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2016 DIGILAW 904 (KAR)

Torgallmath Manchar v. State of Karnataka

2016-11-29

R.S.CHAUHAN, SREENIVAS HARISH KUMAR

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JUDGMENT : Raghvendra S. Chauhan, J. The appellants have challenged the legality of the order dated 31-8-2015, passed by the learned Single Judge in Writ Petition No. 107633 of 2014 and other connected writ petitions. By the said order, the learned Single Judge has quashed the notification dated 25-10-2010, issued under Section 28(4) of the Karnataka Industrial Areas Development Act, 1966 ('the Act’ for short), as well as the order passed under Section 28(3) of the said Act. He has further directed the Special Land Acquisition Officer to resume the proceedings from the stage of Section 28(3) of the Act, and to pass a fresh order after considering all the objections placed by the respondents. 2. Briefly the facts of the case are that the appellants are the owners of the land, bearing Survey No. 437, measuring 24 acres 20 guntas, situated at Kittur Village, in Bailhongal Taluk, District Belgaum. The said land was an ancestral one, where the appellants had invested huge amounts for the maintenance and upkeeping of the land. 3. On 23-2-2010, the respondent no. 1 issued a notification under Sections 3(1) and 28(1) of the Act. According to the notification, the land owned by the appellants was required for the purpose of construction of industrial corridor. Since the appellants were aggrieved by the said notification, they immediately filed their detailed objections. In their objections, they clearly pleaded that their entire livelihood depends upon agricultural income generated from fertile lands owned by them. Moreover, since they have grown Mango, Sapota, Tamarind trees and shrubs, and have also grown Teakwood trees and coconut trees, their entire livelihood would be jeopardised by the proposed acquisition. However, despite the fact that the appellants had filed their objections, they were never given an opportunity of personal hearing; the final notification was issued on 25-10-2010. According to the appellants, they were issued with a notice dated 18-11-2010, whereby the respondents had proceeded to take physical possession of the land. Since the appellants were aggrieved by the preliminary and final notifications, they filed a writ petition before this Court. After hearing both the parties, the learned Single Judge decided the writ petition in the aforementioned terms. Hence, this appeal before this Court. 4. Mrs. Since the appellants were aggrieved by the preliminary and final notifications, they filed a writ petition before this Court. After hearing both the parties, the learned Single Judge decided the writ petition in the aforementioned terms. Hence, this appeal before this Court. 4. Mrs. Santosh B. Rawoot, the learned Counsel for the appellants, submits that the notification under Section 28(1) of the Act could not have been issued prior to the respondents taking permission from the Pollution Control Board. For, the construction of the industrial corridor would entail cutting of thousands of trees which would adversely affect the ecology of the area. Therefore, the preliminary notification issued by the respondents is per se illegal. But, this aspect has been overlooked by the learned Single Judge, as the learned Single Judge has upheld the validity of the preliminary notification. 5. On the other hand, Mr. M. Kumar, the learned Additional Government Advocate, submits that under the Act, there is no provision which requires the respondents to seek any permission from the Pollution Control Board prior to publishing the notification under Section 28(1) of the Act. Therefore, the learned Counsel for the appellants is not justified in trying to incorporate a condition within then Act which has not even been prescribed by law. 6. This Court had asked a pointed query to the learned Counsel for the appellants whether the Act requires the respondents to seek prior permission before issuing the preliminary notification under Section 28(1) of the Act or not? To this query, the learned Counsel has frankly conceded that there is no such requirement under the Act. Therefore, the contention raised by the learned Counsel is clearly misplaced. For, a condition cannot be read into Act which has not been prescribed by the Act. To read a condition into the Act would be to amend the Act itself, a power not vested in this Court. Hence, the contention raised by the learned Counsel is clearly unacceptable. For the reasons stated above, this Court does not find any merit in the appeal. It is, hereby, dismissed.