Karnataka High Court
The Bijapur Urban Development ... vs Shri. Raja Bhahaddur S/O Shankarsa ... on 7 July, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
AT KALABURAGI BENCH
DATED THIS THE 7th DAY OF JULY, 2017
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE B.A. PATIL
W.A.NO.50007/2013
BETWEEN:
THE BIJAPUR URBAN
DEVELOPMENT AUTHORITY
BY IT'S COMMISSIONER,
BIJAPUR DISTRICT
BIJAPUR.
... APPELLANT
(BY SRI. ASHOK R KALYANASHETTY, ADVOCATE)
AND:
1. SHRI RAJA BAHADDUR
S/O SHANKARSA DARBAR
SINCE DECEASED
REPRESENTED BY HIS LR
THE RESPONDENT NO.2
2. SHRI INDRAJEET
S/O SHRI RAJA BAHADDUR DARBAR
AGED ABOUT 60 YEARS
OCC: BUSINESS
R/O KALADAGI ROAD
BAGALKOT TQ.,
DIST.,- BAGALKOT-587101
2
3. THE STATE OF KARNATAKA
BY IT'S SECRETARY TO GOVERNMENT
REVENUE DEPARTMENT
M.S. BUILDING,
DR. AMBEDKAR ROAD
BANGALORE-560 001.
4. THE DEPUTY COMMISSIONER
BIJAPUR DISTRICT
BIJAPUR-586101.
5. THE ASSISTANT COMMISSIONER
LAND ACQUISITION OFFICER
BIJAPUR DISTRICT
BIJAPUR-586101.
... RESPONDENTS
(BY SMT.ARCHANA TIWARI, ADDL. GOVERNMENT
ADVOCATE FOR R-3 TO R-5;
SRI. SACHIN M MAHAJAN, ADV ALONG WITH SRI
BASAVARAJ KAREDDY, ADVOCATE FOR R-2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO
SET ASIDE THE ORDER DATED 21.11.2012 PASSED BY
THE SINGLE JUDGE OF THIS HON'BLE COURT IN THE
WRIT PETITION NO.40516/2008 (LA-BDA).
THIS WRIT APPEAL BEING HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY THROUGH VIDEO CONFERENCE, ARAVIND KUMAR
J, DELIVERED THE FOLLOWING:
3
JUDGMENT
This intra-Court appeal is filed by Bijapur Urban Development Authority (for short 'BUDA') challenging the order dated 21.11.2012 passed in W.P.No.40516/2008 (LA-BDA) whereunder writ petition filed by respondents -1 and 2 herein came to be allowed and acquisition proceedings of the petitioners' lands came to be set aside by quashing the preliminary and final notification dated 05.07.2007 and 2/5-08/2008 - Annexures-F and R respectively. Parties are referred to as per their rank in writ petition.
BRIEF HISTORY OF THE CASE:
2. Petitioners are the owners of lands bearing Sy.Nos.318/1 and 319 totally measuring 29 acres 36 guntas which is situated at Mahalbhagayath, Bijapur and it was proposed to be acquired by BUDA under preliminary notification dated 27.06.2007 issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'Act' for the sake of brevity) and duly published in the Gazette on 05.07.2007 and 4 final notification dated 02.08.2008 issued under Section 6(1) of the Act published in the Gazette on 05.08.2008.
3. Said notifications came to be challenged by the petitioners in W.P.No.40516/2008 contending interalia that acquisition proceedings are illegal;
opportunity of personal hearing to the petitioners was not extended though they had filed objections; there has been no consideration of objections filed to preliminary notification; report submitted by the Assistant Commissioner under Section 5-A of the Act was not communicated to the petitioners; respondents had given-up acquisition of vast extent of land which was included in the Scheme 17 years ago and had singled out the petitioners after they had made considerable improvements apart from other grounds urged in the writ petition.
4. Resisting the said writ petition by filing statement of objections, beneficiary - BUDA sought to sustain the acquisition by denying the averments made in the writ petition. It was contended interalia that 4th 5 respondent had followed the procedure envisaged under Section 5-A(2) of the Act. Fourth respondent had neither rejected the objections nor recommended for acquisition and had forwarded the report as required under Section 5-A(2) of the Act and same is not defective. Amongst other grounds urged in the statement of objections, beneficiary - BUDA sought to sustain the acquisition proceedings.
FINDINGS OF THE LEARNED SINGLE JUDGE:
5. After having considered the pleadings, material placed on record and after examining rival contentions, learned Single Judge accepted the grounds urged in the writ petition and set aside the preliminary and final notifications impugned in the writ petition on the following grounds:
(i) Inspite of petitioners having filed objections to the proposed acquisition raising several grounds, opportunity of hearing was not extended to the petitioners by the fourth respondent;6
(ii) Though detailed objection raising 19 points had been submitted, which was forwarded by fourth respondent to BUDA, which in-turn had given its opinion, had not been considered in proper perspective by respondents - 1 and 2;
(iii) No material was placed to establish that report of the Assistant Commissioner (5A - Report) was considered by the State Government and State Government had not applied its mind to various aspects pointed out in the report of the Assistant Commissioner;
(iv) Compensation payable to the land owners had not been deposited;
(v) The beneficiary - BUDA itself had
passed a resolution in respect of
Sy.No.305 resolving that cost of
acquisition is high and it is not in a
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position to pay compensation to the
owners of the land;
(vi) Resolution passed by BUDA forwarding
its proposal to the State Government to drop these lands from acquisition on account of its financial inability to pay the value of lands;
(vii) Successive attempts had been made by the State to acquire the lands in question for BUDA and same had been dropped.
On these amongst other findings recorded, learned Single Judge as noticed hereinabove, allowed the writ petition and quashed the impugned notifications.
6. Beneficiary - BUDA is in appeal before this Court assailing the order dated 21.11.2012 passed in W.P.No.40516/2008.
7. We have heard the arguments of Sriyuths Ashok R. Kalyanshetty, learned counsel appearing for 8 the appellant and Smt. Archana Tiwari, learned Additional Government Advocate appearing for the State and Sri. Sachin M. Mahajan, along with Sri. Basavaraj Kareddy, learned counsel appearing for the owners of land. We have perused the order under challenge, pleadings of the parties and partial records made available by the learned Additional Government Advocate.
8. It is the contention of Sri. Ashok R. Kalyanshetty, learned counsel appearing for the appellant/beneficiary that reasons assigned and conclusions arrived under the order in question is erroneous and not sustainable on the ground that lands involved, which was sought to be acquired, was for a public purpose and private or individual interest has to yield the public interest. He would submit that the Scheme having been sanctioned and declaration thereon issued was conclusive evidence, which establishes that land was needed for public purpose and as such, Section 36 of the Karnataka Urban 9 Development Authorities (hereinafter referred to as 'KUDA' for the sake of brevity) does not become inoperative. He would contend that delay in acquisition proceedings would not frustrate the acquisition and even if such delay is there, it has to yield to public purpose. He would also contend that acquisition under the Scheme approved was for an extent of 191 acres, out of which layout has been formed till 109 acres and as such, it cannot be contended that Scheme is not substantially implemented. He would also submit that under Section 36(3) of KUDA payment has to be made to Government by the beneficiary only after acquisition and not earlier to same. He would draw the attention of the Court to the dissent note of the Commissioner of BUDA to the resolution passed by BUDA, whereunder it had been resolved to recommend to the Government not to acquire the lands on account of high costs and contends that these facts have been ignored by the learned Single Judge.
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9. He would elaborate his submission by contending that conclusion arrived at by the learned Single Judge that there is violation of Section 5-A of the Act on the ground of personal hearing not having been extended to the petitioners while considering the objections and there was no consideration to the objections, is erroneous and even otherwise, same cannot be a ground to quash the entire acquisition proceedings and the learned Single Judge ought to have directed the respondents - authorities to proceed with the acquisition from the stage of complying Section 4-A of the Act. He contends that likewise, the State could have been directed to reconsider the matter if there had been violation of Section 6(1) of the Act, but on the other hand, acquisition could not have been set aside. He would also submit that Scheme has been substantially implemented and it has not lapsed. He would further submit that denotification of some lands cannot be a relevant factor to quash the notifications in question and there has been non-consideration of circumstances under which those lands were denotified. He would also 11 contend that learned Government Advocate could not have made submission before learned Single Judge about the financial difficulties of appellant - BUDA and said submission is of no consequence, since it has been made without filing the statement of objections and producing the records. Hence, he prays for setting aside the order under challenge. In support of his submission, he has relied upon the following judgment:
(a) AIR 2016 SC 451:
STATE OF HARYANA vs. EROS CITY DEVELOPERS PVT. LTD. AND ORS.
10. Per contra, Sri. Sachin Mahajan, learned counsel appearing for writ petitioners would support the order under challenge and contends that Scheme was sanctioned in the year 1991 and by 2007 when the impugned notification was issued, it had lost its original character in view of Bijapur city having developed beyond the lands of writ petitioners and as such, Scheme had become redundant, not feasible and lands in question had acquired commercial value. He would submit that beneficiary - BUDA had resolved to drop 12 lands belonging to writ petitioners from acquisition of lands on account of same not being financially viable and as such, appeal is liable to be dismissed.
11. He would also contend that to overcome the inordinate delay in acquisition proceedings and indecisiveness on the part of BUDA by acquiring the lands of writ petitioners, then giving-up and yet again allowing fresh acquisition proceedings to lapse and thereafter initiating one more proceedings after a long gap of 7 years delay cannot be brushed aside as inconsequential. He would submit when BUDA by its resolution dated 26.03.2001 resolved in its meeting to drop the lands of writ petitioners from acquisition, it had failed to deposit the entire estimated cost of acquisition with the Special Land Acquisition Officer and as such, there are no bonafides in the acquisition proceedings and it had failed to explain 7 years delay from 1999 till 2007. He would submit that resolutions passed by BUDA is neither recalled nor modified or set 13 aside in accordance with the provisions of KUDA and said resolutions had been acted upon.
12. The very fact that approval for the notification under Section 6(1) of the Act was granted by the Government within 24 hours itself proves total non- application of mind by the Government. It is further contended that a Scheme has to be substantially implemented within 5 years as per Section 27 of KUDA and there has been inordinate delay of 7 years between the lapsing of earlier acquisition and subsequent notification issued under Section 4(1) of the Act. Thus, it would indicate appellant and State had consumed 7 years period for publication of Section 4(1) notification and this is sufficient to arrive at a conclusion that entire acquisition proceedings was vitiated on account of same having not been implemented within 5 years.
13. He would submit that writ petitioners had taken every possible steps and had obtained the approval from statutory authorities for converting the lands in question to non-agricultural purposes and had 14 also applied for approval of layout plan. The very fact that other lands under the same Scheme had been denotified is held to be a good ground for arriving at a conclusion that petitioners standing on the same footing cannot be singled out and as such, it amounts to discrimination under Article 14 of the Constitution of India as held by the learned Single Judge is just and proper. It is also submitted that Government Advocate had made a submission after due verification of the entire file relating to acquisition in question and also as per the submission of Special Land Acquisition Officer, who was present in the Court. On these grounds, he seeks for dismissal of the appeal.
14. Having heard the learned Advocates appearing for parties and on perusal of records and order passed by the learned Single Judge, it would emerge therefrom:
That scheme proposed by BUDA for formation of 2282 sites in an area of 191 acres at Bijapur came to be approved under Section 18(3) of KUDA on 24.07.1991 -15
Annexure-A by the State Government. On 07.09.1991 a preliminary notification came to be issued under Section 4(1) of the Act for acquiring 191 acres including the land of writ petitioners and final notification under Section 6(1) of the Act came to be issued on 18.06.1992.
Same came to be challenged by petitioners in W.P.Nos.14799-14800/1993. The learned Single Judge allowed the writ petitions by order dated 01.02.2000 by quashing the final notification and reserving liberty to the petitioners to file objections to preliminary notification within 30 days from date of order and liberty was also granted to the authorities to proceed with the acquisition pursuant to preliminary notification issued under Section 4(1) of the Act. State did not proceed with the acquisition for reasons best known.
However, a fresh notification came to be issued on 25.05.2000 under Section 4(1) of the Act and this was objected to by the writ petitioners with a prayer to drop the acquisition proceedings. Said representation of petitioners came to be considered by BUDA. The Chairman of BUDA by virtue of authorization given by 16 Board, recommended for dropping of acquisition proceedings in respect of lands in question, since already an extent of 36 acres 2 guntas abutting the lands in question had been dropped- Annexure-B. The Commissioner - BUDA by communication dated 02.04.2001 - Annexure-C requested the State not to drop acquisition proceedings. Final notification was not published within one year from the date of notification and as such, jurisdictional Deputy Commissioner communicated to the Secretary, Urban Development Department to return the file as the acquisition had lapsed vide communication dated 29.12.2001 -
Annexure-D. Accordingly, the Secretary, Department of Urban Development by communication dated 07.03.2002 - Annexure-E addressed to the jurisdictional Assistant Commissioner returned the file as the acquisition had lapsed.
15. Thereafter, writ petitioners filed an application under Section 95 of the Karnataka Land Revenue Act, 1964 seeking conversion of the lands in 17 question for non-agricultural purposes. On account of said application being rejected, writ petitioners filed an appeal before Karnataka Appellate Tribunal and by order dated 26.07.2002 appeal came to be allowed and it is thereafter Deputy Commissioner, Bijapur, by order dated 01.01.2003 permitted conversion of the lands and writ petitioners have paid the conversion fee.
16. Writ petitioners in the year 2004 sought for approval of layout plan and on account of non consideration of the same, petitioners approached this Court in W.P.No.47416/2004 and on a direction being issued, jurisdictional authorities considered the application of petitioners and rejected the same by order dated 16.12.2005. Being aggrieved by the same, petitioners filed W.P.No.3703/2006 questioning the order of rejection of the application for approval of the layout.
17. During the pendency of said writ petition, State Government issued a preliminary notification dated 03.07.2007 - Annexure-F proposing to acquire 18 the lands of petitioners yet again and objections came to be filed to the same by the petitioners on 02.08.2007, 29.08.2017 and 31.07.2007 - Annexures-G, H and H1 respectively. Special Land Acquisition Officer, on receiving the objections filed by petitioners, forwarded the same to BUDA and sought its reply and same was duly replied by BUDA as per Annexure-J. A report dated 31.07.2008 - Annexure-K came to be submitted by the Special Land Acquisition Officer - Assistant Commissioner to the appropriate Government as contemplated under Section 5-A of the Act. Immediately thereafter i.e., on 02.08.2008 - Annexure-L appropriate Government accorded its approval under Section 6(1) of the Act. Simultaneously, appropriate Government has sought certain clarifications from the Assistant Commissioner - Special Land Acquisition Officer and also BUDA by calling upon them to furnish particulars of sanction having obtained for the proposed Scheme, budget allocation made for implementation of the Scheme, etc. by Government Order dated 02.08.2008 - Annexure-L, which has been received by 19 the Office of the Assistant Commissioner on 06.08.2008. In the meantime, appropriate Government issued a notification dated 02.08.2008 by publishing the same in the Gazette dated 05.08.2008 - Annexure-R.
18. A perusal of the case papers would disclose that undisputedly the Scheme was formulated in the year 1991 in respect of lands in question belonging to the petitioners amongst other lands and till date of issuance of impugned notifications the Scheme has not been implemented in toto. Section 27 of the KUDA of reads as under:
"27. Authority to execute the scheme within five years.--Where within a period of five years from the date of publication in the official Gazette of the declaration under sub-section (1) of section 19, the Authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of section 36 shall become inoperative."
19. A bare reading of the above provision would disclose that where within a period of 5 years from the date of official Gazette of the declaration under sub- 20 section (1) of Section 19, if the Authority fails to execute the Scheme substantially, the Scheme would lapse. Section 19 discloses the manner, mode and method of sanction of a Scheme.
20. The total extent of area proposed to be acquired for the purposes of formation of sites as per the approval of Scheme accorded by the appropriate Government as per G.O. dated 24.07.1991 - Annexure- A is for formation of 2282 sites in an area of 191 acres of land at an estimated cost of ` 4,51,96,000/- to be formed by BUDA. It is not in dispute that to an extent of 109 acres layout has been formed and sites have been distributed. Thus, extent of land which has remained without sites being formed is 82 acres. Out of this extent, 51 acres have been denotified and 29 acres 36 guntas is the subject matter of this writ petition. Reasons are not forthcoming for either denotification under Section 48 in respect of 3 acres 30 guntas in Sy.No.308/2B, or in respect of Sy.Nos.306/1 measuring 7 acres 36 guntas or in respect of Sy.No.305 measuring 21 17 acres 31 guntas. Thus, Scheme has not been implemented in the letter and spirit for which it has been accorded sanction.
21. Perusal of the records would further also disclose that on W.P.Nos.14799-800/1993 being allowed on 01.02.2000 and liberty having been given to respondents to file objections with a direction to Special Land Acquisition Officer to hear said objections, petitioners filed their objections to the preliminary notification and thereafter State Government did not pursue the notifications issued earlier but subsequently in exercise of its power of eminent domain issued a fresh preliminary notification on 25.05.2000. It is thereafter Chairman, BUDA recommended that acquisition in respect of lands in question also be dropped as similar lands had been dropped from acquisition. However, this was objected to by the Commissioner, BUDA by communication dated 02.04.2001 - Annexure-C. 22
22. On account of notification under Section 6(1) having not been issued, Deputy Commissioner, Bijapur, by communication dated 29.12.2001 addressed to the Secretary, Urban Development Department sought for return of the file as acquisition had lapsed. In reply dated 07.03.2002 - Annexure-E, the Secretary- Urban Development Department returned the file on the ground of acquisition having lapsed. After lapse of 5 years, impugned preliminary notification dated 06.06.2007 - Annexure-P came to be issued. Thus, from the date of first notification issued in the year 1991 to the date of issuance of impugned notification there is a delay of 16 years in implementing the Scheme. Section 27 of the Act clearly mandates that development authority should execute the Scheme substantially within a period of 5 years from the date of publication of the declaration under sub-section (1) of Section 19 of the Act. Thus, Section 28 of the Act is clear and unambiguous. In other words, if development authority fails to execute the Scheme substantially, the Scheme stands lapsed.
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23. In the instant case, as already noticed hereinabove, under the Scheme approved by the appropriate Government a total extent of 191 acres was sought to be acquired and undisputedly, acquisition relating to an area of 109 acres had reached finality, awards came to be passed and layout also came to be formed. Hence, it cannot be held that Scheme had lapsed since there has been substantial compliance of the Scheme and allotment of sites had also been made in accordance with the extant Rules in the layout so formed. Thus, it can be safely concluded that Scheme will not lapse as there has been substantial compliance of the Scheme. Having regard to the material on record supported by the affidavit of the Commissioner - BUDA it would disclose that layout has been formed, allotment of different dimensions of sites came to be formed in an area of 109 acres. It would be of benefit to note the judgment of this Court in the case of URBAN DEVELOPMENT OF AUTHORITY, SHIMOGA VS.
STATE OF KARNATAKA AND OTHERS reported in 24 2004 (5) KLJ 233 (DB) it has been held by the Division Bench as under:
"5. Section 27 of the xxx inoperative. A plain reading of the above leaves no manner of doubt that if the Authority fails to execute the Scheme substantially within a period of 5 years from the date of publication in the official Gazette of the declaration under Section 19(1) of the Act, the same shall lapse. The short question therefore, is -whether the authority has substantially implemented the Scheme, within the time stipulated.
6. It is not in dispute that the final declaration under Section 19(1) of the Act had been published on 15th Oct., 1992. There was, as seen earlier, an amendment to the Scheme whereby the area required for the same was reduced substantially and a fresh Notification issued in June, 1996. Does any such fresh Notification signifying the amendment or improvement of the Scheme, provide to the Scheme framed by the Authority a fresh lease of life? Can the Authority at its will amend the Scheme at any time? The Act does not in our view permit exercise of the power to amend the Scheme in a manner so as to render the provisions of Section 27 ineffective or meaningless. If the power available to the Authority under sub- sections (4), (5) and (6) of Section 19 of the Act is understood, to confer upon it the competence to make any amendment at any stage within a period of 5 years, so as to renew the validity of the Scheme for another period of 5 years from the date of such amendment, such power may and is most likely to be abused by the Authority by resorting to repeated amendments whether or not the same are necessary 25 only with a view of overcome the difficulty arising from the period of stipulated for implementation of the Scheme under Section 27. In the circumstances therefore, the period stipulated by Section 27 for substantial implementation of the Scheme must necessarily be counted from the date the final declaration under Section 19(1) was published in the Gazette. The mere fact that the amendment of the Scheme has also been published under Section 19(1) of the Act would not grant to the Scheme validity for a further period of five years from the date of such publication. If that be so, the Scheme in the present case would lapse if not substantially implemented by the 15th of Oct. 1997. The making of an award based on the declarations issued under Ss.17 and 19 of the Act would in our opinion constitute a step in the direction of implementing the Scheme. Other steps like taking of possession, laying of roads and allotment of sites would also contribute to the implementation of the Scheme in some measure or the other. Suffice it to say that the least which the Authority was required to do was to ensure that an award is made in accordance with the provisions under The Land Acquisition Act within a period of 5 years to save the Scheme from lapsing under Section 27 of The Urban Development Authorities Act."
24. In the light of above position of law and at the cost of repetition when facts on hand are perused, it would clearly establish that out of the total extent of 2282 sites which was proposed to be formed in an area 26 of 191 acres of land, sites in an area of 109 acres came to be formed and allotment have been made pursuant to the same by the authority. The statement of allotment and list of allottees would also substantiate or support the contention of BUDA and as such, we are of the considered view that learned Single Judge was in error in arriving at a conclusion that Scheme itself had lapsed in its entirety. However, we are of the view that scheme had been partially implemented i.e., to an extent of 57% only.
25. On issuance of impugned preliminary notification - Annexure-P, State commenced third round of acquisition of the lands in question and said notification was duly published in the Gazette on 05.07.2007 - Annexure-F and in the newspaper on 03.07.2007 - Annexure-N. Writ petitioners filed their preliminary objections on 02.08.2007 - Annexure-G and detailed objections on 29.08.2007 - Annexure-H. Assistant Commissioner and Special Land Acquisition Officer forwarded the same to the Commissioner, BUDA 27 and sought for his reply, who in-turn forwarded its comments/reply vide Annexure-J and sought for proceeding with the acquisition proceedings by rejecting the objections raised by the petitioners. A bare perusal of objections filed by the petitioners would disclose that they have assailed the proposed acquisition in detail and had requested for acquisition proceedings being dropped. In fact, report submitted by the Special Land Acquisition Officer to the appropriate Government, which is at Annexure-K would disclose that writ petitioners had raised 19 points in support of their claim for acquisition proceedings being dropped. They had also sought for a personal hearing before Special Land Acquisition Officer.
26. The grievance of petitioners have been, that no enquiry was held and Special Land Acquisition Officer had prepared the report under Section 5-A of the Act in violation of principles of natural justice namely, no opportunity of personal hearing was extended to the petitioners. In the light of said contention raised by writ 28 petitioners, it would apt to notice Section 5-A of Land Acquisition Act and it reads as under:
"5-A. Hearing of objections .--(1) Any person interested in any land which has been notified under section4, sub- section(1), as being needed or likely to be needed for a public purpose or for a company may, [within thirty days from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objections under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard [in person or by any person authorised by him in this behalf] or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, [either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government]. The decision of the [appropriate Government] on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.]"29
27. It is apt and appropriate to note at this juncture itself that when first notification was issued on 07.09.1991, same had been challenged by the petitioners in W.P.Nos.14799-800/1993 and said writ petitions came to be allowed on 01.02.2000, since opportunity to file objections had not been extended to them. Hon'ble Apex Court in the case of KAMAL TRADING PRIVATE LTD. (NOW KNOWN AS MANAV INVESTMENT AND TRADING COMPANY LIMITED) vs. STATE OF WEST BENGAL reported in (2012) 2 SCC 25 has held to the following effect:
"13. Section 5-A(1) of the LA Act gives a right to any person interested in any land which has been notified under Section 4(1) as being needed or likely to be needed for a public purpose to raise objections to the acquisition of the said land. Sub-section (2) of Section 5-A requires the Collector to give the objector an opportunity of being heard in person or by any person authorised by him in this behalf. After hearing the objections, the Collector can, if he thinks it necessary, make further inquiry. Thereafter, he has to make a report to the appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the decision of the appropriate Government and the decision of the appropriate Government on the objections shall be final."30
28. In the instant case, on objections being filed to the proposed preliminary notification, enquiry under Section 5-A of the Act is said to have been conducted. However, records do not disclose about any notice of personal hearing having been issued to the petitioners. The natural justice rule enshrined in Section 5-A of the Land Acquisition Act, 1964 being mandatory and failure to comply with this provision would vitiate the acquisition proceedings. The authoritative pronouncement of the Apex Court in USHA STUD AND AGRICULTURAL FARMS PRIVATE LIMITED AND OTHERS vs. STATE OF HARYANA AND OTHERS reported in (2013) 4 SCC 210 would fortify this view. It has been held:
"21. Section 5-A, which embodies the most important dimension of the rules of natural justice, lays down that any person interested in any land notified under Section 4(1) may, within 30 days of publication of the notification, submit objection in writing against the proposed acquisition of land or of any land in the locality to the Collector. The Collector is required to give the objector an opportunity of being heard either in person or by any person authorised by him or by pleader. After hearing the objector(s) and making 31 such further inquiry, as he may think necessary, the Collector has to make a report in respect of land notified under Section 4(1) with his recommendations on the objections and forward the same to the Government along with the record of the proceedings held by him. The Collector can make different reports in respect of different parcels of land proposed to be acquired."
29. It has been further held by Apex Court in the case of KAMAL TRADING PRIVATE LIMITED's case referred to supra, that Section 5-A is the only protection available to the person whose lands are sought to be acquired and they would be in a position to point out to the authority concerned that "public purpose" is absent under the proposed acquisition or acquisition is malafide. It has been held to the following effect:
"13. Section 5-A(1) of the LA Act gives a right to any person interested in any land which has been notified under Section 4(1) as being needed or likely to be needed for a public purpose to raise objections to the acquisition of the said land. Sub-section (2) of Section 5-A requires the Collector to give the objector an opportunity of being heard in person or by any person authorized by him in this behalf. After hearing the objections, the Collector can, if he thinks it necessary, make further inquiry. Thereafter, he has to make a report to the appropriate Government containing 32 his recommendations on the objections together with the record of the proceedings held by him for the decision of the appropriate Government and the decision of the appropriate Government on the objections shall be final.
14. It must be borne in mind that the proceedings under the LA Act are based on the principle of eminent domain and Section 5-A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the concerned authority, inter alia, that the important ingredient namely "public purpose" is absent in the proposed acquisition or the acquisition is mala fide. The LA Act being an ex-proprietary legislation, its provisions will have to be strictly construed.
15. Hearing contemplated under Section 5-A(2) is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and make a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with the Collector's recommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5-A(2). As said by this Court in Hindustan 33 Petroleum Limited, the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf.
16. Sub-section (3) of Section 6 of the LA Act makes a declaration under Section 6 conclusive evidence that the land is needed for a public purpose. Formation of opinion by the appropriate Government as regards the public purpose must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5-
A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5-A(2) of the LA Act. The recommendations must indicate objective application of mind."
30. The hearing contemplated under Section 5-A of the Act would be the basis on which the report would be made by Special Land Acquisition Officer and based on the said report the appropriate Government would 34 issue declaration under Section 6 after examination of the said report and as such, personal hearing contemplated under Section 5-A of the Act would assume significance. In the instant case, first acquisition commenced in the year 1992 i.e., by issuance of final notification dated 18.06.1992 and on W.P.Nos.14799-800/1993 being allowed on 01.02.2000, State Government gave up the acquisition of said land. However, second round was commenced on 25.05.2000 by issuance of preliminary notification and on account of final notification having not been issued within one (1) year acquisition lapsed. The third round of acquisition commenced by issuance of the impugned notification in the year 2007 and no enquiry as contemplated under Section 5-A of the Act was held. In fact, personal hearing was also not granted to the petitioners to substantiate grounds urged in their objections.
31. It could be seen from the records that during the interregnum period i.e., after the lapse of 35 acquisition in the year 2000 and by the time impugned notifications came to be issued, several developments had taken place namely, lands belonging to the petitioners came to be converted for non-agricultural purposes and for formation of layout petitioners had sought the approval of plan, which came to be rejected on 16.12.2005 and when the order of rejection was under challenge, the impugned notifications came to be issued. These aspects or developments were highlighted, raised, urged in the objections filed by the petitioners to the impugned preliminary notification and to substantiate said claim, petitioners had sought for personal hearing before Special Land Acquisition Officer. However, Special Land Acquisition Officer, who was the authority to consider the said objections and who was required to extend personal hearing did not extend such opportunity to petitioners which has resulted in violation of principles of natural justice. Thus, there has been non-compliance of mandate of Section 5-A of the Act by the Special Land Acquisition Officer.
36
32. The preliminary notification dated 27.06.2007 issued under Section 4(1) of the Act came to be published in the newspaper on 03.07.2007 and was Gazetted on 05.07.2007. Final notification under Section 6(1) of the Act came to be issued on 02.08.2008 and was Gazetted on 05.08.2008. BUDA has contended that preliminary notification under Section 4(1) was published in the Gazette on 05.07.2007 and the public notice in the Notice Board of the village chavadi was published by affixture on 03.08.2007 and petitioners were served on Sunday i.e., 03.08.2007. It is also contended that Village Accountant by communication dated 30.05.2008 addressed to the State Government had reiterated about such dates in his report dated 03.08.2007 - Annexure-R2. On the said ground it is contended that preliminary notification dated 27.06.2007 issued under Section 4(1) published in Gazette on 05.07.2007 and final notification dated 02.08.2008 issued under Section 6(1) published in the Gazette on 05.08.2008 is within one year and not vitiated and consequently acquisition has not lapsed. 37
33. Writ petitioners have specifically contended in paragraphs 10 and 11 of the writ petition that final notification is not issued within one year from the date of issuance of preliminary notification. Thus, a contentious issue had arisen before the learned Single Judge and as rightly contended by the learned Advocates appearing for the parties, this aspect has not been delved upon under the order under challenge. This appeal being an intra-court appeal, we have examined the said contention also in the light of rival contentions raised.
34. In the light of the aforestated facts, it would be necessary to note that, learned Single Judge passed an order came on 03.07.2009 recording the submissions of learned Government Advocate that he would secure the records in the matter but same was not produced. Again on 08.11.2012 further time was sought to secure the records by the Additional Government Advocate. However, same was not produced for reasons best known. In this appeal, the 38 learned Additional Advocate General was directed to make available original records relating to acquisition proceedings by our order dated 10.03.2017. Pursuant to same, original file consisting of pages 1 to 209 has been made available and we have perused the entire records/file.
35. Clause (ii) of proviso to sub-section (1) of Section 6 of the Act mandates that no declaration in respect of any particular land covered by a notification issued under Section 4(1) shall be made after the expiry of one year from the date of publication of notification. The proviso to Section 6(1) is couched in negative terms. Thus, it has to be read as mandatory. Any declaration made after the expiry of one year from the date of publication of notification under Section 4(1) would be void and of no effect. The Apex Court in the case of ASHOK KUMAR AND OTHERS vs. STATE OF HARYANA AND ANOTHER reported in (2007) 3 SCC 470 has held that purport and object of provisions of the Act and in particular proviso to Section 6(1), which 39 had been inserted by Act 68 of 1984 must be given its full effect, since the said provision was inserted for the benefit of owners of the land. It came to be held that:
"14. Proviso (ii) appended to sub-
section (1) of Section 6 of the Act clearly debars making of any declaration in respect of any particular land covered by a notification issued under sub-section (1) of Section 4 after the expiry of one year from the date of publication thereof. Explanation (1) appended to the said proviso, however, stipulates 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(1), is stayed by an order of a court, shall be excluded. On a plain reading of the aforementioned provisions, there cannot be any doubt whatsoever that the period which is required to be excluded would be one, during which the action or proceeding taken was subjected to any order of stay passed by a competent court of law.
15. Provisions of the Act should be construed having regard to the purport and intent thereof. Section 6 of the Act is beneficent to the landowners.
16. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, it was held: (SCC p.640, para29) "29. The Act is an expropriatory legislation. This Court in State of M.P. v. Vishnu Prasad Sharma observed that in such a case the provisions of 40 the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand v. State of Rajasthan and CCE v. Orient Fabrics (P) Ltd.]"
17. We have noticed hereinbefore that the proviso appended to sub-
section (1) of Section 6 is in the negative term. It is, therefore, mandatory in nature. Any declaration made after the expiry of one year from the date of the publication of the notification under sub-section (1) of Section 4 would be void and of no effect. An enabling provision has been made by reason of the explanation appended thereto, but the same was done only for the purpose of extending the period of limitation and not for any other purpose. The purport and object of the provisions of the Act and in particular the proviso which had been inserted by Act 68 of 1984 and which came into force w.e.f. 24-9-1984 must be given its full effect. The said provision was inserted for the benefit of the owners of land. Such a statutory benefit, thus, cannot be taken away by a purported construction of an order of a court which, in our opinion, is absolutely clear and explicit."
36. Section 4 of the Act empowers the appropriate Government to initiate acquisition proceedings and whenever it appears to the appropriate Government that any land in any locality is needed or is likely to be needed for any public purpose or for a 41 company, then a notification to that effect has to be published in the Official Gazette and also in two daily newspapers having circulation in the locality. One of the newspaper has to be in the regional language and the Deputy Commissioner has to cause public notice of the substance of such notification to be given at convenient places in the said locality and may also cause copy of such notification to be served on the owner or on the occupier of the land. The last date of publication and giving of public notice is treated as the date of publication of notification. For this proposition the judgment of the Apex Court in the case of USHA STUD AND AGRICULTURAL FARMS (P) LTD. vs. STATE OF HARYANA reported in (2013) 4 SCC 210 - paragraph 20.1 can be looked up.
37. Thus, where an acquisition is challenged on the ground of final notification having been issued beyond the prescribed period of one year from the date of declaration covered by a notification issued under Section 4(1), then it has to be ascertained on factual 42 aspect as to the date of notification and the last of dates of such publication made by the Deputy Commissioner. In order to examine this contention, the dates of preliminary notification and final notification including the dates on which it came to be published in the newspaper, are required to be examined. The details thereof are as under:
Sl. Particulars Date Gazetted Remarks No. on Preliminary notification There is no issued under Section dispute between 1 27.06.2007 05.07.2007 4(1) of the Land the parties on Acquisition Act, 1894 these dates Publication in local 2 newspaper 'Sathya 03.07.2007 -- No dispute Kama' - Annexure-N Publication in local 3 newspaper 'Karnataka 06.07.2007 -- No dispute Herald' - Annexure-P Public notice on the Seriously 4 village chavadi affixed 03.08.2007 -- disputed by the petitioners Report of the Village Not admitted by Accountant to the the petitioners 5 03.08.2007 --
Tahsildar, Bijapur -
Annexure-R2 Writ petitioners filed preliminary objections 6 to the notification 02.08.2007 -- No dispute issued under Section 4(1) - Annexure-G Writ petitioners filed detailed objections to 7 the notification issued 13.08.2007 -- No dispute under Section 4(1) -
Annexure-H
43
Report by the Spl. LAO Not admitted by
under Section 5-A the petitioners on
forwarded to the the ground that
8 31.07.2008 --
appropriate no personal
Government - hearing was
Annexure-K granted
Clarification sought by
the Under Secretary,
Department of Revenue
from the Assistant
Commissioner, Bijapur,
and Commissioner -
9 02.08.2008 -- No dispute
BUDA regarding
sanction obtained for
the Scheme, budget
allocation and renewal
of the Scheme -
Annexure-M
Appropriate The manner and
Government has method of
10 02.08.2008 --
accorded approval for approval is under
acquisition challenge
Final notification dated
02.08.2008 under
11 05.08.2008 -- No dispute
Section 6(1) published
in the Gazette
38. For the limited purpose of examining the validity of notification issued under Section 6(1) namely, same being in conformity with the said provision or in other words, final notification not being contrary to Clause (ii) of proviso to sub-section (1) of Section 6 of the Act, the two dates which will have to be taken note of would be the last of dates of publication of the declaration issued under Section 4(1) and the date of 44 final notification. There is a serious dispute with regard to the last of date of publication of the declaration issued under Section 4(1). On the one hand, beneficiary BUDA in its statement of objections filed before the learned Single Judge has asserted that the copy of declaration issued under Section 4(1) was affixed on the notice board of the village chavadi on 03.08.2007 and it was also served on land owners on said date and this is seriously disputed by the petitioners.
39. There is no dispute with regard to issuance of preliminary notification dated 27.06.2007 having been published on 05.07.2007 in the Gazette and in local newspapers on 03.07.2007 and 06.07.2007 respectively. The copy of notice relating to publication of the notification issued under Section 4(1) in the village chavadi has been produced by the petitioners at Annexure-Q. A perusal of same would clearly indicate that it is undated. The beneficiary of acquisition namely, BUDA in its statement of objections have contended that it was published in the village chavadi 45 on 03.08.2007 by relying upon the communication dated 03.08.2007 - Annexure-R2. A bare perusal of said communication does not indicate or suggest of notice having been published in the village chavadi on 03.08.2007. It only indicates that same has been published in the village chavadi and it was also served on the writ petitioners. However, it does not indicate either the date of service of notice on petitioners or the date of publishing the notice in the village chavadi. The original records also do not disclose about the date of publication of notice in the village chavadi. The final notification dated 02.08.2008 issued under Section 6(1)
- Annexure-R has been published in the Gazette on 05.08.2008.
40. The original records made available having been perused by us would does not contain either original of Annexure-R2 or the copy thereof. The original file does not even contain the note sheets, which would have atleast disclosed the date on which publication came to be made. In the absence of any positive 46 material being available on record and the fact that respondents had made two unsuccessful attempts to acquire the lands in question, we have no hesitation in arriving at a conclusion that said plea of BUDA about the substance of declaration issued under Section 4(1) had been published in the village chavadi on 03.08.2007, cannot be accepted. In fact, the State has not filed its affidavit in this regard and as such adverse inference has to be drawn against State.
41. In the light of above stated discussion and having noticed that purported publication of declaration under Section 4(1) of the Act in the village chavadi is not evidenced by any document, it has to be necessarily held that declaration issued under Section 4(1) was last published in the newspaper on 06.07.2007 and publication of final notification in the Gazette was on 05.08.2008, which was beyond one year from the date of declaration under Section 4(1) of the Act.
42. On objections being filed by petitioners to the notification issued under Section 4(1) of the Act, 47 State Government has not extended personal hearing to the petitioners to substantiate grounds urged by them in their objections, Special Land Acquisition Officer has forwarded the report along with a check memo to the appropriate Government on 31.07.2008 - Annexure-K. As could be seen from the said document, the Special Land Acquisition Officer has expressed his opinion that compensation amount will be around ` 11,30,22,000/- and the beneficiary has only deposited ` 80,73,000/- and has compared the land value of adjacent land as adjudicated by the reference Court at ` 150/- per sq. ft. apart from interest and solatium would result in the acquisition being expensive. He has forwarded the objections filed by the petitioners along with comments offered by the Commissioner - BUDA for further action being taken at the level of appropriate Government.
43. As already discussed hereinabove, the Special Land Acquisition Officer had to examine as to the tenability of objections and his opinion thereon. However, we have already recorded our finding as to 48 how the hearing contemplated under Section 5-A of the Act having been violated by the Special Land Acquisition Officer, as such we do not propose to re-state the same, but we proceed to examine further steps which the appropriate Government had to take on receipt of such report. The appropriate Government if satisfied on considering the report made under Section 5-A(2) of the Act that land is needed for a public purpose a declaration would be issued under Section 6(1) of the Act. As noticed hereinabove, the purported report of Special Land Acquisition Officer - Annexure-K did not recommend for acquisition nor objections lodged by the petitioners were dealt with. Thus, no other material was available before the State Government to apply its mind and form an opinion that acquisition was for the public purpose and objections raised thereto by the petitioners was untenable. The onus was on the appropriate Government to satisfy itself about the need for acquisition after considering the report made under Section 5-A(2) of the Act. This would assume significance in the background of declaration made by 49 the State Government, since Section 6(3) of the Act would be conclusive evidence that land is needed for a public purpose. The Hon'ble Apex Court in the case of VINOD KUMAR vs. STATE OF HARYANA reported in (2014) 3 SCC 203 has held that declaration under Section 6 of the Act has to be made only after appropriate Government is satisfied on the consideration of report, if any, made by the Collector and it has to apply its mind not only to the objections filed by the owner of land proposed to be acquired but also to the report, which is submitted by the Collector upon making further such enquiry thereon.
44. In the case of SURINDER SINGH BRAR AND OTHERS ETC. ETC. vs. UNION OF INDIA AND OTHERS reported in AIR 2012 SC (SUPP) 909 it has been held that satisfaction of appropriate Government envisaged in Section 6(1) must be preceded by consideration of the report prepared by the Collector after considering the objections filed under Section 5-A of the Act and hearing the objections, which necessarily 50 implies that Government must objectively apply its mind to the report of the Collector and objections filed by the land owners and then take a decision whether or not the land is needed for specified public purpose. It has been further held that mechanical endorsement of report of the Collector cannot be a substitute for the requirement of "application of mind by the Government" (emphasis supplied by us) but must be necessarily reflected in the record. It has been held by the Apex Court as:
"87. The proposition laid down in the aforementioned two judgments does not support the stance of the Chandigarh Administration that even though there is breach of the mandate of Section 5-A read with Section 6(1), the Court cannot, after the issue of declaration under Section 6(1), nullify the acquisition proceedings. As a matter of fact, the ratio of both the judgments is that satisfaction of the appropriate Government envisaged in Section 6(1) must be preceded by consideration of the report prepared by the Collector after considering the objections filed under Section 5-A and hearing the objectors. This necessarily implies that the Government must objectively apply its mind to the report of the Collector and the objections filed by the landowners and then take a decision whether or not the land is needed for the specified public purpose. A mechanical 51 endorsement of the report of the Collector cannot be a substitute for the requirement of application of mind by the Government which must be clearly reflected in the record."
45. On receipt of 5A report, appropriate Government by communication dated 02.08.2008 - Annexure-M had sought for clarification from the Special Land Acquisition Officer regarding sanction obtained for the Scheme, budget allocation and renewal of the Scheme. Before reply could be received from the jurisdictional Assistant Commissioner or his comments with regard to the query raised by the appropriate Government could be received, sanction is accorded on the same day i.e., on 02.08.2008 - Annexure-L and this would clearly indicate that there has been total non - application of mind by the appropriate Government before according sanction.
46. Satisfaction of the Government after consideration of the report, if any, made under Section 5-A is undoubtedly a condition precedent to a valid declaration, for, there can be no valid acquisition under 52 the Act unless the Government is satisfied that land is to be acquired or is needed for a public purpose or for a company. Sub-section (1) of Section 6 discloses that appropriate Government if satisfied that a particular land is needed for a particular public purpose or for a company, a declaration would be made "to that effect". Sub-section (2) of Section 6 makes it clear, that declaration "shall state" where such land is situate "the purpose for which it is needed", its "approximate area" and the "place". Such a declaration made under sub-section (1) and published under sub-section (2) of Section 6 would become conclusive evidence that particular land is needed for a public purpose or for a company, as the case may be. Keeping this in mind, when the facts on hand are perused, it would clearly indicate that the Special Land Acquisition Officer had only forwarded the report under Section 5-A of the Act along with his check memo to the Government on 31.07.2008. In fact, in his report he has expressed his opinion that compensation amount will be around ` 11.30 Crores and the beneficiary 53 namely, BUDA has deposited only a sum of ` 80.73 Lakhs and has further opined that in respect of similar lands the reference Court has already awarded compensation @ ` 150/- per sq. ft. and same has been affirmed by the High Court and if same is taken into consideration, the value of land proposed to be acquired including interest and solatium would be very high and beneficiary will have to bear the cost of acquisition. However, the Special Land Acquisition Officer has not expressed any opinion namely, he has not rejected the objections nor has over-ruled the same but and has only forwarded the objections filed by the land owners along with comments received from the beneficiary - BUDA by leaving open steps to be taken by the appropriate Government. Obviously, because of the said reason namely, there being no specific recommendation either to acquire the land or to drop from the acquisition proceedings and on account of several objections having been raised by the owners of land, appropriate Government by communication dated 02.08.2008 - Annexure-M had sought for information from the 54 jurisdictional Assistant Commissioner regarding deposit of 100% cost of acquisition and indicating thereunder approval under Section 6(1-A) of the Act has been accorded subject to the conditions made therein. This itself would indicate that while according the approval as contemplated under Section 6(1) of the Act, the appropriate Government to apply its mind has not considered any of the material which were available on record and which was required to be considered and thus, the onus lying on the appropriate Government has not been discharged. For this reason also, the learned Single Judge has rightly observed that acquisition proceedings is vitiated.
47. It also requires to be observed by us at the cost of repetition that on acquisition proceedings having been held as lapsed on 07.03.2002-Annexure-E, the writ petitioners had taken steps to get the land converted on 01.01.2003 and it is thereafter i.e., after four (4) years, impugned preliminary notification came 55 to be issued, by commencing third round of acquisition proceedings.
48. In fact, the acquiring authority itself by resolution dated 26.03.2001 - Annexure-B had resolved to drop the acquisition proceedings insofar as the writ petitioners lands are concerned. At this juncture itself it would be appropriate to note that in Sy.No.305 an extent of 17 acres 33 guntas was denotified on the ground of BUDA not possessing sufficient funds to meet the acquisition costs. The communication dated 26.09.2012 -Annexure-T by the Commissioner - BUDA to the Secretary - Urban Development enclosing the resolution dated 31.08.2012 - Annexure-U would disclose that dropping of acquisition proceedings has been recommended on the ground that same is not financially viable and it would result in huge loss to BUDA. It would only indicate that beneficiary itself is not interested in acquiring the land and in fact, it is financially unable to bear the costs of acquisition and other related expenditure.
56
49. It is further noticed that in respect of few other lands, which were also the subject matter of acquisition under Section 4(1) notification initially issued 07.09.1991 had been subsequently dropped the proposal to acquire those lands. The appropriate Government by notification dated 16.11.1996 - Annexure-V has dropped acquisition of land bearing Sy.No.306/1 measuring 7 acres 1 gunta, Sy.Nos.51/1 and 51/2 measuring 6 acres 18 guntas and 6 acres 35 guntas by Gazette notification dated 04.05.2000 - Annexure-W and land bearing Sy.No.305 measuring 17 acres 37 guntas by Gazette notification dated 21.03.2001 - Annexure-X. These factual aspects have not been denied either by the State or beneficiary namely, BUDA. In fact, a vague denial has been made by BUDA in its statement of objections at paragraph 12 contending that dropping of acquisition of lands is irrelevant. However, no material whatsoever has been placed either by the State or by the beneficiary that Gazette notifications - Annexures-V, W and X having been withdrawn. In fact, petitioners though have 57 specifically contended dropping of acquisition proceedings covered under the Gazette notifications - Annexures-V, W and X, neither the State nor the BUDA have taken steps to disprove this fact. As already observed hereinabove, an adverse inference has to be drawn against the State for wantonly not producing the records relating to acquisition proceedings. It would clearly indicate that lands which came to be dropped are adjacent, abutting and in the vicinity of land of writ petitioners which is to an extent of 32 acres.
50. The State when exercising the power of eminent domain were to adopt the policy of excluding few lands from acquisition and/or dropping the proposal to acquire the lands of few select persons, such action of the State would not only be arbitrary but also discriminatory. Classification amongst the land owners should be without any discrimination. If the State fails to support its action on the touchstone of above principle, then necessarily its action has to be held as arbitrary and discriminatory. The Scheme dated 24.07.1991 - Annexure-A proposed by the State for 58 acquiring 191 acres was for the purpose of implementing the scheme for formation of 2282 sites, which included providing sites to cross-section of citizens in the society like, economically weaker section, Schedule Caste, Schedule Tribe, physically handicapped, ex-servicemen, general category, etc. Same being the purpose of acquisition, it would be very difficult to accept the stand of the State for dropping acquisition proceedings in respect of few land owners selectively from acquisition, that too, without there being any supporting or justifiable reason being assigned. At the cost of repetition we will have to state that no material whatsoever has been placed before the Court to establish the fact as to why 37 acres of land has been dropped from acquisition proceedings. This assumes significance in the light of a specific contention having been raised by the petitioners in the writ petitions and they having produced the Gazette notification - Annexures-V, W and X. There is no reason assigned by the Special Land Acquisition Officer, as to why the prayer of the writ petitioners to drop their lands 59 from acquisition having not been considered while examining the objections filed and same being adjudicated in an enquiry conducted under Section 5-A of the Act. In that view of the matter, we are of considered view that contention of petitioners deserves to be accepted and it has been rightly accepted by the learned Single Judge.
51. The learned Single Judge has taken note of the fact that BUDA had resolved that acquisition of the land in question would not be feasible or viable on account of high costs and the resolution passed by BUDA in that regard is neither set aside nor rejected by the appropriate Government. That apart, it has also been noticed that BUDA has consistently expressed its inability to meet the financial burden and thereby has virtually given-up the lands in question from being acquired for implementing the Scheme.
52. Thus, having regard to the aforestated discussion and the fact that several acres of land which were also the subject matter of acquisition by including 60 them in 4(1) notification like, Sy.No.306 and same having been dropped would clearly indicate that writ petitioners have been singled out though they stand on same footing and thereby the action of the appropriate Government is hit by Article 14 of Constitution of India. Hence, the order of the learned Single Judge allowing the writ petitions cannot be found fault with.
53. In the light of aforestated discussion and reasons recorded hereinabove, we proceed to pass the following:
JUDGMENT
(i) Writ appeal is hereby dismissed.
Order dated 21.11.2012 passed in W.P.No.40516/2008 (LA-BDA) is hereby affirmed.
(iii) No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE DR