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2007 DIGILAW 272 (KAR)

MARGHA BAI PACHAN PATEL v. STATE OF KARNATAKA

2007-04-13

H.V.G.RAMESH

body2007
( 1 ) IN this petition, petitioner has sought for issuance of a writ of certiorari to quash annexure H and J the orders dated 21-12-2000 and 30-5-2001 respectively. ( 2 ) PETITIONER is said to be the owner of land in Sy. No. 71 at Doddathogur village, Begur hobli, Bangalore South Taluk measuring 9. 35 acres and out of which the petitioner is said to be the absolute owner in possession of enjoyment of the land to the extent of 6. 23 acres. According to the petitioner, she has purchased the above property under two different sale deeds - on 16-6-1990 from one Smt. Jayamma and her four daughters to the extent of 3. 11 acres under Annexure A and another 3. 12 acres from one Krishnappa, his mother and three brothers under annexure A1. The name of the petitioner is said to have been entered in the RTC and also in the mutation register as per annexure C. An area of 3. 00 acres in Sy. No. 71 was converted for industrial purpose on 4-2-2000 as per annexure D and the remaining area in possession of the petitioner to an extent of 3. 23 acres, was also got converted for industrial purpose by order dated 13-6-2001 of the Deputy Commissioner at annexure Dl. It is stated in the petition that that there are in all thirty members in the joint family of the petitioner including children and grandchildren and after getting the land converted they have established two plywood factories and also one MMT Digital printing Multi National Company and they have also put up more than 50,000 sq. ft. RCC building in respect of MMT India Ltd. and also 30,000 sq. ft. were utilised for putting up vikas Board Industry and another 30,000 sq. ft. is utilised for Vimal Veneers after obtaining permission from the Panchayat and various other authorities. ( 3 ) THE main grievance of the petitioner is the area to the extent of 3. ft. RCC building in respect of MMT India Ltd. and also 30,000 sq. ft. were utilised for putting up vikas Board Industry and another 30,000 sq. ft. is utilised for Vimal Veneers after obtaining permission from the Panchayat and various other authorities. ( 3 ) THE main grievance of the petitioner is the area to the extent of 3. 23 acres in respect of which she has subsequently obtained an order of conversion by order dated 13-6-2001 whereas this respondent KIADB has notified for acquisition on 21-12-2000 as per annexure H and also the final notification was issued on 30-5-2001 at annexure J. The specific case of the petitioner is that, no notice was served on the petitioner or any member of the family who are in actual possession of the property in question. She came to know about the preliminary and final notification only in the month of June regarding the proposed acquisition and she filed detailed objection on 26-6-2001 as per annexure K. ( 4 ) ACCORDING to the petitioner the Special land Acquisition Officer has inspected the spot without notice to the petitioner and has prepared the sketch and also made note of the existence of a running industry and accordingly, has advised to drop the acquisition proceedings by this letter dated 19-1-2002 on the basis of the objections filed by the petitioner on 26-6-2001. Further according to the petitioner, although the respondent authority has notified for acquisition an extent of 162. 21 acres on 21-12-2000, an extent of 48. 14 acres were left out from acquisition proceedings. Thus questioning the acquisition of 3. 23 acres in Sy. No. 71 belonging to her, the petitioner is before this Court challenging the acquisition made as per annexures H and J under the kiadb Act, on various grounds. ( 5 ) THE respondent KIADB today has filed objections contending that petition is not maintainable on facts and on law. Although the respondent authority has sought to acquire 162. 21 acres in the area, as it was found that 48. 14 acres was not required the land to that extent was deleted from acquisition and even in that, to an extent of 3. 00 acres the objection of the petitioner was considered and the same was deleted and in the acquired land, a biotechnology Park is sought to be established. 14 acres was not required the land to that extent was deleted from acquisition and even in that, to an extent of 3. 00 acres the objection of the petitioner was considered and the same was deleted and in the acquired land, a biotechnology Park is sought to be established. The petition is also objected mainly on the ground that petitioner has got the land converted for industrial use and is already running an industry in the land. As on the date of acquisition, petitioner could not have established any industry on the lands in question; the lands were agricultural lands and the respondent authority were authorised to acquire the lands; the say of the petitioner that notice has not been served is false as notices were issued to all the owners and as the address of the petitioner was not available; notice was affixed on the property. Even otherwise, the preliminary notification was published in accordance with law and it amounts to notice to the entire world at large. The area in question was examined and only after it was found fit, it was sought to be acquired and there is no discrimination. After scientific analysis, as it was found that an extent of 3,00 acres belonging to the petitioner was not required for industrial purpose, the same has been deleted. It is also stand that the award for acquisition was also made on time in accordance with law. ( 6 ) HEARD the counsel for the petitioner, counsel representing the respondent Board and the Addl. Government Advocate. ( 7 ) IT is the argument of Sri Vijayashankar, sr. Counsel representing the petitioner referring to the sketch of the area in question wherein the Board sought to acquire 162 acres of land for industrial purpose that, the Board has deleted an extent of 48 acres as not required for industrial purpose and accordingly submitted that such deletion was in piece meal by the respondent Authority as such there are no norms being followed by the Board in proceeding to acquire or delete the lands proposed for acquisition and no reasons have been assigned while deleting 3. 00 acres of land belonging to the petitioner or for allowing to retain the remaining 3. 00 acres of land belonging to the petitioner or for allowing to retain the remaining 3. 23 acres for acquisition and there is also no due service of notice and even according to the respondents, it is only by way of substituted service and there is no attempt being made to serve the notice on the petitioner nor any procedure is being followed to serve the notice. Accordingly, in support of his argument, referring to the Division Bench decision of this Court in the case of H. G. Kulkarni and Ors. v. Assistant Commissioner, Belgaum Sub-Dvn. , Belgaum and ors. , ILR 1976 (1) Kar 787, he submitted that as per S. 28 (3) of the Act, there should be a personal hearing and there is no compliance as such the very acquisition proceeding vitiates and even as per S. 28 (2), service of notice as contemplated is mandatory and non-compliance of the same vitiates the proceedings. He has also relied upon the decision in the case of S. E. Kempaiah v. KIADB, 1980 (2) KLJ 403 to a similar effect. Learned Sr. Counsel has also relied upon the decision of the Apex Court in the case of Hindustan Petroleum Corporation Ltd. v. Darius Shahpur chennai and Ors. (2005) 7 SCC 627 : (AIR 2005 SC 3520) with respect to the Land Acquisition Act, wherein it is observed that hearing of objection must be effective and not mere formality and there must be proper application of mind and regard to public purpose by considering relevant factors and rejecting irrelevant factors and in cases of acquisition proceedings, the decision making process is subject to judicial review if there is any illegality, procedural impropriety or irrationality or where power is not exercised fairly and reasonably. He has also relied on various other decisions of this Court on the point to contend that the objection filed be disposed of with reasons and not in a technical manner. ( 8 ) FURTHER, with reference to the conversion order issued by the Deputy Commissioner, learned Sr. Counsel has relied upon the decision reported in (1996) 1 SCC 443 to contend that one arm of law cannot be utilised to defeat the other arm of law. Doing so would be opposed to public policy and bring the law into ridicule. ( 8 ) FURTHER, with reference to the conversion order issued by the Deputy Commissioner, learned Sr. Counsel has relied upon the decision reported in (1996) 1 SCC 443 to contend that one arm of law cannot be utilised to defeat the other arm of law. Doing so would be opposed to public policy and bring the law into ridicule. ( 9 ) IT is the argument of the counsel representing the Board that notice has been served in accordance with law and having taken into consideration the requirement of the petitioner an extent of 3. 00 acres was deleted from acquisition as there was an existing industry and also tried to emphasize on the share for having made substituted service. Further, he also submitted that thereafter also the objection of the petitioner has been considered and rejected. There is no illegality in the acquisition of the land belonging to the petitioner (sic)by the Deputy Commissioner is non est and void ab initio. ( 10 ) FROM a perusal of the records it is very much clear that the authorities were not aware of the address of the petitioner and no effort is shown to have been made to collect the address of the petitioner even when it is the case of the respondent as well as the petitioner that adjacent to the very land in question, there is an industry running. The respondent authority could have very well attempted to secure the address and serve the notice in due course. Rather, considering the manner in which the notice is served i. e. by substituted service, the petitioner approached the Board after completion of the acquisition proceedings and in support of her stand, has shown the conversion order of the Deputy Commissioner converting the land for industrial purpose, to be used by the petitioner which is a subsequent order. The said order of the Government granting conversion of the land for industrial purpose to be utilised by the petitioner is subsequent to the so called acquisition said to have been made by the respondent Board. It is to be seen that the KIDB is a special enactment which lends support for requisition and also the provisions made therein also are said to have having an overriding effect on other enactments subsequent to the acquisition proceedings. It is to be seen that the KIDB is a special enactment which lends support for requisition and also the provisions made therein also are said to have having an overriding effect on other enactments subsequent to the acquisition proceedings. Subsequent to the acquisition proceedings, the land is said to be acquired for industrial purpose and according to the respondent authority, they have taken possession of the property. Subsequently thereafter, within a short period, the Deputy Commissioner by his order dated 13-6-2001 has issued permission to the petitioner by way of converting the land for industrial purpose. Thus, there is inconsistent stand between the Government on the one hand and the Board on the other. In the circumstances, it would be difficult to say whether the stand taken by the Deputy Commissioner representing the Government vitiates when there is an earlier order. If there is any communication gap between the Board and the Government, either the Board or Government is answerable. ( 11 ) THE Division Bench of this Court in h. G. Kulkarni's case cited supra has observed that due service of notice as contemplated under S. 28 (1) and (2) of the Act is mandatory. Apart from that, it is seen the objection is said to have been filed by the petitioner subsequent to the acquisition proceedings. Here again, the counsel representing the Board has relied upon the objection filed by the petitioner to contend that itself is due notice to the petitioner as such, the question of non-issuance of notice or non-service of notice would not vitiate the acquisition proceedings. In all fairness if has to be noted that the objection is filed by the petitioner subsequent to the completion of acquisition proceedings. However, the question of personal hearing contemplated under S. 28 (3) of the Act has not been completed and complied with by the respondent Board. The acquisition by the board is without due notice and there is no reason and the acquisition is also without entertaining such objection when it is specifically contended by the petitioner that she is the owner of the land in question. The acquisition by the board is without due notice and there is no reason and the acquisition is also without entertaining such objection when it is specifically contended by the petitioner that she is the owner of the land in question. No other materials are placed by the respondent authority to show that the proceedings initiated by the Board was to the knowledge of the petitioner so that there would have been a deemed service of notice or it is deemed to have been served with notice and then in that event, even if the petitioner did not come forward to file objection and to avail the opportunity of hearing then the case of the board would be on a different footing. As per the ratio laid down by the Supreme Court and also when there is non-compliance of S. 28 (3) of the Act i. e. not giving a personal hearing before acquiring the land, then the acquisition proceedings vitiates. ( 12 ) FOR the foregoing reasons, the petition is allowed in part thereby the notification acquiring the lands in question is quashed in so far as it relates to the petitioner. However, it is needless to say that the respondent authority is at liberty to proceed for acquisition in accordance with law. Petition partly allowed.