Dismissed¶138

Shri. Balakrishna Shetty v. the State of Karnataka

Karnataka HC13 Jan 2025WP/57957/2016

Case brief

AI extract

What is this about?

KIAD Act Section 28(1), 28(4), 28(6), 28(7), 28(8), 29, 29(2); no award passed; Price Advisory Committee 16.12.2015; Rs.40,00,000 per acre agreed compensation; Rs.44,00,600 deposited; Udupi Power Corporation Limited; Yellur Village Udupi; thermal power plant expansion; environmental clearance for construction not acquisition; NGT O.A. 578-580/2018; RFCTLARR 2013 Section 24 inapplicable to KIAD Act; small parcel 7.06 acres out of 503.25 acres; Article 226 discretion; writ petition dismissed.

What did the court decide?

Since the land losers unanimously agreed for fixation of price of Rs.40,00,000/- per acre before the Price Advisory Committee, there was no necessity for the respondent-Authorities to pass an award under the circumstances of the case. ¶98

Shri. Balakrishna Shetty Vs the State of Karnataka — Land Acquisition | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the acquisition proceedings under the KIAD Act lapse or are liable to be set aside for failure to pass an award under Section 29 despite notifications of 1995 and 1998. +3 more

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Court's answer

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Ratio / Principle

In view of the law declared in Anasuya Bai (2017) 3 SCC 313, Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is not applicable to the KIAD Act.

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Key takeaways

The acquired land under the impugned notifications stands vested with the respondent-Authorities, possession having been taken under Section 28(8) of the KIAD Act on 08.08.2016, and the revenue records stand transferred in favour of respondent-KIADB.ratio¶95
At this stage, possession having been taken on 08.08.2016, interfering with the acquisition proceedings is beyond the jurisdiction of Article 226 of the Constitution of India.ratio¶134
Per the Notification dated 14.09.2006, environmental clearance is required for the purpose of construction and not for the purpose of acquisition of land; hence the submission founded on C. Kenchappa (2006) 6 SCC 371 cannot be accepted and the judgments cited by petitioners' counsel are not applicable, the project having been approved by the State Government.

Detailed headnote1 paragraphs

Karnataka High Court (Single Bench, E.S. Indiresh J.) dismissed a writ petition challenging the preliminary notification dated 20.01.1995 under Section 28(1) and the final notification dated 28.05.1998 under Section 28(4) of the Karnataka Industrial Areas Development Act, 1966, and notices dated 15.02.2016 and 08.09.2016, concerning 7.06 acres in Yellur Village, Udupi Taluk, forming part of a 503.25-acre acquisition for expansion of the Udupi Thermal Power Plant of respondent No.4. Held: (i) as the land losers, including petitioner No.3, unanimously agreed before the Price Advisory Committee (meeting dated 16.12.2015) to compensation of Rs.40,00,000/- per acre, no award under Section 29 KIAD Act was necessary; (ii) per Anasuya Bai (2017) 3 SCC 313, Section 24 of the RFCTLARR Act, 2013 does not apply to KIAD Act acquisitions; (iii) environmental clearance is required for construction, not acquisition (Notification dated 14.09.2006), so C. Kenchappa (2006) 6 SCC 371 was distinguished; (iv) possession was taken on 08.08.2016 under Section 28(8), the land vested in the authorities and revenue records stood transferred, and further interference exceeded Article 226 jurisdiction; (v) following Om Prakash (1998) 6 SCC 1, M.S.P.L. Ltd. (2022 SCC OnLine SC 1380) and Jayalakshmamma (C.A. No.13785 of 2024), interference with a large acquisition at the instance of owners of a small bit of land is unwarranted. Petition dismissed as devoid of merits.

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE E.S. INDIRESH

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WRIT PETITION NO.57957 OF 2016 (LA-KIADB)

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BETWEEN:

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SHRI. BALAKRISHNA SHETTY S/O LATE SUNDARI SHETTY AGED ABOUT 71 YEARS.

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SHRI. MADHAVA SHAMBRYA SHETTY S/O LATE SUNDARI SHETTY AGED ABOUT 55 YEARS.

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SHRI. HARISHCHANDRA SHAMBRAYA SHETTY S/O LATE SUNDARI SHETTY AGED ABOUT 46 YEARS.

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V N BADIGER

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Digitally signed by V N BADIGER Date: 2025.01.16 13:03:00 +0530

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ALL ARE RESIDING AT: KEMUNDEL BHANDRA HOUSE, YELLUR VILLAGE, UDUPI TALUK, UDUPI DISTRICT – 574 119.

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(BY SRI. CLIFTON D. ROZARIO, ADVOCATE)

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AND:

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…PETITIONERS

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THE STATE OF KARNATKA REP. BY ITS SECRETARY REVENUE DEPARTMENT, M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI, BENGALURU – 560 001.

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SPECIAL LAND ACQUISTION OFFICE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD,

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BAIKAMPADI, MANGALURU, DAKSHINA KANNADA DISTRICT – 575 009.

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CHIEF EXECUTIVE OFFICER KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, 14/3, RASHTROTHANA PARISHAT, 2^ND FLOOR, NRUPATHUNGA ROAD, BENGALURU – 560 002.

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UDUPI POWER CORPORATION LIMITED YELLUR VILLAGE, PILLAR POST, PADUBIDIRI, UDUPI DISTRICT – 574 113.

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REGISTERED OFFICE AT: 2^ND FLOOR, LE PARC RICHMONDE, 51, RICHMOND ROAD, BENGALURU – 560 025.

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STATE OF KARNATAKA REP. BY SECRETARY, DEPARTMENT OF INDUSTRIES AND COMMERCE, M.S. BUILDING, BENGALURU – 560 001.

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…RESPONDENTS

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(BY SRI. RAVINDRANATH B., AGA FOR R1 AND R5; SRI. B.B. PATIL, ADVOCATE FOR R2 AND R3; SRI. RAJESWARA P.N., ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DATED 20^TH JANUARY, 1995 ISSUED UNDER SECTION 28(1) AND NOTIFICATION DATED 28^TH MAY, 1998 ISSUED UNDER SECTION 28(4) OF THE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT ACT, 1966 BY THE RESPONDENT NO.1 VIDE ANNEXURES ‘E’ AND ‘F’ IN RESPECT

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OF LAND BELONGING TO PETITIONERS; QUASH THE NOTICE DATED 08^TH SEPTEMBER, 2016 ISSUED BY THE RESPONDENT NO.2 VIDE ANNEXURE-G; QUASH THE NOTICE DATED 15^TH FEBRUARY, 2016 ISSUED BY THE RESPONDENT NO.2 VIDE ANNEXURE-H; AND ETC.

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THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS, COMING FOR PRONOUNCEMENT OF ORDERS, THIS DAY, E.S. INDIRESH J., MADE THE FOLLOWING:. CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH

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CAV ORDER

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In this writ petition, petitioners are assailing the Notification dated 20^th January, 1995 (Annexure-E) issued under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 (for short, hereinafter referred to as ‘KIAD Act’); Notification dated 28^th May, 1998 (Annexure-F) issued under Section 28(4) of the KIAD Act by the respondent No.1; Notice dated 08^th September, 2016 (Annexure-G) and 15^th February, 2016 (Annexure-H) issued by the respondent No.2; inter alia sought for direction to the respondents 1 to 3 restraining from carrying out the acquisition proceedings in respect of the subject land.

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The relevant facts for adjudication of this writ petition

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are that the petitioner No.1 had purchased the land bearing

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Survey No.405/P1 of Yellur Village, Udupi Taluk to an extent of 2.11 acres as per the registered Sale Deed dated 25^th May, 1994 (Annexure-B) and land bearing Survey No.225/7 of Yellur Village, Udupi Taluk to an extent of 0.30 acre as per registered Sale Deed dated 25^th May, 1994 (Annexure-A). It is also averred in the petitioner that the mother of the petitioners had purchased land to an extent of 4.65 acres in Survey No.521/2 as per registered Sale Deeds dated 10^th March, 1983 (Annexure-C) and as such, the petitioners claim to be the absolute owners in possession of the aforementioned lands.

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The petitioners have also stated that the aforementioned lands are agricultural lands consisting of Trees as per the photographs produced at Annexure-D series. It is further stated in the writ petition that the respondents have proposed to acquire 503.24 acres of land for the purpose of installation of power plant, however, the possession to an extent of 139.02 acres was not taken as well as compensation has not been awarded. The land belonging to the petitioners is a part of 139.02 acres. The petitioner No.1 challenged the Notifications issued under Section 28(1) and 28(4) of the KIAD Act by the respondent-Authorities in respect of land bearing Survey No.444/05 and Survey No.445 to an extent of 1.11 acre

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and 1.52 acres respectively and the said challenge was rejected. It is further pleaded that, the respondent-Authorities have not taken possession of land in question pursuant to declaration made under Section 28(4) of the KIAD Act and no compensation has been paid. It is also stated in the petition that, no award has been passed with regard to the subject land in question, however, the respondent No.2 issued Notice dated 08^th September, 2016 (Annexure-G) to the mother of the petitioners, stating that the land to an extent of 7.06 acres has been acquired for the benefit of respondent No.4 and accordingly, called upon the mother of the petitioners to receive the compensation by submitting the relevant documents within seven days, failing which the compensation will be deposited before the competent court under Section 30 and 31 of the Land Acquisition Act, 1894. It is also stated by the petitioners that, Notices dated 08^th September, 2016 (Annexure-G) and 15^th February, 2016 (Annexure-H) were issued in the name of mother and father of the petitioners, who were died at that relevant point of time.

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The petitioners have also averred in the petition that the respondent-Authorities have illegally changed the mutation entries in respect of the subject land and as such, the petitioner

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No.1 had sent E-Mail dated 20^th October, 2016 (Annexure-L) to the respondent No.3 in this regard. Further, the respondent No.2 issued Notice dated 08^th December, 2015 (Annexure-M) to the petitioner No.1 calling upon him to participate in the meeting scheduled on 16^th December, 2015 under the chairmanship of the Deputy Commissioner, Udupi District to fix ex-gratia in respect of the land to an extent of 139.02 acres, which has not been taken from the possession of land loosers. Pursuant to same, the petitioner No.1 had addressed letter dated 13^th December, 2015 (Annexure-N) to the Deputy Commissioner, Udupi District stating that, he is staying in abroad and not able to participate in the meeting scheduled on 16^th December, 2015 as stated in the Notice dated 08^th December, 2015 and accordingly, he submitted his objections for further action towards expansion of Power plant. In pursuant to same, the Deputy Commissioner, Udupi District had called meeting of the statutory bodies as per letter dated 30^th December, 2015 (Annexure-P) including the owners of the land as stated in the impugned notifications and the officers of the respondent No.4. The minutes of the meeting is produced at Annexure-P to the writ petition.

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It is the further case of the petitioners that the Ministry of Environment and Forest had granted environmental clearance dated 01^st August, 2017 in favour of the respondent No.4 for expansion of the Thermal Power Plant. In furtherance of the same, Public Interest Litigation was filed before this Court by Janajagruthi Samithi in several writ petitions and those petitions were transferred to the National Green Tribunal and same was registered as O.A. No.578-580 of 2018. Writ Petition No.22933 of 2012 was also filed before this Court, and same was registered as Appeal No.176 of 2018, wherein grant of environmental clearance was challenged. It is the further case of the petitioners that the applications and appeals were allowed in-part by the National Green Tribunal as per order dated 14^th March, 2019 (Annexure-S) and therefore, it is the contention of petitioners that the environmental clearance of the Phase-2 of the project is yet to be granted by the competent authorities and accordingly, sought for quashing the acquisition proceedings in respect of subject land. The petitioners have also produced the Final Assessment Report prepared by the Environmental Management and Policy Research Institute, Department of Forest, Ecology and Environment, Government of Karnataka as per Annexure-T to

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the writ petition. The petitioners have also produced order dated 31^st May, 2022 (Annexure-U) passed by the National Green Tribunal, wherein the respondent No.4 was directed to pay environmental compensation of Rs.52,02,50,000/- for the damage caused to the environment on account of violation of conditions and directions and health impact in the said area. Therefore, it is the contention of the petitioners that the impugned notifications issued by the respondent-Authorities are contrary to law, so also, no award has been passed. Accordingly, the petitioners have sought for quashing of the impugned notifications.

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It is pertinent to mention here that this Court, by order dated 10^th December, 2024, had directed the respondent No.2-Special Land Acquisition Officer to file affidavit as to whether the award has been passed and compensation is deposited before the competent Civil Court by the respondentAuthorites. In this regard, the respondent No.2, had filed affidavit dated 13^th December, 2024 and stated that the possession of the land in question has been taken by the respondent-KIADB under Section 28(8) of the KIAD Act on 08^th August, 2016. It is also stated in the affidavit that meeting was held on 16^th December, 2015 under the Chairmanship of

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the Deputy Commissioner, Udupi District along with the officers of the KIADB and respondent No.4 and the land loosers in the said acquisition proceedings to fix the price of the subject land under the acquisition proceedings and further, notice under Section 29(2) of the KIAD Act was issued on 15^th July, 2016 calling upon the petitioners to submit the documents to receive compensation, however, the petitioners have not produced relevant documents and as such, impugned notices were issued. The respondent No.2 had also stated in the affidavit that the portion of the compensation was deposited before the Principal Civil Judge (Senior Division), Udupi for a sum of Rs.44,00,600/as per Cheque No.003918 dated 16^th September, 2016. Hence, it is contended that, the compensation has been deposited in terms of meeting held on 16^th December, 2015 and as such, no award was passed under Section 29 of the KIAD Act.

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In the backdrop of these aspects, I have heard Sri. Clifton D. Rozario, learned counsel appearing for petitioners; Sri. Ravindranth B., learned Additional Government Advocate appearing for respondents 1 and 5; Sri. B.B. Patil, learned counsel appearing for respondents 2 and 3; and Sri. Rajeswara P.N., learned counsel appearing for the respondent No.4.

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Sri. Clifton D. Rozario, learned counsel appearing for

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petitioners contended that, though the respondent-Authorities have issued the impugned notifications for acquisition of land in question, however, no award has been passed for more than 29 years and therefore, the entire acquisition proceedings would lapse and accordingly, the acquisition proceedings are liable to be set-aside. In this regard, learned counsel appearing for petitioners refer to the affidavit dated 13^th December, 2024 filed by the respondent No.2 and contended that, since no award is passed under Section 29 of the KIAD Act, the prayer made in the writ petition is to be accepted. It is also contended by the learned counsel appearing for petitioners that the respondent-Authorities have to complete the acquisition proceedings within a reasonable period and therefore, in view of not passing award, the acquisition proceedings vitiates the same. In this regard, learned counsel appearing for petitioners refers to the judgment of this Court, in the case of H.N. SHIVANNA AND OTHERS vs. STATE OF KANRNATAKA, DEPARTMENT OF INDUSTRIES AND COMMERCE AND ANOTHER reported in (2013) 4 AKR 163 and in the case of KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD AND ANOTHER vs. SRI. MUNINANJINAPPA AND

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ANOTHER made in Writ Appeal No.1268 of 2021 decided on 17^th March, 2022.

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Nextly, Sri. Clifton D. Rozario, learned counsel appearing for petitioners argued that the acquisition proceedings were initiated for the purpose of expansion of respondent No.4-Udupi Power Corporation Limited and the said Project was granted with environmental clearance by order dated 01^st August, 2017, however, the said environmental clearance was challenged before the National Green Tribunal and the Tribunal, noted that the acquisition proceedings would affect the biodiversity in the area so also, contaminate the water (surface and ground) and therefore, he contended that, unless the said clearance is secured by the respondentAuthorities in a manner known to law, the entire project of the respondent-Authorities is required to be stalled. In this regard, he places reliance on the judgment of the Hon’ble Supreme Court in the case of KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD vs. C. KENCHAPPA AND OTHERS reported in (2006) 6 SCC 371 and argued that, in the event of any acquisition proceedings initiated by the statutory authorities, the same shall not impair the ecology and the environment. It is contended by the learned counsel appearing

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for petitioners Sri. Clifton D. Rozario that the acquisition proceedings initiated by the respondent-Authorities for the benefit of the respondent No.4 is unnecessary for the proposed expansion as per the Expert Appraisal Committee on Environment Impact Assessment of Thermal Plants and Coal Mine Projects held on 07^th July, 2010 and 09^th July, 2010, wherein it is observed that, such expansion will be carried out adjacent to existing units and within the land allotted to Power Plant.

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Finally, it is also contended by learned counsel appearing for petitioners that the meeting held at the instance of statutory bodies and the land loosers on 16^th December, 2015 in the presence of the Deputy Commissioner, Udupi District, was participated by the petitioner No.3 on behalf of other petitioners, however, no document was submitted by the petitioners to receive the compensation and therefore, the contentions raised in the statement of objections by the respondent cannot be accepted. It is also the specific contention of the learned counsel appearing for petitioners that the respondent-Authorities have not taken possession of the land in question and accordingly, sought for interference of this Court.

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Per contra, Sri. B.B. Patil, learned counsel appearing

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for the respondent-Karnataka Industrial Areas Development Board sought to justify the impugned notifications issued by the respondent-Authorities and argued that the respondent-KIADB had taken possession of land in question and in this regard, he refers to Notice dated 15^th February, 2016 (Annexure-H) issued under Section 28(6) of the KIAD Act. He contended that, as the possession of the land in question has been taken and as such, no interference be called for in this writ petition. He furtheralso refers to the letter dated 23^rd March, 2016 addressed by the respondent No.2 to the Development Officer and Executive Engineer, KIADB, Mangaluru and argued that the possession of the entire extent of land proposed for acquisition including the land belonging to petitioners herein has been taken.

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Referring to the affidavit dated 13^th December, 2024 filed by the respondent No.2, learned counsel appearing for respondent-KIADB argued that the land in question is vested with the Government free from all encumbrances and the Price Advisory Committee Meeting was held on 04^th November, 2006, wherein the petitioner No.3 had participated on behalf of petitioners. He further submitted that, in the said meeting,

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price of the lands to be acquired was revised from Rs.2,65,000/- to Rs.4,56,000/- per acre and therefore, after negotiation with the land loosers, the price was fixed at Rs.44,00,000/- per acre. It was informed by the respondentKIADB that the price determined by the Committee would be paid by the respondent-KIADB and the remaining difference amount would be paid by the respondent No.4 beneficiary company. He also submitted that, Notice dated 08^th September, 2016 (Annexure-G) was issued to the petitioners to receive the compensation by producing the relevant documents and as the petitioners did not come forward to receive the compensation, the respondent-KIADB was constrained to deposit the portion of compensation amount to an extent of Rs.44,00,600/as per Cheque No.003918 dated 16^th September, 2016 before the Principal Civil Judge (Sr.Dn.), Udupi and in that view of the matter, as the petitioners were present in the meeting held on 16^th December, 2015 at the time of fixation of price to the lands to be acquired and same was accepted by the petitioners and therefore, no award was passed since, the land loosers expressed their willingness under Section 29(2) of the KIAD Act. It is also submitted by learned counsel appearing for the respondent-KIADB that, as the larger

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extent of land is acquired for public purpose and therefore, this Court, should not interfere at the instance of the land owners who owns small bit of land like petitioners herein. In this regard, he places reliance on the judgment of the Hon’ble Supreme Court in the case of OM PRAKASH AND ANOTHER vs. STATE OF UTTAR PRADESH AND OTHERS reported in (1998) 6 SCC 1 and in the case of M.S.P.L. LTD. Vs. STATE OF KARNATAKA AND OTHERS reported in 2022 SCC OnLine SC 1380. Accordingly, learned counsel appearing for the respondent-KIADB sought for dismissal of the petition.

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Sri. P.N. Rajeswara, learned counsel appearing for the respondent No.4-beneficiary company referring to Notice dated 08^th September, 2016 (Annexure-G) contended that the possession of the land is taken by the respondent-KIADB under Section 28(7) of the KIAD Act. He also refers to the letter dated 13^th December, 2015 (Annexure-N) addressed by the petitioner No.1 and argued that the petitioners intend to put-up industry including a Solar Generation Plant and therefore, the environmental clearance is not required even according to the petitioners themselves. It is also argued by learned counsel appearing for the respondent No.4 that the petitioner No.3 had participated the meeting held by the Price Advisory Committee

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along with various land loosers and in the said meeting, it was decided to award the compensation by enhancing the same up to 40,00,000/- per acre and as there is unanimous agreement by the land loosers with the statutory bodies, the respondentAuthorities have not passed award under Section 29 of the KIAD Act. It is also the contention of the learned counsel appearing for the respondent No.4 that the Ministry of Environment and Forest vide Notification dated 14^th September, 2006 held that the environmental clearance is required only for the purpose of construction and not for acquisition proceedings and therefore, the judgment of Hon’ble Supreme Court in the case of C. KENCHAPPA (supra) is not applicable to the case on hand.

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Nextly, it is contended by Sri. P.N. Rajeswara, learned counsel that, in view of the judgment of Hon’ble Supreme Court in the case of SPECIAL LAND ACQUISTION OFFICER, KIADB, MYSORE AND ANOTHER vs. ANASUYA BAI (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS reported in (2017) 3 SCC 313, the provisions under the Land Acquisition Act are not applicable to the acquisition proceedings under the KIAD Act and therefore, sought for dismissal of the writ petition.

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In the light of the submission made by learned counsel appearing for the parties, it is not in dispute that the respondent-Authorities have issued Preliminary Notification dated 20^th January, 1995 (Annexure-E) and Final Notification dated 28^th May, 1998 under Section 28(1) and 28(4) of Karnataka Industrial Areas Development Act, respectively, to acquire the land for the purpose of expansion of Thermal Power Plant. These Notifications have been issued to acquire the land to an extent of 503.25 acres in Yellur Village, Udupi District. Perusal of the writ papers would indicate that the possession of land in question has been taken as per Section 28(8) of KIAD Act and the State Government had transferred the land to the respondent-KIADB. It is also not in dispute that the Price Advisory Committee Meeting was held on 16^th December 2015 under the Chairmanship of Deputy Commissioner, Udupi District in which the statutory bodies, beneficiary of the land and land loosers have participated for the purpose of price fixation and accordingly, most of the land loosers agreed for fixing the compensation of Rs.40,00,000/- per acre. It is also stated in the minutes of the meeting dated 16^th December, 2015 that the land loosers are also entitled for other benefits from the respondent-Authorities. It is also not in dispute that

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the petitioner No.3 participated in the said meeting and his had not objected for the decision taken by the Committee to fix the compensation, which is reflected in Annexure R12 of statement of objections filed by the respondent No.4.

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In view of the law declared by Hon’ble Supreme

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Court in the case of ANASUYA BAI (supra), Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, hereinafter referred to as ‘2013-Act’) is not applicable to the KIAD Act. It is also to be noted that, notice under Section 28(6) of KIAD Act was issued on 15^th February, 2016 (Annexure-H) with regard to taking possession of land in question and therefore, the perusal of the letter dated 23^rd March, 2016 issued by the respondent No.2 to the Development Officer and Executive Engineer, KIADB would indicate that several lands in Yellur Village, Udupi District along with the petitioners lands have been notified for taking possession. In that view of the matter, the acquired land under the impugned notifications is vested with the respondentAuthorities. It is also not in dispute that the revenue records in respect of the land in question have been transferred in favour of the respondent-KIADB. In view of the fact that land

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loosers have unanimously agreed for fixation of price of Rs.40,00,000/- per acre as per the proceedings before the Price Advisory Committee and as such, there was no necessity for the respondent-Authorities to pass award under the circumstances of the case. It is also to be noted that, in the letter dated 13^th December, 2015 (Annexure-N), the petitioners have stated that the land in question is not suitable for expansion of Thermal Power Plant by the respondent No.4, however, the petitioners have stated that they are interested to put-up an industry including Solar Generation Plant. Therefore, the submission of learned counsel appearing for the petitioners that the land in question is not suitable for project undertaken by the respondent No.4, cannot be accepted as the same is in the domain of acquiring authority and in this regard it is trite law as enunciated by Hon’ble Supreme Court in the case RAMNIK LAL N. BHUTTA AND ANOTHER vs. STATE OF MAHARASHTRA AND OTHERS reported in AIR 1997 SC 1236, wherein it is held as follows:

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“Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the

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world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with china economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenge the acquisition proceedings in courts. These challenges are generally in shape of writ petitions filed on High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power or grant in stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to

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weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of noncompliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lumpsum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.”

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In the backdrop of the aforementioned dictum of the

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Hon’ble Supreme Court in the case of RAMNIK LAL N. BHUTTA (supra), taking into consideration the fact that the proposed acquisition was made to an extent of 503.25 acres in Yellur Village, Udupi District and on perusal the letter dated 23^rd March, 2016 made by respondent No.2 insofar as taking possession of land is concerned, the contention of the petitioners cannot be accepted on the ground that the challenge made in this writ petition is only with regard to a small bit of land to an extent of 7.06 acres out of 503.25 acres of Yellur

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Village, Udupi District. It is also to be noted that the respondent No.4, being a beneficiary of land, intends to expand the Thermal Power Plant, which is for the larger interest of the Public and on this sole ground itself, the writ petition deserves to be dismissed. At this stage, it is relevant to cite the judgment of Hon’ble Supreme Court in the case of OM PRAKASH (supra), wherein, at paragraph 30, it is held as follows:

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“30. Now remains the vital question as to whether in the light of our finding on point No. 1 the notification under Section 4(1) so far as it dispenses with Section 5-A inquiry by invoking powers under Section 17 (4) of the Act and the consequential notification under Section 6 are required to be set aside or not. We must keep in view that we are called upon to exercise our jurisdiction under Article 136 of the constitution of India. Such jurisdiction will necessarily have to be exercised in the light of facts and circumstances of these cases. Section 4 notification in the present cases is dated 5th January 1991. It is followed by Section 6 notification dated 7th January 1992. In between the appellants went to the High Court and got status quo order since 31st March 1992.. Result is that till today even after the expiry of 6 years and more, the land acquisition proceedings qua the appellants' lands have remained stagnant. It is also to be kept in view that the impugned notification under Section 6 of the Act was issued for the purpose of

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planned development of District Ghaziabad through NOIDA and by the said notification, 496 acres of land spread over hundreds of plot numbers have been acquired. Out of 494.26 acres of land under acquisition, only the present appellants owning about 50 acres, making a grievance about acquisition of their lands have gone to the court. Thus, almost 9/10th of the acquired lands have stood validly acquired under the land acquisition proceedings and only dispute centers round 1/10th of these acquired lands owned by the present appellants. It is a comprehensive project for the further planned development in the district. We are informed by learned senior counsel Shri Mohta for NOIDA, that a lot of construction work has been done on the undisputed land under acquisition and pipelines and other infrastructure have been put up. That the disputed lands belonging to the appellants may have stray complex of lands sought to be acquired. That if notification under Section 4(1) read with Section 17 (4) is set aside qua these pockets of lands then the entire development activity in the complex will come to a grinding halt and that would not be in the interest of anyone. It was also contended by learned senior counsel for the respondents that it was not the appellants' contention that the proposed acquisition was not for public purpose nor any mala fides were alleged to the behind such acquisition. learned senior counsel, Shri Shanti Bhushan, fairly stated that though the appellants might have mounted a challenge on the ground of mala fides, they have not done so before the High Court nor before this Court. Under these circumstances, we find considerable force in the contention of learned senior counsel for the

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respondent that it is neither advisable nor feasible to interfere with the acquisition of such large tracts of lands when the occupants of 9/10th of the acquired lands have not thought it fit to challenge these acquisition proceedings and the occupants of only 1/10th of lands are agitating there grievance since more than six years firstly before the High court and then before this Court. The appellants' main grievance centers round the question whether their lands having alleged abadi could be acquired in the light of the State policy for not acquiring such lands. For such a contention, of course, grievance could have been made under Section 5-A inquiry if it was held. But that could have been urged years back before Section 6 notification saw the light of the day in 1992. Now after a passage of more than six years, it would not be feasible to put the clock back and permit the appellants to agitate this contention which appears to be the sole contention for opposing the acquisition proceedings in the facts of the present cases by permitting them to urge this grievance in Section 5-A inquiry which according to them should be held at this stage. We will show presently that this solitary grievance of the appellants could be vindicated before the State authorities themselves by relegating the appellants to proper remedy by way of representation under Section 48 of the Act and when that remedy is available to the appellants and when that is the sold grievance of the appellants, at this stage no useful purpose would be served by striking down the notification under Section 4(1) qua the appellants so far as invocation of Section 17 (4) is concerned and the consequent notification under Section 6. That we cannot permit upsetting the

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entire apple cart of acquisition of 500 acres only at the behest of 1/10th of land owners whose lands are sought to be acquired. We may also keep in view the further alien fact that all the appellants have filed reference for additional compensation under Section 18 of the Act. Shri Shanti Bhushan, learned senior counsel, was right when he contended that the appellants could not have taken the risk of getting their reference applications time barred during the pendency of these proceedings. Therefore, without prejudice to their contentions in the present proceedings they have filed such references. Be that as it may., that shows that an award is also made and reference are pending. Under these circumstances for enabling the appellants to have their say regarding release of their lands on the ground that they are having abadi and that the State Policy helps them in this connection the appellants can be permitted to have their grievances voiced before the State authorities under Section 48 rather than under Section 5-A of the Act at such a late stage. Consequently, despite our finding in favour of the appellants on Point No. 1, we do not think that this is a fit case to set aside the acquisition proceedings on the plea of the appellants about noncompliance with Section 5-A at this late stage. it is also obvious that if on this point the notifications are quashed for non-compliance of Section 5-A, that would open a pandora's box and those occupants who are uptill now sitting on the fence may also get a hint to file further proceedings on the ground of discriminatory treatment by the State authorities. All these complications are required to be avoided and hence while considering the question of exercise of our discretionary jurisdiction

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under Article 136 of the Constitution of India, we do not think that this is a fit case for interference in the present proceedings with the impugned notifications. Point No. 3, therefore, is answered in the affirmative against the appellants and in favour of the respondents.”

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The above said aspect of the matter was considered

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by the Hon’ble Supreme Court in the case of M.S.P.L. LTD. (supra), wherein, paragraph 48 reads as under:

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“48. It is admitted position that the challenge to the acquisition of more than a thousand acres was made by a small fraction of land owners having land less than 10% of the total acquisition. Compensation for rest of the 90% land acquired had been accepted by their respective land owners. The Division Bench has quashed the entire acquisition of more than a thousand acres at the instance of such a small fraction. This aspect has been dealt with by this Court in the case of Amarjit Singh Vs. State of Punjab reported in (2010) 10 SCC 43 and Om Prakash Vs. State of U.P. reported in (1998) 6 SCC 1. The learned Single Judge had placed reliance on the judgment of Om Prakash (supra). It is also worthwhile to mention that out of approx 110 acres of land acquires for MSPL, only one land owner possessing only 4.34 acres of land, had filed the writ appeal before the Division Bench. Quashing the entire acquisition at the instance of one land owner having 4.34 acres of land out of total acquisition for MSPL of 110 acres, would be against the public policy and public interest. The MSPL alone provides employment to 292 persons with a

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substantial investment of Rs.200 crores. The employment to approximately 300 persons by MSPL is also alleged to be double of the number of employees as projected in the proposal. Further, in the case of AISL acquisition of 914 acres is challenged by a fraction of less than 10% land owners. The estimated project of AISL is approx Rs.2092 crores and would employment to at least one thousand persons.”

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Nextly, the principal contention raised by the learned counsel appearing for the petitioners that the intended project of Thermal Power Plant is suffered from environmental clearance, and in this regard, I have given my anxious consideration to the judgment of Hon’ble Supreme Court in the case of C. KENCHAPPA (supra), wherein, it is held that the acquisition of land by the respondent-Authorities should not impair the ecology and environment. In view of the aforementioned dictum of the Hon’ble Supreme Court, I have carefully examined the Notification dated 14^th September, 2006, wherein it is held that the environmental clearance is required for the purpose of construction and not for the purpose of acquisition of land. In that view of the matter, the submission made by learned counsel appearing for the petitioners cannot be accepted as the project initiated by the respondent-Authorities at the behest of the respondent No.4

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has been approved by the State Government. Therefore, the

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judgments referred to by the learned counsel appearing for petitioners are not applicable to the case on hand. At this juncture, it is also relevant to cite the judgment of the Division Bench of this Court in the case of DEJU SHETTY AND OTHERS vs. STATE OF KARNATAKA AND OTHERS made in Writ Appeal No.110 of 2007 c/w Writ Appeal No.1120 of 2007 decided on 05^th September, 2007, wherein, the land has been acquired by the respondent-KIADB for the purpose of commissioning Nagarjuna Power Project in the very same locality and this Court, upheld the acquisition proceedings. That apart, perusal of the affidavit dated 13^th December, 2024 filed by the respondent No.2 would indicate that the possession of the land has been taken on 08^th August, 2016 and therefore, at this stage, interfering with the acquisition proceedings is beyond the jurisdiction of Article 226 of the Constitution of India. Recently, Hon’ble Supreme Court in the case of JAYALAKSHMAMMA AND OTHERS vs. THE STATE OF KARNATAKA AND OTHERS made in Civil Appeal No.13785 of 2024 (arising out of SLP(C) No.12362/2022), at paragraph 13, it is held as follows:

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“13. We cannot be oblivious to the fact that the appellants’ land is a small part of a big chunk of 900 acres of land acquired for regulated development of an urban area. The release of a parcel of land can affect the development activities or disrupt basic amenities to be provided in the newly developed urban area. Still further, the small parcel of land owned by the appellants is not likely to be of any use unless it is integrated as a contiguous part of the development plan.”

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Following the law declared by Hon’ble Supreme Court in the case of JAYALAKSHMAMMA (supra) and in view of the observation made by this Court in the case of V.T. KRISHNAMOORTHY vs. STATE OF KARNATAKA reported in ILR 1991 KAR 1183, the petitioner No.3 herein had participated in the price fixation process by the Committee as stated above, which concludes that the petitioners are interested for higher compensation than the compensation fixed by the acquiring authority. Therefore, I do not find any acceptable ground to interfere with the acquisition proceedings in the case on hand. Accordingly, the writ petition is dismissed as devoid of merits.

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Sd/(E.S. INDIRESH) JUDGE

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ARK

Shri. Balakrishna Shetty v. the State of Karnataka

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Shri. Balakrishna Shetty v. the State of Karnataka

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