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2003 Supreme(Kar) 269
Karnataka High Court
Narayana Setty - Appellant
Versus
State of Karnataka - Respondent
Decided On : 03-17-03
W.P. : 1564 of 2003
K.SHANTHARAJ, N.K.Gupta, R.N.NARASIMHA MURTHY, S.N.Keshava Murthy, T.R.SUBBANNA
Headnote:Change of land use for construction of STP
KARNATAKA TOWN AND COUNTRY PLANNING ACT, 1961 - Land Acquisition Act, 1894 - Sections 4(1), 5A, 6(1), 9, 8, 10, 17(4), 30, 31, Bangalore Metropolitan Region Development Authority Act, 1985 - Establishment of STP in residential zone -a huge tank located in the area -sewerage water let into it -water in the tank polluted -bad smell emanating from it -ground water around the tank polluted -STP proposed to set up near the tank -the sewerage water would be treated in the STP and then let into the tank -held, the STP is one of the civic amenities and intended to serve the public interest -hence should be permitted.
[N. Kumar, J.] - The STP is one of the civic amenities and is intended to serve the public interest. Domestic sewerage will be treated to the standards specified by the Pollution Control Board so as to avoid the same being let to K. R. Puram tank (Vengayanakere) directly without being treated. The domestic sewerage will not contain any hazardous toxic and poisonous solid. The ground water will not be polluted. The sewerage from the houses through the house connections will be collected by using the closed and buried pipes and linked to the nearby manholes provided with covers. It would be flowed by gravity through an engineered underground drainage system up to the plant. Thus, it ensures no leakages.
Cases Referred : AIR 1977 SC 183; AIR 1986 SC 2025; AIR 2000 SC 671; ILR 1986 Kar 1037; 1995 (4) KLJ 408; ILR 1990 Kar 390.
Followed: AIR 1996 SC 697; AIR 1984 SC 1020; AIR 1990 SC 671; ILR 1990 Kar 390.
Legality of invoking emergency provisions of the section
LAND ACQUISITION ACT, 1894 - Sections 17(4), 4(1), 5A, 6(1), 9, 8, 10, 30, 31 Bangalore Metropolitan Region Development Authority Act, 1985 - Section 10 -Town & Country Planning Act, 1961 -CDP and Notification dated 15-3-1996 -clause 5 -Land Acquisition for setting up of Sewerage Treatment Plant (STP) -invoking the emergency provisions of Section 17 -dispensation of enquiry under Section 5 -decision in AIR 1996 SC 697 followed -held, the invocation of emergency provisions justified.
[N. Kumar, J. ] - It follows for invoking the emergency clause, in the first place the land should be needed for a public purpose and secondly the emergency must be reflected in the need of the acquisition. The existence of urgency is a matter which is entirely based on the subjective satisfaction of the Government. The Courts do not interfere unless the reasons given are wholly irrelevant and there is no application of mind.
Cases Referred : AIR 1977 SC 183; AIR 1986 SC 2025; AIR 2000 SC 671; ILR 1986 Kar 1037; 1995 (4) KLJ 408; ILR 1990 Kar 390.
Followed: AIR 1996 SC 697; AIR 1984 SC 1020; AIR 1990 SC 671; ILR 1990 Kar 390.
Permission to establish STP in the residential zone.
BANGALORE METROPOLITAN REGION DEVELOPMENT AUTHORITY ACT, 1985 - Section 10 -Land Acquisition Act, 1894 -Sections 4(1), 5A, 6(1), 9, 8,10, 17(4), 30, 31,- Establishment of STP - Permission of BMRDA -not obtained -STP work started in pursuance to the directions of the High Court in a PIL -work in progress -petitioner not objecting to the same -held, in view of the urgency of the matter and the amount invested, the respondents should be allowed to obtain necessary permission so that the requirement of Section 10 of Act is also complied with.
[N. Kumar, J.] - In the instant case, in pursuance of the directions issued by the Division Bench of the Court in the Public Interest Litigation, the Government as well as the fourth respondent is setting up the S.T.P. in the acquired land. It is for the benefit of the public. Merely because they have not obtained the prior permission, the said construction cannot be prevented or construction put up so far could be ordered to be pulled down.
Cases Referred:
AIR 1977 SC 183; AIR 1986 SC 2025; AIR 2000 SC 671; ILR 1986 Kar 1037; 1995 (4) Kar. LJ 408; ILR 1990 Kar 390.
Followed:
AIR 1996 SC 697; AIR 1984 SC 1020; AIR 1990 SC 671; ILR 1990 Kar 390.
Failure in obtaining permission to establish STP may be condoned.
COMPREHENSIVE DEVELOPMENT PLAN (CDP) - Land Acquisition Act, 1894 - Sections 4(1), 5A, 6(1), 9, 8, 10, 17(4), 30, 31, Bangalore Metropolitan Region Development Authority Act, 1985 - Establishment of STP in residential zone -whether contrary to CDP? No. setting up of STP in the residential zone does not contravene the provisions of CDP.
[N. Kumar, J.] - The treated sewerage will be discharged into the tank. The water so let would be useful for agriculture, gardening and would be eco-friendly. A sewerage treatment plant in the aforesaid circumstances has to be necessarily in a Residential Zone and adjoining the tank. Therefore, the apprehension of the petitioners that the establishment of a S.T.P. in a Residential Zone would be a health hazard to the residents, in particular to the petitioners, is misconceived and is based on imaginary apprehension unsupported by any scientific investigation.
Cases Referred: AIR 1977 SC 183; AIR 1986 SC 2025; AIR 2000 SC 671; ILR 1986 Kar 1037; 1995 (4) KLJ 408; ILR 1990 Kar 390.
Followed: AIR 1996 SC 697; AIR 1984 SC 1020; AIR 1990 SC 671; ILR 1990 Kar 390.
Delay and laches
Articles 226 &227 - Articles 226 & 227 -Land Acquisition -challenge to -award passed -foundation stone laid for construction of STP on 27-11-2002 -work in progress -petitioners didn t rise their little finger -amounts to acquiescence -acquisition cannot be challenged -Writ Petition filed on 14-3-2002 -delay and laches stares at the faces of the petitioners -Writ Petitions liable to be dismissed solely on that ground.
[N. Kumar, J.] - When the Writ Petitions are liable to be dismissed on the ground of acquiescence, delay and latches, the petitioners have no right or locus standi to challenge the setting up of a S.T.P. on the ground it contravenes C.D.P. or no prior permission obtained under the B.M.R.D.A. Act. However, even on merits, there is no substance in the said challenge.
Cases Referred : AIR 1977 SC 183; AIR 1986 SC 2025; AIR 2000 SC 671; ILR 1986 Kar 1037; 1995 (4) KLJ 408; ILR 1990 Kar 390.
Followed: AIR 1996 SC 697; AIR 1984 SC 1020; AIR 1990 SC 671; ILR 1990 Kar 390.
( 1 ) THE subject matter of these acquisition proceedings is land bearing Survey No. 114/2 measuring 10 Acres 15 Guntas situated at Krishnarajapura, Krishnarajapuram Hobli, Bangalore South Taluk, bangalore District (hereinafter referred to as the schedule property ). The said land originally belonged to one Sri Subbaiah Setty. On his death, his legal heirs have succeeded to the estate. However, in the revenue records, the name of Subbaiah Setty continues. Therefore, in the proceedings initiated for acquisition, only the name of subbaiah setty finds a place. The first petitioner is the grand son of Subbaiah setty. He has preferred these Writ Petitions purporting to represent the estate of deceased Subbaiah Setty. The petitioners 2 to 9, claims to be the owners of either small bits of land or small houses situated in and around the schedule property. All of them have joined together in these proceedings to challenge the acquisition of the schedule property on various grounds.
( 2 ) THE schedule property was notified for acquisition by the second respondent for the purpose of establishment of Kaveri IV stage Sewerage Treatment Plant (for short referred to as S. T. P. ). The preliminary notification was issued on 28. 5. 1999 as per annexure-X. Having regard to the urgency, Section 17 (4) of the Land acquisition Act (hereinafter referred to as the Act ) was invoked dispensing with the enquiry contemplated under Section 5-A of the act. However, the first petitioner filed his statement of objections opposing the acquisition. After considering the objections, overruling the same, final notification came to be issued on 11. 4. 2000 as per annexure-Y. Thereafter, notices under Sections 9 and 10 of the Act were issued on 3. 6. 2000 to the first petitioner, who was duly served with the same on 10. 6. 2000. The petitioner and four other persons - claimants of the schedule land, appeared before the Land acquisition Officer and claimed compensation for the land acquired at the rate of Rs. 40 lakhs per acre. The Land Acquisition Officer, after an enquiry, passed an award on 21. 10. 2000 awarding a sum of Rs. 1,45,29,267-69 as the compensation which has been approved by the Government on 4. 9. 2001. As there was dispute regarding apportionment and to the title of the property, he referred the matter to the Civil Court under Sections 30 and 31 of the Act and deposited the compensation amount. Subsequently, possession of the schedule land has been taken on 2. 11. 2001. The claimants before the Land acquisition Officer, including the petitioner, not being satisfied with the award of compensation have filed an application under Section 18 of the Act seeking reference to the Civil Court for enhancement of compensation. These facts are not in dispute.
( 3 ) THE brief background of these acquisition proceedings are relevant for the proper appreciation of the facts. There was/is several public out cry and demand to keep the tanks/lakes in and around bangalore free from all sorts of pollution and contamination of water and stop the health hazard. Public Interest Litigations were initiated in this regard. It was alleged in those public litigations that there is pollution of water and air due to the fact of not regulating the flow of open drainage water and also sewerage discharged from the residential localities, particularly of hutment areas of the Bangalore city. The entire sewerage is flowing to all the tanks within the bangalore City and adjoining to Bangalore City causing air pollution which is disastrous to the residents of the City and due to emission of polluted air and consuming unhygienic water is causing great hardship to the residents of Bangalore City.
( 4 ) AFTER hearing all the concerned and following the law laid down by the Supreme Court in the case of VIRENDER GAUR vs STATE of HARYANA1, those batch of Writ Petitions were allowed by a division Bench of this Court on 27. 7. 1999 issuing certain directions. The relevant directio
