Allowed

Smt Hanumakka W/O Late Komaraiah v. State of Karnataka

Karnataka HC23 Jan 2014WP/10984/2012

Case brief

AI extract

What is this about?

Writ petition filed to quash land acquisition notifications. The Court held that the State failed to effectively address specific objections, particularly regarding statutory bars on acquisition near municipalities, and that the inquiry lacked application of mind. The proceedings were quashed.

What did the court decide?

Writ petitions allowed. The impugned acquisition proceedings are quashed.

Smt Hanumakka W/O Late Komaraiah Vs State of Karnataka — Land Acquisition | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 23^RD DAY OF JANUARY 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION Nos. 10984-10985 OF 2012 (LA-RES)

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BETWEEN:

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Smt. Hanumakka, Wife of Late Komaraiah, Aged about 80 years, Resident of Adarshanagara, Hanumanthapura, Belagumba Road, Tumkur Taluk and District. Tumkur – 572 101.

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…PETITIONER

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(By Shri. M.B. Chandra Chooda, Advocate)

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AND:

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State of Karnataka By its Secretary to Government, Revenue Department, Land Acquisition-2 and Rehabilitation, M.S.Building, Dr. B.R. Ambedkar Veedhi, Bangalore – 560 001.

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The Deputy Commissioner, Tumkur District, Tumkur – 572 101.

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The Assistant Commissioner, Tumkur Sub-Division, Tumkur – 572 101.

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…RESPONDENTS

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(By Shri. Anantha .H, Government Pleader )

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These Writ Petitions filed under Articles 226 and 227 of the Constitution of India praying to quash the notification dated 23.4.2010 vide Annexure-E issued by the Deputy Commissioner, Tumkur District, Tumkur, and the notification dated 15.7.2011 vide Annexure-M issued by Secretary to the Government Revenue Department, Land Acquisition No.2 and rehabilitation, Bangalore, respondent no.1 by issue of writ of certiorari.

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These Writ Petitions coming on for Hearing this day, the court made the following:

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O R D E R

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Heard the learned Counsel for the petitioner. The

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petitioner claims that land bearing Survey No.299/1, measuring 3 acres of Tumkur Village, Kasaba Hobli, Tumkur District was purchased by her husband under a registered sale deed dated 13.5.1967. The petitioner is a widow and has 11

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children. They belong to the Thigalara Community and eke out their livelihood by growing vegetables and selling the same in Tumkur market.

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It is also claimed that there was a partition in the family by recourse to a civil suit in O.S.No.463/1995 and the lands have been divided by metes and bounds. It is the case of the petitioner that the land is within a radius of 1 kilometre from the City Municipality and the City Municipality limits have grown from time to time and the area is built up. There were encroachments on the property in question leading to the petitioner having to resort to a civil suit in O.S.No.181/2002 before the III Additional Civil Judge (Senior Division), Tumkur which was decreed by judgment and decree dated 7.2.2005. The defendants, who sought to interfere with the property, having filed an appeal unsuccessfully, the same has attained finality.

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It transpires that in this background, the respondent no.2 had issued a notification dated 23.4.2010 proposing to acquire the land by virtue of the notification under Section 4(1) of the Land Acquisition Act, 1894. The purported purpose was for grant of house sites to the weaker sections of the society. The petitioner had filed her objections. It was specifically brought to the attention of the second respondent that there was bar on acquisition of land situated within the radius of 5 kilometres from the City Municipality and had produced the said notification. The land in question being within 1 kilometre from the City Municipality limits, there was, therefore, no room for doubt that the same could not have been acquired by virtue of the bar on acquisition of land situated within the radius of 5 kilometres from the City Municipality. It is further stated that as per the Circular dated 21.1.1994, the cost of acquisition of land in respect of grant of house sites for every 1 acre, shall not exceed Rs.1,00,000/- per acre in respect of the land situated in and around the Corporation Limits, though the

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guidance value of the property fixed by the State, as notified, is at Rs.24,00,000/- per acre. There was also yet another Circular dated 15.11.1978, indicating that the lands belonged to persons from the Thigalara Community, where the same is under cultivation, ought not to be acquired. These aspects having been highlighted in the Statement of objections, it is the case of the petitioner that there was no consideration of the same at the purported inquiry under Section 5A of the LA Act. There was no personal hearing afforded and there was no evidence recorded and the objections filed were not sent to the Block Development Officer and no opinion was called for from the said officer and without complying with the mandatory requirements as to the manner in which an inquiry ought to have been conducted, a report had been submitted, which is contrary to the procedure. And it is on that basis that a final notification was issued on 15.7.2011. Thereafter, a notice has been issued calling upon the petitioner to hand over possession

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in terms of Sections 9 and 10 of the LA Act. It is in that background that the present petition is filed.

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The learned Counsel while reiterating the above facts and circumstances would lay stress on the clear guidelines issued by the State Government insofar as the acquisition of property is concerned. The purported object is to provide house sites for the poor and needy and that the Circular places a bar on the acquisition of petitioner’s land and that apart from the petitioner’s land there are no other lands that are sought to be acquired. Therefore, it is inexplicable in the teeth of the self imposed bar by the State Government not acquiring lands in certain circumstances and the relevant clause, which reads as follows :-

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The learned Counsel would submit that it is highly arbitrary and opposed to the law as there was no opportunity of hearing afforded to the petitioner and the specific objections have not been addressed at all. Therefore, the learned Counsel would submit that the petition be allowed.

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The learned Government Pleader, though no statement of objections are filed, is said to have obtained the record and would seek to assert that the respondents have followed the due procedure of law in seeking to acquire the land of the petitioner and that there is no illegality or irregularity in that regard. Insofar as the contention that there was no inquiry worth its name conducted under Section 5A of the LA Act, the learned Government Pleader would emphasize that the petitioner’s son

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is said to have attended the inquiry, as reflected from the record and that he was afforded a hearing and the concerned has also assigned reasons in negating the objections. Therefore, the contention that there was no opportunity of hearing and that the same is in violation of the law is not correct. Insofar as the contention that there is a bar against acquisition of land within a radius of 5 kilometres from the City Municipality limits, and the petitioner’s land is within the radius of 1 kilometre from the City Municipality limits etc., is concerned, is with reference to the acquisition of land for purposes of Ashraya Scheme of the State Government and cannot be read as being a bar applicable to the acquisition of land for the purposes of other Schemes and the present Scheme, in respect of which, the petitioner’s land is sought to be acquired, is not Ashraya Scheme, but to provide house sites for over 2000 persons belonging to the Scheduled Caste and Scheduled Tribe and therefore, the legal fetter sought to be pleaded is not applicable.

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By way of reply, the learned Counsel for the petitioner

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would point out that the alleged consideration of the objections filed by the petitioner is not a mis-interpretation. The learned Counsel would point out that the Circular indicates that no land could be acquired if it within a radius of 5 kilometre from the City Municipality Limits. The finding by the authority is to the effect that such land can be acquired if it is within a radius of 5 kilometre from the City Municipality. This itself is an indication of the non-application of mind and contrary finding recorded and cannot be said to be a consideration of the objections field by the petitioners.

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The further contention that the Circular placing restrictions would apply only to the Ashraya Scheme and not to any other Scheme, is also misleading, as such restrictions are in respect of acquisitions that may be made. It is also pointed out that the object of acquisition is to provide houses for 2000 people whereas there is no indication of acquisition of any

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other land apart from 3 acres belonging to the petitioner,

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which would hardly be sufficient to house 2000 persons and hence, would submit that the petition be allowed.

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Given the above rival contentions, as the State Government has failed to file any statement of objections and on a perusal of the record, as it is seen that the objections particularly raised by the petitioner are addressed in the manner that it has, it cannot be said that there was an effective hearing of the petitioner’s case, as there is apparently no application of

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mind in proceeding to hold that such acquisition was permissible in the face of the Circular referred to above. The further contention that the restriction was only in respect of the acquisition for the Ashraya Scheme and not for any other Scheme, is also not made clear in the purported findings at the inquiry. In this background, it is also not clear as to how the State proposed to provide 200 houses in 3 acre extent of land and it is also inexplicable that apart from the petitioner’s land,

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there is no proposal to acquire any other lands. Hence, for these infirmities, as there is no proper explanation forthcoming and in the absence of any pleadings on behalf of the State Government, the petition is allowed. The impugned proceedings are quashed.

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Sd/JUDGE

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Smt Hanumakka W/O Late Komaraiah v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt Hanumakka W/O Late Komaraiah v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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