K.N. Keshavanarayana, J.
1. This appeal filed under Section 4 of the Karnataka High Court Act is directed against the order dated 01.04.2008 passed by the learned Single Judge of this Court in WP No. 17894/2007 dismissing the said Writ Petition. The appellants filed the said Writ Petition seeking a writ of certiorari quashing the preliminary notification dated 17.04.2003 (Annexure-A) issued under Section 4(1) of the Land Acquisition Act (for short, the 'Act') and the final notification dated 21.06.2007 (Annexure-G) issued under Section 6(1) of the Act in respect of 37 guntas in land bearing Sy. No. 8/2 of the Mallikapura Village in Sira Taluk, Tumkur District.
2. The 1st appellant is the husband of the 2nd appellant and father of Appellants - 3 to 5. According to the appellants, the land in question is their joint family property. The Deputy Commissioner, Tumkur District, issued a notification dated 17.04.2003 under Section 4(1) of the Act proposing to acquire the land bearing Sy. No. 8/12 to an extent of 1 acre, as per Annexure-A. However, since in the said notification: (Annexure-A) the purpose for which the land was sought to be acquired had not been mentioned and since the name of the village had been wrongly shown as Kallukote, a Corrigendum dated 09.07.2003 was issued stating that the land in question was required for public purpose, viz., for the burial ground. The village name was also correctly mentioned as Mallikapura. To the said notification, the appellants filed their objections interalia contending that the 'and bearing Sy. No. 8/2 totally measuring 3 acres 4 guntas is the only land available to their family and they are solely dependent on the income derived from that land, therefore, if the land in question is acquired, they will be put to great hardship. They also contended that the proposed acquisition is not bona fide, but it is at the instance of persons who are inimically disposed towards them. They also contended that there are several Government lands nearby the land in question and that the land in question is wet land, therefore, in the light of the Government Circular dated 28.05.2002 (Annexure-N), the land in question cannot be acquired. Therefore, they sought for dropping the proceedings for acquisition. The Assistant Commissioner, who held enquiry under Section 5-A of the Act submitted his report dated 22.01.2004 (Annexure-D) rejecting the objections of the appellants and recommended for acquisition of the land in question. Pursuant to the said report, the final notification dated 21.06.2007 (Annexure-G) came to be issued under Section 6(1) of the Act. Thereafter, the appellants questioned the validity of these notifications by filing the instant writ petition.
3. Respondent No. 7, the Chief Officer, Sira Town Municipality, filed objections to the writ petition. The other Respondents did not file any objections. The 7th respondent in his objection denied all the petition averments and sought for dismissal of the petition. During the course of arguments before the learned Single Judge, mainly the following three contentions were urged on behalf of the appellants:
i) As there are several other Government lands in the vicinity of the acquired land, which are readily available, the same should have been used for the purpose of burial ground in terms of the Government Circular (Annexure-N) and this fact has not been considered by the Assistant Commissioner during enquiry under Section 5-A of the Act.
ii) The land in question being a wet land, it could not have been acquired for the purpose of burial ground as it is opposed to the guidelines contained in the Government Circular (Annexure-N).
iii) The acquired land is in the middle of the Village Mallikapura, therefore, it is not advisable to use it as the burial ground.
4. The learned Single Judge rejected all the three contentions urged by the appellants holding that the land in question, is a dry land and not a wet land, therefore, there is no bar for acquiring the said land for burial ground in terms of the Government Circular (Annexure-N). The learned Single Judge also held that since the authorities on due application of mind have come to the conclusion that the land in question is suitable for being used as burial ground, the Court's interference is not warranted. Placing reliance on the judgement of the Apex Court in : 1996 SC 3169 [Subhashgir Kushalgir Gosavi and Ors. v. Special Land Acquisition Officer and Ors.), the learned Single Judge held that which place has to be used as burial ground falls within the province of the executive and that the Court's interference is not warranted in that regard. The learned Single Judge has also observed that if the Government lands are available in the adjoining villages, the same may not be feasible as contended by the learned Counsel for the respondents for being used as the burial ground by the people of Mallikapura Village, as the dead body of a resident of one village would not be permitted to be transported into the other village for the purpose of burial or cremation. In this view of the matter, the learned Single Judge dismissed the writ petition. Aggrieved by the order of the learned Single Judge the appellants have presented this appeal.
5. Upon service of the notice of appeal, the respondents have appeared through their learned Counsel. We have heard Sri. M.S. Rajendra Prasad, learned Senior Counsel appearing for the appellants and Sri. Raju, learned Counsel appearing for the 7th respondent and the learned Government Pleader appearing for Respondents No. 1 to 6.
6. Sri. M.S. Rajendra Prasad, learned Senior Counsel appearing for the appellants reiterating the contentions which were urged before the learned Single Judge and by drawing our attention co the RTC extracts produced at Annexures- Pi to P7 contended that several Government Lands are available in Mallikapura Village itself close to the land in question and that the learned Single Judge has not considered Annexures- P1 to P7 in its proper perspective. He further contended that the perusal of the report of the Assistant Commissioner under Section 5-A of the Act indicates that the Assistant Commissioner has not at all considered the objection of the appellants that there are several Government lands in the vicinity of the acquired land, therefore, the final notification issued pursuant to the report under Section 5-A of the Act is bad in law. He further contended that even in the statement of objections filed by the 7th respondent to the writ petition, there is no whisper about the non-availability of the Government land in the vicinity of the land in question and this fact has not been considered by the learned Single Judge. He also brought to our notice that though the Preliminary Notification issued under Section 4(1) was dated 1.7.04.2003 and the corrigendum was dated 09.07.2003, the final notification was issued on 21.06.2007 and published in the Gazette on 05.07.2007, as such, the final notification issued is not in accordance with the provisions of Section 6(1)(ii) of the Act and this aspect has not been considered by the learned Single Judge.
7. On the other hand, the learned Government Advocate as well as the learned Counsel appearing for Respondent No. 7 sought to support the order of the learned Single Judge by contending that there is no ground to interfere with the order of the learned Single Judge. It was pointed out that the concerned Tahsildar has filed an affidavit in this appeal, wherein he has stated that the lands mentioned in Annexures- P1 to P7 are not available and it cannot be used for burial ground. They also contended that the appellants have not placed any evidence to show that the land in question is a wet land. Therefore, they contended that the appeal has no merit and it is liable to be dismissed.
8. We have carefully considered the submissions made on both sides. There is no dispute that the land bearing Sy. No. 8/2 is owned by the appellants and a portion of the said land to an extent of 32 guntas is acquired under the impugned notifications for the purpose of burial ground. As could be seen from the report of the Assistant Commissioner, under Section 5-A of the Act, the appellants contended that there are other Government lands within the vicinity of the land in question, which could be conveniently used for burial ground. They had also drawn the attention of the Assistant Commissioner to the Government Circular (Annexure-N) stating that the guidelines set-out therein have to be kept in mind by the Acquiring Authorities before they propose for acquisition of lands for burial ground. As per this Circular, if the Government lands are available in the village or nearby within the vicinity of about 1 to 2 Kms, only such Government Lands should be proposed for the purpose of burial ground. The next guideline contained in Government Circular (Annexure-N) is that, if no such Government land is available, then, only dry lands should be proposed for acquisition for the purpose of burial ground and no wet or garden land should be selected for the said purpose.
9. As could be seen from Annexure-D, the report submitted by the Assistant Commissioner, though the Commissioner refers to the objections of the appellants about the availability of the Government lands within the vicinity of the land in question, the Assistant Commissioner has not considered the said objections. It is not indicated in the report as to whether those lands, the details of which have been stated in the objections filed by the appellants, are really available or not, if available, why it cannot be used for the purpose of burial ground. Thus, the report submitted by the Assistant Commissioner under Section 5-A of the Act is not in conformity with the guidelines laid down in Annexure-N. In spite of the same, accepting the report of .the Assistant Commissioner, the final notification has been issued. Though this contention was reiterated before the learned Single Judge, the said contention has been rejected only by observing that though the Government lands are available in the adjoining villages, as contended by the learned Counsel for the respondents, the same can not be used for the purpose of burial ground by the people of Mallikapura Village, since the dead body of a resident of one village would not be permitted to be transported into another village for the purpose of burial or cremation.
10. In our considered view, the learned Single Judge has not at all considered Annexures- P1 to P7 before making the said observations. Annexure-P1 is PIT; extract in respect of Sy. No. 25 of Mallikapura Village, the total extent of which is 18 acres and 12 guntas. In Column, this land is described as gomal land. Annexure-P2 is an RTC extract in respect of Sy. No. 9 of Mallikapura Village, the total extent of which is 17 acres 30 guntas inclusive of phut Kharb of 7 acres 32 guntas and in Column-9, it is described as Phada. Anexure-P3 is an RTC extract in respect of Sy. No. 3 of Mallikapura Village measuring 4 acres 8 guntas and in Column No. 9, it is described as Kharab. Of course Annexures-P4, P5 and P6 relates to Sy. No. 47 of Kallukote Village. Annexure-P7 is the RTC extract in respect of Sy. No. 28 of Mallikapura Village measuring 1 acre 8 guntas and in column-9 it is described as 'Gomal'. Thus, except Sy. No. 47 of Kallukote Village, the other lands, which according to the appellants are Government lands are of Mallikapura Village only. It is not explained as to why these Government lands situated in Mallikapura Village are not suitable for being used as burial ground. The non-consideration of Annexures - P1 to P3 and P7 in its proper perspective has resulted in the learned Single Judge observing that the lands available are in the adjoining village. It is pertinent to note that in the statement of objections filed before the learned Single Judge, Respondent No. 7 has not disputed the existence of the Government land as shown in Annexures-P1 to P3 and P7. However, in Para-12 of the objection, it is stated that the lands shown in Annexures-P1 to P7 have already been acquired by the State Government for the purpose of putting up quarters of the Police Department, Fisheries Department etc., therefore, those lands are not available. This statement is contrary to the contents of Anexures-P1 to P3 and P7. It is only land bearing Sy. No. 47 of Kallukote village shown in Annexures- P4 to P6 has been utilised for the purpose of putting up Court building, quarters etc. The lands shown in Annexures: P1 to P3 and P7 attached to Mallikapura Village, as could be seen from these extracts, have not been utilised for any other purpose, therefore, those lands are still lying either as Gomal, Phada or Government Kharab. The respondents having not disputed the correctness of the contents of Annexures-P1, to P3 and P7, before the learned Single Judge there was no dispute about the availability of the Government lands as shown in Annexures-P1 to P3 and P7, which are attached to Mallikapura Village. As per the Government Circular (Annexure-N), ever: if the Government land is at a distance of 1 to 2 Kms. from the village, only such Government land should be reserved for burial ground and not private lands. Nowhere in the statement of objections, Respondent No. 7 has stated that the lands shown in Anneuxres-P1 to P3 and P7 are at a distance of more than 2 Kms. from the village. In the report filed under Section 5-A of the Act, there is no reference as to the distance of the Government land available from the village. Therefore, in our considered opinion, the learned Single Judge is not right in rejecting the contention that the acquisition of the land in question is contrary to the Government Circular (Annexure-N). As large extent of Government lands are available in the vicinity of the acquired land and since there is no explanation whatsoever to the effect that those Government lands cannot be used as burial ground on account of lands having been located at a distance of more than 2 Kms. from the village. We are of the opinion that, the acquisition of land in question is contrary to the guidelines contained in Annexure-N. An additional affidavit is filed in this appeal by the Tahsildar stating that Sy. Mo. 3 of Mallikapura Village is attached to Sira City situated just behind Maruthi Nagar extention measuring 4 acres 8 guntas and the entire land is encroached and it is full of huts and houses since 20 years, as such, no vacant land is available. Except this statement in the affidavit filed, no material is produced on record to show that the land bearing Sy. No. 3 of Mallikapura Village is not available and that the entire land is occupied by huts and houses. The RTC extracts produced at Annexure-P3 for the year 2006-07 do not indicate the presence of any huts or houses in the said land. Similarly, in this affidavit it is stated that Sy. No. 9 of Mallikapura Village measuring 17 acres 30 guntas including Kharab of 7 acres 32 guntas is phada in which Mallik Rehan Darga exists and it is a National Monument and is monitored by National Architect Department. Once again, in this regard also no material is produced before us to show that in this land a National Monument is located and it is maintained and monitored by National Architect Department. Annexure-P2, the RTC extract in respect of Sy. No. 9 of Mallikapura Village for the year 2006-07 does not support this contention. There is no mention in the RTC about the existence of National Monument. It is simply stated in Column-9 that it is a Phada. It is further stated in the affidavit that Sy. No. 28 of Mallikapura Village measuring 1 acre 8 guntas consists of road, cavages, stones and rocks, as such, it is not fit for burial ground and it is also at a distance of 4 to 5 Kms. from Sira City. According to this affidavit, Sy. No. 25 of Mallikapura Village measuring 18 acres 25 guntas is reserved for the tank bed as per the orders of the Deputy Commissioner dated 18.01.1947. However, the RTC (Aimexure-P1) in respect of Sy. No. 25 does not indicate that it is reserved for Tajik Bed as stated in this affidavit. Similarly, nothing is produced to show that the land bearing Sy. No. 28 of Mallikapura Village is at a distance of 4 to 5 Kms. from Sira City. What is relevant to be considered is not the distance from Sira City but the distance from Mallikapura Village. The affidavit does not disclose as to what is the distance between Sy. No. 28 of Mallikapura Village from the Village of Mallikapura. Thus, the affidavit filed by the Tahsildar in this appeal would indicate that the lands shown in Annexures-P1 to P3 and P7 are Government lands. However, the statement made in this affidavit that they are not available for being used as burial ground has not been substantiated. Therefore, the irresistible conclusion that should be drawn from the aforesaid discussion is that there are several Government lands available within a distance of 1 to 2 Kms. from Mallikapura Village and in spite of the same, the authorities have proceeded to acquire the private land in violation of the Government Circular (Annexure N). In our considered opinion, the learned Single Judge has completely overlooked these facts and this has resulted in rejection of the contentions raised by the appellant. In view of the above discussions, the contentions urged by the appellants deserve to be accepted.
11. No doubt, the appellants' contention that the land in question is wet land is not substantiated by any alimentary evidence. Therefore, there is no substance to the said contention. Similarly, the other contention that the not advisable to use it as burial ground is also not substantiated. Nevertheless, to view of the fact that the Government lands are available within the vicinity of 1 to 2 Kms. from the village, in terms of the Government Circular (Annexure-N), the land in question should not have been acquired for the purpose of burial ground. Therefore, the acquisition of the land in question for burial ground is illegal and cannot be sustained.
12. In addition to the above infirmities, it is also noticed that the final notification issued under Section 6(1) is beyond the period of one year from the date of the publication of preliminary notification under Section 4(1), as such, final notification is bad in law in view of the provisions of Section 6(3)(ii) of the Act.
13. Learned Counsel for Respondent No. 7 contended that the possession of the land in question has already been taken and it is being used as burial ground, therefore, at this stage, the acquisition should not be interfered with. We fail to appreciate this submission for the simple reason that even to this date, admittedly, no award under Section 11 of the Act has been passed, as such, the possession of the land could not have been taken as sought to be contended by the respondents. It is not the contention of the Respondents that the special powers under Section 17 has been invoked for taking possession before passing of the award. Before invoking special power under Section 17, conditions stated under Sub-sections (1) & (2) of Section 17 are required to be satisfied. Reading of the provisions of Section 17 makes it clear that special powers under the said Section cannot be invoked in respect of the acquisition of land for burial ground. Therefore, it is not open to the respondents to contend that possession of the land has been taken by invoking special powers and the land is being used as burial ground. Therefore the said contention is rejected. According to the statement of objections filed by Respondent No. 7, the possession of the land was taken even prior to issue of final notification under Section 6(1) of the Act. There is no provision of law which empowers the authorities to take possession of land proposed for acquisition, even before issue of notification under Section 6(1) of the Act. Even as per the special power under Section 17 of the Act, possession can be taken on the expiry of 15 days from the publication of notice under Section 9(1) of the Act. Therefore, there is no force or substance in the contention of Respondent No. 7 that possession of the land has already been taken. No notification issued under Section 16(2) of the Karnataka Land Acquisition (Amendment) Act, 1961 to evidence the fact of taking possession of the land is produced by the respondents and this is another reason for not accepting their case as pleaded regarding taking of possession. Hence, we reject the said contention.
14. In view of the above discussion, we are of the considered opinion that the learned Single Judge has failed to consider the materials placed on record in its proper perspective and this has resulted in an erroneous order rejecting the writ petition. The acquisition of the land in question for burial ground being contrary to the guidelines set out in the Government Circular Notification (Annexure-N), is bad in law and is liable to be quashed. Therefore, the appeal deserves to be allowed. Accordingly, we proceed to pass the following order:
15. The appeal is allowed. The order dated 01.04.2008 passed by the learned Single Judge in W.P. No. 17894/2007 dismissing the writ petition is set aside-The writ petition is allowed. Notification No. LAQ:SR:2:03-04 dated 17.04.2003 (Annexure-A) issued under Section 4(1) of the Act and Notification No. Kum. Be. 78. Bu. Swa. Thu. 2006 dated 21.06.2007 (Annexure-G) issued under Section 6(1) of the Act and all subsequent actions pursuant thereto are hereby quashed. The appellants are entitled for the cost of these proceedings from the respondents 1 to 7, which we quantify at Rs. 10,000/-.