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Patel Munireddy and ors. Vs. the Deputy Commissioner, Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1977Kant91; ILR1976KAR1467
ActsKarnataka Acquisition of Land for Grant of House Sites Act, 1973 - Sections 3 - Rule 6 and 6(3)
AppellantPatel Munireddy and ors.
RespondentThe Deputy Commissioner, Bangalore and ors.
Appellant AdvocateH.K. Vasudeva Reddy, Adv. for ;Kesvy and Co., ;S.G. Doddakale Gowda, ;T.R. Subbanna, ;S. Shiva Ram, ;G. Gangi Reddy and ;M.G. Narasimhaswamy, Advs.
Respondent AdvocateK.S. Puttaswamy, Addl. Government Adv.
Excerpt:
.....for acquisition of the land clearly indicating therein the land that is to be granted under the land grant rules, lands donated and the land to be acquired under the land acquisition act. (4) after orders are passed under subsection (3), where the state government is satisfied that any land should be acquired for the purpose specified in the notification issued under sub-section (1), a declaration shall, by notification be made to that effect. he might as well say that he would participate in the enquiry and effectively counter the objections raised. i need not add that they must act in good faith and fairly listen to both sides, for there is a duty lying upon every one who decides anything, but i do not think that they are bound to treat such a question as though it were a trial...........is as follows: -the acquisition proceedings in each of these cases were initiated by the local block development officer. upon the publication of the notifications under section 3 (1) of the act, the petitioners filed their objections within the time allowed to them. but the assistant commissioner, who received the objections, did not hold the enquiry as required under rule 6 of the rules. he did not either send their objections to the block development officer for his comments, or heard him in the presence of the petitioners. the petitioners have been thus deprived of an opportunity to contradict the opinion of the block development officer and convince the assistant commissioner to drop the proceedings. the hearing of the block development officer in the presence of the petitioners.....
Judgment:
ORDER

1. The lands of the petitioners have been acquired for providing house-sites to the weaker sections of the Community under the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (Karnataka Act 18 of 1973) (hereinafter referred to as 'the Act'), and the Rules framed there under. The validity of the acquisition proceedings is called into question in all these petitions.

2. The common complaint of the petitioners, to put it shortly, is as follows: -

The acquisition proceedings in each of these cases were initiated by the local Block Development Officer. Upon the publication of the notifications under Section 3 (1) of the Act, the petitioners filed their objections within the time allowed to them. But the Assistant Commissioner, who received the objections, did not hold the enquiry as required under Rule 6 of the Rules. He did not either send their objections to the Block Development Officer for his comments, or heard him in the presence of the petitioners. The petitioners have been thus deprived of an opportunity to contradict the opinion of the Block Development Officer and convince the Assistant Commissioner to drop the proceedings. The hearing of the Block Development Officer in the presence of the petitioners was mandatory, or at least affording an opportunity of being heard, by notifying common date of hearing was a must. The non-observance of these mandatory provisions has rendered the acquisition proceedings to be invalid.

3. On behalf of the respondents, although no Statement of Objections has been filed, it is admitted that the Block Development Officer who initiated the acquisition proceedings has not notified the date of hearing of the objections, and also not heard when the petitioners or their advocates were heard an a particular date.

The question is, whether it was obligatory to have afforded an opportunity of being heard to the Block Development Officer and whether the Assistant Commissioner ought to have heard him in the presence of the petitioners and other objectors. Mr.Puttaswamy, learned High Court Government Advocate contended to the contrary. He said that the omission to follow that procedure would not invalidate the acquisition since the petitioners were not denied of their right of hearing,

4. The contentions could be properly determined after referring to the circumstances under which the Act and the Rules were enacted. The Government of India introduced a scheme to provide house-sites to the families of landless workers who do not already own a site or a house or a hut. The scheme directed the State Governments and the Administration of the Union Territories to take urgent action to enact suitable legislation conferring homestead rights on landless workers in rural areas and utilize available land in villages, for providing house sites, free of costs, to families of landless workers in rural areas. The entire cost of acquiring and developing land for providing house sites to such families would be met by the Government of India as 100% grant assistance which would be made available to States and Union Territories outside their Plan Ceilings. Details of the Scheme introduced by the Government of India are set out as Annexure to the State Government Notification G. 0. No. DPC 15 DRH-72, dated 13th May 1972. Pursuant to the said Scheme, the State Government has under taken a massive programmed for providing house sites to the weaker sections of the Community. An order dated 13th May 1972 was issued giving guidelines to the Officers to take immediate steps for making available the suitable lands for house sites either by acquisition or by other means. Clause (2) of the said Order provides for selection of sites. It reads:

'(2) Selection of Sites:- The land required for implementation of the scheme will be obtained by utilization of available Government land; or Gaonthana land where such land is available. Where no such land is available, land may be obtained by donations from philanthropic villagers; and where this is not possible, by acquisition of suitable land under the Land Acquisition Act. Lands of Scheduled Castes or tribes or of denitrified tribes should not be acquired for the purpose.

The villages selected under this programmed should be fairly large. Villages with a High School, Primary Health Center or a sandy or a hobble headquarters or villages with larger population should be selected for the purpose, in the first instance.

The following procedure is laid down for selection of land: -

A Committee consisting of Tahsildar, Block Development Officer, Officer-in-Charge of the Primary Health Centre, Social Welfare Inspector will be constituted in each talk for the selection of proper village sites as per the Scheme. The Block Development Officer will be the Convener of the Committee. The Committee will make selection in consultation with the village Panchayats. While doing so, the Committee should bear in mind the following points among other things: -

(a) The land selected for acquisition should be non-controversial to avoid delay in acquisition proceedings as far as possible.

(b) Where land has to be obtained from private parties the same may be secured by private negotiations on the basis of private transactions available in the neighborhood as on the lines of the Trust Board Act.

(c) The size of the site should not be less than 150 Sq Yds

(d) The location should be nearer the village and working place of the prospective allotters.

(e) The land so selected should also be suitable from hygienic point of view.

(f) The Assistant Commissioner should oversee the work

(g) The Unit for formulation of the project shall be the Community Development Block. (i. e. jurisdiction of Taluk Development Board).

The Assistant Commissioner of the Revenue Sub-Division shall be responsible to step up the work. A Committee consisting of the Assistant Commissioner, District Health Officer and District Social Welfare Officer are constituted for each Revenue Sub-Division to oversee the work of the Taluk Committees.

After selection of the sites, proposals should be sent immediately for acquisition of the land clearly indicating therein the land that is to be granted under the Land Grant Rules, lands donated and the land to be acquired under the Land Acquisition Act. Where the land is vested in Village Panchayats, proposals may be initiated for divesting the land from the Village Panchayats under Section 49 (2) of the Mysore Village Panchayats and Local Boards Act, 1959, so as to make it available for grant, free of cost under the Land Grant Rules'.

5. The Act and the Rules provide a scheme for selecting and acquiring suitable lands. The Act just contains 7 Sections, out of which Section 3 alone is relevant for our purpose. It provides:

3. Acquisition of Land: - (1) If at any time, in the opinion of the State Government any land is required for the purpose of providing house sites to the weaker sections of people who are houseless, the State Government may, by notification, give notice of its intention to acquire such land.

(2) On the publication of a notification under sub-s. (1), the State Government shall owner is not the occupier, on the occupier the land and on all such persons known or and on all such persons known or-believed to be interested therein to show cause, within thirty days from the date of service notice, why the land should not be acquired.

(3) After considering the cause, if any, shown by the owner of the land and by any other person interested therein, and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit.

(4) After orders are passed under subsection (3), where the State Government is satisfied that any land should be acquired for the purpose specified in the notification issued under sub-section (1), a declaration shall, by notification be made to that effect. xx xx xx xxxx xx xx xx

The power of the State Government to hear objections has now been delegated to the Assistant Commissioner. The power of the Government to consider the objections and issue a declaration that the land is needed for the public purpose has been delegated to the Deputy Commissioner, The rules framed under the Act, provide a detailed procedure for selecting suitable land, serving of notices to the owner and all other interested persons inviting objections and consideration of their objections.

6. Rule 3 confers power on the Block Development Officer to initiate proceedings for the acquisition of land when he feels that that land is needed for the public purpose of granting house sites to the sightless and houseless people. The Block Development Officer shall submit a report to the Assistant Commissioner of the Sub-Division furnishing, inter alia, the details regarding the situation of the land, approximate extent, assessment and approximate value of the land, with the name of Kathedar, Anubhavadar or occupiers, with the plan or sketch and the encumbrances subsisting on the land. On that report, the Assistant Commissioner shall submit proposals for issuing notification under Section 3 (1) of the Act. After the notification is issued, the Assistant Commissioner shall cause a notice to be given to the owner or the occupier of the land and all such persons known or believed to be interested in the land, calling upon them to submit objections within 30 days from the date of service as to why the land should not be acquired. The procedure for issuing such notices is set out under Rule 4. It states that such notice shall also be published at convenient places in the locality where the land is situated. The copies thereof also shall be affixed in the Offices of the Assistant Commissioner, Tahsildar of the Taluk, Block Development Officer of the Block, and the Village Chavadi, if any. If no objection is filed by anybody, the task of the Assistant Commissioner becomes simple. He will then report to the Deputy Commissioner with a request to publish a declaration as required under Section 3 (4). But, when any objection is filed, Rule 6 steps in to regulate the procedure for its consideration and disposal. Rule 6 reads as follows:

'6. Hearing of Objections: - (1) If a statement of objections is filed after the dates specified in the notice under sub-section (2) of Section 3 or by a person who is not interested in the land, it shall be summarily rejected.

(2) If any objection is received from a person interested in the land on or before the date specified in the notice under sub-section (2) of Section 3, the Assistant Commissioner shall fix a date for hearing the objections and give notice thereof to the objectors. Copies of the objections may also be sent to the Block Development Officer or the Chief Officer, as the case may be, who may submit a statement by way of answer to the objections.

(3) On the date fixed for enquiry or on any other date to which the enquiry may be adjourned by him, the Assistant Commissioner shall hear the objector or his Advocate and the Block Development Officer or the Chief Officer or their representative, as the case may be, and record any evidence that may be produced in support of the objections.'

7. Sub-rule (2) of Rule 6 enjoins upon the Assistant Commissioner to fix a date for hearing the objections and give notice thereof to the objectors. He is also required to send copies of the objections to the Block Development officer. The Block Development Officer may submit a statement by way of answer to the objections. Sub-rule (3) casts a duty on the Assistant Commissioner to hear the objectors and also the Block Development Officer on the date fixed for enquiry or any other date to which the enquiry may be adjourned by him. He is also required to record any evidence that may be produced in support of the objections. The hearing contemplated under the rule, both for the persons who have filed the objections and also the Block Development Officer, is only one hearing in the presence of each other.

8. Mr. Puttaswamy learned Government Advocate submitted that under Rule 6, it is not obligatory for the Assistant Commissioner to hear the Block Development Officer or his representative, and if the Block Development Officer does not come and participate in the enquiry, the Assistant Commissioner cannot vainly wait for his presence. He, however, conceded that such hearing of the objector is obligatory.

9. It is true that if the Block Development Officer, despite due service of notice of hearing, does not turn out, the Assistant Commissioner cannot go in search of him without completing the enquiry. But when such intimation is given, there is hardly any scope for thinking that the Block Development Officer, who is subordinate to the Assistant Commissioner, would remain absent with contumacious conduct. It is a part of his statutory duty to assist the Assistant Commissioner in reaching a proper conclusion as to the suitability of the land and the need for its acquisition. He could ignore the notice of hearing only at his peril.

10. When Rule 6 (3) states that the Assistant Commissioner shall bear the objector or his advocate and the Block Development Officer or his representative, I cannot possibly accept the contention of Mr. Puttaswamy that hearing of the persons who have filed objections alone is mandatory and hearing the Block Development Officer is directory. The plain words of Rule 6 (3) do not tend support to such construction. It may be that Section 3 does not contemplate of' issuing notice of, hearing to the Block Development Officer. But it is nobody's case that Rule 6, which provides procedure of enquiry, is beyond the scope of the rule-making power. Under the said rule, the least that is expected from the Assistant Commissioner is to afford an opportunity of being heard, both to the objector and also to the Block Development Officer who initiated the acquisition proceedings.

11. I will now give a few more reasons why Rule 6 should be given a peremptory construction, and why at least it is obligatory for the Assistant Commissioner to afford a personal hearing to the objector and the Block Development Officer. Under R. 6 (2), it is not obligatory for the Block Development Officer to submit his statement by way of answer to the objections. He may or may not submit such statement. He might as well say that he would participate in the enquiry and effectively counter the objections raised. If no notice of hearing is given to the Block Development Officer, he would be deprived of an opportunity to meet the objections; raised against the acquisition or to convince the Assistant Commissioner why the proposed acquisition should not be dropped.

12. Sub-rule (3) positively states that the Assistant Commissioner shall hear the objector and the Block Development Officer. 'Hearing' in the context is 'personal hearing' and not mere opportunity to file objections. Such personal hearing appears to have deliberately provided to assist the Assistant Commissioner in making a proper report on the proposed acquisition. It is an opportunity afforded both to the objector and to the Block Development Officer to persuade the Assistant Commissioner to accept their points of view, the proceedings before the Assistant Commissioner is quasi-judicial. See State of Mysore v. V. K. Kangan : [1976]1SCR369 . If the right to be heard is to be a real right and is worth anything, it must carry with it a right in the person to know the case, which is made against him. He must know that materials have been collected, what evidence has been given and what statements or reports have been made affecting his rights. He must be given a fair opportunity for correcting or contradicting any relevant statement prejudicial to his view.' These principles appear in all the cases right from the celebrated judgment of Lord Loreburn, L. C., in Board of Education v. Rice (1911 AC 179). The learned judge while dealing with the procedure to be adopted by quasi-judicial bodies in the discharge of their duties, observed.

'I need not add that they must act in good faith and fairly listen to both sides, for there is a duty lying upon every one who decides anything, but I do not think that they are bound to treat such a question as though it were a trial. They have no power to administer an oath and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.'

In G. Nageswara Rao v. Andhra Pradesh State Road Transport Corporation : AIR1959SC308 , the Supreme Court observed:

'.......... Personal hearing enables the authority concerned to watch the demeanor of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view.'

13. The Supreme Court in State of Mysore v. V. K. Kangan : [1976]1SCR369 while considering almost a similar provision under Rule 3 (b) of the Madras Land Acquisition Rules and while affirming the judgment of this Court in V. K. Kangan v. State of Mysore, ((1972) 2 Mys LJ 136) observed that the observance of that rule wag mandatory and was enacted for the purposes of enabling the Land Acquisition Officer to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the Government in order to enable the government to make a proper decision.

Having regard to these principles, I reject the contentions urged for the respondents.

14. If it is not out of place, I must point out that a large number of petitions have been filed in this Court challenging the validity of the acquisition of lands under the Act, not only on the ground of procedural violations, but also on the charge Of mala fides. In most of the cases, which I have discerned, I find that the statutory rules are honored only by the breach and no serious attempt is made by the Assistant Commissioners to examine the objections raised. The hearing contemplated under Rule 6 (3) is not an empty formality. The Assistant Commissioners are not there to perform some rituals. They are required to perform their statutory duty in compliance with the statutory provisions. They have, inter alia, to consider the suitability of the land proposed and the extent required, generally following the guidelines provided under Government Order No. DPC 15 DRH 72, Bangalore, dated 13th May 1972. If there is any objection raised, they must consider it without any preconceived notion, after affording an opportunity of being heard, both to the objector and the Block Development Officer.

What I have said above with regard to the Block Development Officer, equally applies to the Chief Officer if he has initiated the acquisition proceedings.

15. I will have to still consider one other contention, which has been specifically raised in some of the petitions. It was urged that the Assistant Commissioner who considered the objections and beard those petitioners was not then competent to do and the Deputy Commissioner alone was, and therefore, the declaration made on the basis of the report of the Assistant Commissioner was illegal.

16. In order to appreciate the contention, it is necessary to set out the relevant notification issued by the Government under Section 6 of the Act. By Notification dated 10th October 1973, the Government delegated their powers under Sections 3 (2), 3 (3), 3 (6), 3 (7), 4 (1) and 4 (2), to the Assistant Commissioners in charge of the revenue subdivisions. Section 3 (2) deals with the power to serve show, cause notice on the owner or the occupier of the land and on all persons known or believed to be interested therein. Section 3 (3) provides power to give an opportunity of being heard to the owner and other persons who have filed objections. It is clear by this Notification that the Assistant Commissioner was competent to issue notice as required under Section 3 (2) and also to afford an opportunity of being heard to the persons who have filed any objections. By Notification dated 10th January 1975, the Government delegated their power under Section 3 (1) to the Deputy Commissioner of the District. The power under Sections 3 (3) and 3 (4) was also delegated to the Deputy Commissioner in cases where no cause has been shown by the owner of the land or any other person, to the notice issued under Section 3 (2) In other cases that power was delegated to the Divisional Commissioner where cause has been shown by the owner or any other person.

17. The Notification dated 10th January 1975 appears to be the basis for the above contention. But it is seen there from that it was not issued in super session of the first notification dated 10th October 1973 where under the power to issue notice and hear the objectors was delegated to the Assistant Commissioner. Therefore, even after 10th January 1975, it cannot be said that the Assistant Commissioner in charge of the revenue sub-division was incompetent to issue notice and bear the petitioners.

Again, on 23rd June 1975, the Government issued another notification under Section 6 delegating their powers under Section 3 (1), 3 (3), and 3 (4) to the Deputy Commissioner of the District and the power under Section 4 (3) to the Assistant Commissioner. That notification was issued in suppression of the notification dated 10th January 1975. But the Notification dated 23rd June 1975 remained only for a short period. On 13th April 1976 a further notification under Section 6 was issued delegating the powers of the State Government, as follows: -

'(i) Under sub-sections (1) and (4) of Section 3 and the power to pass orders only under sub-section (3) of the said Section 3, to the Deputy Commissioner of the District; and

(ii) Under sub-section (3) of Section 3 and sub-section (3) of Section 4 of the said Act (except the power to pass orders) to the Assistant Commissioners in-charge of Revenue Sub-Divisions.'

From these notifications, it is seen that till 13th April 1976, the hearing, if any, given to the objectors by the Assistant Commissioners, cannot be said to be without authority of law.

18. Even otherwise, it is now futile to consider the contention. If I accept the contention, I have to remit the matter to the Deputy Commissioner to hear the petitioners. But I cannot such order as the power to make an enquiry and hear the objections of interested persons has since been delegated only to the Assistant Commissioners by notification dated 13th April 1976. The petitioners had already a hearing from Assistant Commissioners. As the law stands today, he is the only person to hear them. It is not known in any way that the petitioners are in any way, prejudiced by the hearing already given to them by the Assistant Commissioners.

19. In the result, the rule is made absolute in all these petitions. The concerned Notifications issued under Section 3(4) of the Act, so far as they relate to the lands of the petitioners in each case, are quashed, with liberty reserved to the assistant commissioner and deputy commissioner to proceed in accordance with law and in the light of the observations made.

In the circumstances, I make no order as to costs.

20. Rule made absolute.


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