Karnataka High Court
Gopal S/O Mayappa Jadhav And Krishna S/O ... vs The State Of Karnataka By Its Secretary ... on 11 October, 2006
Equivalent citations: ILR2006KAR135, 2007(1)KARLJ76
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
ORDER Mohan Shantanagoudar, J.
1. Heard the learned Counsels appearing on both sides and perused the material on record. The petitioners have sought for quashing the acquisition notifications issued Under Section 17 and 19 of the Karnataka Urban Development Authorities Act 1987 (hereinafter referred to as 'KUDA Act' for short). Since the common acquisition notifications are assailed and as the common questions of facts and law arise for consideration, these writ petitions are taken up for final healing together and are disposed of by this order.
2. The petitioners' lands are acquired by the State by issuing impugned notifications for the benefit of Belgaum Urban Development Authority ('Authority' in short) which is constituted under the provisions of the Karnataka Urban Development Authorities Act 1987 ("KUDA Act' in short). By passing the resolution dated 09.06.2000, the 'Authority' proposed to acquire lands to the extent of about 50 acres for formation of residential layout for its proposed scheme No. 56 and submitted its proposal to the Government Under Section 15(b) of the 'KUDA Act' and the Government by its letter dated 21.10.2000 has accorded its permission to the scheme No. 56 Under Section 15(b) of the 'KUDA Act'. The Authority issued notification Under Section 17(1) of the 'KUDA Act', which is published in the official Gazette on 08.11.2000. Thereafter, individual notices were issued to the interested persons including the petitioners herein as provided Under Section 17(5) of the KUDA Act. The Authority, in its meeting held on 29.05.2002 has considered the objections received by it and overruled the same. Thereafter, the authority submitted the proposal to the State Government for its final approval of the scheme No. 56 Under Section 18 of the 'KUDA Act'. The State Government by the order dated 06.01.2005 accorded the approval finally Under Section 18(3) of the 'KUDA Act'. Thereafter, the Notification Under Section 19(1) of KUDA Act came to be published in the official gazette on 14.07.2005.
As aforesaid, the notifications issued Under Section 17(1) and 19(1) of the 'KUDA Act' are questioned in these writ petitions.
3. Sri. S.N. Hatti learned Advocate appearing on behalf of certain of the petitioners vehemently argued that scheme No. 56 for formation of new residential layout at Belgaum city itself was not required inasmuch as, the house sites already formed by the Authority under other schemes are still lying vacant because there are no adequate takers for the same; that notifications issued Under Section 17(1) and 19(1) of the Act are not acquisition notifications but are only notifications issued during the course of the finalisation of the scheme; that actual acquisition of lands shall be done by issuing notifications separately under the provisions of the Land Acquisition Act; that, the Authority has not personally heard the interested persons and objections filed by the interested persons including the petitioners herein are rejected without considering the same in accordance with law; that since there is no specific bar for oral hearing under the "KUDA Act', the rules of natural justice require that the petitioners should be heard before proceeding to acquire the petitioners' lands; In other words, the principles of Section 5-A of the Land Acquisition Act should have been followed by the authority; that the notification issued Under Section 19 of the 'KUDA Act', about five (05) years after the notification issued Under Section 17 of the Act is illegal; that since there is a bar for issuing final notification after one year from the date of preliminary notification Under Section 6 of the Land Acquisition Act, the same principle should be followed in the matters pertaining to the acquisition proceedings initiated under the provisions of 'KUDA Act'; that while passing the resolution on 09.06.2000, the Authority intended to acquire only 50 acres of land and whereas, the Authority has finally acquired 60 acres of land; that since the notifications issued Under Section 17 and 19 of the Act run contrary to the resolution passed by the authority at the first instance, they should be declared as illegal. Lastly he submitted that Survey No. 216, which is the subject matter of writ petition No. 6796/2006 is not found in the resolution passed by the authority on 09.06.2000 for forming the new scheme and consequently, the Authority did not intend to acquire the said land. On these amongst other grounds, he prayed for quashing the notifications impugned in these writ petitions.
4. Sri. D.S. Hosmath, learned Advocate appearing on behalf of certain of the petitioners argued supporting the contentions urged by Sri. S.N. Hatti Advocate. He further submitted that 17 acres of lands are earlier reserved for Industrial purposes in the outline development plan of Belgaum and those 17 acres of lands are also now sought to be acquired under the impugned notifications; that since the planning authority has not permitted the authority to change the land use, the said 17 acres of land cannot be acquired for housing purposes which is exclusively reserved for industrial purposes; that Sy.197 & 198 which are sought to be acquired under the impugned notifications issued Under Section 17 & 19 are not found in the resolution dated 09.06.2000 passed by the authority for forming the new scheme and consequently, these lands should not have been acquired by the Authority under the impugned notifications; that since the Authority has not applied its mind while considering the objections filed by the interested, persons, the notification issued Under Section 19 of the KUDA Act is bad in the eye of law.
Sri. V.V. Gunjal, learned Advocate appearing for other petitioners also argued supporting the very contentions advanced by Sri. S.N. Hatti and Sri. D.S. Hosmath. He further submits that the authority should have followed the procedure contemplated Under Section 5-A of the Land Acquisition Act at the time of considering the statement of objections. In other words he submits that the landowners should have been heard personally by the Authority before issuing notifications Under Section 19 of the Act.
5. Per contra, it is contended by Sri. Niranjanamurthy, learned Advocate appearing on behalf of the 'Authority' that the resolution dated 09.06.2000 passed by the Authority merely states that it intends to acquire about 50 acres of land for formation of housing layout and the same does not mean that it intends to acquire exactly 50 acres of land; that non mentioning of some survey numbers in the resolution of the Authority dated 09.06.2000 would not invalidate the acquisition proceedings inasmuch as, the resolution dated 09.06.2000 cannot he treated as full pledged scheme but it is only the resolution to frame the scheme; that notices are issued to all the interested persons whose names are found in the revenue records of the lands that are proposed for acquisition; that sufficient opportunities are given to all the persons concerned for filing the objections; that the authority has considered the statement of objections in accordance with law; that the spot inspection is conducted by the authority; that the Belgaum Urban Development Authority itself being the planning authority of Belgaum has resolved to get the outline development plan modified suitably with the consent of the Government for change of land use pertaining to 17 acres of land which are acquired under the present scheme; that Section 17 & 19 of the 'KUDA Act' are on par with Section 4(1) and 6(1) of the Land Acquisition Act and that therefore, no fresh acquisition notifications need be issued Under Section 36 of the 'KUDA' Act; that since the 'KUDA Act' is an independent enactment, the limitation prescribed Under Section 6 & 11-A of the Land Acquisition Act is not applicable to the acquisition proceedings initiated under 'KUDA Act'. On these grounds, he prayed for dismissal of the writ petitions. He produced the original records maintained by the Authority for perusal of this Court. Perused the records.
6. The question as to whether the formation of a new residential layout for development of Belgaum city is required or not is a pure question of fact which is to be decided by the concerned Urban Development Authority only. The same being purely an administrative matter and as the Authority concerned is best suited to decide the said fact, this Court will not interfere in such administrative matters. Since the Authority has decided that the residential layout is required for the benefit of people of Belgaum, this Court will not substitute its own opinion in the matter. The resolution dated 09.06.2000 passed by the Authority makes it clear that as on that day, no residential schemes were pending and therefore, the authority resolved to take up the new scheme for formation of residential layout for development of Belgaum Urban Area.
7. The contention of Sri. S.N. Hatti, Advocate that notifications issued Under Section 17 and 19 are not the acquisition notifications but are issued only during the course of finalisation of the scheme cannot be accepted. At this stage, it is relevant to note the provisions of Section 15 to 19, 35 & 36 of the "KUDA Act' and Sections 15 to 19, 35 & 36 of the Bangalore Development Authority Act ('BDA Act' for short) which are on paramateria with each other, as could be seen from the following chart:
The Karnataka Urban Development Authorities Act, 1987 The Bangalore Development Authority Act 1976 Section 15:
Power of Authority to undertake works and incur expenditure for development etc.
-
(1) the authority may:
(a) draw up detailed schemes (hereinafter referred to as "development scheme") for the development of the urban area; and
(b) with the previous approval of the government, undertake from time to time any works for the development of the urban area and incur expenditure therefor and also for the framing and execution of development schemes.(2)
The authority may also from time to time make and take up any new or additional development schemes:
(i) on its own initiative, if satisfied of the sufficiency of its resources; or
(ii) on the recommendations of the Local Authority, if the local authority places at the disposal of the authority, the necessary funds for framing and carrying out any schemes; or
(iii) otherwise.(3)
Notwithstanding anything in this Act or in any other law for the time being in force, the Government may, whenever it deems it necessary, require the authority to take up any development scheme or work and execute it subject to such terms and conditions as may be specified by the Government.
Power of Authority to undertake works and incur expenditure for development etc.
-
(1) the authority may:
(a) draw up detailed schemes (hereinafter referred to as "development scheme") for the development of the Bangalore Metropolitan Area; and
(b) with the previous approval of the government, undertake from time to time any works for the development of the Bangalore Metropolitan Area and incur expenditure therefor and also for the framing and execution of development schemes.(2)
The authority may also from time to time make and take up any new or additional development schemes:
(i) on its own initiative, if satisfied of the sufficiency of its resources; or
(ii) on the recommendations of the Local Authority, if the local authority places at the disposal of the authority, the necessary funds for framing and carrying out any schemes; or
(iii) otherwise.(3)
Notwithstanding anything in this Act or in any other law for the time being in force, the Government may, whenever it deems it necessary, require the authority to take up any development scheme or work and execute it subject to such terms and conditions as may be specified by the Government.
Particulars to be provided for in a Development Scheme: Every development scheme under Section 15:(1)
shall, within the limits of the area comprised in the scheme, provide for:
(a) the acquisition of any land which in the opinion of the authority, will be necessary for or affected by the execution of the scheme;
(b) laying and relaying out all or any land including the construction and reconstruction of buildings and formation and alteration of streets;
(c) drainage, water supply and electricity;
(d) the reservation of not less than fifteen per cent of the total area of the layout for public parks and play-grounds and an additional area of not less than ten percent of the total area of the layout for civic amenities.(2)
may, within the limits aforesaid, provide for:
(a) raising any land which the authority may consider expedient to raise to facilitate better drainage;
(b) forming open space for the better ventilation of the area comprised in the scheme or any adjoining area; and
(c) the sanitary arrangements required.(3)
may, within and without the limits aforesaid provide for construction of houses.
Particulars to be provided for in a Development Scheme: Every development scheme under Section 15:(1)
shall, within the limits of the area comprised in the scheme, provide for:
(a) the acquisition of any land which in the opinion of the authority, will be necessary for or affected by the execution of the scheme;
(b) laying and relaying out all or any land including the construction and reconstruction of buildings and formation and alteration of streets;
(c) drainage, water supply and electricity;
(d) the reservation of not less than fifteen per cent of the total area of the layout for public parks and play-grounds and an additional area of not less than ten percent of the total area of the layout for civic amenities.(2)
may, within the limits aforesaid, provide for:
(a) raising any land which the authority may consider expedient to raise to facilitate better drainage;
(b) forming open space for the better ventilation of the area comprised in the scheme or any adjoining area; and
(c) the sanitary arrangements required.(3)
may, within and without the limits aforesaid provide for construction of houses.
Procedure on completion of schemes -(1)
When a development scheme has been prepared, the authority shall draw up a notification stating the fact of a scheme having been made and the limits of the area comprised therein, and naming a place where particulars of the scheme, a map of the area comprised therein, a statement specifying the land which is proposed to be acquired and of the land in regard to which a betterment tax may be levied may be seen at all reasonable hours.(2)
A copy of the said notification shall be sent to the local Authority, which shall, within thirty days from the date of receipt thereof forward to the authority for transmission to the Government as hereinafter provided, any representation which the local Authority may think fit to make with regard to the scheme.(3)
The authority shall also cause a copy of the said notification to be published in two consecutive issues of a local news paper having wide circulation in the area and affixed in some conspicuous part of its own office, the Deputy Commissioner's Office of the Local Authority and in such other places as the authority may consider necessary.(4)
If no representation is received form the local authority within the time specified in Sub-section (2), the concurrence of the Local Authority to the scheme shall be deemed to have been given.(5)
During the thirty days next following the day on which such notification is published in the local newspapers the authority shall serve a notice on every person whose name appears in the assessment list of the Local Authority or in the land revenue register as being primarily liable to pay the property tax of land revenue assessment on any building or land which is proposed to be acquired in executing the scheme or in regard to which the authority proposes to recover betterment tax requiring such person to show cause within thirty days from the date of the receipt of the notice why such acquisition of the building or land and the recovery of betterment tax should not be made.(6)
The notice shall be signed by or by the order of the commissioner and shall be served:
(a) by personal delivery of, if such person is absent or cannot be found on his agent, or if no agent can be found, then by leaving the same on the land or the building; or
(b) by leaving the same at the usual or last known place of abode or business of such person; or
(c) by registered post addressed to the usual or last known place of abode or business of such person.
Procedure on completion of schemes -(1)
When a development scheme has been prepared, the authority shall draw up a notification stating the fact of a scheme having been made and the limits of the area comprised therein, and naming a place where particulars of the scheme, a map of the area comprised therein, a statement specifying the land which is proposed to be acquired and of the land in regard to which a betterment tax may be levied may be seen at all reasonable hours.(2)
A copy of the said notification shall be sent to the Corporation which shall, within thirty days from the date of receipt thereof forward to the authority for transmission to the Government as hereinafter provided, any representation which the corporation may think fit to make with regard to the scheme.(3)
The authority shall also cause a copy of the said notification to be published in (xxxx) the official Gazette and affixed in some conspicuous part of its own office, the Deputy Commissioner's Office, the office of the Corporation and in such other places as the authority may consider necessary.(4)
If no representation is received form the Corporation within the time specified in Sub-section (2), the concurrence of the Corporation to the scheme shall be deemed to have been given.(5)
During the thirty days next following the day on which such notification is published in the official Gazette the authority shall serve a notice on every person whose name appears in the assessment list of the Local Authority or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any building or land which is proposed to be acquired in executing the scheme or in regard to which the authority proposes to recover betterment tax requiring such person to show cause within thirty days from the date of the receipt of the notice why such acquisition of the building or land and the recovery of betterment tax should not be made.(6)
The notice shall be signed by or by the order of the [commissioner] and shall be served:
(a) by personal delivery of, if such person is absent or cannot be found on his agent, or if no agent can be found, then by leaving the same on the land or the building; or
(b) by leaving the same at the usual or last known place of abode or business of such person; or
(c) by registered post addressed to the usual or last known place of abode or business of such person.
Sanction of Scheme:(1)
After publication of the scheme and service of notices as provided in Section 17 and after consideration of representations, if any, received in respect thereof, the authority shall submit the scheme, making such modifications, therein as it may think fit to the Government for sanction, furnishing:
(a) a description with full particulars of the scheme including the reasons for any modification inserted therein;
(b) complete plans and estimates of the cost of executing the scheme;
(c) a statement specifying the land proposed to be acquired;
(d) any representation received under Sub-section (2) of Section 17;
(e) a schedule showing the rateable value as entered in the municipal assessment book on the date of the publication of a notification relating to the land under Section 17 or the land assessment of all land specified in the statement under Clause (c) and;
(f) such other particulars, if any, as may be prescribed.(2)
Where any development scheme provides for the construction of houses, the authority shall also submit to the Government plans and estimates for the constructions of the houses.
(3)After considering the proposal submitted to it the Government may, by order, give sanction to the scheme.
Sanction of Scheme:(1)
After publication of the scheme and service of notices as provided in Section 17 and after consideration of representations, if any, received in respect thereof, the authority shall submit the scheme, making such modifications, therein as it may think fit to the Government for sanction, furnishing:
(a) a description with full particulars of the scheme including the reasons for any modification inserted therein;
(b) complete plans and estimates of the cost of executing the scheme;
(c) a statement specifying the land proposed to be acquired;
(d) any representation received under Sub-section (2) of Section 17;
(e) a schedule showing the rateable value as entered in the municipal assessment book on the date of the publication of a notification relating to the land under Section 17 or the land assessment of all land specified in the statement under Clause (c) and;
(f) such other particulars, if any, as may be prescribed.(2)
Where any development scheme provides for the construction of houses, the authority shall also submit to the Government plans and estimates for the constructions of the houses.
(3)After considering the proposal submitted to it the Government may, by order, give sanction to the scheme.
Upon sanction, declaration to be published giving particulars of land to be acquired - (1) Upon sanction of the scheme, the Government shall publish in the official gazette declaration stating the fact of such sanction and that the land proposed to be acquired by the authority for the purposes of the scheme is required for a public purpose.(2)
The declaration shall state the limits within which the land proposed to be acquired is situate, the purpose for which it is needed, its approximate area and the place where a plan of the land may be inspected.(3)
The said declaration shall be conclusive evidence that the land is needed for a public purpose and the authority shall, upon the publication of the said declaration, proceed to execute the scheme.(4)
If at any time it appears to the authority that an improvement can be made in any part of the scheme, the authority may alter the scheme for the said purpose and shall subject to the provisions of Sub-section (5) and (6) forthwith proceed to execute the scheme as altered.(5)
If the estimated cost of executing the scheme as altered exceeds by a greater sum than five per cent of the estimated coat of executing the scheme as sanctioned, the authority shall not, without the previous sanction of the Government, proceed to execute the scheme, as altered.(6)
If the scheme as altered involves the acquisition otherwise than by the agreement, of any land other than the land specified in the schedule referred to in Clause (e) of Sub-section (1) of Section 18, the provisions of Section 17 and 18 and of Sub-section (1) of this Section shall apply to the part of the scheme so altered in the same manner as if such altered part were the scheme.(7)
The authority shall not denotify or reconvey any land included in the scheme without the specific orders of the Government.
(8)The authority shall not allot any land to any individual, organisation or authority the civic amenity area earmarked in the scheme without the orders of the Government.
Upon sanction, declaration to be published giving particulars of land to be acquired - (1) Upon sanction of the scheme, the Government shall publish in the official gazette declaration stating the fact of such sanction and that the land proposed to be acquired by the authority for the purposes of the scheme is required for a public purpose.(2)
The declaration shall state the limits within which the land proposed to be acquired is situate, the purpose for which it is needed, its approximate area and the place where a plan of the land may be inspected.(3)
The said declaration shall be conclusive evidence that the land is needed for a public purpose and the authority shall, upon the publication of the said declaration, proceed to execute the scheme.(4)
If at any time it appears to the authority that an improvement can be made in any part of the scheme, the authority may alter the scheme for the said purpose and shall subject to the provisions of Sub-section (5) and (6) forthwith proceed to execute the scheme as altered.(5)
If the estimated cost of executing the scheme as altered exceeds by a greater sum than five per cent the estimated cost of executing the scheme as sanctioned, the authority shall not, without the previous sanction of the Government, proceed to execute the scheme, as altered.(6)
If the scheme as altered involves the acquisition otherwise than by agreement, of any land other than the land specified in the schedule referred to in Clause (e) of Sub-section (1) of Section 18, the provisions of Section 17 and 18 and of Sub-section (1) of this Section shall apply to the part of the scheme so altered in the same manner as if such altered part were the scheme.
Authority to have power to acquire land by agreement: Subject to the provisions of this Act and with the previous approval of the Government, the authority may enter into an agreement with the owner of any land or any interest therein, situated within the urban area for the purchase of such land.
Section 35:
Authority to have power to acquire land by agreement: Subject to the provisions of this Act and with the previous approval of the Government, the authority may enter into an agreement with the owner of any land or any interest therein, whether situated within or without the Bangalore Metropolitan Area for the purchase of such land or interest therein for the purpose of this Act.
Section 36:
Provisions applicable to the acquisition of land otherwise than by agreement: (1) The acquisition of land under this Act otherwise than by agreement within or without the urban area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894.(2)
For the purpose of Sub-section (2) of Section 50 of the Land Acquisition Act, 1894, the authority shall be deemed to be the local authority concerned.(3)
After the land vests in the Government under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the acquisition and upon the authority agreeing to pay any further cost which may be incurred on account of the acquisition, transfer the land to the authority, and the land shall thereupon vest in the authority.
Section 36:
Provisions applicable to the acquisition of land otherwise than by agreement: (1) The acquisition of land under this Act otherwise than by agreement ithin or without the Bangalore Metropolitan Area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894.(2)
For the purpose of Sub-section (2) of Section 50 of the Land Acquisition Act, 1894, the authority shall be deemed to be the local authority concerned.(3)
After the land vests in the Government under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the acquisition and upon the authority agreeing to pay any further cost which may be incurred on account of the acquisition, transfer the land to the authority, and the land shall thereupon vest in the authority.
8. From the aforesaid chart it is clear that the aforesaid provisions in two enactments are almost one and the same. The provisions of 'KUDA Act' are applicable to all the Urban Areas of the Karnataka State other than the city of Bangalore, Whereas the Bangalore Development Authority Act is applicable to the city of Bangalore alone. Prior to coming into force of BDA Act, another enactment viz., City of Bangalore Improvement Act 1945 was operating. Section 27 of the 1945., Act read as under:
27. Provisions applicable for the acquisition of land otherwise than by agreement - The acquisition otherwise than by agreement of land within or without the City under this Act shall be regulated by the provisions, so far as they are applicable, of the Mysore Land Acquisition Act, 1894.
Thus it is clear that the aforesaid provision of the City of Bangalore Improvement Act 1945 is on par with Section 36(1) of the BDA Act as well as Section 36(1) of the 'KUDA Act'. The Apex Court, in the case of the Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah while deciding the similar matter has observed thus:
An examination of the provisions of the Bangalore Act and of acquisition proceedings under the Acquisition Act, contemplated by it, would reveal that, whereas the procedure from the notification under Section 4 of the notification under Section 6 of the Acquisition Act gives place to the procedure provided by Sections 14 to 18 of the Bangalore Act, the stage at, which compensation is to be determined is to be regulated entirely by the general provisions of Section 23(1) of the Acquisition Act because there is no special or separate provision in the Bangalore Act to regulate the compensation payable. It is true that Section 23 is not specifically mentioned in the Bangalore Act. But, the obvious purpose of the opening words of Section 27 of the Bangalore Act seems to us to be that award of compensation, which is a necessary part of any law providing for acquisition, must be governed by Section 23 of the Acquisition Act.
There was some argument on the meaning of the words "So far as they are applicable", used in Section 27 of the Bangalore Act. These words cannot be changed into "in so far as they are specifically mentioned" with regard to the procedure in the Acquisition Act. On the other hand, the obvious intention, in using these words was to exclude only those provisions of the Acquisition Act which become inapplicable because of any special procedure prescribed by the Bangalore Act (e.g. Section 16) corresponding with that found in the Acquisition Act (e.g. Section 4(1)). These words bring in or make applicable, so far as this is reasonably possible, general provisions such as Section 23(1) of the Acquisition Act. They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act. They amount to laying down the principle that what is not either expressly, or, by a necessary implication, excluded must be applied. It is surprising to find misconstruction of what did not appeal to us to be reasonably open to more than one interpretation.
The observations made by the Apex Court in the case cited supra are aptly applicable to the case on hand. Though Chapter-IV of 'KUDA Act' deals with the acquisition of land, Section 36(1) of the KUDA Act makes it clear that the acquisition of land under 'KUDA Act' within or without Urban area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act 1894. The words "so far as they are applicable" used in Section 36(1) of KUDA Act cannot be construed or read as in so far as they are specifically mentioned with regard to the procedure prescribed in the Land Acquisition Act. On the other hand, the obvious intention in using these words was to exclude only those provisions of the land Acquisition Act which became inapplicable because of special procedure prescribed under 'KUDA Act (example Section 17 & 19) of KUDA Act) corresponding with that found in Land Acquisition Act (example Section 4(1) and 6(1)). Hence, the contention of learned Advocate Sri. S.N. Hatti that separate acquisition notifications ought to have been issued Under Section 36 of the 'KUDA Act" r/w Section 4(1) & 6(1) of Land Acquisition Act cannot be accepted inasmuch as, the special procedure is prescribed under the 'KUDA Act' in the matter of issuing acquisition notifications after finalisation of the scheme. The notifications issued Under Section 17 & 19 of the 'KUDA Act' should themselves be treated as the Preliminary and final acquisition notifications. Therefore, the scheme formulated, sanctioned and set for implementation under the 'KUDA Act', cannot be stultified or rendered ineffective and unenforceable by the provisions in the Central Act.
9. The contention of the petitioners that they should have been heard personally by the Authority by following the procedure prescribed Under Section 5-A of the Land Acquisition Act cannot be accepted. The 'KUDA Act' being a special enactment, which is enacted for the purpose of establishment of Urban Development Authorities for the planned development of major and important urban areas in the State and the areas adjacent thereto and for matters connected therewith. In view of the same, the procedure prescribed under the 'KUDA Act only has to be followed prior to issuance of notifications Under Section 19 of the 'KUDA Act. Section 18 of the 'KUDA Act' deals with the sanction of scheme. It provides that after service of notices as provided Under Section 17, if the persons interested in the lands were to file objections within the prescribed period from the date of receipt of notice, the authority is under an obligation to consider the said representations/objections. It is only on consideration of such representations, the authority shall submit the scheme after making such modifications therein as it may think fit, to the Government for sanction. The aforesaid section requires the consideration of representations/objections. Therefore, there is no obligation cast on the Authority to give an opportunity of being heard to the objectors. It need not hold any enquiry in respect of such objections. Therefore, the contention that after objections were filed, the petitioners should have been heard personally in the matter and that they should have been given an opportunity to substantiate their objections cannot be accepted, inasmuch as, it is not the mandatory requirement of law. All that the law stipulates is that the authority shall consider the representations/objections. Therefore, on that score, the acquisition cannot be held to be vitiated in any manner.
However, on perusal of the records of the Authority, it is seen that notices are issued to the individual landowners. Certain of the landowners appeared before the respondent-authority on 28.06.2001 and pleaded for deletion of their lands from acquisition. Some of the landowners have filed statement of objections through their Advocates also. The authority again met on 28.08.2001 and on 03.11.2001 and considered the statement of objections filed by the landowners. In the meanwhile, the State Government has accorded permission to the Planning Authority for change of land use with regard to 17 acres of land, which was earlier earmarked for industrial purposes in the month of April 2002. It was also decided by the Authority to hold spot inspection. Ultimately, the statement of objections filed by the landowners were rejected by the Authority on 29.05.2002. In view of the above, it cannot be said that there is non-application of mind on the part of the Authority while rejecting the statement of objections filed by the petitioners. So also, it cannot be said that the statement of objections filed by the petitioners are not duly considered by the Authority.
10. There is no substance in the next contention urged on behalf of the petitioners that the notification issued Under Section 19 of the 'KUDA Act' almost after five years from the date of notification issued Under Section 17 of the 'KUDA Act' is bad in the eye of law. Admittedly, the notification Under Section 17 of the 'KUDA Act is dated 08.11.2000 and notification Under Section 19 of the Act was issued on 14.07.2005. It is contended that the Land Acquisition Act being the parent enactment relating to acquisition, the limitation of one year prescribed Under Section 6 of the Land Acquisition Act should be followed in the matters of acquisition under 'KUDA Act' also. The said contention though sounds attractive cannot be accepted. The Apex Court, in the case of Munithimmaiah v. State of Karnataka and Ors. while dealing with the similar matter under 'BDA Act' has held that Section 6 and 11-A of the Land Acquisition Act providing one year limitation period for issuance of final notification and passing of award is not applicable to the acquisition proceedings initiated U/S. BDA Act, as the BDA Act is special law providing for acquisition for special purpose. Following the aforesaid dictum laid down by the Apex Court, the Full Bench of this Court in the case of Abdul Rehman and Ors. v. State of Karnataka by its Secretary, Bangalore and Ors. reported in ILR. 2003 KAR-2282 has also ruled that the provisions of Land Acquisition amendment Act 1984 amending Section 6 and 11-A providing for limitation would not apply to the provisions of the BDA Act and Urban Development Authority Act. In view of the specific dictum laid down by the Apex Court as well as the Full Bench of this Court cited supra, it cannot be said that the notification issued Under Section 19(1) of the 'KUDA Act' though issued nearly about five (05) years after the notification issued Under Section 17(1) of the 'KUDA Act' is illegal and invalid.
11. However, I hasten to add here itself that final notification should be issued within a reasonable period from the date of preliminary notification. To ascertain as to whether the final notification issued Under Section 19 of the 'KUDA Act' in the case on hand is within reasonable time or not, I have perused the original records of the authority to know as what has happened during the period between 08.11.2000 (date of preliminary notification) and 14.07.2005 (final notification). I find from the records, that after publishing the preliminary notification, the notices were issued to the notified kathadars inviting them to file statement of objections. Certain of the landowners including the petitioners have filed their statement of objections. Even the landowners were invited for personal hearing on 28.08.2001 and on 03.11.2001. The Authority has discussed the issue at length in its meeting held on 03.11.2001 and decided to hold spot inspection by the authority. On 29.05.2002, the statement of objections were considered and rejected by the Authority. Thereafter, the proposal was sent to the State Government Under Section 18(1) of the KUDA Act praying for sanction of the scheme. Necessary documents i.e., plans, PT., sheet etc were prepared by the Authority and the copies of the same were sent to the Public Works Department also. When the matter was pending before the Government, some of the land owners made representation to the Minister of Urban Development on 04.02.2003 praying for dropping the scheme. The copies of those representations are sent to the authority for consideration. However, after consideration, said representations were rejected by the Authority in the month of April-2003. Thereafter, there was certain correspondence between the State Government and the Authority with regard to the formalities to be completed relating to the scheme. In the month of January 2005, the surveyors, Engineers and others visited the spot for the purpose of actual measurement and for further action. At the time of spot inspection, the landowners objected for the same. However, thereafter, the sanction was accorded by the State Government on 06.01.2005 Under Section 18(3) of the KUDA Act. After following the due procedure, the final notification Under Section 19 of the KUDA Act is issued. The aforesaid facts and the documents maintained by the Authority would amply disclose as to what steps were taken by the Authority after issuing preliminary notification till issuance of final notification.
12. In view of the same, it cannot be said that the Authority has deliberately issued final notification belatedly. The time gap between the preliminary notification and final notification is sufficiently explained by the records of authority. Hence, the Judgment relied upon by the petitioner reported in ILR 2002 KAR-2078 (Shimoga Urban Development Authority, by its Commissioner and Anr. v. State of Karnataka, by its Secretary, Government, HUD department and Ors.) is not applicable to the facts of the present case. As has been held by this Court in the case of Smt. M.V. Lalithamani and Ors. v. Mysore Urban Development Authority and Ors. reported in 2003(4) Kar. L.J. 528, if the delay is not deliberate but is bonafide, delay is to be condoned. In the case on hand, the delay stood validly explained by the Authority.
13. Merely because some of the survey numbers are not found in the resolution passed by the authority on 09.06.2000, it cannot be said that the acquisition notifications are bad in the eye of law. The resolution dated 09.06.2000 is only a proposal to form a scheme and it is not a scheme finally prepared or approved by the Government. It is only after finalisation of the scheme, the same will be sent to the Government Under Section 18 of the 'KUDA Act' for approval. At the time of finalisation of the scheme, the proposal earlier made can be modified as is clear from the language employed in Section 18 of the 'KUDA Act'. Therefore, it cannot be said that the notifications issued Under Section 17 and 19 of the 'KUDA Act' are bad in the eye of law solely on the ground that they run contrary to the initial resolution dated 09.06.2000. As a matter of fact, the scheme sanctioned by the Government Under Section 18 of the 'KUDA Act' does not run contrary to the acquisition notifications. It is not in dispute that the names of these petitioners and their lands are found place in the impugned notifications issued Under Section 17 and 19 of the Act. Therefore, the submission made in that regard is rejected.
14. It is no doubt true that 17 acres of the land which are now sought to be acquired were coming in the area which is reserved for industrial purpose in the outlined development plan. There cannot be any dispute that Belgaum Urban Development Authority itself is a Planning Authority for Belgaum City. Under Section 14-A of the Karnataka Town and Country Planning Act 1961, the Planning Authority may, at any time after the date on which the Outline Development Plan for an area comes into operation, with the previous approval of the State Government, allow such changes in the land use or development from the Outline Development Plan as may be necessiated by topographical or cartographical or other errors and omissions, or due to failure to fully indicate the details in the plan or changes arising out of the implementation of the proposals in Outline Development Plan or the Circumstances prevailing at any particular time, by the enforcement of the plan. In this matter also, the Planning Authority has passed the resolution for change of land use from Industrial to residential purposes in so far as it relates to 17 acres of land in the interest of people at large of Belgaum City and the Authority has sent its resolution for approval of the State Government. The State Government has accorded approval for change of land use in the month of April 2002. Thus, the procedure as contemplated Under Section 14-A of the Karnataka Town and Country Planning Act 1961 is fulfilled. In this view of the matter, the contention of the petitioners that said 17 acres of land cannot be acquired and utilised for residential purposes is liable to be rejected.
In the light of the aforesaid discussion and the findings recorded on the points raised by the petitioners, this Court is of the considered view that there is no valid reason to interfere with the impugned acquisition notifications and consequently, these writ petitions are liable to be dismissed.
These writ petitions are dismissed accordingly.