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TMI Blog2000 (12) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... rnataka. It wanted to provide house sites for its members all of whom are houseless. In 1983, the appellant approached the Government to acquire 15 acres of land at Maralur village. The land belonged to respondents Nos. 5 to 7 herein. 4. By a letter dated 10.1.1983 the Planning Authority wrote to the Assistant Commissioner, Tumkur stating that a resolution had been passed to issue no objection certificate for suitability of the land for house sites in favour of the appellant. It further said that the land was earmarked partly for residential and partly for open place in the draft lay out plan of Tumkur. 5. On 1.6.7.1984 a letter was written by the Assistant Commissioner to the appellant in which the appellant had been asked to furnish the following particulars: 1. The lists of members of the Association who are site less and houseless. 2. The financial soundness of the Association by way of the shares collected. The amount deposited in the Bank etc.; 3. The audit report for the previous three years; 4. Whether the area proposed for acquisition is treated as residential in the plan i.e. outline development plan, or comprehensive development plan, prepared by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended the acquisition of the land in favour of the appellant for providing house sites to its members. 14. On 10th August 1988, the State Government passed an order directing the authorities to issue the final notification under Section 6(1) of the Act. As the statutory period provided under Section 6(1-A) (which has been inserted by way of amendment in the State of Karnataka) had already expired, a fresh Notification under Section 4(1) of the Act was directed to be issued. Prior to the issuance of the Notification, a detailed note was prepared by the Deputy Secretary, Revenue Department which was forwarded to the Secretary. On 1.2.90, the Secretary referred to his note and proposed, We may give clearance in favour of the Association. For approval. This was approved by the Chief Secretary and placed before the Minister for Revenue who in turn approved the note on 12th February 1990. 15. On 14th February, 1990 the Secretary, Revenue Department wrote to the Deputy Commissioner, Tumkur District: Sub: In the mailer of acquisition of 15 Acres of land in Survey No. 49 of Maralur Village, Tumkur Kasaba, for housing sites in favour of Houseless Harijan-Girian Government Employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y respondents 5 to 7 before the High Court (Writ Petition No. 21438 of 1991). It was contended that the appellant was not duly registered under the Karnataka Societies Registration Act, 1960 and, therefore, it was not lawful to acquire the land for it. No interim order was passed and the acquisition proceedings continued. 18. The respondent-owners filed objections to the acquisition. All the objections including the objection relating to the non-register ability of the appellant under the Karnataka Society Registration Act were rejected. According to the noting on the file dated 23.11.1991 the land owner can question the validity of the registration of the Association on the housing activities, before the appropriate authority and not before this authority. Therefore, this objection is not tenable . 19. The rejection of the owner-respondents, objection under Section 5-A was affirmed on 3.12.1991 in the report prepared by Deputy Secretary to government, Revenue Department which was approved both by the Minister of Revenue as well as the Law Minister. Directions were accordingly issued to proceed under Section 6(1)(a) of the Act on 12.3.1992. 20. The final Notification und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .6.93, the Minister of Revenue has recorded, In view of the opinion offered by the Law Deptt., it is not permissible to acquire land on behalf of the Govt. Houseless Employees Association registered under Section 3 of the Karnataka Societies Registration Act. Hence withdrawal notification Under Section 48(1) of the LA Act may be issued. And on 2nd August 1993, the Government issued a Notification under Section 48(1) of the Act withdrawing the acquisition. This was published in the Official Gazette on 5th August 1993. The appellant amended the writ application by seeking quashing of the Notification dated 2nd August 1993. A second writ petition was also filed by the appellant for the same relicts However both writ petitions were dismissed. It is not necessary for us to consider the order dismissing the second petition. Suffice it to say that by virtue of an order passed by this Court, the appellant was permitted to proceed with the first writ petition filed by it on 9th July 1993. 23. The writ petition was dismissed by the Single Judge holding that there was no approval to the acquisition under Section 3(f)(iv) of the Act and that the letter dated 7th September 1986 relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic purpose. 27. This Court has consistently held that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication. 28. In the case of Union of India v. Col. J.N. Sinha (1970)IILLJ284SC , this Court said: ...It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice. 29. The Constitution Bench in Olga Tellis v. Bombay Municipal Corporation AIR1986SC180 placed the onus to prove the exclusion of the rules of natural justice by way of exception and not as a general rule on the person who asserted it. ' The ordinary rule which regulates all procedure is that pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he circumstances permitted, to cure any defect or shortcoming and fill any lacuna. No reason has been put forward by the respondents to 'exclude the application of the principle of natural justice to Section 48(1) of the Act. 34. The decision in Larsen Toubro which relied upon an earlier decision in Amarnath Ashram Trust Society and Anr. v. Governor of U.P. and Ors. (supra) to hold that a beneficiary has a right to be heard before a notification under Section 48(1) is issued, does not appear to be limited to acquisition for companies under Part VII of the Act as is contended by the respondents although the acquisition in that case had been made for a company for the purpose of setting up a housing colony. Both cases have also drawn a distinction between the rights of an owner and the beneficiary of the acquisition to object to withdrawal from the acquisition for the reasons noted earlier. 35. It may be noted that as in the case of the company, under Section 3(f)(vi) the prior approval to the acquisition is required if an acquisition is made for the purpose of providing land for carrying out, inter-alia, any housing scheme sponsored by a Society registered under the Soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged on the ground that power has been exercised malafide or in an arbitrary manner. Therefore, we cannot accept the submission of the learned Counsel for the State that the discretion of the State Government in this behalf is absolute and not justiciable at all. 39. These observations were noted with approval in Larsen Toubro (supra). In the notification under Section 48(1) impugned in this appeal no reason whatsoever has been given for withdrawal of the acquisition. All that said is: In exercise of the powers conferred by Sub-section (1) of Section 48 of the Land Acquisition Act, 1984, (Central Act 1 of 1894) as amended by Karnataka Act No. 17 of 1961, the Government of Karnataka hereby withdraw from the acquisition of the Land specified below in the schedule in respect of which a Notification No. RD: 177:AQT:9I dated 15th May 1992 issued under Section 6 of the Land Acquisition Act was published in Karnataka Gazette dated 21st May 1992 and 3rd September 1992 as required for public purpose, namely for formation and distribution to the Members of Houseless Harijans Employees Association [R] Tumkur. 40. In the affidavit affirmed on behalf of respondents, 1, 3 and 4 on 3rd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Karnataka Societies Registration Act. What appears to be the contention of the respondents is that the appellant could not have been registered under the State Act. It is nobody's case that the registration of the appellant has in fact been withdrawn or cancelled under the Karnataka Act. 44. Section 3 of the Karnataka Act specifies the Societies to which the Karnataka Act applies. The Societies must be formed for any one or more of the seven objects mentioned. The last two objects mentioned in the Karnataka Act are in fact included in the Memorandum of Association of the appellant as being two of the aims and objects of the appellant. The opinion of the Law Department that none of the objects of the Appellant were within the objects specified in Section 3 was factually incorrect. It has not been shown that if some of the objects with which a Society is established are invalid and others are valid, the registration of the Society is ipso facto vitiated. On the contrary, it appears from the records that on petitions being filed for cancellation of the appellant's registration, by letter dated 23rd March 1991, the District Registrar did not cancel the registration but s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose' aspect of the acquisition is over and cannot be reopened by the State nor can the respondents/owners raise this issue without challenging the Notification under Section 6. They had challenged it under Article 226 but then withdrew their writ petition. In this context it may be noted that the appellant's allegation that the sudden volte-face of the State Government was by reason of the pressure brought by respondent No. 2 appears to have some substance. Although the respondent No. 2, both before the High Court and before us, denied his involvement in the matter, the records reveal that at least by Idler dated 10th December 1991, the respondent No, 2 had written to the Revenue Department espousing the cause of respondent owners seeking withdrawal of the acquisition. 48. The basis on which the learned Single Judge dismissed the appellant's writ petition was that there was no approval of the appropriate Government to the acquisition, namely, the absence of the third factor noted above. This was not the ground on which withdrawal from the acquisition had been made and it was not open to the State Government to justify its decision on any other ground. As held by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate that the scheme was approved (ii) it was not in accordance with Article 166 of the Constitution and (iii) the Government could not rely on material collected by it before the first notification under Section 4(1) of the Act was issued. 54. No form of the prior approval required under Section 3(f)(vi) of the Act has been specified in the Act itself. What the section in terms requires is the prior approval to the acquisition for the purpose specified. This was expressly given. That the letter dated 15.3.91 was issued by the Government is not in dispute. The lack of compliance with Article 166 did not render it a nullity. As held by the Constitution Bench of this Court in [1964]6SCR368 : ...it is, therefore, settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor... [See also Dattatreya v. The State of Bombay 1952CriLJ955 and Major E.G. Barsay v. State of Bombay 1961CriLJ828 ] 55. No doubt, in Gulabra v. State of Gujarat (1996)2SCC26 , it was held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents at any stage. Both issues raise mixed questions of law and fact. As far as questions of fact are involved we cannot entertain them and as principles of law both submissions are untenable. 59. Patel Chaturbhai Nasirbhai (supra) cited by the respondents dealt with acquisition for a company in accordance with Part VII of the Act and the Land Acquisition (Companies) Rules, 1963. 60. Part VII of the Act contains sections relevant to the acquisition of land for Companies, namely, Section 38-A to Section 13-44. Section 39 provides that the procedure commencing with the declaration under Section 6 and terminating with the distribution of compensation and possession of the land would not put into force to acquire land for any company under Part-VII without: (i) the previous consent of the appropriate Government, and (ii) execution of an agreement between the company and the appropriate Government under Section 41. It is only after both the requirements are satisfied that further steps in the acquisition of land for the company can be taken. 61. In Patel Chaturbhai Narsibhai and Ors. (supra) the first notification under Section 4 of the Act was issued on 4th March 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent by the Under Secretary, Revenue Department to the Special Deputy Commissioner, Tumkur District, Tumkur which reads as follows: While returning the records, I am directed to convey the approval of Government to initiate acquisition proceedings under Karnataka Land Acquisition (Company) Rules to acquire an extent of 15-00 acres of land in S. No. 49 of Maralur village, Tumkur taluk in favour of State Government Employees Association, Tumkur. 64. Whatever may be said in the internal correspondence, there is no evidence that the matter was proceeded with under Part VII at all. 65. After the first notification under Section 4(1) was issued by letter dated 16th April 1988 sent by the Under Secretary to the Deputy Commissioner, Tumkur, it was stated: While enclosing the records received from the Assistant Commissioner, Tumkur under his letter cited above, I am directed to request you to send the recommendation of the District Level Committee constituted in G.O.No. RD 193 AQW 185, dated 20.1.1986, keeping in view the guidelines issued in Circular of even number dated 23.4.1986, including the existent of land to be acquired to provide house sites to its members. 66. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed society or co-operative society, as the case may be. The Act does not specify the material on which either the tentative conclusion to Section 4(1) or approval under Section 3(f)(vi) is to be based. In Fomento Resorts and Hotels Ltd. v. Gustavo Ranato DA Cruz Pinto and Ors. [1985]2SCR937 it was held that the view of the Government that land is needed either for public purpose or for a company may be based either on independent enquiry or from reports and information received by the government or even from an application by the company concerned. The same sources may provide information for granting prior approval under Section 3(f)(vi). There is no prohibition on the State Government acting on the basis of material already on record provided the material is sufficient, relevant and genuine. The material in this case although, collected prior to the issuance of the second Notification was all these and according to the letter of approval, the matter was minutely examined by the State Government in consultation with the Law Department before granting the approval for the third and final notification in 1991. 69. The final submission of the owner-respondents was that the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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