Karnataka High Court
Chickrangaiah vs State Of Karnataka And Ors. on 22 December, 1995
Equivalent citations: ILR1996KAR3577, 1996(7)KARLJ846, 1997 A I H C 1878
ORDER P. Krishna Moorthy, J.
1. The Petitioner is challenging the proceedings initiated under the Land Acquisition Act, in respect of his land. In the amended Writ Petition, it is stated that the petitioner is the owner and in actual possession of about 2 acres and 13 guntas of land in Sy.No. 7/1 situated at Shettihalli Village, Kasaba Hoblic, Tumkur Taluk, Tumkur District. The second respondent- the Special Land Acquisition Officer issued a Preliminary Notification under Section 4(1) of the Land Acquisition Act in respect of this land and other lands on 30.12.1991. It was published in the Karnataka Gazette only on 20.2.1992 and the copy of the Gazette Notification is produced as Annexure 'A'. The Notification has also been published in the Kannada Daily Newspaper 'Prajayani' dated 28.6.1992. In pursuance to the above Notification, the petitioner filed his objections dated 20.6.1992 contending among other things that he is a poor agriculturist and there is no other place for him to construct a residential house for his family members. The true copy of the objections is produced as Annexure 'B'. Notwithstanding the objections filed by the petitioner, a final notification under Section 6 of the Land Acquisition Act was made on 14.10.1993 and it was published in the Karnataka Gazette dated 4.11.1993. A true copy of which is produced as Annexure 'C'. The petitioner is challenging the two notifications Annexures 'A' and 'C' published under Sections 4 and 6 of the Land Acquisition Act, on the ground that it is beyond the period specified in Section 6 of the land Acquisition Act. The petitioner alleges that the notification under Section 4 of the Land Acquisition Act was published in the Karnataka Gazette dated 20.2.1992 and also in the newspaper dated 28.6.1992 as is evident from Annexure 'B'. Section 6 declaration has bee published in the Karnataka Gazette only on 14.10.1993 which is beyond one year as contemplated under Section 6 of the Land Acquisition Act and accordingly, the acquisition is lapsed. It is also alleged that, from among the lands notified under Section 4 certain lands which lie in the middle of the lands which were sought to be acquired, were excluded and that it is malafide exercise of power. It is further submitted that the acquisition is for the purpose of the Karnataka Housing Board and that, before the acquisition proceedings are initiated, a housing scheme has to be prepared in Chapter III of the Karnataka Housing Board Act. Under Section 20 of the Karnataka Housing Board Act, the Housing Scheme has to be sanctioned by the State Government and Section 24 of the said Act deals with the implementation of the sanctioned scheme. There is a clear prohibition under the Act that the Board shall not execute the scheme unless the same has been sanctioned by the Government. It is alleged by the petitioner that no housing scheme has been sanctioned under Section 20 of the Act and that the same has not been published in the Karnataka Gazette in accordance with law. The petitioner alleges that the acquisition proceedings can be initiated only after the Housing Scheme has been sanctioned by the State Government by virtue of the provisions contained under Section 24(2) of the Karnataka Housing Board Act, 1962.
2. Respondents 2 and 3 have filed a statement of objections, in which, it is submitted that, Section 4(1) Notification was published in the Gazette dated 20.3.1992 and that it was also published in the 'Prajavani' daily on 28.6.1992. The petitioner submitted his objections against the acquisition which was duly considered and thereafter, Section 6(1) Notification was issued. It was further submitted that the preliminary notification under Section 4(1) of the Act was published in the Karnataka Gazette on 20.2.1992 and in the 'Prajavani' daily on 28.6.1992. It was published in another daily by name "Tumkur Varthe" on 16.10.1992. The period of one year provided for under Section 6 of the Land Acquisition Act, has accordingly to be calculated only from 16.10.1992 when the publication was made in the "Tumkur Varthe" and accordingly, Section 6(1) declaration is within time as specified under Section 6 of the Act. The allegation of malafides was also reputed by them. In regard to the contention that the acquisition can be made only after the scheme is sanctioned by the State Government, it is submitted that the sanction of Housing programme and scheme will be accorded only after the acquisition of land by the Karnataka Housing Board. The Karnataka Housing Board prepares the Scheme and sent it to the Government for sanction only after the acquisition of land and thereafter, alone, scheme has to be sanctioned. It is their case that no prior approval or sanction is necessary under any of the provisions of the Karnataka Housing Board Act for acquiring the land under the Land Acquisition Act. It is further submitted that, for the execution of the scheme, sanction of the Government is necessary and that for acquiring lands, no such sanction is necessary. It is further submitted that, a Scheme can be prepared under the Act only after the lands are acquired, when alone, the Karnataka Housing Board will be in a, position to form a scheme and submit it to the Government for sanction.
3. In the light of the pleadings, two questions arise for consideration in this Writ Petition, viz.,
(i) Whether Section 6 declaration made in this case is within the time prescribed under Section 6 of the Land Acquisition Act; and
(ii) Whether acquisition proceedings under the Land Acquisition Act can be initiated before the scheme is sanctioned by the Government?
4. As far as the first contention is concerned, it is an admitted fact that the Preliminary Notification under Section 4(1) was published in the Karnataka Gazette dated 20.2.1992 and it was published in the "Prajavani' Newspaper on 28.6.1992. From the objections filed by the respondents, it is seen that the Notification under Section 4 was published in the 'Tumkur Varthe' on 16.10.1992. Section 6(1) declaration was dated 14.10.1993. It is the case of the petitioner that, when Section 4 prescribes that the Notification has to be published in two daily newspapers, it has to be done simultaneously and that publishing the same in two newspapers at different time and after a lapse of four months, cannot save the period of limitation as provided under Section 6 of the Land Acquisition Act. On the other hand, Learned Counsel for the respondents contended that under Section 4, last dates of the publication and the giving of such public notice is the date of publication of the notification and thereby, the date has to be calculated from 16.10.1992 when the same was published in the local daily newspaper 'Tumkur Varthe'. Section 4 of the Land Acquisition Act provides that the Notification under that Section shall be published in the Official Gazette and in two daily newspapers circulating in that locality, of which, atleast, one shall be in the regional language. On a reading of the provisions under Section 4, I feel that the notifications in the daily newspapers have to be done simultaneously atleast on a near date and that it cannot be published at an interval of more than nearly four months as has been done in this case. In one newspaper, it was published on 20.6.1992 and in another newspaper, it was published on 16.10.1992. There is great force in the contention of the petitioner that the respondents are not entitled to make a publication in two different newspapers at an interval of nearly four months, but, at any rate, I am not expressing any final opinion on that question as I am of the opinion that the petitioner is entitled to succeed on the second contention raised by him.
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. Chapter III of the Karnataka Housing Board Act, 1962, provides for Housing Schemes and Land Development Schemes. Chapter III provides for three types of schemes - viz., Housing Scheme, Land Development Scheme and Annual Housing Programme and Land Development Programme. We are concerned in this case only with the Housing Scheme which is dealt with, under Section 18 of the Act. Section 18 of the Karnataka Housing Board Act provides, among other things, for acquisition by purchase, exchange or otherwise of any property necessary for or affected by the execution of the scheme. Relevant portion of Section 18 is as follows:
"18. MATTER TO BE PROVIDED FOR BY HOUSING SCHEMES- Notwithstanding anything contained in any other law for the time being in force, a Housing scheme may provide for all or any of the following matters, namely:-
(a) the acquisition by purchase, exchange of otherwise of any property necessary for or affected by the execution of the scheme;"
6. Section 19 of the said Act provides for the preparation and submission of Annual Housing programme and Land Development Programme and under Section 20 of the Act, the State Government may sanction the programme, the budget and the schedule of the staff of officers and servants. Section 24 of the Act is to the following effect:
"24. SANCTIONED HOUSING SCHEMES (AND LAND DEVELOPMENT SCHEMES) TO BE EXECUTED:-
(1) After the programme has been sanctioned and published by the State Government under Sections 20 and 21, the Board shall, subject to the provisions of Section 23, proceed to execute the housing scheme, land development scheme or labour housing scheme included in the programme."
(2) The Board shall not execute any housing schemes, land development schemes and labour housing schemes unless the same has been sanctioned by the State Government."
Sub-clause (2) of Section 24 is clear that the Board shall not execute any housing schemes, land development schemes and labour housing schemes unless the same has been sanctioned by the State Government. It is clear from Section 18 that the acquisition of any property necessary for or affected by the execution of the scheme has to be provided for under the scheme, and only by execution of the scheme, land can be acquired. Thus on a reading of Sections 18, 19, 20 and 24 of the Act, it is clear that any land can be acquired for the purpose of a housing scheme only after the same has been sanctioned by the State Government, It is clear that acquisition of land for the purpose, of the scheme is one of the matters to be provided in housing scheme and only by executing a scheme, lands can be acquired, which is possible, only after the scheme is sanctioned by the Government, Section 33(2) of the Act provides as follows:
"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 acquisition for a public purpose with the meaning of the Land Acquisition Act, 1894."
The aforesaid Section also authorises the Board to take steps for compulsory acquisition of any land which is required for the execution of a housing scheme. It is clear from the above Section that the land may be acquired for the execution of a scheme. A scheme can be executed after the same is sanctioned by the Government under Section 24(2) of the Act. Acquisition of the land under the Land Acquisition Act is one of the steps to be taken for execution of the scheme and unless and until there is a sanctioned scheme, it cannot be executed by acquisition of the lands. As stated earlier, Section 24(2) prohibits the execution of any housing scheme without the same being sanctioned by the State Government. In this case, admittedly, no housing scheme has been sanctioned and accordingly, the respondents have no jurisdiction to acquire the land before the scheme is sanctioned by the Government, On going through the Sections of the Karnataka Housing Board Act, 1962, the case of the Respondents that the scheme has to be framed and sanctioned only after the acquisition of the land cannot be accepted.
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 ANR. v. A. MOHAMMED YOUSEF AND OTHERS , has also taken the same view. In that view of the matter, I hold 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.
In the result, I allow this Writ Petition and quash the rectifications under Sections 4 and 6 of the Land Acquisition Act, evidenced by Annexures 'A' and 'C' insofar as they relate to the land belonging to the petitioner, viz., 2 acres and 13 guntas of land in Sy.No. 7/1, situate at Shettihallj Village, Kasaba Hobli, Tumkur Taluk, Tumkur District.