M/S Murudeshwara
Ceramics Ltd. & Anr Vs. State of Karnataka & Ors [2001] Insc 548 (12 October 2001)
S. Rajendra
Babu & Doraiswamy Raju Rajendra Babu, J. :
[with C.A.No.
7137/2001 (@ SLP(C) No.9330/1999)]
Leave
granted.
Respondent
Nos.13 to 22 filed a writ petition in the High Court to restrain the appellants
from putting up any construction, digging of well or carrying out any activity
or establishing and putting up of a clay processing industry in the land
comprised in Survey No. 23 of Varakodu Village, Hosangar Taluk, Shimoga
District in the State of Karnataka and for a direction to the appellants and
respondent Nos. 1 to 12 to appoint a commission for scientific study of the
environment and ecology in the area for establishing of clay processing unit in
the land in question or in any other land in Sahyadri mountain range or the
entire western ghat with reference to the feasibility of mining and
establishing industry.
They
also alleged that there has been contravention of the provisions of the
Karnataka Land Reforms Act, 1961 [hereinafter referred to as the Act] in
addition to the enactments made for protection of the environment and ecology
like the Karnataka Forests Act, Karnataka Preservation of Trees Act and Forests
Conservation Act. The land was purchased by appellant No.2 from the descendants
of one Seetarama Maruti under a registered sale deed dated 22.2.1997. Appellant
No.2 also happens to be the Executive Director of the appellant No.1 company.
The
High Court found that various permissions, licences or clearances obtained from
different authorities are not in accordance with law and set them at naught.
The High Court also held that the acquisition of land by appellant No.2 is in
contravention of the provisions of the Act. As regards sustenance of ecology
and environment, the High Court directed a scientific study to be conducted.
The High Court directed initiating proceedings under Sections 82 and 83 of the
Act.
Hence
these appeals.
We
shall first consider the question regarding the non-compliance with the
provisions of the Act in purchasing the land in question.
Section
79A of the Act debars certain persons whose annual income is not less than Rs.
2 lakhs from acquiring the land, while Section 79B of the Act prohibits holding
of agricultural land by a person other than a person cultivating land
personally or not lawful for educational, religious or charitable institutions
or society or trust or a company or co-operative society or body of individuals
and associations to hold land. Section 80 of the Act prohibits transfer of land
in favour of non-agriculturists. The High Court is of the view that the second
appellant acquired the land claiming to be an agriculturist ostensibly for his
personal cultivation but really for the benefit of the first appellant which is
a company which cannot hold land under provisions of the Act.
By an
order made on 3.7.1997, the State Government granted exemption under Section
109 of the Act from the applicability of Sections 63, 79A, 79B and 80 of the
Act on certain terms and conditions mentioned therein. In the view of the High
Court, the exemption is of no avail since it has been granted subsequent to the
event of sale. The High Court felt that the scheme of the provisions of
Sections 79A and 80 of the Act is such that the moment a transaction takes
place which is in contravention of the provisions of the Act, the land will
vest in the Government and, therefore, the prior exemption is necessary in the
case.
Where
a person acquires a land in contravention of Section 79A of the Act,
proceedings are contemplated under Section 79(4) of the Act and it is only
after receipt of declaration and particulars thereof, the Tahsildar can, by a
notification, declare that with effect from the date as may be specified in the
notification such land shall stand transferred to and vest in the State
Government free from all encumbrances and from the date specified in the
notification, so that the Deputy Commissioner may take possession of such land
in the manner as may be prescribed. Where the land is held in contravention of
Section 79B of the Act, the Tahsildar will have to hold an enquiry after
obtaining a declaration and declare that such land shall vest in the State
Government free from all encumbrances and take possession thereof in the prescribed
manner. If there is any contravention of Section 80 of the Act in the matter of
transfer of land to non-agriculturists, appropriate proceedings will have to be
taken up under that provision. Therefore, the land does not immediately vest on
the transaction being entered into because an enquiry has to be held as to the
contravention of the provisions of the Act and thereafter an appropriate order
is made. In the present case, as noticed by the High Court, no such proceedings
have been initiated under any of the provisions. Therefore, in the writ
petition a direction was sought for and issued for action being taken under
those provisions.
Section
109 of the Act confers power on the State Government to grant exemption in
regard to a land in any area from the provisions of Sections 63, 79A, 79B and
80 of the Act to be used for industrial purposes, educational institutions,
places of worship, a housing project or horticulture including floriculture or
an agro based industry. Further, the Government has also the power even in the
absence of such purposes to grant exemption in public interest. If the aspect
that it is not with reference to any particular person or transaction such
exemption is granted but it is with reference to a land such exemption is granted
is borne in mind the interpretation and application of law becomes clear. It
may be that such exemption could be granted before the acquisition of the land
or thereafter when it is actually sought to be put to those particular uses,
which are enumerated under Section 109 of the Act. Therefore, once we come to
the conclusion that the Government has powers to grant exemption from the
operation of the provisions of Sections 63, 79A, 79B and 80 of the Act and
those provisions will be out of place insofar as the land in question is
concerned, the examination by the High Court as to whether there has been
contravention of the provisions thereof was totally uncalled for. The High
Court need not have embarked on the investigation as to whether the sale is in
contravention of the provisions of the Act and ought to have held that those
provisions are not applicable in the case of the land in question in view of
the exemption granted. Thus the finding recorded by the High Court in this
regard is set aside.
During
the pendency of the proceedings in this Court, several affidavits have been
filed by the parties but the affidavit filed by appellant No.1 is to the effect
that the china clay processing unit of the appellant is not carrying out any
activity due to litigation and the machinery and equipment have been
temporarily shifted elsewhere to save them from corrosion. It is stated that
they have obtained all the approvals already and they will carry out the same
after the disposal of this matter. Fact remains that the unit is not
commissioned as yet. In the affidavit filed on behalf of the State of Karnataka
it is stated that the No Objection Certificates issued by the Karnataka State
Pollution Control Board in the year 1997 and the Chief Inspectorate of
Factories and Boilers in the year 1999 are being withdrawn and steps in that
regard are being initiated. In the affidavit filed by respondent No. 12 on
behalf of the Union of India, it is alleged that a plantation has been raised
by the Karnataka Forest Department in the year 1986-87 in continuation block of
Survey Nos. 23, 30 and 47 of Varakodu village and subsequently the land was
purchased by the second appellant by registered deed dated 22.2.1997 and thus
out of 7 acres and 19 guntas of land comprised in Survey No.23 owned by the
second appellant approximately 2 acres of land are covered under Acacia
plantation raised during 1986-87 by the Karnataka Forest Department. It is also
stated therein that the land in question is surrounded by acacia plantation
raised during 1986-87 by the Karnataka Forest Department in Survey Nos. 23, 30,
42 and 47 of Varakodu Village which is part of Varakodu Reserve Forest Block I
and Block II and that area was finally notified under notification dated
27.10.1994 as Varakodu Reserve Forest Block under Section 17 of the Karnataka
Forest Act, 1963 and as per that notification there is no right over any roads
in this Reserve Forest Block. While raising plantations during 1986-87 only
inspection path was left inside this reserve forest block, just for inspection
purpose and not as a road for general public Under these circumstances, the
earlier clearances obtained by the appellants may not be of any use to them and
now that the unit has not been functioning and fresh clearances will have to be
obtained, we do not express any opinion on these aspects at this stage of the
proceedings. It is open to the appellants to work out their rights just as the
right is open to the respondents to oppose to the establishment of the unit in
the area.
When
the Departments advert to these aspects, the provisions of the various
enactments protecting the environment and ecology shall be taken note of and it
is only after appropriate enquiry or assessment due clearances shall be given
in accordance with law.
Subject
to setting aside the finding in relation to the contravention of the provisions
of the Act, the other aspects considered in the judgment of the High Court have
become unnecessary for consideration and the contentions in regard to the same
are kept open. Respondent Nos. 1 to 12 shall make fresh assessment of the
matter uninfluenced by the decision of the High Court as indicated above in the
event the appellants approach them for any of the clearances.
The
appeals shall stand disposed of in the terms stated above. No costs.
...J.
[ S.
RAJENDRA BABU ] ...J.
[DORAISWAMY
RAJU] OCTOBER 12, 2001.
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