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1987 DIGILAW 438 (KAR)

MALIAPPA BASAPPA THOTAD v. DEPUTY COMMISSIONER

1987-12-18

BALAKRISHNA

body1987
BALAKRISHNA, J. ( 1 ) THIS Writ Petition is preferred against the acquisition proceedings under Notification No. LAQ.. HS. CR-59/82-83 dated 22-3-1983 vide Annexure-A and the Notification of even number dated 12-10-1983 vide Annexure-B and also notice dated nil vide Annexure-C praying for quashing of the same as illegal. ( 2 ) THE petitioners are the owners of land bearing Sy. No. 243/1 measuring an extent of 8 acres 13 guntas situated at Halageri Village, Ranebennur Taluk, Dharwar District. The petitioners are brothers and jointly own the said land and have been in possession and enjoyment of the same. In the year 1979, the land to an extent of 1 acre 32 guntas belonging to the petitioners in the very same survey number was acquired for the purpose of construction of office building and staff quarters of the Karnataka Electricity Board, Halageri under the provisions of the Land acquisition Act. Again the Deputy Commissioner, Dharwar, who is respondent-1 in this Writ petition, caused the issue of preliminary notification dated 22-3-83 under Sub-section (1) of section 3 of the Karnataka Acquisition of Lands for Grant of House Sites Act, 1972 (Karnataka act No. 18 of 1973) (hereinafter called 'the Act') to the effect that the Government of Karnataka is of the opinion that the land in question is needed for the purpose of granting house sites to the weaker sections of the people. Objections were preferred by the petitioners to the effect that except the above land they do not have any other land and that all the petitioners are married and that each petitioner's family will get hardly 2 acres of land and the land in question is not suitable for house sites and that since the petitioners being small holders their land cannot be acquired under the Act and further that there are other lands in the village belonging to the Government which are suitable for providing house sites etc. However, according to the petitioners, the deputy Commissioner directed the Assistant Commissioner to hold an enquiry and to submit his recommendation as required by the Act and the Rules framed thereunder. Before the Assistant commissioner who is respondent-2 in the Writ Petition, the petitioners are stated to have opposed the acquisition. However, respondent-3 recommended for acquisition of the land without giving personal hearing to the petitioners as alleged by them. Before the Assistant commissioner who is respondent-2 in the Writ Petition, the petitioners are stated to have opposed the acquisition. However, respondent-3 recommended for acquisition of the land without giving personal hearing to the petitioners as alleged by them. Objections are stated to have been filed on 27-6-1983 in response to the notice served on the petitioners on 10-3-1983. It is further alleged that the report of the Block Development Officer was not considered and that in the absence of the Block Development Officer, the Assistant Commissioner, in his report, recommended to the Deputy Commissioner to acquire the land in question. ( 3 ) SUBSEQUENTLY, the Deputy Commissioner, relying on the report submitted by the Assistant commissioner, issued the final notification in exercise of powers conferred on him under sub-section (4) of Section 3 of the Act declaring the intention to acquire an extent of 4 acres 30 guntas of land out of Sy. No. 243/1 in all measuring an area of 8 acres 13 guntas belonging to these petitioners under notification dated 12-10-1983. Thereafter, the petitioners were served with a notice calling upon them to deliver possession of the land. On 28-9-1984, the petitioners state that they filed objections to the notice and the copy of the objections is Annexure-D. The petitioners are aggrieved by the acquisition proceedings and have questioned the validity of the acquisition on several grounds. ( 4 ) HOWEVER, at the stage of argument, the learned Counsel for the petitioners formulated the following points for consideration: (1) that the Assistant Commissioner has not considered whether the land in question is suitable for the purpose of acquisition and whether better suited lands are available around; (2) that the Assistant Commissioner has not observed the guide-lines for acquisition of land issued by the State Government; (3) that the petitioners are small holders and, therefore, their land ought not to have been acquired; (4) that the Assistant Commissioner has not taken into account the report of the Block development Officer and in the absence of the Block Development Officer, he has prepared the report and recommended to the Deputy Commissioner for acquisition; and (5) that the order of the Deputy Commissioner is not a speaking order. ( 5 ) AT the time of the arguments, the learned Counsel for the respondents Sri S. Udayashankar made available the records of the entire acquisition proceedings. ( 5 ) AT the time of the arguments, the learned Counsel for the respondents Sri S. Udayashankar made available the records of the entire acquisition proceedings. I have examined the records and considered all the material available in the records besides going through the orders of the assistant Commissioner and the Deputy Commissioner. ( 6 ) THE petitioner was represented by an Advocate before the Assistant Commissioner. AN that the Advocate has argued before the Assistant Commissioner is that the petitioners are opposed to the acquisition but if the land in question is acquired, the petitioners should be paid higher compensation, because the land is fertile. It was not the case of the petitioners before the assistant Commissioner that the land belonging to the petitioners under acquisition is not suitable for the purpose of the acquisition and that better suited lands are available. In the absence of such a contention, it is not open to the petitioners to advance the argument of non-consideration of the question whether or not the land of the petitioners was suitable and whether or not there were other lands which were better suited for the purpose of acquisition. In the circumstances of the case, the Assistant Commissioner was the best person to decide whether the land of the petitioners was suitable for acquisition, in the absence of objections to the contrary. ( 7 ) AS regards the contention that the Assistant Commissioner has not complied with the guide-lines stated to have been issued by the Government for acquisition of land, it has to be stated that since the petitioners had acquiesced to the acquisition provided higher compensation was paid to them in view of the fertility of the land, the petitioners cannot resile at this stage and make a grievance out of the alleged non-compliance. When I asked the learned Counsel for the petitioners Sri H. Kantharaja to specifically mention what the guide-lines are, he was unable to specify them. However, for the purpose of this case, it is not necessary to go into that question in view of the conduct of the petitioners before the Assistant Commissioner. When I asked the learned Counsel for the petitioners Sri H. Kantharaja to specifically mention what the guide-lines are, he was unable to specify them. However, for the purpose of this case, it is not necessary to go into that question in view of the conduct of the petitioners before the Assistant Commissioner. The learned Counsel for the petitioners Sri H. Kantharaja vehemently argued that the entire acquisition proceedings are vitiated on account of non-observance of the guide-lines by the concerned authorities and he invited my attention to the decision in KARIYAPPA v. DEPUTY COMMISSIONER, ILR1985 KAR 22 (D. B) to support the proposition of law that if the deputy Commissioner without considering the objections raised by the petitioner and without due regard to the guide-lines issued by the Government, has approved the acquisition and made the order under Section 3 (3) of the Act, it may then be argued that the discretion of the Deputy commissioner was either exercised on extraneous considerations or without taking into account the relevant considerations. I am of the opinion that the decision relied upon is not applicable to the facts and circumstances of this case for the reasons stated earlier, though there can be no quarrel with the principle enunciated in the said decision of the Division Bench. In this context, it is relevant to quote the principle stated by Justice Holmes in the case of LOCHNER v. NEWYORK, 198 US 45 (1905): "general propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. " Any principle laiddown in a decided case depends upon the facts and circumstances governing the case decided, confined to the fact-pattern. ( 8 ) THE learned Counsel for the petitioners has relied upon the case of KUNNEGOWDA v. DEPUTY COMMISSIONER: MYSORE, 1981 (1) KLJ 297 to support the same proposition. In that case it was held that where the Assistant Commissioner had not considered the objections raised and also the availability of other land for acquisition, no report of the B. D. O. was called, the Panchayat had passed resolution stating with reasons the unsuitability of the land proposed to be acquired and the Deputy Commissioner passed his order in cyclostyled form according sanction for the acquisition, the acquisition was in disregard of the guide-lines enunciated by the government and was liable to be quashed. ( 9 ) THE above decision does not help the petitioners because the decision is based on different set of facts. ( 10 ) THE next contention urged by the learned Counsel for the petitioners is that the petitioners are small holders of land and, therefore, their land should not have been acquired. In this regard, the learned Counsel for the respondents Sri S. Udayashankar has drawn my attention to the observation made in LINGEGOWDA v. STATE, 1981 (1) KLJ 112, that whether a particular land is needed for providing house sites is primarily for the acquiring authority to decide and the authority cannot take into consideration whether the person whose lands are proposed to be acquired is a sufficient or a big land holder. ( 11 ) THE Act is a social welfare legislation enacted for the purpose of acquisition of lands for granting house sites to weaker sections of the people in the State of Karnataka and is intended to subserve a public purpose. It is no doubt true that a person owning a limited extent of land will have to sacrifice a portion of his property but it cannot be gain-said that the individual interest has to yield to the general good of the community.- 'salus Populi Supreme lex. ' am in entire agreement with the observation made in the aforesaid decision of this Court. There is no substance in the argument that the land belonging to the petitioners who claim to be small holders should not have been acquired. ( 12 ) IT is next contended that the Assistant Commissioner has not taken into account the report of the B. D. O. and in the absence of the B. D. O. , he has prepared the report and recommended to the deputy Commissioner for acquisition. None of the provisions in the Act mandate that the assistant Commissioner must call for a report from the B. D. O. It is a matter of discretion when other reports are available to the Assistant Commissioner, to act upon. In fact, according to sub-rule (3) of Rule 6 of the Karnataka Acquisition of lands for grant of House Sites Rules, 1973, the Assistant Commissioner shall hear the objector or his Advocate and record any evidence that may be produced. in support of the objections and the Commissioner or the Block development Officer or the Chief Officer or their representative may. in support of the objections and the Commissioner or the Block development Officer or the Chief Officer or their representative may. also take part in the enquiry. (underlining is mine ). It is clear from the wordings of this rule that the intention is to give an opportunity to the Commissioner or the Block Development Officer or the Chief Officer or their representative to take part in the enquiry and it is not obligatory that the B. D. O. must take part in the proceedings and that the Assistant Commissioner must obtain the report of the b. D. O. It is a matter of discretion vested in the Assistant Commissioner. ( 13 ) IN support of the contention, the learned Counsel for the petitioners has not placed before me any authority on the question. ( 14 ) THE last contention of the learned Counsel for the petitioners is that the order of the Deputy commissioner is not a speaking order. I have read the order of the Deputy Commissioner and I am satisfied that it is not only comprehensive, but also supported by reasons. The decisions cited by the learned Counsel for the petitioners vide T. S. NAGARAJ v. DEPUTY COMMISSIONER: mysore, AIR1984 Kant 157 , AIR1984 KAR 157 - Paras 9 and 10 and also in SIDDEGOWDA v. DEPUTY COMMISSIONER: BANGALORE DISTRICT, 1980 (2) klj 18 SN 62, do not apply to the facts of this case. ( 15 ) FOR the foregoing reasons, the Writ Petition is dismissed. Parties to bear their own costs.