Allowed

M P Bopaiah v. the State of Karnataka

Karnataka HC9 Jan 2014WP/6927/2012

Case brief

AI extract

What is this about?

This common order disposed of two sets of writ petitions challenging land acquisition proceedings by the Karnataka Housing Board. While the report submission delay under Section 5A did not vitiate the proceedings per precedent, the court quashed the acquisition because no State Government-approved Scheme existed as required for a local authority under the KHB Act.

What did the court decide?

The writ petitions were allowed and the land acquisition proceedings were quashed.

M P Bopaiah Vs the 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 09^Th DAY OF JANUARY 2014

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BEFORE:

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THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION No.21156 OF 2012 (LA-KHB)

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CONNECTED WITH

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WRIT PETITION Nos.6927-6928 OF 2012 (LA-KHB)

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IN W.P.No.21156/2012

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BETWEEN:

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M.P. Muthanna, Aged about 72 years, Son of Late M.G. Ponnappa, Residing at Sy.No.28/2, Opposite to Bharath Matha Convent, Koppa Village, Mysore Madikeri State High Way, Periyapatna Taluk, Mysore District.

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…PETITIONER

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(By Shri. P.S. Manjunath, Advocate )

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AND:

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The State of Karnataka, By its Secretary to Government, Revenue Department, M.S.Building, Dr. B.R. Ambedkar Veedhi, Bangalore – 560 001.

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The Karnataka Housing Board, Combined Administrative Board Building, Cauvery Bhavan, K.G.Road, Bangalore – 560 009, By its Commissioner.

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The Special Land Acquisition Officer, Karnataka Housing Board, Combined Administrative Board Building, Cauvery Bhavan, K.G.Road, Bangalore – 560 009. …RESPONDENTS

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(By Shri. H.M. Manjunath, Advocate for Respondent Nos. 2 and 3 Shri. H.T. Narendra Prasad, Additional Government Advocate for Respondent No.1)

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This Writ Petition filed under Article 226 of the Constitution of India, praying to quash the preliminary notification dated 24.3.2010 at Annexure-C issued by the second respondent and final notification dated 17.6.2011 at Annexure-H issued by the respondent no.1 and etc;

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IN W.P.Nos.6927-6928/2012

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BETWEEN:

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M.P. Bopaiah, Son of M.G.Ponnappa, Aged about 58 years,

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Smt. Vani Bopaiah, Wife of Bopaiah, Aged about 55 years,

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Both are residing at Koppa Village, Haranahalli Hobli, Periyapatna Taluk, Mysore District. …PETITIONERS

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(By Shri. R.S. Ravi, Advocate)

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AND:

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The State of Karnataka, Represented by its Secretary, Revenue Department (Land Acquisition), M.S.Building, Dr. Ambedkar Veedhi, Bangalore – 560 001.

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Karnataka Housing Board, Represented by its Commissioner, Cauvery Bhavan, Bangalore.

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The Special Land Acquisition Officer, Karnataka Housing Board, Cauvery Bhavan, Bangalore. …RESPONDENTS

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(By Shri. H.M. Manjunath and Shri. P.G. Adagatti, Advocates for Respondent Nos. 2 and 3

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Shri. H.T. Narendra Prasad, Additional Government Advocate for Respondent No.1)

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These Writ Petitions filed under Articles 226 and 227 of the Constitution of India, praying to quash the notification dated 24.3.2010 issued under Section 4(1) of the L.A.Act, published in the Official Gazette dated 1.4.2010 in so far as the petitioners’ land is concerned vide Annexure-B, issued by second respondent.

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These petitions, having been heard and reserved on 26.11.2013 and coming on for Pronouncement of Orders this day, the Court delivered the following:-

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O R D E R

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These petitions are heard together and are disposed of by

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this common order having regard to certain common issues that arise for consideration.

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The petitioner in W.P.No.21156/2012 is said to be the

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owner of the lands measuring 1 acre 4 guntas in Survey No.29; 2 acres 7 guntas in Survey No.31/1; 7 acres 37 guntas in Survey No.32/1 and 36 guntas in Survey No.41 of Koppa Village, Haranahalli Hobli, Periapatna Taluk, Mysore District.

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The lands are said to be adjacent to the Mysore-Madikere State Highway and a canal is said to pass through the petitioner’s lands and the same is well cultivated and is rich with plantation crops , fruit bearing trees & standing timber. The present market value of the land is said to be not less than Rs.50 lakh per acre.

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It is stated that the said lands are proposed to be acquired for the purposes of a project of the second respondent. A notification under Section 4(2) of the Land Acquisition Act, 1894 (Hereinafter referred to as the “LA Act” for brevity) dated

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24.3.2010, is said to have been issued. The notification, it is stated, did not indicate the nature of the project.

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The notification was said to have been published in the Official Gazette on 1.4.2010 and in the local papers on 10.4.2010. It is said that the notification was also published in the village chavadi on 21.6.2010. The petitioner and the other land owners are said to have filed their objections to the acquisition, inter-alia pointing out that the land was about 25 feet below the road level and the canal leading from the river Cauvery passed through the lands and during the rains, the river generally was in spate and inundated the land. Therefore, the acquisition of the land for any housing project was not practical. Especially, with regard to waste disposal, which was certain to contaminate and pollute the canal. In response to the notice the petitioner was called upon to attend a hearing on 18.8.2010. The petitioner claims that the petitioner had attended and filed his objections once more. But no further intimation was received as regards any report sent by the Land Acquisition Officer (LAO) to the State Government under Section 5A of the LA Act.

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It is contended that the LAO ought to have submitted a report to the State Government within six weeks from 15.6.2010 and a copy ought to have been sent to the petitioner simultaneously. There was no order passed by the Government condoning any delay in filing such report, even if it was filed subsequently. However, it is stated that the respondents issued a notification on 16.6.2010 giving up the acquisition proceedings in respect of the lands in Survey Nos.29, 31/1, 33/1 and 33/2, out of the notified extent of 6 acres 18 guntas, 4 acres 26 guntas, 3 acres 9 guntas, 6 acres 20 guntas and 1 acre 20 guntas and an extent of 5 acres 4 guntas 2 acres 2 acres 19 guntas, 2 acres 28 guntas, 4 acres 24 guntas and 4½ guntas.

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A Final notification dated 17.6.2011 was said to have been issued proposing to acquire only 19 acres and 38 ½ guntas – as

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under :

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Sy.No.	Extent Acres - Guntas
29	1 04
31/1	2 07
32/1	7 37
41	0 36

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Thereafter on 3.10.2011, the third respondent is said to have forwarded the notification dated 6.6.2011 to the petitioner, as regards the deletion of certain lands from the acquisition proceedings. This was said to have been accompanied by a report under Section 5-A of the LA Act. This circumstance had deprived the petitioner an opportunity to file a revision petition to the State Government under Section 15-A of the LA Act.

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The petitioner was said to have been served with a notice under Sections 9 and 10 of the LA Act, in response to which the petitioner is said to have filed a claim petition. It is, however, claimed that there is no further action taken in passing an award as on date of the present petition. It is in the above background that the present petition is filed.

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Re: W.P.Nos.6927- 6928/2012

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The petitioners are husband and wife. They are said to be owners of land bearing Survey No.31/2, 32/2, 33/2 and 33/1 measuring 3 acres 9 guntas, 4 acres 2 guntas, 1 acre 20 guntas and 6 acres 20 guntas, respectively, situated at Koppa Village, Haranahalli Hobli, Periyapatna taluk, Mysore District.

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The petitioners have developed the lands with innumerable

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fruit bearing trees, plantation crops and standing timber. After the said lands were notified for acquisition and on the objections filed by the petitioners, a portion of the lands were left out of the acquisition proceedings. But as the respondents proceeded further in respect of the remaining extent, the present petition is filed. The petitioners herein have raised almost identical contentions as the petitioner in W.P.No.21156/2012, in seeking to question the acquisition proceedings initiated under the very notifications that are the subject matter of the said petition.

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Shri P.S.Manjunath, counsel for the petitioner in W.P.No.21156/2012, contends as follows :

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That in view of sub-section (2) of Section 5A of the LA Act, the third respondent ought to have submitted a report under Section 5A of the LA Act to the State Government and simultaneously communicate to the petitioner of having sent the report. The records clearly disclose that the report prepared under Section 5A by the third respondent was not forwarded to the Government within the time stipulated, but it was forwarded to the Government only on 6.6.2011 and the petitioner was informed

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only on 3.10.2011 and thus there is a clear infraction of the mandatory provisions of Sub-section (2) of Section 5 and vitiates the entire acquisition proceedings.

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The final notification under Section 6(1) of the Act is published beyond the period of one year from the date of publication of the last of the preliminary notification, even though the notification is dated 17.6.2011. This is a false date, back-dated to make it appear that the notification under Section 6 of the LA Act was published within one year from the last publication in the village chavadi, namely, on 20.6.2010. The following sequence of events extracted from the file maintained by the second respondent, a copy of which is obtained by the petitioner under the Right to Information Act, 2005, clearly demonstrates that the notification was not ready on 7.6.2011, but was made ready after 20.6.2011 and that all the dates in the correspondence were antedated.

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The report of the third respondent (which did not bear any date) had been forwarded to the first respondent by the second respondent only on 6.6.2011, as is evident from the covering letter

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dated 6.6.2011, a copy of which is produced as Annexure-L to the petition.

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Upon receipt of the letter dated 6.6.2011 sent by the second respondent to the first respondent, enclosing a copy of the report of the third respondent, the first respondent addressed a letter on 14.6.2011 permitting the second respondent to proceed under Section 6(1-A) of the LA Act, subject to the conditions stipulated in the letter.

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It is contended that the letter at Annexure-L is not a declaration made by the first respondent that the land is needed for a public purpose, but only enabled the second respondent to carry out the following:

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(a) To cause the land, unless it had already been marked under Section 4, to be marked out.

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(b) To cause it to be measured, and if no plan was made, a plan to be made of the same and to report to the appropriate Government, the result of the operations under this sub-section.

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Further, on 14.6.2011 itself, the first respondent had sent a

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facsimile to the second respondent stating that directions have already been issued under Section 6(1A) and the preliminary

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notification would be rendered void on 20.06.2011 and therefore directed the second respondent to send a proposal under Section 6(1) immediately, failing which, the second respondent would be held responsible should the notification lapse.

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The letter dated 6.6.2011, along with the report of the third respondent and the letter dated 14.6.2011, which are marked as Annexures - L and M were said to have been received by the second respondent on 14.6.2011.

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Further, on 14.6.2011 itself, a letter was said to have been addressed to the Tahsildar, Periyapatna Taluk to conduct a joint survey and to send a report along with the sketch.

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It is therefore contended that there is nothing to indicate as to when this letter was dispatched from the Bangalore office and received by the Tahsildar, Periyapatna.

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On 14.6.2011, the second respondent had addressed a letter to the first respondent in response to the letter at Annexure-L and the facsimile at Annexure-N, enclosing a copy of the draft of the final notification to be issued under Section 6(1) of the LA Act, a report of joint measurement and several other documents

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requesting the Government to issue notification under Section 6(1) of the LA Act.

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It is further contended that on 17.6.2006, the State Government issued the declaration under Section 6(1) of the LA Act as the lands of the petitioner were required for public purpose and approved the draft of the final notification sent by the second respondent by inserting the reference number and the date as 17.6.2011.

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However, the note-sheet in the file maintained by the second respondent, a copy of which has been obtained by the petitioner under the RI Act, clearly disclosed that at paragraph - 112, the draft of the final notification to be sent to the Government was prepared only on 16.6.2011 and the draft of the notification was prepared by the Special LAO on 20.6.2011 as could be seen from para 114. Therefore, it is clear that the letter dated 14.6.2011 is a fabricated letter, ante-dated to 14.6.2011 because, on 14.6.2011, the draft of the notification to be forwarded to the Government was not ready, but it was ready only on 20.6.2011. It is alleged that it was apparent that even the officials at the Government level had actively colluded with the second

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respondent in making it appear that the letter dated 14.6.2011 was received on 16.6.2011 and the Government had accorded approval on 17.6.2011. It is pointed out that if the draft of the notification under Section 6(1) was prepared on 20.6.2011 as disclosed at Paragraph - 114 of the note, it is inexplicable as to how the Government could approve the notification under Section 6(1) of the Act on 17.06.2011 itself! The notification is gazetted only on 28.6.2011 and published in the news paper only on 4.8.2011. Therefore, it is contended that it is clear that notification under Section 6(1) was not issued within one year from 20.6.2010 and a fraudulent exercise had been carried out to make it appear that the notification has been issued within one year from the date of last of publication.

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It is also contended that having regard to Section 33(3) of the Karnataka Housing Board Act, 1962 (Hereinafter referred to as the ‘KHB Act’ for brevity), the acquisition of land for purposes of execution of any Scheme under the KHB Act is deemed to be for a public purpose and can be acquired only in accordance with the provisions of the LA Act. It is pointed out that none of the provisions of Sections 18, 18 A, 19 and 20 of the

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KHB Act have been complied with and no Scheme sanctioned by the State Government was published in the official gazette in respect of the proposed housing project in the land notified for acquisition. In the absence of the Scheme having been sanctioned by the State Government, the entire exercise of issuing notifications under the LA Act is vitiated.

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The respondents 2 and 3 have contested the petitions but have only sought to justify the same with reference to the record. The statement of objections filed do not meet the contentions raised.

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It is however, sought to be contended by the learned Government Advocate, Shri H.T. Narendra Prasad that in so far as the contention that the mandatory requirement under Section 5A of the LA Act, of the LAO, being required to file his report within a period stipulated under the said provision is with reference to the Karnataka Amendment to Section 5A as per Mysore Act No.17 of 1961, dated 24.8.1961 and not with reference to the Section 5A as amended from time to time and as it reads at present under the Central Act. It is hence contended that the Section as amended by

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the Central Act would prevail and that the tenor of the Section as amended by the Mysore Act No.17 of 1961 would be deemed to have been repealed.

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It is also contended that the question whether it was necessary that a Scheme be prepared and approved before the initiation of acquisition proceedings for the purposes of acquisition of land for the execution of any housing schemes under the KHB Act, is no longer res integra as the question has been settled by a decision of this court in M.Nagaraju vs. Government of Karnataka, WP 18596/2006 and connected cases dated 6.2.2009.,

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By way of reply, it is contended that the proposition as to the amendment to Section 5A of the LA Act by virtue of Mysore Act 17 of 1961 being redundant, in view of the tenor of the said Section under the Central Act as it presently reads is on an erroneous impression. The Karnataka amendment would not be relevant only if the same was repugnant to and was in conflict with the provision as it stands under the Central Act. As there is no apparent repugnancy and none which the respondents have pointed out, except that the rigour of the amended Section as per

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the Mysore Act, in relation to the LAO, being required to file his report within a stipulated period, is absent under the Central Act.

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Secondly, in so far as the contention that there is a need for a sanctioned Scheme before the State embarks on acquisition proceedings for the purpose of execution of a housing Scheme under the provisions of the KHB Act is concerned, reliance is sought to be placed on Chickrangaiah vs. State of Karnataka, 1996(7) Kar.LJ 846, Devaraja and others vs. The State of Karnataka, WP 9593/2007 )

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In the light of the above contentions, the points that arise for consideration in these petitions are :

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i. Whether the acquisition proceedings are vitiated by virtue

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of a requirement as contemplated under Section 5A of the LA Act (Karnataka Amendment Act No.17 of 1961) not having been complied with.

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ii. Whether the acquisition of land for the purposes of execution of housing Schemes under the KHB Act require a Scheme to be framed and sanctioned before the commencement of

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the acquisition proceedings, under the provisions of the LA Act

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and in the absence of such a Scheme, the proceedings are vitiated.

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iii. Whether the acquisition of lands, which are the subject matter of the present petitions, are free from other infirmities – and irregularities, as sought to be highlighted in the petition.

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In so far as the first point for consideration is concerned,

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we may firstly notice the tenor of Section 5-A of the LA Act, juxtaposed with the Section as amended by the Karnataka Amendment Act 17 of 1961. We may therefore extract the same for ready reference :

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Section 5A of the LA Act

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“5A. Hearing of objections.—(1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may,² [within thirty days from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be.”

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² Subs. by Act 68 of 1984, sec.5, for “within thirty days after the issue of the notification” (w.e.f. 24.9.1984)

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(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard¹ [in person or by any person authorised by him in this behalf] or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, 2[either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government]. The decision of the³ [appropriate Government] on the objections shall be final.

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(3) For the purposes of this Section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.]

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1 Subs. by Act 68 of 1984, Sec.5, for “either in person” (w.e.f. 24.9.1984) 2 Subs. by Act 13 of 1967, Sec.2, for certain words (w.e.f. 12.4.1967)

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3 Subs. by the A.O.1950, for “Provincial Government:

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Section 5-A as amended by Karnataka Act No.17 of 1961

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“5-A. Hearing of objections.—(1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, ²[on or before the date specified in the notification under sub-section (1) of Section 4 in this behalf], object to the acquisition of the land or of any land in the locality, as the case may be.

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(2) Every objection under sub-section (1) shall be made to the ³[Deputy Commissioner] in writing⁴ [setting out the grounds thereof] and the 5[Deputy Commissioner] shall give the objector an opportunity of being heard⁶ [in person or by any person authorised by him in this behalf] or by pleader and shall, after hearing all such objections

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² Substituted for the words “within thirty days after the issue of the notification” by Karnataka Act No.17 of 1961, w.e.f. 24-08-1961

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³ Substituted for the word “Collector” by Karnataka Act No.17 of 1961, w.e.f. 24-8-1961

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4 Inserted by Karnataka Act No.17 of 1961, w.e.f. 24-8-1961

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5 Substituted for the word “Collector” by Karnataka Act No.17 of 1961, w.e.f. 24-8-1961

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6 Substituted for the words “either in person” by Act No.68 of 1984

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and after making such further inquiry, if any, as he thinks necessary,⁷ [either make a report in respect of the land which has been notified under Section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government⁸ [before the expiry of six weeks from the last date for filing objections or before the expiry of two weeks from the date on which he receives the report under sub-section (4) of Section 4 whichever is later] 9[and a report containing his recommendations on the objections and the fact of having submitted the report shall be communicated to the objectors:

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Provided that the appropriate Government may, if it is satisfied that there was sufficient cause for the delay, condone any delay in the submission of the report by a period not exceeding one year] together with the record of the proceedings held by him, for the decision of that Government.] The decision of the¹⁰ [appropriate Government] on the objections shall be final.

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(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.]”

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Substituted for the words “submit the case for the decision of the appropriate Government, together with the record of the proceedings held by him and a report containing his recommendations on the objections” by Act No.13 of 1967

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Inserted by Karnataka Act No.17 of 1961, w.e.f. 24-8-1961

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Substituted for the words “and a report containing his recommendations on the objections” by Karnataka Act No.17 of 1961, w.e.f. 24-8-1961

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Substituted for the words “Provincial Government” by the A.O.1950

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The question whether the requirement under Section 5-A that the dispatch of the report by the Deputy commissioner, intimation should be imparted to the objectors about such dispatch is imperative, has been considered by a Division Bench of this Court in the case of V.K. Kangan v. State of Mysore, 1966(2) Mys.LJ 739 . And it is held as follows :-

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“The requirement of S.5A that after the dispatch of the report by the Deputy Commissioner, intimation should be imparted to the objectors about such dispatch is imperative. It is so, because the purpose of that requirement is that the objectors should have an opportunity to make suitable representations to the Government if the recommendation of the Deputy Commissioner is adverse to them. The omission to impart such information, is, thus a transgression of a mandatory provision which results in the deprivation of a statutory opportunity to which the objectors are entitled, to make a representation against a proposed declaration under S.6, and so, must lead to the nullification of the declaration subsequently made. That is the enunciation made by this Court in W.P.1933 of 1963, and, in our opinion, that enunciation is a correct statement of the law.”

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However, in the case of S.P Subramanya Shetty v. Deputy Commissioner, Mercara, 1990(1) Kar.LJ 185, another Division Bench of this Court has held that the view expressed in V.K.Kangan is incorrect and has held thus :

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“7. In order to appreciate this point, we will now extract Section 5-A(2) of the Land Acquisition Act, as amended by Karnataka Act 17 of 1961:

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"(2) Every objection under Sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by Pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, Sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final."

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It is true the word 'shall' is used in this particular sub-section requiring the Enquiring Authority to communicate the fact of having submitted the report to the objectors. Factually in this case, we accept, what the learned Government Advocate states that the two Advocates were intimated of the same on 8-9-1982. Normally, this is

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sufficient for the purpose of the disposal of the Writ Petition.

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8. But since we find some substance in the argument of the learned Government Advocate as to the position of law, which requires to be settled, we would now make a reference to 1966(2) My.L.J. 739.

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9. The Division Bench in dealing with a similar contention observed as follows:

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"So, we must now proceed straight to the investigation of the argument founded on Section 5A of the Act as it stands after its amendment which came into force on August 24, 1961. That Section requires the Deputy Commissioner to make an enquiry into the objections and send a report to the Government containing his recommendations on the objections. What that Section, in addition, requires him to do is to communicate to the objectors the fact that he had submitted that report to the Government. It is only thereafter that the Government could make a declaration under Section 6 if they are satisfied on a consideration of the report, that the property was required for any of the purposes enumerated in that Section.

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The requirement of Section 5A that after the despatch of the report by the Deputy Commissioner, intimation should be imparted to the objectors about such despatch is imperative. It is so, because the purpose of that requirement is that the objectors should have an opportunity to make suitable representations to the Government if the recommendation of the Deputy Commissioner is adverse to them. The omission to impart such information is, thus a transgression of a mandatory

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provision which results in the deprivation of a statutory opportunity to which the objectors are entitled to make a representation against a proposed declaration under Section 6 and so, must lead to the nullification of the declaration subsequently made. That is the enunciation made by this Court in W.P. 1933 of 1963 and, in our opinion, that enunciation is a correct statement of law."

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As a matter of fact, there cannot be any quarrel with regard to what is stated in the first paragraph extracted above.

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However, we are unable to subscribe to the proposition of law laid down in the second paragraph. According to the Division Bench, the omission to impart the information relating to the submission of the report to the Government, is a transgression of mandatory provision. May be, this conclusion came to be arrived at because of the word 'shall'. As is well-known that alone is not conclusive as rightly contended by Mr. Gupta, it has to be looked at from the point of view of prejudice. While saying so, one must be alive to the situation that what the Deputy Commissioner is required to furnish is not the copy of the report, but only an intimation of having submitted the report or an information in relation to the submission of the report to the Government. Such a report as is settled in law is nothing more than an inter-departmental communication. It is one thing to say that if the copy of the report itself has to be forwarded to the

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objector, it would be helpful to them for any further representations by way of memorials to the Government; that is not so.

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Whatever it may be, we find it difficult to accept this statement of law that the omission to impart such an information results in the deprivation of a statutory opportunity to make representation against the proposed Declaration under Section 6. Section 5-A nowhere contemplates or even suggests that the objectors have a statutory opportunity to putforth objections before the Government while making Declaration under Section 6. It is one thing to say that dehors the statute, the representations could be putforth, it is another thing to say that there is a deprivation of statutory opportunity. With great respect, we are unable to agree. It must also be added here at this stage that none of the Counsel has brought any Rule to our attention where the statutory opportunity is provided and therefore, it may require our consideration. Certainly having regard to the factual aspect which is brought to our attention by the learned Counsel with which we have agreed, we do not propose to do so in this case. However, we thought it was necessary on our part to indicate our mind and that is what we have done.”

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It is unfortunate that a Bench of co-ordinate

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jurisdiction has expressly overruled the earlier opinionwhen it was appropriate for the latter Bench to have referred

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the difference of opinion to a larger Bench. In any event, proceeding on the footing that the view expressed in Shetty’ s case has attained finality, this Bench is bound by the later view expressed and hence the question whether the above requirement under Section 5A is imperative or not has to be answered in the negative.

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In the above view of the matter, it may not be relevant to examine whether the argument canvassed by the learned Additional Government Advocate, that the Central Act would override the amended part of the Section, in terms of the Karnataka Amendment Act, 1961. It is however, of interest to note that the said argument would have to be viewed in the light of settled principles in that regard.

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“……A. State law may be ‘repugnant’ in any of the following ways¹⁶ -

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(i) When there is direct conflict between the two provisions.¹⁷ This may happen –

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(a) Where one cannot be obeyed without disobeying the other.¹⁸

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(b) Two enactments may also be inconsistent although obedience to each of them may be possible without disobeying the other. Statutes to more than impose duties; they may, for instance, confer rights; and one statute is inconsistent with another when it takes away a right conferred by the other even though the right be one which might be waived or abandoned without disobeying the statute which conferred the right.¹⁹

¶165

Karunanidhi M. v. Union of India, AIR 1979 SC 898 (Para-8); (1979) 3 SCC 431; Vijay Kumar Sharma v. State of Karnataka, (1990)2 SCC 562; AIR 1990 SC 2072.

¶166

Deep Chand v. State of U.P., AIR 1959 SC 648; Premnath Kaul v. State of J & K., AIR 1959 SC 749; 1959 Supp.(2) SCR 270, Barai T v. Henry An Hone, AIR 1983 SC 150 (para 5); (1983)1 SCC 177; Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019 (paras 68,69,76): (1983)4 SCC 45: Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752: 1955(1) SCR 799; Engineering Kamgar Union v. Electro Steels Castings Ltd., (2004)6 SCC 36, 46 (para 20): AIR 2004 SC 2401. 18. Zaverbhai Amaidas V. State of Bombay, AIR 1954 SC 752: 1955(1) SCR 799. 19. Barai T. v. Henry An Hone, AIR 1983 SC 150 (paras 15, 17-18, 22, 25-26) : (1983) 1 SCC 177.

¶167

¶168

In other words, repugnancy is not confined only to the case where there is a direct conflict between two Legislature, e.g., where the one says ‘do’ what the other says ‘don’t’. It may also arise where both laws operate in the same field and the two cannot possibly stand together,²⁰ e.g., where both prescribed punishment for the same offence but the punishment differs²¹ in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over a State law, under Art. 254(2).

¶169

(c) The principle of implied repeal also called repeal by necessary implication may be applied to determine repugnancy for the purposes of Art 254(2).²² But there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.²³

¶170

Karunanidhi M. V. Union of India, AIR 1979 SC 898 (para 8) : (1979) 3 SCC 431.

¶171

Barai T. v. Henry An Hone, AIR 1983 SC 150 (paras 15, 17-18,22, 25-26): (1983) 1 SCC 177. See also M.P. AIT Permit Owners Assn. v. State of M.P., (2004)1 SCC 320, 327 (para 16): AIR 2004 SC 981; Engineering Kamgar Union v. Electro Steels Castings Ltd., (2004) 6 SCC 36, 47 (para 21): AIR 2004 SC 2401.

¶172

Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752; 1955(1) SCR 799, Barai T v. Henry An Hone, AIR 1983 SC 150 (paras 15, 17-18, 22, 25-26): (1983)1 SCC 177.

¶173

Karunanidhi M. V. Union of India, AIR 1979 SC 898 (para 8) : (1979) 3 SCC 431; Baliah T.S. v. Rangachari T.S., AIR 1969 SC 701 : 1963(3) SCR 65; Gaurishankar Gaur v. State of U.P. (1994)1 SCC 92; AIR 1994 SC 169.

¶174

¶175

(ii) Though there may not be any direct conflict between the Union and the State Legislation, where it is evident that the Union Parliament intended its legislation to be a complete and exhaustive code²⁴ relating to the subject, it shall be taken that the Union law has replaced State legislation relating to the subject.^25”

¶176

Hence, from the above enunciation extracted from the Shorter Constitution of India by D.D.Basu, 14^th Edition at Pages 1700-1701, it cannot be said that the Section as amended by the Karnataka Amendment Act, 17 of 1961 is impliedly overruled, as sought to be canvassed by the learned Government Advocate.

¶177

In so far as the second point for consideration is concerned, it is to be noticed 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 :-

¶178

“(vi) the provision of land for carrying out

¶179

any educational, housing, health or slum clearance scheme sponsored by Government, or by any authority established by Government for

¶180

Deep Chand v. State of U.P., AIR 1959 SC 648; Premnath Kaul v. State of J & K., AIR 1959 SC 749; 1959 Supp.(2) SCR 270, Barai T v. Henry An Hone, AIR 1983 SC 150 (para 5); (1983)1 SCC 177; Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019 (paras 68,69,76) : (1983) 4 SCC 45

¶181

Tika Ramji v. State of U.P., (1956) SCR 393; AIR 1956 SC 676; State of Assam v.Horizon Union, AIR 1967 SC 442; 1967(1) SCR 484.

¶182

¶183

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;”

¶184

That Sub-section(4) of Section 3 of the KHB Act lays down

¶185

thus :

¶186

“(4) For the purpose of this Act and the Land Acquisition Act, 1894, the Board shall be deemed to be a Local Authority.”

¶187

Therefore, the provision of land for a local authority can

¶188

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.

¶189

It is also necessary to notice Section 32 of the KHB Act :

¶190

“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

¶191

¶192

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.

¶193

(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.”

¶194

The present Scheme is not one entrusted to the KHB by the State Government. 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.

¶195

“S.33………………….

¶196

(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.”

¶197

¶198

Therefore, 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 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.

¶199

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 acquiring land only in accordance with a Scheme duly approved by the State Government.

¶200

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.

¶201

¶202

Hence this point would have to be answered in the

¶203

affirmative.

¶204

As regards the several infirmities and inconsistencies

¶205

pointed out by Shri P.S.Manjunath with reference to the record, there is no clear explanation forthcoming from the respondents in respect of the same. It is however unnecessary to address the same if the acquisition proceedings are vitiated on account of a primary requirement of law as already stated.

¶206

Accordingly, the petitions are allowed and the acquisition

¶207

proceedings are quashed in the light of the view expressed on Point no.2 above.

¶208

Sd/JUDGE

¶209

nv*

M P Bopaiah v. the State of Karnataka

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M P Bopaiah v. the State of Karnataka

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