Dismissed

K Shivaprasad v. the State of Karnataka

Karnataka HC22 Jan 2024WP/25964/2023

Case brief

AI extract

What is this about?

Landowners challenged KIADB acquisition of their irrigated agricultural lands for a medical college, contending irrigated lands could not be acquired per Single Window Agency conditions and State circulars. The Court held no circular prohibited acquisition at the relevant time, contiguity required these lands for the project serving larger public interest, and SLAO's factual errors did not necessi

What the court decided

AI extract

K Shivaprasad Vs the State of Karnataka — Land Acquisition | Karnataka HC (2024)

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NC: 2024:KHC:3236 WP No. 25964 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO.25964 OF 2023 (LA-KIADB)

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BETWEEN:

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K. SHIVAPRASAD AGED 73 YEARS, S/O. LATE KARIBASAPPA DOOR NO.794/20 VEERABHADRA KRUPA JAYANAGAR 'A' BLOCK, NITUVALLI POST, DAVANAGERE-577 004.

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SRI H H MAHESWARAPPA S/O LATE HANUMAPPA AGED ABOUT 65 YEARS,

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Digitally signed by V MANJUSHA BAI Location: High Court of Karnataka

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SRI H H CHANDRASHKHARAPPA S/O LATE HANUMAPPA AGED ABOUT 75 YEARS,

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SMT. HANUMAKKA AGED ABOUT 68 YEARS, W/O DECEASED H H HANUMANTHAPPA,

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SURESH H AGED ABOUT 52 YEARS, S/O DECEASED H H HANUMANTHAPPA,

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SUVARNA H AGED ABOUT 48 YEARS, W/O DECEASED H H HANUMANTHAPPA,

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2 - NC: 2024:KHC:3236 WP No. 25964 of 2023

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RAJU H H AGED ABOUT 46 YEARS, W/O DECEASED H H HANUMANTHAPPA,

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SRI. H H RAMAPPA S/O LATE HANUMAPPA AGED ABOUT 62 YEARS,

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SMT. SAROJAMMA AGED ABOUT 50 YEARS, W/O DECEASED H H BHIMAPPA

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KUMARI SOUNDARYA AGED ABOUT 26 YEARS, D/O DECEASED H H BHIMAPPA

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ALL ARE RESIDING AT COLLEGE ROAD, NEAR SHANTHI GAS OFFICE, NITUVALLI DAVANGERE-570 001.

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MALLIKARJUNAPPA H H S/O L HANUMAPPA H AGED 69 YEARS, DOOR NO.1784/50 "LAKSHMI KRUPA" NEAR DURGAMBIKA HIGH SCHOOL, SARAATHI NAGAR, 'C' BLOCK, NITUVALLI POST, DAVANAGERE-577 004.

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…PETITIONERS

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(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR SMT. SHWETHA ANAND, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, COMMERCE AND INDUSTRIES DEPARTMENT (INDUSTRIAL DEVELOPMENT) M.S. BUILDING, DR. AMBEDKAR VEEDHI,

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NC: 2024:KHC:3236 WP No. 25964 of 2023

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BANGALORE-560 001.

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KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD GOVERNMENT OF KARNATAKA, NRUPATHUNGA ROAD, BENGALURU-560 001

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REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.

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THE SPECIAL DEPUTY COMMISSIONER K.I.A.D. B NRUPATHUNGA ROAD, BENGALURU-560 001.

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THE SPEICAL LAND ACQUISITION OFFICER K.I.A.D.B INDUSTRIAL AREA, P.B. ROAD DAVANGAGERE-577 004.

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M/S S S INSTITUTE OF MEDICAL SCIENCES AND RESEARCH CENTRE DAVANGERE-577 002

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REPRESENTED BY ITS PRINCIPAL.

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THE DEPUTY COMMISSIONER AND DISTRICT MAGISTRATE OFFICE OF THE DEPUTY COMMISSIONER DAVANGERE-577 002.

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TAHASILDAR OFFICE OF THE TAHASILDAR, RAITHABHAVAN, OLD B.P. ROAD, DAVANAGERE TALUK DAVANAGERE-577 002.

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…RESPONDENTS

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NC: 2024:KHC:3236 WP No. 25964 of 2023

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(BY SRI K. SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W SRI YOGESH D. NAIK, AGA FOR R.1, R.6 & R.7; SRI B.B. PATIL, ADVOCATE FOR R.2 TO R.4; SRI P.K. NAVADGI, SENIOR COUNSEL FOR SRI AJAY J.N. ADVOCATE FOR R.5)

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THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR ORDER IN THE NATURE OF WRIT OF CERTIORARI QUASHING THE IMPUGNED PRELIMINARY NOTIFICATION NO:VAAKAI/169/SPQ 2004 DATED 13.04.2004 PUBLISHED IN GAZETTE PUBLICATION, ISSUED BY THE RESPONDENT NO.1 UNDER SECTION 18 & SECTION 3(1) OF KARNATAKA INDUSTRIAL DEVELOPMENT ACT, 1966 ("KIADB ACT") PRODUCED VIDE ANNEXURE 'A' THE IMPUGNED ENQUIRY REPORT/ORDER NO:IADB/BHOOSWA/DHAA/S.S.I.M.S/2004-05 DATED:26.06.2023 PASSED BY THE ENQUIRY OFFICER, THE 4TH RESPONDENT HEREIN PRODUCED VIDE ANNEXURE 'B' AND THE FINAL NOTIFICATION IN NO: CI 106 SPQ(E) 2023 DATED 05.09.2023 ISSUED BY THE RESPONDENT NO.1 UNDER SECTION 28(4) OF KARNATAKA INDUSTRIAL DEVELOPMENT ACT, 1966 PUBLISHED IN GAZETTED PUBLICATION, PRODUCED VIDE ANNEXURE 'C' AND THE PAPER PUBLICATION PUBLISHED BY THE RESPONDENT NO.1 IN SAMYUKTHA KARNATAKA KANNADA DAILY IN NO: CI 106 SPQ(E) 2023 DATED 08.10.2023 AND PUBLISHING TAKING SYMBOLIC POSSESSION OF THE LANDS IN QUESTION PRODUCED VIDE ANNEXURE-D AND FURTHER NOTICES IN EVEN NOS:KIADB/BHOOSWA/DHAA/S.S.I.M.S/AVAREGERE/201011/577, DATED 05.09.2023 AND PUBLISHED ON DATED 08.10.2023 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 29(2) OF THE LAND ACQUISITION ACT PRODUCED VIDE ANNEXURES E, E1, E2, E3, E4, E5 & E6 SERIES, ETC.

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THIS PETITION COMING ON FOR ORDERS, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2024:KHC:3236 WP No. 25964 of 2023

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ORDER

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Petitioners are owners of certain properties in Sy.Nos.190/1P1 and 209 of Avaregere Village,

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Davanagere. The said lands along with other adjoining lands were sought to be acquired by the State for the purposes of second respondent - Karnataka Industrial Areas Development Board (KIADB). In this regard, a preliminary notification dated 13.04.2004 bearing No.¸ÀASÉå:ªÁPÉÊ 169 J¸ï¦PÀÆå 2004 ¨ÉAUÀ¼ÀÆgÀÄ was issued.

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Thereafter, on 09.02.2007, final notification was also issued acquiring the lands of the petitioners. However, while passing the final notification, it was mentioned that the said lands have been acquired for the purposes of respondent No.5, which is a Medical College, Hospital and Research Centre. Aggrieved by the same, the petitioners preferred W.P.No.19969/2014 c/w. W.P.Nos.15450/2011 and 10673/2021 on the ground that the objections of the petitioners have not been properly considered by the Special Land Acquisition Officer (SLAO) while passing an

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NC: 2024:KHC:3236 WP No. 25964 of 2023

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order under Section 28(3) of the Karnataka Industrial Areas Development Act, 1966 (for short 'the KIAD Act'), the final notification was set aside and the matter was remanded back to the SLAO to consider the case of the petitioners in accordance with law. Thereafter, respondent No.4 - SLAO, who considered the case of the petitioners, has rejected the same and based on its order, a final notification dated 05.09.2023 has been issued, by which the lands of the petitioners have been sought to be acquired for the purposes of respondent No.5 - Institution. Aggrieved by the same, the present writ petition is filed.

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The case of the petitioners is that their lands are irrigated lands and the same could not be acquired for the purposes of the respondent No.5 - Institution. It is further submitted that respondent No.4 has not considered the case of the petitioners properly and has recorded that the lands are not irrigated. It is also submitted that this Court while deciding W.P.No.15126/2008 has set aside acquisition of certain lands which were sought to be

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NC: 2024:KHC:3236 WP No. 25964 of 2023

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acquired by the same preliminary notification, through which the lands of the petitioners are sought to be acquired, on the ground that the lands concerned are irrigated lands and the State Level Single Window Agency which cleared the project of respondent No.5 has specifically mentioned that such lands could not be acquired for the purposes of respondent No.5. It is also contended that the said acquisition goes against the circular issued by the State. Finally, it is contended that the lands of the petitioners so situated and leaving out the

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same from acquisition does not affect the contiguity of the area i.e., for the purposes of respondent No.5 - Institution.

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For the said reason, it is prayed that the writ petition be allowed and the preliminary and final notifications acquiring the lands of the petitioners be set aside.

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Per contra, learned counsel for the respondents together submit that though there may be certain errors in the conclusion arrived at by the respondent No.4 as to the exact nature of the land, the same does not entitle the

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NC: 2024:KHC:3236 WP No. 25964 of 2023

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petitioners to seek the final notification and the preliminary notification to be set aside. It is submitted that in the larger interest of public, the lands of the petitioners are sought to be acquired and even presuming that the lands of the petitioners are irrigated and agricultural lands, it is permissible for the State to acquire the same. It is also submitted that the condition mentioned by the State Level Single Window Agency does not confer any right in favour of the petitioners, but it is only a guideline to the State as to how the lands have to be chosen while

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acquiring for the purposes of respondent No.5. It is also contended that there were no circulars in place when the lands of the petitioners were sought to be acquired regarding non-acquisition of irrigated agricultural land. It is also contended that the circulars were passed only subsequently, and even then, the circulars says that if it affects the contiguity of the project, then in that event, irrigated lands cannot be acquired and it is also contended that the contiguity of the project in the instant case is

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NC: 2024:KHC:3236 WP No. 25964 of 2023

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affected, if the lands of the petitioners are not acquired for the purposes of respondent No.5.

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It is submitted that respondent No.5 with a noble idea of establishing a Medical College, Hospital and Research Centre, which is sought to be established in Davanagere providing medical facilities for the under developed areas of the State i.e., for the greater public importance, sought allotment of lands from KIADB, which has been allotted and it includes lands of the petitioners. It is also submitted that the petitioners are always entitled to the compensation depending upon the nature of their land. As their lands are agricultural lands, they can

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always buy another piece of agricultural land from compensation amount and carry on their activities. It is further submitted that the petitioners on an earlier occasion had sought for conversion of their land for nonagricultural purposes and now they cannot turn around and say that their lands are irrigated agricultural land and the same cannot be acquired. In the light of the same, it

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NC: 2024:KHC:3236 WP No. 25964 of 2023

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is submitted that the petitioners have not come to the Court with clean hands and this Court should not show any indulgence while exercising its power under Article 226 of the Constitution of India in favour of the petitioners.

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The question that arises for consideration in the instant case is whether the State is prohibited from acquiring irrigated agricultural land for the purposes of industrial growth and whether mere error in recording of facts by respondent No.4 - SLAO alone is sufficient to remand the matter back to SLAO when the same is sought to be clarified by the State by providing materials before this Court and establish that the lands are capable of being acquired.

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Section 28(1) of the KIAD Act reads as under:-

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"28. Acquisition of land.- (1) If at any time, in the opinion of the State Government, any land is required for the purpose of development by the Board, or for any other purpose in furtherance of the objects of this Act, the State Government

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may by notification, give notice of its intention to acquire such land."

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The Karnataka Industrial Areas Development Act is enacted with the purpose of achieving orderly establishment and development of Industries in the suitable areas of the State. The act does not specify which land alone can be acquired and which land cannot be acquired. However, circulars are issued time and again so that there will be certain guidelines for acquiring Authority as to what lands had to be acquired and how the public interest has to be served and also keeping in view the agricultural growth for the State.

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Under the present given facts and circumstances of the case, it is not in dispute that no circulars were issued prior to issuance of preliminary notification prohibiting acquisition of irrigated agricultural land. No doubt that there is a mention by the State Level Single Window Agency, which has cleared the project of the petitioners stating that irrigated agricultural lands have to be left out

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while acquiring the lands for the purposes of respondent No.5. However, the map produced by the respondent No.5 which is not disputed by the petitioners, when read as a whole shows that the lands of the petitioners are in between the lands which is sought to be acquired for the purposes of respondent No.5 and to have contiguity, it has to be opined that the lands of the petitioners are necessary for the purposes of respondent No.5. While acquiring the land, the public purposes have different degrees of importance and State should endeavour to achieve a balanced growth by taking into consideration as to who require the land more. In the instant case, the lands are sought to be acquired for the purposes of Hospital, Medical College and Research Institute, in an area which abuts not so developed areas of the State and such a Hospital is required in the said part of the State in the interest of the public at large. As contended by the respondents, the petitioners can seek adequate compensation for their lands and can always purchase any other agricultural land, if required. It is also noticed that

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the petitioners themselves in W.P.Nos.24464-68/2004 had prayed for a direction to the State Authorities to convert their land for residential purposes on the ground that all the surrounding areas have been developed. It is also noticed from the map that their lands abuts the National Highway. This act of the petitioners also discloses the fact that the lands can be put to better use than for agricultural purposes. Under the given facts and circumstances, allotting the land to respondent No.5, serves the larger public interest.

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As admitted by the respondents themselves, certain factual errors have been committed by respondent No.4 while recording the nature of the land. But that alone will not be fatal to the case as the nature of land and objections of the petitioners and whether the lands are fit for acquisition or not is considered in this writ petition based on the undisputed materials made available by the parties concerned. Thus, under the given facts and circumstances of the case and given the fact that the

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preliminary notification was first issued in the year 2004, remanding the matter on this ground alone when the facts

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are otherwise clear will be an exercise in futility and will

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only drag on the proceedings.

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For the aforementioned reasons, the writ petition is hereby dismissed .

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Pending interlocutory applications, if any, stands disposed of.

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Sd/JUDGE

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VMB

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List No.: 1 Sl No.: 24

K Shivaprasad v. the State of Karnataka

Case brief

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What the court decided

K Shivaprasad v. the State of Karnataka

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