D.V. Shylendra Kumar, J.The appellants are all land owners who have lost their lands or in the process of losing and in fact they are fighting a losing battle to save their lands for livelihood or sustenance due to the compulsory take over of this land by the State Government by issue of notifications u/s. 3(1), 1(3) and 28 of the Karnataka Industrial Areas Development Act, 1966 (for short the Act). Appellants/land owners effort to save their lands from the sweep of acquisition by the State Government by filing writ petitions before this Court having failed as the learned Single Judge of this Court opined that there is no merit in the contentions urged in support of the writ petitioners, challenge to the acquisition proceedings under the Act and more so, the number of writ petitioners before the Court who had questioned the validity of the acquisition proceedings by the State Government being not even 1/10th of the land holders whose lands had been notified for acquisition and more so when more than 9/10th of the land losers had in fact given their consent for acquisition or to be precise if they have not chosen to challenge the legality of acquisition proceedings and if the Court should interfere with the acquisition proceedings by the State Government even at the instance of such small number of people, it would only result in bringing to a halt the entire developmental activities in the industrial area and that would not be in the interest of anyone and therefore purporting to follow the dictum as enunciated by the Supreme Court in the case of Om Prakash and Another Vs. State of U.P. and Others, to the effect that the individual right of the land owner must yield in favour of the larger public purposes declined to interfere in the acquisition proceedings and has consequently dismissed the writ petition.

2. Undaunted by the failure before the learned Single Judge of this Court, land losing owners of the subject lands who are the writ petitioners are in appeal u/s 4 of the Karnataka High Court Act and these appeals having been admitted on 10.08.2009 and thereafter have all been set down for hearing, appeals have been heard at considerable length over the past more than two weeks paving way for this judgment.

3. Brief facts leading to the above appeals are that the State of Karnataka issued notifications u/ss. 3 (1), 1 (3) and 28 (1) of the Act: all three notifications of the even date 09.11.2006 and also published in the Karnataka Gazette of the even date. While the Notification issued u/s 3(1) of the Act indicated that the subject lands mentioned in the Schedule measuring a total extent of 1034 acres spread over several survey numbers of villages of Koppal, Basapur and Halawarthi of Koppal Taluk and District, and in the ownership of as many as 359 land holders are being declared as industrial areas in terms of Section 3(1) of the Act. It was also indicated in the very Notification that, out of this total extent of 1034 acres of land, an extent of 915 acres 34 guntas of land comprised in different survey numbers of Koppal. Basapur and Halawarthi villages were required for the purpose of a Company by name M/s. Aaress Iron and Steel Limited and an extent of 118 acres 6 guntas of land comprised in different survey numbers of Halawarthi village was required for M/s. MSPL Limited: both companies are incorporated under the Indian Companies Act.

4. On a reading of these Notifications, it is not clear as to why the name of these Companies figured in the notification and also as to what was the reason for apportioning an extent of 915 acres 34 guntas and 118 acres 6 guntas of land was made in favour of two companies out of a total extent from out of lands sought to be declared as industrial area.

5. It is the claim of the State Government that, simultaneously was issued a Notification u/s 1 (3) of the Act in respect of a total extent of 992 acres 8 guntas of land. Though appellants/petitioners had contended that it had not been so issued, but the learned Single Judge, having perused the records, has given a finding that it is available on record and therefore, submission to the contrary is rejected, extending the applicability of provisions of Chapter VII of the Act and this Notification also indicated that while the extent of 118 acres 6 guntas of land in Halawarthi Village is land in which M/s. MSPL Limited is interested (in the absence of any other information in the Notification, we have assumed this) and insofar as the extent of land in which M/s. Aaress Iron and Steel Limited is interested and notified for applicability of Chapter IV, came to be reduced to 874 acres 2 guntas spread over the survey numbers of the three villages. It is also the version of the State Government that yet another notification u/s 28(1) of the Act was issued on the very day and this Notification again indicated that M/s. Aaress Iron and Steel Limited, Hospet. is interested in an extent of 874.02 acres and MSPL retains its interest in respect of 118 acres 6 guntas of land. The total extent of land which figured in the 28(1) Notification, a Notification under the Act, indicated that, such lands are proposed to be acquired by the State Government for establishing industries namely in favour of M/s. Aaress Iron and Steel Ltd. and MSPL Ltd., Hospet. measuring a total extent of 992 acres 8 guntas of land.

6. It is also the stand of the State that the issue of Notification u/s 28(1) of the Act was followed by issue of individual notices. Individual notices were issued to all the land-owners u/s 28(2) of the Act; that an enquiry was held on 16.03.2007 to hear objections, if any, on the part of the land-owners; that the Special Land Acquisition Officer of KIADB, who has been delegated to exercise the powers of State Government under Rule 14 of the Karnataka Industrial Area Development Board Rules, 1966, heard the objections of all persons, who had appeared and forwarded his report to the State Government after passing an order u/s 28(3) of the Act on 12.04.2007, opining that it was necessary to acquire the notified lands in the interest of development of industries and therefore he is ordering for issue of Notification u/s 28(4) of the Act.

7. Then followed a Notification dated 17.05.2007 issued u/s 28(4) of the Act declaring the intention of the State Government to acquire the lands so notified earlier u/s 28(1) of the Act. However, the declaration u/s 28(4) of the Act slightly reducing the total extent of land and indicated that the total extent while so was 1018 acres 3 guntas, the extent for the benefit of M/s. MSPL is concerned is 110 acres 24 guntas and the extent for the benefit of M/s. Aaress Iron and Steel Co. Ltd. is 907 acres 19 guntas.

8. It is also the version of the State Government as revealed in the records also that though efforts were made to serve individual notices on all the land owners u/s 28 (6) of the Act calling upon the land owners to surrender possession of the land, most of the notices could not be served on the land owners for one reason or the other and therefore a mahazar was drawn by the Village Accountant, Koppal and Revenue Inspector on 18.06.2007 in the presence of three panchas indicating that as the land owners refused to receive notices, individual notices were served on the owners by way of affixture on their lands. It is the stand of the State Government that under Mahazars recorded on 28.01.2008 (in respect of lands located in Halavarthi village and another in respect of lands located in Basapura village) possession has been taken in the presence of panchas and mahazars being drawn by the Village Accountant - Sri. Muddaballi, Taluk Koppal (who has signed on 29.01.2008) and the Revenue Inspector KIADB, Dharwad and another mahazar of the even date in respect of the lands locased in Basapur village in the presence of Village Accountant. Giginera and the Revenue Inspector, KIADB (no date under their signatures) and a third mahazar also dated 28.01.2008 indicating that portion of lands in all measuring upto 167 acres 2 guntas, Koppal village, has been taken over in the presence of panchas and by the Village Accountant, Koppal and the Revenue Inspector, Dharwad and yet another mahazar dated 29.01.2008 for a like purpose in respect of the land to the extent of 147 acres 37 guntas of Halavarthi village have all been taken possession of in the presence of panchas and signed by the Village Accountant - Sri. Muddaballi and the Revenue Inspector, KIADB, Dharwad.

9. We also notice from the records that the Special Land Acquisition Officer, KIADB, has addressed a communication to the Special Deputy Commissioner, KIADB, requesting him to release funds for making compensation to the land owners at page 607 of the KIADB, File No. 90 Vol (4) relating to previsions of 28 (2) and 29 (3) of the Act indicating that compensation is required to be paid in respect of a total extent of 1062 acres 38 guntas and out of this extent, compensation has already been released in favour of owners whose lands covered an area of 551 acres 4 guntas and compensation is still required to be paid in respect of land owners whose lands measured a total extent of 511 acres 34 guntas.

10. A total extent of land indicated in this communication obviously is at variance with Section 28 (4) declaration issued by the State Government and the explanation of learned Additional Government Advocate and the learned counsel appearing for the Karnataka Industrial Areas Development Board [for short the Board] is neither clear nor convincing.

11. However, Mr. M.M. Swamy, learned counsel appearing for the beneficiaries/respondent Nos. 4 and 5 submitted that the excess extent of land as indicated in this communication which is the difference between the extent of land mentioned in notification u/s 28 (4) of the Act issued by the State Government and this extent which is about 45 acres 35 guntas in Sy. No. 143 of Basapura village is an additional extent of land which was originally a tank which the beneficiary wanted for their use and it made a request to the State Government to this effect, that the land was also the subject matter of a PIL in a Writ Petition before the High Court by the villagers and that a part of this survey number had been allotted for construction of a College and RTO office etc., that the Company wanted to construct a reservoir to store water for its use and had found an existing lake convenient for their use and therefore on the Company undertaking to compensate the handing over the lake to them by release of like extent of land elsewhere, it has been given to them.

12. Sri. V.R. Datar, learned counsel for the appellants has submitted that the record on the other hand discloses this extent as a public tank where water was being stored during rainy season and it has been given to the Company for being protected and maintained as a water body and therefore it is not as though it is allotted to any Company or given to the Company etc. Be that as it may, what puzzles us is that a Special Land Acquisition Officer is addressing a communication to Special Deputy Commissioner, KIADB, requesting for release of funds to compensate the land owners in respect of a Government land or a public tank also.

13. It is also submitted by Mr. Mahesh Wodeyar, learned counsel appearing for the Board that the officials of the Board at Dharwad who had initially taken possession of the lands have in turn handed over the same to the Development Officer of the Board at Davanagere as location of the subject lands is within Davanagere Zonal Office and therefore he in turn has handed over possession of the subject lands to the beneficiaries during March, 2008.

14. Such are the facts on the side of the State and it is asserted by the beneficiary particularly M/s. M.S.P.L. Ltd., that they are now in possession, that the pallet plant has been operationalised by M/s. M.S.P.L. but the Aaress Iron and Steel Ltd., is yet to set up the steel plant and it is yet to take shape: that work on the steel plant is awaiting Environmental Clearance from the Ministry of Environment and Forest, Government of India.

15. Petitioners/appellants had approached this Court contending interalia that the acquisition is not for a proper purpose, that the notifications are not either in consonance or with the Scheme of the Act or tenable in law; that the Act does not provide for acquiring any private land for the benefit of a particular Company or individual; that there is also no scope for acquiring the land under an agreement under the Act by issue of notifications under the provisions of the Act, that the notifications are per se bad in law, that a benefit sought to be conferred on respondent Nos. 4 and 5, the two companies does not amount to achieve any public purpose; that the notification per se does not even mention that it is for any public purpose; that the notification nowhere recites or indicates that subject lands are required for being developed by the Board as industrial area and to further the objects of the Act or the purposes of the Act; that acquiring private agricultural land at the cost of agriculturists is not only arbitrary but without authority of law and in violation of Article 300A of the Constitution of India; that there is no proper enquiry u/s 28 (3) of the Act; that the land owners were not given any proper opportunity to putforth their grievances and therefore, the follow up notification declaring that the land are required for the purpose of the Board u/s 28 (4) of the Act is per se bad in law; that the acquisition of land under the Act can only be for the purpose of being developed as an industrial area by the Board; that it has to be developed by the Board only and not by private individuals; that acquiring the land in the name of the Board and for developing it as an industrial area, but handing it over to private companies or individuals is nothing short of misuse and abuse of the provisions of the Act; that in such an event, the Board virtually acts as a real estate agent for the benefit of private persons or companies; that it is per se in contravention of the provisions of the Act and rules; that such manner of handing over lands notified as industrial area in favour of private persons amounts to abdication of the role and functions of the Board; that utilizing the statutory powers for not only declaring an area as an industrial area, but also exercising the power of compulsory acquisition of private lands by extending the provisions of Chapter-VIII of the Act for private gains is an instance of colorable exercise of power; that it was nothing short of gross act of favoritism in favour of the companies whose name figured in the notifications issued under sections 3 and 28 of the Act; that any land acquired to be developed by the Board has to be distributed only u/s 32 of the Act; that the land acquired by the State Government either under the provisions of the Act or otherwise has to be placed at the disposal of the Board for achieving the purpose of the Act and thereupon the land can be applied for the user for which it is so developed: that the Board has framed regulations under the provisions of section 41 of the Act and laws at the disposal of the Board should necessarily be disposed of in terms of the regulations, particularly, regulation Nos. 4 to 11; that all these statutory provisions have been given a total go by in not merely notifying vast extent of private lands, particularly, agricultural lands, but acquiring it by use of the authority of the State and placing it at the disposal of private persons is nothing short of glaring instance of misuse and abuse of statutory powers and colorable exercise of power etc.

16. The learned single Judge did examine some of these contentions, but found no merit in them as indicated in the earlier part of this order, rejected the same, particularly, showing reluctance to go into further aspects as the learned Judge was of the opinion that it was not necessary to examine all such questions as only a small number of land owners were before the court and invalidating an acquisition proceedings meant to develop the industry even by private entrepreneur would hamper development and therefore there is no need to go into further aspects and accordingly dismissed the writ petitions.

17. It is in this entire background, the present appeals.

18. We have heard arguments addressed by learned counsel for the appellants led by Mr. V.R. Datar and supported by M/s. Sharanabasawa, Chandrashekar Patil, S.P. Kulkarni and Smt. Veena Hegde, Advocates.

19. Sri V.R. Datar, Learned counsel for the appellants submits that the State High Level Single Window Agency has no authority to clear acquisition of lands under the Act; that this agency also cannot direct the Board to allot a particular parcel of land in favour of an applicant, whose application they have cleared; that the high level committee can only grant clearance for the project but cannot override/overlook the statutory provisions or statutory powers exercised by the functionaries under the Act; that notifications under sections 1(3) & 3(1) of the Act cannot be issued by the state government at the behest of the committees functioning under the Facilitation Act; that industry specific acquisition of land is not permitted under the act, but will be contrary to the scheme of the Act; that under the provisions of the Act first an industrial area should be identified and notified.

20. Sri Datar further submits that in the instant case, it is the beneficiary who has identified the land for acquisition with specific survey numbers and that is cleared by the high level committee, where after the state government and the board have simply proceeded with issue of notifications under sections 3(1) & 1(3) of the act without, application of mind, which has vitiated the entire acquisition proceedings. Mr. Datar submits that what the court is concerned with in the exercise of judicial review of administrative action is whether the action is lawful or unlawful and not whether it is right or wrong, as is done by a court of appeal.

21. Sri Datar submits that the present action of the State and the Board is virtually putting the cart before the horse. Referring to section 14 of the Act. It is submitted that in the present acquisition, using powers under the act for the exclusive benefit of a single beneficiary like the 4th respondent and its offspring the 5th respondent is virtually violative of Article 300A of the Constitution of India. With reference to regulation 4 of Karnataka Industrial Areas Development Board Regulations, 1969 framed u/s 41(2)(b) of the Act, Mr. Datar submits that the terms and conditions under which the Board may dispose of land, cannot in any way be altered under the Facilitation Act; that Facilitation Act does not exempt the applicability of the provisions of the Act, in respect of the project cleared under that Act for the purpose of acquiring any land for effectuating a project cleared under the Facilitation Act.

22. Sri Datar submits that in the present case when the high level committee received the proposal, it was only from MSPL, but the 2nd company has come into existence only on 8.12.2005, but nevertheless under the approval/sanction of the state government vide GO No. CI 511 SPI 2005, Bangalore, dated 22.03.2006, names of two companies figure i.e. MSPL and Aaress Iron & Steel Ltd, even in favour of a company which was non-existent as on 06.06.2005, and based on the Government Order dated 22.03.2006 acquisition proceedings have been initiated; that the acquisition proceedings as per this Government Order cannot even be said as one fully supported by a proceeding of the State High Level Committee.

23. Sri Datar draws our attention to the sketch produced as Ex. R4(a) to the statement of objections filed by Respondents 3 and 4 and submits that the notification has been issued even in respect of lands not even proposed by these respondents, particularly, the lands lying even to the north of NH-64, in particular to include the land lying in between the National Highway and the Railway lane to cover under the notifications issued under sections 3(1) and 28(1) of the Act and therefore submits that not only reveals non-application to the relevant aspects which is writ large on the face of the record but also the kind of influence or hold 4th & 5th respondents have over the State Government.

24. Sri Datar draws our attention to Rule 14 of the rules to submit that under Rule 14 state government cannot delegate its powers under sub-sections (2), (3), (6), (7) & (8) of Section 28 of the Act or powers under sub-sections (1), (2) & (3) of Section 29 of the Act, as these Rules are framed in exercise of the powers u/s 40 of the Act and not framed for the purpose of Section 31 of the Act. He submits that though u/s 28 of the Act state government is the acquiring authority of the land, finally u/s 28(8) of the Act, such land has to be transferred to the Board for the purpose for which the land has been acquired and thereafter the Board has to develop and distribute the land as per Regulations.

25. Sri Datar submits that in WA No. 6181 of 2009 arising from WP No. 11260 of 2007, specific ground of colourable exercise of power is taken, as the subject lands in between NH-64 and the Railway lane which was not initially proposed by MSPL have also been notified for acquisition, which is a clear instance of colourable exercise of power. In this regard learned counsel has relied upon the judgment render by this court on 07.03.2012 in WA No. 1938 of 2007 and connected matters.

26. Sri Datar submits that in the instant case also the state government has not formed an independent opinion before issue of Section 28(1) notification, but is guided more by the State High Level Committees recommendation to acquire lands as per the request of a single company initially, but has later been notified for the benefit of another company i.e. Aaress Iron & Steel Ltd., which is incorporated only on 08.12.2005 i.e. much later to the recommendation of the state high level single window agency; that the committee has not taken into consideration the environmental impact assessment examination, which, according to Sri Datar, vitiates even the acquisition proceedings being violative of Rule 5(3) of the Environment (Protection) Rules, 1986.

27. Relying on the decisions of the Supreme Court in the case of Raghbir Singh Sehrawat Vs. State of Haryana and Others, and Shri Ramtanu Co-operative Housing Society Ltd. and Another Vs. State of Maharashtra and Others, submits that enunciation of law as in para 21 of Ramtanus case [supra] by the Supreme Court has been totally missed by the learned single Judge of this court in the case of Heggappanavara Markhandappa & Others vs. State of Mysore & Others [1974 (1) KAR. L.J. 71], and without appreciating that acquisition was for a single company even as held by the Supreme Court in Ramtanus case [Supra], can only be under the Land Acquisition Act, 1894 where it is so enabled but cannot be under the Maharashtra Industrial Development Act, 1962, which is meant only for development of industrial areas and this incorrect/wrong understanding of the law enunciated by the Supreme Court, by this court in Heggappanavaras case (Supra), has been simply followed and applied by another single Judge Bench decision of this court in the case of N. Somasekhar & Others vs. State of Karnataka reported in 1997 [7] KLJ 410, both of which are required to be overruled in the wake of the proper understanding of the Judgment of the Supreme Court in Ramtanus case [Supra].

28. Mr. Datar, learned counsel relies on another decision of the division Bench of this court in the case of Special Land Acquisition Officer, Kiadb, Bangalore vs. State of Karnataka reported in 2008 [2] KLJ 182 [DB] and refers to paragraphs 19 and 20 of this Judgment to submit that the court noticed total non application of mind by the State Government in that case about the need and necessity to acquire the extent of lands covered by the declaration issued by the State Government u/s 28[4] of the Act and submits that in the instant case also there is no application of mind on the part of the State Government to the relevant aspects as envisaged under the Act, but is more guided and goaded by the State High Level Single Window Clearance Committee and therefore the notifications u/ss. 3[1], 1[3] and 28 of the Act are all bad in law and are to be quashed.

29. Mr. Datar draws our attention to page 278 of the records indicating the birth of another company Aaress Iron & Steel Company Ltd., on 8.12.2005 which wants to set up an integrated iron & steel project and to the Government Order No. CI 511 SPI 2005, Bangalore, dated 22.12.2005 granting approval of the Government for splitting up the project as originally proposed by MSPL and cleared by the State High Level Single Window Clearance Agency apportioning its manufacturing capacity, to an extent of 1 million metric tonnes of steel in favour of M/s. Aaress Iron & Steel Company Ltd., and directing the agencies providing the basic infrastructural facilities to act accordingly as per the order of the State Government dated 22.3.2006 as indicated earlier, but more importantly points out to the conditions imposed as per the Government Order dated 22.12.2005 which are all equally made applicable to M/s. Aaress Iron & Steel Company Ltd., also but that no compliance are forthcoming either by the State Government or by the Board or even by the beneficiaries, insofar as compliances with Environment Protection laws and proceedings are concerned.

30. Mr. Datar further points out that there is no application before the State High Level Single Window Agency by M/s. Aaress Iron & Steel Company Ltd., at all but nevertheless Government Orders are passed in favour of the company also to distribute the capacity approved/allotted to the applicant MSPL, to the two companies.

31. Mr. Datar with respect to the documents now placed before the court points out that a third company M/s. MSPL Gases Ltd., which proposes to set up a 700 TPD Air Separation Plant, for AISLs Integrated Steel Plant at Koppal and land required for such project of about 150 mtrs., x 250 mtrs., is to be given free of cost by M/s. Aaress Iron & Steel Company Ltd.

32. Sri. Sharanabasawa, learned counsel for some of the appellants submits that the industry is located just two kilometers away from Koppal town and poses environmental hazard, creating pollution; that providing water to the proposed industry from Tungabhadra reservoir, established for irrigation purpose, that too to a large extent of 12.55 millions gallons per day runs contrary to the very purpose of building the reservoir; that the storage capacity is drastically reduced; that no environmental clearance is obtained and therefore vitiates the order; that an extent of 2 acres of land situated in Sy. No. 297 of Koppal belonging to the person figuring at Sl. No. 3[2] in the name of Abrar Hussain, S/o Peer Hussain Sab out of the total extent of 13 acres 7 guntas in this survey number belonging to four persons came to be deleted from the scope of declaration u/s 28[4] of the Act, but the company has later purchased this very land from the owner by paying Rs. 6 lakhs per acre suppressing the actual figure of Rs. 28 lakhs per acre, though no objection had been raised by anyone of the owners in this survey number and page 66 of the paper book in WA No. 6206/2009 shows both malafides as the authorities wanted to favour Abrar Hussain; that the powers u/s 4 of the Act have been misused/abused to favour some of the land owners by denotifying their lands and in this regard draws attention of the court to the Notification dated 17.5.2007 at page 70 in WA No. 6223/2009 and demonstrates that as per the figures, a total extent of 49 acres 26 guntas of land has been notified for deletion from out of the lands notified for acquisition from out of the four villages.

33. Sri. Sharanabasawa, learned counsel for some of the appellants, also draws attention of the court to the declaration u/s 28[4] of the Act and both being dated 17.5.2007 which only demonstrates total non application of mind on the part of the State Government.

34. Sri, Sharanabasawa submits that in the matter of payment of compensation u/s 29 of the Act, several illegalities and irregularities have been committed. In this regard, learned counsel draws attention to Annexure-R22 to the statement of objections filed in WP No. 10964/2007 on behalf of respondent Nos. 3 and 4 - beneficiaries and submits that the grievances of the land owners even as per Annexure-R22, 300 in number has not been redressed at all, they have not agreed for acquisition, they have opposed acquisition, not consented for handing over their lands, have also refused to sign on dotted lines and as against the demand of land owners for compensation at Rs. 30.35 lakhs per acre, the Deputy Commissioner has unilaterally fixed compensation at three to three and half lakhs in Halavarthi Village, Rs. 3.5 to 4 lakhs in Basapura Village, Rs. 4.5 to 5 lakhs in Koppal Village and therefore submits that the entire proceedings are vitiated.

35. Mr. Mahesh Wodeyar, learned counsel appearing for the Board submits that the scheme of the Act particularly chapter-VII of the Act has been extensively discussed in the case of Ballarpur Industries Ltd. Vs. Court of the Civil Judge, Karwar and Others, that no acquired lands was handed over to the Board for development as an Industrial Estate and therefore allotment as per regulations 4 & 5 of the Regulations does not apply.

36. Sri. Adhyapak, learned Government Advocate appearing for the State draws attention to page 202 of the records placed before the court of Karnataka Udyog Mitra appointed by the State Government u/s 12 of the Facilitation Act and also refers to sections 3, 4, 5 and 6 of this Act and in this regard relies upon the Judgment of the Supreme Court in the case of Chairman and M.D., B.P.L. Ltd. Vs. S.P. Gururaja and Others,

37. Sri. Adhyapak, learned Government Advocate relied upon the Judgment of the Supreme Court in the case of Chameli Singh and others etc. Vs. State of U.P. and another, submits that there is no violation of Article 21 of the Constitution of India in a compulsory acquisition of private land for a public purpose.

38. Sri. Dinesh Rao, learned Government Advocate appearing for the State submits that since the writ petition is dismissed, no writ appeal lies as per the consistent view of this court and therefore writ appeals are not tenable; that many grounds which had not been taken or urged before the learned single Judge are sought to be urged and raised for the first time in these writ appeals and therefore cannot be permitted, more so at the stage of final hearing of the writ appeals.

39. Sri. Dinesh Rao, learned Government Advocate, regarding simultaneous issue of notifications under sections 3[1], 1[3] and 28[1] of the Act, relies on the Judgment of the Supreme Court in the case of H.M.T. Ltd. rep. by its Deputy General Manager (HRM) and Another Vs. Mudappa and Others, and draws specific attention to paragraph-28 of this Judgment that there is no bar for issuance of notifications simultaneously.

40. Sri. M.M. Swamy, learned counsel appearing for the fifth respondent to counter the argument addressed on behalf of the appellants to the effect that the provisions of the Act does not enable acquisition in favour of a single industry, draws our attention to definition Section 2(6) & Section 2(7-a) of the Act and submits that the notification u/s 3(1) of the Act is issued based on the concept as indicated in these two sub-sections, which are pressed into service by the state government for the purposes of the fifth respondent company.

41. Mr. Swamy submits that in exercise of the powers u/s 32 of the Act, the State Government can issue directions to the Board either to develop and allot or to develop the area and place it at the disposal of the State Government or even to hand it over to any person named; that the land acquired by the state government under chapter VII even in terms of section 28(8) of the Act, may be handed over to the Board or may be retained by the state government and can be allotted to any other person of the choice of the state government and it is not mandatory that the land should be handed over to the Board: that the language is may be handed over to the Board and not shall be handed over to the Board.

42. Mr. M.M. Swamy, learned counsel draws our attention to section 32 of the Act and submits that the state government can direct the board to hand over the land with or without development in favour of its nominee and attention is drawn to sections 13(ii)(c) & 17 of the Act and to the website of the Board not only apprising intending applicants of the procedures for applying but also about the mode of payment.

43. Mr. M.M. Swamy, learned counsel points out to the proceedings of the State Government dated 22.12.2005 and submits that the State Government has granted approval for establishment of a pellet plant; that the appellants who had earlier given consent for sale/acquisition having gone back on the same after making exorbitant demands for compensation, it became necessary for the State Government to go ahead and issue notifications u/s 3[1], 1[3] and 28[1] of the Act.

44. Mr. M.M. Swamy, learned counsel draws our attention to the proceedings of the third land audit committee meeting held on 28.1.2006 in the Meeting Hall of Karnataka Udyog Mithra, consideration by the Committee of M/s. MSPL and submits that the aspects of requirement of the extent of land for the project of MSPL was considered by the land audit committee based on the technical report of TESCOK [a private consultancy concern] who had indicated that an extent of 1185 acres of land was required etc., but the Committee after consideration of all aspects has cleared the land requirement of the project at 1034 acres.

45. With reference to the submission regarding original proposal of the project being by M/s. MSPL but the project being cleared in the name of M/s. Aaress is concerned, learned counsel for fifth respondent draws attention to the letter of MSPL requesting to distribute the sanction between itself and M/s. Aaress Iron & Steel Company Ltd., and the response of the State Government in proceedings dated 22.03.2006 regarding infrastructural facilities and concessions being apportioned between the two companies.

46. With regard to want of environmental clearance and with reference to Rule 5 which was relied upon, submits that even as per the rule the pellet plant has obtained environmental clearance and has become functional whereas the iron and steel plant is not functional and clearance will be obtained as and when the need arises.

47. With regard to non consent by the land owners. Mr. Ashok Haranahalli, learned senior counsel appearing for the fifth respondent submits that as on the date of issue of declaration u/s 28[4] of the Act by the State Government, there was already in vogue a notification issued u/s 3[1] of the Act and therefore public purpose is clearly achieved; that in the context of facilitation Act, when once the special bodies/Committees created under the Facilitation Act, approves/clears a project, all other developments have to fall in line and therefore the action, particularly, the subsequent issue of notifications for acquisition of land cannot be found fault with; that this aspect takes care of the aspect of application of mind by the State Government for the purposes of acquisition of land; that the examination by the court can only be in respect of persons who are before the court and in the context of objections raised by them; that the nature of objection is that the land is the only source of livelihood; that the compensation they are getting is very meager; that they will be uprooted from their dwellings etc.,; that legal malafides cannot be attributed as there is no colourable exercise of power in the present cases as acquisition is only for the purpose of establishing an industry which is in consonance with the purpose and object of the Act; that the entire extent of acquired land being developed as a single industry project, then either the concept of development by the Board or the need for development by the Board does not arise; that the beneficiary is already put in possession and has become functional insofar as the pellet plant is concerned.

48. In support of his submissions, Sri. Ashok Haranahalli, learned senior counsel relies on the following decision of the Supreme Court in the case of Delhi Administration Vs. Gurdip Singh Uban and Others,

49. Reliance is also placed on the Judgment of this court in the case of H.N. Nanjegowda and Others vs. State of Karnataka and Others reported in [1996] 3 KLJ 39 to submit regarding the power of eminent domain of the State that mere fact that some people lose their livelihood cannot amount to violation of Article 21 of the Constitution of India.

50. Reliance is placed on the decision of the Supreme Court in the case of P. Narayanappa and Another Vs. State of Karnataka and Others, to submit that the acquisition of land for establishment of a single software industry was upheld as for the purpose of the KIAD Act.

51. Mr. V.R. Datar, learned counsel for the appellants in reply submits that no material is placed before the court to indicate that the fifth respondent - company had in fact obtained such clearance and has drawn our attention to the regulations of the Notification dated 14.9.2006 to submit that prior environmental clearance is a must even for clearing the project; that direction is issued by the State Government in exercise of its power. In this regard, learned counsel for the appellants has relied upon the Judgment of the Supreme Court in the case of Devinder Singh and Others Vs. State of Punjab and Others, .

52. The first and foremost submission on behalf of the appellants is that though several grounds had been urged before the learned single Judge, the learned single Judge has found it proper to examine only a couple of them as the court felt that less number of persons before the court questioning the legality of acquisition proceedings is a clear sign that majority of the land owners have accepted the decision of the Government to acquire lands and therefore there was no need for interference at the instance of this small number of persons.

53. It is submitted that the number cannot be the criteria; that any affected person is entitled to approach the court seeking for the relief.

54. In addition to reiterating the grounds as noticed above which had been urged in the writ petitions, several other grounds are highlighted and pointed out and particularly as pointed out by Sri. Sharanabasawa, learned counsel for one of the appellants that certain extent of land beyond the National Highway on the northern portion of the lands which were desired for acquisition abetting Basapura Village and up to railway line and to some extent beyond which were not even aspired for by the fourth respondent - original applicant have also been included in the notifications issued under the Act though such was not the requirement as had been originally proposed.

55. We have heard M/s. Dinesh Rao, learned Additional Government Advocate and Mr. Adhyapak, learned Government Advocate on behalf of the State Government, Mr. Mahesh Wodeyar, learned counsel appearing for the Board, Sri. M.M. Swamy, learned counsel appearing for the beneficiaries - respondent Nos. 4 and 5 joined by Sri. Ashok Haranahalli, learned senior counsel for summing up his submissions, at some length.

56. All possible versions of arguments touching upon variety of legal aspects and legal principles in several hues and shades have been placed before us in terms of submissions both on the side of appellants and respondents.

57. We have been taken through several authorities, both of this court and of the Supreme Court, touching upon different aspects of acquisition under the very Act under the provisions of similar enactments in other States, particularly, Maharashtra and the Land Acquisition Act, 1894 and the very Judgment is used by both sides as one supporting their respective contentions.

58. Bereft of all legal contentions and technical and legal aspects, even constitutional aspects, while complaint of the appellants is that their lands have been compulsorily taken over by the State Government throwing them to streets, depriving them of their land and livelihood and their very lives; that it is also not done in a proper or bona fide manner but only for the benefit of a private company, answer on behalf of the State Government is that any development can be achieved only by disturbing one or the other person; that in any developmental project, it is inevitable that some or the other suffers, but acquisition being for development of an industry, whether by a private company or by the Board, the purpose should be looked into. Industrial development adds to the overall prosperity of the State, it is in consonance with the industrial policy of the State; that the power available under the Act have been used in a proper and bona fide manner; that no procedural aspects have been given a go by and all compliances are secured and therefore there is no need for interference by the court at the instance of some of the land owners when majority of land owners have fallen in line.

59. On behalf of the beneficiary, it is very strongly urged that the beneficiary - fourth respondent had made an application for providing suitable land and for clearing its project for setting up a steel plant and pellet plant of the production capacity of 1.2 million metric tonnes per annum of pellets and 1 million metric tonnes of iron and steel per annum; that the project had been placed before the State High Level Clearance Committee; that it has elicited all approvals at the necessary levels; that it had been scrutinized in a minute and vivid manner; that for convenience sake and for business reasons, the original applicant - company had caused existence of another company fifth respondent; that they had shared the approved capacity as had been cleared by the State High Level Clearance Committee between the two companies; that the fifth respondent is a sister concern of fourth respondent and being promoted by the very promoter who had promoted the fourth respondent; that on the clearance of the project by the State High Level Clearance Committee before which the fourth respondent had filed an application under the provisions of the Karnataka Industries [Facilitation] Act, 2002, [for short Facilitation Act] availing the services of Udyog Mithra had given due consideration to the request of the fourth respondent; that they have been put in possession of the subject lands as indicated by the State Government and the Board, have made considerable investments, has already started the pellet plant since March 2011 and at this stage, it is not in a position to go back on this project and commitment; that the writ petitions should be dismissed.

60. It is also a very important submission made on behalf of the Board that the land owners are being duly compensated, not merely the market value but also a solatium of 30% over the market value in view of the compulsory nature of acquisition; that mere affectation cannot be the criteria, particularly, when the State employs the power of compulsory acquisition of private lands i.e., the power of eminent domain of the State and therefore there is no scope for invalidating the acquisition proceedings and have prayed for dismissing the writ appeals.

61. Mr. V.R. Datar, learned counsel for the appellants has very vehemently urged that under the scheme of the Act, development of an industrial area can only be by the Board; that the purpose and object of the Act indicates that the State can acquire the land only for the purpose of developing it as an industrial area through the Board wherein any industry can be set up, even industrial estates can be laid and ultimately it can be distributed amongst the intending industrialists and that too in accordance with the Act and rules and regulations; that there cannot be any deviation from the scheme of the Act; that the Act cannot be misused or abused for the benefit of private individuals or companies and acquisition in the name of a private individual while it is reciting it is for developing it as industrial area is nothing short of a colorable exercise of power, particularly, when the Board is not undertaking any developmental activity, but is simply handing over the subject land which was declared as industrial area which was earlier a private holding in favour of a private person for developing some industry and that is definitely not the purpose and object of the Act and therefore the acquisition proceedings themselves are bad in law.

62. One another salient aspect highlighted is about the total ignorance or lack of awareness shown by the State, Government, the Board and all other concerned to the environmental aspects in promoting industries of such nature in sensitive areas; that no examination about the impact of locating such an industry in the area has ever been taken by any of the agencies of the State or by the State Government; that it is a mandatory requirement in terms of the provisions of the Environment [Protection] Act, 1986 and the rules framed under this Act and the Environment Clearance Regulations, 2006; that the type of industry proposed to be set up is one which figures in category [a] in schedule to the Regulations; that for setting up a plant for production capacity as proposed by the fourth respondent 1.2 million metric tonnes per annum of pellets and 1 million metric tonnes of iron and steel per annum is a plant and industry which requires prior environmental clearance even before setting up of the plant or beginning any construction ; that the expert body has to undertake environmental impact assessment and then only can clear a project of this nature; that the clearance in the first instance by the so called State High Level Clearance Committee and later by the State Government, the different agencies of the State Government, the Board and other agencies have exhibited total ignorance or insensitivity to such a mandatory requirement; that the proceedings get vitiated by mere fact that the Government has gone ahead with the acquisition proceedings at huge cost and misery to the private land owners, agriculturists for the benefit of private industry owned by companies and State action for such purpose and such manner cannot pass scrutiny, particularly, the scrutiny of judicial review of State action not only on the touchstone of the provisions of the Karnataka Industrial Areas Development Act, 1966 and rules, the Karnataka Industries [Facilitation] Act, 2002 and the Environment [Protection] Act, 1986, but also the constitutional provisions and placing reliance on the Judgments indicated above has strongly urged for allowing the appeals, quashed the acquisition proceedings and to grant necessary relief to the appellants etc.

63. Before examining the rival contentions, we would like to clear one preliminary objection raised by Sri. Adhyapak, learned Government Advocate that the writ appeals are not tenable u/s 4 of the Karnataka High Court Act, 1961.

64. Submission is that the learned single Judge having dismissed the writ petitions, appeal of this nature cannot be maintained u/s 4 of the Karnataka High Court Act, 1961, presented under Article 226/227 of the Constitution of India, more so, when the learned single Judge has verified the records and negatived the contentions etc.

65. Writ petition being decided on merits has no relation or correlation to the maintainability of the appeal. Appeal filed may be allowed or dismissed, but it does not necessarily mean that all appeals will be dismissed as not maintainable. Be that as it may, this objection does not impress to us to detain us for long as writ petitions were basically invoking the jurisdiction of this court under Article 226 of the Constitution of India and submission of Sri. Datar, learned counsel for the appellants in this regard is that even as per the Judgment of the larger Bench of this court, it is only a petition presented under Article 227 of the Constitution of India or in the sense, when examination is within the scope of Article 227 of Constitution of India and writ petition being dismissed, appeal does not lie, but such is not either the nature of the writ petition or the nature of examination.

66. We accept this submission as petitions were filed invoking the jurisdiction of this court, exercisable under Article 226 of the Constitution of India, questioning the proceedings of the State which are as a result of the exercise of executive and statutory powers of the State. On the other hand jurisdiction under Article 227 of the Constitution of India is pressed into service in petitions which are filed for questioning the legality or validity of orders or proceedings of subordinate courts or quasi judicial Tribunals functioning within the jurisdiction of the High Court. In the present ease, actions questioned being actions on the part of the State and its authorities, even the statutory functionaries in the exercise of statutory and executive powers, they are all examined within the scope of a petition under Article 226 of the Constitution of India for issue of a suitable writ, order or direction if so warranted and therefore we reject the preliminary objection and proceed to examine the appeals on their merits.

67. Appellants are all persons who are agriculturists and owners of lands. Their land is sought to be acquired by the State by use of the power for acquisition of land by the State in what is popularly described as exercise of power of eminent domain. Courts have been very reluctant for interference whenever the State exercises power of eminent domain and have rarely interfered with the acquisition proceedings, particularly so, as the exercise of power of eminent domain is always presumed to be in public interest. However, in a few Judgments the Supreme Court has also indicated that even while the State exercises the power of eminent domain, it cannot give a go by to procedural aspects and statutory requirements.

68. Insofar as the concept of power of eminent domain of the State is concerned, it is defined in P. Ramanatha Aiyars Law Lexicon, II Edition, 2001, reprint at Page 627 as the right of the State or sovereign to its or his own property is absolute while that of the subject or citizen to his property is only paramount. The citizen holds his property subject always to the right of the sovereign to take it for a public purpose. This right is called eminent domain. It is the right of the State or of those to whom the power has been lawfully delegated to condemn private property for public use and to appropriate the ownership and possession of such property for such use, upon paying the owner a due compensation to be ascertained according to law.

69. Though the concept of eminent domain has been subject matter of several judicial pronouncements, it has not been either scrutinized or examined in the context of the Constitution of India and the laws in this country, particularly, laws made after India became a Republic.

70. William C Burtons Legal Thesaurus, II Edition gives a very simple definition of eminent domain as annex for public purpose, assume for public use, take possession for public use, usurp for public use.

71. In fifth Edition of Blacks Law Dictionary, the concept of eminent domain as understood and developed by the American courts and in the wake of the Constitution of United States of America and several amendments carried out to that Constitution and more so the manner of right to property in terms of the fifth amendment to the Constitution has been noticed under:

Eminent domain: The power to take private property for public use by the sate, municipalities, and private persons or corporations authorized to exercise junctions of public character. Housing Authority of Chreokee National of Oklahoma v. Langley, Old., 555 P. 2d 1025, 1028. Fifth Amendment, U S Constitution.

In the United States, the power of eminent domain is founded in both the federal [Fifth Amend.] and state constitutions. However, the Constitution limits the power to taking for a public purpose and prohibits the exercise of the power of eminent domain without just compensation to the owners of the property which is taken. The process of exercising the power of eminent domain is commonly referred to as condemnation, or expropriation.

The right of eminent domain is the right of the state, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the state on account of public exigency and for the public good. Thus, in time of war or insurrection, the proper authorities may possess and hold any part of the territory of the state for the common safety; and in time of peace the legislature may authorize the appropriation of the same to public purposes, such as the opening of roads, construction of defenses, or providing channels for trade or travel. Eminent domain is the highest and most exact idea of properly remaining in the government or in the aggregate body of the people in their sovereign capacity. It gives a right to resume the possession of the property in the manner directed by the constitution and the laws of the state, whenever the public interest requires it.

72. A perusal of these definitions of eminent domain clearly indicates that the power of compulsory acquisition of private land by the State is and should always be for a public purpose and on paying a just compensation to the land holder. It can be easily inferred that in a situation where the acquisition is not for a public purpose, the power of eminent domain of the State is not available. Sine qua non for the exercise of power of eminent domain is that existence or presumption that such land is being acquired only for a public purpose and not for any other private use.

73. The concept of eminent domain is based on two principles. One is the Biblical concept that the Lord or God is the Supreme of this Universe and an incidental corollary to this or as a concomitant to this is the King or the Queen who exercises sovereign power which is the power of the Supreme exercises it as a representative. It is therefore the power of King or Queen who is sovereign is also absolute, which enables the King or Queen i.e., the State to take over lands in private holdings by the State.

74. The second presumption based on which the principle of eminent domain works is that the sovereign is the absolute owner of all properties and of all lands as is noticed in Ramanatha Aiyers Law Lexicon. The person in occupation of the land though may be called as owner has no absolute right but a right to remain in possession which in turn is also linked to the concept of fee simple and fee tail as it prevailed in England coupled with this presumption, when such land is sought to be resumed by the owner from the possessor who is at the best described as permanent tenant in the English legal concept, tenant cannot resist resumption of the land, more so, when the resumption is in the name of a public purpose. That is the sanctity for resuming lands in private holdings by the State by the exercise of power of eminent domain.

75. Our country being ruled by the British, English law being administered in this country and being continued, has continued to rule the roost though we became independent, also became Republic and are under the governance by the Constitution of India. In the Constitution of India, the property right was originally in fact, a fundamental right under Article 19[1][f] of the Constitution of India. However, that was removed from Part-III of the Constitution of India by 44th amendment of the Constitution of India by deletion of Article 19[1][f] in the year 1978, but a corresponding provision was put in place in the Constitution by introducing Article 300A of the Constitution of India which now reads as under:

300A. Persons not to be deprived of property save by authority of law:-

No person shall be deprived of his property save by authority of law.

76. Person not to be deprived of property save by the authority of law. The language of this article is more or less in pari materia with the language of Article 21 of the Constitution of India where deprivation of the life or personal liberty of a person is also equally frowned upon except according to the procedure established by law. One difference being while Article 21 of the Constitution of India still remains in Part-III of the Constitution of India, Article 300A of the Constitution of India finds place in Chapter-IV of Part-12 dealing with commercial transactions, finance, property and contracts and suits in Part-12.

77. While Article 300A of the Constitution of India has not found many customers for its blossoming by judicial interpretation. Article 21 of the Constitution of India has been patronized by courts time and again, particularly, the law being developed in the area of preventive detention and wherein courts have developed the mechanism to ensure that life or liberty of an individual is not belittled, not trampled upon by the State by the improper use of the exercise of power of preventive detention. These aspects are referred to only for highlighting the principle that whenever a law is draconian in nature, invasive of the rights of individuals, judiciary and courts have devised ways and means to ensure commensurate protection is given to the individuals against the mighty power of the State to prevent oppression and suppression so that the individual is not annihilated or crippled by the use of the mighty power of the State.

78. In our country, essentially an agricultural based society, deprivation of land to a land holder is not merely deprivation of property to be compensated in terms of money, but also deprivation of very livelihood is being uprooted. It is virtually deprivation of his very life and the livelihood. In such situations, Article 21 of the Constitution of India looms large. Though courts have to some extent touched upon Article 21 of the Constitution of India, in this context, examination and approach has always been dominated by the concept of eminent domain and not either from the Constitutional angle or on an objective criteria etc.

79. The third aspect of compulsory acquisition is when land is acquired by the State, it becomes a largess of the State and the State largess is required to be administered in a proper and fair manner, at any rate, not in an arbitrary manner or by a pick and choose method or in a preferential manner, which violates Article 14 of the Constitution of India.

80. The very object of law and law making is to protect the weak, disabled, helpless and the gullible from the tyranny and the might of the strong, powerful, affluent etc. It is the purpose and object of the law to provide a level playing field to all persons. Unless law protects every individual, every section of the society, the purpose of law will be defeated: there will be no meaning left in the concept of rule of law and what will reign over is only the power of money and might and the rule of jungle will prevail but not the rule of law.

81. To quote N.A. Palkhivala, the eminent author in his introduction to The Law and Practice of Income Tax, by Kanga and Palkhivala,

........ .........

The wise have said that the problem of judicial interpretation is to hold a just middle way between excess of valour and excess of caution. In income tax cases, there is too often an unfortunate tendency to incline towards excess of caution - to hold a principle in fetters and stunt its developments. There is need in our time and land to recall the words of Sir Frederick Pollock. Those who make no mistakes will never make anything and the judge who is afraid of committing himself may he called sound and safe in his own generation, but will leave no mark on the law.

The concepts of capital and revenue are dynamic, not static, concepts; the test may have to be changed with the changing circumstances. The law and levy of income tax are directly related to economic factors and are conditioned by social and political forces, by industrial and commercial considerations. The interpretation of such a law must necessarily be inspired by the principle of growth. Such a law cannot standstill. It must vitalize and refresh itself from extrinsic sources: it is always approaching and never reaching Logical consistency because it is always in the process of growth.

This profound observation equally applies in other branches of law as well. Wherever arises a competition, nay, conflict between survival and development, courts and Judges are better advised to remember the profound observations of the eminent author, quoting visionary Jurist, Sir Frederick Pollock. Stagnation of thinking is death. Innovation to suit the changing needs is progress, life. Destruction of natural resources is not development but harmonious sustained development without vast affectations should be the approach of the administration, more so, within the framework of statutory and constitutional limits and mandate.

82. In the present appeals, we find the State has exercised its powers available under the provisions of the Act coupled with the provisions of the Facilitation Act, for acquiring private agricultural lands for the setting up of an industry by a private jural person; a company.

83. While examination could have been confined to the provisions of the Act alone, with the State having called in aid the provisions of the Karnataka Industries [Facilitation] Act, 2002, particularly, the concept of the State High Level Clearance Committee, whose composition is no doubt very impressive and intimidating, comprising such as no less than the Chief Minister of the State and clearance by this committee undoubtedly can have its effect, impact and value over all other departments and agencies of the State and if anything is lacking in this regard, it is achieved by the provisions of section 5 of the Act reading as under:

5. Establishment and incorporation:- For the purposes of securing (1) the establishment of industrial areas in the State of Karnataka and generally for promoting the rapid and orderly establishment and development of industries and for providing industrial infrastructural facilities and amenity in industrial areas in the State of Karnataka, there shall be established by the State Government by notification a Board by the name of the Karnataka Industrial Areas Development Board.

2) The said Board shall be a body corporate with perpetual succession and a common seal, and may sue and be sued in its corporate name, and shall subject to the provisions of this Act and the rules made thereunder be competent to acquire, hold and dispose of property, both movable and immovable and to contract and do all things necessary for the purposes of this Act.

84. It is because the origin of the acquisition proceedings goes back to an application placed by the fourth respondent before the State High Level Clearance Committee, it was processed by the Committee and approved in terms of the order dated 22.12.2005 and as a sequel, the acquisition proceedings have been initiated under the provisions of the Karnataka Industrial Areas Development Act, 1966.

85. The records of the State Government, particularly of the Karnataka Udyog Mithra relating to the case of M/s. MSPL Limited, Bellary, which is placed before us indicates that an application having been made by the fourth respondent to the State High Level Clearance Committee for clearance received on 24.3.2005, this application is processed by the Committee and it inter alia indicates that it is a project with an investment potential of Rs. 2292.26 crores and with annual production capacity of 1.2 million metric tonnes of pellets and 1 million metric tonnes of iron and steel.

86. Application also indicated the extent of indigenous plant and machinery and the extent of imported plant and machinery etc., and insofar as the present appeals are concerned, in the application, the fourth respondent had indicated that it may require an extent of 988.5 acres of land for setting up its factory.

87. However, Mr. M.M. Swamy, learned counsel for the fourth respondent submits that the fourth respondent - company had conducted survey of the lands available in the three villages and had indicated in terms of the plan available at page 172 of the file that it may require a total extent of 1034 acres which is sought to be put to use in the following manner:

88. Though it is submitted that this is all part of the application, we do not find any such indication in the file and it is not even clear as to whether these proposals for extent of land were indicated as in the said attachments to the application as the application does not mention about it.

89. It is based on this proposal to set up the project and the investment sought to be made by the fourth respondent - company, the State High Level Clearance Committee had cleared the proposal in item No. 2 of the proceedings dated 6.6.2005 held at the Home Office of the Chief Minister.

After detailed discussions, the Committee approved the project with sanction of following infrastructural assistances, incentives and concessions:

Infrastructure facilities:-

Land:- KIADB to acquire and allot through consent of land owners 1.034 acres of land in Sy. No. 2 to 9, 12 to 18, 20, 21, 132, 136 of Halavarthy village, Sy. No. 295 to 299, 300 to 305, 307 to 309 of Koppal village, Sy. No. 80, 81, 121, 122, 127 to 130, 132 to 154 and 157 to 171 of Basapura village, Koppal District Land Audit Committee to assess the actual land requirement for the project

Power:- KPTCL/GESCOM to provide 20 Mw "Grid support" during construction and operation, to he arranged from Munirabad Substation.

Water:- The Water Resources Department to examine the request of the Co for allotment of 12.55 MGD water from Tungabadhra Reservoir, if any such quota already sanctioned to erstwhile M/s Tungabadhra Fibres Ltd. is still available, subject to concurrence of Thungabhadra Board. The Secretary. Water Resources Department, informed the committee that inflows into and storage capacity of the dam has been reduced over the years due to accumulation of silt and advised the promoters to consider drawing of water from down-stream of Thungabhadra River. The Principal Secretary to Government C & I Department, suggested that the Co. could join hands with M/s. JVSL in their proposal of drawing 100 MGD water from the Almatti Dam, which is under consideration of the Government. The promoters informed the Committee that they would consider the suggestions for their expansion project.

The company was advised to adopt the elements of the National Water Policy including rain water harvesting, recharging of ground water, complete recycling of water etc. The company was also advised to indicate their net requirement of water after taking into account the quantum of recycled water.

Environment and Pollution Control Clearances:

Since, the proposed project is covered under Schedule-1 of Environment Impact Notification of Government of India, it requires the approval of Government of India. The company was advised to apply for and obtain pollution and environmental clearances from Karnataka State Pollution Control Board, and the MOEF. Government of India as per the provisions of the relevant Acts and Rules governing environmental protection.

Providing local employment:-

The company shall provide employment to local persons in the unit as per para 8.6 of the Industrial Policy 2001-06.

Incentives and concessions:-

Incentives and concessions as per New Industrial Policy 2001 06, as modified.

Others:-

1) Mining lease: The promoters were advised to apply separately for the mining lease.

90. The records indicates that this is followed up by the Government order dated 22.12.2005 at page 274 of the record, inter alia, indicating that the subject lands are made available to the applicant and can be acquired with the consent of the land owners and can be allotted to the applicant - fourth respondent - company and the requirement of the extent of land can be got examined by the land audit committee and precise extent of land required for the project can be fixed.

91. One another salient aspect of the Government order is that as the proposed project comes under schedule-I of the Notification issued by the Central Government under the provisions of the Environment [Protection] Act, 1986 and rules and regulations, the company is required to obtain not only the approval of the State Government for the project, but also elicit necessary approvals, no objection certificates etc., from the Karnataka State Pollution Control Board and the Ministry of Environment and Forest of the Central Government by making necessary application in this regard and in accordance with the applicable statutory provisions.

92. It appears the land audit committee had also evaluated the requirements of the land and had in its proceedings of the third land audit committee meeting held on 28.1.2006 in Subject No. 2.5 and after detailed discussions agreed to consider the required extent of land of 1034 acres and to intimate the same to the Board. Such is the background before the State Government embarked on invoking its powers under the provisions of the Act.

93. There are three aspects involved in any situation of compulsory acquisition of private lands and in the name of public purpose.

94. As discussed above, though the postulate and the power of eminent domain of the State may not be totally relevant in the present constitutional set up, enabling statutory provisions undoubtedly have their say and if enabling statutory provisions so enable the acquisition of private lands by the State Government, it can embark upon. Insofar as the history of legislation relating to compulsory acquisition of land in this country is concerned, it was ushered in during the British regime in the year 1894 and has continued to rule the roost even today though some amendments have been made to this Act sporadically.

95. Insofar as the general Land Acquisition Act, 1894 is concerned, the guiding factor is acquisition of private lands for public purpose. As our country was ruled by British and the principle of power of eminent domain of the State was equally available and extended, that took care of validation of acquisition proceedings and courts have been by and large approving the validity of acquisition proceedings without looking further into or even subjecting the administrative action to any scrutiny, leave alone strict scrutiny.

96. The Act does not necessarily use the phrase public purpose and this distinction has been judicially noticed in some of the Judgments of the Supreme Court. But, the examination in the context of the property rights always yielded in favour of the State as it is a foregone conclusion that even individual interest has to yield for the common good and for a larger public interest. That has to be the guiding factor in the case of acquisition proceedings even bereft of the concept of power of eminent domain of the State.

97. Insofar as this Act is concerned, that perception of eminent domain is not patent but latent as the acquisition by and large is by the State and for development as an industrial area which is again presumed to be in the larger public interest paving way for development. The concept of development as hitherto understood has been gradually making way for the belated realization of concept of conservation and inevitably there is now a competition between development and conservation. Though the word development is used, when this word is examined in an objective manner, in an impassionate manner, it is nothing but interference with the existing state of nature and destroying nature! Awareness for conserving nature is a very late realization on the part of human beings and more so in our country. It is in the wake of such awareness for conservation, enactments such as the Environment [Protection] Act, 1986 and its allied legislations such as Air [Prevention and Control of Pollution] Act, 1981, Water [Prevention and Control of Pollution] Act, 1974, Forest [Conservation] Act, 1980, have all been put in place.

98. While this is one aspect of the concept of development, it is presumed that any industry is for development. In recent times, society and judiciary have been realizing setting up industry per se in itself cannot be presumed to be a developmental activity, but it can also be a deleterious activity creating negative impact on the society, people and the environment.

99. Any industry inevitably creates and causes pollution of the land, air and water. The land, air and water - natural elements are limited as was observed by the Supreme Court and particularly the Supreme Court quoting John Stuart Mill about the limited availability of the land in the case of Raghbir Singh Sehrawat Vs. State of Haryana and Others, reading as under:

2. More than 16 decades ago, John Stuart Mill wrote:

land differs from other elements of production, labour and capital in not being susceptible to infinite increase. Its extent is limited and the extent of the more productive kinds of it more limited still. It is also evident that the quantity of produce capable of being raised on any given piece of land is not indefinite. These limited quantities of land, and limited productiveness of it, are the real limits to the increase of production.

3. In 1947, the first Prime Minister of India Pt. Jawahar Lal Nehru said "everything else can wait, but not agriculture". In its fifth and final report the National Commission on Farmers headed by Dr. M.S. Swaminathan observed that prime farmland must be conserved for agriculture and should not be diverted for non-agricultural purposes, else it would seriously affect the availability of food in the country where 60% of the population still depends on agriculture and people living below poverty line are finding it difficult to survive.

4. Unfortunately, these words of wisdom appear to have become irrelevant for the State apparatus which has used the Land Acquisition Act, 1894 (for short "the Act") in the last two decades for massive acquisition of the agricultural land in different parts of the country, which has not only adversely impacted the farmers, but also generated huge litigation adjudication which consumes substantial time of the courts. These appeals filed against the orders dated 17.05.2010 and 19.11.2010 of the Division Bench of the Punjab and Haryana High Court is one of many such cases which the landowners are compelled to file with the hope that by the courts intervention they will be able to save their land.

100. While John Stuart Mill might have impressed learned Judges of the Supreme Court and they would have found it proper to quote John Stuart Mill in the context of examination of compulsory acquisition of private land by the State, such examination if results or is translated into a principle of law or law declared by the Supreme Court of India, it becomes law binding on this court and gets a higher value and has a greater impact.

101. In the present case, while land owners who are getting affected are as many or much more than 300 land owners, as it is inevitably a common phenomena in this country, every land holding is shared by several members of the family and land is the very source of livelihood, avocation for farmers by tilling the land and more often than not they have their dwelling houses also in the very land and deprivation of land denies them not merely their land, their livelihood, but many a times, even a dignified way of life and can even lead to disastrous consequences and such is the affectation insofar as the land owners are concerned, as a result of the acquisition proceedings.

102. Not acquiring the land is said to be in the way of development by a private company/companies. Private company which has multiplied into two or three, even during the process of acquisition proceedings, in between the application before the State High Level Clearance Committee and before the lands being notified for acquisition etc., under the Act and which has further become three in number, but are all limited companies and whose only interest is commercial and if at ail for making a profit.

103. If the acquisition proceedings should be interfered, it will result in not merely some development being halted, but the beneficiary being also affected is what dissuaded the learned single Judge from going further into the contentions urged and merits of the writ petitions. With great respect, we are of the view that such cannot be the examination in a matter of this nature, particularly, as deprivation of land from an agriculturist land owner has a very deleterious effect, a very harmful effect, even devastating effect on the land owners. But at the same time, it is not to be understood, this court is opining that no agricultural land can ever be acquired. Even agricultural lands can be acquired for a bona fide purpose subject to all compliances of statutory and procedural requirements. That is the reason why we have indicated that whenever the impact of the law is great, nature of law is draconian, has the effect of depriving life, liberty or property, examination by courts have to be proper, strict, if need be, deep, pervasive and not merely a superficial examination. Unfortunately, by and large, courts have undertaken only superficial examination of the impact of acquisition proceedings, even when the procedural compliances are violated or not followed during the State embarking on acquisition proceedings, courts have been pro acquisition and have generally approved or upheld acquisition proceedings in the name of public interest.

104. However, in recent times, trend has been reversed and therefore the impact on not merely the individual land owners but also on the environment surrounding and the overall effect of conversion of land which was being used for agricultural purposes which is a nature conforming activity and other purposes are being examined strictly and scrutinized deeply. If we apply such strict norms, we find and as disclosed from the records that there are glaring procedural non compliances and irregularities ever since the application was placed by the fourth respondent before the State High Level Clearance Committee.

105. We cannot help but to observe that while the Karnataka Industries [Facilitation] Act, 2002 can be a good laudable piece of legislation for the purpose of cutting down redtapism and for the purpose of facilitating entrepreneurs to put in their proposals before the State for seeking prompt and early clearance, but at the same time it can never be by giving a go by to other statutory requirements and procedural compliances.

106. Unfortunately, language of section 5 of the Act has sent a wrong signal and the State High Level Clearance Committee being comprised of the highest executives including the Chief Minister of the State, virtually leaves no option to all other agencies of the State whether statutory or otherwise and has produced in them a state of submissiveness and they have mechanically like robots acted in a compliant manner. There is absolutely no application of mind at the subsequent levels. A notification issued u/s 3 of the Act in the name of the Act and for declaring an area mentions names of respondent Nos. 4 and 5. Respondent No. 5 was never an applicant before the State High Level Clearance Committee, but, nevertheless, figures in the notification u/s 3 of the Act. Even mentioning of the names do not reveal or spell out as to how they figure there. No preamble or legend is given to it. Then follows the application of chapter-VII in respect of the land notified. A mechanical processing of the subsequent stages for acquisition has followed. An examination of the record has not inspired our confidence that either individual notices have been issued, in the sense that, it has reached the individuals and they were given an opportunity or the manner in which their objections are considered or the manner in which the so called possession of the land has been taken over by the State and in turn handed over to the Board and the Board in turn handing it over to the beneficiary.

107. We say so for the reason that under the Act, taking possession whether without resistance in which event the provisions of section 28[6] of the Act need not be pressed into service and if resisted, by use of force in terms of section 28[7] of the Act can be used should be in a law conforming manner and as evidenced on record. Here the complaint of many land owners assumes significance with they having been sought to be dispossessed or thrown out of their land by the fourth respondent - company. That means they have never yielded possession nor have been dispossessed. That only indicates that record is one made up for the purpose of showing compliance with the provisions of the Act, but is not reflective of developments! In fact, the manner in which the mahazar is drawn in presence of the Revenue Inspector and the Village Accountant to say that possession has been taken and by affixture on land is a total farce as it is indicated in most of the cases that the land owners are neither not available in general or have gone away elsewhere etc.

108. Though it is pointed out from the records by learned counsel for the State and the Board and also the company that it became necessary for the State Government to resort to acquisition proceedings and to dispossess the persons as they resisted particularly with the land owners going back on their consent to part their lands and receiving compensation, the conciliatory process to persuade the land owners to part with their lands by receiving compensation failed, because land owners demanded exorbitant compensation of Rs. 30 lakhs per acre whereas the State and the beneficiary were not inclined to agree for this price and even with the Deputy Commissioner having thereafter examined the matter and having found that the value of the land cannot be put as high as Rs. 30 lakhs, point is that there was no consent acquisition, land owners were reluctant to part with their land. In such situations, procedural requirements should be complied to the hilt and the manner envisaged under the Act, should be followed scrupulously. We are not at all satisfied that such has been the compliance.

109. One another aspect which calls for scrutiny by the courts to be strict is that the provisions of section 28 of the Act, particularly, sub-sections [5] and [6] to this section of the Act which indicates that the moment the State Government issues a declaration that the land notified u/s 28[1] of the Act and having gone through the procedures u/s 28[3] of the Act, is so required for the purpose for which it has been notified, then the land automatically vests absolutely in the State Government free from all encumbrances. Thereafter, the State Government is enabled to issue notices to the land owners, calling upon them to surrender possession within a period of one month from the date of receipt of the notices and on their failure, is further enabled u/s 28[7] of the Act to take possession by use of force as may be necessary in the opinion of the State Government. Power of this nature is very draconian in nature. In fact, this power can be exercised even before the land owners are paid any compensation. The power to take possession of the land, in the sense, dispossessing the land owners is not necessarily linked to the requirement of paying a just compensation/market value compensation to the land owners. An affectation of this nature against the land owners whose very livelihood is the land, who live on the land, who dwell on the land is a far reaching consequence and cannot be just imposed on them by use of the mighty power of the State just because the subject land is notified as being required for being developed as an industrial area or for being developed as an industry.

110. Whether the provisions of the Act have been upheld for its legislative validity or not, what we are examining in the present appeals is not so much the validity of law, but the impact of the operation of law i.e., the administrative action put in place by the operation and in exercise of statutory power in terms of the provisions of sub-sections of section 28 of the Act and with such an impact which we have noticed is very deleterious, negative and debilitating on land owners, inevitably, scrutiny by court in the exercise of the jurisdiction of judicial review of state action has to be strict, deep and to the hilt.

111. The law of preventive detention has been developed on such lines as it is seen that a deprivation of life and liberty without adhering to the due procedures of law is violative of Article 21 of the Constitution of India and though on the parameters indicated in Article 22 of the Constitution of India and Article 22 is not necessarily attracted in the present situation, the impact of deprivation of land to land owners or agriculturists whose source of livelihood is the very land, and who eak out their livelihood from the crops grown in the land, is nothing short of deprivation of their life and the right to lead a dignified life. Therefore, the test cannot be any different than the one as is applicable to the examination when there is affectation in respect of the right guaranteed under Article 21 of the Constitution of India.

112. Whether this examination can be put on such a high pedestal or not may be debatable point, but courts cannot avoid or give up scrutiny into the State action either in the name of the recitation of the word development or in the name of the process of acquisition having reached an advanced stage or having culminated, there need not be any interference at the later stage etc.!

113. It is high time the State also realizes that State is also bound by the laws, State has to obey, respect and comply laws, abide by laws and in fact ensure its implementation. There cannot be any laxity in this aspect.

114. When examined on such a touchstone and such tests are applied, we find that the present acquisition proceedings cannot stand. The affectation is very adverse and the benefit if at all is a return because of future development of an industry with some potential for employment and may be a little revenue to the State. The affectation to the livelihood and dignified life of thousands of people which is not examined even it is not the focal point, it should at least be given due attention which it deserved.

115. From the facts placed before us, we do not find any awareness shown in this regard except that as a condition, the State imposes on the beneficiary the requirement of providing employment to one individual from every family of land losers. In our opinion, this is too small a consolation for persons who are deprived.

116. Be that as it may, examination is not necessarily from the angle of the petitioners - appellants. But, the examination is only of the State action and not even from the angle of the beneficiary. Whether the land owners lose their land or third party like private industry gains something may not assume much importance or may even recede to the background if the State should act in a law conforming manner. But, when the State action does not inspire the confidence of this court for having adhered to the laws and on the other hand gives an impression that the Karnataka Industries [Facilitation] Act, 2002 is misused for the purpose of gain and other things, the manner in which one company becomes two and with the history of limited companies being too very well known, though the British claimed that the invention of joint stock company is the genius of English legal mind, when the concept is examined from the perception as it prevails in this country and in this society and examined from the ethos of our society, it is nothing short of deception or playing fraud. A joint stock company is invented only to defraud creditors so that they cannot reach persons who have borrowed. The ethos of our country is that the borrower should repay his creditor and not to hoodwink or defraud the creditor. It is legendary as to how Banks go bankrupt because of non-repayment of loans by the borrowers and only end up with winding up proceedings before the courts. No one can be identified for accounting the huge funds borrowed. It is another irony in this country that agricultural land which is the main avocation of the masses, which, in fact, also contributes to the productivity and may be the major contributor to the gross domestic product of the country, is not recognized as an industry or organized activity and even Nationalised Banks are even now reluctant to come to the rescue of farmers, while they are very liberal in advancing huge amounts by way of loans to companies and Industries and what with the development of concepts like liberalisation and globalisation and the global trends being creating shell companies only to hoodwink the people of the country and revenue to the State and if encouragement to all such activities can be called as development, we have our own reservation about the same. Be that as it may, let us not lose our soul in the name of development by depriving agricultural land holders of their land holdings in the name of development. But, that is a matter of policy for the State and it is for the State Governments to bestow their attention on this aspect and insofar as judiciary is concerned, we can only express our anguish and anxiety for the legislature to usher in suitable legislation and for a change in attitude towards such activities.

117. In this Judgment, though we have noticed several Judgments cited and relied upon by learned counsel for the appellants and also by learned Government Advocate of the State, learned counsel appearing for the Board and the beneficiary companies, we have not adverted to or discussed in great detail the ratio of the Judgments and the applicability or otherwise of those Judgments for the reason that the subject matter of acquisition is in a totally different context, in the background of the operation of the two enactments such as the Karnataka Industrial Areas Development Act, 1966 and the Karnataka Industries [Facilitation] Act, 2002, and more so, in the background of manner of examination of the validity of acquisition proceedings by applying the parameters of judicial review of administrative action which is one of looking into the decision making process and not the correctness or otherwise of the decision and also the fact that the deprivation of agricultural land in private holdings of agriculturists by the State Government even for a public purpose has to bear judicial scrutiny of acquisition proceedings conforming the test of strict and precise adherence to statutory provisions and procedural requirements, as such acquisition proceedings in the present situation has the impact of depriving the livelihood of land owners and can also adversely affect their livelihood for the rest of their lives. It is therefore we have referred to only such of those Judgments which have a direct impact and also of some significance in the constitutional principles having a bearing of the present examination.

118. Acquisition notifications themselves specifically mention the names of the two private companies and for their setting up of the steel plant etc. It is not for the purpose of the board as the board is not developing the acquired land and allotting it to the aspiring industrialists. If the industries proposed to be set up in the area is either not feasible or does not get environmental clearance, the very purpose of acquisition fails. Having regard to the nature of the industry proposed to be set up prior environmental clearance as per the Environment (Protection) Act, 1986 and the Environment (Protection) Rules. 1986 is a must. The relevant rule viz., Rule 5(3) of the said Act and the column 3(a) of the schedule to the notification dated 14-9-2006 issued by the government of India under this sub-section, are extracted below:

Rule 5(3):

5. Prohibitions and restrictions on the location of industries and the carrying on of processes and operations in different areas:-

xxx

(3)(a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the locations of an industry or the carrying on of processes and operations in an area, it may, by notification in the Official Gazette and in such other manner as the Central government may deem necessary from time to time, give notice of its intention to do so.

(b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the locations of the industries and carrying on of process or operations in that area.

(c) Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette.

(d) The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette consider all the objections received against such notification and may within three hundred and sixty five days from such date of publication impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area.

Column 3(a) of the schedule to the Notification dated 14-9-2006:

119. The state embarking on acquisition of private land by exercise of statutory powers of the state to acquire private lands, which is the equivalent of the exercise of power of eminent domain of the state, even in a situation where there is no real public purpose and even without applying its mind to the relevant aspects, is a clear instance of not only a colourable exercise of power but also an arbitrary exercise of power, violative of Article 14 of the Constitution of India.

120. In the light of our above examination, submissions made by Sri V.R. Datar, Sri Sharanabasava and Sri Chandrashekhar, learned counsel for the appellants command for our acceptance. On the other hand submission by learned Government Advocate on behalf of the state government, learned counsel for the board and the learned counsel for the beneficiaries only deserves to be rejected.

121. On an overall examination, of the acquisition proceedings and in the background of the operation of provisions of the Karnataka Industries [Facilitation] Act, 2002, we find that the acquisition proceedings cannot be sustained as it is neither law conforming nor procedural conforming and not for a genuine public purpose, in the sense, to be developed as an industrial area and by the Board etc.

122. It is therefore we are left with no choice but to quash the acquisition proceedings.

123. We are also of the view that though only a few affected persons from amongst the land owners are before the court and in fact may constitute less than 10% of the land owners whose lands have been acquired and others are not before the court, examination cannot be denied or deprived to those who have approached the court on the ground that they are less in number or constitute a minority amongst the land losers. No doubt, we are in a democracy, numbers matter and it is the majority which gains the power and rules the people, but courts cannot adopt such an attitude as duty of the court and judiciary is to take care of every individual who approaches the court to examine his cause and to pass orders on the merits of the matter than to avoid scrutiny on other considerations or to deny an opportunity of examination of the action or to deny an opportunity to examine the cause of the affected person because of other inconveniences. There cannot be any assumptions or presumptions in this area and that is the reason we have embarked on an examination on merits of the matter though number of persons who have approached this court may be small in number and might have constituted minority of the land losers.

124. Acquisition of private lands by the State Government whether for a public purpose or for a private purpose is serious business as the State is employing its predominant power for making a compulsory purchase of private lands, even against the will of the land owners on the premise it is required for a public purpose or for the common good of the society.

125. If the acquisition is in respect of agricultural lands, the affectation is much more. The land owners who are farmers are not merely deprived of their land but also their livelihood and thrown out of their avocation. It has very serious effect on the agriculturist land owners, uproots them from their roots and leaves them in the lurch. Until and unless, the State is aware of all these consequences before embarking on any acquisition of agricultural lands, it virtually amounts to an inhuman act on the part of the State to acquire agricultural lands mindlessly. The State Government being a welfare state as envisaged under the Constitution is required to take care of the welfare of all people, keep in mind the interest of all sections of the society and in the name of development cannot just deprive life and livelihood of people and put them to great misery and hardship, even without following the precise procedure envisaged in law and by the improper use of states statutory power for acquisition of private lands.

126. In the result, we sum up our conclusions as under:

i) In the Indian context, judicial review of administrative action is much more precise, pervasive and accurate than as contemplated either under the English legal system or as developed in the American legal system. In the wake of our country having a written constitution and laws made by competent legislatures, judicial review of administrative action is not merely confined to the question of decision making process on the parameters of the same being affected or vitiated due to unreasonableness, arbitrariness or irrationality, which concepts are not capable of a precise definition though many erudite authors have made good contributions and administrative law is very much part of jurisprudence, but is on more substantial and precise parameters such as on the touchstone of the statutory provisions and the constitutional provisions and therefore any decision and the process of making such a decision, if is not in conformity with the relevant statutory provisions and the constitutional provisions, the decision is affected and cannot be sustained.

ii) Acquisition of private lands even for a public purpose, while should always be in conformity with the laws governing acquisition proceedings and existence of public purpose which subserve a public interest is a sine quo non of such acquisition proceedings, in a situation where acquisition is of private agricultural lands belonging to agriculturists and has the effect of affecting their very livelihood and depriving them of their avocation, then the acquisition proceedings will have to be tested even on the touchstone of the constitutional provisions such as Articles 14, 21 and 300A of the Constitution of India and though there is no corresponding safeguard as is provided under Article 22 of the Constitution of India vis-a-vis violations of Article 21, nevertheless, courts will have to apply the test of strict compliance with procedural requirements and any deviation even from procedural requirement will vitiate acquisition proceedings.

iii) Acquisition of lands under the provisions of the Karnataka Industrial Areas Development Act, 1966 can only be for the purpose of developing the subject lands as an industrial area and by the Board and cannot be for the benefit of a private industry or company or companies, particularly as the notifications issued under the provisions of 1, 3 and 28 of the Act, proclaiming that the subject lands are notified for acquisition for the purpose of the board and when once it is so, handing over of such lands to a private industrialist amounts to an instance of improper exercise of power and for a purpose other than the published and stated purpose, but more importantly, distribution of such acquired land, whether after development or before development, being in the nature of distribution of largesse of the state, amounts to depriving equal opportunity to all aspirants, who propose to set up industries in industrial areas and when the state hands over acquired lands to a private individual, it is therefore violative of the equality clause in the Constitution of India. In this regard, statement of law as enunciated in the single bench decision of this court in the case of Heggappanavara [supra], later followed by another learned Single Judge in the case of N. Somasekhar [supra], on the basis of the judgment of the Supreme Court in the case of Ramtanu [supra], does not state the correct legal position as indicated in para 21 of the judgment of the constitutional bench of the Supreme Court, reading as under:

21. Counsel on behalf of the petitioners contended that there was procedural discrimination between the Land Acquisition Act and the Act in the present case. It was said that there was a special procedure designed by the Land Acquisition Act for acquisition of land for the companies whereas in the present case the State was acquiring land for companies without adopting the procedure of the Land Acquisition Act. It is to be remembered that the Act in the present case is a special one having the specific and special purpose of growth, development and organisation of industries in the State of Maharashtra. The Act has its own procedure and there is no provision in the Act for acquisition of land for a company as in the case of Land Acquisition Act. In the present case, acquisition under the Act is for the purpose of development of industrial estates or industrial areas by the Corporation or any other purpose in furtherance of the objects of the Act. The policy underlying the Act is not acquisition of land for any company but for the one and only purpose of development, organisation and growth of industrial estates and industrial areas. The Act is designed to have a planned industrial city as opposed to haphazard growth of industrial areas in alt parts of the State. The Act is intended to prevent, growth of industries in the developed parts of the State. Industries are therefore to be set up in the developing or new parts of the State where new industrial towns will be brought into existence. The object of the Act is to carve out planned areas for industries. On one side there will be engineering industries and on the other there will be chemical industries. There will be localisation of industries with the result that the residents and dwellers of towns and cities will not suffer either from the polluted air or obnoxious chemicals of industries or the dense growth of industries and industrial population, within and near about the residential areas. The Land Acquisition Act is a general Act and that is why there is specific provision for acquisition of land by the State for public purpose and acquisition of land by the State for companies. The present Act on the other hand is designed the sole purpose of development of industrial areas and industrial estates and growth and development of industries within the State. Industrial undertakings or persons who are engaged in industries all become entitled to the facilities on such industrial growth. Under the Land Acquisition Act acquisition is at the instance of and for the benefit of a company whereas under the present Act acquisition is solely by the State for public purposes. The two Acts are dissimilar in situations and circumstances.

though the examination by the Supreme Court of the Maharashtra Act was in the context of the Constitutional validity of the Maharashtra Act as being repugnant to the Central Enactment Land Acquisition Act - as we find the purpose of acquisition of lands under the Maharashtra Act as well as the Karnataka Act is both for the purpose of developing industrial areas in the state, and therefore cannot be held to be laying down the correct law and ratio as indicated in the two single bench decisions of this court to this effect is hereby overruled.

iv) An approval of the project proposed by an entrepreneur and cleared by the state high level clearance committee u/s 5 of the Felicitation Act by itself cannot act as an insurance against any possible violations, infractions, illegalities or irregularities in the matter of acquisition of private lands by the state government in exercise of its power under any enabling acquisition Acts including the present act (KIAD Act, 1966). Such clearance cannot and does not absolve the state government from adhering to the procedural requirements envisaged under the Acquisition Act and in the instant case, under the provisions of the KIAD Act and the legality or otherwise of the proceedings for acquisition of lands has to bear scrutiny independently and the mere approval of the project by the state high level clearance committee cannot and will not validate the illegalities or irregularities in the matter of acquisition of land. On such an independent examination in the instant case, we find from the records that the state government as an acquiring authority and the board as a statutory development board, have not only committed infractions of statutory provisions of Sections 3(1) and 28 of the Act but having also merely surrendered to the decision of the state high level committee and have thereby abdicated their duties and responsibilities under the acquiring Act.

v) Simultaneous issue of notifications by the state government for declaring an area as industrial area u/s 3(1) of the Act for notifying the applicability of Chapter-VII of the Act in respect of an industrial area u/s 1(3) of the Act and the state government issuing the notification of its intention to acquire any extent of land in an industrial area for the purpose of development by the board, particularly when different extents of lands are mentioned in these notifications, betrays a clear lack of understanding of the statutory provisions as well as lack of awareness to the legislative scheme in making provisions in the Act for issuing of not only notifications but also to gazette the same under these three different statutory provisions and unless it is factually and on record that the state government is able to establish a commensurate application of mind to the three different enabling sections of the Act, a presumption that either the notifications are validly issued or that the notifications are fully in conformity with the procedural requirement does not arise. For a valid acquisition of lands by the state government in exercise of its powers u/s 28 of the Act, unless the state government has adhered to the procedural requirement under sub-sections 2 to 8 of Section 28 of the Act, the acquisition proceedings get vitiated, as the acquisition results in deprivation of not merely land of agriculturists but also their livelihood and denial of their avocation, and therefore the present acquisition of land becomes unsustainable as procedural requirements under these statutory provisions are not adhered to in the present cases.

vi) Proceedings for acquisition of lands notified u/s 28 of the Act are also vitiated for the reason that the state government has not shown its awareness to the mandate of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, imposing restrictions and prohibitions on new projects or activities based on their potential environmental impacts in respect of the industries and the nature of industries proposed to be set up by the fourth respondent in the subject lands before embarking on acquisition proceedings. The amended Rule has come into force as per notification dated 14-9-2006 and in clear and emphatic terms envisages the procedure for either granting or rejecting of prior environmental clearance. In terms of the notification, even before construction of new projects, it has to be approved/permitted or cleared by the central government or by the state level environment impact assessment authority, constituted by the central government under sub-section (3) of Section 3 of the Environment (Protection) Act. The industries proposed to be set up by respondents 4 and 5 having an annual production capacity far exceeding 20000 tonnes are a class of industries/activities within the meaning of column 3(a) of the schedule to the notification and therefore prior clearance by the central government was essential. The state government having embarked on the acquisition proceedings by issue of preliminary notification dated 9-11-2006 i.e. subsequent to the publication of the notification dated 14-9-2006 under the provisions of the Environment (Protection) Act, indicates that the state government had embarked on acquisition proceedings for the benefit of a private company to set up industries covered by the notification even before it was known as to whether a project of this nature can be cleared by the central government and therefore the acquisition proceedings get vitiated. Acquisition of private agricultural lands by the state government and in the name of a public purpose cannot be either casual or without being aware of the suitability and possibility of the acquired lands being available or otherwise for the proposal. In this view of the matter the state action affecting rights of citizens under Articles 21 and 300A of the Constitution of India and in turn violating Article 14 also, cannot pass muster before a constitutional court.

127. In the result, these appeals are allowed. The order of the learned single Judge is set aside. Writ petitions are allowed by issue of a writ of certiorari. The acquisition notifications issued under sections 3[1], 1[3] and 28[1] of the Act are all quashed. Rule issued and made absolute.

128. We quantify cost in favour of the appellants at the rate of Rs. 5,000/- per appellant in all these appeals against the State.

129. Misc. W. 61779/2009 for stay does not survive for consideration, hence dismissed.

130. As a sequel to the allowing of the appeals and the petitions and quashing acquisition notifications, it is the duty of the State Government to ensure that it restores the land to the land owners.

131. However, Sri. M.M. Swamy, learned counsel for the respondents 4 and 5, after pronouncement of the Judgment makes an oral request for staying operation of this Judgment submitting that its pelletisation plant is operationalized and is functioning and it will impact its existing operations if this Judgment is given effect to immediately and that the beneficiary intends to avail of the remedy of appeal as against this Judgment and therefore the implementation of this Judgment may be stayed for a period of eight weeks.

132. This oral request is vehemently opposed by Sri. Datar, learned counsel for the appellants. Sri. Datar points out that the pelletisation plant is occupying only an extent of 120 acres and even as admitted, the iron and steel plant in the name of fifth respondent is not started and if the respondents 4 and 5 have not even obtained clearance certificates from the environmental authorities, they could not have operated at all etc.

133. In view of the submission made at the Bar by Sri. M.M. Swamy, learned counsel for the respondents 4 and 5 that the pellet plant has been functioning only after obtaining necessary clearance from the Ministry of Environment & Forest, Karnataka State Pollution Control Board and accepting this submission at its face value for its correctness, we deem it proper to stay the operation of the Judgment insofar as the area occupied by the pelletisation plant i.e., about 120 acres is concerned.

134. However, we find no reason or justification to stay this operation in respect of the remaining extent of land as there is basically dispute between the land owners and the State and other respondents as to the taking over of possession in the first instance and the records in fact has not inspired our confidence to resume in favour of the State that they had in fact taken over possession of the land and handed over possession of the said land in favour of respondents 4 or 5. Therefore, we reject the prayer for staying the operation of the Judgment in respect of remaining extent of land other than the one in occupation and in production in respect of pelletisation plant. Ordered accordingly.