Karnataka High Court
Sri Dr Suresh A vs The State Of Karnataka on 10 November, 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.190 OF 2014 (LA-RES)
C/W
W.P.NO.54870 OF 2013
W.P.NO.58690 OF 2013
IN W.P.NO.190 OF 2014
BETWEEN:
1. SRI Y MUNIYAPPA
SON OF LATE YANGAPPA
SINCE DIED BY HIS LRS
1(A) SRI Y M MANJUNATH
S/O LATE Y MUNIYAPPA
AGED ABOUT 46 YEARS
RESIDING AT NO. 231, 4TH MAIN
"GANGA NILAYA", VAPASANDRA
CHIKKABALLAPURA - 562 101.
1(B) SRI. M. SRINIVAS
S/O LATE Y MUNIYAPPA
AGED ABOUT 48 YEARS
RESIDING AT No.231, 4TH MAIN
"GANGA NILAYA", VAPASANDRA
CHIKKABALLAPURA - 562 101.
...PETITIONERS
(BY SRI. SHANKAR REDDY C, ADVOCATE)
2
AND:
1 . THE STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
REVENUE DEPARTMENT
MULTISTORIED BUILDING
AMBEDKAR VEEDI
BANGALORE-560 001.
2 . THE DEPUTY COMMISSIONER
CHIKKABALLAPUR DISTRICT
CHIKKABALLAPUR-562 101.
3 . THE ASSISTANT COMMISSIONER
AND LAND ACQUISITION OFFICER
CHIKKABALLAPUR SUB-DIVISION
CHIKKABALLAPUR DISTRICT
CHIKKABALLAPUR-562 101.
.....RESPONDENTS
(BY SMT. H.C. KAVITHA, HCGP FOR R-1 TO R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 27.8.2013 MADE BY THE R-1
VIDE ANN-P AND ALSO QUASH THE PRELIMINARY
NOTIFICATION DATED 23.9.2013 UNDER SECTION 4[1] OF
THE LAND ACQUISITION ACT 1894 BY THE DEPUTY
COMMISSIONER, CHIKKABALLAPUR DISTRICT, THE R-2
VIDE ANN-R AND ETC.
IN W.P.NO.54870 OF 2013
BETWEEN:
SMT. RAJALAKSHMI V
W/O VENKATANARASIMHACHAR M R
AGED ABOUT 70 YEARS
R/AT NO. 6, 1ST CROSS
3
CHAKRAVARTHI IYENGAR LAYOUT
SHESHADRIPURAM,
BANGALORE-560 020.
...PETITIONER
(BY SRI. R V JAYAPRAKASH, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
REVENUE DEPARTMENT
MULTISTORIED BUILDING
AMBEDKAR VEEDI
BANGALORE-560 020.
2 . THE DEPUTY COMMISSIONER
CHIKKABALLAPUR DISTRICT
CHIKKABALLAPUR-562 101.
3 . THE ASST. COMMISSIONER &
LAND ACQUISITION OFFICER
CHIKKABALLAPUR SUB DIVISON
CHIKKABALLAPUR DISTRICT-562 101.
......RESPONDENTS
(BY SMT. H.C. KAVITHA, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH ANNEXURE-E THE ORDER DATED 27.8.2013 MADE
BY THE R-1 AND ALSO ANN-F, THE NOTIFICATION DATED
23.9.2013 ISSUED UNDER SECTION 4[1] O THE LA ACT
1894 BY THE 2ND RESPONDENT [DEPUTY COMMISSIONER,
CHIKKABALLAPUR DISTRICT]
IN W.P.NO.58690 OF 2013
BETWEEN:
SRI. DR. SURESH A
AGED ABOUT 41 YEARS,
4
S/O LATE V.C. ASHWATHAPPA
RESIDING AT NO.4070-1,
1ST DIVISION, VAPASANDRA,
BANGLORE - BELLARY ROAD,
CHIKKABALLAPURA - 562 101.
...PETITIONER
(BY SRI. SHANKAR REDDY C, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
MULTISTORIED BUILDING,
AMBEDKAR VEEDI, BANGALORE-560 001.
2. THE DEPUTY COMMISSIONER
CHIKKABALLAPUR DISTRICT,
CHIKKABALLAPUR-562 101.
3. THE ASSISTANT COMMISSIONER
AND LAND ACQUISITION OFFICER,
CHIKKABALLAPUR SUB DIVISION,
CHIKKABALLAPURA DISTRICT
CHIKKABALLAPURA - 562 101.
....RESPONDENTS
(BY SRI. H.C. KAVITHA, HCGP FOR R-1 TO R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 27.8.2013 BY THE R-1, AS PER
ANN-M TO THIS WRIT PETITION AND QUASH THE
PRLY.NOTIFICATION DATED 23.9.13, ISSUED UNDER
SEC.4(1) OF THE LAND ACQUISITION ACT, 1894 BY THE
DEPUTY COMMISSIONER, CHIKKABALLAPUR DIST. THE
R-2, HEREIN AS PER ANN-P TO THIS WRIT PETITION AND
ETC.
5
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners in all the petitions are challenging the acquisition proceedings initiated by respondent No.3. Hence, the matter is taken up for common disposal.
2. Brief facts leading rise to filing of these petitions are as under:
It is the case of the petitioners that they are the owners of the subject land. The said lands were proposed for acquisition by invoking the urgency clause as provided under Section 17(4) of the Land Acquisition Act 1894 (for short 'the LA Act') after dispensing with the enquiry contemplated under Section 5A of the LA Act. In pursuance of the same, the Deputy Commissioner, Chikkaballapura Sub Division issued a preliminary notification dated 6 23.09.2013 under Section 4(1) of the LA Act and the same was published in the Karnataka Gazette dated 24.10.2013.
2.1 The respondents intended to acquire the land to an extent of 13 acres 12 guntas at Anakanooru village for the purpose of rehabilitating certain unauthorised encroachers of the land belonging to the Railways at Chamarajpet and Kousarnagar area of Chikkaballapur Town. The aforesaid unauthorised encroachers of the public property are now sought to be rehabilitated by forming sites and changing the nature of its use. The land in question are in possession of the petitioners and others. Other lands are situated adjacent to the village tank and the said lands are not fit for formation of sites and they are fit to use for agricultural purpose only. Inspite of the same, the respondents are bent upon to acquire the said land to evade the unlawful encroachers from 7 encroaching the public property and hence the petitioners have filed these writ petitions challenging the acquisition proceedings initiated by the respondents.
3. The respondents have filed statement of objections contending that the petitioners are the owners of the property in question. It is contended that to safeguard the interest of the public, especially the weaker sections of the society-scheduled caste/tribe OBC for whom the land is being acquired for rehabilitation, notification was issued under Section 4(1) of the Act in respect of the petitioner's land and it is contended that the Government of India had intended to develop and expand the existing railway lines throughout the country. In pursuance of the policy, the railway authorities with the assistance of the State Government have taken up the task of railway guage conversion i.e. from narrow guage to 8 broad guage. The said conversion has been taken up for the railway lines from Bangarpet in Kolar District to Chikkaballapur District. As a consequence, the railway authorities have suggested for widening the existing railway station situated at Chamarajpet in Chikkaballapur City. Hence, the State Government has to extend co-operation for expansion and for guage conversion by providing land and also to shift and rehabilitate the said residents of the colony. The guage conversion work is almost completed but for the deviation of the railway line at Chamarajpet. This explicitly shows the urgency of acquisition of lands for the rehabilitation of the said colony consisting of the weaker section of the society and therefore, the State Government had resolved to issue notification under Section 4(1) of the Act invoking the urgency clause under Section 17(1) of the LA Act. It is contended that the lands are fit for residential purpose and the 9 acquisition proceedings initiated by the respondents is for public purpose. Hence, prays to dismiss the writ petitions.
4. Heard learned counsel for petitioners and learned HCGP for respondents.
5. Learned counsel for the petitioners submits that the respondents have initiated acquisition proceedings under the urgency clause under Section 17(4) of the LA Act and further no explanation has been offered by the respondents for invoking the urgency clause. He further places reliance on the judgment of the Apex Court in RADHY SHYAM (DEAD) THROUGH LRS. AND OTHERS vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2011) 5 Supreme Court Cases 553 and submits that the lands under acquisition are agricultural lands. They are unfit for use for residential purpose. Further the respondents 10 without considering the said aspect has proceeded to initiate acquisition proceedings. Hence, on these grounds prayed to allow the writ petitions.
6. Per contra, learned HCGP for the respondents submits that the Deputy Commissioner has filed an affidavit on 22nd February 2021. In the said affidavit it is stated that pursuant to the preliminary and final notifications under Sections 4(1) and 6(1) of the LA Act, no award was passed till day. Further, it is stated that the Deputy Commissioner has addressed a letter dated 29.1.2020 and 16.7.2020 to the railway authorities calling for the information in writing with regard to the status of the Chikkaballapur Kolar Railway gauge, which has not been replied. Further contends that the acquisition proceedings initiated is for public purpose. Hence, on these grounds, prays to dismiss the writ petitions.11
7. Perused the records and considered the submissions made by learned counsel for the parties.
8. It is not in dispute that the petitioners are the owners of the lands in question. Further it is also not in dispute that respondent No.3 issued preliminary notification dated 23.9.2013 issued under Section 4(1) and invoking the urgency clause. On the strength of the notification taking away the right conferred under Section 5-A of the Act, respondent No.3 issued a notification dated 29.3.2013 under Sections 17(1) and 17(4) of the LA Act for rehabilitating the encroachers on the Government property.
9. The respondent No.3 has not placed any material for confirmation of his opinion that the matter was so urgent to invoke the powers under Section 17(4) of the LA Act. Though the respondents have filed statement of objections, from a perusal of 12 the said statement of objections, there is no indication whatsoever in the statement of objections that respondent No.3 has applied the mind at all of the questions whether it was the case necessitating elimination of the enquiry under Section 5-A of the Act. The recital of the notification does not say at all that any opinion was formed on the need to dispense with the enquiry contemplated under Section 5-A of the Act. The Hon'ble Supreme Court in NARAYAN GOVIND GAVATE AND OTHERS vs. STATE OF MAHARASHTRA AND OTHERS reported in (1977) 1 SCC 133 while dealing with the urgency clause under Section 17(4) has held in paragraphs No.10, 24, 30, 40 , 42 as under :
"10. It is true that, in such cases, the formation of an opinion is a subjective matter, as held by this Court repeatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take. They are expected to know better the difference between a right or wrong opinion than 13 Courts could ordinarily on such matters. Nevertheless, that opinion has to be based upon some relevant materials in order to pass the test which Courts do impose. That test basically is: Was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? Once the Court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however meagre, on which it could reasonably base its opinion, the Courts should not and will not interfere. There might, however, be cases in which the power is exercised in such an obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or, in other words, so unreasonably as to leave no doubt whatsoever in the mind of a Court that there has been an excess of power. There may also be cases where the mind of the authority concerned has not been applied at all, due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider.
24. Coming back to the cases before us, we find that the High Court had correctly stated the grounds on which even a subjective opinion as to the existence of the need to take action under section 17(4) of the Act can be challenged on certain limited grounds. But, as soon as we speak of a challenge we have to bear in mind the general burdens laid down by sections 101 and 102 of the Evidence Act. It is for the petitioner to substantiate the grounds of his challenge. This means that the petitioner has to either lead evidence or show that some evidence has come from the side of the respondents to indicate that his challenge to a notification or order is made good. If he does not succeed in discharging that duty his petition will fail.
30. In the cases before us, if the total evidence from whichever side any of it may have come, was 14 insufficient to enable the petitioners to discharge their general or stable onus, their petitions could not succeed. On the other hand, if, in addition to the bare assertions made by the petitioners, that the urgency contemplated by section 17(4) did not exist, there were other facts and circumstances, including the failure of the State to indicate facts and circumstances which it could have easily disclosed if they existed, the petitioners could be held to have discharged their general onus.
40. In the case before us, the public purpose indicated is the development of an area for industrial and residential purposes. This, in itself, on the face of it, does not call for any such action, barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under Section 5A of the Act, imperative. On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under Section 5A of the Act to be completed without any impediment whatsoever to the execution of the scheme. Therefore, the very statement of the public purpose for which the land was to be acquired indicated the absence of such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under Section 5A of the Act.
42. All schemes relating to development of industrial and residential areas must be urgent in the context of the country's need for increased production and more residential accommodation. Yet, the very nature of such schemes of development does not appear to demand such emergent action as to eliminate summary enquires under Section 5A of the Act. There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commissioner was applied at all to the question whether it was a case necessitating the elimination of the enquiry under Section 5A of the Act. The recitals in the notifications, on the other hand, indicate that 15 elimination of the enquiry under Section 5A of the Act was treated as an automatic consequence of the opinion formed on other matters. The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under Section 5A of the Act. It is certainly a ease in which the recital was at least defective. The burden, therefore, rested upon the State to remove the defect, if possible, by evidence to show that some exceptional circumstances which necessitated the elimination of an enquiry under Section 5A of the Act and that the mind of the Commissioner was applied to this essential question. It seems to us that the High Court correctly applied the provisions of Section 106 of the Evidence Act to place the burden upon the State to prove those special circumstances. although it also appears to us that the High Court was not quite correct in stating its view in such a manner as to make it appear that some part of the initial burden of the petitioners under Sections 101 and 102 of the Evidence Act had been displaced by the failure of the State to discharge its duty under Section 106 of the Act. The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts especially within the knowledge of its officials, which rested upon it under Section 106 of the Evidence Act, taken together with the attendant facts and circumstances, including the contents of recitals, had enabled the petitioners to discharge their burden under Sections 101 and 102 of the Evidence Act."
10. The burden is on the respondent No.3 to show that some exceptional circumstance which necessitated elimination of an enquiry under Section 5 of the Act. As observed above, respondent No.3 has 16 not placed any material to prove the special circumstance. A public purpose, however laudable it may be, does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner's right to the property without being heard. Only in a case of real urgency, can the State invoke the urgency provisions and dispense with the requirement of hearing the land owners or other interested persons. Section 17(1) read with Section 17(4) of the LA Act confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A of the Act, the Authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting enquiry under 17 Section 5-A will in all probability frustrate the public purpose for which land is proposed to be acquired. The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to exercise of power under Section 17-A.
11. From a perusal of the impugned notification, it is seen that the said acquisition proceedings cannot be regarded as for 'urgent purpose' so as to invoke the provisions of Section 17(4) of the Act and the present case cannot be an exception to the said Rule/Section. The said view has been reiterated by this Court in the case of THIMME GOWDA vs. STATE OF MYSORE & ANOTHER reported in 1974(2) Kar.L.J. 134. Further, the Hon'ble Apex Court in the case of RADHY SHYAM (DEAD) THROUGH LRS. AND OTHERS vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2011) 5 Supreme Court Cases 553 has held as under:
18
"77. xxxx
(i) Xxxx
(ii) Xxxx
(iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty-bound to scrutinise the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the landowner is likely to become landless and deprived of the only source of his livelihood and/ or shelter.
(iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4,5-A and 6 of the Act.
A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the landowner or other interested persons.
(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5-A, the 19 authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired."
12. The petitioners have challenged the preliminary notification issued under Section 4(1) of the LA Act. While issuing notice in the instant writ petitions, this Court vide order dated 14.12.2013 in W.P.No.54870/2013 has granted an interim order staying the operation of Annexure-F, the notification dated 23.9.2013. The interim order is continued. It is nearly after eight years the case is finally disposed of. In the meantime, 'The Land Acquisition Act' was repealed and 'The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013' has taken its place. Therefore, there is no question of the matter being considered for an enquiry being held under Section 5- A of the Act. The action of respondent No.3 in 20 initiating the acquisition proceedings by invoking the urgency clause is arbitrary and unwarranted. Hence, the impugned notification is liable to be set aside.
13. Accordingly, the following order is passed :
ORDER
i) The writ petitions are allowed;
ii) The impugned notification is set aside.
iii) However, it is made clear that in case the respondents intends to initiate acquisition proceedings, they are at liberty to do so in accordance with law;
iv) The respondents shall be free to proceed from the stage of Section 4(1) notification and take appropriate action after complying with Section 5A (1) and (2) of the LA Act.
It is needless to state that if the petitioners 21 are aggrieved by the proceedings initiated by the State Government, then they are at free to seek for appropriate remedy.
SD/-
JUDGE rs