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B.K. Abdul Azeez Vs. the State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 75 of 1955
Judge
Reported inAIR1957Kant12; AIR1957Mys12
ActsConstitution of India - Article 226; Land Acquisition Act, 1894 - Sections 4, 4(1), 5(A), 6 and 17(4) ; Motor Vehicles Act
AppellantB.K. Abdul Azeez
RespondentThe State of Mysore and anr.
Appellant AdvocateG.S. Ullal, Adv.
Respondent AdvocateD.M. Chandrasekhar, Adv. for Adv. General and ;S.K. Venkataranga Iyengar, Adv.
Excerpt:
.....tribunal that petitioner was not a full brother of the deceased tenant transfer of agricultural land with occupancy rights in favour of heirs - held, the object of section 21 being to confine the rights of tenancy only to stranger is barred. finding of the tribunal was upheld. - anyway, it has to be pointed out that the provision contained in section 17(4) that the government may exclude the operation of section 5-a in particular cases referred to therein is an emergent measure to be retorted to in exceptional cases and such an emergent power should not be converted into a normal measure so as to defeat the very object with which section 5-a has been enacted. we think that the petition has to fail, 12. in the result, this writ petition fails andthe same stands dismissed with costs,..........to principles of natural justice; and secondly, that the provisions of sections 4, 5(a) and 17(4), land acquisition act, have not been complied with and that, therefore, the order in question is invalid.5. in the counter-affidavit filed by respondent 1 government, it is alleged that the deputy commissioner's order was set aside by the higher authorities, that the government sanctioned acquisition of section no. 1 on 20-10-1953, that on the application of the petitioner an ad interim stay order was issued staying further proceedings of acquisition, that after consideration of the petitioner's representation, they dismissed his application and vacated the stay order on 9-6-1954, that it is not true that the petitioner's advocate was promised a full hearing, that there was also no necessity.....
Judgment:

Padmanabhiah, J.

1. This is an application filed by the petitioner under Article 226 of the Constitution of India praying for the issue of an appropriate writ, order or direction for quashing the ex parte order of dismissal passed by respondent 1 Government on the application made by him, and for restoration of the lands bearing Section Nos. 1 and 14 at Gubbi Town, which are ordered to be acquired.

2. The facts that have given rise to this petition are briefly as follows:

3. The petitioner is a resident of Gubbi Town and respondent 1 is the State Government, respondent 2 being the Gubbi Town Municipality. The petitioner is the owner of Section No. 1 having an extent of 15 guntas and Section No. 14 having an extent of 3U guntas. Respondent 1 Government started acquisition proceedings in respect of these lands at the instance of respondent 2 Municipality.

At that stage the petitioner, who had been per. mitted by the Deputy Commissioner to convert s. No, 14 into sites, applied for a stay or the proceedings for acquisition and a stay order was passed. But ultimately respondent 1 Government dismissed the application filed by the petitioner for dropping the acquisition proceedings and ordered the same to proceed. It is this order that is impugned in the present petition.

4. The grievance of the petitioner is two-fold: firstly, that he has not been given a hearing before respondent 1 Government dismissed his application and that the procedure adopted Is opposed to principles of natural justice; and secondly, that the provisions of Sections 4, 5(A) and 17(4), Land Acquisition Act, have not been complied with and that, therefore, the order in question is invalid.

5. In the counter-affidavit filed by respondent 1 Government, it is alleged that the Deputy Commissioner's order was set aside by the higher authorities, that the Government sanctioned acquisition of Section No. 1 on 20-10-1953, that on the application of the petitioner an ad interim stay order was issued staying further proceedings of acquisition, that after consideration of the petitioner's representation, they dismissed his application and vacated the stay order on 9-6-1954, that it is not true that the petitioner's advocate was promised a full hearing, that there was also no necessity for doing so inasmuch as he was not entitled to it, that the provisions of Land Acquisition Act have not been contravened, that the State Government under Section 17(4), Land Acquisition Act directed that the provisions of Section 5(A) shall not apply to the acquisition of this land, that therefore there was no need for any enquiry under Section 5(A), that the acquisition is bona fide and for a public purpose and that the application has to be dismissed.

6. We see no merit in either of the contentions raised by the petitioner. The first ground of attack is that the petitioner was not given an oral hearing before his petition dated 23-11-1953 to the State Government was dismissed. What happened was this: the State Government sanctioned acquisition of petitioner's land Section No. 1 on 20-10-53 and on the application filed by the petitioner an ad interim stay order was issued staying further proceedings.

After consideration of the petitioner's representation the State Government dismissed the application on 9-6-54 art vacated the ad interim stay order. The petitioner's contention is that his counsel was promised a hearing before disposing of his application, that no oral hearing was given as promised, that the order of the State Government is opposed to principles of natural justice and that, therefore, it is liable to be declared null and void.

7. It is not correct to say that the petitioner's counsel was not given any hearing at all. At the stage of stay of the acquisition proceedings the learned counsel was heard in full and a stay order was passed. The grievance of the petitioner that his counsel was given no oral hearing is without any substance. The contention urged on the side of the respondent-Government is that there was no necessity for any such oral hearing being given. We think that the said contention has to be upheld.

In all such cases of quasi-judicial tribunals, what is required is that sufficient opportunity should be given to the parties who approach them for relief. The learned counsel for the petitioner was not able to draw our attention to any provision or case law where it is held that oral hearing must be given in cases of this type. The petitioner had set forth all his grievances in the application filed by him at the time he applied for stay. After considering those representations the State Government passed an order dismissing the same.

What is expected of quasi-judicial tribunals in such matters is laid down in the cases in Mahabir Motor Co., Bhagalpur v. State of Bihar : AIR1956Pat437 and In re Shanmuga Mudaliar : AIR1951Mad276 . In the first case, which was a case under the Motor Vehicles Act, it is held by their Lordships that it is not essential that the State Government should give a personal hearing or a hearing through a lawyer before disposing of an application. In their Lordships' opinion, it is sufficient if the party is given an opportunity to put forth his case or to defend himself or to show cause against the proposed order.

It is further pointed out in the same case that when once this requirement is fulfilled the principles or natural justice cannot be said to have been violated. Whether a personal hearing should be given or not will depend upon the facts and circumstances of each case. In this case, as already observed, the petitioner's objections were considered by the State Government and the order of dismissal was made. The said order cannot be said to be vitiated merely because no oral hearing was given to the petitioner's advocate.

8. In the second case, it is pointed out that all that the quasi-judicial tribunals are expected to do is to give a sufficient opportunity to the persons who approach them for relief. In that case also the petitioner has stated all the grounds of objection to the order of the Revenue Divisional Officer in his petition to the Board of Revenue. Neither the petitioner nor his counsel was given a personal hearing and the Board dismissed that application.

The contention that the order was invalid because no oral hearing was given and that the principles of natural justice had been violated was negatived in that case. Under these circumstances, we are of opinion that the order of dismissal passed by respondent 1 Government without giving an oral hearing to the petitioner's counsel is not vitiated.

9. The next grievance of the petitioner is that the preliminary notice under Section 4(1), Land Acquisition Act and the declaration under Section 6 of the same Act have both been published in the same issue of the official gazette dated 3-13-53 and that this is an illegality which vitiates the entire proceedings.

We have examined the relevant provisions and we agree with the contention of the learned counsel for the petitioner that the declaration under Section 6 , of the Act should have been published after the notification under Section 4(1), Land Acquisition Act, had been published. But we are not in agreement with the learned counsel for the petitioner that as a result of the simultaneous publication, the order of Government should be held illegal or void.

10. Section 17(4), Land Acquisition Act, runs thus:--

'In the case any land to which in the opinion of the Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the Government may direct that the provisions of Section 5A shall not apply, and if it does so direct, a declaration may be made under Section 6, in respect of the land at any time after the publication of the notification under Section 4, sub-Section (1).'

The wording of the section is quite clear and stress must be laid on the word 'after' appearing after the words 'at any time' and before the words 'publication of the notification', etc., in Section 17(4) & there can be no doubt that the declaration under Section 6 has to be made after the publication of the notification under Section 4(1).

It was further contended by the learned counsel for the petitioner that the Legislature provided for this interval between the publication of the modification under Section 4(1) and the declaration under Section 6 for the benefit of the party so that he might file objections to the acquisition during that interval, it is in this contention that we see no substance. When the Legislature took away the right of the party to file objections under Section 5-A by means of Section 17(4), there is no meaning or substance in saying that the Legislature intended to give an opportunity to the party by providing an interval between the publication of the notice under Section 4(1) and the declaration under Section 6, Land Acquisition Act. That could not have been the intention of the Legislature.

It appears to us that this gap was and is intended for the benefit of the Government. After the notification under Section 4(1) the Legislature must have intended to give some time to the State Government to consider if there existed a public purpose and if the land had really to be acquired. No doubt, the simultaneous publication of the notification under Section 4(1) and the declaration under Section 6 is not in order and the same is open to objection inasmuch as it contravenes the provisions of Section 17(4).

But what we have to consider is whether it Is an illegality vitiating the entire proceedings or only an irregularity, considering the context in which Section 17(4) comes in and the wording of that section, we do not agree that the provisions of that section are mandatory in the sense that a contravention of the same would vitiate the proceedings already taken. At the most, it is an irregularity not affecting the merits of the 'acquisition inasmuch as it has not prejudiced the petitioner.

11. We are told that the provisions of Section 17(4) are made applicable to almost alt the acquisition proceedings undertaken by the State Government. We do not know how far this is true. Anyway, it has to be pointed out that the provision contained in Section 17(4) that the Government may exclude the operation of Section 5-A in particular cases referred to therein is an emergent measure to be retorted to in exceptional cases and such an emergent power should not be converted into a normal measure so as to defeat the very object with which Section 5-A has been enacted. We think that the petition has to fail,

12. In the result, this writ petition fails andthe same stands dismissed with costs, Advocate'sfee Rs. 100/-.

13. Petition dismissed.


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