Full Judgment Text
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CASE NO.:
Appeal (civil) 5699 of 1998
Appeal (civil) 5700-04 of 1998
Appeal (civil) 5705 of 1998
Appeal (civil) 5706 of 1998
Appeal (civil) 5707 of 1998
Appeal (civil) 5708 of 1998
Appeal (civil) 5709 of 1998
Appeal (civil) 6499 of 1998
Appeal (civil) 6420-21 of 1998
Appeal (civil) 1054 of 1999
Appeal (civil) 1263 of 1999
Appeal (civil) 201 of 1999
Appeal (civil) 6589 of 2000
Appeal (civil) 3603-04 of 2002
Appeal (civil) 3613 of 2002
Appeal (civil) 6495 of 2002
PETITIONER:
M/s Kanaka Gruha Nirman Sahakara Sangha
RESPONDENT:
Sbmyt.LRNsaraanydanoatmhmears(since deceased)
DATE OF JUDGMENT: 03/10/2002
BENCH:
M. B. SHAH & D. M. DHARMADHIKARI.
JUDGMENT:
J U D G M E N T
Shah, J.
C.A. Nos. 5699, 5705, 6420-21, 5706, 5708 of 1998:
Respondentsland owners challenged the Notification dated
29th March, 1986 issued under sub-section (1) of Section 4 and the
Notification dated 4.5.1987 issued under sub-section (1) of Section 6
of the Land Acquisition Act, 1894 (hereinafter referred to as ’the
Act’) for acquisition of lands for a Co-operative Housing Society by
filing Writ Petition Nos.7837, 8113 and 8958 of 1987 before the High
Court of Karnataka. By judgment and order dated 14.11.1995, the
learned Single Judge dismissed the said writ petitions. Against the
said judgment and order, Writ Appeal Nos.95 and 4630 of 1995 were
preferred by the landowners and Writ Appeal No.75 of 1995 was filed
by the Kanaka Gruha Nirmana Sahakara Sangha [the Group Housing
Society] which was impleaded as a party respondent in writ
petitions. The Division Bench of the High Court allowed the writ
appeal Nos.95 and 4630 of 1995 and quashed the notification under
sub-Section (1) of Section 4 of the Act and also all consequential
proceedings relating to the acquisition of the land subject to the writ
petitioners’ depositing the amount of compensation received by them
along with interest calculated @ 15% per annum from the date of
payment of amount. Writ Appeal No.75 of 1995 filed by the Society
was dismissed.
The Court also held that no writ appeal was filed by the land
owners who had filed Writ Petition no.8958/87 and they have
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acquiesced in the action of the State Government and were satisfied
with the compensation. Hence, the judgment would not confer any
right upon the said writ petitioners to re-open the case or re-agitate the
matter by way of appeal or any other proceedings.
The Court allowed the writ appeals on the ground (a) the
initiation of action by the Special Deputy Commissioner under
Section 4 of the Act for issuing notification is illegal as under the
Land Acquisition Act, the appropriate Government is required to be
satisfied that the land is needed for public purpose; (b) respondents
have also not placed on record any document to show that prior
approval in terms of Section 3(f)(vi) was granted by the Government
and Annexure R-1 cannot be deemed to be substitute of the powers
required to be exercised under Section 3(f)(vi) and sub-section (1) of
Section 4 of the Act. Hence, these appeals.
At this stage, we may note that in Writ Appeal Nos.6804-
05/1996, Full Bench of the Karnataka High Court by judgment and
order dated 27th March, 2002 held that the view taken by the Division
Bench in case of Naveen Jayakumar and Kanaka Gruha Nirmana
Sahakara Sangha was not a good law. The Full Bench arrived at the
conclusion that initiation of proceedings by the Deputy Commissioner
cannot be said to be illegal. There was no inconsistency or
repugnancy between the State Act and the Land Acquisition Act as
amended in 1984. For the reasons stated below, we agree with the
said findings.
Re: Inconsistency between Mysore Act and Amended
Land Acquisition Act.
We would first deal with the contention that the proceedings
under the Land Acquisition (Mysore Extension and Amendment) Act
17 of 1961 (hereinafter referred to as the ’Mysore Act’) are illegal,
null and void because by Act 68 of 1984, the Land Acquisition Act
1894 was substantially amended and was made applicable to the
whole of India except the State of Jammu and Kashmir. The Mysore
Act being repugnant to the Act of Parliament, would be void. Hence,
the proceedings initiated under the said Act by the approval of the
Deputy Commissioner instead of the State Government would also be
void.
For dealing with the said contention, we would refer to the
relevant part of the Mysore Act which requires consideration. It inter
alia provides thus:
"An Act to extend the Land Acquisition Act, 1894
(Central Act 1 of 1894), the whole of the State of Mysore
and further to amend it in its application to the State.
WHEREAS it is expedient to extend the Land
Acquisition Act, 1894 (Central Act 1 of 1894), to the
whole of the State of Mysore and further to amend it in
its application to the State of Mysore;
Be it enacted by the Mysore State Legislature in
the Twelfth Year of the Republic of India as follows:
1. Short title, extent and commencement.(1)
This Act may be called the Land Acquisition (Mysore
Extension and Amendment) Act, 1961.
(2) It extends to the whole of the State of
Mysore.
(3) It shall come into force at once.
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2. ..
3. Extension of Central Act I of 1894 to the
whole of the State of Mysore.The Land Acquisition Act,
1894 (Central Act I of 1894), as amended by this Act is
hereby extended to and shall be in force in the whole of
the State of Mysore.
4. Substitution of the expression "Deputy
Commissioner", for the expression Collector in Central
Act 1 of 1894. In the principal Act, for the word
"Collector" where it occurs, the words "Deputy
Commissioner" shall be substituted.
5.
6.
7. Amendment of section 4 of Central Act I of
1894In section 4 of the principal Act,
(1) in sub-section (1),
(a) after the words "the appropriate
Government" the words "or the Deputy
Commissioner" shall be inserted;
(b) for the words "notification to that effect",
the words, notification stating the purpose
for which the land is needed, or likely to be
needed, and describing the land by its survey
number, if any, and also by its boundaries
and its approximate area" shall be
substituted;
(c) after the words "the said locality", the
following sentence and explanation shall be
added, namely:
"The Deputy Commissioner may also
cause a copy of such notification to be
served on the owner, or where the owner is
not the occupier, on the occupier of the land.
Explanation.The expression " convenient places’
includes, in the case of land situated in a village, the
office of the panchayat within whose jurisdiction the land
lies."
By the aforesaid Mysore Act, the Land Acquisition Act was
made applicable to the then State of Mysore with certain amendments.
For the said amendments, assent of the President as contemplated
under Article 254 was obtained. Under the Mysore Act, if it appears
to the appropriate Government or to the Deputy Commissioner that
the land is needed for any public purpose, Notification to that effect
could be issued in the official gazette. The rest of the amendment in
Section 4(1) deals with the publication of the Notification and makes
additional provision for the method of its publication which we are
not required to deal with in these appeals. The limited question would
be whether the supplementary provision empowering the Deputy
Commissioner to exercise the powers which could be exercised by the
appropriate Government is repugnant? By empowering the Deputy
Commissioner with the powers which could be exercised by the
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appropriate Government, no question of repugnancy between Section
4 of the Land Acquisition Act (law made by the Parliament) and
Section 4 of the Mysore Act would arise.
In our view, the Division Bench of the High Court materially
erred in holding that in view of Article 254 of the Constitution,
proceedings initiated under the Mysore Act would be void. Question
of application of Article 254 of the Constitution would arise only in
those cases where there is repugnancy between the State legislation
and the law made by the Parliament. This would be apparent from
clause (1) of Article 254 of the Constitution which reads thus:
"254. Inconsistency between laws made by
Parliament and laws made by the Legislatures
of States.(1) If any provision of a law made
by the Legislature of a State is repugnant to any
provision of a law made by Parliament which
Parliament is competent to enact, or to any
provision of an existing law with respect to one of
the matters enumerated in the Concurrent List,
then, subject to the provisions of clause (2), the
law made by Parliament, whether passed before
or after the law made by the Legislature of such
State, or, as the case may be, the existing law,
shall prevail and the law made by the Legislature
of the State shall, to the extent of the repugnancy,
be void."
The language of the aforesaid Article is crystal clear and it
inter alia provides [subject to the provisions of Clause (2)] that
(a) if any provision of law made by the Legislature of
State is repugnant to any provision of a law made
by the Parliament, which the Parliament is
competent to enact, then the law made by the
Parliament whether passed before or after the law
made by the Legislature of such State shall prevail
and the law made by Legislature of the State shall,
to the extent of repugnancy, be void; or
(b) if any provision of a law made by the legislature of
State is repugnant to any provision of an existing
law with respect to one of the matters enumerated
in the Concurrent List, then the existing law shall
prevail and the law made by the legislature of the
State shall, to the extent of repugnancy, be void.
There cannot be any doubt that the Article gives
supremacy to the law made by the Parliament, which
Parliament is competent to enact. But, for application of this
Article, firstly, there must be repugnancy between the State
law and the law made by the Parliament. Secondly, if there
is repugnancy, the State legislation would be void only to the
extent of repugnancy. If there is no repugnancy between the
two laws, there is no question of application Article 254(1)
and both the Acts would prevail. Similar issue was exhaustively
dealt with by the Constitution Bench of this Court in M. Karunanidhi
v. Union of India and another [(1979) 3 SCC 431]. In that case,
Madras Legislature, after obtaining the assent of the President of
India, made an Act known as Tamil Nadu Public Men (Criminal
Misconduct) Act, 1973 (hereinafter referred to as ’State Act’). That
Act was repealed in 1977. Meantime, against the appellant of that
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matter, FIR was recorded on June 16, 1976 for prosecution under
Sections 161, 468 and 471 of IPC and Section 5(2) read with Section
5(1)(d) of the Prevention of Corruption Act. It was contended that by
virtue of Article 254(2) of the Constitution of India, the provisions of
the Central Act stood repealed and could not revive after the State Act
was repealed. In that context, the Court considered Article 254(2) and
held that there must be real repugnancy resulting from an
irreconcilable inconsistency between the State Act and Central Acts.
The Court held thus:
"24. It is well-settled that the presumption is
always in favour of the constitutionality of a statute and
the onus lies on the person assailing the Act to prove that
it is unconstitutional. Prima facie, there does not appear
to us to be any inconsistency between the State Act and
the Central Acts. Before any repugnancy can arise, the
following conditions must be satisfied:
1. That there is a clear and direct inconsistency
between the Central Act and the State Act.
2. That such an inconsistency is absolutely
irreconcilable.
3. That the inconsistency between the
provisions of the two Acts is of such a
nature as to bring the two Acts into direct
collision with each other and a situation is
reached where it is impossible to obey the
one without disobeying the other."
The Court also referred to the earlier decisions including Deep
Chand v. State of U.P. [1959 Supp. (2) SCR 8, 43], wherein various
tests to ascertain the question of repugnancy between the two statutes
were indicated and inter alia it was held that repugnancy between two
statutes may be ascertained by considering whether Parliament
intended to lay down an exhaustive code in respect of the subject-
matter replacing the Act of the State Legislature? The Court also
referred to Megh Raj v. Allah Rakhia [AIR 1942 FC 27, 30] wherein
it was observed that the safe rule to follow was that where the
paramount legislation does not purport to be exhaustive or unqualified
there is no inconsistency and it cannot be said that any qualification
or restriction introduced by another law is repugnant to the provision
in the main or paramount law. The Court also referred to T.S. Balliah
v. T.S. Rangachari [(1969) 3 SCR 65,68,69, 72] wherein it was inter
alia observed that before coming to the conclusion that there is a
repeal by implication, the Court must be satisfied that the two
enactments are so inconsistent that it becomes impossible for them to
stand together. Finally, the Court held thus:
"35. On a careful consideration, therefore, of the
authorities referred to above, the following propositions
emerge:
1. That in order to decide the question of
repugnancy it must be shown that the two
enactments contain inconsistent and
irreconcilable provisions, so that they cannot
stand together or operate in the same field.
2. That there can be no repeal by implication
unless the inconsistency appears on the face
of the two statutes.
3. That where the two statutes occupy a
particular field, but there is room or
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possibility of both the statutes operating in
the same field without coming into collision
with each other, no repugnancy results.
4. That where there is no inconsistency but a
statute occupying the same field seeks to
create distinct and separate offences, no
question of repugnancy arises and both the
statutes continue to operate in the same
field."
Applying the propositions enunciated above, it would
be difficult to hold that the amendments made by the
’Mysore Act’ which are supplementary in nature, cannot
stand together with the amended Land Acquisition Act. It
cannot be stated that the amended Land Acquisition Act is so
exhaustive and unqualified that only the ’appropriate
Government’ has to be satisfied before issuing the
Notification under Section 4 and it excludes empowering of
other authority to exercise such powers by State Legislation.
The only difference is before issuing the Notification, the
Deputy Commissioner is also empowered to decide
whether the land is needed or is likely to be needed for public
purpose. From this, it cannot be held that there is repugnancy
between the two provisions as both can co-exist without any
conflict. Hence, the finding recorded by the High Court is, on
the face of it, illegal and erroneous. In the present case, we
are not required to deal with other amendments which are
carried out in the Land Acquisition Act. But prima facie it is
apparent that there is no inconsistency between the Mysore
Act and the amended Land Acquisition Act.
Re: Approval of the State Government as contemplated
under Section 3(f)(vi).
The learned counsel for the appellant next submitted that the
finding given by the High Court with regard to the non-compliance of
Section 3(f)(vi) is, on the face of it, illegal. As against this, the
learned counsel for the land-owners submitted that the High Court
rightly arrived at the conclusion that Annexure R-I cannot be termed
to be the satisfaction either in terms of Section 3(f)(vi) or sub-section
(1) of Section 4 of the Act. For appreciating this contention, we
would first refer to Section 3(f)(vi), which reads thus:
"3. Definitions.In this Act, unless there is
something repugnant in the subject or context,
(f) the expression "public purpose’ includes
(vi) the provision of land for carrying out
any educational, housing, health or slum
clearance scheme sponsored by
Government, or by any authority established
by Government for carrying out any such
scheme, or, with the prior approval of the
appropriate Government, by a local
authority, or a society registered under the
Societies Registration Act, 1860 (21 of
1860), or under any corresponding law for
the time being in force in a State, or a co-
operative society within the meaning of any
law relating to co-operative societies for the
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time being in force in any State."
On the basis of the aforesaid Section, the High Court observed
that the land in dispute has been intended to be acquired for the
Housing Co-operative Society for which the prior approval of the
appropriate Government was necessary in terms of Section 3(f)(vi) of
the Act and such approval is not on the record. Similarly, before
initiation of action by the Collector under Section 4 of the Act, it is
necessary that the land intended to be acquired should appear to the
appropriate Government to be needed for any public purpose in terms
of Section 3(f)(vi) of the Act.
In our view, aforesaid finding is, on the face of it, erroneous. It
has been pointed out by the State Government and also by the
Housing Co-operative Society that with a view to provide sites to the
members, who were site-less, the Society requested the State
Government to acquire the land in Sy. Nos.19/2, 26 and 29 of
Kadirenhalli village in Bangalore South Taluk. At the direction of the
State Government, the Asstt. Registrar of Co-op. Societies,
Bangalore-II Circle verified the requirement of the members of the
Society and recommended to the Revenue Department that the extent
of land in the above-said survey numbers was required by the Society.
The State Government placed the above matter before the Committee
of three members for scrutiny. The three-Member Committee
approved and cleared the proposal for the acquisition of the aforesaid
survey numbers for the benefit of the Society. The State Government
conveyed its approval for initiating the proceedings for acquisition of
the aforesaid lands for the benefit of the Society by its order dated
14.11.1985 as per Annexure R-1. After issuance of Notification dated
29th March, 1986 under sub-section (1) of Section 4 of the Act, the
land-owners made representations to the Government and the State
Government over-ruled the objections of the writ petitioners and
issued directions for taking further proceedings in the matter vide
order dated 25.4.1987 which was followed by a Notification dated
4.5.1987 issued under Section 6 of the Act acquiring the above
mentioned lands. The acquisition proceedings are stated to have been
initiated and concluded in accordance with law.
For emphasizing that prior approval of the appropriate
Government in the present case was not just an empty formality, we
would refer to Annexure R-1, which is as under:
"Dated: 14.11.85
The Revenue Commissioner and
Secretary to Government, Bangalore.
The Special Deputy Commissioner,
Bangalore.
Sir,
Sub: Acquisition of Land in Sy. Nos.19/2, 26, 29 of
Kadirenahalli village and Sy. No.29/3 of
Konanakunt village Bangalore South Taluk in
favour of Kanaka Gruhaniramana Sahakara
Sangha, Bangalore.
I am directed to convey the approval of
Government to initiate acquisition proceedings by
issuing 4(1) notification in respect of lands measuring 8
acres 03 guntas as recommended by the Official
Committee in Sy. Nos.19/2, 26, 29 of Kadirenehalli
village and Sy. No.29/3 of Kenanakunte village,
Bangalore South Taluk in favour of Kanaka Gruha
Nirmana Sahakara Sangha Bangalore.
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Yours faithfully,
Sd/-
(Mandi Hussain)
Under Secretary to Government
Revenue Department.
Copy to the President, Kanaka Gruha Nirmana Sahakara
No.435 Middle School Road, V.V. Puram, Bangalore-4."
Considering the fact that State Government directed the
Assistant Registrar of Co-operative Societies of Bangalore to verify
the requirement of the members of the Society and also the fact that
the matter was placed before the Committee of three Members for
scrutiny and thereafter the State Government has conveyed its
approval for initiating the proceedings for acquisition of the land in
question by letter dated 14.11.1985, it cannot be said that there is
lapse in observing the procedure prescribed under Section 3(f)(vi).
Prior approval is granted after due verification and scrutiny.
The learned counsel for the appellant further pointed out that
three-Member Committee consisted of the Registrar of Co-operative
Societies, (II) Secretary, Bangalore Development Authority, and (III)
Special Deputy Commissioner, Revenue Department.It is also pointed
out that State Government had constituted State level Co-ordination
Committee which consisted of (i) the Revenue Commissioner and
Secretary to Government (ii) Secretary, HUD Department (iii)
Secretary to Cooperation Department (iv) Deputy Commissioner,
Bangalore District (v) Chairman KIABD, and (vi) Commissioner,
BDA and other special invitees. The recommendations of the three-
Member Committee were considered by the State Level Co-ordination
Committee. The constitution of the two high power committees
consisting of highly placed officials of the Government only assisted
the Government to re-ensure itself that the land in question and other
lands were required for public purpose. It has also been pointed out
that such approval by the State Government is considered to be proper
approval by this Court and number of petitions, namely, A.K.
Kayamma v. State of Karnataka, SLP (C) No.18239-54/96 decided
on 20.9.1996 (Annexure-P6), Muniyappa v. State of Karnataka,
SLP(C) No.14681/95 decided on 4.10.1996 (Annexure-P7),
Sumitramma v. State of Karnataka, SLP(C) No.10270/96 decided on
4.10.1996 (Annexure-P8) etc. etc. are dismissed In Sumitramma’s
case, this Court has distinguished the decision rendered by this Court
in H.M.T. House Building Cooperative Society v. Syed Khader and
others [(1995) 2 SCC 677], but in our view, R-1 reflects a specific
approval by the State Government as contemplated under Section
3(f)(vi). Hence, the decision rendered by this Court in H.M.T. House
Building Cooperative Society’s case does not require any further
discussion.
The High Court allowed the writ appeals on the aforesaid two
grounds and has quashed the land acquisition proceedings. For the
reasons stated above, the impugned judgment and order passed by the
High Court cannot be sustained.
In the result, these appeals are allowed and the impugned
judgment and order passed by the High Court in Writ Appeals is
quashed and set aside. The order passed by the learned Single Judge
dismissing the writ petitions is restored.
C.A. No.5700-04/98
These appeals are filed against the judgment and order dated
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15.6.1998 passed in WP Nos.3539-42/96 and C/W No.6603/96. By
the impugned order, the High Court has set aside the Notification and
the award passed in the land acquisition proceedings. For the reasons
recorded above, these appeals are allowed, the impugned judgment
and order passed by the High Court is set aside.
C.A. No. 5709, 6499/98 and 201/99
These appeals are filed against judgment and order dated
18.6.98 and 17.6.98 in W.P. 16783/91, 25283/90 and 1002 of 1991
respectively. For the reasons recorded above, these appeals are
allowed, the impugned judgment and order passed by the High Court
is set aside.
C.A. No.1263/99
This appeal is filed against judgment and order dated 17.6.98 in
W.P. No.24792/90. For the reasons recorded above, this appeal is
allowed, the impugned judgment and order passed by the High Court
is set aside.
C.A. No. 6495 of 2002 @ S.L.P. (C) No. 18703/98
Leave granted. This appeal is filed against judgment and order
dated 18.6.98 in W.P. No.13399/91. In view of the order passed
above, this appeal is allowed, the impugned judgment and order
passed by the High Court is quashed and set aside.
C.A. No. 1054/99, 3603-04/2002, 3613/2002
These appeals are filed against the judgment and order dated
5.6.1997, 27.3.2002 and 7.6.2000 passed in WP No. 4241/1995, WA
NO. 4596/95 and WA No. 14902/2000 respectively. For the reasons
recorded above, these appeals are dismissed.
S.L.P. (C) No. 22589/01
This petition is filed against judgment and order dated 1.8.2001
passed in WA No.1462/98. For the reasons recorded above, this
petition does not call for any interference and is dismissed.
S.L.P. (C) No. 2608-11/02
The Division Bench of the High Court in WA Nos. 725-28/99
arrived at the conclusion that the Deputy Commissioner in State of
Karnataka had competence to issue Notification under Section 4 of the
Land Acquisition Act and therefore, set aside the order passed by the
learned Single Judge. This order is challenged by filing these special
leave petitions. In our view, the order passed by the High Court does
not call for any interference. Hence, the SLP is dismissed.
S.L.P. (C) No. 22506/01
This petition is filed against judgment and order dated 1.8.2001
passed in WA No. 6059/98. By the impugned order, the High Court
has allowed the appeal and set aside the order passed by the learned
Single Judge. For the reasons recorded above, this petition does not
call for any interference and, is therefore, dismissed.
C.A. No. 6589/2000:
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This appeal is filed against the judgment and order dated
7.6.2002 in Writ Appeal No. 1490 of 2002. For the reasons recorded
above, this appeal does not call for any interference and, is therefore,
dismissed.
C.A. No. 5707/98:
This appeal is filed against the judgment and order dated
28.7.97 of High Court of Karnataka in Writ Petition No.17558/89. By
the said judgment and order, the High Court dismissed the writ
petition challenging the action taken by the Government in
withdrawing from the acquisition proceedings. The Court dismissed
the writ petition solely on the ground that in Writ Appeal No.4596 of
1995 decided on 22.7.1997, the Division Bench of the High Court has
quashed the acquisition of the land and, therefore, consequential
action taken in withdrawing the land from acquisition has no
significance.
In our view, as the order passed by the Division Bench passed
in Writ Appeal No.4596/95 quashing the land acquisition proceedings
is set aside in Civil Appeal No.5708 of 1998, the writ petition requires
to be decided on merits and, therefore, the matter is remitted to the
High Court for deciding it afresh in accordance with law. Appeal is
allowed accordingly.
There shall be no order as to costs in all these cases.