S. Udaya Shankar vs State Of Karnataka And Ors Etc. Etc.

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

CIVIL APPEAL NO. OF 2021 (Arising out of SLP(C)No.1361 OF 2021)

The Karnataka Housing Board & Anr. Appellant(s) VERSUS

State Of Karnataka & Ors. Respondent(s)

WITH

CIVIL APPEAL NOS.7011-7013, 9002-9003 AND 7017-7019 OF 2013

J U D G M E N T

C.T.RAVIKUMAR, J.

1. Leave granted in SLP(C) No.1361 of 2021 and on Signature Not Verified Digitally signed by DEEPAK SINGH

consent taken up for hearing along with connected Civil Date: 2022.07.29 17:51:36 IST Reason: 2

Appeals. In all these Appeals a common question arises

for consideration viz., “whether initiation of

proceedings for acquisition of land for the purposes

of the Karnataka Housing Board, invoking the power

under Section 33(2) of the Karnataka Housing Board Act,

1962, without the housing scheme being in existence or

the housing scheme not having been sanctioned under

Section 24(2) thereof, would render such acquisition

proceedings void and non-est”. Certain allied questions

may also call for consideration. We may hasten to state

that we do not propose to dispose of the appeals on

merits under this judgment and it would only resolve

the stated common question and cognate issues.

Nonetheless, if nothing survives for consideration in

any appeal, upon answering the moot question and allied 3

issues, then its fate would depend upon the nature of

their answers.

2. The Karnataka Housing Board Act, (hereinafter for

short “the KHB Act”) was enacted with an object to

provide for measures to be taken to deal with and

satisfy the need for housing accommodation. For

effectuating the said object, under Section 3 thereof,

the Karnataka Housing Board (for short “KHB”), was

constituted. Different modes for acquisition of

properties for the purposes of KHB are provided under

the KHB Act, including the power for compulsory

acquisition under Section 33(2). With this short

prelude we will proceed to consider the moot question

and the allied issues, for which it is proper and

profitable to state succinctly the situation occurring 4

in the appeals from which they stem for consideration.

We refer to the rival contentions raised in the appeals

solely for the said purpose.

Civil Appeal arising out of Special Leave Petition (Civil) No. 1361 of 2021

3. This appeal is preferred by ‘KHB’ and its Special

Land Acquisition Officer against the judgment and final

order dated 01.12.2020 of a Division Bench of the High

Court of Karnataka at Bengaluru in WA No. 5712 of 2012

(LA-KHB) filed against the order in WP No.25184 of 2011

dated 29.05.2012. The Government of Karnataka as per

Annexure ‘A’ Notification dated 15.12.1998, (marked

thus in the appeal) issued under Clause(c) of Section

3 of the Land Acquisition Act, 1894 (for short “L.A.

Act”), appointed the Housing Commissioner of KHB to

perform the functions of Deputy Commissioner under 5 Section 4 of the L.A. Act in respect of the lands to

be acquired for the purposes of KHB in Bengaluru and

Mysore Revenue Divisions, namely, Bengaluru Urban and

Bengaluru Rural, etc. S.3(c) itself makes it clear

that the appropriate Government is empowered to appoint

any officer to perform the functions of a collector

under the L.A. Act. In exercise of the powers thus

conferred, the Housing Commissioner, KHB, issued

Annexure ‘B’ Preliminary Notification dated 18.4.2007

under Section 4(1) of the L.A. Act in respect of two

places, namely, Kowdenahalli village and K.R. Puram

village in Bengaluru District for acquisition of a

total extent of 56 acres and 37 guntas of land, for the

housing projects of KHB. The said Notification was

published in the official Gazette on 12.07.2007 and 6

thereafter, in two daily newspapers on 18.08.2007 and

local offices during the period from 13.08.2007 to

24.08.2007. Subsequently, the State Government issued

the declaration and final Notification Annexure ‘C’

under Section 6(1) of the L.A. Act, dated 26.3.2009

declaring that the notified properties are required for

public purpose, i.e., for construction of different

categories of houses by KHB. It was also duly published

in the official Gazette and in two local newspapers.

Mrs. Dawn D’souza, the mother of Respondents 2 and 3

in this Appeal, filed WP No.25184/2011 challenging the

afore-mentioned preliminary and final Notifications

before the High Court of Karnataka. An interim order

was granted in the said petition on 28.7.2011. Earlier,

three other writ petitions, viz., WP Nos.25435/2010, 7

23002/2010 and 23083/2010, were filed by some other

land owners challenging the very same Notifications.

Obviously, only one point was raised in all the four

cases, viz., ‘whether acquisition Notifications could

be issued until and unless scheme is finalized as per

the provisions of the KHB Act’. They were heard

together and allowed by a Learned Single Judge as per

the order dated 29.05.2012, upholding the contention

of the petitioners therein that sanction of the housing

scheme concerned is sine qua non for initiation of

acquisition proceedings therefor, following his own

judgment in WP No.9593/2007 in respect of acquisitions

of the year 1991 for a different area. As a matter of

fact, the said relied upon judgment in WP No.9593/2007

was rendered, relying mainly on the decision of this 8

Court in State of Tamil Nadu & Anr. Vs. Mohammed Yousef

& Ors. (AIR 1992 SC 1827). Later, on 29.06.2012, a

proposal for 53 housing schemes, including for the

aforesaid two places, namely, Kowdenahalli village and

K.R. Puram village, were submitted to the Government

for approval by KHB. On 04.09.2012, the State

Government accorded sanction for all the said 53

housing schemes as per Annexure ‘H’ dated 4.9.2012. In

respect of 30 acres and 3½ guntas out of 56 acres and

37 guntas in the said villages, awards were passed and

according to the appellants, in respect of the

remaining extent, awards were not passed in view of the

interim orders of the High Court. KHB filed four writ

appeals against the aforesaid common order dated

29.05.2012. The Division Bench vide judgment dated 9

01.12.2020 dismissed Writ Appeal No.5712/2012

rejecting the contention that initiation of process for

acquiring land for the purposes of KHB prior to the

framing and sanctioning of the scheme for which

acquisition is required will not invalidate the

acquisition proceedings and holding thus:-

“In the circumstances, we are of the view that the sanction of a scheme by the State Government under sub-Section (2) of Section 24 of the Act is a condition precedent and a mandatory requirement before the Housing Board would execute any housing scheme, land development scheme or labour housing scheme. This is irrespective of whether any housing scheme would entail acquisition of land or not as opposed to a scheme entrusted by Board under Section 32 of the Act.”

It is the said judgment that is impugned in this

appeal arising out of SLP(C)No.1361/2021.

4. It is contended by the appellants that the power

of acquisition conferred under Section 33(2) of the KHB 10

Act is an independent power and it could not be

conditioned on prior approval of the scheme by the

Government. According to them, schemes could be framed

simultaneously or even subsequently and acquisition

could be initiated for a contemplated scheme. It

confers the power to acquire land required for

execution of a housing scheme. The expression ‘required

for execution of a housing scheme’ denotes the

‘purpose’ for which the land could be acquired and not

the ‘stage’ at which it could be acquired, it is also

contended on their behalf. The further contentions

raised on their behalf are as follows: -

It is illogical to infer that a scheme of KHB should

obtain two successive sanctions; one under Section 20

and the other under Section 24(2) of the KHB Act. Such 11

an interpretation would be nothing but misconstruction

of the provisions of the KHB Act. In exercise of the

delegated powers, if Notification is issued by the

Commissioner, it could only be construed that

acquisition is by the Government. The fact that the

acquisition is for the KHB and that the acquired land

would be handed over to KHB for its purpose(s) would

not and could not invalidate the said acquisition. KHB

Act received the assent of the President of India on

the ninth day of March, 1993 and Section 33(2) of the

KHB Act modifies L.A. Act and declares that acquisition

for the purposes of KHB Act be deemed to be for ‘public

purpose’ within the meaning of L.A. Act. The decision

of this Court in Mohammed Yousef’s case (supra) is not

applicable to the cases on hand falling within the 12

purview of KHB Act as the said decision dealt only with

the provisions under the Tamil Nadu Housing Board Act

(TNHB Act) and further that the provisions and scheme

of both the said Acts are different and distinct. The

provisions under Section 49(1)(b) of the TNHB Act,

virtually, persuaded this Court in Mohammed Yousef’s

case (supra) to hold that acquisition of land is part

of the housing scheme and therefore, Notification for

the acquisition of land for the housing scheme

concerned could be issued only on finalization of the

scheme and its sanction by the Government. However, a

provision pari materia to the same is conspicuously

absent in KHB Act.

5. Respondents 2 and 3 in this appeal filed a synopsis,

pursuant to the permission granted to the parties to 13

file written submissions along with relevant

documents/compilation, whereunder they have raised

various contentions to resist the claims and

contentions of KHB. We may hasten to add here that we

will not advert to all the contentions advanced by them

and in view of the nature of the order we propose to

pass, as stated hereinbefore, we need only to deal with

those contentions which are relevant for the

consideration of the stated common question posed for

resolution and also to the allied issues. In that view

of the matter, it is relevant to refer to the following

contentions: -

When Section 4(1) Notification under the L.A. Act

was issued prior to the finalization of the scheme

concerned it would be vague and, in such circumstances, 14

the land owners would be deprived of the benefit of

filing effective objections under Section 5A of the

L.A. Act. (As a matter of fact the impugned judgment

itself would reveal that their deceased mother had

filed objections on 17.09.2007 and later, an enquiry

under Section 5A of the L.A. Act was held). If the

housing scheme involves acquisition of land, prior

sanction under Section 24(2) of the KHB Act is

mandatory and framing and finalizing the scheme is a

pre-requisite for acquiring land for the purpose of KHB

under Section 33(2) of KHB Act. Issuance of

Notification under Section 6 (1) of the L.A. Act by the

State Government could not be construed as sanction as

contemplated under Section 24(2) of the KHB Act. Any

such construction, as canvassed by the appellants, if 15

accepted would offend the language of Sections 24(2)

and 33(2) of the KHB Act. In terms of sub-Section (4)

of Section 3 of the KHB Act, KHB shall be deemed to be

a local authority for its purpose and also for the

purpose of L.A. Act. Ergo, by virtue of Section 3(f)

of L.A. Act, prior approval of the Government for the

housing scheme concerned is necessary in order to make

acquisition as the one for ‘public purpose’. They have

also referred to sections 17 to 24 of the KHB Act to

buttress the contention that without prior sanction

under section 24(2) of the KHB Act, KHB could not

execute any scheme by acquiring land. To drive home the

point, they rely on the decisions of this Court in

Mohammed Yousef’s case(supra) and in State of T.N. & 16

others Vs. L. Krishnan’s & Others reported in (1996) 1

SCC 250.

Civil Appeal Nos. 7011-7013 of 2013, 7017-7019 of 2013 & 9002-9003 of 2013

6. These companion appeals are filed by persons whose

properties are sought to be acquired for the purposes

of KHB under Notifications prior to the one involved

in the appeal arising from SLP(C) No.1361/2021,

substantially raising contentions similar to that of

the party respondents in the said appeal. Their core

contention is that absence of sanction for the building

scheme concerned prior to the initiation of acquisition

proceedings would vitiate the entire acquisition

proceedings and would render it null and void.

17 6.1 The relevant details, as regards the companion

appeals, are stated infra in a tabulated form for

convenience.

Relevant B.N. Byregowda M. Nagaraju & S. Udaya Shankar Dates & Ors. Vs. Anr. Vs. Govt. Vs. State of State of of Karnataka & Karnataka and Karnataka & Ors. (CA Nos. Ors. (CA Nos.

Ors. (CA Nos. 9002-9003 of 7011-7013 of 7017-7019 of 2013) 2013) 2013) Name of the 100 housing 225 housing 100 housing scheme scheme scheme scheme

Framing of 06.10.2000 2009 06.10.2000 the scheme by (modified KHB scheme)

Sanctioning 25.01.2001 18.05.2010 25.01.2001 of the scheme (modified by the Govt. scheme)

S.4(1) 31.03.2001 12.04.2005 31.03.2001 Notification

S.6 10.05.2002 02.11.2006 10.05.2002 declaration

Date of 17.05.2002 09.11.2006 17.05.2002 publication of final notification in the official gazette

6.2 The tabulated details would go to show that in

these cases either the framing or sanctioning or

publication or all such processes relating to the 18

Housing Scheme concerned was/were effected only

subsequent to the initiation of acquisition proceedings

therefor. The Appellant in C.A. Nos.7011-7013 of 2013

(S. Udaya Shankar) filed W.P.No.46250/2004 and the

Appellants in C.A.Nos.7017-7019 of 2013 (B.N. Byregowda

& Ors.) filed W.P.No.47616/2004 challenging the

selfsame Notifications, viz., preliminary Notification

under Section 4 dated 31.03.2001 and Section 6

declaration and final Notification dated 10.5.2002 of

the L.A. Act. During the pendency of the said Writ

Petitions the Appellants in C.A. Nos. 9002-9003 of 2013

approached the High Court by filing W.P. Nos.

18596/2006 and 11568/2008 respectively challenging a

subsequent preliminary Notification under Section 4

dated 01.04.2005 and Section 6 declaration dated 19

02.11.2006 in respect of another area for the purpose

of KHB. A Learned Single Judge of the High Court, as

per judgment dated 06.02.2009, dismissed them holding

that prior sanction of the housing scheme concerned is

not necessary for initiating acquisition for the

purposes of the KHB under the KHB Act by placing

reliance on the decision of this Court in L. Krishnan’s

case (supra). The said common judgment dated 06.02.2009

was taken in appeal as W.A. Nos. 1244-45/2009 (LB-KHB).

During its pendency, another learned Single Judge of

the High Court vide judgment dated 28.06.2012 in

W.P.No.9593/2007 and connected cases held that a

sanctioned housing scheme is condition precedent, for

initiation of acquisition proceedings under the KHB Act

for its purpose. When W.P No.46250/2004 filed by the 20

Appellant in Civil Appeal Nos.7011-7013 of 2013 came

up for consideration, taking note of the pendency of

Writ Appeal Nos.1244-45 of 2009 and also of the

conflicting decisions of two learned Single Judges in

WP No.18596/2006 and WP No.9593/2007 and connected

matters, it was referred to a Division Bench. On the

same grounds the learned Single Judge referred WP

No.47616/2004 also to a Division Bench.

7. In the judgment in Writ Appeal Nos.1244-45 of 2009

the Division Bench took note of the fact that the land

involved therein was notified for acquisition by

invoking Section 33 of the Act read with Section 4(2)

of the L.A. Act and identified the point to be answered,

as can be seen from paragraph 6 of the judgment passed

thereon dated 26.04.2013, thus: -

21

“6. The only point to be answered by us in these appeals is whether the Housing Board is required to obtain sanction of a Housing Scheme u/s 24 of the Act before initiation of the acquisition of the land or not in order to implement the Housing Scheme.”

Paragraph 7 therein also assumes relevance, in this

regard. It reads thus:-

“7. It is the contention of the appellants that without their being a Scheme sanctioned as required u/s 24 of the Act, lands of the appellants could not have been acquired.”

8. After referring to Sections 18 to 24 of the Act,

vide paragraphs 14, 15 and 18 the Division Bench held

thus: -

“14. A reading of Sections-18 to 24, it is clear that there is no necessity for obtaining the sanction of the Housing scheme or the Land Development scheme in order to acquire the property for the aforesaid projects. But without their being a sanction from the Government under Section 24, no scheme shall be executed by the Housing Board. Therefore, it is clear that obtaining of sanction under the Housing Scheme or Land Development Scheme would arise only after preparation of all preliminary preparation of the scheme, preparation of the Housing project, Land Development Project, Budgetary provision, identifying the lands or acquiring the lands 22

and the staff required and estimation and other things as contemplated under sections-18 to 23. Only after strict compliances of Sections-18 to 23, before actual execution of the Housing Scheme or Land Development Scheme, obtaining of the sanction u/s 24 would arise.

15. In this background, after considering the Judgment of the Learned Single Judge, we cannot find fault with his order because he has clearly ruled that no prior permission is required u/s 24 of the Act, in order to identify the lands or to acquire the lands.

Accordingly, we answer the said point, agreeing with the findings of the Learned Single Judge.

16…

17…

18. With the above observations, the appeals are allowed confirming the finding of the Learned Single Judge on the question of section-24 of the Housing Board Act, the matter is remanded to the Learned Single Judge with a request to reconsider the matter afresh as observed above.”

9. Thus, obviously, the Division Bench, as per

judgment dated 26.04.2013 in Writ Appeal Nos.1244-

45/2009 affirmed the decision of the learned Single

Judge in W.P. Nos.18596/2006 and 11568/2008 that

existence of a sanctioned housing scheme is not 23

required for initiation of compulsory acquisition under

the KHB Act. Civil Appeal Nos.9002-9003/2013 were filed

challenging the judgment and final order dated

26.04.2013 in Writ Appeal Nos.1244-45 of 2009. It is a

fact that on the same day, the Division Bench,

obviously relying on the decision in Writ Appeal

Nos.1244-45/2009, dismissed W.P. Nos.46250 and 47616

of 2004 vide separate judgments. Civil Appeal Nos.7011-

7013/2013 and 7017-7019/2013 were filed in the

circumstances challenging the judgment and final Order

dated 26.04.2013 in the respective writ petitions and

also against the relied upon judgment and final Order

in Writ Appeal Nos.1244-45/2009, dated 26.04.2013.

10. The pleadings in the captioned Civil Appeals and

the submissions made by the respective learned counsel 24

for the appellants would reveal the common contention

of the parties in C.A.Nos.7011-7013, 9002-9003 and

7017-7019 of 2013 that acquisition of land for the

purposes of KHB under the KHB Act is part of the housing

scheme to be prepared in terms of Sections 18-23 of the

KHB Act and, therefore, acquisition proceedings could

not have been initiated before the sanctioning of the

housing scheme concerned. Since, acquisition

proceedings preceded the sanction of the housing

scheme(s) concerned, they are to be deemed as null and

void and as such, liable to be set aside, they would

further contend. It is to support the said contentions

that they are relying on the decision in Mohammed

Yousef’s case (supra). The KHB, which is the appellant

in the appeal by Special Leave arising from 25

SLP(C)No.1361/2021 would contend that acquisition

proceedings for its purposes invoking the power under

Section 33(2) of the KHB Act could not be said to be

part of the housing scheme to be prepared in terms of

Sections 18-23 of the Act by the KHB and the only

condition for executing the scheme would be that prior

to its execution Governmental sanction should be

obtained therefor.

11. On perusal of the relevant provisions and hearing

the rival contentions in all the above appeals we think

that construction of Section 33 (2) of the KHB Act

would be a pointer to answer the stated common question

involved in the appeals. In that pursuit, it is also

to be ascertained, with reference to the relevant

provisions under the Act, as to whether acquisition 26

proceedings by KHB invoking the power thereunder would

form part of a housing scheme, as defined under the KHB

Act. Subject to its answer, the question whether

‘acquisition forming part of housing scheme’ by itself

is decisive as to the validity of the initiation of

acquisition proceeding prior to the sanction of the

scheme concerned, may also have to be considered in

this pursuit.

12. The case of the Appellants, (other than the KHB

and its co-appellant) who canvass the position that

sanctioning of the scheme is a pre-condition for

compulsory acquisition for KHB under Section 33 (2) of

the Act, is founded on the decision of this Court in

Mohammed Yousef’s case (supra) and other judicial

pronouncements rendered relying on/referring to the 27

said decision. In that regard they also contend that

the provisions in the TNHB Act (then referred to as

Madras State Housing Board Act, 1961), that persuaded

this Court to lay down law as mentioned hereinbefore

have pari materia provisions in the KHB Act. We may

hasten to state at this juncture that the learned

counsel for KHB resisted the contention. He submitted

that the claim of existence of provisions in the KHB

Act pari materia to the provisions under the TNHB Act,

1961 that formed the ground for laying the law in the

decision in Mohammed Yousef’s case (supra), is

absolutely incorrect and baseless. It is further

submitted on behalf of KHB that the said decision is

inapplicable to the instant cases. Still, the learned

counsel for KHB relied on L. Krishnan’s case, which 28

again was rendered with reference to acquisition for

the purpose of Tamil Nadu Housing Board. In that

context learned counsel for KHB would submit that

reliance is placed on the decision in L. Krishnan’s

case solely to fortify the contention that the decision

in Mohammed Yousef’s case is not applicable to the

appeals on hand. Furthermore, it is contended on behalf

of KHB that the embargo under Section 24 (2) of the KHB

Act would not stand against initiation of acquisition

proceedings under Section 33(2) of the KHB Act without

waiting for formation, sanctioning or publication of a

housing scheme. According to the learned counsel what

is legally required in terms of the provisions under

Section 33 (2) of the KHB Act is that before execution

of the scheme viz., implementation of the scheme, 29

sanction should be obtained.

13. In the light of the rival contentions referred to

hereinbefore it is apropos to consider, at first, the

applicability of decision of this Court in Mohammed

Yousef’s case (supra) in the matter of resolution of

the stated question and the allied issues. In view of

the scanned analysis of the decision in Mohammed

Yousef’s case by a three-Judge Bench of this Court in

the decision in L. Krishnan’s case (supra), from

paragraphs 23 onwards, we need only to refer to the

relevant recitals and conclusions/findings from the

decision in L. Krishnan’s case in our pursuit to answer

the applicability of the decision in Mohammed Yousef’s

case. The three-Judge Bench was called upon to consider

the correctness of the law laid down in Mohammed 30

Yousef’s case while considering the questions that

arose in Civil Appeal Nos.1865-66 and 1868-70 of 1992.

Those appeals were directed against a judgment of the

Madras High Court in a batch of Writ Petitions

whereunder it quashed three Notifications issued under

Section 4(1) of the L.A. Act for the implementation of

housing schemes, relying mainly on the decisions of

this court in Mohammed Yousef’s case (supra) and in

Munshi Singh Vs. Union of India [(1973) 2 SCC 337]. In

paragraph 22 of L. Krishnan’s case this Court observed:

“But before we refer to them, it would be appropriate to deal with the decision of a two-Judge Bench of this Court in State of T.N. Vs. A Mohd. Yusuf, affirming the decision of the Madras High Court, upon which strong reliance is placed by the respondents. In this decision, it has been held that a proceeding under the Land Acquisition Act read with Section 70 of the Housing Board Act can be commenced only after the framing of the scheme for which the land is required, but not before.”

(Emphasis added) 31

In this context, it is also worthy to note the

first question posed for consideration before the

three-Judge Bench in L. Krishnan’s case (supra), which

was mentioned in paragraph 7 thereof thus:-

“The first question that arises in these appeals is whether a final and effective scheme prepared and published under the provisions of the Housing Board Act is a precondition to the issuance of notification under Section 4. This question has to be answered with reference to the provisions of the Land Acquisition act as well as the Housing Board Act.”

(Underline supplied)

14. The three-Judge Bench in L. Krishnan’s case

further mentioned thus:-

“We may mention, at the outset, that these appeals have been referred to a three-Judge Bench by a Bench of two learned judges because they doubted the correctness of the decision in Mohd. Yusuf, vide order dated 16.09.1993.”

15. Paragraphs 24 to 33 of the decision in L.

Krishnan’s case are worthy to be extracted to decide 32

on the applicability of the decision in Mohammed

Yousef’s case to decide the stated mooted question

involved in these appeals. Paragraphs 24 to 28 read

thus:-

“24. The facts in Mohammed Yousef are these: the notification under Section 4 of the Land Acquisition Act was issued stating the public purpose as construction of houses by the Tamil Nadu Housing Board. Admittedly not even a draft scheme was framed by the Housing Board by the date of the said notification. On the contrary, the contention of the State was that only after the acquisition proceedings are completed and possession of the land taken, would they frame a scheme. Alternately, it was contended by the State that framing of a scheme is not a precondition for issuance of a valid notification under Section 4 of the Land Acquisition Act proposing to acquire the land for construction of houses by the Housing Board. The High Court had struck down the notification on the ground that the public purpose mentioned therein was too vague in the absence of details relating to the scheme for which the acquisition was sought to be made. The High Court opined that in the absence of such a scheme with necessary particulars the land- owners cannot effectively avail of the opportunity given by Section 5-A. In this Court, however, the main contention of the respondents-land-owners was that the framing of a scheme by the Housing Board under the provisions of the Housing Board Act is a precondition to a valid notification under Section 4 where the land is proposed to be acquired for the purpose of the Housing Board. In view of the said 33

contention, this Court examined the scheme of the Act and held that inasmuch as acquisition of the land is a part and parcel of the execution of a scheme framed by the Board under the Act, the acquisition must follow the scheme and cannot precede it. The Bench further observed that unless such a scheme with requisite particulars is duly published, it may not be possible for the land-owners to object to the proposed acquisition on the ground that the land is not suitable for the scheme at all and/or that it does not serve the stated public purpose. The Bench observed that the power of the Board to frame a scheme is regulated by the provisions of the Act which, inter alia, provide a full opportunity to the affected persons to object to the scheme. Even after the final publication of the scheme and after its coming into force, it was pointed out, the scheme can yet be altered or cancelled as provided under Section 56 of the Act. For all these reasons, the Bench held that: (SCC p. 229, para 11)

"a proceeding under the Land Acquisition Act read with Section 70 of the Madras Housing Board Act, can be commenced only after framing the scheme for which the land is required".

25. Unfortunately, the provisions in sub-

Sections (2) and (3) of Section 35 and Section 36 were not brought to the notice of the Bench nor were the earlier Constitution Bench decisions of this Court brought to its notice, to which decisions we may now turn. But one more relevant aspect before we refer to them.

26. After, and in the light of, the impugned judgment, the Tamil Nadu Legislature has amended the Housing Board Act with 34

retrospective effect with a view to remove the basis of the said judgment and providing expressly that existence of a scheme framed by the Housing Board is not a pre-condition for acquiring land for the purpose of the Board. The validity of the said Amendment Act has also been questioned in the connected matters but the necessity to go into that question will arise only if we agree with the reasoning and conclusions in the decision under appeal. Indeed, Shri Salve's argument was that the decision of the High Court is unsustainable even without reference to the said Amendment Act and it is on that basis that he made his submissions.

27. In Arnold Rodricks v. State of Maharashtra, the Constitution Bench dealt with the question whether the statement in the notification under Section 4 that the land was required for "development and utilisation of the said lands as an industrial and residential area" cannot be said to be a public purpose within the meaning of Section 4 of the Land Acquisition Act. The Court held, relying upon the decisions of this Court in Babu Barkya Thakur v. State of Bombay (SCR at p.

137) and Pandit Jhandu Lai v. State of Punjab — as well as the statement in the counter-affidavit filed on behalf of the State Government — that the purpose stated in the notification is indeed a public purpose. The Constitution Bench pointed out that in Babu Barkya Thakur, this Court had relied upon the decision in State of Bombay v. Bhanji Munji to the effect that "providing housing accommodation to the homeless is a public purpose (and that) where a larger section of the community is concerned, its welfare is a matter of public concern".

35

The counter-affidavit filed on behalf of the Government explained that the pressure of housing in Bombay is acute and that there was any amount of need for fresh housing. The Court (majority) observed:

"In our view the welfare of a large proportion of persons living in Bombay is a matter of public concern and the notifications served to enhance the welfare of this section of the community and this is public purpose."

28. Another contention urged for the petitioners was that the Government had not prepared any scheme before issuing the notification under Section 4. This argument was also negatived in the following words:

"This is true that the Government has not uptil now prepared any scheme for the utilisation of the developed sites. But the notification itself shows that the sites would be used as residential and industrial sites. There is no law that requires a scheme to be prepared before issuing a notification under Section 4 or Section 6 of the Act. We have, however, no doubt that the Government will, before disposing of the sites, have a scheme for their disposal."

(Emphasis added)

16. After making such reference in L.

Krishnan’s case it was further held in paragraphs

29 to 33 thus:-

“29. We have held hereinbefore that merely because the Housing Board Act contemplates acquisition of land as part of a housing or improvement scheme, it does not follow that no land needed for the purpose of the 36 Housing Board Act can be acquired until and unless a scheme is prepared and finalised by the Board and becomes effective under the provisions contained in Chapter VII.

30. In Aflatoon v. Lt. Governor of Delhi, another Constitution Bench dealt with a similar contention, viz., that before publishing the notification under Section 4, the Government had not declared any area in Delhi as a development area under Section 12(1) of the Delhi Development Act nor was there a master plan drawn up in accordance with Section 7 of that Act. The notification under Section 4 was attacked on that basis. It was argued that under Section 12(3) of the Delhi Development Act, no development of land can be undertaken or carried out except as provided in that sub- Section. This argument was negatived by the Constitution Bench holding that: (SCC pp. 294-95, para 23) "The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready (See the decision in Patna Improvement Trust v. Lakshmi Devi). In other words, the fact that actual development is permissible in an area other than a development area with the approval or sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property;

acquisition generally precedes 37

development. For planned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority."

(emphasis added)

31. It is significant to notice that Section 12 of the Delhi Development Act, 1957 provided for declaration of any area as development area by the Central Government and it further provided that except as otherwise provided by the said Act, the Delhi Development Authority shall not undertake or carry out any development of land in any area which is not a development area. Sub-Section (3) of Section 12, however, provided that after the commencement of the said Act, no development of land shall be undertaken or carried out in any area by anyone unless

(i) where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provisions of the Act and (ii) where the area is an area other than a development area, approval of the local authority or other authority concerned is obtained according to law. Section 15 of the said Act provided for acquisition of any land required for the purpose of development under the Act.

32. In our opinion, the observations quoted and emphasised hereinabove, and the broad similarity between the provisions of the Delhi Act and the Tamil Nadu Housing Board Act, establish that the acquisition of the land is not dependent upon the preparation and approval of a scheme under Sections 37 to 56 and that the Government's power of 38

acquisition extends to other purposes of the Board and the Housing Board Act referred to in Sections 35 and 36.

Moreover, under Tamil Nadu Housing Board too, there is no inhibition against acquisition of land for the purpose of the Board except in accordance with and as a part of the scheme.

33. For all the above reasons, we find it difficult to read the holding in Mohammed Yousef as saying that in no event can the land be acquired for the purpose of the Act/Board unless a final and effective scheme is framed by the Housing Board under the provisions of Sections 37 to 56. The said limitation applies only where the land is sought to be acquired avowedly for the purpose of execution of a housing or improvement scheme prepared by the Housing Board under Chapter VII of the Tamil Nadu Housing Board Act. In other words, unless the notification under Section 4 of the Land Acquisition Act expressly states that land proposed to be acquired is required for executing a housing or improvement scheme (i.e., a final and effective scheme) framed by the Housing Board under the provisions of the Tamil Nadu Housing Board Act, the principle and ratio of Mohammed Yousef is not attracted. Mere statement in the notification that land is required for the purpose of the Housing Board would not by itself attract the said principle and ratio. In the instant appeals, the notifications do not even state that the land proposed to be acquired is meant for the purpose of the Housing Board.”

(Emphasis added) 39

17. Thus, a perusal of the decisions in Mohammed

Yousef’s case and L. Krishnan’s case (supra) would

disclose that both the decisions were rendered with

reference to the provisions under the L.A. Act and the

TNHB Act. It is true that a two-Judge Bench of this

Court in Mohammed Yousef’s case, after referring to the

provisions under the Madras State Housing Board Act,

1961, which was later renamed as ‘TNHB Act’, held that

a proceeding under the Land Acquisition Act read with

Section 70 of the Housing Board Act could be commenced

only after the framing of the scheme for which the land

is required, and not before. But then, upon doubting

the correctness of the decision in Mohammed Yousef’s

case, two learned judges of this Court referred the

appeals (decided under L. Krishnan’s case) to a three-

Judge Bench. It is in those appeals that the three-

Judge Bench in L. Krishnan’s case observed that

unfortunately neither the provisions in sub-Sections

(2) and (3) of Section 25 and Section 36 of Act 17 of

1961 nor earlier Constitution Bench decisions of this

Court, were brought to the notice of the Bench which

rendered the decision in Mohammed Yousef’s case. 40

Thereafter, upon considering all the relevant

provisions under Act 17 of 1961, the provisions of the

very Act which were dealt with or not dealt with in the

decision in Mohammed Yousef’s case and also various

decisions of this Court the three-Judge Bench in L.

Krishnan’s case held :-

“For all the above reasons, we find it difficult to read the holding in Mohd. Yusuf as saying that in no event can the land be acquired for the purposes of the Act/Board unless a final and effective scheme is framed by the Housing Board under the provisions of Sections 37 to 56.”

18. The afore-extracted recitals in L. Krishnan’s case

would reveal that the position held as above holding

in Mohammed Yousef’s case was held applicable only

where the land is sought to be acquired avowedly for

the purpose of execution of a housing or improvement

scheme prepared by the Housing Board under Chapter VII

of the Tamil Nadu Housing Board Act. Further it was

clarified in paragraph 33 itself thus:-

“In other words unless the notification under Section 4 of the Land Acquisition Act expressly states that the land proposed to be acquired is required for 41

executing a housing or improvement scheme (i.e., a final and effective scheme) framed by the Housing Board under the Tamil Nadu Housing Board Act, the principle and ratio of Mohd. Yusuf is not attracted.”

19. The contention of vagueness in the matter of public

purpose in the Notifications and its impact was

considered and negated in view of the Constitution

Bench decisions of this Court in Aflatoon Vs. Lt.

Governor of Delhi [(1975) 4 SCC 285] and in Arnold

Rodricks Vs. State of Maharashtra [AIR 1966 SC 1788]. The decision in Pt. Lila Ram Vs. Union of India [(1975)

2 SCC 547] was also referred to in that regard. It was

observed that the decision in Munshi Singh’s case

(supra) would not come to the rescue of the Writ

Petitioners – Respondents. Based on such conclusions

and findings and those made in paragraphs 24-33 this

Court allowed Civil Appeal Nos.1865-66, 1868-70 of 1992

and set aside the judgment of the Madras High Court

under Appeal and dismissed the Writ Petitions from

which those appeals arose. It is also relevant to note

that the Civil Appeals filed against the judgments of

the Madras High Court upholding the validity of the 42

Tamil Nadu Housing Board Amendment Act 5 of 1992 were

also dismissed by the three-Judge Bench following the

judgment in Civil Appeal Nos.1865-66, 1868-70 of 1992.

20. Decision in L. Krishnan’s case would thus reveal

that the three-Judge Bench after careful consideration

held that merely because the TNHB Act contemplates

acquisition of land as part of a housing or improvement

scheme, it could not be said that no land needed for

the purpose of the Housing Board could be acquired

until and unless the scheme was prepared and finalized

by the board and became effective under the provisions

contained in chapter VII of the TNHB Act that deals

with acquisition and disposal of land. The three-Judge

Bench further found it difficult to read the dictum in

Mohammed Yousef’s case (supra) as saying that in no

event land could be acquired for the purpose of the

Act/Board unless a final and effective scheme is framed

by the Housing Board under the provisions of Sections

37 to 56. We have already noted the further conclusions

and findings of the three-Judge Bench in L. Krishnan’s 43

case and the outcome of such consideration, conclusions

and findings.

21. The long and short of the above discussion is

that the contention that initiation of acquisition for

the purposes of KHB/the KHB Act, prior to the sanction

and/or the publication of housing scheme concerned/land

development scheme concerned, is null and void in view

of the decision in Mohammed Yousef’s case is untenable.

So also, the contention that in view of the decision

in Mohammed Yousef’s case acquisition proceedings form

part of housing scheme/land development scheme and

hence, acquisition for the purposes of KHB/the KHB Act

prior to the sanction and/or the publication of housing

scheme concerned/land acquisition scheme concerned, is

null and void cannot be countenanced. Suffice it to say

that the moot question and allied issues are to be

considered and answered independently without

reference to the decision in Mohammed Yousef’s case,

but with reference to the L.A. Act as well as KHB Act.

In that view of the matter, we will now proceed to 44

consider them with reference to the L.A. Act and the

KHB Act and not with reference to other authorities

pronounced under different enactments. We are fortified

in that view by a Constitution Bench decision of this

Court in Offshore Holdings Pvt. Ltd. vs. Bangalore

Development Authority & Ors. (2011) 3 SCC 139. It, in

so far as relevant, reads thus:-

“85…… the dictum stated in every judgment should be applied with reference to the facts of the case as well as its cumulative impact.

Similarly, a statute should be construed with reference to the context and its provisions to make a consistent enactment i.e. ex visceribus actus.”

22. We may also add that a judgment rendered with

respect to the position obtained under a particular

provision(s) in one enactment cannot be applied while

dealing with a similar situation falling under a

different enactment, unless pari materia provision(s)

exist in that enactment, without looking into the facts

and law.

45

23. Now, we will refer to the various relevant

provisions to have panorama on the scheme of the KHB

Act for answering the moot question. Section 2 of KHB

Act carries such definitions and the relevant among

them are extracted hereunder:-

“S.2 DEFINTIONS:- In this Act, unless the context otherwise requires.-

(a) “Board” means the Housing Board constituted under Section 3’

(f) “Competent Authority” means any person authorized by the State Government, by notification to perform the functions of the Competent Authority under Chapter VI for such area as may be specified in the notification;

(h) “Housing Scheme” means a housing scheme under this Act;

(i) “Land” includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth;

(i-1) “Land Development Scheme” means a scheme framed under this Act for the purpose of providing house sites in any Area;

(n) “Programme” means the annual housing programme and land development programme prepared by the Board under Section 19;

24. Chapter III (Sections 17 to 32A) provides for and

deals with housing schemes and land development 46

schemes. The relevant provisions for the purpose of

these cases are extracted infra:-

“17. Duty of Board to undertake housing schemes and land development schemes.- Subject to the provisions of this Act and subject to the control of the state Government, the Board may incur expenditure and undertake works in any area for the framing and execution of such housing schemes and land development schemes as it may consider necessary from time to time, or as may be entrusted to it by the State Government.

18. Matter to be provided for by housing schemes.- Notwithstanding anything contained in any other law for the time being in force, a housing scheme may provide for all or any of the following matters, namely.-

(a) the acquisition by purchase, exchange or otherwise of any property necessary for or affected by the execution of the scheme;

(b) the laying or relaying out of any land comprised in the scheme;

(c) the distribution or redistribution of sites belonging to owners of property comprised in the scheme;

(d) the closure or demolition of dwellings unfit for human habitation;

(e) the demolition of obstructive buildings or portions of buildings;

(f) the construction and reconstruction of buildings, their maintenance and preservation;

(g) the sale, letting or exchange of any property comprised in the scheme;

47 (h) the construction and alteration of streets and back lanes;

(i) provision for the draining, water-

supply and lighting of the area included in the scheme and carrying out by the Board in such area, drainage, sewerage and water supply works;

(j) the provision of parks, playing-fields and open spaces for the benefit of any area comprised in the scheme and the enlargement of existing parks, playing fields, open spaces and approaches;

(k) the provision of sanitary arrangements required for the area comprised in the scheme, including the conservation and prevention of any injury or contamination to rivers or other sources and means of water-supply;

(l) the provision of accommodation for any class of inhabitants;

(m) the advance of money for the purpose of the scheme;

(n) the provision of facilities for communication and transport;

(o) the collection of such information and statistics as may be necessary for the purposes of this Act;

(p) any other matter for which, in the opinion of the State Government, it is expedient to make provision with a view to provide housing accommodation and to the improvement or development of any area comprised in the scheme or the general efficiency of the scheme.

18-A. Matters to be provided for by Land Development Schemes.- Notwithstanding anything contained in any other law for the 48

time being in force, a land development scheme may within the limits of the area comprised in the scheme, provide for all or any of the following matters, namely:-

(a) the acquisition by purchase, exchange or otherwise, of any land which in the opinion of the Board will be necessary for or affected by the execution of scheme;

(b) laying or re-laying of all or any land comprised in the scheme and formation and alteration of streets;

(c) drainage, water supply and electricity and carrying out by the Board in the area included in the scheme, drainage sewerage and water supply works;

(d) the distribution or redistribution of sites comprised in the scheme;

(e) raising the level of any land which the Board may consider expedient to raise to facilitate better drainage;

(f) forming open space for the better ventilation of the area comprised in the scheme or any adjoining area;

(g) sanitary arrangements required;

(h) sites for Parks, Playgrounds, Stadium, recreation grounds, School buildings, Markets, Motor Vehicle Stands, Theaters, Police Stations, Post Offices, Co-operative Societies, Public Urinals and Latrines, Petrol Service Stations, Hospitals, Dispensaries, Banks, Burial and Cremation Grounds and Sites for public purposes of other kinds.

19. Preparation and submission of annual housing programme and land development 49

programme budget and establishment schedule.- (1) Before the first day of December in each year, the Board shall prepare and forward,-

(i) a programme,

(ii) a budget for the next year,

(iii) a schedule of the staff of Officers and servants already employed and to be employed during the next year;

To the State Government in such form as may be prescribed.

(2) The programme shall contain.-

(a) such particulars of housing schemes, land development schemes and labour housing schemes which the Board proposes to execute whether in part or whole during the next year as may be prescribed;

(b) the particulars of any undertaking which the Board proposes to organize or execute during the next year for the purpose of the production of building materials; and

(c) such other particulars as may be prescribed.

(3) The budget shall contain a statement showing the estimated receipts and expenditure on capital and revenue accounts for the next year.

20. Sanction to programme, budget and establishment schedule.- The State Government may sanction the programme, the budget and the schedule of the staff of Officers and servants forwarded to it with such modifications as it deems fit.

50

21. Publication of sanctioned programme.- The State Government shall publish the programme sanctioned by it under Section 20 in the official Gazette.

22. Supplementary programme and budget.- The Board may, at any time, during the year, in respect of which a programme has been sanctioned under Section 20 submit a supplementary programme and budget and the additional schedule of the staff, if any, to the State Government and the provisions of Sections 20 and 21 shall apply to such supplementary programme.

23. Variation of programme by Board after it is sanctioned.- The Board may, at any time, vary any programme or any part thereof included in the programme sanctioned by the State Government;

Provided that no such variation shall be made if it involves an expenditure in excess of twenty per cent of the amount as originally sanctioned for the execution of any housing scheme or land development scheme included in such programme or affects its scope or purpose.

24. Sanctioned housing schemes and land development schemes to be executed.—(1) After the programme has been sanctioned and published by the State Government under sections 20 and 21, the Board shall, subject to the provisions of Section 23, proceed to execute the housing scheme, land development scheme or labour housing scheme included in the programme.

(2) The Board shall not execute any housing scheme, land development scheme or labour housing scheme unless the same has been sanctioned by the State Government.

32. Schemes entrusted to Board by Government, etc.—(1) The provisions of 51 sections 18 to 24 (both inclusive) shall not be applicable to any housing scheme, land development scheme or labour housing scheme entrusted to the Board by the State Government except to such extent and subject to such modifications as may be specified in any general or special order made by the State Government, and every such order shall be published in the Official Gazette.

(2) Notwithstanding anything contained in this Act, the Board shall not be competent to carry on any trading or financing activity for profit, whether in the execution of any scheme undertaken by, or entrusted to it, or otherwise.”

25. A conjoint reading of the afore-extracted

provisions of KHB Act will unfold the duties of the KHB

as to undertake housing schemes and land development

schemes as it may consider necessary from time to time

or as may be entrusted to it by the State Government.

What are the matters to be provided for by housing

schemes and land development schemes are mentioned

respectively under Sections 18 and 18A. Going by

Section 2(n) ‘programme’ means the annual housing

programme and land development programme prepared by

KHB under Section 19. Section 19 mandates that before

the first day of December in each year, KHB shall 52

prepare and forward a programme, a budget for the next

year and a schedule of the staff of officers and

servants already employed and to be employed during the

next year, to the State Government. As per the said

section, the said programme shall contain such

particulars of the housing schemes, land development

schemes and labour housing schemes which it proposes to

execute whether in part or whole during the next year

as may be prescribed. Under Section 20 the State

Government may sanction the programme, the budget and

the schedule of the staff of officers and servants

forwarded to it with such modifications as it deems

fit. As per Section 21, the State Government shall

publish the programme sanctioned by it under Section 20

in the official Gazette. Section 22 permits submission

of supplementary programme and budget in respect of

which a programme and budget had been sanctioned under

Section 20 and in the eventuality of submission of such

a supplementary programme and budget the provisions of

Sections 20 and 21 would apply.

53

26. Section 23 confers power on the board to vary any

programme or any part thereof included in the programme

sanctioned by the State Government, at any time. The

bare perusal of the proviso thereunder would reveal

that it is not an unfettered power. Going by the

proviso, no such variation shall be made if it involves

an expenditure in excess of 20 per cent of the amount

as originally sanctioned for the execution of any

housing scheme or land development scheme included in

such programme or affects its scope or purpose. Thus a

bare perusal of the provisions under Sections 17 to 23,

contained in Chapter-III of the KBH Act, would reveal

that they deal with duties of KHB to undertake housing

schemes and land development schemes, matters to be

included in such schemes, preparation and submission of

annual housing programme and land development

programme, budget and establishment schedule and such

other procedures to be followed ultimately unto the

sanctioning of the programme and also the power of KHB

to make variance of sanctioned programme and its limit. 54

27. Going by the scheme of the KHB Act, it deals with

the subject of execution of housing schemes, land

development schemes and labour housing schemes under

Section 24. Bearing in mind the provisions under

Sections 18-23 we will consider the scope and purport

of Section 24 of the KHB Act. A careful scrutiny of

sub-Sections (1) and (2) of Section 24 would bring forth

their distinct differences. Section 24(1) prescribes

that after the programme has been sanctioned and

published by the State Government the board shall,

subject to the provisions of Section 23, proceed to

execute the housing scheme, land development scheme and

labour housing scheme included in the programme. Thus,

Section 24(1) states in unequivocal terms as to when

the KHB shall proceed to execute the housing schemes,

land development schemes and labour housing schemes

included in the programme. Indisputably, in terms of

the said statutory mandate KHB could proceed to execute

any of the aforesaid schemes included in the programme

only after the sanction and publication of the

programme wherein the scheme concerned is included. 55

28. Now, we will consider the question of executability

or otherwise of housing schemes, land development

schemes and labour housing schemes other than those

included in a programme, by the KHB. As noticed

earlier, the unambiguous terms in Section 24(1) would

reveal that it speaks only of such schemes included in a

programme and thereby make such ‘housing schemes, land

development schemes and labour housing schemes’ a

definite category. The further question is whether any

other category containing such schemes is contemplated

in the KHB Act and if so, when such scheme(s) would

become executable? The word ‘any’ that qualifies the

words ‘housing scheme, land development scheme and

labour housing scheme’ employed in sub-Section (2)

thereof in contradistinction to the words ‘included in

the programme’ employed under sub-Section, positively

indicates the executability of scheme(s) other than

those included in the sanctioned programme. Indeed it

is couched in a negative form, as can be seen from sub-

Section (2) thereof, extracted hereinbefore. As per the

said provision KHB shall not execute any housing

scheme, land development scheme or labour housing 56

scheme unless the same has been sanctioned by the State

Government.

29. As noted earlier, what sub-Section (2) proscribes

is execution of such a scheme, be it a housing scheme

or land development scheme or labour housing scheme,

evidently not included in the programme for any

particular year unless the same has been sanctioned by

the State Government. Pithily put, the schemes falling

under sub-Sections (1) and (2) are different. If they

are one and the same in view of the positive mandate

under sub-Section (1) of Section 24 with respect to the

time of executability of such schemes included in the

programme, viz., only after their sanction and

publication by the State Government, there was

absolutely no necessity for incorporating sub-Section

(2) under Section 24 in the negative form. Certainly,

the legislative intention under sub-Section (2) can be

taken only as one to enable KHB to undertake such

schemes which were not included in the programme, as

exception, but subject to the condition of obtainment

of sanction of the State Government before execution. 57

In short, as a whole, the purport of Section 24 is that

no housing scheme or land development scheme or labour

housing scheme, undertaken by the KHB shall be executed

sans sanction from the State Government. Sub-Section

(2) of Section 24 cannot be interpreted as one requiring

obtainment of a second sanction for executing such

schemes included in the programme. On the contrary,

the provision under Section 24(2) has to be interpreted

as one enabling KHB to undertake such schemes which

were not included in the programme, but became

necessary to undertake, subject to sanction from the

Government. According to us, such a construction will

only sub-serve the purpose of constitution of KHB.

30. There can be no doubt that for executing a housing

scheme, land development scheme and labour housing

scheme, be it included or not included in the programme,

necessary extent of land has to be acquired. For,

without the required extent of land, construction of

houses under housing and labour housing schemes or

development of land under land development schemes

could not be effected. It is a fact that, the expression 58

‘execution’ is not defined in the KHB Act. Therefore,

the question is how the expressions ‘execute/execution’

employed in sub-Sections (1) and (2) of Section 24 and

Section 33(2) are to be understood. In that regard

bearing in mind the object and purpose of Constitution

of KHB and its duties the dictionary meaning of the

said expression has to be looked into. Accordingly,

the following meanings given for the word ‘execution’

in the Black’s Law Dictionary, Tenth Edition, are

ascribable to the expressions ‘execution’ or ‘execute’

employed in Sections 24(2) and 33(2) of the KHB Act:

(1) To perform or complete (a contract or duty);

(2) The performance or completion of a thing;

(3) The final process of an action.

31. Chapter-IV of the KHB Act deals with the

acquisition and disposal of land. Section 33 reads

thus:-

“S.33. Power to purchase or lease by agreement.- (1) The Board may enter into an agreement with any person for the acquisition form him by purchase, lease or 59

exchange, or any land which is needed for the purposes of a housing scheme or land development scheme or any interest in such land or for compensating the owners of any such right in respect of any deprivation thereof or interference therewith:

Provided that the previous approval of the State Government shall be obtained in case of purchase or exchange involving land worth more than rupees ten lakhs or lease for more than five years.

(2) The Board may also take steps for the compulsory acquisition of any land or any interest therein required for the execution of a housing scheme or land development scheme in the manner provided in the Land Acquisition Act, 1894, as modified by this Act and the acquisition of any land or any interest therein for the purposes of this Act shall be deemed to be acquisition for a public purpose within the meaning of the Land Acquisition Act,1894,"

Section 33 was subsequently substituted in the year

2016 as per Act 24 of 2016. Taking into account the

fact that the substitution took place subsequent to the

notifications impugned in these proceedings it is

unnecessary for us to look into the said substituted

provision. In fact, no serious argument was advanced by

any one with reference to the said provision. 60

32. Section 33 in Chapter-IV actually deals with the

power of KHB to acquire land. Sub-sections (1) and (2)

thereof envisage different modes of acquisition which

are different in nature. To put it succinctly, in the

matter of acquisition under Section 33(1), ‘consent’ is

required and in respect of unwilling owners acquisition

may be effected under sub-Section (2) thereof. What is

relevant to be noted is that Section 33 deals with

acquisition of land or interest thereon and it is not

dealing with sanction of the schemes. Obviously, for

acquiring land or interest thereon, upon entering into

an agreement with any person, by following anyone of

the three modes prescribed under Section 33(1) prior

approval of the State Government is mandatory, subject

to its proviso.

33. Under sub-section (1) of Section 33, the KHB may

enter into agreement with any person for the

acquisition from him by purchase, lease or exchange of

any land which is needed for the purposes of housing

scheme or land development scheme or any interest in

such land or for compensating the owners of any such

right in respect of any deprivation thereof or 61

interference therewith. The proviso to sub-section (1)

makes it mandatory to obtain previous approval of the

State Government in case of purchase or exchange,

involving land worth more than Rs.10 lakhs. For lease

such previous approval is mandatory if it is for more

than 5 years. The necessary corollary is that even in

respect of acquisition of land needed for the purposes

of such schemes either by purchase, lease or exchange

previous approval of the State Government need not be

obtained in case purchase or exchange, involved land

worth Rs.10 lakhs or less and in the case of lease if

it is for 5 years or lesser period.

34. Sub-section (2) of Section 33 permits KHB to take

steps for compulsory acquisition of any land or any

interest therein required for the execution of a

housing scheme or land development scheme.

35. In the case of compulsory acquisition of land

required for the execution of a housing scheme or land

development scheme obtainment of no such prior approval

is prescribed under sub-Section (2) thereof. The reason

is obvious. A perusal of the sub-Section (2) would 62

reveal that what is permissible thereunder is

compulsory acquisition of any land or interest thereon

in the manner provided in the L.A. Act as modified by

the KHB Act. Section 4(1) of the L.A. Act is worthy for

reference in this context and it reads thus:-

“S.4 Publication of preliminary notification and power of officers thereupon.- (1) Whenever it appears to the

[appropriate Government] the land in any locality [is needed or] is likely to be needed for any public purpose [or for a company], a notification to that effect shall be published in the Official Gazette [and in two daily newspapers circulating in that locality of which at least one shall be in the regional language], and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [(the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)].”

36. But then, Section 4 (1) in its application to the

State of Karnataka reads as hereunder:-

In Section 4 of the principal Act,-

(1) In sub-section (1),-

63 (a) after the words “the appropriate Government”, the words “or the Deputy Commissioner” shall be inserted;

(b) for the words “notification to that effect”, the words “notification stating the purpose for which the land is needed, or likely to be needed, and describing the land by its survey number, if any, and also by its boundaries and its approximate area” shall be substituted;

(c) after the words “the said locality”, the following sentence and explanation shall be added, namely,-

“the Deputy Commissioner may also cause a copy of such notification to be served on the owner, or where the owner is not the occupier, of the land.” Explanation. - The expression “convenient places” includes, in the case of land situated in a village, the office of the Panchayat within whose jurisdiction the land lies.

This State amendment was brought vide Land

Acquisition (Mysore Extension and Amendment Act) Act 17

of 1961. We have already noted that the Government of

Karnataka as per Annexure-‘A’ Notification dated

15.12.1998 (marked thus in the appeal arising from SLP 64

(C)No.1361 of 2021), which was issued under Clause

(c)of Section 3 of the L.A. Act, appointed the Housing

Commissioner of KHB to perform the functions of Deputy

Commissioner under Section 4 of the L.A. Act in respect

of lands to be acquired for the purpose of KHB in

Bengaluru and Mysore Revenue Divisions. In such

circumstances, no error or defect can be attributed

against his issuing preliminary notification under

Section 4(1) of the L.A. Act.

37. A bare perusal of L.A. Act would reveal that the

acquisition proceedings begin with issuance of a

notification under Section 4(1) thereof that land in

any locality is needed or is likely to be needed for

any public purpose. The Notification under Section

4(1) is a formal expression of the decision to start

acquisition proceedings for a public purpose. The said

notification takes the concrete shape and form by

publication in the official Gazette of the appropriate

Government, when that be mandatory procedures and when

they are strictly complied with it would be without

rhyme or reason to prescribe obtainment of a further

approval of the Government for such compulsory 65

acquisition by KHB. It is also to be noted that in the

cases on hand subsequently, Government had issued

declaration and final Notification as prescribed under

Section 6 of the L.A. Act.

38. As noted earlier in L. Krishnan’s case a three-

Judge Bench of this Court clearly found that there is

nothing in Section 4(1) of the L.A. Act which insists

for availability/existence of a sanctioned and

published scheme for initiation of land acquisition

under L.A. Act. In paragraph 9 of L. Krishnan’s

decision this Court held and observed thus:

“Section 4 of the Land Acquisition Act does not state expressly or by necessary intendment that before a Notification is issued/published thereunder proposing to acquire land for the purposes of a body like the Tamil Nadu Housing Board, a duly published final scheme prepared in accordance with the relevant Act should be in force. The respondents/writ petitioners, however, seek to deduce such a requirement from the provisions of the TNHB Act.”

In view of the provisions under Section 4 of the

L.A. Act and the decision in L. Krishnan’s case as 66

extracted above, it cannot be said that for initiation

of land acquisition proceedings under Section 4(1) of

the L.A. Act proposing to acquire any particular land

for the purpose of KHB a duly published final scheme

prepared in accordance with the provisions of KHB Act

should be in force. Despite the said position obtained

from Section 4 of the L.A. Act and the decision in L.

Krishnan’s case the attempt herein is to deduce such a

mandate from the provisions under the KHB Act. The

scanning of Section 33(2) of the KHB Act, as above would

clearly show that it contains no condition, either

expressly or by necessary implication, that before a

Notification under Section 4(1) of the L.A. Act is

issued proposing to acquire land or interest therein,

for the purpose of KHB, a sanctioned and published

housing scheme/land development scheme/labour housing

scheme should be in force. In the said circumstances,

the said contention cannot be sustained.

39. Unlike the provisions under TNHB Act, which mandate

for acquisition of land for the purpose of TNHB Act and

Tamil Nadu Housing Board only in accordance with the

provisions of L.A. Act, Section 33(2) of the KHB Act 67

empowers the KHB to take steps for compulsory

acquisition of any land or any interest therein,

required for the execution of a housing scheme in the

manner provided in the L.A. Act, as modified by KHB

Act.

40. Therefore, the next question is whether L.A.

Act stands modified in any manner by the KHB Act in

respect any particular aspect or procedure. A bare

perusal of sub-Section (2) of Section 33 itself would

answer this question. Its latter limb contains ‘a

deeming provision’. Certainly, that is attracted only

on establishing the foundational fact that the

acquisition of land or interest therein is for the

purposes of KHB Act. The said provision, extracted

hereinbefore, would go to show that upon establishing

the same the acquisition of land concerned or interest

therein, as the case may be, shall have to be deemed as

an acquisition for the purpose within the meaning of

L.A. Act, viz., Section 3(f) of the L.A. Act that

defines “public purpose”. Therefore, in terms of the

same L.A. Act stands modified by KHB Act to the extent

mentioned above. Hence, it would be suffice if the 68

Notification specifies that the acquisition is for the

purpose of KHB. It is a fact that in the TNHB Act no

provision pari materia to Section 33(2) of the KHB Act

enabling the Housing Board to take steps for compulsory

acquisition for the purposes of the Act/the Board as

also a deeming provision relating ‘public purpose’, as

mentioned hereinbefore, is available.

41. Another allied question arises for consideration

is whether non-particularisation with sufficient

specificity of the land to be acquired can be a reason

for annulling acquisition proceedings initiated under

the L.A. Act as modified by KHB Act for the purpose of

KHB Act. The contention raised is to the effect that

owing to such vagueness in the Notification the

holders/land owners would be deprived of the

opportunity to file an effective objection under

Section 5A of the L.A. Act. In that context, it is

worthy to refer to the Constitution Bench decision of

this Court in Aflatoon’s case (supra). That was a case

where the question was whether before publishing the

Notification under Section 4 of the L.A. Act the

Government had not declared any area in Delhi as a 69

development area under Section 12(1) of the Delhi

Development Act nor was there a Master Plan drawn up in

accordance with Section 7 of the Act. On that basis

Notification under Section 4 was attacked. The

contention that no development of land could be

undertaken or carried out in such circumstances in

terms of Section 12(3) of the said Act was negatived by

the Constitution Bench. In the said case, it was held

that the wording of Section 5A of the L.A. Act would

make it clear that all that is necessary to be specified

in a Notification under Section 4 is that the land is

needed for a public purpose. It is true that the

specific purpose is also to be mentioned. In L.

Krishnan’s case the decision in Aflatoon was referred

to. It was held that whether a particular Notification

is vague or not is a question of fact to be decided in

the facts and circumstances of each case. In the cases

falling under the provisions of KHB Act mentioning of

the fact that the acquisition is required for the

purposes of the KHB would make it one for public purpose

within the meaning of L.A. Act and a further mentioning

of the locality in which acquisition would be effected, 70

would save it from the attack based on Section 5A. At

the stage of Section 4 Notification to enable persons

interested to file objection, especially in the light

of the provisions under Section 33(2) carrying the

aforesaid deeming provision, a mention on the aforesaid

lines would be sufficient. As already noted that in

the appeal arising from SLP(C)No.1361/2021, the

deceased mother of Respondent Nos.2 and 3 had filed

objections under Section 5A. It is also relevant to

note that the High Court had also noted the fact that

in some of the cases acquisition based on the selfsame

Notification were effected and awards were also passed.

42. We have already noted the provisions under Section

24 of the KHB Act and held that Section 24(1) speaks of

the question as to when KHB could proceed to execute

the housing schemes, land development schemes and

labour housing schemes included in the programme. That

apart, we have also held that Section 24(2) pertains to

executability of such a scheme not included in the

programme and in respect of such a scheme falling within 71

the sweep of Section 24(2) the mandate thereunder is

that it shall not be executed unless the same has been

sanctioned by the State Government. In such

circumstances, a conjoint reading of Section 33(2) and

Section 24(2), of the KHB Act would make it clear that

prior approval or sanction of any scheme is not required

for compulsory acquisition invoking the power under

Section 33(2). This is because in terms of the State

amendment of Section 4(1), notification marking

initiation of acquisition proceedings under L.A. Act,

is issued by the appropriate Government or by the Deputy

Commissioner and thereafter, the said formal expression

of the decision to start acquisition proceedings gets

into concrete shape and form by publication in the

Official Gazette of Government of Karnataka. In such

circumstances, if it is for the purposes of KHB, in

other words, for implementation of a scheme of the KHB,

what is statutorily required is to wait for its

execution till the same is sanctioned by the State

Government. In other words, the mere factum of non-

existence of a sanctioned and published scheme prior to

the initiation of acquisition proceedings, by itself, 72

will not make the notifications and the initiated

acquisition proceedings null and void.

43. One another aspect also requires reference in the

context of the rival contentions and situation. The

scheme of the Act reveals that KHB has also a duty to

undertake the schemes entrusted to it by the State

Government. Section 32(1) of the KHB Act exclusively

make it clear that in respect of scheme entrusted to

KHB by Government, provisions under Sections 18-24

(both inclusive) shall not be applicable, except to

such an extent and subject to such modifications as may

be specified in general or special order made by the

State Government. It is also to be noted that in

respect of housing schemes, land development schemes or

labour housing schemes entrusted to the Board by the

Government, sometimes such entrustment takes place only

after acquisition of the necessary extent of land by

the State Government. All the above mentioned

provisions and situations would reveal that the

contention of the appellants other than the appellants 73

in the appeal arising from SLP(C)No.1361/2021 and

Respondent Nos.2 and 3 therein that existence of a

finally sanctioned scheme is a pre-condition for

initiation of acquisition of any land or any interest

therein is a pre-condition and its non-existence must

invariably make the acquisition proceedings null and

void, are unsustainable and liable to be rejected.

Hence, on a careful perusal of Sections 18 to 24 (both

inclusive) and Section 33(2) we have no hesitation to

hold that KHB Act carry no statutory insistence that

for initiation of acquisition invoking the power under

Section 33(2), for the purposes of the KHB Act/KHB,

framing, finalization and publication of a housing

scheme or land development scheme or labour housing

scheme, is a pre-condition.

44. For all the above reasons we answer the mooted

question in the negative and to the effect that

initiation of proceedings for acquisition invoking the

power under Section 33(2) of the KHB Act without the

housing scheme being in existence or the housing scheme

not having been sanctioned under Section 24(2) thereof, 74

would not render such proceedings null and void. We

also hold that unless sanction is obtained from the

State Government for execution of any scheme therein,

in terms of Section 24(2) of KHB Act, the actual act to

complete the process, viz., execution shall not be

effected thereon.

45. In view of the answers to the moot question and the

other allied issues we pass the following orders:

(i) In the appeal arising from SLP(C) No.1361/2021

no question other than the moot question (decided as

per this judgment) was considered. In view of our clear

conclusions and findings the judgment and order dated

01.12.2020 in Writ Appeal No.5712/2012, where the law

on the question was exposited to the contrary, is liable

to be set aside. Accordingly, it is set aside. Nothing

further survives for consideration in this appeal.

Consequently, Writ Petition No.25184/2011 from which

Writ Appeal No.5712/2012 arose, stands dismissed.

(ii) In Civil Appeal Nos.7011-13/2013, 9002-

9003/2013 and 7017-19/2013 the position is that as per 75

the common judgment and orders respectively in Writ

Petition Nos.4625/2004, 18596/2006, 11568/2008 and

47616/2004 dated 26.4.2013 and also the judgment in

Writ Appeal Nos.1244-45/2009, the Division Bench

virtually decided that for initiation of acquisition

proceedings for the purposes of KHB, existence of a

sanctioned and published scheme is not a pre-condition.

Consequently, the Division Bench confirmed the decision

of the leaned Single Judge on that question and

thereupon, the Writ Petitions concerned/Writ Appeals

were disposed of with request to the learned Single

Judge to decide whether Sections 18-23 of the KHB Act

were complied with or not. Obviously, those Writ

Petitions are now pending. The issue is whether in view

of the facts involved in those cases, the question of

scrupulous adherence of Sections 18-23 of the KHB Act

survives or needs to be followed, requires

consideration depending upon the nature of acquisition

and other relevant facts. Hence, Civil Appeals shall

be listed before appropriate Bench for consideration on

their own merits, subject to this judgment. 76

....................,J.

(A.M. KHANWILKAR)

....................,J.

(DINESH MAHESHWARI)

....................,J.

(C.T. RAVIKUMAR) NEW DELHI;

28 July, 2022