Govt Should Bring Regulations To Exempt Nurseries From Land Acquisition, Reliance On GOs 'Must Stop Forthwith': Karnataka High Court

While hearing a plea pertaining to the acquisition of a land claimed to be used as a nursery, the Karnataka High Court has said that the reliance on a 1987 government order exempting Nurseries (Plant nursery) from land acquisition must stop forthwith.

In doing so the high court further said, that if the acquiring authorities want to exempt nurseries from land acquisition, it can do it only after bringing in a regulatory regime for recognition of such nurseries. The high court emphasized that a government order–which in this case exempted nurseries from land acquisition–cannot override a statue.

A division bench of Justice Krishna S Dixit and Justice M Nagaprasanna said “It is by now, too rudimentary, that any Government order, cannot override a statute, particularly the subject Government order, which had and has no statutory legs to stand. Therefore, henceforth, if the acquiring authorities under the respective statutes want to exempt a nursery, they can do so only after bringing in a regulatory regime for recognition of such nurseries. It is for the State to take appropriate action in that regard. Reliance on the Government order dated 01-01-1987, in our considered view, must stop and stop forthwith”.

“Those lands which are to be used as horticulture nursery should necessarily come within the ambit of any regulatory regime. Since no regulatory regime is in place in the State of Karnataka, they should be registered with the National Horticulture Board as it has a method of accreditation of nurseries, till the State would bring any regulatory regime in place. It is those nurseries only which can be brought within the term 'nursery' and cannot be vaguely determined by case specific Government Orders," it added.

Background

The order was passed while rejecting a petition filed by 91-year-old B. Sathyanarayanachar challenging the proceedings of Justice A.V. Chandrashekar Committee for Dr. K Shivarama Karanth Layout dated August 8, 2023 and the final Notification dated October 30, 2018 issued by the State insofar as it concerned the land of the petitioner for formation of the Layout. The Apex Court had directed issuance of final notification.

The Petitioner claimed that he had acquired the subject property through a registered sale deed dated May 13, 2005 and since then claims to be a horticulturist and floriculturist by profession and said to be running a nursery–'Sri Govardhana Nursery'. He placed reliance on a 1987 Government order which exempted nurseries from acquisition wherever the Government or its authorities wanted to acquire the lands with a condition that those lands so exempted from acquisition should continue to be used as nurseries.

The Bangalore Development Authority (BDA) opposed the plea stating that the Supreme Court had directed the BDA to publish the final notification in respect of the layout. The respondent/BDA pursuant to the order of the Supreme Court notified the final notification of acquisition of lands for the purpose of formation of layout on October 30, 2018.

The authority said that these nurseries had come up overnight. As on the date of preliminary notification it was only vacant land and it was not used as a nursery, it said. The moment the final notification was directed to be issued by the Apex Court and petitioner failed to get the nursery exempted, boards were put up and plants were stacked in the land in question. It was contended that the petitioner cannot claim parity with two nurseries that the Committee exempted, as the Committee gave elaborate reasons to exempt the two nurseries.

The 1987 government order issued by the Under Secretary of Housing and Urban Development Department said, “...Lands used for nurseries be exempt from Land Acquisition for its development schemes by the Bangalore Development Authority. If the owners of these nurseries discontinue to use those lands for nurseries, the lands will be acquired by the Bangalore Development Authority. This order shall come into force with immediate effect and until further orders.”

Findings

The court noted the 1987 government order was passed on the sole representation made by Nurserymen Cooperative Society Limited at Lalbagh to the then Chief Minister. Only on the ground that the nurserymen would lose their livelihood and there would be development in horticulture, fruits, orchards, plantations, lawns and gardens the exemption came to be granted.

It thereafter said, “We deem it apropos, to add that It was case specific, for the purpose of survival of the Nurserymen Cooperative Society.”

Referring to various Supreme Court decision the court further said, “The acquisition of land of private citizens is done by the State in exercise of its sovereign power of eminent domain, albeit on statutory considerations. If statute is what governs the acquisition of land of citizens by exercise of sovereign power of eminent domain, the Government order supra cannot override the sovereign power of eminent domain or the rigour of the statute”.

It added “...Government order, cannot take away the sovereign power of eminent domain, by concluding exemption for nurseries.”

It further said that the statute nowhere exempts any part of the land from the process of acquisition, except in certain circumstances. It observed that the judicial elucidation of exemptions has been only in two cases, in the past 37 years of existence of the Government order. Moreover, the high court said, there is no law declared by the high court giving the 1987 Government order a status of a statute, over and above the Act–either the Land Acquisition Act or the Bangalore Development Authority Act in terms of which the acquisition would commence and conclude.

The court made it clear that, “Therefore, henceforth, if the acquiring authorities under the respective statutes want to exempt a nursery, they can do so only after bringing in a regulatory regime for recognition of such nurseries.”

It observed that one common stream of interpretation of the word 'nursery' is that the plants are grown for transplanting, and for use as stock, for budding and grafting, or for sale.

It then said, “At the time of inspection of the land by the committee, it was found vacant. Google earth images taken on 28-04-2018 and 26-10-2018 depicted the land to be vacant. The images taken on 20-01-2020 and 06-02-2021, also depict the land of the petitioner to be vacant.”

The court also noted the petitioner's response to the court's query that the land has not been subject matter of any registration with the Indian Horticulture Board. Further No farming activity was undertaken, there was no livestock; no vermi-compost or waste management is processed nor bio-gas is generated. There are no counselling sessions with regard to development of plants at the nursery at any time undertaken by the petitioner, it noted.

It thus said, “We thus, fail to understand, how can such a land which does not bear any of the characteristics of a nursery, be exempted from acquisition”.

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

Case Title: B. SATHYANARAYANACHAR AND State of Karnataka & Others

Case No: WRIT PETITION No.21760 OF 2023

Appearance: Senior Advocate G Krishnamurthy a/w Advocate Madhusudhana G for Petitioner.

HCGP Anukanksha Kalkeri FOR R-1.

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

Citation No: 2024 LiveLaw (Kar) 456

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