TMI Blog1995 (2) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Society. It is the case of the appellant that the Government being fully satisfied with the scheme submitted by the appellant, approved the same by an order dated 7.11.1984 and accorded approval for initiation of acquisition proceeding for the lands. On 17.3.1988 the Society entered into an agreement with the State Government agreeing to the conditions for acquisition, as required by Sections 39 and 40 of Part-VII of the Land Acquisition Act (hereinafter referred to as the 'Act'). But on 12.7.1988 a notification under Section 4(1) of the Act was issued proposing to acquire lands for the Society to the extent of 133.33 acres in the aforesaid two villages, saying it was needed for public purpose. 4. The writ petitioners-respondents questioned the validity of the aforesaid notification under Section 4(1) of the Act on several grounds including that the acquisition itself was not for public purpose. During the pendency of the writ application on 11.8.1989 the State Government issued declaration under Section 6(1) of the Act in respect of 99.01 acres of land in the aforesaid two villages for the appellant's society. On 19.3.1991 awards were made in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res to this agreement to begin with and such further extend as the First Party may require and shall arrange for agreements to be executed between the owners of such lands and the First Party within a period of 2-3 months from this day to facilitate the acquisition of lands in favour of the first Party. The Second Party hereby agrees strictly to conform and act according to the terms of this agreement. The Second Party who has already entered into sale agreement with the owners of land (the details of the land fully described in the schedule to this agreement) has agreed to negotiate and ensure the acquisition of the land in favour of First Party. The First Party after inspection of the lands and discussions with the Second Party has agreed to have the lands from the owners acquired for the First Party subject to the other Services to be rendered by the Second Party as agreed to hereinafter. NOW THIS AGREEMENT spells out the terms and conditions, rights, powers, obligations and liabilities of the parties to this agreement. 1. It is agreed that the Second Party shall carry out the following works for the First Party in respect of the lands to be acquired for the Firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction of houses on the completion of civil portion of lay out works; (j) To get all the sites released from the B.D.A. or any other competent authority within 2 months of completion of layout works. 3. The Second Party has agreed and undertaken to take up the above mentioned works and has agreed to carry out the works within 245 months time from the date of this agreement subject to any delay caused at the B.D.A. and other authorities in procuring the land, sanctioning or issuing layout plan and work order. 4. The First Party agrees to pay to the Second Party an amount calculated at ₹ 112 per Sq. Yard based on the actual sital area (inclusive of the cost of the land acquired and the compensation payable thereto either under the award or any enhanced compensation under any proceedings, security fee and amounts payable to the B.D.A. towards supervision charges, chip carpeting, tree planting, maintenance etc., amount and sewerage mains within the layout amount payable to K.E.B. for electricity and the cost of layout to be deposited with B.D.A.) excluding the cost of the area to be left for roads, drains and the civic amenities according to the layout plan appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The High Court came to the conclusion, on this question : The agents of each of these societies had been paid heavy amounts in consideration of which they were required to influence the Government and to get the preliminary and the final notifications acquiring large extent of lands, from the Government. The decision of the Government to acquire the land was brought about by the influence of such agents appointed to be go betweens and carriers between the Government and the society concerned and therefore such a decision is liable to be set aside on the ground that it is a case of colourable exercise of power and suffers from legal mala fides, in that, though the acquisition is stated to be for public purpose, in reality, the acquisition is substantially not for the purpose of bona fide housing schemes. 10. From the judgment of the High Court, it further appears that not only the acquisition of lands in favour of seven Housing Co-operative Societies, who were respondents to the different Writ Petitions, but also the acquisition of lands in favour of more than one hundred housing societies, which had sprung up within the Bangalore Metropolitan Planning Area became ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast ₹ 1.6 crores which has been advanced to the agents without any work. The committee in general and the Hon. Secretary of the Society in particular is responsible for these irregularities. Taking into consideration all the facts and the circumstances of the case including the report of Mr. G.V.K. Rao, the High Court observed : Before concluding, it is necessary to observe that as pointed out in the report of G.V.K. Rao, it is on account of unlimited territorial jurisdiction and vague provisions as to who could become members and associate members and also as to what are the rights of associate members, it has been possible for many of the societies to manipulate membership in such a way as to enroll all those who are desirous of purchasing sites as also those who do not possess the territorial or other qualification as members. It was said that it was necessary that the Government should frame rules for according previous approval for acquisition of lands for the housing co-operative societies inter alia prescribing the essential requirements of a housing scheme and also prescribing the procedure for inquiry and report to aid the Government to come to the conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned; (iv) the provision of land for a corporation owned or controlled by the State; (v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by government, any local authority or a corporation owned or controlled by the State; (vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860, or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be on the mode of acquisition by the appropriate Government for any public purpose. 17. If lands are acquired for any co-operative society treating it to be a company within the meaning of Section 3(e), then in view of Section 39 of the Act the provisions of Sections 6 to 16 and Sections 18 to 37 shall not be put in force unless there is previous consent of the appropriate Government, and the co-operative society has executed an agreement. The consent required under Section 39 of the Act has to be given by the appropriate Government only after the conditions mentioned in Section 40 are fulfilled. Sub-section (1) of Section 40, of the Act prescribes the conditions : 40. Previous enquiry. - (1) Such consent shall not be given unless the appropriate Government be satisfied, either on the report of the Collector under Section 5A, Sub-section (2), or by an enquiry held as hereinafter provided, - (a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or (aa) that such acquisition is needed for the construction of some building o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o us, in Section 3(f)(vi) the expression housing has been used along with educational and health schemes. As such the housing scheme contemplated by Section 3(f)(vi) shall be such housing scheme which shall serve the maximum number of members of the society. Such housing scheme should prove to be useful to the public. That is why the Parliament while introducing a new definition of public purpose , said that any scheme submitted by any co-operative society relating to housing, must receive prior approval of the appropriate Government and then only the acquisition of the land for such scheme can be held to be for public purpose. If requirement of Section 3(f)(vi) is not strictly enforced, every housing co-operative society shall approach the appropriate Government for acquisition by applying Section 3(f)(vi) instead of pursuing the acquisition under Part VII of the Act which has become more rigorous and restrictive. In this background, it has to be held that the prior approval, required by Section 3(f)(vi), of the appropriate Government is not just a formality; it is a condition precedent to the exercise of the power of acquisition by the appropriate Government for a housing sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out that the notifications under Sections 4(1) and 6(1) have been issued beyond the time stipulated in the agreement and as such, it should be held that the State Government has exercised its statutory power for acquisition of the lands in normal course, only after taking all facts and circumstances into consideration. There is no dispute that in terms of agreement dated 1.2.1985 payments have been made by the appellant society to M/s. S.R. Constructions. This circumstance alone goes a long way to support the contention of the writ petitioners that their lands have not been acquired in normal course or for any public purpose. In spite of the repeated query, the learned Counsel appearing for the appellant society could not point out or produce any order of the State Government under Section 3(f)(vi) of the Act granting prior approval and prescribing conditions and restrictions in respect of the use of the lands which are to be acquired for a public purpose. There is no restriction or bar on the part of the appellant society on carving out the size of the plots or the manner of allotment or in respect of construction over the same. That is why the framers of the Act have requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the possession of the lands shall be restored to the respective land owners irrespective of the fact whether they had challenged the acquisition of their lands or not. On restoration of the possession to the land owners they shall refund the amounts received by them as compensation or otherwise in respect of their lands. The appellant, the respondents and the State Government including all concerned authorities/persons shall implement the aforesaid directions at an early date. 27. The connected Appeal Nos. 3011-19 of 1995 (arising out of S.L.P. (C) Nos. 11482-90 of 1991) H.M.T. House Building Co-op. Society v. Syed Khadar and Ors., have already been disposed of by a reasoned judgment. The reasons given for dismissing the said appeals are equally applicable in the facts and circumstances of the present case. Accordingly, these special leave petitions filed on behalf of the same. House Building Co-operative Society are dismissed. No. Costs. 28. In the appeals Nos. 3011-19/95 arising out of SLP (C) Nos. 11482-90 of 1991, after the dismissal of the appeals a direction has been given that as a result of the quashing of the land acquisition proceedings including the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment to issue the aforesaid notifications. Mr. Ramaswamy, appearing for the petitioner society purported to distinguish this case on facts from the case of H.M.T. House Building Co-operative Society. But according to us, the facts of the present case are similar to the case of H.M.T. House Building Co-operative Society and there is no scope to interfere with the order of the High Court, quashing the notifications under Sections 4(1) and 6(1). Accordingly, the special leave petitions filed on behalf of the petitioner society are dismissed. No costs. 30. In the appeals arising out of SLP (C) Nos. 11482-90 of 1991, after the dismissal of the appeals a direction has been given that as a result of the quashing of the land acquisition proceedings including the notifications in question, the possession of the land shall be restored to the respective land owners irrespective of the fact whether they had challenged the acquisition of their lands or not. A further direction has been given that on restoration of the possession to the land owners, they shall refund the amounts received by them as compensation or otherwise in respect of their lands. We issue a similar direction even in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been filed for setting aside the judgment of the High Court, quashing the notifications under Sections 4(1) and 6(1) of the Land Acquisition Act, on the ground that the said notifications had been issued at the instance of the agents, appointed by the petitioner society. The High Court has also referred to the agreement entered into, by the petitioner and the said middle-man, who had undertaken to get the lands in question acquired. The agent had undertaken in the agreement to manage all concerned at all levels . No order granting prior approval by the State Government for the acquisition of the lands, as required by Section 3(f)(vi) of the Act has been produced. According to us, the facts of the present case are no way different from that of the H.M.T. House Building Co-operative Society, which has been disposed of by a reasoned judgment. That judgment fully covers the present special leave petitions also. Accordingly, the special leave petitions are dismissed. No costs. 34. In the appeals Nos. 3011-19/95 arising out of SLP (C) Nos. 11482-90 of 1991, after the dismissal of the appeals a direction has been given that as a result of the quashing of the land acquisition proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issal of the appeals a direction has been given that as a result of the quashing of the land acquisition proceedings including the notifications in question, the possession of the land shall be restored to the respective land owners irrespective of the fact whether they had challenged the acquisition of their lands or not. A further direction has been given that on restoration of the possession to the land owners, they shall refund the amount received by them as compensation or otherwise in respect of their lands. We issue a similar direction even in this case. The petitioner, the respondents and the State Government including all concerned authorities/persons shall implement the aforesaid directions at an early date. SPECIAL LEAVE PETITION (C) NO. 5920 of 1985. 37. The special leave petition has been filed on behalf of the state of Karnataka against the same judgment of the High Court, quashing the notifications under Sections 4(1) and 6(1) of the Land Acquisition Act, acquiring lands for different House Building Co-operative Societies. The State of Karnataka has purported to justify the issuance of those notifications. Whether the lands in question had been acquired in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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