ORDER
Mohan Shantanagoudar, J.
1. Petitioners have questioned the Notification vide Annexure-'F' dated 17.1.2006 issued by the 3rd respondent- The Special Land Acquisition Officer under Section 3(1) of the Karnataka industrial Areas Development Act, 1966 (hereinafter referred to as 'KIAD Act' for short), as also the notices issued under Section 28(6) of the KIAD Act vide Annexures-'G-1' and 'G-2' dated 15.5.2008, calling upon the petitioners to hand over the possession of the acquired properties. The petitioners have also prayed in the writ petition that the South End Metro Railway Station may be located in Survey No. 6/1 and 6/2 of Dasarahalli (Jayanagar Extension). Alternatively, it is prayed that a direction be issued to the respondents to construct the South End Metro Railway Station as per the original approved design and alignment vide proceedings at Annexure-'A' on the property earlier earmarked for South tend Metro Railway Station.
2. The averments in the writ petition disclose that the petitioners herein are the owners of (a) C.T.S. No. 2458, B.B.M.P. Khata No. 16, Corporation Ward No. 50, V.V. Puram, Bangalore, East-West measuring 12.30 x 12.35 sq.mtrs. and North-South measuring 15.90 x 15.90 sq.mtrs, and (b) C.T.S. No. 831, B.B.M.P. Khata No. 75/2, Corporation Ward No. 50, V.V. Hiram, Bangalore, East-West measuring 9.90 x 9.90 sq.mtrs. and North-South measuring 12.50 x 12.60 sq.mtrs. The aforesaid two properties are some of the properties which are sought to be acquired for the purpose of mega project called 'Bangalore Metro Kail Project', along with other adjoining properties. The petition properties and the adjoining properties are being acquired for locating South End Metro Hallway Station. According to the petitioners, the report of the proceedings of Government of Karnataka dated 28.2.2004 vide Annexure-'A' fixes the place wherein the South End Metro Railway Station is to be established; the properties at Sl. Nos. 59, 60, 61 and 62 found in Annexure-'A' are the places earmarked earlier for establishing the South End Metro Railway Station and those properties do not include the petition properties. Later, at the behest of the owners of those properties and the Chief Secretary of the Government of Karnataka, the South End Metro Railway Station is now being shifted about 200 meters away from the earlier place, north side. According to the petitioners, there is no application of mind on the part of respondents 1 to 4 while preparing the report pertaining to Bangalore Metro Kail project; that while preparing the project report, the authorities have copied certain ingredients from other projects; and that the Mysore Tramways Act, 1906 cannot be made use of for establishing the Bangalore Metro Railway Station or to the acquisition of the land for establishing railway station; that the metro railways to be established by the respondents 1 to 4 under the provisions of Mysore Tramways Act, 1906, is improper; that the project in question will result in sound pollution and will generate lot of dust and vibration in the adjoining areas; that the metro rail project could have been established wholly underground and not above the ground as is being done for the present; that the South End Metro Railway Station is badly planned, inasmuch as, there are hospitals, schools, markets, commercial buildings etc., in the nearby vicinity and consequently, people are put to greater hardship; that there will be no place for parking of the vehicles, in case, if the station is established in the present location; that the State Government's property is vacant and is available in the nearby area i.e., just about 500 meters away from the properties in question and that the respondents are not making use of the same for establishing the station; that the design of the railway station is not ready as on this day; that the general public ought to have been consulted before starting the metro rail project; that the KIAD Act is not applicable, inasmuch as, metro rail is not an industry; and that the statement of objections filed by the petitioners to the preliminary notification are not effectively considered by the concerned authorities before passing the Final Notification under Section 28(4) of KIAU Act.
3. The writ petition is opposed by the respondents by filing their statement of objections. Sri Udaya Holla, learned Advocate General in his leading arguments submits that the place earmarked for establishing South End Metro Hallway Station is shifted just about 60 meters from the earlier place north side with a view to save the people from traffic and to save Bangalore Hospital which is one of the leading hospital of the area in Bangalore and in order to safeguard the interest of the patients; that if the station is established in the place as decided earlier, then, it would be very difficult for the ambulances and patients to enter the hospital and adjoining establishments; that the establishment of the railway station in a particular place is a policy decision taken by the respondents 1 to 4 based on technical and managerial advise; that the alternative proposals are also considered by the authorities while preparing the project report of metro railway; that the notices of preliminary notification are served on the petitioners, who appeared and filed their statement of objections; that the statement of objections filed by the petitioners are duly considered by the authorities and same are rejected; that the public need not be consulted while establishing the metro rail project, inasmuch as, the public representatives viz., elected representatives are consulted before establishing the metro rail project; and that the metro rail project will effectively tackle the problems relating to transport of the industrial workers, including general public and therefore the provisions of KIAD Act are applicable to the facts of the case. Sri Udaya Holla, further relies upon the judgment of this Court in the case of Lakshmi Builders v. State of Karnataka and Ors. Writ Petition No. 8288/2008 (LA-KIADB), disposed of on 9th February 2009, in support of his arguments.
4. As aforementioned, the petitioners have merely questioned the notification issued by the 2nd respondent-Board under Section 3(1) of the KIAD Act declaring the area in question as an industrial area and the notices issued by the acquiring authority to the petitioners to hand over the possession of the properties pursuant to the acquisition notifications. Thus, it is clear that the petitioners have not questioned the preliminary as well as final notifications relating to acquisition. The notices issued under Section 28(6) of the KIAD Act are only consequential to the final notification relating to acquisition. Since the final acquisition notification itself is not under challenge, the petitioners cannot question the notices issued to them under Section 28(6) of the KIAD Act for taking possession of the properties. The properties vest with the State pursuant to the final notification. Once the properties are vested in the State and award is passed, the State has right to demand possession from the erstwhile owners. Therefore, this Court does not find any ground to quash the notices issued under Section 28(6) of the KIAD Act which are questioned in this writ petition.
5. This Court does not also find any ground to interfere with the notification issued under Section 3(1) of the KIAD Act declaring the area in question as an industrial area. In this context, as aforementioned, it is argued by the petitioners that the provisions of KIAD Act are not applicable to the facts of the case. The said contention cannot be accepted. This Court while deciding Writ Petition No. 8288/2008 has clearly ruled that the provisions of KIAD Act are applicable to the project in question. The said order has attained finality. 1 respectfully agree with the said view taken by my learned Brother Judge who decided Writ Petition No. 8288/2008. Moreover, the metro rail which runs across Bangalore city North-South - East-West, will necessarily solve the problems relating to travel of industrial workers and other people at large in the city of Bangalore. The people will reach from one place to another place without any hassle. The project will assist the employees and workers who work during night hours. The load of traffic on roads will be reduced to a considerable extent.
Section 2(7-a) of KIAD Act deals with the definition of 'industrial infrastructural facilities'. The said definition clearly reveals that the industrial infrastructural facilities would mean the 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 centers etc., Thus, it is clear that the transport is one of the industrial infrastructural facility. Such a facility is being provided to the industrial workers, employees, officers and general public by implementing Metro Rail project. The Court can take judicial note of the fact that the Bangalore is a hub of Information Technology. Lakhs of workers have indulged in Business Process Outsourcing. They work day and night in shifts. Their problems of transportation will be solved in case if the project is completed. Thus, it cannot be said that the provisions of KIAD Act. are not applicable to the facts of the case. It is also relevant to note that the Division Bench of this Court in the case of H.N. Nanje Gowda and Anr. v. State of Karnataka and Ors. 1996 (3) Kar.L.J. 39 has ruled that the setting up of an airport is setting up of an industry and hence, acquisition of land for the airport is within the purview of KIAD Act. In view of the above, this Court is of the clear opinion that the setting up of a metro rail project, including setting up of metro railway station amounts to setting up of an industry and hence, the acquisition of land for the purpose of establishing the metro railway station is within the purview of the KIAD Act.
It is also relevant to note that the Division Bench of this Court in the case of Darshan v. State of Karnataka : ILR 1996 KAR 1241.
In the matter on hand, under the Land Acquisition Act, the lands could be acquired. So also the powers are conferred for the State under Karnataka Industrial Areas Development Act to acquire the lands. If under two enactments, lands could be acquired, power could be invoked under either of the enactments. If the State chooses to exercise the power under one enactment, unless it can be shown that such exercise of power is not authorised or is excluded by the provisions made in another enactment, the exercise of power will not become bad. ( see the Judgment reported in the case of Darshan v. State of Karnataka : ILR 1996 Kar 1241.
6. The tramways do not substantially differ in structure and working of the light railways. (See the judgment reported in the case of Shahdara (Delhi) Saharanpur Light Co. Ltd. v. Municipal Board and Saharanpur and Anr. reported in : AIR 1967 SC 1747). According to Section 3(5) of the Indian Tramways Act, 1886, 'tramways' means a tramway having one, two or more rails and includes any part of tramway or any siding, turnout, connection, line or track belonging to a tramway; any electrical equipment of a tramway; any electric supply line transmitting power from a generating station or sub-station to a tramway or from a generating station to a sub-station from which power is transmitted to a tramway etc., According to Stround's Judicial Dictionary - Vol.5 (Pages 2811 to 2813), 'tramway' means a system of transport used wholly or mainly for the carriage of passengers and employing parallel rails which (a) provide support and guidance for vehicles carried on Hanged wheels, and (b) are laid wholly or mainly along a street or in any other place to which the public has access. Under Section 3(5) of Mysore Tramways Act, 1906, 'tramway' means tramway or any part of tramway or any siding, turnout, connection, line or track belonging to tramway. From the above, it is clear that tramway means and includes tramway station also. Moreover, creative interpretation is to be adopted to give effect to the new technological advancement. Article 372 of the Constitution of India saves pre-constitutional enactments. Thus, the Mysore Tramways Act, 1906 is saved by virtue of Article 372 of the Constitution of India. By Clause 2 of Article 372, the President is, authorised to adapt existing laws; but the application of the existing laws is not conditioned by the making of adaptations or modifications in that law by the President. (See judgment reported in the case of M.G. Desai and Anr. v. State of Bombay : AIR 1960 SC 1312). Sections 4 and 5 of Mysore Tramways Act, 1906, authorises the State Government to construct the tramway on certain conditions. Section 7(3) of the Mysore Tramways Act deals with the acquisition of the land by the local authority which promotes tramway for the purpose of tramways. The State Government may under Section 7(2)(e) shall decide the space which shall ordinarily intervene between the outside of the carriageway on either side of a road whereon the tramway is to be constructed and the nearest rail of the tramway etc., Section 47-A of the Mysore Tramways Act, 1906 deals with the special provision in regard to tramways constructed by the State Government. It is relevant to note the said provision at this stage:
Section 47-A: (1) Notwithstanding anything contained in this Act, it shall be lawful for the state Government at any time:(a) to construct a tramway within any area to be worked by steam or other mechanical or electrical power;
From the above, it is revealed that the State Government at any point of time may construct the tramway within any area to be worked by steam or other mechanical or electrical power. In view of the same, it cannot be said that the metro rail project cannot be established under the provisions of Mysore Tramways Act, 1906. Thus, the argument of the learned Counsel appearing on behalf of the petitioners that the provisions of Mysore Tramways Act are not applicable, cannot be accepted.
7. The next contention that is canvassed by the learned Counsel for the petitioners is that the action of the respondents to shift the South End Metro Railway Station from the place earmarked earlier to the place wherein the petition properties are situated is mala fide, inasmuch as, the same is done to save the properties of certain wealthy and influential persons. The said contention also cannot be accepted, inasmuch as, respondent No. 4 in its statement of objections has specifically answered the said question. According to the respondents, the properties in question are being acquired for locating the South End Metro Railway Station for the benefit of public at large and as a part of integrated project. The decision with regard to the location of the said station is arrived at on the basis of detailed survey and plan. It is also submitted on behalf of the respondents that the earlier proposal of establishing South End Metro Railway Station would affect the very entry of ambulances and other vehicles carrying patients to nearby hospitals. It would also affect the general public in view of the movement of the number of vehicles inasmuch as the said place is nearer the busy South End Circle. Parking of vehicles also would be a problem as the vehicles cannot be parked near the circle. Hence, the station is shifted by about 60 metrs. north side i.e., away from the circle. By the said process, the number of properties to be acquired is reduced from 12 to 8.
Moreover, the report Annexure-'A' is only a proposal for fixing certain points for laying rails and setting up of railway station. Annexure-A makes it clear that the proposals can be altered depending upon the future need and advise of experts. Thus, the factors found in Annexure-A are not final. In implementing such a mega project, it may not be possible to fix a place finally at the initial stage itself. There are bound to be certain variations or changes from the initial proposals, as and when the work progresses. The Chief Secretary of the State after considering the material and practicability of implementing the project, seems to have recommended for change of site from one place to another by moving the station for about 60 mtrs. north side, that too, with the object of helping the patients approaching the hospitals and for avoiding heavy traffic in South End Circle. Therefore, the decision of the Chief Secretary of the State cannot be said be tainted with mala fides.
8. The decision to locate the station in a particular place is a decision taken based on technical and managerial advise. The same is normally not open to judicial review unless the action of the respondents in changing the location bristles with mala fides. This Court does not find mala fide intention on the part of respondents in shifting the place of railway station from one place to another. The earlier place was near busy South End Circle wherein large number of vehicles move. Moreover, establishment of railway station in the said place would have affected free movement of the ambulances and other carriages carrying patients to the nearby hospitals. As the respondents have taken into consideration various aspects in shifting the place earlier proposed for the establishment of railway station by 60 mtrs. north side, this Court refuses to interfere in the said decision. It is for the authorities concerned to decide the appropriate place for establishing the railway station. The Courts do not and cannot act as an appellate authority to examine the correctness, suitability or appropriateness of the decision which is based on technical advise. The Courts cannot interfere on the ground that the fairer and wiser alternative is available. On matters affecting policy and those that require technical expertise, the Court should show deference to, and follow the recommendations of the Committee which is more qualified to address the issues (see the judgments reported in the case of Tata Iron & Steel Co. Ltd. v. Union of India and Anr. : (1996) 9 Supreme Court Cases 709; and Directorate of Film Festivals and Ors. v. Gaurav Ashwin Jain and Ors. : (2007) 4 Supreme Court Cases 737. The suitability of the land and choice of this land to be acquired are to the satisfaction of the State Government. The Court will not interfere in such matters. (See the Judgments reported in the case of State of Punjab and Anr. v. Gurdial Singh and Ors. : (1980) 2 Supreme Court cases 471 and Subhashgir Khushalgir Gosavi and Ors. v. Special Land Acquisition Officer and Ors. : AIR 1996 Supreme Court 3169. The Court will also not interfere in the land acquisition process if the same is for infrastructural facility. In the matter of land acquisition for the public purpose, the interest of justice and the public interest should be taken into account. Even if the acquisition vitiates on account of non-compliance with some legal requirements, the personal interest may be compensated by awarding damages. Quashing of the acquisition is not only the mode of redressal. (See the judgment reported in the case of Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors. : AIR 1997 Supreme Court 1236. In this matter, this Court does not. find any error committed by the acquiring authority while issuing the acquisition notifications.
9. The contention of the petitioners that the alternative land belonging to the State Government is available in a nearer place and that the same should have been made use of by the authorities for establishing the railway station, also cannot be accepted. As aforementioned, it is for the concerned authority to decide the suitability of the place for establishing the railway station. The Court cannot render technical advise and direct the State Government or other authorities to establish railway station in any particular place. This question is also answered to by this Court in Writ Petition No. 8288/2008 cited supra.
10. Further contention of the petitioners that the statement of objections tiled by the petitioners are not duly considered by the acquiring authority before passing the final notification, also cannot be sustained, inasmuch as, the acquiring authority has considered the case of each of the petitioners and other similarly placed land owners and thereafter decided to issue the final notification by rejecting the statement of objections. The records maintained by the Karnataka Industrial Areas Development Board are produced before the Court which reveal that the statement of objections filed by the petitioners are duly considered.
11. The next contention of the petitioners is that the respondents ought to have established the underground metro rail project and not above the ground and that the metro rail project may result in sound and air pollution and vibration. Sri Udaya Holla, learned Advocate General opposed the said contentions by submitting that metro rail will run with the help of electricity and consequently, the same will not eminate much sound or pollute air. He further submitted that vibration also will not be caused.
It is for the Pollution Control Board or other appropriate authorities having jurisdiction to monitor and to give effective directions in future in case if the concerned authorities feel that the railway project eminates pollution. The question as to whether the metro railway should have been underground or not is again a policy decision based on the technical expertise. This Court will not interfere in such policy decisions.
12. Once the acquisition process is completed, the design of the railway station will be made ready. Neither the petitioners nor anybody insist the State Government or other authorities to prepare the design of the railway station within a particular time limit
13. As aforementioned, the petitioners have not questioned the acquisition notifications, which means that they have accepted the acquisition notifications. The notices issued under Section 28(6) of the KIAD Act are consequent to the final notification. Hence, the writ petition is liable to be dismissed as devoid of merits without going into other aspects. There was no need for the Court to advert to the points raised by the petitioners as regard to the reliefs claimed. However, this Court has proceeded to answer all the points raised by the petitioners in the interest of justice and equity.
In view of the above, this Court does not find any ground to grant reliefs in favour of the petitioners as prayed. The petitioners are not entitled to any relief in this writ petition.
Writ petition fails and accordingly, the same is dismissed.