Govt should make rules to exempt nurseries from acquiring land, dependency on state agencies ‘to end immediately’: Karnataka High Court

While hearing a petition to acquire land alleged to be used as a nursery, the Karnataka High Court said reliance on the 1987 government order exempting nurseries (kennels) from acquiring land should be stopped immediately.

At the same time, the Supreme Court also noted that if the procurement authorities want to exempt nurseries from acquiring land, they can do so only after introducing a regulatory regime to recognize such nurseries. The Supreme Court emphasized that the government order, which in this case exempted the kennels from acquiring the land, cannot override the statue.

Division bench Justice Krishna S. Dixit and Justice M. Nagaprasanna said “Today, it is too rudimentary that any government order cannot override a statute, especially a subordinate government order that has little or no statutory basis. Hence, henceforth, if the procurement authorities under the relevant statutes wish to exempt a kennel, they can do so only after a regulatory regime is in place to recognize such kennels. It is the state that should take appropriate measures in this regard. Relying on the government order dated 01.01.1987, in our opinion, it is necessary to immediately stop“.

“Those lands that will be used as horticultural nurseries must necessarily be subject to any regulatory regime. Since there is no regulatory regime in Karnataka, they should be registered with the National Horticulture Council as it has a method of accrediting nurseries until the state implements any regulatory regime. Only those children’s rooms can be attributed to the term “children’s rooms” and cannot be defined by Government orders for specific cases“, it added.

Background

The order was passed while dismissing a petition filed by 91-year-old B. Satyanarayanachar challenging the proceedings of the Justice AV Chandrashekar Committee on Dr. K. Shivarama Karanth’s layout dated August 8, 2023 and the final notification dated October 30, 2018, issued by the State Committee in the part related to the land plot of the applicant for the formation of the Plan. The Supreme Court ordered a final notice to be issued.

The petitioner claimed that he purchased the property through a registered sale deed dated 13th May, 2005 and since then he claims to be a horticulturist and florist by profession and is said to be running a nursery, “Sri Govardhana Nursery”. He cited a 1987 government order that exempted nurseries from acquisition where the government or its authorities wanted to acquire land, with the condition that the land exempted from acquisition must continue to be used as nurseries.

The Bangalore Development Authority (BDA) opposed the application, saying the Supreme Court had directed the BDA to issue a final notification on the layout. The defendant/ADB, in compliance with the order of the Supreme Court, notified the final notification about the allocation of land for the purpose of planning on October 30, 2018.

The authorities said that these kennels appeared at night. As of the date of the previous notification, it was only vacant land not used as a nursery. At the time when the Supreme Court ordered the issue of final notice and the petitioner failed to vacate the nursery, boards were put up and plants were put up on the land in question. It was submitted that the petitioner cannot claim parity with the two kennels which the Committee exempted as the Committee gave detailed reasons for the exemption of those two kennels.

A 1987 government order issued by the Deputy Minister of Housing and Urban Development stated: “…Lands used for nurseries will be exempted from land acquisition for their development schemes by the Bangalore Development Authority. If the owners of these kennels stop using these lands for kennels, these lands will be acquired by the Bangalore Development Authority. This order shall take effect immediately and pending further orders.»

Conclusions

The court noted that the 1987 government order was passed on a sole representation made by the Nurserymen Cooperative Society Limited at Lalbagh to the then Chief Minister. The exemption was granted only on the grounds that nurseries would lose their livelihood and there would be development of horticulture, fruit, orchards, plantations, lawns and gardens.

After that it was said:We consider it appropriate to add that this was a specific case, in order to survive the cooperative society of kennels.”

Referring to various judgments of the Supreme Court, the court also said: “The acquisition of land from private citizens is carried out by the state in order to exercise its sovereign power over the outstanding property, albeit on the basis of law. Where a statute is one which governs the acquisition of land by citizens through the exercise of sovereign power in eminent domain, the supra governmental order cannot override the sovereign power in eminent domain or the strictness of the statute“.

It added “…Government regulation cannot take away the sovereign power of eminent domain by making an exception for nurseries.»

It further states that the statute nowhere exempts any part of the land from the acquisition process except in certain circumstances. He noted that in the last 37 years of the existence of the Government Order, judicial clarification of exceptions was only in two cases. The high court further said that there is no law declared by the high court to give the 1987 government order the status of a statute other than the Act – either the Land Acquisition Act or the Bangalore Development Authority Act – under which the acquisition would commence and end.

The court made it clear that “Hence, from now on, if procurement authorities, under the relevant laws, want to exempt a nursery from taxation, they can do so only after introducing a regulatory regime to recognize such nurseries.”

It was noted that one of the common interpretations of the word “nursery” is that plants are grown for transplanting, for use as rootstock, for budding and grafting, or for sale.

Then it was said:At the time of inspection of the land plot by the commission, it was recognized as vacant. In Google Earth images taken on 04-28-2018 and 10-26-2018, the land was empty. The images taken on 20-01-2020 and 06-02-2021 also show that the plaintiff’s land is vacant.”

The court also took into account the plaintiff’s reply to the court’s inquiry that the said land was not the subject of any registration with the Horticulture Council of India. In addition, there was no agricultural activity, no livestock; vermicompost, waste processing and biogas are not generated. The applicant does not conduct any consultations regarding the development of plants in the nursery.

It was said: “Therefore, we fail to see how such land, which does not have any characteristics of a nursery, can be exempted from acquisition“.

Accordingly, he dismissed the petition leaving it open to the petitioner to seek compensation or any other mode of redemption for the acquisition as reported by the State/BDA.

Case Name: B. SATHYANARAYANACHAR AND State of Karnataka and others

Case No.: WRIT PETITION No. 21760 OF 2023

Appearance: Senior Advocate G Krishnamurthy and Advocate Madhusudhana G for the petitioner.

HCGP Anukanksha Kalkeri FOR R-1.

Advocate Shivaprasad M Shantanagudar FOR R-2 TO R-4.

Citation No: 2024 LiveLaw (Kar) 456

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