IN THE HIGH COURT OF KARNATAKA AT BANGALORE THE HONOURABLE MR. JUSTICE ANAND BYRAREDDYjudgmenthck.kar.nic.in/judgments/bitstream/123456789/... · 2014-03-06 · 1 ® in the high court

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® IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 01ST

DAY OF MARCH 2014

BEFORE:

THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION No. 30622 OF 1999 (LA-KHB)

CONNECTED WITH

WRIT PETITION No.28218 OF 1998 (LA-HS)

WRIT PETITION Nos.18650-54 OF 2012 (LA-KHB)

WRIT PETITION No.47616 OF 2004 (LA-KHB)



WRIT PETITION Nos.45613-614 OF 2004 (LA-KHB)


IN W.P.No.30622/1999

BETWEEN:

Muniswamaiah,

Son of Late Puttaiah,

Aged about 60 years,

Residing at Settihally Post,

Tumkur.

…PETITIONER

(By Shri. P.N. Nanja Reddy, Advocate )

AND:

1. The State of Karnataka,

Represented by its Secretary,

2

Revenue Department,

Multistoreyed Building,

Dr. B.R.Ambedkar Road,

Bangalore – 560 001.

2. The Karnataka Housing Board,

Represented by its Commissioner,

“Cauvery Bhavan”,

K.G.Road, Bangalore – 560 009.

3. The Special Land Acquisition Officer,

Karnataka Housing Board,


K.G.Road,


…RESPONDENTS

(By Shri.D. Nagaraj, Additional Government Advocate for

Respondent No.1

Shri. Basavaraj V Sabarad, Advocate for Respondent Nos. 2 and

3)

*****

This Writ Petition is filed under Article 226 of the

Constitution of India, praying to quash the preliminary

notification dated 30.12.1991 vide Annexure-A and gazetted on

20.2.1992 and final notification dated 14.10.1993 gazetted on

4.11.1993 vide Annexure-B by second respondent and first

respondent respectively, as the same are illegal contrary to the

provisions of the Land Acquisition Act as well as the Karnataka

Housing Board Act and etc;

IN W.P.No.28218/1998

3

BETWEEN:

Gaviyappa,

Son of Chikkarangaiah,


Residing at Settyhalli Village,

Tumkur Taluk,

Tumkur District.

Since deceased, now represented by

Legal representatives of

Gaviyappa:-

a) Smt. Puttamma, (wife)

b) Shri. Rajanna (son)

c) Shri. Chandrappa (son)

d) Shri. Ranganatha (son)

all residing at Shettihalli,

Kasaba Hobli,

Tumkur Taluk,

Tumkur District.

[Amended as per order

Dated 5.11.2008]

…PETITIONERS

(By Shri. Puttige R Ramesh, Advocate )

AND:


Represented by its Secretary,

4

Revenue Department,


Dr. B.R. Ambedkar Road,



Represented by its Commissioner,

‘Cauvery Bhavan’,

K.G.Road,





K.G.Road,


…RESPONDENTS

(By Shri. D. Nagaraj, Additional Government Advocate fro

Respondent No.1


3)

This Writ Petition filed under Article 226 of the

Constitution of India praying to quash vide Annexure-C dated

30.12.1991 and Annexure-D dated 14.10.1993 by first respondent

in so far as it relates to the petitioner and etc;

IN W.P.Nos.18650-654/2012

BETWEEN:

M/s. Ramanashree Shopping Arcade Private Limited,

Company registered under the

Companies Act, 1956 and having its

5

Registered office at No.16/1,

Rajaram Mohan Roy Road,

Bangalore – 560 025, represented by

Its Chairman Sri. S. Shadakshari.

…PETITIONER

(By Shri. Jayakumar S Patil, Senior Advocate for Shri. P.N.

Rajeshwar, Advocate)

AND:


Represented by its Secretary

to the Department of Housing

and Urban Development,


Veedhana Veedhi,





K.G.Road,


3. Karnataka Housing Board,



Represented by its Commissioner

…RESPONDENTS


Respondent No.1

6


3)

These Writ Petitions filed under Article 226 of the

Constitution of India praying to quash the preliminary notification

dated 31.3.2001 vide Annexure-A the second respondent’s order

dated 13.11.2001 vide Annexure-C the first respondent final

notification dated 10.5.2002 vide Annexure-D in so far as they

pertain to the petitioner’s lands and etc;

IN W.P.No.47616/2004

BETWEEN:

1. Sri. B.N. Byregowda,


Son of . Narayanappa,

Resident of No.289,

Bytarayanapura,


2. Sri. B.N. Nanjundappa,


Son of B. Narayanappa,

No.289, Byatarayanapura,

Bellary Road,

Sahakarnagar Post,


3. Sri. Sri.M.Anand,


Son of Late Muniyappa,

No.140, 1st Cross, Near Anjanaya Temple,

Nagashettihalli,


7

4. Sri. R. Mallikarjunappa,


Son of Late C. Ramasubbaiah,

No.733, Deshadpet Road,

Yelahanka,


5. Sri. A. Ramachandra Raju,


Son of Subbaraju,

No.19A, Balaji Layout,

R.T.Nagar,


6. Sri. S. Devendra,


Son of Late Venkataiah,

Resident of No.550,

F Block, Sahakarnagar,


…PETITIONERS

(By Shri. Madhusudhana R Naik, Senior Advocate for Shri.

R.S.Hegde, Advocate)

AND:


By its Principal Secretary,

to Revenue Department (Land Acquisition),

M.S.Building, Dr. Ambedkar Road,


8

2. The Principal Secretary,

Housing Department,

Government of Karnataka,

M.S.Building, Dr. Ambedkar Veedhi,



Cauvery Bhavan, K.G.Road,

Bangalore – 560 009,

Represented by Housing Commissioner.



Cauvery Bhavan, K.G.Road,


5. Sri. B.S. Uma Shankara Aradhya,

Son of Late Sri. Shivarudraiah,


Resident of No.1200,

Kempegowda Nagara Main Road,

Vidhyaranyapura Post,


6. Sri. Vinod Kumar T.R,

Son of Sri. Rajanna,


No.7, 2nd

Floor,

4th

Cross, Gandhinagar,


[cause title amended

As per court order

Dated 15.6.2012]

…RESPONDENTS

9

(By Shri. Basavaraj V Sabarad, Advocate for Respondent Nos. 3

and 4

Shri. D. Nagaraj, Additional Government Advocate fro

Respondent Nos. 1 and 2

Shri. P.D. Vishwanath , Advocate for Proposed Respondent Nos.

5 and 6)

This Writ Petition filed under Article 226 and 227 of the

Constitution of India praying to quash the impugned preliminary

notification dated 31.3.2001 published in Karnataka Gazette on

19.4.2001 issued by the 3rd

respondent vide Annexure-F and final

notification dated 10.5.2002, published in Karnataka Gazette on

17.5.2002, issued by the 1st respondent vide Annexure-G under

Sections 4(1) and 6(1) of Land Acquisition Act 1894 as amended

in 1984, respectively, in so far as the petitioners schedule lands, as

illegal, contrary to law, and unsustainable in law and etc;

IN W.P.No.50971/2004

BETWEEN:

Sri. B.L. Shankarappa,

Son of Late Laxmanappa,

Aged 53 years,

Residing at no.572/35,

4th

Cross, Mahalaxmi Layout,

Bangalore – 560 086. …PETITIONER

(By Shri. S.K. Venkata Reddy, Advocate)

AND:


By its Secretary to Government,

10

Revenue Department (Land Acquisition)




Housing Department,


M.S.Building ,

Dr. Ambedkar Road,



K.G.Road, Cauvery Bhavan,






Bangalore – 560 009. …RESPONDENTS


and 4

Shri. D. Nagaraj, Additional Government Advocate for

Respondent Nos. 1 and 2)

This Writ Petition filed under Articles 226 and 227 of the

Constitution of India praying to quash vide Annexure-D dated

31.3.2001 issued by third respondent and final notification dated

10.5.2002 issued by first respondent vide Annexure-F under

Section 4(1) and 6(1) of the Land Acquisition Act 1894 as

amended in 1984, respectively, in so far as the petitioner schedule

lands, as illegal contrary to law, and unsustainable in law and etc;

11

IN W.P.No.46250/2004

BETWEEN:

Sri. S. Udaya Shankar,

Son of Sri. V. Sundaraiah,


Occupation: Project Co-ordinator,

Ramanashree Group,

Residing at No.3, Narayanappa Road,

Near Nagashettyhalli Bus Stand,


…PETITIONER

(By Shri. Jayakumar S Patil, Senior Advocate for Shri. P.N.

Rajeshwara, Advocate)

AND:


Represented by its Secretary

to the Department of Housing

and Urban Development,


Veedhana Veedhi,





K.G.Road,




12


Represented by its Commissioner

…RESPONDENTS


Respondent No.1


3)

This Writ Petition filed under Article 226 of the


dated 31.3.2001 vide Annexure-A. The second respondent’s order

dated 12.11.2001 vide Annexure-C, the final notification dated

10.5.2002 vide Annexure-D in so far as they pertain to the

petitioner’s lands and etc;

IN W.P.Nos.45613-614/2004

BETWEEN:

1. Sri. C.M. Kempanna,


Son of Late C.K. Muniswamappa,

2. Sri. C.M. Ramanjanappa,


Son of Late C.K. Muniswamappa,

Both are residing at Chikkajala Village,

Bangalore North Taluk,

Bangalore District.

…PETITIONERS

(By Shri. G. Papi Reddy, Advocate )

13

AND:


Housing and Urban Development,

M.S.Buildings,

Dr. B.R. Ambedkar Road,


By its Secretary.




By its Chairman.





…RESPONDENTS

(By Shri. D. Nagaraj, Additional Government Advocate for

Respondent No.1


3)

These Writ Petitions filed under Article 226 of the


dated 31.3.2001 vide Annexure-F and the final notification dated

10.5.2002 vide Annexure-J.

14

IN W.P.No.47604 / 2004

BETWEEN:

1. Sri. H.D. Erappa,


Son of Late Dodda Kempaiah,

Resident of Meenukunte Village,

Jala Hobli, Bangalore North Taluk,

Bangalore District.

2a) Sri. H.A. Nagaraju,


Son of Late Anjanappa,



Bangalore – District.

b) Sri. Thimmaiah,

aged about 75 years,

son of Late Kalappa,




3. Sri. Annayappa,

Aged about 45years,

Son of Late Dodda Kempaiah,




4a) Smt. Chikka Thayamma,


15

Wife of Late Appanna,

b) Sri. Somashekar,


son of Late Appanna,

c) Sri. Krishnappa,


son of Late Appanna,




5a) Sri. C.M. Narayanaswamy,


Son of Late Dodda Maranna,

b) Sri. C.M. Nanjundappa,


son of Late Doddamaranna,

resident of Chikkajala Village,

Jala Hobli,

Bangalore North Taluk,

Bangalore District.

6a) Smt. Sharadamma,


Wife of Late Sujnanachary,

b) Sri. Nagaraju,


son of Late Sujnanachary,

c) Sri. Murali,


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son of Late Sujnanachary,

d) Sri. Malligachary,


son of Late Nanjundaiah,

e) Sri. Somashekarachary,



f) Sri. Chandrashekarchary,



all residents of Chikkajala Village,

Jala Hobli, Bangalore north Taluk,

Bangalore District.

7a) Smt. Channamma,


Daughter of Late Kasi Nanjundappa,

b) Sri. Anjanappa,


son of Late Kasi Nanjundappa.

c) Sri. Muniyappa,


son of Late Kasi Nanjundappa,

all residents of Chikkajala Village,


Bangalore District.

8a) Sri. C.T. Munimarappa,

17


Son of Late Bandi Thammaiah,

b) Sri. C.T. Muniraju,


son of Late Bandi Thammaiah,

both resident of Chikkajala Village,


Bangalore District.

9. Sri. Kannappa,


Son of Late Munishamappa,

Resident of Chikkajala Village,


Bangalore District.

10. Sri. Syed Hussaian,


Son of Late Syed Peer Sab,

Residing at No.232, 3rd

Cross,

Krishnamurthy Colony,

Siddapur, I Block,

Jayanagar,


11. Sri. Nathan P.N.,


Son of John Perumal,

Residing at No.1/3,

Banaswadi Road,

Cooke Town,


18

…PETITIONERS

(By Shri. Madhusudhana R Naik, Senior Advocate for Shri.

R.S.Hegde, Advocate)

AND:


By its Secretary to Government,

Revenue Department (Land Acquisition)




Housing Department,


M.S.Building ,

Dr. Ambedkar Veedhi,









Bangalore – 560 009. …RESPONDENTS


and 4

Shri. D. Nagaraj, Additional Government Advocate for

Respondent Nos. 1 and 2)

19

This Writ Petition filed under Articles 226 and 227 of the

Constitution of India praying to quash the impugned preliminary

notification dated 31.3.2001 issued by R-3 vide Annexure-O and

final notification dated 10.5.2002 issued by first respondent vide

Annexure-P under Sections 4(1) and 6(1) of Land Acquisition Act

1894 as amended in 1984, respectively in so far as the petitioners

schedule lands, as illegal, contrary to law and unsustainable in law

and etc;

These petitions, having been heard and reserved on

19.02.2014 and coming on for Pronouncement of Orders this day,

the Court delivered the following:-

ORDER

This group of petitions are heard and disposed of by this

common order.

2. It is pertinent to mention that the first of these writ

petitions in WP 30622/1999 was disposed of by an order dated

28.10.2006, whereby the learned single judge had allowed the

petition, holding that the acquisition proceedings under the

provisions of the Land Acquisition Act, 1894 (Hereinafter referred

to as the ‘LA Act’, for brevity) in respect of the petitioner’s lands

were vitiated. The same had been challenged in an appeal in WA

159/2007 by the respondent, Karnataka Housing Board (KHB). It

20

was contended that in allowing the petition on the ground that the

issuance of the final declaration and the passing of the award was

beyond the period prescribed, respectively, the learned single

judge had not taken into consideration the last of the publication

of the notifications, under Section 4(1) and 6(1) of the LA Act, in

daily newspapers – but had proceeded only with reference to the

date of the notification published in the Gazette. The appeal was

allowed on that ground. It was then opined by the Division Bench

that the learned single judge had not considered the matter on

merits and expressed that since the Bench had had occasion to

consider another appeal, WA 1244-45/2009, on the question

whether there was compliance by the Housing Board with regard

to the provisions of Sections 18 to 24 of the Karnataka Housing

Board Act, 1962 (Hereinafter referred to as the ‘KHB Act’, for

brevity) and whether the Board had complied with the said

provisions before initiating the acquisition proceedings and had

remanded the matter for a fresh consideration by the learned

21

single judge, the present matter was similarly remanded by a

judgment dated 26.4.2013.

3. The petitions in WP 28218/1998, WP 18650-18654, WP

47616/2004, 50971/2004, WP 46250/2004, WP 45613-

45614/2004 and WP 47604/2004 were all petitions that had been

referred to the Division Bench by a learned single judge, on the

footing that there were two conflicting judgments, of learned

single judges of this court, on the requirement or otherwise of a

housing scheme under the KHB Act, duly sanctioned by the

government, before initiating the acquisition proceedings. The

same had been referred to the division bench in view of the fact

that the decision rendered by one of the single judges, to the effect

that there was no necessity for the Housing Board to obtain prior

sanction of a housing scheme under Section 24 of the KHB Act

before initiating the acquisition proceedings under the LA Act,

was pending in appeal in WA 1244–45/2009 before the said

Division Bench. That appeal was disposed of by a judgment dated

22

26.4.2013. The division bench had considered the tenor and scope

of Sections 17 to 24 of the KHB Act and held as follows, while

remanding the matters for fresh consideration :-

“14. A reading of Sections – 18 to 24, it is clear that

there is no necessity for obtaining the sanction of the

Housing scheme or the Land Development scheme in

order to acquire the property for the aforesaid

projects. But without their being a sanction from the

Government under Section 24, no scheme shall be

executed by the Housing Board. Therefore, it is

clear that obtaining of sanction under the Housing

Scheme or Land Development Scheme would arise

only after preparation of all preliminary preparation

of the scheme, preparation of the Housing project,

Land Development Project, Budgetary provision,

identifying the lands or acquiring the lands and the

staff required and estimation and other things as

contemplated under sections-18 to 23. Only after

strict compliances of Sections – 18 to 23, before

actual execution of the Housing Scheme or Land

Development Scheme, obtaining of the sanction u/s

24 would arise.

15. In this background, after considering the

Judgment of the Learned Single Judge, we cannot

find fault with his order because he has clearly ruled

23

that no prior permission is required u/s 24 of the Act,

in order to identify the lands or to acquire the lands.

Accordingly, we answer the said point, agreeing with

the findings of the Learned Single Judge.

16. Having held so, we have also seen that either

the petitioners or the Housing Board have not placed

any material before the Learned Single Judge in

order to show that there is a strict compliance of

Sections-18 to 23 of the Act, in order to upheld

acquisition proceedings initiated by the Housing

Board since sections-18 to 23 are mandatory in

nature. Housing Board cannot contend without

compliance of sections-18 to 23 that the acquisition

of the property by the Board is in accordance with

law.

17. Since there was no occasion for the Learned

Single Judge to consider whether there is any

compliance of sections-18 to 23 of the Karnataka

Housing Board Act, we have no other option than to

remand the matter to the Learned Single Judge with

a request to reconsider the matter and find out

whether there is compliance of sections – 18 to 23 of

the Act, in order to upheld the acquisition of the

properties. The parties are also at liberty to make

necessary amendments to the pleadings and

similarly the Housing Board is also at liberty to file

a detailed counter and shall produce all relevant

24

records to show that there is a compliance of

Sections – 18 to 23 of the Act.

18. With the above observations, the appeals

allowed confirming the finding of the Learned Single

Judge on the question of section- 24 of the Housing

Board Act, the matter is remanded to the Learned

Single Judge with a request to reconsider the matter

afresh as observed above.”

4. At the hearing of these petitions each of the petitioners,

except two, sought to amend the petition, to include an additional

ground of challenge namely, that without there being a prior

sanction by the government of a housing scheme as required under

Section 3(f)(vi) of the LA Act, the acquisition proceedings under

the said Act would not be construed as one for a public purpose

and would therefore be void. Though there was opposition to the

proposed amendment, the same was allowed. Firstly, because it

was point of law going to the root of the matter and Secondly,

since the petitioners had the benefit of interim orders protecting

their possession, there was no circumstance where the respondents

could claim prejudice on account of a legal contention being

25

urged, albeit belatedly, especially when the division bench in its

order of remand has thrown open all contentions available.

5. In so far as the petitioner in WP 45613-45614/2004 is

concerned, the petition as originally brought has raised the above

aspect as a ground. Though the petitioner in WP 50971/2004 has

not formally amended the petition to incorporate the above legal

contention, the said petitioner would certainly be entitled to the

benefit of such a ground being canvassed in respect of the

acquisition proceedings generally, if it is to held to be tenable.

6. Incidentally, the very question arose for consideration

before this bench in another batch of writ petitions in WP

24113/2012 and connected petitions disposed of on 5.12.2013, it

would hence be pertinent to refer to the discussion therein as

regards the effect of the conflicting views of the two learned

single judges which warranted the matters being referred to the

Division Bench and the view expressed by the Division bench and

the resultant legal position if the additional ground now urged is

taken into consideration.

26

Reliance had been placed, in the said decided cases on the

following authorities by the learned counsel for the petitioners

therein :

a. Chikkarangaiah v. State of Karnataka, 1996 (7) Kar.L.J 846;

b.State of Tamil Nadu v. Mohammed Yousef, AIR 1992 SC 1827;

c.State of Tamil Nadu v. L.Krishnan, AIR 1996 SC 497;

d.Devaraja v. The State of Karnataka, WP 9593/2007 &

connected cases dated 29-5-2012;

7. On the other hand, the learned counsel for the

respondents therein, placed reliance on the following :

a.M. Nagaraju v. Government of Karnataka, WP 18596 / 2006 &

connected cases dated 6.2.2009;

b.M. Nagaraju & another v. Government of Karnataka, WA 1244-

45/2009 dated 26.4.2013.

It was after discussing the scope and effect of the above

rulings that the following view was endorsed:

27

“6. The learned counsel for the petitioners, by

way of reply, would point out that even assuming the

decisions of the apex court in Mohammed Yousef and

L.Krishnan were with reference to the provisions of the

MSHB Act, it would still be a condition precedent that

there be a Scheme duly approved by the State

Government for the purposes of acquisition of land to

implement the same through the KHB.

It is pointed out that the provision of land for

carrying out a housing Scheme by such a body as the

KHB is a public purpose. And in defining the

expression “public purpose” under Section 3(f) of the

LA Act, clause (vi) provides thus :-

“(vi) the provision of land for

carrying out any educational, housing, health

or slum clearance scheme sponsored by

Government, or by any authority established

by Government for carrying out any such

scheme, or, with the prior approval of the

appropriate Government, by a local

authority, or a society registered under the

Societies Registration Act, 1860 (21 of 1860),

or under any corresponding law for the time

being in force in a State or a co-operative

society within the meaning of any law

28

relating to co-operative societies for the time

being in force in any State;”

It is further pointed out that Sub-section (4) of

Section 3 of the KHB Act lays down thus :

“(4) For the purpose of this Act and

the Land Acquisition Act, 1894, the Board

shall be deemed to be a Local Authority.”

It is hence contended that the provision of land

for a local authority can only be in respect of a

Scheme duly approved by the Government. Therefore,

there is no escaping the requirement of the existence of

a Scheme duly approved by the government prior to

the initiation of the acquisition proceedings.

Attention is also drawn to Section 32 of the

KHB Act :

“ 32. Schemes entrusted to Board by

Government, etc.- (1) The provisions of

Sections 18 to 24 (both inclusive) shall not be

applicable to any [housing scheme, land

development scheme or a labour housing

scheme] entrusted to the Board by the State

Government except to such extent and subject

29

to such modifications as may be specified in

any general or special order made by the

State Government, and every such order shall

be published in the Official Gazette.

(2) Notwithstanding anything

contained in this Act, the Board shall not be

competent to carry on any trading or

financing activity for profit, whether in the

execution of any scheme undertaken by, or

entrusted to it, or otherwise.”

It is pointed out that the present Scheme is not

one entrusted to the KHB by the State Government.

And it is contended that as a result of that

circumstance Sub-section (2) of Section 33 of the KHB

Act would be applicable. The said provision is

reproduced hereunder for ready reference.

“S.33………………….

(2) The Board may also take steps for the

compulsory acquisition of any land or any interest

therein required for the execution of a housing

scheme [or land development scheme] in the

manner provided in the Land Acquisition Act,

1894, as modified by this Act and the acquisition

of any land or any interest therein for the

purposes of this Act shall be deemed to be

30

acquisition for a public purpose within the

meaning of the Land Acquisition Act, 1894.”

It is hence contended that de hors the express

requirement of a Scheme to be framed and approved

by the State government, prior to the stage of

execution of the project by KHB, as contemplated

under the provisions of the KHB Act, as the

compulsory acquisition of land for the execution of the

Scheme, is in the manner provided under the LA Act,

and KHB, as a local authority, can only acquire land

pursuant to a Scheme duly approved by the State

Government, as contemplated under Section 3 (f) (vi)

of the LA Act.”

8. However, the learned counsel for the respondent – KHB,

Shri Basavaraj Sabarad has sought to contend as follows :

The view taken earlier in the above cases by this court is

without reference to the fact that the KHB is a body corporate and

is not to be confused with bodies that are generally considered as

“local authorities”, having regard to the functions and powers

vested in it. If so viewed, it is possible to hold that the

acquisition of land for the benefit of the Housing Board would be

31

governed by sub-clause (iv) of clause (f) of Section 3 of the LA

Act, that provides :

“ the expression “public purpose “ includes – the

provision of land for a corporation owned or controlled

by the State ; “ ( Act 68 of 1984 ) .”

Therefore, the prior approval contemplated under sub-

clause (vi) of Clause (f) of Section 3 of the Central Act, would not

be attracted. It is further contended that the Board being defined

as a “local authority” under the KHB Act, is only for the purposes

of Section 50 of the LA Act and not for any other purpose.

In the alternative, it is contended that Section 3 of the LA

Act is amended by a State amendment in Act no.17 of 1961. By

virtue of the amendment Section 3(f)(iv)(a), which is relevant,

reads as follows :

“ The expression “Public Purpose” includes-

(i)………

(ii)………

(iii)……..

(iv) the provision of land-

32

(a) for carrying out any housing scheme or health scheme

sponsored by the Central Government or any State

government or a local authority; or ……..”

It is sought to be contended that under the above provision,

a Scheme sponsored by a local authority, even if the Board is to be

considered as a local authority, would not require a prior approval

of the State government. It is further emphasized that since the

Amendment Act 17 of 1961 and the KHB Act, have both received

the assent of the President, the same override the provisions of the

Central Act, as amended by Act 68 of 1984, as the State

amendment Act 17 of 1961 continues to be part of the statute.

It is contended that the KHB Act is a special enactment and

if viewed for its pith and substance, acquisition of land is merely

incidental in the achievement of its objects and hence any

acquisition of land for its purposes is always for a public purpose

and does not warrant an strict scrutiny as may be necessary in

every acquisition under the LA Act.

33

It is also contended that there was in existence a scheme

duly approved by the government and seeks to place reliance on a

document which reads as follows:

“PROCEEDINGS OF THE GOVERNMENT OF

KARNATAKA

Sub: Karnataka Housing Board – 100 Housing Projects –

2000 – approval of Government – reg.

READ: Letters bearing no.GMT.HNS.2000-01,

Dated 06.10.2000 and 23.11.2000 from the

Commissioner, KarnatakaHousing Board, Bangalore.

Preamble:

The Housing Commissioner, in his letter dated

6.10.2000 has informed that Karnataka Housing Board in its

356th

meeting held on 19.07.2000 has approved a detailed

scheme called 100 Housing Projects. KHB reports that under

this scheme for the year 2000-01 it intends to take up

construction of 13,500 houses affordable to various

categories of income group and 15,000 sites of different

dimensions at affordable prices. The project is estimated to

cost around Rs.850 crores and is expected to be completed by

December 2002. Karnataka Housing Board has sought

approval of Government for the implementation off its 100

Housing Projects as required under section 20 of KHB Act,

1962 (details in Annexure-1). Karnataka Housing Board

proposes to take up the schemes with the a loan assistance

from HUDCO for each scheme separately with an Escrow

cover to ensure speedy and prompt implementation. KHB is

taking up the scheme with the loan assistance from HUDCO

and there is no financial implication for Government

involved in the proposed 100 Housing Projects of KHB.

34

However, KHB has sought for Revolving Government

Guarantee to an extent of Rs.200 crores to raise bridge loan

form HUDCO to take up the scheme. KHB has proposed to

set up a committee at the Government level consisting of the

representatives of Housing Department, Finance and

Financial Institutions to review and monitor the schemes with

no time and cost over-runs. KHB will implement the projects

by adopting new procedures designed to prevent time and

cost over-runs and to ensure that quality work is done, as per

details in Annexure-II. Government have examined the

proposal of Karnataka Housing Board in detail and ordered

as follows:

GOVERNMENT ORDER No.DOH178KHB 2000,

BANGALROE, DATED 25th

January, 2001

In the circumstances, explained in the preamble,

Government are pleased to order as follows;

1. To approve the 100 Housing Schemes comprising of

approximately 13,500 houses and 15,000 sites at a project

cost of Rs.850 crores (Rupees Eight fifty crores only) as per

details (Annexure-1) U/S 20 of KHB Act.

2. To raise a loan of Rs.720 crores (Rupees Seven Fifty

crores only) from HUDCO for these schemes without any

financial assistance/commitment from Govt. u/s 20 of

Karnataka Housing Board Act.

3. Providing revolving Government Guarantee to an

extent Rs.1000 crores (Rupees One Hundred crore only) to

take up these projects and balance commitment shall be met

from self financing scheme by the Board.

4. To constitute committee consisting of the following for

monitoring and review of the 100 Housing Projects.

1) Minister for Housing Chairman

35

2) Additional Chief Secretary (PW &H) Member

3) Principal Secretary (Finance) Member

4) Principal Secretary (Housing) Member

5) Regional Chief, HUDCO Member

6) Commissioner, KHB Member

7) Chief Engineer, KHB Member

8) Controller of finance, KHB Member Secretary

The terms of reference of the Committee shall be as follows:

a) Monitor and review of 100 housing Projects;

b) Ensure separate escrow accounts are maintained for each

projects;

c) Ensure implementation of the 100 housing projects in a

transparent manner through strict and proper pre-

qualification criteria;

d) Review use of the revolving guarantee.

This Order issues with the concurrence of the Finance

Department vide its U.O.Note No.FD 1001 EXP-III/2000,

dated 30.11.2000.

By Order and in the name of

Sd/-

Governor of Karnataka,

Sd/-

(B.D.OBAPPA)

Under Secretary to Government,

Housing Department.”

36

“GOVERNMENT OF KARNATAKA

No.DOH 178 KHB 2000 Karnataka Government Secretariat,

IV Floor, II Stage, M.S.Buidling,

Bangalore, dated 25.05.2001.

ADDENDUM

In the GOVERNMENT ORDER NO.DOH 178 KHB 2000,

DATED, 05th

January, 2001, para No.3 of the Order portion is

modified as follows:

3. Providing revolving Government Guarantee to an extent

Rs.100 crores (Rupees One Hundred crore only) to take up these

projects and balance commitment shall be met from self

financing scheme by Karnataka Housing Board on the following

conditions:

a) KHB should pay 1 per cent guarantee commission to

Government;

b) The guarantee commission so payable should to the Head of

Account 0075-Misc-Gen.Service-108-guarantee-fee-101-

guarantee fee (0075-00-108-0-01);

c) The recovery should be watched very carefully and all

efforts should be made to see that the burden does not devolve

on the Govt.;

d) The guarantee commission should be calculated in the actual

amount of loan outstanding at the end of each month and has to

be paid once in six months from the date availment of loan;

e) Proper project reports fro the above projects should be

prepared which should show the details of expenditure, its

phasing, recovery and payment schedules etc;

37

f) KHB should keep separate project accounts and that

calculate final cost and shall not be increased it beyond 5%;”

9. Refuting the above, the learned Senior Advocate, Shri

Jayakumar Patil, appearing for one of the learned counsel for the

petitioners would point out that the expression “local authority“

has been defined thus under Sub-Section (4) of Section 3 of the

KHB Act :-

“(4) For the purpose of this Act and the Land

Acquisition Act, 1894, the Board shall be deemed to be a

Local Authority.”

It is pointed out that the definition leaves no doubt that for

purposes of all the provisions of the LA Act, the KHB is a “local

authority” and not merely with reference to any particular

provision as sought to be contended. Hence it would be a local

authority for purposes of Section 3 of the LA Act.

It is further contended that though the argument as to Act

no.17 of 1961 overriding Act 68 of 1984 is not acceptable- as the

requirement of a prior sanction of a Scheme by the government as

38

provided under the Central Act, is to be read into the State

amendment. Even if the State amendment is to be read in

isolation it is evident that the same requires the existence of a

Scheme, for provision of land to carry out the same.

It is pointed out that there is an Annexure to the

Government Order relied on by the learned counsel Shri

Basavaraj, which purports to furnish certain bare details of the

several projects which are undertaken. However , in so far as the

Scheme for the purposes of which the lands in question are to be

acquired – there are no details forthcoming as found at Serial

no.93 to 100 of the Annexure. Hence it is contended that there

was no Scheme in existence.

In the light of the above, it is to be held the KHB intending

to execute a Housing Scheme of its own, and not one sponsored

by the Government, can proceed to acquire land for the execution

of the project only in terms of the provisions of the LA Act; and as

39

a local authority, is capable of acquiring land only in accordance

with a Scheme duly approved by the State Government.

The attempt to demonstrate that there was a Scheme duly

approved by the State government with reference to the above

referred Government Order does not indicate the existence of any

comprehensive Scheme or even a Scheme with the bare minimum

details pertaining to the Scheme for the purposes of which the

lands of the petitioners were being sought to be acquired.

The argument that the KHB is for all purposes a body

corporate and hence it is sub-clause (iv) of Clause (f) of Section 3

of the LA Act which would be applicable is also not tenable. The

land in question was not being acquired for a Corporation or a

corporate body.

It is also contended that it cannot also be accepted that the

requirement under the relevant clause namely, Section 3(f)(vi) of

the LA Act as amended by Act 68 of 1984 is irrelevant and that it

is only Section 3 (f)(iv)(a) as incorporated under the State

Amendment Act 17 of 1961 which is to be taken into

40

consideration. The additional requirement of the need for a prior

sanction of the State government in respect of a housing scheme

of a local authority, to render the acquisition of land as being for a

public purpose, which is a later amendment under the Central Act

– which is not inconsistent with the State amendment but only

adds a further safe guard, is necessarily to be read into and

reconciled with the State amendment.

Incidentally, the maintainability of the petition in WP

28218/1998 is seriously questioned on the following counts

namely, that the petition is barred by delay and laches, that the

petitioner has received the compensation in respect of the land and

that the petitioner has sold the land in favour of a third-party and

hence has no locus standi to prosecute the petition.

The said objections are not tenable for the following

reasons and in the light of the law, as rightly contended by the

learned counsel for the petitioner in that case. It is contended that

the very notification challenged in this petition was under

challenge in WP 494/1994 and after contest, the said petition

41

came to be allowed and the notification was quashed. Further,

the very notification challenged in this petition was under

challenge in WP 494/1994 and after contest, the said petition

came to be allowed and the notification was quashed. Further,

challenge made to the said order in WA 6939/1996 also came to

be rejected in this court refusing to condone the delay in filing

the appeal.

The original petitioner, who was an illiterate agriculturist

was under a bona fide belief that in the light of interim order

granted by this court followed by quashing of the notification of

acquisition, the authorities may not proceed with the acquisition.

Further, that this court has not only dismissed the writ appeal but

even declined to give the KHB the liberty of acquiring the land

afresh with the court observing that they may proceed with the

acquisition if in law they are entitled to do so after compliance

with required procedure in law.

However, on coming to know that the authorities are

proceeding to pass award pursuant to the very notification quashed

42

by this court, the original petitioner filed his objections to the

same pointing out the order of quashing passed by this court.

Further, notwithstanding the objections filed, the

authorities proceeded to pass the award on 16.12.1996, a copy of

which was received in 1997. Immediately thereafter, the original

petitioner approached this court. It is therefore contended that

there is no delay in filing of the writ petition.

It is pointed out that as a matter of fact, the KHB in its

statement of objections has rightly not pleaded the ground of delay

in filing of the writ petition and such a contention is taken for the

first time in the Additional statement of objections filed after a

gap of 16 years that too filed without seeking leave of this court to

file such an additional objections in respect of a ground already

available when the first objection was filed.

The apex court in the case of The Vyalikaval House

Building Co-operative Society vs. V.Chandrappa, AIR 2007 SC

1151, was considering a case where in an earlier proceedings the

courts had quashed the acquisition proceedings and there was a

43

delay of fourteen years in challenging that very notification in a

later proceedings. Dealing with the question of delay, the apex

court was pleased to observe thus:-

“ .. when the acquisition has been found to be totally mala

fide and not for bonafide purpose, the ground of delay and

acquiescence in the present case has no substance …”

The apex court in the case of Ramnath Sao vs. Gobardhan

Sao, 2002 AIR (SCW) 978 was pleased to hold that the expression

“sufficient cause” should receive a liberal construction so as to

advance substantial justice. Courts should adopt liberal view to

condone the delay as no party comes to court intentionally after

delaying the matter. It is further ruled that a judgment is

respected not for technicalities but for rendering justice.

It is further contended that section 3(f) of the LA act read

with Section 11A thereof makes it clear that if the time consumed

between the date of final notification and the passing of the award

is more than two years, then such an acquisition proceedings

44

cannot be sustained in law as the acquisition proceedings cannot

be sustained in law as the acquisition proceedings shall lapse.

The plea of the KHB that last of the notification has to be

taken into consideration is misconceived as in the instant case, last

notification is neither a gazette notification nor a notification

published in a news paper where the general public can be

deemed to be aware. The alleged notification is stated to have

been published in a chavadi, authenticity of which cannot be

established.

Thus, the impugned acquisition cannot be sustained in law

in the light of Section 3(f) of the LA Act read with Section 11A.

It is the case of the KHB that the original petitioner having

received the award amount is estopped from maintaining the writ

petition and the contention of the KHB is totally misconceived.

When a similar question came up for consideration before

the apex court in Vyalikaval’s case, supra the apex court was

pleased to rule that when the basic notification under which the

45

land is sought to be acquired stood vitiated then whatever payment

made by the acquiring authority is at its own risk.

It is thus contended that the KHB cannot justify its action

just because the original petitioner has received the

compensation. It is the case of the KHB that the petitioners

having alienated the property have no locus standi to maintain the

writ petition, which is totally misconceived.

The properties of the petitioners in two different survey

numbers are sought to be acquired and admittedly, the petitioners

have not alienated both their properties.

In the instant case, the writ petition was allowed on the first

occasion on 25.1.1999 and this order was in force till the writ

petition was restored for fresh consideration on 11.1.2008. The

sale has taken place on 16.12.2006 when there was no

impediment for the petitioner to alienate the property. That apart,

it is well known fact that in a sale transaction, the vendor has an

obligation to make good the title of the property if it is later

noticed that there is defect in vendor’s title.

46

10. Assuming for argument sake, but not conceding that the

sale has taken place when the petitioner could not have sold the

property, even then purchaser has no right to come on record and

as such, the petitioner in his capacity as the vendor, has a duty to

continue to protect the right of the purchaser. Reliance in this

regard is placed on a decision of the apex court in the case of

Sarvinder Singh vs. Dalip Singh, 1996(5) SCC 539.

In the light of the above the writ petitions are allowed and

the impugned notifications are quashed.

Sd/-

JUDGE nv*

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE THE HONOURABLE MR. JUSTICE ANAND BYRAREDDYjudgmenthck.kar.nic.in/judgments/bitstream/123456789/... · 2014-03-06 · 1 ® in the high court