Karnataka High Court
Sri M Nagaraju vs Government Of Karnataka on 26 April, 2013
Bench: K.L.Manjunath, Ravi Malimath
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R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26th DAY OF APRIL, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT APPEAL NOS.1244-45/2009(LB-KHB)
BETWEEN
1 SRI M NAGARAJU
S/O. MUNIYAPPA
AGED ABOUT 60 YEARS,
R/AT HINNAKKI VILLAGE, JIGANI HOBLI,
ANEKAL TQ., BANGALORE DIST.
2 SMT PARVATHAMMA
W/O. SRI M NAGARAJU
AGED ABOUT 48 YEARS
R/AT HINNAKKI VILLAGE
JIGANI HOBLI,
ANEKAL TALUK
BANGALORE DISTRICT ... APPELLANTS
(By Sri : ASHOK HARANAHALLI, SR. ADV. FOR
KESVY & CO. FOR APPELLANTS )
AND :
1 GOVERNMENT OF KARNATAKA
REVENUE DEPARTMENT
3RD FLOOR, M.S. BUILDING
BANGALORE - 560001
REP BY ITS SECRETARY.
2 THE COMMISSIONER
KARNATAKA HOUSING BOARD
2
KAVERI BHAVAN
BANGALORE - 560009.
3 THE SPECIAL LAND ACQUISITION OFFICER
KARNATAKA HOUSING BOARD
KAVERI BHAVAN
BANGALORE - 560001.
... RESPONDENTS
(By Sri : KESHAVA REDDY, AGA FOR R1;
SRI.UDAYA HOLLA, SR. ADV. FOR BASAVARAJ
V.SABARAD, ADV. FOR R3 & R2 )
THESE WRIT APPEALS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
18596/006 AND 11568/2008 DATED 06/02/2009.
THESE APPEALS COMING ON FOR HEARING THIS
DAY, MANJUNATH J, DELIVERED THE
FOLLOWING:
JUDGMENT
The appellants are questioning the legality and correctness of the order passed by the learned Single Judge on 6.2.2009 in W.P.NOs.18596/2006 connected with 11568/2008.
2. The appellants are the owners of 3 acres 32 guntas of land situated in Sy.No.93/2 of Hinnakki village in Anekal Taluk. The said land has been notified for acquisition by invoking section 33 of the 3 Karnataka Housing Board Act r/w 4 (2) of the Karnataka Land Acquisition Act. Preliminary notification was issued under Sec.4(1) of the Land Acquisition Act on 1.4.2005 and published on 28.6.2005. Final Notification was issued u/s 6(1) of the Land Acquisition Act on 2.11.2006 and it was Gazetted on 9.11.2006.
3. The appellants filed the Writ Petitions challenging the acquisition proceedings contending that no Housing scheme as required u/s 24 of the Karnataka Housing Board Act has been approved by the Government and on account of the same, acquisition proceedings initiated by the Karnataka Housing Board has to be held as bad in law and liable to be quashed.
4. The Learned Single Judge after hearing the matter came to the conclusion that there is no necessity for the Housing Board to obtain prior sanction of the Government u/s 24 of the Land Acquisition Act, in order to acquire or initiate acquisition proceedings for Housing Scheme and he 4 further ruled that after acquisition before execution of the Housing Scheme, sanction is required to be obtained by the Housing Board as contemplated u/s 24 of the Act. Accordingly, he dismissed the Writ Petitions. Challenging the legality and correctness of the same, the present appeals are filed.
5. We have heard Sri. Ashok Haranahalli, learned Senior counsel appearing for the appellants and Mr. Udaya Holla, learned Senior counsel appearing for the respondents.
6. The only point to be answered by us in these appeals is whether the Housing Board is required to obtain sanction of a Housing Scheme u/s 24 of the Act before initiation of the acquisition of the land or not in order to implement the Housing Scheme.
7. It is the contention of the appellants that without their being a Scheme sanctioned as required u/s 24 of the Act, lands of the appellants could not have been acquired.
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8. According to the learned counsel for the respondents, Section-24 would come into operation only after due compliance of sections-17 to 23 and there cannot be any prohibition or bar for the Housing Board to initiate acquisition proceedings before sanctioning the Housing scheme from the Government as contemplated u/s 24.
9. Therefore, we have to answer whether the Housing Board is required to obtain the sanction of the Housing Scheme from the Government as contemplated u/s 24 of the Karnataka Housing Board Act, before acquiring any property either for the Housing Scheme or Land Development Scheme.
10. Chapter - III of the Karnataka Housing Board Act, deals with the Housing Schemes and Land Development Schemes. It would be appropriate for us to refer to Sections 17 to 24 in order to consider the rival contentions of the Learned senior counsel appearing for the parties.
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11. Under Chapter-III, the Housing Board can under take a Housing Scheme and also Land Developments Schemes. Sections-17 to 24 reads as follows:
"17. Duty of Board to undertake housing schemes and land development schemes:- Subject to the provisions of this Act and subject to the control of the State Government, the Board may incur expenditure and undertake works in any area for the framing and execution of such housing schemes and land development schemes as it may consider necessary from time to time, or as may be entrusted to it by the State Government.
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 or otherwise of any property necessary for or affected by the execution of the scheme;
(b) the laying or relaying out of any land comprised in the scheme;
(c) the distribution or redistribution of sites belonging to owners of property comprised in the scheme;7
(d) the closure or demolition of dwellings unfit for human habitation;
(e) the demolition of obstructive buildings or portions of buildings;
(f) the construction and reconstruction of buildings, their maintenance and preservation;
(g) the sale, letting or exchange of any property comprised in the scheme;
(h) the construction and alteration of streets and back lanes;
(i) provision for the draining, water-supply and lighting of the area included in the scheme and carrying out by the Board in such area, drainage, sewerage and water supply works;
(j) the provision of parks, playing-fields and open spaces for the benefit of any area comprised in the scheme and the enlargement of existing parks, playing fields, open spaces and approaches;
(k) the provision of sanitary arrangements required for the area comprised in the scheme, including the conservation and prevention of any injury or contamination to rivers or other sources and means of water-supply;
(l) the provision of accommodation for any class of inhabitants;
(m) the advance of money for the purposes of the scheme;
(n) the provision of facilities for communication and transport;
(o) the collection of such information and statistics as may be necessary for the purposes of this Act;8
(p) any other matter for which, in the opinion of the State Government, it is expedient to make provision with a view to provide housing accommodation and to the improvement or development of any area comprised in the scheme or the general efficiency of the scheme.
18A. Matters to be provided for by land development schemes:- Notwithstanding anything contained in any other law for the time being in force, a land development scheme may within the limits of the area comprised in the scheme, provide for all or any of the following matters, namely:--
(a) the acquisition by purchase, exchange or otherwise, of any land which in the opinion of the Board will be necessary for or affected by the execution of scheme;
(b) laying or re-laying of all or any land comprised in the scheme and formation and alteration of streets;
(c) drainage, water supply and electricity and carrying out by the Board in the area included in the scheme, drainage sewerage and water supply works;
(d) the distribution or redistribution of sites comprised in the scheme;
(e) raising the level of any land which the Board may consider expedient to raise to facilitate better drainage;
(f) forming open space for the better ventilation of the area comprised in the scheme or any adjoining area;
(g) sanitary arrangements required;
(h) sites for parks, playgrounds, stadium, recreation grounds, school buildings, markets, motor vehicle stands, theatres, police stations, post offices, co-9
operative societies, public urinals and latrines, petrol service stations, hospitals, dispensaries, Banks, Burial and cremation grounds and sites for public purposes of other kinds.
19. Preparation and submission of annual housing programme and land development programme budget and establishment schedule - 1) Before the first day of December in each year, the Board shall prepare and forward,--
(i) a programme,
(ii) a budget for the next year,
(iii) a schedule of the staff of officers and servants already employed and to be employed during the next year;
to the State Government in such form as may be prescribed.
(2) The programme shall contain,--
(a) such particulars of [housing schemes, land development schemes and labour housing schemes which the Board proposes to execute whether in part or whole during the next year as may be prescribed;
(b) the particulars of any undertaking which the Board proposes to organise or execute during the next year for the purpose of the production of building materials; and
(c) such other particulars as may be prescribed. (3) The budget shall contain a statement showing the estimated receipts and expenditure on capital and revenue accounts for the next year.
20. Sanction to programme, budget and establishment schedule:- The State Government may 10 sanction the programme, the budget and the schedule of the staff of officers and servants forwarded to it with such modifications as it deems fit.
21. Publication of sanctioned programme:--The State Government shall publish the programme sanctioned by it under section 20 in the official Gazette.
22. Supplementary programme and budget:- The Board may, at any time, during the year, in respect of which a programme has been sanctioned under section 20 submit a supplementary programme and budget and the additional schedule of the staff, if any, to the State Government and the provisions of Sections 20 and 21 shall apply to such supplementary programme.
23. Variation of programme by Board after it is sanctioned:- The Board may, at any time, vary any programme or any part thereof included in the programme sanctioned by the State Government:
Provided that no such variation shall be made if it involves an expenditure in excess of twenty per cent of the amount as originally sanctioned for the execution of any housing scheme or land development scheme included in such programme or affects its scope or purpose.11
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 schemes or labour housing schemes included in the programme. (2) The Board shall not execute any housing scheme, land development scheme or labour housing scheme unless the same has been sanctioned by the State Government."
12. A Perusal of section 17 of the Act, it is clear that the Board has got powers to undertake Housing Schemes and Land Development Schemes subject to the provisions of the Housing Board Act and subject to the control of the State Government and to incur expenditure and undertake works in any area for the framing and execution of the schemes as it may consider necessary from time to time and if such scheme may be entrusted to the Board by the Government.
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13. In case of undertaking a Housing Scheme is concerned, the Board is required to follow the provision contained under section 18. After compliance of sections-18 and 18-A so far as it relates to Land Development Schemes are concerned, Board is required to prepare and submit the annual Housing Programme and Land Development Programme. It shall prepare annual budget and establishement schedule and after preparation of the budget and establishment schedule, it shall be sent to the Government for granting sanction to the Programme, budget and establishment schedule as contemplated u/s 20 of the Act. When once the sanction is granted to the programme by the Government in accordance with section-21, Government is required to publish the programme sanctioned by it u/s 20 in the Final Gazette and if there are changes required, Board may also request the State Government for Supplementary programme and budget as required u/s 22 and if there is any variation of programme by the Board after obtaining sanction as required u/s 20, the same also 13 can be included after obtaining sanction from the Government. When there is a compliance of sections- 21 to 23 before implementing the actual programme and project, sanction is required to be obtained from the Housing Board under section-24 of the Act and no work can be executed for Housing Scheme or Land Development Project even though land has been acquired without there being a scheme sanctioned by the Government u/s 24.
14. A reading of Sections-18 to 24, it is clear that there is no necessity for obtaining the sanction of the Housing scheme or the Land Development scheme in order to acquire the property for the aforesaid projects. But without their being a sanction from the Government under Section 24, no scheme shall be executed by the Housing Board. Therefore, it is clear that obtaining of sanction under the Housing Scheme or Land Development Scheme would arise only after preparation of all preliminary preparation of the scheme, preparation of the Housing project, Land 14 Development Project, Budgetary provision, identifying the lands or acquiring the lands and the staff required and estimation and other things as contemplated under sections-18 to 23. Only after strict compliances of Sections-18 to 23, before actual execution of the Housing Scheme or Land Development Scheme, obtaining of the sanction u/s 24 would arise.
15. In this background, after considering the Judgment of the Learned Single Judge, we cannot find fault with his order because he has clearly ruled that no prior permission is required u/s 24 of the Act, in order to identify the lands or to acquire the lands. Accordingly, we answer the said point, agreeing with the findings of the Learned Single Judge.
16. Having held so, we have also seen that either the petitioners or the Housing Board have not placed any material before the Learned Single Judge in order to show that there is a strict compliance of Sections-18 to 23 of the Act, in order to upheld the acquisition proceedings initiated by the Housing Board 15 since sections-18 to 23 are mandatory in nature. Housing Board cannot contend without compliance of sections-18 to 23 that the acquisition of the property by the Board is in accordance with law.
17. Since there was no occasion for the Learned Single Judge to consider whether there is any compliance of sections-18 to 23 of the Karnataka Housing Board Act, we have no other option than to remand the matter to the Learned Single Judge with a request to reconsider the matter and find out whether there is compliance of sections- 18 to 23 of the Act, in order to upheld the acquisition of the properties. The parties are also at liberty to make necessary amendments to the pleadings and similarly the Housing Board is also at liberty to file a detailed counter and shall produce all relevant records to show that there is a compliance of Sections-18 to 23 of the Act.
18. With the above observations, the appeals are allowed confirming the finding of the Learned 16 Single Judge on the question of section-24 of the Housing Board Act, the matter is remanded to the Learned Single Judge with a request to reconsider the matter afresh as observed above.
Sd/-
JUDGE Sd/-
JUDGE Ak