Nirman Shelters Bangalore Pvt Ltd vs The State Of Karnataka
2022 Latest Caselaw 806 Kant

                            1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF JANUARY, 2022
                        PRESENT
     THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE
                          AND
       THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
            WRIT APPEAL NO.45/2022 (LA-KIADB)

BETWEEN

NIRMAN SHELTERS BANGALORE PVT. LTD.,
NO.112, "SEAA TOWER", 1ST FLOOR
KAVI LAKSHMISHA ROAD
SAJAN RAO CIRCLE, V.V.PURAM
BANGALORE - 560 004

PRESENTLY AT:
NO.45-ANN, NISARGA LAYOUT
NEAR KOPPA GATE
BANNERGHATTA ROAD
BENGALURU - 560 083
REPRESENTED BY ITS
MANAGING DIRECTOR
SRI V.LAKSHMINARAYAN
                                           ..APPELLANT

(BY SRI S M CHANDRASHEKAR, SENIOR ADVOCATE FOR
 SRI S KALYAN BASAVARAJ, ADVOCATE)


AND

1.    THE STATE OF KARNATAKA
      DEPARTMENT OF INDUSTRIES AND COMMERCE
      DR. B R AMBEDKAR VEEDI
      VIKAS SOUDHA
                           2



     BENGALURU - 560 001
     REP. BY ADDITIONAL CHIEF SECRETARY

2.   THE KARNATAKA INDUSTRIAL AREAS
     DEVELOPMENT BOARD
     III & IV FLOORS, KHANIJA BHAVAN
     RACE COURSE ROAD
     BANGALORE - 560 001
     REPRESENTED BY ITS
     CHIEF EXECUTIVE OFFICER &
     EXECUTIVE MEMBER

3.   THE SPECIAL LAND ACQUISITION OFFICER
     KARNATAKA INDUSTRIAL AREAS
     DEVELOPMENT BOARD
     KHANIJA BHAVAN
     RACE COURSE ROAD
     BANGALORE - 560 001
                                      ...RESPONDENTS

(SRI PRABHULING K NAVADGI, ADVOCATE GENERAL A/W
 SRI S S MAHENDRA, AGA FOR R-1;
 SRI PRABHULING K. NAVADGI, SENIOR ADVOCATE FOR
 SRI B.B.PATIL, ADVOCATE FOR CAVEATOR/R-2 & R-3)



      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE IMPUGNED ORDER DATED 26.11.2021 PASSED BY THE
LEARNED SINGLE JUDGE IN W.P.NO.23581/2019 (LA-KIADB)
AND ALLOW THIS WRIT APPEAL AND ETC.


      THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THROUGH VIDEO CONFERENCING THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:
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                            JUDGMENT

Heard Mr.S.M.Chandrashekar, learned Senior Advocate

for the appellant as well as learned Advocate General

appearing for the respondents.

2. This intra-Court appeal has been filed challenging

the impugned judgment and order passed by the learned

Single Judge in Writ Petition No.23581/2019 whereby, the writ

petition preferred by the appellant/petitioner has been

dismissed.

3. Learned Senior Advocate for the

appellant/petitioner submits that in the earlier round of

litigation, the learned Single Judge, vide judgment and order

dated 03.02.2014 passed in Writ Petition No.10650/2007 (LA-

KIADB), had allowed the writ petition and the resolution of the

Board dated 23.06.2007 was quashed and the matter was

remitted back to the respondent to afford a hearing to the

appellant/petitioner and thereafter to reconsider and proceed

in terms of the resolution dated 30.01.2006. It is submitted

that in the writ appeals preferred by the respondent No.3, the

order passed by the writ Court was upheld and only a slight

modification in the order was passed according to which, the

respondent was required to afford a hearing to the

appellant/petitioner and thereafter to reconsider the matter on

the basis of the decision that may be taken by the respondent

after hearing the appellant/petitioner.

4. It is submitted by learned Senior Advocate for the

appellant/petitioner that it was the Board of respondent No.3

which was authorised to take a decision pursuant to the

directions issued by the Court in the earlier round of litigation.

However, the matter was not placed before the Board and it

was only the Chief Executive Officer of respondent No.3, on

the basis of the alleged delegation of power, has taken the

decision that deletion of the land in the present case is not

possible as the possession of the said land has been taken and

also allotment in the said land has been made.

5. The submission is that there was no specific

delegation of power in favour of the Chief Executive Officer

who has passed the order which was under challenge before

the writ Court, moreover, there could be no delegation in this

regard as it was the direction of the writ Court affirmed in the

writ appeals that the Board had to take a decision and not any

other person authorised by it. It is submitted that the learned

Single Judge has failed to consider this relevant aspect of the

matter and has wrongly dismissed the writ petition preferred

by the appellant/petitioner.

6. Learned Advocate General appearing for the

respondents, on the other hand, submits that sub-section (g)

of Section 14 of the Karnataka Industrial Areas Development

Act, 1966 (for short "the KIAD Act") contemplates that the

Board has the power to delegate any of its powers generally or

specially to the Executive Member. Sub-section (i) of Section

14 of the KIAD Act contemplates to do such other things and

perform such acts as it may think necessary or expedient for

the proper conduct of its functions and the carrying into effect

the purposes of the Act. It is submitted that the Chief

Executive Officer was to act on behalf of the respondent No.3

and as such, the office order dated 14.06.2010 was issued in

his favour by the Board in its meeting dated 25.01.2010. The

power of the Board was delegated to the Chief Executive

Officer and the Executive Member for authentication of the

documents including to grant permissions, orders, decisions

etc. The submission is that it was apparent that the Board has

authorised its Chief Executive Officer and the Executive

Member to take a decision in the exercise of power conferred

under sub-section (g) of Section 14 of the KIAD Act and as

such, it cannot be said that the order impugned before the

writ Court was without jurisdiction.

7. It is also submitted that in fact, the writ petition

preferred by the appellant/petitioner was itself not

maintainable in view of the fact that the proceedings for

acquisition of the land in question were initiated on

19.04.1997. The acquisition proceedings were finalised on

27.04.2002. After the finalisation of the acquisition

proceedings, the writ petitions challenging the acquisition

were filed in the year 2003 which were dismissed. Thereafter,

the writ appeals preferred before the Division Bench were also

dismissed and thereafter, the Special Leave Petitions preferred

before the Apex Court were also dismissed. It is submitted

that the land in question was handed over to KIADB on

16.07.2002 and the KIADB had thereafter transferred the land

in question to a third party. His submission is that after the

finalisation of the acquisition proceedings, the writ petition

preferred by the appellant/petitioner on the basis of some

resolution passed by the Board or taking the plea that there

was some conflict in the provisions of the KIAD Act with

respect to the Right to Fair Compensation and Transparency in

Land Acquisition, Rehabilitation and Resettlement Act, 2013

was not maintainable.

8. In rejoinder to the aforesaid submissions of the

learned Advocate General, the learned Senior Advocate for the

appellant/petitioner submits that Section 4 of the KIAD Act

clearly stipulates that the State Government may at any time,

by notification, exclude from any industrial area, any area or

include therein any additional area, as may be specified in

such notification. The submission is that the State

Government had absolute power to alter the land in question

and reconvey it at any stage and the finalisation of the

acquisition proceedings or transfer of the land in question

would not have any effect. It is also submitted that in fact,

the alleged delegation of power under sub-section (g) of

Section 14 which has been relied by the respondent was not

placed on record and the appellant/petitioner had not been

given the opportunity to go through the same. The copy of

the order giving power of delegation in favour of the Chief

Executive Officer was shown to the Court and the same was

relied by the learned Single Judge. In this regard, it is also

submitted that it was a general power of delegation and there

was no specific delegation of power with respect to the land in

question and as such, in view of the direction issued by the

Court in the earlier round of litigation, the respondent could

not rely on the general delegation of power and therefore, the

order passed by the Chief Executive Officer rejecting the claim

of the appellant/petitioner was wrong and illegal.

9. We have considered the submissions made by

learned Senior Advocate for the appellant as well as learned

Advocate General appearing for the respondents and gone

through the record.

10. The learned Single Judge has considered in detail

the order impugned which was challenged before the writ

Court and has also taken into consideration the earlier

direction issued by the writ Court which was modified in the

writ appeals. The learned Single Judge has taken the view

that the acquisition proceedings were concluded, the

possession of the land in question was handed over to KIADB,

the KIADB had created third party right/interest in the

property in question and the land is not available to KIADB for

reconveyance. The learned Single Judge has also taken note

of the fact that under sub-section (g) of Section 14 of the

KIAD Act, the Board has been empowered to delegate any of

its powers generally or specially to its Executive Members.

Section 14 of the KIAD Act is reproduced below:

"14. General powers of the Board.- Subject to the provisions of the Act, the Board shall have power,-

(a) to acquire and hold such property, both movable and immovable as the Board may deem necessary for the performance of any of its activities and to lease, sell, exchange or otherwise transfer any property held by it on such conditions as may be deemed proper by the Board;

(b) to purchase by agreement or to take on lease or under any form of tenancy any land, to erect such buildings and to execute such other works as may be necessary for the purpose of carrying out its duties and functions;

(c) to provide or cause to be provided amenities, industrial infrastructural facilities amenity and common facilities in industrial areas and construct and maintain or cause to be maintained works and buildings therefor;

(d) to make available buildings on lease or sale or lease-cum-sale to industrialists or persons intending to start industrial undertakings;

(e) to construct buildings for the housing of the employees of industries;

(f) (i) to allot to suitable persons premises or parts thereof including residential tenements in the industrial areas established or developed by the Board;

(ii) to modify or rescind such allotments, including the right and power to evict the allottees concerned on breach of any of the terms or conditions of their allotment;

(iii) to resume possession of premises or part thereof including residential tenements in the industrial area, or industrial estate in the manner provided in Section 34-B;

(g) to delegate any of its powers generally or specially to the Executive Member;

(h) to enter into and perform all such contracts as it may consider necessary or expedient for carrying out any of its functions; and

(i) to do such other things and perform such acts as it may think necessary or expedient for the proper conduct of its functions, and the carrying into effect the purposes of this Act."

11. A perusal of sub-section (g) of Section 14 of the

KIAD Act clearly shows that the Board has right to delegate

any of its powers generally or specially to its Executive

Member including the Chief Executive Officer who is

undisputedly an Executive Member. Sub-section (i) of Section

14 of the KIAD Act contemplates to do such other things and

perform such acts as it may think necessary for the proper

conduct of its functions and the carrying into effect the

purposes of the Act. As such, it is very much clear that there

can be delegation of power by the Board to its Executive

Member, and the Chief Executive Officer being the Executive

Member of the Board was fully authorised to exercise that

power of delegation given in his favour while performing the

work of the Board and on its behalf.

12. So far as the contention of the learned Senior

Advocate for the appellant/petitioner that in view of the

direction issued by the writ Court, only the Board was

authorised to act and there can be no delegation of power is

concerned, suffice it to note that the Board will include its

Officers including the Chief Executive Officer, and the Chief

Executive Officer, in view of sub-section (g) of Section 14 of

the KIAD Act, can very well act on behalf of the Board and as

such, we do not find any force in the submission of the

learned Senior Advocate for the appellant in this regard.

Moreover, it is also to be noted that the appellant/petitioner

had appeared before the Chief Executive Officer and the

Executive Member on 30.12.2014 for the purpose of hearing

and in the said proceedings, he had not taken any such

objection regarding the competence of the Chief Executive

Officer, thereby accepted the delegation. It is, therefore, not

permissible to the appellant now to raise this issue and further

the litigation, which has been going on since 2012.

13. So far as the contention of the learned Senior

Advocate for the appellant/petitioner that in view of Section 4

of the KIAD Act, the State Government had absolute power to

exclude from any industrial area, any area or include therein

any additional area, as may be specified in such notification

and in view of Section 4, the State Government can reconvey

the land in question is concerned, we are of the considered

view that Section 4 of the KIAD Act empowers the State

Government, by notification, to exclude any area of the land

acquired or include therein any additional area that may have

been specified in such notification at any time, but it does not

mean that the same can be done particularly when the

acquisition proceedings have been finalised and possession

has been transferred and third party rights have been created.

In the present case, the State Government had acquired the

land for which the proceedings were finalised in the year 2002

and thereafter, the land was transferred to KIADB in the year

2002 and the KIADB in turn had thereafter transferred the

land in question to a third party i.e., the industrial unit. Once

the possession of the land has been handed over, there was

no question of reconveyance of the same. The learned Single

Judge has rightly taken the view that the acquisition

proceedings are concluded, the possession of the land in

question has been handed over to KIADB which in turn has

created third party right in the property in question, as such,

the said land is not available to KIADB for reconveyance.

14. We do not find any force in the contentions raised

by learned Senior Advocate for the appellant and as such, the

writ appeal is dismissed at the admission stage.

15. The pending interlocutory applications do not survive

for consideration and are accordingly disposed of.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE bkv