Karnataka High Court
Sri Pachappa S/O K Muniswamy vs The State Of Karnataka on 6 December, 2013
Equivalent citations: 2014 AIR CC 1019 (KAR), 2014 (1) AIR KANT HCR 561 (2014) 2 KCCR 1067, (2014) 2 KCCR 1067
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
®
DATED THIS THE 06TH DAY OF DECEMBER 2013
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.24113 OF 2012 (LA-KHB)
CONNECTED WITH
WRIT PETITION Nos.24101-24102 OF 2012 AND
24912-24913 OF 2012 (LA-KHB)
WRIT PETITION Nos. 24111 OF 2012 AND
24914-24918 OF 2012 (LA-KHB)
WRIT PETITION No.24112 OF 2012 (LA-KHB)
IN WRIT PETITION No.24113/ 2012
BETWEEN:
Sri. Pachappa,
Son of K. Muniswamy,
Aged about 43 years,
Residing at Nayanahalli Village,
Kasaba Hobli, Anekal Taluk,
Bangalore District - 560 106.
...PETITIONER
(By Shri. G.V. Shashi Kumar, Advocate )
2
AND:
1. The State of Karnataka,
Represented by its Secretary,
Revenue Department,
Vidhana Soudha,
Bangalore - 560 001.
2. The Karnataka Housing
Board, represented by its
Commissioner,
Cauvery Bhavan,
Bangalore - 560 001.
3. The Special Land Acquisition Officer,
Karnataka Housing Board,
Cauvery Bhavan,
Bangalore - 560 001.
...RESPONDENTS
(By Shri. R.B. Satyanarayana Singh, Government Pleader for
Respondent No.1
Shri. R. Srinivasa, Advocate for Respondent Nos.2 and 3 )
*****
This Writ Petition filed under Articles 226 and 227 of the
Constitution of India, praying to quash the preliminary
notification dated 26.7.2010 in respect of schedule lands, issued
under Section 4(1) of Land Acquisition Act Annexure-C and final
notification dated 28.1.2012, published in "Kannada Praba" News
Paper on 3.5.2012 at Annexure-E, issued by respondent No.3.
3
IN WRIT PETITION Nos.24101-24102/2012
AND 24912-24913/2013
BETWEEN:
1. Sri. Kempanna,
Son of Late Kempaiah,
Aged about 73 years,
2. Sri. Chikka Muniswamy,
Son of Late Kempaiah,
Aged about 68 years,
Both are residing at
Nayanahalli Village,
Kasaba Hobli, Anekal Taluk,
Bangalore District - 560 106. ...PETITIONERS
(By Shri. G.V. Shashi Kumar, Advocate )
AND:
1. The State of Karnataka,
Represented by its Secretary,
Revenue Department,
Vidhana Soudha,
Bangalore - 560 001.
2. The Karnataka Housing
Board, represented by its
Commissioner,
Cauvery Bhavan,
Bangalore - 560 001.
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3. The Special Land Acquisition Officer,
Karnataka Housing Board,
Cauvery Bhavan,
Bangalore - 560 001.
...RESPONDENTS
(By Shri. R.B. Satyanarayana Singh, Government Pleader for
Respondent No.1
Shri. H.M. Manjunath, Advocate for Respondent Nos.2 and 3 )
These Writ Petitions filed under Articles 226 and 227 of
the Constitution of India, praying to quash the preliminary
notification dated 26.7.2010 published on 9.9.2010 in Kannada
Prabha, in respect of schedule lands, issued under Section 4(1) of
Land Acquisition Act Annexure-M and final notification dated
28.1.2012, published in "Kannada Praba" News Paper on 3.5.2012
at Annexure-O, in respect of schedule lands, issued by Special
Land Acquisition Office, K.H.B. and respondent No.1
respectively.
IN WRIT PETITOIN Nos.24111
AND 24914-24918/2012
BETWEEN:
Sri. Choodappa,
Son of Late Kempaiah,
Aged about 76 years,
Residing at Nayanahalli Village,
Kasaba Hobli, Anekal Taluk,
Bangalore District - 560 106. ...PETITIONER
(By Shri. G.V. Shashi Kumar, Advocate )
5
AND:
1. The State of Karnataka,
Represented by its Secretary,
Revenue Department,
Vidhana Soudha,
Bangalore - 560 001.
2. The Karnataka Housing
Board, represented by its
Commissioner,
Cauvery Bhavan,
Bangalore - 560 001.
3. The Special Land Acquisition Officer,
Karnataka Housing Board,
Cauvery Bhavan,
Bangalore - 560 001.
...RESPONDENTS
(By Shri. R.B. Satyanarayana Singh, Government Pleader for
Respondent No.1
Shri. S.N. Ashwathanarayana, Advocate for Respondent Nos.2
and 3 )
These Writ Petitions filed under Articles 226 and 227 of
the Constitution of India, praying to quash the preliminary
notification dated 26.7.2010 in respect of schedule lands, issued
under Section 4(1) of Land Acquisition Act Annexure-N and final
notification dated 28.1.2012, published in "Kannada Praba" News
Paper on 3.5.2012 at Annexure-P, issued by respondent No.3.
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IN WRIT PETITION No.24112/2012
BETWEEN:
Sri. Shivalinga Prakash @
Jothappa,
Son of Munishamappa,
Aged about 57 years,
Residing at Nayanahalli Village,
Kasaba Hobli, Anekal Taluk,
Bangalore District - 560 106. ...PETITIONER
(By Shri. G.V. Shashi Kumar, Advocate )
AND:
1. The State of Karnataka,
Represented by its Secretary,
Revenue Department,
Vidhana Soudha,
Bangalore - 560 001.
2. The Karnataka Housing
Board, represented by its
Commissioner,
Cauvery Bhavan,
Bangalore - 560 001.
3. The Special Land Acquisition Officer,
Karnataka Housing Board,
Cauvery Bhavan,
Bangalore - 560 001.
...RESPONDENTS
7
(By Shri. R.B. Satyanarayana Singh, Government Pleader for
Respondent No.1
Shri. R. Srinivasa, Advocate for Respondent Nos.2 and 3 )
This Writ Petitions filed under Articles 226 and 227 of the
Constitution of India, praying to quash the preliminary
notification dated 26.7.2010 published on 9.9.2010 in Kannada
Prabha, in respect of schedule lands, issued under Section 4(1) of
Land Acquisition Act Annexure-D and final notification dated
28.1.2012, in respect of subject Land, published in "Kannada
Praba" News Paper on 3.5.2012 at Annexure-F, issued by
respondent No.3.
These petitions, having been heard and reserved on
27.11.2013 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
ORDER
These petitions are heard and disposed of by this common order as the legal issues canvassed are common to the petitions. Re. WP 24113/2012
The facts as stated are as follows . The petitioner is said to be a member of a joint Hindu family. And he is the owner of land bearing Survey No.40/2, measuring 1 acre and 7 guntas of Lingapura village, Anekal Taluk, Bangalore Urban District. The 8 petitioner is said to have acquired the same under a sale deed dated 1.8.2007. It is claimed to be well developed garden land and is close to the gramatana limits.
It transpires that the subject lands and other lands in the vicinity were notified for acquisition under the provisions of the Land Acquisition Act, 1894 (Hereinafter referred to as the 'LA Act, for brevity) and a preliminary notification under Section 4(1) of the LA Act, dated 26.7.2010, was said to have been issued. The petitioner and his family members are said to have filed objections under Section 5 A of the LA Act, seeking that the lands be exempted from the acquisition. However, a final declaration is said to have been issued on 28.1.2012. It is the case of the petitioner that though several lands which are similarly situated have been deleted or excluded from the acquisition proceedings, notwithstanding the objections by the petitioner there is discrimination in proceeding against the lands of the petitioner.
It is the further case of the petitioner that the respondents had mentioned in the preliminary notification that the lands are 9 required for the purpose of construction of houses by the Karnataka Housing Board, the second respondent herein. The same is reiterated in the final declaration. However, the report submitted under Section 5A of the LA Act does not make a mention of any Scheme or the purpose of acquisition. It is contended that the respondents had neither disclosed nor published any Scheme formulated under the Karnataka Housing Board Act, 1962 (Hereinafter referred to as the 'KHB Act', for brevity).
It is contended that there is no scheme accorded as required under Section 24(2) of the KHB Act.
It is contended that totally 223 acres and 23 guntas of lands were notified for acquisition in the preliminary notification. However the final notification is issued only in respect of 110 acres 18 guntas. The reasoning of the third respondent for deletion of the said extent is arbitrary and unjustifiable. Further, out of the lands notified for acquisition, under the preliminary notification of Lingapura Village, an extent of 41 acres and 2 10 guntas of Government Karab was notified, however in the final notification only an extent of 21 acres 24 guntas was notified. The reasons for the same are not forth coming in the report of the third respondent.
The preliminary notification as per Annexure-C, under the provisions of LA Act, was in the month of July 2010 and contrary to the provisions of proviso under section 6(1) of LA Act, the final notification was issued in the month of January 2012 that is after a lapse of one year, from the date of preliminary notification and hence the final notification as per Annexure-E is liable to be quashed.
The respondents failed to consider the proposal given by the petitioners in the light of a government order bearing No.DOH/124/KHB/2001 dated 3.9.2012, which was a scheme contemplating a joint venture, involving KHB and private parties. The petitioners had sought for this opportunity, of a joint venture with the first respondent as per the guidelines issued by the second respondent, to no avail.
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It is further contended that the respondents have dropped the lands bearing Survey Nos.40/4, 5, 6, 7, 8A, 8B, 9, 10, 11, 12, 13, 13A and 13B from the acquisition proceedings on the ground that the said lands are converted and that the land owners had entered into a joint venture with one M/s. Sanskruthi Builders Private Limited to develop the said lands.
The respondents 2 and 3 in their statement of objections have contended that the acquisition of the lands is always subject to Section 24 of the KHB Act. The petitioner admittedly having participated in the enquiry proceedings and the objections of the petitioner having been considered it is not open to the petitioner to contend that there has been no consideration of his case. The claim of the petitioner that other land owners have been treated with partiality in their lands having been given up from the acquisition proceedings- is an incorrect statement. It is claimed that those lands were found to have been converted for residential 12 use prior to the initiation of acquisition proceedings and hence seek dismissal of the petition.
Re.WP 24101/2012
The petitioners are said to be members of a Hindu joint family, who are owners in possession of lands bearing Survey Nos.51 and 41/1 apart from other lands, of which the petitioners had sought for conversion from agricultural use to residential, before the competent authority. The same had been accorded as on 27.7.2010. The petitioners had applied for the sanction of a residential layout plan. At that point of time the lands were notified under the very notification referred to in the first of these petitions. The petitioners are said to have filed their objections to the same. The petitioners are questioning the acquisition proceedings on identical grounds as raised in the first of these petitions.
It is contended by the respondents that the conversion order relied upon by the petitioners is invalid as there is no change of 13 land use preceding the conversion order and the very officer who had passed the order of conversion was facing a departmental enquiry, as he was found to have issued many such orders which were illegal and non-est. The respondents have reiterated the defence raised in the earlier petition.
Re. WP 24111/2012
The petitioner is a member of Hindu joint family. The petitioner and other joint family members are the owners of land bearing Survey Nos.34/1 measuring 1 acre 15 guntas, 34/2 measuring 1 acre 7, 40/1 measuring 2 acres guntas, and 116/1 measuring 36 guntas, all converted for residential purposes, as per conversion order dated 29.09.2010 and land bearing Survey Nos.116/3 measuring 36 guntas, 116/5A measuring 11 guntas and 116/5B measuring 10 guntas, all situated at Lingapura village, Kasaba Hobli, Anekal Taluk, Bangalore Urban District. 14
It is contended that the joint family of the petitioner consisted of more than 50 members and their only source of income was derived out of the aforesaid lands.
The said properties were abutting a private layout approved by the Bangalore Metropolitan Region Development Authority. The petitioner and other land owners had applied for conversion of the lands along with other lands, namely, lands bearing Survey Nos.45/1, 45/2, 45/3, 45/4, 45/5, 33/4 and 43/3 of Lingapur Village, with common boundaries, totally measuring 8 acres 9 guntas, on 03.09.2010 and land bearing Survey No.116/1, measuring 36 guntas on 04.09.2010, for conversion, from agricultural to non-agricultural residential purpose. The Deputy Commissioner after conducting an enquiry, is said to have accorded permission for conversion, vide order dated 29.09.2010.
It is further contended that the surrounding properties of the schedule lands are already converted for residential purpose and owners of respective properties have also formed residential 15 layout after securing approval from the Planning Authority and have also sold sites to the prospective purchasers, who are in possession and enjoyment of the sites.
The subject properties and the adjoining lands were notified for acquisition by the second respondent, as per preliminary notification under Section 4(1) of LA Act dated 26.07.2010.
It is claimed that the petitioner and other family members had filed objections under Section 5A of LA Act on 8.10.2010, narrating the above said facts and had sought for dropping the proceedings and deletion of the subject lands from acquisition.
It is contended that the respondent without considering the objections filed by the petitioner, had issued a final notification dated 28.01.2012, and it is pointed out that lands which were adjacent to the subject properties were deleted from the acquisition proceedings.
It is contended that nothing is said about the purpose for which the acquisition is made except stating that the lands are 16 required for a public purpose i.e., for the second respondent's Housing Scheme.
It is contended that the third respondent had issued a notice under Section 5 of the LA Act, and the petitioners had appeared before the enquiry officer and filed their statement and thereafter the petitioners were informed that the third respondent would submit a report under Section 5A of the LA Act.
It is further contended that the respondents have issued a final notification under Section 6 of the LA Act, in a mechanical manner, without application of mind and further had failed to consider the objection statement filed. That the notification issued is contrary to law and hence the petition. Re. WP 24112/2012
The petitioner is said to be a member of a Joint Hindu family. And that they are the owners in possession and enjoyment of the land bearing Sy.No.35/1 measuring 1 acre 5 guntas, 17 converted for residential purpose, vide conversion order dated 29.09.2010, situated at Lingapura Village, Kasaba Hobli, Anekal Taluk, Bangalore Urban District. The same was said to be acquired under a partition deed dated 21.04.2004.
The property is said to be next to a private layout approved by Bangalore Metropolitan Region Development Authority. The petitioner and other land owners had applied for conversion of schedule land along with other lands i.e. Sy.No.29/2, 29/3, 29/4, 30, 31, 32/1, 32/2, 32/3 and 32/4 of Lingapur Village, in all measuring 7 acres 29 guntas with common boundaries on 22.08.2010, for conversion from agricultural to non agricultural/ residential purposes, with a view to develop the lands by forming a layout. The Deputy Commissioner is said to have granted permission for conversion, vide order dated 29.09.2010.
Further, the properties all around the subject lands are already converted for residential purposes and the owners of the respective properties had already formed residential layouts after 18 securing approval from the competent authority and had also sold sites to the prospective purchasers, who were said to be in possession and enjoyment thereof.
The subject property and the other lands were notified for acquisition by the second respondent, as per preliminary notification under Section 4(1) of LA Act, dated 26.07.2010.
The petitioner along with his family members had filed objections under Section 5A of Land Acquisition Act, to the third respondent on 08.10.2010, narrating the above said facts and further had sought for dropping of the proceedings and deletion of the subject land from acquisition.
2. It is contended that the respondent without considering the objections filed by the petitioners, had issued a final notification dated 28.01.2012, and while doing so, had excluded several lands, which were adjacent to the subject property from the acquisition proceedings.
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It is further contended that nothing is said about the purpose of acquisition, except in so far as stating that the lands are required for a public purpose, namely for the second respondent's Housing Scheme.
It is contended that the third respondent had issued a notice under Section 5A of the LA Act and the petitioners had appeared before the enquiry officer and thereafter the petitioners were informed that the third respondent would submit a report under Section 5A of the LA Act.
It is contended that the respondents have issued a final notification under Section 6(1) of the LA Act in a mechanical manner, without application of mind and further have failed to consider the objection statement filed. The notification issued is contrary to law, and hence, the writ petition.
3. The learned counsel for the petitioners Shri G.V.Shashi Kumar, seeks to contend that the primary ground on which the 20 entire acquisition proceedings stand vitiated is the absence of a Scheme contemplated and framed under the KHB Act, preceding the acquisition proceedings, which is mandatory, apart from the requirement of the Housing Board obtaining the sanction of the State government before proceeding with the execution of any housing Scheme.
For the above proposition the learned counsel seeks to place reliance on a decision of this court in Chickrangaiah v. State of Karnataka, 1996(7) Kar. L. J. 846, which was rendered following the decision of the apex court in the case of State of Tamil Nadu v. A . Mohammed Yousef AIR 1992 SC 1827.
In Chickrangaiah's case a learned single judge of this court has opined as follows, in so far as the above proposition canvassed is concerned.
"5. The second point raised by the learned Counsel for the petitioner is that under the scheme of the provisions and under the Karnataka Housing Board Act, land acquisition proceedings can be 21 initiated only after the Housing Scheme is sanctioned by the Government. Chapter III of the Karnataka Housing Board Act, 1962, provides for Housing Schemes and Land Development Schemes. Chapter III provides for three types of schemes - viz., Housing Scheme, Land Development Scheme and Annual Housing Programme and Land Development Programme. We are concerned in this case only with the Housing Scheme which is dealt with, under Section 18 of the Act. Section 18 of the Karnataka Housing Board Act provides, among other things, for acquisition by purchase, exchange or otherwise of any property necessary for or affected by the execution of the scheme. Relevant portion of Section 18 is as follows:
"18. MATTER TO BE PROVIDED FOR BY HOUSING SCHEMES-
Notwithstanding anything contained in any other law for the time being in force, a Housing scheme may provide for all or any of the following matters, namely:-
(a) the acquisition by purchase, exchange of otherwise of any property necessary for or affected by the execution of the scheme;"
6. Section 19 of the said Act provides for the preparation and submission of Annual Housing programme and Land Development Programme and under Section 20 of the Act, the State 22 Government may sanction the programme, the budget and the schedule of the staff of officers and servants. Section 24 of the Act is to the following effect:
"24. SANCTIONED HOUSING SCHEMES (AND LAND DEVELOPMENT SCHEMES) TO BE EXECUTED:-
(1) After the programme has been sanctioned and published by the State Government under Sections 20 and 21, the Board shall, subject to the provisions of Section 23, proceed to execute the housing scheme, land development scheme or labour housing scheme included in the programme."
(2) The Board shall not execute any housing schemes, land development schemes and labour housing schemes unless the same has been sanctioned by the State Government."
Sub-clause (2) of Section 24 is clear that the Board shall not execute any housing schemes, land development schemes and labour housing schemes unless the same has been sanctioned by the State Government. It is clear from Section 18 that the acquisition of any property necessary for or affected by the execution of the scheme has to be provided for under the scheme, and only by execution of the scheme, land can be acquired. Thus on a reading of Sections 18, 19, 20 and 24 of the Act, it is clear that any land can be acquired for the 23 purpose of a housing scheme only after the same has been sanctioned by the State Government. It is clear that acquisition of land for the purpose, of the scheme is one of the matters to be provided in housing scheme and only by executing a scheme, lands can be acquired, which is possible, only after the scheme is sanctioned by the Government, Section 33(2) of the Act provides as follows:
"33(2): The Board may also take steps for the compulsory acquisition of any land or any interest therein required for the execution of a housing scheme or land development scheme in the manner provided in the Land Acquisition Act, 1894, as modified by this Act and the acquisition of any land or any interest therein for the purposes of this Act shall be deemed to be acquisition for a public purpose with the meaning of the Land Acquisition Act, 1894."
The aforesaid Section also authorises the Board to take steps for compulsory acquisition of any land which is required for the execution of a housing scheme. It is clear from the above Section that the land may be acquired for the execution of a scheme. A scheme can be executed after the same is sanctioned by the Government under Section 24(2) of the Act. Acquisition of the land under the Land Acquisition Act is one of the steps to be taken for execution of the scheme and unless and until there is a sanctioned scheme, it cannot be executed by 24 acquisition of the lands. As stated earlier, Section 24(2) prohibits the execution of any housing scheme without the same being sanctioned by the State Government. In this case, admittedly, no housing scheme has been sanctioned and accordingly, the respondents have no jurisdiction to acquire the land before the scheme is sanctioned by the Government. On going through the Sections of the Karnataka Housing Board Act, 1962, the case of the Respondents that the scheme has to be framed and sanctioned only after the acquisition of the land cannot be accepted.
7. From the foregoing provisions of the Act, referred to above, it is clear that the acquisition of the land has to be preceded by a sanctioned scheme and the case of the respondents that the scheme has to follow the Land Acquisition proceedings cannot be accepted. Construing more or less analogous provisions of the Madras State Housing Board Act, 1961, the Supreme Court in State of Tamil Nadu and Another v. A. Mohammed Yousef And others, has also taken the same view. In that view of the matter, I hold that the Land Acquisition Proceedings initiated by the Respondents are against the provisions of the Karnataka Housing Board Act, 1962 and accordingly, they are liable to be quashed."
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Incidentally, in Mohammed Yousef's case by the Apex Court, while considering the question whether acquisition proceedings can be initiated only after the framing of the proposed Scheme and not earlier, with reference to the acquisition of land for construction of houses by the Tamil Nadu Housing Board, constituted under the Madras State Housing Board Act, 1961, while repelling the contention of the State that if the acquisition proceedings is not completed by the time the Scheme is ready, it would result in undue delay, it was held by the Apex Court thus :
" The fallacy in the argument is that it assumes that the acquisition of the land is not a part of the execution of the Scheme itself. As has been indicated earlier the position is otherwise. Since the acquisition is included in the Scheme the process of execution of the Scheme starts immediately when steps for acquisition are taken. "
The above view was doubted by another bench of the apex court and was referred to a three Judge Bench in the case of State of Tamil Nadu v. L. Krishnan, AIR 1996 SC 497. It was clarified 26 therein by the three Judge Bench that Mohammed Yousef's case was decided without the earlier Constitution Bench decisions of the Apex Court being brought to the notice of the Bench that decided it. The Court briefly referred to the same :
"27. In Arnold Rodricks v. State of Maharashtra, (1966) 3 SCR 885: (AIR 1966 SC 1788), the Constitution Bench dealt with the question whether the statement in the notification under Section 4 that the land was required for "development and utilization of the said land as an industrial and residential areas" cannot be said to be a public purpose within the meaning of Section 4 of the Land Acquisition Act. The Court held, relying upon the decisions of this Court in Babu Barkya Thakur v. State of Bombay (1961) 1 SCR 128 at 137:
(AIR 1960 SC 1203 at p.1207) and Pandit Jhandu Lal v. State of Punjab, (1961) 2 SCR 459: (AIR 1961 SC 343) as well as the statement in the counter- affidavit filed on behalf of the State Government - that the purpose stated in the notification is indeed a public purpose. The Constitution Bench pointed out that in Babu Barkya Thakur, this Court had relied upon the decision in State of Bombay v. Bhanji Munji, (1955) 1 SCR 777: (AIR 1955 SC 41) to the effect that "providing housing accommodation to the 27 homeless is a public purpose (and that) where a larger section of the community is concerned, its welfare is a matter of public concern". The counter- affidavit filed on behalf of the Government explained that the pressure of housing in Bombay is acute and that there was any amount of need for fresh housing. The Court (majority) observed. " in our view, the welfare of a large proportion of persons living in Bombay is a matter of public concern and the notifications served to enhance the welfare of this section of the community and this is public purpose"."
Further, after drawing reference to another Constitution Bench decision , it was clarified as to when the principle and ratio in Mohammed Yousef's case would be attracted .
"30. In Aflatoon v. Lt. Governor of Delhi, (1975)1 SCR 802: (AIR 1974 SC 2077), another Constitution dealt with a similar contention; viz., that before publishing the notification under Section 4, the Government had not declared any area in Delhi as a development area under Section 12(1) of the Delhi Development Act nor was there a Master Plan drawn up in accordance with Section 7 of that Act. The notification under Section 4 was attacked 28 on that basis. It was argued that under Section 12(3) of the Delhi Development Act, no development of land can be undertaken or carried out except as provided in that sub-section. This argument was negatived by the Constitution Bench holding that (at p. 2084 of AIR):
"The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was no inhibition in acquiring land for planned development of Delhi under the Act before the master Plan was ready (see the decision in Patna Improvement Trust v. Smt. Lakshmi Devi, (1963 Suppl. (2) SCR 812): (AIR 1963 SC 1077). In other words, the fact that actual development is permissible in an area other than a development area with the approval or sanction of the local authority did not preclude the Central Government from acquiring the land for planned 29 development under the Act. Section 12 is concerned only with the planned development. I has nothing to do with acquisition of property; acquisition generally precedes development. For planned development in an area other than a development area it is only necessary to obtain the sanction or approval of the local authority as provided in S. 12(3). The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority."
31. It is significant to notice that Section 12 of the Delhi Development Act, 1957 provided for declaration of any area as development area by the Central Government and it further provided that except as otherwise provided by the said Act, the Delhi Development Authority shall not undertake or carry out any development of land in any area which is not a development area. Sub-section (3) of Section 12, however, provided that after the commencement of the said Act, no development of land shall be undertaken or 30 carried out in any area by anyone unless (i) where that area is a development area, permission for such development has been obtained in writing from the authority in accordance with the provisions of the Act and (ii) where the area is an area other than a development area, approval of the local auth-ority or other concerned authority is obtained according to law. Section 15 of the said Act provided for acquisition of any land required for the purpose of development under the Act.
32. In our opinion, the observations quoted and emphasised hereinabove, and the broad similarity between the provisions of the Delhi Act and the Tamil Nadu Housing Board Act, establish that the acquisition of the land is not dependent upon the preparation and approval of a scheme under Sections 37 to 56 and that the Government's power of acquisition extends to other purposes of the Board and the Housing Board Act referred to in Sections 35 and 36. Moreover, under Tamil Nadu Housing Board too, there is no inhibition against acquisition of land for the purpose 31 of the Board except in accordance with and as a part of the scheme.
33. For all the above reasons, we find it difficult to read the holding in Mohammed Yousef as saying that in no event can the land be acquired for the purpose of the Act/Board unless a final and effective scheme is framed by the Housing- Board under the provisions of Sections 37 to
56. The said limitation applies only where the land is sought to be acquired avowedly for the purpose of execution of a housing or improvement scheme prepared by the Housing Board under Chapter-VII of the Tamil Nadu Housing Board Act. In other words, unless the notification under Section 4 of the Land Acquisition Act expressly states that land proposed to be acquired is required for executing a housing or improvement scheme (i.e., a final and effective scheme) framed by the Housing Board under the provisions of the Tamil Nadu Housing Board Act, the principle and ratio of Mohammed Yousef is not attracted*. Mere statement in the notification that land is required for the purpose of the Housing Board would not 32 by itself attract the said principle and ratio. In the instant appeals, the notifications do not even state that the land proposed to be acquired is meant for the purpose of the Housing Board."
(Emphasis supplied) Reliance is also placed on the decision in the case of Devaraja and others v. The State of Karnataka, WP 9593/2007 and connected cases, dated 29.5.2012. In the said matters, a learned single judge of this court, while considering the question whether a Scheme should be prepared and finalized before issuance of a preliminary notification under Section 4(1) of the LA Act and a final declaration under Section 6(1) of the LA Act, for acquisition of properties in implementing a project of the Karnataka Housing Board, under the provisions of the KHB Act, has held that a harmonious reading of Sections 17 to 24 and Section 32 of the said Act would indicate that the Housing Board cannot execute a housing scheme prepared and finalized by itself 33 and that the same has to be sanctioned and approved by the State government.
Further, placing reliance on the decision in L.Krishnan's case supra, it was held thus :-
"9. In the matter on hand also, as aforementioned, the Housing Board is entrusted with two duties, viz., first execution of its own housing schemes, i.e., the housing and development schemes formed by the Housing Board, secondly, execution of projects formed and entrusted by the State Government. If the land to be acquired is avowedly for the purpose of execution of housing schemes/land developments schemes conceived by the Housing Board, only then the final and effective scheme is must. In case of the acquisition of the land by the Housing Board for the purpose of implementing the project conceived by the State Government, then the effective and final housing scheme is not necessary in view of specific provision in that regard i.e. Section-32 of the KHB Act.
Having regard to the entire scheme of the Karnataka Housing Board Act in general and homogeneous reading of Sections 17 to 24 read with Section 32 and 33 in particular, it is clear that the 34 effective and final scheme which is approved and sanctioned by the State Government is very much necessary for implementing such programes/schemes conceived and framed by the Housing Board. The acquisition notifications in question clearly reveal that lands are proposed to be acquired for the purpose of execution of the housing scheme of the Housing Board. It is also not disputed by the Housing Board that the acquisition in question is being made for the purpose of implementing/executing the project conceived by the Karnataka Housing Board, but not conceived by the State Government. In view of the same, the framing, finalizing and sanctioning of the scheme is a condition precedent for going ahead with the acquisition. But the records maintained by the Housing Board do not any where reveal that the housing scheme is finalized and sanctioned by the State Government as required under the provisions of Sections 18 to 24 of the KHB Act. A proceeding under L.A. Act r/w. Section 33(2) of KHB Act can be commenced only after framing and sanctioning of the scheme, for which the land is to be acquired. The provisions of KHB Act particularly Section 18(a) and Section 24 clarify that the acquisition of lands for execution of the scheme by the Housing Board has to be part of the scheme framed and will start only after finalization of scheme."35
4. On the other hand, the learned counsel for the respondent KHB, would contend that the reliance sought to be placed on the decisions in Mohammed Yousef's case, and as further explained in L.Krishnan's case, to contend that there ought to be a Scheme framed, which is duly approved by the State government, prior to the commencement of the acquisition proceedings under the LA Act, is neither relevant nor applicable in the context of the KHB Act. The above decisions of the apex court was with reference to the Madras State Housing Board Act, 1961 (Hereinafter referred to as the 'MSHB Act', for brevity) and the provisions of the said Act and that of the KHB Act are significantly in variance. The learned counsel would draw attention to the text of the MSHB Act, to highlight the radical difference in matter of detail and difference in procedure, particularly with reference to Chapter III of the KHB Act corresponding to Chapter VII of the MSHB Act, providing for the framing of a Housing Scheme and its significance in relation to the stage of the acquisition proceedings. 36 It is pointed out that a comparative list of the Section headings under the relevant Chapters of the two Acts, (which are reproduced hereunder) is sufficient to demonstrate the difference :
KHB ACT MSHB ACT
Chapter III Chapter VII
Housing Schemes and Land Housing or Improvement scheme
Development Schemes
17. Duty of Board to undertake 35. Power of the Board to
housing schemes and land undertake housing or improvement
development schemes scheme and incur expenditure.
18. Matters to be provided for by 36. Power of Government to
housing schemes. transfer any land belonging to or
vested in them or acquired under
Madras Act XI of 1954 to the
Board.
18-A. Matters to be provided for by 37. Housing or improvement Land Development Schemes. scheme when to be framed by the Board.
19. Preparation and submission of 38. Board may agree or refuse to annual housing programme and land frame and execute a housing or development programme budget and improvement scheme. establishment schedule.
20.Sanction to programme, budget 39. Matters to be provided by and establishment schedule housing or improvement schemes.
21.Publication of sanctioned 40. Types of housing or
programme improvement schemes.
22.Supplementary programme and 41.House accommodation scheme
budget
37
KHB ACT MSHB ACT
CHAPTER -III CHAPTER VII
23.Variation of programme by 42. Rebuilding scheme Board after it is sanctioned.
24. Sanctioned housing schemes 43.Rehousing or rehabilitation and land development schemes] to scheme be executed.
25. Transfer to the Board for 44. City or town or village purposes of housing scheme or land expansion scheme development scheme of land vested in a corporation, a municipal council or a mandal panchayat. 45. Street scheme
26. Compensation in respect of land vested in the Board. 46.Deferred street scheme
27. Power of Board to turn or close public street vested in it. 47. Land Development scheme
28. Reference to Tribunal in case of dispute under Section 26 or Section 48.General Improvement scheme
27.
49.Preparation, publication and
29.................. transmission of notice as to housing or improvement schemes and supply
30. Other duties of the Board. of documents to applicants.
31. Reconstitution of plots. 50. Transmission to the Board of representation by the concerned
32. Schemes entrusted to Board by local authority as to housing or Government, etc. improvement scheme.
32-A. Board and the Housing 51. Notice regarding proposal to Commissioner to exercise powers recover betterment fee. and functions under the Karnataka Acts 22 of 1964, 14 of 1977 and 20 52. Furnishing of copies or extracts of 1985 from the assessment book of the local authority.
53. Abandonment, modification or sanction of a housing or improvement scheme
54. Publication of sanction of housing or improvement scheme 38 MSHB ACT KHB ACT CHAPTER - VII CHAPTER - III
55. The Board to execute housing or improvement schemes soon after sanction.
56. Alteration of a housing or improvement scheme after sanction.
57. Transfer to Board for purposes of improvement scheme of building or land vested in local authority.
58. Transfer of private street or square to Board for purpose of housing or improvement scheme.
59. Bar to application to certain laws of a local authority regarding closure.
60. Repairs of street vested in the Board.
61. Transferring streets laid out or altered and open spaces provided by the Board under a housing or an improvement scheme.
62. Prevention or restriction of traffic in street vested in the Board, during progress of work.
63. Provision of facilities when work is executed by the Board in public streets vested in it.
64. Power of the Board to turn or close public street or square vested in it.
65. Power of the Board to retain lanes not meant for vehicular traffic.
66. Other duties of the Board.
67. Supervision and centage charges 39 KHB ACT MSHB ACT CHAPTER - III CHAPTER - VII
68. Power of Government to call for the records of the Board and to modify, annual, etc., of housing or improvement scheme.
69. Power to exempt
5. From a plain comparison of the above provisions, it is contended that it would not be a correct proposition to hold that the decision in L.Krishnan, could be pressed into service to support the argument of the other side. For the same reason, it is contended that the decision of the learned single judge in the above referred order in Devaraja's case does not also lay down the correct law. The learned counsel for the respondents would further contend that another learned single judge in the case of M. Nagaraju v. Government of Karnataka, WP 18596/2006 and connected cases, dated 6.2.2009 had laid down, that from a reading of the provisions of the KHB Act, it is not evident that a Scheme, duly approved by the State Government, should be in 40 place before the lands are notified for acquisition. And the said view is taken after due consideration of L.Krishnan's case. It is also pointed out that the decision in Nagaraju's case does not appear to have been brought to the notice of the learned single judge deciding Devaraja's case. It is also contended that the decision in Nagaraju's case was subject matter of challenge in an appeal in WA 1244-45/2009 and the same has been dismissed, thereby affirming the view of the learned single judge. The said view is hence binding on this bench. In addition it is also stated that the decision in Devaraja's case is also challenged in appeal and the Division bench has stayed the operation of the order. Therefore, the learned counsel would submit that the matters be dismissed in limine.
6. The learned counsel for the petitioners, by way of reply, would point out that even assuming the decisions of the apex court in Mohammed Yousef and L.Krishnan were with reference to the provisions of the MSHB Act, it would still be a condition 41 precedent that there be a Scheme duly approved by the State Government for the purposes of acquisition of land to implement the same through the KHB.
It is pointed out that the provision of land for carrying out a housing Scheme by such a body as the KHB is a public purpose. And in defining the expression "public purpose" under Section 3(f) of the LA Act, clause (vi) provides thus :-
"(vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government, or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;"
It is further pointed out that Sub-section (4) of Section 3 of the KHB Act lays down thus :
42
"(4) For the purpose of this Act and the Land Acquisition Act, 1894, the Board shall be deemed to be a Local Authority."
It is hence contended that the provision of land for a local authority can only be in respect of a Scheme duly approved by the Government. Therefore, there is no escaping the requirement of the existence of a Scheme duly approved by the government prior to the initiation of the acquisition proceedings.
Attention is also drawn to Section 32 of the KHB Act :
" 32. Schemes entrusted to Board by Government, etc.- (1) The provisions of Sections 18 to 24 (both inclusive) shall not be applicable to any [housing scheme, land development scheme or a labour housing scheme] entrusted to the Board by the State Government except to such extent and subject to such modifications as may be specified in any general or special order made by the State Government, and every such order shall be published in the Official Gazette.
(2) Notwithstanding anything contained in this Act, the Board shall not be competent to carry on any trading or financing activity for 43 profit, whether in the execution of any scheme undertaken by, or entrusted to it, or otherwise."
It is pointed out that the present Scheme is not one entrusted to the KHB by the State Government. And it is contended that as a result of that circumstance Sub-section (2) of Section 33 of the KHB Act would be applicable. The said provision is reproduced hereunder for ready reference.
"S.33......................
(2) The Board may also take steps for the compulsory acquisition of any land or any interest therein required for the execution of a housing scheme [or land development scheme] in the manner provided in the Land Acquisition Act, 1894, as modified by this Act and the acquisition of any land or any interest therein for the purposes of this Act shall be deemed to be acquisition for a public purpose within the meaning of the Land Acquisition Act, 1894."
It is hence contended that de hors the express requirement of a Scheme to be framed and approved by the State government, 44 prior to the stage of execution of the project by KHB, as contemplated under the provisions of the KHB Act, as the compulsory acquisition of land for the execution of the Scheme, is in the manner provided under the LA Act, and KHB, as a local authority, can only acquire land pursuant to a Scheme duly approved by the State Government, as contemplated under Section 3 (f) (vi) of the LA Act.
7. The above argument, by way of reply, by Shri Shashi Kumar places the point for consideration in a totally different light and can be appreciated without reference to any of the aforesaid decisions, including that of the apex court. This bench is unable to find a flaw in the above proposition. In that, it should be accepted that the KHB intending to execute a Housing Scheme of its own , and not one sponsored by the Government, can proceed to acquire land for the execution of the project only in terms of the provisions of the LA Act; And as a local authority, is capable of 45 acquiring land only in accordance with a Scheme duly approved by the State Government.
8. Admittedly, there is no Scheme, or any thing akin to a Scheme, duly approved by the State Government, that is placed on record to demonstrate that there was compliance with this compulsory requirement. On the other hand, it is sought to be canvassed that such an exercise is uncalled for. As the position is demonstrated to be otherwise, the petition is allowed. The impugned proceedings and relevant annexures are quashed.
Sd/-
JUDGE nv*