Judgment :- 1. Petitioner a land owner aggrieved by the preliminary notification Annexure ‘E’ issued under Section 4(1) of the Land Acquisition Act, 1894 (for short LA Act) in so far as it relates to proposal to acquire 5 guntas out of 37 guntas in Sy.No.84/1 of Amanikere village of Tumkur Taluk, and the final notification dated 5.4.2010 Annexure ‘H’ issued under Section 6(1) of the LA Act, as also the non-consideration of his representation dated 31.5.2010 Annexure ‘J’ by the 5th respondent, has presented this petition. 2. Facts as set out in the memorandum of writ petition are:- On the construction of Hemavathi channel, land owners in its vicinity put to use the service road on the channel for ingress and egress to and from their lands. The Tumkur Urban Development Authority -5th respondent within whose jurisdiction the petitioner’s property, amongst others, is situate, prepared a Master Plan Annexure ‘A’ declaring roads in between Sy.Nos.134 and 135 and Sy. Nos. 86 and 89. According to the petitioner, the service road located adjacent to Sy.Nos.137, 138, 139, 140, 141 connects both B.H road and the railway service road, catering to the needs of the owners of land adjacent to the railway service road, while a link road to the south of Sy.No.85 connecting the railway service road provides for ingress and egress to and from Sy. No. 85 as indicated in Annexure ‘B’ sketch, in addition to the existing 15 ft. cart road between Sy.Nos.136 and 135 from the B.H. road up to Sy.No.131 and a sub-road formed in Sy. Nos. 136 and 140. It is the allegation of the petitioner that, during the year 2001 the owners of the land bearing Sy. Nos. 134, 135 and 136 with the help of political support closed the existing road and the road formed in their land resulting in the use of the Hemavathi channel service road. It is the further allegation of the petitioner that the owners of lands in Sy.Nos. 134, 135 and 136 being chelas of M.P and M.L.A of Tumkur made a demand to form a road in the petitioner’s land. Petitioner asserts that some persons supported by the owners of lands in Sy.Nos. It is the further allegation of the petitioner that the owners of lands in Sy.Nos. 134, 135 and 136 being chelas of M.P and M.L.A of Tumkur made a demand to form a road in the petitioner’s land. Petitioner asserts that some persons supported by the owners of lands in Sy.Nos. 134, 135, 136 as well as the elected representatives instituted O.S.No.152/2002 on the file of Second Additional City Civil Judge (Jr.Dn.), Tumkur claiming easementary right over the petitioner’s property, which was dismissed for non-prosecution, while O.S.No.363/2002 filed for identical reliefs was dismissed on 30.7.2008, on merits, and O.S.No.899/2002 instituted by the petitioner was decreed in part. The 4th respondent, it is said, addressed a letter dated 13.12.2001, Annexure ‘C’ to the 3rd respondent-Assistant Commissioner, calling upon the 3rd respondent to secure records as also a report from the surveyor and submit a comprehensive report enclosing records. One S Shivanna (said to be the MLA) addressed a letter dated 7.2.2002, Annexure ‘D’ calling upon the 3rd respondent to acquire the petitioner’s land for graveyard or for road or for any other purpose, which the petitioner alleges is the cause for issue of the preliminary notification on 21.11.2008, Annexure ‘E’ proposing to acquire portion of the petitioner’s land for formation of a road. Petitioner claims to have opposed the notification by filing written objections dated 1.6.2009, Annexure ‘G’, which when not considered by the authority, a final notification dated 13.4.2010 Annexure ‘H’ was published. Petitioner asserts that the 5th respondent having recommended the formation of road in between Sy.Nos.134 and 135 as set out in the Annexure ‘A’ with an oblique motive has sought to acquire the land of the petitioner for formation of another road without a scheme for improvement or development. 3. Petition is opposed by filing statement of objections of the Respondents contending that the City Municipal Council, Tumkur submitted a requisition letter dt.18.9.2008 to acquire the petitioner’s land amongst others for formation of a public road, upon a resolution dt.29.8.2007 following which the Deputy Commissioner issued the preliminary notification dt.21.11.2008, duly notified and published and held an enquiry under Section 5A of the Land Acquisition Act on 25.5.2009, 11.6.2009, 19.6.2009 and 30.6.2009. The objections filed by the petitioner on 11.6.2009 was forwarded to the CMC who filed a counter statement on 30.6.2009. The objections filed by the petitioner on 11.6.2009 was forwarded to the CMC who filed a counter statement on 30.6.2009. On the report dt.9.9.2009, the State Government, it is said, directed the Deputy Commissioner to proceed in the matter of acquisition and hence the final notification dt.13.4.2010. 4. The respondents have filed additional statement of objection dated 8.10.2012 interalia alleging that petitioner has fixed a fence to close the existing unofficial public path in his property to the south of B.H. road leading to the railway track. It is stated that the public path is diverted to the east between Sy.No.131/1A and 85/4 up to Sy.No.131/1C and 132/3. According to the Deputy Commissioner, the village map does not disclose the existence of road from B.H. road to the railway track and hence, the Commissioner of the City Municipal Council, Tumkur, made a representation to acquire 1 acres 05 ½ guntas spread over in Sy.Nos.85/1, 85/2, 85/3, 85/4, 86/1, 86/2, 86/3, 86/4, 86/5, 86/6, 86/7, 130/1, 130/6, 131/1A, 131/1B, 131/1C, 132/1, 131/2, 132/3, 132/4 and 87 as also the petitioner’s property, for formation of a public road to connect B.H. road and railway road. At paragraph 4 of the statement it is stated that, at the time of 5A enquiry other land owners except the petitioner agreed for the acquisition of their lands to form the road for a public purpose and since the road is useful to reach the railway road as also for agricultural activities of the owners of the other survey numbers, hence, the objections were rejected. According to the Deputy Commissioner, the proposed road in the (CDP) Master Plan in between Sy.Nos.86 and 89 is useful only to owners of Sy.No.88 while the proposed road in between Sy.Nos.134 and 135 is useful to owners of lands in Sy.No.132. 5. In the rejoinder statement dated 30.11.2012 of the petitioner it is stated that the 4th respondent has no jurisdiction under Section 75 of the Karnataka Municipalities Act, 1964, for short KMC Act, in the absence of a scheme for improvement, development and regulation and therefore, the proposed acquisition is illegal. 5. In the rejoinder statement dated 30.11.2012 of the petitioner it is stated that the 4th respondent has no jurisdiction under Section 75 of the Karnataka Municipalities Act, 1964, for short KMC Act, in the absence of a scheme for improvement, development and regulation and therefore, the proposed acquisition is illegal. It is further stated that the lands adjoining the petitioner’s property are vacant lands since no agricultural activity is carried out, while on the western side of the petitioner’s property, there is a halla and a bridge has to be constructed if a road is to be formed, while denying the existence of a public path way as asserted by the respondents. In addition, it is stated that the formation of the road in Sy.No.84/1 would require investment of huge sums of money to level the halla and that the improvement board having taken into consideration that said circumstance proposed the road in between Sy. Nos.134 and 135 and Sy.Nos.86 and 89. According to the petitioner, a cart road is in existence in Sy.Nos.136/1, 136/2 and 136/3 and 136/4B belonging to one Siddalingaiah and that lands in Sy. Nos.130/6 and 132/2 also belonging to Siddalingaiah while land in Sy.No.87 belonging to his wife, are proposed for acquisition. At paragraph 7 of the rejoinder, it is stated that, one Yerrappaiah is the owner of Sy.Nos.136/5 and 136/7, in which a cart road is in existence, and that lands in Sy.No.131/1C and Sy.No.87 belonging to the said Yerrappaiah are proposed for acquisition. 6. The State has filed a Memo dated 10.12.2012 enclosing a sketch prepared by the Taluka Surveyor showing the existence of unofficial pathway and the proposed road. 7. Learned counsel for the petitioner points to Section 173 of the KMC Act, to submit that an improvement board established by the State Government having jurisdiction over the municipal area of Tumkur stood dissolved and the Karnataka Improvement Boards Act, 1976 ceased to be applicable to Tumkur area on the constitution of the Tumkur Urban Development Authority-5th respondent under the Karnataka Urban Development Authorities Act, 1987, for Short KUDA Act and in the light of Section 78 therein. The members constituting the 5th respondent, amongst others, are the 2nd respondent-Deputy Commissioner, and an elected member of the Town Municipal Council, Tumkur. The members constituting the 5th respondent, amongst others, are the 2nd respondent-Deputy Commissioner, and an elected member of the Town Municipal Council, Tumkur. Learned Counsel draws the attention of the Court to Section 76 of the ‘KUDA’ Act to submit that the 5th respondent when constituted to having jurisdiction over the urban area of Tumkur Municipality, the provisions contained in Chapter 8 of the KMC Act, are inapplicable to the Tumkur urban area. In other words, Chapter 8 of the KM Act making provision for improvement schemes and improvement boards and the power of the Municipal Council to undertake works, incurring expenditure for improvement, is inapplicable to the respondent-TMC-Tumkur. Learned Counsel submits that in the light of Sections 15 and 16 of the KUDA Act, it is the 5th respondent alone which can draw up detailed schemes and undertake works of development of urban area and incur expenditure thereon with the previous approval of the Government whereafterwards, under Section 30 it is for the 5th respondent to execute the scheme, in the matter of formation of streets and the State Government to issue of a Notification declaring the street to be a public street, whence it will stand vested with the local authority i.e., TMC, Tumkur for maintenance, repair and to clean that street. Learned Counsel hastens to add that it is for the 5th respondent-Urban Development Authority to execute the scheme substantially under Section 27 of the KUDA Act and for which purpose, the State Government may acquire lands exercising its eminent domain power. Regard being had to the scheme of the KUDA Act, it is submitted that the Deputy Commissioner being one of the members of the 5th respondent-Tumkur Urban Development Authority had no jurisdiction to issue the notifications, both preliminary and final, for acquisition of petitioner’s land. 8. Per-contra, learned Government Advocate for the State and its Revenue Authorities-respondents submits that under Section 4 of the LA Act, the Deputy Commissioner is invested with the jurisdiction to issue a preliminary notification for acquisition of land for a public purpose and in the instant case, the TMC, Tumkur having passed a resolution and forwarded it to the Deputy Commissioner, is the sine-qua-non for issue of the preliminary and final notifications for acquisition of the lands. It is submitted that the enquiry under Section 5A, revealed the need for a public road to connect B.H. road and the railway road through the property of the petitioner as well as others. 9. Learned counsel for the TMC, Tumkur while adopting the submissions of the Government Advocate, in addition, submits that in the light of Section 91(A) of the KM Act investing in the Municipal Council the discretionary functions to provide for laying out public streets and acquiring land for that purpose, the Council passed a resolution to acquire the lands belonging to the petitioners and others for the formation of the road to connect B.H. road and railway road. 10. Sri T.P. Vivekanand, learned Counsel for the 5th respondent Urban Development Authority, submits that regard being had to Sections 15, 16, 25 and 30 of the KUDA Act, it is for the Urban Development Authority to formulate a scheme for improvement and development including layout of streets in the urban area of TMC, Tumkur, its approval by the State Government, acquisition of the land by the State and handing it over where after the 5th respondent would implement the scheme by laying out the roads and if the State were to issue a notification under Section 30 of the KUDA Act, the roads would stand vested in the TMC, Tumkur. The 5th respondent having indicated the need for a road in between Sy.Nos.134 and 135 and Sy.Nos.86 and 89, which when approved by the State government was declared in the Master Plan in force until another master plan was approved on 10.3.2011. 11. According to the learned counsel, if the TMC-Tumkur makes a representation for formation of a road to connect B.H. road and the railway road through the properties belonging to the petitioner and others, the members of the Authority, amongst others, the Deputy Commissioner as well as an elected member of the TMC, Tumkur would take appropriate action. 12. Having heard the learned counsel for the parties, perused the pleadings and examined the provisions of law noticed supra, undoubtedly, the Deputy Commissioner is empowered to issue a notification under Section 4(1) of the LA Act to acquire lands for a public purpose which jurisdiction is exercised to issue the notifications impugned, on the basis of a requisition by the respondent TMC, Tumkur, for a public purpose to suit for formation of a road. The question is whether the Deputy Commissioner had the jurisdiction to issue the impugned notification? 13. There can be no dispute and it cannot be disputed that on the constitution of the 5th respondent Urban Development Authority for Tunkur, Section 78 of the KUDA Act states that the improvement Board constituted under the Karnataka Improvement Boards Act, 1976 ceases to exist and the said Act is inapplicable. The constitution of the 5th respondent includes amongst others, the Deputy Commissioner and an elected Councillor of the TMC Tumkur. The territorial jurisdiction of the 5th respondent is the urban area of Tumkur falling within the jurisdiction of the TMC, Tumkur. It is no more in dispute that the 5th respondent, considered the need for formation of roads within its jurisdiction and accordingly prepared a draft master plan incorporating a scheme for development, approved by the State Government, by a declaration of a Master Plan in force up to 10.3.2012, whereafterwards, a new Master Plan is approved by the State and is in force for Tumkur Urban area. There is also no dispute that, amongst others, the scheme for formation of the two roads by the 5th respondent in the Master Plan are those in between Sy.Nos.134 and 135 and Sy.Nos.86 and 89 and there is no development scheme proposed to form a road in the property of the petitioner and others to connect B.H.road and railway road, though the Deputy Commissioner was a member of the 5th respondent and apparently received a representation from the TMC Tumkur. Yet again, it is not the case of the TMC, Tumkur that one of its elected Councillors, though a member of the 5th respondent brought to its notice the resolution dt.29.8.2007 of the Council for formation of the road in question. 14. Section 76 of the KUDA Act, makes Chapter 8 of the KM Act, inapplicable to the TMC, Tumkur, on the constitution of the 5th respondent Urban Development Authority, thus, denuding the TMC, Tumkur from exercising a jurisdiction in the matter of preparing improvement schemes, to undertake works, incurs expenditure for improvement etc., within its territorial limits. This is so, obviously, in the light of the provisions of KUDA Act investing in the 5th respondent the jurisdiction to frame development and improvement schemes and execution of the works including that of laying of roads. This is so, obviously, in the light of the provisions of KUDA Act investing in the 5th respondent the jurisdiction to frame development and improvement schemes and execution of the works including that of laying of roads. A plain reading of Section 15 and 16(1)(b) indicate that if a requisition is made by the TMC-Tumkur, it is for the 5th respondent to consider and formulate a scheme, if found necessary. Therefore, it was for the TMC-Tumkur to have forwarded the resolution dt.29.8.2007 and all relevant material to the 5th respondent for its consideration in the matter of formation of a road in the lands of the petitioner and others so as to connect B.H. road and railway road. The provision of the KUDA Act indicate that a scheme when prepared and forwarded to the State, on its approval, the State is required to acquire the lands for a public purpose and hand it over to the 5th respondent to implement the scheme and if it relates to a road, the State, under Section 30 would have to issue a notification declaring it as a public street, whence, it would stand vested in the TMC-Tumkur. 15. The Deputy Commissioner, and the TMC-Tumkur, not noticing the aforesaid provisions of law, appear to have, in a cavalier manner, approached the request of the TMC-Tumkur, issued the preliminary notification, recommended the acquisition of the petitioner’s land, amongst others, in the report on an enquiry under Section 5A of the LA Act, which the State Government too, in a like manner, accepted the recommendation and directed the Deputy Commissioner to proceed with the acquisition of the lands, leading to the final notifications. Had the authorities of the State noticed the legal flaw in the Deputy Commissioner’s exercise of jurisdiction, the entire proceeding could have been obviated and cut down the wasteful expenditure of money from the exchequer as well as public time. 16. Had the authorities of the State noticed the legal flaw in the Deputy Commissioner’s exercise of jurisdiction, the entire proceeding could have been obviated and cut down the wasteful expenditure of money from the exchequer as well as public time. 16. Keeping in mind Sections 15, 16(1)(b) and Section 30 of the KUDA Act, it is needless to state that the 5th respondent-authority is invested with the jurisdiction to undertake works and incur expenditure for development by drawing up detailed schemes for development of urban area and with the previous approval of the Government to undertake from time to time any work of development of urban area and incur expenditure thereon and also frame and execute development schemes, in addition to exercise power from time to time to take up any new or additional schemes on its own initiative or on the recommendation of the local authority (which in the instant case TMC-Tumkur) and if the Municipal council places at the disposal of the authority necessary funds for framing and carrying out the scheme. The respondent-Municipality having placed no request or recommendation with the 5th respondent-Urban Development Authority, it cannot but be said that the power exercised by the Deputy Commissioner under Section 4 of the Land Acquisition Act to issue the preliminary notification proposing to acquire lands belonging to the petitioner amongst others, falls short of being legal and valid and sequentially proceedings both in the enquiry under Section 5A and the issue of final notification, Annexure ‘A’ are without jurisdiction and illegal. 17. Although a faint effort is made by the learned counsel for the TMC-Tumkur to submit that though in the master plan a scheme is not envisaged for the formation of the road to connect B.H. road and the railway road so as to pass through the lands belonging to the petitioner and others, nevertheless, lands could be acquired and thereafterwards approval of the Government could be obtained for change of the land use under Section 14A of the Karnataka Town and Country Planning Act, 1961, in my opinion does not arise for consideration at this stage, for the reasons noticed supra. 18. In the result, petition is allowed. The preliminary and final notifications issued by the Deputy Commissioner, in so far as acquisition of lands of the petitioner and all further proceeding thereto are quashed. 18. In the result, petition is allowed. The preliminary and final notifications issued by the Deputy Commissioner, in so far as acquisition of lands of the petitioner and all further proceeding thereto are quashed. A writ of mandamus shall ensue to the 5th respondent, to consider the petitioner’s representation-Annexure ‘J’ (pg.81) to form the road in terms of the Master Plan and to pass orders in accordance with law.