Shri Krishna Reddy vs The State of Karnataka, Department of Housing and Urban Department, The Karnataka Housing Board and The Special Land Acquisition Officer, Karnataka Housing Board

Anand Byrareddy, J.—This Bench by order dated 22/9/2012 had opined that in view of the question, whether the petition would have to be allowed on the basis of the view taken by a learned Single Judge that, if there was no Scheme approved by the State Government preceding the acquisition proceedings, the same would have to be held to be invalid, having been questioned before a Division Bench, the matter was directed to be placed along with the pending appeals. The Division Bench, however, has remanded the matter to be listed before this Bench again. In the meanwhile, a view has been taken by this Bench in W.P. 21156/2012 and connected matters, holding as follows:

In the light of the above contentions, the points that arise for consideration in these petitions are:

i. xxxxxxx

ii. Whether the acquisition of land for the purposes of execution of housing Schemes under the KHB Act require a Scheme to be framed and sanctioned before the commencement of the acquisition proceedings, under the provisions of the LA Act and in the absence of such a Scheme, the proceedings are vitiated.

iii. xxxxxxxx

xxxx

In so far as the second point for consideration is concerned, it is to be noticed that the provision of land for carrying out a housing Scheme by such a body as the KHB is a public purpose. And in defining the expression "public purpose" u/s 3(f) of the LA Act, clause (vi) provides thus:-

(vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government, or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government by a local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for it is time being in force in a State or a cooperative society within the meaning of any law relating to co-operative societies for the time being in force in any State;

That Sub-section (4) of Section 3 of the KHB Act lays down thus:

(4) For the purpose of this Act and the Land Acquisition Act, 1894, the Board shall be deemed to be a Local Authority.

Therefore, the provision of land for a local authority can only be in respect of a Scheme duly approved by the Government. Therefore, there is no escaping the requirement of the existence of a Scheme duly approved by the government prior to the initiation of the acquisition proceedings.

It is also necessary to notice Section 32 of the KHB Act:

Schemes entrusted to Board by Government, etc.- (1) The provisions of Sections 18 to 24 (both inclusive) shall not be applicable to any [housing scheme, land development scheme or a 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.

The present Scheme is not one entrusted to the KHB by the State Government. As a result of that circumstance, Sub-section (2) of Section 33 of the KHB Act would be applicable. The said provision is reproduced hereunder for ready reference.

S. 33......................

(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.

Therefore, de hors the express/requirement of a Scheme to be framed and approved by the State government, prior to the stage of execution of the project by KHB, as contemplated under the provisions of the KHB Act, as the compulsory acquisition of land for the execution of the Scheme, is in the manner provided under the LA Act, and KHB, as a local authority, can only acquire land pursuant to a Scheme duly approved by the State Government, as contemplated u/s 3(f)(vi) of the LA Act.

It should be accepted that the KHB intending to execute a Housing Scheme of its own, and not one sponsored by the Government, can proceed to acquire land for the execution of the project only in terms of the provisions of the LA Act; And as a local authority, is capable of acquiring land only in accordance with a Scheme duly approved by the State Government.

Admittedly, there is no Scheme, or any thing akin to a Scheme, duly approved by the State Government, that is placed on record to demonstrate that there was compliance with this compulsory requirement.

Hence this point would have to be answered in the affirmative.

In this petition, there is no serious dispute that there was no Scheme framed by the Housing Board nor approved by the State Government and in that view of the matter, the petition is allowed. The impugned notifications are quashed.