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1993 DIGILAW 20 (KAR)

K. RAJAGOPALA GOWDA v. STATE OF KARNATAKA

1993-01-27

K.A.SWAMI, N.D.V.BHATT

body1993
KA. SWAMI, J. ( 1 ) THIS writ appeal is preferred against the order dated 19th January, 1993 passed in writ Petition No. 2210 of 1993. The learned single Judge has rejected the writ petition and therefore, the petitioner in the writ petition has come up in appeal. ( 2 ) IN the writ petition, the appellant sought for quashing the notification dated12-3-1976 published in official Gazette on 3rd May, 1976 bearing No. HSA 61/74-75 issued under sub-section (4) of the Section 3 of the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter referred to as 'the Act' ). The appellant-petitioner claims to be the owner of the land bearing Sy. No. 116 of nagalala village which was acquired undcf the Act, As a result of the publication of notification under sub-section (4) of Section 3 of the Act, the land in question has vested absolutely in the State Government free from all encumbrances as per the provisions of sub-section (5) of Section 3 of the Act. ( 3 ) IT is contended on behalf of the appellant that notification dated 12-3-1976produced as Annexure-F in the writ petition, is vitiated because it had been issued without following the prescribed procedure under the Act and without affording an opportunity to the appellant. It is also further contended that even though the notification was issued as long back as in the month of May, 1976 as per Annexure-F under sub-section (4) of Section 3 of the Act, Award has not been passed even to this day and possession of the land has not been obtained. Therefore, the appellant has effected improvements in the land by raising loan from the Primary Land development Bank. ( 4 ) THE learned single Judge has rejected the writ petition on the ground that theappellant-petitioner was aware of the proceedings before the concerned authorities and according to his own case, certain representations were also made by him which disclosed that he was aware of the proceedings in the year 1976 itself. Therefore, the learned single Judge has rejected the writ petition on the ground that the appellant-petitioner is guilty of laches and that after a lapse of 16 years, the matter cannot at all be reopened, that too, when it is related to acquisition. Therefore, the learned single Judge has rejected the writ petition on the ground that the appellant-petitioner is guilty of laches and that after a lapse of 16 years, the matter cannot at all be reopened, that too, when it is related to acquisition. ( 5 ) IT is not possible to hold that the learned single Judge is not correct in decliningto interfere with the impugned notification on the ground that the appellant-petitioner has approached the court after a lapse of 16 years. Even if it is accepted for a moment that the appellant did not have adequate opportunity as contemplated under the Act and the Rules, he was fully aware of the notification in the year 1976 itself and he had made representations also. Even then, he did not consider it necessary to challenge the same before this Court. After a lapse of nearly 16 years, he has approached this Court. Therefore we are of the view that the appellant-petitioner is guilty of laches and hence it is not necessary to go into the contention as to whether the appellant had full opportunity to contest the acquisition proceedings. ( 6 ) THE contention of the appellant is that as the Award has not been passed withina period of two years from the date of the publication of the declaration i. e. , on 3rd may, 1976, the acquisition must be held to have lapsed having regard to the provisions contained in Section 11-A of the LAND ACQUISITION ACT, 1894. It is contended that Section 5 of the Act makes applicable, the provisions contained in the Land acquisition Act mutatis mutandis regarding enquiry and Award by the Deputy commissioner-arid reference to court, (be apportionment of amount and payment of amount in respect of the lands acquired under the Act. Therefore, as Section 11-A of the LAND ACQUISITION ACT, 1894 relates to passing of the Award, it is attracted to the acquisition under the Act. It is not possible to accept this contention. It is relevant to notice that the notification issued under sub-section (1) of Sections of the Act and sub-section (4) of Section 3 of the Act cannot at all be equated to the notifications issued under sub-section (1) of Sections 4 and 6 (1) of the LAND ACQUISITION ACT, 1894, because the consequences that flow out of such notifications under both the enactments are different. The procedure provided for enquiry pursuant to the notification issued under sub-section (1) of Section 3 of the Act and sub-section (1) of Section 4 of the LAND ACQUISITION ACT, 1894 are also quite different. We need not refer to the procedure that is contemplated for enquiry and hearing objections under both the enactments. ( 7 ) SECTION 16 of the LAND ACQUISITION ACT, 1894 specifically provides that when thecollector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances, whereas it is not so in the case of acquisition under the Act. Because, under the Act, no sooner the notification under sub-section (4) of Section 3 is issued, the land vests in the State Government free from all encumbrances and possession of the land can be obtained. Thereafter award proceedings can be taken up and the amount payable could be determined as per the provisions contained in the Land acquisition Act. Section 11-A of the LAND ACQUISITION ACT, 1894 specifically provides that the Collector shall make an Award under Section 11 within a period of two years from the date of publication of the declaration and if no Award is made within that period, the entire proceedings for the acquisition of the land shall lapse. Under the act, acquisition of land does not lapse. In fact such a question under the Act does not arise, because the acquired land vests in the State Government no sooner the notification under sub-section (4) of Section 3 is published. Whereas it is not so under the LAND ACQUISITION ACT, 1894. Therefore the acquisition under the Land acquisition Act could lapse if the Award is not passed within the period of two years. It is also relevant to notice that the object is to enable the State Government to obtain possession of the land before passing the Award so that it can form sites and distribute the same among the houseless and sitcless persons who belong to depressed classes and who arc in need of house sites urgently. In fact the acquisition is for their benefit. In fact the acquisition is for their benefit. We are therefore, of the view that the contention that as the award has not been passed within two years from the date of notification under sub-section (4) of Section 3 of the Act, the acquisition has lapsed cannot be accepted and it is accordingly rejected. ( 8 ) LASTLY it is submitted that due to the fact that possession was not obtained afterthe publication of notification under sub-section (4) of Section 3 of the Act and award also was not passed, the appellant was under the bonafide impression that the acquisition had been given up, therefore, he has made considerable improvements by raising loan from Primary Land Development Bank, hence the Government may be directed to consider whether the Government is in need of the land even a fter a lapse of 16 years. ( 9 ) IT is a matter for the concerned authority and the State Government to consider. All that we can say is that it is open to the appellant to make a representation in this regard and in such an event, the authority concerned before taking possession of the land shall consider the same in the light of the observations made herein and also in the light of the facts and circumstances of the case. ( 10 ) SUBJECT to the above observations, the appeal is dismissed. --- *** --- .