Karnataka High Court
Smt. Venkamma And Ohters vs Deputy Commissioner, Bangalore ... on 9 February, 1995
Equivalent citations: AIR1995KANT351, ILR1995KAR607, 1995(3)KARLJ99, AIR 1995 KARNATAKA 351, (1995) ILR (KANT) 990, (1995) ILR (KANT) 607, (1996) LACC 50
Author: G. T. Nanavati
Bench: G. T. Nanavati
ORDER
Nanavati, C. J.
1. Appeallant No. 1 is the mother and appellants Nos. 2 to 6 are her sons.They question the correctness of the order passed by the learned single Judge rejecting Writ Petition No. 2697/87, and also the legality of acquisition of their land admeasuring 2 acres and 19 guntas out of Survey No.31/2A of Belligere Village in Bangalore South Taluk.
2. In order to provide house sites to homeless persons belonging to weaker sections of the Society the State Government decided to acquire the said land and Sy. No.31/1B and in exercise of its power under Section 3(1) of the Karnataka Acquisition of Lands for Grant of House Sites Act, 1972, (hereinafter referred to as the Act), issued a Notification dated 15-6-1982 in that behalf. The notices dated 13-7-1982 calling upon the appellants to show cause why their land should not be acquired were served upon them on 19-6-1984. They filed objections on 18-7-1984. The final notification under Section 3(4) of the Act was issued on 5-2-1987. Earlier, on 16-12-1986, the Government had dropped from acquisition Sy. No. 31/1B as it found that there was no necessity to acquire that land.
3. Before the learned single Judge, the acquisition was challenged on three grounds. It was contended that there was undue delay in serving the notices contemplated by Section 3(2) of the Act, as notices were served on the appellants almost after two years. The second ground of challenge was that the appellants were not given sufficient opportunity to put forward their objections. The third contention was that the Block Development Officer was not heard before taking the decision to issue the Final Notification. The learned single Judge did not find any substance in any of these contentions and therefore, summarily rejected the writ petition.
4. The two contentions raised before the learned single Judge that no proper opportunity was given to the appellants to put forward their objections and that the acquisition was bad because the Block Development Officer was not heard before deciding the issue of final notification, were not pressed before us. Three new contentions have been raised in this appeal.
5. With respect to delay of two years in serving personal notices upon the appellants, it was submitted that though the preliminary notification under Section 3(1) of the Act, was published on 1-7-1982, the individual notices dated 13-7-1982 were served upon the appellants as late as on 19-6-1984. Our attention was invited to the use of the word 'on' in Section 3(2) and the words 'immediately after' in Rule 4 of the Karnataka Acquisition of Lands for Grant of House Sites Rules, 1973, and it was submitted that the State Government has to serve notice upon the owner or the occupier or the interested persons either simultaneously with the publication of the notification or soon thereafter. It was submitted that both these provisions are mandatory and therefore, as a result of non-compliance with the said requirement, it should be held that the acquisition has become illegal. There can be no dispute that ordinarily the notice under Section 3(2) of the Act has to be served without any avoidable delay. Whether non-compliance with this requirement would always result in invalidation of the acquisition is the question which we have to consider. We need not refer to the Dictionary meaning of the words 'on' and 'immediately' even though heavy emphasis was placed upon those meanings by the learned Advocate for the appellants, as, in our opinion, there is no dispute as regards the true meaning of these words. The only point to be examined is whether the said requirement can be held as mandatory. It was contended that where a mode of performing duties is laid down by law, it must be performed in that mode and not at all. Even in the absence of the words 'simultaneously' or 'immediately', the Supreme Court while interpreting Section' 4(1) as it stood then, held in Deepak Pahwav.: LtGovernor of Delhi, thus :
"Naturally contemporaneity may involve a gap of time and by the very nature of the things, the publication in the Official Gazette and the public notice in the locality must necessarily be separated by a gap of time. This does not mean that the publication and the public notice may be separated by a long interval of time. What is necessary is that the continuity of action should not appear to be broken by a deep gap."
The decision of the Supreme Court in Land Acquisition Officer v. Mohd. Amri Khan, wherein the same view has been taken, was also relied upon. Now the principle that where a mode of performing a duty is laid down by law, it must be performed in that mode or not at all, is held to be subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat them. In Pratap Singh v. Shri Krishna_Gupta the Supreme Court has observed that it is the substance that counts and must take precedence over mere form, and that some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is a substantial compliance with the rules read as a whole and provided no prejudice ensues. In Deepak Pahwa's case (supra), though it is true that the word 'immediately' was not there, the Supreme Court has observed that when there is a large gap of time, it may become necessary to further discover if there is any cause for the delay and if the delay has caused prejudice to anyone.
6. The Act has been enacted with the object of providing house sites to weaker sections of the people after acquiring lands for that purpose. Apart from publication of notice in Government Gazette and other prominant places, sub-section (2) of Section 3 and Rule 4 of the Rules provide for giving individual notices to the owner, occupier or the person interested, as the case may be. The purpose of giving notice to such person is to call upon him to show cause why his land should not be acquired. If this object is to be achieved, serving of the notice upon the person concerned will have to be regarded as mandatory. But, in our opinion, no useful public purpose will be served by holding that the requirement of serving of notice immediately on publication of notification should also be regarded as mandatory. The purpose of serving notice immediately is to see that the enquiry starts as early as possible and the final declaration can be made quickly. The State Government or the Assistant Commissioner, on whom the obligation to serve notice has been imposed obviously will have to act through their subordiante officers. It may happen that even after the State Government or the Assistant Commissioner given necessary instructions for service of notice, the subordinate officers may not carry out that direction immediately. There can be various reasons for that. If the requirement of giving notice immediately is held as mandatory, then that is likely to create more mischief than serving any good purpose and may lead to defeating the object and the purpose of the Act. As against that, the person upon whom the notice is required to be served may not suffer any prejudice because of that delay. For these reasons, we hold that the requirement of serving the notice immediately after the publication of the notification is directory and not mandatory, and therefore, even if there is some delay in compliance therewith, that will not render the acquisition bad unless it has cause substantial prejudice to 'the person concerned.
7. The material on record discloses that the notification under Section 3(1) was published on 13-7-1982 and on that very day the Assistant Commissioner had passed the order for serving notices on the persons concerned including the appellants. The notices in the prescribed form were prepared on 13-7-1982. No further action was taken as the Clerk concerned was on leave and had remained on leave till June 1984 and therefore the fact of not issuing the notices did not come to the notice of anyone. When that lapse was discovered, the notices were sent and served upon the appellants. It is significant to note that no specific point in this behalf as taken in the objections filed before the Land Acquisition Officer. Before us, what was contended was that as a result of the delay, the enquiry was not concluded early with the result that, payment of compensation has been delayed. There is adequate provision with respect to payment of interest if there is delay in payment of compensation. No prejudice is shown to have been suffered by the appellants even though it was generally argued that once a notification under Section 3(1) is issued, certain restrictions and limitations are imposed upon the right of the owner or the occupier of the land, to use it in the manner he likes. Nothing has been pointed out to us which would go to show that in this case the appellants wanted to use or improve their lands in a particular manner and they were prevented from doing so because of Section 3(1) notification. We, therefore, hold that the requirement of giving individual notice immediately after publication of the preliminary notification is directory and not mandatory and as the appellants did not suffer any substantial prejudice as a result of the delay in giving notice to them, the acquisition of their lands cannot be regarded as invalid.
8. The next point which was raised before us and which was not urged before the learned single Judge was that the land which has been acquired is now situated within the green-belt. When the notification under Section 3(1) was issued it was not within the green-belt and it became part of the green-belt on 18-10-1984. The appellants had therefore raised an objection before the Assistant Commissioner that it has ceased to be suitable for the purpose for which it is sought to be acquired. It was also submitted before the Government that as the land is now included in the green-belt, no buildings can be constructed thereupon and therefore, the said land cannot be regarded as suitable for the purpose of providing house sites to the homeless persons. It was contended by the learned Advocate for the appeallant before us that neither the Assistant Commissioner nor the State Government had applied its mind properly to these aspects and therefore it should be held that the satisfaction which was arrived at by the Government that the land is needed for the aforesaid public purpose was not genuine. This contention was not raised in the petition. It was not even raised before the learned single Judge. As stated earlier, the preliminary notification under Section 3(1) of the Act, was issued on 13-7-1982. The land of the appellants along with the lands of others of Balageri village became part of the green-belt when the Comprehensive Development Plan (C.D.P.) came to be finalised on 18-10-1984. Even while conceding that an agricultural land can be put to non-agricultural use after obtaining permission under Section 95 of the Karnataka Land Revenue Act, 1964, the learned Advocate contended that in view of the Karnataka Town and Country Planning Act, 196T and particularly Section 19 thereof, every change in land use is to be in conformity with the Outline Development Plan or the C.D.P. as the case may be, and no change in land use can be permitted if it is contrary to the provision made in the Outline Development Plan or the C.D.P. It was contended that all these aspects were not considered by the State Government before making the final declaration.
9. We do not think that there is any substance in this contention also. The Act does not limit the power of the State Government to acquire any land for a public purpose. No other provision of law has been pointed out to us in support of the contention that! agricultural lands situated in green-belt can not be acquired by the State Government. In our opinion, what the State Government is required to do in such cases is to consider whether the said land can still be regarded as suitable for the purpose for which it is sought to be acquired. Section 95 of the Karnataka Land Revenue Act, restricts the power of an occupant of agricultural land to put it to any other use without permission. It does not put any restriction on the power of the State Government to utilise such land for any other purpose. Moreover, the Deputy Commissioner has the power under that provision to permit change of user of agricultural land. We can safely assume that the State Government was aware of this provision and keeping in mind this provision it thought it fit to acquire the appellants' land. Even though it is now included in the green-belt it cannot be said that the satisfaction of the State Government in that behalf is not genuine.
10. It was also contended that diversion of agricultural land situated in green-belt into non-agricultural use would result in environmental deterioration. In support of this contention, the learned Advocate for the appellants relied upon the decision of the Supreme Court in Shri Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109. In that case, the Supreme Court hs observed that if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for the Court to intervene in the absence of mala fides. There is no material produced by the appellants in this case to show that the Government was acting mala fide. If as a result of acute shortage of land within the city, nearby agricultural land situated in me green-belt is acquired by the Government, such an action cannot be regarded as mala fide action. It is also not possible to hold that acquisition of such a small piece of land will lead to deterioration in environment. For all these reasons, the contention raised on behalf of the appellants that as the land is now included in the green-belt the purpose of acquisition will not be served, cannot be accepted.
11. The third point raised before us was that there was unreasonable delay in publishing the final notification. Learned Advocate for the appellants drew our attention to the fact that the preliminary notification was issued on 1-7-1982 and the final notification was issued on 5-2-1987 i.e., after more than four years. Relying upon the decision of the Supreme Court in Ramchand v. Union of India, it was contended that even where no time limit is prescribed for exercise of power, it has to be exercised within a reasonable time. As stated earlier, this point was not raised in the petition. With the result, we do not find any explanation as to why final notification could not be issued earlier than 5-2-1987. But the report shows that the notice under Section 3(2) could be served upon the appellants on 19-6-1984. The objecttion filed by the appellants was required to be considered and thereafter other formalities had to be gone into. Tt is also pointed out by the learned Government Advocate that after completion of the enquiry and after submission of the report by the Land Acquisition Officer, it was brought to the notice of the Government in the first half of 1986 that all the persons for whose benefit the land was sought to be acquired were not entitled to the allotment of land under the Act. Therefore, the Government made enquiries and found that only 46 persons were eligible for such allotment. That became clear from the report made in that behalf and submitted to the Government in November, 1986. On that basis, the requirement of land was re-considered and it was found that only 3 acres of land would be required and no more. The Government, therefore decided to drop from acquisition Sy. No. 31/1B and issued a notification to that effect on 16-12-1986. After completing all the formalities, the final notification to acquire the appellants' land was issued on 5-2-1987. Thus considering the facts and circumstances of the case and the explanation which is now offered by the Government, it is not possible to say that there was unreasonable delay in issuing the final notification.
12. It may be stated that the learned Government Advocate relied upon the decision of this Court in S. V. Bannihatti v. Deputy Commissioner, 1993 (4) Kar 2780 (sic) in support of his contention that Section 11A has no application in the State of Karnataka in view of the State amendment and the provisions of the_Karnataka_Acquisition of Lands for Grant of House Sites Act, 1971.
13. At the fag-end of his arguments, the learned Advocate for the appellants raised one more point to the effect that the acquisition of appellants' land was mala fide. It was submitted that land bearing Sy. No.31/1B which was included in the preliminary notification, came to be excluded later on at the instance of one Minister. It is true that it was the Minister who had brought it to the notice of the Government that it was not necessary for the Government to acquire both the lands as notified, as some of the persons for whose benefit the said lands were to be acquired were not entitled to the same under the Act. As pointed out earlier, thereafter an enquiry was made by the Government and it was found that only 46 persons are eligible for allotment of plots. It was under these circumstances that the smaller plot bearing Sy. No.31/1B came to be dropped from acquisition. Merely because the attention of the Government was drawn to this aspect by the Minister, we cannot jump to the conclusion that the Government dropped the said from acquisition at the instance of the Minister and not because it was genuinely satisfied that the said land was not needed for the purpose of acquisition.
14. As we do not find any substance in any of the contentions raised on behalf of the appellants, the appeal is dismissed with costs.
15. It may be stated that this order has been passed after hearing the lengthy arguments of the learned Advocate for the appellants and also the learned Government Advocate.
16. Appeal dismissed.