S N SIMHA vs. THE STATE OF KARNATAKA

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 04TH DAY OF OCTOBER 2012 BEFORE THE HON’BLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION No. 24840 OF 2012 (LA-KIADB) BETWEEN: 1. S.N.Simha, Aged about 73 years, Son of Late G.R.Swamy, 2. S.N.Yamuna Devi, Wife of Sri. S.N.Simha, Aged about 66 years, Both are proprietors M/s. Viswabandhu press And Sree Bharathi Cottage Industries Company, No.16, 1st Cross, Cottonpet, Bangalore – 560 053. …PETITIONERS (By Shri. S.P.Shankar, Senior Advocate for Shri. K.L.Sreenivas, Advocate for M/s. K.N.L. Associates) AND: 1. The State of Karnataka, Represented by its Secretary, Commerce and Industries

2 Department, Vikasa Soudha, Dr.Ambedkar Veedhi, Bangalore – 560 001. 2. Karnataka Industrial Areas Development Board, Nrupathunga Road, Bangalore – 560 002, Represented by its Chief Executive Officer. 3. The Special Land Acquisition Officer, Karnataka Industrial Areas Development Board, Nrupathunga Road, Kheni Buildings, Bangalore – 560 009. 4. M/s. Manyatha Promoters Private Limited, Classic Court, 1st Floor, 9/1, Richmond Road, Bangalore – 560 025. Represented by its Managing Director. 5. Special Deputy Commissioner For K.I.A.D.B., Nrupathunga Road, Bangalore – 560 002. 6. Sri. Venkateshwara Rao, Son of K.Balakrishna Rao, Aged 43 years, Residing at No.4, Circular Street,

3 Shanthinagar, Bangalore – 560 027. 7. Dineshkumar Gulecha, Son of Pukhraj, Aged 48 years, Residing at No.29, Krishna Sindya Rao Road, V.V.Puram, Bangalore. [Respondent Nos. 6 and 7 are impleaded vide court order dated 9.8.2012] …RESPONDENTS (By Shri. Udaya Holla, Senior Advocate for Shri. Radhanandan, Advocate for Respondent No.4 Shri. R.Nataraj, Advocate for Respondent Nos. 6 and 7, Shri. Basavaraj V.Sabarad, Advocate for Respondent Nos. 2, 3 and 5) ***** This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned Notification at Annexure-M issued by the first respondent dated 9.3.207 and published in Karnataka Gazette extra ordinary dated 12.3.2007, the impugned Notification at Annexure-N issued by the first respondent dated 9.3.2007 published in the Karnataka Gazette Extra Ordinary dated 12.3.2007 and also the impugned order at Annexure-S passed by the third respondent in case No.LAQ/CR/5/2007-08 dated 10.9.2007 and Final Notification under Section 28(4) of the act No.CI.240.SPQ.2010, dated 4.7.2012 vide Annexure-AH issued by the first respondent, as illegal and one without jurisdiction.

4 This petition, having been heard and reserved on 21.9.2012 and coming on for Pronouncement of Orders this day, the court delivered the following: O R D E R The petition averments are as follows:- 2. The petitioners, who are husband and wife, claim that they are the owners of three residential sites, totally measuring 29500 square feet, culled out of land in Survey no. 58/1 and 59/1 of Thanisandra, Krishnarajapuram Hobli, Bangalore East Taluk. The same was said to have been purchased from one Gopalappa and his sons. It is stated that Gopalappa and his brother Ramaiah had inherited the property from their mother Yerramma, who is said to have purchased the same under a sale deed dated 27-11- 1941. Gopalappa and Ramaiah had partitioned the land in the afore said survey numbers , totally measuring 3 .15 acres. Under the partition an extent of 1.23 acres had fallen to the share of Gopalappa and an extent of 1.28 acres to Ramaiah. It is claimed that the two brothers had formed a residential layout in the said

5 extent of lands, consisting of 12 sites in all, after setting apart areas for formation of roads and other infrastructure. The village panchayath is said to have approved the layout and is said to have assigned site numbers, while assessing the same to property tax. The petitioner no.1 claims to have purchased site bearing no.10/A in plot no.10, measuring about 100 ft by 85 ft., under a sale deed dated 18-8-1994 and petitioner no.2 is said to have purchased site no. 10/B measuring 100 ft. by 80 ft. on 24-8-1995. And on the same day Petitioner no. 1 is said to have purchased site no.10/C. The sale deeds are said to have been executed by Gopalappa and his sons, Jaikumar, Shankar and Venkatesh. The Petitioners contend that khatha in respect of the sites has been transferred in their favour and that they continue to be in possession as on date. It is stated that Gopalappa and Ramaiah are said to have died in the years 1998 and 2003, respectively. It is alleged that when the petitioners visited the vacant sites in the year 2007 they found a board planted on the above sites

6 declaring that the land belonged to the Karnataka Industrial Area Development Board, the second respondent herein. It was later learnt on further enquiries that the State Government, respondent no.1 herein, had issued a Notification under Section 3 of the Karnataka Industrial Area Development Act, 1966, (Hereinafter referred to as the ‘KIADB Act’ for brevity) dated 9-3-2007, duly published in the Official Gazette dated 12-3-2007 that several parcels of land including the land comprising the aforesaid sites of the petitioners, as an “industrial area“. And by a notification dated 9-3-2007 also published in the same Gazette of the above date, issued under Section 28(1) of the KIADB Act, proposed to acquire several items of land of Nagawara and Thanisandra villages for establishing an industrial area. The same was to be developed as such by M/s Manyata Promoters Private limited, the fourth respondent herein. It is the case of the petitioners that the notification showed the names of Ramaiah and Gopalappa, who were no more as on that date, as the owners of the land in which the petitioners’ house sites were situated. The petitioners

7 complain that they did not receive any personal notice of the said proceedings at all. It is further stated that the residential layout developed by the vendors of the petitioners is now within the jurisdiction of the Bruhath Bangalore Mahanagara Palike (Hereinafter referred to as 'the BBMP' for brevity), which has reassessed the properties to tax. And that there are several houses that have been constructed in the area. It is also stated that the Bangalore Development Authority has in its Revised Comprehensive Development Plan, 2011, indicated the land in the erstwhile Survey no. 58/1 and 59/1 for the formation of a residential layout and park. Therefore the same could not be declared as an industrial area without there being a change in land user. Incidentally, it is stated that the BDA had issued a preliminary notification under the BDA Act, proposing the formation of the Arkavati residential layout over the very same land in question and the petitioners have been notified as owners of the land purchased by them. It is also stated that the said

8 acquisition having been challenged by several land owners, the same had not attained finality as on the date of the petition and that the proceedings are pending before the apex court. It is stated that the fourth respondent had sought for land measuring 15 acres and 27 guntas for the establishment of an Information Technology park in its application to the State Level Single Window Clearance Committee. It was accordingly recommended to the KIADB, and to acquire the lands comprised in the following Survey nos. 120/5,103/1. 103/2,103/3, 103/4, 104/1, 104/2, 104/3, 104/4, 107, 108, 109, and 100/1 of Nagawara and 57/1,57/2, 58/1 and 59/1 of Thanisandra by consent of the land owners. However, the notification that has followed was restricted to 13 acres 21 guntas , without indicating any reasons for deleting 2 acres 6 guntas from the process. It is further stated that the petitioner had filed Objections to the proposed acquisition as per Annexures R and R1 to R3. But the Special Land Acquisition Officer, the third respondent herein, had considered only one of the objection statements dated 25-8-

9 2007 (R3) and had passed an order under Section 28(3) of the KIADB Act, rejecting the objections of the petitioners, and had recorded the inexplicable presence of the original owner of the land Gopalappa, who was not alive as on that date, by an order dated 10-9-2007. The petitioners had disputed the correctness of the said order before the Special Deputy Commissioner. Pursuant to which, the third respondent had submitted a report which was contrary to his earlier report. The petitioners admit that they had sought to prevent the mischievous ploy of the children of Ramaiah trying deal with the petitioners’ property by filing a civil suit in OS 5130 / 2004 , the same was dismissed on account of the lands being subject matter of acquisition proceedings. But in the pleadings in the suit by one of the sons of Gopalappa, it had been admitted that the property of the petitioners was sold in their favour and it is fraudulent for respondents no.6 & 7 to claim to have purchased the same property.

10 It is also sought to be demonstrated by reference to the last will and testament of Gopalappa and Ramaiah, respectively , that they had not claimed any subsisting right to the land held by the petitioners and hence the same could not be the subject of transactions of the children of the said persons who claim to have sold land to the sixth and seventh respondents . And hence there is also a challenge to revenue entries made in respect of the lands made in favour of respondent no.6 & 7. It is further stated that the petitioners had challenged the acquisition proceedings in writ proceedings before this court in WP 17387 /2007 and the same was disposed of on 1-7-2009 as being premature, as the final notification had not been issued. It is three years thereafter, that as on 4-7-2012 that a final notification has been issued under Section 28 (4) of the KIADB Act. The same is under challenge in the present petition. 3. The learned Senior Advocate Shri S.P.Shankar, appearing for the learned counsel for the petitioners would

11 contend as follows. The house sites purchased by the petitioners which are made subject matter of the acquisition proceedings measure in all about 24 guntas as defined under the notifications. This extent of land is intended to be made over to the beneficiary, respondent no.4 in terms of the impugned notifications. It is urged that the fourth respondent is a private company and is not carrying on any industrial activity, but are engaged as realtors and land developers . In any event the said respondent has been allotted an extent of 215 acres of land. The said respondent claims to have developed a hundred acres of the same into an IT park. In the remaining extent of 115 acres the respondent is said to have formed a residential layout and has constructed independent villas apart from club houses – to earn profit in the guise of establishing a project billed as being for a public purpose. The clearance and approval granted by the competent authority to respondent no.4, the lands in question were recommended to be acquired by a process of consent by the land owners and subject to a clearance by the Land Audit Committee.

12 It is contended that in the face of the report of the third respondent at Annexure V-1 to the writ petition, to the effect that the petitioners were the owners of three sites formed in a private layout formed in lands in survey no. 58/1 and 59/1 of Thanisandra and the undeniable resistance by the petitioners to the acquisition proceedings, there is no consent granted by the petitioners and hence the said proceedings are vitiated on that count. The dubious method adopted by the KIADB in active collusion with the fourth, sixth and seventh respondents to engineer the issuance of the notifications in seeming compliance with the law is not only illegal but deplorable and shocking. The names of dead persons, who were former owners of the land in question – only to overcome the requirement of consent by the petitioners, which was the sine qua non for compliance with the manner of acquisition contemplated, was a case in point. It is contended that the petitioners are in possession after the purchase of their sites under registered sale deeds. The petitioners have obtained mutation in their names , in all the revenue records

13 from the year 1995-96. The same is also reflected in the Register of Properties maintained by the BBMP. Property tax has been paid up to date. It is pointed out that immediately on coming to know of the notification issued under Section 28(1) of the KIADB Act, the petitioners had file objections with the third respondent to bring to his attention that the sites purchased by the petitioners are covered by the Comprehensive Development Plan issued under the Karnataka Town and Country Planning Act, 1961 (Hereinafter referred to as ' the KTCP Act', for brevity) notifying the area in which the said sites are situated as a residential area. It is hence contended that without a change in the land user – the same being declared as an industrial area is contrary to the law. It is therefore contended that the third respondent having proceeded with the acquisition process in the face of the above circumstances is clearly without application of mind and is hence non-est. The further glaring circumstance, according to Shri Shankar, which would demonstrate the dubious claim of the

14 private respondents is that material is placed before the court along with the rejoinder filed by the petitioners to demonstrate that Gopalappa and Ramaiah had sold the entire extent of land held by them in land in survey no. 58/1 & 59/1 along with their sons, during their life-time. In their respective wills , of Gopalappa and Ramaiah, they have therefore not referred to the said lands as they had no subsisting interest therein. The claim of Respondents no.6 & 7 having purchased any land in the said survey numbers from the sons of Ramaiah or Gopalappa is false and fraudulent. Any such sale transactions claimed by the said respondents , in the face of sale deeds in favour of the petitioners is clearly hit by Section 8 of the Transfer of Property Act, read with Section 47 of the Registration Act. 4. Shri Shankar places reliance on the following authorities in support of the case of the petitioners: 1. H.G. Sheela vs. State of Karnataka and others, 2006 (3) KLJ 24 2. A. Janardhan Shetty vs. Shantamma and Others, ILR 2009 Kar. 2159

15 3. Gurbax Singh vs. Kartar Singh and others, AIR 2002 SC 959 4. ABL International Limited and another vs. Export Credit Guarantee Corporation of India Limited and others, 2004 (3) SCC 553 5. Special Land Acquisition Officer and another vs. State of Karnataka and others, 2008 (2) KLJ 182 6. WA 1938/2007 dated 7.3.2012 5. It is contended on behalf of the KIADB as follows :- That the State government after declaring an extent of 13.27 acres of land comprising land in various survey numbers of Nagavara, Thanisandra and Krishnarajapura villages as an industrial area had issued notifications under Section 28 (1) of the KIADB Act. In so far as the lands in Survey no. 58/1 and 59/1 of Thanisandra were concerned, the notified Khatedars were Ramaiah and Gopalappa, to an extent of 1.04 acres in 58 /1 and 1.11 acres in Survey no. 59/1. After publication of the notification, notices are said to have been issued to the concerned as required under Section 28(2) of

16 the KIADB Act. The first petitioner is said to have attended the enquiry on 23-6-2007, 28-8-2007 and 25-8-2007 and is said to have been heard. In the course of the inquiry, petitioner no.1 had submitted his objection to the effect that he had purchased sites from the original owners and had also filed a civil suit in O.S.5130/2004 which was dismissed on 5.2.2007. But however, pursuant to the sale in favour of the petitioners, they were owners in possession of three sites, apart from claiming that the land in Survey No.59/1 was notified by the BDA for the formation of Arkavathi Layout. On the other hand, on behalf of the fourth respondent, the sale deeds executed by the children of the khatedars were produced setting up a claim in respect of the very land claimed by the petitioners. In that view of the matter, the third respondent had opined that there was a serious dispute as regards title to the property and there were matters pending in revenue courts in respect of the same and therefore, was not in a position to decide as regards ownership, which however, did not come in the way of

17 acquisition of the land and any such dispute was no good reason to exclude the lands from acquisition and therefore, overruled the objections. It is further contended that the petitioners had filed a writ petition in WP 17387/2007 challenging the Preliminary Notification dated 9.3.2007 and the order passed by the third respondent as being illegal and without jurisdiction. There was initially an order of status-quo granted by this court, but the writ petition was dismissed as on 11.7.2009, as being premature. There was one other writ petition filed by the sons of Gopalappa in WP 572/2010, questioning the same Preliminary Notification as well as order dated 10.9.2007 passed by the third respondent, which was again rejected on 19.7.2010. In view of those petitions, the land in Survey Nos.58/1 and 59/1 were excluded from the Final Notification that was issued and subsequent to the disposal of the writ petitions, steps were taken to issue a Final Notification in respect of those lands as well. It is pointed out that the petitioners had repeatedly requested to exclude the lands from

18 acquisition, mainly on the ground that they were purchasers of house sites formed in the said extent from Gopalappa and his sons and that their names are reflected in the revenue records. It is pointed out that the sale deeds produced by the petitioners do not disclose the land as forming part of any survey number, but the entries in the revenue records relating to the said lands, continued to reflect the names of Ramaiah bin Munishamappa and Gopalappa bin Munishamappa and even though the petitioners contend that the land was converted and a layout was formed by the owners and sites were sold to different persons, including the petitioners, there was no document produced evidencing approval of conversion or sanction of plan in the formation of the layout. The approval said to have been obtained from the Grama Panchayat cannot be accepted, as it is not competent to approve any layout plan when the lands are situated within the Bangalore Metropolitan Area and it is the planning authority, namely, the BDA, which could grant any approval of the layout plan. Therefore, the claim of the petitioners based on the entry of their

19 names in the Thanisandra Grama Panchayat records in Form No.10 or the kandayam receipts, would have no relevance insofar as respondent no.3 is concerned, in taking steps for acquisition of the said lands. The circumstance that Gopalappa and Ramaiah had died and therefore, a Notification having been issued in the name of dead persons as vitiating the proceedings, is also not a tenable ground, since there was no record or report of their death in the revenue records. Respondent no.3 could not be expected to ascertain whether the said khatedars were alive or dead. It is further stated that the fourth respondent had approached the State Level Single Window Clearance Committee for their project of establishing a Information Technology Park with an investment of over Rs.40 Crore in Bangalore. That project was approved by the Committee at its meeting on 17.1.2006. The Committee had then resolved to recommend to the KIADB to acquire and allot 15 acres 27 guntas of land in several survey numbers of Nagavara village and Survey No.57/1, 57/2, 58/1 and 59/1 of Thanisandra Village, through consent

20 acquisition process subject to the extent of land acquired for the project to be cleared by the Land Audit Committee. The State Government had then declared an extent of 13.27 acres as industrial area and had also issued a Notification under Section 28(1) of the KIADB Act, for acquisition of the same. Notices were issued to the khatedars under Section 28(2) of the KIADB Act and wide publicity was given to the same. The petitioner had appeared at the inquiry held on 23.6.2007 and had disclosed the fact of purchase of the land. Even though the khatedars reflected in the notifications were Ramaiah and Gopalappa, in the order passed by the third respondent the first petitioner was shown as the khatedar, which was an apparent error. But however, the contentions raised by the petitioner as well as the fourth respondent were considered and rejected. It was thereafter that the aforesaid writ petition was filed by the petitioner and in view of the interim order granted therein, the Final Notification was kept in abeyance till after the disposal of the said writ petition.

21 Insofar as the alleged contradiction referred to at Paragraphs 24 to 26 of the writ petition, as regards the correspondence carried on by the petitioners with the Deputy Commissioner and the spot inspection held pursuant to his directions and the order at Annexure-S regarding his visit to the notified lands, being a contrary to the earlier report, is explained as not being inconsistent. It is pointed out that what is referred to in the order is that the lands are adjoining each other and form a compact block along with the adjacent lands already acquired for the benefit of the fourth respondent and the lands proposed for acquisition did not consist of any malkis. This cannot be construed as a contradiction. It is asserted that the owners of lands had willfully come forward to execute the consent agreement in terms of Section 29(2) of the KIADB Act to facilitate acquisition. The delay, if any, in the Final Notification was on account of the pending litigation, as stated above. The contention that the land in question was in residential zone and could not be acquired was untenable, as it is pointed out

22 that at the time of acquisition, the land user prescribed under the planning law is not a bar for acquisition. It is for the beneficiary to seek change of user, if at all. 6. In the statement of objections on behalf of respondent no.4, it is claimed that the property bearing Survey Nos.58/1 and 59/1 was conveyed by the children of Ramaiah and Gopalappa in favour of one Venkateshwara Rao and Dinesh Kumar Gulecha. Gulecha had acquired an extent of property measuring 1 acre and 3 guntas and 2 guntas of kharab in Survey No.59/1 of Thanisandra village under a sale deed dated 14.10.2004. Venkateshwara Rao, in turn, had acquired an extent of 1 acre 3 guntas and 1 gunta of kharab in Survey No.58/1 under a sale deed dated 14.10.2004. The remaining extent in Survey No.59/1 had been acquired by the Government for the formation of Arkavathi Layout. Therefore, in the above manner, an extent of 1 acre 3 guntas and 2 guntas of kharab belonged to Gulecha and the other extent of 1 acre 3 guntas and 1 gunta of kharab belonged to Venkateshwara Rao.

23 The fourth respondent, which intended to set up a Information Technology Park had submitted a proposal to the Karnataka Udyoga Mitra for providing infrastructural facilities, which included acquisition of lands through consent acquisition process. The fourth respondent had identified certain properties measuring around 15 acres 27 guntas, including the said property and had produced material to show that the land owners had consented for the acquisition proceedings. It is in that circumstance that the proposal was approved and the Notifications for acquisition came to be issued. Incidentally, the revenue records reflected the names of the previous owners, but since Gulecha and Rao had purchased the same, they had willfully given their consent for the acquisition proceedings. The delay in the mutation in favour of those parties, was on account of an appeal filed by the petitioners before the Assistant Commissioner, without making Gulecha and Rao as parties to the proceedings. Therefore, the revenue records continued to stand in the name of the erstwhile owners. The matter is pending consideration before the Tahsildar. The

24 petitioners, who could not claim any right over the property, had approached the Land Acquisition Officer and had filed objections claiming to have purchased three sites as claimed by them, but had failed to establish the identity of the property as being the same. The said respondent also draws attention to a civil suit as well as a writ petition filed by the petitioners and would contend that the identity of the properties of the petitioners being in dispute and the suit filed by them in respect of the property also having been dismissed, the petitioners are hardly in a position to challenge the acquisition proceedings. Incidentally, two other suits were filed in O.S.7092/2005 and O.S.no.7062/2005 before the Court of the City Civil Judge, Bangalore, as against said Gulecha and Rao. The said suits are also said to be dismissed as withdrawn, since Gulecha and Rao had produced their sale deeds in the said suits. In that background, the petitioners could not challenge the acquisition proceedings.

25 It is also claimed that the petitioners had agreed to settle the dispute for a consideration, with Gulecha and Rao during the pendency of the said suits, and had received a sum of Rs.11.00 lakh by way of a cheque, which has even been encashed, but after receiving the amount, the petitioners had resiled from their commitment. These circumstances are not narrated in the writ petition and therefore, the petitioners are guilty of suppression of material facts. The said respondent has also questioned the legality of any layout said to have been formed in Survey Nos.58/1 and 59/1, which were admittedly agricultural lands and the said respondent has stoutly denied all the petition averments. It is further contended that the claim of the petitioners of having purchased a portion of land in Survey Nos.58/1 and 59/1 of Thanisandra, which are agricultural lands, is not established on the basis of material produced by the petitioners. Therefore, the very writ petition is not maintainable. On the other hand, it is asserted that the aforesaid Gulecha and Rao had purchased the same and those properties having been identified by respondent

26 no.4 for utilising the same for the project, they had entered into agreements with respondent no.4, as per agreements of sale dated 14.10.2004, produced as Annexures-R.10 and R.11 and had consented to the land being acquired for the purpose of the project and to receive the compensation amount. It is pointed out that the project proposal was approved by the Karnataka Udyoga Mitra, on a specific condition that the lands identified should be acquired through consent acquisition process and therefore, the said Rao and Gulecha had furnished consent letters as per Annexures- R.12 and R.13. The Land Acquisition Officer has taken all these aspects into consideration. Insofar as the dispute pertaining to the petitioners’ ownership is concerned, it has been expressed that he would not be competent to decide the title, but has been satisfied with the documents otherwise provided by respondent no.4 as well as Gulecha and Rao. Therefore, the petitioners had only set up title to the property and did not have any tenable objection to the acquisition. Insofar as the contention that the Preliminary Notification was issued in the name of a dead

27 person is concerned, Notifications are certainly issued in the names of the khatedars as found in the revenue records and all interested persons are heard before issuing the Final Notification. It is on record that the petitioners had appeared and claimed to be interested persons. It is also on record that Goapalappa’s children had also appeared and participated. It was sufficient compliance with the law. There is no requirement that the authority conduct a roving inquiry as to the title to the property. As there was a dispute pertaining to the mutation in respect of the said lands in Survey Nos.58/1 and 59/1, the names of Gopalappa and Ramaiah are continued to be shown. There is hence no illegality in the proceedings. 7. The learned Senior Advocate Shri Udaya Holla, appearing for the Counsel for respondent no.4, would urge the following legal contentions insofar as the grounds raised in the petition are concerned.

28 That in the eye of law, the lands bearing Survey Nos.58/1 and 59/1 of Thanisandra are agricultural lands. It has never been converted for residential purposes. Therefore, the question of any layout plan having been sanctioned and khata numbers being assigned in respect of sites formed therein, is not tenable. The Village Panchayat would have no power to sanction any such layout plan. The contention that the property is shown as residential zone in the Comprehensive Development Plan of the Planning Authority and therefore, cannot be declared as an industrial area, is an incorrect statement. The State Government is empowered to declare any area as an industrial area in exercise of its powers under Section 3(1) of the KIADB Act. The said Act is a later piece of legislation, which was enacted in the year 1966 and the Karnataka Town and Country Planning Act, 1961, is enacted during the year 1961 and in view of Section 47 of the KIADB Act, the same would override the provisions of the KTCP Act. The petitioners have also not explained the circumstance that they had objected to the acquisition proceedings initiated by the

29 BDA, with respect to a portion of land in Survey Nos.58/1 and 59/1, sought to be acquired for the formation of the Arkavathi Layout. If that be so, it is inexplicable that they also seek to claim the lands notified under Section 28(1) of the KIADB Act and since the challenge to the proceedings initiated under the BDA Act, in respect of the said lands having attained finality with the apex Court upholding the acquisition proceedings, the petitioners also claiming lands, that are the subject matter of the present acquisition proceedings, is a contradiction in terms. It is also contended that in the light of the circumstance that the petitioners had instituted civil suits against third-parties, who had entered into agreements with respondent no.4, to consent to the acquisition proceedings and those suits having been dismissed, the title of the petitioners is yet to be adjudicated and therefore, the petitioners cannot maintain the writ petition. The learned Senior Advocate would place reliance on the following authorities in support of his contentions:

30 1) Bhagat Singh and others Vs. State of U.P. and others, AIR 1999 SC 436, 2) S.S.Darshan Vs. State of Karnataka and others, 1995 AIR SCW 4680, 3) R.S. Pandey Vs. State of U.P. and others, 1995 AIR SCW 4684, 4) Prestige Lights Limited Vs. State Bank of India, (2007) 8 SCC 449, 5) N. Somashekar and others Vs. State of Karnataka and others, 1997(7) Kar. L.J.410, 6) T. Puttalingaiah and another Vs. Vijaya Bank, Maddur Branch, Mandya District, 1997 (7) Kar. L.J. 447, 7) Delhi Administration Vs. Gurdip Signgh Urban and others, (2000) 7 SCC 296, 8) Shabbir (D) by LRs. and others Vs. Abdul Sattar and others, (2000) 7 SCC 323, 9) Tayabbhai M.Bagasarwalla and another Vs. Hind Rubber Industries Pvt. Limited , AIR 1997 SC 1240, 10) P.Rajappa @ B.P.Rajappa Vs. State of Karnataka and others, 2004(4) Kar. L.J.180 (DB), 11) Rabiya BI Kassimi M. Vs. The Country-wide Consumer Financial Service Limited, Bangalore, 2004(4) Kar. L.J. 189 (DB) 12) P. Narayana and another Vs. State of Karnataka and others, (2006) 7 SCC 578,

31 13) Commissioner of Customs, Mumbai Vs. Toyo Engineering India Limited, (2006) 7 SCC 592, 14) M/s. Ahuja Industries Limited Vs. State of Karnataka and others, AIR 2003 SC 3519, 15) H.Seshadri Vs. K.R.Natarajan and another, AIR 2003 SC 3524. 8. Respondents 6 and 7 (Incorrectly describing themselves as Respondents 5 & 6), who are the rival claimants in respect of the very lands in Survey Nos.58/1 and 59/1 have also entered appearance and have contended that the land originally belonged to Ramaiah and Gopalappa and subsequent to their death, their children had sold the property in favour of the said respondents and have produced the respective sale deeds. Apart from the land purchased by them, the remaining extent in Survey No.59/1 was acquired by the Government for the formation of the Arkavathi Layout under the provisions of the BDA Act, but mutations had not been made out in respect of the property in their favour, as the petitioners had filed an appeal before the Assistant Commissioner

32 without impleading them as parties. But, in any event, the matter is now pending before the Tahsildar, regarding change of mutation. They admit the position that they had entered into an agreement with respondent no.4 consenting to the acquisition and they have produced relevant material before the Land Acquisition Officer. The petitioners, however, seeking to raise a rival claim, had also appeared before the Land Acquisition Officer and had submitted their objections. The same has been considered and an order has been passed under Section 28(3) of the KIADB Act. There is no substance in the objection raised by the petitioners, as they have no locus standi. This is further fortified by the circumstance that civil suits unsuccessfully filed by the petitioners and the respondents have furnished the details of those suits, which as already stated hereinabove by the other respondents. Therefore, respondents 6 and 7 support the case of respondent no.4 and would submit that there is no impediment to acquire the land in question.

33 9. By way of reply, the learned Senior Advocate, Shri S.P.Shankar, would reiterate that the entire acquisition proceedings is without jurisdiction, as it has been proceeded contrary to the recommendations made by the Single Window Clearance Committee under Section 8 of the Karnataka Industries (Facilitation) Act, 2002, whereby it was recommended that the lands should be acquired only through consent acquisition process. The petitioners would reiterate that they had not consented to the acquisition. Therefore, it is liable to be quashed. That the exercise of power of eminent domain for a commercial transaction is in violation of Article 14 of the Constitution of India. Admittedly, the fourth respondent is intent on creating a residential layout and this would not be consistent with the objects under the KIADB Act. He would hence contend that there is no public purpose involved in the acquisition and the second respondent is merely a tool to subserve the commercial interest of the fourth respondent.

34 It is also contended that the State Government has not formed its opinion under Section 28(1) of the KIADB Act in declaring an area as an industrial area, notwithstanding that it is shown as a residential area in the Comprehensive Development Plan. He would contend that there is a subtle distinction insofar as the acquisition proceedings under the Land Acquisition Act, 1894 (Hereinafter referred to as ' the LA Act' for brevity) and the proceedings under the KIADB Act. It is possible for the State to acquire the land for a public purpose under the LA Act, since the public purpose can be varied in nature, whereas acquisition under the KIADB Act is only for an industrial purpose. Therefore, it cannot be said that without seeking change of land user, the land, which is shown as residential zone in the Comprehensive Development Plan, could not be declared as an industrial area. Therefore, the entire proceedings are vitiated. The Land Acquisition Officer having proceeded on the footing that the petitioners have not raised any tenable issue apart from the dispute regarding ownership, is an unfair and incorrect interpretation and

35 the significant lacuna which is now pointed out has been lost sight of by the Land Acquisition Officer in overruling the objections and the acquisition proceedings having progressed to the detriment of the petitioners. He would also contend that from the material available, it is clear that there was no land left, which could have been purchased by respondent nos.5 and 6, as during the life time of Gopalappa and Ramaiah, they had sold their entire interest in lands in Survey nos.58/1 and 59/1 and the purchase by respondents 5 and 6 are based on bogus sale deeds, which are non-est in law and would submit that these factual aspects did not require any elaborate evidence as the registered documents that are on record would speak for itself and the sequence of events with reference to the same, does not require any elaborate analysis and hence, he would submit that on facts and in law, the writ petition would have to be allowed and the entire proceedings be set at naught.

36 10. In the above background the points that arise for consideration in this petition are : a) Whether the acquisition proceedings, in respect of the property claimed by the petitioners, is vitiated on account of the petitioners not having been shown as the Anubavdars of the land and not having been personally notified. ? b) When there was a dispute as to ownership of the land , and if a condition for acquisition of the lands , imposed by the State Level Single Window Clearance Committee, was that the acquisition shall be only by consent of the land owners, would the consent granted, by respondents 6 & 7 who claim the land as against the petitioners, be a valid consent ? c) When the land in question was classified as residential zone, in the comprehensive development plan, for the purposes of the Karnataka Town and Country Planning Act, 1961, could it be

37 declared as an “industrial area “ under the KIADB Act, 1966, without the Planning Authority having altered the classification ? 11. In considering the above points, the following background is necessary to be kept in view. The fourth respondent is a private limited company. It intended to establish an Information Technology park in lands in the villages of Nagavara and Thanisandra in Bangalore North Taluk. A project proposal was made and was duly approved by a State Level Single Window Clearance Committee as on 3-5-2006. It was recommended that an extent of 15 acres and 27 guntas of land comprised in various survey numbers of Nagawara and Thanisandra villages be acquired under the KIADB Act, albeit through a consent acquisition process. The acquisition proceedings having been initiated the same culminated in the Final notification dated 6-11-2009 in respect of an extent of 13 acres and 3 guntas, excluding 24 guntas , which corresponds to the land claimed by the petitioners on the one hand and respondents 6 & 7

38 on the other. The notification restricted the extent to 13.03 acres instead of 13.27 acres, on account of the fact that the petitioners had challenged the acquisition proceedings in an earlier writ petition in WP 17387 / 2007 before this court. As there was an interim order issued therein directing the maintenance of status quo , dated 6-11-2007. There was also another writ petition filed by the children of the erstwhile land owners in WP 572 /2010. The said petitions were dismissed as on 11-7-2009 and 19-7-2010, respectively. It is only thereafter the Final Notification under Section 28(4) of the KIADB Act, in respect of the remaining extent of land measuring 24 guntas , claimed by the petitioners and respondents 5 & 6 , has been issued as on 4-7-2012. It is not in dispute that the petitioners were not notified of the acquisition proceedings . This is evident from the record. The State Government , after declaring an extent of 13.27 acres of land in Nagavara and Thanisandra villages as an industrial area , issued a notification under Section 28(1) dated 9-3-2007 proposing to

39 acquire the said lands for the purpose of development. The notified Khatedars and Anubhavdars of land in Survey no. 58/1 (1.04 acres) and 59/1 ( 1.11acres ) were Ramaiah and Gopalappa, jointly, in respect of both items. Notices of an enquiry as required under Section 28(2) had also been issued in their names. But the petitioner no.1 had appeared at the enquiry and so had the representatives of the fourth respondent. The said respondent had claimed that the children of the Khatedars had sold the property to Respondents 6 and 7, who in turn, had consented to the acquisition proceedings. Notices were hence issued to the children of the Khatedars also. It is after considering the rival contentions and the documents produced by them that an order dated 10-9-2007 was passed under Section 28(3) of the KIADB Act. It was opined by the third respondent that the dispute as regards ownership of the land could not be resolved by him but the dispute as such could not impede the acquisition proceedings.

40 It is seen from the Sale deeds produced by the petitioners at Annexures B,C & D is in respect property described as i) Khatha no.800 , Site no. 10, House list no. 58/1 and 59/1, Gramathana of Thannisandra village ; ii) Portion of House bearing Khata no. 800 ( Old Property no. 10/B) , Old Khatha no. 58/1 and 59/1 situated at Thanisandra village and iii) Portion of house bearing khatha no. 225 /A ( Old property no. 10 /C ) Old Khata no 58/1 and 59/1 , situated at Thanisandra village, respectively. The property acquired is agricultural land and apparently had not been converted for non-agricultural purposes. The Planning Authority had not granted approval of any residential layout on the said land. The claim of the petitioners as to the existence of a residential layout in which they are said to have purchased the house sites claimed by them cannot be readily accepted by this court on a strict view of the law. On the other hand the sale deeds under which respondents 5 & 6 seem to claim at Annexure R-1 and R-2 , produced by them along with their

41 statement of objections appear to be closer to the description of the land that is the subject matter of the acquisition proceedings. Hence no blame can be found with Respondent no. 3 in negating the objections sought to be raised by the petitioners. They have not been notified as their names were apparently not reflected in the revenue records on the basis of which the preliminary notification had been issued. The first point for consideration would have to be answered against the petitioners in view of the settled legal position as stated by the apex court in the case of Ahuja Industries Ltd. vs. State of Karnataka, AIR 2003 SC 3519 following the decision in Winky Dilawari v. Amritsar Improvement Trust 1996 (11) SCC 644 , wherein it was held that failure to serve personal notices on the persons whose names have not been mutated in the official record of rights in pursuance to any sale in their favour does not vitiate the proceedings for acquisition. And in W.B. Housing

42 Board v. Brijendra Prasad Gupta – 1997 (6) SCC 207 wherein it was observed as follows : “. . . . . . . . . . . . . It is no part of the duty of the Collector to make a roving enquiry into ownership of the persons. We are of the opinion that the requirements of the law were met when notices were served upon the recorded owners as per the Record- of-Rights. Again we do not think in a case like the present one. It is for the Collector to make enquiries from the registration office to find out if the land had since been sold by the recorded owners. In Winky Dilawari v. Amritsar Improvement Trust, (1996) 11 SCC 644, this Court observed that the public authorities were not expected to go on making enquiries in the Sub-Registrar’s office as to who would be the owner of the property. The Collector in the present case was thus justified in relying on the official record being the Record-of-Rights as to who were the owners of the land sought to be requisitioned and prudence did not require any further enquiry to be made. We are, therefore, of the view that notices were properly served under Section 3(2) of the Act on the owners of the land.”

43 In so far as the second point for consideration is concerned even though there was a dispute as to the title to the property in question it was in the face of consent agreements said to have been executed by respondents 5 & 6 in favour of Respondent no. 4, pursuant to sale deeds under which they claimed title. The third respondent has hence overruled the objections raised by the petitioners to the acquisition– while recording the dispute raised by the petitioners to the title to the property – which would have to be adjudicated elsewhere , vis-à-vis respondents 6 & 7 to claim compensation in respect of the land. Hence the acquisition proceedings cannot be faulted on the ground that there is no valid consent granted by the true owners of the land. In view of the above points having been answered against the petitioners, the third point for consideration being answered would not enure to the benefit of the petitioners, even if it is answered in the negative. The point, however, is addressed in view of the time and effort expended by the learned Senior

44 Counsel to place their respective points of view on the legal position and to add the humble opinion of this bench to the illuminating views expressed in the several authorities cited. The same are considered chronologically. In SS Darshan’s case, supra, the apex court was dealing with two appeals by special leave against dismissal of two writ petitions by a common order by a Division Bench of the High Court of Karnataka. The challenge in those writ petitions was to the validity of notifications under Section 4 (1) read with Section 17 of the Land Acquisition Act, 1894 and under Section 6 of the said Act. A large tract of land contiguous to the area acquired by the impugned notifications had already been acquired by the KIADB under the provisions of the KIADB Act. But that area was found to be inadequate for the project on account of which the contiguous disputed area had been acquired under the LA Act. The larger area acquired earlier was for setting up an Information Technology Park.

45 It was canvassed on behalf of the appellants that the transfer of the acquired land would be made in favour of a private limited company , though initially as a lease , but ultimately to be converted into a sale in favour of the company and therefore it would only profit the private party in the guise of a public purpose. The apex court negatived this primary contention and held that the acquisition was for the public purpose of setting up the IT Park by the Government, when it was so notified. It was also contended that the user of the acquired land shown in the master plan being different, there could not be a conversion of the user except in accordance with the provisions for making the change in land use. The apex court held that it was not a case of change of user by the owner of the land but one of acquisition by the State under the provisions of the LA Act and hence was not tenable. In N Somashekar’s case, the controversy related to acquisition of lands of the several petitioners in several taluks of

46 several districts of Karnataka under the provisions of the KIADB Act. On the several contentions urged , one of the points framed for consideration was : ” iv ) Whether any portion of the lands sought to be acquired falls within the green belt areas identified in the comprehensive development plans and if so whether the same could be utilized without securing orders permitting conversion of such land under the Town and Country Planning Act “ The contention was that the use of the lands could not be altered even by resort to compulsory acquisition proceedings except after obtaining permission of the authorities under the Act . The contention was negated for two reasons. Firstly, because nothing was placed on record to show that the lands were part of the green belt area. It was further held as follows : “20. That apart, the provisions of Section 47 of the Karnataka Industrial Areas Development Act give an overriding effect to the said Act vis-à-vis

47 other enactments that may be inconsistent with its provisions. Assuming therefore that there is any conflict between the provisions contained in the Town and Country Planning Act, 1961 and those contained in the Karnataka Industrial Areas Development Act, 1966, the inconsistency notwithstanding the provisions of the later Act will take effect. To the same effect is the view taken by a Division Bench of this Court in Kulkarni H.G. vs. Assistant Commissioner, Belgaum and Others (1976 (1) KLJ 290), which was reiterated in M.S. Moses vs. State of Karnataka (ILR 1991 Karnataka 770). In the latter case the Court went to a step ahead and declared that there was no real conflict between the provisions of Karnataka Town and Country Planning Act and the Industrial Areas Development Act, which operated in two different fields. The consistent view taken by this Court therefore is that the provisions of the Karnataka Industrial Areas Development Act will have overriding effect over the provisions of the Town and Country Planning Act. It follows that once an acquisition is found to be necessary for the purpose of development by the Industrial Areas Development Board or for any other purpose in furtherance of the objects of the Industrial Areas Development Act, such acquisitions cannot be questioned on the ground that the same is in any way opposed to or impermissible under the

48 Karnataka Town and Country Planning Act. I have therefore no difficulty in holding that even if the lands owned by the petitioners or any portion thereof fell in any green belt area, the acquisition thereof under the latter of the two Acts mentioned above cannot be questioned. Question No.(iv) is answered accordingly.” In Bhagath Singh’s Case, supra, the facts were as follows : The District Magistrate, Agra had sent proposals to the U.P. Government for acquisition of lands in Bainpur village for the construction of a market yard for fruits and vegetables. Notifications under Section 4 (1) and Section 17 of the LA Act were issued. Thereafter a Declaration under Section 6 having been issued – it was that acquisition which was challenged in a batch of writ petitions before the High Court. One of the contentions urged was that the land which was sought to be acquired was marked in the Master Plan for Agra for the use of ‘ light industries’ and later as ‘ green belt’ and it was therefore not permissible to acquire the same for locating the market yard , in violation of the Master Plan. The High court held that even if the

49 user for a market yard was not one of the permissible uses of the land as per the Master Plan, still once the land was acquired , the market committee could take steps to have the Master Plan suitably amended. The apex court while agreeing with that view expressed thus : “20. Analogous issue arose in the case Aflatoon v. Lt. Governor of Delhi (1975) 4 SCC 285 : (AIR 1974 SC 2077). In that case, a notification was issued under Section 4(1) of the Act for acquisition of a vast extent of land for the planned development of Delhi. The said acquisition was questioned. One of the contentions was that for such a purpose, development, action had to be taken only under the Delhi Development Act, 1957 and that too by the Chief Commissioner of Delhi under that Act and not by the Central Government under the Land Acquisition Act. It was there argued that inasmuch as there was no Master Plan nor Zonal Plan in existence on the date of notification, the acquisition was bad. This Court rejected objection raised by the owners and observed, after referring to Sections 12 and 15 of the Delhi Development Act, 1957, as follows (para 23):

50 “The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of the Delhi Development Act after that Act came into force but there is no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready. (See the decision in Patna Improvement Trust vs. Smt. Lakshmi Devi (1963 Suppl (2) SCR 812) : (AIR 1963 SC 1077). In other words, the fact that actual development is permissible in an area other than a development, area with the approval of sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development, it has nothing to do with acquisition of property; acquisition generally precede development.” This Court observed (para 23): “For planned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any property

51 under the Act and develop it after obtaining the approval of the local authority.” 21. The above decision of this Court was followed by the Allahabad High Court in Kendriya Karamchari Evam Mitra Sahkari Avas Samithi Limited. v. State of U.P. 1988 UPLBEC 645: (1988 All LJ 1224). It was held in that case that the government could acquire any property under the Act and later develop the same after obtaining the necessary approval of the concerned local authority under the Development Act. It was stated (at page 651 of UPLBEC) : (at p.1230 of ALL LJ): “Amendment of Master Plan is permissible with the approval of the State Government under Section 13 of the U.P. Urban Planning and Development Act, 1973 and in the present case the Master Plan showing the area in question as green belt was modified with the approval of the State Government which approval no doubt was accorded subsequent to the issue of notification under Sections 4 and 6. However, as observed by their Lordships of the Supreme Court the mere fact that till the date of the issue of the notification under Section 4, the necessary approval of the Government had not been obtained cannot preclude the Government from acquiring the land for planned development under the Land

52 Acquisition Act. Acquisition generally precedes development and consequently the land in question could be acquired in anticipation of the approval of the State Government for the change of the land use of the Master Plan prepared by the Development Authority.” 22. As pointed out in the above judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the master plan or Zeal (sic) (zonal) Plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary. On the principle

53 stated in Aflatoon’s case (AIR 1974 SC 2077), it is clear that acquisition for a public purpose and obtaining permission from competent authority under the concerned Development Act for change of land use are different from one another and the former is not dependent upon the latter. 23. For the aforesaid reasons this contention of the appellants is rejected.” In H.G.Sheela’s case one of the points framed for consideration was : “ When the lands in question are earmarked for residential and park zone in the Comprehensive Development plan (CDP) whether the declaration of the same as “industrial area “ without revising the CDP under the provisions of Karnataka Town and Country Planning Act of 1961 and the consequent acquisition of the same for industrial development are legal and valid and in accordance with law “ After quoting extensively from the judgment of the apex court in Bangalore Medical Trust v. B S Muddappa , AIR 1999 SC 1902 , it was held as follows :

54 “ 11. In view of the law laid down by the Apex Court in the cases referred to supra, the notification under Section 3(1) of the Act by including the lands in question and declaring the same as "industrial area" and acquisition of the lands in question by the State Government in favour of the company which are earmarked for residential/park in the CDP for industrial establishment is contrary to the object and purpose for which the lands are earmarked. Therefore the Board has no authority or power to declare the area as "industrial area" without change of land use in the CDP by following the mandatory procedure by the Planning Authority and State Government as provided under the provisions of the Karnataka Town and Country Planning Act. The change in the land use shall be done under Section 14-A of the Karnataka Town and Country Planning Act by the Planning Authority constituted under Section 4-C of the said Act. The Board cannot usurp the said power to declare any area as "industrial area". In the decision of the Apex Court in Biharilal Jaiswal and Ors. v. Commissioner of Income-tax and Ors., (1996 (1) SCC 443), at paragraph 19 upon which learned Senior Counsel on behalf of some of the petitioners has rightly relied it is held as under: “One arm of law cannot be utilised to defeat the other arm of law. Doing so would be

55 opposed to public policy and bring the law into ridicule.” 12. CDP is prepared under Section 19 of the KT and CP Act keeping in view the objects of the said Act. The objects of the Act are.-- “An Act to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Whereas, it is necessary and expedient.-- (i) to create conditions favourable for planning and replanning of urban and rural areas in the State of Karnataka, with a view to providing full civic and social amenities for the people in the State; (ii) to stop uncontrolled development of land due to land speculation and profiteering in land; (iii) to preserve and improve existing recreational facilities and other amenities contributing towards balanced use of land; and

56 (iv) to direct the future growth of populated areas in the State, with a view to ensuring desirable standards of environmental health and hygiene, and creating facilities for the orderly growth of industry and commerce, thereby promoting general standards of living in the State. And whereas, in order to ensure that town planning schemes are made in a proper manner and their execution is made effective, it is necessary to provide that a local authority shall prepare a development plan for the entire area within its jurisdiction. And whereas, it is necessary and expedient to consolidate and amend the law relating to town planning for the aforesaid and other purposes hereinafter appearing.” The CDP shall be preceded by Outline Development Plan. The procedure contemplated to prepare the CDP under the provisions of KT and CP Act is very elaborate. The Board cannot dilute such CDP by declaring an area as "industrial area" without consulting the Planning Authority and seeking change of land use. Any change of land use without revising the CDP defeats the very object and purpose of CDP. That is not permissible in law. Therefore, the declaration made

57 under Section 3(1) of the Act as "industrial area" of the lands in question which are earmarked as residential/park zone and acquisition of the same for industrial purpose by the State Government is without authority of law, and the same is opposed to the provisions of KT and CP Act and therefore the same cannot be allowed to sustain. If the action of the Board and State Government declaring the lands earmarked for residential, park etc., as industrial area is accepted by this Court, those lands remain for residential, park etc., in the CDP but insofar as the Board is concerned, the lands in question will be meant for industrial purpose. The lands in a particular area cannot be earmarked for two different purposes. Such thing will result in absurdity and the same is opposed to public policy as enumerated in the KT and CP Act. 13. As per Clause (a) of Section 14-A(1) of the KT and CP Act, the change of land use shall be in public interest. In the instant case, the declaration of the lands as "industrial area" is not for public purpose but for a private purpose. Even if it is construed that acquiring lands in favour of the company is public purpose, this important aspect is not evidenced from the original records of the State Government and Board. Clause (b) stipulates that the changes that would be proposed to the existing CDP shall not contravene the provisions of the KT and CP Act or any other law. The declaration of the lands in question as

58 "industrial area" contravenes Section 14-A and Sub-section (2) of Section 14 of the said Act. In this regard the law laid down by the Apex Court in the case cited below is aptly relied upon by the learned Senior Counsel Sri S. Vijaya Shankar, which relevant paragraph is extracted hereunder: In Municipal Corporation of Greater Bombay v. Industrial Development Investment Company Private Limited and Ors. (AIR 1997 SC 482), it is held as under: “13. It is, therefore, clear that for the purpose of acquisition of any land under Section 126(2) of the Maharashtra Regional and Town Planning Act, 1966 Act, the land sought to be acquired must have a direct connection with its specification, earmarking or reservation for a specified public purpose in the development plan itself. Such earmarking etc., is its charter. In other words, absence of public purpose would be a fetter on exercise of power of acquisition made under Section 126(2) of the Maharashtra Regional and Town Planning Act, 1966 or a truncated public purpose. An exercise of eminent domain derives its efficacy from the reservation, specification or designation for public purpose of the concerned land as found in the development plan itself. In this nexus or

59 linkage between the specification etc., of public purpose in the plan and the land concerned which is sought to be acquired under the MRTP Act is snapped off, prior to the completion of acquisition proceedings as per Section 126(2) of the MRTP Act, the entire edifice of acquisition proceedings under Section 126 would crumble down and the acquisition under that section would become incompetent. xxx xxx xxx 15. It would be necessary to emphasise that to implement the scheme framed and approved by the State Government under the MRTP Act, the land was notified under Section 126 as it was for a public purpose. If the earmarked, designated or reserved land in the subsequent plan prepared and approved under the Bombay Metropolitan Region Development Authority Act, 1974, does not subserve any public purpose within the earmarked, designated or reserved public purposes, necessarily, the public purpose envisaged under Section 126 outlives its purpose and gets eclipsed. Public-purpose envisaged in original approved plan no longer survives and if the land sought to be acquired is diverted to or earmarked or designated to a private purpose,

60 necessarily remedy must be either under Chapter 7 of the Act or any relevant law or Section 126 as per revised and approved scheme at which stage the owner gets opportunity to submit his objections for consideration before submitting the plan for approval by the State Government. (emphasis supplied)” 14. Further in pursuant to the impugned acquisition notification under Section 28(4) of the Act, under Sub- section (5) of the same provision the acquired lands shall vest absolutely in the State Government free from all encumbrances. If the State Government cannot change the land use other than the purpose for which it is already earmarked in the CDP in view of the decisions of the Apex Court which are referred to above and under the provisions of KT and CP Act then the purpose for which the lands acquired cannot be utilised and therefore it cannot be stated that lands in question are acquired by the State Government for public purpose. Apart from the factual and legal position the acquired lands cannot be utilised for industrial development unless the change of land use though the same statutorily vests with the State Government. Therefore the lands in question also can be either acquired by the other statutory authority or their owners for the purpose for which

61 they are earmarked in the CDP, then it would leads to anomalous and incongruous position. 15. It is pertinent to note that in the 235th Meeting of State Level Single Window Agency held on 15-11-2003, the proceedings of the Committee is produced as Annexure-S in W.P. No. 4148 of 2005, which is sought to be declared as illegal contending that the same is not in accordance with law in W.P. No. 1393 of 2004, Subject No. 10 the meeting of the project of 3rd respondent-SBG Software is approved, the representative of Bangalore Development Authority who is one of the members of the committee has informed to the State Level Single Window Agency as under: “The representative of BDA informed the Committee that a portion of the land is meant for parks as per existing CDP and the remaining portion under residential area. It was also informed that the land is abetting the outer ring road in K.R. Puram area.” Despite pointing out as above by the representative of the BDA, the State Level Single Window Agency has not at all considered the same and mechanically approved the project of S.B.G. Software Company without application of mind. No discussion whatsoever is made regarding the change of land use. Therefore, the approval of the said project of the company is not in accordance with law. The submission of

62 learned Senior Counsel Mr. R.N. Narasimha Murthy, placing reliance upon the decision of the Division Bench of this Court in S.S. Darshan v. State of Karnataka and Others (ILR 1996 KAR 1241 (DB) ), which decision is approved by the Apex Court in S.S. Darshan v. State of Karnataka and Others , (AIR 1996 SC 671), wherein the Division Bench of this Court has held that Section 14 of KT and CP Act requires that land needs to be utilized for a particular purpose, relaxation thereto has to be sought for under the above Act. Merely acquisition of land by itself is not prohibited. It is only when the land is sought to be developed invoking provision of Section 14 of the Act would be attracted. In this decision the Apex Court has not examined in detail the scheme and object of the KT and CP Act, apart from this it has not considered its earlier decision in the case of Bangalore Medical Trust and other decisions of the Apex Court. The later decisions of the Apex Court which relevant paragraphs are extensively referred to in this judgment, wherein it has after examining the fundamental rights of citizens, Principle 1 of the Stockholm Declaration of the United Nations on Human Environment, 1972, the fundamental rights of citizens guaranteed in Part III of the Constitution of India and the environmental law is thoroughly examined and laid down the law holding that the lands which are earmarked for a particular public purpose in the CDP by the State Government on the recommendation of the Planning Authority after following the mandatory provisions of the KT and CP Act, the same can be altered

63 only by the State Government by following the procedure as contemplated in law. Further, it is held by the Apex Court that the change of land use cannot be done by the State as it would affect the fundamental rights of the residents/citizens, as such change of land use would be opposed to law. In this view of the matter the submission of learned Senior Counsel on behalf of the Board cannot be accepted. It follows that the declaration sought in this regard has to be granted. Point No. 1 is answered in favour of the petitioners holding that declaration of the area where the lands in question as "industrial area" and acquiring the same for the benefit of private company, other than the purpose as earmarked in the CDP and therefore the same is not legal and valid.” In the case of Special LAO, KIADB, supra, Sheela’s case was carried in appeal to a Division Bench of this court, the following discussion is relevant for the purposes of this case : “15. However, in the case of N.Somashekar, a learned Single Judge of this Court had an occasion to consider the provisions of the KIADB Act vis-a-vis KT and CP Act. But the question therein also was as to whether a green belt area could be declared as Industrial Area. At the first instance, the learned Judge was of the opinion that there was nothing on record to indicate that the land in question was situate in the green belt area. Thereafter the

64 learned Judge by drawing support from the decision of the Division Bench of this Court in the case of M.S. Moses V State of Karnataka (ILR 1991 KAR 1770), and also noticing Section 47 of the KIADB Act was of the view that it could be acquired under the KIADB Act even if it is in the green belt. The learned Judge has also noticed the expression ‘Industrial Area’ and ‘Industrial Estate’ as contained in Section 2(6) and 2(7) of the KIADB Act. In this regard, a perusal of M.S. Moses case would indicate that the contention put forth therein that agricultural and residential land cannot be put to use by an industry a was negatived since Section 47 of the KIADB Act would prevail. In the said decision, this Court has gone to the extent of saying that there is no conflict between the Acts by stating that KT and CP Act states in the preamble that it is for the purpose of planning and orderly development of industry and commerce. But what we notice is that, in fact the KT and CP Act states that it is an Act to provide for the regulation of planned growth of land use of the development and for the making and execution of town planning schemes. Therefore, it appears as if the Court proceeded on a wrong assumption. Be that as it may, even if there is conflict between the two Acts, Section 47 of the KIADB Act provides for overriding effect. Though Sri G.S. Visweswara, learned Senior Counsel relied on the decision in the case of Karnataka Industrial Area v Development Board V C. Kenchappa, (AIR 2006 SC 2038), to contend that validity of Section 47 is left open to be decided, the Hon’ble Supreme

65 Court had said so in a different context and it has been left open for itself and insofar as this Court, the same would have to be considered as valid. Therefore, conceding for a moment that Section 47 has overriding effect, there can be no doubt that it would come into play only when there is conflict between the provisions of two or more enactments. In that view of the matter, the primary task of the Government should be to harmoniously construe the objects of the two enactments to give effect to both. Only in cases where there is no option but to allow one enactment to override the other, the same should be resorted to and even that should indicate application of mind by the Government in the facts of each case and there is no gain saying that the power is available and it should be approved merely because it is the policy of the Government even it is does not indicate application of mind on judicial review. In this context, if it is examined, the view taken in Moses case is where the Government had issued Section 3(1) notification in respect of a village in the rural district with the object of forming a planned industrial layout. Further, in the case of N. Somashekar, the Court was considering the acquisition of vast extents of land in different villages, where planned industrial estates were being laid out. These decisions on their facts, insofar as locating the industrial estate was held as a policy decision of the Government and this Court had come to the conclusion that the notification made under Section 3(1) of the Act even in respect of green belt were valid.

66 16. While noticing this aspect what should be borne in mind is that in the case of Somashekar, there was no material on record to indicate that the area which was being acquired was within the green belt as stated by the learned Single Judge. Further, the decision was rendered assuming that the land was within the green belt area. Thus, one of the contentions which was in issue is with regard to the acquisition of the land which was within the green belt area and not regarding a park and residential area as per zonal regulation within the planning area. An area being notified as a green belt is as contemplated under sub-section (3-A) to Section 95 of the Karnataka Land Revenue Act, 1964 read with Rule 102-B of the Karnataka Land Revenue Rules, 1966. This would indicate that the notification of green belt is with a view to protect and improve the environment. The Rule 102-B, in this regard would indicate the distance at which the green belt area would lie considering such area being a City, City Municipality, Town Municipality or notified areas. Though sub-section (3-B) to Section 95 provides that no permission would be granted to divert any land or part thereof assessed or held for the purpose of agriculture lying within the limits of green belt to any other purpose, the notification to declare the said area to be industrial area would only mean that the Government would modify the earlier notification indicating the area as a green belt area and the same would become an industrial area. In such a situation, all that would happen is that the Government would have the option of renotifying the green

67 belt area in a different belt keeping in view Rule 102-B of the Rules so as to protect and improve the environment. On the other hand, insofar as the area being marked for a specific purpose and usage under the CDP in a planning area cannot be considered on par with green belt since an application for diversion as contemplated under the Karnataka Land Revenue Act is permissible by keeping in view the Town and Country Planning Act. But the change of land use contemplated under Section 14-A of the KT and CP Act insofar as CDP is self contained as provided therein. As such, the rigour of the said provision is more intense as compared to the acquisition of the green belt area. Hence, it cannot be said that the decisions in the cases of Moses and N. Somashekar are directly applicable to the facts involved in the case o hand. 17. However we are in respectful agreement insofar as the law declared therein with regard to the power of the Government to declare any area as an industrial area by issue of notification under Section 3(1) of the Act, but we are of the view that it should at the first instance be in such a manner so as to avoid conflict with any other planning enactment. But after application of mind, if the Government finds that in a particular situation the conflict cannot be avoided, then no doubt the provisions of KIADB Act would prevail in terms of Section 47 of the Act. Therefore, though such notification under Section 3(1) of the KIADB Act would be issued in furtherance of the power of eminent domain, the

68 same would still remain within the sweep of judicial review and scrutiny. That being so, the Government, in respect of every notification should be in a position to justify such action as and when the same is called in question by the affected party. 18. Keeping this in view and noticing that the facts involved in Darshan’s case and Somashekar’s case are not exactly similar to the facts involved in the present case, though the learned Single Judge was not justified in observing that the Hon’ble Supreme Court has rendered the decision in Darshan’s case without noticing the decision in B.S. Muddappa’s case, the fact of the matter is that the decision in B.S. Muddappa’s case was not required to be noticed while deciding Darshan’s case as they were on different set of facts involving different questions which in fact makes Muddappa’s case more relevant to the facts on hand. Therefore, insofar as the present facts on hand, the learned Single Judge was justified in relying on the decision rendered by the Hon’ble Supreme Court both in the case of B.S. Muddappa and in the case of M.C. Mehta. 19. We say so because in the facts on hand, the question is with regard to the declaration of an area which was reserved as park and the residential area in the CDP with in the urban agglomeration of Bangalore as an industrial area. In the zonal regulation, the small pocket wherein the beneficiary sought to establish the industry was

69 reserved as a park and residential area. Keeping in view this aspect of the matter, the proceedings undertaken by the Government before notifying the area as an industrial area as defined under the KIADB Act also requires to be noticed. As noticed repeatedly during the course of this judgment, the State Government may by notification under Section 3(1) of the KIADB Act declare an area in the State to be an industrial area for the purposes of that Act. “Industrial Area” is defined in Section 2(6) of the Act to mean any area declared to be an industrial area by the State Government by notification, which is to be developed and where industries are to be accommodated and includes as industrial estate. Further “industrial estate” is defined to mean any site selected by the State Government where factories and other buildings are built for any industries or class of industries. Though the reading of the definitions would indicate that the industrial area and the industrial estate should be where the industries are accommodated, considering the decisions referred to by the learned Counsel for the appellant that even for a single industry, an area could be declared as an industrial area and in that context if the present case is examined, even from that stand point what is to be considered is as to whether the Government has applied its mind in the manner it is required to do while declaring an area as an industrial area under Section 3(1) of the Act. Even if a single industry is to be located, what is to be considered is as to whether such an industry should be developed in such an area and the process of consideration

70 in arriving at such a conclusion would be the all important factor. In the decision referred to in the case of Heggappanavara and the other decisions, it was a case of acquisition of vast extent of agricultural land for setting up industry and in the case of P. Narayanappa and Another v State of Karnataka and others, (AIR 2006 SC 3001), though relating to technology park the issue was that the name of the industry nor the nature of the industry need be referred to in the notification considering that it is the acquisition for KIADB under Section 28(1) of the Act. In contradistinction to the said decisions, in the present case, the beneficiary has not merely submitted the proposal and sought for allotment of a suitable land either available with the KIADB or to be acquired at the discretion of the Government in a suitable place to be located by the Government. Instead, the beneficiary has pointed out the location, survey number and the extent of land while placing the proposal which was considered by the State level Single Window Agency in its 235th proceedings held on 15-11-2003. The perusal of the proceedings would indicate that the Single Window Agency referred to the proposal of the beneficiary for setting up the software development facility in 17 acres 21 guntas of lands at Mahadevapura Village, K.R.Puram Hobli, Bangalore East Taluk . It is a different matter that there is no detailed consideration with regard to the proposal put forth by the beneficiary. That being an issue with regard to the viability of the project, we do not propose to advert at this point of time. The issue however is with regard to the location of the

71 land and the feasibility of setting up an industry in such land chosen by the beneficiary. The representative of the Bangalore Development Authority is also a part of the process of consideration. The proceedings would indicate that the Single Window Agency has taken note of the information furnished by the representative of the Bangalore Development Authority to the Single Window Agency that a portion of the land is meant for park as per existing CDP and the remaining portion is under residential area and that the land was abutting to outer ring road in K.R. Puram area. This information would indicate that the property concerned is within the jurisdiction of the Bangalore Development Authority, and is indicated as park and residential area in the CDP. Therefore, the same would have to confirm to the zonal regulations. The proceedings does not indicate any discussion about this position of the nature of the land and as to why the proposal should be implemented in this land alone despite the said land having been reserved for park and residential area. All that the proceedings records shows is that after detailed discussion, the committee has resolved to approve investment and extend the infrastructural assistance and therefore the same land has to be recommended to be acquired. One other aspect which is also required to be noticed is that the agency was of the view that for implementation of the said proposal, the area of 17 acres 21 guntas of land is required as a single unit complex. Subsequent to the said recommendation, the Government has issued two separate

72 notifications both dated 27.1.2004 under Sections 1(3) and 3(1) of the KIADB Act. By notification under Section 3(1) of the Act, an area measuring 16 acres 6 guntas has been notified as industrial area. Neither the said notification nor the records produced along with the appeal memo would indicate the application of mind of the Government to declare the said area as an industrial area despite the same being reserved as a park and residential area in the CDP despite the same being recorded in the proceedings of the Single Window Agency. Further what was recommended by the agency was 17 acres and 21 guntas whereas the notification is in respect of 16 acres 6 guntas. Why an area of 1 acre 5 guntas was given up is not forthcoming. One another aspect which requires to be noticed is that what was ultimately acquired by issue of notification under Section 28(4) is an extent of 12 acres of which 8 acres is for the benefit of the beneficiary. When the Single Window Agency after considering the feasibility of the project had recommended that for implementation of the project an extent of 17 acres 21 guntas would be required as a single unit, then effect of reduction of the area by almost 5 acres was also required to be considered. If the Government deemed if fit, that only 8 acres is enough, then decision of Single Window Agency that 17 acres 21 guntas is required for this industry is obviously wrong. If really the beneficiary required 17 acres 21 guntas, then any appropriate area where the said extent of land was available ought to have been identified as otherwise the entire process of

73 consideration and recommendation by the Single Window Agency would not only be an empty formality but a mockery. 20. Therefore, keeping these aspects in view and noticing the power available to the Government and the decision which is required to be taken by the Government to declare an area as industrial area for the development of industry, in our view, the decision making process of the Government should indicate that such an area alone is the suitable area for development of that particular industry even though such declaration is for locating a single industry. Such application of mind is even more important in a matter of this nature wherein the property is within the zonal regulation and governed by the provisions contained in the Town and Country Planning Act. The first attempt of the Government should be to balance the requirements of both enactment so as to provide an harmonious construction of both the enactments. When the decision making process indicates that this is not possible and the said area is required to be declared as an industrial area considering that the development of such industry is possible only in that area and in such a situation if there is conflict in the provisions contained in such enactment, no doubt, the provisions of the KIADB Act would prevail in view of provisions contained in Section 47 of the Act, but this should be clearly evident on record and not in an arbitrary manner merely because the power is available to the Government. It is in fact at this stage, the provisions contained in Section

74 14-A of the KT and CP Act also should be kept in view and given effect to, so as to consider whether the change of land use in inevitable and as to whether the said area requires to be developed as an industrial area in the absence of other alternative. On the contrary, if a declaration is made under Section 3(1) of the Act and thereafter if it is considered that change of land use is to be made, the mere compliance of Section 14-A of the KT and CP Act would only become an empty formality and as such it may not be appropriate to hold that after acquiring, even the Government, has to follow Section 14-A for change of land use. Therefore, in our view the change of land use is an aspect which requires consideration but should precede the action of declaring the area as an industrial area. As noticed above, the very decision making process before issuing a notification under Section 3(1) of the KIADB Act should indicate application of mind to these aspects of the matter relating to the change of land use of the said area being declared as industrial area as against the earlier zonal regulations moreso when the area is within the planning area of the Development Authority. Only on such consideration being indicated, a notification issued by the Government could be sustained. In the facts and circumstances of the present case, there is no such consideration indicated and as such we are of the view that the learned Single Judge was justified in quashing the said notification.”

75 In Janardhan Shetty’s case point no.6 framed for consideration, which is relevant, is held to be answered in Sheela’s case, without any further discussion, as recorded at paragraph 39 of the judgment. In Haribhau Siddappa Patil & others v. The State of Karnataka , WA 1938 /2007, dated 7-3-2012. It is seen that after taking into consideration the arguments of the counsel for the appellant, the Division Bench has held thus: “10. Mr. Gokakakar, learned counsel for the appellants has urged that subject lands being within the area notified by Belgaum Urban Development Authority as the area for its development under the Comprehensive Development Plan notified under the provisions of the Karnataka Town & Country Planning Act, 1961, the issue of notification under section 3[1] of the Act in respect of lands covered within the limits of the Belgaum Urban Development Authority is bad in law. It is urged that even assuming for arguments, the Karnataka Industrial Area Development Act, 1966 is a special enactment, vis-à- vis, the Industrial Areas Development Act, nevertheless, the procedural compliance with section

76 14-A of the Karnataka Town & Country Planning Act, 1961 is very necessary and that having not been complied with, notifications are bad for this reason also. 11. It is pointed out that under the comprehensive development plan, the subject lands are agricultural lands and the intended user of the land in terms of the notification being for industrial purpose, such change of land user of the land is very essential. It is further submitted that the manner in which the power is exercised under the provisions of section 3 of the Act, that too for the purpose of the benefit of fifth respondent is nothing short of an abuse and also arbitrary exercise of statutory power and therefore the acquisition proceedings are vitiated. 12. In this regard, Mr. Gokakakar, learned counsel for the appellants has placed reliance on the Judgment of the division Bench of this court in the case of ‘SPECIAL LAND ACQUISITION OFFICER,. KIADB, BANGALORE AND ANOTHER v. STATE OF KARNATAKA, DEPARTMENT OF REVENEU BY ITS SECRETARY AND OTHERS’ reported in ILR 2007 KAR 4891 to urge that there was no public purpose involved in the present acquisition; that the acquisition for the benefit of a private co-operative society like

77 fifth respondent cannot be construed as a public purpose. Placing reliance on the decision of the Supreme Court in BHAGAT SINGH’S case [supra] and such other cases by the learned single Judge has affected the result in the writ petitions; that the ratio of the case in H.G.SHEELA’s case [supra] aptly applies to the present situation and this view of the learned single Judge having been affirmed by the division Bench of this court, the learned single Judge should have applied the ratio of this case than to rely upon BHAGAT SINGH’S case [supra] to dismiss the writ petitions and therefore urges for setting aside the order and to quash the notification. 13. Mr. Gokakakar, learned counsel for the appellants has also urged that there is absolutely no obligation on the part of either the State Government or even the Board for initiating the proceedings under the Act and in taking it to the stage of declaration; that the State Government had delegated its powers under the Act to the Special Land Acquisition Officer and others in the Board but they have all surrendered their decision to the request of the fifth respondent who had identified the land for its purpose of setting up a cold storage plant, wholesale vegetable auction centre and food processing pulp manufacturing unit;

78 that no independent examination has been undertaken by the State Government or even the Board either for declaring the extent of the area covered by this survey number as an industrial area or for acquiring these lands for such purpose, but merely because the fifth respondent – society was headed by a political bigwig and a representative of the people, others have surrendered their decision and therefore the proceedings are vitiated. 14. It is also submitted that the manner in which the statutory powers are exercised by the State Government is nothing short of a colourable exercise of power; that the issue of notifications under sections 3[1], 1[3] and 28[1] of the Act in the name of public purpose is nothing short of misuse and abuse of the power as the purpose is only a private purpose, in the sense, acquisition is for the benefit of a private society and does not serve any ‘public purpose’ as is understood in the true meaning of this phrase.. 15. One another point urged is that the Urban Development Authority and the competent authority had earlier declined such permission for conversion of land from agricultural to non-agricultural use in respect of neighbouring lands on the premise that such lands had been indicated as agricultural land in the comprehensive development plan notified by the

79 Belgaum Urban Development Authority and this has been overlooked by the learned single Judge by assuming that acquisition in the present case is for public purpose and such assumption has vitiated not only the order passed by the learned single Judge, but there being no real public purpose, exercise of power in the name of public purpose for issue of notifications under sections 3[1], 1[3] and 28[1] of the Act are all bad in law. 16. By drawing our attention to the facts of BHAGAT SINGH’S case [supra], Mr. Gokakakar, learned counsel for the appellants submits that it was a very peculiar case wherein the Government had noticed an atrocious situation of vegetable market in Agra city being located in a most filthy, congested locality and being located in a most unhygienic area, called for immediate shifting of the same and it did serve a real public purpose as the acquisition of land in that case was for shifting of the vegetable market and submits that in the present case, there is no such requirement; that the requirement is only one of a private co-operative society and therefore not a public purpose and the ratio of BHAGAT SINGH’S case [supra] is clearly not applicable to the present situation.

80 17. He has joined issue on the aspect of the intended acquisition for the benefit of the fifth respondent – society to put up a cold storage plant being in the nature of a public purpose by submitting that there is a well established functioning APMC yard in Belgaum city with two cold storage plants at a distance of about 12 kilometers from the subject land and therefore there is no imminent need in the present situation for setting up a cold storage plant that too only by the fifth respondent in the lands of the appellants. 18. Likewise, Mr. Gokakakar, learned counsel for the appellants submits that the ratio of the decision of the Supreme Court in the case of S S DARSHAN v. STATE OF KARNATAKA AND OTHERS’ reported in AIR 1996 SC 671 is also not attracted to the present case. 19. Mr. Gokakakar has also drawn the attention of the court to the Judgment of the division Bench of this court in the case of ‘A JANARDHAN SHETTY v. SHANTAMMA AND OTHERS’ reported in ILR 2009 KAR 2159 and the questions that fell for consideration in that case as indicated in paragraph-19 to submit that as in that case, in the present case also, the acquisition is not for a real public purpose, but only for the benefit of a private co-operative society and therefore submits

81 that the present acquisition initiated on the recommendation of the single window clearance agency at the District level or the State level and without any further application of mind on the part of the statutory functionary is bad in law and therefore submits that the writ appeals are to be allowed and the order of the learned single Judge set aside and the impugned notifications quashed.” The bench has then expressed its chagrin as follows : “32. It is not in dispute that the fifth respondent is a private co-operative society said to be formed by farmers for their benefit and registered under the provisions of the Karnataka Co-operative Societies Act, 1959. Assuming that a private society like the fifth respondent has a very commendable and workable project to be started or implemented as in the instant case, establishment of a project of this nature by such private society can never partake the character of a public purpose. It may be true that the working of the project and its establishment by the fifth respondent may enure to the farmers class, but it still remains in the domain of the private enterprise. The concept of ‘public purpose’ whether as understood under the Land Acquisition Act, 1894, or under the Karnataka

82 Industrial Area Development Act, 1966, is not the same as a private project and for the benefit of a private society. It is obvious from a perusal of the manner in which developments have taken place that the entire State machinery including the so called single window agency and the Board have all been activated and have been made to work with great speed to please the fifth respondent – society, that too for acquiring the private lands in the name of public purpose. 33. Powers under sections 3[1], 1[3] and 28 of the Act are to be exercised by the State Government as a statutory functionary and on relevant considerations. In the present situation, though the motions of issuing such notifications and publishing the same in the gazette have all been gone through, it is obvious that the decision making process is only guided by the fifth respondent whose requirement has assumed importance before all authorities. 34. It is rather ironic that a combination of the statutory provisions under the Karnataka Co- operative Societies Act, 1959, Karnataka Industries [Facilitation] Act, 2002 and the Karnataka Industrial Area Development Act, 1966, are all pressed into service for the purpose of acquiring a

83 small extent of 13 acres 27 guntas of land in a private holding. 35. The so called power of eminent domain is pressed into service for compulsory acquisition of these lands only for the benefit of the fifth respondent. The concept of ‘public purpose’ and public interest is not the same as providing or extending the facility for establishing a project of a private co-operative society by utilizing the powers of the State for compulsory acquisition of private lands and in the name of a public purpose. 36. It is also to be emphasized that while Karnataka Industries [Facilitation] Act, 2002 may have a good and laudable object and purpose to facilitate and to speed up the clearances to be obtained at the Government level by intending entrepreneurs, it does not at the same time mean that law and procedures can be given a go by. It is rather surprising to see that the statutory functionaries in the name of recommendation by either State High Level Clearance Committee or the State Level Single Window Clearance Committee have systematically given a go by to all requirements of law and procedure and have surrendered their judgment to the dictates of this Committee.

84 37. Whether a State High Level Committee has cleared a project or as in the present case, the State Level Single Window Clearance Committee has approved the project, neither the statutory provisions can be changed by such approval nor the procedural requirements and exercise of power on relevant considerations can be given up. No statutory authority whether functioning under the present Act or under any other enactment can abdicate its duties and responsibilities in favour of the decisions/clearance/approval of the so called State Level Single Window Clearance Committee or the State High Level Clearance Committee, however strong and potent the composition of these committees may be, including a good number of Secretaries/Principal to the Government and may include many a Cabinet Ministers and even the Chief Minister. Any decision of such Committee is always subject to securing compliances with the relevant statutory provisions. In fact, even in the present case, as one can notice, the very single window clearance committee has apprised the fifth respondent that the fifth respondent has to comply with other requisite statutory provisions and clearances. It is afortiori so on the part of the statutory authorities exercising statutory power to comply with the requirements of law.

85 38. We find that the statutory power for notifying an area as an ‘industrial area’, need for applying the provisions of chapter-IV in respect of the area for the purpose of acquiring the land and the issue of a preliminary notification under section 28[1] of the Act which are all statutory functions of considerable importance and significance and requiring application of mind have all been simply abdicated to the recommendation of the single window clearance committee in favour of the fifth respondent. It is the fifth respondent who has identified the subject lands and not through a process envisaged in law for a public purpose. It is precisely because of this reason that learned counsel for the appellants has urged that the learned single Judge was clearly in error in proceeding to dismiss the writ petitions on the premise that it was for a public purpose and ratio of BHAGAT SINGH’S case [supra] applied to the present situation. 39. On the other hand, we find statutory power is not exercised in a manner envisaged in law. Relevant aspects are not taken into consideration and the exercise of power is made subservient to the dictates of an outside agency like the single window agency.

86 40. It is of significance to notice that even when the fifth respondent is applying to the single window agency it has already identified the land, may be with the assistance of the local Tahsildar earlier, but nevertheless, identification is by the applicant and not by a public authority. All further proceedings are just gone through to sub serve this request of the fifth respondent. It is a clear case of non application of mind, abdication of statutory responsibilities and an instance of colourable exercise of power by giving a picture of public interest being involved in a situation where pure private purpose is sought to be served. 41. The powers under the Act is not used for sub-serving the purpose and object of the Act but surrendered in favour of outside dicatates. 42. It is also high time that the State Government to introspect as to whether all its private designs and purposes can be fulfilled in the name or in the guise of extending facilities to entrepreneurs under the provisions of the Karnataka Industries [Facilitation] Act, 2002. While acquisition in favour of a private society is not totally frowned under the provisions of the acquisition act, it should be spelt out so and not to lend a colour of public purpose to such acquisition

87 as if the name ‘public purpose’ is to be used, particularly, as it is presumed in situations of issue of the notifications under sections 3[1], 1[3] and 28[1] of the Act, it should be really so and not a pretence. An acquisition of a small extent of 13 acres 27 guntas of land for the benefit of a private party can never partake the character of ‘public purpose’, however laudable the intentions and objects of the society may be and however good and efficient the project that is likely to be set up by the private society may be. 43. Though no personal malafides are attributed to any person by impleading any person by name, but nevertheless, arguments are advanced suggesting such malafides as the head of the fifth respondent was a Member of the Legislative Assembly etc., and therefore arguments cannot be accepted. But, legal malafides are writ large on the face of the record on the part of not only the State Government but also the Board as statutory authorities have exercised statutory powers and functions only for the benefit of the fifth respondent. Such exercise of statutory power does not stand the scrutiny of judicial review of administrative action put in place by the respondents in the name of exercise of statutory powers.”

88 12. In the light of the above authorities and the facts of the case on hand, it is evident that the acquisition in the present case on hand, is for a public purpose of setting up an Industry as notified. The notification under Section 28 (1) of the KIADB Act which states that the land is needed for development and use as an industrial area is sufficient specification of public purpose. (See : Arnold Rodricks v. State of Maharashtra (1973) 2 SCC 337). The argument that the beneficiary is a private limited company and hence the acquisition only facilitates private gain and that no public purpose is served is not tenable. The acquisition of land situated within a declared industrial area cannot be said to be a fraud on the power vested in the Government just because the beneficiary of such acquisition is a single private company. Even a single industrial unit can constitute an industrial estate. (Heggappanavara Markhandappa v. State of Mysore , 1974 (1) Kar.L. J.71 & N. Somashekar v. State of Karnataka , supra )

89 There is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or the Comprehensive Development Plan. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or the CDP applicable to the particular land or area. Even if any such change of user is warranted , it is for the beneficiary to approach the competent authority under the Planning Act , and obtain the sanction of the said authority for suitable modification of the Plan so as to permit the use of the land for the public purpose for which the land is acquired. The acquisition proceedings are undertaken by recourse to a statute which is independent of a law that may provide for planned development. The planned development has nothing to do with acquisition of property; acquisition generally precedes development. The above is the consistent view of the apex court – which is adopted by this bench ,in answering point no. 3 . ( See :

90 Aflatoon v. Lt. Governor of Delhi (1975) 4 SCC 285; Patna Improvement Trust vs. Lakshmi Devi AIR 1963 SC 1077; SS Darshan v. State of Karnataka ,supra ; Bhagath Singh v. State of UP , supra; It is also to be kept in view that the challenge to the acquisition in this petition is in respect of an extent of 24 guntas of land when the larger extent comprises of 13 acres and 03 guntas , which has attained finality. Lest it be said, that the decisions of this court which have taken a different view were overlooked and hence there is judicial indiscipline or impropriety, the same are referred to. In H.G. Sheela’s case, the learned single judge has not noticed Bhagat Singh’s case supra. Though SS Darshan’s case is referred to, it is brushed aside with the following words “ In this decision the apex court has not examined in detail the scheme and object of the KT and CP Act, apart from this it has not considered its earlier decision in the case of Bangalore Medical Trust and other decisions of the apex court.

91 In the appeal against the said decision in Sheela’s case, in Special Land Acquisition Officer , KIADB v. State of Karnataka , supra, the division bench has held : “17. However we are in respectful agreement in so far as the law declared therein with regard to the power of the Government to declare any area as an industrial area by issue of notification under Section 3(1) of the Act, but we are of the view that it should at the first instance be in such a manner so as to avoid conflict with any other planning enactment. But after application of mind, if the Government finds that in a particular situation the conflict cannot be avoided, then no doubt the provisions of KIADB Act would prevail in terms of Section 47 of the Act. Therefore, though such notification under Section 3(1) of the KIADB Act would be issued in furtherance of the power of eminent domain, the same would still remain within the sweep of judicial review and scrutiny. That being so, the Government, in respect of every notification should be in a position to justify such action as and when the same is called in question by the affected party. 18. Keeping this in view and noticing that the facts involved in DARSHAN’s case and SOMASHEKHAR’s case are not exactly similar to the facts involved in the present case, though the learned Single Judge was not justified in observing that the Hon’ble Supreme Court has

92 rendered the decision in DARSHAN’s case without noticing the decision in B.S. MUDDAPPA’s case, the fact of the matter is that the decision in B.S. MUDDAPPA’s case was not required to be noticed while deciding DARSHAN’s case as they were on different set of facts involving different questions which in fact makes MUDDAPPA’s case more relevant to the facts on hand. Therefore, insofar as the present facts on hand, the learned Single Judge was justified in relying on the decision rendered by the Hon’ble Supreme Court both in the case of B.S. MUDDAPPA and in the case of M.C. MEHTA. 19. We say so because in the facts on hand, the question is with regard to the declaration of an area which was reserved as park and the residential area in the CDP within the urban agglomeration of Bangalore as an industrial area. In the zonal regulation, the small pocket wherein the beneficiary sought to establish the industry was reserved as a park and residential area. Keeping in view this aspect of the matter, the proceedings undertaken by the Government before notifying the area as an industrial area as defined under the KIADB Act also requires to be noticed. As noticed repeatedly during the course of this judgment, the State Government may by notification under section 3(1) of the KIADB Act declare an area in the State to be an industrial area for the purposes of that Act. “Industrial Area” is defined in Section 2(6) of the Act to mean any area declared to be an

93 industrial area by the State Government by notification, which is to be developed and where industries are to be accommodated and includes an industrial estate. Further “industrial estate” is defined to mean any site selected by the State Government where factories and other buildings are built for any industries or class of industries. Though the reading of the definitions would indicate that the industrial area and the industrial estate should be where the industries are accommodated, considering the decisions referred to by the learned counsel for the appellant that even for a single industry, an area could be declared as an industrial area and in that context if the present case is examined, even from that stand point what is to be considered is as to whether the Government has applied its mind in the manner it is required to do while declaring an area as an industrial area under Section 3(1) of the Act. Even if a Single industry is to be located, what is to be considered is as to whether such an industry should be developed in such an area and the process of consideration, in arriving at such an area and the process of consideration, in arriving at such a conclusion would be the all important factor.” Xxx 20. Therefore, keeping these aspects in view and noticing the power available to the Government and the decision which is required to be taken by the Government

94 to declare an area as industrial area for the development of industry, in our view, the decision making process of the Government should indicate that such an area alone is the suitable area for development of that particular industry even though such declaration is for locating a single industry. Such application of mind is even more important in a matter of this nature wherein the property is within the zonal regulation and governed by the provisions contained in the Town and Country Planning Act. The first attempt of the Government should be to balance the requirements of both enactment so as to provide an harmonious construction of both the enactments. When the decision making process indicates that this is not possible and the said area is required to be declared as an industrial area considering that the development of such industry is possible only in that area and in such a situation if there is conflict in the provisions contained in such enactment, no doubt, the provisions of the KIADB Act would prevail in view of provisions contained in Section 47 of the Act, but this should be clearly evident on record and not in an arbitrary manner merely because the power is available to the Government. It is in fact at this stage, the provisions contained in Section 14-A of the KT & CP Act also should be kept in view and given effect to, so as to consider whether the change of land use is inevitable and as to whether the said area requires to be developed as an industrial area in the absence of other alternative. On the contrary, if a declaration is made

95 under Section 3(1) of the Act and thereafter if it is considered that change of land use is to be made, the mere compliance of Section 14-A of the KT & CP Act would only become an empty formality and as such it may not be appropriate to hold that after acquiring, even the Government has to follow Section 14-A for change of land use. Therefore, in our view, the change of land use is an aspect which requires consideration but should precede the action of declaring the area as an industrial area. As noticed above, the very decision making process before issuing a notification under Section 3(1) of the KIADB Act should indicate application of mind to these aspects of the matter relating to the change of land use of the said area being declared as industrial area as against the earlier zonal regulations moreso when the area is within the planning area of the Development Authority. Only on such consideration being indicated, a notification issued by the Government could be sustained. In the facts and circumstances of the present case, there is no such consideration indicated and as such we are of the view that the learned Single Judge was justified in quashing the said notification.” It may again be seen that the division bench has also not referred to Bhagat Singh’s case while briefly referring to Darshan’s case.

96 In Janardhan Shetty’s case , the division bench has adopted the reasoning in Sheela’s case in deciding the relevant point for consideration and has not referred to Bhagat Singh’s case. In the decision of the Division Bench in WA 1938/2007, supra, the thrust of the case was that there was no public purpose served in the acquisition proceedings in question – which argument has been accepted on the facts of that case, in distinguishing Bhagath Singh’s case. The issue whether the land could be used for a purpose other than indicated in the Master Plan was not the core issue nor has any opinion been expressed therein in that regard. In the result there is no merit in this writ petition and the same is dismissed. Sd/- JUDGE nv