# THE KARNATAKA HOUSING BOARD & ANR v. STATE OF KARNATAKA & ORS

- **Citation:** [2022] 19 S.C.R. 998
- **Court:** Supreme Court of India
- **Decided:** 2022-07-28
- **Case number:** Civil Appeal No. of 7011
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-karnataka-housing-board-anr-v-state-of-karnataka-ors-36009
- **Pages:** 47

## Headnote

Karnataka Housing Board Act, 1962- ss.24(2), 33(2) -
Whether initiation of proceedings for acquisition of land for the
purposes of the Karnataka Housing Board, invoking the power u/
s.33(2) of the KHBAct, without the housing scheme being in existence
or the housing scheme not having been sanctioned u/s.24(2) thereof,
would render such acquisition proceedings void and non-est - Held:
Initiation of proceedings for acquisition invoking the power u/s.33(2)
of the KHB Act without the housing scheme being in existence or
the housing scheme not having been sanctioned u/s.24(2) thereof
would not render such proceedings null and void -Unless sanction
is obtained from the State Government for execution of any scheme
therein, in terms of s.24(2) of KHB Act, the actual act to complete
the process, viz., execution shall not be effected thereon.
Karnataka Housing Board Act, 1962 - Scheme of the Act -
Discussed.
Karnataka Housing Board Act, 1962 - s.33(2) - Land
Acquisition Act, 1894 - s.3(f) -Whether L.A. Act stands modified in
any manner by the KHB Act in respect any particular aspect or
procedure - Held: A bare perusal of s.33(2) itself would answer
this question- Its latter limb contains 'a deeming provision'-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 would 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., s.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.
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Practice and Procedure - Held: 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.
Word & Phrases- 'execution';'execute'- Meaning ofDiscussed- 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]
THE KARNATAKA HOUSING BOARD & ANR. v. STATE OF
KARNATAKA & ORS.
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1.3 A conjoint reading of the afore-extracted provisions of
KHB Act will unfold the duties of the KHB as to undertake
hous

## Text

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[2022] 19 S.C.R. 998
998
THE KARNATAKA HOUSING BOARD & ANR.
v.
STATE OF KARNATAKA & ORS.
(Civil Appeal No. of 7011 of 2013)
JULY 28, 2022
[A. M. KHANWILKAR, DINESH MAHESHWARI AND
C. T. RAVIKUMAR, JJ.]
Karnataka Housing Board Act, 1962- ss.24(2), 33(2) -
Whether initiation of proceedings for acquisition of land for the
purposes of the Karnataka Housing Board, invoking the power u/
s.33(2) of the KHBAct, without the housing scheme being in existence
or the housing scheme not having been sanctioned u/s.24(2) thereof,
would render such acquisition proceedings void and non-est - Held:
Initiation of proceedings for acquisition invoking the power u/s.33(2)
of the KHB Act without the housing scheme being in existence or
the housing scheme not having been sanctioned u/s.24(2) thereof
would not render such proceedings null and void -Unless sanction
is obtained from the State Government for execution of any scheme
therein, in terms of s.24(2) of KHB Act, the actual act to complete
the process, viz., execution shall not be effected thereon.
Karnataka Housing Board Act, 1962 - Scheme of the Act -
Discussed.
Karnataka Housing Board Act, 1962 - s.33(2) - Land
Acquisition Act, 1894 - s.3(f) -Whether L.A. Act stands modified in
any manner by the KHB Act in respect any particular aspect or
procedure - Held: A bare perusal of s.33(2) itself would answer
this question- Its latter limb contains 'a deeming provision'-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 would 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., s.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.
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Practice and Procedure - Held: 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.
Word & Phrases- 'execution';'execute'- Meaning ofDiscussed- 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]
THE KARNATAKA HOUSING BOARD & ANR. v. STATE OF
KARNATAKA & ORS.
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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
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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'
THE KARNATAKA HOUSING BOARD & ANR. v. STATE OF
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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,
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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]
THE KARNATAKA HOUSING BOARD & ANR. v. STATE OF
KARNATAKA & ORS.
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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
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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
THE KARNATAKA HOUSING BOARD & ANR. v. STATE OF
KARNATAKA & ORS.
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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]
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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
THE KARNATAKA HOUSING BOARD & ANR. v. STATE OF
KARNATAKA & ORS.
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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.
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(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.
Case Law Reference
[1991] 3 SCR 375
referred to
Para 3
[1995] 4 Suppl. SCR 663
referred to
Para 5
[1973] 1 SCR 973
referred to
Para 13
[1975] 1 SCR 802
referred to
Para 19
[1966] SCR 885
referred to
Para 19
THE KARNATAKA HOUSING BOARD & ANR. v. STATE OF
KARNATAKA & ORS.
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[1976] 1 SCR 341
referred to
Para 19
[2011] 1 SCR 453
followed
Para 21
CIVIL ORIGINAL JURISDICTION: Civil Appeal No. 4986 of
2022.
From the Judgment and Order dated 01.12.2020 of the High Court
of Karnataka at Bengaluru in Writ Appeal No.5712 of 2012 (LA KHB).
With
Civil Appeal Nos. 7011-7013, 9002-9003 and 7017-7019 of 2013.
Ranjit Kumar, V. Lakshminarayan, Basavaprabhu S. Patil, Sr.
Advs., S. K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, Ms. Uditha
Chakravarthy, Nishanth Patil, Anup Jain, Vidit Monga, Ms. Shubhika
Saluja, Balaji Srinivasan, Raghavendra S. Srivatsa, Manmohan P. N.,
Likhi Chand Bonsle, Ms. Komal Mundhra, Shailesh Madiyal, Sudhanshu
Prakash, Ms. Rakhi M., Vaibhav Sabharwal, Ms. Sruthi Iyer, Ms. Neha
Jain, V. N. Raghupathy, Md. Apzal Ansari, Advs. for the appearing parties.
The Judgment of the Court was delivered by
C. T. RAVIKUMAR, J.
1. Leave granted in SLP(C) No.1361 of 2021 and on consent
taken up for hearing along with connected Civil 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 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
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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 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 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
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 KARNATAKA HOUSING BOARD & ANR. v. STATE OF
KARNATAKA & ORS. [C. T. RAVIKUMAR, J.]
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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, 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 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 31⁄2
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 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."
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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 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 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 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 file written submissions along
THE KARNATAKA HOUSING BOARD & ANR. v. STATE OF
KARNATAKA & ORS. [C. T. RAVIKUMAR, J.]
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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, 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 prerequisite 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 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. & others Vs. L. Krishnan's & Others reported
in (1996) 1 SCC 250.
Civil Appeal Nos.