Girias Investment Pvt. Ltd. vs The State of Karnataka and Others

Ajit J. Gunjal, J.—The controversy in this petition is in relation to acquisition of two bits of lands i.e., Sy.No.118 and 119 of Kannamangala village, Devanahalli Taluk, Bangalore Rural District purchased by the petitioners pursuant to two registered sale deeds dated 23.11.2005 and 26.11.2006. Under the said two sale deeds, the petitioner has purchased an extent of 2 acres 20 guntas in Sy.No.118 and an extent of 1 acre 10 guntas in Sy.No.119 pursuant to the aforesaid registered sale deeds. The case of the petitioners is that their vendor had got these two lands converted into non-agricultural lands pursuant to conversion certificate issued by the Competent Authority, a copy of which is produced at Annexure ''D''. According to them the two lands are being treated as non-agricultural lands. Suffice it to say that pursuant to the notifications dated 05.12.2005 and 02.06.2006 u/s 28(1) & (2) and Section 28(4) respectively of the Karnataka Industrial Area Development Board Act, the lands are sought to be acquired for the purpose of the International Airport at Devanahalli for the trumpet inter-change. The said land is sought to be acquired along with the vast extent of land for the aforesaid purpose. The challenge to the acquisition is on several grounds.

It is the case of the petitioners that respondents 2 & 3 i.e., the acquiring body have not followed the mandatory provisions of Section 28(3) inas much as no notice has been issued to the petitioners and no personal hearing has been given inasmuch as the Statement of Objection have also not been considered. It is their further case that no opportunity was afforded to them as contemplated u/s 28(3) of the Act. Thus there is violation of the principles of natural justice. They would further contend that initially the trumpet inter-change was sought to be constructed in Sy.Nos. 115 and 116 and 73 of Kannamangala village. But however, without any justifiable reason, the said trumpet inter-change is being shifted to Sy.No.118 and 119, which was not a part of the trumpet inter-change earlier. They would further contend that the State has abducted their power inasmuch as they did not have any role in the decision making process. According to them, the Karnataka Industrial Area Development Board (for short "KIADB") was not at all consulted, which is a necessary body as it is the acquiring body. The acquisition of the lands in question giving up the other lands is arbitrary and misconceived and without application of mind. Since the Competent Authority had granted permission for conversion of the land from agricultural land to non-agricultural lands, there is legitimate expectation on the part of the petitioners that the said land is not required by the State for any purpose. The petitioners would further contend that the shifting of the trumpet inter-change from the existing area to the proposed new area is accentuated by malafides. On these grounds, the petitioners have sought for quashing of the acquisition proceedings.

The Statement of objections are filed by all the contesting respondents.

The State respondent No. 1 has filed Statement of objections refuting the allegations made in the petition. They would contend that the acquisition of the lands is for a public purpose inasmuch as it is for the purpose of construction of International Airport. According to the State the construction of trumpet inter-change was chosen as a best alternative to provide clear access to the Airport. The National High Way Authority of India (for short "NHAT") has agreed to construct the trumpet inter-change on Build Operate Transfer (BoT) basis. According to the State, the location as well as the design and engineering of the trumpet inter-change were finalised after taking into account the requirements of the Airport, National High Way and the Railways including its future track requirements. They would contend that initially the proposed trumpet, inter-change was in Sy.Nso.115, 116 and 73, but however, due to certain technical defect in having a trumpet interchange in the said Survey numbers, after due consultation with the Bangalore International Airport Limited (far short ''BIAL'') and also the NHAI, the trumpet inter-change was sought to he shifted to Sy.Nos.118 and 119. The Statement of objections would further traverse the pleadings stating that no malafides can be attributed to the State in shifting the trumpet inter-change to Sy.Nos.118 and 119. They would also contend that even though the notices were issued to the vendors of the petitioners, the petitioners filed their objections participating in the said proceedings and objections were considered and rejected. Thereafter, final notification is issued u/s 28(4) of the Act. There is denial of all the averments made by the petitioners in the body of the petition in the Statement of objections. The 1st respondent-State has also produced several document to show at to the reason for shifting of the trumpet inter-change.

The respondent No. 2- the Special Land Acquisition Officer, KIADB and respondent No. 3 -KIADB have filed their objections inter alia contending that a notice was issued as contemplated u/s 28(2) of the KIADB Act. Thereafter a personal hearing was given to the petitioner u/s 28(3) of the KIADB Act. Objections were considered and a final declaration has been issued u/s 28(4) of the Act. Hence, it is not open for the petitioners now to contend that the entire procedure culminating in the insurance of final declaration u/s 28(4) of the Act is in violation of the Principles of Natural Justice. They have produced the order sheet to show that a personal hearing was also given to the petitioner. They have also made available the original records. Copy of the order u/s 28(3) of the Act is also made available. Additional counter statement has also been filed by respondents 2 and 3.

Respondent No. 4 - BIAL have also filed their objections inter alia contending that the acquisition of the land is in accordance with law and in confirmity with the provisions of the Act. They have also produced several communications to buttress their contention as to the reason for shifting of the trumpet inter-change from the existing land to the proposed area belonging to the petitioner i.e., Sy. Nos. 118 and 119.

The petitioners have filed rejoinder to the statement of objections filed by respondents and have denied the averments reiterating what has been stated in the petition. Certain documents are also produced along with the application. During the pendency of the petition an application for appointment of a Commissioner is filed under Order 26 Rule 9 of the CPC to examine as to whether indeed the proposed change of trumpet inter-change is essential.

I have heard Mr. R.N. Narasimha Murthy, learned Senior counsel appearing for the petitioner, Mr. Udaya Holla, learned Advocate General for respondent No. 1, Mr. B.V. Acharya, learned Senior counsel for respondents 2 and 3 and Mr. Ashok. K for respondent No. 4.

Mr. R.N. Narasimha Murthy, learned Senior Counsel appearing for petitioners would primarily contend that the notice was not issued to the petitioners inasmuch as it was issued to the vendors of the petitioners. Notwithstanding the said anomaly, the petitioners have filed their objections. He would refer to the objections, a copy of which is produced at Annexure ''G''. Referring to the objections filed by the petitioners before the Land Acquisition Officer, he would contend that there is no Justifiable ground for the authorities to shift the trumpet inter-change from the existing area. According to him the petitioners having purchased the land in question and having obtained the necessary orders from the Competent Authority for change of user, there is no justifiable reason as to why the said land is sought to be acquired. He would also contend that a specific contention is taken in the statement of objections requesting the authorities to provide them with a personal hearing in the matter and permit them to file any other documents and written statements as may be required. He would also submit that the shifting of the trumpet interchange is arbitrary and misconceived and without any application of mind.

Mr. Udaya Holla, learned Advocate General appearing for respondent No. 1 would contend that in the absence of pleadings, it is not open for the petitioners to contend that the change of trumpet interchange is accentuated by malafides. He submits that in the absence of any pleadings, the question of malafides cannot be gone into. In so far as abduction of powers is concerned, he would refer to Annexure "R5" in Statement of objections to contend that it is at the behest of the BIAL in consultation with the NHAI have thought it fit that it is more feasible, economical and practical to change the trumpet inter-change from the existing lands to the lands in question. According to him the change is necessary after due inspection, which was dons on 01.09.2004. According to him, the change of trumpet inter-change was in existence even as on 11.05.2005 even before the land was purchased by the petitioners in November 2005. Thus no malafides can be attributed to the State in acquiring the land of the petitioner. According to him, all formalities, which are required to be done before the acquisition of the lands, have been done in as much as the objections have been considered and a personal hearing is given to the petitioner.

Mr. B.V. Acharya, learned Senior Counsel appearing for respondents 2 and 3 i.e., KIADB would contend with reference to the documents produced along with the Statement of objections to the effect that, objections have been considered by the Land Acquisition Officer and have been rejected. He would also contend with reference to the order sheet that the petitioners were present personally and a personal hearing was given. Consequently, it cannot be said that the final declaration is without complying with the requirements of Section 28(3) of the Act. According to him change of trumpet inter-change is required inasmuch as the BIAL had in consultation with the NHAI confirmed that having a trumpet inter-change in the existing area is not conducive and practicable.

Mr. Amar Kumar, learned Counsel appearing for both respondents 4 and 5 - BIAL would substantially adopt the arguments of the learned Advocate General and the learned Senior Counsel Mr. B.V. Acharya and with reference to the documents produced along with the Statement of objections to the effect that the change of trumpet inter-change is essential as it would be aligned with National High Way No. 7. He would also submit that NHAI also thought it fit that the said change of trumpet inter-change is essential.

Having regard to the rival contentions, the moot question, which would fall for consideration is whether the acquisition proceedings are liable to be interfered on the ground of violation of principles of natural justice end indeed the change of trumpet interchange is accentuated by malafides.

In so far as the consideration of objections is concerned, it is necessary to refer to certain provisions of the Act. Section 3 of the KIAD Act would deal with a declaration of Industrial Areas under which the State Government may, pursuant to a notification, declare such area to be an Industrial Area for the purposes of the Act. Section 28 of the KIAD Act would relate to the acquisition of land for the purpose of development by the Board or for any other purposes in furtherance of the objects of the Act. Section 28(1) of the KIAD Act essentially deals with its intention to acquire such land. Section 28(2) of the Act contemplates service of notice upon the owner or where the owner is not the occupier of the land and all such persons known or believed to have certain interest in the land to be acquired, to show cause within thirty days as to why the land should not be acquired. Sub-section (3) of Section 28 of the KIAD Act would deal with the consideration of the objections and also an opportunity of personal hearing. Sub-section (4) of Section 28 of the KIAD Act deals with publication of a final declaration on consideration of the objections. The challenge to the acquisition of land for the purpose of International Airport, fell for consideration in the case of H.N. Nanje Gowda Vs. State of Karnataka and Others, It is held that setting up of an Airport and acquisition of land for the said purpose would come within the purview of the Act.

Indeed, notices were issued by respondent No. 2 to the vendor of the petitioners. But however, petitioners came to know about the acquisition and have filed their objections before the Land Acquisition Officer. The Land Acquisition Officer indeed has considered the objections and has found that the said objections are not tenable and has rejected the same holding that the acquisition is for a public purpose. The contention of the petitioners that they were not given personal hearing cannot be accepted in view of the order sheet produced by the respondents 2 and 3. Indeed, the petitioners had after filling of the objections appeared before the Land Acquisition Officer and have contended that the land is not required to be acquired for the aforesaid purpose. What is the scope of personal hearing and consideration of objections fell for consideration in the case of N. Someshekar and Ors. v. State of Karnataka and Ors. reported in 1997(7) KAR.L.J. 410. It is no doubt true that the consideration of objections cannot be a mere formality. Indeed the Land Acquisition Officer is expected to apply his mind and consider the objections filed by the owners of the land. But however, the consideration of such objections, would be there, if substance is there in the objections raised by the owners of the land. If the objections filed are in the nature of the usual objections, indeed, the Land Acquisition Officer cannot be expected to consider each and every sentence. What is important is the consideration of objections in its totality. It is useful to extract the observations made by this Court in the aforesaid decision:

It cannot be disputed that each objection raised by a land owner or person interest in the land sought to be acquired must be considered and disposed of by the Land Acquisition Officer fairly and objectively, but then that proposition of law is subject to an all important caveat viz., that the objection must be one of substance and must be stated with sufficient clarity and supportive material. The requirement of consideration of all the objections raised before the Land Acquisition Officer is not ritualistic nor would the Court interfere just because each objection raised before the Officer concerned has not been considered by him howsoever irrelevant funny or even foolish the objection may be. It is only when the Court finds that a fair and proper consideration of the objection raised may have changed the course of events that the Court may view non-consideration with concern. Where the objections am just for the sake of objections without any substance or wholly irrelevant or insufficient to outweigh the compulsions of compulsory acquisition meant to satisfy a public purpose, the failure to deal with or consider ad seriatum each objection raised would make no difference. The decision of this Court in K.S. Chandrashekhar''s case, supra, relied upon by Court far the petitioners does not, in my opinion, lay down a different proposition of law. That was a case where the objection raised was that the proposed acquisition was unnecessary having regard to the fact that a vast extent of the Government land was available which was suited for satisfying the public purpose in view. Non-consideration of the said aspect by the land Acquisition Officer was considered by this Court to be improper. Reference may also be made to a Division Bench decision of this Court in Writ Petition Nos. 1808 to 1822 of 1996, dated 31.5.1996, where this Court held that in order that an objection on the ground of availability of Government land is considered, it is essential for the objector to identify the Government land that is available, indicate the extent thereof and provide such other details to enable the Land Acquisition Officer to consider the objections by reference to the same.

This Court has also considered a Division Bench ruling of this Court in the case of K.S. Chandrashekhar and others Vs. The Special Land Acquisition Officer, Bangalore and others, . It is to be noticed that the requirement of consideration of the objections is relevant and the Courts will not interfere just because each objection raised by the Officer has not been considered by him. Indeed, the Courts would step in only when objections filed by the Landowners has sum and substance. When the objections are without any substance or wholly irrelevant or insufficient, to satisfy the public purposes, failure to deal with or consider each objection raised, would certainty make no difference.

Indeed, a copy of the Statement of objections is produced by the petitioners, which is at Annexure ''G''. Apparently, none of the contentions urged before me are a part of the Statement of objections. Para 1 to 7 of the Statement of objections would deal with the acquisition of the property by the petitioners and having it converted into non-agricultural land. The objections to the acquisition would commence from para 8. Indeed one of the contentions raised in the Statement of the acquisition is sought to be struck down. But however, it is not pointed out as to how there is a colorable exercise of power.

The next objection is that on the western portion of Sy.No. 118, there is a Nursery Farm being run by the Horticulture Department, which is set-up by the State. In the circumstances, when the said land is available there is no justifiable reason to acquire this land. The third objection raised is that the Lands in question are converted into non-agricultural lands by paying necessary fee. The fourth objection is the lands are also designated as commercial and they have purchased the property to set up a shopping complex and have availed financial facilities from the Bank and that entire acquisition is without notice to the petitioners u/s 28(2) of the Act. The other objections would relate to the change of alignment which is not essential. These are all the objections raised by the petitioners opposing acquisition.

Apparently, it is also to be noticed that as to whether the change of trumpet inter-change is required or necessary would fall within the Competency of the Competent Authority namely the 4th respondent-BIAL and the 5th respondent - NHAI. The location of the trumpet inter-change is highly technical in nature and neither the petitioners nor the Court are competent enough to say as to where the trumpet inter-change is to be located. It is to be noticed that the said trumpet inter-change is located after several reports were obtained pay the Competent Authorities. It is to be noticed that to obtain optimum usage, safe access is imperative. Indeed, the National High Way No. 7 is the only frontage available having access to the Airport and a Railway track running along National High Way No. 7 is chosen to provide beat access to the Airport. The NHAI has agreed to construct the said trumpet inter-change. It is specifically contented in the Statement of objections filed by the State that the National High Way No. 7 is being developed as a six lane High way by the NHAI and it is the only primary access to the Airport. It is also to be noticed that the extent and location of land required for trumpet interchange was finalised after due consultation with BIAL and NHAI. Having regard to the fact that location of a trumpet inter-change is more in the nature of technical competency, this Court cannot interfere with the acquisition proceedings on the ground that the said objections regarding change of trumpet inter-change is not considered cannot be accepted.

Indeed, it is to be noticed that a personal hearing was also given to the petitioner. What is the scope of principles of natural justice fell for consideration before the Apex Court in the case of The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another Vs. Ramjee, . It is the useful to extract the observation made by the Apex Court.

Natural justice is no unruly horse, no lurking land mine nor a Judicial cure-all. If fairness is shown by decision-maker to the man proceeded against the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural Justice can be complained of Unnatural expansion of natural Justice, without reference to the administrative realities and other factors of a given case, can be exasperating.

It is also to be noticed that the scope of future development fell for consideration in the case of Ramniklal N. Bhutta and another Vs. State of Maharashtra and others, has observed thus:

Our country is now launched by upon an ambitious programme of all round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries referred to a "Asian Tigers".

These challenges are generally in the shape of writ petitions filed in High Court. Invariably, stay of acquisition is asked for and in some case, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has came where the Courts should keep the larger public interest in mind while exercising their power of granting stay injunction. The power under Article 226 is discretionary. It will be exercised only is furtherance of interest of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purpose, the interests of justice and the public interest coalesce.

There are many ways of affording appropriate relief and redressing a wrong quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the Courts white dealing with challenges to acquisition proceedings.

Indeed it is to be noticed that initially the location of a trumpet inter-change was in Sy.No.115, 116, 117 and 73. But however, later on it was found that the said topography was not conducive to have a trumpet inter-change. Hence, it was decided to change the trumpet inter-change. For the said purpose a Competent Agency namely Section Survey Private limited, consultants was appointed and they have found that the alignment of the trumpet inter-change would entail the acquisition of the land in question. This is further strengthened by two communications at Annexure ''R1'' & ''R2'' produced along with the Statement of objections by the State. In no uncertain terms it in stated that the right of way which co-ordinates for the trumpet inter-change were provided by Intercontinental Consultants and Technocrats Private Limited who are the consultants for NHAI and it was found that the said trumpet inter-change is required for a possible smooth inflow and outflow of the traffic. Annexure ''R3'' is another communication issued by BIAL to the general Manager KSIIDC where they have suggested that there is a slight change in the alignment of the access road and based on this alignment. Section survey has submitted the revised statement showing the extent of land, village names and Survey Numbers. The drawing was also made available. This would conclusively prove that the proposed trumpet inter-change is required to be shifted. This proposed interchange was finalised after due consultation with BIAL, NHAI and also Railway authorities after holding series of meeting in this behalf. The correspondence inter se between the BIAL and KSIIDC, which is produced at Annexure ''R1 to R5'' which would bring out the development subsequent to the notification of 07.04.2004, which is sought to be relied upon by the petitioner. These five documents would explain the reason for re-location of the trumpet alter-change.

It is to be noticed that after issuance of preliminary notification, a letter was addressed to BIAL to review the scheme and reconfirm the access road alignment, the trumpet interchange position and the actual extent of land required to initiate final action towards acquisition of the required additional lands. Indeed it is to be noticed as observed earlier as to the location of the interchange is a technical matter which is within the competency of the technical authority namely NHAI. An a matter of fact, this question regarding the jurisdiction of the Court under Article 226 interfering with the recommendation of an expert Committee regarding location fell for consideration in the case of Nanjegowda v. State of Karnataka which has been referred to earlier. The Division Bench of this Court while considering the scope of interference by the Court under Article 226 of the Constitution of India in respect of a technical aspect has observed thus:

Therefore when the Committee is constituted consisting of experts in the field and when they have examined the matter and recommended to the concerned authorities that a particular place would be best suited for the purpose, Court cannot reexamine the matter and substitute its opinion.

It is to be noticed that the proposal for change of location and change of alignment and the extent of land for International Airport was based purely on technical requirements and thus availability of the Government land was not the criteria for acquiring the lands noted for the project. The acquisition of land was purely according to the technical requirements of BIAL, NHAI and Railway Authorities and thus the availability of the Government land in Sy.No.73 is also not a criteria to quash the acquisition proceedings. It is not as if the petitioners are being deprived of the land without any just compensation. It is always open for the petitioners to lodge a claim for compensation, which will he determined by the Land acquisition Officer according to the market value.

The reasons for change: It is also to be noticed that when the technical team of BIAL, representations of KSIIDC and other Revenue Officials inspected the existing area it was found that there was a pond visible in the map. If the trumpet inter-exchange was to be constructed very close to the pond it is likely to have a safety hazard, hence the alignment was required to be changed. In furtherance thereof, a communication was issued to BIAL and KSIIDC about change of trumpet interchange and the extent of land required in the said Sy.Nos.

Incidentally, it is to be noticed that the said observation is made while considering as to the location of International Airport. In fact, regarding the location of setting up of an Airport, the Court cannot grant any relief. To know in what manner the reallocation of trumpet inter-change would jeopardise the interest of the petitioners, objections have invited, considered and rejected after due notice to the petitioners and after giving a personal hearing. It is not open for the petitioners now to contend that re-location of the trumpet inter-change from existing to the proposed land is liable to be interfered cannot be accepted.

In so far an the alleged malafides and colorable exercise of power are concerned, a perusal of the pleadings do not disclose that any specific averment is made regarding malafides. The Apex Court in the case of Union of India (UOI) and Others Vs. Ashok Kumar and Others, , dealing with the scope of malafides has observed thus:

The burden of establishing malafides is very heavy on the person who alleges it. He who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. White the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on dear proof thereof, it is obviously difficult to establish the state of a man''s mind, for that is what the employee has to establish in this case, though this may sometimes be done.

The allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Malafides is the last refuge of a losing litigant. The courts would be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly when the Imputations are grave and they are made against the holder of an office which has a high responsibility in the administration.

In the absence of a specific allegation regarding malafides, the Courts cannot interfere with the acquisition proceedings stating that it is accentuated by malafides. Indeed it is to be noticed that the change of trumpet inter-change was in existence even as on 11.05.2005, copy of the change of plan is produced at Annexure ''R8'' along with the statement of objections, Annexure ''R8'' has come into existence even before the petitioner purchased the land in the year 2005. Hence, it cannot be said that it is accentuated by malafides. The fact that the land is sought to be acquired for the purpose of trumpet interchange which is in furtherance of the construction of an International Airport at Devanahalli which was once again the subject matter in the case of H.N. Nanjegowda, I am of the view that the acquisition proceedings cannot be faulted on the ground of not affording an opportunity or that the change of trumpet inter-change is accentuated by malafides. It is also to be noticed that the Apex Court in the case of Ahuja Industries limited reported in Ahuja Industries Ltd. Vs. State of Karnataka and Others, has ruled that the simultaneous notifications u/s 28(3) and 28(4) is also permissible. Having regard to the nature of public interest, I am of the view that the acquisition proceedings on these two grounds cannot be faulted. Consequently, I do not find any merit in this petition.

Petition stands rejected.

All pending applications stand disposed of as having become unnecessary.