1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 01ST DAY OF MARCH 2014 BEFORE: THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION No. 30622 OF 1999 (LA[CASE NUMBER]KHB) CONNECTED WITH WRIT PETITION No.28218 OF 1998 (LA[CASE NUMBER]HS) WRIT PETITION Nos.18650[CASE NUMBER]54 OF 2012 (LA[CASE NUMBER]KHB) WRIT PETITION No.47616 OF 2004 (LA[CASE NUMBER]KHB) WRIT PETITION No.50971 OF 2004 (LA[CASE NUMBER]KHB) WRIT PETITION No.46250 OF 2004 (LA[CASE NUMBER]KHB) WRIT PETITION Nos.45613[CASE NUMBER]614 OF 2004 (LA[CASE NUMBER]KHB) WRIT PETITION No.47604 OF 2004 (LA[CASE NUMBER]KHB) IN W.P.No.30622/1999 BETWEEN: [ENTITY], Son of Late [ENTITY], Aged about 60 years, Residing at Settihally Post, Tumkur. PETITIONER (By Shri. [ENTITY], Advocate ) AND: 1. The [ENTITY], Represented by its Secretary, 2 Revenue Department, Multistoreyed Building, Dr. B.R.Ambedkar Road, Bangalore [CASE NUMBER] 560 001. 2. The Karnataka Housing Board, Represented by its Commissioner, "Cauvery Bhavan", K.G.Road, Bangalore [CASE NUMBER] 560 009. 3. The [ENTITY]. RESPONDENTS (By Shri.[ENTITY], Additional Government Advocate for Respondent No.1 Shri. [ENTITY], Advocate for Respondent Nos. 2 and 3) This Writ Petition is filed under [SECTION] of the [ACT], praying to quash the preliminary notification dated 30.12.1991 vide Annexure[CASE NUMBER]A and gazetted on 20.2.1992 and final notification dated 14.10.1993 gazetted on 4.11.1993 vide Annexure[CASE NUMBER]B by second respondent and first respondent respectively, as the same are illegal contrary to the provisions of the [ACT] as well as the [ACT] and etc; IN [CASE NUMBER] 3 BETWEEN: [ENTITY], Son of Chikkarangaiah, Aged about 66 years, Residing at Settyhalli Village, Tumkur Taluk, Tumkur District. Since deceased, now represented by Legal representatives of [ENTITY] a) Smt. [ENTITY], (wife) b) Shri. [ENTITY] (son) c) Shri. [ENTITY] (son) d) Shri. [ENTITY] (son) all residing at Shettihalli, Kasaba Hobli, Tumkur Taluk, Tumkur District. [Amended as per order Dated 5.11.2008] PETITIONERS (By Shri. [ENTITY], Advocate ) AND: 1. The [ENTITY], Represented by its Secretary, 4 Revenue Department, Multistoreyed Building, Dr. B.R. Ambedkar Road, Bangalore [CASE NUMBER] 560 001. 2. The Karnataka Housing Board, Represented by its Commissioner, 'Cauvery Bhavan', K.G.Road, Bangalore [CASE NUMBER] 560 009. 3. The [ENTITY]. RESPONDENTS (By Shri. [ENTITY], Additional Government Advocate fro Respondent No.1 Shri. [ENTITY], Advocate for Respondent Nos. 2 and 3) This Writ Petition filed under [SECTION] of the [ACT] praying to quash vide Annexure[CASE NUMBER]C dated 30.12.1991 and Annexure[CASE NUMBER]D dated 14.10.1993 by first respondent in so far as it relates to the petitioner and etc; IN [CASE NUMBER][CASE NUMBER][CASE NUMBER] BETWEEN: M/s. Ramanashree Shopping Arcade Private Limited, Company registered under the [ACT] and having its 5 Registered office at No.16/1, Rajaram Mohan Roy Road, Bangalore [CASE NUMBER] 560 025, represented by Its Chairman Sri. [ENTITY]. PETITIONER (By Shri. [ENTITY], Senior Advocate for Shri. [ENTITY], Advocate) AND: 1. The [ENTITY], Represented by its Secretary to the Department of Housing and Urban Development, Multistoreyed Building, Veedhana Veedhi, Bangalore [CASE NUMBER] 560 001. 2. The [ENTITY]. 3. Karnataka Housing Board, "Cauvery Bhavan", K.G.Road, Bangalore [CASE NUMBER] 560 009. Represented by its Commissioner RESPONDENTS (By Shri.[ENTITY], Additional Government Advocate for Respondent No.1 6 Shri. [ENTITY], Advocate for Respondent Nos. 2 and 3) These Writ Petitions filed under [SECTION] of the [ACT] praying to quash the preliminary notification dated 31.3.2001 vide Annexure[CASE NUMBER]A the second respondent's order dated 13.11.2001 vide Annexure[CASE NUMBER]C the first respondent final notification dated 10.5.2002 vide Annexure[CASE NUMBER]D in so far as they pertain to the petitioner's lands and etc; IN [CASE NUMBER] BETWEEN: 1. Sri. [ENTITY], Aged about 33 years, Son of . [ENTITY], Resident of No.289, Bytarayanapura, Bangalore [CASE NUMBER] 560 092. 2. Sri. [ENTITY], Aged about 37 years, Son of [ENTITY], No.289, Byatarayanapura, Bellary Road, Sahakarnagar Post, Bangalore [CASE NUMBER] 560 092. 3. Sri. Sri.[ENTITY], Aged about 41 years, Son of Late [ENTITY], No.140, 1st Cross, Near Anjanaya Temple, Nagashettihalli, Bangalore [CASE NUMBER] 560 094. 7 4. Sri. [ENTITY], Aged about 56 years, Son of Late [ENTITY], No.733, Deshadpet Road, Yelahanka, Bangalore [CASE NUMBER] 560 064. 5. Sri. [ENTITY], Aged about 36 years, Son of [ENTITY], No.19A, Balaji Layout, R.T.Nagar, Bangalore [CASE NUMBER] 560 032. 6. Sri. [ENTITY], Aged about 43 years, Son of Late [ENTITY], Resident of No.550, F Block, Sahakarnagar, Bangalore [CASE NUMBER] 560 092. PETITIONERS (By Shri. [ENTITY], Senior Advocate for Shri. [ENTITY], Advocate) AND: 1. The [ENTITY], By its Principal Secretary, to Revenue Department (Land Acquisition), M.S.Building, Dr. Ambedkar Road, Bangalore [CASE NUMBER] 560 001. 8 2. The Principal Secretary, Housing Department, Government of Karnataka, M.S.Building, Dr. [ENTITY], Bangalore [CASE NUMBER] 560 001. 3. The Karnataka Housing Board, Cauvery Bhavan, K.G.Road, Bangalore [CASE NUMBER] 560 009, Represented by Housing Commissioner. 4. The [ENTITY] Karnataka Housing Board, Cauvery Bhavan, K.G.Road, Bangalore [CASE NUMBER] 560 009. 5. Sri. [ENTITY], Son of Late Sri. [ENTITY], Aged about 33 years, Resident of No.1200, Kempegowda Nagara Main Road, Vidhyaranyapura Post, Bangalore [CASE NUMBER] 560 097. 6. Sri. [ENTITY], Son of Sri. [ENTITY], Aged about 30 years, No.7, 2nd Floor, 4th Cross, Gandhinagar, Bangalore [CASE NUMBER] 560 009. [cause title amended As per court order Dated 15.6.2012] RESPONDENTS 9 (By Shri. [ENTITY], Advocate for Respondent Nos. 3 and 4 Shri. [ENTITY], Additional Government Advocate fro Respondent Nos. 1 and 2 Shri. [ENTITY] , Advocate for Proposed Respondent Nos. 5 and 6) This Writ Petition filed under [SECTION] and [SECTION] of the [ACT] praying to quash the impugned preliminary notification dated 31.3.2001 published in Karnataka Gazette on 19.4.2001 issued by the 3rd respondent vide Annexure[CASE NUMBER]F and final notification dated 10.5.2002, published in Karnataka Gazette on 17.5.2002, issued by the 1st respondent vide Annexure[CASE NUMBER]G under Sections 4(1) and [SECTION] of [ACT] 1894 as amended in 1984, respectively, in so far as the petitioners schedule lands, as illegal, contrary to law, and unsustainable in law and etc; IN [CASE NUMBER] BETWEEN: Sri. [ENTITY], Son of Late [ENTITY], Aged 53 years, Residing at no.572/35, 4th Cross, Mahalaxmi Layout, Bangalore [CASE NUMBER] 560 086. PETITIONER (By Shri. [ENTITY], Advocate) AND: 1. The [ENTITY], By its Secretary to Government, 10 Revenue Department (Land Acquisition) M.S.Building, Dr. Ambedkar Road, Bangalore [CASE NUMBER] 560 001. 2. The Principal Secretary, Housing Department, Government of Karnataka, M.S.Building , Dr. Ambedkar Road, Bangalore [CASE NUMBER] 560 001. 3. The Karnataka Housing Board, K.G.Road, Cauvery Bhavan, Bangalore [CASE NUMBER] 560 009, Represented by Housing Commissioner. 4. The [ENTITY] Karnataka Housing Board, K.G.Road, Cauvery Bhavan, Bangalore [CASE NUMBER] 560 009. RESPONDENTS (By Shri. [ENTITY], Advocate for Respondent Nos. 3 and 4 Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 and 2) This Writ Petition filed under [SECTION] and [SECTION] of the [ACT] praying to quash vide Annexure[CASE NUMBER]D dated 31.3.2001 issued by third respondent and final notification dated 10.5.2002 issued by first respondent vide Annexure[CASE NUMBER]F under [SECTION] and [SECTION] of the [ACT] 1894 as amended in 1984, respectively, in so far as the petitioner schedule lands, as illegal contrary to law, and unsustainable in law and etc; 11 IN W.P.No.46250/2004 BETWEEN: Sri. [ENTITY], Son of Sri. [ENTITY], Aged about 51 years, Occupation: Project Co[CASE NUMBER]ordinator, Ramanashree Group, Residing at No.3, [ENTITY] Road, Near Nagashettyhalli Bus Stand, Bangalore [CASE NUMBER] 560 094. PETITIONER (By Shri. [ENTITY], Senior Advocate for Shri. [ENTITY], Advocate) AND: 1. The [ENTITY], Represented by its Secretary to the Department of Housing and Urban Development, Multistoreyed Building, Veedhana Veedhi, Bangalore [CASE NUMBER] 560 001. 2. The [ENTITY]. 3. Karnataka Housing Board, "Cauvery Bhavan", 12 K.G.Road, Bangalore [CASE NUMBER] 560 009. Represented by its Commissioner RESPONDENTS (By Shri.[ENTITY], Additional Government Advocate for Respondent No.1 Shri. [ENTITY], Advocate for Respondent Nos. 2 and 3) This Writ Petition filed under [SECTION] of the [ACT] praying to quash the preliminary notification dated 31.3.2001 vide Annexure[CASE NUMBER]A. The second respondent's order dated 12.11.2001 vide Annexure[CASE NUMBER]C, the final notification dated 10.5.2002 vide Annexure[CASE NUMBER]D in so far as they pertain to the petitioner's lands and etc; IN [CASE NUMBER] BETWEEN: 1. Sri. [ENTITY], Aged about 59 years, Son of Late C.K. Muniswamappa, 2. Sri. [ENTITY], Aged about 54 years, Son of Late C.K. Muniswamappa, Both are residing at Chikkajala Village, Bangalore North Taluk, Bangalore District. PETITIONERS (By Shri. [ENTITY], Advocate ) 13 AND: 1. The [ENTITY], Housing and Urban Development, M.S.Buildings, Dr. B.R. Ambedkar Road, Bangalore [CASE NUMBER] 560 001. By its Secretary. 2. Karnataka Housing Board, 'Cauvery Bhavan', Bangalore [CASE NUMBER] 560 009. By its Chairman. 3. The [ENTITY] Karnataka Housing Board, 'Cauvery Bhavan', Bangalore [CASE NUMBER] 560 009. RESPONDENTS (By Shri. [ENTITY], Additional Government Advocate for Respondent No.1 Shri. [ENTITY], Advocate for Respondent Nos. 2 and 3) These Writ Petitions filed under [SECTION] of the [ACT] praying to quash the preliminary notification dated 31.3.2001 vide Annexure[CASE NUMBER]F and the final notification dated 10.5.2002 vide Annexure[CASE NUMBER]J. 14 IN [CASE NUMBER] BETWEEN: 1. Sri. [ENTITY], Aged about 42 years, Son of Late [ENTITY], Resident of Meenukunte Village, Jala Hobli, Bangalore North Taluk, Bangalore District. 2a) Sri. [ENTITY], Aged about 47 years, Son of Late [ENTITY], Resident of Meenukunte Village, Jala Hobli, Bangalore North Taluk, Bangalore [CASE NUMBER] District. b) Sri. [ENTITY], aged about 75 years, son of Late [ENTITY], Resident of Meenukunte Village, Jala Hobli, Bangalore North Taluk, Bangalore [CASE NUMBER] District. 3. Sri. [ENTITY], Aged about 45years, Son of Late [ENTITY], Resident of Meenukunte Village, Jala Hobli, Bangalore North Taluk, Bangalore [CASE NUMBER] District. 4a) Smt. [ENTITY], Aged about 60 years, 15 Wife of Late [ENTITY], b) Sri. [ENTITY], aged about 40 years, son of Late [ENTITY], c) Sri. [ENTITY], aged about 30 years, son of Late [ENTITY], Resident of Meenukunte Village, Jala Hobli, Bangalore North Taluk, Bangalore [CASE NUMBER] District. 5a) Sri. [ENTITY], Aged about 60 years, Son of Late [ENTITY], b) Sri. [ENTITY], aged about 56 years, son of Late [ENTITY], resident of Chikkajala Village, Jala Hobli, Bangalore North Taluk, Bangalore District. 6a) Smt. [ENTITY], Aged about 62 years, Wife of Late Sujnanachary, b) Sri. Nagaraju, aged about 29 years, son of Late Sujnanachary, c) Sri. Murali, aged about 20 years, 16 son of Late Sujnanachary, d) Sri. Malligachary, aged about 56 years, son of Late [ENTITY], e) Sri. [ENTITY]achary, aged about 22 years, son of Late [ENTITY], f) Sri. [ENTITY], aged about 20 years, son of Late [ENTITY], all residents of Chikkajala Village, Jala Hobli, Bangalore north Taluk, Bangalore District. 7a) Smt. [ENTITY], Aged about 52 years, Daughter of Late [ENTITY], b) Sri. [ENTITY], aged about 52 years, son of Late [ENTITY]. c) Sri. [ENTITY], aged about 49 years, son of Late [ENTITY], all residents of Chikkajala Village, Jala Hobli, Bangalore North Taluk, Bangalore District. 8a) Sri. [ENTITY], 17 Aged about 63 years, Son of Late [ENTITY], b) Sri. [ENTITY], aged about 48 years, son of Late [ENTITY], both resident of Chikkajala Village, Jala Hobli, Bangalore North Taluk, Bangalore District. 9. Sri. [ENTITY], Aged about 50 years, Son of Late [ENTITY], Resident of Chikkajala Village, Jala Hobli, Bangalore North Taluk, Bangalore District. 10. Sri. [ENTITY], Aged about 68 years, Son of Late [ENTITY], Residing at No.232, 3rd Cross, Krishnamurthy Colony, Siddapur, I Block, Jayanagar, Bangalore [CASE NUMBER] 560 011. 11. Sri. [ENTITY], Aged about 55 years, Son of [ENTITY], Residing at No.1/3, Banaswadi Road, Cooke Town, Bangalore [CASE NUMBER] 560 005. 18 PETITIONERS (By Shri. [ENTITY], Senior Advocate for Shri. [ENTITY], Advocate) AND: 1. The [ENTITY], By its Secretary to Government, Revenue Department (Land Acquisition) M.S.Building, Dr. Ambedkar Road, Bangalore [CASE NUMBER] 560 001. 2. The Principal Secretary, Housing Department, Government of Karnataka, M.S.Building , Dr. [ENTITY], Bangalore [CASE NUMBER] 560 001. 3. The Karnataka Housing Board, K.G.Road, Cauvery Bhavan, Bangalore [CASE NUMBER] 560 009, Represented by Housing Commissioner. 4. The [ENTITY] Karnataka Housing Board, K.G.Road, Cauvery Bhavan, Bangalore [CASE NUMBER] 560 009. RESPONDENTS (By Shri. [ENTITY], Advocate for Respondent Nos. 3 and 4 Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 and 2) 19 This Writ Petition filed under [SECTION] and [SECTION] of the [ACT] praying to quash the impugned preliminary notification dated 31.3.2001 issued by R[CASE NUMBER]3 vide Annexure[CASE NUMBER]O and final notification dated 10.5.2002 issued by first respondent vide Annexure[CASE NUMBER]P under Sections 4(1) and [SECTION] of [ACT] 1894 as amended in 1984, respectively in so far as the petitioners schedule lands, as illegal, contrary to law and unsustainable in law and etc; These petitions, having been heard and reserved on 19.02.2014 and coming on for Pronouncement of Orders this day, the Court delivered the following:[CASE NUMBER] ORDER
This group of petitions are heard and disposed of by this common order.
2. It is pertinent to mention that the first of these writ petitions in [CASE NUMBER] was disposed of by an order dated 28.10.2006, whereby the learned single judge had allowed the petition, holding that the acquisition proceedings under the provisions of the [ACT] (Hereinafter referred to as the '[ACT]', for brevity) in respect of the petitioner's lands were vitiated. The same had been challenged in an appeal in [CASE NUMBER] by the respondent, Karnataka Housing Board (KHB). It was contended that in allowing the petition on the ground that the issuance of the final declaration and the passing of the award was beyond the period prescribed, respectively, the learned single judge had not taken into consideration the last of the publication of the notifications, under [SECTION] and [SECTION] of the [ACT], in daily newspapers [CASE NUMBER] but had proceeded only with reference to the date of the notification published in the Gazette. The appeal was allowed on that ground. It was then opined by the Division Bench that the learned single judge had not considered the matter on merits and expressed that since the Bench had had occasion to consider another appeal, [CASE NUMBER], on the question whether there was compliance by the Housing Board with regard to the provisions of [SECTION] of the [ACT] (Hereinafter referred to as the '[ACT]', for brevity) and whether the Board had complied with the said provisions before initiating the acquisition proceedings and had remanded the matter for a fresh consideration by the learned single judge, the present matter was similarly remanded by a judgment dated 26.4.2013.
3. The petitions in [CASE NUMBER], [CASE NUMBER], [CASE NUMBER] [CASE NUMBER], [CASE NUMBER], [CASE NUMBER] and [CASE NUMBER] were all petitions that had been referred to the Division Bench by a learned single judge, on the footing that there were two conflicting judgments, of learned single judges of this court, on the requirement or otherwise of a housing scheme under the [ACT], duly sanctioned by the government, before initiating the acquisition proceedings. The same had been referred to the division bench in view of the fact that the decision rendered by one of the single judges, to the effect that there was no necessity for the Housing Board to obtain prior sanction of a housing scheme under [SECTION] of the [ACT] before initiating the acquisition proceedings under the [ACT], was pending in appeal in [CASE NUMBER] before the said Division Bench. That appeal was disposed of by a judgment dated 26.4.2013. The division bench had considered the tenor and scope of [SECTION] of the [ACT] and held as follows, while remanding the matters for fresh consideration :[CASE NUMBER]
"14. A reading of [SECTION], 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], 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 Development Project, Budgetary provision, identifying the lands or acquiring the lands and the staff required and estimation and other things as contemplated under [SECTION]. Only after strict compliances of [SECTION], before actual execution of the Housing Scheme or Land Development Scheme, obtaining of the sanction u/[SECTION] 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/[SECTION] 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 [SECTION] of the Act, in order to upheld acquisition proceedings initiated by the Housing Board since [SECTION] are mandatory in nature. Housing Board cannot contend without compliance of [SECTION] 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 [SECTION] of the [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 [SECTION] 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 [SECTION] of the Act.
18. With the above observations, the appeals allowed confirming the finding of the Learned Single Judge on the question of [SECTION] of the [ACT], the matter is remanded to the Learned Single Judge with a request to reconsider the matter afresh as observed above."
4. At the hearing of these petitions each of the petitioners, except two, sought to amend the petition, to include an additional ground of challenge namely, that without there being a prior sanction by the government of a housing scheme as required under [SECTION] of the [ACT], the acquisition proceedings under the said Act would not be construed as one for a public purpose and would therefore be void. Though there was opposition to the proposed amendment, the same was allowed. Firstly, because it was point of law going to the root of the matter and Secondly, since the petitioners had the benefit of interim orders protecting their possession, there was no circumstance where the respondents could claim prejudice on account of a legal contention being urged, albeit belatedly, especially when the division bench in its order of remand has thrown open all contentions available.
5. In so far as the petitioner in [CASE NUMBER] is concerned, the petition as originally brought has raised the above aspect as a ground. Though the petitioner in [CASE NUMBER] has not formally amended the petition to incorporate the above legal contention, the said petitioner would certainly be entitled to the benefit of such a ground being canvassed in respect of the acquisition proceedings generally, if it is to held to be tenable.
6. Incidentally, the very question arose for consideration before this bench in another batch of writ petitions in [CASE NUMBER] and connected petitions disposed of on 5.12.2013, it would hence be pertinent to refer to the discussion therein as regards the effect of the conflicting views of the two learned single judges which warranted the matters being referred to the Division Bench and the view expressed by the Division bench and the resultant legal position if the additional ground now urged is taken into consideration.
Reliance had been placed, in the said decided cases on the following authorities by the learned counsel for the petitioners therein :
a. Chikkarangaiah v. [ENTITY], 1996 (7) Kar.L.J 846;
b.State of Tamil Nadu v. [ENTITY], AIR 1992 SC 1827;
c.State of Tamil Nadu v. [ENTITY], AIR 1996 SC 497;
d.Devaraja v. The [ENTITY], WP 9593/2007 & connected cases dated 29[CASE NUMBER]5[CASE NUMBER]2012;
7. On the other hand, the learned counsel for the respondents therein, placed reliance on the following :
[PRECEDENT] & connected cases dated 6.2.2009;
[PRECEDENT] dated 26.4.2013.
It was after discussing the scope and effect of the above rulings that the following view was endorsed:
"6. The learned counsel for the petitioners, by way of reply, would point out that even assuming the decisions of the apex court in [ENTITY] and [ENTITY] were with reference to the provisions of the [ACT], it would still be a condition 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] of the [ACT], clause (vi) provides thus :[CASE NUMBER]
"(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 [ACT], or under any corresponding law for the time being in force in a State or a co[CASE NUMBER]operative society within the meaning of any law relating to co[CASE NUMBER]operative societies for the time being in force in any State;"
It is further pointed out that [SECTION] of the [ACT] lays down thus :
"(4) For the purpose of this Act and the [ACT], 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] of the [ACT] :
" 32. Schemes entrusted to Board by Government, etc.[CASE NUMBER] (1) The provisions of [SECTION] (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 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 [SECTION] of the [ACT] would be applicable. The said provision is reproduced hereunder for ready reference.
"[SECTION]
(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 [ACT], 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 [ACT]."
It is hence contended that de hors the express requirement of a Scheme to be framed and approved by the State government, prior to the stage of execution of the project by KHB, as contemplated under the provisions of the [ACT], as the compulsory acquisition of land for the execution of the Scheme, is in the manner provided under the [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] of the [ACT]."
8. However, the learned counsel for the respondent [CASE NUMBER] KHB, Shri [ENTITY] has sought to contend as follows :
The view taken earlier in the above cases by this court is without reference to the fact that the KHB is a body corporate and is not to be confused with bodies that are generally considered as "local authorities", having regard to the functions and powers vested in it. If so viewed, it is possible to hold that the acquisition of land for the benefit of the Housing Board would be governed by sub[CASE NUMBER]clause (iv) of clause (f) of [SECTION] of the [ACT], that provides :
" the expression "public purpose " includes [CASE NUMBER] the provision of land for a corporation owned or controlled by the State ; " ( [ACT] ) ."
Therefore, the prior approval contemplated under sub[CASE NUMBER] clause (vi) of Clause (f) of [SECTION] of the [ACT], would not be attracted. It is further contended that the Board being defined as a "local authority" under the [ACT], is only for the purposes of [SECTION] of the [ACT] and not for any other purpose.
In the alternative, it is contended that [SECTION] of the [ACT] is amended by a State amendment in [ACT]. By virtue of the amendment [SECTION], which is relevant, reads as follows :
" The expression "Public Purpose" includes[CASE NUMBER]
(iii)
(iv) the provision of land[CASE NUMBER]
(a) for carrying out any housing scheme or health scheme sponsored by the Central Government or any State government or a local authority; or "
It is sought to be contended that under the above provision, a Scheme sponsored by a local authority, even if the Board is to be considered as a local authority, would not require a prior approval of the State government. It is further emphasized that since the [ACT] and the [ACT], have both received the assent of the President, the same override the provisions of the [ACT], as amended by [ACT], as the [ACT] continues to be part of the statute.
It is contended that the [ACT] is a special enactment and if viewed for its pith and substance, acquisition of land is merely incidental in the achievement of its objects and hence any acquisition of land for its purposes is always for a public purpose and does not warrant an strict scrutiny as may be necessary in every acquisition under the [ACT].
It is also contended that there was in existence a scheme duly approved by the government and seeks to place reliance on a document which reads as follows:
"PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA Sub: Karnataka Housing Board [CASE NUMBER] 100 Housing Projects [CASE NUMBER] 2000 [CASE NUMBER] approval of Government [CASE NUMBER] reg.
READ: Letters bearing no.GMT.HNS.2000[CASE NUMBER]01, Dated 06.10.2000 and 23.11.2000 from the Commissioner, KarnatakaHousing Board, Bangalore.
Preamble:
The Housing Commissioner, in his letter dated 6.10.2000 has informed that Karnataka Housing Board in its 356th meeting held on 19.07.2000 has approved a detailed scheme called 100 Housing Projects. KHB reports that under this scheme for the year 2000[CASE NUMBER]01 it intends to take up construction of 13,500 houses affordable to various categories of income group and 15,000 sites of different dimensions at affordable prices. The project is estimated to cost around Rs.850 crores and is expected to be completed by December 2002. Karnataka Housing Board has sought approval of Government for the implementation off its 100 Housing Projects as required under [SECTION] of [ACT] (details in Annexure[CASE NUMBER]1). Karnataka Housing Board proposes to take up the schemes with the a loan assistance from HUDCO for each scheme separately with an Escrow cover to ensure speedy and prompt implementation. KHB is taking up the scheme with the loan assistance from HUDCO and there is no financial implication for Government involved in the proposed 100 Housing Projects of KHB.
However, KHB has sought for Revolving Government Guarantee to an extent of Rs.200 crores to raise bridge loan form HUDCO to take up the scheme. KHB has proposed to set up a committee at the Government level consisting of the representatives of Housing Department, Finance and Financial Institutions to review and monitor the schemes with no time and cost over[CASE NUMBER]runs. KHB will implement the projects by adopting new procedures designed to prevent time and cost over[CASE NUMBER]runs and to ensure that quality work is done, as per details in Annexure[CASE NUMBER]II. Government have examined the proposal of Karnataka Housing Board in detail and ordered as follows:
[CASE NUMBER], DATED 25th January, 2001 In the circumstances, explained in the preamble, Government are pleased to order as follows;
1. To approve the 100 Housing Schemes comprising of approximately 13,500 houses and 15,000 sites at a project cost of Rs.850 crores (Rupees Eight fifty crores only) as per details (Annexure[CASE NUMBER]1) U/[SECTION] of [ACT].
2. To raise a loan of Rs.720 crores (Rupees Seven Fifty crores only) from HUDCO for these schemes without any financial assistance/commitment from Govt. u/[SECTION] of [ACT].
3. Providing revolving Government Guarantee to an extent Rs.1000 crores (Rupees One Hundred crore only) to take up these projects and balance commitment shall be met from self financing scheme by the Board.
4. To constitute committee consisting of the following for monitoring and review of the 100 Housing Projects.
1) Minister for Housing Chairman 2) Additional Chief Secretary (PW &H) Member 3) Principal Secretary (Finance) Member 4) Principal Secretary (Housing) Member 5) Regional Chief, HUDCO Member 6) Commissioner, KHB Member 7) Chief Engineer, KHB Member 8) Controller of finance, KHB Member Secretary
The terms of reference of the Committee shall be as follows:
a) Monitor and review of 100 housing Projects;
b) Ensure separate escrow accounts are maintained for each projects;
c) Ensure implementation of the 100 housing projects in a transparent manner through strict and proper pre[CASE NUMBER] qualification criteria;
d) Review use of the revolving guarantee.
This Order issues with the concurrence of the Finance Department vide its U.O.Note No.FD 1001 EXP[CASE NUMBER]III/2000, dated 30.11.2000.
By Order and in the name of Sd/[CASE NUMBER]
Governor of Karnataka, Sd/[CASE NUMBER]
(B.D.OBAPPA) Under Secretary to Government, Housing Department."
"GOVERNMENT OF KARNATAKA No.DOH 178 KHB 2000 Karnataka Government Secretariat, IV Floor, II Stage, M.S.Buidling, Bangalore, dated 25.05.2001.
ADDENDUM In the GOVERNMENT ORDER NO.DOH 178 KHB 2000, DATED, 05th January, 2001, para No.3 of the Order portion is modified as follows:
3. Providing revolving Government Guarantee to an extent Rs.100 crores (Rupees One Hundred crore only) to take up these projects and balance commitment shall be met from self financing scheme by Karnataka Housing Board on the following conditions:
a) KHB should pay 1 per cent guarantee commission to Government;
b) The guarantee commission so payable should to the Head of Account 0075[CASE NUMBER]Misc[CASE NUMBER]Gen.Service[CASE NUMBER]108[CASE NUMBER]guarantee[CASE NUMBER]fee[CASE NUMBER]101[CASE NUMBER]
guarantee fee (0075[CASE NUMBER]00[CASE NUMBER]108[CASE NUMBER]0[CASE NUMBER]01);
c) The recovery should be watched very carefully and all efforts should be made to see that the burden does not devolve on the Govt.;
d) The guarantee commission should be calculated in the actual amount of loan outstanding at the end of each month and has to be paid once in six months from the date availment of loan;
e) Proper project reports fro the above projects should be prepared which should show the details of expenditure, its phasing, recovery and payment schedules etc;
f) KHB should keep separate project accounts and that calculate final cost and shall not be increased it beyond 5%;"
9. Refuting the above, the learned Senior Advocate, Shri [ENTITY], appearing for one of the learned counsel for the petitioners would point out that the expression "local authority"
has been defined thus under [SECTION] of the [ACT] :[CASE NUMBER]
"(4) For the purpose of this Act and the [ACT], the Board shall be deemed to be a Local Authority."
It is pointed out that the definition leaves no doubt that for purposes of all the provisions of the [ACT], the KHB is a "local authority" and not merely with reference to any particular provision as sought to be contended. Hence it would be a local authority for purposes of [SECTION] of the [ACT].
It is further contended that though the argument as to [ACT] overriding [ACT] is not acceptable[CASE NUMBER] as the requirement of a prior sanction of a Scheme by the government as provided under the [ACT], is to be read into the State amendment. Even if the State amendment is to be read in isolation it is evident that the same requires the existence of a Scheme, for provision of land to carry out the same.
It is pointed out that there is an Annexure to the Government Order relied on by the learned counsel Shri [ENTITY], which purports to furnish certain bare details of the several projects which are undertaken. However , in so far as the Scheme for the purposes of which the lands in question are to be acquired [CASE NUMBER] there are no details forthcoming as found at Serial no.93 to 100 of the Annexure. Hence it is contended that there was no Scheme in existence.
In the light of the above, it is to be held 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 [ACT]; and as a local authority, is capable of acquiring land only in accordance with a Scheme duly approved by the State Government.
The attempt to demonstrate that there was a Scheme duly approved by the State government with reference to the above referred Government Order does not indicate the existence of any comprehensive Scheme or even a Scheme with the bare minimum details pertaining to the Scheme for the purposes of which the lands of the petitioners were being sought to be acquired.
The argument that the KHB is for all purposes a body corporate and hence it is sub[CASE NUMBER]clause (iv) of Clause (f) of [SECTION] of the [ACT] which would be applicable is also not tenable. The land in question was not being acquired for a Corporation or a corporate body.
It is also contended that it cannot also be accepted that the requirement under the relevant clause namely, [SECTION] of the [ACT] as amended by [ACT] is irrelevant and that it is only [SECTION] as incorporated under the [ACT] which is to be taken into consideration. The additional requirement of the need for a prior sanction of the State government in respect of a housing scheme of a local authority, to render the acquisition of land as being for a public purpose, which is a later amendment under the [ACT]
[CASE NUMBER] which is not inconsistent with the State amendment but only adds a further safe guard, is necessarily to be read into and reconciled with the State amendment.
Incidentally, the maintainability of the petition in [CASE NUMBER] is seriously questioned on the following counts namely, that the petition is barred by delay and laches, that the petitioner has received the compensation in respect of the land and that the petitioner has sold the land in favour of a third[CASE NUMBER]party and hence has no locus standi to prosecute the petition.
The said objections are not tenable for the following reasons and in the light of the law, as rightly contended by the learned counsel for the petitioner in that case. It is contended that the very notification challenged in this petition was under
challenge in [CASE NUMBER] and after contest, the said petition came to be allowed and the notification was quashed. Further, the very notification challenged in this petition was under
challenge in [CASE NUMBER] and after contest, the said petition came to be allowed and the notification was quashed. Further, challenge made to the said order in [CASE NUMBER] also came to be rejected in this court refusing to condone the delay in filing the appeal.
The original petitioner, who was an illiterate agriculturist was under a bona fide belief that in the light of interim order granted by this court followed by quashing of the notification of acquisition, the authorities may not proceed with the acquisition. Further, that this court has not only dismissed the writ appeal but even declined to give the KHB the liberty of acquiring the land afresh with the court observing that they may proceed with the acquisition if in law they are entitled to do so after compliance with required procedure in law.
However, on coming to know that the authorities are proceeding to pass award pursuant to the very notification quashed by this court, the original petitioner filed his objections to the same pointing out the order of quashing passed by this court.
Further, notwithstanding the objections filed, the authorities proceeded to pass the award on 16.12.1996, a copy of which was received in 1997. Immediately thereafter, the original petitioner approached this court. It is therefore contended that there is no delay in filing of the writ petition.
It is pointed out that as a matter of fact, the KHB in its statement of objections has rightly not pleaded the ground of delay in filing of the writ petition and such a contention is taken for the first time in the Additional statement of objections filed after a gap of 16 years that too filed without seeking leave of this court to file such an additional objections in respect of a ground already available when the first objection was filed.
The apex court in the case of The [ENTITY] House Building Co[CASE NUMBER]operative Society vs. V.[ENTITY], AIR 2007 SC 1151, was considering a case where in an earlier proceedings the courts had quashed the acquisition proceedings and there was a delay of fourteen years in challenging that very notification in a later proceedings. Dealing with the question of delay, the apex court was pleased to observe thus:[CASE NUMBER]
" when the acquisition has been found to be totally mala fide and not for bonafide purpose, the ground of delay and acquiescence in the present case has no substance " The apex court in the case of [PRECEDENT] was pleased to hold that the expression "sufficient cause" should receive a liberal construction so as to advance substantial justice. Courts should adopt liberal view to condone the delay as no party comes to court intentionally after delaying the matter. It is further ruled that a judgment is respected not for technicalities but for rendering justice.
It is further contended that [SECTION] of the [ACT] read with [SECTION] thereof makes it clear that if the time consumed between the date of final notification and the passing of the award is more than two years, then such an acquisition proceedings cannot be sustained in law as the acquisition proceedings cannot be sustained in law as the acquisition proceedings shall lapse.
The plea of the KHB that last of the notification has to be taken into consideration is misconceived as in the instant case, last notification is neither a gazette notification nor a notification published in a news paper where the general public can be deemed to be aware. The alleged notification is stated to have been published in a chavadi, authenticity of which cannot be established.
Thus, the impugned acquisition cannot be sustained in law in the light of [SECTION] of the [ACT] read with [SECTION]
It is the case of the KHB that the original petitioner having received the award amount is estopped from maintaining the writ petition and the contention of the KHB is totally misconceived.
When a similar question came up for consideration before the apex court in [ENTITY]'s case, supra the apex court was pleased to rule that when the basic notification under which the land is sought to be acquired stood vitiated then whatever payment made by the acquiring authority is at its own risk.
It is thus contended that the KHB cannot justify its action just because the original petitioner has received the compensation. It is the case of the KHB that the petitioners having alienated the property have no locus standi to maintain the writ petition, which is totally misconceived.
The properties of the petitioners in two different survey numbers are sought to be acquired and admittedly, the petitioners have not alienated both their properties.
In the instant case, the writ petition was allowed on the first occasion on 25.1.1999 and this order was in force till the writ petition was restored for fresh consideration on 11.1.2008. The sale has taken place on 16.12.2006 when there was no impediment for the petitioner to alienate the property. That apart, it is well known fact that in a sale transaction, the vendor has an obligation to make good the title of the property if it is later noticed that there is defect in vendor's title.
10. Assuming for argument sake, but not conceding that the sale has taken place when the petitioner could not have sold the property, even then purchaser has no right to come on record and as such, the petitioner in his capacity as the vendor, has a duty to continue to protect the right of the purchaser. Reliance in this regard is placed on a decision of the apex court in the case of [PRECEDENT].
In the light of the above the writ petitions are allowed and the impugned notifications are quashed.
Sd/[CASE NUMBER]
JUDGE nv*