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IN THE HIGH COURT OF AT BANGALORE

DATED THIS THE 04 Th DAY OF MARCH 2014

BEFORE:

THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION Nos.41504-41505 AND 41732-41744 OF 2010 (LA-KIADB)

BETWEEN:

1. Sri. Chetan P Tayal, Son of Late Nandkishore Tayal, Aged 56 years, Residing at No.E-2, Manytha Park, Outer Ring Road, Near Hebbal Flyover, Bangalore.

2. Sri. S.K. Srinivasa, Son of Kempaiah, Aged about 37 years, Residing at No.84, A & B Block, Ramakrishna Nagar, .

3. Sri. K. Ramesh, Aged about 40 years, Son of K.N.Krishna Reddy, Kachanayakanahalli Village, Anekal Taluk, 2

Bangalore Rural District. [writ petition stands dismissed As against petitioner no.3 Vide order dated 18.3.2011]

2 and 3 are represented by their Power of Attorney Holder, Sri. Chetan P Tayal, First Petitioner.

4. Sri. Mahesh Kumar Tayal, Son of Late Nandikishore Tayal, Aged 44 years, Residing at No.39/1-1, 10 th Cross, Chorul Palya, Vijayanagar, Bangalore – 560 023. …PETITIONERS

(By Shri. V. Lakshminarayana, Advocate for Petitioners 1, 2 and 4 Writ petition stands dismissed as against petitioner no.3 vide order dated 18.3.2011)

AND:

1. State of Karnataka, Represented by the Principal Secretary to Revenue Department, Vidhana Soudha, Dr. Ambedkar Road, Bangalore – 560 001.

2. The Deputy Commissioner, Bangalore Urban District, Bagnalore. 3

3. The Karnataka Industrial Area Development Board, Bangalore, Represented by its Chairman.

4. The Special Land Acquisition Officer, Karnataka Industrial Area Development Board, Bangalore.

5. State of Karnataka , Represented by Principal Secretary, Industries and Commerce Department, Vikasa Soudha, Bangalore – 560 001.

6. State of Karnataka, Represented by Principal Secretary, Urban Development Department, M.S.Buildings, Bangalore.

7. Development Officer, Karanataka Industrial Area Development Board, Mysore.

8. The Director, Town Planning Department, M.S.Buildings, Bangalore – 560 001.

9. Karnataka Housing Board, Represented by its Commissioner, Kavery Bhavan, Bangalore – 560 009. 4

…RESPONDENTS

(By Shri. D. Nagaraj, Additional Government Advocate for Respondent Nos. 1, 2, 5, 6 and 8 Shri. B.B. Patil, Advocate for Respondent Nos. 3, 4 and 7 Shri. B.V. Sabarad, Advocate for Respondent No.9 )

***** These Writ Petitions filed under Articles 226 and 227 of the Constitution of , praying to quash the entire acquisition proceedings in pursuance of the notifications under Section 3(1), 1(3) and 28(1) dated 18.3.2006 produced at Annexure-D, D1 and D2 and notification under Section 28(4) dated 6.9.2010 published in the official gazette on 7.9.2010 vide Annexure-A2, and notification under Section 28 (6) dated 12.10.2010 in No.16/728, in respect of Sy.No.263 vide Annexure-L dated 12.10.2010 in No.18 in respect of Sy.No.265 vide Annexure-L1 dated 12.10.2010 in No.15 in respect of Sy.No.260 vide Annexure-L2 dated 12.10.2010 in No.14 in respect of Sy.No.259 vide Annexure-L3 dated 12.10.2010 in No.13 in respect of Sy.No.206 vide Annexure-L4 dated 12.10.2010 in No.6 in respect Sy.No.130 vide Annexure-L5 dated 12.10.2010 in No.1 in respect of Sy.No.82/1 vide Annexure-L6 dated 13.12.2006 in respect of Sy.No.131 vide Annexure-L7 dated 13.12.2006 in respect of Sy.No.132 vide Annexure-L8 and dated 13.12.2006 in respect of Sy.No.130 vide Annexure – L9 issued by the Karnataka Industrial Area Development Act under Section 28(4) produced at Annexure-A2 and L, L1 to L9 so far as petitioners lands are concerned arbitrary and violative of Article 14 and without the Authority of Law and etc;

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These petitions, having been heard and reserved on 26.02.2014 and coming on for Pronouncement of Orders this day, the Court delivered the following:-

O R D E R

The petitioners claim to be owners of the lands bearing

Survey nos.96/45N, 96/20, 197, 130, 132, 203, 259, 264, 96/P1,

206, 131, 82/1, 25/1, 260 and 263 of Koorgally village, Mysore

District. The first petitioner is said to be the power of attorney for the owners, S.K.Srinivasa and K. Ramesh, shown as the second and third petitioners in these proceedings and he is said to have transferred the properties in favour of the fourth petitioner.

It is also stated that K.Ramesh had sought to cancel the power of attorney granted in favour of the first petitioner and that is said to be subject matter of a pending civil suit.

The above said lands are said to have been notified as an industrial area under the Karnataka Industrial Area Development

Act, 1966 (Hereinafter referred to as the ‘KIAD Act’, for brevity).

It is stated that the very lands are notified as residential area under 6

the provisions of the Karnataka Town and Country Planning Act,

1961 (Hereinafter referred to as the ‘KTCP Act’, for brevity).

The same are indicated as falling within the planning area of the

Mysore City Planning Area. This is also reflected in the

Comprehensive Development Plan (CDP).

2. It is stated that a notification under Section 28(1) of the

KIAD Act was issued on 18.3.2006 and a final notification under

Section 28(4) was issued on 5.12.2006. This was subject matter of challenge before this court in a writ petition in WP 5711/2008.

The said petition was allowed on 6.4.2009. The matter was remitted to the authorities for fresh consideration.

It is alleged that that the petitioners were not heard after the matter was remitted though objections had been filed on their behalf. Incidentally, the petitioners claimed to have entered into a joint development agreement with the Karnataka Housing Board

(KHB), which was said to have been approved by the State government, in respect of the very lands. 7

It is submitted that the respondents having chosen to proceed further with the acquisition proceedings, notwithstanding the above position, the respondents having issued notice under

Section 28(6) of the KIAD Act, dated 12.10.2010, which is the provocation for the present petition.

3. Respondents 3 and 4 have filed objections to contend that after remand of the matter as aforesaid, notices had been issued and the petitioner no.1 represented by an agent had sought time to make submissions, at the hearing fixed on 26.6.2010.

Thereafter, at the next date of hearing, 5.7.2010, it transpires that respondents 2 and 3 are said to have appeared and indicated that they have no objection if the land is acquired, but they had demanded a compensation of Rs.35 lakh per acre, which was grossly disproportionate to the fair market value according to the respondents.

It transpires that the petitioner no.1 having failed to make any oral submissions in spite of opportunity granted, the authority 8

had proceeded to consider the written objections and overruled the same as they were untenable. It is hence contended that the complaint of opportunity of a personal hearing not having been granted is misleading and unfair.

It is contended that a total extent of 544.16 acres of land was acquired and the petitioner no.1 lays claim to an extent of

16.39 acres spread over land bearing various survey numbers.

Petitioner no.2 claiming an extent of 11 acres 17 guntas in different survey numbers is said to have acquiesced in the proceedings and has received the compensation amount. While petitioner no.3 who has a claim to an extent 12.02 guntas had also agreed to the acquisition but was only claiming a higher compensation.

It is claimed by the respondents that except for an extent of

11.38 acres of land, which was denotified after taking into consideration the fact that there was a letter intent issued in the establishment of a petrol pump over a certain extent, the existence of a brick factory and a portion abutting a reserve forest, the rest 9

of the area acquired had been developed into an industrial area, particulars of such development and allotment to industrial entrepreneurs is produced.

It is contended that in so far as the acquisition being without regard to the land use and the zonal regulations is misleading, as there was prior consultation with the Urban Development

Authority and other agencies as to the availability of the land for purposes of industrial development. The material particulars are produced in this regard.

4. The KHB has filed its statement of objections to clarify as to the claim made by the petitioner no.1 in regard to a joint venture said to have been agreed upon as follows:-

That M/s Bharat Infra Tech Private Limited, Bangalore had submitted a proposal dated 12.12.2005 to the KHB for taking up a

Joint Venture Project in Survey No.96/45N,

130,131,132,203,96/20,197,260,259,264,96/P1, 206, 96,202,42,

144/2, 145, 146, 201, 265 etc., of Koorgalli. The proposal was 10

submitted by the first petitioner as the Managing Director of the company. The Board in its 396 th meeting held on 10.1.2006 resolved to take up the Joint Venture Project without any financial commitment on its part and to enter into a memorandum of agreement with the approval of the Government with M/s

Bharat Infra Tech Private Limited. On 7.2.2006, a communication was sent to the company in this regard. The KHB submitted a proposal to the Government on 25.7.2006, seeking approval for entering into a memorandum agreement with the company. The said company, in its letter dated 26.9.2006, had requested the then

Housing Minister to expedite the process of entering into a Joint

Venture Agreement and also requested to inform the Karnataka

Udyoga Mitra to drop their proposal stating that the lands in question are proposed by the Karnataka Industrial Area

Development Board (KIADB) for acquisition to develop an industrial area. Due to various reasons, including the issues of company’s ownership, no further steps could be taken to enter into a Joint Venture Agreement. The approval of the Government 11

to the Joint Venutre is yet to be received. The KHB has not entered into Joint Venture Agreement with M/s Bharat Infra Tech

Private Limited, Bangalore. In the background of these facts, the

Government has called for re-submission of proposal in their letter dated 5.6.2013.

5. It is further stated by the respondents 3 and 4 in a second additional statement of objections as follows :

That in terms of notifications under Sections 3(1) and 1(3) of the KIAD Act, a total of 606.10 acres were notified as industrial lands. In terms of notification under Section 28(1) of the KIAD Act, 559.05 acres were notified. And of the said lands notified under Section 28(1), 544.16 acres were notified under

Section 28(4) of the KIAD Act. Further, of the total lands notified under Section 3(1), 11 acres 28 guntas have been deleted under Section 4 of the KIAD Act. It is contended that under the notification under Section 4 of the KIAD Act, taking into consideration a letter of intent for establishment of a petrol pump and the presence of a brick factory and certain portion abutting 12

reserved forest, an extent of 11 acres 28 guntas was denotified vide notification dated 5.12.2006.

It is contended that of the said lands, in all, 472 acres have been developed as an industrial layout. The break up providing for available lands for allotment after making provision for amenities, road etc., is as under:-

Under Section 28(4) : 544-16 Total lands : 472-00 Roads : 69-21 Civic Amenities : 40-17 Park and Open Space : 34-80 Water Bodies (Tanks) : 34-07 Land available for Allotment : 293-75

Lands allotted so far : 196-13 Balance Land available for allotment : 97-62

It is contended that of the entire developed lands, in respect of an extent of 120 acres, the board by its resolution in its

304 th board meeting, has resolved that a proposal for deletion of 13

the lands may be forwarded to the State Government. The acquisition proceedings dated 28.10.2011 and 29.10.2011 held under the chairmanship of Commissioner, Industrial Area

Development and the Director of Industries and Commerce

Department, has constituted a committee to dwell upon the said proposal and give a finding as regards the said deletion.

It is hence asserted that the writ petition is without merit.

6. By way of a rejoinder on behalf of the petitioners, it is contended as follows:

That the acquisition proceedings initiated by the respondents is bad in law because, there is no enquiry conducted in accordance with law. After the remand made by this court, the notices dated 1.9.2009 were issued directing the petitioners to appear before the Land Acquisition Officer on 30.10.2009 at 11 a.m. and the said notices were served on the petitioners on

12.10.2009, that is earlier to the date of hearing. An application for adjournment was filed on 30.10.2009. 14

A detailed objection was filed on 1.12.2009 and the same was received by the respondents on 2.12.2009. The enquiry notices dated 15.6.2010, one fixing the date of hearing on

18.6.2010 and another fixing the date of hearing on 26.6.2010, were issued. Both the notices were served on the petitioner on

17.6.2010 in the evening. A letter was given seeking seven days time.

One more notice dated 6.7.2010 was issued directing the petitioner to appear on 14.7.2010. On 14.7.2010 at 5.15 a.m., objections were duly filed.

On the above dates of hearing, a request was made that the detailed objections dated 2.12.2009 filed by the petitioner may be read as part and parcel of the present objections. It is thereafter no further opportunity was given to the petitioner. Even then, on

23.7.2010, a letter was addressed by the petitioner to the Director of the KIADB about the release of the lands. The petitioner had again addressed a letter on 30.11.2010 to withdraw the notices issued under section 28(6) and also a letter on 3.12.2010. These 15

proceedings would indicate that the enquiry conducted by them is not in accordance with law.

In view of the judgment of the apex court in M/s Usha Stud and Agricultural Farms Private Limited vs. State of Haryana,

AIR 2013 SC 1282, the enquiry conducted is not in accordance with law, since the petitioner is deprived of his right to lead evidence and right to personal hearing. Para -31 of the said judgment reads thus:

“The appropriate Government while issuing a declaration under Section 6 of the Land Acquisition Act is required to apply its mind not only to the objections filed by the owner of the land in question but also to the report submitted by the Collector by making such further enquiry therein as he thinks necessary and also recommendation made by him in that behalf. “

Para 30 of the judgment reads that the objector has a right to appear in person or through a Pleader and substantiate his evidence by evidence and arguments. 16

It is contended that if the recommendation made by the

Land Acquisition Officer is defective, acceptance of the report is also bad in law in view of the decision of the Supreme Court in

Sandoor Manganese Iron Ore limited vs. The State of Karnataka,

2010(13) SCC 1 , wherein it has been held that if the recommendation is defective, all consequential orders including subsequent approval by the Central Government are also liable to be quashed.

It is contended that in the records before the State

Government, the entire statement of objections filed by the petitioners is not available. Objections filed on 2.12.2009,

23.7.2010, 30.11.2010, 3.12.2010 and 26.12.2010 was not considered. The objections filed on 14.7.2010 alone was in the

Government file. Therefore, there is no application of mind.

It is contended that if the enquiry would have been conducted properly, all the documents would have been produced by the enquiry officer. The same could not be produced because one each and every date of hearing, the notice used to be served 17

either in the evening of the previous day of hearing or sometime previous day of date of hearing. Under the circumstances, the petitioner contends that there is violation of principles of natural justice.

The Preliminary Notification dated 18.3.2006 was issued to an extent of 606.10 acres of land. But the final notification was confined to 544.16 acres of land. Both in the preliminary and final notification, Survey No.5,6,7,10,11,12 to 76 and 87 to 92 are omitted.

The final notification in respect of the petitioners were issued on 6.9.2010, but on 3.10.2007, 510 acres of land in the surrounding area of Koorgalli village has been deleted. In view of the letter dated 30.8.2010, 120 acres of land for the purpose of

Ashraya Scheme, school building, public building, extension of village has been deleted, out of 544.16 guntas of land.

It is contended that the State Government on 3.10.2007 had issued two notifications, one proposing to acquire 598.16 acres of land out of 722.05, in which, Kharab is 123.29 acres and another 18

extent of 510.37 acres of land has been deleted from acquisition under the same notification. Thus, the land belonging to M/s.

Parshwanath Builders in Bastipura Village, which is adjacent to

Koorgalli, which lands are in the midst of industrial area shown in

Sy.Nos.6 to 12, 21 to 26, 34, 35, 36, 42, 43, 48 to 54, the survey numbers of which have been marked in the Village Map. There was further recommendation of 42.17 acres of land. Again, there is also a proposal to acquire land to an extent of 45.27 acres, which proposal was returned.

The Deputy Commissioner , , after official notification, has converted the following lands for residential purpose to form a residential layout by means of six letters – two of the letters dated

20.07.2009, another two dated 18.02.2010 and the remaining two letters dated 09.04.2010 and 22.12.2010.

I. Ilawala Hobli, Koorgalli II. Ilawala Hobli, Koorgalli III.Ilawala Hobli, Koorgalli

Sy. Extent Sy. Extent Sy. Extent No. (A-G) No. (A-G) No. (A-G) 139/2 2-38 152/2 2-00 139 2-01 139/2 2-39 154 3-00 143/1 0-34½ 154 1-00 144/1 0-24 144/2 1-13½

Total 5-31 19

IV.Ilawala Hobli, Koorgalli V.Ilawala Hobli, Koorgalli VI. Ilawala Hobli, Koorgalli

Sy. Extent Sy. Extent Sy. Extent No. (A-G) No. (A-G) No. (A-G)

143/2 0-17 148/1 1-20 148/2 0-20 143/3 0-17½

Total 0-34½

On 20.07.2009, the following survey numbers of Koorgalli

Village, Ilwala Hobli, Mysore Taluk, Mysore District were converted vide order dated ALN(1):CR:25:2009-10 in favour of

Sri. K.S. Lakshminarayana Rao, S/o. Late Sri. Srikantaiah.

Sy. Extent No. A – G

156/1 2 – 3 156/2 0 – 35 144/2 0 – 24 144/2 1.13½

Total 8 – 29

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By another order bearing No. ALN (1) CR 365/2008-2009 dated 20.07.2009, the following lands were converted in favour of

Sri. K.S. Lakshminarayana Rao, S/o. Late Sri. Srikantaiah.

Sy. Extent No. A – G

152/2 2 – 0 154 4 – 0

Total 6 – 0

By Order bearing No.ALN(1):CR:264/2009-2010 dated

18.02.2010, the following land was converted in favour of

Sri.Lakshminarayana Rao, S/o. Late Sri. Srikantaiah.

Sy. Extent No. A – G

139 2 - 2

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By Order bearing No.ALN(1):CR.335/2009-2010 dated

09.04.2010, the following land was converted in favour of Sri.

Lakshminarayana Rao, S/o. Late Sri.Srikantaiah.

Sy. Extent No. A – G

148/1 1 – 20

By Order bearing No.ALN(1):CR.67/2010-2011 dated

22.10.2010, the following land was converted in favour of Sri.

Lakshminaryana Rao, S/o. Late Sri. Srikantaiah.

Sy.No. Extent A - G 148/2 0 20

An extent of 197 acres of land has been released in favour of M/s.Subramanya Constructions by the Government. These, survey numbers are in the middle of the area which has been already acquired. 22

The Government further on the day when the final notification was issued, has deleted by means of a notification dated 5.12.2006, land measuring 1 acre 20 guntas bearing Survey

No.96/229, land measuring 4 acres 31 guntas situated in

Sy.No.133 and land measuring 5 acres 17 guntas situated in

Sy.No.138. Initially, Sy.Nos. 130, 131, 132 and 133 are adjoining

Sy.No.132, which is a subject matter of the petitioners, whose properties are situated in Sy.Nos. 130, 131 and 132.

Since the petitioner’s land should have been designated for residential purpose and in the corner of the area, if it is excluded, the same would not come in the way of implementation of any

Scheme. Thus, the petitioners are entitled for deletion of lands in view of the promises made by the Housing Board.

It is in the light of these details and information on the basis of which it is claimed that it would be possible to supplement the written objections effectively with necessary elaboration and explanation, at a personal hearing, which it is claimed, has been 23

denied and that it is a crucial omission depriving a valuable right to the petitioners.

In the light of the above facts and circumstances and in the admitted circumstance that the petitioners have not been provided a personal hearing as regards the several allegations that are sought to be established by the production of innumerable documents, it would be appropriate if the petitioners are afforded a personal hearing and are permitted to justify their stand.

Accordingly, the writ petitions are allowed in part, the impugned notification under Section 28(4) is quashed in so far as the petitioners are concerned, in that, the respondents may recommence proceedings from the stage of hearing objections under Section 28(3) of the KIAD Act. The petitioners shall be provided a personal hearing, in the respondents proceeding further.

Sd/- JUDGE