Karnataka High Court

Sri Dr Suresh A vs The State Of Karnataka on 10 November, 2021

Bench: Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 10TH DAY OF NOVEMBER 2021

                      BEFORE

    THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

   WRIT PETITION NO.190 OF 2014 (LA-RES)
                        C/W
             W.P.NO.54870 OF 2013
             W.P.NO.58690 OF 2013
IN W.P.NO.190 OF 2014

BETWEEN:
1.  SRI Y MUNIYAPPA
    SON OF LATE YANGAPPA
    SINCE DIED BY HIS LRS

1(A) SRI Y M MANJUNATH
     S/O LATE Y MUNIYAPPA
     AGED ABOUT 46 YEARS
     RESIDING AT NO. 231, 4TH MAIN
     "GANGA NILAYA", VAPASANDRA
     CHIKKABALLAPURA - 562 101.

1(B) SRI. M. SRINIVAS
     S/O LATE Y MUNIYAPPA
     AGED ABOUT 48 YEARS
     RESIDING AT No.231, 4TH MAIN
     "GANGA NILAYA", VAPASANDRA
     CHIKKABALLAPURA - 562 101.
                                      ...PETITIONERS

(BY SRI. SHANKAR REDDY C, ADVOCATE)
                          2




AND:

1 . THE STATE OF KARNATAKA
    BY ITS PRINCIPAL SECRETARY
    REVENUE DEPARTMENT
    MULTISTORIED BUILDING
    AMBEDKAR VEEDI
    BANGALORE-560 001.

2 . THE DEPUTY COMMISSIONER
    CHIKKABALLAPUR DISTRICT
    CHIKKABALLAPUR-562 101.

3 . THE ASSISTANT COMMISSIONER
    AND LAND ACQUISITION OFFICER
    CHIKKABALLAPUR SUB-DIVISION
    CHIKKABALLAPUR DISTRICT
    CHIKKABALLAPUR-562 101.
                                    .....RESPONDENTS

(BY SMT. H.C. KAVITHA, HCGP FOR R-1 TO R-3)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 27.8.2013 MADE BY THE R-1
VIDE ANN-P AND ALSO QUASH THE PRELIMINARY
NOTIFICATION DATED 23.9.2013 UNDER SECTION 4[1] OF
THE LAND ACQUISITION ACT 1894 BY THE DEPUTY
COMMISSIONER, CHIKKABALLAPUR DISTRICT, THE R-2
VIDE ANN-R AND ETC.

IN W.P.NO.54870 OF 2013

BETWEEN:
SMT. RAJALAKSHMI V
W/O VENKATANARASIMHACHAR M R
AGED ABOUT 70 YEARS
R/AT NO. 6, 1ST CROSS
                          3




CHAKRAVARTHI IYENGAR LAYOUT
SHESHADRIPURAM,
BANGALORE-560 020.
                                      ...PETITIONER
(BY SRI. R V JAYAPRAKASH, ADVOCATE)

AND:
1 . THE STATE OF KARNATAKA
    BY ITS PRINCIPAL SECRETARY
    REVENUE DEPARTMENT
    MULTISTORIED BUILDING
    AMBEDKAR VEEDI
    BANGALORE-560 020.

2 . THE DEPUTY COMMISSIONER
    CHIKKABALLAPUR DISTRICT
    CHIKKABALLAPUR-562 101.

3 . THE ASST. COMMISSIONER &
    LAND ACQUISITION OFFICER
    CHIKKABALLAPUR SUB DIVISON
    CHIKKABALLAPUR DISTRICT-562 101.
                                  ......RESPONDENTS
(BY SMT. H.C. KAVITHA, HCGP)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH ANNEXURE-E THE ORDER DATED 27.8.2013 MADE
BY THE R-1 AND ALSO ANN-F, THE NOTIFICATION DATED
23.9.2013 ISSUED UNDER SECTION 4[1] O THE LA ACT
1894 BY THE 2ND RESPONDENT [DEPUTY COMMISSIONER,
CHIKKABALLAPUR DISTRICT]

IN W.P.NO.58690 OF 2013

BETWEEN:
SRI. DR. SURESH A
AGED ABOUT 41 YEARS,
                          4




S/O LATE V.C. ASHWATHAPPA
RESIDING AT NO.4070-1,
1ST DIVISION, VAPASANDRA,
BANGLORE - BELLARY ROAD,
CHIKKABALLAPURA - 562 101.
                                      ...PETITIONER
(BY SRI. SHANKAR REDDY C, ADVOCATE)

AND:

1.   THE STATE OF KARNATAKA
     BY ITS PRINCIPAL SECRETARY,
     REVENUE DEPARTMENT,
     MULTISTORIED BUILDING,
     AMBEDKAR VEEDI, BANGALORE-560 001.

2.   THE DEPUTY COMMISSIONER
     CHIKKABALLAPUR DISTRICT,
     CHIKKABALLAPUR-562 101.

3.   THE ASSISTANT COMMISSIONER
     AND LAND ACQUISITION OFFICER,
     CHIKKABALLAPUR SUB DIVISION,
     CHIKKABALLAPURA DISTRICT
     CHIKKABALLAPURA - 562 101.
                                      ....RESPONDENTS
(BY SRI. H.C. KAVITHA, HCGP FOR R-1 TO R-3)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 27.8.2013 BY THE R-1, AS PER
ANN-M TO THIS WRIT PETITION AND QUASH THE
PRLY.NOTIFICATION DATED 23.9.13, ISSUED UNDER
SEC.4(1) OF THE LAND ACQUISITION ACT, 1894 BY THE
DEPUTY COMMISSIONER, CHIKKABALLAPUR DIST. THE
R-2, HEREIN AS PER ANN-P TO THIS WRIT PETITION AND
ETC.
                                   5




     THESE  WRIT   PETITIONS  COMING  ON   FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:

                           ORDER

The petitioners in all the petitions are

challenging the acquisition proceedings initiated by

respondent No.3. Hence, the matter is taken up for

common disposal.

2. Brief facts leading rise to filing of these

petitions are as under:

It is the case of the petitioners that they are the

owners of the subject land. The said lands were

proposed for acquisition by invoking the urgency

clause as provided under Section 17(4) of the Land

Acquisition Act 1894 (for short 'the LA Act') after

dispensing with the enquiry contemplated under

Section 5A of the LA Act. In pursuance of the same,

the Deputy Commissioner, Chikkaballapura Sub

Division issued a preliminary notification dated

23.09.2013 under Section 4(1) of the LA Act and the

same was published in the Karnataka Gazette dated

24.10.2013.

2.1 The respondents intended to acquire the land

to an extent of 13 acres 12 guntas at Anakanooru

village for the purpose of rehabilitating certain

unauthorised encroachers of the land belonging to the

Railways at Chamarajpet and Kousarnagar area of

Chikkaballapur Town. The aforesaid unauthorised

encroachers of the public property are now sought to

be rehabilitated by forming sites and changing the

nature of its use. The land in question are in

possession of the petitioners and others. Other lands

are situated adjacent to the village tank and the said

lands are not fit for formation of sites and they are fit

to use for agricultural purpose only. Inspite of the

same, the respondents are bent upon to acquire the

said land to evade the unlawful encroachers from

encroaching the public property and hence the

petitioners have filed these writ petitions challenging

the acquisition proceedings initiated by the

respondents.

3. The respondents have filed statement of

objections contending that the petitioners are the

owners of the property in question. It is contended

that to safeguard the interest of the public, especially

the weaker sections of the society-scheduled

caste/tribe OBC for whom the land is being acquired

for rehabilitation, notification was issued under

Section 4(1) of the Act in respect of the petitioner's

land and it is contended that the Government of India

had intended to develop and expand the existing

railway lines throughout the country. In pursuance of

the policy, the railway authorities with the assistance

of the State Government have taken up the task of

railway guage conversion i.e. from narrow guage to

broad guage. The said conversion has been taken up

for the railway lines from Bangarpet in Kolar District to

Chikkaballapur District. As a consequence, the

railway authorities have suggested for widening the

existing railway station situated at Chamarajpet in

Chikkaballapur City. Hence, the State Government

has to extend co-operation for expansion and for

guage conversion by providing land and also to shift

and rehabilitate the said residents of the colony. The

guage conversion work is almost completed but for

the deviation of the railway line at Chamarajpet. This

explicitly shows the urgency of acquisition of lands for

the rehabilitation of the said colony consisting of the

weaker section of the society and therefore, the State

Government had resolved to issue notification under

Section 4(1) of the Act invoking the urgency clause

under Section 17(1) of the LA Act. It is contended

that the lands are fit for residential purpose and the

acquisition proceedings initiated by the respondents is

for public purpose. Hence, prays to dismiss the writ

petitions.

4. Heard learned counsel for petitioners and

learned HCGP for respondents.

5. Learned counsel for the petitioners submits

that the respondents have initiated acquisition

proceedings under the urgency clause under Section

17(4) of the LA Act and further no explanation has

been offered by the respondents for invoking the

urgency clause. He further places reliance on the

judgment of the Apex Court in RADHY SHYAM (DEAD)

THROUGH LRS. AND OTHERS vs. STATE OF UTTAR

PRADESH AND OTHERS reported in (2011) 5 Supreme

Court Cases 553 and submits that the lands under

acquisition are agricultural lands. They are unfit for

use for residential purpose. Further the respondents

without considering the said aspect has proceeded to

initiate acquisition proceedings. Hence, on these

grounds prayed to allow the writ petitions.

6. Per contra, learned HCGP for the respondents

submits that the Deputy Commissioner has filed an

affidavit on 22nd February 2021. In the said affidavit

it is stated that pursuant to the preliminary and final

notifications under Sections 4(1) and 6(1) of the LA

Act, no award was passed till day. Further, it is stated

that the Deputy Commissioner has addressed a letter

dated 29.1.2020 and 16.7.2020 to the railway

authorities calling for the information in writing with

regard to the status of the Chikkaballapur Kolar

Railway gauge, which has not been replied. Further

contends that the acquisition proceedings initiated is

for public purpose. Hence, on these grounds, prays to

dismiss the writ petitions.

7. Perused the records and considered the

submissions made by learned counsel for the parties.

8. It is not in dispute that the petitioners are the

owners of the lands in question. Further it is also not

in dispute that respondent No.3 issued preliminary

notification dated 23.9.2013 issued under Section 4(1)

and invoking the urgency clause. On the strength of

the notification taking away the right conferred under

Section 5-A of the Act, respondent No.3 issued a

notification dated 29.3.2013 under Sections 17(1) and

17(4) of the LA Act for rehabilitating the encroachers

on the Government property.

9. The respondent No.3 has not placed any

material for confirmation of his opinion that the

matter was so urgent to invoke the powers under

Section 17(4) of the LA Act. Though the respondents

have filed statement of objections, from a perusal of

the said statement of objections, there is no indication

whatsoever in the statement of objections that

respondent No.3 has applied the mind at all of the

questions whether it was the case necessitating

elimination of the enquiry under Section 5-A of the

Act. The recital of the notification does not say at all

that any opinion was formed on the need to dispense

with the enquiry contemplated under Section 5-A of

the Act. The Hon'ble Supreme Court in NARAYAN

GOVIND GAVATE AND OTHERS vs. STATE OF

MAHARASHTRA AND OTHERS reported in (1977) 1

SCC 133 while dealing with the urgency clause under

Section 17(4) has held in paragraphs No.10, 24, 30,

40 , 42 as under :

"10. It is true that, in such cases, the formation of an opinion is a subjective matter, as held by this Court repeatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take. They are expected to know better the difference between a right or wrong opinion than

Courts could ordinarily on such matters.

Nevertheless, that opinion has to be based upon some relevant materials in order to pass the test which Courts do impose. That test basically is: Was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? Once the Court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however meagre, on which it could reasonably base its opinion, the Courts should not and will not interfere. There might, however, be cases in which the power is exercised in such an obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or, in other words, so unreasonably as to leave no doubt whatsoever in the mind of a Court that there has been an excess of power. There may also be cases where the mind of the authority concerned has not been applied at all, due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider.

24. Coming back to the cases before us, we find that the High Court had correctly stated the grounds on which even a subjective opinion as to the existence of the need to take action under section 17(4) of the Act can be challenged on certain limited grounds. But, as soon as we speak of a challenge we have to bear in mind the general burdens laid down by sections 101 and 102 of the Evidence Act. It is for the petitioner to substantiate the grounds of his challenge. This means that the petitioner has to either lead evidence or show that some evidence has come from the side of the respondents to indicate that his challenge to a notification or order is made good. If he does not succeed in discharging that duty his petition will fail.

30. In the cases before us, if the total evidence from whichever side any of it may have come, was

insufficient to enable the petitioners to discharge their general or stable onus, their petitions could not succeed. On the other hand, if, in addition to the bare assertions made by the petitioners, that the urgency contemplated by section 17(4) did not exist, there were other facts and circumstances, including the failure of the State to indicate facts and circumstances which it could have easily disclosed if they existed, the petitioners could be held to have discharged their general onus.

40. In the case before us, the public purpose indicated is the development of an area for industrial and residential purposes. This, in itself, on the face of it, does not call for any such action, barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under Section 5A of the Act, imperative. On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under Section 5A of the Act to be completed without any impediment whatsoever to the execution of the scheme. Therefore, the very statement of the public purpose for which the land was to be acquired indicated the absence of such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under Section 5A of the Act.

42. All schemes relating to development of industrial and residential areas must be urgent in the context of the country's need for increased production and more residential accommodation. Yet, the very nature of such schemes of development does not appear to demand such emergent action as to eliminate summary enquires under Section 5A of the Act. There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commissioner was applied at all to the question whether it was a case necessitating the elimination of the enquiry under Section 5A of the Act. The recitals in the notifications, on the other hand, indicate that

elimination of the enquiry under Section 5A of the Act was treated as an automatic consequence of the opinion formed on other matters. The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under Section 5A of the Act. It is certainly a ease in which the recital was at least defective. The burden, therefore, rested upon the State to remove the defect, if possible, by evidence to show that some exceptional circumstances which necessitated the elimination of an enquiry under Section 5A of the Act and that the mind of the Commissioner was applied to this essential question. It seems to us that the High Court correctly applied the provisions of Section 106 of the Evidence Act to place the burden upon the State to prove those special circumstances. although it also appears to us that the High Court was not quite correct in stating its view in such a manner as to make it appear that some part of the initial burden of the petitioners under Sections 101 and 102 of the Evidence Act had been displaced by the failure of the State to discharge its duty under Section 106 of the Act. The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts especially within the knowledge of its officials, which rested upon it under Section 106 of the Evidence Act, taken together with the attendant facts and circumstances, including the contents of recitals, had enabled the petitioners to discharge their burden under Sections 101 and 102 of the Evidence Act."

10. The burden is on the respondent No.3 to

show that some exceptional circumstance which

necessitated elimination of an enquiry under Section 5

of the Act. As observed above, respondent No.3 has

not placed any material to prove the special

circumstance. A public purpose, however laudable it

may be, does not entitle the State to invoke the

urgency provisions because the same have the effect

of depriving the owner's right to the property without

being heard. Only in a case of real urgency, can the

State invoke the urgency provisions and dispense with

the requirement of hearing the land owners or other

interested persons. Section 17(1) read with Section

17(4) of the LA Act confers extraordinary power upon

the State to acquire private property without

complying with the mandate of Section 5-A. These

provisions can be invoked only when the purpose of

acquisition cannot brook the delay of even few weeks

or months. Therefore, before excluding the application

of Section 5-A of the Act, the Authority concerned

must be fully satisfied that time of few weeks or

months likely to be taken in conducting enquiry under

Section 5-A will in all probability frustrate the public

purpose for which land is proposed to be acquired.

The satisfaction of the Government on the issue of

urgency is subjective but is a condition precedent to

exercise of power under Section 17-A.

11. From a perusal of the impugned notification,

it is seen that the said acquisition proceedings cannot

be regarded as for 'urgent purpose' so as to invoke

the provisions of Section 17(4) of the Act and the

present case cannot be an exception to the said

Rule/Section. The said view has been reiterated by

this Court in the case of THIMME GOWDA vs. STATE

OF MYSORE & ANOTHER reported in 1974(2)

Kar.L.J. 134. Further, the Hon'ble Apex Court in the

case of RADHY SHYAM (DEAD) THROUGH LRS.

AND OTHERS vs. STATE OF UTTAR PRADESH AND

OTHERS reported in (2011) 5 Supreme Court Cases

553 has held as under:

"77. xxxx

(i) Xxxx

(ii) Xxxx

(iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty-bound to scrutinise the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the landowner is likely to become landless and deprived of the only source of his livelihood and/ or shelter.

(iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4,5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the landowner or other interested persons.

(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5-A, the

authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired."

12. The petitioners have challenged the

preliminary notification issued under Section 4(1) of

the LA Act. While issuing notice in the instant writ

petitions, this Court vide order dated 14.12.2013 in

W.P.No.54870/2013 has granted an interim order

staying the operation of Annexure-F, the notification

dated 23.9.2013. The interim order is continued. It

is nearly after eight years the case is finally disposed

of. In the meantime, 'The Land Acquisition Act' was

repealed and 'The Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act 2013' has taken its place.