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Judgment
Ashok B. Hinchigeri, J.—The Petitioners have called into question the preliminary notifications, dated 29.11.2004 and 2.07.2006 and the final notifications (declarations), dated 20.04.2005 and 31.01.2007 issued under Sections 28(1) and 28(4) respectively of the Karnataka Industrial Area Development Act, 1966 (''KIAD Act for short) in so far as the notifications pertain to their lands. The lands are acquired for the purpose of establishment of Harohalli and Medamaranahalli Industrial Area.
Sri Dwarakanath, the learned Counsel for the Petitioners in W.P. Nos. 3064/2008, 14265/2008, 17411/2008, 17412/2008 and 13263/2009 submits that the residential buildings are erected and the trees are grown on the Petitioners'' lands. They are basically garden lands. He brings to my notice the joint measurement survey which shows that there are teak, silver oak, and coconut trees, fence, well, etc., On the ground of the existence of trees and houses on the similarly placed lands covered by the same impugned notifications, some lands are deleted from the acquisition proceedings in the order passed by the Special Land Acquisition Officer u/s 28(3) of the Act, so asserts the Petitioners'' learned Counsel.
He has relied on this Court''s decision in the case of Smt. Hanumakka v. State of Karnataka and Ors. in W.P. No. 14371/2006 and connected petitions. He read out paras 13 and 14 of the said order. The said paragraphs are extracted hereinbelow:
The judgment in N. SOMASHEKAR''s case (supra) relied upon by Sri Vijayshankar, does not come to the rescue of the Respondents in any way. In the said judgment this Court has held that when the Court finds that a fair and proper consideration of the objections raised may have changed the course of events, the Court may view non-consideration with concern. In the instant case, non-consideration of the objections that the lands are irrigated and there are large number of fully grown trees on the lands, has put the Petitioners to prejudice. Although there is no legal impediment for acquiring a wet or the irrigated land for the public purpose or for the purpose of the industrial development, if in the past the Respondent No. 2 has dropped the acquisition proceedings on the ground of a particular land being the garden land, the land in question also has to be considered from being dropped from the acquisition proceedings.
As is evident from the order, dated 23rd November, 2007 the Land measuring 3 acres 12 guntas in survey No. 61/2 belonging to another party is deleted from the acquisition proceedings on the ground that the said land is a garden land. When the Respondent No. 2 has formed the considered view, that too in respect of the acquisition of lands arising from the same notification, that if a land is agarden land it has to be deleted from the acquisition proceedings, the same reasoning should be extended to the Petitioners case also. Otherwise it creates a situation of hostile discrimination. The State, in exercise of its eminent domain, cannot pick and choose the land for compulsory acquisition. Similarly placed land-owners cannot be treated dissimilarly, as it offends Article 14 to the Constitution of India.
The next contention raised by Sri Dwarakanath is that the Karnataka Industrial Area Development Board (KIADB for short) is behaving like a real estate agent. It is making money by acquiring and giving the lands to some agencies, which in turn, would allot the industrial plots to others. He read out Clauses 5.2(iii) of the agreement entered into between KIADB and M/s. Karnataka State Printers Association, which reads as follows:
5.2(iii) The allotable land shall be allotted to the lessee s members for establishing industries pertaining to printing technology or allied purposes by a committee constituted comprising of the following functionaries:
(a) The President, Karnataka State Printers Association �- Chairman.
(b) The Chairman, Print-Tech Park, a committee constituted by Karnataka State Printers Association �.
(c) One officer nominated by the Karnataka Udyoga Mitra, Bangalore.
(d) One Officer nominated by the Chief Executive Officer and Executive Member of the Karnataka Industrial Areas Development Board.
Explanation: "Allotable Land" means the plots of land of various sizes developed by the lessee in the Schedule Property for the purpose of allotment in favour of its members for establishing industries pertaining to printing technology and other allied industries, excluding the land utilized for road, drainages and other infrastructural facilities and amenities.
It is the submission of Sri Dwarakanath that the power of allotting the industrial plots cannot be delegated by KIADB to any other agency.
He also read out clause Nos. 2 and 6 of the circular, dated 03.03.2007 which contains the embargo against the inclusion of those lands, on which the temples, graveyards, schools, playgrounds, residential buildings are existing, in the preliminary notification. Clause 6 of the said circular contains the prohibition against the acquisition of lands, if they are fertile lands growing two crops or if they are wet lands.
Sri N.R. Naik, the learned Counsel for the Petitioners in W.P. No. 260/2010 submits that the Petitioners in the said case are the joint owners of the land at Sy. Nos. 529/P1 and 739/1 of Harohalli Village. His grievance is that the lands adjacent to the Petitioners'' lands belonging to the influential persons like Tahsildar, Conductors, etc., are either not included in the acquisition proceedings or if included, they are dropped from the acquisition proceedings.
Sri Revanasiddappa, the learned Counsel for the Petitioners in W.P. Nos. 8236-8237/2010, 14043/2010 and 14044/2010 adopts the submissions of Sri Dwarakanath.
Sri Madhusudan R. Naik, the learned Senior Counsel appearing for Shriyuths Ashok N. Nayak, Basavaraj v. Sabarad, Praveen G Adagaiti, R. Shivachandra Naik and Praveen Kumar Raikote, appearing for the KIADB and its Land Acquisition Officer has raised the threshold objection to the maintainability of these petitions. He points out that in W.P. Nos. 260/2010. 8236-8237/2010. 14043/2010 and 14044/2010 there is a delay of about four years in approaching this Court. In other connected petitions, there is a delay of 1 to 2 years. On the short ground of delay and laches only, these petitions are liable to be rejected, so submits the Senior Counsel.
The learned Senior Counsel submits that the objections filed are duly considered. There is full application of mind. As there is due application of mind, there is little scope for interfering with the acquisition proceedings. He points out that in W.P. No. 14265/2008, the only objection raised by the Petitioners is that the commercial crops are being grown on a developed land. This objection is met by the Special Land Acquisition Officer by stating that the appropriate monetary compensation can be sought He submits that the compulsory acquisition cannot be resisted on the ground of the deprivation of the source of livelihood. In this regard, he relies on the Apex Court''s judgment in the case of Chameli Singh and others etc. Vs. State of U.P. and another, .
He submits that the circular relied upon by Sri Dwarakanath does not come to the rescue of the Petitioners in any way, because the said circular is issued subsequent to the conclusion of the acquisition proceedings in these cases; the circular can have only prospective application.
The learned Senior Counsel Sri Naik submits that out of about 748 acres for which the preliminary notification is issued, only 6 acres 9 guntas are deleted from the acquisition proceedings. They are the lands measuring 1 acre 6 guntas at Sy. No. 731 of Harohalli Village, 1 acre at Sy. No. 160 of Hulugondanahalli Village, 10 guntas at Sy. No. 235 of Hulugondanahalli Village and 25 guntas at Sy. No. 63/lA, 24 guntas at Sy. No. 63/1B, 2 acres and 2 guntas at Sy. No. 63/2, 22 guntas at Sy. No. 64/5 of Medamarenahalli Village. He submits that the land''s dropped from the acquisition proceedings are lying on the periphery of the industrial area. While dropping the minimal extent of land from the acquisition proceedings, what has weighed with the decision-maker is the compactness of the industrial area, so contends the learned Senior Counsel.
The learned Senior Counsel submits that the arguments have been advanced without, there being any foundation for the same in the pleadings. He has relied on this Court''s decision in the case of Smt. Ashwathamma v. Secretary to Government and Ors. in W.P. No. 7791/2007 disposed of on 20.09 2007, wherein it is held that once the objections are considered, the question of this Court interfering with the acquisition proceedings would not arise.
Sri Naik submits that the possession of the lands is already taken over from the Petitioners by the Special Land Acquisition Officer, who in turn has placed the lands at the disposal of the KIADB. The KIADB has allotted them to the applicants for establishing the industrial projects.
Sri Basavaraj V. Sabarad, the learned Counsel for the KIADB and the Special Land Acquisition Officer submits that the Petitioner in W.P. No. 3064/2008 has not filed any specific objections. The Petitioner has only requested that the lands be deleted from the acquisition proceedings without specifying the reason for which the lands are to be deleted from the acquisition proceedings.
In the course of rejoinder, Sri Dwarakath seriously disputes the possession aspect of the matter and asserts that the Petitioners are still in possession of the lands in question.
No specific arguments are addressed on the Misc.W.4704/10 for amendment in W.P. No. 3064/08, though the joint measurement certificate annexed thereto was brought to my notice. Misc. W. 4704/10 is dismissed as not pressed Misc.W.8168/11 for vacating the stay in W.P. No. 260/10 is dismissed as having become unnecessary as the main matter itself is being disposed off.
The submissions of the learned advocates have received my thoughtful consideration. The allegation that the KIADB is behaving as if it is a real estate agent, though serious, is unsubstantiated. The allegation when it remains unsubstantiated and unsupported by the documents, do not lead the Petitioners anywhere.
The manner of allotment of the industrial plots is a post-acquisition development. It is trite position in law that the landowners cannot demand that they be informed of how every bit of the land being acquired is going to be utilised. It would not be proper to insist upon the Government to particularise the use to which each and every bit of the land so notified would be put to. In taking this view, I am fortified by the Hon''ble Supreme Court''s judgment in the case of State of Tamil Nadu v. L. Krishnar, (1996) 1 SCC 250 . If the manner of allotment is challenged either by the unsuccessful applicants for allotment or by the Petitioners or some other parties in public interest, the issue can be examined and the findings be delivered thereon. When the challenge is to the acquisition per se, I do not propose to drift into the issue of allotment.
I am also not impressed of the argument raised on behalf of the Petitioners that the acquisition is resorted to in violation of the circular dated 03.03.2007 because the preliminary notifications dated 29.11.2004 and 02.07.2006 are earlier in point of time to the circular dated 03.03.2007.
I am also not inclined to throw out these petitions on threshold objection of delay and laches. Because no material is paced before this Court to show that the Respondents or anybody claiming under them have developed the lands in question. On the other hand, there is serious dispute as to whether the possession of the lands in question is with the Petitioners or with the Respondents or with the persons claiming under the Respondents.
The only questions that fall for my consideration are:
(i) Whether the order passed by the Special Land Acquisition Officer u/s 28(3) of the KIADB Act is indicative of the consideration of objections and of the hearing thereon?
(ii) Whether the Special Land Acquisition Officer is justified in rejecting the Petitioners objections and accepting the similar objections in the cases of some others?
To answer these questions, it is necessary to note the objections raised by the Petitioners. The information can be culled out in the tabular form as follows:
SI, No. W.P. No. Survey No. Extent Objections taken
260/ 2010 529/P1739/1 of Harohalli Village 2 acres 2 acres No objections filedPaddy, banana and vegetables are being grown on the land. 30 coconut trees, 50 silver oak trees, teak
wood trees, 2 mango
trees, 2 jackfruit
trees, 1 orange tree,
2 pomegranate trees.
bettlenut plantation,
borewell, 6 squares
R.C.C. house, etc.,
are existing on the
land in question.
The acquisition
would affect the
source of livelihood, |
etc.,
3064/ 142 of 1 acre No specific reasons
2008 Medamar 10 are stated for
anahalli guntas demanding the
Village
withdrawal of lands
from the acquisition
proceedings. A
general request is
: made for the
: dropping of the
lands from the
acquisition
proceedings.
14265 113 2 A 39 G Lands are developed
2008 114 1 A4 G and commercial
117 of 4 A crops are being
Medamar
grown.
anahalli
I Village
17411 71/19 2 acres Solitary source of
/2008 of
livelihood for the
Medamar
family. Commercial
anahalli
crops are being
Village
grown.
17412 116 of 3 acres Developed the land
1 /2008 Medamar 23 out of the amounts
anahalli guntas received by way of
Village
compensation for the
acquisition of the
Petitioner''s other
lands. Solitary
source of livelihood
for the family.
13263 71/29 1 acre Coconut, sapota and
/2009 of 23 mango trees are
Medamar guntas grown. Developed
anahalli
the lands with the
Village
amount received by
way of compensation
for the acquisition of
the other lands
Solitary source of
livelihood.
8236- 521 3A 35 G Properties are the
8237/ 530/1 11 guntas subject matter of
2010 739/1 8 acres litigation. Solitary
of
source of livelihood.
Harobalii
Village
14043 525 of 5 acres -do-
/2010 Haroliaili 7 guntas
Village
14044 529 of 2 acres -do-
72010 Harohirilli
Village
This is the factual matrix of the case, which is required to be examined in the light of the applicable statutory provisions and the precedents. On the issuance of the preliminary notification u/s 28(1) and the service of the show cause notice on the owner/occupant of the land, the Government has to give an opportunity of hearing to the objector, consider the cause shown by him and thereafter pass the appropriate orders. Section 28(3) of the KIAD Act. 1966 reads as follows:
(3) After considering the cause, if any, shown by the owner of the land and by any other person interested therein, and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit.
Section 28(3) of the KIAD Act corresponds, to a great extent, to Section 5-A of the Land Acquisition Act. Receiving the objections, considering it and hearing the objector are not mere formalities. In the case of Farid Ahmed Abdul Samad and Anr. v. The Municipal Corporation of the City of Ahmedabad and Anr. reported in AIR 1976 SC 2095, it is held that heart of Section 5-A of the Land Acquisition Act is the hearing of the objections. In the decision-making process, the State must not commit any misdirection in law. The Apex Court in the case of Hindustan Petroleum Corporation Ltd., v. Darius Shapur Chenai and Ors. reported in (2005) 7 SCO 627 has held that if there has been total non-compliance or substantiarnon-compliance with the provisions of Section 5-A of the Land Acquisition Act, the Court cannot fold Its hands and refuse to grant a relief to the writ Petitioner.
The Apex Court has reiterated its considered view, in the case of Devinder Singh and Ors. v. State of Punjab and Ors. reported in (2008) 1 SCC 728, that if it is shown that the Government has ignored the mandatory provisions of the Land Acquisition Act, the acquisition would have to be struck down.
Keeping in view the imperative need to conform to and comply with the requirements of the expropriatory legislation, what the words considering the cause, as used in Section 28(3) of KIAD Act would imply has to be examined. The word ''considered'' postulates that the authority concerned has thought over the matter deliberately with care and it has been found necessary, as a result of such thinking, to pass the order. The Apex Court, in the case of The Barium Chemicals Ltd. and Another Vs. Sh. A.J. Rana and Others, has this to say in paras 15 of its judgment:
The words ''considers it necessary'' postulate that the authority concerned has thought over the mater deliberately and with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word ''consider'' is to view attentively, to survey, examine, inspect (arch), to look attentively, to contemplate mentally, to think over, meditate on, give heed to, take note of, to think deliberately, bethink oneself, to reflect'' (vide Shorter Oxford Dictionary). Accordingly to Words and Phrases - Permanent Edn: Vol. 8-A to ''consider'' means to think with care. It is also mentioned that to ''consider'' is to fix the mind upon with a view to careful examination; to ponder; study; meditate upon, think or reflect with care. 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 beheld to be non-existent
The Special Land Acquisition Officer cannot be and shall not be content with stating that the ''objections are considered and rejected'' or ''objections are considered and accepted''. The consideration has to be serious and meaningful in the letter and spirit of the judgment passed by the Hon''ble Supreme Court in the case of The Barium Chemicals Ltd.,(supra). The valuable rights of the parties u/s 28(3) of the KIADB Act cannot be steam-rolled on the ipse dixit of the Special land Acquisition Officer.
In the case of K.S. Chandrashekhar and others Vs. The Special Land Acquisition Officer, Bangalore and others, , the Division Bench of this Court has taken the considered view that the objections cannot be disposed of as technical; for over-ruling the objections reasons are to be given.
In the case of Sube Singh and Others Vs. State of Haryana and Others, , the Government bad excluded some lands, having the structures, from the acquisition proceedings. While the properties having constructions thereon of some landowners were excluded from the acquisition, the lands of others were not excluded from the acquisition on the ground that the constructions thereon were of ''B'' or ''C Class, whereas the constructions on the excluded lands were of ''A'' Class. The Apex Court held that classification of the existing constructions into ''A'', ''B'' and ''C'' Classes, was not rational; such classification was held to be arbitrary, discriminatory and violative of Article 14 of the Constitution.
I have carefully examined the map of the industrial area in question. The land at Sy. No. 160 of Hulugondanahalli Village, measuring 1 acre is not on the periphery of the industrial area. It is in the middle of the industrial area. That is why Section 28(3) order does not say that the said land is on the periphery of the industrial area. As is discernable from the Special land Acquisition Officer''s order passed u/s 28(3) of the KIAD Act, the said lands are deleted because of the erection of the residential building thereon. The land measuring 1 acre 6 guntas at Sy. No. 731 of Harohalli Village is deleted from the acquisition proceedings because coconut, sapota and other horticulture crops are being grown thereon and the existence of the farm-house therein. Similarly, 10 guntas standing at Sy. No. 235 of Hulagondanahalli village is also withdrawn from the acquisition proceedings as the residential buildings are constructed on them. The lands measuring 25 acres at Sy. No. 63/ 1A, 24 acres at Sy. No. 63/lB, 2 acres 2 guntas at Sy. No. 63/2 and 22 guntas at Sy. No. 64/5 of Medamaranahalli are also left out of the acquisition proceedings because of the adjacent poultry farm, shed, room for the security personnel and office building. It means that if other lands also contain the same marktes and the specific objection in that regard is taken, they are also to be deleted from the acquisition proceedings.
32, As the owner of the land at Sy. No. 160 measuring 1 acre and some of the Petitioners have raised the similar objections, the latter cannot be discriminated against. The benefit of exclusion of the land from the acquisition cannot be denied others, when their objections are similar. Arriving at different conclusions based on the same set of facts is reflective of the non-application of the mind, if not of hostile discrimination.
However, it is not that all the petitions are to be allowed by quashing the acquisition proceedings. Only such of the Petitioners who have taken the specific objections akin to the objections taken by the owners of the land at Sy. No. 160 of Hulagonadanahalli, 731 of Harohalli, 235 of Hulagonadanahalli and 63/A, 63/IB, 63/2 and 64/5 of Medamarnahalli, are entitled to have their cases reconsidered.
In W.P. No. 260/2010 no objections whatsoever are filed in respect of the land at Sy. No. 529/Pl measuring 2 acres. Therefore, the acquisition proceedings are not being interfered with in so far as they pertain to the said land. However, the objections are filed in respect of the second item of the land measuring 2 acres at Sy. No. 739/1 of Harohalli Village, which is also the subject matter of the said, writ petition. The objections are similar as the ones in respect of the land at Sy. No. 160 of Hulagondanahalli Village. If the existence of residential building on the land at Sy. No. 160 is a good reason for dropping the acquisition proceedings, it has to be so in respect of the land at Sy. No. 739/1. Similarly, if the existence of the fruit bearing trees on the land at Sy. No. 731 is accepted as the satisfactory reason for dropping the said land from acquisition proceedings, the identical objections of others are also required to be considered. Therefore, in respect of the land at Sy. No. 739/1, the writ Petitioner is entitled to. succeed in part.
In W.P. No. 3064/2008 no specific objections are taken in response to the preliminary notification. As no infirmities in the acquisition proceedings are pointed out, W.P. No. 3064/2008 is dismissed.
In W.P. Nos. 14265/2008, 1741.1/2008 and 17412/2008, the objections are different from the ones filed by the owners of the land at Sy. No. 160 Based on the unspecific objections, no relief can be given to the Petitioners in W.P. Nos 14265/2008, 17411/2008 and 17412/2008. These petitions are dismissed.
The subject matter of; W.P. No. 13263/2009 is the land measuring 1 acre 23 guntas at Sy. No. 71/29 of Medamaranahalli village. The specific objection taken is that the said land is not to be acquired on account of the existence of coconut, sapota and mango trees. It is on one such ground that the land at Sy. No. 731 is dropped from the acquisition proceedings. The same benefit may have to be given to the Petitioner in W.P. No. 13263/2009. The said writ petition is therefore allowed.
In W.P. Nos. 8236-8237/2010, 14043/2010 and 14044/2010, the sum and substance of the objection is that the lands are the subject-matter of litigation. Such an objection is relevant only for the purpose of deciding as to whom the compensation is to be paid. These Petitioners'' objections are distinct from the objections on the basis of which the lands at Sy. No 160, 731, 235, 63/1A. 63/1B, 63/2, 64/5 are deleted. Not finding any merit in the said writ petitions they are dismissed.
Going by the plain language employed in Section 28(3) of KIAD Act, the Special Land Acquisition Officer''s obligation is to consider the objections which are raised. He can not be found fault with, if he has not based his order on the joint measurement survey report.
Answering the questions accordingly, I make it clear that the land acquisition proceedings are to be resumed from 28(3) stage. The preliminary notification issued u/s 28(1) and the show cause notice issued u/s 28(2) of KIAD Act are kept intact. The Petitioners in W.P. Nos. 260/2010 and 13203/2009 are directed to appear before the Special Land Acquisition Officer on 10.10. 2011 without waiting for any notice from him. On considering their objections and on heaving them and taking the precedents in respect of the land at Sy. Nos. 160, 731, 235, 63/1 A, 63/lB 63/2 and 64/5 into consideration, the Special Land Acquisition Officer shall take a fresh decision and pass appropriate orders thereon.
All the parties are directed to maintain status-quo till the conclusion of the reconsideration exercise and the consequent issuance or non-issuance of the declaration.
It is made clear that the Special Land Acquisition Officer may provide for the deletion of only those portions of the notified lands, on which the buildings and fully grown trees are existing, as has been done in the cases of the lands at Sy. Nos. 160, 731, 235. 63/1 A, 63/IB, 63/2 and 64/5.
Accordingly W.P. No. 260/2010 is allowed in part, that is in respect of the land at Sy. No. 739/1 of Harohalli Village. The writ petition is dismissed in respect of the land at Sy. No. 529/P1.W.P. No. 13263/09 is allowed. All other writ petitions (W.P. Nos. 3064/2008, 14265/2008, 17411/2008, 17412/2008, 8236-8237/2010, 14043/2010 and 14044/2010) are dismissed.
No order as to costs.