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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17th DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION No.16598 OF 2014 (GM-KIADB) C/W WRIT PETITION No.51918 OF 2014
W.P.No.16598/2014:
BETWEEN :
M.Sadiq Ali Baig, S/o.Authaulla Baig, Aged about 63 years, Ali Manzil, JC Nagar, 2nd Cross, Shimoga – 577 201.
... Petitioner
(By Sri P.N.Hegde, Advocate) AND:
The Government of Karnataka, Department of Industries and Commerce, Vikasa Soudha, Bangalore – 560 001, Represented by its Secretary.
Karnataka Industrial Development Board, No.14/3, 2nd Floor, Rashtrothana Parishad Building, Nrupathunga Road, Bangalore – 560 001, Rep. by its CEO.
Managing Director, Pearlite Liners Limited, N.T.Road Shimoga – 577 201.
…Respondents
(By:Smt.Shwetha Krishnappa, GP for R1: Sri P.V.Chandrashekar, Advocate for R2: Sri Aditya Sondhi, Senior Counsel for Sri Ashwin S.Halady, Advocate for R3)
2 This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned endorsement at Annexure-A dated 2.1.2014 passed by the R2 and to direct the R2 to take steps for the resumption of the land measuring 7 acres 7 guntas in Sy.No.73/2 situated at Milagatta Village, Kasaba Hobli, Shimoga Tq. and etc.
W.P.No.51918/2014:
BETWEEN:
Zahara Begum, W/o.N.M.Hussain, Age: Major, Occ: Household R/o. Tunga Clinic, (O.T.Road), Dist: Shimoga – 577 201. ... Petitioner
(By Sri P.S.Malipatil, Advocate) AND:
The State of Karnataka, By its Principal Secretary, Department of Industries and Commerce, Vidhana Soudha, Bangalore – 01.
Karnataka Industrial Development Board By its CEO, No.14/3, 2nd Floor, Rashtrothana Parishad Building, Nrupathunga Road, Bangalore – 560 001.
Managing Director, Pearlite Liners Limited, N.T.Road Dist: Shimoga – 577 201.
…Respondents
(By Smt.Shwetha Krishnappa, GP for R1: Sri P.V.Chandrashekar, Advocate for R2: Sri Aditya Sondhi, Senior Counsel for Sri Ashwin S.Halady, Advocate for R3)
3 This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to direct the R1 and R2 to consider the representation dated 3.11.2014 vide Annexure-E filed by the petitioner for resumption of land in Sy.No.73/2 of Milagatta Village, Taluk & Dist. Shimoga and redeliver it to the petitioner/owner because the R3 has not utilized it for 14 years, etc.
These writ petitions, coming on for dictation, this day, the Court made the following:
O R D E R
The prayers of the petitioners are that the lands compulsorily acquired from them and allotted to the third respondent be re-delivered to them. They allege that the industrial plot allotted to the third respondent has remained idle as it has not at all implemented the industrial project.
Sri Parameshwar N. Hegde, the learned counsel for the petitioner submits that the land measuring 9 acres 22 guntas at Sy.No.73/2 of Milagatta Village, Kasaba Hobli, Shimoga Taluk belonging to the petitioner was acquired and allotted to the respondent No.3. The respondent No.3 has utilized the extent measuring 2 acres 15 guntas; 7 acres 7 guntas of the land have remained unutilized.
4 3. He submits that Clause 2(p)(iv) of the agreement requires the respondent No.3 to commence the production within 24 months from the date of the issuance of the possession certificate, that is, from 21.03.2001. In the instant case, the industrial production has not commenced at all.
The learned counsel submits that the neighboring States, namely, Tamilnadu, Maharashtra, Pondicherry and Gujarat have evolved the policy and practice of leasing the industrial plot for 99 years. As the experiment of those States was found to be successful, the Government of Karnataka has also issued the Government Order, dated 07.08.2014 approving the allotment of land by Karnataka Industrial Areas Development Board (‘K.I.A.D.B.’ for short) on lease for a period of 99 years. He submits that the said Government Order is published in the Karnataka Gazette, dated 11.09.2014.
He submits that the petitioner had assailed the acquisition proceedings by filing W.P.No.14423/2011. The learned Single Judge, by her order, dated 24.06.2011 negatived the challenge to the acquisition proceedings and rejected the writ petition. Aggrieved by the said order, the petitioner filed
5 W.A.No.15432/2011. The Division Bench by its judgment, dated 16.01.2012 dismissed the appeal but subject to the following observations: “ … If the 1st respondent really has not utilised the land allotted to it and if there is a breach of terms and conditions of allotment, it is for the appellant to approach the KIADB requesting the KIADB to resume the land from the 1st respondent on the ground that he has failed to adhere to the terms and conditions of the allotment and thus he can request the KIADB to allot for construction of any industry, if he is entitled to in accordance with law.”
Sri Hegde submits that this observation of the Division Bench was contested by the third respondent herein (the first respondent in W.A.No.15432/2011) by filing Special Leave to Appeal (Civil) No.18735/2012, which was dismissed by the Apex Court, by its order, dated 05.08.2013.
Pursuant to the afore-extracted observation of the Division Bench and on finding that the land allotted to the third respondent has remained unutilized, the petitioner submitted a representation to the first respondent on 30.01.2012 (Annexure- L). On the said representation, the first respondent directed K.I.A.D.B. to hold the spot-inspection and submit the action-
6 taken report within 15 days. The K.I.A.D.B. sent the note, dated 17.04.2012 (Annexure-M) which was accompanied by the sketch prepared by the surveyor. It shows that 7 acres 7 guntas is vacant land; there is no foundation for any permanent building and that a sand magnetic separator machine is angularly erected on the extent measuring 20 x 30 ft.
Sri Hegde submits that the subsequent sketch prepared on 08.02.2011 is in contrast to the sketch prepared on 02.04.2012.
Sri Hegde submits that the impugned order, dated 02.01.2014 (Annexure-A) also does not state that the third respondent has utilized the requisite extent of the land. It only states that there is no scope for resuming the land, as the sale deed is executed in favour of the third respondent. He submits that the second respondent cannot wash its hands off, as it is obliged to act in the letter and spirit of the Division Bench’s judgment in W.A.No.15432/2011. He submits that the subsequent utilization, if any, does not come to the rescue of the fourth respondent in any way.
7 10. Sri P.V.Chandrashekhar, the learned counsel appearing for the second respondent K.I.A.D.B. submits that in view of the execution of the registered sale deed, dated 19.03.2004, the respondent No.2 has issued the impugned communication that the land cannot be resumed from the respondent No.3. He submits that the third respondent has utilized the land to an extent of 58.08%. On recording the satisfaction that the respondent No.3 has complied with all the terms and conditions of the lease-cum-sale agreement, the sale deed is executed in its favour.
The learned counsel submits that the petitioner has no locus-standi to maintain these petitions, as he has already received the compensation on account of the compulsory acquisition of the land.
He submits that the third respondent’s land utilization is as per its project report and as stipulated in the lease-cum- sale agreement. He submits that the sale deed is executed based on the utilization report submitted by the jurisdictional Assistant Engineer.
8 13. He submits that once the land is vested in the State, it cannot be divested. For advancing this submission, he relies on the Apex Court’s judgment in the case of V.CHANDRASEKARAN AND ANOTHER v. ADMINISTRATIVE OFFICER AND OTHERS reported in (2012) 12 SCC 133.
Sri Adithya Sondhi, the learned Senior Counsel appearing for Sri Ashwin S. Halady for the respondent No.3 submits that these petitions are liable to be dismissed as limine, as the petitioner in W.P.No.16598/2014 is guilty of the suppression of material facts. He submits that the said petitioner had earlier filed W.P.No.23000/1998 (LA) for assailing the land acquisition notifications. The petitioner filed the memo and unconditionally withdrew the said writ petition. Having done so, the said petitioner is estopped from re-agitating the matter, so submits the learned Senior Counsel.
He submits that the petitioner in W.P.No.16598/2014 has also received the full compensation on account of compulsory acquisition of the land in question. These material facts are with-held from this Court.
9 16. In support of his submissions, he brings to my notice the Apex Court’s judgment in the case of PRESTIGE LIGHTS LTD. vs. STATE BANK OF INDIA reported in (2007) 8 SCC 449. Paras 33, 34 and 35, read out by him are as follows: “33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words: ‘ (I)t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he
10 should make a full and fair disclosure of all the material facts - facts, not law. He must not misstate the law if he can help it - the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside, any action which it has taken on the faith of the imperfect statement’. (emphasis supplied) 34. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.”
11 17. The learned Senior Counsel submits that the erstwhile owner of the land cannot demand that the acquired land be restored to him on the ground that it is unutilized or under- utilized. In support of his submissions, he relies on the following authorities:- 1) Northern Indian Glass Industries vs. Jaswant Singh and others, reported in (2003) 1 SCC 335.
2) Smt.Ranee Govindram Hassanand vs. Chief Secretary of Karnataka and others, reported in 2012 (1) AIR Kar R 298.
He submits that the confusion has arisen, because the respondent K.I.A.D.B. did not bring it to the notice of the Division Bench that the absolute sale deed is executed in favour of the third respondent and that the land cannot be resumed from it at this stage. He submits that the Division Bench has dismissed W.A.No.15432/2011, filed by the petitioner in W.P.No.16598/2014 confirming the learned Single Judge’s order, dated 24.06.2011 passed in W.P.No.14423/2011. He submits that the petitioner in W.P.No.16598/2014 cannot demand that the acquired land be restored to the erstwhile landowners, as if he has filed the public interest litigation.
He submits that even as per the Division Bench’s judgment, the land is to be resumed only if the respondent No.3 has not utilized the land. In the instant case, the utilization of the allotted industrial plot is as per the lease-cum-sale agreement. He submits that even the Division Bench has clarified that it is for the K.I.A.D.B. to allot the land in accordance with law, if the petitioner’s case falls within the allotment rules and on par with others.
The learned Senior Counsel submits that the relief of resuming the land from the respondent No.3 and its restoration or re-allotment to the petitioners cannot be acceded to, because the absolute sale deed is executed by the second respondent K.I.A.D.B. in favour of the respondent No.3. He submits that there is no clause in the sale deed for resuming the land and that the lease-cum-sale agreement has merged in the absolute sale deed.
He submits that the perusal of Annexure-R4 reveals that the third respondent’s land utilization is 58.08%. He submits that the sketch accompanying Annexure-R4 is not
13 disputed by the petitioner by filing any rejoinder. He submits that the current utilization of the land is 88.35%. He submits that the surveyor’s report at Annexure-M and the accompanying sketch are not reflective of the correct position. According to him, the surveyor has proceeded on the footing that the land utilization means the erection of buildings on the entire land; the nature of the third respondent’s industry is such that it requires a lot of space for the sand storage, drainage, besides the roads for transporting the raw materials. He submits that the spot inspection report accompanying the survey report at Annexure-M is not produced by the petitioner. He submits that the perusal of the said report shows that the land utilization is satisfactory.
He submits that the respondent No.3 has given whatever compensation was demanded by the petitioner before the Deputy Commissioner. He submits that the sale deed as such is not challenged in these writ petitions.
Smt.Shwetha Krishnappa, the learned High Court Government Pleader appearing for the respondent No.1 submits that based on the letters and notings of the Government, no right has accrued to the petitioner.
In the course of rejoinder, Sri Hegde, the learned counsel for the petitioner in W.P.No.16598/2014 submits that the filing of W.P.No.23000/1998 was indeed disclosed in the memorandum of the writ petition in W.P.No.14423/2011. Its non-disclosure in the present writ petitions would not make any difference. He submits that in any case the filing of W.P.No.23000/1998 is brought to the notice of the Court by the respondent in these proceedings. He submits that it may not be correct on the part of the respondents to contend that the Division Bench’s direction for resuming the land is obtained by non-disclosing the execution of the absolute sale deed in favour of the respondent No.3. He submits that the execution of the sale deed is part of the pleadings before the learned Single Judge in W.P.No.14423/2011. He submits that the second respondent K.I.A.D.B. should not plead its helplessness or wash its hands off on the ground that the sale deed is executed in favour of the third respondent.
Sri Hegde submits that the Government is not justified in taking the stand that the petitioner cannot make use of the letters, notings issued by the Government to the second
15 respondent K.I.A.D.B. He submits that under Section 17 of the Karnataka Industrial Areas Development Act, 1966, the State Government is empowered to give direction to the K.I.A.D.B. and that such directions are binding on the K.I.A.D.B.
The submissions of the learned counsel have received my thoughtful consideration. The first question that arises for my consideration is whether these petitions are liable to be thrown out on the ground of non-disclosure of the filing of W.P.No.23000/1998. I see considerable force in the submission of Sri Adithya Sondhi that the petitioner ought to have disclosed all the material particulars in the memorandum of the writ petition. Not only that, the petitioner is silent on the filing of the earlier writ petition and its withdrawal also on receiving the amount of compensation, as demanded by him before the Price Advisory Committee, headed by the Deputy Commissioner. But, on the said ground, I do not propose to dismiss these petitions. The need of the hour is to render substantial justice to both the parties in the letter and spirit of the Division Bench’s judgment, dated 16.1.2012 passed in W.A.No.15432/2011.
16 27. The submission of Sri P.N.Hegde, the learned counsel for the petitioner that the prayer No.3 in W.P.No.16598/2014 seeking mandamus to the second respondent to restore the resumed land to the petitioner is not being pressed, is placed on record.
The next question that falls for my consideration is whether the endorsement, dated 2.1.2014 (Annexure-A) is liable to be quashed. It is stated in the said endorsement that as the sale deed is executed in favour of the third respondent, there is no provision for resuming it from the petitioner. It further states that there is no provision in law for returning the land to the erstwhile owners. It is not known whether the execution of the absolute deed was pointedly brought to the notice of the Division Bench. Just because there may have been some pleadings or just because a copy of the sale deed may have been produced, it cannot be presumed that the Division Bench was made aware of the execution of the sale deed.
Be it as it may, the judicial discipline requires that I, the Single Judge has to follow the Division Bench’s judgment. The Division Bench, whose directions/observations are extracted
17 supra reveal that the petitioner was given the liberty to approach the K.I.A.D.B. with a request to resume the land from the third respondent for its failure to adhere to the terms and conditions of allotment. The said directions/observations of the Division Bench have also attained the finality, as the third respondent challenged the said judgment of the Division Bench before the Hon’ble Supreme Court, but without any rate of success. Therefore, it is the obligation of K.I.A.D.B. to comply with the Division Bench’s judgment. The second respondent K.I.A.D.B. is estopped from contending that it cannot resume the land, as the sale deed is executed. If the second respondent K.I.A.D.B. had to resume the land before the execution of the sale deed, it was only by following the procedure prescribed under Karnataka Industrial Areas Development Act, 1966, or under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974.
In the wake of the execution of the sale deed, the K.I.A.D.B. cannot resort to resuming the land summarily. If it has to resume the land, it is only by cancelling the sale deed for the doing of which act, it has approached the Civil Court by filing the comprehensive suit. Thus the K.I.A.D.B’s stand that it cannot
18 resume the land, as it has executed the absolute sale deed is untenable, to say the least. On this short ground, the impugned endorsement is liable to be quashed and accordingly it is quashed.
As far as the second reason stated in the impugned endorsement is concerned, the K.I.A.D.B. cannot be found to be at fault. Even if the sale deed in favour of the third respondent is cancelled and the possession of land is taken back by the K.I.A.D.B., it cannot be restored to the third respondent. There is no provision for re-conveyance of the land to the erstwhile owner. It is trite that if the acquired land is not utiilised for the purpose for which it is acquired, it can be used for any other industrial or permitted purpose. Whether the land in question is resumed or not, the petitioner is entitled to make an application for the allotment of industrial plot and the K.I.A.D.B. is obliged to consider the said application in accordance with its allotment Rules. I may hasten to add that if the petitioner ever makes an application and the other things remaining in the same, his application is required to be considered on priority basis appreciating that he is a land-loser. But the same does not
19 mean that if at all the land is resumed from the third respondent, the petitioner is to be given the very same land or any portion therein.
As far as the second prayer for mandamus to the second respondent to take steps for resuming the land is concerned, it is to be acceded to, but only in a qualified manner. There cannot be any blanket direction to K.I.A.D.B. to resume the land from the third respondent. The decision to resume or not to resume has to be taken after examining the land- utilization. If the land-utilization is as prescribed by the lease- cum-sale agreement, the question of resuming the land from the third respondent would not arise at all. If the land utilization is as per the prescribed parameters, the second respondent is directed and bound to resume the land from the third respondent.
Whether the land is utilized fully or partly involves factual determination. No finding can be delivered on such factual controversies in the proceedings under Article 226 of the Constitution of India and more so, in the wake of the conflicting surveys. The survey report at Annexure-M indicates that out of
20 9 acres 22 guntas of land allotted to the third respondent, 7 acres 7 guntas are left vacant; the land-utilization is only 2 acres 15 guntas. The mahazar drawn at the time of the survey shows that the representatives of the respondent Nos.2 and 3 were also present.
Contrary to the aforementioned survey and the accompanying sketch, the survey report (Annexure-F) drawn by the Assistant Executive Engineer, K.I.A.D.B. shows that the land- utilization is 58.08%. Further, the survey conducted by the Architectural Civil and Mechanical Designer shows that the land- utilization is 88.35%. Thus the figures regarding the land utilization percentages are at variance with one another. Besides, the Engineers and Surveyors may have only gone by the buildings erected on the lands. The buildings erected cannot be taken as the exclusive indication of the implementation of industrial project. Depending upon the nature of the industrial or manufacturing activity, what open space is to be left for drainage, sand storage, movement of heavy vehicles, etc. have to be determined.
21 35. The ends of justice would be met by my directing the second respondent to have one more joint survey conducted for ascertaining as to whether the land-utilization is as per the prescription in the lease-cum-sale agreement and as to whether the industrial project is implemented. The land-utilization has to be ascertained with reference to the project report filed by the third respondent and the prescription in the lease-cum-sale agreement executed in its favour. It is on holding the fresh joint survey directed hereinbefore that the respondent No.2 shall take a decision in the matter of filing the suit or not filing the suit for the cancellation of the sale deed.
These petitions are accordingly disposed of. No order as to costs.
Sd/- JUDGE
Cm/VGR