Karnataka High Court
Roy Rodrigues vs The Government Of Karnataka on 8 January, 2021
Author: Alok Aradhe Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
W.A. NO.159 OF 2010 (LA-KIADB)
IN
W.P. NO.4537 OF 2009 (LA-KIADB)
BETWEEN:
ROY RODRIGUES
REP. BY HIS POWER OF ATTORNEY
HOLDER RAMESH V SHETTY
S/O VITTAL SHETTY
AGED 33 YEARS
R/AT 2694, 18TH MAIN
4TH CROSS, HAL II STAGE
INDIRANAGAR,BANGALORE.
... APPELLANT
(BY MR. H.N.M. PRASAD, ADV.)
AND:
1. THE GOVERNMENT OF KARNATAKA
REP. BY ITS SECRETARY
REVENUE DEPARTMENT
VIDHANA SOUDHA
BANGALORE-560001.
2. KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD
REP. BY ITS SECRETARY
NO.14/3, II FLOOR, R.P. BUILDING
NRUPATHUNGA ROAD
2
BANGALORE-560001.
3. M/S CAUVERY MOTORS PVT LTD.,
S.NO.13, 11TH KM
KANAKAPURA ROAD
BANGALORE
REP. BY ITS DIRECTOR.
4. M/S. ADVAITH MOTORS
NO.12, MISSION ROAD
SHAMA RAO COMPOUND
BANGALORE REP.
BY ITS DIRECTOR.
... RESPONDENTS
(BY MR. JEEVAN J. NEERALGI, AGA FOR R1
MR. D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR
MR. P.V. CHANDRASHEKAR, ADV., FOR R2
MRS. S.R. ANURADHA, ADV., FOR R3 & R4)
---
THIS W.A. IS FILED UNDER SECTION 4 OF KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER PASSED IN
THE WRIT PETITION NO.4537/2009 (LA-KIADB) DATED
01.07.2009.
THIS W.A. COMING ON FOR ORDERS, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
In this intra court appeal under Section 4 of the
Karnataka High Court Act, 1961 the appellant has
assailed the validity of the order dated 01.07.2009
passed by the learned Single Judge by which challenges
were made to the Notification dated 25.11.2005 as well
as the subsequent allotment of the sites made in favour
of respondent Nos.3 & 4 has been repelled by learned
Single Judge and the writ petition preferred by the
appellant has been dismissed. In order to appreciate the
appellant's challenge to the impugned order, relevant
facts need mention which are stated hereinafter.
2. The appellant purchased 2 acres and 23 guntas
of land of Survey No.225 situate at Banandur Village,
Bidadi Hobli, Ramanagara Taluk, by registered sale deed
dated 16.10.1995. The land of the appellant measuring
2 acres and 23 guntas as well as 1,884 acres of land
was required for formation of industrial layout.
Thereupon a preliminary notification under section 28(1)
of the Karnataka Industrial Areas Development Act,
1966 (hereinafter referred to as 'the Act' for short) was
issued on 15.04.1997, by which the land of appellant as
well as the land measuring 1,884 acres was sought to be
acquired for formation of industrial layout. Thereafter,
the aforesaid Notification was published in daily
"Prajavani" dated 30.04.1997, by which objections were
invited in respect of acquisition of land in question. The
appellant did not prefer any objection in response to the
aforesaid Notification. On 19.05.1997, notice of personal
hearing was sent to the appellant under certificate of
posting and thereafter, another notice was sent on
09.06.1997 under certificate of posting to the appellant.
All the aforesaid notices were in respect of land
measuring 2 acres and 23 guntas and were not received
back by the Karnataka Industrial Area Development
Board (hereinafter referred to as 'the Board' for short).
3. A declaration under section 28(4) of the Act
was issued on 03.04.1998, by which only 21 guntas was
sought to be acquired. Thereafter, on 04.04.1998 the
Board acquired 21 guntas of land and on 15.05.1998 the
appellant handed over the possession of 21 guntas of
land. The appellant thereafter, submitted a
representation on 23.12.1999, in which inter alia it was
stated that though in the Notification issued under
Section 28(1) of the Act on 31.01.1998, land measuring
2 acres and 23 guntas was mentioned but declaration
under Section 28(4) of the Act has been issued only in
respect of land measuring 21 guntas. It was further
stated that either suitable orders be passed to release
the land or action should be taken to make immediate
arrangement for payment of compensation. The State
Government thereafter, issued a declaration on
25.11.2005 in respect of the land measuring 219 acres
and 11 guntas, which included the land of the appellant
measuring 2 acres and 2 guntas. The lands of the
appellant were allotted to respondent No.4 and
respondent No.3 respectively on 19.03.2008 and
28.03.2008 for setting up of an industry. The appellant
thereafter, filed a writ petition on or about 18.02.2009,
in which a writ of certiorari was sought seeking
quashment of declaration issued under Section 28(4) of
the Act. The appellant also sought a writ of mandamus
directing the Board to revoke the orders of allotment of
sites in favour of respondent Nos.3 & 4 and to de-notify
land measuring 2 acres and 2 guntas. The aforesaid
writ petition was dismissed by learned Single Judge vide
order dated 01.07.2009. In the aforesaid factual
background, this appeal has been filed.
4. Learned counsel for the appellant submitted
that after a long period of 8 years, declaration under
Section 28(4) of the Act was issued and remaining 2
acres and 2 guntas of the land was acquired in
pursuance of earlier Notification dated 15.04.1997
issued under Section 28(1) of the Act. It is further
submitted that issuance of Notification beyond a period
of 2 years is not permissible in law. It is pointed out that
award has been passed during the pendency of the
appeal on 31.07.2015 and compensation has been
deposited on 17.07.2017 before the I Additional District
and Sessions Judge, Ramanagara and the market value
of the land has been fixed at Rs.82,920/- per acre
contrary to the decision of the board itself. It is also
submitted that notice under Section 28(6) of the Act
was not personally served on the appellant but the same
was pasted on the land in question. It is pointed out that
in the communication dated 23.12.1999, the request to
release the land has been misread as consent of
acquisition for entire land by the learned Single Judge. It
is further submitted that the appellant could not have
granted consent for acquisition of entire land in the year
1999 as the Notification under Section 28(4) of the Act
was issued subsequently on 25.11.2005. It is submitted
that entire subsequent proceeding initiated for
acquisition of land measuring 2 acres and 2 guntas
suffers from inordinate and unexplained delay and
laches. In support of the aforesaid submissions, reliance
has been placed on judgments of this court in H.N.
SHIVANNA AND OTHERS V. STATE OF KARNATAKA
AND ANOTHER PASSED IN W.A. NO. 3189-3201 OF
2010 DATED 28.11.2012, THE KARNATAKA
INDUSTRIAL AREA DEVELOPMENT BOARD AND
OTHERS V. THE STATE OF KARNATAKA AND
OTHERS IN W.A. NO. 100219/2018 DATED
05.12.2018 AND IN H.G. KULKARNI AND OTHERS
V. THE ASSISTANT COMMISSIONER, BELGAUM SUB
DIVISION, BELGAUM AND OTHERS IN W.P. NO.
590 OF 1973 DATED 16.01.1976.
5. On the other hand, learned Senior Counsel
for respondent No.2 submitted that Section 11A of the
Land Acquisition Act, 1984 cannot be read into the
provisions of the Act. It is pointed out that, from the
representation dated 23.12.1999, it is evident that the
appellant himself has sought compensation in respect of
entire land and therefore, it is not open for him to
challenge the land acquisition proceeding. It is also
submitted that after the allotments have been made in
favour of respondent No.3 & 4 on 28.03.2008 and
19.03.2008 respectively, the writ petition has been filed
on or about 18.12.2009, which suffers from delay and
laches. It is submitted that Notification dated
25.11.2005 was issued in respect of 219 acres and 11
guntas of land including the land of the appellant
measuring 2 acres and 2 guntas for formation of
industrial layout. It is also pointed out that acquisition of
the area for formation of industrial layout takes time and
is taken up at different stages depending upon the
developmental activities and its completion. It is also
urged that successive notifications at different stages
will not cause any prejudice to the landowners like the
appellant as they continue to be in possession of the
land in question. It is further submitted that there is no
bar in law in issuing the successive notification and no
time limit can be prescribed. It is further submitted that
if the appellant is aggrieved with regard to the quantum
of compensation, he is free to avail of such remedy as
may be available to him in law. It is further submitted
that the decision rendered in Shivanna's case (supra)
does not lay down good law, in view of decisions of
Supreme Court in 'SAWARANLATA AND OTHERS V.
STATE OF HARYANA AND OTHERS', (2010) 4 SCC
532 and 'M. NAGHABHUSHANA V. STATE OF
KARNATAKA', (2011) 3 SCC 408. In support of
aforesaid submissions, reliance has been placed on the
decisions in 'OFFSHORE HOLDINGS PRIVATE
LIMITED V. BDA & OTHERS', (2011) 3 SCC 139,
'SPECIAL LAO, KIADB MYSORE AND ANOTHER V.
ANUSUYA BAI BY LRS. AND OTHERS', (2017) 3 SCC
313, 'BDA AND ANOTHER V. STATE OF KARNATAKA
AND OTHERS', (2018) 9 SCC 122, 'P.
NARAYANAPPA & ANOTHER V. STATE OF
KARNATAKA & OTHERS', (2006) 7 SCC 578, 'V.T.
KRISHNAMURTY V. STATE OF KARNATAKA AND
OTHERS', ILR 1991 KAR 1183 (DB),
'MUNINANJAPPA & OTHERS V. STATE AND
OTHERS', ORDER DATED 20-11-2012 IN W.A.
3135-37/2010 AND SAKAMMA V. STATE OF
KARNATAKA, ORDER DATED 12/15-06-1998 IN
W.P. NO. 32881-882/1996.
while adopting the submissions made on behalf of
learned Senior Counsel for respondent No.2, submitted
that respondents No.3 & 4 have already been allotted
the land on 28.03.2008 and 19.03.2008 respectively
and possession has been handed over to them, pursuant
to which they have made considerable investment and
have raised the superstructure and have commenced
their industries. It is also pointed out that the writ
petition has been filed after the possession of the land
was handed over to respondents No.3 & 4 and the same
therefore suffers from delay and laches and no
interference is called for at this stage, especially after
respondents 3 & 4 have made huge investments and
have commenced their industries.
7. We have considered the submissions made
on both sides and have perused the record. It is not in
dispute before us that it is permissible to issue
successive declarations under Section 28(4) of the Act.
In 'RAM CHAND AND OTHERS V. UNION OF INDIA
AND OTHERS', (1994) 1 SCC 44, the Supreme Court
was dealing with situations prevalent prior to
amendment of the Land Acquisition Act, 1894 by Land
Acquisition Act Amendment in 1984. In the foresaid
case, the Notification under Section 4(1) of the Act and
declarations under Section 6(1) of the Act were issued
on 23.01.1959, 24.10.1961 and 16.05.1966 and
13.01.1969 respectively. However, the awards were not
passed: The Supreme Court held that in view of decision
in 'AFLATOON V LT. GOVERNOR OF DELHI', (1975)
4 SCC 285, there was no justification for not passing
the award and by placing reliance on the aforesaid
decision, it was held that two years period would be a
reasonable time for making an award, as for when the
statute does not prescribe a time limit for performing an
Act, the same has to be performed within reasonable
time. However, a division bench of this court in H.N.
SHIVANNA's case supra, held that issuance of successive
declarations are permissible and by placing reliance on
decision of Supreme Court in Ram Chand and others
supra, held that 2 years time would be a reasonable
time for issuance of declaration under Section 28(4) of
the Act. However it is pertinent to note that the division
bench in SHIVANNA's case also held that provisions of
the Land Acquisition Act, 1894 cannot be read into the
Act and though no time limit is prescribed under the Act,
the acquisition is to be completed within a reasonable
time, say within 2 years, and still what is the reasonable
time has to be decided in the facts of particular case.
Thus, H.N. SHIVANNA's case is not an authority for the
proposition that declaration under Section 28(4) cannot
be issued beyond a period of 2 years. The Supreme
Court in M.NAGABHUSHANA's case supra negatived the
contention that since, the award was not passed within a
period of 2 years from the date of declaration under
Section 28(4) of the Act, the acquisition would not stand
vitiated in view of the fact that Section 11(A) of the
Land Acquisition Act, 1894 are not applicable to
proceedings under the Act. However, it is well settled
legal proposition that where a statute does not provide
for time limit for doing an Act, such an Act has to be
done within a reasonable time, and what would be
reasonable time has to be decided in the facts and
circumstances of the Act. [See: 'MEHER RUSI DALAL V
UNION OF INDIA', (2004) 7 SCC 362, 'P.K.
SREEKANTAN V P. SREEKUMARAN NAIR', (2006)
13 SCC 574 AND 'K.B NAGUR V UNION OF INDIA',
(2012) 4 SCC 483]. Therefore, in the facts of the case,
we have to ascertain whether the Notification under
Section 28(4) of the Act has been issued within
reasonable time and to deal with the issue with regard
to delay and laches in filing the writ petition, in the light
of submission made by learned senior counsel for
respondent no. 2.
8. The Act has been enacted to make special
provision for securing the establishment of industrial
areas in the State of Karnataka and generally to
promote the establishment and orderly development of
industries therein, and for that purpose to establish an
Industrial Areas Development Board and for purposes
connected with the matters aforesaid. The division
benches of this court in case of 'B.K. NANJUNDAIAH
AND OTHERS V. THE B.D.A., BANGALORE AND
ANOTHER', AIR 1988 KARNATAKA 227 and in 'SMT.
SAKAMMA V. STATE OF KARNATAKA'
W.P.NO.32881/1996 DATED 12/15TH JUNE 1998,
have held that successive declarations can be issued
under Section 28(4) of the Act. It has further been held
that the board has to function for promotion and
assistance in the rapid and orderly establishment,
growth and development of industries in the industrial
areas. It has also been held that the development of a
planned industrial area and establishment, maintenance
and development and management of industrial estate
is a long drawn and continuous process. No time limit
can be prescribed. It is also material to see that where
large extent of lands are proposed for acquisition under
the Notification issued under sub-section (1) of Section
28 of the Act, it may not be possible for the authorities
to complete the acquisition at a single stroke in view of
sub-Section (2) and sub-Section (3) of the Act, which
mandates the notice to the owner or the occupier and to
all such persons known or believed to be interested
therein and to provide them an opportunity of being
heard in respect of their objections and to make orders
in respect of such objections. It may not be out of place
to mention that there may be some attempts to evade
service of notice to protract the proceedings. In those
circumstances, if the authorities postponed to make the
declaration the development of the industry would
suffer. It may also be pertinent to note that to hear
large number of land owners with variety of objections,
the State Government may require longer period of time
and it may take further time to pass orders in individual
cases. Therefore, it would become necessary for the
State Government to make different orders followed by
different declarations.
9. Now we may advert to the facts of the case.
A preliminary notification was issued on 15.04.1997 in
respect of acquisition of land measuring 1,884 acres of
land for acquisition of the board, which included the land
held by the appellant measuring 2 acres and 23 guntas.
The declaration was issued on 04.04.1998 in respect of
21 guntas of the land of the appellant including the
other properties. The appellant submitted a
representation on 23.12.1999, which reads as under:
"Sub: - Payment of
Compensation/preliminary notification 28(1)
reg. land S.No. 225, Banandur Village, Bidadi
Hobli, Ramanagaram Taluk.
Extent: 225-2A 23G.
No. LAQ 938-97/98 dated 31.01.1998.
Above land is been preliminary notified
under section 28(1) on 31.01.1998.
However so far final notification is not
been issued neither any development work is
been issued by KIADB. We are not able to use
our land for other purposes, where has could
come revenue on these funds are notified
above 28(1), as have been put to heavy loss
due to delay in setting this matter. So we
request you to pass orders to release above
land to us at the earliest of else make
immediate arrangement to pay compensation".
Thus from the perusal of aforesaid Notification, it is
evident that appellant himself on 23.12.1999 had sought
either release of land or payment of compensation. In
other words, he had no objection to acquisition of land
measuring 2 acres and 23 guntas.
10. It is also pertinent to note that appellant did
not file any objection to the Notification published under
Section 28(1) of the Act dated 30.04.1997. Thereafter,
notices dated 19.05.1997 and 09.06.1997 were also
sent to the appellant, which failed to evoke any
response from him. Thereafter, declaration under
Section 28(4) of the Act, was issued by which only 21
guntas of land was notified for acquisition. The
formation of industrial layout is a comprehensive
scheme and acquisition of area covered by such scheme
can take place at different stages from time to time
depending on the developmental activities and its
completion. In the instant case, at the first instance,
1,100 acres of land was acquired. It can safely by
inferred that development and allotment of 1,100 acres
of land would take considerable time. Thereafter, in
second phase land measuring 219 acres and 11 guntas
was acquired. Admittedly, it is open for the State
Government to issue successive declarations under
Section 28(4) of the Act. By a subsequent declaration
dated 25.11.2005, declaration was issued in respect of
total land admeasuring 219 acres and 11 guntas, which
included the property of the appellant. The development
of the industrial area was been taken up in phased
manner. Therefore, it cannot be said that there was any
delay in issuance of second declaration dated
25.11.2005 in the facts of the case and the same has
been issued within reasonable time.
11. Now we may deal with the issue of delay and
laches in filing the writ petition. The appellant was fully
aware of the acquisition proceedings. It is pertinent to
note that the land of the appellant of survey Nos.190 &
193 was also acquired and in respect of land bearing
survey No.193 declaration was issued on 11.03.2002.
However, the appellant has not challenged the
acquisition of the aforesaid lands. The appellant has also
not responded to personal notices sent to him on
19.05.1997 and 09.06.1997. The declaration was issued
on 25.11.2005 and thereafter, the plots were allotted to
respondents No.3 & 4 respectively on 28.03.2008 and
19.03.2008. The respondents No.3 & 4 have already
constructed industrial sheds by investing huge money on
the land allotted to them and have set up their
industries, which is evident from the photographs
annexed with the objection statements of respondents
No.3 & 4. However, after a period of approximately
more than three and a half years, the appellant
approached this court by filing the writ petition. The writ
petition preferred by the appellant therefore, suffers
from unexplained delay and laches on this ground also
the appellant is not entitled for any relief.
12. For yet another reason, the writ petition
cannot be entertained as the appellant himself in the
representation dated 23.12.1999 submitted that either
the land be acquired or payment of compensation be
made to him. Therefore, now the appellant cannot be
permitted to make any grievance with regard to
acquisition of land in question. So far as grievance of the
appellant that notice under Section 28(6) of the Act was
not served on him personally but was pasted on the land
is concerned, suffice it to say that even if the same is
accepted, it does invalidate the proceeding under the
Act.
In view of preceding analysis, we do not find any
ground to differ with the view taken by the learned
Single Judge. In the result, we do not any merit in the
appeal. However, the same is disposed of with the
liberty to the appellant to take recourse to seek remedy
of enhancement of the compensation if so advised in
accordance with law. With the aforesaid liberty the
appeal is disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
SS
