Karnataka High Court
Smt S Padmavathi vs The State Of Karnataka on 15 July, 2022
Bench: Suraj Govindaraj
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WP No. 1113 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 1113 OF 2013 (LA-RES)
BETWEEN:
1. SMT. S. PADMAVATHI
AGED ABOUT 45 YEARS
D/O LATE SMT. SULOCHANAMMA
W/O MR. S. SUNDER RAJ
R/AT NO. 42 (OLD NO.20)
CAR STREET, (CTS NO.2663)
HALASURU, BANGALORE-560008
2. SRI. D. JAGANATHA RAO
S/O DOWLAT RAO
AGED ABOUT 54 YEARS
RESIDING AT OLD NO.8
NEW NO.9, (CTS NO.2658)
SOMESHWARA TEMPLE STREET
HALASURU, BANGALORE-560008
3. SRI. S. SHANMUGAM DIXITH
S/O LATE SUBRAMANYA DIXITH
AGED ABOUT 84 YEARS
Digitally signed SINCE DECEASED BY HIS LRS
by POORNIMA
SHIVANNA
Location: HIGH
COURT OF a. SRI. S. RAMANATH DIXITH
KARNATAKA S/O LATE S. SHANUMUGAM DIXITH
AGED ABOUT 55 YEARS
R/A NO.10, SOMESHWARA TEMPLE STREET
HALASURU, BANGALORE-560008
4. SMT. LAKSHMAMMA
AGED ABOUT 61 YEARS
W/O VENKATACHALAPATHY SETTEE
RESIDING AT NO.18, NO.9/1
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WP No. 1113 of 2013
(CTS NO.2658) SOMESHWARA TEMPLE STREET
HALASURU, BANGALORE-560008
...PETITIONERS
(BY SRI. C.M. NAGABHUSHANA, ADVOCATE AND
SRI. P.V. CHANDRASHEKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY CHIEF SECRETARY
VIDHANA SOUDHA, BANGALORE-
560001
2. THE REVENUE SECRETARY
REVENUE DEPARTMENT
LAND ACQUISTIION-2
BANGALORE
REP BY LALITHA HANDIGOLA
3. THE SPECIAL LAND ACQUISITION
OFFICER
PODIUM BLOCK, 2ND FLOOR
VISHWESHWARAIAH TOWERS
VIDHANA VEEDHI
BANGALORE-560001
4. SRI. SOMESHWARA TEMPLE
HALASUR, BANGAORE-560008
REP. BY THE ASST. COMMISSIONER OF
MUZARI INSTITUTIONS
CORPORATION AREA, BANGALORE
... RESPONDENTS
(BY SRI. NITHYANANDA.K.R, AGA FOR R1 TO R3;
SRI. R. LOHITH, ADVOCATE FOR
SRI. N. SHANKAR NARAYAN BHAT, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR
DIRECTION IN THE NATURE OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT OR DIRECTION QUASHING THE NOTIFICATION
NO.KE && LAQ 2012 DATED 17.09.2012 ISSUED UNDER SECTION
6(1) OF THE LAND ACQUISITION ACT, ISSUED BY THE SECOND
RESPONDENT VIDE ANNEXURE 'A' AND ETC.
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THIS WRIT PETITION COMING ON FOR FURTHER ARGUMENTS
AND HAVING BEEN RESERVED FOR ORDERS ON 29.06.2022, THIS
DAY, THE COURT PRONOUNCE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the
following reliefs:
a. Issue a writ or direction in the nature of certiorari
or any other appropriate writ or direction quashing
the Notification No.KE && LAQ 2012 dated
17.09.2012 issued under Section 6(1) of the Land
Acquisition Act, issued by the second respondent
vide Annexure 'A'.
b. To issue writ or direction or order and call upon the
respondents to place the entire records of the
acquisition proceedings culminating in the issuance
of Annexure 'A' before this Hon'ble Court and to
examine the legality thereof.
c. be pleased to grant such other relief's as this
Hon'ble Court deems fit in the circumstances of the
case.
2. The petitioners claim to be the absolute owners of
the residential house bearing CTS No.2658, 2659,
2663 in Ward No.90 of Ulsoor having BBMP Municipal
Number and postal address 8, 9 (CTS 2658) 10,
(CTS No.2659), Someshwaraswamy Temple Street
and No.42, Car Street (CTS No.2663) all at Ulsoor,
Bangalore-560 008, BBMP Ward No.81.
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3. The land of the petitioners was proposed to be
acquired by exercising powers under the Land
Acquisition Act, 1894 (for short 'L.A. Act') apparently
on the ground that the said land was required for the
purpose of making use of the Kalyani (Water storage
area in a temple) which had been recently discovered
and the same is attached to the temple premises.
The petitioners being owners of the private land have
objected to the same contending that their land
should not be acquired for beautification of the
Kalyani since the Kalyani had already been restored
and was operational.
4. Sri.C.N.Nagabhushana, learned counsel for the
petitioners would submit that:
4.1. Kalyani had fallen to disuse over centuries and
atleast for the last 100 years, there was no use
of the said Kalyani to the known memory of the
persons residing in the said area.
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4.2. The land of the petitioners is not situated on the
Kalyani, but besides the same and therefore,
the petitioners having put up construction of
the residential houses on their own properties,
which never belonged to the temple, the land of
the petitioners cannot be acquired so as to
enable the beautification of the Kalyani.
4.3. There is no proper enquiry which has been
conducted in terms of Section 5(A) of L.A.Act,
all though the petitioners were heard on
03.04.2012 and the matter was posted on
07.04.2012, when an adjournment was sought
for on the ground that the counsel for the
petitioners was unwell, instead of granting the
adjournment, the proceedings were closed and
the SLAO recommended the property for
acquisition.
4.4. In this regard, he relies upon the decision of the
Hon'ble Apex Court in the case of Kamal
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Trading Private Company vs. State of West
Bengal reported in 2012 (2) SCC 25 more
particularly Paras 14, 15, 16, 22, 25, 27 and 28
thereof, which are reproduced hereunder for
easy reference:
14. It must be borne in mind that the
proceedings under the LA Act are based on the
principle of eminent domain and Section 5-A is
the only protection available to a person whose
lands are sought to be acquired. It is a minimal
safeguard afforded to him by law to protect
himself from arbitrary acquisition by pointing out
to the authority concerned, inter alia, that the
important ingredient, namely, "public purpose" is
absent in the proposed acquisition or the
acquisition is mala fide. The LA Act being an
expropriatory legislation, its provisions will have
to be strictly construed.
15. Hearing contemplated under Section 5-A(2)
is necessary to enable the Collector to deal
effectively with the objections raised against the
proposed acquisition and make a report. The
report of the Collector referred to in this
provision is not an empty formality because it is
required to be placed before the appropriate
Government together with the Collector's
recommendations and the record of the case. It
is only upon receipt of the said report that the
Government can take a final decision on the
objections. It is pertinent to note that declaration
under Section 6 has to be made only after the
appropriate Government is satisfied on the
consideration of the report, if any, made by the
Collector under Section 5-A(2). As said by this
Court in Hindustan Petroleum Corpn. Ltd.
[(2005) 7 SCC 627] , the appropriate
Government while issuing declaration under
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Section 6 of the LA Act is required to apply its
mind not only to the objections filed by the
owner of the land in question, but also to the
report which is submitted by the Collector upon
making such further inquiry thereon as he thinks
necessary and also the recommendations made
by him in that behalf.
16. Sub-section (3) of Section 6 of the LA Act
makes a declaration under Section 6 conclusive
evidence that the land is needed for a public
purpose. Formation of opinion by the appropriate
Government as regards the public purpose must
be preceded by application of mind as regards
consideration of relevant factors and rejection of
irrelevant ones. It is, therefore, that the hearing
contemplated under Section 5-A and the report
made by the Land Acquisition Officer and his
recommendations assume importance. It is
implicit in this provision that before making
declaration under Section 6 of the LA Act, the
State Government must have the benefit of a
report containing recommendations of the
Collector submitted under Section 5-A(2) of the
LA Act. The recommendations must indicate
objective application of mind.
22. In Hindustan Petroleum Corpn. [(2005) 7
SCC 627] this Court again referred to Om
Prakash [(1998) 6 SCC 1] and observed that it is
trite that hearing given to a person must be an
effective one and not a mere formality. This
Court observed that : (Hindustan Petroleum
Corpn. case [(2005) 7 SCC 627] , SCC p. 635,
para 9)
"9. ... Formation of opinion as regards the public
purpose as also suitability thereof must be
preceded by application of mind as regards
consideration of relevant factors and rejection of
irrelevant ones."
This Court further observed that the State in its
decision-making process must not commit any
WP No. 1113 of 2013
misdirection in law. This Court observed that it
cannot be disputed that
"Section 5-A of the LA Act confers a valuable
important right and having regard to the
provisions contained in Article 300-A of the
Constitution it has been held to be akin to a
fundamental right" (Hindustan Petroleum Corpn.
case [(2005) 7 SCC 627] , SCC p. 635, para 9).
Pertinently, this Court made it clear that in a
case where there has been total non-compliance
or substantial non-compliance with the
provisions of Section 5-A of the LA Act, the Court
cannot fold its hands and refuse to grant relief to
the appellant. Again, in Dev Sharan [(2011) 4
SCC 769 : (2011) 2 SCC (Civ) 483] this Court
reiterated the same view.
25. According to the appellant, the notification
under Section 4 of the LA Act was not served on
the owner companies. However, upon coming to
know of this notification, the appellant vide their
letter dated 8-9-1997 submitted objections
running into four pages containing 8 paragraphs.
We have already noted that the Second Land
Acquisition Officer adjourned the hearing on one
occasion as requested by the appellant. He,
however, refused to adjourn the matter any
further. The second request was rejected. We
feel that looking to the nature of the issues
involved, the Second Land Acquisition Officer
could have adjourned the proceedings after
putting the appellant to terms because hearing
the representative of the owner companies was
mandatory. In any event, if he did not want to
adjourn the proceedings and wanted to consider
the objections in the absence of the counsel for
the owner companies and assuming such a
course is permissible in law, he should have
dealt with the objections carefully and not in
such a light-hearted manner because a heavy
responsibility rested on his shoulders.
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27. The paragraphs which contain the
submissions and the so-called reasons of the
Second Land Acquisition Officer need to be
quoted:
"Heard the officers present from the requiring
body. They vehemently protested as regards the
statements contained in this particular letter.
Their submissions in short that the statements
made by the interested persons are all fake,
arbitrary and groundless. They simply endeavour
to oust the requiring body by hook or crook in
order to grab this office space so that in turn can
realise higher rent. Further, the purpose of the
requiring body is very much public-oriented and
if it is not acquired they will suffer immensely.
They further submitted that acquisition
proceeding to be completed as quickly as
possible inasmuch as they have the time-bound
programmes to implement it as per guidelines of
the Government for the greater interest of
public.
In view of these circumstances and for greater
interest of the public, the submissions made by
the interested persons by their letter dated 8-9-
1997 are overruled."
28. By no stretch of imagination, can it be said
that the Second Land Acquisition Officer had
applied his mind to the objections raised by the
appellant. The abovequoted paragraphs are
bereft of any recommendations. The Second
Land Acquisition Officer has only reproduced the
contentions of the officers of the acquiring body.
The objections taken by the appellants are
rejected on a very vague ground. Mere use of
the words "for the greater interest of public"
does not lend the report the character of a report
made after application of mind. Though in our
opinion, the declaration under Section 6 of the
LA Act must be set aside because the appellant
was not given hearing as contemplated under
Section 5-A(2) of the LA Act, which is the
appellant's substantive right, we must record
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that in the facts of this case, we are totally
dissatisfied with the report submitted by the
Second Land Acquisition Officer. His report is
utterly laconic and bereft of any
recommendations. He was not expected to write
a detailed report but, his report, however brief,
should have reflected application of mind.
Needless to say that as to which report made
under Section 5-A(2) could be said to be a report
disclosing application of mind will depend on the
facts and circumstances of each case.
4.5. He submits that the manner in which the
proceedings were conducted by SLAO has only
resulted in an empty formality and there were
no opportunities which have been granted to
the petitioners to try and safeguard their
property from acquisition.
4.6. The right to property though not a fundamental
right is a constitutional right which has now
taken the form of human right, being a part of
Article 21 of the Constitution of India and
therefore, he submits that the enquiry under
Section 5(A) of L.A Act being the only
protection to a land loser, the said protection
has to be provided in its completeness to any
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land loser. In the present matter, the same not
having been provided, the acquisition
proceedings are required to be quashed.
4.7. As regards the enquiry report, he submits that
there is absolutely no application of mind by
SLAO inasmuch as there is no consideration
which has been made of the objections while
passing the order, which in this case is only a
perfunctory order having been passed in a
cursory manner by the said SLAO.
4.8. In this regard, he relies upon the decision of the
Hon'ble Apex Court in the case of THE BARIUM
CHEMICALS LTD., AND ANOTHER VS. A.J.RANA
AND OTHERS reported in AIR 1972 SC 591
more particularly Paras 14 and 15 thereof,
which are reproduced hereunder for easy
reference:
14. We are in the present case not concerned with
Reserve Bank nor with the situation wherein it was
considered expedient to obtain and examine any
information, book or other document. The
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impugned order purports to have been made by
the Central Government because, according to it,
the Central Government considered it necessary
for the purpose of the Act to obtain and examine
the papers and documents specified in the
schedule attached to the order. The question
which arises for determination is whether the
authority concerned applied its mind so as to show
that the Central Government considered it
necessary for the purpose of the Act to obtain and
examine the papers and documents specified in
the Schedule.
15. The words "considers it necessary" postulate
that the authority concerned has thought over the
matter deliberately and with care and it has been
found necessary as a result of such thinking to
pass the order. The dictionary meaning of the
word "consider" is "to view attentively, to survey,
examine, inspect (arch), to look attentively, to
contemplate mentally, to think over, meditate on,
give heed to, take note of, to think deliberately,
bethink oneself, to reflect" (vide Shorter Oxford
Dictionary). According to Words and Phrases --
Permanent Edition Vol. 8-A "to consider" means to
think with care. It is also mentioned that to
"consider" is to fix the mind upon with a view to
careful examination; to ponder; study; meditate
upon, think or reflect with care. It is therefore,
manifest that careful thinking or due application of
the mind regarding the necessity to obtain and
examine the documents in question is sine qua
non for the making of the order. If the impugned
order were to show that there has been no careful
thinking or proper application of the mind as to
the necessity of obtaining and examining the
documents specified in the order, the essential
requisite to the making of the order would be held
to be non-existent.
4.9. He submits that the notification has not been
gazetted, but has only been published in a
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newspaper. In terms of Section 4(1) of the L.A
Act, it is imperative that the said notification is
published in the gazette. The notification not
having been gazetted is non-est.
4.10. In this regard, he relies upon the decision of the
Hon'ble Apex Court in the case of THE
COLLECTOR (DISTT.MAGISTRATE) ALLAHABAD
AND ANOTHER VS. RAJA RAM JAISWAL
reported in AIR 1985 SC 1622 more
particularly Paras 3, 9, 12, 16 and 17 thereof,
which are reproduced hereunder for easy
reference:
3. Petitioner filed Special Leave Petition No. 9019
of 1980 against the same judgment contending
that the High Court committed an error in
rejecting the challenge to the validity of the
impugned notification on the ground of legal mala
fides as also on the ground of non-compliance with
Rule 4 of the Land Acquisition (Companies) Rules,
1963.
9. The High Court struck down the notification
holding that "in order to be a valid notification
under Section 4(1), it has to be published or
notified for general information in the Official
Gazette and for purposes of Section 5-A of the
Act, it would be taken to have been published on
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the date of such publication in the Official Gazette,
and the second part of Section 4(1) requires the
publication of the substance of the notification in
the locality". This having not been complied with,
the notification was bad and invalid. The
correctness of this view is questioned on behalf of
the appellants.
12. Mr S.N. Kacker for the intervener and Mr
Dikshit for the State of U.P. urged that ordinarily
courts do not interfere at the stage of Section 4
notification because it merely constitutes a
proposal which will be meticulously examined after
the objections are filed under Section 5-A by the
person interested in the land wherein all aspects
of the matter can be threadbare gone into and
examined. Broadly stated, one cannot take serious
exception to this submission. However, as a
notification under Section 4(1) initiates the
proceedings for acquisition of land and uses the
expression "shall" the mandate of the legislature
becomes clear and therefore, the infirmities
therein cannot be wholly overlooked on the
specious plea that the courts do not interdict at
the stage of a mere proposal.
16. Assuming that a notification in the Official
Gazette is a formal expression of the decision of
the Government, the decision of the Government
is hardly relevant, unless it takes the concrete
shape and form by publication in the Official
Gazette. Where a decision of the Government to
be effective and valid has to be notified in the
Government Gazette, the decision itself does not
become effective unless a notification in the
Official Gazette follows. In Mahendra Lal Jaini v.
State of U.P. [AIR 1963 SC 1019 : 1963 Supp (1)
SCR 912] it was held that a notification under
Section 4-A of the Indian Forest Act, 1927 is
required to be published in the Gazette and unless
it is so published, it is of no effect. Logically, the
same view must be adopted for a notification
under Section 4. Therefore assuming that a
notification is a formal expression of a decision of
the Government to acquire land, unless the
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decision is notified in the Government Gazette by
an appropriate notification, the proceedings for
acquisition cannot be said to have been initiated
and the decision would remain a paper decision.
Section 4(1) further requires that "the Collector
shall cause public notice of the substance of such
notification to be given at convenient places in the
said locality". The expression "such notification" in
the latter part of Section 4(1) and sequence of
events therein enumerated would clearly spell out
that first the Government should reach a decision
to acquire land, then publish a notification under
Section 4(1) and simultaneously or within a
reasonable time from the date of the publication of
the notification cause a notice to be published
containing substance of such notification meaning
thereby that notification which is published.
Obviously, therefore, there cannot be a publication
in the locality prior to the issuance of the
notification. The submission of Mr Kacker does not
commend to us.
17. In this context, it was next contended that at
any rate the petitioner has not suffered any
prejudice by the failure of the Government to
publish a notice in the locality because the
petitioner has filed detailed objections against the
proposed acquisition. If the only purpose behind
publishing the notice in the locality was to give an
opportunity to the persons interested in the land
to file their objections, the submission would have
merited consideration, but the same has been
expressly negatived and therefore, it is futile to
examine the same. To be brutally frank if this was
the only ground for invalidating the notification, in
the backdrop of facts we would have our serious
reservations in upholding the decision, though as
the law stands, the High Court was perfectly
justified in reaching this conclusion. Our
reservations have nothing to do with the perfectly
legal view taken by the High Court. They stem
from the facts of this case and our understanding
of the purpose behind publication of notice as set
out by us earlier. In such a situation, we would
have developed the concept of prejudice and the
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absence of it resulting in negativing the
contention. But there are other formidable
challenges to the validity of the impugned
notification, which of course have not found favour
with the High Court but we are inclined to take a
different view of the matter. Therefore we let the
decision of the High Court on this point stand.
4.11. He submits that SLAO has expressed legal
malafides in not considering the objections,
which have been filed by the petitioners. The
land of the petitioners has been acquired for
reasons, which are not public in nature and the
acquisition does not serve any public purpose
and is, therefore, required to be quashed. In
this regard, he relies upon the decision of the
Hon'ble Apex Court in the case of RAGHBIR
SINGH SEHRAWAT VS. STATE OF HARYANA
AND OTHERS reported in 2012 (1) SCC 792
more particularly Paras 40 and 43 thereof,
which are reproduced hereunder for easy
reference:
40. Though it is neither possible nor desirable to
make a list of the grounds on which the
landowner can persuade the Collector to make
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recommendations against the proposed
acquisition of land, but what is important is that
the Collector should give a fair opportunity of
hearing to the objector and objectively consider
his plea against the acquisition of land. Only
thereafter, he should make recommendations
supported by brief reasons as to why the
particular piece of land should or should not be
acquired and whether or not the plea put forward
by the objector merits acceptance. In other
words, the recommendations made by the
Collector must reflect objective application of
mind to the objections filed by the landowners
and other interested persons.
43. It also appears that the authorities concerned
are totally unmindful of the plight of those
sections of the society, who are deprived of their
only asset like small house, small industrial unit,
etc. They do not realise that having one's own
house is a lifetime dream of a majority of the
population of this country. Economically affluent
class of society can easily afford to have one or
more houses at any place or locality in the
country but other sections of the society find it
extremely difficult to purchase land and construct
house. Majority of the people spend their lifetime
savings for building a small house so that their
families may be able to live with a semblance of
dignity. Therefore, it is wholly unjust, arbitrary
and unreasonable to deprive such persons of their
houses by way of the acquisition of land in the
name of development of infrastructure or
industrialisation. Similarly, some people set up
small industrial units after seeking permission
from the competent authority. They do so with
the hope of generating additional income for their
family. If the land on which small units are
established is acquired, their hopes are shattered.
Therefore, before acquiring private land the State
and/or its agencies/instrumentalities should, as
far as possible, use land belonging to the State
for the specified public purposes. If the
acquisition of private land becomes absolutely
necessary, then too, the authorities concerned
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must strictly comply with the relevant statutory
provisions and the rules of natural justice.
4.12. For all the aforesaid reasons, he submits that
the petition is required to be allowed and the
acquisition is to be quashed.
5. Per contra, Sri.Lohit, counsel appearing for
Sri.N.Shankarnarayan Bhat, learned counsel for
respondent No.4 submits that:
5.1. Section 3 of the Karnataka Ancient and
Historical Monuments and Archeological Sites
and Remains Act, 1961 protects all ancient and
historical monuments and that an ancient
monument is one which is in existence for not
less than 100 years.
5.2. Section 3 is reproduced hereunder for easy
reference:
"3. Ancient and historical monuments and
archeological sites and remains deemed to
be protected monuments and areas: All
ancient and historical monuments and all
archeological sites and remains which have
been declared by the Ancient Monuments
Preservation Act, 1904 (Central Act VII of
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1904), or the Ancient
Monuments Preservation Act, 1337 F
(Hyderabad Act VIII of 1337 Fasli) or the
Mysore Ancient Monuments Preservation Act,
1925 (Mysore Act IX of 1925), to be protected
monuments but which have not been declared
by or under law made by Parliament to be
of national importance, shall be deemed to be
ancient and historical monuments or
archeological sites and remains declared to be
protected monuments or protected areas,
as the case may be, under this Act".
5.3. The Kalyani in question being more than 100
years old, is automatically protected under the
Act of 1961. On enquiry, he submits that there
is no notification which had been issued under
the Ancient Monuments Preservation Act, 1904
or 1937. He submits that no such notification is
required in respect of an ancient monument in
existence for more than 100 years, since
Section 3 of the Act of 1961 would protect the
same.
5.4. As regards the enquiry under Section 5(A) of
the Act, he submits that all the objections have
been heard and considered by the SLAO. The
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documents in the report of the SLAO at
Annexure-Q would indicate that the submission
made by the petitioners have been put forth in
a gist and thereafter rejected by the SLAO
which would indicate the application of mind by
the SLAO.
5.5. The petitioner had earlier challenged the
preliminary notification by filing WP Nos.45359-
45362/2011. The said petitions were allowed
directing the respondents to consider the
objections. The said objections having been
considered, there cannot be a petition
maintained seeking for quashing the acquisition
proceedings.
5.6. For all the aforesaid reasons, he submits that
the petition requires to be dismissed.
6. Sri.Nityananda, learned AGA adopts the submission
made by the learned counsel for respondent No.4.
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7. The points that would arise for consideration are:
1. Whether a private property of a person
where he has constructed a house and he
is residing, can be acquired for the
beautification of an area?
2. Whether an enquiry under Section 5A of
the Land Acquisition Act has been carried
out by the Land Acquisition Officer in a
proper manner?
3. Whether the recommendation made by the
Land Acquisition Officer satisfies the
requirement of the Land Acquisition Act?
4. Whether merely because a construction or
a monument is more than 100 years old,
the same would be automatically be a
protected monument under the Ancient
Monuments Preservation Act, 1904 and as
such, entitling the State to acquire the
land around the monument?
5. What order?
8. I answer the above points as under:
9. Answer to Point No.1: Whether a private
property of a person where he has constructed
a house and he is residing, can be acquired for
the beautification of an area?
9.1. An acquisition of land needs to be for a public
purpose and in public interest. Public purpose
and public interest have been dealt with and
defined in various judgments. The concept of
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public purpose has been dealt with in
detail by the Apex Court in Daulat Singh
Surana v. First Land Acquisition Collector
reported in (2007) 1 SCC 641 more
particularly paragraphs 49-52, 59-60 and
73.
49. In United Community Services v. Omaha
Nat. Bank [77 NW 2d 576, 585, 162 Neb 786]
the Court observed that a public purpose has for
its objective the promotion of the public health,
safety, morals, security, prosperity, contentment
and the general welfare of all the inhabitants.
50. In People ex rel Adamowski v. Chicago R.R.
Terminal Authority [151 NE 2d 311, 314, 14 III
2d 230] the Court observed that public purpose
is not static concept, but is flexible and is
capable of expansion to meet conditions of
complex society that were not within
contemplation of framers of the Constitution.
51. In Green v. Frazier [176 NW 11, 17, 44 ND
395] , the Court observed that a public purpose
or public business has for its objective the
promotion of the public health, safety, morals,
general welfare, security, prosperity and
contentment of all the inhabitants or residents
within a given political division, as for example, a
State, the sovereign powers of which are
exercised to promote such public purpose or
public business.
52. In the words of Lord Atkinson in Central
Control Board v. Cannon Brewery Co. Ltd. [1919
AC 744 : 88 LJCh 464 : 121 LT 361 (HL)] the
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power to take compulsorily raises by implication
a right to payment.
59. In Somavanti v. State of Punjab [(1963) 2
SCR 774 : AIR 1963 SC 151] the Court observed
that public purpose must include an object in
which the general interest of the community, as
opposed to the particular interest of individuals,
is directly and vitally concerned. Public purpose
is bound to change with the times and the
prevailing conditions in a given area and,
therefore, it would not be a practical proposition
even to attempt an extensive definition of it. It is
because of this that the legislature has left it to
the Government to say what is a public purpose
and also to declare the need of a given land for a
public purpose.
60. The Constitution Bench of this Court in
Somavanti [(1963) 2 SCR 774 : AIR 1963 SC
151] observed that whether in a particular case
the purpose for which land was needed was a
public purpose or not was for the Government to
be satisfied about and the declaration of the
Government would be final subject to one
exception, namely, that where there was a
colourable exercise of the power the declarations
would be open to challenge at the instance of the
aggrieved party.
73. Public purpose cannot and should not be
precisely defined and its scope and ambit be
limited as far as acquisition of land for the public
purpose is concerned. Public purpose is not
static. It also changes with the passage of time,
needs and requirements of the community.
Broadly speaking, public purpose means the
general interest of the community as opposed to
the interest of an individual.
9.2. Though private interest is required to yield to a
public interest, for the private interest to yield
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such public interest, the public interest should
be such that the private interest pales into
insignificance and/or that private interest is
much lesser than the public interest. In the
present case, the petitioners have been in
occupation of the property from several
decades. They have put up construction of
their residence in their property and have been
residing in the said property for several
decades. It is also important to note that the
concerned land of the petitioners is situated in
the midst of City of Bangalore.
9.3. Thus, the petitioners being resident in the area
proposed to be acquired, in the event of
acquisition of land being completed, the
petitioners would be dispossessed from the said
land and building and as such would be
rendered without the benefit of residence.
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9.4. The purpose of land acquisition is only for
beautification of the land around a Kalyani
which has been recently discovered. It is not
that the petitioners have put up construction on
the Kalyani itself, but it is that the petitioners
have put up construction around the Kalyani
and this land where the petitioners have put up
construction is only required for the purpose of
beautification of the land around the Kalyani by
setting up gardens or the like. It would have
been a different matter if the petitioners'
construction was on the Kalyani. Admittedly,
the petitioners' construction is not on the
Kalyani but beside it. Thus, I am of the
considered opinion that the beautification of the
land by setting up gardens etc., cannot be such
a public purpose as to override the private
interest of the petitioners in this case.
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9.5. The petitioners' right to shelter and right to life
under Article 21 of the Constitution of India
would be rendered negatory if the petitioners'
land is acquired for the aforesaid purpose.
9.6. In view of the above, I answer Point No.1
by holding that the property of a private
individual cannot be acquired only for the
purpose of beautification of an area.
10. Answer to Point No.2: Whether an enquiry
under Section 5(A) of the Land Acquisition Act
has been carried out by the Land Acquisition
Officer in a proper manner?
10.1. As could be seen from the records, the
petitioners filed their objections to the
acquisition and were heard on 03.04.2012 in
part. Thereafter, the matter was adjourned to
07.04.2012. When an adjournment was sought
for on the ground that the counsel was unwell,
the SLAO instead of adjourning the matter and
granting an opportunity, closed the proceedings
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and recommended for acquisition of the
property.
10.2. As held by the Hon'ble Apex Court in Kamal
Trading case supra, the only time when a land
owner can object to and be heard is during the
enquiry under Section 5(A) of the L.A.Act. The
only protection for exercise of powers eminent
domain and/or acquisition is at the time of
enquiry under Section 5(A) of L.A.Act and as
such, the hearing and opportunity that is given
should be effective one and not an empty
formality. When the counsel was unwell, it was
but required for the SLAO to have granted a
short accommodation, more so, when it was the
first time when the adjournment was sought for
on part of the petitioners.
10.3. The State and/or the officers of the State who
are public servants are required to protect the
interest of the public and not ride roughshod on
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their rights and interest of citizen. Therefore, it
was required for the SLAO to have considered
the matter in a humane manner and granted a
short adjournment to the petitioners so as to
enable the petitioners' counsel to represent
them on the next date. That not having been
done, I am of the opinion that the enquiry
which has been conducted by SLAO in this
matter leaves much to be desired and the
enquiry does not comply with the requirement
of Section 5(A) of L.A.Act, 1984.
10.4. Hence, I answer Point No.2 by holding that
the enquiry under Section 5(A) of L.A.Act
has not been carried out by the SLAO in a
proper and required manner.
11. Answer to Point No.3: Whether the
recommendation made by the Land Acquisition
Officer satisfies the requirement of the Land
Acquisition Act?
11.1. A perusal of the report which has been
submitted by the SLAO, though mentions some
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of the objections which have been raised, does
not deal with it and ends with a
recommendation for the acquisition to be made.
11.2. As held by the Hon'ble Apex Court in THE
BARIUM CHEMICALS LTD case supra,
consideration of a particular matter would
require application of mind and examination of
the documents which is sine qua non for
passing an order. In the present case, apart
from mere reference to the objections made by
the petitioners, there is no consideration by the
SLAO as to why those objections should be
considered or rejected. There is no weightage
given by the SLAO as regards merits or
demerits of any particular contention or
objections raised by the petitioners.
11.3. A reading of the report does not indicate any
application of mind by the SLAO for rejecting
the objections of the petitioners at the time of
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recommending the acquisition. As afore
observed, the only time a land owner gets an
opportunity to object to acquisition and is
granted an opportunity of being heard is at the
stage of enquiry under Section 5(A) of L.A.Act.
The culmination of the enquiry is in the report
submitted. Therefore, I am of the considered
opinion that the report is required to be
considered one and a reading of the same
should ex facie indicate such application of
mind.
11.4. Hence, I answer point No.3 by holding that
recommendation made by the SLAO does
not indicate any consideration and/or
application of mind and therefore, in my
considered opinion does not satisfy the
requirement of L.A. Act.
12. Answer to Point No.4: Whether merely because
a construction or a monument is more than 100
years old, the same would be automatically be
a protected monument under the Ancient
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Monuments Preservation Act, 1904 and as such,
entitling the State to acquire the land around
the monument?
12.1. Sri.Lohit, learned counsel appearing on behalf
of Sri. N. Shankar Narayan Bhat, learned
counsel for respondent No.4 has contended that
since the Kalyani is more than 100 years of old,
the same would get automatically protected
under Section 3 of the Karnataka Ancient and
Historical Monuments and Archeological Sites
and Remains Act, 1961 without requiring any
notification. The said Section has been
reproduced hereinabove.
12.2. A perusal of the said Section requires that any
ancient and historical monument which have
been declared by the Ancient Monuments
Preservation Act, 1904 or Ancient Monuments
Preservation Act, 1337 or the Mysore
Ancient Monuments Preservation Act, 1925 to
be protected monuments but which have not
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been declared to be of national importance shall
be deemed to be ancient and historical
monuments or Archeological Sites.
12.3. Thus, a perusal of Section 3 would indicate that
there needs to be a declaration under the
aforesaid Acts.
12.4. Section 3 of the Ancient Preservation Act, 1904
reads as under:-
3. Protected monuments.--
(1) The 1[Central Government] may, by
notification in the Official Gazette, declare an
ancient monument to be a protected monument
within the meaning of this Act.
(2) A copy of every notification published under
sub-section (1) shall be fixed up in a conspicuous
place on or near the monument, together with an
intimation that any objections to the issue of the
notification received by the 1[Central Government]
within one month from the date when it is so fixed
up will be taken into consideration.
(3) On the expiry of the said period of one month,
the 1[Central Government], after considering the
objections, if any, shall confirm or withdraw the
notification.
(4) A notification published under this section shall,
unless and until it is withdrawn, be conclusive
evidence of the fact that the monument to which it
relates is an ancient monument within the meaning
of this Act.
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12.5. A perusal of the above provision would indicate
that the Central Government is required to
issue a notification in the official gazette
declaring an ancient monument to be protected
monument.
12.6. Section 10 of the Ancient Preservation Act reads
as under:-
10. Compulsory purchase of ancient monument.--
(1) If the 1[Central Government] apprehends that a
protected monument is in danger of being destroyed,
injured or allowed to fall into decay 2[the Central
Government may direct the State Government to
acquire it] under the provisions of the Land Acquisition
Act, 1894 (1 of 1894), as if the preservation of a
protected monument were a "public purpose" within the
meaning of that Act.
(2) The powers of compulsory purchase conferred by
sub-section (1) shall not be exercised in the case
of--
(a) any monument which or any part of which is
periodically used for religious observances; or
(b) any monument which is the subject of a subsisting
agreement executed under section 5.
(3) In any case other than the cases referred to in sub-
section (2) the said powers of compulsory purchase
shall not be exercised unless the owner or other person
competent to enter into an agreement under section 5
has failed, within such reasonable period as the Collector
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may fix in this behalf, to enter into an agreement
proposed to him under the said section or has
terminated or given notice of his intention to terminate
such an agreement.
12.7. A perusal of the same would indicate that it is
the Central Government who can acquire any
land under the provisions of the Land
Acquisition Act as regards the land of which
notified protected monument is situated. The
State Government does not have any power to
do so. In view of the same, the submission
which have been made by the learned counsel
for the respondent that merely because the
Kalyani is more than 100 years of old, the lands
surrounding the said Kalyani could be acquired
as a public purpose is not sustainable. Hence,
this contention is requires to be rejected.
12.8. In the present case, on enquiry with the learned
counsel for the respondent whether there is any
such declaration, he has fairly submitted that
there is no such declaration. Therefore, I am of
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the considered opinion that Section 3 of the
Karnataka Ancient and Historical Monuments
and Archeological Sites and Remains Act would
not apply.
13. Answer to Point No.5: What order?
13.1. The Writ Petition is allowed.
13.2. A Writ of certiorari is issued. The notification
bearing No.KE & LAQ 2012 dated 17.09.2012
issued under Section 6(1) of the Land
Acquisition Act, by the respondent No.2 vide
Annexure 'A' is quashed.
Sd/-
JUDGE
Prs*
