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2008 DIGILAW 78 (KAR)

National Education Foundation, Rep. by its Trustee v. Special Land Acquisition Officer

2008-02-04

N.K.PATIL

body2008
ORDER N. K. Patil, J Though this matter is posted for orders, with the consent of the learned Counsel appearing for the parties, the matter is taken up for final hearing and is disposed of as follows. 2. Petitioner in this petition is a registered Trust by name National Education Foundation represented by its Trustee. In this petition, petitioner has sought for a mandamus, directing the respondents to issue the Final Notification regarding the schedule property under Section 6 of the Land Acquisition Act 1894 within the period of one year from the date of publication of corrigendum Notification issued under Section 4 of the Land Acquisition Act, 1894. In the alternative, petitioner has sought for a direction, directing the respondents to take a decision with regard to finalization of the acquisition proceedings regarding the schedule property on or before the expiry of the period of one year from the date of publication of the corrigendum to the Preliminary Notification. Further, petitioner has also prayed to stay all the further proceedings to the endorsement dated 5th June 2006 issued by State Government vide Annexure-G, till the disposal of we above writ petition in the interest of justice and equity. 3. Petitioner is a registered-Trust claiming to have taken up charitable educational activities and hence, they are entitled to initiate the proceedings under the Land Acquisition Act by acquiring the lands for further development of their educational activities. Accordingly, the matter was placed before the Trust and the Trust in turn has passed the resolution dated 18th April 2003, resolving to request the State Government to acquire 48 acres 11 guntas of land for the purpose of Trust for development of educational activities. Accordingly, the requisition was submitted before the State Government on 2nd May 2003 and 9th May 2003. In pursuance to the said request made by the petitioner - Trust, the Special Land Acquisition Officer sent a recommendation dated 17th June 2003. Accordingly, the requisition was submitted before the State Government on 2nd May 2003 and 9th May 2003. In pursuance to the said request made by the petitioner - Trust, the Special Land Acquisition Officer sent a recommendation dated 17th June 2003. Accordingly, in the light of the recommendation sent by the Special Land Acquisition Officer, the authorized jurisdictional Officer has issued the Preliminary Notification under Section 4 (1) of the Karnataka Land Acquisition Act dated 4th March 2005 and the same was published in the Karnataka gazette on 10th March 2000 vide Annexure-C. However, inadvertently, some error had crept in while issuing the said Notification in respect of the name and designation of the authority issuing the said Notification in as much as, instead of mentioning as Special Deputy Commissioner, Bangalore District, Bangalore, it had been wrongly mentioned as Special Land Acquisition Officer, Hemavathy Canal Zone, Tumkur. Therefore, a corrigendum was issued by the Assistant Commissioner and Special Land Acquisition Officer, Kolar Sub. Division, Kolar on 20th April 2005 vide Annexure-D. Thereafter, petitioner - Trust has submitted a representation dated 24th April 2006 to the Government, requesting the authority to complete the acquisition proceedings. Thereafter, the petitioner - Trust has submitted one more representation on 29th April 2006 requesting the Principal Secretary to Revenue Department to issue the Final declaration under Section 6 (1) of the Land Acquisition Act since the limitation period will expire on 4th May 2006. It is the case of petitioner - Trust that, the said representation submitted on 29th April 2006 is neither considered nor any decision is taken to issue the Final Notification as required under Section 6 (I) of the Land Acquisition Act. Therefore, petitioner has approached this Court and presented the instant writ petition on 2nd May 2006. This writ petition had come up for consideration for preliminary hearing before this Court on 4th May 2006, on which date, Emergent Notice was ordered. With this background, petitioner Trust felt necessitated to present the instant writ petition seeking I appropriate relief, as stated supra. 4. This writ petition had come up for consideration for preliminary hearing before this Court on 4th May 2006, on which date, Emergent Notice was ordered. With this background, petitioner Trust felt necessitated to present the instant writ petition seeking I appropriate relief, as stated supra. 4. The principal submission canvassed by learned Counsel appearing for petitioner, at the outset, is that, petitioner has approached this Court well within time before expiry of one year period as envisaged under the statute in as much as they have filed the instant writ petition on 2nd May 2006 and Emergent Notice was ordered by this Court on 4th May 2006. Thereafter, the matter had come up for consideration on 19th September 2006 and this Court stayed the endorsement dated 5th June 2006 subject to the petitioner depositing within ten days from that date, a sum ofRs.l1 ,43,36,6001- minus the amount already deposited by petitioner towards the acquisition proceedings. Therefore, learned Counsel appearing for petitioner submitted that, it was duty cast on the respondents to have issued Final Notification under Section 6 (1) of the Land Acquisition Act within one year from the date of issuance of corrigendum Notification dated 20th April 2005 vide Annexure-D since the time had not expired and that, within one year they have approached this Court by redressing their grievance and seeking appropriate reliefs as stated supra. Further, he submitted that, subsequently, the said amount has been deposited towards the acquisition proceedings. Further, learned counsel for petitioner strenuously pointed out and submitted that, at the instigation of third respondent and some rival group, the authorities have taken such a decision, resulting in issuance of the endorsement dated 5th June 2006 vide Annexure-G stating that, in spite of the Special Land Acquisition Officer, Bangalore sending several communications, petitioner - Trust has not deposited the cost of acquisition proceedings and therefore 6(1) Notification could not be issued within one year from the date of issuance of Preliminary Notification under Section 4 (1) of the Land Acquisition Act and hence, the entire acquisition proceedings was vitiated. The said reasoning given by the competent authority cannot be accepted and the same is contrary to the material on record. Learned counsel for petitioner submitted that, as a matter of fact, in pursuance of the direction issued by this Court, the said amount deposited by petitioner has not been accepted by the competent authority. The said reasoning given by the competent authority cannot be accepted and the same is contrary to the material on record. Learned counsel for petitioner submitted that, as a matter of fact, in pursuance of the direction issued by this Court, the said amount deposited by petitioner has not been accepted by the competent authority. Therefore, he submitted that, the manner in which the respondents have dealt with the matter and acted upon go to show that, they have travelled beyond the scope of the relevant provisions of the Land Acquisition Act. Therefore, he submitted that, the prayer sought for by petitioner may be granted and appropriate direction may please be issued to respondents 1 to 3 to issue 6 (1) Final Notification and complete the said proceedings in accordance with law as well as the relevant provisions of the Land Acquisition Act. 5. Per contra, learned Government Pleader appearing for respondents 1 to 3, inter alia, contended and substantiated that the Final Notification under Section 6 (1) of the Land Acquisition Act could not be issued on the ground that, in spite of the Special Land Acquisition Officer, Bangalore, sending several communi cations to the petitioner to deposit the cost of acquisition proceedings before the competent authority, petitioner has failed to deposit the said sum as required under the relevant provision of the statute. Further, learned Government Pleader has specifically pointed out in the objections statement filed on behalf of respondents 1 to 3 that, petitioner -Trust has deposited only one crores as against a sum of Rs.11 ,43,36,600/­as ordered by this Court minus the sum already deposited towards acquisition proceedings and the balance amount towards the cost of acquisition proceedings has not been deposited by petitioner till date. Further, he specifically pointed out that, the respondent in the endorsement bearing No. Rev. Dept. 60. AQR04 dated 5th June 2006 has in unequivocal terms stated that, petitioner - Trust has not deposited the full cost of the acquisition proceedings to enable them to issue the Notification under Section 6 (1) of the Land Acquisition Act, which is mandatory as per the guidelines issued under circular dated 9th January 2002. Therefore, in view of non compliance of the mandatory requirement by the petitioner, the entire acquisition proceedings initiated by respondent stood vitiated. Therefore, in view of non compliance of the mandatory requirement by the petitioner, the entire acquisition proceedings initiated by respondent stood vitiated. Therefore, he submitted that, the writ petition filed by petitioner is liable to be dismissed as misconceived nor petitioner is entitled to claim the relief as prayed for it in the instant writ petition. 6. Further, learned Counsel appearing for other respondents, at the outset submitted that, even if the date of issuance of corrigendum Notification i.e. 20th April 2005 vide Annexure-D is taken into consideration, then also, the stipulated one year period would expire on 19th April 2006. It is not in dispute that, petitioner - Trust has not deposited the entire cost of the acquisition proceedings and therefore the authorities have rightly issued the endorsement and the same has been communicated to the petitioner stating that, the acquisition proceedings is vitiated as envisaged under the relevant provision of the Land Acquisition Act. Further, they vehemently submitted that, the total extent of the land notified is to an extent of 48.11 acres and the approximate cost of acquisition in respect of the same is only a sum of Rs. 11,43,36,600/- and the same is not the actual cost of acquisition. The manner in which the petitioner has proceeded itself is sufficient for this Court to hold that, petitioner is not entitled nor deserve to seek any a relief at the hands of this Court, which is impermissible and this Court cannot exercise the extra ordinary jurisdiction as envisaged under Articles 226 and 227 of the Constitution of India and contrary to the mandatory provisions of the statute. Therefore, they submitted that, the writ petition filed by petitioner-Trust is liable to be dismissed at the threshold itself 7. After hearing learned Counsel appearing for both parties and after careful perusal of the entire records available on file, including the prayer sought for by the petitioner in the instant petition, the only Point that arise for consideration is as to : Whether, petitioner has made out a case for granting the relief sought for by it or is the same permissible under the relevant provisions of the Land Acquisition Act? 8. 8. After careful perusal of the relevant material available on file it is not in dispute that, acquisition proceedings was initiated at the request of the petitioner - Trust and also in the light of the resolution passed by the petitioner - Trust and the recommendation forwarded by the Special Land Acquisition Officer, as referred above in the preceding paragraphs. The Preliminary Notification under Section 4(1) of the Land Acquisition Act was issued on 4th March 2005 and the same was published in the Karnataka gazette on 10th March 2005. It is an admitted fact and also apparent on the material available on record that, the petitioner - Trust has not deposited the cost of acquisition and this fact has been categorically admitted in the writ petition filed by the petitioner only as rightly submitted by the learned counsel for petitioner that, they have not received any communication from the Special Land Acquisition Officer, regarding the exact cost of acquisition and therefore, they have not deposited the entire cost of acquisition and therefore, they have sent a representation dated 24th April 2006 requesting the acquisition authority to accord permission to deposit the cost of acquisition and thereafter, they have requested by way of another representation dated 29th April 2006 intimating the authority that, the last date for issuance of final Notification would expire on 4th May 2006. The said request made by petitioner - Trust was not yet considered. Meanwhile, petitioner - Trust has rushed to this Court and presented the instant petition on 2nd May 2006 and thereafter, Emergent Notice was ordered on 4th May 2006 to the respondents. Thereafter, when the matter had come up for consideration on 19th September 2006, this Court has granted an interim order of stay, staying the endorsement dated 5th June 2006 vide Annexure G subject to petitioner depositing within ten days a sum of Rs.11,43,36,600/- minus the amount already deposited by petitioner towards acquisition proceedings. Thereafter, petitioner has made attempt to deposit the sum, but the same has not been accepted on the ground that, the acquisition proceedings has stood vitiated. Thereafter, petitioner has made attempt to deposit the sum, but the same has not been accepted on the ground that, the acquisition proceedings has stood vitiated. It is significant to note from the endorsement dated 5th June 2006 vide Annexure-G that, as per the guidelines issued under the Government circular dated 9th January 2002, the petitioner- Trust is supposed to deposit the entire cost of acquisition before the Special Land Acquisition ‘Officer, before issuance of the Final Notification under Section 6 (1) of the Land Acquisition Act. The Special Land Acquisition Officer, Bangalore has, in fact, sent several communications on 26th February 2004, 1st April 2004 and 24th September 2004 respectively intimating the tentative cost of acquisition to enable the petitioner to pay the same. In spite of that, petitioner - Trust has not chosen to deposit the said amount. Therefore, in view of non compliance of the mandatory requirement of depositing the entire cost of acquisition as per the Government circular and the relevant provisions of the Land Acquisition Act, Final Notification under Section 6(1) of the Act could not be issued within the stipulated limitation Period of one year from the date of issuance of Preliminary Notification as envisaged under the relevant provisions of the Land Acquisition Act. Therefore, the entire acquisition proceedings stood vitiated. I do not find any error or illegality as such in the endorsement dated 5th June 2006 vide Annexure-G and the said reasoning given by the competent authority therein, intimating the petitioner- Trust that, in view non deposit of the cost of acquisition, the final Notification could not be issued and the acquisition proceedings is vitiated. 9. Further, it is pertinent to note that, petitioner -Trust has not chosen to assail the correctness or otherwise of the endorsement dated 5th June 2006 vide Annexure-G, wherein it is specifically pointed out that, the acquisition proceedings was vitiated in view of non issuance of 6 (I) Notification within the prescribed limitation period. 9. Further, it is pertinent to note that, petitioner -Trust has not chosen to assail the correctness or otherwise of the endorsement dated 5th June 2006 vide Annexure-G, wherein it is specifically pointed out that, the acquisition proceedings was vitiated in view of non issuance of 6 (I) Notification within the prescribed limitation period. What is sought in the application filed for stay, is only to stay all further proceedings pursuant to the endorsement dated 5th June 2006 vide Annexure-G In view of issuance of the said endorsement by the authority, specifically pointing out that, the entire acquisition proceedings is vitiated, the prayer sought for by petitioner - Trust in the instant writ petition does not survive for consideration and hence, the same is liable to be dismissed as having become infructuous. 10. Further, learned Counsel appearing for petitioner has placed reliance on the interim order granted by this Court on 19th September 2006, staying the endorsement dated 5th June 2006 subject to the petitioner- Trust depositing a sum of Rs. 11,43,36,600/-within ten days minus the amount already deposited towards acquisition and submitted that, the same presupposes the fact that, the said amount should be accepted by the competent authority and further proceedings should be continued. The said submission made by learned Counsel appearing for petitioner cannot be accepted nor the same has got any force. The direction issued by this Court is only permitting the petitioner to deposit the said sum within ten days from that day, minus the amount already deposited by petitioner towards the acquisition proceedings and there is no direction as such issued by this Court to accept the said sum and to proceed further with the acquisition proceedings. After careful perusal of the relevant provisions of the Land Acquisition Act, it is in fact a statutory provision that, the Final. Notification shall be issued on or before the expiry of one year from the date of issuance of Preliminary Notification and the cost of acquisition to be deposited before issuance of Final Notification. After careful perusal of the relevant provisions of the Land Acquisition Act, it is in fact a statutory provision that, the Final. Notification shall be issued on or before the expiry of one year from the date of issuance of Preliminary Notification and the cost of acquisition to be deposited before issuance of Final Notification. But, in the instant case, as rightly permitted by the learned counsel for petitioner, petitioner could not deposit the cost of the acquisition proceedings within one year from the date of issuance of 4 (1) Preliminary Notification and the said acquisition proceedings has been delayed and that, they have filed the writ petition well in time, i.e. on 2nd May 2006 before two days of the expiry date namely on 5th May 2006. As per the submission made by learned counsel appearing for other respondents, the last date for expiry of one year is 4th May 2006 if the date of publication of the corrigendum Notification in the gazette is taken into consideration and the last date for expiry of one year would be 19th April 2006 if the date of corrigendum Notification is taken into consideration. Therefore, even if all these factors are taken into consid eration , it is admitted and can safely be stated that, 6 (1) Notification could not be issued before expiry of one year from the date of issuance of preliminary Notification as per the relevant provisions of the statute purely on account of the lapses on the part of petitioner - Trust in not depositing the cost of acquisition. If once the cost of acquisition could not be deposited within the stipulated period and the final declaration under Section 6 (1) of the Act could not be issued, invoking the extraordinary jurisdiction as envisaged under Article 226 of the Constitution of India, contrary to the provisions of the Act and the statute is not justifiable nor I find any good grounds to entertain the instant writ petition. Therefore, the writ petition filed by petitioner is liable to be dismissed. Accordingly, it is dismissed as devoid of merits. 11. At this stage, learned Counsel appearing for petitioner, Sri. Hemanth appearing for Sri. Ashok Haranahalli submitted that, petitioner - Trust may be permitted to withdraw the amount deposited before the respondents. Therefore, the writ petition filed by petitioner is liable to be dismissed. Accordingly, it is dismissed as devoid of merits. 11. At this stage, learned Counsel appearing for petitioner, Sri. Hemanth appearing for Sri. Ashok Haranahalli submitted that, petitioner - Trust may be permitted to withdraw the amount deposited before the respondents. It is needless to clarify that, if any amount is deposited by petitioner -Trust, and if the same is accepted by the authorities, the concerned authority is directed to refund the same, in accordance with law, as expeditiously as possible. 12. Further, so far as the interlocutory applications filed by petitioner seeking for permission and for additional grounds are concerned, I am of the view that, the same do not survive for consideration in view of disposal of the main writ petition itself.