(Prayer: This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to quash the three impugned notification all dtd.30.06.2020 issued by the R-1 Under Section 1(3) Section 3(1) and Section 28(1) of the Karnataka Industrial Area Development Act 1966 vide Annexure-A, B,C.)
1. Jindal Alluminium Ltd., and M/s. Prestige South City holdings have jointly presented this writ petition with a prayer inter alia to:
* Quash three impugned notifications dated 30.06.2020 issued under Section 1(3), Section 3(1), and Section 28(1) of the Karnataka Industrial Area Development Act, 1966 ('KIAD Act' for short); and
* Notification dated 05.09.2020 issued under Section 28(4) of the Karnataka Industrial Area Development Act, 1966, all issued by Respondent No.1 (vide Annexure A, B, C and W respectively).
2. Summary of facts averred in the writ petition and submissions of Shri. Uday Holla, learned Senior Advocate are:
* First petitioner is the absolute owner of land measuring 33 acres 25 guntas in Sy. Nos. 29/2, 28/4, 31/1, 31/2, 36/1, 32/1 and 32/2 of Chikkabidarakallu Village, Dasanapura Hobli, Bangalore North Taluk and site bearing No.332 measuring East to West 40 feet, North to South 62 feet on the eastern side and 63 feet on the western side in Ravi Kirloskar Layout;
* During 2016, petitioners have entered into a Joint Development Agreement to develop the land and to construct residential flats. Second petitioner has spent about Rs.540 Crores for the development of the project;
* In the year 2016, The Bangalore Metro Rail Corporation Ltd (Respondent No.4; 'BMRCL' for short )., has acquired 3850 sq. mtrs. (38 guntas) belonging to the first petitioner;
* On 30.06.2020, State Government have issued Notifications under Sections 1(3), 3(1) and 28(1) of Karnataka Industrial Area Development Act ('KIAD Act' for short), proposing to acquire 1863.19 sq. mtrs. of land of Chikkabidarakallu Village and 44.27 sq. mtrs. in Srikantapura Village. Out of that, 1503.67 sq. mtrs. in Sy. No.28/4 of Chikkabidarakallu village, belongs to first petitioner and it is part of the apartment project. On 01.07.2020, Karnataka Industrial Areas Development Board ('KIADB' for short) has issued two notices as per Annexures - M & N under Section 28(2) of KIAD Act, calling upon the petitioner to file objections, if any. The said notices were served on 08.07.2020. First petitioner has replied on 09.07.2020 stating that the buildings were already constructed on the lands in question; first petitioner has already surrendered 3344 sq. mtrs. of prime land for Metro station without any demure; and it desired to know the actual purpose for which the land was again sought to be acquired and requested for a sketch of the land proposed for acquisition;
* First petitioner, also wrote to BMRCL on 27.07.2020. It wrote a second letter to KIADB on 03.08.2020. Neither KIADB nor BMRCL gave any reply;
* On 03.08.2020, a sham hearing was conducted and an order was passed on 17.08.2020. Thereafter, on 18.08.2020, BMRCL has replied to first petitioner's letter dated 03.08.2020 stating that Metro rail project is committed to provide first and last mile connectivity and the proposed land was sought to be acquired to provide connectivity to residents of the villages;
* There is no application of mind on the part of SLAO and the Government. The decision is arbitrary;
* There was no effective hearing;
* In the order passed under Section 28(3) of the KIAD Act, petitioner's objections have not been considered;
* There are two existing roads on the eastern side of the project connecting the Metro Station on the National Highway No.4 and the Anchepalya road. Hence there is no need for a third road;
* Respondent-BMRCL has attempted to mis-lead the Court and it has not come with clean hands;
* In its first Statement of Objections, it has stated that what is sought to be acquired is only vacant land. After submission of report by the Court Commissioner, BMRCL has changed its stand in its additional Statement of objections and admitted that there is basement structure beneath the land sought to be acquired;
* As per Section 14(2)(ii) of The Real Estate (Regulation and Development) Act ('RERA' for short), 2016, consent of 2/3rd of allottees other than the promoter is necessary to make any alteration or addition in the sanctioned plan. Larsen and Toubro, the consulting Engineering Firm, has certified that the project comprises of three inter-connected towers i.e., Tower-1, Tower-2 and Tower-3 with three basements, ground + 27/29 upper floors. The basements of car parking spaces and services are common. The uppermost slab of the basement, though designed to take occasional load of fire tenders, is not designed to cater to continuous movement of vehicular traffic as a regular road.
3. Shri. Naganand, and Shri. Ashok Haranahalli, learned Senior Advocates argued opposing the writ petition.
4. I have carefully considered rival contentions and perused the records.
5. It is settled that High Court while exercising jurisdiction under Article 226 of the Constitution of India shall not ordinarily interfere with the acquisition process unless petitioner makes out an exceptional case. In the conspectus of facts of this case, following points arise for consideration:
(a) Whether petitioners have been put on proper notice and given a fair hearing?
(b) Whether acquiring authority has considered petitioner's objections and passed a reasoned order?
6. Undisputed facts of the case are, as per notices, Annexures - M & N State Government have proposed to acquire 1503.67 sq. mtrs. in Sy. No.28/4 and property No. R3C-J7 measuring 71.33 sq. mtrs. land for BMRCL. Enquiry by the Special Land Acquisition Officer ('SLAO' for short), KIADB, Metro Rail project was scheduled on 03.08.2020.
7. Shri. Holla, has argued that on 03.08.2020, first petitioner's representative appeared and filed its objections and requested for furnishing the sketch showing the exact area of land sought to be acquired. Without considering petitioner’s request and without conducting any enquiry, the SLAO reserved the matter for orders and concluded the proceedings.
8. The SLAO has fairly recorded in his order dated 17.08.2020 that that petitioners did request for the sketch, but he has rejected the said request, on the ground that the project was required to be completed expeditiously.
9. Petitioner's case is, notice has reached them on 08.07.2020 and they have replied on the very next date as per Annexure-P with a request to provide the sketch showing the exact location and area of land sought to be acquired. First petitioner has also separately written to the General Manager and the Managing Director of BMRCL on 27.07.2020 reiterating the facts stated in its letter to the SLAO. Petitioner has reminded the SLAO about the sketch on the date of hearing also.
10. The SLAO, having recorded that petitioners have indeed sought for the sketch to file additional objections, has rejected their request and proceeded to pass orders on 17.08.2020. Thus, the SLAO has neither found it necessary to reply nor to address the grievances of the land owner, which would lose its land due to acquisition and suffer other serious consequences as in this case.
11. Surprisingly the letter addressed to the SLAO has not been replied either by him nor the KIADB. But BMRCL has chosen to reply to the letter addressed by petitioner to the SLAO's as follows:
"As per Memorandum of Understanding (Between Government of India, Government of Karnataka and Bangalore Metro Rail Corporation Limited) for phase-2 of the Bangalore Metro project - "Metro rail project will provide for first and last mile connectivity accessibility and appropriate security arrangements". This has been stipulated so that the metro stations are effectively utilized by the public for whom these are constructed. This will help in greater use of metro line which is environment friendly and will also improve the ridership of metro thus improving the viability of metro network.
Taking this into consideration, it has been planned to provide suitable road connectivity to the residents of Srikantapura. Thotadaguddadahalli and Anchepalya villages having population of nearly 25000- 30000 to Chikkabidarakallu metro station. These roads will substantially reduce the distance of these villages to Chikkabidarakallu metro station. Accordingly an extent of 1503.62 sq.mts in Sy.No.28(4) of Chikkabidarakallu village of B'lore North Taluk & an extent of 71.33 Sq.mtrs of land in site no.332 of Ravi Kirloskar Layout is being acquired. In this connection a notification under Sec 28(1) cited under ref (2) has been published in the Gazette.
Your help is solicited in acquiring the requisite land for greater cause of providing safe and easy access to the public to utilize the metro rail which is environment friendly."
12. State Government, which have issued the final Notification under Section 28(4) have not filed any Statement of objections nor contested the writ petition by oral submissions.
13. KIADB has filed its Statement of objections contending inter alia that pursuant to preliminary Notification by the State Government, SLAO has issued notices to the khathedars inviting objections and passed orders under Section 28(3) recommending for acquisition. State Government being satisfied with the report of the SLAO, have issued final Notification and the properties vest with the State Government. It has averred that acquisition is for public purpose and public purpose is paramount; and Infrastructure projects should not be impeded.
14. BMRCL has averred in para 6 of its first Statement of objections that vide letter dated 18.08.2020, it has informed the first petitioner that it was envisaged to provide suitable road connectivity to residents of Srikantapura, Totadaguddadahalli and Anchepalya villages having population of nearly 25000 to 30000, to the Metro station. In para 7, it is stated that on 27.08.2020, a video conference meeting was held between first petitioner and BMRCL clarifying the exact location of the road required for providing last mile connectivity. It is relevant to note that BMRCL has stated that what is sought to be acquired is 'only vacant land'. It has rejected petitioners' contention that they have sold the residential apartments to general public as untenable, contending that if the apartments were sold, the purchasers would be entitled to receive compensation.
15. This Court, vide order dated 14.10.2020, has called for a Report from the Survey and Settlement Department. The Report has been submitted on 19.11.2020 stating that there is no construction in the land sought to be acquired, but as regards construction in the basement, it is stated that further Report could be obtained from the concerned authority.
16. BMRCL has filed its additional statement on 21.11.2020 stating that petitioners have planned to construct service road for fire services at the location by utilizing the open space available above the basement area. This service road shall be capable of carrying the fire tenders weighing nearly 45 tonnes. Therefore, basement is designed for such load. Respondents would assure that no structure would be constructed below the ground level affecting the basement area and all the rights below the ground shall remain with Jindal Prestige Layout. It is further stated that the proposed road is located within the set-back area of the building to take care of unforeseen eventualities by fire fighting personnel. The proposed road is for general public and will have uninterrupted access and can be utilized in such eventualities. On 09.12.2020, BMRCL has filed another Additional Statement of objections and para 4 therein reads as follows:
"4. It is assumed that, the basement slab has been designed for carrying the Fire tender vehicle, weighing nearly 45 Tons as Fire Service Road has been proposed utilizing the part of surface area of above basement portion. The contention of the petitioners that the basement has not been designed for the impact of flow of the Traffic (of the alleged population of 18,000) above the basement is a matter of dispute and same is untenable considering the weight of the fire tender vehicle. Further to it, to reduce the load of vehicular movement on basement roof of petitioner, utilization of this road will be restricted to Pedestrians, 2-Wheeler and 4-Wheeler by providing height gauge of suitable height. This will restrict the use of heavy vehicles on this Road. Even for construction of alternate Road, basement portion for a width of 1.0 to 3.0 meter will be affected. The load of light vehicle is very less as compared to load of fire tender vehicle which is 45 tons."
17. Thus, there is clear shift in the stand of BMRCL. In its first Statement of Objections, the stand of BMRCL is that the exact location of the road was conveyed in Video Conferencing on 27.08.2020, which is 10 days after SLAO's order under Section 28(4); and what is sought to be acquired is 'only vacant land'. In the additional statement of objections, after receipt of Commissioner's Report, BMRCL has conceded that there exists basement and assured not to put up any construction below the ground affecting the basement. In the third Additional Statement of objections, BMRCL has denied petitioner's contention that basement is not designed for impact of flow of traffic. All three statements are verified by affidavits sworn by the Chief Engineer of BMRCL.
18. It is thus amply clear that neither the SLAO nor the BMRCL officials had any clue about the land sought to be acquired before filing this writ petition and the Report from Survey Department Officials.
19. In Malligamma and Others Vs. State of Karnataka, Department of Industries Rep. by its Secretary and Others (ILR 2013 KAR 4449 (para 15)), relied upon by Shri. Holla, this Court has held that rejection of petitioner's objections on the ground that acquisition is in public interest and petitioner would be given adequate compensation does not amount to consideration of objections. Mechanical and stereo type reasons cannot be regarded as adequate. Recording of reasons will show that SLAO has applied his mind to the case. It is further held that affording an opportunity of being heard is for a definite purpose and cannot be reduced to an empty formality. Though it is not necessary for SLAO to write a judgment as a Court of law does, he must at least state what arguments were canvassed and reasons for rejecting them.
20. Right to property under Article 300A is not only a constitutional right or a statutory right, but also a human right, though it is not a basic feature of the Constitution or a Fundamental right. The human rights are gaining multi- faceted dimension and right to property is considered very much a part of such new dimension (See. Tukaram Kana Joshi and Others Through Power-of-Attorney Holder Vs. Maharashtra Industrial Development Corporation and Others ((2013) 1 SCC 353 (para 9))). It therefore follows that when a citizen is deprived of his property right, he is entitled for a proper notice and effective hearing.
21. Relying on Madhyapradesh Housing Board Vs. Mohd. Shafi and others ((1992)2 SCC 168 (para 17)), Shri. Holla has submitted that there is no application of mind by the SLAO. He has submitted that in the said authority, the Apex Court has recorded that the authorities were not sure about the public purpose for which land was sought to be acquired, whereas in this case, neither Government, nor KIADB nor BMRCL knew whether there was construction beneath the land proposed for acquisition.
22. Relying on Jilubhai Nanbhai Khachar and others Vs. State of Gujarath and another (1995 Supp.(1) SCC 596 (para 10, 11 and 12)) Shri. Holla has argued that what is sought to be acquired is a piece of land and it includes all things attached to the earth permanently. It is held that 'land' in its widest signification would include not only the surface of the ground but also everything on or under it.
23. In Ahmedabad Municipal Corporation Vs. GTL Infrastructure Ltd and Others ((2017)3 SCC 545 (para 22)), the Apex Court has noted the meaning of 'land' given in different dictionaries. In Stroud's Judicial Dictionary (5th Edition), 'land' is defined as, 'Cujus est solum ejus est usque ad coelum et ad inferos', meaning, not only the surface of the ground, but also everything on or over or under it, except gold or silver mines.
24. In para 3 of its Statement of objections filed on behalf of the KIADB and the SLAO, it is stated that the State Government have initiated acquisition proceedings for establishment of Metro Rail Project and issued Notification under Section 3(1) and 1(3) of the Act declaring the lands in question as an 'Industrial area'. The SLAO has issued notice to kathedars inviting objections and thereafter, passed order under Section 28(3) of the Act recommending for acquisition. The Gazette Notification under Section 3(1) of KIAD Act dated 30.06.2020 (Annexure-A) contains only one sentence stating that the lands described therein, have been declared as Industrial Area. State Government have chosen not to file Statement of Objections, nor produced records nor made any oral submissions. Based on the material on record, it can be safely inferred that non-application of mind has begun right from the stage of issuing the Gazette Notification dated 30.06.2020.
25. Shri. Ashok Haranahalli, learned Senior Advocate has argued that acquisition is for infrastructure development and due to traffic congestion, Metro is an essential service. The present location will help the villagers. According to BMRCL the proposed road would facilitate access to about 25,000 to 30,000 population in the village. Petitioners have urged in para 10 of their reply to Additional Statement that more than 3000 families will be residing in the complex. Shri. Holla has argued that the apartment complex will house about 10 to 15 thousand inmates.
26. Shri. Haranahalli has relied upon Ramaniklal N. Bhutta and Another Vs. State of Maharashtra and Others ((1997)1 SCC 134 (para 10)) and argued that while exercising power under Article 226 of the Constitution, Courts will have to weigh public interest vis--vis the private interest. Placing reliance on Sooraram Pratap Reddy and Others Vs. District Collector, Ranga Reddy District and Others ((2008)9 SCC 552 (para 130)), he has submitted that development of infrastructure is legitimate public purpose for exercising power of eminent domain.
27. He has also relied upon Subhashgir Khushalgir Gosavi and Others Vs. Special Land Acquisition Officer and Others ((1996)8 SCC 282 (para 3)) and submitted that the project in the case on hand is in public interest. In the authority cited by him, the Apex Court has held on the facts of that case that the land sought to be acquired was for extension of bus stand and bus depot and it was in public interest. In this case, the acquisition is to form a new road to give connectivity to Metro passengers from Metro station to their village. Thus, the metro project is not stalled or delayed in any manner. Hence, the said authority is not applicable in this case.
28. In N.Somashekar and Others Vs. State of Karnataka and others ((1997) SCC OnLine Kar 653=(1997)7 Kar.L.J. 410 (para 27)), relied upon by Shri. Haranahalli, it is stated that fair and objective consideration of land owner's objections is subject to an important caveat that the objection must be one of substance. The requirement of consideration of all objections raised before Land Acquisition Officer is not ritualistic nor would the Court interfere just because each objection has not been considered, however irrelevant or funny or foolish, the objection may be. The said authority is not applicable in this case, because, there is nothing on record to show that petitioner’s objections have received any consideration by the SLAO.
29. Shri. Haranahalli has also relied on State of Punjab and Another Vs. Gurdial Singh and Others ((1980) 2 SCC 471 (para 8)). It is held therein that wisdom in administrative action is a property of the executive and judicial circumspection keeps the Court lock-jawed. But, it is relevant to note that the latter part of the very same sentence carves out an exception where power has been polluted by oblique ends or is otherwise void on well established grounds.
30. The gist of argument on behalf of both the SLAO as also BMRCL is:
* The land is required for public purpose;
* State has the eminent domain to acquire the land;
* There is urgency in completing the project.
31. This line of argument is wholly untenable because, this is a classic case of non-application of mind. The SLAO has shut the doors of petitioners on the ground that project had to be implemented expeditiously. He is a quasi-judicial authority vested with power to recommend to the State Government in matters of land acquisition. He has completely failed in discharging his duty.
32. Executive is expected to follow the 'Rule of law'. It cannot be gainsaid that in several cases, where faulty executive decisions are implemented lead to irreversible eventualities as in this case and the citizen shall be compelled to silently endure the ill effects of such decisions. If Civil servants act strictly as per Rule of Law the orders resulting from such exercise would need no interference in judicial review.
33. In this case, the State Government have declared the set-back area over the basement of the apartment building as an industrial land. The SLAO has shot down petitioner's request for the sketch on the ground of expeditious implementation of the project and hurriedly concluded the proceedings. Based on SLAO's recommendation, State Government have issued final Notification.
34. Shri. Naganand has also argued that in Japan, roads for movement of automobiles and Metro transport are constructed at different heights. Metro stations are built under ground. Even in India, Metro rail runs under ground. Therefore, construction of instant road above the basement should not be found fault with. He is right. Multi-layered transport system is adopted in several countries like tube- trains in England and Metro rail in India. But, they are well planned, proper technical study made and thereafter, implemented. In contradistinction, the acquisition has been made in this case without even knowing the location of the site and now sought to be justified on the ground of construction technology in vogue without any pleading on that aspect. Hence, this argument does not lead the case of BMRCL any further.
35. There is one another dimension which needs consideration. It was argued by Shri. Holla that petitioners were called upon to provide a 12 mtrs. wide road within their project between National Highway No.
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48 and the Anchepalya and petitioners have complied with it. The villagers have access to their village not only through the said road but also through one another road called Buddhajyothi Layout Road shown in the map submitted by the survey department. He has submitted that though two existing roads are already available, the present third road has been proposed for extraneous considerations. The Commissioner appointed by this Court has shown the existence of said two roads in the map. This argument was countered by Shri. Naganand stating that if the villagers have to use those roads which fall on the eastern side of apartment complex they will have to travel more distance to reach their village. Therefore, there is need for the present road which will reduce the distance. He has also submitted that the project has been cleared by the 'High Powered Committee'. In the conspectus of facts recorded hereinabove, the less said about the said Committee is better because, it is conspicuous that the Committee had no inputs at all but, yet it has cleared the project. It is relevant to record that there are several island villages in the State and the residents of those villages are disconnected from the main land for several months during mansoon for want of bridges, whereas, in this case, the respondents want to provide a third road to connect between metro station and the village. 36. Further, it is interesting to note that a PIL moved in W.P. No. 1094/2020 inter alia with a prayer to construct Metro Station in Srikantapura has been disposed of, holding that writ court cannot issue any direction as it is a policy matter. One of the writ petitioners therein and three others sought to implead themselves in this writ petition. Their application has been dismissed. Shri. Holla’s submission that the proposed road is for extraneous consideration cannot be brushed aside in view of the conduct of writ petitioner in PIL seeking impleadment in these proceedings. But no finding can be recorded in the absence of specific pleadings on this aspect. But suffice to note that the manner in which the entire acquisition proceeding has been conducted, shows that there is something more than what meets the eye. 37. In the light of above discussion, both points are answered in the negative. The resultant position is, the acquisition is bad in law. Hence, the following: ORDER (a) Writ petition is allowed. (b) The impugned Notifications dated 30.06.2020 and 05.09.2020 vide Annexures - A, B, C and W respectively are quashed. No costs.