Karnataka High Court
The Assistant Commissioner vs Sri.Bhimappa S/O Timmanna Kademani on 27 February, 2025
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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CCC No. 100349 of 2024
C/W WA No. 100558 of 2024
WA No. 100566 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CIVIL CONTEMPT PETITION NO.100349 OF 2024
C/W
WRIT APPEAL NO.100558 OF 2024 (LA-KIADB)
WRIT APPEAL NO.100566 OF 2024 (LA-RES)
IN CIVIL CONTEMPT PETITION NO.100349/2024:
BETWEEN
1. SRI. MOHAN S/O. NARAYAN KADEMANI,
SINCE DECEASED BY HIS LR'S
1.A SMT. ANJANA W/O. MOHAN KADEMANI
AGE. 58 YEARS, OCC. HOUSEWIFE,
R/O. KADEMANI BUILDING, IIND CROSS,
MALMADDI, DHARWAD.
1.B SMT. SPOORTI W/O. VISHAL DESAI
AGE. 37 YEARS, OCC. HOUSE WIFE,
Digitally signed
by VISHAL R/O. 2906, WING 29, LODHA AMARA,
NINGAPPA
PATTIHAL KOLSHET ROAD, THANE WEST,
Location: High
Court of THANE, MAHARASHTRA-400607.
Karnataka,
Dharwad Bench ...COMPLAINANTS
(BY SRI. M.R. NAIK, SENIOR COUNSEL FOR
SRI. SUNIL S. DESAI, ADVOCATE)
AND
1 . SMT. DIVYA PRABHU
AGE. MAJOR, THE DEPUTY COMMISSIONER,
DHARWAD,
DIST. DHARWAD-580001.
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CCC No. 100349 of 2024
C/W WA No. 100558 of 2024
WA No. 100566 of 2024
2 . SRI. SHALIM HUSEN
AGE. MAJOR, THE ASSISTANT COMMISSIONER,
DHARWAD, DIST. DHARWAD-580001.
3 . SRI. MARUTHI BYKOD,
AGE. MAJOR,
THE SPECIAL LAND ACQUISITION OFFICER,
K.A.D.B., LAKAMANAHALLI,
DHARWAD DIVISION, DHARWAD-580001.
...ACCUSED
4 . THE STATE OF KARNATAKA
R/BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
VIDHAN SOUDHA, BENGALURU-560001.
...PROFORMA RESPONDENT
(BY SRI. BASAVARAJ SABARAD V., SENIOR COUNSEL FOR
SMT. SHARMILA M. PATIL, ADVOCATE FOR A3;
SRI. PRAVEEN K. UPPAR, AGA FOR PROFORMA RESPONDENT;
NOTICE TO A1 & A2 ARE SERVED)
THIS CIVIL CONTEMPT PETITION IS FILED UNDER
SECTIONS 11 AND 12 OF THE CONTEMPT OF COURTS ACT,
1971, R/W. ARTICLE 215 OF CONSTITUTION OF INDIA,1950,
PRAYING TO, A SUITABLE ACTION AGAINST THE ACCUSED BE
TAKEN FOR HAVING VIOLATED THE ORDER PASSED BY THIS
HON'BLE COURT IN WP NO.71377/2012 DATED 26-07-2024 AS
PER ANNEXURE-A AND AS PER THE PROVISIONS OF THE
CONTEMPT OF COURT ACT FOR HAVING DELIBERATELY
IGNORED THE ORDERS PASSED BY THE COURT AND
DISPOSSESSING THE MEMBERS OF COMPLAINANT.
IN WRIT APPEAL NO.100558/2024:
BETWEEN
1. THE SPECIAL LAND ACQUISITION OFFICER
KARNATAKA INDUSTRIAL AREAS DEVELOPMENT
BOARD, LAKKMANHALLI,
DHARWAD DIVISION,
DHARWAD-580001.
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CCC No. 100349 of 2024
C/W WA No. 100558 of 2024
WA No. 100566 of 2024
2. THE KARNATAKA INDUSTRIAL
AREAS DEVELOPMENT BOARD,
BY ITS SECRETARY,14/3,
NRUPATHUNGA ROAD, BANGALORE-1.
...APPELLANTS
(BY SRI. BASAVARAJ SABARAD V., SENIOR COUNSEL FOR
SMT. SHARMILA M. PATIL, ADVOCATE)
AND
1. SRI. BHIMAPPA
S/O TIMMANNA KADEMANI,
AGE. 58 YEARS, OCC. AGRICULTURE,
R/O RADDIGERI STREET, ANNIGERI,
TQ. NAVALGUND, DIST. DHARWAD-582201.
2. SRI. RANGANNA
S/O TIMMANNA KADEMANI
AGE. 55 YEARS, OCC. AGRICULTURE,
R/O RADDIGERI STREET, ANNIGERI,
TQ. NAVALGUND, DIST. DHARWAD-582201.
3. SRI. VENKATESH
S/O TIMMANNA KADEMANI
AGE. 53 YEARS, OCC. AGRICULTURE,
R/O RADDIGERI STREET, ANNIGERI,
TQ. NAVALGUND, DIST. DHARWAD-582201.
4. SRI. ANAND
S/O TIMMANNA KADEMANI
AGE. 45 YEARS, OCC. ADVOCATE,
R/O RADDIGERI STREET, ANNIGERI,
TQ. NAVALGUND, DIST. DHARWAD-582201.
5. JSS MAHAVIDYA PEETH JAGADGURU
SRI. SHIVARATHRI RAJENDRA CIRCLE,
MYSORE-570004.
R/BY ITS SECRETARY C.G. BETASURMATH
S/O. GANGAYYA
AGE. 65 YEARS, OCC. EXECUTIVE SECRETARY,
R/O. JSS MAHAVIDYA PEETH, JAGADGURU
SRI. SHIVARATHRI RAJENDRA CIRCLE,
MYSORE-570004.
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CCC No. 100349 of 2024
C/W WA No. 100558 of 2024
WA No. 100566 of 2024
6. STATE OF KARNATAKA
BY ITS SECRETARY, REVENUE DEPARTMENT,
VIDHAN SOUDHA, BENGALURU 560001.
...RESPONDENTS
(BY SRI. MRUTYUNJAYA S. HALLIKERI, ADV. FOR R1,R3 & R4;
SRI. PRABHULING K. NAVADAGI, SENIOR COUNSEL FOR
SRI. SHIVARAJ S. BALLOLI, ADVOCATE FOR R5)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO, SET ASIDE THE ORDER
DATED 26-07-2024 PASSED BY THE LEARNED SINGLE JUDGE
IN WRIT PETITION NO.60868/2011 BY ALLOWING THIS WRIT
APPEAL & ETC.,
IN WRIT APPEAL NO.100566/2024:
BETWEEN
THE KARNATAKA INDUSTRIAL
AREAS DEVELOPMENT BOARD,
BY ITS SECRETARY, 14/3, NRUPATUNGA ROAD,
BANGALORE-1.
...APPELLANT
(BY SRI. BASAVARAJ SABARAD V., SENIOR COUNSEL FOR
SMT. SHARMILA M. PATIL, ADVOCATE)
AND
1. SRI. NARAYAN S/O BHIMARAO KADEMANI
SINCE DECEASED REPRESENTED BY HIS LRS
1.A SRI. MOHAN S/O NARAYAN KADEMANI
AGE. 64 YEARS, OCC. BUSINESS,
R/O II CROSS, MALMADDI, DHARWAD-58001.
SINCE DECEASED BY LR'S
1.A(i) SMT. ANJANA W/O. MOHAN KADEMANI
AGE. 58 YEARS, OCC. HOUSEWIFE,
R/O. KADEMANI BUILDING, IIND CROSS,
MALMADDI, DHARWAD.
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CCC No. 100349 of 2024
C/W WA No. 100558 of 2024
WA No. 100566 of 2024
1.A(ii) SMT. SPOORTI W/O. VISHAL DESAI
AGE. 37 YEARS, OCC. HOUSE WIFE,
R/O. 2906, WING 29, LODHA AMARA,
KOLSHET ROAD, THANE WEST,
THANE, MAHARASHTRA-400607.
1.B. MAMTA SANTOSH KATAGI
AGE. 60 YEARS OCC: HOUSEHOLD,
R/O C/O RAMAPPA SUNAGAR,
OPP. TO HUBLI RESIDENCY
BAIRIDEVARAKOPPA, HUBBALLI- 580025.
2. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY, REVENUE DEPARTMENT,
VIDHAN SOUDHA, BENGALURU-560001.
3. J.S.S. MAHAVIDYAPEETHA
REPRESENTED BY ITS SECRETARY,
JAGADGURU DR.SHIVARATHRI
RAJENDRA CIRCLE, MYSORE-570004.
SRI S.B. KADEMANI
SINCE DECEASED BY HIS LRS
4.A SRI. DEVARAJ S/O SRINIVAS KADEMANI,
AGE. MAJOR, OCC. BUSINESS,
R/O INDIRA PROJECTS,
BANASHANKARI ARCYAD,
NCM, HUBBALLI-580029.
4.B SRI. YASHWANTH S/O SRINIVAS KADEMANI,
AGE. MAJOR, OCC. BUSINESS,
R/O INDIRA PROJECTS,
BANASHANKARI ARCYAD,
NCM, HUBBALLI-580029.
4.C SRI. RANGANATH S/O SRINIVAS KADEMANI,
AGE. MAJOR, OCC. BUSINESS,
R/O INDIRA PROJECTS,
BANASHANKARI ARCYAD,
NCM, HUBBALLI-580029.
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CCC No. 100349 of 2024
C/W WA No. 100558 of 2024
WA No. 100566 of 2024
5. SRI. R.B. KADEMANI
AGE: MAJOR, OCC: AGRICULTURE,
R/O ANNIGERI, TQ. NAVALGUND,
DIST: DHARWAD-582201.
6. SRI T.B. KADEMANI
AGE: MAJOR, OCC: AGRICULTURE,
R/O ANNIGERI, TQ. NAVALGUND,
DIST: DHARWAD-582201.
...RESPONDENTS
(BY SRI. M.R. NAIK, SENIOR COUNSEL FOR
SRI. SUNIL S. DESAI, ADVOCATE FOR R1(A)(i), R1(A)(ii) & R1(B);
SRI. PRABHULING K. NAVADAGI, SENIOR COUNSEL FOR
SRI. SHIVARAJ S. BALLOLI, ADVOCATE FOR R3;
SRI. PRAVEEN K. UPPAR, AGA FOR R3)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO, SET ASIDE THE ORDER
DATED 26.07.2024 PASSED BY THE LEARNED SINGLE JUDGE
IN WRIT PETITION NO.71377/2012 BY ALLOWING THIS WRIT
APPEAL & ETC.,
THE CONTEMPT PETITION AND WRIT APPEALS, HAVING
BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, B.M.SHYAM PRASAD, J., PRONOUNCED
THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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CCC No. 100349 of 2024
C/W WA No. 100558 of 2024
WA No. 100566 of 2024
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD)
The Karnataka Industrial Areas Development Board
[M/s KIADB] is in appeal calling in question the common
order dated 26.07.2024 in W.P. Nos.71377/2012 and
60868/2011. The writ petition in W.P. No.71377/2012 is by
Sri. Narayan S/o. Bhimarao Kademani, and the writ petition
in W.P. No.60868/2011 is by the legal heirs of his brother,
Sri. Timmappa @ Timmanna S/o. Bhimarao Kademani. Sri.
Narayan S/o. Bhimarao Kademani has died during the
pendency of the petition in W.P. No.71377/2012 and his
legal representatives have come on record.
2. These petitions are filed calling in question
the final notification dated 06.02.2008 issued under Section
28[4] of the Karnataka Industrial Area Development Act [for
short, 'the KIAD Act']. This notification, which is hereafter
referred to as 'the impugned final notification', is issued to
bring about a culmination of the acquisition proceedings
begun with the notification dated 10.02.1981 under Section
28[1] of the KIAD Act. This notification dated 05.11.1981 is
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issued for more than 200 acres in different villages,
including the land in Sy. No.127, measuring 27 acres 4
guntas, of Kelageri village, Dharwad Taluk and District [the
subject property] for the purpose of establishing an
Industrial Area. However, the impugned final notification is
issued for acquisition of just the subject property for the
benefit of M/s. J.S.S. Mahavidyapeetha [the fourth
respondent in the writ petitions]. The parties, for reasons of
convenience, are referred to as per their ranking in the writ
petitions with the appellant being referred to as M/s. KIADB.
3. The petitioners and the fourth respondent
have filed similar Joint Memos in the writ proceedings
stating amongst others that [a] during the pendency of the
writ petitions the suit in O.S. No.61/2005 [a partition suit] is
decreed declaring that Sri. Narayan S/o. Bhimarao
Kademani and his three brothers are entitled to 1/4th share
in the compensation payable for the subject property [as
also other properties mentioned in the plaint], [b] the
petitioners and the fourth respondent do not have any
objections for quashing the impugned final notification
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insofar as an extent of 13 acres 22 guntas in the subject
property demarcated according to the sketch enclosed to the
Memo/s, [c] the petitioners, who will take 6 acres and 36
guntas per stripes, will be responsible to answer the claims,
if any, by the other family members and the fourth
respondent's interest insofar as the remaining extent of 13
acres 22 guntas that will continue to vest with the State
Government for the benefit of the fourth respondent as
contemplated under KIAD Act.
4. Admittedly, M/s. KIADB has not agreed to
be part of these Memos, and with the petitioners and the
fourth respondent being steadfast on the terms of the
settlement as aforesaid and with M/s. KIADB proposing to
contest the challenge to the impugned final notification, the
writ Court has heard the learned senior counsel / counsels
for the parties and disposed of the petitions in the following
terms.
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[i] The impugned final notification1 is quashed to the
extent of 13 acres and 22 guntas in the subject
property i.e., 6 acres 31 guntas for the benefit of
each set of petitioners as demarcated in the sketch
annexed to the Joint Memo /s and this impugned
final notification is confirmed for the remaining
extent of 13 acres 22 guntas.
[ii] The Revenue Authorities are directed to delete the
name of M/s. KIADB to the extents to which the
impugned final notification is quashed within four
weeks from the date of receipt of a certified copy of
the order and to mutate the petitioners' names for
the concerned extents.
5. The writ Court has examined the merits of
the impugned final notification answering questions such as
[i] whether this notification is issued in compliance with the
mandatory provisions of Section 28[3] of KIAD Act, 6 acres
31 guntas 6 acres 31 guntas, [ii] whether a final notification
1 The writ Court in the operative portion has referred to the final notification
as being dated 30.10.1981, but it is affirmed before this Court that the
impugned Final Notification is dated 06.02.2008 and the initial
notification is dated 30.10.1981.
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under Section 28[4] of KIAD Act can be issued after the
expiry of 27 years when no time limit is prescribed for the
conclusion of the acquisition proceedings, [iii] whether
notification under Section 28[4] of the KIAD Act can be
issued for the sole purpose of providing amenity to an
educational institution deviating from the purpose for which
the initial notification is issued under Section 29[1], [iv]
whether the impugned final notification is issued in
colourable exercise of power and [v] whether the writ
petitions are to be dismissed on the ground of delay and
latches. The writ Court has answered each of the afore
questions in favour of the petitioners while also accepting
the Memos filed by the petitioners and the fourth
respondent.
6. This Court has heard on the petitioners'
preliminary objection on the maintainability of these intra-
court appeals in the light of the following question.
Whether this Court must hold that these intra-
court appeals are maintainable if the land losers
[the petitioners] and the beneficiary / allottee [the
fourth respondent] unequivocally state that, to
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put quietus to all dispute, they have agreed to
own [use] the land allotted in certain percentages
without howsoever prejudicing the statutory
requirements and M/s KIADB's interest and
when such agreement is accepted by the writ
Court under Article 226 of the Constitution of
India.
This Court must now record that the following have been
emphasized as the indisputable facts and circumstances,
and that the answer to the afore question must be in the
light of these facts and circumstances. This Court has
informed the learned Senior Counsel and learned counsel
that if the answer to the afore question is in the negative i.e.,
the intra- court appeals are not maintainable, these appeals
will have to be admitted for final disposal with the necessary
interim arrangement to protect mutual interests; otherwise,
the appeals must be rejected.
A brief statement of the facts and circumstances
presented as indisputable:
7. M/s. KIADB has issued notifications under
Section 28[1] and Section 28[4] of the KIAD Act for
acquisition of about 27 acres 4 guntas on 10.02.1981 and
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05.11.1981 respectively for the purposes of establishing an
Industrial Area simultaneously with the notification dated
10.02.1981 under Section 3[1] of the KIAD Act. However,
Sri. Narayan S/o. Bhimarao Kademani and his brother Sri.
Srinivas S/o. Bhimarao Kademani have filed writ petitions in
W.P. Nos.6448-6449/1982 calling in question these
notifications insofar as the subject property. They have
arrayed their two brothers [Sri. Ramachandra S/o. Bhimarao
Kademani and Sri. Timmappa S/o. Bhimarao Kademani] as
the third and the fourth respondents. The present
petitioners claim under Sri. Narayan S/o. Bhimarao
Kademani and Sri. Timmappa S/o. Bhimarao Kademani. In
the memorandum of this petition, these two brothers have
referred to an oral division of the subject property / and
other properties and the continuation of the revenue entries
for the subject property in favour of Sri. Srinivas S/o.
Bhimarao Kademani as he is the eldest brother.
7.1 The writ Court has allowed the writ petition
in W.P. Nos.6448-6449/1982 by the order dated 26.07.1984
quashing the final notification dated 05.11.1981 on the
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ground of violation of the principles of natural justice but
with liberty to M/s. KIADB / other respondents to continue
with the acquisition proceedings subject to compliance with
the requirements under Section 28[3] of the KIAD Act. The
writ Court has observed that because the notification did not
mention the names of the petitioners therein, there is
violation of principles of natural justice. After this Court's
order dated 26.07.1984 objections have been filed on
06.12.1985/04.01.1985 on why the acquisition proceedings
must not be continued. M/s. KIADB on 11.07.1989 [in its
143rd Board Meeting] has resolved to give up the subject
property from acquisition.
7.2 Sri. Ramachandra S/o. Bhimarao
Kademani and Sri. Timmappa S/o. Bhimarao Kademani [the
third and fourth respondents in W.P. Nos.4668-4669/1982]
have commenced the suit in O.S. No.61/2005 for partition of
different immovable properties, and the subject property is
listed in the plaint as Schedule 'G' property. The Special
Deputy Commissioner, Dharwad has addressed the
Communication dated 25.11.2006 to the Special Land
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Acquisition Officer, M/s. KIADB Zonal Office, Dharwad
referring to a communication by the fourth respondent on
06.11.2006 and informing that notification can be issued for
acquisition of the subject property if the landowners agree.
On 16.01.2007, Sri Srinivas Rao's sons have filed consent
for acquisition of the subject property and to receive
compensation for the same.
7.3 The records produced demonstrate that
M/s KIADB has issued notice to Sri. Narayan S/o. Bhimarao
Kademani in the month of September 2007 but only to be
noted that he is not residing at the address available. The
proceedings under Section 28[3] of the KIAD Act, saved in
terms of the order dated 26.07.1984, is concluded by the
Special Land Acquisition Officer, M/s. KIADB, Dharwad vide
order dated 06.10.2007 referring to the consent filed by the
sons of Sri. Srinivas S/o. Bhimarao Kademani and opining
that there are no objections for the culmination of the
acquisition proceedings. Consequentially the impugned final
notification is issued. The family members of Sri. Srinivas
S/o. Bhimarao Kademani have received compensation in a
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sum of Rs.42,91,628/- [Rs.14,30,542/- and Rs.28,61,086/-]
as compensation under Section 29[2] of the KIAD Act.
7.4 The suit in O.S. No.61/20052 is decreed on
contest by the judgment and decree dated 22.12.2021. The
civil Court, opining that in view of the Apex Court decision
in Commissioner, BDA vs. K.S.Narayan3 it cannot decide
the legality of the acquisition proceedings, has observed that
one of the sons of Sri. Srinivas S/o. Bhimarao Kademani has
received compensation on behalf of his branch. The civil
Court's finding in this regard is on an Issue framed on
whether this person proves that the acquisition of the
subject property is not binding on him. The civil Court has
ultimately decreed the suit holding that the branches of the
four brothers will be entitled per stripes equally for the
compensation received by the family members of Sri.
Srinivas S/o Bhimarao Kademani. The petitioners have
called the civil Court's judgment and decree in R.F.A.
No.100191/2023, and this appeal is pending consideration.
2 M/s. KIADB and the fourth respondent are parties to this suit as the sixth
and the thirteenth defendants respectively.
3 [2006] 8 SCC 336
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The details of Contempt Proceedings in
CCC No. 100349/2024:
8. The petitioners in W.P. Nos.71377/2012
have filed complaint under Article 215 of the Constitution of
India and the relevant provisions of the Contempt of Courts
Act, 1971 for initiation of proceedings against the Revenue
Authorities and the Special Land Acquisition Officer, M/s.
KIADB. These petitioners have alleged that the writ Court's
direction for changes in the revenue entries are not complied
with deliberately. This Court opines that if the petitioners
succeed on the question framed for consideration, these
contempt proceedings will have to be closed with appropriate
liberty.
9. This Court, before referring to the respective
submissions for a decision on the question framed, must
record that the petitioners and the fourth respondent are
categorical that they standby the terms of the Joint Memo/s
and that they acknowledge that acting upon the terms of the
Memos they are in possession of the respective extents in
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the subject property after demarcation by metes and
bounds. Sri. Basavaraj V. Sabarad, the learned senior
counsel for M/s. KIADB, has canvassed to persuade this
Court to opine that the intra-court appeals are maintainable
notwithstanding the preliminary objections. Sri.
Madhusudhan R. Naik, a learned senior counsel, has led for
the petitioners with Sri. Sunil S. Desai and Sri. Mrutyunjay
S. Hallikeri, the learned counsels on record for the
petitioners, completing the submissions on behalf of the
petitioners. Sri. Prabhuling Navadgi, a learned senior
counsel, has led for the fourth respondent.
Sri. Basavaraj V. Sabarad's submissions:
10. The writ Court has decided on the merits of
the impugned final notification under Section 28[4] of the
KIAD Act on grounds such as that the mandatory
requirements of Section 28[3] of this Act are not complied
with and that M/s. KIADB could not have issued this
notification after 27 years. If the intra-court appeals are
disposed of on the ground that this Court will not interfere
with the writ Court's order because of a settlement between
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the petitioners [the land owners] and the fourth respondent
[a lessee who cannot claim title to the property beyond the
applicable regulations], the findings against M/s. KIADB's
decision will be confirmed denying the locus to challenge
such findings. M/s. KIADB's locus to challenge such findings
cannot be in dispute.
10.1 The fourth respondent is an allottee who is
entitled to leasehold rights but subject to the relevant
Regulations, M/s. KIADB is the lessor. The petitioners / the
fourth respondent cannot dispute that the subject property,
with the publication of the notification under Section 28[4]
of the KIAD Act, will vest with the State Government free of
all encumbrances and the State Government, after this
notification, hands over possession of the concerned
property to M/s. KIADB as is envisaged under 28[8] of the
KIAD Act. In this scheme of things there cannot be any
settlement between those whose lands are acquired and the
beneficiary excluding M/s. KIADB. In the present case, M/s.
KIADB has not agreed to the settlement between the
petitioners and the fourth respondent, and in fact, neither
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the petitioners nor the fourth respondent have served even a
copy of the Memos.
10.2 The petitioners have invoked jurisdiction
under Article 226 of the Constitution of India to call in
question the impugned final notification to avail a public
remedy against the State's decision to acquire the subject
property at the instance of M/s. KIADB. The settlement
between the petitioners and the fourth respondent
tantamount to a settlement of a private claim, and it is
settled that an agreement to adjust private claims cannot be
accepted in writ proceedings. This would be the indisputable
settled position in view of the decision of the Apex Court in
Dwarka Prasad Agarwal (D) by LRs. and another v. B.D.
Agarwal and others4. M/s. KIADB, therefore, cannot be
denied the locus to demonstrate that the writ Court has
erred quashing the impugned final notification.
10.3 The civil Court in O.S. No.06/2005 has
decreed the suit declaring that each of the sons of the
4 [2003] 6 SCC 230
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propositus, Sri. Bhimarao Kademani, will only be entitled to
1/4th share in the compensation which is already received
by the sons of Sri. Srinivas S/o. Bhimarao Kademani. The
resultant position will be that the petitioners will have to
work out their remedies as against the other family
members, subject to the decision in the pending appeal in
R.F.A. No.100191/2023.
10.4 Further, the sons of Sri. Narayan S/o.
Bhimarao Kademani, or the other members of the family, are
not arrayed as parties to the petitions and a settlement is
arrived between the petitioners, who in the aforesaid
circumstances can only assert a limited interest, and the
fourth respondent. M/s. KIADB can in the present appeals
demonstrate that the agreement is incomplete and not
amongst all the concerned members of the family and
therefore the writ Court could not have accepted the Joint
Memo/s to hold that a part of the impugned notification
must be quashed.
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10.5 The writ Court has interfered with the
impugned final notification opining that the same is in
colourable exercise of power. If this notification is vitiated
because it is in colourable exercise of power, the entire
notification will have to fail. Despite the conclusion as
aforesaid, if this notification is saved only because of a
settlement between the petitioners and the fourth
respondent, there will be an incongruity which will be
impermissible in law. M/s. KIADB must have locus to
demonstrate that the settlement is an impermissible
incongruity and that it is entitled to protect its interest in
the subject property.
10.6 If the question framed for consideration is
answered against M/s. KIADB, it will not only be denied the
opportunity to demonstrate the above but also the
opportunity to point out that the writ Court could not have
relied upon the decision in H.N. Shivanna and others v.
State of Karnataka5 as that decision has been overruled
5 AIR 2013 KAR 163
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by a decision in W.A. No.1451/20186 which is decided on
02.03.2021.
Sri. Madhusudhan R. Naik / Sunil S. Desai / Mrutyunjay S.
Hallikeri's submissions:
11. The writ Court has exercised its
discretionary jurisdiction under Article 226 of the
Constitution of India to bring a closure to the dispute that
has subsisted over four decades commencing from 1981
with the petitioners and their family members [except the
sons of Sri. Srinivas S/o. Bhimarao Kademani who have
without the consent of the family members accepted
compensation] agitating against the decision to acquire the
subject property. Sri. Srinivas S/o. Bhimarao Kademani in
the writ petition in W.P. Nos.4468-4469/1982 has admitted
that his brother, Sri. Narayan S/o. Bhimarao Kademani, will
be entitled to the subject property. Notwithstanding this,
consent is filed by his sons excluding Sri Sri. Narayan S/o.
Bhimarao Kademani.
6 This decision is affirmed in a decision by a larger Bench
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11.1 The petitioners in W.P. No.713177/2012
claim under Sri. Narayan S/o. Bhimarao Kademani. They
have agreed that the legal representatives of another brother
Sri. Timmappa S/o. Bhimarao Kademani [the petitioners in
WP No. 60868/2011] will be entitled to an extent of 6 acres
31 guntas in the subject property. Both these petitioners
further agree that, between them, all claims by the other
family members will be settled. If the petitioners have thus
settled not only the inter se dispute amongst the family
members insofar as the subject property as also the dispute
with the fourth respondent, the writ Court's decision to
accept the Joint Memos filed by the petitioners and the
fourth respondent is just and reasonable. Especially when it
is not disputed that the impugned final notification is only
for the benefit of the fourth respondent [and at its costs] and
the fourth respondent giving up all claims against M/s.
KIADB for the amounts deposited towards cost of this entire
subject property and reiterating that it shall, subject to the
reduced extent, comply with all the applicable regulations.
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11.2 This Court, in view of these circumstances,
and the other circumstances emphasized in support of the
question framed for consideration, cannot opine that the
writ Court's decision to accept the Memos is perverse.
Unless a decision is shown to be perverse, the appellate
Bench in an intra-court appeal will not interfere with the
findings merely because another view is possible. This is
settled with the decision of the Apex Court in Management
of Narendra Company Private Limited v. Workman of
Narendra and Company7.
11.3 The writ petitions in W.P. Nos.4468-
4469/1982 are allowed on the specific ground that the
petitioners therein [Sri. Srinivas S/o. Bhimarao Kademani
and Sri. Narayan S/o. Bhimarao Kademani] were not heard.
M/s. KIADB is reserved with liberty to commence the
proceedings from the stage of Section 28[4] of the KIAD Act,
which is to extend an opportunity to Sri. Narayan S/o.
Bhimarao Kademani. However, this opportunity of being
7 [2016] 3 SCC 340
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heard is not extended to him, and this is borne out by the
following circumstances:
[a] Sri. Narayan S/o. Bhimarao Kademani has filed
objections to the proposal to continue with the
acquisition of the subject property after the
orders in the writ Court WP No.6448-6449/1982,
but no steps were taken thereafter for almost a
period of five years.
[b] On 11.07.1989, M/s. KIADB's Board of in its 143rd
meeting has taken a decision to give up the
acquisition of the subject property as also certain
other properties. The inevitable conclusion from this
decision is that M/s. KIADB has decided to abandon
the proposal to acquire the subject property.
[c] The family members have commenced the suit in O.S.
No.6/2005 for partition of the different properties
including the subject property, and it is after the
commencement of suit, because of a requisition by
the fourth respondent and a consent given by the
legal heirs of one of the four brothers, the acquisition
proceeding is restarted. The civil Court, even as on
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22.12.2005, had granted temporary injunction
restraining the parties from creating third party
interest in the subject property.
[d] The acquisition proceeding is concluded based on a
consent given by one set of persons and beyond the
object for which the initial notification was issued in
the year 1981. M/s. KIADB cannot draw any strength
from the conclusions of the civil Court in O.S.
No.61/2005 inasmuch as the impugned notification
is during the pendency of the suit and the petitioners'
grievance against the impugned notification can only
be considered under Section 226 of the Constitution
of India. The petitioners have invoked such
jurisdiction with the civil Court's conclusions in this
regard.
11.4 M/s. KIADB is selective in opposing the
settlement on ground that the concerned land owners and
the beneficiary cannot settle the dispute. M/s. KIADB has
raised similar ground in another intra-court appeal in W A
No.2883/2019 when the land looser and the beneficiary
[similarly placed as in this case because the allotment to the
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beneficiary was under a single window arrangement] tried to
settle the dispute over the decision to acquire the concerned
land. A co-ordinate Bench of this Court has disposed of this
writ appeal on 12.07.2022 observing that no prejudice would
be caused to M/s. KIADB if the beneficiary and the land
loser agree upon adjustment of the land acquired with some
relaxation to the land loser. M/s. KIADB has accepted this
order without a challenge.
11.5 M/s. KIADB has also consented to a
settlement between a land loser and the beneficiary in set of
writ petitions in W.P. Nos.31325-31327/2015 and
connected matters, which are disposed of on 23.04.2018. In
these set of writ petitions, an application is filed by the land
loser and the beneficiary for adjustment of the extents, and
neither the State Government nor M/s. KIADB opposed this
settlement. In similar circumstances, M/s. KIADB has either
agreed for a settlement between the land losers and the
beneficiary when the acquisition is solely for the benefit of
the beneficiary concerned or has accepted the decision by
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Courts to recognize the settlement notwithstanding the
objections. This is established by a series of orders that are
placed on record as part of additional compilation during the
hearing.
Sri Prabhuling Navadagi's submissions:
12. The impugned final notification is issued
only for the fourth respondent's benefit because this
respondent represented that it required the subject property
for the better utilization of the land otherwise allotted by
M/s KIADB. The fourth respondent could bring about
consent in this regard only by one of the admitted owners of
the subject property, but the petitioners [who also claimed
interest in the subject property] and the fourth respondent
have come together to agree upon a settlement.
12.1 If M/s KIADB succeeds in its grievance
against the discretion exercised by the writ Court in
accepting this settlement/ agreement, there would be an
incongruity. If M/s KIADB tries to enforce the acquisition
which is for the fourth respondent's benefit, the land owners
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[the petitioners] will perhaps successfully contend that the
subject land is acquired for the fourth respondent's benefit
who has agreed to confine the use to only 13 acres and 22
guntas and that this would only mean that the acquisition is
being sustained for the benefit of another contrary to the
terms of the impugned final notification.
12.2 The culmination of the acquisition of the
subject property is not typically as is contemplated under
Section 28 of the KIADB Act. The provisions of Section 28 of
this Act enable compulsory acquisition once an area is
declared as an Industrial Area under Section 3 of the Act
with a possible consent award under Section 29 of the Act.
M/s KIADB could, given certain notifications issued by the
State Government under relevant statutory provisions,
initiate acquisition proceedings based on consent by a
substantial percentage of the owners, but that would be a
different set of circumstances.
12.3 This Court is examining whether intra court
appeal against acceptance of the settlement under Article
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226 of the Constitution can be maintained, and as is
reiterated by the Apex Court in M.S. Sanjay Vs. Indian
Bank & Others8 the administration of law must be
tempered with equity and if a situation demands applying
equity the High Courts would be failing in its duty if it does
not notice equitable consideration and mould the final order
in exercise of its extraordinary jurisdiction and that any
other approach would render the High Court a normal court
of appeal which it is not.
Sri Basavraj Sabard's Reply:
13. Sri Basavaraj S. Sabarad, in reply, proposes
to reiterate his submissions as is recorded at the first
instance and also to distinguish the decisions relied upon by
Sri Sunil S. Desai contending that those decisions were only
when the allottee and the land owner agreed upon a minor
arrangement with the allottee giving up smaller extents 5-9
guntas in favour of the land owners or when the acquisitions
had not been completed. The learned senior counsel
emphasizes that in the present case the acquisition is
8 Civil Appeal No. 1188/2025, reported in 2025 SCC Online SC 368.
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completed and award is drawn but the writ petition is filed
after a lapse of over four years.
Reasoning and Conclusion:
14. This Court must observe that the salient
principle that the High Court jurisdiction under Article 226
is an extraordinary jurisdiction which is plenary in nature
and the High Courts will, while administering law, temper its
decision with equitable principles to ensure that a particular
formulation prevails given the realities of a factual situation
is not under any serious challenge. Similarly, the other
proposition that in intra court appeals, a writ Court's finding
will not be interfered with unless some perversion or
illegality is demonstrated is also not in serious challenge. In
these regards the reference could be made to the decisions of
the Apex Court in S. Sanjay Vs. Indian Bank & Others
and Management of Narendra Company Private Limited
v. Workman of Narendra and Company supra.
14.1 If the maintainability of these intra Court
appeals is to be examined with these two salient
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propositions as bulwarks, it will be incumbent upon M/s
KIADB to demonstrate that the writ Court's order accepting
the settlement, while making certain observations on the
merits of the impugned final notification it is either
inequitable or perverse. If M/s KIADB cannot demonstrate
these, this Court will not be persuaded to hold that these
intra court appeals will be maintainable. The question
framed therefore will have to be examined both in the factual
matrix and the scheme of the KIAD Act.
14.2 On factual matrix, the relevant
circumstances are either admitted or undisputed. The first
notification under Section 28(1) of KIAD Act is issued on
10.02.1981 for a much larger extent, but the subject
property is taken out of the fold of the acquisition because of
the orders of the writ Court in W.P. Nos.4668-4669/1982.
The writ Court has interdicted the final notification dated
05.11.1981 under Section 28(4) of KIAD Act but with liberty
to M/s KIADB to hear the petitioners therein [Sri Narayan
S/o Bheemarao Kademani and Sri Srinivas S/o Bheemarao
Kademani]. These two brothers have filed their objections in
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terms of this liberty, and M/s KIADB's decision on
11.07.1989 [in its 143rd Board Meeting] is to give up the
acquisition of the subject property.
14.3 If these make the first set of circumstances
which constitute the overall factual matrix, the next set of
circumstances are that two other brothers [Sri Ramachandra
S/o Bheemarao Kademani and Sri Timmappa S/o Bheemarao
Kademani] have commenced the suit for partition in O.S. No.
61/2005, and it is in the initial days of the suit that some of
the legal representatives of Sri Srinivas Bheemarao
Kademani [one of the four brothers] have filed consent
resulting in the Special Deputy Commissioner, Dharwad
writing on 25.11.2006 to the SLAO, M/s KIADB Zonal Office,
Dharwad for completion of the acquisition notification. After
this communication, notice is issued to Sri Narayan
Kademani S/o Bheemarao Kademani, but without
completion of due service of notice. The impugned final
notification is issued with only the legal representatives of
Sri Srinivas S/o Bheemarao Kademani, receiving
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compensation as is contemplated under Section 29(2) of
KIAD Act.
14.4 The final set of circumstances which make
up the factual matrix is that the family members have
continued the suit in O.S. No. 61/2005 for their rights in the
subject property. When the suit is pending consideration,
the present set of writ petitions are filed calling in question
the impugned final notification. The suit in O.S. No.
61/2005 is decreed holding that the subject property must
be partitioned by metes and bounds in four equal parts but
because the impugned final notification is issued, the
compensation payable must be so apportioned. It is in this
flux of circumstances that the petitioners have agreed with
the fourth respondent [the identified beneficiary of the
impugned final notification] that each of their families per
stripes will be entitled to 6 acres and 36 guntas of the
subject property and that the fourth respondent will be
entitled to the remaining extent of 13 acres 22 guntas.
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14.5 Crucially if the petitioners agree that they
will be answerable to answer all claims from the family
members to protect the fourth respondent's interest in the
extent of 13 acres 22 guntas demarcated for its use, the
fourth respondent has stated that subject to this reduction
in the area it shall comply with all the regulations and not
raise a claim against M/s KIADB for the amount paid as
value of the total extent. The petitioners and the fourth
respondent, as is obvious from the submissions presented
on their behalf, remain steadfast on these terms. This Court
cannot infer any inequity in the settlement that is agreed
between the petitioners and the fourth respondent,
especially when incongruity as emphasized on behalf of the
fourth respondent [as referred to in para 12.1 supra] is
considered. Therefore the first limb of the consideration
must be answered in favour of the petitioners and the fourth
respondent.
14.6 Indubitably when the final notification is
issued under Section 28(4) of the KIAD Act, the subject
property vests with the State Government by operation of
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law as is envisaged under sub section (5) of Section 28.
Thereafter, the State Government transfers the subject
property to M/s KIADB for the purpose for which the subject
land is acquired. M/s KIADB, subject to its regulations allots
the respective portions to identify beneficiaries and an
allottee is initially entitled only for lease cum sale agreement
subject to resumption. The question of consent of the land
owner would be crucial only in the matter of payment of
compensation, unless the acquisition itself is based on
consent. This in essence is the scheme under KIAD Act
/notification issued relevant for the present purposes.
14.7 In the present case the acquisition
proceedings are commenced in the year 1981, despite an
intervening decision/ resolution to give up the acquisition of
the subject property in the year 1989 after intervention in
W.P. No. 4668-4669/1992, the impugned final notification is
issued and that to based on a consent by one set of family
members during the pendency of a civil suit where one of the
Issue framed is whether the subject property ought to be
divided amongst the family members. This Court, in the
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peculiar circumstances of the case, must opine that an
element of consent for acquisition [as against the consent for
award] by one set of family members is introduced in the
year 2007 to resurrect the acquisition proceeding which was
resolved to be given up in 1989.
14.8 Further, with both the petitioners and the
fourth respondent, being steadfast on the terms of the
settlement and also stating that they have by now
demarcated the subject property in terms of the Memos, this
Court is not persuaded to opine that the scheme under the
KIAD Act is violated to render the said agreement illegal. In
this context this Court must also observe, as is emphasized
by Sri Sunil S. Desai [the learned counsel for the petitioners]
that M/s KIADB has also accepted inter-se settlement
between certain land owner/s and allottees in the past and
it is not confined to smaller extents alone. In this regard a
reference can be made to the orders of a Coordinate bench of
this Court in W.A. No. 2883/2019 which is disposed of on
12.07.2022. As such, the second limb of the consideration
must also be answered in favor of the petitioner/ fourth
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respondent. The final outcome of these two conclusions is
that this Court must answer the question framed for
consideration opining that the intra Court appeals are not
maintainable.
14.9 The contentions on M/s KIADB's locus and
the writ Court's observation otherwise on merits, in view of
the overarching impact of the salient principles and the
circumstances discussed, are not overwhelming to hold that
the writ appeals are maintainable. One of M/s KIADB's
grievance is that it's learned counsel on record in the writ
petition was not even furnished with the copy of the memos
filed much less heard on the terms of settlement. This Court,
in the overall context discussed above and that the memos
are admittedly filed in the open Court, must opine that this
also cannot be fatal and disturb the settlement. In view of
the current disposal of the writ appeals, the respondents
must be granted reasonable time to comply with the writ
Court's directions to delete the name of M/s KIADB to the
extents for which the notification dated 06.02.2008 is
quashed. As such, the following:
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ORDER
[a] The writ Appeals in No. 100558/2024 and
100566/2024 are rejected.
[b] The contempt proceedings in CCC
100349/2024 are closed directing the
respondents in such proceedings to implement
the writ Court's direction within 8 [eight]
weeks from the date of receipt of a certified
copy of this order reserving liberty to the
petitioners to file a certified copy of this order
within [4] four weeks from the date of receipt
thereof.
[c] It is needless to observe that the petitioners
will be at liberty to seek revival of this
complaint CCC No. 100349/2024 if there is
any failure to comply with the direction.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
RSH/BVV CT:VP
