Karnataka High Court
Sri Shetti Umesh vs The State Of Karnataka on 18 December, 2023
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 30274 OF 2008 (LA-KIADB)
BETWEEN:
1. SRI SHETTI UMESH
S/O MADHUKAR,
AGED ABOUT 49 YEARS
2. SRI. SHETTI SHARASCHANDRA
S/O MADHUKAR
AGED ABOUT 47 YEARS
3. SHETTI RAJENDRA
S/O MADHUKAR
AGED ABOUT 45 YEARS
4. SMT. SHETTI SUMITHRA @ TARABAI
S/O MADHUKAR
AGED ABOUT 68 YEARS
5. SMT SHETTI VIJAYALAKSHMI
D/O MADHUKAR & W/O SRI.RAMESH
AGED ABOUT 51 YEARS
6. SMT. SHETTI USHA
D/O MADHUKAR
W/O GAJANAN SHETTI
AGED ABOUT 41 YEARS
7. SMT. SHETTI LENA
D/O MADHUKAR
W/O RAMANANT SHETTI,
AGED ABOUT 36 YEARS
ALL ARE R/AT
TARIHAL VILLAGE,
HOBLI & TALUK HUBLI
2
DHARWAD DISTRICT AND
ARE REPRESENTED BY THEIR
GPA HOLDER,
SRI.SHETTI SHARASCHANDRA,
S/O MADHUKAR PETITIONER NO.2
...PETITIONERS
(BY SRI CHANDRAKANTH R. GOULAY, ADVOCATE FOR
SRI.SUNIL.S.DESAI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPT OF COMMERCE AND INDUSTRIES
M S BUILDING, VIDHANAVEEDHI,
BANGALORE-560001
2. M/S KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
BY ITS MANAGING DIRECTOR,
NRUPATHUNGA ROAD, BANGALORE-560001
3. THE SPECIAL LAND ACQUISITION OFFICER
M/S KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD, LAKKAMMANAHALLI
INDUSTRIAL AREA, PLOT NO.33/A,
P B ROAD, DHARWAD-580 004.
...RESPONDENTS
(BY SRI.SHIVAPRABHU.S.HIREMATH, AGA FOR R1;
SRI BASAVARAJ V.SABARAD, SENIOR COUNSEL FOR
SRI.P.N.HATTI, STANDING COUNSEL FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
PRELIMINARY NOTIFICATION DTD: 19.08.2006 AT ANNEXURE-
A, THE FINAL NOTIFICATION DTD: 06-10-2007 AT ANNEXURE-
C AND A COMMUNICATION DTD: 25.10.2007 AT ANNEXURE-D,
ISSUED BY 3RD RESPONDENT AND ETC.,
3
THIS PETITION HAVING HEARD AND RESERVED FOR
ORDERS ON 26.09.2023 COMING ON FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned petition is filed by the land owners
questioning the preliminary notification vide Annexure-A
proposing to acquire the petition land and the consequent
final notification vide Annexure-C issued by the respondent
No.3.
2. The subject matter of the captioned petition is
land bearing Sy.No.62/A, Block-2, measuring 24 acres 39
guntas. The respondent No.3 vide preliminary notification
dated 19.08.2006 issued under Section 28(1) of the
Karnataka Industrial Area Development Board Act, 1966
(for short 'the Act') proposed to acquire the petition land.
The petitioners filed objections to the notification. The
respondent No.3 issued final notification under Section
28(4) and thereby acquired the petition land. The
petitioners grievance is that preliminary notification is
found to be totally defective as the petition land is situated
in Hubli Taluk and not in Dharwad Taluk and therefore, the
petitioners claim that rectification, if any, has to be done
only by a fresh notification. The petitioners have also
questioned the impugned preliminary and final
notifications on the ground that the same runs contrary to
the Circular issued by the State on 03.03.2007 wherein
State has issued several directives not to acquire garden
lands. The petitioners are also challenging the acquisition
proceedings on the ground that the petition land is not
properly valued. The petitioners however have contended
that the objection raised cannot be taken as a consent for
issuance of notification under Section 16(2). The
petitioners grievance is that the respondent No.3-acquiring
authority was not justified in assessing the value of the
land at the rate of Rs.13,36,000/- per acre.
3. The grievance of the petitioners is that, though
detailed objections are filed pursuant to issuance of
preliminary notification, the acquiring authority has not
properly considered the objections before proceeding to
issue final notification. The petitioners claim is that
respondent No.3-acquiring authority has not secured
details of the lands and its NA potential for the purpose of
passing an award. The petitioners have also placed
reliance on two valuation reports to substantiate their
claim in regard to existence of plants, trees and herbs
apart from existing structures which are also separately
valued.
4. The respondent No.2-Board and respondent
No.3-acquiring authority have filed statement of objections
to counter the claim made by the petitioners in the
captioned petition. Countering the claim of the petitioners
that they were not properly heard and the objections were
not considered by the respondent No.3, the contesting
respondents claim that the objections tendered by the
petitioners were dealt with and examined. The respondent
No.2-Board has claimed that objections were personally
and individually heard on 08.12.2006 and appropriate
order is passed while rejecting the objections tendered by
the petitioners and while over-ruling the objections
tendered by the petitioners, the acquiring authority has
notified that additional amount will be paid to the existing
structures of the acquired land by securing valuation
report from the concerned authorities.
5. While examining the claim of the petitioners
that the lands acquired are undervalued, the respondent
No.2-Board has contended that the valuation arrived at
Rs.13,36,000/- is in accordance with law and therefore,
the objections in regard to the proper valuation of the
acquired land cannot be entertained. While justifying the
error that has crept in while issuing the preliminary
notification in regard to the Taluka under which the
acquired land is located, the respondent No.2-Board would
contend that it is well within the authority of respondent
No.2-Board to pass a resolution and rectify the mistake.
The acquired land through oversight is notified as located
in Dharwad Taluk instead of Hubli Taluk and the same is
rectified by passing a resolution to that effect and
therefore, contesting respondents have contended that no
serious prejudice is caused to the petitioners/land owners.
6. The petitioners have filed a rejoinder and in the
rejoinder, the petitioners have contended that the lands
though acquired, possession is not delivered and that
petitioners are still in possession and enjoyment of the
petition land and they are cultivating the same. The
petitioners have also brought to the notice of this Court
that interim order of stay granted on 31.07.2008
continues to operate. The petitioners have further stated
that respondents have not taken any action to take
possession. Placing reliance on Government Circular dated
03.03.2007, petitioners have reiterated and claimed that
the land admittedly being a garden land could not have
been acquired in terms of Circular dated 03.03.2007. The
petitioners have further contended that though Circular
was issued prior to preliminary notification, however, the
Circular dated 03.03.2007 is much prior to issuance of
final notification which is dated 06.10.2007. The
petitioners have placed additional list of documents along
with rejoinder to further substantiate their claim.
7. Learned counsel reiterating the grounds urged
in the petition and rejoinder would vehemently argue and
contend that the present preliminary notification and
consequent final notification is squarely hit by Circular
issued by the Government dated 03.03.2007, wherein the
Circular issued by the Commerce & Industries Department
has laid down certain guidelines and acquiring authority is
directed not to acquire the garden land. Reliance is placed
on the judgment rendered by the Division Bench of this
Court in W.A.No.2352/2014. Referring to the said
judgment, learned counsel would contend that the
judgment rendered by the Division Bench is squarely
applicable to the present case on hand and therefore, the
Circular dated 03.03.2007 issued by the State authority
binds the respondents/authorities. He would seriously
contest the claim of the Board that possession is already
taken.
8. To counter the Board's claim in regard to
possession, learned counsel for the petitioners has placed
reliance on the additional documents produced along with
rejoinder. Referring to the material on record, more
particularly the objections tendered by the petitioners
which is produced at Annexure-B, he would point out that
respondents have not taken possession and the land is not
developed. He would further contend that the petition
land continues to retain the character of agricultural land.
9. To buttress his arguments, he has placed
reliance on the following judgments:
"1. Sri.Mallaiah Vs. State of Karnataka and
others dated 23.08.2012 (Justice Abdul Nazeer)
regarding Garden lands - WP No.6755/2012 (LA-
KIADB).
2. The Barium Chemicals Ltd and another Vs.
A.J.Rana and Others - AIR 1972SC 591.
3. D.Hemachandra Sagar and another Vs. State
of Karnataka and others - 1999 (1) KLJ 510.
4. Hindustan Petroleum Corporation Ltd Vs.
Darius Shapur Chenai and others - 2005 (7) SCC
627.
5. Mallegowda and others Vs. State of
Karnataka, rep by its Secretary, Commerce &
Industries Department and others - ILR 2010 KAR
4930.
6. Raghbir Singh Sehrawat Vs. State of
Haryana & others - (2012) 1 SCC 792.
7. Karnataka Industrial Areas Development
Board Vs. C.Kenchappa & others referred and
considered - AIR 2006 SC 2038.
8. Smt.Rathnamma Vs. State of Karnataka &
others - WP No.31702/2018 (L-KIADB) Dated:
29.11.2018.
9. Sri.K.B.Lingaraju & anr Vs. State of
Karnataka & Others - WP No.34318-322/2016 &
34323-326/2016 (LA-KIADB) Dated: 17.08.2017.
10. Dyavamma Vs. State of Karnataka - WP
No.50791/2019."
10. Referring to the additional statement of
objections as well as rejoinder, he would vehemently
argue and contend that even in the record of rights, the
name of the petitioners for the year 2004-05 till 2015-16
is shown. Referring to the revenue records, he would
contend that the petitioners names are still found in the
ownership column. No changes are effected in the
revenue records inspite of acquisition. He would further
contend that around 6,000 trees are situated in the
petition land and 5 acres of land which is in the middle of
the acquired land is cultivable wherein crops like jowar,
chilli are grown. Reliance is also placed on additional
documents which are produced at Annexures-I to VII.
11. Learned Senior Counsel while countering the
petitioners claim referring to the averments made in the
writ petition as well as objections tendered by the
petitioners would point out that objections are not against
acquisition but petitioners are insisting for higher
compensation. Learned Senior Counsel while referring to
the objections tendered by the petitioners to the proposal
to acquire petition land, would contend that it is the
petitioners case that the land in question has got NA
potential and the petitioners need the existing trees to be
used as firewood for hotel business since petitioners own
several lodgings. Referring to para 16 of the objections,
learned Senior Counsel would point out that the petitioners
are resisting the acquisition by contending that if
acquisition of the petition land is not set aside, the
petitioners business would be affected. He would also
contend that the acquired land had got NA potential is also
not disputed by the petitioners. Learned Senior Counsel
referring to the material on record would also point out
that the acquired land is abutting to the KIADB land.
12. While addressing his arguments in regard to the
nature of acquired land, he would point out that the entire
extent is not garden land. He has placed reliance on
Annexure-R2 to indicate that entire extent is not
cultivable. While countering the petitioners claim in
regard to possession, learned Senior Counsel would place
reliance on Annexure-D to the writ petition and contend
that notice was issued in Section 28(6) calling upon the
petitioners to handover possession. Reliance is also
placed by the learned Senior Counsel on Annexure-R6 to
indicate that possession is taken on 11.12.2007.
13. Insofar as Circular dated 03.03.2007, he would
point out that same is pursuant to notification and
therefore, the Circular issued by the Government issuing
guidelines not to acquire garden lands being prospective in
nature has no application to the present case on hand. He
would further contend that even otherwise, this Circular
has no application as the entire extent is not garden land
and the same is admitted by the petitioners in the
objections tendered vide Annexure-B. Referring to the
date of taking possession, learned Senior Counsel would
bring to the notice of this Court that there is delay and
laches on the part of the petitioners in not immediately
approaching the Court. He would point out that the writ
petition is filed on 30.07.2008 and there is delay of 9
months.
14. Learned Senior Counsel countering the claim of
the petitioners that they are in lawful possession has also
placed reliance on the Mahazar which is preceded by
notice under Section 28(6) which is produced by the
petitioners at Annexure-D. Learned Senior Counsel
bringing to the notice of this Court that on account of final
notification issued under the Act, the acquired lands
automatically vest with the Board and the fact that
respondent No.2-Board's name is duly mutated to the
revenue records, he would point out that the petitioners
cannot assert possession. Reliance is also placed on
column No.9 of the revenue records indicating that
respondent No.2-Board's name is found in the cultivators
column. Referring to the revenue records, learned Senior
Counsel would also bring to the notice of this Court that
these revenue records do not disclose any information. He
would point out that the respondent No.2-Booard has
acquired about 231 acres of land and only petitioners have
resisted the acquisition by filing the captioned petition.
15. Heard learned counsel appearing for the
petitioners and learned Senior Counsel for the respondent-
KIADB. I have also given my anxious consideration to the
averments made in the petition, rejoinder, statement of
objections filed by the contesting respondents and
additional statement of objections. I have also given my
anxious consideration to the judgments cited by both the
parties.
16. On meticulous examination of the contentions
raised by both the parties and also having examined the
grounds urged in the petition, two points arise for
consideration:
1) The petitioners are resisting the acquisition
proceedings on the ground that there is a defect in the
notification as location of the land is not properly
described in the preliminary notification.
2) The second ground of objection is that petitioners
have invested huge amount and have developed the lands
and therefore, are placing reliance on Circular issued by
the Government dated 03.03.2007. The petitioners claim
that garden land cannot be acquired for any
developmental purpose and therefore, the impugned
notification are sought to be quashed insofar as petition
land is concerned.
17. Now let me examine the first ground of
objections raised by the petitioners in the captioned
petition. The petitioners contention is that in the
preliminary notification, the land is notified as situated at
Dharwad Taluk instead of Hubli Taluk. But, however, it is
not in dispute that the village name is correctly notified in
the preliminary notification. The respondent No.2-Board
by resolution has rectified the Taluk as Hubli in place of
Dharwad.
18. The object of notifying the proposal is to enable
the land owners to object and apprise the acquiring
authority and also to make out a case to drop the lands
from the proposed acquisition. The right conferred on a
citizen under Section 5(A) is a valuable right. It provides
an opportunity to an aggrieved citizen to represent to the
Government about the injustice and inappropriateness of
the steps proposed to be taken. In the present case on
hand, the petitioners were notified and they have filed
detailed objections before the competent authority.
Therefore, what emerges is that it is not the case of the
petitioners that on account of wrong description of the
petition lands, they were not given a fair opportunity to
contest and object the acquisition under Section 5(A) of
the Land Acquisition Act. It is also not the case of the
petitioners that on account of faulty newspaper
publication, they were denied an opportunity of
participating in the enquiry under Section 5(A). The fact
that petitioners have filed detailed objections which is
evident from Annexure-B to the petition, the petitioners
contention that preliminary notification is found to be
faulty as the land is shown to be situated in Dharwad
Taluk instead of Hubli Taluk cannot be acceded to. If
there is a proper enquiry and the grounds urged in the
writ petition does not indicate that they were denied a fair
opportunity has not caused serious prejudice on account of
mentioning wrong Taluk in the preliminary notification.
19. The next objection raised by the petitioners is
that their objections were not properly considered and the
investment and development made by the petitioners are
also ignored by the acquiring authority and therefore, the
impugned notifications are challenged. The petitioners are
questioning the valuation made by the acquiring authority
at Rs.13,36,000/- per acre. The petitioners claim that the
value of the land as on the date of acquisition was
Rs.21,00,000/- per acre. In the rejoinder and additional
grounds, petitioners are also questioning on the ground
that the same contravenes the Circular issued by the
Government on 03.03.2007, wherein the State has issued
certain directives not to acquire garden land. On reading
the objections filed by the petitioners, their contention that
the entire land is a garden land appears to be factually
incorrect. The petitioners claim is that they have
developed the land and the land in question has several
trees.
20. Now in the light of the objections raised by the
petitioners, let me examine the State and its agencies
right to acquire private property, more particularly, when
the proposed land is acquired to form industrial areas and
providing infrastructure in the industrial areas. The
expression 'eminent domain' means the right inherent in
every sovereign. The said expression provides that
private property can be utilized for public purpose by
adequately compensating the land owners. It is trite law
that 'eminent domain' is an essential constituent and the
authorities in support of the amplified definition of
'eminent domain' as the power of the sovereign to take
property for public use without owners consent upon
making just compensation.
21. It is equally trite law that in land acquisition
matters, the authorities must exercise statutory discretion
which should be based on reasonable ground. Vice of
hostile discrimination vitiates land acquisition process
which may warrant quashing including the notification for
acquisition. The very object of compulsory acquisition is in
exercise of power of eminent domain by the State against
the wishes or willingness of the owner or person interested
in the land. Therefore, so long as public purpose subsist,
the exercise of power of eminent domain cannot be
questioned.
22. Industrial development, being a linchpin of
economic growth, relies heavily on the strategic
acquisition of land by the State. The establishment and
growth of industries are intricately linked to job creation,
technological innovation, and the overall prosperity of a
nation. As such, the acquisition of land for industrial
purposes becomes not merely an option but a compelling
imperative for governments seeking to bolster their
economic foundations. Moreover, the utilization of
eminent domain for industrial development aligns with
broader objectives of infrastructure enhancement.
Industrial zones necessitate supportive infrastructure, and
the acquisition of land facilitates the implementation of
comprehensive development projects, including roads,
power supply, and water facilities. This not only caters to
the specific needs of industries but also redounds to the
benefit of the larger community through improved
connectivity and civic amenities.
23. In the pursuit of industrial development, the
acquisition of land is inextricably linked to job creation,
addressing one of the most pressing socio-economic
challenges. Industries, often labor-intensive, become
crucibles of employment opportunities, directly impacting
the livelihoods of individuals and contributing to the
overall well-being of society. The state's assertion of
eminent domain for industrial purposes thus resonates
with the imperative to mitigate unemployment and elevate
the standard of living.
24. It is incumbent upon the authorities to exercise
this power judiciously, balancing the public interest with
the rights of individual landowners. While land losers may
object to the acquisition, the legal framework typically
considers the greater good achieved through industrial
development. The presence of trees, plants, or other
natural elements on the land does not, in itself, constitute
an absolute objection, as the overarching objective is the
advancement of public welfare through economic progress.
25. The respondent No.2-Board has in fact acquired
231 acres of land and the entire project is stalled in view
of pendency of the captioned petition since the subject
matter of the captioned petition measures 24 acres. It is
borne out from the records that the project undertaken by
the respondent No.2-Board is integrated and indivisible
project. It is also borne out from the records that the
proposed land which is now acquired is abutting to the
KIADB land.
26. Though petitioner is seeking quashing of the
proceedings, no material is placed on record to indicate
that the procedure contemplated under Sections 4 and 6 is
not complied. On reading of the grounds in the rejoinder,
the material placed on record also does not indicate that
mandatory requirements of Section 4(1) and Section 6 are
violated. Judicial scrutiny often operates within a
framework of limited review, emphasizing questions of law
rather than reevaluating factual determinations made by
the executive during the acquisition proceedings.
27. The material placed on record by the petitioners
does not indicate that respondent No.2-Board has
committed any illegality which would warrant judicial
review. In absence of any material indicating the legal
malice, the impugned notifications proposing to acquire
petitioners land cannot be interfered with. As rightly
pointed out by the learned Senior Counsel, the
notifications are questioned on the ground that the
petitioners have invested huge amount and the lands are
developed. On reading the objections at Annexure-B, this
Court is more than satisfied that petitioners are aggrieved
more by the compensation determined by the acquiring
authority. More thrust is on the quantum determined by
the acquiring authority. The objection to the preliminary
notification also gives an indication that petitioners are
into hotel business and they have admitted that major
portion of income from hotel business is spent for
development of the said land.
28. It is equally trite law that once land is acquired,
it vest with the State free from all encumbrances.
Therefore, the petitioners claim that they are still in
possession also cannot be acceded to.
29. For the reasons stated supra, I pass the
following:
ORDER
The writ petition is dismissed.
The pending interlocutory application, if any, does
not survive for consideration and stands disposed of.
Sd/-
JUDGE
CA
