the concerned locality, the petitioner could have filed objections on or before the date specified in the said Notification. We do not think that in the absence of service of individual notice, Section 4(1-A) cannot be worked out and that the service of individual notice is the only procedural safeguard. Publication of Notification u/s 4(1) in the Official Gazette and publication of the substance of the Notification in the concerned locality constitute sufficient procedural safeguards for the owner whose land is sought to be acquired. Once we have reached the conclusion that service of individual notice is not mandatory non-consideration of the effect of Section 45 in the decisions mentioned in the order of reference do not have bearing on the question whether the service of individual notice is directory or mandatory, inasmuch as if at all service of individual notice is a must then how such notice is to be served is prescribed u/s 45 of the Act. In Sub-section (1) of Section 4 of the Act with reference to the publication of the Notification in the Official Gazette and the publication of the substance of the Notification in the concerned locality the word ''shall'' is used and in the latter part of it the word ''may'' is used as to causing of a copy of such a Notification to be served on the owner or the occupier of the land. This aspect also supports the view that the service of individual notice on the land owner or occupier is only directory.
(vi)(b) Non-service of notice, is no ground to annul the Notification. To substantiate this argument, Sri Shetty read out Head Note ''A'' of the reported judgment in the case of Bhoje Gowda @ Shivananjegowda and Anr. v. State of Karnataka and Ors. 1987(2) Kar LJ 133. The same is extracted herein below:
(A) LAND ACQUISTION ACT, 1894-Section 4(1) - Requirement to serve notice on the owner of land not mandatory - Non-service of the notice cannot be a good ground to annul the Notification.
(vi)(c) Personal notice at the time of acquiring the land or passing award is not an absolute requirement of law. While canvassing this point, he relied on a judgment of the Full Bench of Punjab High Court in the case of State of Punjab v. Gurdial Singh and Anr. AIR 1984 P&H.
(vi)(d) Notice has to be issued to a person, whose name figures in the revenue records. In this regard, he also brings to my notice the Hon''ble Supreme Court''s judgment in the case of
(vii) As per Section 6(2) of the Karnataka Industries (Facilitation) Act, 2002, the Single Window Clearance Committee is required to consider the proposals for putting up fresh projects. If the proposal is for the expansion of the existing project, Single Window Clearance Committee has no authority to consider.
(viii) The petitioner has failed to persuade this Hon''ble Court to continue the interim order after 09.06.2008 in W.P. No. 15884/2007(SC-ST).
(ix)(a) Irregularities, if any, stand cured by the operation of Section 12 of KIAD Act, which reads as follows:
12. Savings of validity of proceedings: No act done or proceedings taken under this Act shall be questioned merely on the ground,:
(a) of any vacancy or defect in the constitution of the Board or of any committee thereof; or
(b) of any defect or irregularity in such act or proceeding not affecting the merits of the case.
(ix)(b) The learned Counsel relied on the Division Bench judgment of this Court in the case of H.G. Kulkarni and Ors. v. The Assistant Commissioner, Belgaum Sub-Division, Belgaum and Ors. ILR 1976 KAR 787 wherein it is held that not mentioning certain particulars in the notice u/s 28(2) is a mere irregularity cured by the afore-extracted provisions.
7. Sri Shekar Shetty''s submissions in W.P. No. 15628/2006 as follows:
(i) The petitioner has no locus standi to file this writ petition. He and his two brothers have entered into an agreement with the third respondent for the sale of the property. Further, they have also given their consent to the acquisition at all stages of the proceedings. The petitioner and his two brothers have received a sum of Rs. 55,85,000/- (Rs. Fifty five lakh eighty five thousand only) pursuant to the sale agreement, dated 23.06.2005 (Annexure-R1). The petitioner himself has received Rs. 7,45,000/-. Sri Shekar Shetty brings to my notice the consent letter, dated 14.06.2006 (Annexure- R3) submitted to the Special Land Acquisition Officer of the second respondent - KIADB indicating his consent to the acquisition of the land for the third respondent. He further submits that the petitioner and his two brothers have delivered the possession of the property in question to the Special Land Acquisition Officer, as is evident from possession letter, dated Nil (Annexure-R6).
(ii) Sri Shekar Shetty submits that once the claim for compensation is made or accepted by a party, he looses the right of resisting the acquisition of lands.
8. Sri Shekar Shetty''s submissions in W.P. No. 19504/2007 are as follows:
(i) Sri Shekar Shetty denies that the petitioner is the daughter of Venkatesh. When she is not the daughter of Venkatesh, who is the son of the original grantee - Rama Bhovi, she has no legal right, title and interest in the land in question. He further draws to my notice the averments contained in para 2 of the plaint, which reads as follows:
The deceased Venkatesh (S/o. late Poojari Ramaiah alias Rama Bhovi) was married to Chinnamma and through her, he begot two daughters by name minor plaintiffs 2 and 3 who are represented by the first plaintiff who is their senior Aunt. An independent application under Order 32 Rule 1 & 2 of CPC is also filed on behalf of minor plaintiffs 1 and 2.
9. Sri Poonacha, the learned Counsel for the respondent Udyoga Mitra submits that the Udyoga Mitra has not rejected the third respondent''s proposal. It has advised the respondent No. 3 to approach the Revenue Department for permission to the purchase of land u/s 109 of Karnataka Land Reforms Act. He further submits that the Single Window Clearance Committee will come into picture only in respect of the projects, which are to be set up with an investment of more than Rs. 3 crores (Rupees three crores) and less than Rs. 50 crores (Rupees fifty crores). In this regard, he brings to my notice the provisions contained in 6(2) of the Karnataka Industries (Facilitation) Act, 2002 which are as follows:
6(2). The State Level Single Window Clearance Committee shall examine and consider proposal received from the entrepreneurs relating to industrial and other projects to be set up in the State with an investment of more than three crores rupees and less than rupees fifty crores each.
10. The contentions urged raise the following questions for determination:
(1) Whether the petitioners in W.P. Nos. 19504/2007 and 15716/2006 have the locus standi to challenge the acquisition proceedings?
(2) Whether W.P. No. 15628/06 is maintainable?
(3) Whether the acquisition of lands for the purpose of the third respondent is permissible under the KIAD Act?
(4) Whether the respondent Nos. 1 and 2 are justified in acquiring the land and allotting the same to the third respondent even when the third respondent''s application is incomplete?
(5) Whether the acquisition of land suffers from non-application of mind?
(6) Whether the service of notice on all the persons interested in the land is mandatory or directory? If it is held to be mandatory, whether the order under 28(3) and the declaration under 28(4) of the KIAD Act become liable to be quashed in the wake of the non-service of the said notice?
(7) Whether the irregularities, if any, in the acquisition proceedings stand cured in view of the saving provision contained in Section 12 of KIAD Act?
11. In Re Question No. 1 - (a) To consider this question a brief reference is required to be made to the family of the original grantee of the lands, namely, Poojari Ramaiah. The said Ramaiah had four sons, namely, (1) Poojari Peddanna, (2) Rajappa (3) Chinnaswamy and (4) Venkatesh. The said Venkatesh died leaving behind him two daughters, the petitioner and her younger sister Lakshmi (deceased). They all constituted Hindu Undivided Family.
(b) O.S. No. 831/03 is filed by the petitioner and her two nieces seeking the partition of the three items of the property, including the land in question, and for the allotment of 1/4th share therein and for the relief of separate possession. The relationship between the plaintiff and the defendants (the petitioner and the respondent Nos. 4,5 and 6 herein respectively) is admitted in the written statement. Therefore the third respondent''s preliminary objection that the petitioner is not the daughter of Sri Venkatesh is overruled. On a stray ambiguous averment in the plaint, the petitioner cannot be denied the valuable inheritance right in the immovable property. The petitioner has already made out the prima facie case in O.S. No. 831/03, as is evident from the granting of the interim order of status quo. If she were not the daughter of Venkatesh and the grand daughter of Ramaiah, it would not have been possible for her to persuade the Trial Court to grant an interim order of status quo.
(c) For all the aforesaid reasons, I hold that the petitioner in W.P. No. 19504/07 is entitled to maintain the writ petition.
(d) This Court in W.P. Nos. 15342/2007 and 15884/2007 (SC/ST) is seized of the correctness or otherwise of the proceedings under the PTCL Act. As far as the alienations of the granted land and the proceedings initiated for the restoration of the granted lands to the legal representatives of the original grantee are concerned, it is for this Court in W.P. Nos. 15342/07 and 15884/07 to decide the validity of all the alienations and the restoration orders. Sitting in judgment over the alienation and the restoration orders in these writ petitions is not warranted.. The validity or otherwise of the proceedings under the PTCL Act cannot be decided in these petitions, where the challenge raised is only to the acquisition proceedings. Suffice it to hold that the petitioners have the locus standi to challenge the acquisition proceedings, as they are the persons interested in the land. It may not be proper to insist that the petitioners should wait till their rights are determined in W.P. Nos. 15342/07 and 15884/07 and only thereafter challenge the acquisition proceedings. In the event of their succeeding in the said writ petitions after some years and thereafter filing the writ petitions to challenge the acquisition proceedings, they would be confronted with the fait accompli - an action which is completed before the persons affected by it are in a position to query or reverse it. If the parties are made to wait to challenge the acquisition proceedings till their rights are crystallized, it would have the effect of rendering them remediless. When the acquisition proceedings are completed and the acquired land is developed, the clock cannot be put back by quashing the acquisition proceedings.
(e) Thus, as the petitioners in W.P. Nos. 15716/06 and 19504/07 are the persons interested in the land, I hold that they have the locus standi to file and maintain these writ petitions.
12. In Re Question No. 2 - (a) The petitioner, Poojari Peddanna has given his consent to the Special Land Acquisition Officer of the second respondent KIADB. The same is evident from Annexure-R3 to the third respondent''s statement of objections. Having given his consent, he is estopped from raising the challenge to the acquisition proceedings. The position would be immutable, even if no reliance is placed on the sale agreement entered into between the petitioner and his two brothers on one side and the respondent No. 3 on the other side and the consequent receipt of the sale consideration by the petitioner and his brother from the third respondent.
(b) For another reason too the petitioner has lost his right of assailing the acquisition. The petitioner''s brother, Rajappa attended the meeting convened by the Advisory Committee for the purpose of determining the compensation for the acquisition of land in question. The copy of the proceedings of the said meeting is produced as Annexure-R2 to the statement of objections filed on behalf of the respondent No. 2. It states that the petitioner and his brother, Chinnaswamy could not attend the meeting but they would be bound by the fixation of compensation amount in the meeting.
(c) It is trite position in law that once the claim is made by a party either for the determination of the market value or for the enhancement, he cannot challenge the acquisition per se. In this regard, it is profitable to refer to the Division Bench judgment of this Court in the case of
14. There is one other aspect which has a bearing. Admittedly, the petitioners filed the claim statement on 31.3.1983 and the Writ Petition was filed on 19.12.1983. We have held in Writ Appeal No. 781/89 (disposed of on 6th November 1989) as follows:
This is clearly a case in which Writ Petition itself is not maintainable because admittedly he had filed an application claiming compensation for the land in question. It is well settled law that where a person asked for compensation he cannot maintain a Writ Petition under Article 226 of the Constitution of India, vide 70 Calcutta Weekly Notes, page 1100. Therefore, we agree with the view taken by the learned Single Judge and dismiss the Writ Appeal.
(d) Further, the possession certificate, dated 22nd August, 2006 (Annexure-R7) to the statement of objections of the second respondent shows that the petitioner and his two brothers have already surrendered the possession. No rejoinder and no affidavit is filed by the petitioner after the filing of statement of objections by the respondent Nos. 2 and 3. The signatures on the sale agreement and the possession certificate are being disputed for the first time in the course of argument.
(e)For all the aforesaid reasons I hold that the W.P. No. 15628/08 filed by Sri Poojari Peddanna is not maintainable.
13. In Re Question No. 3 - (a) To consider this point, it is desirable to see what are the objects of enacting the KIAD Act. The said Act is brought in for securing the establishment of the industrial areas in the State of Karnataka and for promoting the establishment and orderly development of industries therein. u/s 28 of the KIAD Act, the land can be acquired either for the purpose of development by KIADB or for any other purpose in furtherance of objects of the said Act. What can be said with certainty is that the land can be acquired for the purpose of industrial development. It can be acquired for establishing the industrial area, industrial estate, industrial infrastructural facilities and for creating civic amenities.
(b) The statutory provisions containing the definition of these terms are extracted hereinbelow:
Section 2(1) Amenity" includes road, supply of water or electricity, street lighting, drainage, sewerage, conservancy, and such other convenience, as the State Government may, by Notification specify to be an amenity for the purposes of this Act;
Section 2(6) " Industrial area " means any area declared to be an industrial area by the State Government by Notification which is to be developed and where industries are to be accommodated and industrial infrastructural facilities and amenities are to be provided and includes, an industrial estate;
Section 2(7) " Industrial estate " any site selected by the State Government where factories and other buildings are built for use by any industries or class of industries;
Section 2(7)(a) "Industrial infrastructural facilities" means facilities which contribute to the development of industries established in industrial area such as research and development, communication, transport, Banking, Marketing, Technology Parks and Townships for the purpose of establishing trade and tourism centres; and any other facility as the State Government may by Notification specify to be an industrial infrastructural facility for the purposes of this Act.
(c) On the combined reading of all the afore-extracted provisions, what emerges is that the land can be acquired for establishing the industrial area and industrial estate under the KIAD Act. Incidentally thereto or in furtherance of the main object of industrial development, land can also be acquired for creating the amenities and industrial infrastructural facilities. But the same has to be for the development of industries, which are already established in the industrial area. Similarly, for the purpose of creating amenities also, land can be acquired. But the question that remains to be answered is whether the 1 acre 35 guntas can be acquired, where there is no industrial area and no industrial estate.
(d) In the NICE case relied upon by Sri Shekar Shetty, the Hon''ble Supreme Court upheld the acquisition, as it was an integrated project but in the instant case, the land acquired is only for the purpose of upgrading the infrastructure in the third respondent''s College. The third respondent''s letter, dated 23 rd December 2005 (Annexure-Z) shows that the third respondent''s Engineering College is falling short of land requirement, prescribed as by AICTE. Its reading further reveals that the acquisition of the land is necessitated by the causing of nuisance by the dwellers of the hutments and of the slums and by the construction labourers from North India. I am afraid, these difficulties of the third respondent, however genuine they are, cannot be solved by resorting to the compulsory acquisition. The acquisition of small bit of land measuring 1 acre 35 guntas for meeting the said requirements of the third respondent and that too outside the second respondent''s industrial area and estate is liable to be declared as unacceptable.
(e) Can the setting up of a private facility be defined as civic amenity or an industrial purpose? If the answer is in the negative, the compulsory acquisition becomes unsustainable. As held by the Hon''ble Surpreme Court in the case of
(f) For the stand-alone purpose of meeting the requirement of the third respondent''s College or to put an end to the nuisance being caused to the third respondent by the users of the land in question, the land cannot be acquired. When there is no industrial purpose, much less a public purpose, it difficult to uphold the acquisition. The acquisition of land for the third respondent''s purpose is not in consonance with the intendment and the provisions of the KIAD Act. The acquisition is clearly without the authority of law.
14. In Re Question No. 4 -(a) I notice that out of 13 columns in the application for allotment of land, only 4 are filled up. Even when the application is deficient in many ways, the respondent No. 2 acted upon the said application. The defence of the respondent Nos. 2 and 3 that the application form itself is devised in a different context for a different purpose and that is why it is not filled up fully, does not commend itself to me. Equally unacceptable is the submission of the learned Counsel for the respondent Nos. 2 and 3 that the application is accompanied by the project report. I am dismissive of this contention for the following reasons:
(1) Regulation 4(c) of the KIAD Regulations unequivocally states that the incomplete applications shall not be considered. Therefore the consideration of the petitioner''s request is in violation of said Regulation 4(c) which is extracted in para 2(ix)(b) supra.
(2) There are no entries or responses to as many as 9 columns. The third respondent has not even stated that these columns in the application form are not applicable. I find that some of these columns could have been filled up by the third respondent.
(3) I cannot accept the argument of the learned Counsel for the respondent Nos. 2 and 3 that the application form was accompanied by the project report. It is only after the submission of the application and the allotment made in response thereto that the second respondent has called upon the third respondent to furnish the project report. If the project report was already submitted, there would not have been any need for the second respondent to request the third respondent to furnish the project report in the allotment letter extracted in para 2(ix)(a) (supra). The submission of the project report has to precede the making of the allotment of the land and not the other way round.
15. In Re Question No. 5 - (a) This issue is inter-related with the previous issue i.e. question No. 4. When there was no complete application and no project report at the time of initiating the acquisition proceedings and even at the time of allotting the acquired land, the whole proceedings cannot but be held to be marked by total non-application of mind. Section 28(1) of the KIAD Act states that the State Government may issue the preliminary Notification, if in its opinion any land is required for the purpose of development by KIADB or for any other purpose in furtherance of the objects of KIAD Act.
b) Opinion has to be distinguished from a mere impression, fancy or lodgment in the mind. Opinions are the results of reading, experience and reflection. Opinion is the conclusion which one arrives at based on some materials.
(c) The Hon''ble Supreme Court has been consistently holding that there can be no formation of opinion without the application of mind. In this regard, it is profitable to refer to the following judgments of the Hon''ble Supreme Court:
In the case of Devinder Singh v. State of Punjab (SUPRA), it is held as follows:
33. When an order is passed without jurisdiction, it amounts to colourable exercise of power. Formation of opinion must precede application of mind. Such � application of mind must be on the materials brought on record. The materials should be such which are required to be collected by the authorities entitled therefor. The authorities must act within the four corners of the statute. An opinion formed even on the basis of an advice by an authority which is not contemplated under the statute renders the decision bad in law. A statutory authority is bound by the procedure land down in the statute and must act within the four corners thereof.
In the case of Hindustan Petroleum Corporation Ltd. v. Dariusshapur Chenai (Supra), it is held as follows:
9. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision-making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions contained in Article 300A of the Constitution it has been held to be akin to a fundamental right.
19. Furthermore, the State is required to apply its mind not only on the objections filed by the owner of the land but also on the report which is submitted by the Collector upon making other and further enquiries therefore as also the recommendations made by him in that behalf. The State Government may further inquire into the matter, if any case is made out therefor, for arriving as its own satisfaction that it is necessary to deprive a citizen of his right to property. It is in that situation that production of records by the State is necessary.
28. Although assignment of reasons is that part of principles of natural justice, necessity thereof may be taken away by a statute either expressly or by necessary implication. A declaration contained in a Notification issued u/s 6 of the Act need not contain any reason but such a Notification must precede the decision of the appropriate Government. When a decision is required to be taken after giving an opportunity of hearing to a person who may suffer civil or evil consequences by reason thereof, the same would mean an effective hearing.
(d) In the light of the afore-extracted judgments and in the light of there being no material whatsoever on the record of the respondent Nos. 1 and 2 regarding the requirement and feasibility of the third respondent''s project, no opinion - formation, as contemplated u/s 28(1) of KIAD Act is discernible. Therefore the land acquisition in question cannot be upheld.
16. In Re Question No. 6 - (a) Section 28(2) of the KIAD Act, which is extracted in para 2(viii)(a) supra, prescribes that the State Government shall serve the notice upon the owner and all such persons known or believed to be interested therein. It is not in dispute that the petitioners in writ petition Nos. 15716/2006 and 19504/2007 are not put on any show-cause notice by the respondent Nos. 1 and 2.
(b) The submission of Sri Shekar Shetty that the requirement of issuance of a notice is only directory and not mandatory does not commend itself to me. The judgments relied upon by him are in the context of acquisition under the Land Acquisition Act. There is no provision under the L.A. Act corresponding to Section 28(2) of the KIAD Act. While there can be no dispute that the Special Land Acquisition Officer is not required to hold the roving enquiry for the purpose of collecting the information as to who are all the persons interested in the land. In the instant case, the respondent Nos. 1 and 2 were aware of the fact that the land in question is a granted land and of the pendency of the PTCL proceedings before the Assistant Commissioner and the Deputy Commissioner. That the respondent Nos. 1 and 2 had the knowledge of the proceedings under the PTCL Act is evident from the agenda note (Annexure-L) to Writ petition No. 15716/2006. Paragraph 6 of the said agenda note reads as follows:
6. On verification 6f the proposal of M/s. New Horizon Educational Trust, it is noticed that the land in Sy. No. 41 measuring 1 acre 31 guntas of Kadubeesanahalli village is a granted land and the case is pending under PTCL Act and hence the Revenue Department is not in position to give permission for sale u/s 109 of KLR Act in respect of this Sy. No.
(Emphasis supplied)
(c) When the proceedings were within the knowledge of the authorities, the minimum that is expected of the Spl. Land Acquisition Officer is to get the addresses of the persons interested in the land from the office of the Assistant Commissioner or the Deputy Commissioner. Getting the information based on the records does not amount to holding the roving enquiry. The service of notice on all the persons interested in the land is a mandatory requirement and the non-compliance thereof would render further acquisition proceedings bad. In taking this view, I am fortified by the Division Bench judgment of this Court in the case of
7. ...It was not at all difficult for the respondents to ascertain the names of the petitioners because the proceeding was going on between the petitioners and the applicants in I.A. No. 1 under the Karnataka Land Reforms Act for grant of occupancy right. Therefore, it is not possible to accept the contention of the respondents and also the applicants in I. A. No. I that in the event of the death of the owner of the land proposed to be acquired under the Act, if the names of the heirs of the deceased owner are not entered in the revenue records it is not incumbent upon the State Government and the Special Land Acquisition Officer exercising the power under the Act to ascertain the names of the heirs and serve notice upon them merely on the ground that the names of the heirs of the deceased owner are not entered in the relevant revenue records. By the acquisition private property of an individual is taken away. A private property of an individual cannot be taken away or acquired except in accordance with law. As per Sub-section (2) of Section 28 of the Act it was incumbent to serve notice upon the petitioners....
(d) The Hon''ble Supreme Court in the case of
13. It could be seen from the above order that service of notice on a person shown as owner or occupier in the record of rights is sufficient even though the said person had already sold the land prior to the said Notification unless it is substantiated otherwise that the authorities concerned had the knowledge of the rights or interest of any person other than those found recorded as owner/occupier in the Revenue Records. It is further held that the Collector is not obliged to make roving enquiry about the ownership of the land....
(emphasis supplied)
(e) While the right to property has ceased to be a fundamental right. It continues to be a legal right. It has now become a constitutional and a human right too. The land acquisition law is an expropriatory legislation; the provision of land acquisition statute should be strictly construed, as it deprives a person of his land without his consent. In taking this view I am fortified by the judgment of the Hon''ble Supreme Court in the case of Hindustan Petroleum Corporation Limited (supra).
(f) It is also profitable to refer to the Hon''ble Supreme Court''s judgment in the case of Devinder Singh (supra). The Hon''ble Supreme Court has this to say in para 55 of its judgment.
55. The approach of the High Court in this behalf, in our opinion, is totally erroneous. A provision of a statute is either mandatory or directory. Even if a provision is directory, the same should be substantially complied with. It cannot be ignored in its entirety only because the provision is held to be directory and not an imperative one.
(g) If the non-ascertaining of the names of the legal representatives of the original grantee, even when the respondent Nos. 1 and 2 were aware of the pendency of the PTCL proceedings and consequently of non-service of notice on them is viewed in the backdrop of the catena of the decisions to which references are made hereinabove, the conclusion one arrives at is that this is a case of absolute non-compliance with the mandatory provisions contained in Section 28(2) of KIAD Act.
17. In Re Question No. 7 -I am not in a position to give acceptability to the submission urged with reference to Section 12 of KIAD Act, because the non-compliance with the requirements of KIAD Act and acquisition for a purpose not permitted under the KIAD Act touch on the merits of the case. The decision in the case of Kulkarni (supra) does not come to the rescue of the third respondent in any way. In the reported case, ss certain particulars were not mentioned in the notice issued u/s 28(2) of KIAD Act. But in the instant case no notice whatsoever is issued to the petitioners, who are the persons interested in the land.
18. The other submissions urged on behalf of the petitioners regarding the non-issuance of the Notification u/s 1(3), non-clearance by the Single Window Agency and the Karnataka Udyoga Mitra, etc. need not detain me as the respondents have come out with tenable reply. Similarly, the allegation of the respondents moving not at supersonic speed but at lightening speed, is something on the basis of which the acquisition proceedings cannot be quashed. The quick sequence of events, as graphically narrated by Sri Batra only goes to show that some extra efforts may have been put in. As the acquisition Notifications do specify the purpose, though not fully, the acquisition proceedings cannot be struck down on the ground of vagueness of purpose in the impugned Notifications. The distinction between the lack of full particulars and vagueness can not be blurred, though the dividing line between the two is thin. As this Court is satisfied that the file was sent to the second respondent''s advocate while seeking the query from him, it does not find any substance in the allegation that the legal opinion is tendered without there being any basis for the same. Similarly there is no legal impediment in compulsorily acquiring the land granted under the PTCL Act but by following the procedural requirements. The respondents have also shown that the Notification u/s 1(3) of KIAD Act is indeed issued. I do not feel the need to formulate the questions on these submissions.
19. In the result, I allow W.P. No. 15716/06 and W.P. No. 19504/07 by quashing the impugned acquisition Notifications and all further proceedings thereto. I dismiss W.P. No. 15628/06. No order as to costs.
