Karnataka High Court
Sri H H Maheshwarappa vs State Of Karnataka on 2 April, 2024
Bench: Chief Justice, Krishna S Dixit
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WA No. 414 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR N. V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO. 414 OF 2024 (LA-KIADB)
BETWEEN:
1. SRI H H MAHESHWARAPPA
S/O LATE HANUMAPPA
AGED ABOUT 66 YEARS
2. SRI H H CHANDRASHEKHARAPPA
S/O LATE HANUMAPPA
AGED ABOUT 76 YEARS
3. SMT HANUMAKKA
W/O LATE H H HANUMANTHAPPA
Digitally signed AGED ABOUT 69 YEARS
by AMBIKA H B
Location: High 4. SRI SURESH H
Court of
Karnataka S/O LATE H H HANUMANTHAPPA
AGED ABOUT 53 YEARS
5. SMT. SUVARNA H
D/O LATE H H HANUMANTHAPPA
AGED ABOUT 49 YEARS
6. SMT. RAJU H H
W/O LATE HANUMANTHAPPA
AGED ABOUT 47 YEARS
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WA No. 414 of 2024
7. SRI H H RAMAPPA
S/O LATE HANUMANTHAPPA
AGED ABOUT 63 YEARS
8. SMT. SAROJAMMA
W/O LATE H H BHIMAPPA
AGED ABOUT 51 YEARS
9. KUMARI SOUNDARYA
D/O LATE H H BHIMAPPA
AGED ABOUT 27 YEARS
ALL RESIDING AT:
COLLEGE ROAD
NEAR SHANTHI GAS OFFICE
NITUVALLI, DAVANGERE - 570 001
10. SRI MALLIKARJUNAPPA H H
S/O LATE HANUMAPPA H
AGED ABOUT 70 YEARS
DOOR NO. 1784/50
"LAKSHMI KRUPA"
NEAR DURGAMBIKA HIGH SCHOOL
SARAATHI NAGAR, "C" BLOCK
NITUVALLI POST
DAVANAGERE - 577 004
...APPELLANTS
(BY SRI S.S.NAGANAND, SENIOR ADVOCATE FOR
SMT. SUMANA NAGANAND, ADVOCATE)
AND:
1. STATE OF KARNATAKA
COMMERCE AND INDUSTRIES DEPARTMENT
(INDUSTRIAL DEVELOPMENT)
M.S BUILDING
DR. AMBEDKAR VEEDHI
BANGALORE - 560 001
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WA No. 414 of 2024
2. KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
GOVERNMENT OF KARNATAKA
NRUPATHUNGA ROAD
BENGALURU - 560 001
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER
3. SPECIAL DEPUTY COMMISSIONER
K.I.A.D.B
NRUPATHUNGA ROAD
BENGALURU - 560 001
4. THE SPECIAL LAND ACQUISITON OFFICER
K.I.A.D.B
INDUSTRIAL AREA
P.B. ROAD
DAVANGAGERE - 577 004
5. M/S. S.S INSTITUTE OF MEDICAL SCIENCES
AND RESEARCH CENTRE
DAVANGERE - 577 002
REPRESENTED BY ITS PRINCIPAL
6. THE DEPUTY COMMISSIONER AND
DISTRICT MAGISTRATE
OFFICE OF THE DEPUTY COMMISSIONER
DAVANGERE - 577 002
7. THE TAHASILDAR
OFFICE OF THE TAHASILDAR
RAITHABHAVAN, OLD B.P ROAD
DAVANAGERE TALUK
DAVANAGERE - 577 002
8. K SHIVA PRASAD
AGED ABOUT 74 YEARS
S/O LATE KARIBASAPPA
DOOR NO.794/20
VEERABHADRA KRUPA
JAYANAGAR 'A' BLOCK
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WA No. 414 of 2024
NITUVALLI POST
DAVANAGERE - 577 004
...RESPONDENTS
(SMT.NILOUFER AKBAR, ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NOS.1, 6 AND 7
SRI SHASHIKIRAN SHETTY, SENIOR ADVOCATE FOR
SRI B.B.PATIL, ADVOCATE FOR CAVEATOR/RESPONDENT
NOS.2 AND 4
SRI PRABHULING K.NAVADGI, SENIOR ADVOCATE FOR
SRI AJYA J.NANDALIKE, ADVOCATE FOR RESPONDENT No.5)
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 22.01.2024 PASSED BY THE LEARNED SINGLE JUDGE
IN W.P No.25964/2023 (LA-KIADB) AND CONSEQUENTLY
ALLOW THE WRIT PETITION
THIS APPEAL, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, CHIEF JUSTICE DELIVERED THE
FOLLOWING:
JUDGMENT
Heard learned Senior Advocate Mr. S.S. Naganand assisted
by learned advocate Smt.Sumana Naganand for the appellants,
learned Senior Advocate Mr. K. Shashi Kiran Shetty for learned
advocate Mr.B.B.Patil for respondent Nos.2 to 4, learned Senior
Advocate Mr. Prabhuling K. Navadgi with learned advocate
Mr.Ajay J. Nandalike for respondent No.5 and learned Additional
Government Advocate Ms.Niloufer Akbar for respondent Nos.1, 6
and 7-the State and its authorities, at length.
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2. The appellants are the original petitioners who, by filing this
writ appeal under Section 4 of the Karnataka High Court Act, 1961,
have sought to challenge the judgment and order of learned Single
Judge dated 22.01.2024. Thereby, the writ petition of the
appellants came to be dismissed. Consequently, Preliminary
Notification dated 13.04.2004 published under Sections 3(1) and
28 as well as the Final Notification dated 05.09.2023 under Section
28(4) of the Karnataka Industrial Areas Development Act, 1966
(hereinafter referred to as 'KIAD Act') were upheld, negativing the
challenge to the acquisition.
2.1 The petitioners-appellants herein prayed in their writ
petition to set aside the aforementioned two notifications
issued under the KIAD Act. It was also prayed to set aside the
Notification dated 08.10.2023 taking symbolic possession of
the lands in question, by the authorities. The lands of the
petitioners were acquired pursuant to the aforesaid
notifications for setting up the hospital and research centre.
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3. Noticing the basic facts, it was the case of the
appellants-petitioners that they, as members of the family,
inherited land bearing survey No.209 situated at Averegere
Village, Davanagere. It was stated that the petitioners had
specific shares in the different parcels of the said survey
number which fell to their ownership upon partition of the land.
The appellant No.1 got survey No.209/P2 and survey
No.209/P5 comprising 1 acre in each of the said survey
numbers. Survey No.209/P3 ad measuring 30 guntas fell to
the share of appellant No.2, appellant Nos.3 to 6 got 1 acre in
survey No.209/P2 each. Similarly, appellant No.7 got 30
guntas in survey No.209/P6, appellant Nos.8 and 9 got the
same area in survey No.209/P7 and appellant No.10 also got
30 guntas in survey No.209/P4. It was claimed that the lands
were irrigated lands, that the names of the appellants were
entered into the RTC records and that each of the appellants
was in physical possession of their respective land engaging
themselves in agriculture and cultivation.
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3.1 Respondent No.5-M/s. S. S. Institute of Medical
Sciences and Research Centre found lands for establishing
high-tech hospital and research centre for which it made a
representation. Respondent No.2-Karnataka Industrial Areas
Development Board (KIADB) resolved on 31.07.2002 to grant
113 acres of lands which included the above lands belonging
to the appellants in favour of respondent No.5. The resolution
was placed before the State Level Single Window Clearance
Committee (SLSWCC).
3.2 By representation dated 13.11.2002, respondent No.5
requested that it would need 70 acres of land. The SLSWCC
in its meeting dated 27.11.2002 granted permission to KIADB
to acquire and allot the lands. The permission by SLSWCC
was given, it was stated by the petitioners, subject to the
stipulation that irrigated wet lands would not be included in the
proposed acquisition and that only non-cultivable and non-
irrigated lands could be brought under acquisition.
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3.3 It was case of the petitioners that notwithstanding, the
lands of the petitioners which were irrigated wet lands came to
be notified for acquisition in the Preliminary Notification dated
13.04.2004. It was the further case that in the RTC records
also right from the year 2001, the lands were shown to be
niravari (cultivated) lands and that crops were shown to have
been raised on the said lands. It was further claimed that a
nala had been flowing across the lands, which nala was
connected to Bhadra river making the land in question capable
of being irrigated. It was the case of the petitioners that the
Special Land Acquisition officer disregarded the aspect
irrigability of the land and prepared report dated 18.10.2004
rejecting the objections filed by the appellants and the Final
Notification dated 09.02.2007 under Section 28(4) of the KIAD
Act was published.
3.4 It was next stated that the acquisition proceedings as
well as the final notification came to be challenged by
appellant Nos.1 to 9 by filing Writ Petition No.15450 of 2011
and by appellant No.10 in Writ Petition No.10673 of 2021
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before this Court. By the order dated 02.11.2022 and by
further chamber order dated 07.12.2022, this Court passed
order permitting to conduct fresh inquiry by the competent
authority and to submit report, however, the notifications were
not set aside.
3.5 Respondent No.4-Special Land Acquisition Officer
conducted inquiry and submitted report dated 26.06.2023 in
which the claim of the appellants that the lands were irrigated
wet lands was rejected. It was further suggested in the report
that lands in survey No.209 constituted an island as it was
adjacent to National Highway-48 and they stood surrounded
by other lands which were already acquired. In the report, it
was further opined that the cultivation thereon involved
poisonous substances spread on the crop. After the said
report dated 26.06.2003, Final Notification dated 05.09.2023
came to be published in the newspaper on 08.10.2023.
3.6 Before learned Single Judge, statement of objections
was filed on behalf of respondent Nos.2 to 4 to contend that it
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was pursuant to the fact finding inquiry report dated
26.06.2023, as directed by the Court in the aforementioned
order passed in the earlier petition, that the Final Notification
dated 05.09.2023 under Section 28(4) of the KIAD Act was
published. It was stated that pursuant to the earlier Writ
Petition No.19969 of 2014 with connected Writ Petition
Nos.15450 of 2011 and 10673 of 2021, the petitioners
appeared before the authorities and filed their objections on
03.03.2023 and that the said objections were considered by
the competent authority before passing the final notification.
Hearing was also given to the petitioners. Notification under
section 28(4) of the KIAD Act was thereafter issued. It was
contended that once issuance of the said notification is
provided under Section 28(5) of the KIAD Act, the lands stood
vested in the State free from all encumbrances.
4. While assailing the judgment and order of learned Single
Judge in this writ appeal, more or less the same contentions
are canvassed before this Court which were advanced by the
rival parties before learned Single Judge. A teethless
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contention raised on behalf of the appellants may be disposed
of at the outset.
4.1 It was sought to be submitted that the challenge to the
acquisition was covered by the order of this Court in Writ
Petition No.15450 of 2011 connected with Writ Petition
No.10673 of 2021 in which the same preliminary notification
was challenged. It is stated that the said two writ petitions
along with yet another Writ Petition No.19969 of 2014 came to
be disposed of as per the order dated 02.11.2022 read with
order 07.12.2022 which was chamber order.
4.1.1 The directions issued by this Court while disposing of
the said writ petitions were as under,
"...(i) Writ Petition Nos.19969/2014, 15450/2011
and 10673/2021 are hereby allowed.
(ii) *Deleted vide Chamber Order Dated
07.12.2022.
(iii) The order dated 18.10.2024 as well as final
Notification dated 26.10.2007 insofar as the
respective subject lands of the petitioners are
concerned, are hereby set aside.
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(iv) Matter is remitted back to the respondents to
conduct fresh enquiry only in respect of the
subject lands and pass fresh order under Section
28(3) in accordance with law.
(v) All rival contentions are kept open and no
opinion is expressed on the same.
(vi) Liberty is reserved in favour of the parties to
file pleadings, documents etc., in respect of their
respective contentions.
(vii) Petitioners and answering respondent No.5
are directed to appear on 28.11.2022 before the
respondent No.4/ The Special LAO, who is
directed to conclude the proceedings within a
period of three months thereafter, after hearing the
parties. ..."
4.1.2 The Preliminary Notification dated 13.04.2004 and the
Final Notification dated 09.02.2007 were not set aside, but the
matter was remitted back to conduct fresh inquiry in respect of
the subject matter lands and passed fresh orders under
Section 28(3) of the KIAD Act. It was pursuant to the inquiry,
undertaken as above, that the lands were found fit to be
acquired and the claim of the appellants that it was the
irrigated land was not accepted. The land was found to be
kushki (dry land).
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4.2 The appellants relied on the order in yet another Writ
Petition No.15126 of 2008 in which the same Preliminary
Notification dated 13.04.2004 and Final Notification dated
09.02.2007 were challenged. However the challenge in that
writ petition was in respect of acquisition of different survey
number and by different person. Therefore, the reliance on the
said petition was of no avail to the appellants-petitioners.
4.2.1 It was the contention raised with reference to the
circular dated 03.03.2007 that under the said circular the
irrigated land was prohibited to be acquired and since the
lands of the petitioners were irrigated wet lands, it could not
have been put under acquisition. The claim of the appellants-
petitioners that the land survey No.209 and its parcels was
irrigated land or wet land was on facts not found true in the
inquiry report.
5. Section 28 of the KIAD Act deals with the acquisition of
land. Section 28 (1) is about intention to acquire the land by
the State Government when it is of the opinion that any land is
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acquired for the purpose of development or any other purpose
in furtherance of the objects of the Act. Notice is given to the
owner, occupier or the persons interested in the land as the
case may be. Sub-section (3) is about passing order by the
Government after giving such owner and person an
opportunity of being heard.
5.1 Under sub-section (4) of Section 28 the Government
issues notification upon being satisfied that the lands could be
acquired for the purpose specified. As per sub-section (5) of
Section 28, once the declaration under sub-section (4) is
published in the Official Gazette, the subject matter land shall
vest in the State Government absolutely free from all
encumbrances. The subsequent provision enjoins the land
owner to deliver and surrender the possession. In the facts of
the present case, the Notification under Section 28(4) of the
KIAD Act having been issued, the land in question is
absolutely vested in the State.
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5.2 The findings in the report dated 26.06.2023 that the land
survey No.209 and parcels thereof belonging to the
appellants-petitioners was kushki land, was a finding of fact
arrived at upon inquiry. There is no reason not to accept the
said finding. This Court could not travel beyond the finding of
the fact. The Court in exercise of writ jurisdiction would not
upset or reverse the finding of fact which is even otherwise
properly arrived at in the fact finding inquiry.
5.3 Another aspect to be noticed is that the surrounding
lands belonging to other persons have already been acquired.
The beneficiary-the acquiring body has been in the process of
setting up a hospital. It is only portion of the land belonging to
the petitioners which is forming a kind of island is left out since
having been subject matter of this litigation. The factum that
the lands in question fall in the middle of the other lands
already acquired, come to support the aspect that they could
not be irrigated or irrigable land.
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5.4 Learned Single Judge noted that respondent No.5
produced map to demonstrate that the lands of the petitioners
were situated in between the lands which were already
acquired for the purpose of respondent No.5. The subject
matter lands involved have the contiguity with the other lands
acquired for the same purpose for the very beneficiary.
5.5 Learned Single Judge further observed that the lands
were acquired for the purposes of hospital, medical college
and research institute which would sub serve public interest
when going to be set up in the area awaiting development.
Learned Single Judge observed that though certain factual
errors were committed by respondent No.4 while recording the
nature of the land, it would not be fatal to the legality of the
acquisition, for, all the prerequisites in law for acquiring the
land under the KIAD Act stand satisfied.
6. For the reasons recorded by learned Single Judge and
for the discussion and reasons additionally supplied in this
order, this Court is in agreement with the view taken by
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learned Single Judge in dismissing the petition and upholding
the acquisition.
7. No case is made out to warrant interference in the
judgment and order of learned Single Judge. The present
meritless writ appeal is dismissed.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
THM
