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V.K. Kangan and ors. Vs. the State of Mysore Represented by the Chief Secretary to the Government, Vidhana Soudha, Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 1106 of 1964
Judge
Reported inAIR1967Kant133; AIR1967Mys133; (1966)2MysLJ739
ActsLand Acquisition Act, 1894 - Sections 4, 4(1), 5A, 6, 9 and 17; Mysore Land Acquisition Act, 1961
AppellantV.K. Kangan and ors.
RespondentThe State of Mysore Represented by the Chief Secretary to the Government, Vidhana Soudha, Bangalore
Appellant AdvocateK.R.D. Karanth and ;P.V. Aithal, Advs.
Respondent AdvocateS.G. Doddakalegowda for High Court, Special Government Pleader
Excerpt:
.....and for violation of an order of the court, such an application has to be taken up by the court as expeditiously as possible. such an application should get priority by the court. - 768 of 1960 (mys), the question whether the 121 sub-divisions were required for a public purpose and whether the objections to their acquisition are well-founded, had still to be investigated under section 5a. that is the true question before us, notwithstanding the fact that the deputy commissioner adopted the course of making a recommendation with respect to the 15 sub-divisions while the bigger sub-divisions which really had close association with the smaller sub-divisions were still in the melting pot and it is perfectly manifest that, if that bigger acquisition was found unnecessary, the smaller..........made available to us by mr. doddakalegowda, the learned government pleader, it transpires that the deputy commissioner did make the enquiry pursuant to which he made to the state government two reports. the first he made on february 4, 1961 and the second on february 2, 1962. the real report under section 5a is the report submitted on february 2, 1962. in the earlier report which he made on february 4, 1961 he did not make any recommendation on the objections of the petitioners but merely pointed out that on account of the pendency of another writ petition which was then pending before this court, he considered it 'objectionable' to make those recommendations which he was required to make by section 5a.2. on behalf of the petitioners mr. k. r. d. karanth, their learned advocate, contends.....
Judgment:

Somnath Iyer, J.

1. In this Writ Petition thirteen persons whose lands were proposed to be acquired under the provisions of the Land Acquisition Act call in question the acquisition proceedings which commenced with a preliminary notification published in the Mysore Gazette on June 23, 1960. There was an enquiry made under Section 5A of the Land Acquisition Act, and that that enquiry was made, is established beyond doubt, although the petitioners contend that that enquiry was not made. From the record made available to us by Mr. Doddakalegowda, the learned Government Pleader, it transpires that the Deputy Commissioner did make the enquiry pursuant to which he made to the State Government two reports. The first he made on February 4, 1961 and the second on February 2, 1962. The real report under Section 5A is the report submitted on February 2, 1962. In the earlier report which he made on February 4, 1961 he did not make any recommendation on the objections of the petitioners but merely pointed out that on account of the pendency of another Writ Petition which was then pending before this Court, he considered it 'objectionable' to make those recommendations which he was required to make by Section 5A.

2. On behalf of the petitioners Mr. K. R. D. Karanth, their learned Advocate, contends that even if it transpires from the records that the enquiry enjoined by Section 5A was indeed held, the final notification which was published on November 1, 1962 is invalid in consequence of disobedience to Section 5A of the Land Acquisition Act as it stands amended by Mysore Act XVII of 1961 which came into force on August 24, 1961.

His contention is that that amendment had come into force by February 2, 1962 when the Deputy Commissioner made his real report under Section 5A, and that in consequence, it was his imperative duty under the provisions of that amended section to communicate to the petitioners the fact of his having submitted the report to the Government. Since it is not disputed that that communication was not sent to the petitioners by the Deputy Commissioner, Mr. K. R. D. Karantli contends that there was a deprivation of an opportunity to which the petitioners were in law entitled, to make further representations to the State Government against the acceptance of the Deputy Commissioner's recommendations, and that the final notification under Section 6 which was not preceded by an opportunity to make those representations became invalid.

3. The further submission made by Mr. Karanth was that it was not possible in the circumstances, to which we shall presently refer, for the Deputy Commissioner to pronounce upon the existence of a public purpose or upon the validity of the objections proffered by the petitioners, unless that question was considered in the context of the proposal to acquire another 127 sub-divisions which formed the subject matter of another acquisition proceeding which came up before this Court for scrutiny in Writ Petn. No. 768 of 1960 (Mys).

4. It would now be necessary to state the material facts. The proposal to acquire the petitioners' lands was preceded by an earlier proposal to acquire another 127 sub-divisions. There was a notification published in the official gazette which was a preliminary notification under Section 4, and there was also an announcement by an order made under Section 17 that the requirement of Section 5A was dispensed with in the case of those 127 sub-divisions. There was a final notification in due course with respect to those lands, and, in Writ Petn. No. 768 of 1960 (Mys) in which those acquisition proceedings were called in question, a memo was produced by Mr. Government Pleader on behalf of the State on February 4, 1983 in which the State gave an undertaking that the impugned notification under Sections 4(1) and 17 would be modified, and that the petitioners would be given an opportunity of being heard under Section 5A. On that memo this Court made an order directing the affording of that opportunity to the petitioners.

5. The acquisition which is impugned in the Writ Petition now before us commenced after the earlier acquisition commenced. The purpose of both the acquisitions was the same. The acquisition was proposed to be made for the Karnataka Regional Engineering College, Mangalore, and, in the interim report despatched by the Deputy Commissioner on February 4, 1961 he stated that all these lands were stated to be necessary for that Engineering College which wanted them for commencing a course of Marine Engineering as part of the instruction to be imparted by that college.

6. In consequence of the order made in Writ Petition No. 768 of 1960 (Mys), the question whether the 121 sub-divisions were required for a public purpose and whether the objections to their acquisition are well-founded, had still to be investigated under Section 5A. We are informed by Mr. K. R. D. Karanth that that investigation has just been completed, and that a report has been made by the Deputy Commissioner in regard to that matter. Mr. Dodda Kalegowda was not able to tell us whether that report had been so despatched and, if it had been, what the recommendation of the Deputy Commissioner was.

7. We should observe that the lands with which we are concerned in this Writ Petition constitute 15 sub-divisions as contrasted with the 127 sub-divisions which formed the subject matter of the acquisition in the other land acquisition proceeding. Not unnaturally, in his interim report which the Deputy Commissioner despatched on February 4, 1961, he expressed the opinion that the acquisition concerning the 127 sub-divisions had close association with the acquisition concerning the 15 sub-divisions. He pointed out that if the 127 sub-divisions were not acquired, it was pointless to acquire the 15 sub-divisions which constitute a smaller area and which were distributed here and there without forming one contiguous plot. In that context, this is what he observed in paragraph-5 of that report :--

'It is a fact that the acquisition of these isolated bits without the surrounding other plots covered by the Writ Petition will not serve any purpose. I have marked these subdivisions in a combined map showing all the lands applied for acquisition for the college and I am enclosing the map. As the grounds of objection set forth in the present objection petition and those put forward in the Writ petition are identical and the matter is before the High Court and is sub judice, I feel that it might be objectionable now to hold further enquiry under Section 5A or submit my reports commenting on the objections in respect of the 15 sub-divisions covered by the objection petition till the Writ Petition is disposed of by the High Court. I solicit instructions of the Government in the matter'.

The Writ Petition to which the Deputy Commissioner referred in this part of the report is Writ Petition No. 768 of I960 concerning the acquisition of 127 sub-divisions, and, we have already pointed out how that writ petition was disposed of and how in pursuance of the order made therein the acquisition concerning the 127 sub-divisions is still on the anvil.

8. Mr. K. R. D. Karanth, in our opinion, is therefore right in urging before us that the question whether the 15 sub-divisions with which we are concerned should or should not be acquired would depend almost entirely upon the possibility of the acquisition of the 127 sub-divisions. That, that is the true position is very accurately revealed by the Deputy Commissioner's report, paragraph 5 of which we have extracted above. But it appears from the record that the Deputy Commissioner was instructed by the Government to proceed with the acquisition of the 15 sub-divisions, without waiting for the recommendation concerning the 127 sub-divisions. So it was that he proceeded to make his recommendation which he did on February 2, 1962.

9. Be that as it may, the question is whether we can for any reason denounce the final notification made pursuant to that report on November 1, 1962 as invalid. That is the true Question before us, notwithstanding the fact that the Deputy Commissioner adopted the course of making a recommendation with respect to the 15 sub-divisions while the bigger sub-divisions which really had close association with the smaller sub-divisions were still in the melting pot and it is perfectly manifest that, if that bigger acquisition was found unnecessary, the smaller acquisition, as rightly pointed out by the Deputy Commissioner would be unmeaning and purposeless. But that is not a matter with which we have any concern. So long as the purpose is a public purpose and the acquisition is otherwise above the reproach of invalidity, it is not for us to examine the wisdom of embarking upon an acquisition of properly composed of only 15 sub-divisions.

10. 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 to send a report to the Government containing his recommendation 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.

11. 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 havean 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 Section 6, and so, must lead to the nullification of the declaration subsequently made. That is the enunciation made by this court in Writ Petition No. 1933 of 1963 (Mys), and, in our opinion, that enunciation is a correct statement of the law.

12. But Mr. Dodda Kalegowda, the learned Government Pleader, asks us to say that the petitioners did avail themselves of an opportunity to make a representation to the Government in the year 1963, and urged that the petitioners are precluded from contending that any prejudice was caused by disobedience to the requirement of Section 5A. We have looked into the representation to which Mr. Dodda Kalegowda referred and we find that that representation was made after the petitioners were served with notices under Sec. 9, and not in the context of the consideration by Government, of the reasonableness or otherwise of tie recommendation of the Deputy Commissioner under Section 5A.

13. So it is clear that the declaration under Section 6 which was made without obedience to the requirement of section 5A has to be pronounced invalid. So we quash it. The Deputy Commissioner will now be at liberty to take appropriate steps for the continuance of the acquisition proceedings from a proper stage.

The Deputy Commissioner thought, as can be seen from his report of February 4, 1961, that the purpose of the acquisition of the 127 sub-divisions was identical with that of the acquisition of 15 sub-divisions. He was right in thinking, that, unless there was an acquisition of the 127 sub-divisions, it was futile to acquire the 15 sub-divisions. The conclusion on the question whether any of these properties should be acquired and whether it was necessary to do so for a purpose recognized by the Land Acquisition Act, could be more satisfactorily reached after a scrutiny of all the relevant objections and after a survey of the overall position.

Since an enquiry tinder Section 5A was directed with respect to the 127 sub-divisions, and that enquiry, according to the information imparted to us, has now been completed, and since, although an enquiry was made earlier with respect to the 15 sub-divisions, that enquiry does not appear to be full or comprehensive, it would be right to direct the Dy. Commissioner to now make a fresh enquiry under Section 5A with respect to the 15 sub-divisions.

14. Mr. Dodda Kalegowda, the learned Government Pleader, tells us that the Deputy Commissioner will now hold a fresh enquiry under Section 5A concerning these 15 subdivisions, and, we make an order accordingly.

15. Mr. Dodda Kalegowda says that the Special Land Acquisition Officer has been invested with the powers of a Deputy Commissioner under the Land Acquisition Act, and, that being so he is the person now to make the enquiry directed by us.

16. In the circumstances we make nodirection in regard to costs.

17. Petition allowed.


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