M N Aravind S/O M R Nagaraj Vs State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION ISSUED BY RESPONDENT NO.2 DATED 27.11.2009 PUBLISHED IN THE OFFICIAL GAZETTE DATED 14.1.2010 PRODUCED AS ANNEXURE-S, AND ALSO THE NOTIFICATION ISSUED IN TERMS OF SECTION 6(1) OF THE ACT DATED 7.5.2011 PUBLISHED IN THE OFFICIAL GAZETTE ON 4.6.2011 PRODUCED AS ANNEXURE-A, C TO THE WRIT PETITION SO FAR AS THEY RELATE TO THE LANDS OF THE PETITIONER IS CONCERNED, ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE D K SINGH)

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On earlier occasion, there was no representation on behalf of the petitioner. Even today, the petitioner is neither present nor is represented by his counsel to prosecute the petition.

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Heard the learned Additional Government Advocate

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Sri. B.S. Guruswamy for respondent No.1 and learned counsel

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Smt. Pushpakantha for respondent Nos.2 and 3.

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HC-KAR

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The challenge in this petition is to the notification

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dated 27.11.2009 bearing No.KHB/LAQ.149/2009-10 issued by the Karnataka Housing Board in terms of Section 6(1) of the Land Acquisition Act, 1894. The only question which has been raised in this petition is that without sanctioning the scheme by the State Government, the land acquisition proceedings have been undertaken by the State Government for Housing Board. The said issue is no longer resintegra in view of the judgment of the Hon'ble Supreme Court in the case of KARNATAKA

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HOUSING BOARD AND ANOTHER Vs. STATE OF KARNATAKA AND OTHERS reported in (2022) 18 SCC 194 wherein it has been held that existence of sanction and published scheme is not a precondition for initiation of acquisition proceedings for the purpose of Karnataka Housing board. The relevant paragraphs No.76 to 80 of the aforesaid judgment reads as under:

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"76 . We have already noted the provisions under Section 24 of the KHB Act and held that Section 24(1) speaks of the question as to when KHB could proceed to execute the housing schemes, land development schemes and labour housing schemes included in the programme. That apart, we have also held that Section 24(2) pertains to executability of such a scheme not included in the

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programme and in respect of such a scheme falling within the sweep of Section 24(2) the mandate thereunder is that it shall not be executed unless the same has been sanctioned by the State Government. In such circumstances, a conjoint reading of Section 33(2) and Section 24(2), of the KHB Act would make it clear that prior approval or sanction of any scheme is not required for compulsory acquisition invoking the power under Section 33(2). This is because in terms of the State Amendment of Section 4(1), notification marking initiation of acquisition proceedings under the LA Act, is issued by the appropriate Government or by the Deputy Commissioner and thereafter, the said formal expression of the decision to start acquisition proceedings gets into concrete shape and form by publication in the Official Gazette of the Government of Karnataka. In such circumstances, if it is for the purposes of KHB, in other words, for implementation of a scheme of KHB, what is statutorily required is to wait for its execution till the same is sanctioned by the State Government. In other words, the mere factum of non-existence of a sanctioned and published scheme prior to the initiation of acquisition proceedings, by itself, will not make the notifications and the initiated acquisition proceedings null and void.

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77. One another aspect also requires reference in the context of the rival contentions and situation. The scheme of the Act reveals that KHB has also a duty to undertake the schemes entrusted to it by the State Government. Section 32(1) of the KHB Act exclusively makes it clear

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that in respect of scheme entrusted to KHB by the Government, provisions under Sections 18 to 24 (both inclusive) shall not be applicable, except to such an extent and subject to such modifications as may be specified in general or special order made by the State Government. It is also to be noted that in respect of housing schemes, land development schemes or labour housing schemes entrusted to the Board by the Government, sometimes such entrustment takes place only after acquisition of the necessary extent of land by the State Government.

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78. All the abovementioned provisions and situations would reveal that the contention of the appellants other than the appellants in the appeal arising from SLP (C) No. 1361 of 2021 and Respondents 2 and 3 therein that existence of a finally sanctioned scheme is a precondition for initiation of acquisition of any land or any interest therein is a precondition and its non-existence must invariably make the acquisition proceedings null and void, are unsustainable and liable to be rejected. Hence, on a careful perusal of Sections 18 to 24 (both inclusive) and Section 33(2) we have no hesitation to hold that the KHB Act carry no statutory insistence that for initiation of acquisition invoking the power under Section 33(2), for the purposes of the KHB Act/KHB, framing, finalisation and publication of a housing scheme or land development scheme or labour housing scheme, is a precondition.

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79. For all the above reasons we answer the mooted question in the negative and to the effect that initiation of proceedings for acquisition invoking the power under Section 33(2) of the KHB Act without the housing scheme being in existence or the housing scheme not having been sanctioned under Section 24(2) thereof, would not render such proceedings null and void. We also hold that unless sanction is obtained from the State Government for execution of any scheme therein, in terms of Section 24(2) of the KHB Act, the actual act to complete the process viz. execution shall not be effected thereon.

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80. In view of the answers to the moot question and the other allied issues we pass the following orders:

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80.1. In the appeal arising from SLP (C) No. 1361 of 2021 no question other than the moot question (decided as per this judgment) was considered. In view of our clear conclusions and findings the judgment and order dated 1- 12-2020 in Karnataka Housing Board v. State of Karnataka [Karnataka Housing Board v. State of Karnataka, 2020 SCC OnLine Kar 4998] , where the law on the question was exposited to the contrary, is liable to be set aside. Accordingly, it is set aside. Nothing further survives for consideration in this appeal. Consequently, Writ Petition No. 25184 of 2011 from which Writ Appeal No. 5712 of 2012 arose, stands dismissed.

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80.2. In Civil Appeals Nos. 7011-13 of 2013, 9002-03 of 2013 and 7017-19 of 2013 the position is that as per the

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common judgment and orders, respectively, in Writ Petitions Nos. 4625 of 2004, 18596 of 2006, 11568 of 2008 and 47616 of 2004 dated 26-4-2013 [S. Udaya Shankar v. State of Karnataka, 2013 SCC OnLine Kar 10851]^, [B.N. Byregowda v. State of Karnataka, 2013 SCC OnLine Kar 10852] and also the judgment in M. Nagaraju v. State of Karnataka [M. Nagaraju v. State of Karnataka, 2013 SCC OnLine Kar 4596] , the Division Bench virtually decided that for initiation of acquisition proceedings for the purposes of KHB, existence of a sanctioned and published scheme is not a precondition. Consequently, the Division Bench confirmed the decision of the learned Single Judge on that question and thereupon, the writ petitions/writ appeals concerned were disposed of with request to the learned Single Judge to decide whether Sections 18-23 of the KHB Act were complied with or not. Obviously, those writ petitions are now pending. The issue is whether in view of the facts involved in those cases, the question of scrupulous adherence of Sections 18-23 of the KHB Act survives or needs to be followed, requires consideration depending upon the nature of acquisition and other relevant facts. Hence, the civil appeals shall be listed before appropriate Bench for consideration on their own merits, subject to this judgment."

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Even otherwise, we do not find any substance in the writ petition as the issue is squarely covered by the judgment of the Hon'ble Supreme Court in the aforesaid case and

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