Gangambika and Others Vs. the State of Karnataka Rep by Its Secretary and Others - Court Judgment

(Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying to quash the Government order bearing No.KoE 81 BuSwaBe 2005 dated 29.10.2007 [Annexure- H] and also quash the notification dated 11.9.1996 [wrongly printed as 1966] issued under Section 16(2) of the LA Act (Annexure-D) and also the Mahazar dated 27.8.1995 prepared by the Revenue Inspector, Yelahanka (Annexure-J) in so far as it relates to the lands of the petitioners i.e. Sy.No.30 (1 acre 14 guntas) and Sy.No.34/1 (1 acre 37 guntas) of Shivanhalli village, Yelahanka Hobli, Bangalore North Taluk and etc;)

1. The petitioners are said to be the owners of lands bearing Survey no.30, measuring 2 acres and 14 guntas and land bearing Survey no.34/1, measuring 2 acres and 7 guntas situated at Shivanahalli, Yelahanka Hobli, Bangalore North Taluk.

2. It is stated that by a notification issued under Section 4 of the Land Acquisition Act, 1894 (Hereinafter referred to as the 'LA Act', for brevity) dated 30.3.1990, it was proposed to acquire a total extent of 24 acres and 5 guntas of land in Jakkur and Shivanahalli villages. Lands bearing Survey no. 31 (1 acre and 14 guntas) and Survey no.34/1-2 (2 acres) were notified, along with 18 other items of land.

A declaration under Section 6 of the LA Act, dated 9.3.1991, duly published in the Gazette on 23.5.1991, was issued in respect of the same items of land - stated to be needed for the benefit of the third respondent house building society. It is said that an award also came to be passed in respect of the acquisition. But the award was in respect of land in Survey no.30 instead of Survey no.31. Though the award was passed, the petitioners did not choose to receive any such amount and continued to remain in possession of the land in Survey no.30, as according to them, it was never the subject matter of acquisition, except that it is indicated in the Award. However, the State had issued a notification under Section 16 of the LA Act, dated 11.9.1996, again in respect of land in Survey no.30. The same was said to have been challenged by the mother of the petitioners, before this court in writ proceedings in WP 28409 and 29410/1991. Though the petitions were allowed and upheld in appeals as well, a review petition said to have been filed by the respondents had been allowed and the acquisition was upheld.

Notwithstanding the earlier challenge to the acquisition, the present writ petition is filed to contend that after the final notification was issued two corrigenda were said to have been issued, by which it was sought to substitute Survey no.31 with Survey no.30 and Survey no.34/1 with Survey no.34/1-2. This, according to the petitioner, was impermissible, as the State has no power to modify the declaration.

It is contended that in the absence of a notification under Section 4 of the LA Act, in so far as Survey no.30 is concerned, it cannot be said that there has been a valid acquisition proceeding in respect of the same. All proceedings that have been taken would thus be vitiated, including the claim of having taken possession as sought to be evidenced by the notification under Section 16 (2) of the LA Act.

The declaration in respect of the lands which is needed for a public purpose under Section 6 is to be made and issued only after the Deputy Commissioner marks out the land notified under Section 4 and after causing it to be measured. Thus, the making of a declaration presupposes that the land has been clearly identified, measured and marked out. The declaration under Section 6 is a statutory declaration and proclaims that the State needs that particular land for a public purpose and this declaration cannot be in any way varied or amended and thus the corrigendum, under which Survey No.30 and 34/1 are sought to be introduced by way of substitution are non est and ab initio void and under the guise of this corrigendum, an award cannot be made in respect of these lands which were not the subject matter of the declaration. It is contended that the declaration cannot be amended and the corrigendum has also not been notified individually to the petitioners nor published in the locality or newspapers and hence they are void and deserve to be ignored. It is contended that since awards are passed in respect of the lands which are the subject matter of the declaration, they are also non est and the notification issued under Section 16(2) on the basis of these awards is also void and are liable to be struck down.

3. The petition is contested by the third respondent. It is contended that the petition is barred by delay and laches. It is pointed out that after the dismissal of the appeal filed against the Order allowing the writ petition filed by the mother of the petitioners, a review petition filed in RP 494/2000 was said to have been allowed by an order dated 28.1.2005. The same had been challenged by the petitioners by way of Special Leave petitions (SLP 12774 and 12775/2005) to the apex court and the same had been dismissed by order dated 14.7.2005. It is claimed that it was after the dismissal of the petitions before the apex court that the Special Land Acquisition Officer had handed over possession of the land as on 28.11.2007. The land having vested in the State, the reliefs claimed by the petitioners are incapable of being considered.

It is pointed out that the petitioners had raised the contention as regards the inaccurate description of the property in question in the earlier proceedings in WP 28409/1991, thus : "3. Both the petitioners have also objected to the objection proceedings before the Land Acquisition Officer consequent upon the issue of the Preliminary Notification. The boundaries to survey numbers prescribed in the Notifications are incorrect as well regarding extent of the lands. The land of Smt. Rudramma and its S.No. has been mis-described both in the Preliminary and Final Notifications.

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7. Without considering the valid objections raised by the petitioners, the first respondent has issued the Final Notification under Section 6(1) of the Act, which is dated 9.5.1991 and published in the Karnataka Gazette, which is produced and marked as Annexure-D."

It is thus contended that the petitioners were fully aware of the acquisition of their land and the subsequent proceedings pursuant to the Corrigenda issued have been in respect of the land which has been properly identified. It is particularly emphasized that though there was an incorrect reference to the Survey number of the land, the boundaries of the land have been correctly mentioned through out, from inception and hence the petitioners were certainly not misled or taken by surprise. It is pointed out that the petitioners had in fact accurately described the land in question in their Schedule to the writ petition filed in the first instance.

4. In the light of the above contentions, it would appear that if a particular item of land is incorrectly referred to in the notification issued under Section 4 of the LA Act and without correction of such an error, which correction should be duly published in the Gazette, all further action if taken in respect of the item of land actually intended to be acquired, would be technically flawed and would stand vitiated.

However, when the land is properly described by its boundaries, though inaccurately referred to by its survey number, and when the notified person is not in doubt as to the land actually sought to be acquired as evident from the objections filed to the proposed acquisition and in other proceedings seeking to challenge the acquisition, as was the circumstance in the case on hand. And when there is active participation of the land owner in subsequent proceedings, where the land has been accurately described, (after the State had resorted to a ham handed course correction) the petitioners cannot be permitted to question the validity of the acquisition proceedings in a vacuum as it were, only with reference to the initial lacuna. Especially, when the very ground of challenge was unsuccessfully raised in the earlier proceedings before this court.

It may be said that the respondents have sought to rectify a typographical error only and have not in effect sought to modify the notification itself. This also is not the understanding of the petitioners, going by the reference to the particular land all along during the proceedings, even before a Corrigendum was introduced by the State. The petitioners had filed their objections to the preliminary notification as well as the award proceedings with regard to the land bearing the corrected survey number. Therefore, the prejudice which would apparently befall a land holder, in his land being inaccurately described in the preliminary notification and further proceedings being taken without recourse to a corrected preliminary notification, and possession being sought to be wrested from him by surprise - is not evident from the facts and circumstances of the present case on hand.

Hence, for the above reasons, there is no merit to be found in the petition and the same is dismissed.