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Ganga Birappa Vs. State of Karnataka and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 6456 of 1977
Judge
Reported inAIR1978Kant206; ILR1978KAR947; 1978(1)KarLJ364
ActsKarnataka Acquisition of Land for Grant of House Sites Act, 1973 - Sections 3(3), 3(4) and 6; Karnataka Acquisition of Land for Grant of House Sites Rules - Rules 6, 6(1), 6(2), 6(3), 8 and 9; Karnataka Acquisition of Land for Grant of House Sites Act, 1972 - Sections 3(1) and 3(2)
AppellantGanga Birappa
RespondentState of Karnataka and anr.
Appellant AdvocateC.J.B. Rao, Adv.
Respondent AdvocateV.C. Brahmarayappa, Govt. Pleader
Excerpt:
.....that after the orders are passed under sub-section (3) of section 3 and in cases where the state government is satisfied that the land proposed should be acquired for the purpose specified in the preliminary notification issued under sub-section (1) of section 3, a declaration shall be made by the issue of a notification to that effect as provided under sub-section (4) of section 3 of the act. the opening words of sub-section (4) of section 3 of the act provide that after orders are passed under sub-section (3) of section 3 of the act, where the state government (deputy commissioner) is satisfied that any land should be acquired for the purpose specified in the notification issued under sub-section (1) of section 3 of the act, a declaration shall be made to that effect by..........3 of the act reads thus: '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-section (1), the state government shall serve notice upon the owner or where the owner is not the occupier, on the occupier of the land and on all such persons known or believed to be interested therein to show cause, within thirty days from the date of service of the 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.....
Judgment:
ORDER

1. The petitioner is the owner of 1 acre and 20 guntas of land in Sy. No. 150/1 of Ayyanahalli Kasaghatta village, Doddaballapur Taluk. By notification dated 27-3-1976 issued under Sub-section (1) of Section 3 of the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter referred to as 'the Act'), the Deputy Commissioner, Bangalore District, proposed to acquire the aforesaid land belonging to the petitioner for the purpose of granting house sites to the weaker section of the people. The petitioner was notified about the proposed acquisition and was called upon to file his objection, if any, to the acquisition. The petitioner submitted his objections within the prescribed time. Thereafter the Assistant Commissioner, Doddaballapur Sub-Division to whom the power to enquire and report under Sub-section (3) of Section 3 of the Act has been delegated, conducted the enquiry, heard the petitioner and the Block Development Officer, and submitted his report to the Deputy Commissioner. Thereafter, by Notification dated 7-6-1977 issued in exercise of power under Sub-section (4) of Section 3 of the Act, the Deputy Commissioner, Bangalore District, issued the final notification notifying the acquisition of the aforesaid land belonging to the petitioner. Aggrieved by the said notification, the petitioner has presented this writ petition.

2. Sri C. J. B. Rao, learned counsel for the petitioner, raised the following contention in support of the petition.

3. The final notification issued under Sub-section (4) of Section 3 of the Act is invalid as it is not preceded by an order of the Deputy Commissioner under Sub-section (5) of Section 4 of the Act.

4. In order to appreciate the contention of the petitioner, it is necessary to set out the relevant provisions of the Act and the Rules framed under the Act:

Section 3 of the Act reads thus:

'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-section (1), the State Government shall serve notice upon the owner or where the owner is not the occupier, on the occupier of the land and on all such persons known or believed to be interested therein to show cause, within thirty days from the date of service of the 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 Sub-section (3), where the State Government issatisfied that any land should be acquired for the purpose specified in the notification issued under Sub-section (1) a dedeclaration shall, by notification be made to that effect. ** **'

Rules 6, 8 and 9 of the Rules framed under the Act read thus:

'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 shall 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.

8. Assistant Commissioner to report to Government:

On completion of the enquiry, the Assistant Commissioner shall as expeditiously as possible submit his report and recommendations as to each objection, whether admissible or inadmissible, for the orders of the State Government under Sub-section (3) of Section 3: '9. Consideration of Objections and Issue of Final Notification:

On consideration of the objections and the report of the Assistant Commissioner, if the State Government decides,--

(a) that the land should be acquired for the purpose specified in the Notification issued under Sub-section (1) of Section 3, it shall, by notification, make a declaration in Form 'C' under Sub-section (4) of Section 3,

(b) that the land should not be acquired, it shall publish a notification cancelling the notification issued under Sub-section (1) of Section 3.' As can be seen from Sub-section (1) of Section 3 of the Act, it provides for the issue of a preliminary notification giving notice of the intention to acquire any particular land required for the purpose of the Act. Sub-section (2) of Section 3 provides for service of notice upon the owner and such other person who is interested in the land calling upon them to show cause within 30 days from the date of service of notice on them as to why the land should not be acquired, The power given to the State Government under Sub-sections (1) and (2) of Section 3 has been delegated to the Deputy Commissioner and Assistant Commissioner, respectively, by notification issued by the Government in exercise of the power conferred under Section 6 of the Act. Sub-section (3) of Section 3 prescribes the most important procedure to be followed in the acquisition proceedings initiated under Sub-section (1). The functions of the authority under Sub-section (3) of Section 3 consist of two parts:

(1) to conduct enquiry by considering the cause, if any, shown by the owner of the land or by any other person interested therein by giving them an opportunity of hearing; and

(2) to pass orders on the basis of the enquiry so held.

By notification dated 13-4-1976 issued in exercise of power under Section 6 of the Act, the State Government has delegated the first part of the power viz., of holding enquiry under Sub-section (3) of Section 3 of the Act to the Assistant Commissioner and the second part of the power to pass orders under Sub-section (3) of Section 3 of the Act to the Deputy Commissioner, Consequently the Assistant Commissioner, after holding the enquiry under Sub-section (3) of Section 3 of the Act in accordance with Rule 6 aforesaid, has to submit his report to the Deputy Commissioner and the Deputy Commissioner is required to pass orders under Sub-section (3) of Section 3 of the Act. Sub-section (4) of Section 3 of the Act provides that after the orders are passed under Sub-section (3) of Section 3 and in cases where the State Government is satisfied that the land proposed should be acquired for the purpose specified in the preliminary notification issued under Sub-section (1) of Section 3, a declaration shall be made by the issue of a notification to that effect as provided under Sub-section (4) of Section 3 of the Act. The power of the Government under Sub-section (4) of Section 3 is also delegated to the Deputy Commissioner in the aforesaid notification.

5. Now coming to the Rules, Rule 6 of the Rules prescribes the procedure regarding hearing of objections. According to Sub- rule (1) of Rule 6, objections filed after the period prescribed in the notice issued under Sub-section (2) of Section 3 of the Act are liable to be rejected summarily, Sub-rule (2) of Rule 6 provides that if objections are received from any person, within the stipulated time the Assistant Commissioner should fix a date for hearing and give notice to that effect to the concerned objectors. The said Sub- rule further provides that copies of the objections filed by the parties should also be sent to the Block Development Officer or Chief Officer, as the case may be, for submitting his statement by way of answer to the objections. Sub-rule (3) of Rule 6 provides that on the date fixed for enquiry or on any other date to which the enquiry may be adjourned by him, the Assistant Commissioner should hear the objector or his advocate and the Block Development Officer or the Chief Officer as the case may be, or their representative and record any evidence that may be produced in support of the objections. Rule 8 provides that after holding enquiry in accordance with Rule 6, the Assistant Commissioner should submit his report and recommendation to the Deputy Commissioner as expeditiously as possible for the orders of the State Government under Sub-section (3) of Section 3 of the Act. Rule 9 of the Rules provides that if on consideration of the objections and the report of the Assistant Commissioner, the State Government (Deputy Commissioner) decides that the land proposed to be acquired should be acquired for the purpose of Sub-section (1) Section 3 of the Act, a notification shall issue in Form No. C making a declaration to that effect under Sub-section (4) of Section 3 of the Act. The clear effect of Sub-section (3) of Section 3 of the Act read with Rules 8 and 9 of the Rules is that after the receipt of the report by the Assistant Commissioner along with his recommendation, the Deputy Commissioner has to apply his mind to the record so sent to him and to pass order under subsection (3) of Section 3 of the Act. The opening words of Sub-section (4) of Section 3 of the Act provide that after orders are passed under Sub-section (3) of Section 3 of the Act, where the State Government (Deputy Commissioner) is satisfied that any land should be acquired for the purpose specified in the notification issued under Sub-section (1) of Section 3 of the Act, a declaration shall be made to that effect by notification.

6. As stated earlier, the contention of the petitioner is that after the receipt of of the report under Sub-section (3} of Section 3 of the Act from the Assistant Commissioner, the Deputy Commissioner straightway proceeded to issue notification under Sub-section (4) of Section 3 without passing any order as required under Sub-section (3) of Section 3 of the Act.

7. The contention, however, advanced on behalf of the respondents is that the Deputy Commissioner has passed an order under Sub-section (3) of Section 3 before the issue of the impugned notification. In order to verify as to the correctness of the above submission, I looked into the original records which were produced at the time of hearing. The records disclosed that after the Assistant Commissioner submitted his report, the office of the Deputy Commissioner - prepared a note and placed the same before the Deputy Commissioner for orders. The relevant portion is contained in paras. 11 and 12 of the proceedings. They read as follows:--

'11. The letter No. RHS 233/75-75 dated 18-5-77 of the A.C.. is put up for kind perusal. The 3 (1) notification has been published in the Gazette D/- 14-4-76. 'B' Notice has been served on the land owner. The Anubhavadar of the land has filed objection stating that Section No. 107 is more convenient for the formation of sites than the Section No. 150/1. The A. C. has heard the objector in presence of the B.D.O. The B.D.O. has stated that S. No. 107 is in a low level and it is full of rocks. The A.C. has requested to overrule the objections and to issue notification under Section 3(4) to acquire A 1-20 gs. of land in S. No. 150/1 of Iyyanahalli H/o Kasaghatta village, D. B. Pur Taluk.

12. Hence for orders on para. 11.' After setting out the events in para. 11, in para. 12 orders of the Deputy Commissioner was sought for on para, 11. The next immediate para is para. 13 which is in the handwriting of the Deputy Commissioner and the same reads as follows :

'13. P1 put up 3 (4) draft notification also in all such cases the A.C. has recommended for issue of 3 (4) notification, it should be done.'

This order was made on 1-6-1977. By this order the Deputy Commissioner straightway directed the issue of final notification without applying his mind and passing an order on the report of the enquiry sent by the Assistant Commissioner on the objection to the acquisition filed by the petitioner which is a mandatory requirement under Sub-section (3) of Section 3 of the Act which requirement is further made clear by the opening words of Sub-section (4) of Section 3 of the Act. Immediately after the said order was passed, in para. 14 a draft order was put up on 7-6-1977 and was signed by the Deputy Commissioner. The said order dated 7-6-1977 is also found in the records. It is a cyclostyled pro forma in which the final decision of the Deputy Commissioner directing the issue of a notification under Sub-section (4) of Section 3 of the Act was incorporated. The said order also being relevant is extracted below:

'PROCEEDING OF THE DEPUTY COMMISSIONER, BANGALORE DISTRICT, BANGALOKE.


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