Dismissed

Thomas D Souza S/O Pedro D Souza v. the State of Karnataka

Karnataka HC16 Jan 2014WP/8955/2011

Case brief

AI extract

What is this about?

Petitioners challenged land acquisition notifications under the KIAD Act, arguing their lands were in low-lying areas and similarly situated lands had been dropped. The Court held the authority's decision on land suitability is not open to re-examination in a writ petition and dismissed the petitions.

What did the court decide?

The writ petitions filed under Articles 226 and 227 of the Constitution of India praying for quashing of the notifications were dismissed as being without merit.

Thomas D Souza S/O Pedro D Souza Vs the State of Karnataka — Land Acquisition | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 16^TH DAY OF JANUARY 2014

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BEFORE:

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THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION No.8954 OF 2011 (LA-KIADB)

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CONNECTED WITH

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WRIT PETITION No.8955 OF 2011 (LA-KIADB)

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WRIT PETITION No.8953 OF 2011 (LA-KIADB)

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WRIT PETITION No.8952 OF 2011 (LA-KIADB)

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WRIT PETITION Nos.17975-17984 OF 2009 (LA-KIADB)

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IN W.P.No.8954/2011

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BETWEEN:

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Stanley Rodrigues, Son of Sylvyster Rodrigues, Aged about 53 years, Resident of ‘Koppalu House’ Chelur Post, Via Kurnadu – 575 153, Bantwal Taluk, Dakshina Kannada.

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…PETITIONER

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(By Shri. T.S. Amar Kumar, Advocate for M/s. Lawyers Inc.)

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AND:

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The State of Karnataka By its Secretary to Government, Department of Industries and Commerce, M.S.Buildings, Dr. Ambedkar Veedhi, Bangalore – 560 001.

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The Special Land Acquisition Officer, Karnataka Industrial Areas Development Board, Mangalore Division, Baikampadi, Mangalore.

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The Karnataka Industrial Areas Development Board, Government of Karnataka, Undertaking No.14/3, 2^nd Floor, R.P.Building, Nrupathunga Road, Bangalore – 560 001.

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…RESPONDENTS

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(By Shri. Basavaraj V Sabarad, Advocate for Respondent Nos. 2 and 3

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Shri. H.T. Narendra Prasad, Additional Government Advocate for Respondent No.1 )

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the preliminary notification issued under Section 28(1) dated 7.2.2007 as per Annexure-B and the final notification issued under Section 28(4)

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dated 7.5.2008 gazetted on 16.5.2008 as per Annexure-F in so far as the lands belonging to the petitioner are concerned.

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IN W.P.No.8955/2011

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BETWEEN:

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Thomas D’Souza, Son of Pedro D’Souza, Aged about 51 years, Resident of ‘Allar House’, Chelur Post, Via Kurnadu – 575 153, Bantwal Taluk, Dakshina Kannada. …PETITIONER (By Shri. T.S. Amar Kumar, Advocate for M/s. Lawyers Inc.) AND:

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The State of Karnataka By its Secretary to Government, Department of Industries and Commerce, M.S.Buildings, Dr. Ambedkar Veedhi, Bangalore – 560 001.

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The Special Land Acquisition Officer Karnataka Industrial Areas Development Board, Mangalore Division, Baikampadi, Mangalore.

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The Karnataka Industrial Areas Development Board, Government of Karnataka,

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Undertaking, # 14/3, 2^nd Floor, R.P.Building, Nrupathunga Road, Bangalore – 560 001. …RESPONDENTS

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(By Shri. Basavaraj V Sabarad, Advocate for Respondent Nos. 2 and 3

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Shri. H.T. Narendra Prasad, Additional Government Advocate for Respondent No.1)

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This Writ Petition filed under Articles 226 and 227 of the Constitution of India, praying to quash the preliminary notification issued under Section 28(1) dated 7.2.2007 as per Annexure-B and the final notification issued under Section 28(4) dated 7.5.2008 gazetted on 16.5.2008 as per Annexure-F, in so far as the lands belonging to the petitioner are concerned.

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IN W.P.NO. 8953/2011

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BETWEEN:

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Theresa D’Souza, Wife of Anthony Victor D’Souza, Aged about 53 years, Resident of ‘Koppalu House’, Chelur Post, Via Kurnadu – 575 153, Bantwal Taluk, Dakshina Kannada. …PETITIONER

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(By Shri. T.S. Amar Kumar, Advocate for M/s. Lawyers Inc.,)

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AND:

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The State of Karnataka, By its Secretary to Government Department of Industries and Commerce M.S.Buildings, Dr. Ambedkar Veedhi, Bangalore – 560 001.

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The Special Land Acquisition Officer Karnataka Industrial Areas Development Board, Mangalore Division, Baikampadi, Mangalore.

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The Karnataka Industrial Areas Development Board, Government of Karnataka, Undertaking, # 14/3, 2^nd Floor, R.P.Building, Nrupathunga Road, Bangalore – 560 001. Represented by its Secretary. …RESPONDENTS

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(By Shri. B.B. Patil, Advocate for Respondent Nos. 2 and 3 Shri. H.T. Narendra Prasad, Additional Government Advocate for Respondent No.1)

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This Writ Petition filed under Articles 226 and 227 of the Constitution of India, praying to quash the preliminary notification issued under Section 28(1) bearing No.CI 269 SPQ 2006 dated 7.2.2007 as per Annexure-B and the final notification issued under Section 28(4) bearing No.CI 39 SPQ 2008 dated 7.5.2008 gazetted on 16.5.2008 as per Annexure-F, in so far as the lands belonging to the petitioner are concerned.

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IN W.P.No.8952/2011 BETWEEN:

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Victor Rebello Son of John Rebello, Aged about 61 years, Resident of ‘Koppalu House’, Chelur Post, Via Kurnadu – 575 153, Bantwal Taluk, Dakshina Kannada. …PETITIONER

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(By Shri. T.S. Amar Kumar, Advocate for M/s. Lawyers Inc.) AND:

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The State of Karnataka, By its Secretary to Government Department of Industries and Commerce M.S.Buildings, Dr. Ambedkar Veedhi, Bangalore – 560 001.

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The Special Land Acquisition Officer Karnataka Industrial Areas Development Board, Mangalore Division, Baikampadi, Mangalore.

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The Karnataka Industrial Areas Development Board, Government of Karnataka, Undertaking, # 14/3, 2^nd Floor, R.P.Building, Nrupathunga Road, Bangalore – 560 001.

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Represented by its Secretary. …RESPONDENTS

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(By Shri. B.B. Patil, Advocate for Respondent Nos. 2 and 3 Shri. H.T. Narendra Prasad, Additional Government Advocate for Respondent No.1)

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This Writ Petition filed under Articles 226 and 227 of the Constitution of India, praying to quash the preliminary notification issued under Section 28(1) dated 7.2.2007 issued by respondent no.3 as per Annexure-B and the final notification issued under Section 28(4) dated 7.5.2008 gazetted on 16.5.2008 issued by respondent no.1 as per Annexure-F, in so far as the lands belonging to the petitioner are concerned.

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IN W.P.Nos.17975-17984/2009

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BETWEEN:

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Jacob D’Souza, Son of Lawrence D’Souza, Aged about 54 years, Resident of ‘Koppalu House’, Chelur Post, Via Kurnadu – 575 153, Bantwal Taluk, Dakshina Kannada.

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Maurice D’Souza, Son of Simon D’Souza, Aged about 60 years, Residing at ‘Thota House’, Chelur Post, Via Kurnadu – 575 153,

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Bantwal Taluk, Dakshina Kannada.

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[Petitioner no.2 dismissed Vide order dated 29.10.2009]

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Theresa D’Souza,

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Wife of Anthony Victor D’Souza, Aged about 52 years,

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Stanley Rodrigues, Son of Sylvyster Rodrigues, Aged about 52 years,

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Marcel D’Souza, Son of John Baptist D’Souza, Aged about 54 years,

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Flurine Rodrigues, Wife of Late Thomas Rodrigues, Aged about 85 years,

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[petitioner nos. 5 and 6 Dismissed vide order dated 29.10.2009]

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Hillari Rodrigues, Son of Thomas Rodrigues, Aged about 64 years,

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Jokim Rodrigues, Son of Thomas Rodrigues, Aged about 64 years, [petitioner no.8 dismissed Vide order dated 29.10.2009]

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Victor Rebello, Son of John Rebello, Aged about 60 years,

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Petitioner nos. 3 to 9 are Residents of ‘Koppalu House’, Chelur Post, Via Kurnadu – 575 153, Bantwal Taluk, Dakshina Kannada.

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Thomas D’Souza, Son of Pedro D’Souza, Aged about 50 years, Residing at ‘Allar House’, Chelur Post, Via Kurnadu – 575 153, Bantwal Taluk, Dakshina Kannada. …PETITIONERS

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(By Shri. T.S. Amar Kumar, Advocate for M/s. Lawyers Inc.,) AND:

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The State of Karnataka, By its Secretary to Government Department of Industries and Commerce M.S.Buildings, Dr. Ambedkar Veedhi, Bangalore – 560 001.

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The Special Land Acquisition Officer Karnataka Industrial Areas Development Board, Mangalore Division, Baikampadi, Mangalore.

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The Karnataka Industrial Areas Development Board, Government of Karnataka, Undertaking, # 14/3, 2^nd Floor, R.P.Building, Nrupathunga Road, Bangalore – 560 001. Represented by its Secretary. …RESPONDENTS

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(By Shri. Basavaraj V Sabarad, Advocate for Respondent Nos. 2 and 3

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Shri. H.T. Narendra Prasad, Additional Government Advocate for Respondent No.1

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Writ Petition stand dismissed against petitioner nos. 2, 5, 6 and 8)

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These Writ Petitions filed under Articles 226 and 227 of the Constitution of India, praying to quash the preliminary notification issued under Section 28(1) dated 7.2.2007as per Annexure-B and the final notification issued under Section 28(4) dated 7.5.2008 gazetted on 16.5.2008 as per Annexure-F, in so far as the lands belonging to the petitioner are concerned.

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These petitions, having been heard and reserved on 04.12.2013 and coming on for Pronouncement of Orders this day, the Court delivered the following:-

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ORDER

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These petitions are heard and disposed of together having

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regard to the common issues that arise for consideration.

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Re: WP 8954/2011

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The petitioner is said to be the owner of the land bearing Survey No.100/2A 1P1, measuring about 4 acres and 37 cents in Chelur, Bantwal taluk, Dakshina Kannada. The same is said to be his ancestral property. The same was said to have been notified for acquisition under the provisions of the Karnataka Industrial Area Development Act, 1966, (Hereinafter referred to as the ‘KIAD Act’, for brevity), vide notification under Section 28(1) dated 7.2.2007. The petitioner is said to have filed objections to the same.

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According to the petitioner, he had raised particular objection to the vague description of the portion of the land to be acquired, and the fact that the land was in a low lying area and totally unsuitable for any industrial purpose and the further fact

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that if a portion of the land was to be declared an industrial area, the other portion would become incapable of being conveniently cultivated. The objections are said to have been overlooked. It is also alleged that not only was the petitioner not afforded a hearing but it was falsely recorded, in the order passed by the competent

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authority, that the petitioner was agreeable to the acquisition on payment of compensation of Rs.20 lakh per acre, as per order dated 7.5.2007. A notification under Section 28(4) of the KIAD Act was said to have been issued on 7.5.2008. It is pointed out

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that under the preliminary notification though the entire extent was notified, what was finally acquired was only 70 cents. The reason assigned for withdrawing from the acquisition in respect of the remaining extent was the fact that the same was in a low lying area. It is the case of the petitioner – that the same circumstance applies to the extent acquired as well.

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Re: WP 8955/2011

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The petitioner is said to be the owner of lands bearing Survey No.83/2AP2 measuring 18 cents, Survey No.83/3AP2 measuring 7 cents, Survey No.83/1BP1, measuring 1 acre 96 guntas, Survey No.83/4BP1 measuring 7 acres 50 guntas, Survey No.83/3CP3 measuring 03 guntas and Survey No.83/5AP1 measuring 58 guntas of Chelur.

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The said lands were notified for acquisition under the same notification referred to in the first of these petitions. It is the case of the petitioner that he had raised particular objections to the proposed acquisition, as had the petitioner in the first of these petitions – and under similar circumstances the same were ignored and the authority has proceeded to attribute an alleged acquiescence to the acquisition, on the part of the petitioner. It is pointed out that the extent notified for acquisition, the extent of holding of the petitioner and the actual acquisition of the several items of land is as follows :-

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Name	Sy.No.	Extent of Holding Acres -Cents	Extent acquired under Prl.Notification Acres-Cents	Extent acquired under FinalNotification Acres-Cents
Thomos	83/2AP2	00-18 __	_ 35 - 92	35 - 63
D’Souza	83/3AP2	00-07___
	83/1BP1	01-96_____
	83/4BP1	07-50____	_
	83/3CP3	00-03_____
	83/5AP1	00-58_____

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The reasons assigned to withdraw from acquisition in

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respect of portions of the above lands being applicable to the other remaining lands as well, the petitioner has preferred this petition.

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Re. WP 8953/2010

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The petitioner is said to be the owner of lands bearing Survey Nos.95/3AP2, measuring 2 acres and Survey No.98/1A, measuring 3 acres 15 cents of Chelur.

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The said lands were notified for acquisition under the same notification referred to in the first of these petitions. It is the case of the petitioner that he had raised particular objections to the

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proposed acquisition, as had the petitioner in the first of these petitions – and under similar circumstances, the same were ignored and the authority has proceeded to attribute an alleged acquiescence to the acquisition, on the part of the petitioner. It is pointed out that the extent notified for acquisition, the extent of holding of the petitioner and the actual acquisition of the several items of land is as follows :-

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Name	Sy.No.	Extent of Holding	Extent acquired under Preliminary Notification	Extent acquired under Final Notification
		Acres - Cents	Acres – Cents	Acres - Cents
Teresa D’Souza	95/3AP2 ___	___ 02-00	03-44 ____	03–44 ____
	98/1A	03 - 15	06 –93	00 - 83

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The reason assigned for withdrawing from the acquisition in

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respect of the remaining extent was the fact that the same was in a low lying area. It is the case of the petitioner – that the same circumstance applies to the extent acquired as well. Hence, the

petition.

Re. WP 8952/2011

The petitioner is said to be the owner of land bearing Survey No.102/1AP2 measuring 09 cents of Chelur village, Bantwal Taluk.

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and the authority has proceeded to attribute an alleged acquiescence to the acquisition, on the part of the petitioner. It is pointed out that the extent notified for acquisition, the extent of holding of the petitioner and the actual acquisition of the several

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items of land is as follows :-

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Name	Sy.No.	Extent of	Extent	Extent
		Holding Acres - Cents	Acquired under Preliminary Notification Acres - Cents	acquired under Final Notification Acres - Cents
Victor Rebello	102/1AP2	00 - 09	00 - 23	00 - 23

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The reason assigned for withdrawing from the acquisition in

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respect of the remaining extent was the fact that the same was in a low lying area. It is the case of the petitioner – that the same circumstance applies to the extent acquired as well. Hence, the petition.

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Re. WP 17975/2011

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The petitioner is said to be the owner of lands bearing Survey No.98/1P1 measuring 2 acres 45 cents and Survey No.95/3P1 measuring 1 acre 44 cents, of Chelur Village, Bantwal

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Taluk, Dakshina Kannada.

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The said lands were notified for acquisition under the same notification referred to in the first of these petitions. It is the case of the petitioner that he had raised particular objections to the proposed acquisition, as had the petitioner in the first of these petitions – and under similar circumstances, the same were ignored and the authority has proceeded to attribute an alleged acquiescence to the acquisition, on the part of the petitioner. It is

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pointed out that the extent notified for acquisition, the extent of

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holding of the petitioner and the actual acquisition of the several

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items of land is as follows :-

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Name	Sy.No.	Extent of Holding Acres-Cents	Extent acquired under Preliminary Notification Acres-Cents	Extent acquired under Final Notification Acres-Cents
Stanley Rodriues (Column No.9	100/2A1P1	04 - 37	04 - 37	00 - 70
depicts the name of the Grand-father of the
Petitioner no.4)

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The reason assigned for withdrawing from the acquisition in

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respect of the remaining extent was the fact that the same was in a

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low lying area. It is the case of the petitioner – that the same circumstance applies to the extent acquired as well. Hence, the

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petition.

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The respondents have resisted the petition and have sought to justify the acquisition.

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At the stage of hearing, it was brought to the attention of

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this court that the Special Land Acquisition Officer of the KIADB, Mangalore had recommended dropping of proceedings in respect of certain lands adjacent to the lands belonging to the petitioners on the ground that those lands are situated in a lowlying area and are not suitable for the purposes for which it was sought to be acquired. It was the case of the petitioners that if that recommendation is applicable to the lands so sought to be dropped from the proceedings it would equally apply to the petitioners’ lands as well since those lands are situated either adjacent to, or in lands in the same survey numbers. By the same token of reasoning, if the lands which are lying in the low-lying areas had

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to be deleted from the acquisition proceedings, the petitioners’ lands also had to be deleted. This being the primary contention put forward by the petitioners, though such a contention was not

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raised by them at the time of hearing their objections to the acquisition proceedings. The explanation offered by the petitioners was that they were unaware that the lands in low-lying areas would be deleted from the acquisition proceedings.

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The learned counsel for respondent Nos.2 and 3 had

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submited that the very objection has been subsequently considered and a Surveyor having been appointed to inspect the lands in question, vis-a-vis, the lands which are said to be in the low-lying area and according to the report, though the lands belonging to the

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petitioners and others are situated in adjacent areas, they are totally unsuitable for industrial development and has accordingly, submitted the report. In any event, it was submitted that this objection ought to have been taken at the earliest point of time and that it could not be raised for the first time in these proceedings and submitted that the scope of enquiry could not be extended under the writ jurisdiction and had raised serious objection to any further consideration of the objection, as the acquisition

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proceedings were complete in all respects and therefore, had sought dismissal of the writ petitions, in limine. While the learned counsel for the petitioners had insisted that the lands of the petitioners were in a low-lying area and by the same yardstick applied to other lands on which the same had been dropped from the proceedings, should also apply to the petitioner’s lands. In this regard, he had submitted that the report referred to by the learned counsel for respondent nos. 2 and 3 cannot be accepted as being unbiased and that the petitioners had no confidence in the said report. He had further submitted that since such a report is generated in the absence of the petitioners, who did not have notice of any such survey being conducted and hence, had submitted that this Court take that aspect into consideration.

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In order to give a quietus to the controversy, it was

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found appropriate that a fresh survey be conducted to ascertain whether the lands in question in the present writ petitions were indeed lying in such a low-lying area that it would render the

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lands unsuitable for industrial development and whether the lands which were dropped from the proceedings were any different from the lands of the petitioners. And hence it was directed that a survey be conducted .

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A report was filed as on 16.11.2012 pursuant to the order of this court dated 3.9.2012. This was however, found to be unsatisfactory and a further report was called for, which in turn was filed on 7.3.2013.

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With reference to the said report the learned counsel for the petitioner has sought to assert that the objections raised by the petitioners as to the arbitrary identification and acquisition of lands of the petitioners – were justified in the light of the findings in the survey report and has sought to elucidate the same in a tabular form vide memo dated 4.12.2013, thus:

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“ MEMO

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W.P.No.	Name	Sy.No.	Extent of Holding Acres Cents	Extent acquired under Pre. Notificat ion	Extent acquired under Final Notificati on	Remarks in Survey Report
17975	Jacob D’Souza	98/1P1	02-45	06-93	00-83	Sl.No.7:In Sy.No.98/1 measuring 6.93 Acres, 0.83 Acres is proposed to be acquired and in the said land 0.10 Acres is in low laying area.
		95/3P1	01-44	03-44	03-44	Sl.No.8: In Sy.No. 95/3, 3.44 Acres (1.44 Acres of Jacob D’Souza and 2.00 Acres of Theresa D’ Souza) is proposed to be acquired. The said land is flat.
8952	Victor Rebello	102/1AP2	00-09	05-00	00-82	Sl.No.13: In Sy.No. 102, 0.09 Acres is proposed to be acquired and it is in low lyingarea.
8953	Teresa D’Souza	95/3AP2	02-00	03-44	03-44	Sl. No.8: In Sy. No. 95/3 2.00 Acres belonging to the Petitioner is proposed to be acquired and the said land is a flat.
		98/1A	03-1	06-93	00-83	Sl.No.7: Land belonging to the Petitioner is a flat area.
8954	Stanley Rodrigues	100/2A1P1	04-37	04-37	00-70	Sl. No.12: Land belonging to the Petitioner is a flat area.
8955	Thomos D’Souza	83/2AP2	00-18	35-92	35-63	Sl.No.14: Sy. No. 83 measures 35.92 Acres, in the said land, 0.29 Acres belonging to Luis D’Souza is in low layingarea and

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		hence dropped from final notification. In the remaining 35.63 Acres, 8.54 Acres is flat and 27.09 Acres is in low layingarea.
83/3AP2	00-07
83/1BP1	01-96
83/4BP1	07-50
83/3CP3	00-03
83/5AP1	00-58

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In the above facts and circumstances, the moot question

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whether the acquiring authority was justified in proceeding to acquire lands of the petitioners, some of which are found to be in

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low lying areas, when similar lands were exempted from acquisition on that ground. It is no doubt true that there may be pockets of lands now acquired which are found, in the latest report, to be in “Low lying areas”. But, if in the opinion of the acquiring authority it was prudent to delete some of the low lying areas from the acquisition proceedings as not at all being suitable for industrial purposes and some other lands, such as that of the petitioners, being capable of utilization for the said purpose,

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notwithstanding that the same were also in low lying areas, it is hardly a decision that can be re- examined by this court, as if in appeal, against such a decision. It cannot be ruled out that the authorities or even the project proponent or the ultimate beneficiary may be in a position to take appropriate steps to make such land suitable for use, which may be the factor that would have weighed in favour of such acquisition. Therefore, in the opinion of this court, the above circumstance cannot be a ground for interference by this court.

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The petitions are accordingly dismissed as being without merit.

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Sd/JUDGE

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nv*

Thomas D Souza S/O Pedro D Souza v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Thomas D Souza S/O Pedro D Souza v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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