Karnataka High Court
Shri. Balakrishna Shetty vs The State Of Karnataka on 13 January, 2025
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WP NO.57957 OF 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.57957 OF 2016 (LA-KIADB)
BETWEEN:
1. SHRI. BALAKRISHNA SHETTY
S/O LATE SUNDARI SHETTY
AGED ABOUT 71 YEARS.
2. SHRI. MADHAVA SHAMBRYA SHETTY
S/O LATE SUNDARI SHETTY
AGED ABOUT 55 YEARS.
3. SHRI. HARISHCHANDRA SHAMBRAYA SHETTY
S/O LATE SUNDARI SHETTY
AGED ABOUT 46 YEARS.
ALL ARE RESIDING AT:
KEMUNDEL BHANDRA HOUSE,
YELLUR VILLAGE,
VN UDUPI TALUK,
BADIGER
UDUPI DISTRICT - 574 119.
Digitally
...PETITIONERS
signed by V
N BADIGER (BY SRI. CLIFTON D. ROZARIO, ADVOCATE)
Date:
2025.01.16
13:03:00 AND:
+0530
1. THE STATE OF KARNATKA
REP. BY ITS SECRETARY
REVENUE DEPARTMENT,
M.S. BUILDING,
DR. B.R. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. SPECIAL LAND ACQUISTION OFFICE
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
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WP NO.57957 OF 2016
BAIKAMPADI,
MANGALURU,
DAKSHINA KANNADA DISTRICT - 575 009.
3. CHIEF EXECUTIVE OFFICER
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
14/3, RASHTROTHANA PARISHAT,
2ND FLOOR, NRUPATHUNGA ROAD,
BENGALURU - 560 002.
4. UDUPI POWER CORPORATION LIMITED
YELLUR VILLAGE, PILLAR POST,
PADUBIDIRI,
UDUPI DISTRICT - 574 113.
REGISTERED OFFICE AT:
2ND FLOOR, LE PARC RICHMONDE,
51, RICHMOND ROAD,
BENGALURU - 560 025.
5. STATE OF KARNATAKA
REP. BY SECRETARY,
DEPARTMENT OF INDUSTRIES AND
COMMERCE,
M.S. BUILDING,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. RAVINDRANATH B., AGA FOR R1 AND R5;
SRI. B.B. PATIL, ADVOCATE FOR R2 AND R3;
SRI. RAJESWARA P.N., ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
NOTIFICATION DATED 20TH JANUARY, 1995 ISSUED UNDER
SECTION 28(1) AND NOTIFICATION DATED 28TH MAY, 1998
ISSUED UNDER SECTION 28(4) OF THE KARNATAKA
INDUSTRIAL AREAS DEVELOPMENT ACT, 1966 BY THE
RESPONDENT NO.1 VIDE ANNEXURES ‘E’ AND ‘F’ IN RESPECT
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OF LAND BELONGING TO PETITIONERS; QUASH THE NOTICE
DATED 08TH SEPTEMBER, 2016 ISSUED BY THE RESPONDENT
NO.2 VIDE ANNEXURE-G; QUASH THE NOTICE DATED 15TH
FEBRUARY, 2016 ISSUED BY THE RESPONDENT NO.2 VIDE
ANNEXURE-H; AND ETC.
THIS WRIT PETITION HAVING BEEN RESERVED FOR
ORDERS, COMING FOR PRONOUNCEMENT OF ORDERS, THIS
DAY, E.S. INDIRESH J., MADE THE FOLLOWING:.
CORAM: THE HON’BLE MR. JUSTICE E.S. INDIRESH
CAV ORDER
In this writ petition, petitioners are assailing the
Notification dated 20th January, 1995 (Annexure-E) issued
under Section 28(1) of the Karnataka Industrial Areas
Development Act, 1966 (for short, hereinafter referred to as
‘KIAD Act’); Notification dated 28th May, 1998 (Annexure-F)
issued under Section 28(4) of the KIAD Act by the respondent
No.1; Notice dated 08th September, 2016 (Annexure-G) and
15th February, 2016 (Annexure-H) issued by the respondent
No.2; inter alia sought for direction to the respondents 1 to 3
restraining from carrying out the acquisition proceedings in
respect of the subject land.
2. The relevant facts for adjudication of this writ petition
are that the petitioner No.1 had purchased the land bearing
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Survey No.405/P1 of Yellur Village, Udupi Taluk to an extent of
2.11 acres as per the registered Sale Deed dated 25th May,
1994 (Annexure-B) and land bearing Survey No.225/7 of Yellur
Village, Udupi Taluk to an extent of 0.30 acre as per registered
Sale Deed dated 25th May, 1994 (Annexure-A). It is also
averred in the petitioner that the mother of the petitioners had
purchased land to an extent of 4.65 acres in Survey No.521/2
as per registered Sale Deeds dated 10th March, 1983
(Annexure-C) and as such, the petitioners claim to be the
absolute owners in possession of the aforementioned lands.
3. The petitioners have also stated that the
aforementioned lands are agricultural lands consisting of Trees
as per the photographs produced at Annexure-D series. It is
further stated in the writ petition that the respondents have
proposed to acquire 503.24 acres of land for the purpose of
installation of power plant, however, the possession to an
extent of 139.02 acres was not taken as well as compensation
has not been awarded. The land belonging to the petitioners is
a part of 139.02 acres. The petitioner No.1 challenged the
Notifications issued under Section 28(1) and 28(4) of the KIAD
Act by the respondent-Authorities in respect of land bearing
Survey No.444/05 and Survey No.445 to an extent of 1.11 acre
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and 1.52 acres respectively and the said challenge was
rejected. It is further pleaded that, the respondent-Authorities
have not taken possession of land in question pursuant to
declaration made under Section 28(4) of the KIAD Act and no
compensation has been paid. It is also stated in the petition
that, no award has been passed with regard to the subject land
in question, however, the respondent No.2 issued Notice dated
08th September, 2016 (Annexure-G) to the mother of the
petitioners, stating that the land to an extent of 7.06 acres has
been acquired for the benefit of respondent No.4 and
accordingly, called upon the mother of the petitioners to
receive the compensation by submitting the relevant
documents within seven days, failing which the compensation
will be deposited before the competent court under Section 30
and 31 of the Land Acquisition Act, 1894. It is also stated by
the petitioners that, Notices dated 08th September, 2016
(Annexure-G) and 15th February, 2016 (Annexure-H) were
issued in the name of mother and father of the petitioners, who
were died at that relevant point of time.
4. The petitioners have also averred in the petition that
the respondent-Authorities have illegally changed the mutation
entries in respect of the subject land and as such, the petitioner
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No.1 had sent E-Mail dated 20th October, 2016 (Annexure-L) to
the respondent No.3 in this regard. Further, the respondent
No.2 issued Notice dated 08th December, 2015 (Annexure-M) to
the petitioner No.1 calling upon him to participate in the
meeting scheduled on 16th December, 2015 under the
chairmanship of the Deputy Commissioner, Udupi District to fix
ex-gratia in respect of the land to an extent of 139.02 acres,
which has not been taken from the possession of land loosers.
Pursuant to same, the petitioner No.1 had addressed letter
dated 13th December, 2015 (Annexure-N) to the Deputy
Commissioner, Udupi District stating that, he is staying in
abroad and not able to participate in the meeting scheduled on
16th December, 2015 as stated in the Notice dated 08th
December, 2015 and accordingly, he submitted his objections
for further action towards expansion of Power plant. In
pursuant to same, the Deputy Commissioner, Udupi District had
called meeting of the statutory bodies as per letter dated 30th
December, 2015 (Annexure-P) including the owners of the land
as stated in the impugned notifications and the officers of the
respondent No.4. The minutes of the meeting is produced at
Annexure-P to the writ petition.
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5. It is the further case of the petitioners that the
Ministry of Environment and Forest had granted environmental
clearance dated 01st August, 2017 in favour of the respondent
No.4 for expansion of the Thermal Power Plant. In furtherance
of the same, Public Interest Litigation was filed before this
Court by Janajagruthi Samithi in several writ petitions and
those petitions were transferred to the National Green Tribunal
and same was registered as O.A. No.578-580 of 2018. Writ
Petition No.22933 of 2012 was also filed before this Court, and
same was registered as Appeal No.176 of 2018, wherein grant
of environmental clearance was challenged. It is the further
case of the petitioners that the applications and appeals were
allowed in-part by the National Green Tribunal as per order
dated 14th March, 2019 (Annexure-S) and therefore, it is the
contention of petitioners that the environmental clearance of
the Phase-2 of the project is yet to be granted by the
competent authorities and accordingly, sought for quashing the
acquisition proceedings in respect of subject land. The
petitioners have also produced the Final Assessment Report
prepared by the Environmental Management and Policy
Research Institute, Department of Forest, Ecology and
Environment, Government of Karnataka as per Annexure-T to
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the writ petition. The petitioners have also produced order
dated 31st May, 2022 (Annexure-U) passed by the National
Green Tribunal, wherein the respondent No.4 was directed to
pay environmental compensation of Rs.52,02,50,000/- for the
damage caused to the environment on account of violation of
conditions and directions and health impact in the said area.
Therefore, it is the contention of the petitioners that the
impugned notifications issued by the respondent-Authorities are
contrary to law, so also, no award has been passed.
Accordingly, the petitioners have sought for quashing of the
impugned notifications.
6. It is pertinent to mention here that this Court, by
order dated 10th December, 2024, had directed the respondent
No.2-Special Land Acquisition Officer to file affidavit as to
whether the award has been passed and compensation is
deposited before the competent Civil Court by the respondent-
Authorites. In this regard, the respondent No.2, had filed
affidavit dated 13th December, 2024 and stated that the
possession of the land in question has been taken by the
respondent-KIADB under Section 28(8) of the KIAD Act on 08th
August, 2016. It is also stated in the affidavit that meeting
was held on 16th December, 2015 under the Chairmanship of
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the Deputy Commissioner, Udupi District along with the officers
of the KIADB and respondent No.4 and the land loosers in the
said acquisition proceedings to fix the price of the subject land
under the acquisition proceedings and further, notice under
Section 29(2) of the KIAD Act was issued on 15th July, 2016
calling upon the petitioners to submit the documents to receive
compensation, however, the petitioners have not produced
relevant documents and as such, impugned notices were
issued. The respondent No.2 had also stated in the affidavit
that the portion of the compensation was deposited before the
Principal Civil Judge (Senior Division), Udupi for a sum of
Rs.44,00,600/- as per Cheque No.003918 dated 16th
September, 2016. Hence, it is contended that, the
compensation has been deposited in terms of meeting held on
16th December, 2015 and as such, no award was passed under
Section 29 of the KIAD Act.
7. In the backdrop of these aspects, I have heard Sri.
Clifton D. Rozario, learned counsel appearing for petitioners;
Sri. Ravindranth B., learned Additional Government Advocate
appearing for respondents 1 and 5; Sri. B.B. Patil, learned
counsel appearing for respondents 2 and 3; and Sri. Rajeswara
P.N., learned counsel appearing for the respondent No.4.
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8. Sri. Clifton D. Rozario, learned counsel appearing for
petitioners contended that, though the respondent-Authorities
have issued the impugned notifications for acquisition of land in
question, however, no award has been passed for more than 29
years and therefore, the entire acquisition proceedings would
lapse and accordingly, the acquisition proceedings are liable to
be set-aside. In this regard, learned counsel appearing for
petitioners refer to the affidavit dated 13th December, 2024
filed by the respondent No.2 and contended that, since no
award is passed under Section 29 of the KIAD Act, the prayer
made in the writ petition is to be accepted. It is also contended
by the learned counsel appearing for petitioners that the
respondent-Authorities have to complete the acquisition
proceedings within a reasonable period and therefore, in view
of not passing award, the acquisition proceedings vitiates the
same. In this regard, learned counsel appearing for petitioners
refers to the judgment of this Court, in the case of H.N.
SHIVANNA AND OTHERS vs. STATE OF KANRNATAKA,
DEPARTMENT OF INDUSTRIES AND COMMERCE AND
ANOTHER reported in (2013) 4 AKR 163 and in the case of
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD
AND ANOTHER vs. SRI. MUNINANJINAPPA AND
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ANOTHER made in Writ Appeal No.1268 of 2021 decided on
17th March, 2022.
9. Nextly, Sri. Clifton D. Rozario, learned counsel
appearing for petitioners argued that the acquisition
proceedings were initiated for the purpose of expansion of
respondent No.4-Udupi Power Corporation Limited and the said
Project was granted with environmental clearance by order
dated 01st August, 2017, however, the said environmental
clearance was challenged before the National Green Tribunal
and the Tribunal, noted that the acquisition proceedings would
affect the biodiversity in the area so also, contaminate the
water (surface and ground) and therefore, he contended that,
unless the said clearance is secured by the respondent-
Authorities in a manner known to law, the entire project of the
respondent-Authorities is required to be stalled. In this regard,
he places reliance on the judgment of the Hon’ble Supreme
Court in the case of KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD vs. C. KENCHAPPA AND OTHERS
reported in (2006) 6 SCC 371 and argued that, in the event of
any acquisition proceedings initiated by the statutory
authorities, the same shall not impair the ecology and the
environment. It is contended by the learned counsel appearing
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for petitioners Sri. Clifton D. Rozario that the acquisition
proceedings initiated by the respondent-Authorities for the
benefit of the respondent No.4 is unnecessary for the proposed
expansion as per the Expert Appraisal Committee on
Environment Impact Assessment of Thermal Plants and Coal
Mine Projects held on 07th July, 2010 and 09th July, 2010,
wherein it is observed that, such expansion will be carried out
adjacent to existing units and within the land allotted to Power
Plant.
10. Finally, it is also contended by learned counsel
appearing for petitioners that the meeting held at the instance
of statutory bodies and the land loosers on 16th December,
2015 in the presence of the Deputy Commissioner, Udupi
District, was participated by the petitioner No.3 on behalf of
other petitioners, however, no document was submitted by the
petitioners to receive the compensation and therefore, the
contentions raised in the statement of objections by the
respondent cannot be accepted. It is also the specific
contention of the learned counsel appearing for petitioners that
the respondent-Authorities have not taken possession of the
land in question and accordingly, sought for interference of this
Court.
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11. Per contra, Sri. B.B. Patil, learned counsel appearing
for the respondent-Karnataka Industrial Areas Development
Board sought to justify the impugned notifications issued by the
respondent-Authorities and argued that the respondent-KIADB
had taken possession of land in question and in this regard, he
refers to Notice dated 15th February, 2016 (Annexure-H) issued
under Section 28(6) of the KIAD Act. He contended that, as
the possession of the land in question has been taken and as
such, no interference be called for in this writ petition. He
furtheralso refers to the letter dated 23rd March, 2016
addressed by the respondent No.2 to the Development Officer
and Executive Engineer, KIADB, Mangaluru and argued that the
possession of the entire extent of land proposed for acquisition
including the land belonging to petitioners herein has been
taken.
12. Referring to the affidavit dated 13th December, 2024
filed by the respondent No.2, learned counsel appearing for
respondent-KIADB argued that the land in question is vested
with the Government free from all encumbrances and the Price
Advisory Committee Meeting was held on 04th November, 2006,
wherein the petitioner No.3 had participated on behalf of
petitioners. He further submitted that, in the said meeting,
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price of the lands to be acquired was revised from
Rs.2,65,000/- to Rs.4,56,000/- per acre and therefore, after
negotiation with the land loosers, the price was fixed at
Rs.44,00,000/- per acre. It was informed by the respondent-
KIADB that the price determined by the Committee would be
paid by the respondent-KIADB and the remaining difference
amount would be paid by the respondent No.4 beneficiary
company. He also submitted that, Notice dated 08th
September, 2016 (Annexure-G) was issued to the petitioners to
receive the compensation by producing the relevant documents
and as the petitioners did not come forward to receive the
compensation, the respondent-KIADB was constrained to
deposit the portion of compensation amount to an extent of
Rs.44,00,600/- as per Cheque No.003918 dated 16th
September, 2016 before the Principal Civil Judge (Sr.Dn.),
Udupi and in that view of the matter, as the petitioners were
present in the meeting held on 16th December, 2015 at the
time of fixation of price to the lands to be acquired and same
was accepted by the petitioners and therefore, no award was
passed since, the land loosers expressed their willingness under
Section 29(2) of the KIAD Act. It is also submitted by learned
counsel appearing for the respondent-KIADB that, as the larger
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extent of land is acquired for public purpose and therefore, this
Court, should not interfere at the instance of the land owners
who owns small bit of land like petitioners herein. In this
regard, he places reliance on the judgment of the Hon’ble
Supreme Court in the case of OM PRAKASH AND ANOTHER
vs. STATE OF UTTAR PRADESH AND OTHERS reported in
(1998) 6 SCC 1 and in the case of M.S.P.L. LTD. Vs. STATE
OF KARNATAKA AND OTHERS reported in 2022 SCC OnLine
SC 1380. Accordingly, learned counsel appearing for the
respondent-KIADB sought for dismissal of the petition.
13. Sri. P.N. Rajeswara, learned counsel appearing for
the respondent No.4-beneficiary company referring to Notice
dated 08th September, 2016 (Annexure-G) contended that the
possession of the land is taken by the respondent-KIADB under
Section 28(7) of the KIAD Act. He also refers to the letter
dated 13th December, 2015 (Annexure-N) addressed by the
petitioner No.1 and argued that the petitioners intend to put-up
industry including a Solar Generation Plant and therefore, the
environmental clearance is not required even according to the
petitioners themselves. It is also argued by learned counsel
appearing for the respondent No.4 that the petitioner No.3 had
participated the meeting held by the Price Advisory Committee
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along with various land loosers and in the said meeting, it was
decided to award the compensation by enhancing the same up
to 40,00,000/- per acre and as there is unanimous agreement
by the land loosers with the statutory bodies, the respondent-
Authorities have not passed award under Section 29 of the
KIAD Act. It is also the contention of the learned counsel
appearing for the respondent No.4 that the Ministry of
Environment and Forest vide Notification dated 14th September,
2006 held that the environmental clearance is required only for
the purpose of construction and not for acquisition proceedings
and therefore, the judgment of Hon’ble Supreme Court in the
case of C. KENCHAPPA (supra) is not applicable to the case on
hand.
14. Nextly, it is contended by Sri. P.N. Rajeswara,
learned counsel that, in view of the judgment of Hon’ble
Supreme Court in the case of SPECIAL LAND ACQUISTION
OFFICER, KIADB, MYSORE AND ANOTHER vs. ANASUYA
BAI (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS
reported in (2017) 3 SCC 313, the provisions under the Land
Acquisition Act are not applicable to the acquisition proceedings
under the KIAD Act and therefore, sought for dismissal of the
writ petition.
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15. In the light of the submission made by learned
counsel appearing for the parties, it is not in dispute that the
respondent-Authorities have issued Preliminary Notification
dated 20th January, 1995 (Annexure-E) and Final Notification
dated 28th May, 1998 under Section 28(1) and 28(4) of
Karnataka Industrial Areas Development Act, respectively, to
acquire the land for the purpose of expansion of Thermal Power
Plant. These Notifications have been issued to acquire the land
to an extent of 503.25 acres in Yellur Village, Udupi District.
Perusal of the writ papers would indicate that the possession of
land in question has been taken as per Section 28(8) of KIAD
Act and the State Government had transferred the land to the
respondent-KIADB. It is also not in dispute that the Price
Advisory Committee Meeting was held on 16th December 2015
under the Chairmanship of Deputy Commissioner, Udupi
District in which the statutory bodies, beneficiary of the land
and land loosers have participated for the purpose of price
fixation and accordingly, most of the land loosers agreed for
fixing the compensation of Rs.40,00,000/- per acre. It is also
stated in the minutes of the meeting dated 16th December,
2015 that the land loosers are also entitled for other benefits
from the respondent-Authorities. It is also not in dispute that
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the petitioner No.3 participated in the said meeting and his had
not objected for the decision taken by the Committee to fix the
compensation, which is reflected in Annexure R12 of statement
of objections filed by the respondent No.4.
16. In view of the law declared by Hon’ble Supreme
Court in the case of ANASUYA BAI (supra), Section 24 of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (for
short, hereinafter referred to as ‘2013-Act’) is not applicable to
the KIAD Act. It is also to be noted that, notice under Section
28(6) of KIAD Act was issued on 15th February, 2016
(Annexure-H) with regard to taking possession of land in
question and therefore, the perusal of the letter dated 23rd
March, 2016 issued by the respondent No.2 to the
Development Officer and Executive Engineer, KIADB would
indicate that several lands in Yellur Village, Udupi District along
with the petitioners lands have been notified for taking
possession. In that view of the matter, the acquired land under
the impugned notifications is vested with the respondent-
Authorities. It is also not in dispute that the revenue records
in respect of the land in question have been transferred in
favour of the respondent-KIADB. In view of the fact that land
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loosers have unanimously agreed for fixation of price of
Rs.40,00,000/- per acre as per the proceedings before the Price
Advisory Committee and as such, there was no necessity for
the respondent-Authorities to pass award under the
circumstances of the case. It is also to be noted that, in the
letter dated 13th December, 2015 (Annexure-N), the petitioners
have stated that the land in question is not suitable for
expansion of Thermal Power Plant by the respondent No.4,
however, the petitioners have stated that they are interested to
put-up an industry including Solar Generation Plant. Therefore,
the submission of learned counsel appearing for the petitioners
that the land in question is not suitable for project undertaken
by the respondent No.4, cannot be accepted as the same is in
the domain of acquiring authority and in this regard it is trite
law as enunciated by Hon’ble Supreme Court in the case
RAMNIK LAL N. BHUTTA AND ANOTHER vs. STATE OF
MAHARASHTRA AND OTHERS reported in AIR 1997 SC 1236,
wherein it is held as follows:
“Before parting with this case, we think it
necessary to make a few observations relevant to land
acquisition proceedings. Our country is now launched
upon an ambitious programme of all-round economic
advancement to make our economy competitive in the
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world market. We are anxious to attract foreign direct
investment to the maximum extent. We propose to
compete with china economically. We wish to attain the
pace of progress achieved by some of the Asian
countries, referred to as “Asian tigers”, e.g., South
Korea, Taiwan and Singapore. It is, however, recognised
on all hands that the infrastructure necessary for
sustaining such a pace of progress is woefully lacking in
our country. The means of transportation, power and
communications are in dire need of substantial
improvement, expansion and modernisation. These
things very often call for acquisition of land and that too
without any delay. It is, however, natural that in most of
these cases, the persons affected challenge the
acquisition proceedings in courts. These challenge the
acquisition proceedings in courts. These challenges are
generally in shape of writ petitions filed on High Courts.
Invariably, stay of acquisition is asked for and in some
cases, orders by way of stay or injunction are also
made. Whatever may have been the practices in the
past, a time has come where the courts should keep the
larger public interest in mind while exercising their
power or grant in stay/injunction. The power under
Article 226 is discretionary. It will be exercised only in
furtherance of interests of justice and not merely on the
making out of a legal point. And in the matter of land
acquisition for public purposes, the interests of justice
and the public purposes, the interests of justice and the
public interest coalesce. They are very often one and the
same. Even in civil suit, granting of injunction or other
similar orders, more particularly of an interlocutory
nature, is equally discretionary. The courts have to
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weigh the public interest vis-a-vis the private interest
while exercising the power under Article 226 – indeed
any of their discretionary powers. It may even be open
to the High Court to direct, in case it finds finally that
the acquisition was vitiated on account of non-
compliance with some legal requirement that the
persons interested shall also be entitled to a particular
amount of damages to be awarded as a lumpsum or
calculated at a certain percentage of compensation
payable. There are many ways of affording appropriate
relief and redressing a wrong; quashing the acquisition
proceedings is not the only mode of redress. To wit, it is
ultimately a matter of balancing the competing interests.
Beyond this, it is neither possible nor advisable to say.
We hope and trust that these considerations will be duly
borne in mind by the courts while dealing with
challenges to acquisition proceedings.”
17. In the backdrop of the aforementioned dictum of the
Hon’ble Supreme Court in the case of RAMNIK LAL N.
BHUTTA (supra), taking into consideration the fact that the
proposed acquisition was made to an extent of 503.25 acres in
Yellur Village, Udupi District and on perusal the letter dated 23rd
March, 2016 made by respondent No.2 insofar as taking
possession of land is concerned, the contention of the
petitioners cannot be accepted on the ground that the challenge
made in this writ petition is only with regard to a small bit of
land to an extent of 7.06 acres out of 503.25 acres of Yellur
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Village, Udupi District. It is also to be noted that the
respondent No.4, being a beneficiary of land, intends to expand
the Thermal Power Plant, which is for the larger interest of the
Public and on this sole ground itself, the writ petition deserves
to be dismissed. At this stage, it is relevant to cite the
judgment of Hon’ble Supreme Court in the case of OM
PRAKASH (supra), wherein, at paragraph 30, it is held as
follows:
“30. Now remains the vital question as to
whether in the light of our finding on point No. 1 the
notification under Section 4(1) so far as it dispenses
with Section 5-A inquiry by invoking powers under
Section 17 (4) of the Act and the consequential
notification under Section 6 are required to be set aside
or not. We must keep in view that we are called upon to
exercise our jurisdiction under Article 136 of the
constitution of India. Such jurisdiction will necessarily
have to be exercised in the light of facts and
circumstances of these cases. Section 4 notification in
the present cases is dated 5th January 1991. It is
followed by Section 6 notification dated 7th January
1992. In between the appellants went to the High Court
and got status quo order since 31st March 1992.. Result
is that till today even after the expiry of 6 years and
more, the land acquisition proceedings qua the
appellants’ lands have remained stagnant. It is also to
be kept in view that the impugned notification under
Section 6 of the Act was issued for the purpose of
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planned development of District Ghaziabad through
NOIDA and by the said notification, 496 acres of land
spread over hundreds of plot numbers have been
acquired. Out of 494.26 acres of land under acquisition,
only the present appellants owning about 50 acres,
making a grievance about acquisition of their lands have
gone to the court. Thus, almost 9/10th of the acquired
lands have stood validly acquired under the land
acquisition proceedings and only dispute centers round
1/10th of these acquired lands owned by the present
appellants. It is a comprehensive project for the further
planned development in the district. We are informed by
learned senior counsel Shri Mohta for NOIDA, that a lot
of construction work has been done on the undisputed
land under acquisition and pipelines and other
infrastructure have been put up. That the disputed lands
belonging to the appellants may have stray complex of
lands sought to be acquired. That if notification under
Section 4(1) read with Section 17 (4) is set aside qua
these pockets of lands then the entire development
activity in the complex will come to a grinding halt and
that would not be in the interest of anyone. It was also
contended by learned senior counsel for the respondents
that it was not the appellants’ contention that the
proposed acquisition was not for public purpose nor any
mala fides were alleged to the behind such acquisition.
learned senior counsel, Shri Shanti Bhushan, fairly
stated that though the appellants might have mounted a
challenge on the ground of mala fides, they have not
done so before the High Court nor before this Court.
Under these circumstances, we find considerable force in
the contention of learned senior counsel for the
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respondent that it is neither advisable nor feasible to
interfere with the acquisition of such large tracts of lands
when the occupants of 9/10th of the acquired lands have
not thought it fit to challenge these acquisition
proceedings and the occupants of only 1/10th of lands
are agitating there grievance since more than six years
firstly before the High court and then before this Court.
The appellants’ main grievance centers round the
question whether their lands having alleged abadi could
be acquired in the light of the State policy for not
acquiring such lands. For such a contention, of course,
grievance could have been made under Section 5-A
inquiry if it was held. But that could have been urged
years back before Section 6 notification saw the light of
the day in 1992. Now after a passage of more than six
years, it would not be feasible to put the clock back and
permit the appellants to agitate this contention which
appears to be the sole contention for opposing the
acquisition proceedings in the facts of the present cases
by permitting them to urge this grievance in Section 5-A
inquiry which according to them should be held at this
stage. We will show presently that this solitary grievance
of the appellants could be vindicated before the State
authorities themselves by relegating the appellants to
proper remedy by way of representation under Section
48 of the Act and when that remedy is available to the
appellants and when that is the sold grievance of the
appellants, at this stage no useful purpose would be
served by striking down the notification under Section
4(1) qua the appellants so far as invocation of Section
17 (4) is concerned and the consequent notification
under Section 6. That we cannot permit upsetting the
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entire apple cart of acquisition of 500 acres only at the
behest of 1/10th of land owners whose lands are sought
to be acquired. We may also keep in view the further
alien fact that all the appellants have filed reference for
additional compensation under Section 18 of the Act.
Shri Shanti Bhushan, learned senior counsel, was right
when he contended that the appellants could not have
taken the risk of getting their reference applications time
barred during the pendency of these proceedings.
Therefore, without prejudice to their contentions in the
present proceedings they have filed such references. Be
that as it may., that shows that an award is also made
and reference are pending. Under these circumstances
for enabling the appellants to have their say regarding
release of their lands on the ground that they are having
abadi and that the State Policy helps them in this
connection the appellants can be permitted to have their
grievances voiced before the State authorities under
Section 48 rather than under Section 5-A of the Act at
such a late stage. Consequently, despite our finding in
favour of the appellants on Point No. 1, we do not think
that this is a fit case to set aside the acquisition
proceedings on the plea of the appellants about non-
compliance with Section 5-A at this late stage. it is also
obvious that if on this point the notifications are quashed
for non-compliance of Section 5-A, that would open a
pandora’s box and those occupants who are uptill now
sitting on the fence may also get a hint to file further
proceedings on the ground of discriminatory treatment
by the State authorities. All these complications are
required to be avoided and hence while considering the
question of exercise of our discretionary jurisdiction
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under Article 136 of the Constitution of India, we do not
think that this is a fit case for interference in the present
proceedings with the impugned notifications. Point No.
3, therefore, is answered in the affirmative against the
appellants and in favour of the respondents.”
18. The above said aspect of the matter was considered
by the Hon’ble Supreme Court in the case of M.S.P.L. LTD.
(supra), wherein, paragraph 48 reads as under:
“48. It is admitted position that the challenge to
the acquisition of more than a thousand acres was made
by a small fraction of land owners having land less than
10% of the total acquisition. Compensation for rest of
the 90% land acquired had been accepted by their
respective land owners. The Division Bench has quashed
the entire acquisition of more than a thousand acres at
the instance of such a small fraction. This aspect has
been dealt with by this Court in the case of Amarjit
Singh Vs. State of Punjab reported in (2010) 10 SCC 43
and Om Prakash Vs. State of U.P. reported in (1998) 6
SCC 1. The learned Single Judge had placed reliance on
the judgment of Om Prakash (supra). It is also
worthwhile to mention that out of approx 110 acres of
land acquires for MSPL, only one land owner possessing
only 4.34 acres of land, had filed the writ appeal before
the Division Bench. Quashing the entire acquisition at
the instance of one land owner having 4.34 acres of land
out of total acquisition for MSPL of 110 acres, would be
against the public policy and public interest. The MSPL
alone provides employment to 292 persons with a
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substantial investment of Rs.200 crores. The
employment to approximately 300 persons by MSPL is
also alleged to be double of the number of employees as
projected in the proposal. Further, in the case of AISL
acquisition of 914 acres is challenged by a fraction of
less than 10% land owners. The estimated project of
AISL is approx Rs.2092 crores and would employment to
at least one thousand persons.”
19. Nextly, the principal contention raised by the learned
counsel appearing for the petitioners that the intended project
of Thermal Power Plant is suffered from environmental
clearance, and in this regard, I have given my anxious
consideration to the judgment of Hon’ble Supreme Court in the
case of C. KENCHAPPA (supra), wherein, it is held that the
acquisition of land by the respondent-Authorities should not
impair the ecology and environment. In view of the
aforementioned dictum of the Hon’ble Supreme Court, I have
carefully examined the Notification dated 14th September,
2006, wherein it is held that the environmental clearance is
required for the purpose of construction and not for the
purpose of acquisition of land. In that view of the matter, the
submission made by learned counsel appearing for the
petitioners cannot be accepted as the project initiated by the
respondent-Authorities at the behest of the respondent No.4
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has been approved by the State Government. Therefore, the
judgments referred to by the learned counsel appearing for
petitioners are not applicable to the case on hand. At this
juncture, it is also relevant to cite the judgment of the Division
Bench of this Court in the case of DEJU SHETTY AND OTHERS
vs. STATE OF KARNATAKA AND OTHERS made in Writ
Appeal No.110 of 2007 c/w Writ Appeal No.1120 of 2007
decided on 05th September, 2007, wherein, the land has been
acquired by the respondent-KIADB for the purpose of
commissioning Nagarjuna Power Project in the very same
locality and this Court, upheld the acquisition proceedings.
That apart, perusal of the affidavit dated 13th December, 2024
filed by the respondent No.2 would indicate that the possession
of the land has been taken on 08th August, 2016 and therefore,
at this stage, interfering with the acquisition proceedings is
beyond the jurisdiction of Article 226 of the Constitution of
India. Recently, Hon’ble Supreme Court in the case of
JAYALAKSHMAMMA AND OTHERS vs. THE STATE OF
KARNATAKA AND OTHERS made in Civil Appeal No.13785 of
2024 (arising out of SLP(C) No.12362/2022), at paragraph 13,
it is held as follows:
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“13. We cannot be oblivious to the fact that the
appellants’ land is a small part of a big chunk of 900
acres of land acquired for regulated development of an
urban area. The release of a parcel of land can affect
the development activities or disrupt basic amenities to
be provided in the newly developed urban area. Still
further, the small parcel of land owned by the appellants
is not likely to be of any use unless it is integrated as a
contiguous part of the development plan.”
20. Following the law declared by Hon’ble Supreme Court
in the case of JAYALAKSHMAMMA (supra) and in view of the
observation made by this Court in the case of V.T.
KRISHNAMOORTHY vs. STATE OF KARNATAKA reported in
ILR 1991 KAR 1183, the petitioner No.3 herein had participated
in the price fixation process by the Committee as stated above,
which concludes that the petitioners are interested for higher
compensation than the compensation fixed by the acquiring
authority. Therefore, I do not find any acceptable ground to
interfere with the acquisition proceedings in the case on hand.
Accordingly, the writ petition is dismissed as devoid of merits.
Sd/-
(E.S. INDIRESH)
JUDGE
ARK