The Karnataka Housing Board & Anr. vs State of Karnataka & Ors.

Word & Phrases– ‘execution’;‘execute’– Meaning of– Discussed– Karnataka Housing Board Act, 1962ss.24(2), 33(2). Directing C.A. Nos.7011-13/2013, 9002- 9003/2013 and 7017-19/2013 to be listed before appropriate Bench for consideration on their own merits, the Court HELD: 1.1 The contention that initiation of acquisition for the purposes of KHB (Karnataka Housing Board)/the KHB Act (Karnataka Housing Board Act, 1962), 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. [Para 21][1127-G-H; 1028-A-B]

Offshore Holdings Pvt. Ltd. vs. Bangalore Development Authority & Ors. (2011) 3 SCC 139 : [2011] 1 SCR

453 – followed.

1.2 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 parimateria provision(s) exist in that enactment, without looking into the facts and law. [Para 22][1028E]

1.3 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 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.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. [Paras 25, 26][1033-D-H; 1034-A-D]

1.4 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. [Para 27][1034-E-G]

1.5 Now, 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 will be considered. 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 scheme unless the same has been sanctioned by the State Government. 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 subSection (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. 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. [Paras 28, 29][1034-H; 1035-A-H]

1.6 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 ‘execution’ is not defined in the KHB Act. Therefore, the question is how the expressions ‘execute/execution’ employed in subSections (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. [Para 30][1036-A-D]

1.7 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.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. [Paras 31, 32][1037-B-D]

1.8 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 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.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.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 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. [Paras 3335][1037-E-H; 1038-A-B]

1.9 But then, Section 4 (1) in its application to the State of Karnataka reads as stated. This State amendment was brought vide Land Acquisition (Mysore Extension and Amendment Act) Act 17 of 1961. The Government of Karnataka as per Annexure‘A’ Notification dated 15.12.1998 (marked thus in the appeal arising from SLP (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.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 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. [Paras 36, 37][1038-E; 1039-B-F]

1.10 In view of the provisions under Section 4 of the L.A. Act and the decision in L. Krishnan’s case, 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, 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.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 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. [Paras 38, 39][1040-B-E]

1.11 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 Notification specifies that the acquisition is for the purpose of KHB. It is a fact that in the TNHB Act no provision parimateria 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. [Para 40][1040-F-H; 1041-A-B]

1.12 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. 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. [Para 41][1041-B-C; 1042-A]

1.13 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. Section 24(2) pertains to executability of such a scheme not included in the programme and in respect of such a scheme falling within 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, will not make the notifications and the initiated acquisition proceedings null and void. [Para 42][1042B-F]

1.14 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 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. [Para 43][1042-F-H; 1043-A-C]

1.15 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, 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. [Para 44][1043-D-E]

1.16 In view of the answers to the moot question and the other allied issues the following orders are passed:

(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 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 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. [Para 45][1043-F-H; 1044-A-D]

State of Tamil Nadu & Anr. Vs. Mohammed Yousef & Ors. AIR 1992 SC 1827 : [1991] 3 SCR 375; State of T.N. & others Vs. L. Krishnan’s & Others (1996) 1 SCC

250 : [1995] 4 Suppl. SCR 663; Munshi Singh Vs. Union of India (1973) 2 SCC 337 : [1973] 1 SCR 973; Aflatoon Vs. Lt. Governor of Delhi [(1975) 4 SCC 285 : [1975] 1 SCR 802; Arnold Rodricks Vs. State of Maharashtra AIR 1966 SC 1788 : [1966] SCR 885; Pt. Lila Ram Vs. Union of India [(1975) 2 SCC 547 : [1976] 1 SCR 341 – referred to.