Karnataka High Court
Shri Shrikant S/O Nagalingappa ... vs G M Sugars And Energy Ltd And Others on 11 January, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 107836 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.107836 OF 2023 (GM-CPC)
BETWEEN:
1. SHRI SHRIKANT S/O. NAGALINGAPPA KAYAKADH
AGE:MAJOR, OCC: AGRICULTURE,
R/O PURADAKERI VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
2. SHRI GADIGAPPA S/O. VIRAPPA KUMBALUR
AGE:MAJOR, OCC: AGRICULTURE,
R/O PURADAKERI VILLAGE, TQ: HIRAKERUR,
DIST: HAVERI.
3. SHRI YOGESH S/O. BASAPPA KAYAKADH
AGE:MAJOR, OCC: AGRICULTURE,
R/O PURADAKERI VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
GIRIJA A 4. SHARIFSAB S/O. KAJASAB @ JATHIGAR @ BADIGER
BYAHATTI
AGE:MAJOR, OCC: AGRICULTURE,
Digitally
R/O PURADAKERI VILLAGE, TQ: HIREKERUR,
signed by DIST: HAVERI.
GIRIJA A
BYAHATTI
5. TIPPUSAB S/O. KAJASAB @ JATHIGAR @ BADIGER
AGE:MAJOR, OCC: AGRICULTURE,
R/O PURADAKERI VILLAGE,TQ: HIREKERUR,
DIST: HAVERI.
6. SHRI SIDAPPA S/O. VIRUPAKASHAPPA
BEUINAHALLI, AGE:MAJOR, OCC: AGRICULTURE,
R/O PURADAKERI VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
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WP No. 107836 of 2023
7. SHRI UMESH S/O. SHIVAPPA LOTANAVAR
AGE:MAJOR, OCC: AGRICULTURE,
R/O KIRAGERI VILLAGE
TQ: HIREKERUR, DIST: HAVERI
8. ASNAPPA S/O. RAHIMANSAB HALGERI
AGE:MAJOR, OCC: AGRICULTURE,
TQ. RATTIHALLI DIST: HAVERI
9. DADASAB S/O. JAMASAB MAGNUR
AGE:MAJOR, OCC: AGRICULTURE
R/O CHIKKABBARI VILLAGE,
TQ: RATTIHALLI,DIST: HAVERI.
10. SHRI. FAKIRSAB S/O. JAMALSAB KOTTIHAL
AGE: MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE,
TQ: RATTIHALLI, DIST: HAVERI.
11. SHRI HUSSAINSAB S/O. MUNAFSAB NANDIGUDII
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE,
TQ: RATTIHALLI, DIST: HAVERI.
12. SHRI. RASHIDSAB S/O. VANNURSAB RATI
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE,
TQ: RATTIHALLI, DIST: HAVERI.
13. AMANULLA @ JAKRAHMED S/O. BUDANSAB BANNIKOD
AGE:MAJOR, OCC: AGRICULTURE
R/O CHIKKABBARI VILLAGE,
TQ: RATTIHALLI, DIST: HAVERI.
14. SHRI FAKIRASAB S/O. MAHABOOBSAB PINJAR
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE,
TQ: RATTIHALLI, DIST: HAVERI.
15. SHRI. TAJUSAB S/O. DIWANSAB DIWANJANAVAR
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE,
TQ: RATTIHALLI, DIST: HAVERI.
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WP No. 107836 of 2023
16. SHRI. KALANDARSAB S/O. PIRSAB KUPPELUR
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE, TQ: RATTIHALLI,
DIST: HAVERI.
17. SHRI BUDDANSAB S/O. HUSSAIN KUPPELUR
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE, TQ: RATTIHALLI,
DIST: HAVERI.
18. SMT. MUBBIN W/O. HABIBULLA HOSKATTI
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE, TQ: RATTIHALLI,
DIST: HAVERI.
19. SHRI TAJUDDINSAB S/O. GUDDUSAB BANNIKOD
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE, TQ: RATTIHALLI,
DIST: HAVERI.
20. MOSINSAB @ SHAFIULLA S/O. JAMASAB BANNIKOD
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE, TQ: RATTIHALLI,
DIST: HAVERI.
21. SHRI. ISMAILSAB S/O. JAMMALSAB HUBBALLI
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE, TQ: RATTIHALLI,
DIST: HAVERI.
22. SHRI HUSSAINSAB S/O. HASANSAB BELLALLI
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE, TQ: RATTIHALLI,
DIST: HAVERI.
23. SHRI IBRAHIMSAB S/O. HUSSAINSAB KOTTIHAL
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE, TQ: RATTIHALLI,
DIST: HAVERI.
24. SHRI. SHARIFSAB S/O. HUSSAINSAB KITTUR
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE, TQ: RATTIHALLI,
DIST: HAVERI.
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WP No. 107836 of 2023
25. SHRI. MAHAMMADSAB S/O. CHAMANSAB MAGANNUR
AGE:MAJOR, OCC: AGRICULTURE,
R/O CHIKKABBARI VILLAGE, TQ: RATTIHALLI,
DIST: HAVERI.
...PETITIONERS
(BY SRI. ASHOK HARANHALLI, SR. COUNSEL FOR
SRI. SUNIL S. DESAI & SMT. SHEBA A. KHANAPUR &
SRI. KISHOR S. SUTAR, ADVOCATES)
AND:
1. G M SUGARS & ENERGY LTD.,
REPRESENTED BY ITS DIRECTOR,
SRI Y S NATARAJ, AGE MAJOR,
GANDHINAGAR, BENGALURU-09.
2. NAGENDRAPPA S/O. RUDRAPPA PUJAR
AGE: MAJOR OCC: AGRICULTURE
R/O. PURADKERI TQ. RATTIHALLI
DIST. HAVERI-581110
3. MANJAPPA S/O. IRAPPA BULANANAVAR
AGE: MAJOR OCC: AGRICULTURE
R/O PURADKERI TQ. RATTIHALLI
DIST HAVERI-581110
4. IRAPPA S/O. SHEKARAPPA PUJAR
AGE: MAJOR OCC: AGRICULTURE
R/O PURADKERI TQ. RATTIHALLI
DIST. HAVERI-581110
5. HANUMANTAPPA S/O. HALLURAPPA OLEKAR
AGE: MAJOR OCC: AGRICULTURE
R/O PURADKERI TQ. RATTIHALLI
DIST. HAVERI-581110
6. BASAPPA S/O. HALLURAPPA OLEKAR
AGE: MAJOR OCC: AGRICULTURE
R/O PURADKERI TQ. RATTIHALLI
DIST. HAVERI-581110
7. KARIBASAPPA S/O. MALLAPPA
AGE: MAJOR OCC: AGRICULTURE
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WP No. 107836 of 2023
R/O JIGALI TQ. HARIHAR
DIST. HAVERI-581110
8. DEVARAJ S/O. SHIVAPPA MALLAPUR
AGE: MAJOR OCC: AGRICULTURE
R/O PURADKERI TQ. RATTIHALLI
DIST. HAVERI-581110
9. SIDDESH S/O. TIPPESHAPPA BANNKAR
AGE: MAJOR OCC: AGRICULTURE
R/O PURADKERI TQ. RATTIHALLI
DIST. HAVERI-581110
10. NAGARAJ VERUPAKSHA BEVINHALLI
AGE: MAJOR OCC: AGRICULTURE
R/O PURADKERI TQ. RATTIHALLI
DIST. HAVERI-581110
11. SHIVARAJ S/O. NAGARAJ BEVINHALLI
AGE: MAJOR OCC: AGRICULTURE
R/O PURADKERI TQ. RATTIHALLI
DIST. HAVERI-581110
12. MOHAMADSAB S/O. GAJISAB BADIGERI
AGE: MAJOR OCC: AGRICULTURE
R/O PURADKERI TQ. RATTIHALLI
DIST. HAVERI-581110
13. VANNURSAB S/O. DIVANSAB DIWANJANAVAR
R/O CHIKKABBARI VILLAGE,
TQ: RATTIHALLI, DIST: HAVERI.
...RESPONDENTS
(BY SRI. P.N. MANMOHAN, FOR SRI. MAHESH WODEYAR,
ADVOCATE FOR C/R1;
NOTICE TO R2 TO R13 IS DISPENSED WITH)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT ORDER OR DIRECTION, IN THE NATURE OF
CERTIORARI, QUASHING THE ORDER PASSED BY THE SENIOR
CIVIL JUDGE AND JMFC, HIREKERUR IN M.A. NO.1/2023
DATED 31-10-2023 AS PER ANNEXURE-G AS ILLEGAL,
ARBITRARY, IN THE INTEREST OF JUSTICE AND EQUITY.
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WP No. 107836 of 2023
THIS PETITION, COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners who are the defendants in
O.S.No.89/2021 are before this Court seeking for the
following reliefs:
a) Issue a writ order or direction, in the
nature of certiorari, quashing the order
passed by the Senior Civil Judge and JMFC,
Hirekerur in M.A.No. 1/2023 dated 31-10-
2023 as per Annexure-G as illegal,
arbitrary, in the interest of justice and
equity.
b) Pass such other order/orders as this
Hon'ble court deems fit, in the facts and
circumstances of the case, including an
order as to costs, in the interest of justice
and equity.
2. The brief facts of the case are;
2.1. A suit in O.S.No.89/2021 had been filed by the
respondent No.1 herein, seeking for permanent
injunction restraining the defendants therein
from interfering with the possession of the
plaintiff in the lands covered in various survey
numbers, more particularly Survey No.53/5A of
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Chatanalli Village, Rattihalli Taluk, measuring
146 acres.
2.2. In the said suit, an interlocutory application
under Order XXXIX Rules 1 and 2 of the Code
of Civil Procedure, had been filed, seeking for
an ad-interim injunction.
2.3. The trial Court dismissed the said application
vide order dated 02.12.2022, holding that,
though there is a prima-facie case in favour of
the plaintiff, the balance of convenience is in
favour of the defendants and irreparable loss
and damages would be caused to the
defendants. This on the ground that the
defendants are farmers, who are growing crops
in portions of the lands covered under Survey
No.53/5A.
2.4. An appeal having been filed in M.A.No.1/2023,
the said appeal came to be allowed by way of
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the impugned order dated 31.10.2023,
injuncting the defendants therein from
interfering with the possession of the plaintiff.
2.5. In this regard, the first Appellate Court took
into account the earlier orders passed in
W.P.No.104016/2023 disposed of on
04.10.2023 and the order dated 10.01.2023
passed in W.A.No.100574/2023 and came to
the conclusion that the lands having been
acquired in favour of the plaintiff, possession
having been handed over to the plaintiff, there
being no documents produced by the
defendants to establish their right or title over
any portion of the plaint schedule property,
there is no balance of convenience in favour of
the defendants and/or that no irreparable loss
or damage would be caused to the defendants.
It is aggrieved by the same that the defendants
are before this Court.
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3. Sri.Ashok Harnahalli, learned Senior Counsel
appearing for the defendants would submit that;
3.1. The defendants are in possession of portions of
land in the above survey number. They had
filed various suits seeking for declaration of title
on the basis of adverse possession that the suit
had been transferred to the Land Grabbing
Court and pursuant to the order dated
19.01.2021 passed in W.P.No.47747/2017 and
other connected matters, it stood abated before
the Land Grabbing Court and the suits for
adverse possession stood revived and are
pending.
3.2. When the said suits are pending, the question
of acquisition of the land of which the
defendants are in possession and cultivation
could not have been made without their name
being reflected in the notification and service of
notice on them in terms of Section 28(2) of the
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Karnataka Industrial Areas Development Act,
1966 ('the KIADB Act', for short). No
opportunity having been given to the land
owners, the said acquisition is bad in law and
consequently, the alleged possession which has
been handed over to the plaintiff on lease-cum-
sale agreement, is non-est.
3.3. There is no mahazer which has been drawn
indicating the status of the land and the nature
of the land, which has been allegedly handed
over to the plaintiff, as such, only the
possession letter issued cannot be taken into
consideration to come to a conclusion that the
plaintiff is in possession of the property.
3.4. Once earlier the Deputy Commissioner had
instructed the jurisdictional police to take
necessary action to protect the interest of the
plaintiff, vide its letter dated 03.02.2023, which
had been challenged before this Court in
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W.P.No.104016/2023 and this Court vide order
dated 04.10.2023 had quashed the said
endorsement/direction made by the Deputy
Commissioner to the police authorities, the said
order came to be upheld by the Division Bench
of this Court in W.A.No.100574/2023 vide order
dated 22.11.2023 and as such, by relying upon
the aforesaid judgments, he submits that the
defendants continued to be in possession of the
property, which cannot be disturbed by way of
a permanent injunction and an order of
injunction cannot be sought for when the
plaintiff is not in possession of the property.
3.5. The defendants asserting possessory rights and
their suits being pending, unless their suits are
decided, the question of an order of injunction
being granted in favour of the plaintiff would
not arise. The trial Court has rightly considered
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these aspects and refused an order of
injunction.
3.6. The First Appellate Court has not considered
these aspects in proper prospective and not
appreciated the fact that the defendants are in
possession of the property and merely because
the acquisition notification has been issued and
lease-cum-sale agreement having been entered
into in favour of the plaintiff, would have
established their possession of the property.
3.7. On these grounds he submits that the writ
petition is required to be allowed and the order
passed by the First Appellate Court in
M.A.No.1/2023 dated 31.10.2023 is required to
be set aside and the order passed by the trial
Court in O.S.No.89/2021 dated 02.12.2023 is
required to be confirmed.
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4. Sri. P. N. Manmohan, learned counsel appearing for
the plaintiff/respondent No.1 would submit that;
4.1. The land in Survey No.53/5A had been granted
in favour of Basaveshwara Sahakari Sakkare
Kharkane Niyamitha on 22.04.1999. Pursuant
thereto, the land was converted for industrial
purposes by the jurisdictional Deputy
Commissioner by the order dated 25.06.1999.
The name of the said Basaveshwara Sahakari
Sakkare Kharkane Niyamitha finds mention in
the Record of Rights, notifications under
Sections 3(1) and 1(3) of the KIADB Act was
issued on 28.02.2013 followed by a final
notification under Section 28(4) of the KIADB
Act, on 26.07.2016. A joint measurement was
carried out, a Joint Measurement Report was
prepared on 31.10.2014 and survey sketch
prepared of the property demarcating the land
which was in possession of the Basaveshwar
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Sahakari Sakkare Kharkane Niyamitha, which
has been acquired for G M Sugar and Energy
Limited, i.e., the plaintiff herein.
4.2. In the Joint Measurement Report, the nature of
the land, the person in possession thereof, any
construction and/or agricultural activity being
carried out thereof has also been reflected,
which indicates that, apart from Basaveshwar
Sahakari Sakkare Kharkane Niyamitha, no
other person has any right and there is no
construction or agricultural activities being
carried out thereon.
4.3. Post the final notification which has been
issued, allotment letter came to be issued on
19.11.2020 and possession has been handed
over on 07.12.2020, in pursuance thereof,
lease-cum-sale agreement was executed on
07.12.2020 and thereafter the petitioner having
obtained loan and financial facility of Rs. 515
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crores had put up construction on the said
property and the property has been mortgaged
in favour of the Union Bank of India and as
such, he submits that Union Bank of India has
charge over the entire property.
4.4. The construction having put up, photographs
having been produced at Annexure-R13 series
and by relying upon further photographs which
have been produced, he submits that the
defendants are seeking to interfere with the
possession of the plaintiff necessitating the suit
to be filed.
4.5. By placing reliance on the notification issued by
the State of Karnataka under the KIADB Act,
the allotment letter, possession letter,
photographs he submits that prima-facie case
has been made out of possession in favour of
petitioner. The construction having been put up
of a sugar factory by borrowing 515 crores he
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submits that any interference with the
possession of the plaintiff would cause
irreparable damage to the plaintiff inasmuch as
the work of sugarcane crushing and
manufacture would get adversely effected.
4.6. By relying on the very same photographs he
submits that balance of convenience lies in
favour of the plaintiff inasmuch as the
construction of sugar factory is more or less
complete and only final finishing works and
certain sheds are under process of construction,
which are more in the nature of associated
construction to the factory. On these grounds,
he submits that the order passed by the first
appellate Court in M.A.No.1/2023 need not to
be disturbed by this Court.
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5. Heard Sri. Ashok Haranahalli, learned Senior counsel
appearing for the defendants/petitioners and
Sri. P.N.Manmohan, learned counsel appearing for
respondent No.1/plaintiff and perused the papers.
6. The short question that would arise for consideration
in the present matter is whether the plaintiff has
made out a prima-facie case, balance of convenience
lies in favour of plaintiff and irreparable injury would
be caused to the plaintiff in the event of an
injunction order being refused.
7. Having adverted to the various submissions made by
both the counsels it is clear that by way of gazette
notification issued under Sub-Section (1) of Section 3
and Sub-Section (1) of Section 28 of the KIADB Act,
the lands covered under Sy no 53-5A were proposed
to be acquired way back on 28.02.2013. The
defendants having claimed that they had filed certain
suits claiming adverse possession over the said land,
never chose to challenge the said acquisition
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notification, nor to submit their claim to the State of
Karnataka represented by the Department of
Industries and Commerce or the Karnataka Industrial
Area Development Board (for short 'KIADB'). The
JMC was conducted on 31.10.2014 and the said JMC
does not indicate any agricultural activity being
carried out by any one much less the defendants
herein.
8. The entire area proposed to be acquired for and on
behalf of the plaintiff, has been categorically
surveyed and earmarked in a survey sketch annexed
to the said JMC.
9. The final notification under Sub-Section (4) of
Section 28 of the KIADB was issued on 26.07.2016,
which also has not been challenged by the
defendants, even though they claimed interest in the
property. The acquisition proceedings being
completed, allotment letter was issued on
09.11.2020 for an extent of 176-Acre 4-Guntas,
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possession certificate was issued in respect of the
said land on 07.12.2020. Prior thereto, an allotment
letter had been issued as regards 46-Acres
10-Guntas on 01.10.2010 as regards which the
possession certificate was issued on 29.01.2016. A
lease-cum-sale agreement having been executed in
favour of the plaintiff on 07.12.2020.
10. The defendants have apart from filing the suit for
adverse possession have not initiated any action nor
challenged the acquisition proceedings initiated by
the State till now. It is only after the plaintiff
implemented the project and constructed the factory
after having borrowed Rs. 515 crores that there was
an alleged interference on the part of the defendants
with the possession of the plaintiff as evidenced by
the aforesaid documents. It is in that background,
the suit came to be filed by the plaintiff.
11. The documents referred to hereinabove would
categorically establish the prima-facie case in favour
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of plaintiff establishing their right over the property
though off-course as a lessee under a lease-cum-sale
agreement dated 07.12.2020, possession having
been handed over to the plaintiff by the KIADB, of
which plaintiff is entitled to protect. The acquisition
having been made for establishment of sugar
industry and sugar industry having been set-up, I am
of the considered opinion that, balance of
convenience also lies in favour of plaintiff, not only
on account of investment of such a huge amount, but
also on account of the defendants not having taken
any steps to assert any right, title or interest that
they have by challenging the acquisition notification.
12. The factory having been established and work having
been commenced in the said factory, any
interference thereto, would come in the way of the
functioning of such a factory. Therefore, I am of the
considered opinion that irreparable loss, harm and
injury would be caused to the plaintiff if defendants
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were to interfere with the functioning of the factory,
transport of sugarcane to and from the factory
and/or sugar crushing activities carried out by the
plaintiff and other incidental activities relating to a
sugar factory.
13. Thus, plaintiff having established a prima-facie case
in his favour, balance of convenience being in his
favour, irreparable injury likely to be caused to him
in the event of injunction being refused, the
defendants not having established any right, title or
interest in their favour, they not having exercised
any ownership right in respect of their lands, no
particular document having been produced to
evidence and establish their possession. I am of the
considered opinion that the order of injunction
passed by the First Appellate Court is proper and
correct and does not require to be interfered with.
14. In the event of defendants having any claim as
regards the said land and in the event of they being
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successful in the suit filed by them for adverse
possession, the acquisition having already been
completed, they would be entitled for compensation
as may be fixed in that regard which they could on
being successful in the said suit approach the KIADB
for payment thereof.
15. With these observations, the petition stands disposed
of.
16. It is made clear that the observation of this Court is
only in respect the suit schedule property more
particularly Sy.No.53/5A measuring 150 Acres and
there is no observations made as regards the balance
land in the said survey number which is stated to be
180 acres.
Sd/-
JUDGE
gab - upto para 4.4
AM - para 4.5 to end
CT-mck
