Karnataka High Court
Smt. Chikkamma W/O Bommappa vs The State Of Karnataka on 28 January, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 27TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.3345-3347 OF 2010 (LA-RES)
CONNECTED WITH
WRIT PETITION Nos.4408-4412 OF 2010 (LA-RES)
IN W.P.Nos.3345-3347/2010
BETWEEN:
1. Smt. Chikkamma,
Wife of Bommappa,
Aged about 57 years,
Occupation: Agriculture.
2. Smt. Kyatamma,
Daughter of Bommappa,
Aged about 37 years,
Occupation: Agriculture.
3. Sri. B. Nagaraj,
Son of Bommappa,
Aged about 34 years,
Occupation: Agriculture.
All are residing at
2
Herebennur Village,
Bharamasagar Hobli,
Chitradurga Taluk and District.
...PETITIONERS
(By Shri. Sanket M Yenagi, Advocate)
AND:
1. The State of Karnataka
Represented by
Principal Secretary to Government,
Revenue Department,
M.S.Buildings,
Bangalore - 560 001.
2. Deputy Commissioner,
Chitradurga District,
Chitradurga.
3. Special Land Acquisition Officer,
Office of the Assistant Commissioner,
Chitradurga Sub-Division,
Chitradurga.
4. Taralabalu Jagadguru Education
Trust Sirigere,
Sirigere Village,
Bharamasagara Hobli,
Chitradurga Taluk,
Chitradurga District,
Represented by the
Administrative Officer.
[cause title amended
3
As per the court order
Dated 16.11.2012]
...RESPONDENTS
(By Shri. D. Nagaraj, Additional Government Advocate for
Respondent Nos. 1 to 3
Shri. G.K.V. Murthy and Shri. P.E. Umesh, Advocates for
Respondent No.4)
*****
These Writ Petitions filed under Articles 226 and 227 of
the Constitution of India praying to set aside the notification at
Annexure-F issued under Section 4(1) of the Land Acquisition
Act, (in short the Act) dated 8.9.2008 (published in the gazette
on 2.10.2008) in so far as the schedule properties and etc;
IN W.P.Nos.4408-4412 OF 2010
BETWEEN:
1. Sri. K.S.Parameswarappa,
Son of Sunkappa,
Aged about 60 years,
Resident of Sirigere Circle,
Chikkabennur Post,
Bharamasagara Hobli,
Chitradurga Taluk and District.
2. Sri. G. Chandrashekarappa,
Son of P. Kridyamappa,
Aged about 70 years,
Resident of Hirebennur,
Chikkabennur Post,
Bharamasagara Hobli,
Chitradurga Taluk and District.
4
3. Smt. Noorjan,
Wife of Mohiddin,
Aged about 54 years,
Resident of Bharamasagara,
Chitradurga Taluk and District.
4. Sri.K.H. Babu @ K. Mohammed,
Son of Hussain,
Aged about 57 years,
Resident of Ever-Green Hotel,
Sirigere Circle,
Bharamasagara Hobli,
Chitradurga Taluk and District.
...PETITIONERS
(By Shri. B.M. Siddappa, Advocate)
AND:
1. The State of Karnataka
By its Secretary,
Department of Revenue,
M.S.Building,
Ambedkar Veedhi,
Bangalore.
2. The Deputy Commissioner,
Chitradurga District,
Chitradurga.
3. The Assistant Commissioner - Cum-
Land Acquisition Officer,
Chitradurga Sub-Division,
Chitradurga.
5
4. Sri. Taralabalu Jagadguru Education
Society,
Represented by its Administrator,
Sirigere - 577 541.
Chitradurga Taluk and District.
...RESPONDENTS
(By Shri. D. Nagaraj, Additional Government Advocate for
Respondent Nos. 1 to 3
Shri. G.K.V. Murthy and Shri. P.E. Umesh, Advocates for
Respondent No.4)
*****
These Writ Petitions filed under Articles 226 and 227 of
the Constitution of India praying to quash the notification
issued by the respondent no.1 dated 30.10.2009 published in the
official gazette in 19.11.2009 so far it relates to the petitioners'
land bearing Sy.No.45/1 measuring 7 acres 5 guntas, land
bearing Sy.No.44/2A/P/1 measuring 1 acre, 26 guntas, land
bearing Sy.No.44/2B measuring 17 guntas, 44/2C1/P1
measuring 1 acre and Sy.No.44/2/C2 measuring 19 guntas
situated at Hirebennur Village, Bharamasagara Hobli,
Chitradurga Taluk and District, shown at Sl.No.13, 20, 23, 24
and 26 in Annexure-M to the writ petition and etc;
These Writ Petitions coming on for Preliminary Hearing
in 'B' Group this day, the court made the following:
ORDER
I.A.1/2014 is filed seeking amendment of the writ petitions in WP 4408-12/2010, to raise a legal issue. Though 6 the learned Government Advocate seeks time to file objections, and raises a protest that the amendment being carried out at this remote point of time as regards the validity of the acquisition proceedings, would seriously jeopardize the interest of the State.
However, since the issue would have to be decided, the application is allowed. The petitioner to amend the petition.
2. These petitions are considered and disposed of together having regard to the common grievance of the petitioners.
3. The petitioners in WP 3345-47/2010 are said to be the owners of lands bearing Survey Nos.45/2, 45/3, and 45/4 measuring 4 acres 10 guntas and 2 acres 6 guntas, respectively, of Hirebennur village, Bharamasagar Hobli, Chitradurga District. The petitioner no.1 in WP 4408-12/2010 is the owner of land bearing Survey No.44/2B measuring 21 guntas. 7
It is the case of the petitioners that their lands are subject matter of preliminary notification issued under Section 4(1) of the Land Acquisition Act, 1894 (Hereinafter referred to as the 'LA Act', for brevity) dated 8.9.2008 and published in the Official Gazette on 2.10.2008 and after further proceedings, a final declaration was made under Section 6(1) of the LA Act dated 30.10.2009 published on 19.11.2009.
It is stated that the purpose, for which the land was sought to be acquired, is to provide land for respondent no.4 in both the petitions namely, Shri Taralabalu Jagadguru Education Society, which is a Trust managing several educational institutions and the lands in question are proposed to be acquired for the purpose of providing additional land to establish new institutions, in addition to the several institutions that are already being run, apart from providing a Mahadwara as an entrance arch to the institution. It is those proceedings which are sought to be questioned in the present petitions. 8
4. Though several grounds have been raised one particular issue that has been urged is that there was no Scheme framed and sanctioned by the State Government, preceding the acquisition proceedings. This issue had directly arisen for consideration before this bench in certain other cases and the decision in the said petitions, would squarely apply in deciding the said issue.
5. However, the learned Counsel for the respondent would seek to urge that insofar as prior framing of a Scheme and prior approval of the State Government before initiation of the acquisition proceedings are concerned, it is to be seen that respondent no.4 is aided by the State Government and therefore, would be construed as an instrumentality of the State. This is the law as laid down by the apex court in several decisions including, the decision in Ganapathi National Middle School vs. M.Durai Kannan, AIR 1996 SC 2803. Since it is an instrumentality of the State and since it is 9 governed by the Karnataka Education Act, 2010 as well as the Grant-in-Aid Code, a request was made by the said respondent to the State Government to provide the land for the purpose of its educational institutions, which is a public purpose as defined under the LA Act. Since it is an instrumentality of the State, the provisions of Section 3(f)(vi) of the LA Act would not require that there be a formal Scheme, duly approved by the State Government. The fact that the request of the respondent no.4 has been accepted by the State Government would itself constitute a Scheme and would satisfy the requirement of any such prior approval being granted before the acquisition proceedings are initiated. The learned Counsel, therefore, would seek to sustain the proceedings.
However, from a reading of Section 3(f)(vi) of the LA Act, which is extracted hereunder for ready reference, it may be seen that the respondent no.4, claiming as an instrumentality of the State, for the purpose of contending that there was no 10 need for any such prior approval of the Scheme, as in the case of a local authority or such other body, would not be available.
"(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 relating to co-operative societies for the time being in force in any State;" (emphasis supplied) The above clause provides that if it is a Scheme sponsored by the Government, or established by the Government, there is no need for any such prior approval of the Scheme. However, if it is a Scheme formulated for the benefit of a local authority, a society registered under the Societies Registration Act, 1860 or under any corresponding law would certainly include a body, such as the fourth 11 respondent, then the need for prior approval of the Scheme is a must. The respondent no.4, claiming as an instrumentality of the State, as held in Ganapathi National Middle School, supra, would be relevant and material insofar as considering whether it would be amenable to the writ jurisdiction of the court and not beyond the same. Therefore, to construe the respondent no.4 as an instrumentality of the State and to hold that the establishment of new institutions on the land to be acquired, is a Government sponsored Scheme and to apply Section 3(f)(vi) of the LA Act, may not be tenable. In any event, the issue as to the requirement of such a Scheme before the acquisition proceedings are initiated has been the subject matter of some debate before this court though in relation to whether such a prior sanction of a Scheme is required in respect of the Housing Board, a Local authority. There are earlier decisions which have held in favour of and against such a proposition. In that, a decision of this court in Chickrangaiah vs. State of Karnataka, 1996(7) Kar.LJ 846 was rendered 12 following the decision of the apex court in State of Tamil Nadu vs. A.Mohammed Yousef, AIR 1992 SC 1827.
In Chickrangaiah's case, a learned single judge of this court has opined as follows, in so far as the above proposition canvassed is concerned.
"5. The second point raised by the learned Counsel for the petitioner is that under the scheme of the provisions and under the Karnataka Housing Board Act, land acquisition proceedings can be initiated only after the Housing Scheme is sanctioned by the Government.
xxxx
7. From the foregoing provisions of the Act, referred to above, it is clear that the acquisition of the land has to be preceded by a sanctioned scheme and the case of the respondents that the scheme has to follow the Land Acquisition proceedings cannot be accepted. Construing more or less analogous provisions of the Madras State Housing Board Act, 1961, the Supreme Court in State of Tamil Nadu and Another v. A. Mohammed Yousef And others, has also taken the same view. In that view of the matter, I hold 13 that the Land Acquisition Proceedings initiated by the Respondents are against the provisions of the Karnataka Housing Board Act, 1962 and accordingly, they are liable to be quashed."
Incidentally, in Mohammed Yousef's case, the Apex Court, was considering the question, whether acquisition proceedings can be initiated only after the framing of the proposed Scheme and not earlier, with reference to the acquisition of land for construction of houses by the Tamil Nadu Housing Board, constituted under the Madras State Housing Board Act, 1961, while repelling the contention of the State that if the acquisition proceedings is not completed by the time the Scheme is ready, it would result in undue delay, it was held by the Apex Court thus :
" The fallacy in the argument is that it assumes that the acquisition of the land is not a part of the execution of the Scheme itself. As has been indicated earlier the position is otherwise. Since the acquisition is included in the Scheme the process of execution of the Scheme starts 14 immediately when steps for acquisition are taken."
The above view was doubted by another bench of the apex court and was referred to a three Judge Bench in the case of State of Tamil Nadu v. L. Krishnan, AIR 1996 SC 497. It was clarified therein by the three Judge Bench that Mohammed Yousef's case was decided without the earlier Constitution Bench decisions of the Apex Court being brought to the notice of the Bench that decided it. The Court briefly referred to the same :
"27. In Arnold Rodricks v. State of Maharashtra, (1966) 3 SCR 885: (AIR 1966 SC 1788), the Constitution Bench dealt with the question whether the statement in the notification under Section 4 that the land was required for "development and utilization of the said land as an industrial and residential areas" cannot be said to be a public purpose within the meaning of Section 4 of the Land Acquisition Act. The Court held, relying upon the decisions of this Court in Babu Barkya 15 Thakur v. State of Bombay (1961) 1 SCR 128 at 137: (AIR 1960 SC 1203 at p.1207) and Pandit Jhandu Lal v. State of Punjab, (1961) 2 SCR 459: (AIR 1961 SC 343) as well as the statement in the counter-affidavit filed on behalf of the State Government - that the purpose stated in the notification is indeed a public purpose. The Constitution Bench pointed out that in Babu Barkya Thakur, this Court had relied upon the decision in State of Bombay v. Bhanji Munji, (1955) 1 SCR 777:
(AIR 1955 SC 41) to the effect that "providing housing accommodation to the homeless is a public purpose (and that) where a larger section of the community is concerned, its welfare is a matter of public concern". The counter-affidavit filed on behalf of the Government explained that the pressure of housing in Bombay is acute and that there was any amount of need for fresh housing. The Court (majority) observed. " in our view, the welfare of a large proportion of persons living in Bombay is a matter of public concern and the notifications served to enhance the welfare of this section of the community and this is public purpose"."16
Further, after drawing reference to another Constitution Bench decision, it was clarified as to when the principle and ratio in Mohammed Yousef's case would be attracted .
"30. In Aflatoon v. Lt. Governor of Delhi, (1975)1 SCR 802: (AIR 1974 SC 2077), another Constitution dealt with a similar contention; viz., that before publishing the notification under Section 4, the Government had not declared any area in Delhi as a development area under Section 12(1) of the Delhi Development Act nor was there a Master Plan drawn up in accordance with Section 7 of that Act. The notification under Section 4 was attacked on that basis.
It was argued that under Section 12(3) of the Delhi Development Act, no development of land can be undertaken or carried out except as provided in that sub-section. This argument was negatived by the Constitution Bench holding that (at p. 2084 of AIR):
"The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the 17 Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was no inhibition in acquiring land for planned development of Delhi under the Act before the master Plan was ready (see the decision in Patna Improvement Trust v. Smt. Lakshmi Devi, (1963 Suppl. (2) SCR 812): (AIR 1963 SC 1077).
In other words, the fact that actual development is permissible in an area other than a development area with the approval or sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act.
Section 12 is concerned only with the planned development. I has nothing to do with acquisition of property;
acquisition generally precedes development. For planned development in an area other than a development area it is only necessary to obtain the sanction or approval of the local authority as provided in S. 12(3).
The Central Government could acquire any property under the Act and develop it after 18 obtaining the approval of the local authority."
31. It is significant to notice that Section 12 of the Delhi Development Act, 1957 provided for declaration of any area as development area by the Central Government and it further provided that except as otherwise provided by the said Act, the Delhi Development Authority shall not undertake or carry out any development of land in any area which is not a development area.
Sub-section (3) of Section 12, however, provided that after the commencement of the said Act, no development of land shall be undertaken or carried out in any area by anyone unless (i) where that area is a development area, permission for such development has been obtained in writing from the authority in accordance with the provisions of the Act and (ii) where the area is an area other than a development area, 19 approval of the local authority or other concerned authority is obtained according to law. Section 15 of the said Act provided for acquisition of any land required for the purpose of development under the Act.
32. In our opinion, the observations quoted and emphasised hereinabove, and the broad similarity between the provisions of the Delhi Act and the Tamil Nadu Housing Board Act, establish that the acquisition of the land is not dependent upon the preparation and approval of a scheme under Sections 37 to 56 and that the Government's power of acquisition extends to other purposes of the Board and the Housing Board Act referred to in Sections 35 and 36. Moreover, under Tamil Nadu Housing Board too, there is no inhibition against acquisition of land for the purpose of the Board except in accordance with and as a part of the scheme.
20
33. For all the above reasons, we find it difficult to read the holding in Mohammed Yousef as saying that in no event can the land be acquired for the purpose of the Act/Board unless a final and effective scheme is framed by the Housing-Board under the provisions of Sections 37 to 56. The said limitation applies only where the land is sought to be acquired avowedly for the purpose of execution of a housing or improvement scheme prepared by the Housing Board under Chapter-VII of the Tamil Nadu Housing Board Act. In other words, unless the notification under Section 4 of the Land Acquisition Act expressly states that land proposed to be acquired is required for executing a housing or improvement scheme (i.e., a final and effective scheme) framed by the Housing Board under the provisions of the Tamil Nadu Housing Board Act, the principle and ratio of Mohammed Yousef is not attracted*.
21
Mere statement in the notification that land is required for the purpose of the Housing Board would not by itself attract the said principle and ratio. In the instant appeals, the notifications do not even state that the land proposed to be acquired is meant for the purpose of the Housing Board."
(Emphasis supplied) There is yet another decision of this court in Devaraja and others vs. The State of Karnataka,, WP 9593/2007 and connected matters dated 29.5.2012, wherein a learned Single Judge of this court, while considering the question whether a Scheme should be prepared and finalized before issuance of a preliminary notification under Section 4(1) and final declaration under Section 6(1) of the LA Act, for acquisition of properties in implementing the project of the Karnataka Housing Board under the provisions of the Karnataka Housing Board Act, 1962, has held that a harmonious reading of Sections 7 to 24 and Section 32 of the said Act, would indicate that the 22 Housing Board cannot execute a housing scheme prepared and finalized by itself and that the same has to be sanctioned and approved by the State Government. And placing reliance on L.Krishnan's case, it was held thus:
"9. In the matter on hand also, as aforementioned, the Housing Board is entrusted with two duties, viz., first execution of its own housing schemes, i.e., the housing and development schemes formed by the Housing Board, secondly, execution of projects formed and entrusted by the State Government. If the land to be acquired is avowedly for the purpose of execution of housing schemes/land developments schemes conceived by the Housing Board, only then the final and effective scheme is must. In case of the acquisition of the land by the Housing Board for the purpose of implementing the project conceived by the State Government, then the effective and final housing scheme is not necessary in view of specific provision in that regard i.e. Section-32 of the KHB Act.
Having regard to the entire scheme of the Karnataka Housing Board Act in general and 23 homogeneous reading of Sections 17 to 24 read with Section 32 and 33 in particular, it is clear that the effective and final scheme which is approved and sanctioned by the State Government is very much necessary for implementing such programes/schemes conceived and framed by the Housing Board. The acquisition notifications in question clearly reveal that lands are proposed to be acquired for the purpose of execution of the housing scheme of the Housing Board. It is also not disputed by the Housing Board that the acquisition in question is being made for the purpose of implementing/executing the project conceived by the Karnataka Housing Board, but not conceived by the State Government. In view of the same, the framing, finalizing and sanctioning of the scheme is a condition precedent for going ahead with the acquisition. But the records maintained by the Housing Board do not any where reveal that the housing scheme is finalized and sanctioned by the State Government as required under the provisions of Sections 18 to 24 of the KHB Act. A proceeding under L.A. Act r/w. Section 33(2) of KHB Act can be commenced only after framing and 24 sanctioning of the scheme, for which the land is to be acquired. The provisions of KHB Act particularly Section 18(a) and Section 24 clarify that the acquisition of lands for execution of the scheme by the Housing Board has to be part of the scheme framed and will start only after finalization of scheme."
It was then canvassed in the earlier petitions, that there was a difference between the reliance sought to be placed on Mohammad Yousef and L.Krishnan to contend that there ought to be a Scheme framed, which is duly approved by the State Government prior to the commencement of the acquisition proceedings, would be neither relevant nor applicable in the context of the Karnataka Housing Board Act, 1962, as the said decisions of the apex court was with reference to the Madras State Housing Board Act and the provisions of the said Acts were compared to indicate that there is much difference between the two Acts and it was contended that the decision in L.Krishnan, supra could not be pressed into service. 25
It was also contended that there was yet another judgment of a Single Judge of this court in M.Nagaraju vs. Government of Karnataka, WP 18596/2006 and connected cases dated 6.2.2009, wherein it was held that the prior approval of a Scheme was not necessary before initiation of the acquisition proceedings. The said decision however was rendered without reference to Devaraja's case, supra. It was further brought to the attention of this bench that the decision in Nagaraju's case was challenged in appeal in WA 1244- 45/2009 and it was dismissed. Thereby affirming the view taken in Nagaraju's case and that the said view would hold the field. It was further brought to the attention of this court that the decision of the Single Judge in Devaraja's case was also challenged in appeal and the Division Bench has stayed the operation of the order. It is in the light of those decisions, and inspite of the same that a view was taken as follows:-
"It is pointed out that the provision of land for carrying out a housing Scheme by 26 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 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 27 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 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 28 would be applicable. The said provision is reproduced hereunder for ready reference.
".S33......................
(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 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."
29
Therefore, as the present respondent no.4 is an institution, managed by a Trust - akin to a society, for whose benefit the land was to be acquired and the purpose being a public purpose, it would still require a Scheme to be framed and duly approved by the State Government before the acquisition proceedings are initiated. The contention that respondent no.4 having made a request to the State Government and the State Government acceding to the said request and initiating acquisition proceedings should be construed as a Scheme, is not tenable. The proposition put-forth is with reference to Annexure - C to the writ petition in WP 3345-47/2010, which merely indicates the intention of the respondent and has furnished the list of lands that could be acquired for its purpose. On the other hand, there are no other details furnished such as the extent of the buildings that would be constructed, the cost of the project, the cost of acquisition and other aspects, which would be inherent in a Scheme to be formulated and approved by the State Government. Therefore, the requirement of the 30 State Government approving the Scheme and thereafter proceeding to acquire the land is absent. In the light of the view taken by this court, as detailed above, the present petitions are allowed. The acquisition proceedings are held to be bad in law in the light of the circumstance that there is no prior approval of any Scheme formulated to initiate the acquisition proceedings.
Sd/-
JUDGE nv