Karnataka High Court
Karnataka Housing Board, Bangalore vs State Of Karnataka And Another on 17 November, 1997
Equivalent citations: ILR1998KAR940, 1998(2)KARLJ559
Author: R.P. Sethi
Bench: R.P. Sethi, A.M. Farooq
JUDGMENT R.P. Sethi, C.J.
1. Claiming to be the owner of land bearing Sy. Nos. 202 and 204 of Kengeri Village, Sri S. Jugaraj S/o Sheshmal filed a petition in this Court praying for quashing of the notification dated 12th October, 1990 published in the Karnataka Gazette, on 22-10-1990. It was submitted by the writ petitioner that claiming to be the tenants of the land, some persons had filed applications for the grant of occupancy rights under the provisions of the Karnataka Land Reforms Act, 1961. The Land Tribunal vide its order dated 23rd December, 1977 granted occupancy rights in favour of the aforesaid applicants. The order of the Land Tribunal was challenged by the writ petitioner in a Writ Petition No. 4131 of 1983. As during the pendency of the writ petition, the Land Reforms Act was amended and an Appellate Authority was constituted, the papers of the aforesaid writ petition were transmitted to the Appellate Authority with a direction to treat the same as an appeal and dispose of it according to law. During the pendency of the said appeal, some of the respondents therein died and their legal representatives were brought on record. However, by a notification dated 31st of October, 1989, the State Government notified acquisition of the aforesaid land together with other lands for the purposes of Karnataka Housing Board. The writ petitioner alleged that he had not been notified of the proposed acquisition and that he was deprived of an opportunity of being heard with respect to the aforesaid acquisition proceedings. It was alleged that despite the writ petitioner being the owner of the land, his name had not been shown either in the notification issued under Section 4 or Section 6 of the Land Acquisition Act, 1894 (in short 'the Act'). It was further contended that after the amendment of the Land Acquisition Act, 1984, issuance of the notification under Section 6 was not permissible after the expiry of one year from the date of the publication of the notification under Section 4 of the Act. It may not be out of place to mention that while issuing notification under Section 4, the Government had decided to invoke powers conferred upon it under Section 17 of the Act.
2. After perusing the record and hearing the learned Counsel appearing for the parties, the learned Single Judge concluded that the notification under Section 6 had been issued within the statutory period of one year. He, however, found that the Government was not justified in invoking the powers vesting in it under Section 17(4) of the Act as there did not exist any urgency requiring such a recourse. While upholding the notification issued under Section 4, the final notification issued under Section 6 of the Act, insofar as it related to the writ petitioner's was quashed on the ground that the provisions of Section 5-A of the Act had not been complied with. The liberty was reserved in favour of the authorities to proceed with the acquisition proceedings from the date, of the preliminary notification.
3. Aggrieved by the order of the learned Single Judge, both, the Karnataka Housing Board as also the writ petitioner, have filed these writ appeals submitting that the impugned order, insofar as it adversely affects their interest, was liable to be quashed.
4. The learned Counsel appearing for the writ petitioner submitted that the learned Single Judge was not justified in upholding the notification under Section 4 of the Act, as according to him, the notification under Section 6 was issued after the statutory period rendering the earlier notification issued under Section 4, illegal being liable to be quashed. Section 4 of the Act provides that whenever it appears to the appropriate Government that the land in a locality is needed for a public purpose, a notification to that effect shall be published in the official Gazette and two daily newspapers circulating in that locality and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The last of the dates of such publications is deemed to be the date of the publication of the notification. Section 5-A of the Act makes a provision for filing of objections and their consideration. Section 6 deals with the declaration of intended acquisition. It provides that no declaration in respect of any land covered by notification under Section 4, sub-section (1) shall be made after the expiry of one year from the date of the publication of the notice. Explanation 1 provides that in computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub-section (1), is stayed by an order of a Court shall be excluded. Sub-section (2) of Section 6 provides that every declaration made under Section 6 shall be published in the same manner as provided for publication of notifications issued under Section 4 of the Act. Section 11-A of the Act mandates the Collector to make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of land shall lapse.
5. The purpose and object of publication of the notifications and declarations under Sections 4 and 6 respectively of the Act is to afford the affected person an opportunity to show-cause against the proposed action in accordance with the provisions of the Act. Even though the provisions of these sections are mandatory yet are not required to be interpreted on a hyper technical and sensitive pleas. A distinction has to be made between the words 'making' the declaration and 'publication' which are not synonymous. The starting point of limitation for the purposes of Section 6 is the date of the publication of notification under Section 4(1) and for the purpose of Section 11-A the publication of the declaration under Section 6. In other words, the starting point of the limitation for the purposes of Section 6 is the date of publication of the notification under Section 4 arid the end point is making of the declaration, as distinguishable from its publication. Similarly, the starting point of limitation for the purposes of Section 11 of the Act would be the date of the publication of the declaration under Section 6 and end point would be the making of the award. There is no dispute that the date of the publication of the notifications and declaration shall he the last of the dates of the publication of the notification or the declaration in the manner prescribed under the aforesaid two sections. Making of declaration under Section 6 means the signing of the declaration by the Competent Authority and publication of the declarations is the follow-up action which is resorted to without loss of time. Time limit provided under sub-section (1) of Section 6 shall not be applicable to the publication of notification under sub-section (2). Dealing with such an argument, Mrs. Sujata Manohar (as her Lordship then was) speaking for the Division Bench in the case of Shivgonda Balgonda Patil and Others v Director of Resettlement and Others , held:
"The first contention of the petitioners is to the effect that the notification under Section 6 of the Land Acquisition Act has been published more than 3 years after the notification under Section 4 and hence this notification is bad in law and his land cannot be acquired. Under Section 4 of the Land Acquisition Act the manner of publication of a notification under Section 4 is prescribed. It is not in dispute that in the present case notification under Section 4 was published on 1-9-1983.
Under Section 6(1) when appropriate Government or the Commissioner is satisfied after considering the report, if any, made under Section 5-A, sub-section (2), that any particular land is needed for a public purpose, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some Officer duly authorised to certify its orders. This declaration under Section 6 which is made under the signature of Secretary or an officer duly authorised as per Section 6(1) was in the present case made on 20-9-1986, that is to say, within 3 years of publication of the notification under Section 4 of the Land Acquisition Act. The proviso to Section 6 on which the petitioners rely states:
"Provided that no declaration in respect of any particular land covered by a notification under Section 4, sub-section (1).--
(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of the Land Acquisition (Amendment) Act, 1894, shall be made after the expiry of three years from the date of the publication of the notification;".
Clearly, therefore, no declaration under Section 6 can be made after the expiry of 3 years from the date of publication of notification under Section 4. The petitioners, however, contend that what is required to be considered in this case is not the date on which the declaration was made under Section 6 but the date on which the declaration under Section 6 was published. This submission is contrary to the language of the proviso which clearly provides only about the declaration being made after the expiry of 3 years. In fact, Section 6, sub-section (1) does not deal with publication of the notification under Section 6 at all. The provisions for publication are in Section 6 sub-section (2). This submission, therefore, of the petitioners must be rejected".
6. Dealing with such a notification in the case of Deepak Pahwa v Lt. Governor of Delhi and Others , it was held that the time gap between the two notifications would not be fatal unless it is shown to be lacking bona fides or resulting in prejudice to one of the parties.
7. However, on the basis of the aforesaid judgments, it cannot be said that the publication contemplated under the Act is directory and not mandatory. Failure to make requisite publication within the statutory period would render the acquisition liable to be quashed. But such requirement of publication has to be considered in the context of and under the circumstances, as noted herein above.
8. In the present case, it has been found on facts that the substance of the preliminary notification issued under Section 4 of the Act dated 31st of August, 1989 was published in the newspaper on 15-10-1989, which is to be deemed the date of the commencement of the period of limitation for the purposes of making of declaration under Section 6 of the Act. The final notification is proved to have been made latest by 12-10-1990, admittedly, within the period of one year from the date of the notification under Section 4 of the Act. The learned Single Judge, was, therefore, justified in upholding the notification issued under Section 4 of the Act.
9. The enquiry, as contemplated under Section 5-A of the Act was dispensed with, allegedly in view of urgency involved necessitating the invoking of all the powers conferred upon the State Government under Section 17(4) of the Act. The learned Counsel appearing for the Karnataka Housing Board has referred to various judgments to contend that the opinion formed by the State Government regarding invoking the urgency clause cannot be disturbed by this Court in exercise of the writ jurisdiction. The learned Single Judge dealt with this argument and rightly held:
"The learned Counsel for the Housing Board relied on the decision in the case of Kashappa Shivappa Manvi v Chief Secretary, Government of Mysore and Others and submitted that when once an opinion is formed by the State Government to invoke urgency clause, it is not appropriate for the Court to come to a different conclusion from that of the opinion expressed by the State Government. No doubt if there is material for the State Government to form that opinion, that opinion cannot he substituted by this Court in a writ petition under Article 226 of the Constitution of India. But here is a case where the Government even though there is no material and for a simple reason that the land is required for the construction of a residential building, the urgency clause has been invoked, which in my opinion is without any application of mind, since the mere requirement of a residential building for the public itself is not sufficient to form an opinion that the acquisition was urgently necessary so as to invoke urgency clause under the Act. Therefore, the said decision is of no assistance to the 2nd respondent".
10. The argument that as the land was required for the purpose of providing house sites, the same should have been held to be the justification for invoking urgency clause cannot be accepted because there is nothing on record to show that the land was being acquired for the purposes of providing sites to houseless or roofless or persons belonging to below the poverty line. The Board has not placed anything on record to show that the land was being acquired for such sections of the people which required immediate action. Merely because the land was required by the Housing Board would not have justified the invoking of the jurisdiction under Section 17 of the Act. Section 17 refers to a very extraordinary power affecting a valuable right of the citizen of hearing his objections under Section 5-A of the Act. For invoking such a jurisdiction, the authorities are required to adhere strictly to the requirements of the statute and unless the statutory requirements are satisfied the jurisdiction to invoke the powers under this section should not be resorted to. The urgency powers are not expected to be lightly resorted to. Once the view taken by the Government regarding the existence of urgency is supported by the record, the Courts would not normally interfere with such Government's decision. Such decision is, however, required to be arrived at on the basis of this subjective satisfaction and not resorted to as a measure or used as a cloak to bypass the mandatory provisions of law conferring valuable rights upon the citizen.
11. In the instant case, the appellant-Housing Board did not produce any record to show that before invoking the jurisdiction under Section 17(4) of the Act, the State Government had arrived at its subjective satisfaction regarding the existence of urgency. The learned Single Judge, therefore, was justified in concluding that the invoking of powers under Section 17(4) of the Act was not justified.
12. In the absence of Section 17(4) of the Act, the acquiring authority was under the legal obligation to hold enquiry and make report in terms of Section 5-A of the Act which was admittedly not done. The learned Single Judge, therefore, rightly quashed the notification under Section 6 of the Act on this ground and allowed the authorities to proceed with the acquisition proceedings from the stage of the preliminary notification issued under Section 4 of the Act. There is no illegality or error of jurisdiction in the order of the learned Single Judge requiring our interference. There is no merit in any of the appeals which are accordingly dismissed but without any order as to costs.