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2021 DIGILAW 122 (KAR)

T. Kavita W/o Somashekhar v. State of Karnataka

2021-01-18

ASHOK S.KINAGI

body2021
ORDER : Petitioner aggrieved by the notification issued in gazette dated 26.12.2009 as per Annexure-L insofar as petitioner’s lands are concerned and consequent upon quashing Annexure-L, the subsequent notices issued by respondent No.2 as per Annexures-G and H has filed this writ petition seeking for quashing the above said Annexures. 2. The brief facts of the case of the petitioner is that the petitioner is the owner and in possession of land bearing Sy.No.167/7, measuring 1-64 cents, 167/6 measuring 1-62 cents and 167/2 measuring 0-72 cents. The above said lands have been purchased by the petitioner under register sale deed dated 07.01.2005 from its earlier owner Tharthappa. The said lands in question were sought to be converted for industrial purpose. The petitioner has given application seeking for permission to convert the agricultural land into the non agricultural land and to utilize the same for industrial purpose. The Deputy Commissioner has passed an order and converted the agricultural land into non agricultural land. The petitioner wanted to own her own establishment. Respondent No.2 issued a notice under Section 28 of Karnataka Industrial Area Development Act (for short ‘KIADB’) calling upon the petitioner to handover the possession, failing which, it was threatened that respondent No.2 will take possession on 11.03.2010. The petitioner submitted a representation to the office of respondent No.2 to make an enquiry. The officials of Respondent No.2 have been properly apprised of. The respondent No.2 have more particularly recommended for dropping of acquisition of the lands in Sy.No.167 as they were not conducive and some portions have been converted into non agriculture. Respondent No.2 has sent his recommendation to respondent No.1 for taking necessary action. The lands of the petitioner are adjacent to the Sy.No.167/2 and 3. The petitioner aggrieved by the notification issued by the respondents filed this writ petition. 3. Respondent No.2 filed the statement of objection stating that the preliminary notification under Section 28(1) of KIADB Act was issued on 11.09.2002 and was published in Karnataka Gazette on 17.09.2002, thereby notifying the lands, including block No.167/2, measuring 5 Acres 5 guntas. The lands were required for the purpose of development of Industrial establishment. Hence, notification was issued under Section 28(2) of KIADB Act. It is further notified that sale/mortgage, exchange or any other types of agreement or developmental work shall not be made after the date of publication. The lands were required for the purpose of development of Industrial establishment. Hence, notification was issued under Section 28(2) of KIADB Act. It is further notified that sale/mortgage, exchange or any other types of agreement or developmental work shall not be made after the date of publication. As on the date of notification, the land block No.167/2 stood in the names of following persons: a. Mrs.Hosuramma W/o. Late Kanimeppa Hospet b. Mrs. Bande Yankamma w/o. Late Dharmappa Hospet and c. Mrs. Bande Renukamma w/o. Late Hanumantappa Hospet. The respondents issued a notice to the owner of the land under Section 28 (2) of KIADB Act. The said notice was served by the Tahasildar, through the concerned Village Accountant, on the land owners. The above said land owners have filed their objections to the said notification. Respondent No.2 after considering the objections filed by the owners have passed an order under Section 28(3) of KIADB Act on 19.04.2006. Thereafter the respondent issued a notification under Section 28(4) on 11.02.2009. It is further stated that the petitioner has purchased the property after commencement of all acquisition proceedings under Section 28(1) i.e., the petitioner has purchased the property on 07.01.2005. The petitioner is a subsequent purchaser of land in question that too after the preliminary notification published on 17.09.2002. Hence, the petitioner cannot be said to be the owner as on the date of notification and the petitioner has no right to challenge the acquisition itself and it is stated that the petitioner may be entitled to claim a compensation by virtue of sale agreement in favour of the petitioner in accordance with law. It is also stated that lands are transferred by respondent No.2 to the Development Officer, KIADB, Dawanagere under Section 28(8) of Act and Rule 14 of Karnataka Industrial Area Development Rules. The lands acquired for the purpose of establishment of industrial layout is for public purpose. Hence prayed for dismissal of the petition. 4. Heard the learned counsel appearing for the petitioner and also learned counsel appearing for respondent No.2 and learned HCGP. 5. Learned counsel appearing for the petitioner submits that no notice has been issued to the land owner as on the date of notification. Learned counsel appearing for the petitioner submits that the petitioner has not received any notice of acquisition as contemplated under KIADB Act. 5. Learned counsel appearing for the petitioner submits that no notice has been issued to the land owner as on the date of notification. Learned counsel appearing for the petitioner submits that the petitioner has not received any notice of acquisition as contemplated under KIADB Act. He further submits that the respondents have not properly considered the validity of acquiring of the land of the petitioner. He further submits that the petitioner has got converted the said land into commercial purpose for establishment of industrial plant. He further submits that if the lands are acquired, the petitioner will be put to great loss. He further submits that there is unreasonable delay in concluding the acquisition proceedings. 6. Learned counsel for the petitioner relying on the judgment of co-ordinate Bench of this Court in the case of K.P. Ravikumar, V/s. The State of Karnataka and others in W.P.NO.9300/2020 disposed of on 28.09.2020. submitted that there is a delay in issuing final notification. Hence, learned counsel for the petitioner prays to allow the writ petition. 7. Per contra, learned counsel appearing for the respondent No.2 submits that as on the date of notification under Section 28(1) of the KIADB Act, the names of the following persons were appearing in the revenue records viz., Mrs.Hosuramma W/o. Late Kanimeppa Hospet, Mrs. Bande Yankamma w/o. Late Dharmappa Hospet & Mrs. Bande Renukamma w/o. Late Hanumantappa Hospet. Based on the revenue records, respondent No.2 issued notice under Section 28(2) of the Act to the land owners. The land owners filed objection to the notification. Respondent No.2 after considering the objections filed by the land owners has issued a final notification under Section 28(4) of the Act. He further submits that the petitioner has no right to challenge the notification on the ground that the petitioner has purchased the property after commencement of acquisition proceedings. Hence, he submits that the acquisition proceedings initiated by respondent No.2 is in accordance with law. He further submits that the petitioner has no right to challenge the notification on the ground that the petitioner has purchased the property after commencement of acquisition proceedings. Hence, he submits that the acquisition proceedings initiated by respondent No.2 is in accordance with law. The learned counsel for respondent No.2 places reliance on the judgment of Division Bench of this Court in the case of Karnataka Industrial Area Development Board V/s. A.Abdul Rafeekh and another, reported in ILR 2014 KAR 405, wherein this Court has held as under: “In the facts of the present case, although the preliminary notification u/s 28(1) was issued on 24.11.1998 and final notification u/s 28(4) was issued on 12.08.1999, respondent No. 1 had purchased substantial portion of land on 29.05.1999 and though his challenge to the acquisition was spurned by this Court, he could legally claim compensation, but by virtue of the provisions of section 28(5) of the KIAD Act, the land vested absolutely in the State Government, free from all encumbrances and there could be no further obligation except the payment of compensation.” Thereby the Division Bench of this Court has upheld the acquisition proceedings. Hence, the learned counsel appearing for the respondent No.2 prays to dismiss the writ petition. 8. Learned HCGP supports the contentions of respondent No.2. 9. Heard and perused the records. 10. It is not in dispute that respondent No.2 has issued a notification under Section 28(1) of KIADB Act on 11.09.2002, published on 17.09.2002 notifying the land block N.167/2, measuring 5 Acres – 5 guntas is required for the purpose of development Industrial estate. It was notified that after the above publication, the owners of the lands were informed that sale/mortgage /exchange or any other types of agreement shall not be made after the date of publication. Wherein pursuance to the notification issued under Section 28(1) of the Act, the land owners namely Mrs.Hosuramma W/o. Late Kanimeppa, Hospet, Mrs. Bande Yankamma w/o. Late Dharmappa Hospet and Mrs. Bande Renukamma w/o. Late Hanumantappa Hospet have filed the objections as per Section 28(2) of the Act. 11. Respondent No.2 after considering the objections filed by the land owners passed an order on 19.04.2006. Thereafter, a final notification was issued under Section 28(4) on 11.12.2009. 12. The grievance of the petitioner is that no notice was issued to the petitioner as required under Section 28(2) of KIADB Act. 11. Respondent No.2 after considering the objections filed by the land owners passed an order on 19.04.2006. Thereafter, a final notification was issued under Section 28(4) on 11.12.2009. 12. The grievance of the petitioner is that no notice was issued to the petitioner as required under Section 28(2) of KIADB Act. As on the date of notification under Section 28(1), the petitioner was not the owner as he has purchased the property on 07.01.2005 i.e., after lapse of more than three years from the date of issuance of notification under Section 28(1). Hence, the question of issuing notice under Section 28(2) of the Act to the petitioner does not arise as per the judgment of Hon’ble Division Bench of this Court in the case of A.Abdul Rafeekh and another(supra), wherein this Court has held that the person whose land was acquired meant the owner as on the date the notification was notified for acquisition. 13. I would like to place reliance on the judgment of Hon’ble Apex Court, in the case of Union of India V/s. Shivakumar Bhargava, reported in AIR(SC)-1995-0-812, wherein the Hon’ble Apex Court held that : “the policy of the Government indicates that the person whose land was acquired means the owner as on the date, notification was notified for acquisition, and he alone will be entitled to allotment of alternative site. A person who purchases land subsequent to the Notification may be entitled to claim compensation by virtue of sale made in his favour” (underlining supplied) 14. In the present case, as observed above, as on the date of notification, the names of Mrs.Hosuramma W/o. Late Kanimeppa, Mrs. Bande Yankamma w/o. Late Dharmappa and Mrs. Bande Renukamma w/o. Late Hanumantappa were appearing as owners in the revenue records and they were meant as owners as per law laid down by the Hon’ble Apex Court in Shivakumar Bhargava supra and also by this Hon’ble Division Bench of this court in the case of A.Abdul Rafeekh and another(supra),. 15. The learned counsel appearing for respondent No.2 submits that subsequently respondent No.2 after taking into consideration the sale deed executed in favour of the petitioner, respondent No.2 has issued final notification under Section 28(4) of the Act showing the name of the petitioner as owner of the land under reference. 16. 15. The learned counsel appearing for respondent No.2 submits that subsequently respondent No.2 after taking into consideration the sale deed executed in favour of the petitioner, respondent No.2 has issued final notification under Section 28(4) of the Act showing the name of the petitioner as owner of the land under reference. 16. From the perusal of the final notification under Section 28(4) of the Act vide Annexure-L, the name of the petitioner has been shown as owner in respect of land Sy.No.167/2 and the said land was acquired. Hence, the petitioner being the purchaser, subsequent to notification, is only entitled for the compensation for the acquired land. This Court is of the opinion that the petitioner is entitled for compensation in respect of land acquired by virtue of sale made in his favour of petitioner. 17. Further, from the perusal of the order passed in W.P.NO.9300/2020, in the case of K.P. Ravikumar, V/s. The State of Karnataka and others relied upon by the learned counsel appearing for the petitioner, wherein in the said case, no final notification was issued under Section 28(4) of the Act as on the date of disposal of the said writ petition. 18. In the present case, respondent No.2 has already issued a final notification under Section 28(4) of the Act. Hence, the judgment relied on by the learned counsel for the petitioner is not applicable to the present case on hand. 19. From the aforesaid discussion, it is apparent that the petitioner has not made out any grounds to interfere with the impugned acquisition proceedings. Hence, I do not find any grounds to interfere with the acquisition proceedings. Accordingly, writ petition is dismissed.