H. G. KULKARNI v. ASST. COMMISSIONER, BELGAUM — 1976 DIGILAW 11 (KAR)

( 1 ) THESE four petitions have been brought up before us by way of a reference made by a learned single judge. Since some of the questions of fact and law are common to all of them, they are disposed of by a common judgment. We have, therefore, referred to the facts with regard to W. P. No. 590 of 1973 in some detail for the purpose of disposal of the common questions of law. But the special facts and contentions arising in connection with the other petitions have been noticed at the appropriate context. ( 2 ) THE material facts in W. P. No. 590 of 1973, briefly are as follows: the petitioner, along with some others, is the owner of S. No. 115 situated in Yamanapur and some others in Kakti village. This petition under Art. 226 of the Constitution has been preferred on behalf of himself and as power of attorney holder of such other owners. The said lands along with some others were proposed to be acquired for development of industries under the Mysore (now Karnataka) Industrial Areas Development act, 1966 (hereafter referred to as 'the Act'), by the Government of Mysore (now Karnataka) pursuant to S. 28 (1) of the Act. The relevant notification so proposing to acquire is dated 19-8-1969 and is produced and marked as ext. C. Earlier to this there was another notification which however came to be quashed by this court at the instance of the petitioner in W P. No. 9 of 1968. This circumstance however is not of any materiality for our present purpose. ( 3 ) PURSUANT to the notification dated 19-8-1969, the petitioner was served with notices under sub-sec. (2) of S. 28 calling upon hare sutmit his objections, if any, to the proposed acquisition, 'ihe said notices have been produced and annexed as Ext. 'd' series to the petition. It is seen from the said notices that the date of their issue had been left blank and the names of the villages wherein the lands are situate had not been mentioned. But there is a clear reference therein to the notification under S. 28 (1) of the Act, in which all particulars necessary had been furnished. It is seen from the said notices that the date of their issue had been left blank and the names of the villages wherein the lands are situate had not been mentioned. But there is a clear reference therein to the notification under S. 28 (1) of the Act, in which all particulars necessary had been furnished. The petitioner did not prefer any objections as invited, but the reason for such an attitude has baen stated in the petition thus: "we did not file objections as we felt that no useful purpose would be served because they have stated that the objections were overruled without giving any reasons on the first occasion when we urged the objections and they have acted in such a care-tree manner without even signing and dating the notices. But I reliably learn that other persons, who are my neighbours, have filed their objections. " ( 4 ) AFTER the Assistant Commissioner, the competent authority empowered to act pursuant to the provisions of the Act, considered such objections as were filed in accordance with the provisions of the Act, and pursuant to the powers delegated in that behalf, the State Government issued a notification under S. 28 (4) of the Act on 21-11-1972. Thereupon, notices under S. 28 (6) of the Act were issued to the petitioner and others on 30-12-1972 (Ext. 'a' series), calling upon them to deliver and surrender possession of the lands concerned therewith to the Tahsildar. After possession of the lands was taken on 22-3-1973, the same was delivered over to the indian Aluminium Company on 22-3-1873. Aggrieved by these proceedings, the petitioner has approached this court praying for the issue cf appropriate writs or directions quashing the aforementioned notivications ana notices. ( 5 ) CN behalf of the petitioners, the following contentions were urged by Sri S. K. Venkataranga Iyengar, the learned counsel. Briefly stated they aie:-~ (1) The notices issued pursuant to S. 28 (2) of the Act were vague and devoid of paiticulars in that the date of issue of such notices and the te names of the villages had not been mentioned. Such notices were not in compliance with the statutory requirements and, therefore, invalid. Briefly stated they aie:-~ (1) The notices issued pursuant to S. 28 (2) of the Act were vague and devoid of paiticulars in that the date of issue of such notices and the te names of the villages had not been mentioned. Such notices were not in compliance with the statutory requirements and, therefore, invalid. Therefore, the fact that no objections had been preferred by the petitioner could nut be held up against him; (2) The final notification under S. 28 (4) of the Act was also invalid in that the name of the village Yamanapur had not been mentioned in the context of acquisition of S. No. 115, in the appropriate Gazette Notifitation. (3) Under a notification dated 26120-11-1966 (Ext. 'e'), published by the State Government pursuant to the powers conferred under S. 4-A of the Mysore (new Karnataka) Town and Country Planning Act, 1961, the ontire revenue village of Ysmanapur, including S. No. 115 concerned herewith, has teen declared as part of Belgaum Planning area, as distinguished from the industrial area. Hence, having regard to the provisions of S. 76 M of the said onactment, it was not open to the Government to have issued the prerent notifications under S. 28 of the Act. ( 6 ) ON behalf of the Statte Government and the Indian Aluminium company, which was subsequently impisaded as the 3rd respondent- heraing, M s. V. C. Brahmarayappa, the learned High Court Government pleader, and S. G. Sundaraswamy, learned Counsel, contended that having regard to the provisions of S. 12 of the Act, the omissions in the notices and the Notifns pointed out on behalf of the petitioner were mere irregularties which were not in themselves sufficient to invalidate them, in the absence of any prejudice having been caused to the petitioner on account cf such omissions. It was further contended that m view of the provisions of S. 47 cf the Act, the notifications issued under the Act must prevail and be deemed to have superseded the notification issued under the Karnataka town and Country Planning Act on which reliance has been placed on behalf of the petitioner. ( 7 ) WE shall now consider the contentions of the petitioner, as set out earlier, seriatim. The first contention relates to certain emissions in the notices issued under S. 28 (2) of the Act, and duly served on the petitioner. ( 7 ) WE shall now consider the contentions of the petitioner, as set out earlier, seriatim. The first contention relates to certain emissions in the notices issued under S. 28 (2) of the Act, and duly served on the petitioner. It is true that the date of issue and the names cf the villages in which the lands are situate had not been mentioned hi such notices. But it is seen from such notices that there is a clear reference to the number and par iculars of the Gazette publication of the Notification issued under S. 28 (1) of the Act pursuant to which alone such notices came to be issued and served on the petitioner. In addition, the survey number, the extent and the assessment of the land have been mentioned. All the same, it has been contended that the petitioner had been deprived of the statutory opportunity to object to the acquisition and consequently all the proceedings sub-sequent to the notification under Sec. 28 (1) of the Act were vitiated and could not have any legal effect. In suppoet of such a contention, reliance was placed on the onunciations of the Supreme Court in certain decide* cases to which we shall presently advert. ( 8 ) IN the case of Narinderjit v. State of U. P. , AIR. 1973 Sc 552 the Supreme Court was concerned with a case where the Collector had not caused public notice of the substance of the notification under S. 4 (1) of the Land acquisition Act to be given at convenient places in the locality as onjoined oy the said statutory prevision. the Court held that such a requirement was mandatory and non-compliance therewith would vitiate the whole of the acquisition proceedings. In the instant case, we are not concerned with any such omission to issue the notice under S. 28 (2) of the Act but only that such notice was devoid of certain particulars. Hence the principle of this deiscion is not of much assistance to the petitioner. ( 9 ) THE next case relied on is that of Munshi Singh v. Union of India, Air 1973 cs 1150 that was also a case arising from proceedings under the Land acquisition Act. Hence the principle of this deiscion is not of much assistance to the petitioner. ( 9 ) THE next case relied on is that of Munshi Singh v. Union of India, Air 1973 cs 1150 that was also a case arising from proceedings under the Land acquisition Act. The facts concerned there in related to the absence of clear specification of the public purpose in the notification issued under S. 4 (.) of the Land Acquisition Act. The public purpose had been generally state I as "pranned development of the area" and there was no proof that the persons interested in the lands were either aware of or were shown the scheme or the master flan concerning such 'planned development'. In those circumstances, it was observed that the persons interested were deprived of the statutory opportunity to object and, therefore, the acquisition proceedings were vitiated. In the present case, the facts are quite different and the principle of that decision is clearly inapplicable as it has not been shown that there was any such defect present in the notification we are concerned with in the context of the requirements of the provisions of section 28 (1) of the Act. ( 10 ) ON the other hand, what has been clearly pleaded in this context is that the notice was defective in form only and not that the petitioner found the same so vague or devoid of particulars as a result of which he was prevented irom ertectively objecting to it. Indeed, in the notification in point, it is clearly stated that the lelevant plans were available for inspectron in the office of the Asst Commr. As observed already, he had merely refrained from objecting to the acquisition on the ground that no useful purpose would be served by his preferring any such opjecticns. His case has not been that he was unable to identity the land concerned by a mere perusal of such notice. It may be mentioned that in the acknowledgments signed and returned by the petitioner, it is made clear that the lands concerned were situated in Yamantpur village. In these circumstances, it is only reasonable to conclude that the petitioner had himself to blame for not availing himself of the opportunity afforded to object to the acquisition in question and that there was no question of any authority having deprived him of such an opportunity. In these circumstances, it is only reasonable to conclude that the petitioner had himself to blame for not availing himself of the opportunity afforded to object to the acquisition in question and that there was no question of any authority having deprived him of such an opportunity. As to the defective nature of the notice, which we do not consider serious onough to warrant inter- ference, we think the same is clearly cured by the provisions of S. 12 of the act, which shall be adverted to presently. Hence, this contention must fail. ( 11 ) THE next contention cf the petitioner is based on an omission to mention the name cf the village Yamanapur in regard to the situation of the land S. No. 115, in the notification issued under S. 28 (4) of the Act. 'in this connection, the learned High Court Govt Pleader produced the original of the said notification from the records available with him. It is seen therefrom that there has been no such omission. It is also seen from the said record that in the covering letters addressed to the petitioner in connection with the service of notice under S. 28 (6) of the Act, the name of the village has been mentioned. But the fact remains that the Gazetted notification did suffer from such an omission. In support of the contention of invalidity of the said notification, based on this circumstance, reliance was placed on the decision of the Supreme Court in Narendraji Singh v. State of U. P. , AIR. 1071 SC. 306. ( 12 ) IN the said case, the Supreme Court was concerned with a notification issued under S. 4 (l) of the Land Acquisition Ac, wherein there was an omission to mention the locality in which the land acquired was situate. The Court observed that such a notification was not in compliance with the requirements of S. 4 (1) of the Land Acquisition Act which had specifically imposed a duty upon the Govt to mention the locality, and, therefore, all further proceednigs based on such a defective notification were invalid. The Court observed that such a notification was not in compliance with the requirements of S. 4 (1) of the Land Acquisition Act which had specifically imposed a duty upon the Govt to mention the locality, and, therefore, all further proceednigs based on such a defective notification were invalid. ( 13 ) BUT on behalf of the respondents, it was contended that having regard to the provisions of S. 12 of the Act, a provision similar to that being absent in the Land Acqusition Act, the defect or irregularity in question was cured in the absence of any prejudice having been caused to the petitioner on that account. In our opinion, this contention is well-founded and must be accepted as correct. ( 14 ) SECTION 12 of the Act reads:"savings oj validity vf the Proceedings: No act done or proceedings taken under this Act shall be questioned merely on the ground- (a) ** ** ** ** (b) of any defect or irregularity in such act or proceeding not affecting the merits of the case. " ( 15 ) A provision verbatim similar to the above is to be found in S. 38 (1) of the City cf Bangaloie Municipal Corporation Act which had come in for interpretation by the Supreme Court in Bangalore W. C. and S. Mills v. Bangalore Corporation, AIR. 1962 SC. 562. The Court in that context was required to answer a question 'whether the failure to notify the final resolution of the imposition of tax in the Government Gazette is fatal to the tax? In answering the said question, the Supreme Court, placing reliance on S. 38 (1) of that Act, has observed thus:-"thus under the provision (i. e. S. 38 (1) (b)) any defect or irregularity not affecting the merits of the case saves any act done or proceeding taken under the Act on the ground of such irregularity or defect. . . . . . "again at para 4 cf the sbove report, it is observed:"the resolution was published in newspapers and was also communicated to those affected by it and thus it was well known. The failure to publish it in the Government Gazette did not affect the merits of its imposition. . . . . . "again at para 4 cf the sbove report, it is observed:"the resolution was published in newspapers and was also communicated to those affected by it and thus it was well known. The failure to publish it in the Government Gazette did not affect the merits of its imposition. The answer to question No. 2 referred there fore is that the mere failure to notify the final resolution of the imposition of the tax in the Government Gazette is not fatal to the legality of the imposition. " (underlining (italics) by us ). ( 16 ) IN our opinion the principle underlying the above onunciations would be equally applicable to the facts of the present case. No provision similar to S. 12 of the Act has been brought to our notice under !. he Land acquisition Act. The relevant provisions of the Act do not specifically onjoin the mention of th locality, although it is desirable for the proper identification of the land to be acquired. We have earlier noticed that the original of the notification has in fact specified the name of the village in which the land acquired is situate. The impugned notification clearly refers to the earlier notification of 19-8-1969 issued and published under Section 28 (1) of the Act, about the validity or which there is no dispute. Above all, no facts relevant to any prejudice that might have been caused to the petitioner have been alleged or proved. In this state of facts, we are unable to accede to the contention of the petitioner in this behalf. The decision in Narendrajit Singh's case (3) relied on in this connection is also not of much assistance to him as the same is distinguishable on facts, having been rendered with particular reference to the language of S. 4 (1) of the Land Acquisition Act, the provisions of which were not in pari materia with those of Sec. 28 (4) of the act. ( 17 ) WE now turn to the only remaining contention of the petitioner, which has been outlined earlier. ( 17 ) WE now turn to the only remaining contention of the petitioner, which has been outlined earlier. This contention turns on the over-riding effect given to the provisions of the Mysore (now Karnataka) Town and country Planning Act, 1961 by S. 76-M therein, the relevant portion whereof reads:"effect of other Laws- (1) Save as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwihstanding anyhing inconsistent herewith contained in any other law. (2) ** ** ** " (underlining (italics) by us ). A similar provision is also to be found in the Act with which we are here concerned. It is S. 47 which reads: effect of provisions inconsistent with other laws- The provisions of this act shall have effect notwithstanding anything inconststent therewith contained in any other law. " (underlining (italics) by us ). ( 18 ) THE question is which of the above two provisions should prevail. The relevant principle governing the effect to be given to two such conflicting provisions has been stated in Craies on Statute Law, 6th Edn. at page 349, thus:"----And it appears to be a constitutional necessity as well as an established rule of construction that the last utterances of the legislature should prevail over earlier statutes inconsistent with it;----" ( 19 ) VIEWED in the light of the above principle, it would be clear that the provisions of S. 47 of the Act must be given over-riding effect vis-a-vis the provisions of the Karnataka Town and Country Planning Act, as the former Act being of the year 1966, was later than the other Act which was of the year 1961. But it was faintly suggested that when the legislature enacted S. 76m of the Town and Country Planning Act, it had intended that it should have effect over all future legislation also. This contention is without substance as a legislature cannot impose fetters on itself in regard to the exercue cf its legislative power in future, and even if it does, it would not be binding on it. Hence all the contentions fail. ( 20 ) IN the result, Writ Petition No. 590 of 1973 clearly deserves to fall and is accordingly dismissed. ( 21 ) WE now turn to the spscial facts and contentions urged in th3 context cf the other petitions. Hence all the contentions fail. ( 20 ) IN the result, Writ Petition No. 590 of 1973 clearly deserves to fall and is accordingly dismissed. ( 21 ) WE now turn to the spscial facts and contentions urged in th3 context cf the other petitions. It may at the outset be noticed that the challenge in all these petitions was also against the validity of the very notfications concerned in W. P. No. 5so of 1973. ( 22 ) W. P. No. 865 of 1973: The petitioners herein are concerned with the acquisition of Sy. Nos. 116/1, 115/2 and 116/3 of Yamanapur. The two additional contentions urged are: (1) In the notices served pursuant to Section 28 (2) of the Act. the name of the village Yamanapur had not been mentioned: (2) The petitioners had not been afferded an opportunity of a personal hearing as onvisaged in Sec. 28 (3) of the Act, which was mandatory. ( 23 ) CN the first contention, it was submitted on behalf of the respondents that the petitioners having filed their objections in response to the notices under S. 28 (2) of the Act, it was no longer open for them to contend that they were in anv manner misled cr prejudiced by the non-mention cf the name of the village in the said notices. We are in agreement with this submission. It is not denied that the petitioners had in fact filed the'r obiections in response to the notices served rn them as per S. 28 (2) of the act. That be'ng so, no prejudice can be said to have been caused to them bv the omission complained of. Henre in view of the provisions cf S. 12 of the Act, this contention has no merit. ( 24 ) THE next contention is bas?d on the fact of a personal hearing not having been afforded to the petitioners as onjoined by S. 28 (3) cf the Act. It is seen from the order rf the Asst Commr, who heard the objectors, that there is a reference to such objectors having been heard personally. I eyond such reference, no affidavit duly swom to by such Asst Commr, has been filed to controvert the specific allegations in the petition made in this behalf. On the other hand. It is seen from the order rf the Asst Commr, who heard the objectors, that there is a reference to such objectors having been heard personally. I eyond such reference, no affidavit duly swom to by such Asst Commr, has been filed to controvert the specific allegations in the petition made in this behalf. On the other hand. an affidavit sworn to by an Under secretarv to the Gcvt has been filed denying such an allegation It is not in dispute that the said deponent had no personal knowledge of the proceedings held in th's connection. The records, which we regret to sav have not been maintained in the manner expected cf officers who are called under to deal with such prcceedings of an expropriatory character affecting citizens, quasi-judicially also do not disclose that anv notices of the date of hearing of the objections hed been served on the petitioners. In this state of things. ve have no alternative but to hold that the petitioners had not been afforded in oppcrtunity of a personal hearing as onjoined by S 23 (3) of the Act, which are undoubtedly mandatory. For all these reasons, we hold that all the proceedings concerning the lends of the netitioners sub sequent 1o service of notices under S. 28 (2)of the Act, are vitiated and are liable to be set aside. ( 25 ) IN the result, this petition succeeds and is accordingly allowed. Consequently, we quash all the proceedings commencing with the criers made under S. 28 (3) of the Act and onding with the notices issued under s. 28 (b) of the Act, including the notification under S. 28 (4) of the Act, in so iar as the petitioners' lands are conceined. ( 26 ) WP. 1913 of 1973. Petitioners 1 and 2 herein are brothers and the srd petitioner is their uncle. They are concerned with the acquisition of s. No. 36/1 of Kangrali Badruk village. At an earlier stage of the proceedings the father of petitioners 1 and 2 and the Srd petitioner had challenged the proceedings before this Court in WP. 10 of 1968. When the said proceedings were pending on 29-1-1969, the father of petitioners 1 and 2 died and they were brought on record as his legal representatives. The writ petition was allowed and the proceedings for acquisition were quashed. 10 of 1968. When the said proceedings were pending on 29-1-1969, the father of petitioners 1 and 2 died and they were brought on record as his legal representatives. The writ petition was allowed and the proceedings for acquisition were quashed. ( 27 ) IT is averred on behalf of petitioners 1 and 2 that the ontries in the record of Rights were mutated and their names were duly brought on record by a Mutation Entry 1687 dt. 19-4-1969 and that it was thereafter that the notification under S. 28 (1) came to be isued and published afresh on 19-8-1s69, but mentioning the name of their deceased father as the khathedar, which also however had been wrongly stated. It is also alleged that no notice under Section 28 (2) of the Act had been served on petitioner 1 and 2 with the result they were deprived of an opportunity to file their objections to the acquisition. On behalf of the respondents, nothing specific has been averred in regard to the contention of the petitioners that they were the khathedars of the said land as on 19-8-1969, the date of the notification under S. 28 (1) of the Act, and were therefore ontitled to service of notices under S. 28 (2) of the Act. ( 28 ) IN these circumstances, we are clearly of the opinion that on account of non-ccmpliance with the requirement of S. 28 (2) of the Act this petition is ontitled to succeed and is accordingly allowed. Consequently, we quash all proceedings subsequent to the notification under S. 28 (1) of the Act, in so far as the petitioners' land is concerned. ( 29 ) WP. 3392 of 1974, The land concerned herewith is S. No. 114/1 of yamanapur. The proceedings challenged herein are the same as these in the other petitiors. The principal ground of attack is that the petitioner had not been served with notices under sub-sees (2) and (6) of S. 28 of the act at any stage of the proceedings. On behalf of the respondents, while conceding that the petitioner had not been so served personally, it was contended that such notices had been served by affixture on the land concerned, as the petitioner was not a resident of the village. We do not within such service is in sufficient compliance with the requirements of the statute. On behalf of the respondents, while conceding that the petitioner had not been so served personally, it was contended that such notices had been served by affixture on the land concerned, as the petitioner was not a resident of the village. We do not within such service is in sufficient compliance with the requirements of the statute. Nor have we been shown any provision in the Act or the Rule? which would onable such service to be effected. It is not also shown that any attempt had been made to serve the petitioner by post or otherwise prior to such service by affixture on the land acquired. The land is statel to be a grass land, the implication being that the owner is not likely to visit the land frequently onough to have had notice of such service. For all these reasons, we hold that the mandatory requirements of S. 28 (2) of the Act had not been complied with and that therefore, all the proceedings subsequent to the issue of notification under Sec. 28 (1) of the Act were vitiated. ( 30 ) IN the result, we quash all the proceedings subsequent to the notfication under S. 28 (1) of the Act dt. 19-8-1969 in so far as the petitioner's land is concerned. ( 31 ) AS a result of the foregoing, WPs. 863 and 1913 of 1973 and 3392 of 1974 are hereby allowed to the extent indicated above. WP. 590 of 1973 however, is dismissed. In all these petitions, the parties are directed to lear their own corts. ( 32 ) WE, however, desire to make it clear that in none of the above cases which have succeeded, we have interfered with the notification issted under S. 28 (1) of the Act and that the authorities, therefore are at berty to take further proceedings in regard to them commencing from the stage at which the illegalities crept in, in accordance with law, if so inclined. --- *** --- .