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1970 DIGILAW 54 (KAR)

KRISHN AMURTHY v. STATE

1970-04-09

GOPIVALLABHA IYENGAR, SADANANDASWAMY

body1970
GOPIVALLABHA IYENGAR, J. ( 1 ) THE petitioner who is one of the khatadars of Survey No. 70-1 of kethamaranahalli, Bangalore North Taluk, has made this petition for the issue of a writ quashing the preliminary Notification dated 14-10-1965 under S. 4 of the Land Acquisition Act, for the acquisition of 30 guntas of land in Survey No. 70-1. He also seeks the quashing of the final notification dated 28th July 1965 under S. 6 of the Land Acquisition Act. ( 2 ) IT is averred in the affidavit filed by the petitioner that in the preliminary notification, which is marked Ext. A it is announced that 30 guntas from S. No. 70-1 and 5 guntas out of S No. 70-2 was likely to be needed for a public purpose. ( 3 ) WE are not concerned in this case with S. No. 70-2 as the petitioner is interested only in S. No. 70-1. The petitioner submits that the said notification is vague, as it does not set out the area that is to be acquired from out of 3 acres and 25 guntas which belongs to him, according the notification. It is seen from the notification Ext. A, that there are two khatadars in Survey No. 70-1. The Khatadar other than the petitioner, according to the notification owns 7 acres 15 guntas. It is no doubt true that no specific area to be acquired in the particular plot which each of the khatadar owns is mentioned in Ext. A It is further stated in the affidavit that the petitioner filed his objections before the Special Land Acquisition officer on 26-11-1965, true copy of which is marked as Ext. E. He has also given a statement before the Land Acquisition Officer on 11-2-1966, which is produced as Anneyure-I, along with the counter-affidavit. ( 4 ) THE grievance of the petitioner is also that he was not informed of the fact of the report having been submitted to the Government under S. 5 (A) of the Land Acquisition Act and without such notice of the report having been sent to the petitioner, a final notification hap been issued as per Ext. ( 4 ) THE grievance of the petitioner is also that he was not informed of the fact of the report having been submitted to the Government under S. 5 (A) of the Land Acquisition Act and without such notice of the report having been sent to the petitioner, a final notification hap been issued as per Ext. E. In paragraph 8 of the affidavit the petitioner states that he has specifically raised the objection that the extent of the land owned by him in s. No. 70-1 had not been correctly specified and that the particular extent of the land that was proposed to be acquired from out of his share had not been mentioned so as to give an opportunity to him to state his objection. Further in paragraph 9 he mentions that there is no public purpose for acquiring the land and in any event he would have no objection if the proposed underground sewer was laid along the edge of his land where the drain runs at present. ( 5 ) IN the counter-affidavit filed by the respondents it is stated that the petitioner was heard by the special Land Acquisition Officer on 11-2-1966 and that the petitioner had made a statement before him, and that the petitioner had stated that he had no objection for the acqusition of his land. Reliance is placed on Annexure-I. In paragraph 7 of the same counter- affidavit, it is stated that in view of the petitioner not having objected to the acquisition, the fact that the petitioner was not intimated about the fact of submission of report under S. 5 (A) of the Act, is not a material omission. ( 6 ) SO, the question that now arises for consideration is whether the notification and annexure Exts. 4a and E are not in accordance with law and therefore, invalid and liable to be struck down. It appears to us that the complaint in regard to Ext. A cannot be sustained. The defect in Ext. A is, as earlier mentioned, the non mention of the particular portion that is to be acquired in the land belonging to the petitioner and another, who are both the Khatadars of S. No. 70-1. ( 7 ) IN the decision reported in Barkya Thakur v. State of Bombay, AIR. 1960 SC. 1203. The defect in Ext. A is, as earlier mentioned, the non mention of the particular portion that is to be acquired in the land belonging to the petitioner and another, who are both the Khatadars of S. No. 70-1. ( 7 ) IN the decision reported in Barkya Thakur v. State of Bombay, AIR. 1960 SC. 1203. in paragraph 12 the purpose of the notification under S. 4 of the Act has been referred to. The relevant observations are as follows: "the purpose of the notification under S. 4 is to carry on a preliminary investigatition with a view to finding out after necessary survey and taking of levels, and if necessary digging or boring into the sub-soil whether the land was adapted for the purpose for which it was sought to be acquired. It is only under S. 6 that a firm declaration has to be made by Government that land with proper description and area so as to be identifiable is needed for a public purpose or for a Company. What was a mere proposal under S. 4 becomes the subject matter of a definite proceeding for acquisition under the Act. Hence it is not correct, to say that any defect in the notification under S. 4 is fatal to the validity of the proceedings, particularly when the acquisition is for a Company and the purpose has to he investigated under S. 5a or S. 40, necessarily after the Notification under S. 4 of the Act. " ( 8 ) FROM this it is clear that it is only after the preliminary investigation, that the Land Acquisition Officer could decide which particular portion of the S. No. would be required for acquisition. In the notification in question, it may not be practicable without a preliminary investigation, to state the extent or area that is necessary to be acquired in the portion, each of the Khatadar may own in S. No. 70-1. Therefore, it appears to us that the non-mention of a particular area that is to be acquired from each khatadar is not such a defect as to warrant the striking down of the said notification. The defect is not fata] to the validity of the proceedings. Therefore, the relief sought for in respect of Ext. A, the preliminary notification, cannot be granted. The defect is not fata] to the validity of the proceedings. Therefore, the relief sought for in respect of Ext. A, the preliminary notification, cannot be granted. ( 9 ) OUR attention was drawn to the decision in Iftikar Ahmed v. State of Madhya Pradesh, AIR 1961 MP 140 where a preliminary notuification was also struck down. The preliminary notification in that case was of a very vague nature. The facts are clearly distinguishable. This decision was also referred to in rambhiari Misra v. State of Madhya Pradesh , AIR. 1964 Mp 111. While referring to the decision in Iftikar's case (2), it is stated that that case was peculiar, because, there the acquisition was of some land in a crowded locality in the heart of the City of Bhopal and it was felt by the Court that it would be absurd to expect thousands of people owning lands in the city to come and object just on the possibility of their property also being acquired. The notification in that case merely stated that an area of six acres of land in Bhopal city is proposed to be acquired. ( 10 ) IN view of the observations of the Supreme Court and in the circumstances of this csse we are unable to hold that there is any uncertainty in the notification Ext. A so as to justify the quashing of the same. The position is different so far as the notification Ext. E is concerned. It is clear from the affidavit filed by the respondents and they have proceeded on a mis-conception of what the petitioner stated before the Land acquisition Officer by way of objection under S. 5 (A), Cl. (2) of the Land acquisition Act. Annexure-I is clear that he has objection for the proposed acquisition. What he says is that if the proposed drain is laid at the extremity of his land he would have no objection for such acquisition. ( 11 ) THIS statement was taken as his having no objection for the proposed acquisition. The plan relating to the laying of the drain is contrary to what is stated in Annexure-I. Therefore, under S. 5 (A), Cl. (2) of the Act, the petitioner was entitled to be informed of the fact of the report, containing the recommendations, having been submitted to the Government. In this, case this has not been done. The plan relating to the laying of the drain is contrary to what is stated in Annexure-I. Therefore, under S. 5 (A), Cl. (2) of the Act, the petitioner was entitled to be informed of the fact of the report, containing the recommendations, having been submitted to the Government. In this, case this has not been done. Without conforming to this requirement of law under S. 5 (A), the final notification under S. 6 of the Act cannot be made. Therefore, the notification made under S 6, Ext. E in this case is invalid so far as it relates to the petitioner. It has, therefore, to be quashed. ( 12 ) IN the result the notification Fxt. E, in so far as it relates to the petitioner, is quashed and to that extent this writ petition is allowed. It is now open to the Respondents to take further steps in respect of the proposed acquisition in accordance with law. There will be no order as to ocosts. --- *** --- .