Karnataka High Court
V. Gunda Reddy vs The Secretary Department Of Revenue And ... on 1 August, 2005
Equivalent citations: ILR2005KAR5692
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER V. Gopala Gowda, J.
1. The petitioner in W.P. No. 33566/2004 is the owner of lands bearing Sy. Nos. 43/2 measuring 0-24 guntas, 44/1B measuring 1-00 acre and 46/2 measuring 1 acre 25 guntas. The petitioner in W P. No. 33567/2004 is the owner of Sy. Nos. 7/3 measuring 2 acres 01 guntas and 30/2 measuring 1 acre 34 guntas. All the lands are situated at Koodlu village, Sarjapura Hobli, Anekal Taluk, Bangalore Urban District. They have filed these petitions seeking to quash the Notification at Annexure-H dated 22-8-2003 issued under Section 16(2) of the Land Acquisition Act, 1894 by the Special Land Acquisition Officer for having allegedly taken over possession of the said lands pursuant to the acquisition made for the benefit of Aircraft Employees Housing Co-operative Society Ltd. (hereinafter referred to as Society), which is the fourth respondent in these petitions.
2. The necessary brief facts leading to these writ petitions are stated as follows:
The preliminary Notification was issued on 5-9-1988 under Section 4(1) of Land Acquisition Act of 1961 (hereinafter in short called as 'Act') proposing for acquisition of certain lands for public purpose in favour of Aircraft Employees Housing Co-operative Society for formation of residential layout and distribution of sites to its members. The Final Notification under Section 6(1) of the Act was issued on 28-9-1989. The acquisition proceedings had been challenged by the petitioners in W.P.Nos. 279080-09/1993 before this Court on various grounds. During the pendency of the said writ petitions, the fourth respondent Housing Society entered into an agreement with them on 16-5-1998 agreeing to acquire only 2 acres 35 guntas out of 3 acres 35 guntas in Sy. Nos. 7/3 and 30/2. It was also agreed by it to pay compensation of Rs. 23 lakhs for the said 2-35 acres of the owner. It was further agreed to give-up the remaining 1-00 acre of land to the owner. A specific recital is made in the said agreement that lands in Sy. Nos. 43/lP, 44/1P and 46/2 totally measuring 3 acres 05 guntas are not included in the acquisition notifications. The society also agreed that the owner can utilize the roads, water supply and sewarage facilities formed by the society in the layout that would be formed in survey numbers of lands acquired by it, But, for the reasons best known to the society the said agreement was not brought to the notice of this Court when the said petitions were dismissed on 4-9-1999 on the basis of the submission made on behalf of the Society that possession of the lands were taken by the State Government and handed over to the society and it has formed the layout and allotted the sites in favour of its members, which statements are all false and were made with and ulterior motive, which was a fraud played upon this Court so as to dismiss the writ petitions and therefore the learned Counsel for the petitioners placing reliance upon the decisions of the Apex Court submits that the order passed in those petitions are null and void abinition in law. Therefore it is stated by the petitioners that the society has no manner of right whatsoever over these lands to take possession of the same under Section 16(1) and publish the notification under Section 16(2) of the Act, after a long lapse of 14 years.
3. It is stated by the petitioners that even though the aforementioned lands had been notified by the Special Deputy Commissioner for acquisition in the preliminary notification, in the final notification the same have not been notified. No Award is passed in respect of the said lands as required under Section 11 of the Act, after following the procedure contemplated under Sections 10, 11 and notice of award as required under Section 12(2) is not served upon the petitioners. Despite that, the impugned notification is issued by the Special Land Acquisition Officer, who is not authorized in law to do so. Being aggrieved by the same, these two writ petitions are filed seeking to quash the said impugned notification in both the writ petitions.
4. Statement of objections is field on behalf of respondents 1 to 3 stating that in view of the fact that W.P.Nos. 27908-09/1993 and 2540/2004 filed by the petitioners challenging the acquisition proceedings have been dismissed by this Court, the present writ petitions are not maintainable in law. The 4th respondent society also filed statement of objections traversing the petition averments. It is stated that the agreement entered into between the parties in respect of the lands in question is contrary to the statutory notifications, opposed to public policy and therefore the same is void. It is stated that Awards have been passed and approved by the State Government as required under Section 11 of the L.A. Act on 21-11-1990 and Award notice under Section 12(2) of L.A. Act have been issued and served upon the land owners. It is stated that since the Name of petitioners father was not found in the revenue records, which is the basis for notifying names in the notification, his name was not shown in the notifications. Consequently, respondents have prayed for dismissal of the writ petitions.
5. The Land Acquisition Officer has filed an affidavit regarding the impugned notification. It is stated that certain documents in the original Land Acquisition records pertaining to the Acquisition of lands in question, are not available.
6. Rejoinder is filed along with certain documents to show that name of petitioners father was mutated way back in 1950-51 itself in respect of the lands in question. Despite that, the name of petitioners father is not shown in the notifications and therefore it is stated that the acquisition of lands are bad in law.
7. Mr. M.E. Prabhu, learned Counsel for the petitioners has submitted that the writ petitions are maintainable in law, as the respondent Society in the earlier Writ Petitions has played fraud upon this Court by stating that possession of the lands were taken by the State Government and handed over to the society, and that it has allotted sites to its members after formation of layout, which submission of the respondents is factually incorrect and therefore it amounts to playing fraud upon this Court. This Court has passed an order dismissing earlier writ petitions by accepting factually incorrect submissions. He categorically stated that the order passed in those petitions are null and void abinitio in law and hence, there is no bar for the petitioners to challenge the impugned notification. In support of the same, he has relied upon the decision and 2004(4) SCC 44 paras 9, 10 and 11. He further submits that after a lapse of 14 years the impugned notification is published by the Special Land Acquisition Officer, who is not competent under Section 16(2) of the Act. The learned Counsel contends that mere acquisition of lands by the State Government in exercise of its eminent domain will not divest the title of the owners unless and untill possession of the same is taken from them in accordance with law. In support of the same he cited the decision . Further, he has placed reliance upon the decision of the Apex Court support of his legal submission that the Deputy Commissioner of the District as provided under Section 16(2) of the L.A. Act should have taken actual possession of the lands from the petitioners. The Counsel contended that mere taking over the alleged possession of the lands on paper without following the procedure by notifying the owners/occupants is bad in law. Therefore, publication of the impugned notification is not legal and valid as the same does not amount to taking factual and physical possession of the lands from the petitioners as observed by the Apex Court in the above case. The learned Counsel has also placed reliance upon the decision to contend that acquisition of the lands for the society cannot be construed on the same footing as "public purpose". Assuming for the sake of arguments that the lands of the petitioners were acquired by the State Government rights of the owner will have to be balanced. He further contends that prior approval of the government for acquisition of lands in favour of the society for housing scheme is mandatory and same is not obtained from the State Government as required under Section 3F(vi) of the L.A. Act by following the mandatory procedure as provided under Part VII of the Act. In support of the above legal contention he has cited the decision of the Apex Court,
8. Per contra, Mr. G. V. Shantharaju, learned Senior Counsel for the Society on behalf of K. Srinivas, has submitted that it is not open for the petitioners to contend that lands are not acquired in view of dismissal of his earlier writ petitions and he has placed strong reliance upon the order produced as Annexure-R1. He further submits that unless the acquisition notifications are quashed, the impugned notification published for having taken over possession of the lands cannot be quashed as prayed by the petitioners. Regarding the agreement entered into between the parties, the learned Sr. Counsel submitted that the society has no authority to part with the acquired lands as the same would be opposed to public policy and the agreement cannot override the statutory acquisition notifications. Hence, he has contended that the agreement is void abinitio and the same does not render any assistance to the petitioners in these proceedings.
9. Learned High Court Govt. Pleader justified the impugned notification and prayed for dismissal of the writ petitions.
10. On the basis of the above rival legal contentions urged by the learned Counsel on behalf of the parties, the following points arise for consideration of this Court:
i) Whether the writ petitions are not maintainable in law in view of dismissal of earlier Writ Petitions vide order passed at Annexure-R1 ?
ii) Whether the petitioners can challenge the impugned notification at Annexure-H and this Court can quash the same when the acquisition proceedings are upheld in the earlier writ petitions proceedings?
iii) Whether possession of the lands covered in these petitions are taken by the State Government in accordance with law under the impugned notification and whether the same is legal and valid?
Point No. (1):
11. The earlier petitions in W.P.Nos. 27908-09/1993 had been dismissed by this Court on the wrong submissions made on behalf of fourth respondent society that possession of the lands in question were taken by the Government on 5-4-1992; the same were handed over to the society on 9-10-1992; that sites had been formed and allotted in favour of the members of the society who have constructed buildings and are residing therein. In those circumstances, accepting the submissions made on behalf of the Society the writ petitions filed by the petitioners had been dismissed on the ground of delay and laches without verifying the correctness or otherwise of the statements made on behalf of the society.
12. It is very important to note that if possession of the lands in question was already taken on 5-4-1992 by the State Government and handed over to the society as has been stated in the earlier Writ Petitions, there was no occasion or necessity for the Special Land Acquisition Officer to issue the impugned notification produced in both these petitions at Annexure-"H" on 22-8-2003. The issuance of the said notification ipso facto proves that possession of the lands in question was not taken by the State Government and handed over to the society on 5-4-1992, as was submitted in the earlier writ petitions. The possession of the very same lands cannot be taken twice.
13. The earlier writ petitions got dismissed on making factually incorrect submissions by the learned Counsel who appeared for the fourth respondent's society. That apart, this Court has not gone into the merits of the earlier writ petitions. Therefore, dismissal of earlier writ petitions of the petitioners do not come in the way of maintainability of these writ petitions.
14. The learned Counsel on behalf of the petitioner has rightly placed reliance upon the decisions of the Apex Court and 2004(4) Supreme 44 paras 9, 10 and 11 in support of his legal submissions that Counsel for the society got dismissed the earlier writ petitions filed by the petitioners by making factually incorrect submissions referred to supra. The same is a fraud played on this Court. Therefore the order passed by this Court in the earlier writ petitions is void. Consequently, the same will not come in the way for the petitioners to challenge the impugned notification, which was published by the Special Land Acquisition Officer after a lapse of 14 years in fact, the taking of possession of lands as notified in this notification also is factually not correct as the original record of the Land Acquisition Officer does not evidence this fact.
15. I have perused the original records and shocked to find the manner in which the records are concocted to show that possession of the lands have been taken lawfully. At page 28 in one file the Mahazar is found. It is drawn as if possession of the lands in question were taken on 20-08-2003. The signataries to the said Mahazar are the Dy. Tahsildar, the Revenue Inspector, the Village Accountant and some villagers. At the end the Tahsildar has signed. From this it is clear that the said Mahazar is concocted and then placed before the Tahsildar. Otherwise, the signature of the Tahsildar should have been above the signature of Deputy Tahsildar, whose sign is at the top followed by the signatures of the persons as mentioned above. The absence of the Tahsildar at the time of the alleged taking possession of the lands is evident from letter dated 31-8-2002 (page-28) written by the Tahsildar to the Spl. L.A.O while handing over possession to him. In the very beginning paragraph of that letter, the Tahsildar has stated that possession of the lands were taken on 29-08-2002. He has mentioned that the Revenue Inspector, Village Accountant, Surveyor and others were present at that time. He has not stated that Dy. Tahsildar's presence. The obvious fact is, he has not gone to take possession on 20-8-2003(date of Mahazar). The Dy. Tahsildar must have gone on that day. Strangely, in the letter dated 20-08-2003 (found at page 30) while sending records to the Spl. L.A.O, the Tahsildar has stated that the fact of taking possession of the lands is reported to him by the concerned Revenue Inspector. That means, he was not present at the time of Mahazar.
16. Assuming that possession of the lands is taken, from what has been observed from the original files, it is seen that possession of the lands is not taken by the Deputy Commissioner as required under Section 16(2) of the Act nor even by the Spl. L.A.O. On the other hand, it purports to have been taken by the Deputy Tahsildar/Tahsildar. They are not empowered to take possession. The most unfortunate aspect is the officers are not studying the provisions of the statutes and exercise their power in accordance with law. Mechanically some one will do an act which has to be done by the competent authority. It is for the Government to take steps to see that its officers and officials function within their power and authority given under the relevant statutes.
17. It is worthwhile to extract the relevant paragraphs of the above decisions of the Apex Court as the same, with all fours, applicable to the fact situation in support of the case of the petitioners.
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case. Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and to prove it by true evidence". The principle of 'finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest, litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands, we are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
8. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-Production and even Non-mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants defendants could have easily produced the certified registered copy of Exhibit B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the court as well as on the opposite party."
2004(4) SUPREME 44 paras 9, 10 and 11:
"9. This Court in express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors. has held thus:
"Fraud on power; voids the order if it is not exercised bonafide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bonafide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab, . A Power is exercised malaciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown, 1904 AC 515, that there is a condition implied in this as well as in other instruments which create powers, namely, that the power shall be used bona fide for the purpose for which they are conferred'. It was said by Warrngton. C.J. in short v. Poole Corporation, (1926) 2 Ch. 66 that:
"No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative."
In Lazarus Estates Ltd. v. Beasley, (1956)2 QB 702 at Pp. 712-13 Lord Denning, LJ. said "No judgment of a Court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
(emphasis supplied) See also, in Lazarus case at p. 722 per Lord Parker, C.J.
"Fraud" vitiates all transactions known to the law of however high a degree of solemnity."
All these three English decisions have been cited with approval by this Court in Pratap Singh's case."
10. Similar is the view taken by this Court in the case of Ram Chandra Singh v. Savithri Devi and Ors. wherein this Court speaking through one of us (Sinha, J) held thus:
"Fraud as is well known vitiates every solemn act. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter. It is also well settled that misrepresentation itself amounts to fraud, indeed, innocent mis-representation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void-ab-initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata."
11. Thus, it is clear a fraudulent act even in judicial proceedings cannot be allowed to stand."
(Emphasis supplied by the Court) In view of the law laid down by the Apex Court in the above cases, the legal submissions made by the learned Sr. Counsel on behalf of the society by placing strong reliance upon Annexure-R1 regarding maintainability of these petitions, are devoid of merit and liable to be rejected and accordingly rejected. The submission made by the learned Counsel on behalf of the petitioners regarding maintainability of these petitions placing reliance upon the decisions of the Apex Court referred to supra is well founded and therefore the same is accepted by this Court. Point(i) is answered in favour of the petitioners holding that these petitions are maintainable in law.
Points (ii) & (iii):
18. What was prayed in the earlier writ petitions was to quash the preliminary and final notifications published under the provisions of Sections 4 and 6 of the L.A. Act, for acquiring the lands. But the prayer in the present writ petitions is to quash the impugned notification published by the Special Land Acquisition Officer under Section 16(2) of L.A. Act in respect of the lands in question. Possession of the lands was not at all taken actually by the Deputy Commissioner of the District by following the procedure as observed in the decision of the Apex Court in the case reported in AIR 1975 SC 1776 PARA 26 which reads as hereunder:
"26. In a proceeding under the Act for acquisition of land all interests are wiped out. Actual possession of the land becomes necessary for its use for the public purpose for which it has been acquired. Therefore, the taking of possession under the Act cannot be "symbolical" in the sense as generally understood in Civil Law. Surely it cannot be a possession merely on paper. What is required under the Act is the taking of actual possession on the spot. In the eye of law the taking of possession will have the effect of transferring possession from the owner or the occupant of the land to the Government."
19. The specific case of the petitioners is that the lands in question are not at all notified in the final notification and therefore the impugned notification is bad in law. The lands mentioned in the Writ Petition No. 33566/2004 are Sy. Nos. 43/2. 44/1B and 46/2. To ascertain the categorical statement of the petitioners. I have perused the Final Notification at Annexure-E and found that the assertion of the petitioner is true. The lands of the petitioner mentioned in the petition are not included in the Final Notification by the Land Acquisition Authority. In so far as the lands mentioned in the Writ Petition No. 33567/2004 are concerned, they are covered by the agreement between the petitioners and society as per Annexure-"E" produced in this petition. Therefore the petitioners are justified in challenging the impugned notification. Without proper acquisition of the lands in question. Possession of the same cannot be taken either by the Special Land Acquisition Officer or Deputy Commissioner of the District in exercise of the power under Section 16 of the L.A. Act. There are no documents in the original file of the Land Acquisition Officer to show that in respect of these lands notices have been issued to the petitioners and Award are passed by following the procedure as provided under Section 9, 10 and 11 of the L.A. Act. No Award notice under Section 12(2) of the L.A. Act were served either upon the petitioners or interested persons in whose favour awards if any, passed. The daily news paper viz Prajavani dated 19th August 2004 produced in these petitions belies the fact that the Spl. Land Acquisition Officer has taken possession of the lands from the petitioners and handed over the same to the society.
20. Under Section 16(2) Land Acquisition (Mysore Extension Amendment) Act XVII of 1961, the Deputy Commissioner of the District has to take possession of the acquired lands, in the instant case, the Spl. L.A.O has issued and got published the notification under Section 16(2) of the Act, he is not empowered to do so in law. That apart the lands are not acquired by the State Government, is evident from the final notification. Therefore, question of taking possession of the same by the Special Land Acquisition Officer from the petitioners and handing over the same to the society does not arise.
21. Assuming that the lands in question had been acquired by the State Government in exercise of its eminent domain power under the provisions of the L.A. Act as contended by the respondents, in view of the agreement entered into between the petitioner and the society, the society is bound to honour the agreement and the commitment made therein the same is binding on it. It is to doubt true that the acquisition proceedings had been initiated for the benefit of the members of the society. When the society itself entered into agreement with the petitioners as per the terms and conditions stipulated therein, it cannot be contended by the learned Sr. counsel on behalf of the society that the agreement is void or opposed to public policy. The contention canvassed in this regard is wholly untenable in law. The society has acted upon the same is, indicated in the general body resolution for payment of money mentioned in the agreement to the owners of the lands and the General Body of the society has accorded its approval for the same. Therefore the submission of the leaned Sr. Counsel in this regard cannot be countenanced. The Society cannot retract from its own agreement when the same is ratified in its general body meeting, which document is also produced in these petitions.
22. The preliminary notification was dated 5-9-1988 and final notification was dated 28-9-1989. The impugned notification is dated 22-8-2003. The same is issued after a lapse of more than 14 years from the date of final notification. In view of the law laid down by the Apex Court in the case , the lands in question did not divest with the State Government as possession of the same was not taken by the Deputy Commissioner of the District from the petitioners. That means, the petitioners have been in continuous lawful possession of the lands as owners for more than 14 years from the date of final notification and therefore the acquisition proceedings in respect of the lands in question are lapsed. Therefore either Deputy Commissioner or Spl. L.A.O cannot take possession of the lands in question. Hence the impugned notification under Section 16(2) of the Act should not have been issued to evidence the fact of taking possession of the lands eventhough infact and in law possession of the same was not taken. In other words, the impugned notification in both the petitions is not legal and valid as the competent officer empowered under Section 16(2) has not taken the possession of the lands. In this regard law laid down by the Apex Court in the case of Babu Vergheese v. Kerala Bar Council is necessary to be stated, wherein the Apex Court after referring to its earlier decisions, privy council and chancellors decision has laid down the law to the effect that if the statutory authorities have not taken action by following the procedure as prescribed in the statute, then such action will be void. The relevant paragraph 3 land 32 is extracted hereunder.
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (1875) I Ch. D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 63 Ind App 372: AIR 1936 PC 253 who stated as under:
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
"32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, and again in Deep Chand v. State of Rajasthan, . These cases were considered by a Three Judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh, and the rule laid down in Nazir Ahmad's case (supra) was again upheld. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law".
For the reasons stated above, Points (ii) and (iii) are answered in favour of the petitioners.
23. What is surprising is, in paragraph 5 of the Affidavit filed by the Special Land Acquisition Officer, it is stated that the Mahazars were drawn while taking possession of the lands in question by the Tahsildar are missing. How and why they are missing from the records, is quite unimaginable and therefore this explanation offered by the Spl. L.A.O is rejected as it is not probable to believe and the explanation offered in this regard is most unconvincing. Therefore this Court came to the conclusion that either they are deliberately withholding those documents or no such documents are there. But, the undisputed fact remains that the Tahsildar alleged to have taken possession of the lands is the affidavit of the Spl. L.A.O who is not authorized in law to take possession of the lands but it is only the Deputy Commissioner of that District where lands are situated is empowered to take possession of the acquired lands Section 16(1)(2) of the L.A. (Mysore Amendment) Act XVII of 1961 When the word collector was deleted from Section 16(1)(2) of the L.A (Mysore Extension Amendment) Act XVII of 1961 and other provisions of the Act and in its place Deputy Commissioner was substituted, the power of Deputy Commissioner to take possession of acquired lands in Section 16(1)(2) of the Mysore L.A. Act is not changed. In the matter of taking possession of the acquired lands Deputy Commissioner is not changed and his power is not divested. The power to take possession of the acquired lands was retained with the Deputy Commissioner, obviously with some purpose and definite intention, therefore that power cannot be exercised even by the Land Acquisition Officer or any other person. Other than the Deputy Commissioner if, any other officers takes possession of acquired lands, it has to be held that possession is not taken at all as the same is without Authority of law.
24. No documents is also forthcoming from the original records to show that the compensation amount was deposited by the Society with the Acquisition Authority as required in law to facilitate him for disbursing the same to the owners. Therefore, the claim of the respondents that possession of the lands in question had been taken over from the petitioners, cannot be accepted. The possession claimed to have been taken by the Tahsildar as stated in the impugned notification in both the petitions, is not in accordance with law as observed at paragraph 26 by the Apex Court in the case in . The contention urged by the learned Counsel for society and learned Govt. Pleader by placing reliance upon the impugned notification regarding taking possession of the lands in question, cannot be accepted by this Court. They are far from truth from the admitted facts. Therefore, the petitioners must succeed and they are entitled to the reliefs as sought for in these writ petitions.
25. The other important legal contention urged by the learned Counsel Mr. M.E. Prabhu for the petitioners is that the housing scheme of the society has not received the prior approval of the State Government, which is mandatory Under Section 3F(vi) read with the provisions of Part VII of the L.A. Act. This legal contention is no longer res-integra in view of the decision of the Apex Court reported in AIR 1995 SC 2224 paras 21 & 22 wherein it has been held that prior sanction of the scheme by the State Government before issuing and publishing the acquisition notification is mandatory in law. The relevant paras 21 and 22 of the above decision of the Apex Court are extracted hereunder:
"21. According to us, in Section 3(f)(vi) the expression "housing" has been used along with educational and health schemes. As such the housing scheme contemplated by Section 3(f)(vi) shall be such housing scheme which shall serve the maximum number of members of the society. Such housing scheme should prove to be useful to the public. That is Why the Parliament while introducing a new definition of "Public purpose", said that any scheme submitted by any cooperative society relating to housing, must receive prior approval of the appropriate Government and then only the acquisition of the land for such scheme can be held to be for public purpose. If requirement of Section 3(f)(vi) is not strictly enforced, every housing cooperative society shall approach the appropriate Government for acquisition by applying Section 3(f)(vi) instead of pursuing the acquisition under Part VII of the Act which has become more rigorous and restrictive. In this background, it has to be held that the prior approval, required by Section 3(f)(vi), of the appropriate Government is not just a formality, it is a condition precedent to the exercise of the power of acquisition by the appropriate Government for a housing scheme of a co-operative Society.
(Emphasis supplied)
22. In the present case, a hybrid procedure appears to have been followed. Initially, the appellant society through M/s S.R. Constructions purported to acquire the lands by negotiation and sale by the land holders. Then from terms of the agreement dated 17-3-1988, it appears that the procedure prescribed in Part VII was to be followed and the lands were to be acquired at the cost of the appellant society treating it to be a "company" The allegation made on behalf of the appellant society that the housing scheme had been approved by the appropriate Government on 7-11-1984 shall not be deemed to be a prior approval within the meaning of Section 3(F)(vi) but an order giving previous consent as required by Section 39 of part-VII of the Act. In the agreement dated 17-3-1988 it has been specifically stated "And whereas the Government having caused inquiry to be made in conformity with the provisions of the said Act and being satisfied as a result of such inquiry that the acquisition of the said land is needed for the purpose referred to above has consented to the provisions of the said Act being in force in order to acquire the said land for the benefit of the society members to enter in the agreement hereinafter contained with the Government".
The said ratio decedendi is re-affirmed in Babu Verghese v. Bar Council Of Kerala And Ors. supra which is at para 31 and 32 which paragraphs are already extracted in the earlier portion of this judgment. The said decision would squarely apply to the fact situation of the case as the acquisition of lands for the fourth respondent society was for formation of residential layout and therefore it is a housing scheme, which required prior approval of the State Government as provided under Section 3(F)(vi) of the Act. For the above said valid reason also, the acquisition of the lands in question are bad in law.
26. Having regard to the undisputed fact possession of the lands were not in accordance with law, the title of the petitioner are not divested and this rights and title over the lands in question are protected. The learned Counsel for the petitioners has rightly placed reliance upon the decision of the Apex Court in the case of Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. The Apex Court after interpretation of constitutional right under Article 300-A of the owners of the land and statutory rights under the provisions of Gujarath Town planning and Urban Development Act of 1976 in that case has succinctly laid down the law in paras 40 and 42 as under:
"40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must at within the four corners thereof.
42. We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative.
27. Apart from the above reasons assigned above the society is also not entitled to hold agricultural lands in view of the prohibition under Sections 79B and 109 Karnataka Land Reforms Act 1961 beyond the permissible units as mentioned under Section 109 of the Act.
28. In the light of what has been observed and discussed above, Points (ii) and (iii) are answered in favour of the petitioners.
29. For the reasons stated above, the writ petitions are allowed and the impugned notification published under Section 16(2) dated 22-8-2003 in both the writ petitions are quashed, but no costs.