(Prayer: These Writ Appeals Are Filed U/S 4 Of The Karnataka High Court Act Praying To Set Aside The Order Passed In The Writ Petition 47552- 553/12 Dated 2/7/13.)
Cav Judgment
1. These writ appeals arise out of the order dated 02/07/2013 passed by the learned Single Judge in W.P.Nos.47552-47553/2012.
Factual Background:
2. Appellant herein had filed two sets of writ petitions namely, W.P.Mos.47552-47553/2012 and W.P.Nos.268- 270/2013 in respect of land bearing Sy.Nos.18 and 19 (BBMP New No.234/19/3D) Kumudanapalya, Konankunte Village, Uttarahalli Hobli, Bangalore South Taluk, admeasuring about ll,507sq.mtrs. (hereinafter referred to as "scheduled land" for the sake of convenience). By a common order, those writ petitions were disposed of.
3. In W.P.Nos.47552-553/2012 approval granted by the third respondent-State Level Single Window Clearance Committee ('SLSWCC for short) vide communication dated 12/09/2012 (Annexure "M") and consequently, communication dated 17/09/2012 (Annexure "N") and communication dated 08/10/2012 fAnnexure "P") issued by the fourth respondent-Bruhat Bangalore Mahanagara Palike CBBMPf for short) directing the appellant herein to stop further construction were assailed. The order of BBMP was quashed. It was observed that in case the petitioner constructed the building in contravention of building plan or in violation of building bye-laws or any other law, then BBMP was at liberty to act in accordance with iaw. Being aggrieved by the order passed in W.P.Nos.47552-47553/2012, these writ appeals are filed.
4. In W.P.Nos.268-270/2013, the appellant had assailed Notification dated 16/11/2012 issued under Sections 3(1), 1(3) and 28(1) of Karnataka Industrial Area Development Act, 1966 (hereinafter referred to as 'KIAD Act'). These writ petitions were disposed of by directing the appellant herein to file objections within two weeks from the date of that order before the Special Land Acquisition Officer ('SLAO') without waiting for any notice under sub-section (2) of Section 28 of the KIAD Act and to appear before the SLAO on 18/07/2013 at 3.00p.m. Pursuant to the liberty granted by the learned Single Judge, the appellant filed its objections before the SLAO and an order has been passed under sub-section (3) of Section 28 of the KIAD Act. But no further steps have been taken subsequent thereto.
5. The appellant is the original petitioner, which is a registered partnership firm engaged in construction of both commercial as well as residential building in Bangalore. The scheduled land was purchased by the appellant under registered sale deeds dated 20/07/2007 and 12/10/2007. BoLn these lands got a common BBMP Khata number under an amalgamation order dated 25/10/2010 and a New No.234/19/3D was assigned to the scheduled land. It is stated that Bangalore Development Authority ('BDA') had approved change of land use from industrial to residential purpose by order dated 28/04/2006 by accepting conversion charges of Rs.2,16,750/-. The appellant intended to construct residential apartments on the scheduled lands ana therefore, obtained necessary sanctions and permissions from various authorities including BBMP, who sanctioned the plan on 28/08/2012 to the appellant to construct residential Blocks-I and II comprising basement and ground, equal to 8/9 upper floors. Appellant thereafter commenced excavation work and extensively advertised in respect of its project.
6. Sixth respondent who is stated to be the Member of Legislative /Vssembly (MLA) representing Rajarajeshwari Constituency is running a school called 'RMS International School' through the fifth respondent-RMS Educational Trust (hereinafter referred to as "Educational Trust"). His wife Smt.Ratnamma is stated to be the Secretary of the Trust. Sixth respondent approached second respondent to sanction an extent of one Acre of land out of the scheduled land, but the request was declined by stating that they could approach the State Government seeking permission to purchase agricultural land under Section 109 of the Land Reforms Act. Thereafter, sixth respondent wrote to BBMP on 01/02/2012 not to approve any plan in favour of the appellant, till such time, that its application for allotment of port'on of scheduled land was considered. BBMP, however, granted sanction of the building plan to the appellant on 28/08/2012.
7. In the meanwhile, sixth respondent made an application on 09/08/2012 to the third respondent- 5LSWCC to approve its project and allot scheduled land for the fifth respondent-Educational Trust. At a meeting held on 17/08/2012, third respondent approved the proposals submitted by the sixth respondent and a communication in that regard was issued on 12/09/2012 stating that its project proposal has been favourably considered. Thereafter, the second respondent-Karnataka Industrial
Area Development Board fKIADB' for short) issued directions to its Land Acquisition Officer on 17/0S/2012 10 prepare draft preliminary Notification for acquisition of 01 Acre 04 Guntas of land in Sy.Nos.18/2B, IB, 18/2, B2, 18/2C, 1 and 19/3B, which is the scheduled land at Konankunte Village, Uttarahalli Hobli, Bangalore South Taluk. It is averred that the sixth respondent abusing his official position instigated fourth respondent - BBMP to issue letter dated 08/10/2012 to the petitioner to stop further construction on the scheduled land, on false and flimsy grounds.
8. Appellant has produced documents with regard to the scheduled lands, which are at Annexures "A" to "H". Annexure "J" is the communication dated 05/11/2011 issued by the fifth respondent, stating that the land in question cannot be acquired for a private person or a company, in view of circular dated 14/03/2008. Annexure "K" is a letter dated 01/02/2012, addressed by the sixth respondent to the Commissioner, BBMP, stating that the scheduled land is in the process of acquisition for the purpose of RMS International School's playground and that an order be passed disapproving any plan for construction of any building in the schedule plan, Acting on that letter, the Special Commissioner (Planning), BBMP addressed a letter to the Deputy Commissioner, Bangalore District, Bangalore, seeking his opinion prior to sanction of the plan to be issued on the appellant's application.
9. When the matte1" stood thus, by communication dated 12/09/2012 (Annexure "M") issued by the third respondent-SLSWCC, it was stated that at the 74th meeting of the SLSWCC held on 17/08/2012, the project proposal of the Educational Trust was approved and that ail necessary "escort services" for the speedy implementation of the project would be provided. In that communication, it was specifically stated that KIADB was to acquire 01 Acre 04 Guntas of land as a Single Unit Complex (SUC) at Sy.Nos.18/2BlB, 18/2B2, 18/2C1 and 19/3B of Konankunte Village i.e., the scheduled land and that the Educational Trust had to file an application to KIADB with an initial deposit towards tentative cost of the land. On 17/09/2012, Special Deputy Commissioner of KIADB wrote to Special Land Acquisition Officer-H of KIADB, Zonal Office stating that at the 74th meeting of SLSWCC held on 17/03/2012, it was decided to acquire land measuring 01 Acre 04 Guntas in the aforesaid survey numbers in Konankunte Village for RMS Educational and Cultural Institution. Annexures "F" and "N" were issued on the basis of the application made by the fifth respondent- Educational Trust to the SLSWCC on 09/08/2012. In that application, the scheduled land was shown as industrial land, whereas according to the appellant, it was by then converted for residential purpose.
10. Annexure "U" is the Executive Summary of the application made by the Educational Institution on 13/08/2012. The Managing director of Karnataka Udyog Mitra ('KUM' for short) wrote to the Member Secretary, Karnataka State Pollution Control Board ('Pollution Control Board' for short) seeking opinion as to whether the aforesaid four survey numbers would comply with the environmental guidelines, so that the matter could be placed before the SLSWCC for further discussion and to take a decision (Annexure "V"). Another communication was issued by the Managing Director, KUM, to the Chief Executive Officer (CEO) and Executive Member to KIADB on 16/08/2012 to provide his opinion on the acquisition of the land in the aforesaid survey numbers to establish a project by an educational institution. The 74th meeting of the SLSWCC was held on 17/08/2012, on which date, the proposed project of the lespondent - Educational Trust was approved and communication was issued to the project proponent and to other respective departments or organizations for further course of action. It was decided that KIADB would acquire 1 Acre 4 Guntas of land in respect of the aforesaid survey numbers. It is thereafter, an endorsement dated 08/10/2012 (Annexure "P") was issued by the BBMP to the appellant with reference to the letter dated 03/10/2012 written by fifth respondent-Educational Trust, restraining the appellant from working on the scheduled land in order to verify the documents pertaining to the land including the cnange of land user, failing which, action was to be initiated. Perturbed at these developments, appellant-firm, on 17/10/2012, wrote to BBMP, seeking withdrawal of their letter dated 08/10/2012, failing which legal action was to be initiated. In the above bockdroo of facts, appellant herein assailed the approval of the fifth respondent's project by the third respondent - SLSWCC as well as acquisition of the scheduled lands by first and second respondents in two separate writ petitions.
11. Statement of objections were filed on behalf of second respondent-KIADB, contending that there was no justification in the objection taken by the appellant with regard to the acquisition of the scheduled land for an Educational Institution as it was an amenity as defined under sub-section (1) of Section 2 of the KIAD Act. Referring to "Industrial Policy : 2001-2006" and New Industrial Policy of 2006-2011 and 2009-2014 published by the State Government, it was contended that an educational institution is a facility, which contributes to the development of industries in the State as contemplated under sub-section (7-a) of Section 2 of the KIAD Act. Therefore, it was averred that acquisition Notifications were issued under Sections 3(1), 1(3) and 28(1) of the KIAD Act and that only the preliminary Notification could not be assailed by the appellant in the absence of a final Notification, which was yet to be issued.
12. Karnataka Udyog Mitra CKUM' for short) filed its statement of objections contending that it was appointed as a Nodal Agency under Section 12 of the Karnataka Industries (Facilitation) Act, 2002 (hereinafter referred to as 'Facilitation Act, 2002') and that SLSWCC has been constituted under that Act, to examine and consider proposals received from the entrepreneurs relating to industrial and other projects to be set up in the State with an investment of more than Rs.3.00 Crore and less than Rs.50.00 Crore. It was admitted that the fifth respondent filed an application for approval of the project by SLSWCC, which was submitted to KUM and on its scrutiny, the matter was submitted before the SLSWCC for discussion at the 74th SLSWCC meeting held on 17/08/2012 and approved on that date and a communication was issued on 12/09/2012 to the fifth respondent. That CEO and Executive Member of KIADB as well as KUM received letter dated 18/10/2012 from the appellant:, stating that it was putting up a residential apartment complex on the scheduled land and therefore, SLSWCC could not have accepted the project proposal of the fifth respondent - Educational Trust. Therefore, appellant sought withdrawal of approval accorded to the said institution by the aforesaid letter (Annexure "R-3A"). Acting on that letter, the Managing Director of KUM wrote to the Principal Secretary, Commerce and Industries Department on 19/11/2012 (Annexure "R-3B") bringing to the notice of the latter, the contents of letter dated 18/10/2012.
13. In the additional statement of objections filed by KUM, it has been stated that 74th SLSWCC meeting was held on 17/08/2012 and the meeting notice was sent on 08/08/2012 (Annexure "R-C"). Thereafter, on 14/08/2012, invitation for meeting was d'spatched stating that the notice and agenda were annexed. Annexures "R3-D" and "R3-E" are those documents. However, as far as the fifth respondent's project proposal was concerned, it was made part of the additional agenda, which was circulated on 17/08/2012 i.e., on the date of the meeting (Annexure "R- 3F"). KUM has stated that there was no "un-due or un- wholly haste" (un-holy) in the matter of processing the application of fifth respondent and that no legal mala fide arose in the matter while approving the project of the fifth respondent.
14. First and fourth to sixth respondents did not file any statement of objections to the writ petition. However, an application for vacating the stay granted by this Court was filed by fifth respondent-Educational Trust, contending that the Trust was established three to four years ago end about 1,000 to 1,200 children were studying from pre- nursery to ninth standard. The school was established in Konankunte Industrial Area. In order to provide additional facility to the school, it had approached SLSWCC for acquisition of the scheduled land adjoining the educational institution. SLSWCC, considering all the relevant aspects of the matter and the project proposal of the fifth respondent - Trust; issued clearance and KIADB was requested to take up acquisition of scheduled land by communication dated 17/10/2012 and that fifth respondent was directed to deposit the acquisition expenses, in response to which it deposited a sum of Rs.S3,77,600/- by demand drafts (Annexures "Rl" and "R2"). KIADB on getting clearance from SLSWCC and in light of the deposit made by the institution, proceeded to notify the scheduled land as an industrial area under Section 1(3) and 3(1) of the Act on 16/11/2012 and it was published on 17/11/2012 (Annexure "R3"). Further Notification under sub-section (1) of Section 28 of the KIAD Act was also issued on 16/11/2012 (Annexure V'R4"). At that stage, the appellant had approached this Court assailing the Notifications. Denying that sixth respondent had misused his official position as a local MLA in seeking to acquire the scheduled land, it was contended that Konankunte Industrial Area, in which the scheduled land is situated, is not within Rajarajeshwarinagar Constituency of which sixth respondent was the representative and that request made to the State Government for acquisition of scheduled land by the sixth respondent was in his capacity as a Chairman of the fifth respondent-Trust. While denying various averments made in the writ petition, it was, however admitted by the fifth respondent-Educational Trust that it had approached KIADB for acquiring the land in question as the same is abutting the existing school building and that if the appellant was allowed to put up construction, the same would come in the way of the fifth respondent-institution in making use of the land in question for the purpose for which it was notified. It was also contended that the construction activities commenced by the appellant was causing nuisance to the Educational Institution and therefore, sought vacating the interim order granted by this Court.
15. Learned Single Judge of this Court disposed the writ petitions by quashing the order of the BBMP (Annexure "P"), but did not dwell on the challenge made to Annexures "M" and "N". As stated above, with regard to the challenge made to the acquisition Notifications, appellant was left to object to the same under sub-section (3) of Section 28 of the KIAD Act. Being aggrieved by the order of the learned Single Judge in not considering the case of the petitioner with regard to the challenge made to Annexures-M and N, these appeals are preferred.
Contentions:
16. Sri. G.L.Vishwanath, learned counsel appearing for the appellant, contended that approval of the project of the fifth respondent-Educational Trust by SLSWCC was vitiated and consequently, the acquisition of the scheduled land for the said purpose by the KIADB is iMegai. He contended that the exercise of power by the respondent- authorities in the instant case is a glaring instance of colourable exercise of power as private lands could not be acquired by the State Government or its instrumentalities at the instance of a private party under the provisions of KIAD Act. Drawing our attention to the documents on record, he submitted that application dated 09/08/2012 submitted by the respondent-Educational Institution was incomplete as the processing fee was remitted only on 14/08/2012 and till that date, the application could not have been considered by KUM. But even prior to that, on 13/08/2.012, a letter was addressed by KUM to the Pollution Control Board and thereafter on 16/08/2012 to KIADB for their opinion in the matter. Even without waiting for their opinion, on 17/08/2012, a decision was taken approving the project of the respondent - Educational Trust. That 15/08/2012 was a National Holiday on account of Independence Day and the 74th meeting of SLSWCC was held on 17/08/2012. Seven days prior notice of such a meeting along with agenda had to be issued under Rule 4(2) of Karnataka Industries Facilitation Rules, 2004 (hereinafter referred to as 'Facilitation Rules'). In the instant case, fifth respondent's project proposal was riot part of the original agenda, which was dispatched on 08/08/2012 as the Educational Trust had not submitted its application on that date and processing fee of Rs.30,000/- was remitted only on 14/08/2012. Therefore, as on 08/08/2012 fifth respondent's project proposal could not have been included in the original agenda. However, on the date of 74th meeting of SLSWCC, additional agenda was circulated in which, fifth respondent's project was at SI.No.2 85, Thus, the members of the SLSWCC had no opportunity to consider the fifth respondent's project in light of the Facilitation Act, 2002. The role of the sixth respondent in getting approval of the fifth respondent's project is patent and it is at his instance that the project was illegally approved by the SLSWCC was his submission. Thus, the proceedings of the SLSWCC vis-a-vis fifth respondent is alleged to be ex facie illegal.
17. Elaborating on the misuse and abuse of official position as a MLA by sixth respondent, it was contended that, with an oblique motive and contrary to public interest, sixth respondent ensured that SLSWCC approved the project of fifth respondent, even though it was not originally a part of the agenda. Drawing our attention to the aforesaid chronology of events that had taken place on the application filed by the fifth respondent, learned counsel submitted that the action of the SLSWCC on the application of the fifth respondent suffered from legal mala fide and it was an instance of colourable exercise of power. The approval of the fifth respondent's project included acquisition of land for the fifth respondent - Educational Institution It was, therefore, contended that the acquisition of scheduled land based on an illegal approval granted by SLSWCC was also vitiated.
18. On behalf of the appellant, it was also contended that the appellant had purchased the scheduled land in the year 2007 and after seeking all statutory approvals, sanctions and clearances, they had commenced construction of a residential project and the scheduled land belonging to a private entity could not be acquired at the instance of another private entity through instrumentalities of the State, such as KUM and SLSWCC under the provisions of KIAD Act. It was also contended that the scheduled land was earmarked for residential purpose in the CDP, but the fifth respondent had falsely indicated the same as 'industrial land' in the application made to KUM. That !n total disregard of the Comprehensive Development Plan (CDP) arid the order of conversion passed in respect of the scheduled land, the same was sought to be acquired for an industrial purpose. It was also contended that, at the behest of private individuals, KIADB could not acquire lands for industrial purpose. That is not the object of KIAD Act. Elaborating the said contention, it was submitted that the State had misused its power of eminent domain by invoking the KIAD Act in the instant case. Even if the lands had to be acquired at the instance of the private persons, it must be in public interest and that in the instant case, there was only private interest, which was to be catered to be by the respondent-authorities. Sixth respondent being a MLA and his wife being the Secretary of the fifth respondent-Educational Trust, they wielded their power and influence in the State Government to bring about acquisition of the scheduled land for a project proposal by fifth respondent, which was not in consonance with the scope of the Facilitation Act, 2002. The same could not have been approved by SLSWCC. Consequently, acquisition of the land initiated solely based on the approval given by the SLSWCC was also vitiated, was the submission.
19. Relying on certain decisions of the Hon'ble Supreme Court as well as this Court, learned counsel contended that the learned Single Judge has not considered these aspects of the matter and had not granted any relief to the appellant. It was, therefore, submitted that Annexures-M and N ought to be quashed and consequently, the acquisition of land would also be without any authority of law.
20. Drawing our attention to the object and scope of Facilitation Act, 2002 as well as the KIAD Act, it was contended that the Facilitation Act, 2002 could not have been invoked by the fifth respondent to acquire the scheduled land through the KIADB. That third respondent- authority had no jurisdiction to consider the project proposal of fifth respondent as an infrastructure facility to be added to the fifth respondent - school and it could not be considered to be an industrial project' or an 'industrial undertaking'. That a piece of residential land belonging to the appellant could not have been legally acquired for an industrial purpose under the provisions of the KIAD Act for the benefit of fifth respondent-Trust. Also the institution was not an 'amenity' or an 'industrial infrastructural facility' within the scope of their definitions under KIAD Act. Thus, the actions of the respondent-authorities under the two Acts vis-a-vis fifth respondent's project were vitiated, was the submission. It was urged that the impugned orders be set aside and relief be granted to the appellant.
21. Learned Senior Counsel, SrLAshok Haranahalli, appearing for fifth and sixth respondents, countered the arguments of the appellant's counsel with reference to his written submission and contended that Section 2 of KIAD Act defines 'amenity' and that, by a Notification, the State Government is empowered to add any other facility as an amenity. By Notification dated 13/03/1991, gazetted on 09/05/1991, the State Government added "Educational Institution" as an amenity. Therefore, acquisition of lands for an "educational institution" is permissible under the provisions of the KIAD Act. That initially, fifth respondent- Educational Trust approached KIADB for acquisition of lands for providing additional facilities such as playground etc. On 15/06/2012, the CEO of KIADB has advised the Secretary of the fifth respondent-Educational Trust to make an application to SLSWCC and in case its project was approved, steps could be initiated for acquisition of lend under KIAD Act. Accordingly, the project proposal was submitted to KUM and was approved by SLSWCC, which has been constituted under the provisions of the Facilitation Act, 2002 to assist entrepreneurs to set up industries in the State. That the proposal of the fifth respondent-Educational Trust comes within the expression "other projects" under sub-section (2) of Section 6 of Facilitation Act, 2002. The said expression has to be interpreted in a broad manner and not in a narrow and pedantic way. The expression "other projects" must be given a plain and popular meaning to include infrastructure development project notified under the Notification issued under Section 2(vii) of Facilitation Act, 2002. It was also contended that at the behest of the KIADB, scheduled land was sought to be acquired for the purpose of fifth respondent-Educational Trust for providing additional facility to its school such as playground and therefore, the issue relating to acquisition of the land cannot be the subject matter of these appeals. SLSWCC approved the project after considering all aspects of the matter and no legal mala fides could be attributed to the grant of approval of the project by the SLSWCC. Neither was there any colourable exercise of power, was the submission. Placing reliance on certain decisions of both the Hon'ble Supreme Court and this Court on the object of KIAD Act, it was contended that there is no merit ir, these appeals.
22. Sri.M.Poonacha, learned counsel appearing for the third respondent-SLSWCC gave a chronology of dates in the matter, right from 09/08/2012 when the fifth respondent-Educational Trust made its application to KUM and fairly stated that its project was not part of the original agenda of the 74th meeting of SLSWCC, but on the date of the meeting i.e., on 17/08/2012 an additional agenda was circulated to the members of the Committee in respect of fifteen projects, one of which was the fifth respondent's project. Supporting the action of SLSWCC under the provisions of the Act, he contended that there was no colourable exercise of power in the instant case and nor was any undue favour shown to fifth or sixth respondent.
23. Learned Senior Counsel, Sri.D.L.N.Rao, appearing for KIADB, at the outset contended that there has been no appeal against the order passed in W.P.Nos.268-270/2013. In these writ appeals, there cannot be any challenge to the acquisition Notifications issued under the provisions of the KIAD Act. With a view to assist the Court, learned Senior Counsel also proffered submissions on the provisions of the Facilitation Act, 2002 and contended that the expression "other projects" in the definition of industrial undertaking, must receive a broad interpretation by placing reliance on certain decisions of the Hon'ble Supreme Court. He also contended that in the guise of attempting to challenge the approval granted to the 5th respondent - Educational Trust under the provisions of the Facilitation Act, 2002, the acquisition of the scheduled land could not be challenged. He further contended that the challenge to acquisition of land was premature as only a preliminary Notification had been issued under sub-section (1) of Section 28 of the KIAD Act and that no final Notification or declaration had been yet issued.
24. Learned Government Advocate appearing on behalf of the State fairly contended that the basis for issuance of acquisition Notifications for acquiring scheduled land was the decision taken at the 74th meeting of SLSWCC and that the acquisition in the instant case was not preceded by any independent exercise of power by the State.
25. Learned counsel for respondent-authorities have produced for our perusal the original records as well as copies of the relevant documents along with translation of the documents, which are in Kannada.
26. Learned counsel for the appellant, in his reply, contended that the acquisition of scheduled land had its genesis in the act of granting approval by SLSWCC under the provisions of the Facilitation Act, 2002. That SLSWCC had no jurisdiction to grant any such approval to the
project proposal of fifth respondent-Educational Trust as the application was not made by an "entrepreneur" and that the facilities to be added to an Educational Institution could not be considered to be an "industrial undertaking or other project". Drawing our attention to the preamble and scheme of the Facilitation Act, 2002, it was contended that only certain specified industries or services could seek approval unde^ the provisions of the Act, through entrepreneurs. That in the instant case, the Facilitation Act, 2002 has been abused by the fifth and sixth respondents with the active co-operation of the respondent-authorities. The undue haste with which the project was approved manifests a patently orchestrated effort. Drawing our attention to the manner in which the objections of the appellant, filed pursuant to the directions of this Court, were considered under Section 28 of the KIAD Act, it was contended that the State Government had decided to acquire the scheduled land pursuant to the approval of the project in the 74th meeting of the SLSWCC and therefore, now the issuance of a declaration under sub-section (4) of Section 28 of KIAD Act is a mere formality. He, therefore, contended that, having regard to the factual background of the issues which arise in these appeals, it is a fit case calling for intervention by this Court.
Point for consideration:
27. Having heard learned Senior Counsel as well as learned counsel for the respective parties and on perusal of the material or- record as well as relevant records, the point that arises for our consideration is, whether the approval accorded by the third respondent-SLSWCC to the project proposed by fifth respondent-Educational Trust is legal or vitiated. Answering the aforesaid point calls for an interpretation of the relevant provisions of the Facilitation Act, 2002 and the KIAD Act. The acquisition of the scheduled lands, though not a subject matter of these appeals, would nevertheless have to be considered in light of our findings on the point for consideration.
28. The facts are not in dispute in these appeals. A detailed factual background given in the initial part of this judgment obviates reiteration of the facts at this stage.
Re: Approval granted under the Facilitation Act, 2902.
Since approval of the project submitted by the fifth respondent in the 74th meeting of SLSWCC is called in question in these matters, at the outset, it would be useful to refer to the preamble and relevant provisions of the Facilitation Act, 2002, which are extracted as under: "Preamble of the Act:
An Act co provide for the promotion of industrial development and facilitation of new investments to simplify the regulatory frame work by reducing procedural requirements and rationalizing documents and to provide for an investor friendly environment in the State of Karnataka.
Whereas, it is expedient to provide for speedy implementation of industrial and other projects in the State by providing single point guidance and assistance to promoters,reducing the procedural requirements rationalizing documents and to ensure smooth operation;
xxx 2. Definitions:- In this Act unless the context otherwise requires, -
(ia) "Applicable Acts" means the Factories Act, 1948, the Boiiers Act, 1923, the Contract Labour (Regulation ana Abolition) Act, 1970, the Employees State Insurance Act, 1948v the Minimum Wages Act, 1948, the Payment of Bonus Act, 1965, the Payment of Wages Act, 1936,, the Maternity Benefit Act, 1961, Gratuity Act, 1972, the Equal Remuneration Act, 1976 and the Karnataka Shops and Commercial Establishments Act, 1961;
(ii) "Authority" includes a local authority or any statutory Board, Corporation or other authority established by the State Government and which are entrusted with the powers or responsibility to grant or issue clearances;
(iii) "Clearances" means grant or issue of no-objection certificate, allotments consents, approvals, permissions, registration, enrolments, licences and the like, by any Authority or authorities in connection with setting up an industrial undertaking in the State.
xxx
(vi) 'Entrepreneur' means a person or body of persons or a company, having majority investment or controlling interest in an industrial or undertaking.
(emphasis supplied)
(vii) Industrial undertaking' means an undertaking engaged in manufacturing or processing or both or providing service or doing any other business or commercial activity as may be specified by the State Government;
6. State Level Single Window Clearance Committee:-
(1) The State Government may by Notification constitute a single window clearance committee for the State called as the 'State Level Single Window Clearance Committee' consisting of such members as may be specified therein.
(2) The State Level Single Window Clearance Committee shall examine and consider proposal received from the entrepreneurs relating to industrial and other projects to be set up in the State with an investment of more than three crores rupees and less than rupees fiftv crores each.
(3) A member of the Committee shall personally attend trie meeting and in case he is unable to attend the meeting he may depute a senior level officer with a written authorization to take appropriate decision in the meeting.
x x x
(emphasis supplied)
29. The object of the Act is to promote industrial development and facilitation of new investments and to simplify the regulatory frame work by reducing procedural requirements and rationalising documents so as to provide an investor friendly environment in the State. In order to have a speedy implementation of industrial and other projects, the Act seeks to provide a single point guidance and assistance to promoters, reducing the procedural requirements, rationalizing documents and to ensure smoother operation of the process. The Act envisages three Committees viz., (1) State High Level Clearance Committee (Section 3); (2) State Level Single Window Clearance Committee (Section 6) and (3) District Level Single Window Clearance Committee (Section 9). Their constitution and functions are provided in Chapter II of the Act.
30. For a project having an investment of more than Rs.3.00 Crore ond less than Rs.50.00 Crore, sub-section (2) of Section 6 of the Act enables the State Government to constitute SLSWCC to consider proposals received from entrepreneurs relating to industrial and other projects to be set up in the State. The functions of that Committee are stated in Section 7 and its powers are stated in Section 8 of the Act. The SLSWCC would meet at such times and adopt such procedures as are required to transact its business. It would examine proposals for setting up industrial undertakings referred to in sub-section (2) of Section 6 and communicate its decision to the entrepreneur and the departments or authorities concerned within one week of the meeting. The decision of the Committee granting approvai for the projects placed before it is final and binding on the departments or authorities concerned, who are mandated to issue the requisite clearances within the stipulated time, subject to compliance by the entrepreneurs with regard to the applicable Acts or Rules made thereunder. KUM is the Nodal Agency at the State Level to undertake investment promotional activities and to render necessary guidance and assistance to entrepreneurs to set up industrial undertakings in the State. The functions of the Nodal Agency are stated in Section 13 of the Act. If a person is aggrieved by the decision of SLSWCC disapproving the project, he may within thirty days from the date of issuance of communication, appeal to the Appellate Authority.
(30a). The Facilitation Act is a piece of legisiat!on intended to assist entrepreneurs to get their proposals approved and cleared in a prompt and timely manner, so as to cut down red tapism and obviate procedural delays in getting statutory clearances. The SLSWCC is a high powered committee, which has to apply its mind at the time of considering the proposals of an entrepreneur for approval, whe^e a proposal requires acquisition of land, there has to be a greater application of mind. The object of the Act in constituting KUM and its various committees is to ensure that all statutory requirements are adhered to at the time of granting approvals or clearances for industrial projects. Where the approval of a project is questioned before Court, there has to be a strict and comprehensive scrutiny of the decision of KUM as its decision would be binding on various statutory authorities, which have to adhere to the recommendations and decisions of KUM. Thus, there has to be an independent application of mind by the members of the SLSWCC and not an abdication of its duties and responsibilities.
31. Sub-section (2) of Section 6 uses the express'on "entrepreneurs" relating to industrial and otr.er projects. 'Entrepreneur' is defined in Clause (vi) of Section 2 to mean a person or body of persons or a company, having majority investment or controlling interest in an 'industrial or undertaking". At this stage, it would be necessary to state that the word "or" between, the words industrial undertaking in this clause is an instance of printer's devil and the correct expression is "industrial undertaking" and not "industrial or undertaking". We say so after comparing the English version of the text of Clause (vi) of Section 2 of the Act with the original Kannada version. Clause (vii) of Section 2 defines "Industrial Undertaking" to mean an undertaking engaged in manufacturing or processing or both or providing service or doing any other business or commercial activity as may be specified by the State Government. Both these definitions are exhaustive and not inclusive. Therefore, an application to SLSWCC can be made only by an entrepreneur who has a majority investment or a controlling interest in an industrial undertaking as defined in Clause (vii) of Section 2 of the Act and not by anybody else. The expression "industrial undertaking" also does not have an expansive meaning though the words manufacturing, processing, providing service, doing business or commercial activity are included within that expression. In fact, those words are limited by the expression "as may he specified by the State Government". Therefore, the intention of the Act is not to extend the provisions of the Act to ail and sundry industrial undertakings. Thus, an industrial undertaking must comply with all the requisites under the definition before an entrepreneur makes an application to SLSWCC. Firstly, the undertaking must be engaged in manufacturing or processing or both or providing service or doing any other business or commercial activity and secondly, such manufacturing, processing, service, business or commercial activity must be specified by the State Government. The Notification dated 20/07/2006, issued in exercise of powers conferred by clause (vii) of Section 2 of the Act specify the undertakings as "Industrial Undertaking" for the purposes of the Act. The Notification has essentially two categories of industrial undertakings and they are as follows:
(1) All types of manufacturing Industries; and
(2) The following undertakings providing services:
(a) Information Technology, IT Enabled Services, Business Process Outsourcing;
(b) Bio-Technology Industries;
(c) Tourism Projects;
(d) Infrastructure Development Projects;
(e) Energy Generation and Distribution Projects.
The project of the fifth respondent definitely would noc come within the expression "manufacturing industry". As tar as "services" are concerned, there are five categories, which have been mentioned above. Education as a service does not find a place therein. Learned Senior Counsel appearing for fifth and sixth respondents contended that education as a service could be read into the expression "Infrastructural Development Projects" and therefore, the use of that expression in the Notification issued by the State Government is on account of the expression "other projects" finding place in sub-section (2) of Section 6 of the Act and therefore, the said expressions must be given an expansive interpretation by placing reliance on certain decisions.
32. Educational projeccs cannot be brought within the scope of the expression "other projects", and that expression does not find a place in the definition of industrial undertaking in ciause (vii) of Section 2 of the Act but finds a place in sub-section (2) of Section 6 of the Act. Thus, "educational services or projects" cannot be read into the expression "Infrastructural Development Projects" under Notification dated 20/07/2006. The reason is not far to see. Infrastructural Development Projects aid industrial undertakings by providing transport, communication, technology parks or township or those facilities, which aid business and commercial activity or manufacturing or processing activities, and such other service come within the scope of that expression. Therefore, unless both the aforesaid requisites are complied with, it cannot be read within the scope of the expression industrial undertaking. Thus, the definition of industrial undertaking under the Act cannot have an expansive meaning, as contended by the learned counsel for the respondents The legislative intention is to extend the benefit of the Act only to certain kinds of industrial undertakings, which are specified by the State Government. However, learned counsel for the respondents m unison contended that sub-section (2) of Section 6 uses the expression "relating to industrial and other projects". Therefore, "other projects" would require a wide interpretation. Such an interpretation cannot be given to the expression "other projects" as the definition clause itself is restrictive in nature and not an inclusive one. If the interpretation as sought by the respondents was intended by the legislature, then the expression "projects" would have found a place in the definition of industrial undertaking. In that event, a project which is not industrial in nature, i.e., even if it is unrelated to manufacturing or processing or providing service or doing any business or commercial activity would have come within the scope of the definition of industrial undertaking under the Act. Secondly, it would then not have been necessary to specify such projects bv the State Government. That however, is not the intention of the legislation. It becomes clearer on consideration of definition of "Applicable Acts" in clause (ia) of Section 2 of the Act. "Applicable Acts' means Factories Act, 1948, Boilers Act, 1923, Contract Labour (Regulation and Abolition) Act, 1970, Employees State Insurance Act, 1948, Minimum Wages Act, 1948, Payment of Bonus Act, 1965, Payment of Wages Act, 1936, Maternity Benefit Act, 1961, Gratuity Act, 1972, Equal Remuneration Act, 1976 and Karnataka Shops and Commercial Establishments Act, 1961. A reading of the names of the aforesaid Acts makes it clear that it relates to only manufacturing or processing or a business or a commercial activity or where there is a service activity, which is relatable to an industrial activity.
33. Thus, on a conjoint reading of the aforesaid provisions along with the Notification dated 20/07/2006 issued by the State Government would make it apparent that only certain types of industries specified under the aforesaid Notification would come within the scope of definition of industrial undertaking and it is only the "entrepreneurs" as defined under the Act who intend to commence such an industrial undertaking who can make an application to SLSWCC under Section 6 of the Act. Therefore, the fiftn respondent, which is an Educational Trust running a School can by no stretch of imagination come within the scope of definition of "industrial undertaking" or "other projects" as mentioned in sub¬section (2) of Section 6 of the Act. In fact, a perusal of the Notification dated 26.07.2004 issued under sub-section (1) of Section 6 of the Act constituting the SLSWCC also indicates that it does not make a provision for a member of the Department of Education to be on the said Committee. The committee consists of following persons:
| "1. | The Principal Secretary to Govt., Commerce and Industries Dept. Chairman |
| 2. | The Principal Secretary to Govt., Kannada and Culture Dept. Member |
| 3. | The Secretary, Food Processing and Post Harvest Technology Dept. Member |
| 4. | The Secretary to Govt., IT and BT Dept. Member |
| 5. | The Secretary to Govt., Dept. of Ecology and EnvironmentMember |
| 6. | The Joint Secrezary/Dy. Secretary, Urban Development Dept. Member |
| 7. | The Principal Secretary to Govt., Revenue Dept. Member |
| 8. | The Joint Secretary/Dy. Secretary, PWD Member |
| 9. | The Addl. Secretary to Govt., Infrastructure Development Dept. Member |
| 10. | The MD, KSIIDC, Member |
| 11. | The Managing Director, KSFC Member |
| 12. | The MD, KPTCL, Member |
| 13. | The Member Secretary, Karnataka State Pollution Control Board Member |
| 14. | The Commissioner for Industrial Development and Director of Industries and Commerce Member |
| 15. | The Commissioner for Tourism Member |
| 16. | The CEO and EM, KIADB Member |
| 17. | The Commissioner for Commercial Taxes Member |
| 18. | The Director of Factories and Boilers Member |
| 19. | The Director Technical Cell, Commerce and Industries Dept. |
| 20. | The Deputy Secretary to Govt., Irrigation Dept. Member |
| 21. | The Managing Director, Karnataka Udyog Mitra Member" |
34. In the matter of interpretation of statutes, reliance was placed on State of Tamil Nadu v. Kodaikanal Motor Union (P) Ltd.,- [AIR 1986 SC 1973], with regard to the approach of the Court. In that decision, it has been stated that Courts must always seek to find out the intention of the legislature from the language used, but language more often than not is an imperfect instrument of expression of human thought. In that decision, reference was made to Court Estates v. Asher [(1949) 2 All-ER 155], wherein, Lord Denning stated that when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. But he must set to work on the constructive task on finding the intention of Parliament and then, he must supplement the written word so as to give 'force and life', to the intention of the legislature. This passage has also been quoted in Ahmedabad Municipal Corporation v. Nilaybhai Fi. Thakore and another [AIR 2000 SC 114]. This approach of the Court would be necessary only when the Court finds that the statute is not happily worded or that there is no clarity in the words of the statute, which is not so in the provisions under consideration.
35. In the same vein, in Reserve Bank of India v. Peerless General Finance And Investment Co. Ltd. and Others [(1987) 1 SCC 424], the object of having an inclusive definition in a statute has been stated. Also, observations have been made with regard to interpretation of statute both textually as well as contextually. We respectfully agree with those observations but on applying the same to the present case, we have arrived at the aforesaid interpretation, having regard to the scope and object of the Facilitation Act, 2002.
36. It also needs to be noted that the matter is also in the realm of public law in as much as public authority has to act in public interest. In this context, elaborate submissions have been made on both sides with regard to the way in which fifth respondent's proposal was approved and sanctioned by the SLSWCC.
37. Under- Facilitation Rules, 2003, the procedure for holding meeting of the SLSWCC is envisaged. Rule 4 reads as follows:
"4. Meeting of the State Level Single Window Clearance Committee (SLSWCC) etc
(1) The State Level Single Window Clearance Committee (SLSWCC) shall meet ordinarily on 3rd Monday of every month at Bangalore or such other place as the Chairman may specify to transact business of the Committee.
(2) The Member-Secretary shall issue a meeting notice convening a meeting of the State Level Single Window Clearance Committee indicating the date, time and place of meeting. He shall enclose agenda to the meeting notice for transaction of business in the said meeting. He shall send notice of meeting atleast seven days in advance of the meeting. Member Secretary shall also send notice intimating the date, time and place of the SLSCC meeting to the entrepreneurs, whose proposals are included in the Agenda.
(3) He shall place a I! the proposals received before the committee for its consideration.
(4) The State Level Single Window Clearance Committee shall examine all the proposals placed before it and take appropriate decisions.
(5) The Member-Secretary shall prepare proceedings and obtain the approval of the Chairman of State Level Single Window Clearance Committee within seven days of the meeting.
(6) After the proceedings are approved, the Member Secretary shall communicate the decision of the committee within a period of seven days from the date of such approvalto the authorities or departments concerned and to the entrepreneurs concerned."
The object of Rule 4 is to give a clear intimation to the members of the SLSWCC as well as to the entrepreneurs about the date time and place of the meeting. They should also know about the proposals or projects to be considered at least seven days in advance. This is to enable the members of the SLSWCC to study the proposals and apply their mind independently. The SLSWCC has to collectively examine the proposals and take appropriate decisions and within seven days after the approval is granted to the projects, the entrepreneurs must be intimated of the same. The concerned authorities or departments must also be informed about the decision taken by the SLSWCC.
38. Assuming that SLSWCC had the jurisdiction to grant approval to the fifth respondent's project, we would have to examine as to whether the requisite procedure has been followed in the instant case. We have set out the chronology of events leading upto the approval given by the SLSWCC vis-a-vis fifth respondent's proposal. The same was submitted on 09/08/2002 to KUM. The said application stated that fifth respondent-Trust ss engaged in providing education to children arid that it needed one Acre of industrial land for its project (School 3uilding). The details of the promoters or directors of the project are stated in the application as follows: Smt.Rathnamma M., who is wife of sixth respondent, is the Secretary of the fifth respondent-Educational Trust; S.Venkatesh Babu is a BBMP Corporator, having fifteen years experience in manufacturing industry; M.Srinivas - sixth respondent is an MLA, Ex-Member of Parliament and Chairman of the Institution; Smt.Chandrika is a trustee; Smt.Sandhya is the Treasurer of the RMS International School; and B.R.Venkata Narayana Dixit is a Trustee. The nature of activity is shown as Educational Institution and the project proposal was for expansion of the existing institution with an investment of Rs. 16.00 Crore on the aforesaid survey numbers measuring 1 Acre 4 Guntas.
39. On 13/08/2012, the Managing Director of the KUM wrote to the Member Secretary, State Pollution Control Board, seeking his opinion on Lhe proposed project. According to learned counse1 for the appellant, that letter was dispatched only on 28/08/2013. It was stated that it was only on 13/08/2012 that the requisite fee was deposited by the respondent - Educational Trust. That 15/08/2012 was a Public Holiday; on 16/08/2012, the Managing Director of KUM wrote to the CEO and Executive Member of KIADB to give his opinion to acquire and allot the land in the aforesaid survey numbers to establish an "Educational Institution" project. That letter was also dispatched only on 28/08/2012. Prior to that, the proceedings of the 74th SLSWCC was held on 17/08/2012. According to learned counsel for the third respondent, invitation for that meeting was sent on 08/08/2012, stating that the notes and agenda would be sent shortly.
On 14/08/2012, invitation for the meeting was sent along with the notes and agenda. That agenda did not include fifth respondent's project. On 17/08/2012. during the course of 74th SLSWCC meeting, additional agenda was circulated and SI.No.8.25 of the agenda pertained to the fifth respondent - Educational Trust. Thus, without there being any prior consideration of that proposal as required under Rule 4 of the Facilitation Rules, 2004, the approval of the project has been given. There was no seven days prior notice about the fifth respondent's proposed project to the members of the SLSWCC. There was also no examination of the proposal by the members independently ana despite such lapses, the proposal of the fifth respondent - Trust was sanctioned at the 74th meeting of the SLSWCC on the same day after the additional agenda was circulated. Therefore, the approval of the fifth respondent's project in the instant case is in clear violation of the procedure contemplated under Rule 4 of the Rules.
40. On 17/09/2012, the Managing Director, KUM intimated the fifth respondent-Educationai Institution about the approval of the project and also about providing of "necessary escort service for the speedy implementation" of the project (Annexure-M). On the same day, Special Deputy Commissioner of KIADB wrote to Special Land Acquisition Officer-II, KIADB, Zonal Office about the decision taken to acquire land in the aforesaid survey numbers in the scheduled land and to submit supporting documents and to draft the Notifications under Sections 3(1), 1(3) and 28(1) of the KIAD Act (Annexure "N"). These Notifications were assailed in Writ Petition Nos.268-270/2013 fiied by the appellant.
41. In order to consider the argument of the appellant's counsel with regard to legal malafides and colourable exercise of power, we would have to consider the aforesaid aspects in light of the relevant records made available to us.
42. Karnataka Udyog Mitra, representing respondent No.3 has made available photocopies of Notes and Orders with regard to the fifth respondent's project proposal. On 12/09/2012, it is noted that the 74th SLSWCC meeting proceedings were placed for perusal and approval of intimation letter was sought. On 06/11/2012, the Noting at SI.No.11 is as follows:-
"11. M/s. Century Metal No. 10/1, Lakshrninai ay ana Complex, Palace Road, Banga!ore 52, has Informed vide its letter dated 18/10/2012 that Sy. No. 18/2/316, 18/2C1, 18/2B2 and 19/3B of Konanakunte Village, Uttarahaili rlobli, Bangalore South Tq., Bangalore Urban District which was approved in favour of M/s. RMS Educational and Cultural Trust in 74th SLSWCC meeting held on 17/8/2012 was purchased by them vide their Absolute Sale Deed vide No.BNG(U)JPN/3547/29 dated 12/10/2007 and submitted sale deed copy, BBMP khatha, they also informed that they have taken building plan approval from BBMP to construct residential layout. As such we may inform KIADB to insist consent from land owners for acquisition, the Co also requested to withdraw the approval given to RMS Educational Trust. As such file is put up for perusal and approval."
43. Second respondent-KIADB, has also made available the file notes as well as translated version. The translated Notes at SI.Nos.1, 6, 44, 45, 46, 47, 60, 63 are relevant and are extracted as under:-
| 1) | Received E-mail message dated 15/06/2012 from the Principal Secretary, attaching the request letter of MLA of Rajarajeshwarinagar constituency requesting to acquire an extent of lands measuring 0-29 guntas in Sy.Nc.18/2B2; 0-10 guntas in Sy.No.18/2Blb and 0-09 guntas in Sy.No.18/2Cl, in all 1 Acre of Konanakunte village for the purpose of school ground of RMS International school and to submit a report in this regard.Perused the same, we may inform the project proponent to obtain project clearance from SHLCC/SLSWCC. Draft letter prepared in this regard is placed for perusal and approval. Sd/- 15/06/2012 XXX |
| 6) | Placed letter dated 21/07/2012 of RMS International school addressed to the Hon'ble Minister of Large and Medium Scale Industries, G of K., requesting for acquisition of Lands measuring 0-29 guntas in Sy.No.18/2B2; 0-10 guntas in Sy.No.18/2Blb and 0-09 guntas in Sy.No.18/2Cl, in all 1 Acre of Konanakunte village towards the southern side of this lands RMS School is situated. The Hon'ble Minister has forwarded the same with a note to consider the acquisition request of 1 Acre of land for the school. In pursuance of the E-mail message dated 15/06/2012 of the Prl. Secretary, on 16-06/2012, a letter has been addressed: The same may be perused at Pages 8 and 9. If approved the matter can be placed before the Board, For perusal and Orders Sd/- 30/07/2012 XXX |
| 44) | As per the proceedings SLSWCC in its 74th proceedings held on 17/08/2012, as approved the project of M/s RMS International and Cultural Institute for acquisition and allotment of lands in Sy.l8/2Blb; 18/2B2; 1S/2C1 and 19/3B for an extent of 1 Acre 04 guntas for the purpose of educational institution as a single unit complex (SUC) |
| 45) | As per SLSWCC proceedings, the Spl.LAO has submitted proposal on 12/10/2012 and 16/10/2012. It is reported that, the subject lands having been duly converted ana registered as BBMP katha Nos.197/375 for an extent of 47916 Sq.ft. and submitted Notifications U/Sec: 3(1), 1(3) and 28(1) of the KIAD Act. The company has deposited 40% of the tentative cost of Rs.83,77,600=00 vide receipt No.31998 dated 19/10/2012, and entered into an agreement on 20/10/2012. |
| 46) | M/s.Century Central has written a letter on 18/10/2012, with documents to the KIADB and Karnataka Udyoga Mitra communicating that the BBMP has sanctioned plan for residential complex in respect of the subject property on 28/08/2012. |
| 47) | In view of the above, and as per the report submitted by the Spl.LAO, we may submit draft Notification to acquire an extent of land measuring 47916 Sq.ft., U/Sec 3(1), 1(3) and 28(1) along with the contents of the representation given by M/s century central to the Govt. For perusal and order. Sd/- 20/10/2012 XXX |
| 60) | Placed the Govt, letter dated 03/12/2012 for perusalM/s.Century central have raised objection stating that, the property proposed for acquisition is in residential zone as such without obtaining change of land use starting of a education institution cannot be taken up. The same may be considered at tr.e time of enquiry under Section 28(3) of the Act. Therefore, letter prepared addressed to Spl.LAO- 2, to proceed as per the directions of the government is placed for perusal and approval. Sd/-13/12/2012 XXX |
| 63) | Govt. Letter dated 28/01/2013 is piaced for perusal. Along with a letter the request of the M/s Century Central is enclosed requesting to drop the acquisition proceedings relating to property bearing BBMP Khata No. 197/375, 19, 382, Sy.No.18/2B, IB, 18/2B2, 18/2C1 and 19/3B of Konanakunte Village measuring 01 Acres 04 Guntas. The Government has also sought the copy of the writ petition Nos.47552- 553/2012. The Copy of the said letter has been given to LCO. With regard to request of the Company for deletion of the land is forwarded to SPL.LAO-2 for perusal and approval. Sd/- 08/02/2013 |
"Subiect: Issue of Preliminary Notification for 1-04 Acres of land in Konanakunte Village, Bangalore South Taluk, Bangalore Urban District in favour of M/s. RMS International School for Educational purpose.
2) In the 74th S/.S1/1/CC meeting held on 17/08/2012 it has been decided to allot 1-04 Acres of land in Sy.No: 18/2B1B, 18/2B2, 18/2C1, 19/3B of Konanakunte village, Bangalore South Taluk of Bangalore Urban District to M/s. RMS International School for their educational purpose (Page:85).
3) Is per the decision of SLSWCC the Special Land Acquisition Officer has conducted spot inspection of the area in the above mentioned Sy.Nos. and has reported that these lands have been converted and Khatas have been registered in Bruhat Bengaluru Mahanagara Pa I ike vide property No: 197/375 and also has submitted a proposal to issue preliminary Notification under Section 3(1), 1(3) and 28( 1) for this area totaling 47916 Sq. Ft.
4) The company has entered in to an agreement in the prescribed format with the Board for the proposed acquisition process of the land and also has deposited 40% of tentative land acquisition cost including the service charges of the Board on 19/10/2012.
5) In the meanwhile M/s. Century Central in their representation dated 19/10/2012 duly enclosing a few documents has addressed to the KIADB and Karnataka Udyog Mitra duly requesting not to acquire the said property since approval for the sketch for construction of Residential Complex in the property of the said Sy.Nos has been obtained on 28/08/2012 (Page: 81 to 83). But the Special Land Acquisition Officer while submitting the proposal to Government for issue of Preliminary Notification under Section 3(1), 1(3) and 28(1) of KIAD Act for acquisition of a total of 47916 Sq. Ft. of property bearing No: 197/375 of Konanakunte Village duly stating that suitable action as per rules on the said representation will be taken while issuing order under Section 28(3) after issue of notice under Section 23(2).
6) On scrutiny of the proposal of the KIADB, M/s. Century Central have submitted representation duly expressing their objections for the proposed land acquisition as per the decision of SLSWCC. They (M/s. Century Central) have stated that they have Sale deed and Bruhat Bengaluru Mahanagara Palike Khata in their name and have also obtained sanction for construction of Residential Complex in the said land from Bruhat Bengaluru Mahanagara Palike on 28/08/2012. At present this land is a private land it has not been mentioned in the proposal whether any consent of the land owners of the said lands has been obtained. This area has been earmarked as Residential Area. In view this change of land use must be obtained.
7) In view of the above points, CEO and EM. KIADB may be requested to re-examine again and submit a detailed proposal to the Government.
Senior Assistant
(ID Section)
2/11/2012
8) Additional Secretary}
At page 86, the Land Acquisition Officer has noted that the acquired land falls in the Residential Zone. Hence, it is appropriate to inform, to obtain change of land use from the Competent Authority.
9) And also M/s. Ceniuiy Central who have expressed their objections for the scheme in this iana has stated that this land is in their name through sale and BBMP has sanctioned approval on 28/08/2012 for construction of Residential Complex.
In view of these points, it is felt appropriate to re-examine the present land acquisition process. For orders.
Sd/-
Additional Secretary
02/11/2012
10) Principal Secretary}
PL discuss
Sd/-
Principal Secretary
03/11/2012
11) Additional Secretary}
Discussed.
The Principal Secretary has informed that in view of the discussion held with an Officer of the Planning Department, educational institution can be started without obtaining change of land use though the land acquired has been declared as Residential Zone. Even then, the CEO, KIADB may be instructed to ensure this point once again before submitting proposal for issue of Final Notification.
12) The point in Para 9 may be considered while Land Acquisition Officer conducts enquiry under Section 28(3).
13) Hence, may be submitted to the Hon'ble Minister for Large and Medium Industries for approval of the Preliminary Notification at Pages 97-98 as proposed by the CEO, KIADB subject to the condition of ensuring after enquiry the points at Para 11, 12 before Final Notification. And also, sanction may be given for publishing the Notification in the Special State Gazette.
Sd/-
Additional Secretary
03/11/2012
14) Principal Secretary }
Paras: 11 to 13 may be perused. File submitted for approval of Para: 13.
Sd/-
M.N. Vidyashankar, IAS,
Principal Secretary to Government,
Commerce and Industries Department
Bangalore
03/11/2012
15) Hon'ble Minister for Large and Medium Industries }
Para: 13 is approved
Sd/
(Murugesh.. R. Nirani),
Minister for Large and Medium Industries,
04/11/2012"
44. Before pronouncing on the validity of the approval of the project proposal submitted by the fifth respondent - Trust, it would be relevant to dilate on the argument made on behalf of the appellant relating to colourable exercise of power, mala fides and abuse of discretion.
45. It is trite that when discretionary power is conferred on an administrative Authority, it must be exercised in accordance with law. There are several forms of abuse of discretion, e.g., exercise of power for a purpose different from the one for which the power was conferred or for an improper purpose or in bad faith or on irrelevant considerations. Sometimes, these various forms of abuse of discretion may overlap. If an act complained of is without jurisdiction or is in excess of authority conferred by the statute or there is an abuse or misuse of power, the Court would interfere. In such circumstances, the Court can interfere by enquiring into the truth of allegations leveled against the authority and grant appropriate relief to the aggrieved party. While exercising the power of judicial review, Courts have a duty to ensure that the acts of an authority are within the four corners ov laai, having regard to the object of the statute.
46. In Shri Sitaram Sugar Co. Ltd. v. Union of India (AIR 1990 SC 1277), Hon'ble Supreme Court has stated that a repository of power acts Uftra vires either when he acts in excess of his power in the narrow sense or he abuses his power oy acting in bad faith or for an inadmissible purpose or with gross unreasonableness. An instance of abuse of discretion is when an authority exercises power where such power does not exist in it. Similarly, an administrative authority, which exercises power beyond the limits of the statute would be acting in ultra vires the statute and the action is vitiated. This question would depend upon the facts and circumstances
in each case and can be decided having regard to the facts of the case.
47. It is difficult to precisely articuiace the concept of mala fide. It may mean want of good faith, improper or oblique motive or dishonest intention [de Smith, Judicial Review of Administrative Action (1995) 553-556]. In other words, no administrative authority can be allowed to act in bad faith or contrary to the requirements of a statute or to exercise discretion to achieve an ulterior object, which is foreign to the statute. As held in Jaichand Lai Sethia v. State of West Bengal [AIR 1967 SC 483],by the Horr'ble Supreme Court, if the power conferred by the statute has been utilized for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy, it is an instance of mala fide exercise of power.
48. According to "Administrative Law", by Justice C.K.Thakkar and Mrs.M.C.Thakker - Second Edition, "Malice" or "mala fides" is of two types (1) express malice or "malice in fact" and (2) implied or legal malice or "malice in law". Mala fides violating the proceedings may be factual or legal. The former is actuated by extraneous considerations, whereas the latter arises where a public authority acts deliberately in defiance of law, may be without malicious intention or improper motive. Thus, while dealing with the plea of mala fider two questions would arise: (1) whether there is a personal bias or oblique motive; and (2) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of power [Slate of Bihar v. P.P.Sharma (AIR 1991 SC 1260)].
49. The Hon'ble Supreme Court has, in Jaichand Lai (supra), stated that mala fide exercise of power does not necessariiy imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended.
50. In this sense, the Hon'ble Supreme Court has equated mala fide exercise of power with ultra vires exercise of administrative power. However, malafides can be a distinct ground for quashing administrative action apart from ultra vires. Two decisions of the Hon'ble Court, where mala fide exercise of power have been quashed, can be cited in the context of the present case. One is C.S.Rowjee v. State of Andhra Prasad [AIR 1964 SC 962] and the other is State of Punjab v. Gurdial Singh [AIR 1980 SC 319]. The latter case is one arising from land acquisition proceedings where acquisition of land was struck down on account of mala fides.
51. Also, there is a distinction between mala fide, malice or exercise of power by an authority by taking into account irrelevant or extraneous consideration. Whether an action is mala fide or not, would depend upon the facts and circumstances of each case but the factors would be pertinent in determining whether decision is mala fide or motivated on improper considerations and the circumstances in which the decision is taken and considerations which have entered into in taking the decision [State of M.P. v. Nandalal Jaiswal (AIR 1987 SC 251) ].
52. On the other hand, if a statutory power conferred on an authority is exercised for a purpose which is contrary to the statute, then it is an exercise of power outside the law for an extraneous or collateral purpose and the decision is liable to be set aside. When exercise of power is for a collateral purpose, there may be no malice or oblique motive involved but the action of the authority would not be bona fide, where statutory power is exercised for a collateral purpose which is sometimes termed as colourable exercise of power, where there is extraneous consideration. Sometimes, colourable exercise of power is expressed as fraud on power. This revolves on the competency of a particular authority to act under a particular statute. When an authority exercises statutory power ostensibly for the purpose for which it is conferred but in reality for some other purpose or an alien purpose, then it is a case of colourable exercise of power. Some times, it would be difficult to draw a line between mala fide exercise of power and colourable exercise of power. Similarly, it is difficult to distinguish between improper or collateral exercise of power on the one hand and colourable exercise of power on the other hand. There are instances where these expressions are used interchangeably.
53. In the facts of the present case, it is noted that the sixth respondent had requested KIADB for acquisition of the scheduled iand for the purpose of play-ground of the School of the fifth respondent - Trust, by email dated 15/06/2012. The latter had in fact advised the sixth respondent to obtain project clearance from the third respondent. On 21/07/2012, the school had addressed the letter to the then Minister of Large and Medium Scale Industries, Government of Karnataka, requesting for acquisition of the scheduled land. That letter was also forwarded to KIADB. It is pursuant to the advice of KIADB that the fifth respondent approached KUM and the project proposal was forwarded to KUM.
54. Although, application of the fifth respondent made to KUM was dated 09/08/2012, processing fee of Ps.30,000/- was remitted on 14/08/2012. In the Executive Summary of the project proposal prepared by KUM submitted by fifth respondent, the lands are shown to be in an industrial zone, whereas, the lands are actually converted for residential purpose. 15/08/2012 being Independence Day, was a public holiday. Even without the fifth respondent's project proposal being part of the agenda, circulated to the members of SLSWCC prior to the date of the 74th meeting, it was made part of additional agenda circulated on the date of the meeting and the project was approved. Thus, project proposal submitted on 14/08/2012 by fifth respondent was approved by KUM on 17/08/2012, with an intervening National Holiday. The file notes of KUM, KIADB as well as the State Government, squarely indicate that the approval of the project of fifth respondent in the 74th meeting was the basis for initiating acquisition of the scheduled lands. The manner in which the project proposal of fifth respondent was approved by SLSWCC makes apparent the abusive role played by sixth respondent. In fact, right from June 2012, sixth respondent had been in communication with various authorities, including KIADB, for the purpose of acquisition of the schedule lands. It is in fact, KIADB which advised sixth respondent to approach KUM to get fifth respondent's proposal approved and then to seek acquisition of the schedule lands. Therefore, the very genesis of the acquisition of the schedule lands is in the approval of fifth respondent's project on 17/08/2012.
55. The notings in the Government records clearly lead to an unambiguous inference that the concerned authorities abused the jurisdiction and discretion vested in them in approving the fifth respondent's project and their action was illegal. The exercise of power by KUM was not only ultra vires the Facilitation Act, 2002 but also, a clear case of mala fide exercise of power and also colourable exercise of power. In fact, the expression fraud on power which is used when power is exercised by an authority in the absence of any power being conferred on it also squarely applies to the present case,
56. In the instant case, the object of acquisition was to provide a play ground and possibly, other facilities for a private school run by the fifth respondent - Educational Trust. The acquisition is pursuant to the approval of the project granted by SLSWCC on 17/08/2012. It is already discussed how that approvai granted by third respondent - SLSWCC, is illegal and is an instance of colourable exercise of power and therefore vitiated. Having regard to the spectrum of facts in this case and the exercise of power by various authorities, it is necessary to consider the legality of the very initiation of acquisition of the scheduled land under the provisions of the KIAD Act. A perusal of the Notifications issued by the first respondent clearly indicate that the approval of the fifth respondent's project at the 74th meeting of SLSWCC is the basis for initiating acquisition of the scheduled lands which is found to be illegal.
57. Apart from the fact that KUM and SLSWCC had no jurisdiction to grant approval to fifth respondent's project, the validity of the initiation of acquisition of the scheduled land could also be examined from another angle i.e., under the provisions of the KIAD Act.
Re: Initiation of acquisition under KIAD Act:
58. The KIAD Act is a special enactment made for securing the establishment of industrial areas in the State and to promote orderly development of industries therein, through the KIADB. The objects and relevant provisions read as under:
"An Act to make special provisions for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein, and for that purpose to establish an Industrial Areas Development Board and for purposes connected with the matters aforesaid. Whereas it is expedient to make special provisions for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and the orderly development of industries in such industrial areas, and for that purpose to establish an Industrial Areas Development Board and for purposes connected with the matters aforesaid;
CHAPTER I
Preliminary
1. Short title extent and commencement:
(1) This Act may be called the Karnataka Industrial Areas Development Act, 1966.
(2) XXX
(3) This Act except Chapter VII shall come into force at once; Chapter VII shall come into force in such area and from such date as the State Government may, from time to time, by Notification, specify in this behalf.
2. Definitions: In this Act, unless the context otherwise requires,-
(1) "Amenity" includes road, supply of water or electricity, street lighting, diainage, sewerage, conservancy, and such other convenience, as the State Government may, by Notification specify to be an amenity for the purposes of this Act;
(2) "Board" means the Industrial Areas Development Board established under this Act;
(3) "Building"' means any structure or erection or part of a structure or erection, which is intended to be used for residential, industrial, commercial or other purposes, whether in actual use or not;
(4) "Deputy Commissioner" means the Deputy Commissioner of the district concerned, and includes any Officer specially appointed by the State Government to perform the functions of a Deputy Commissioner under this Act;
(5) "Development" with its grammatical variations means the carrying out of levelling, digging, building, engineering, quarrying or other operations in, on, over or under land, or the making of any material change in any building or land, and includes re-development and "to develop" shall be construed accordingly;
(6) "Industrial area" means any area declared to be an industrial area by the State Government by Notification which is to be developed and where industries are to be accommodated and industrial infrastructural facilities and amenities are to be provided and includes an industrial estate:
(7) "Industrial estate" means any site selected by the State Government where factories and other buildings are built for use by any industries or class of industries;
(7a) "industrial infrastructural facilities" means facilities which contribute to the development of industries established in industrial area such as research and development; communication, transport, Banking, Marketing, Technology parks and Townships for the purpose of establishing trade and tourism centres and any other facility as the State Government may by Notification specify to be an industrial infrastructural facility for the purposes of this Act.
(8) XXX
(9) XXX
(10) XXX
3. Declaration of industrial areas: The
State Government may; by Notification, declare any area in the State to be an industrial area for the purposes of this Act.
(2) Every such Notification shall define the limits of the area to which it relates.
4. Alteration of industrial area: The
State Government may at any time, by Notification, exclude from any industrial area, any area, or include therein any additional area, as may be specified in such Notification,
x x x
CHAPTER IV
Functions and Powers of the Board
13. Functions: The functions of the Board shall be,-
(i) generally to promote and assist in the rapid and orderly establishment, growth and development of industries and to provide industrial infrastructural facilities and amenity in industrial areas, and
(ii) in particular, and without prejudice to the generality of clause (i), to,-
(a) develop industrial areas declared by the State Government and make them available for undertakings to establish themselves;
(b) establish, maintain, develop, and manage industrial estates within industrial areas;
(c) undertake such schemes or programmes of works, either jointly with other corporate bodies or institutions, or with the Government or local or statutory authorities, or on an agency basis, as it considers necessary or desirable, for the furtherance of the purposes for which the Board is established and for all purposes connected therewith.
14. General powers of the Board: Subject to the provisions of the Act, the Board shall have power,-
(a) to acquire and hold such property, both movable and immovable as the Board may deem necessary for the performance of any of its activities and to lease, sell, exchange or otherwise transfer any property held by it on such conditions as may be deemed proper by the Board;
(b) to purchase by agreement or take on lease or under any form of tenancy any land, to erect such buildings and to execute such other works as may be necessary for the purpose of carrying out its duties and functions;
(c) to provide or cause to be provided amenities, industrial infrastructural facilities and amenity and common facilities in industrial areas and construct and maintain or cause to be maintained works and buildings therefor;
(d) to make available buildings on lease or sale or lease-cum-saie to industrialists or persons intending to start industrial undertakings;
(e) to construct buildings for the housing of the employees of industries;
(f) (i) to allot to suitable persons premises or parts thereof including residential tenements in the industrial areas established or developed by the Board;
(ii) to modify or rescind such allotments, including the right and power to evict the allottees concerned on breach of any of the terms or conditions of their allotment;
(iii) to resume possession of premises or part thereof including residential tenements in the industrial area, or industrial estate in the manner provided in section 34B.
(g) to delegate any of its powers generally or specially to the Executive Member;
(h) to enter into and perform all such contracts as it may consider necessary or expedient for carrying out any of its functions; and
(i) to do such other things and perform such acts as it may think necessary or expedient for the proper conduct of its functions, and the carrying into effect the purposes of this Act.
xxx
Chapter VII
Acquisition and Disposal of Land
27. Application: The provisions of this Chapter shall apply to such areas from such dates as have been notified by the State Government under sub-section (3) of section 1.
28. Acquisition of land: (1) If at any time, in the opinion of the State Government, any land is required for the purpose of development by the Board, or for any other purpose in furtherance of the objects of this Act; the State Government may by Notification, give notice of its intention to acquire such land.
(2) On publication of a Notification under sub¬section (1), the State Government shall serve notice upon the owner or where the owner is not the occupier, on the occupier of the land and on all such persons known or believed to be interested therein to show cause, within thirty days from the date of service of the notice, why the land shcuici not be acquired.
(3) After considering the cause, if any, shown by the owner of the land and by any other person interested therein, and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit.
(4) After orders are passed under sub-section (3), where the State Government is satisfied that any land should be acquired for the purpose specified in the Notification issued under sub-section (1), a declaration shall, by Notification in the official Gazette, be made to that effect.
(5) On the publication in the official Gazette of the declaration under sub-section (4), the land shall vest absolutely in the State Government free from all encumbrances.
(6) Where any land is vested in the State Government under sub-section (5), the State Government may, by notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorised by it in this behalf within thirty days of the service of the notice.
(7) If any person refuses or fails to comply with an order made under sub-section (5), the State Government or any officer authorised by the State Government in this behalf may take possession of the land and may for that purpose use such force as may be necessary.
(8) Where the land has been acquired for the Board, the State Government, after it has taken possession of the land, may transfer the land to the Board for the purpose for which the land has been acquired.
59. The preamble and objects of the KIAD Act dearly pronounce that it is enacted for the specific purpose and object of (1) establishment of industrial areas, (2) promotion, establishment and orderly development of industries in such industrial areas and (3) for that purpose, establishment of a Board, and make special provisions for purposes connected with these matters. The central purpose and object of the Act is establishment and development of industries in industrial areas.
60. The scheme of the statutory provisions of KIAD Act, particularly relevant for the present purpose, indicates that the State Government is empowered to declare and delineate any area in the State to be an industrial area. For the purpose of securing establishment of industrial areas, promoting rapid and orderly establishment and development of industries and for providing industrial infrastructural facilities and amenities in industrial areas, a Board is established and incorporated under Section 5 of KIAD Act. The functions of that Board include promotion and assistance in orderly establishment, growth and development of industries and providing industrial infrastructural facilities and amenities in the industrial areas. The terms "industrial area", "'industrial infrastructural facilities" and "amenity" are defined for the purpose of KIAD Act. Where, for the purposes of carrying out its functions under the Act, land is required, the Board is empowered under Section 14 to purchase it by agreement or take it on lease. However, if any land is required by che Board or otherwise to be acquired, the State Government is first required to specify by notification the area in which the provisions of Chapter VII of the KIAD Act cou'd be availed for acquisition of land.
61. Section 3 states that by a Notification, the State Government may declare any area in the State to be an industrial area for the purposes of the Act defining the limitations of the area to which it relates. Section 4 enables the State Government to exclude from any industrial area, any area or include therein any additional area as may be specified in the Notification. In all cases where an area is to be declared as an industrial area, acquisition of land may not be necessary. But on declaring an area to be an industrial area, where acquisition of land therein becomes a necessity in that case, under sub-section (3) of Section 1 r/w Section 27 of the Act, a Notification would have to be issued making applicable Chapter VII which deals with acquisition of land to an area which is declared to be an industrial area. The issuance of a Notification under Section 3(1) r/w Section 1(3) need not be simultaneous as acquisition of land is not a necessary corollary to declaration of an industrial area under Section 3 of the Act.
62. It has to be noted that the notification of an area under Sections 1(3) and 3(1) of the KIAD Act is different and meant for different purposes. Unless and until an area is not specified by notification under Section 1(3) by the State Government, acquisition of land in that area cannot be undertaken, although the same area may have been declared by another notification under Section 3(1) to be an industrial area. "Industrial Area", by its definition is an area declared to be so, which is to be developed and where industries are to be set up and industrial infrastructural facilities and amenities are to be provided. For such industrial area, it is within the functions and powers of the Board to promote and assist in the rapid and orderly establishment, growth and development of industries and to provide industrial infrastructural facilities and amenities,
63. Acquisition of land under Section 28 of the KIAD Act is restricted to serve two specific purposes viz, (1) if, in the opinion of the State Government any land is required for the purpose of development by the Board or (2) if, in the opinion of the State Government any land is required for any other purpose in furtherance of the objects of the Act. Even as the objects of the Act are not defined in the Act itself, they have to be traced to the preamble and the statement of object. Therefore, acquisition of land for purposes other than its development by the Board can only be in furtherance of any of the aforesaid objects of the Act.
64. Acquisition of land for the purpose only of providing amenity or infrastructural facility without establishment and development of any industry and declaration of an area to be an industrial area only for that purpose, without reference to any industry or for any other industrial area even in the /icinity would amount to serving a collateral purpose rather than in furtherance of the objects of the KIAD Act. Therefore, where acquisition of land in exercise of the powers conferred by Section 28 of the KIAD Act is called into question, proximate relation between acquisition of land and furtherance of the objects of the Act has to be demonstrated and established. Mere declaration of an area to be an industrial area cannot be the basis for concluding that the acquisition of land in that area is for the purpose of in furtherance of the objects of the KIAD Act. An "industrial area" by definition has to be not only notified, but must have been notified with an intention of being developed and where industries are to be accommodated and industrial infrastructural facilities and amenities are to be provided. The term "development" is also defined in Section 2(5) of the KIAD Act to mean carrying out of leveling, digging, building, engineering, quarrying or other operations in, on, over or under land, or the making of any material change in any building or land, and includes re-development; and " to develop" has to be construed accordingly. Therefore, in an area where industries are not to be established or developed, there cannot be provided any infrastructural facilities and amenities. In other words, an area does not become an "industrial area", merely by a notification declaring it to be an industrial area under Section 3(1) of the KIAD Act. In order to be an "industrial area" proper for the purpose of the Act, besides the notification by the State Government, the intention and prospect of the area being developed where industries are to be accommodated and industrial infrastructural facilities and amenities are to be provided are essential ingredients. In absence of such requisite ingredients, in spite of a notification under Section 3(1), land comprised in the area will not require the status and attributes of "industrial area". In that view of the matter, acquisition of land under Section 28 of the Act could legally be initiated only if, in the opinion of the State Government (1) the land is required either for the purpose of development by the Board or (2) for any other purpose in furtherance of the objects of the Act, Where the intended acquisition of land falls in the seconu category, it has to be directly attributable to the objects of the Act, as enumerated hereinabove. Apparently, the objects of the Act do not include establishment of any stand-alone or isolated amenity or industrial infrastructural facility. And therefore, notification of any area under Section 1(3) does not by itself authorize the State Government to initiate acquisition thereof.
65. In exercise of powers conferred under sub-section (1) of Section (2) of KIAD Act, the State Government has specified certain amenities for the purpose of the Act, by Notification dated 13/03/1991. They are as follows:-
"Banks, Post Offices, Telephone and Telex Exchanges, Canteens, Fire Brigade and other service facilities including Xerox Facilities. Disposal of solid wastes and setting up effluent treatment plants. Tempo/Taxi Terminals, bus depot and automobile service centres. R and D Centres, Technical Institutes, Training Institutes, Educational Institutions, Power sub-stations and Diesel Power generating stations and water supply works. Hospitals, dispensaries, Hotels, Motels and Health and Holiday Resorts, Cinema Theatres. Inland container depot, Air Cargo Complex, Weigh Bridges, go downs and warehouses. Storage and outlets of LPG Cylinders, Chemicals, solvents, Petrol, Diesel, Kerosene and other oils.
Shops for vending of spare parts. Engineering goods, paints and other materials required by the industrial undertakings food and bakery products, etc.
Offices of the Organisations such as Karnataka Industrial Areas Development Board, Karnataka State Financial Corporation, Karnataka State Pollution Control Board, Karnataka Electricity Board etc., which monitor and contribute to industrial development and such other organizations for tne benefit of the industrial units.
Housing tenements including housing sites for the employees of industries."
66. On a conjoint reading of the definition of "amenity", "Industrial Infrastructural facilities and industrial area", what emerges is that in an area declared as an industrial area by the State Government, on which industrial sites are located, factories and other buildings are built for use by any industry, they form an industrial estate. In an industrial area, industrial infrastructural facilities as well as amenities may be provided. Infrastructural facilities are those facilities which contribute to the development of industries, such facilities may be provided within an area declared to be an industrial area where industries are set up or they may be provided outside the area earmarked for establishment of industries and land could be acquired for establishment of industrial infrastructural facilities for the benefit of the industrial area. Amenities can be provided in an industrial area, which are conveniences in an industrial area. Notification dated 13/03/1991 specifies certain amenities such as, Banks, Post Offices, Tempo/Taxi Terminals, Technical Institutes, Training Institutes, Educational Institutions, Hospitals, Dispensaries, godowns and warehouses; certain organizations such as, KIADB, Karnataka State Financial Corporation, Karnataka State Pollution Control Board, Karnataka Electricity Board etc., which monitor and contribute to industrial development; Housing facilities for the employees of industries etc,.
67. The dominant activity in an industrial area is industry. In the industrial area, industrial infrastructural facilities which contribute to the development of industries as well as amenities could be provided. When there is a declaration of an area to be an industrial area, the intention of the State Government is to develop industries in that area. Thus, industrial infrastructural facilities and amenities are incidental to the development of industries in an industrial area. In certain industrial areas, there may be need for several types of industrial infrastructural facilities and amenities, whereas, in certain other industrial areas, such a need may not arise at all. It would depend upon the nature or class of industries which are allotted in an industrial area. If acquisition of land becomes a necessity upon a declaration of an industrial area, then the acquisition must be in the opinion of the State Government for the purpose of development by the Board or for any other purpose in furtherance of the object of the Act. As noted earlier, the object of the Act is to secure the establishment of industrial areas and orderly development of industries therein. Therefore, when an area is declared to be industrial area, there must be orderly development of that area for which acquisition of land may be a necessity. Thus, the object of acquisition of land under Chapter VII of KIAD Act is for the purpose of establishing an industrial area and orderly development of industries in that area. The State Government must form an opinion that the acquisition of land is to fulfill any of the aforesaid purposes. The dominant purpose of acquisition of land must be to establish orderly development of industries or infrastructural facilities and/or amenities in an industrial area. Thus, establishing industry in an industrial area in an orderly manner, is the main intention of the Act and wherever necessary, acquisition can also be resorted to under Chapter VII of the Act. For the purpose of having an orderly development of industries in an industrial area, industrial infrastructural facilities and amenities could be required. Having regard to the need for having such facilities and amenities in an industrial area, acquisition of land may be resorted to. Thus, facilities and amenities in an industrial area are ancillary to the establishment of industries in an industrial area. Only those facilities and amenities which are specified under the Act, are ancillary and subservient to the industries that are established in an industrial area. Thus, acquisition of land must be for the purpose of establishing an industrial area within which, facilities and amenities may be provided for the efficient working of an industry or class of industries in an industrial area. Therefore, provision of facilities and amenities in an industrial area would have to be considered at the time of declaration of an area to be industrial area, as may be necessary and concomitant to an industrial area. Also, if an industrial area is already established, additional land may be acquired for providing industrial infrastructural facilities or amenities for the purpose of the industries in the industrial area. In such a case acquisition of land for the aforesaid purpose is to subserve the industries in the industrial area and is therefore incidental thereto.
68. But there cannot be acquisition of land per se for the purpose of establishing Educational Institutions, Banks or other amenities notified by the State Government in its Notification dated 13/03/1991, gazetted on 09/05/1991 under the KIAD Act. In other words, KIAD Act cannot be invoked to acquire land for the purpose of establishment or expansion of educational institutions or any other amenities notified in the Gazette per se and for that purpose, an area cannot be notified to be an industrial area. We are of the view that if only an educational institution is to be established, which calls for acquisition of land, KIAD Act cannot be invoked for that purpose. On the other hand, if in an industrial area, an educational institution is to be established as an amenity, such a mandate is permitted under the provisions of the Act. Thus, the dominant object of acquisition under KIAD Act, must be for establishing industrial areas and industrial infrastructural facilities in which provision of amenities would be incidental.
69. Thus, on a conjoint reading of the various provisions of the Act and the Notifications, what emerges is that acquisition of land for establishment of an educational institution per se is not permissible under KIAD Act. In the absence of any industry to be established in an area acquired under the KIDA Act, only an amenity as notified under that Act cannot be provided. Educational Institutions, Hospitals, Banks ana other amenities specified in the Notification per se do not come within the object of the KIAD Act. They can be established m an industrial area where industries are set up or infrastructural facilities are developed for which land may be acquired under the provisions of KIAD Act. In the instant case, KUM as well as the third respondent could hot have decided to invoke the provisions of the KIAD Act and particularly, Chapter VII to acquire the scheduled land for the purpose of expansion of fifth respondent's Educational Institution. We have already held that fifth respondent - Educational Trust or its project do not come within the scope of the expression "Industrial undertaking" or "other projects" respectively, under the provisions of the Facilitation Act, 2002. We also hold that KIAD Act, could not have been invoked to acquire the scheduled land for the purpose of expansion of educational activities of the fifth respondent - Educational Institution. The project of fifth respondent also does not come within the purview of definition of "Industrial infrastructural facility", nor an amenity, in the absence of there being development of industries in an industrial area.
70. We clarify that the aforesaid conclusion is not based on the manner of exercise of power under the provisions of the KIAD Act. But the very formation of opinion by the State Government for acquisition of the scheduled land under that Act being wholly and solely relatable to the recommendation of the third respondent - SLSWCC, which has been quashed for the reasons mentioned supra.
71. In P Natayanappa and Anr. v. State of Karnataka and Ors. [AIR 2006 SCW 4132], the Hon'ble Supreme Court, on noting the preamble of the Act, statement of objects as well as the reasons of the Amending Act, observed that the object of the Act is to secure establishment of industrial areas and orderly development of industries therein and to create facilities which contribute to the development of industries, which may include Technology Parks, Townships etc. Therefore, the infrastructural facilities must contribute to the development of industries in an industrial area. In the same way, an amenity would be of convenience for the efficient functioning of an industry in an industrial area. The corollary is that, an area cannot be declared to be an industrial area only for the purpose of expansion of an educational institution, although it is declared to be an amenity under the KIAD Act, in the absence of development of industries in an industrial area within which, the amenity is to be located. Thus, acquisition of land to establish or expand an educational institution as an amenity in the absence of there being any industries in the land sought to be acquired is not envisaged under the Act.
72. The Hon'ble Supreme Court has further observed in the aforesaid case that an entrepreneur or a company may give a proposal to the State Government for setting up an industry or infrastructural facility and the Government may thereafter, acquire the land and give it to the Board. It is also possible that after the land already acquired and developed by the Board, may be allotted to an entrepreneur or a company for setting up an industry or infrastructural facility. Therefore, setting up of an industry or an infrastructural facility must be the purpose and object of acquisition of land, in case land has to be necessarily acquired from private persons. Such acquisition can be at the instance of an entrepreneur or a company who proposes to set up an industry or an infrastructural facility in an area declared to be an industrial area by the State Government Therefore, acquisition of land for an educational Trust for the expansion of its activities cannot come within the scope of the expression "setting up an industry or Infrastructural facility".
73. We have perused the Notifications issued under the provisions of the KIAD Act, in the instant case. Notification issued under sub-section (1) of Section 28 of the Act dated 16/11/2012 states that "the Properties shown in theSchedule is required by the Government of Karnataka for M/s. RMS Educational and Cultural Trust, to establish an "Educational Institution". On the same day, Notification under sub-section (1) of Section 3 and sub-section (3) of Section (1) of the KIAD Act, are issued declaring the scheduled land as 'industrial area' and making applicable Chapter VII of the Act. The very declaration of the schedule land as an industrial area is vitiated as there can be no orderly establishment of any industry in 11,507 sq. mtrs. of land converted for residential purposes and surrounded by other residential and industrial plots and also fifth respondent's Educational Institution. Further, we have also held that acquisition of the scheduled land for the purpose of the expansion of the activities of the fifth respondent - Institution, is also vitiated as the fifth respondent - Institution is not an entrepreneur or an industrial unit or undertaking in terms of Facilitation Act, 2002.
74. Thus, what emerges is that, after identification of the scheduled land by the fifth respondent, the Governmental machinery has been abused anc the KIAD Act has been invoked for an improper purpose for acquiring the scheduled land by declaring it to be an industrial area, in the absence of there being any industrial activity therein. Thus, the acquisition of the scheduled land under Section 28 of the KIAD Act, is not for the purpose of furtherance of the object of the Act namely for the orderly establishment of industries. In fact, the scheduled land has been declared to be an industrial area under Section 3(1) of KIAD Act, only to enable the invocation of Chapter VII of the KIAD Act, at the instance of the fifth respondent. Otherwise, the State Government suo moto, may not have thought of declaring the scheduled land to be an industrial area for the purpose of establishing industries in an orderly manner. When the scheduled land has been converted for a residential purpose and is surrounded by residential as well as industrial lay outs and plots, which have been developed by the petitioner as well as the sixth respondent's family respectively, as per the sketch, the invocation of the provisions of the KIAD Act by the State Government is without application of mind to the aforesaid aspects of the matter and a gross abuse of the KIAD Act. This illegality is compounded by the fact that third respondent had no jurisdiction under the provisions of the Facilitation Act, 2002, to consider the application to approve the project of the fifth respondent under that Act on the basis of which the present acquisition has been initiated. Therefore, the action of the State Government in issuing Notifications under sub-section (1) of Section (3), sub-section (3) of Section (1) and sub-section (1) of Section 23 of the Act, are also vitiated as they are ultra vires KIAD Act.
75. It is on the basis of the recommendation made by SLSWCC that KIADB prepared draft Notifications under Section 3(1), 1(3) and 28(1) of KIAD Act and requested the fifth respondent to deposit 40% of the tentative cost and entered into an agreement with it on 20/10/2012. In the meanwhile, the appellant had written to KIADB and KUM bringing to their notice that BBMP had sanctioned a residential complex in respect of the scheduled land. KIADB placed the letter of the appellant along with the draft Notifications for perusai of the State Government. The relevant notings made in the file of the State Government reveal that it was aware of the representation dated 19/10/2012 made by the appellant to KIADB as well as KUM but nevertheless,, decided to go ahead with the acquisition or; the premise that objections of the appellant could be considered prior to issuing orders under sub¬section (3) of Section 28 of KIAD Act and thus, sanction for publication of the Notifications was granted.
76. In this context, order passed by the SLAO-II of KIADB passed under sub-section (3) of Section 28 of KIAD Act, pursuant to the direction issued by the learned Single Judge to the appellant to state its objections to the proposed acquisition of the schedule land, makes interesting reading.
77. In Annexure-I, to the order dated 30/09/201.3, the following points are noted:-
"At the time of enquiry under Section 28(3) the objections filed by the land owners have been examined as under the ordered as in Annexure 2
x x x x x
| 8 | To the north of this land RMS Institution has been running Internationa! Schooi and this Institution has been set up by Sri.M.Srinivas, Ex MLA. Presently his wife Smt. Ratnamma is managing the same | |
| 9 | The School does not have playground. This institution had been eyeing the land off the Objector, The Objector had applied to BBMP for construction on their land | As stated in the objection the school does not have playground. Children of this school is in need of playground and it is a public purpose |
| 10 | Smt. Ratnamma of RMS Internal School has written a letter dated 5/9/2011 to M.Srinivas to recommend to the Government for acquiring the land of the Objector for the purpose of playground | As per the record produced by the Objector it is true that the it was recommended for acquiring the land of the Objector |
| 11 | Sri.M.Srinivas wrote a letter dated 6/9/2011 to the Government and wrote on the same day a letter to KIADB to acquire the land of the RMS Education gave a request for the land which was considered by the Managing Director, Objector and give it to the School | RMS Education gave a request for the land which was considered by the Managing SLSWCC vide ietter No. Ka UM/SLS WCC/7 4/1/525/12-13 dated 12/9/2012 has informed that the oroject was approved at the meeting of the Committee held on 17/8/2012. Accordingly, land acquisition process has been undertaken.XXXDirector, |
| 12 | On 28/9/2011 the Special Land Acquisition Officer wrote a letter to the Deputy Commissioner seeking permission to acquire the land. The Deputy Commissioner on 13/10/2011 wrote a letter to the Government (Revenue Department) requesting to take permission from Single WindowXXX | |
| 14 | Government in its letter dated 5/11/2011 has intimated that land cannot be acquired for the purpose of school XXX | This direction is not applicable to KIADB. Acquisition for Educational Institution has been initiated under KIADB Amendment Act CI86 SPQ 96 dated 13/3/1991XXX |
| 27 | The Land of the objector is not Industrial Land and K.I.A.D Act is applicable for Industrial Lands only. Land cannot be acquired for the purpose of playground for the school.xxx | The definition of Services under the K.I.A.D Act includes Educational Institutions. This Educational institution is presently functioning and play ground for the children is included in the definition of services. This purpose is included in the definition of public purpose and as such Notification has been issued under section 3(1) of the K.I.A.D. Actxxx |
| 29 | The definition of Industrial undertaking under the Karnataka Industries (Facilitation) Act, 2002 under which SLSWCC has approved land acquisition does not fall within the definition of Industrial Area, hence Notification under Sec. 3(1) is challenged | As per Government Notification No: CI:86:SPQ: 90 dated 13/3/1991 notified in Karnataka Gazette dated 9/5/1991 part 4 2c (ii) Page No: 774, services includes R and D Centre, Engineering Institutions, Training Centres, Educational Institutions, Power sub stations, Diesel Generating Stations and Water Supply stations. Therefore the acquisition for the purpose of playground for education institutions falls within public ourpose. Therefore the objection is over ruled. |
| 30 | Land can be acquired only for public purpose the instant acquisition is against the ratio laid down in Hanume Gowda V/s. State of Karnataka (2005, Volume:1, KCCR 277) | On perusal of the citation is seen that acquisition for religious purpose does not amount to public purpose. The present acquisition is for the purpose of Educational Institution. Therefore the objection is over ruled. In the said judgment, the influence of politicians is discussed in the instant acquisition since it is for public purpose and for the benefit of the school children. The acquisition is in order. The Notification under Sec. 3(1) takes care of social justice and equality |
| 31 | Objector has cited decisions of the Hon'ble High Court of Karnataka in Hanume Gowda V/s. State of Karnataka and Others (2005-Vol:l, K.C. C.R:2770 and Shiva ram Udupa V/s Sharada Achar and Others (2002, Vol:l, KLJ: 25 and the Order of the Hon'ble Supreme Court in Somavanthi V/s. Government of Punjab) AIR:1963 SC 151 | In the above para the order in Hanume Gowda V/s. State ofKarnataka discussed.When the Order of Janardhan Shetty V/s. State of Karnataka in W. A,:2002. 2159 and 224/2000 in which the order of Somavanthi V/s. State of Punjab is cited were perused. It is seen that the acquisition was not for public purpose. This was totally far private purpose and it has been concluded that there was a misuse of powers. However in the instance case the land acquisition is for educational institutions and public purpose. Therefore this citation in not applicable |
ORDER
All the objections and citations provided by the objector have been perused. The present acquisition is for the play ground for a school and is therefore essential and involves public purpose. Therefore, the objections filed by the objector are over ruled and 1 direct continuation of land acquisition process under Sec. 28(4) of the K.I.A.D. Act.
I have passed this order exercising powers granted to me under Rule 14 of K.I.A.D (Amendment) Rules read with Sec. 28(3) of K.I.A.D Act of 1966.
This order was dictated to the Stenographer; typed, corrected and pronounced in the open court on 30/9/2013."
Thus, SLAO-II of KIADB concluded that the present acquisition was for a play ground for a school and was essential as it involved a public purpose.
73. We have perused the objections filed by the appellant under sub-section (3) read with sub-section (2) of Section 28 of the Act, relevant portions of which are extracted above, pursuant to the directions of the learned Single Judge and the manner in which the said objections have been considered. In Column 27 of the order passed under sub-section (3) of Section 28 of the KIAD Act, it is stated that running of an Educational Institution is for a public purpose and therefore, land has been notified under sub-section (1) of Section 3 of the Act, as an industrial area. Referring to Government Order dated 13/03/1991, passed under KIAD Act, it has been stated at Column 29 that Educational Institution is included therein and therefore, the- objection that the land does not come within the definition of "Industrial Area", is over-ruled. In the operative portion of the order, it is stated that the acquisition of the scheduled land is for a play ground to be used for a school and essentially involves for a public purpose. Hence, objections raised for acquisition are over ruled and a direction is issued for publication of the declaration under sub-section (4) of Section 28 of the KIAD Act. The consideration of the case of the petitioner under sub-section (3) of Section 28 is wholly vitiated as it is contrary to the provisions of the Act, for the reasons stated supra. The approach of the SLAO in considering the objections is vitiated as he thinks that acquisition of land for an educational institution under the provisions of KIAD Act is for a public purpose. The SLAO has totally ignored the objects and scope of KIAD Act and the fact that acquisition of land for an educational institution in an area declared to be an industrial area without development of any industry is ultra vires the provisions of the KIAD Act. Therefore, we hold that the very initiation of acquisition in the instant case is illegal, as it is contrary to the provisions of the KIAD Act and being wholly based on the decision of the third respondent, which did not possess jurisdiction to consider the proposal of the fifth respondent. Thus, exercise of power by the concerned authorities is ultra vires the provisions of the Act and hence, declared to be non est, illegal and vitiated.
79. Learned counsel on both sides have relied upon certain decisions in support of their arguments.
a) N.Venkatesha Gowda and Another v. State of Karnataka and Others [2011 (4) KLJ 79] and Pujari Pedanna v. State of Karnataka and Others [2009 (5) KLJ 556], have been cited to contend that the KIADB cannot act as a real estate agent and acquire land for the benefit of private persons de hors the object of the act. In the second case, it was held that acquisition of iand for private Engineering College was not in furtherance of the objects of the KIAD Act and without authority of law. In that case, 1 Acre 35 Guntas of land was sought to be acquired for housing P.G.Block, Electrical Block, Staff Quarters and Boys Hostei, for an Engineering College.
b) In Sri Ramachandrappa v. State of Karnataka and Others [2013 (1) KCCR 133 (DB)], the Division Bench delineated the scheme of the KIAD Act and having regard to the facts of that case held that acquisition was for the purpose of providing a road to a private entrepreneur. Para 16 and 17 are relevant and read as under:-
"16. Under the scheme of the Act, first Notification under Section 3(1) is to be issued declaring a particular area as an industrial area. It is thereafter, Chapter VII of the Act is to be made applicable by issuing Notification under Section 1(3) of the Act. It is thereafter, preliminary Notification under Section 28( 1) of the Act is to be issued. Therefore it follows that first, the Government should specify a particular area as an industrial area. It is not incumbent on the Government to acquire entire area shown as industrial area by issuing Notification under Section 28(1) of the Act. After specifying the area, depending upon the requirement, the Government has to issue Notification under Section 1(3) of the Act, making Chapter VII of the Act applicable to that area, which is proposed to be acquired. It is thereafter, by way of Notification under Section 28( 1) of the Act, the land proposed for industrial development is to be acquired.
17. If we keep this scheme in the background, in the instant case, admittedly 7 guntas of land in Yamalur Village and 26 guntas of land in Kempapura Village is notified for acquisition. Thus, in all 33 guntas of land is not sufficient for an industrial area. No industry can be set up in an area of 33 guntas of land. As is clear from the statement of the third respondent, the said land is acquired for the purpose of formation of a road to give access to his land measuring 4 Acres where he intends putting up Resort/Note I. Therefore this acquisition of land is not for public purpose. It is not for setting up an industrial estate and not for establishment of industrial area, for which the Act is enacted. Acquisition proceedings are initiated under the Act for the purpose of providing road to a private entrepreneur,"
c) Learned senior counsel appearing for KIADB, contended that the challenge to the acquisition made by the appellant is premature, as no declaration in the form of a final Notification has been issued under sub-section (4) of Section 23 of the KIAD Act and in support of that contention, reliance was placed on Geomin Minerals and Marketing Private Limited v. State of Orissa and Others [2013 (7) SCC 571], which judgment of the Hon'ble Supreme Court has been followed by this Court in Nandhi Minerals v. State of Karnataka and Others (W.P.No.18174/2004 disposed of on 29/11/2013).
The challenge to acquisition has been considered in these appeals in the context of the initiation of acquisition under the provisions of KIAD Act. The challenge to preliminary Notification issued under sub-section (1) of Section 28 of KIAD Act is not being considered from the point of view of procedural irregularity but from the point of view of the same being ultra vires KIAD Act, such a challenge as in the instant case is maintainable having regard to the glaring facts of the present case. Therefore, the aforesaid judgments are not applicable herein.
80. The summary of our findings/conclusions are as follows:-
1. That the expression "other projects" in Section 6 of the Facilitation Act, 2002, though does not find a place in the definition of "industrial undertaking" in clause (vii) of Section 2 of that Act, must be read contextually and having regard to the objects of that Act only such of those projects which are specified in the Notification dated 20/07/2006 issued by the State Government in exercise of the powers conferred by clause (vii) of Section 2 of that Act, could be considered for approval within the scope of that Act and not any other project
2. That the project proposal submitted by the fifth respondent - Educational Trust cannot be considered to be an 'industrial undertaking', within the meaning of clause (vii) of Section 2 of the Facilitation Act.
3. That only an 'entrepreneur', as defined under clause (vij of Section 2 of the Facilitation Act, 2002, is entitled to apply for grant of approval of an industrial undertaking under the provisions of that Act and not any one else.
4. That the fifth respondent - Educational Trust cannot be considered to be an "entrepreneur" within the meaning and definition in clause (vi) of Section 2 of the Facilitation Act, 2002.
5. In view of the conclusion Nos.2 and 4 above, KUM and third respondent - SLSWCC did not have jurisdiction to consider the project proposal of fifth respondent - Educational Trust.
6. Besides the conclusion at No.5 above,, there was a clear a violation of Rule 4 of Facilitation Rules, 2003 in considering the project proposal of respondent No.5 in the instant case.
7. That having regard to the facts of the present case and the chronology of events, there has been colourable exercise of power in the instant case and discretion vested in respondent No.3 has not been exercised in accordance with law and therefore, the grant of approval to fifth respondent's project is vitiated.
8. For ail the aforesaid reasons, the approval of the project of fifth respondent is illegal and hence, Annexure "M" and "N" have to be quashed.
9. The declaration of the scheduled land as an industrial area as well as the initiation of acquisition proceedings, based on the recommendation of third respondent - SLSWCC and Notifications issued under Section 3(1), 1(3) and Section 28(1) of the KIAD Act being vitiated, would have to be quashed.
10. That acquisition of land under the provisions of KIAD Act cannot be made only for the purpose of establishing "amenities" defined ana notified under that Act in the absence of there being any industries already established or to be established in an industrial area. In other words, in the absence of any industries or infrastructural facilities set up or to be set up or developed in an industrial area, land cannot be acquired for the purpose of establishing only an amenity.
11. Thus, the project of the fifth respondent - Trust cannot be construed as an "amenity" under sub-section (1) of Section 2 of KIAD Act, in the absence of any industry being set up in the scheduled land.
12. That the project of the fifth respondent - Trust also cannot be construed as an "industrial infrastructural facility" as defined under sub-section (7-a) of Section 2 of KIAD Act.
13. That the scheduled land could not have been acquired by the State Government as an 'industrial area' as defined in sub-section (vi) of Section 2 of KIAD Act, as no industry is being developed in that area, by the fifth respondent - Trust.
14. Thus, for all the aforesaid reasons, the invocation of the KIAD Act for the acquisition of the scheduled land for the purpose of the fifth respondent - Trust, is ultra vires the KIAD Act and is vitiated. The very initiation of acquisition being bad in law, the Notifications issued under KIAD Act would also have to be quashed.
15. The very initiation of acquisition under KIAD Act being vitiated, the exercise of power under sub-section (3) of Section 28 of KIAD Act, is also vitiated apart from being redundant and therefore, the order dated
30/09/2013, passed under sub-section (3) of Section 28 of the Act, would also have to be quashed.
81. In the result, the appeals are allowed by setting aside the impugned judgment in the following terms: -
1. The grant of aporoval by third respondent - SLSWCC to the fifth respondent - Trust at its 74th Meeting is quashed as being ultra vires the provisions of the Facilitation Act, 2002 and for the other reasons referred to above. Consequently, Communications dated 12/09/2012 (Annexure "M) and 17/09/2012 (Annexure "N"), are also quashed.
2. The initiation of acquisition under KIAD Act being vitiated, Notifications issued under Sections 1(3), 3(1) and Section 28(1) of that Act are declared to be unenforceable.
3. Consequently, order passed under sub-section (3) of Section 28 of KIAD Act is declared to be otiose/redundant.
4. Parties to bear their respective costs.