R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE14H DAY OF FEBRUARY, 2020 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE M.I.ARUN WRIT APPEAL No.582 OF2018(GM-KIADB) BETWEEN:
1. THE STATE OF KARNATAKA DEPARTMENT OF REVENUE BY ITS PRINCIPAL SECRETARY M.S.BUILDINGS, AMBEDKAR VEEDHI BENGALURU – 560 001 2. THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT BENGALURU – 560 001 ... APPELLANTS (BY SRI. DHYAN CHINNAPPA, ADDL. ADVOCATE GENERAL ALONG WITH SRI. T. L. KIRAN KUMAR, AGA ) AND:
1. M/S. ANAND INVESTMENT PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT70 NAGINDAS MASTER ROAD FORT, MUMBAI – 400 023 2 REPRESENTED BY ITS DIRECTOR MRS. ROSHEN MINOCHER NENTIN M/S. ANAND INVESTMENT PRIVATE LIMITED.
2. KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD NO.14/3, NRUPATHUNGA ROAD BENGALURU – 560 001 BY ITS CHIEF EXECUTIVE OFFICER AND EXECUTIVE MEMBER. ... RESPONDENTS (BY SRI. K. G. RAGHAVAN, SENIOR COUNSEL FOR SRI. R. HEMANTHRAJ, ADVOCATE FOR CAVEAT R1) THIS WRIT APPEAL IS FILED UNDER SECTION4OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE WRIT APPEAL AND SET ASIDE THE
ORDERDATED0109.2015, PASSED IN WRIT PETITION NOS.21942 OF2013AND3097330976 OF2013(GM- KIADB) AND ALSO THE
ORDEROF THE LEARNED SINGLE JUDGE DATED0201.2018 PASSED IN REVIEW PETITION NO.361 OF2017AND364367 OF2017AND ETC. ***** THIS WRIT APPEAL COMING ON FOR HEARING, THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENTAggrieved by the order dated 01.09.2015, passed in Writ Petition Nos.21942 of 2013 and 30973-30976 of 2013 and also the order dated 3 02.01.2018, passed in Review Petition Nos.361 of 2017 and 364-367 of 2017, by the learned Single Judge, respondent Nos.1 and 3 have filed this appeal.
2. The parties will be referred to as per their ranking before the learned Single Judge in the writ petitions.
3. During the year 1977, M/s.Delicia India Private Limited amalgamated with M/s.The Swadeshi Chemicals Private Limited, in terms of the order dated 26.09.1977, passed by the High Court of Bombay in Company Application No.261 of 1977 in Company Petition No.518 of 1977. The Company owned various lands. In view of the violation of Sections 79-A and 79-B of the Karnataka Land Reforms Act, 1964, (‘the Act’ for short) the lands bearing Survey No.97/3, 98/3, 99/2, 100/2 and 101 of Shettigere Village, Jalahobli, Bengaluru North 4 (Additional) Taluk, measuring in all 20.13 acres of land were forfeited by the Assistant Commissioner by an order dated 31.07.1978. The same has not been challenged and has attained finality. Thereafter, the Government passed an order 29.08.1992, granting the very lands in question to the KIADB for reallotment to the erstwhile company M/s.Swadeshi chemicals private limited. The same also indicated that the rate fixed was at Rs2000/- per acre or the minimum rate as computed under Section–78-(2) of the Karnataka Land Reforms Act. Thereafter, by an order dated 06.05.2011, passed by the High Court of Judicature at Bombay in Company Scheme Petition No.1 of 2011, along with connected matters, M/s. Swadeshi Chemicals Private Limited was amalgamated with M/s. Anand Investment Private Limited, namely the writ petitioner.
4. The case of the petitioner is that, inspite of the said Government order, the lands were not 5 allotted to it. Hence, the instant writ petitions were filed seeking for a writ of mandamus directing respondent No.2 to allot and transfer forthwith 20.13 acres of land in Survey No.97/3, 98/3, 99/2, 100/2 and 101 of Shettigere Village, Jalahobli, Bengaluru North (Additional) Taluk to the petitioner pursuant to the Government Order dated 29.08.1992 and for a writ of certiorari to quash the letter of respondent No.2 namely, the KIADB dated 18.05.2012. Thereafter, the KIADB in terms of the letter dated 06.07.2012 intimated the erstwhile petitioner company that a detailed proposal has been sent to the Government for the allotment of the lands to the petitioner, since it is the Government which is the appropriate authority to allot the lands by a Government order. By an another communication dated 18.05.2012, it was resolved to give an approval to send suitable proposals to the 6 Department of Revenue to allot the lands to the erstwhile petitioner company.
5. Statement of objections were filed by the State and the KIADB.
6. The learned Single Judge considered the scheme of amalgamation of the companies and its related issues. The learned Single Judge came to the conclusion that the petitioner is entitled to take possession of the lands in question. In view of the reasons assigned therein, pertaining to the amalgamation of the petitioner company, liberty was granted to the State to take note of the fact that the lands are not in an industrial layout and therefore, transfer of lands in favour of the petitioner’s company by appropriate orders to that effect etc. To that extent, petitioner had to file a representation with the copy of the decree passed in the amalgamation proceedings. Since, the order of the 7 learned Single Judge was not obeyed, the writ petitioner filed C.C.C.No.186 of 2017 and various orders were passed thereon. During the pendency of the contempt petition, the State filed Review Petition Nos.361 of 2017 and 364-367 of 2017.
7. It was contended in the Review Petition by the State that the Government Order dated 28.06.2017 has been passed recalling the earlier Government order of allotment dated 29.08.1992 and therefore, the order of the writ Court requires a review. The learned Single Judge was of the view that the Government Order is subsequent to the order passed by the learned Single Judge and therefore, it cannot constitute a ground for review. Hence, the learned Single Judge was of the view that there is no error apparent on the face of the record. Therefore, the review petitions were dismissed. Aggrieved by the order passed in the Writ Petition 8 and the order in the Review Petition, this writ appeal is filed by the State. 8 (a). Sri. Dhyan Chinnappa, the learned Additional Advocate General appearing for the appellant submits that the order passed by the learned Single Judge as well as the order passed by him in the review petitions are erroneous. That the Government having recalled the earlier order of directing allotment, the writ petitions would not survive for consideration. The writ petitions are virtually petitions seeking execution of the Government Order dated 29.08.1992. When the Government order before the learned Single Judge does not exist, there is no question of sustaining the same. The impugned order required to be reviewed by the learned Single Judge who should have molded the relief appropriately. Having failed to do so, irreparable loss is caused to the State. 9 (b). The writ petition was filed in the year 2013 namely, 21 years after the Government order granting the land to the KIADB for reallotment to the erstwhile petitioner company was passed. The learned Single Judge has not taken this fact into consideration. On the ground of delay and laches alone, the writ petitions should have been dismissed. (c). It is further contended that the finding of the learned Single Judge that the writ petitioner is entitled to receive the properties as owned by the erstwhile company M/s. Swadeshi Chemical Private Limited is also erroneous. Hence, he pleads that the writ appeal be allowed by dismissing the writ petitions. 9 (a). On the other hand, Sri.K.G.Raghavan, the learned senior counsel appearing for the counsel representing respondent No.1 defends the impugned orders. He submits that in pursuance to 10 the orders passed by the High Court of Mumbai in the petitions filed under Sections 391 to 394 of the Companies Act, 1956, amalgamation having taken place in the manner known to law, the petitioner company has succeeded to the interests of M/s. Swadeshi Chemical Private Limited. Therefore, the findings of the learned Single Judge on this account is based on the material on record. Therefore, it cannot be said that the petitioner company is not entitled to the lands in question. That there is no delay as contended by the appellants’ counsel. There were continuous correspondences with the State as well as the pending proceedings for amalgamation. Therefore, delay cannot be held against the writ petitioner. (b). He further contended that the order of the Government directing the KIADB to grant lands to the petitioner was passed in the year 1992. It cannot be recalled by the State in the year 2017 for 11 whatever reasons that they may assign having validly directed the KIADB to allot lands to the writ petitioner. The State is estopped from passing the order in the year 2017. Even for the sake of arguments, if the allotment in the year 1992 is invalid or illegal, the same could have been set aside or recalled at the earliest point of time. The State has chosen to recall it after 25 years. Therefore, the appeal requires to be dismissed on this ground itself. The reasons as to why the lands have been allotted to the writ petitioner is stated in the Government Order passed in the year 1992. It was the Government’s intention, desire and object to grant the lands to the writ petitioner for the reasons assigned in the Government Order dated 29.08.1992. Hence, the Government presently, cannot contend that the reasons assigned earlier are inappropriate. 12
10. An initial submission was made by the learned counsel for the petitioner on the ground that this Court cannot go into the question of delay or on the validity of the 1992 order. However, on being questioned the learned Senior counsel appearing for the writ petitioner, very fairly submits that a writ Court is entitled to go into the question of delay as well as the validity of the order of the State dated 29-8-1992. Therefore, he has addressed arguments on the same.
11. Heard learned counsels.
12. Various issues were addressed by the learned counsels for consideration in this appeal. Therefore, based on the facts, pleadings and the impugned orders, we will deal with each one of them separately. 13 A. DELAY IN FILING THE WRIT PETITION13 By the order of the State Government issued in the year 1992, KIADB were granted the said lands to be re-allotted to the erstwhile writ petitioner company. The plea of the petitioner is, that various correspondences took place between the erstwhile company and the State. Proceedings for amalgamation were also considered before the jurisdictional High Court of Mumbai in Company Scheme Petition No.1 of 2011 and connected matters, with reference to Sections 391 to 394 of the Companies Act, 1956. Therefore, there cannot be said to be any delay.
14. The same is countered by the learned Additional Advocate General on the ground that correspondences do not stop limitation. That the writ petitioner was entitled to file the instant writ petition, immediately, after the Government Order 14 was passed. They have deliberately chosen not to do so. Even though, the writ petitioner may have succeeded to the erstwhile company, much later, the erstwhile writ petitioner also did not choose to file any writ petition. Therefore, there is substantial unexplained delay.
15. The writ petitions were filed in the year 2013 namely, 21 years after the Government Order dated 28.09.1992. The only explanation offered is one of correspondences and the pending petitions for amalgamation. We are unable to accept the same. Merely, writing letters will not save limitation as held by various judgments of the Hon’ble Supreme Court. There has to be some positive action. Therefore, we hold that there is inordinate and unexplained delay in filing the writ petitions.
16. It is the further contention of the learned counsel for the writ petitioner that in the writ 15 petitions the ground of delay and laches were not raised by the State.
17. Even assuming that the contention of the writ petitioner is to be accepted, the same does not preclude the court from considering the question of delay and latches.
18. The Hon’ble Supreme Court in various judgments have held that even though there is an absence of an objection by the respondents on the question of delay and laches, the court is not only entitled to, but is duty bound to consider the limitation. Until and unless the delay is explained and considered by the court, it would not be appropriate to consider the petition on merits.
19. We do not find that the learned Single Judge has dwelt upon this issue at all. The learned Single Judge was rather considering the transfer of rights from the erstwhile company to the petitioner 16 company and matters pertaining to amalgamation. So far as the findings recorded by the learned Single Judge on amalgamation and the right of the writ petitioner is concerned, we do not find any ground to interfere with the same. The findings recorded by the learned Single Judge to the effect that the petitioner company has lawfully succeeded to the erstwhile company as also its properties requires to be accepted to that extent. We find no good ground to interfere so far as that finding is concerned.
20. Non-consideration of delay and laches is a serious issue. The delay is not marginal that could be overlooked. It is a delay of 21 years in filing the writ petition. The Government Order was issued on 29.08.1992 and the writ petition was filed on 26.04.2013. The petitioner by his acts of omission has deliberately and intentionally has sat over it for almost 21 years. It is not a case of a rustic who was not aware of his legal rights, who continued 17 uninterruptedly in the cultivation of his land, etc. But here is a company registered under the Companies Act, which very well knows its rights under the Act. It is guided by a full-fledged Legal Advisor. The petitioner has merely sat over the land for the next 21 years, doing nothing on it. Therefore, we are of the view that the delay is fatal to the petitioners. Therefore, the writ petitions require to be rejected purely on the ground of delay and laches. B. NO CHALLENGE TO THE GOVERNMENT
ORDERDATED2806.2017 :
21. The writ petition was filed for the reliefs as stated herein above. The writ petitions were disposed off by the order dated 01.09.2015. During the pendency of the matter before the contempt court, the Government passed an order dated 28.06.2017 withdrawing the earlier Government Order dated 29.08.1992. This order was passed during the pendency of the contempt petition. The 18 said order was also brought to the notice of the learned Single Judge in the review petitions. However, as stated hereinabove, even though the Government Order dated 29.08.1992 was brought to the notice of the Review Court, the Hon’ble Court was of the view that the same does not constitute a ground for review.
22. The petitioner itself has placed on record the said Government Order before this court. The Government Order withdraws the earlier Government Order dated 29.08.1992. The effect of passing the Government Order dated 28.06.2017 is that the earlier Government Order dated 29.08.1992, does not exist. Therefore, until and unless the Government Order dated 28.06.2017 is set-aside, the Government Order dated 29.08.1992, cannot be given effect to since it has been withdrawn. Under these circumstances, the writ petitioners should have challenged the order dated 19 28.06.2017. Failure to do so, would result in the fact of the Government Order dated 29.08.1992 being withdrawn, in the light of the Government Order dated 28.06.2017. Under these circumstances, issuing any directions in pursuance to the Government Order dated 29.08.1992 is unsustainable. Therefore, until and unless the Government Order dated 28.06.2017, is set-aside or annulled in a manner known to law the Government Order dated 29.08.1992, will have no effect and cannot be enforced at all.
23. Furthermore, since the petitioner itself has filed the Government Order before this court and has deliberately chosen not to challenge the said Government Order, the necessary legal consequences would have to flow, namely, that there is no Government Order dated 29.08.1992 in the eyes of law, in view of the Government Order dated 28.06.2017. Undoubtedly, it is the discretion of the 20 writ petitioner to challenge the Government Order dated 28.06.2017 or not. If the Government Order dated 28.06.2017 is on record, then the Government Order dated 29.08.1992 cannot be given effect to.
24. Under these circumstances, having brought it to the notice of the review court about the Government Order dated 28.06.2017, the relief to be granted should have been appropriately moulded and the writ petitioner if so advised could have challenged the Government Order dated 28.06.2017. However, the same has not been done by the review court. Consequently, in view of the non-challenge to the Government Order dated 28.06.2017, and when the Government Order dated 29.08.1992 has been withdrawn, the order passed by the learned Single Judge in Writ Petition Nos.21942 of 2013 and 30973-30976 of 2013 and also the order dated 02.01.2018, passed in Review Petition Nos.361 of 2017 and 364-367 of 2017, 21 would by necessary implication stand dissolved. Hence on this ground also no relief could be granted to the writ petitioner. C. VALIDITY OF THE GOVERNMENT
ORDERDATED2908.1992 : (i) Relief granted, beyond the prayer sought for:
25. The writ petitioner had sought for a writ of mandamus to direct the second respondent – KIADB to allot and transfer forthwith 20.13 acres of land in the said survey number in pursuance to the Government Order dated 29.08.1992. Secondly, for a writ of certiorari to quash the communication dated 06.07.2012 and 18.05.2012 by the KIADB and other consequential reliefs. While considering the writ petition the prayer sought for by the writ petitioners seems to have missed the attention of the learned single judge. The Learned Single Judge by the impugned order passed various directions against 22 the first respondent to the effect that it would be open to the State to ratify the earlier order of transfer of land after considering the decree obtained in the amalgamation proceedings. Therefore, it was held that the petitioner shall file a representation to the State with a copy of the amalgamation order and thereafter the first respondent State to pass orders in favour of the writ petitioner to enable the writ petitioner to enjoy the property which had been earlier ordered in favour of M/s. Swadeshi Chemicals Limited. That such a consideration shall be made by the first respondent within two months from the date of representation.
26. The specific prayer is against the second respondent – KIADB to allot and transfer the lands concerned and to quash the letters written by the KIADB. However, the learned Single Judge has directed the State to pass appropriate orders in favour of the petitioner to enable the petitioner to 23 enjoy the property which had been earlier orders in favour of the M/s.Swadeshi Chemicals.
27. On considering the relief granted, we are of the view that the learned Single Judge was more concerned with the issue pertaining to the amalgamation and the right of the instant petitioner, mainly because, the writ petitioner was amalgamated with the erstwhile company by the orders dated 06.05.2011. Be that as it may, the relief granted is far more and beyond what was sought for by the writ petitioner. Therefore, we are of the view that the learned Single Judge could have either granted the relief or rejected it. In the given facts and circumstances of the case, the grant of relief which has not been sought for in our considered view is inappropriate. 24 (ii) Violation of Section-77 of the Land Reforms Act And Rule-27-A of the Karnataka Land Reforms Rules :
28. Sections-77 of the Karnataka Land Reforms Act, 1961, reads as follows:
77. Disposal of surplus land.—[(1) Surplus land vesting in the State Government under this Act, land directed to be disposed of under sub-section (3) of section 45, section 58, section 60, land vesting in the State Government under section 79A, section 79B or under any other provision of subject to reservation of [seventy five]. per cent thereof for grant to persons belonging to the Scheduled Castes and the Scheduled Tribes and subject to such restrictions and conditions as may be prescribed in this behalf, [be granted by the Deputy Commissioner or any other officer authorised by the State Government in this behalf]. to the following persons to the extent and in the manner as may be prescribed:
25. (i) Dispossessed tenants who are not registered as occupants; (ii) xxx (iii) Landless agricultural labourers (iv) Landless persons or other persons residing in villages in the same Panchayat area whose gross annual income does not exceed rupees twenty thousand and ex- military personnel whose gross annual income does not exceed rupees twenty- two thousand; (v) Released bonded labourers; xxx xxx.
29. We have considered the contentions and Section-77 of the Act which is with reference to ‘disposal of surplus lands’. It indicates about the surplus lands vesting in the State and as to how the land could be distributed. Section-77(1) of the Act indicates the persons and the manner in which they could be granted lands namely, dispossessed tenants who are not registered as occupants, displaced 26 tenants having no land; landless agricultural labourers; landless persons or other persons residing in villages in the same Panchayat area whose gross annual income does not exceed rupees twenty thousand and ex-military personnel whose gross annual income does not exceed Rs.25,000/- and released bonded labourers. ‘Dispossessed tenants’ and ‘displaced tenant’ have also been defined.
30. It is not the case of the writ petitioner that he falls under anyone of these categories. Therefore, the application of the law to the facts of the case is quite clear. The petitioner does not fall under any one of these categories. Therefore, the grant of the land under Section-77 of the Act is illegal and void ab-initio.
31. Furthermore, sub-section(1) of Section 77 mandates that 75% of the land vesting in the State should be reserved for grant to persons belonging to 27 the Scheduled Caste and Scheduled Tribes and subject to such discretion and terms and conditions as may be prescribed in this behalf. The amendment was brought about by Act 9 of 1992 with effect from 21-4-1992 wherein earlier the law read as 50% of the land which was substituted with effect from 21-4-1992 as 75% of the land. The Government Order is dated 29.08.1992. Therefore, 75% of the said land has to be reserved for persons belonging to Scheduled Castes and Scheduled Tribes.
32. The petitioner Company is not an individual claiming a right as a Scheduled Caste or a Scheduled Tribe. Therefore, the direction to the KIADB to grant the entire lands to the writ petitioner is illegal since it is opposed to sub-Section 1 of Section 77 of the Karnataka Land Reforms Act, 1961. 28
33. The contention of the writ petitioner is that the land has been reserved in terms of Section 77(3) of the Act. In terms whereof, notwithstanding anything contained in sub-Section (1), the State Government may reserve such land for any public purpose. To this effect we have considered the Government Order dated 29-8-1992.
34. By the order dated 29.08.1992, the lands were reserved under Section-77(3) of the said Act. Further, Rule – 27A of the Karnataka Land Reforms Rules, reads as follows: “27-A. Disposal of land under sub-section (3) of Section 77-(1) Land reserved by the State Government for any public purpose under sub- section (3) of Section 77, may be used by the State Government for any public purpose or may be granted by it for any public purpose subject to such conditions and restrictions as may be specified therein to the following, in the order of preference as specified below;- 29 (i) Statutory Boards and Corporations owned or controlled by the State Government; (ii) Department of government of India; (iii) Statutory Boards and Corporations owned or controlled by the Central Government; (iv) The Bangalore Development Authority constituted under the Bangalore Development Authority Act, 1976 (Karnataka Act No.12 of 1976); (v) The Urban Development Authorities constituted under the Karnataka Urban Development Authorities Act, 1987 (Karnataka Act No.34 of 1987); (vi) Local Authorities; (vii) Agricultural Universities established under the Universities of Agricultural Sciences Act, 1963 (Karnataka Act No.22 of 1963); (2) Value of the land granted under sub-rule (1) which is payable by the grantee shall be its market value as may be determined by the Deputy Commissioner concerned. 30 (3) Any grant of land made under sub-rule (1) shall be liable to be cancelled and the land resumed by the State Government where the grantee has contravened any of the conditions specified in the order of grant: Provided that no such cancellation shall be made without giving the grantee an opportunity of being heard. (4) If the lands granted are not utilised for the purpose for which they are granted, the same shall be resumed by the State Government free from all encumbrances. The State Government shall not be liable to pay any compensation or damages for the lands so resumed.
35. We have considered the provisions of sub- section-3 of Section-77 of the Act. The same indicates that notwithstanding anything contained in sub-section(i) of Section-77, the State may if it considers that the land vesting in it, is required for any public purpose, reserve the land for the said purpose. Therefore, the contention of the learned 31 Additional Advocate General is that the grant of the land to a private company can never ever be said to be in public interest. The laudable object of the Government of India and the Government of Karnataka for the encouragement and establishments of industry on the ground that unemployment would be weeded out and that the 100% export oriented units should be incorporated. None of it is applicable to the case of the petitioner.
36. However, the plea of the petitioner is that the grant of the land to it is necessarily in public interest. The learned counsel for the writ petitioner contends that the land having been allotted to the writ petitioner and the writ petitioners in turn by setting up an industry itself amounts to public purpose. The intention of the petitioner was to establish an Information Technology Park. Therefore, creation of this industry, employment, etc. are all public purpose. 32
37. On considering the contentions, we are unable to accept the plea of the petitioner that he is involved in any public purpose. A reading of the Government Order dated 29.08.1992, does not make any reference at all as to what this Company, what is it going to produce, what is it going to manufacture, how many employees are involved, whether it is an export oriented project, etc., Nothing is mentioned in the order. The entire order only indicates that in view of the violation of the provisions of the Karnataka Land Reforms Act, the lands of the company have been forfeited by the State and therefore to achieve, the laudable objects of the Government of India and the Government of Karnataka, the order was passed directing KIADB to allot the lands to the company.
38. If the contentions of the petitioners were to be accepted, then there must be reference in the Government Order, relatable to the contentions 33 being advanced. There has to be a reference as to how the acts of the petitioner company amounts to public purpose. The nature of employment, nature of foreign exchange, etc., are not forthcoming in the Government Order.
39. Firstly, is the fact that Section-77 of the Act deals with disposal of the surplus lands. Rule- 27A of the Rules deals with the disposal of the lands under Sub-Section-(3) of Section-77 of the Act. It is narrated that the lands could be reserved by the State for any public purpose under Section-77(3). That the said lands may be used by the State or may be granted for any public purpose as narrated therein namely, clause-(i) to clause –(vii).
40. The petitioner company is a registered company under the Companies Act. It does not come under any one of the categories as stipulated under Rule-27(A) of the Rules. Therefore, it is a clear case 34 of an illegal order being passed by the Government. Therefore, we find that the order dated 29.08.1992 is unsustainable, since no public purpose is involved.
41. It is pleaded that the land has been given for a public purpose. We have considered the material on record. A reading of the Government Order dated 29.08.1992, does not indicate any public purpose. It only narrates the broad principles being followed by the Government of India and the Government of Karnataka. It indicates with regard to unemployment and 100% Overseas transactions. The Government Order would necessarily have to indicate that the land is being reserved for a public purpose for a particular cause, which in turn would help the public. There is no reference in the Government Order as to what the Company is going to manufacture and how the public interest is involved. Therefore, there is absence of the 35 requirements as enunciated in Section 77(3) of the Act.
42. The material on record would also indicate that the instant writ petitioners are successors to the previous Companies. The previous Companies were in the business of manufacturing chemicals. The earlier Company M/s. Swadeshi Chemicals Private Limited, have addressed a communication dated 17- 01-2009 vide Annexure-F in the writ petition to the KIAD` Therein they have stated that in view of the changed scenario, that they have changed their line of activity. That they propose to set up IT/ITES Park, Five Star Hotel, Shopping Mall, Residential Complex etc., in lieu of their earlier Chemical project. Therefore their request to allot 20.13 acre was reiterated. Various communications have been issued by M/s. Swadeshi Chemicals to the KIADB, in terms of Annexures-G1 to G-9 reiterating the same. Therefore, this will also clearly indicate 36 that there is no public purpose involved. The petitioner intends to put up IT/ITES Park, Five Star Hotel, Shopping Mall, Residential Complex etc. None of it is in public interest. It is all in the interest of the Company. Therefore, the requirements of public purpose have not specified.
43. Furthermore, the instant writ petitioner is not a manufacturer. It is an investment Private Limited Company. Therefore, the land cannot be granted to an investor who intends to make profit out of the same. In the absence of a public purpose, the grant of land is illegal. (iii) Illegal determination of value of land to be re-allotted:
44. Furthermore, sub-Rule(2) of Rule 27 indicates that the value of the land granted under sub-Rule (1) payable by the grantee shall be the market value as determined. In the instant case, 37 the market value has not been determined. The Government Order indicates that the market value of the land is Rs.70,000/- per acre. It also indices that in exercise of the powers conferred under Rule 27 as amended the Government has decided to reduce the rate to the lessees by fixing the amount as computed under Section 78(2) of the Act at Rs.2,000/- whichever is higher. We do not find any amendment to Rule 27 that gives the power to reduce the rate. We have also considered Section 78(2) of the Act which was relied upon by the State for fixing the amount due. Section 78(2) reads as follows:- “78. Purchase price of surplus land (1) xxx xx xx” (2) The purchase price shall, in the case of,- (i) A Class, B Class and C Class lands referred to in Part A of Schedule I be an amount equal to fifteen times, and (ii) D Class land referred to in Part A of the said Schedule be 38 An amount equal to twenty times, The net annual income referred to in sub-section (2) of Section 72 plus the amount, if any, payable under sub- section (4) of that section.
45. There is no reference at all to the annual income etc., as contemplated under sub-Section (2) of Section-78 of the Act, in the Government Order dated 29.08.1992. Therefore, this also amounts to an illegal order in reducing the amount in opposition to law. (iv) Devious methodology by the State :
46. Furthermore, in terms of Rule 27-A of the Karnataka Land Reforms Rules, 1974, the disposal of land under sub-Section (3) of Section 77 have been postulated. Sub-Section(1) indicates that the lands reserved for any public purpose may be used by the State Government for such purposes as stated therein. Admittedly, the petitioner does not fall in 39 any one of those categories. Therefore, in order to overcome the legal requirement, by placing reliance on Rule 27-A of the Karnataka Land Reforms Rules, 1974, this methodology is used by the State. Since the land could not have been allotted to the petitioner Company, the Government passed an order granting the land to the statutory board which is one of the beneficiaries under Rule 27-A of the Rules and thereafter directs the KIADB to allot the land to the petitioner. This we find is a devious methodology adopted by the State to grant land illegally to the writ petitioner. When the law prohibits the grant of land to the petitioner, the State have chosen to overcome the bar under the law by passing such an illegal order. Therefore, on this ground also, the Government Order becomes unsustainable. 40 (v) Re-allotment to violators of law:
47. Yet another reason as contended by the learned counsel for State is the manner in which the proceedings have gone on. The Government order was issued in the year 1992, stating that the petitioner or its erstwhile company have violated the provisions of Sections-79A And 79B of the Act, which prohibits acquisitions of land by certain persons as well as the prohibition of holding agricultural lands. Hence, the proceedings for forfeiture was initiated. The lands in question was forfeited by the State in terms of the order of the Assistant Commissioner Doddaballapura dated 31.07.1978. The same has attained finality. The Government grants the very same lands to the petitioner. We fail to under stand as to how a person who has violated the law of the land can be granted the very same land, which stood forfeited in accordance with law. 41
48. Even assuming for the sake of arguments that the order of 28.09.1992 is valid and nothing wrong can be found in it, the very fact of directing reallotments of the land to the very same person, who has violated the land cannot be accepted. This is not a case where the provisions as contained under Section-77(3) of the Karnataka Land Reforms Act has been exercised in disposing surplus lands to the persons. What debars him in receiving the said land is his previous conduct. He having purchased the lands in violations of the provisions of the Act, cannot be entitled to receive those very same lands from the State.
49. The petitioner being a company is not entitled to the grant of these lands. The petitioner having violated the law cannot be receiving back the very same lands for which he has violated the law. 42 Under these circumstances, we are of the view that the impugned order calls for interference.
50. We are of the view that the grant of the land itself is illegal. The proceedings for forfeiture has not been questioned by the writ petitioner. They have attained finality. In view of the fact that the petitioner is a person who has violated the provisions of the Karnataka Land Reforms Act, in our considered view the State could not have ventured to give the very same lands to them. The act of issuing the Government Order dated 29.08.1992 is a fraud on the statute. When the statute prohibits a person from holding lands or acquire lands, the State cannot hide behind another provision of law and allot those very same lands to a violator of law.
51. The grant of surplus lands by the State is always to be done in public interest and in terms of the provisions of Karnataka Land Reforms Act and its 43 Rules. The lands cannot be granted at the whims and fancies of the State Government. There are various Regulations as provided under the Act as referable under Seciton-77 and Rules-27(A), (B),etc., which should act as a guiding force in disposal of surplus lands. The direction to the KIADB to grant land to the writ petitioner by invoking the provisions of Section-77(3) of the Act is a fraud on the power of the State.
52. So far as the review petition is concerned, the subsequent order passed by the State was brought to the notice of the learned Single Judge. The learned Single Judge was of the view that this is a subsequent event and therefore does not constitute a ground for review namely, that there is an absence of an error apparent on the face of the record. On considering the order passed in the review petition prima facie on application of strict principles, there may not be any error apparent. 44 That as on the date the learned Single Judge passed the order in the writ petition the Government order dated 28.06.2017 did not exist. However, as the law is well settled if a subsequent event is brought to the notice of the learned Single Judge, either in a review petition or otherwise the court is duty bound to consider the subsequent event and to mould the relief. Adopting a hyper technical view in our considered view, does not aid the cause of justice. Ultimately, justice has to be rendered by a court of law. Having been made aware of the order of dated 29.08.1992, being withdrawn, necessary orders had to be passed by the learned single judge. In our considered view failure to do so, has led to gross miscarriage of justice. Therefore appropriate interference is called for. (vi) Undertaking by petitioner :
53. So far as the possession of the land is concerned, the plea of the writ petitioner is that he 45 continues to be in possession of the land even as on date. The same is disputed by the learned Government Advocate, who contends that after the lands were forfeited by the State in terms of the order of the Assistant Commissioner, dated 31.07.1978 the lands have stood vested with the State notwithstanding the order dated 29.08.1992. We do not find it necessary to record a finding on possession so far as the instant proceedings are concerned.
54. Sri.Hemanth Raj, learned counsel for the writ petitioner submits after obtaining instructions from his client that the writ petitioner will voluntarily handover vacant possession of all the lands in question free of all encumbrances to the State namely appellant No.1 or his designated officer on or before 31.07.2020. This undertaking is placed on record. 46
55. For all the aforesaid reasons, we are of the view that the writ appeal and the Review petition require to be allowed. Hence, the order dated 01.09.2015, passed by the learned Single Judge in Writ Petition Nos.21942 of 2013 and 30973-30976 of 2013 and also the order dated 02.01.2018, passed in Review Petition No.361 of 2017 and 364-367 of 2017 are set-aside. The writ petition is dismissed by recording the undertaking of the petitioner. State to enforce the undertaking. Sd/- JUDGE Sd/- JUDGE MH/JJ/RSK.