THE KARNATAKA HOUSING BOARD & ANR versus STATE OF KARNATAKA & ORS on 28 July 2022

SUPREME COURT REPORTS

[2022] 19 S.C.R.

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THE KARNATAKA HOUSING BOARD & ANR.

v.

STATE OF KARNATAKA & ORS.

(Civil Appeal No. of 7011 of 2013)

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JULY 28, 2022

[A. M. KHANWILKAR, DINESH MAHESHWARI ANDC. T. RAVIKUMAR, JJ.]

Karnataka Housing Board Act, 1962– ss.24(2), 33(2) –Whether initiation of proceedings for acquisition of land for theCpurposes of the Karnataka Housing Board, invoking the power u/s.33(2) of the KHBAct, without the housing scheme being in existenceor 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)Dof the KHB Act without the housing scheme being in existence orthe housing scheme not having been sanctioned u/s.24(2) thereofwould not render such proceedings null and void –Unless sanctionis obtained from the State Government for execution of any schemetherein, in terms of s.24(2) of KHB Act, the actual act to completethe process, viz., execution shall not be effected thereon.E

Karnataka Housing Board Act, 1962 – Scheme of the Act –Discussed.

Karnataka Housing Board Act, 1962 – s.33(2) – LandAcquisition Act, 1894 – s.3(f) –Whether L.A. Act stands modified inFany manner by the KHB Act in respect any particular aspect orprocedure – Held: A bare perusal of s.33(2) itself would answerthis question– Its latter limb contains ‘a deeming provision’–That isattracted only on establishing the foundational fact that theacquisition of land or interest therein is for the purposes of KHBAct – The said provision would show that upon establishing theGsame the acquisition of land concerned or interest therein, as thecase may be, shall have to be deemed as an acquisition for thepurpose within the meaning of L.A. Act, viz., s.3(f) of the L.A. Actthat defines “public purpose” – Therefore, in terms of the sameL.A. Act stands modified by KHB Act to the extent mentioned.

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Practice and Procedure – Held: A judgment rendered withrespect to the position obtained under a particular provision(s) inone enactment cannot be applied while dealing with a similarsituation falling under a different enactment, unless parimateriaprovision(s) exist in that enactment, without looking into the factsand law.

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 and7017-19/2013 to be listed before appropriate Bench forconsideration on their own merits, the Court HELD: 1.1 The contention that initiation of acquisition forthe 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 developmentscheme concerned, is null and void in view of the decision inMohammed Yousef’s case is untenable. So also, the contentionthat in view of the decision in Mohammed Yousef’s caseacquisition proceedings form part of housing scheme/landdevelopment scheme and hence, acquisition for the purposes ofKHB/the KHB Act prior to the sanction and/or the publication ofhousing scheme concerned/land acquisition scheme concerned,is null and void cannot be countenanced. Suffice it to say that themoot question and allied issues are to be considered and answeredindependently without reference to the decision in MohammedYousef’s case, but with reference to the L.A. Act as well as KHBAct. [Para 21][1127-G-H; 1028-A-B]

Offshore Holdings Pvt. Ltd. vs. Bangalore DevelopmentAuthority & Ors. (2011) 3 SCC 139 : [2011] 1 SCR453 – followed.

1.2 A judgment rendered with respect to the positionobtained under a particular provision(s) in one enactment cannotbe applied while dealing with a similar situation falling under adifferent enactment, unless parimateria provision(s) exist in thatenactment, without looking into the facts and law. [Para 22][1028-E]

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A1.3 A conjoint reading of the afore-extracted provisions ofKHB Act will unfold the duties of the KHB as to undertakehousing schemes and land development schemes as it mayconsider necessary from time to time or as may be entrusted toit by the State Government. What are the matters to be providedfor by housing schemes and land development schemes areBmentioned respectively under Sections 18 and 18A. Going bySection 2(n) ‘programme’ means the annual housing programmeand land development programme prepared by KHB underSection 19. Section 19 mandates that before the first day ofDecember in each year, KHB shall prepare and forward aCprogramme, a budget for the next year and a schedule of the staffof officers and servants already employed and to be employedduring the next year, to the State Government. As per the saidsection, the said programme shall contain such particulars of thehousing schemes, land development schemes and labour housingschemes which it proposes to execute whether in part or wholeDduring the next year as may be prescribed. Under Section 20 theState Government may sanction the programme, the budget andthe schedule of the staff of officers and servants forwarded to itwith such modifications as it deems fit. As per Section 21, theState Government shall publish the programme sanctioned by itEunder Section 20 in the official Gazette. Section 22 permitssubmission of supplementary programme and budget in respectof which a programme and budget had been sanctioned underSection 20 and in the eventuality of submission of such asupplementary programme and budget the provisions of Sections20 and 21 would apply.Section 23 confers power on the board toFvary any programme or any part thereof included in the programmesanctioned by the State Government, at any time. The bare perusalof the proviso thereunder would reveal that it is not an unfetteredpower. Going by the proviso, no such variation shall be made if itinvolves an expenditure in excess of 20 per cent of the amountGas originally sanctioned for the execution of any housing schemeor land development scheme included in such programme oraffects its scope or purpose. Thus a bare perusal of the provisionsunder Sections 17 to 23, contained in Chapter-III of the KBHAct, would reveal that they deal with duties of KHB to undertakehousing schemes and land development schemes, matters to beH

included in such schemes, preparation and submission of annualhousing programme and land development programme, budgetand establishment schedule and such other procedures to befollowed ultimately unto the sanctioning of the programme andalso the power of KHB to make variance of sanctionedprogramme 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 thesubject of execution of housing schemes, land developmentschemes and labour housing schemes under Section 24. Bearingin mind the provisions under Sections 18-23 we will consider thescope and purport of Section 24 of the KHB Act. A careful scrutinyof sub-Sections (1) and (2) of Section 24 would bring forth theirdistinct differences. Section 24(1) prescribes that after theprogramme has been sanctioned and published by the StateGovernment the board shall, subject to the provisions of Section23, proceed to execute the housing scheme, land developmentscheme and labour housing scheme included in the programme.Thus, Section 24(1) states in unequivocal terms as to when theKHB shall proceed to execute the housing schemes, landdevelopment schemes and labour housing schemes included inthe programme. Indisputably, in terms of the said statutorymandate KHB could proceed to execute any of the aforesaidschemes included in the programme only after the sanction andpublication of the programme wherein the scheme concerned isincluded. [Para 27][1034-E-G]

1.5 Now, the question of executability or otherwise ofhousing schemes, land development schemes and labour housingschemes other than those included in a programme, by the KHBwill be considered. As noticed earlier, the unambiguous terms inSection 24(1) would reveal that it speaks only of such schemesincluded in a programmeand thereby make such ‘housingschemes, land development schemes and labour housingschemes’ a definite category. The further question is whetherany other category containing such schemes is contemplated inthe KHB Act and if so, when such scheme(s) would becomeexecutable? The word ‘any’ that qualifies the words ‘housingscheme, land development scheme and labour housing scheme’

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Aemployed in sub-Section (2) thereof in contradistinction to thewords ‘included in the programme’ employed under sub-Section,positively indicates the executability of scheme(s) other thanthose included in the sanctioned programme. Indeed it is couchedin a negative form, as can be seen from sub- Section (2) thereof,extracted hereinbefore. As per the said provision KHB shall notBexecute any housing scheme, land development scheme or labourhousing scheme unless the same has been sanctioned by the StateGovernment.What sub-Section (2) proscribes is execution of sucha scheme, be it a housing scheme or land development schemeor labour housing scheme, evidently not included in theCprogramme for any particular year unless the same has beensanctioned by the State Government. Pithily put, the schemesfalling under sub-Sections (1) and (2) are different. If they areone and the same in view of the positive mandate under sub-Section (1) of Section 24 with respect to the time of executabilityof such schemes included in the programme, viz., only after theirDsanction and publication by the State Government, there wasabsolutely no necessity for incorporating sub-Section (2) underSection 24 in the negative form. Certainly, the legislative intentionunder sub-Section (2) can be taken only as one to enable KHB toundertake such schemes which were not included in theEprogramme, as exception, but subject to the condition ofobtainment of sanction of the State Government before execution.In short, as a whole, the purport of Section 24 is that no housingscheme or land development scheme or labour housing scheme,undertaken by the KHB shall be executed sans sanction fromthe State Government. Sub-Section (2) of Section 24 cannot beFinterpreted as one requiring obtainment of a second sanction forexecuting such schemes included in the programme. On thecontrary, the provision under Section 24(2) has to be interpretedas one enabling KHB to undertake such schemes which werenot included in the programme, but became necessary toGundertake, subject to sanction from the Government. Accordingto us, such a construction will only sub-serve the purpose ofconstitution of KHB. [Paras 28, 29][1034-H; 1035-A-H]

1.6 There can be no doubt that for executing a housingscheme, land development scheme and labour housing scheme,H

be it included or not included in the programme, necessary extentof land has to be acquired. For, without the required extent ofland, construction of houses under housing and labour housingschemes or development of land under land developmentschemes could not be effected. It is a fact that, the expression‘execution’ is not defined in the KHB Act. Therefore, the questionis how the expressions ‘execute/execution’ employed in sub-Sections (1) and (2) of Section 24 and Section 33(2) are to beunderstood. In that regard bearing in mind the object and purposeof Constitution of KHB and its duties the dictionary meaning ofthe said expression has to be looked into. Accordingly, thefollowing meanings given for the word ‘execution’ in the Black’sLaw Dictionary, Tenth Edition, are ascribable to the expressions‘execution’ or ‘execute’ employed in Sections 24(2) and 33(2) ofthe KHB Act:(1) To perform or complete (a contract or duty);(2)The performance or completion of a thing; (3) The final processof an action. [Para 30][1036-A-D]

1.7 Section 33 was subsequently substituted in the year2016 as per Act 24 of 2016. Taking into account the fact that thesubstitution took place subsequent to the notifications impugnedin these proceedings it is unnecessary for us to look into thesaid substituted provision. In fact, no serious argument wasadvanced by any one with reference to the said provision.Section33 in Chapter-IV actually deals with the power of KHB to acquireland. Sub-sections (1) and (2) thereof envisage different modesof acquisition which are different in nature. To put it succinctly,in the matter of acquisition under Section 33(1), ‘consent’ isrequired and in respect of unwilling owners acquisition may beeffected under sub-Section (2) thereof. What is relevant to benoted is that Section 33 deals with acquisition of land or interestthereon and it is not dealing with sanction of the schemes.Obviously, for acquiring land or interest thereon, upon enteringinto an agreement with any person, by following anyone of thethree modes prescribed under Section 33(1) prior approval ofthe State Government is mandatory, subject to its proviso. [Paras31, 32][1037-B-D]

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A1.8 Under sub-section (1) of Section 33, the KHB may enterinto agreement with any person for the acquisition from him bypurchase, lease or exchange of any land which is needed for thepurposes of housing scheme or land development scheme or anyinterest in such land or for compensating the owners of any suchright in respect of any deprivation thereof or interferenceBtherewith. The proviso to sub-section (1) makes it mandatory toobtain previous approval of the State Government in case ofpurchase or exchange, involving land worth more than Rs.10lakhs. For lease such previous approval is mandatory if it is formore than 5 years. The necessary corollary is that even in respectCof acquisition of land needed for the purposes of such schemeseither by purchase, lease or exchange previous approval of theState Government need not be obtained in case purchase orexchange, involved land worth Rs.10 lakhs or less and in thecase of lease if it is for 5 years or lesser period.Sub-section (2) of Section 33 permits KHB to take steps for compulsory acquisitionDof any land or any interest therein required for the execution of ahousing scheme or land development scheme.In the case ofcompulsory acquisition of land required for the execution of ahousing scheme or land development scheme obtainment of nosuch prior approval is prescribed under sub-Section (2) thereof.EThe reason is obvious. A perusal of the sub-Section (2) wouldreveal that what is permissible thereunder is compulsoryacquisition of any land or interest thereon in the manner providedin the L.A. Act as modified by the KHB Act. Section 4(1) of theL.A. Act is worthy for reference in this context. [Paras 33-35][1037-E-H; 1038-A-B]F

1.9 But then, Section 4 (1) in its application to the State ofKarnataka reads as stated. This State amendment was broughtvide 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 appealGarising from SLP (C)No.1361 of 2021), which was issued underClause (c)of Section 3 of the L.A. Act, appointed the HousingCommissioner of KHB to perform the functions of DeputyCommissioner under Section 4 of the L.A. Act in respect of landsto be acquired for the purpose of KHB in Bengaluru and MysoreHRevenue Divisions. In such circumstances, no error or defect

can be attributed against his issuing preliminary notification underSection 4(1) of the L.A. Act.A bare perusal of L.A. Act wouldreveal that the acquisition proceedings begin with issuance of anotification under Section 4(1) thereof that land in any locality isneeded or is likely to be needed for any public purpose. TheNotification under Section 4(1) is a formal expression of thedecision to start acquisition proceedings for a public purpose.The said notification takes the concrete shape and form bypublication in the official Gazette of the appropriate Government,when that be mandatory procedures and when they are strictlycomplied with it would be without rhyme or reason to prescribeobtainment of a further approval of the Government for suchcompulsory acquisition by KHB. It is also to be noted that in thecases on hand subsequently, Government had issued declarationand 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 thatfor initiation of land acquisition proceedings under Section 4(1)of the L.A. Act proposing to acquire any particular land for thepurpose of KHB a duly published final scheme prepared inaccordance with the provisions of KHB Act should be in force.Despite the said position obtained from Section 4 of the L.A. Actand the decision in L. Krishnan’s case the attempt herein is todeduce such a mandate from the provisions under the KHB Act.The scanning of Section 33(2) of the KHB Act, would clearly showthat it contains no condition, either expressly or by necessaryimplication, that before a Notification under Section 4(1) of theL.A. Act is issued proposing to acquire land or interest therein,for the purpose of KHB, a sanctioned and published housingscheme/land development scheme/labour housing scheme shouldbe in force. In the said circumstances, the said contention cannotbe sustained.Unlike the provisions under TNHB Act, whichmandate for acquisition of land for the purpose of TNHB Act andTamil Nadu Housing Board only in accordance with the provisionsof L.A. Act, Section 33(2) of the KHB Act empowers the KHB totake steps for compulsory acquisition of any land or any interesttherein, required for the execution of a housing scheme in the A

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Amanner provided in the L.A. Act, as modified by KHB Act. [Paras38, 39][1040-B-E]

1.11 Therefore, the next question is whether L.A. Act standsmodified in any manner by the KHB Act in respect any particularaspect or procedure. A bare perusal of sub-Section (2) of SectionB33 itself would answer this question. Its latter limb contains ‘adeeming provision’. Certainly, that is attracted only on establishingthe foundational fact that the acquisition of land or interest thereinis for the purposes of KHB Act. The said provision, extractedhereinbefore, would go to show that upon establishing the samethe acquisition of land concerned or interest therein, as the caseCmay be, shall have to be deemed as an acquisition for the purposewithin the meaning of L.A. Act, viz., Section 3(f) of the L.A. Actthat defines “public purpose”. Therefore, in terms of the sameL.A. Act stands modified by KHB Act to the extent mentionedabove. Hence, it would be suffice if the Notification specifies thatDthe acquisition is for the purpose of KHB. It is a fact that in theTNHB Act no provision parimateria to Section 33(2) of the KHBAct enabling the Housing Board to take steps for compulsoryacquisition for the purposes of the Act/the Board as also a deemingprovision relating ‘public purpose’, as mentioned hereinbefore,is available. [Para 40][1040-F-H; 1041-A-B]

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1.12 Another allied question arises for consideration iswhether non-particularisation with sufficient specificity of the landto be acquired can be a reason for annulling acquisitionproceedings initiated under the L.A. Act as modified by KHBAct for the purpose of KHB Act. The contention raised is to theFeffect that owing to such vagueness in the Notification the holders/land owners would be deprived of the opportunity to file aneffective objection under Section 5A of the L.A. Act. As alreadynoted that in the appeal arising from SLP(C)No.1361/2021, thedeceased mother of Respondent Nos.2 and 3 had filed objectionsGunder Section 5A. It is also relevant to note that the High Courthad also noted the fact that in some of the cases acquisition basedon the selfsame Notification were effected and awards were alsopassed. [Para 41][1041-B-C; 1042-A]

1.13 Section 24(1) speaks of the question as to when KHBcould proceed to execute the housing schemes, land developmentschemes and labour housing schemes included in the programme.Section 24(2) pertains to executability of such a scheme notincluded in the programme and in respect of such a scheme fallingwithin the sweep of Section 24(2) the mandate thereunder is thatit shall not be executed unless the same has been sanctioned bythe State Government. In such circumstances, a conjoint readingof Section 33(2) and Section 24(2), of the KHB Act would make itclear that prior approval or sanction of any scheme is not requiredfor compulsory acquisition invoking the power under Section33(2). This is because in terms of the State amendment of Section4(1), notification marking initiation of acquisition proceedingsunder L.A. Act, is issued by the appropriate Government or bythe Deputy Commissioner and thereafter, the said formalexpression of the decision to start acquisition proceedings getsinto concrete shape and form by publication in the Official Gazetteof Government of Karnataka. In such circumstances, if it is forthe purposes of KHB, in other words, for implementation of ascheme of the KHB, what is statutorily required is to wait for itsexecution till the same is sanctioned by the State Government.In other words, the mere factum of non- existence of a sanctionedand published scheme prior to the initiation of acquisitionproceedings, by itself, will not make the notifications and theinitiated acquisition proceedings null and void. [Para 42][1042-B-F]

1.14 One another aspect also requires reference in thecontext of the rival contentions and situation. The scheme of theAct reveals that KHB has also a duty to undertake the schemesentrusted to it by the State Government. Section 32(1) of theKHB Act exclusively make it clear that in respect of schemeentrusted to KHB by Government, provisions under Sections18-24 (both inclusive) shall not be applicable, except to such anextent and subject to such modifications as may be specified ingeneral or special order made by the State Government. It isalso to be noted that in respect of housing schemes, landdevelopment schemes or labour housing schemes entrusted tothe Board by the Government, sometimes such entrustment takesplace only after acquisition of the necessary extent of land by the AB

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AState Government. All the above mentioned provisions andsituations would reveal that the contention of the appellants otherthan the appellants in the appeal arising from SLP(C)No.1361/2021 and Respondent Nos.2 and 3 therein that existence of afinally sanctioned scheme is a pre-condition for initiation ofacquisition of any land or any interest therein is a pre-conditionBand its non-existence must invariably make the acquisitionproceedings null and void, are unsustainable and liable to berejected. Hence, on a careful perusal of Sections 18 to 24 (bothinclusive) and Section 33(2) we have no hesitation to hold thatKHB Act carry no statutory insistence that for initiation ofCacquisition invoking the power under Section 33(2), for thepurposes of the KHB Act/KHB, framing, finalization andpublication of a housing scheme or land development scheme orlabour housing scheme, is a pre-condition. [Para 43][1042-F-H;1043-A-C]D1.15 For all the above reasons we answer the mootedquestion in the negative and to the effect that initiation ofproceedings for acquisition invoking the power under Section33(2) of the KHB Act without the housing scheme being inexistence or the housing scheme not having been sanctionedunder Section 24(2) thereof, would not render such proceedingsEnull and void. We also hold that unless sanction is obtained fromthe State Government for execution of any scheme therein, interms of Section 24(2) of KHB Act, the actual act to completethe process, viz., execution shall not be effected thereon. [Para44][1043-D-E]F1.16 In view of the answers to the moot question and theother allied issues the following orders are passed:

(i) In the appeal arising from SLP(C) No.1361/2021 noquestion other than the moot question (decided as per thisjudgment) was considered. In view of clear conclusions andGfindings the judgment and order dated 01.12.2020 in Writ AppealNo.5712/2012, where the law on the question was exposited tothe 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 WritHAppeal No.5712/2012 arose, stands dismissed.

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(ii) In Civil Appeal Nos.7011-13/2013, 9002- 9003/2013 and7017-19/2013 the position is that as per the common judgmentand orders respectively in Writ Petition Nos.4625/2004, 18596/2006, 11568/2008 and 47616/2004 dated 26.4.2013 and also thejudgment in Writ Appeal Nos.1244-45/2009, the Division Benchvirtually decided that for initiation of acquisition proceedings forthe purposes of KHB, existence of a sanctioned and publishedscheme is not a pre-condition. Consequently, the Division Benchconfirmed the decision of the leaned Single Judge on that questionand thereupon, the Writ Petitions concerned/Writ Appeals weredisposed of with request to the learned Single Judge to decidewhether Sections 18-23 of the KHB Act were complied with ornot. Obviously, those Writ Petitions are now pending. The issueis whether in view of the facts involved in those cases, the questionof scrupulous adherence of Sections 18-23 of the KHB Actsurvives or needs to be followed, requires considerationdepending upon the nature of acquisition and other relevant facts.Hence, Civil Appeals shall be listed before appropriate Benchfor consideration on their own merits, subject to this judgment.

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[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 ofT.N. & others Vs. L. Krishnan’s & Others (1996) 1 SCC250 : [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 ofMaharashtra AIR 1966 SC 1788 : [1966] SCR 885;Pt. Lila Ram Vs. Union of India [(1975) 2 SCC 547 :[1976] 1 SCR 341 – referred to.

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1010SUPREME COURT REPORTS

[2022] 19 S.C.R.

A[1976] 1 SCR 341referred toPara 19[2011] 1 SCR 453followedPara 21

CIVIL ORIGINAL JURISDICTION: Civil Appeal No. 4986 of2022.

BFrom the Judgment and Order dated 01.12.2020 of the High Courtof 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.CAdvs., S. K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, Ms. UdithaChakravarthy, Nishanth Patil, Anup Jain, Vidit Monga, Ms. ShubhikaSaluja, Balaji Srinivasan, Raghavendra S. Srivatsa, Manmohan P. N.,Likhi Chand Bonsle, Ms. Komal Mundhra, Shailesh Madiyal, SudhanshuPrakash, Ms. Rakhi M., Vaibhav Sabharwal, Ms. Sruthi Iyer, Ms. NehaDJain, 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 consentEtaken up for hearing along with connected Civil Appeals. In all theseAppeals a common question arises for consideration viz., “whetherinitiation of proceedings for acquisition of land for the purposes ofthe Karnataka Housing Board, invoking the power under Section33(2) of the Karnataka Housing Board Act, 1962, without thehousing scheme being in existence or the housing scheme not havingFbeen sanctioned under Section 24(2) thereof, would render suchacquisition proceedings void and non-est”. Certain allied questionsmay also call for consideration. We may hasten to state that we do notpropose to dispose of the appeals on merits under this judgment and itwould only resolve the stated common question and cognate issues.GNonetheless, if nothing survives for consideration in any appeal, uponanswering the moot question and allied issues, then its fate would dependupon the nature of their answers.

2. The Karnataka Housing Board Act, (hereinafter for short “theKHB Act”) was enacted with an object to provide for measures to beHtaken to deal with and satisfy the need for housing accommodation. For effectuating the said object, under Section 3 thereof, the KarnatakaHousing Board (for short “KHB”), was constituted. Different modesfor acquisition of properties for the purposes of KHB are provided underthe KHB Act, including the power for compulsory acquisition underSection 33(2). With this short prelude we will proceed to consider themoot question and the allied issues, for which it is proper and profitableto state succinctly the situation occurring in the appeals from which theystem for consideration. We refer to the rival contentions raised in theappeals solely for the said purpose.

Civil Appeal arising out of Special Leave Petition (Civil)No. 1361 of 2021

Civil Appeal arising out of Special Leave Petition (Civil)No. 1361 of 2021

3. This appeal is preferred by ‘KHB’ and its Special LandAcquisition Officer against the judgment and final order dated 01.12.2020of a Division Bench of the High Court of Karnataka at Bengaluru in WANo. 5712 of 2012 (LA-KHB) filed against the order in WP No.25184 of2011 dated 29.05.2012. The Government of Karnataka as per Annexure‘A’ Notification dated 15.12.1998, (marked thus in the appeal) issuedunder Clause(c) of Section 3 of the Land Acquisition Act, 1894 (forshort “L.A. Act”), appointed the Housing Commissioner of KHB toperform the functions of Deputy Commissioner under Section 4 of theL.A. Act in respect of the lands to be acquired for the purposes of KHBin Bengaluru and Mysore Revenue Divisions, namely, Bengaluru Urbanand Bengaluru Rural, etc. S.3(c) itself makes it clear that the appropriateGovernment is empowered to appoint any officer to perform the functionsof a collector under the L.A. Act. In exercise of the powers thusconferred, 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 56acres and 37 guntas of land, for the housing projects of KHB. The saidNotification was published in the official Gazette on 12.07.2007 andthereafter, in two daily newspapers on 18.08.2007 and local offices duringthe period from 13.08.2007 to 24.08.2007. Subsequently, the StateGovernment issued the declaration and final Notification Annexure ‘C’under Section 6(1) of the L.A. Act, dated 26.3.2009 declaring that thenotified properties are required for public purpose, i.e., for constructionof different categories of houses by KHB. It was also duly published inthe official Gazette and in two local newspapers. Mrs. Dawn D’souza, AB

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Athe mother of Respondents 2 and 3 in this Appeal, filed WP No.25184/2011 challenging the afore-mentioned preliminary and final Notificationsbefore the High Court of Karnataka. An interim order was granted inthe said petition on 28.7.2011. Earlier, three other writ petitions, viz., WPNos.25435/2010, 23002/2010 and 23083/2010, were filed by some otherland owners challenging the very same Notifications. Obviously, onlyBone point was raised in all the four cases, viz., ‘whether acquisitionNotifications could be issued until and unless scheme is finalized as perthe provisions of the KHB Act’. They were heard together and allowedby a Learned Single Judge as per the order dated 29.05.2012, upholdingthe contention of the petitioners therein that sanction of the housingCscheme concerned is sine qua non for initiation of acquisition proceedingstherefor, following his own judgment in WP No.9593/2007 in respect ofacquisitions 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, relyingmainly on the decision of this Court in State of Tamil Nadu & Anr. Vs.Mohammed Yousef & Ors. (AIR 1992 SC 1827). Later, onD29.06.2012, a proposal for 53 housing schemes, including for the aforesaidtwo places, namely, Kowdenahalli village and K.R. Puram village, weresubmitted to the Government for approval by KHB. On 04.09.2012, theState Government accorded sanction for all the said 53 housing schemesas per Annexure ‘H’ dated 4.9.2012. In respect of 30 acres and 3½Eguntas out of 56 acres and 37 guntas in the said villages, awards werepassed 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 dated29.05.2012. The Division Bench vide judgment dated 01.12.2020dismissed Writ Appeal No.5712/2012 rejecting the contention that initiationFof process for acquiring land for the purposes of KHB prior to the framingand sanctioning of the scheme for which acquisition is required will notinvalidate the acquisition proceedings and holding thus:- “In the circumstances, we are of the view that the sanction of ascheme by the State Government under sub-Section (2) of SectionG24 of the Act is a condition precedent and a mandatory requirementbefore the Housing Board would execute any housing scheme,land development scheme or labour housing scheme. This isirrespective of whether any housing scheme would entailacquisition of land or not as opposed to a scheme entrusted byHBoard under Section 32 of the Act.”

It is the said judgment that is impugned in this appeal arising out ofSLP(C)No.1361/2021.

4. It is contended by the appellants that the power of acquisitionconferred under Section 33(2) of the KHB Act is an independent powerand it could not be conditioned on prior approval of the scheme by theGovernment. According to them, schemes could be framed simultaneouslyor even subsequently and acquisition could be initiated for a contemplatedscheme. It confers the power to acquire land required for execution of ahousing scheme. The expression ‘required for execution of a housingscheme’ denotes the ‘purpose’ for which the land could be acquired andnot the ‘stage’ at which it could be acquired, it is also contended on theirbehalf. The further contentions raised on their behalf are as follows: -

It is illogical to infer that a scheme of KHB should obtain twosuccessive sanctions; one under Section 20 and the other under Section24(2) of the KHB Act. Such an interpretation would be nothing butmisconstruction of the provisions of the KHB Act. In exercise of thedelegated powers, if Notification is issued by the Commissioner, it couldonly be construed that acquisition is by the Government. The fact thatthe acquisition is for the KHB and that the acquired land would be handedover to KHB for its purpose(s) would not and could not invalidate thesaid acquisition. KHB Act received the assent of the President of Indiaon the ninth day of March, 1993 and Section 33(2) of the KHB Actmodifies L.A. Act and declares that acquisition for the purposes of KHBAct 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) isnot applicable to the cases on hand falling within the purview of KHBAct as the said decision dealt only with the provisions under the TamilNadu Housing Board Act (TNHB Act) and further that the provisionsand scheme of both the said Acts are different and distinct. The provisionsunder Section 49(1)(b) of the TNHB Act, virtually, persuaded this Courtin Mohammed Yousef’s case (supra) to hold that acquisition of land ispart of the housing scheme and therefore, Notification for the acquisitionof land for the housing scheme concerned could be issued only onfinalization of the scheme and its sanction by the Government. However,a provision pari materia to the same is conspicuously absent in KHBAct.

5. Respondents 2 and 3 in this appeal filed a synopsis, pursuant tothe permission granted to the parties to file written submissions along A

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Awith relevant documents/compilation, whereunder they have raisedvarious contentions to resist the claims and contentions of KHB. Wemay hasten to add here that we will not advert to all the contentionsadvanced by them and in view of the nature of the order we propose topass, as stated hereinbefore, we need only to deal with those contentionswhich are relevant for the consideration of the stated common questionBposed for resolution and also to the allied issues. In that view of thematter, it is relevant to refer to the following contentions: - When Section 4(1) Notification under the L.A. Act was issuedprior to the finalization of the scheme concerned it would be vague and,in such circumstances, the land owners would be deprived of the benefitCof filing effective objections under Section 5A of the L.A. Act. (As amatter of fact the impugned judgment itself would reveal that theirdeceased mother had filed objections on 17.09.2007 and later, an enquiryunder Section 5A of the L.A. Act was held). If the housing schemeinvolves acquisition of land, prior sanction under Section 24(2) of theDKHB Act is mandatory and framing and finalizing the scheme is a pre-requisite 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 ascontemplated under Section 24(2) of the KHB Act. Any suchconstruction, as canvassed by the appellants, if accepted would offendEthe language of Sections 24(2) and 33(2) of the KHB Act. In terms ofsub-Section (4) of Section 3 of the KHB Act, KHB shall be deemed tobe 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 theGovernment for the housing scheme concerned is necessary in order to Fmake acquisition as the one for ‘public purpose’. They have also referredto sections 17 to 24 of the KHB Act to buttress the contention thatwithout prior sanction under section 24(2) of the KHB Act, KHB couldnot execute any scheme by acquiring land. To drive home the point, theyrely on the decisions of this Court in Mohammed Yousef’s case(supra)

and in State of T.N. & others Vs. L. Krishnan’s & Others reportedGin (1996) 1 SCC 250.

Civil Appeal Nos. 7011-7013 of 2013, 7017-7019 of 2013 &9002-9003 of 2013

6. These companion appeals are filed by persons whose propertiesHare sought to be acquired for the purposes of KHB under Notifications prior to the one involved in the appeal arising from SLP(C) No.1361/2021, substantially raising contentions similar to that of the partyrespondents in the said appeal. Their core contention is that absence ofsanction for the building scheme concerned prior to the initiation ofacquisition proceedings would vitiate the entire acquisition proceedingsand would render it null and void.

6.1 The relevant details, as regards the companion appeals, arestated infra in a tabulated form for convenience.

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6.2 The tabulated details would go to show that in these casesGeither the framing or sanctioning or publication or all such processesrelating to the Housing Scheme concerned was/were effected onlysubsequent to the initiation of acquisition proceedings therefor. TheAppellant in C.A. Nos.7011-7013 of 2013 (S. Udaya Shankar) filedW.P.No.46250/2004 and the Appellants in C.A.Nos.7017-7019 of 2013(B.N. Byregowda & Ors.) filed W.P.No.47616/2004 challenging the H

Aselfsame Notifications, viz., preliminary Notification under Section 4 dated31.03.2001 and Section 6 declaration and final Notification dated10.5.2002 of the L.A. Act. During the pendency of the said Writ Petitionsthe Appellants in C.A. Nos. 9002-9003 of 2013 approached the HighCourt by filing W.P. Nos. 18596/2006 and 11568/2008 respectivelychallenging a subsequent preliminary Notification under Section 4 datedB01.04.2005 and Section 6 declaration dated 02.11.2006 in respect ofanother area for the purpose of KHB. A Learned Single Judge of theHigh Court, as per judgment dated 06.02.2009, dismissed them holdingthat prior sanction of the housing scheme concerned is not necessaryfor initiating acquisition for the purposes of the KHB under the KHBCAct by placing reliance on the decision of this Court in L. Krishnan’scase (supra). The said common judgment dated 06.02.2009 was takenin appeal as W.A. Nos. 1244-45/2009 (LB-KHB). During its pendency,another learned Single Judge of the High Court vide judgment dated28.06.2012 in W.P.No.9593/2007 and connected cases held that aDsanctioned housing scheme is condition precedent, for initiation ofacquisition proceedings under the KHB Act for its purpose. When W.PNo.46250/2004 filed by the Appellant in Civil Appeal Nos.7011-7013 of2013 came up for consideration, taking note of the pendency of WritAppeal Nos.1244-45 of 2009 and also of the conflicting decisions of twolearned Single Judges in WP No.18596/2006 and WP No.9593/2007 andEconnected matters, it was referred to a Division Bench. On the samegrounds the learned Single Judge referred WP No.47616/2004 also to aDivision Bench.

7. In the judgment in Writ Appeal Nos.1244-45 of 2009 the DivisionBench took note of the fact that the land involved therein was notifiedFfor acquisition by invoking Section 33 of the Act read with Section 4(2)of the L.A. Act and identified the point to be answered, as can be seenfrom paragraph 6 of the judgment passed thereon dated 26.04.2013,thus: - “6. The only point to be answered by us in these appeals is whetherGthe Housing Board is required to obtain sanction of a HousingScheme u/s 24 of the Act before initiation of the acquisition of theland or not in order to implement the Housing Scheme.”

Paragraph 7 therein also assumes relevance, in this regard. Itreads thus:-H

“7. It is the contention of the appellants that without their being aScheme sanctioned as required u/s 24 of the Act, lands of theappellants could not have been acquired.”

8. After referring to Sections 18 to 24 of the Act, vide paragraphs14, 15 and 18 the Division Bench held thus: - “14. A reading of Sections-18 to 24, it is clear that there is nonecessity for obtaining the sanction of the Housing scheme or theLand Development scheme in order to acquire the property forthe aforesaid projects. But without their being a sanction from theGovernment under Section 24, no scheme shall be executed bythe Housing Board. Therefore, it is clear that obtaining of sanctionunder the Housing Scheme or Land Development Scheme wouldarise only after preparation of all preliminary preparation of thescheme, preparation of the Housing project, Land DevelopmentProject, Budgetary provision, identifying the lands or acquiringthe lands and the staff required and estimation and other things ascontemplated under sections-18 to 23. Only after strict compliancesof Sections-18 to 23, before actual execution of the HousingScheme or Land Development Scheme, obtaining of the sanctionu/s 24 would arise.

15. In this background, after considering the Judgment of theLearned Single Judge, we cannot find fault with his order becausehe has clearly ruled that no prior permission is required u/s 24 ofthe Act, in order to identify the lands or to acquire the lands.Accordingly, we answer the said point, agreeing with the findingsof the Learned Single Judge.

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18. With the above observations, the appeals are allowed confirmingthe finding of the Learned Single Judge on the question of section-24 of the Housing Board Act, the matter is remanded to theLearned Single Judge with a request to reconsider the matterafresh as observed above.”

9. Thus, obviously, the Division Bench, as per judgment dated26.04.2013 in Writ Appeal Nos.1244-45/2009 affirmed the decision ofthe learned Single Judge in W.P. Nos.18596/2006 and 11568/2008 that A

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Aexistence of a sanctioned housing scheme is not required for initiation ofcompulsory acquisition under the KHB Act. Civil Appeal Nos.9002-9003/2013 were filed challenging the judgment and final order dated 26.04.2013in Writ Appeal Nos.1244-45 of 2009. It is a fact that on the same day,the Division Bench, obviously relying on the decision in Writ AppealNos.1244-45/2009, dismissed W.P. Nos.46250 and 47616 of 2004 videBseparate judgments. Civil Appeal Nos.7011-7013/2013 and 7017-7019/2013 were filed in the circumstances challenging the judgment and finalOrder dated 26.04.2013 in the respective writ petitions and also againstthe relied upon judgment and final Order in Writ Appeal Nos.1244-45/2009, dated 26.04.2013.C

10. The pleadings in the captioned Civil Appeals and thesubmissions made by the respective learned counsel for the appellantswould reveal the common contention of the parties in C.A.Nos.7011-7013, 9002-9003 and 7017-7019 of 2013 that acquisition of land for thepurposes of KHB under the KHB Act is part of the housing scheme toDbe prepared in terms of Sections 18-23 of the KHB Act and, therefore,acquisition proceedings could not have been initiated before the sanctioningof the housing scheme concerned. Since, acquisition proceedingspreceded the sanction of the housing scheme(s) concerned, they are tobe deemed as null and void and as such, liable to be set aside, they wouldfurther contend. It is to support the said contentions that they are relyingEon the decision in MohammedYousef’s case (supra). The KHB, whichis the appellant in the appeal by Special Leave arising fromSLP(C)No.1361/2021 would contend that acquisition proceedings forits purposes invoking the power under Section 33(2) of the KHB Actcould not be said to be part of the housing scheme to be prepared inFterms of Sections 18-23 of the Act by the KHB and the only conditionfor executing the scheme would be that prior to its execution Governmentalsanction should be obtained therefor.

11. On perusal of the relevant provisions and hearing the rivalcontentions in all the above appeals we think that construction of SectionG33 (2) of the KHB Act would be a pointer to answer the stated commonquestion involved in the appeals. In that pursuit, it is also to be ascertained,with reference to the relevant provisions under the Act, as to whetheracquisition proceedings by KHB invoking the power thereunder wouldform part of a housing scheme, as defined under the KHB Act. Subjectto its answer, the question whether ‘acquisition forming part of housingH

scheme’ by itself is decisive as to the validity of the initiation of acquisitionproceeding prior to the sanction of the scheme concerned, may alsohave to be considered in this pursuit.

12. The case of the Appellants, (other than the KHB and its co-appellant) who canvass the position that sanctioning of the scheme is apre-condition for compulsory acquisition for KHB under Section 33 (2)of the Act, is founded on the decision of this Court in Mohammed Yousef’scase (supra) and other judicial pronouncements rendered relying on/referring to the said decision. In that regard they also contend that theprovisions in the TNHB Act (then referred to as Madras State HousingBoard Act, 1961), that persuaded this Court to lay down law as mentionedhereinbefore have pari materia provisions in the KHB Act. We mayhasten to state at this juncture that the learned counsel for KHB resistedthe contention. He submitted that the claim of existence of provisions inthe KHB Act pari materia to the provisions under the TNHB Act, 1961that formed the ground for laying the law in the decision in MohammedYousef’s case (supra), is absolutely incorrect and baseless. It is furthersubmitted on behalf of KHB that the said decision is inapplicable to theinstant cases. Still, the learned counsel for KHB relied on L. Krishnan’scase, which again was rendered with reference to acquisition for thepurpose of Tamil Nadu Housing Board. In that context learned counselfor KHB would submit that reliance is placed on the decision in L.Krishnan’s case solely to fortify the contention that the decision inMohammed Yousef’s case is not applicable to the appeals on hand.Furthermore, it is contended on behalf of KHB that the embargo underSection 24 (2) of the KHB Act would not stand against initiation ofacquisition proceedings under Section 33(2) of the KHB Act withoutwaiting for formation, sanctioning or publication of a housing scheme.According to the learned counsel what is legally required in terms of theprovisions under Section 33 (2) of the KHB Act is that before executionof the scheme viz., implementation of the scheme, sanction should beobtained.

13. In the light of the rival contentions referred to hereinbefore itis apropos to consider, at first, the applicability of decision of this Courtin Mohammed Yousef’s case (supra) in the matter of resolution of thestated question and the allied issues. In view of the scanned analysis ofthe decision in Mohammed Yousef’s case by a three-Judge Bench ofthis Court in the decision in L. Krishnan’s case (supra), from paragraphs A

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A23 onwards, we need only to refer to the relevant recitals and conclusions/findings from the decision in L. Krishnan’s case in our pursuit to answerthe applicability of the decision in Mohammed Yousef’s case. The three-Judge Bench was called upon to consider the correctness of the law laiddown in Mohammed Yousef’s case while considering the questions thatarose in Civil Appeal Nos.1865-66 and 1868-70 of 1992. Those appealsBwere directed against a judgment of the Madras High Court in a batchof Writ Petitions whereunder it quashed three Notifications issued underSection 4(1) of the L.A. Act for the implementation of housing schemes,relying mainly on the decisions of this court in Mohammed Yousef’scase (supra) and in Munshi Singh Vs. Union of India [(1973) 2 SCCC337]. In paragraph 22 of L. Krishnan’s case this Court observed:“But before we refer to them, it would be appropriate to deal withthe decision of a two-Judge Bench of this Court in State of T.N.Vs. A Mohd. Yusuf, affirming the decision of the Madras HighCourt, upon which strong reliance is placed by the respondents.DIn this decision, it has been held that a proceeding under the LandAcquisition Act read with Section 70 of the Housing Board Actcan be commenced only after the framing of the scheme for whichthe land is required, but not before.”

EIn this context, it is also worthy to note the first question posed forconsideration before the three-Judge Bench in L. Krishnan’s case (supra),which was mentioned in paragraph 7 thereof thus:- “The first question that arises in these appeals is whether afinal and effective scheme prepared and published under theFprovisions of the Housing Board Act is a precondition to theissuance of notification under Section 4. This question has to beanswered with reference to the provisions of the Land Acquisition”act as well as the Housing Board Act.

(Underline supplied)

G14. The three-Judge Bench in L. Krishnan’s case furthermentioned thus:- “We may mention, at the outset, that these appeals have beenreferred to a three-Judge Bench by a Bench of two learned judgesbecause they doubted the correctness of the decision in Mohd.HYusuf, vide order dated 16.09.1993.”

15. Paragraphs 24 to 33 of the decision in L. Krishnan’s case areworthy to be extracted to decide on the applicability of the decision inMohammed Yousef’s case to decide the stated mooted question involvedin these appeals. Paragraphs 24 to 28 read thus:-

“24. The facts in Mohammed Yousef are these: the notificationunder Section 4 of the Land Acquisition Act was issued statingthe public purpose as construction of houses by the Tamil NaduHousing Board. Admittedly not even a draft scheme was framedby the Housing Board by the date of the said notification. On thecontrary, the contention of the State was that only after theacquisition proceedings are completed and possession of the landtaken, would they frame a scheme. Alternately, it was contendedby the State that framing of a scheme is not a precondition forissuance of a valid notification under Section 4 of the LandAcquisition Act proposing to acquire the land for construction ofhouses by the Housing Board. The High Court had struck downthe notification on the ground that the public purpose mentionedtherein was too vague in the absence of details relating to thescheme for which the acquisition was sought to be made. TheHigh Court opined that in the absence of such a scheme with-necessary particulars the landowners cannot effectively avail ofthe opportunity given by Section 5-A. In this Court, however, themain contention of the respondents-land-owners was that theframing of a scheme by the Housing Board under the provisionsof the Housing Board Act is a precondition to a valid notificationunder Section 4 where the land is proposed to be acquired for thepurpose of the Housing Board. In view of the said contention, thisCourt examined the scheme of the Act and held that inasmuch asacquisition of the land is a part and parcel of the execution of ascheme framed by the Board under the Act, the acquisition mustfollow the scheme and cannot precede it. The Bench furtherobserved that unless such a scheme with requisite particulars isduly published, it may not be possible for the land-owners to objectto the proposed acquisition on the ground that the land is not suitablefor the scheme at all and/or that it does not serve the stated publicpurpose. The Bench observed that the power of the Board toframe a scheme is regulated by the provisions of the Act which,inter alia, provide a full opportunity to the affected persons toobject to the scheme. Even after the final publication of the scheme A

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and after its coming into force, it was pointed out, the scheme canyet be altered or cancelled as provided under Section 56 of theAct. For all these reasons, the Bench held that: (SCC p. 229, para11)

“a proceeding under the Land Acquisition Act read with Section70 of the Madras Housing Board Act, can be commenced onlyafter framing the scheme for which the land is required”.

25. Unfortunately, the provisions in sub-Sections (2) and (3) ofSection 35 and Section 36 were not brought to the notice of theBench nor were the earlier Constitution Bench decisions of thisCourt brought to its notice, to which decisions we may now turn.But one more relevant aspect before we refer to them.

26. After, and in the light of, the impugned judgment, the TamilNadu Legislature has amended the Housing Board Act withretrospective effect with a view to remove the basis of the saidjudgment and providing expressly that existence of a schemeframed by the Housing Board is not a pre-condition for acquiringland for the purpose of the Board. The validity of the saidAmendment Act has also been questioned in the connected mattersbut the necessity to go into that question will arise only if weagree with the reasoning and conclusions in the decision underappeal. Indeed, Shri Salve’s argument was that the decision ofthe High Court is unsustainable even without reference to thesaid Amendment Act and it is on that basis that he made hissubmissions.

27. In Arnold Rodricks v. State of Maharashtra, the ConstitutionBench dealt with the question whether the statement in thenotification under Section 4 that the land was required for“development and utilisation of the said lands as an industrial andresidential area” cannot be said to be a public purpose within themeaning of Section 4 of the Land Acquisition Act. The Courtheld, relying upon the decisions of this Court in Babu BarkyaThakur v. State of Bombay (SCR at p. 137) and Pandit JhanduLai v. State of Punjab — as well as the statement in the counter-affidavit filed on behalf of the State Government — that the purposestated in the notification is indeed a public purpose. The ConstitutionBench pointed out that in Babu Barkya Thakur, this Court hadrelied upon the decision in State of Bombay v. Bhanji Munji to the effect that “providing housing accommodation to the homelessis a public purpose (and that) where a larger section of thecommunity is concerned, its welfare is a matter of public concern”.

The counter-affidavit filed on behalf of the Government explainedthat the pressure of housing in Bombay is acute and that therewas any amount of need for fresh housing. The Court (majority)observed:

“In our view the welfare of a large proportion of persons livingin Bombay is a matter of public concern and the notificationsserved to enhance the welfare of this section of the communityand this is public purpose.”

28. Another contention urged for the petitioners was that theGovernment had not prepared any scheme before issuing thenotification under Section 4. This argument was also negatived inthe following words:

“This is true that the Government has not uptil now prepared anyscheme for the utilisation of the developed sites. But the notificationitself shows that the sites would be used as residential and industrialsites. There is no law that requires a scheme to be preparedbefore issuing a notification under Section 4 or Section 6 ofthe Act. We have, however, no doubt that the Government will,before disposing of the sites, have a scheme for their disposal.”

16. After making such reference in L. Krishnan’s case it wasfurther held in paragraphs 29 to 33 thus:- “29. We have held hereinbefore that merely because the HousingBoard Act contemplates acquisition of land as part of a housingor improvement scheme, it does not follow that no land neededfor the purpose of the Housing Board Act can be acquired untiland unless a scheme is prepared and finalised by the Board andbecomes effective under the provisions contained in Chapter VII.

30. In Aflatoon v. Lt. Governor of Delhi, another ConstitutionBench dealt with a similar contention, viz., that before publishingthe notification under Section 4, the Government had not declaredany area in Delhi as a development area under Section 12(1) ofthe Delhi Development Act nor was there a master plan drawn A

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up in accordance with Section 7 of that Act. The notification underSection 4 was attacked on that basis. It was argued that underSection 12(3) of the Delhi Development Act, no development ofland can be undertaken or carried out except as provided in thatsub-Section. This argument was negatived by the ConstitutionBench holding that: (SCC pp. 294-95, para 23)

“The planned development of Delhi had been decided upon bythe Government before 1959, viz., even before the DelhiDevelopment Act came into force. It is true that there could beno planned development of Delhi except in accordance with theprovisions of Delhi Development Act after that Act came intoforce, but there was no inhibition in acquiring land for planneddevelopment of Delhi under the Act before the Master Planwas ready(See the decision in Patna Improvement Trust v.LakshmiDevi). In other words, the fact that actual developmentis permissible in an area other than a development area withthe approval or sanction of the local authority did notpreclude the Central Government from acquiring the land forplanned development under the Act. Section 12 is concernedonly with the planned development. It has nothing to do withacquisition of property; acquisition generally precedesdevelopment. For planned development in an area other thana development area, it is only necessary to obtain the sanctionor approval of the local authority as provided in Section 12(3).The Central Government could acquire any property underthe Act and develop it after obtaining the approval of thelocal authority.”

(emphasis added)

31. It is significant to notice that Section 12 of the DelhiDevelopment Act, 1957 provided for declaration of any area asdevelopment area by the Central Government and it furtherprovided that except as otherwise provided by the said Act, theDelhi Development Authority shall not undertake or carry out anydevelopment of land in any area which is not a development area.Sub-Section (3) of Section 12, however, provided that after thecommencement of the said Act, no development of land shall beundertaken or carried out in any area by anyone unless (i) wherethat area is a development area, permission for such development has been obtained in writing from the Authority in accordancewith the provisions of the Act and (ii) where the area is an areaother than a development area, approval of the local authority orother authority concerned is obtained according to law. Section15 of the said Act provided for acquisition of any land required forthe purpose of development under the Act.

32. In our opinion, the observations quoted and emphasisedhereinabove, and the broad similarity between the provisions ofthe Delhi Act and the Tamil Nadu Housing Board Act, establishthat the acquisition of the land is not dependent upon the preparationand approval of a scheme under Sections 37 to 56 and that theGovernment’s power of acquisition extends to other purposes ofthe Board and the Housing Board Act referred to in Sections 35and 36. Moreover, under Tamil Nadu Housing Board too, there isno inhibition against acquisition of land for the purpose of the Boardexcept in accordance with and as a part of the scheme.

33. For all the above reasons, we find it difficult to read the holdingin Mohammed Yousef as saying that in no event can the land beacquired for the purpose of the Act/Board unless a final andeffective scheme is framed by the Housing Board under theprovisions of Sections 37 to 56. The said limitation applies onlywhere the land is sought to be acquired avowedly for the purposeof execution of a housing or improvement scheme prepared bythe Housing Board under Chapter VII of the Tamil Nadu HousingBoard Act. In other words, unless the notification under Section 4of the Land Acquisition Act expressly states that land proposed tobe acquired is required for executing a housing or improvementscheme (i.e., a final and effective scheme) framed by the HousingBoard under the provisions of the Tamil Nadu Housing BoardAct, the principle and ratio of Mohammed Yousef is not attracted.Mere statement in the notification that land is required for thepurpose of the Housing Board would not by itself attract the saidprinciple and ratio. In the instant appeals, the notifications do noteven state that the land proposed to be acquired is meant for thepurpose of the Housing Board.”

17. Thus, a perusal of the decisions in Mohammed Yousef’s caseand L. Krishnan’s case (supra) would disclose that both the decisions A

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Awere rendered with reference to the provisions under the L.A. Act andthe TNHB Act. It is true that a two-Judge Bench of this Court inMohammed Yousef’s case, after referring to the provisions under theMadras State Housing Board Act, 1961, which was later renamed as‘TNHB Act’, held that a proceeding under the Land Acquisition Actread with Section 70 of the Housing Board Act could be commencedBonly after the framing of the scheme for which the land is required, andnot before. But then, upon doubting the correctness of the decision inMohammed Yousef’s case, two learned judges of this Court referredthe appeals (decided under L. Krishnan’s case) to a three-Judge Bench.It is in those appeals that the three-Judge Bench in L. Krishnan’s caseCobserved that unfortunately neither the provisions in sub-Sections (2)and (3) of Section 25 and Section 36 of Act 17 of 1961 nor earlierConstitution Bench decisions of this Court, were brought to the notice ofthe Bench which rendered the decision in Mohammed Yousef’s case.Thereafter, upon considering all the relevant provisions under Act 17 of1961, the provisions of the very Act which were dealt with or not dealtDwith in the decision in Mohammed Yousef’s case and also variousdecisions of this Court the three-Judge Bench in L. Krishnan’s caseheld :- “For all the above reasons, we find it difficult to read the holdingin Mohd. Yusuf as saying that in no event can the land be acquiredEfor the purposes of the Act/Board unless a final and effectivescheme is framed by the Housing Board under the provisions ofSections 37 to 56.”

18. The afore-extracted recitals in L. Krishnan’s case would revealthat the position held as above holding in Mohammed Yousef’s case wasFheld applicable only where the land is sought to be acquired avowedlyfor the purpose of execution of a housing or improvement scheme preparedby the Housing Board under Chapter VII of the Tamil Nadu HousingBoard Act. Further it was clarified in paragraph 33 itself thus:- “In other words unless the notification under Section 4 of theGLand Acquisition Act expressly states that the land proposed tobe acquired is required for executing a housing or improvementscheme (i.e., a final and effective scheme) framed by the HousingBoard under the Tamil Nadu Housing Board Act, the principleand ratio of Mohd. Yusuf is not attracted.”

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19. The contention of vagueness in the matter of public purposein the Notifications and its impact was considered and negated in viewof the Constitution Bench decisions of this Court in Aflatoon Vs. Lt.Governor of Delhi [(1975) 4 SCC 285] and in Arnold RodricksVs. State of Maharashtra [AIR 1966 SC 1788]. The decision in Pt.Lila Ram Vs. Union of India [(1975) 2 SCC 547] was also referredto in that regard. It was observed that the decision in Munshi Singh’scase (supra) would not come to the rescue of the Writ Petitioners –Respondents. Based on such conclusions and findings and those madein paragraphs 24-33 this Court allowed Civil Appeal Nos.1865-66, 1868-70 of 1992 and set aside the judgment of the Madras High Court underAppeal and dismissed the Writ Petitions from which those appeals arose.It is also relevant to note that the Civil Appeals filed against the judgmentsof the Madras High Court upholding the validity of the Tamil Nadu HousingBoard Amendment Act 5 of 1992 were also dismissed by the three-Judge Bench following the judgment in Civil Appeal Nos.1865-66, 1868-70 of 1992.

20. Decision in L. Krishnan’s case would thus reveal that thethree-Judge Bench after careful consideration held that merely becausethe TNHB Act contemplates acquisition of land as part of a housing orimprovement scheme, it could not be said that no land needed for thepurpose of the Housing Board could be acquired until and unless thescheme was prepared and finalized by the board and became effectiveunder the provisions contained in chapter VII of the TNHB Act thatdeals with acquisition and disposal of land. The three-Judge Bench furtherfound it difficult to read the dictum in Mohammed Yousef’s case (supra)as saying that in no event land could be acquired for the purpose of theAct/Board unless a final and effective scheme is framed by the HousingBoard under the provisions of Sections 37 to 56. We have already notedthe further conclusions and findings of the three-Judge Bench in L.Krishnan’s case and the outcome of such consideration, conclusionsand findings.

21. The long and short of the above discussion is that the contentionthat initiation of acquisition for the purposes of KHB/the KHB Act, priorto the sanction and/or the publication of housing scheme concerned/landdevelopment scheme concerned, is null and void in view of the decisionin Mohammed Yousef’s case is untenable. So also, the contention that inview of the decision in Mohammed Yousef’s case acquisition proceedings A

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Aform part of housing scheme/land development scheme and hence,acquisition for the purposes of KHB/the KHB Act prior to the sanctionand/or the publication of housing scheme concerned/land acquisitionscheme concerned, is null and void cannot be countenanced. Suffice itto say that the moot question and allied issues are to be considered andanswered independently without reference to the decision in MohammedBYousef’s case, but with reference to the L.A. Act as well as KHB Act.In that view of the matter, we will now proceed to consider them withreference to the L.A. Act and the KHB Act and not with reference toother authorities pronounced under different enactments. We are fortifiedin that view by a Constitution Bench decision of this Court in OffshoreCHoldings Pvt. Ltd. vs. Bangalore Development Authority & Ors.(2011) 3 SCC 139. It, in so far as relevant, reads thus:- “85…… the dictum stated in every judgment should be appliedwith reference to the facts of the case as well as its cumulativeimpact. Similarly, a statute should be construed with reference toDthe context and its provisions to make a consistent enactment i.e.ex visceribus actus.”

22. We may also add that a judgment rendered with respect to theposition obtained under a particular provision(s) in one enactment cannotbe applied while dealing with a similar situation falling under a differentEenactment, unless pari materia provision(s) exist in that enactment,without looking into the facts and law.

23. Now, we will refer to the various relevant provisions to havepanorama on the scheme of the KHB Act for answering the mootquestion. Section 2 of KHB Act carries such definitions and the relevantFamong them are extracted hereunder:- “S.2 DEFINTIONS:- In this Act, unless the context otherwiserequires.- (a)“Board” means the Housing Board constituted underSection 3’

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(f) “Competent Authority” means any person authorized bythe State Government, by notification to perform the functions ofthe Competent Authority under Chapter VI for such area as maybe specified in the notification; (h) “Housing Scheme” means a housing scheme under this Act; H

(i) “Land” includes benefits to arise out of land and things attachedto the earth or permanently fastened to anything attached to theearth; (i-1) “Land Development Scheme” means a scheme framedunder this Act for the purpose of providing house sites in anyArea; (n) “Programme” means the annual housing programme and landdevelopment programme prepared by the Board under Section19;

24. Chapter III (Sections 17 to 32A) provides for and deals withhousing schemes and land development schemes. The relevant provisionsfor the purpose of these cases are extracted infra:- “17. Duty of Board to undertake housing schemes and landdevelopment schemes.- Subject to the provisions of this Actand subject to the control of the state Government, the Boardmay incur expenditure and undertake works in any area for theframing and execution of such housing schemes and landdevelopment schemes as it may consider necessary from time totime, or as may be entrusted to it by the State Government.

18. Matter to be provided for by housing schemes.-Notwithstanding anything contained in any other law for the timebeing in force, a housing scheme may provide for all or any of thefollowing matters, namely.- (a)the acquisition by purchase, exchange or otherwise of anyproperty necessary for or affected by the execution of thescheme; (b)the laying or relaying out of any land comprised in thescheme;

(c) the distribution or redistribution of sites belonging to ownersof property comprised in the scheme; (d)the closure or demolition of dwellings unfit for humanhabitation; (e)the demolition of obstructive buildings or portions ofbuildings; A

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A(f)the construction and reconstruction of buildings, theirmaintenance and preservation; (g)the sale, letting or exchange of any property comprised inthe scheme; (h)the construction and alteration of streets and back lanes; B

(i) provision for the draining, water-supply and lighting of thearea included in the scheme and carrying out by the Boardin such area, drainage, sewerage and water supply works; (j)the provision of parks, playing-fields and open spaces forthe benefit of any area comprised in the scheme and theenlargement of existing parks, playing fields, open spacesand approaches; C

(k) the provision of sanitary arrangements required for the areacomprised in the scheme, including the conservation andprevention of any injury or contamination to rivers or othersources and means of water-supply; D

(l) the provision of accommodation for any class of inhabitants; (m)the advance of money for the purpose of the scheme; (n)the provision of facilities for communication and transport; E

(o) the collection of such information and statistics as may benecessary for the purposes of this Act; (p)any other matter for which, in the opinion of the StateGovernment, it is expedient to make provision with a viewto provide housing accommodation and to the improvementor development of any area comprised in the scheme orthe general efficiency of the scheme.

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18-A. Matters to be provided for by Land DevelopmentSchemes.- Notwithstanding anything contained in any other lawGfor the time being in force, a land development scheme may withinthe limits of the area comprised in the scheme, provide for all orany of the following matters, namely:- (a)the acquisition by purchase, exchange or otherwise, of anyland which in the opinion of the Board will be necessary foror affected by the execution of scheme;H

(b) laying or re-laying of all or any land comprised in the schemeAand formation and alteration of streets;

(c) drainage, water supply and electricity and carrying out bythe Board in the area included in the scheme, drainagesewerage and water supply works; B

(d) the distribution or redistribution of sites comprised in thescheme; (e)raising the level of any land which the Board may considerexpedient to raise to facilitate better drainage; C

(f) forming open space for the better ventilation of the areacomprised in the scheme or any adjoining area; (g)sanitary arrangements required; (h)sites for Parks, Playgrounds, Stadium, recreation grounds,School buildings, Markets, Motor Vehicle Stands, Theaters,Police Stations, Post Offices, Co-operative Societies, PublicUrinals and Latrines, Petrol Service Stations, Hospitals,Dispensaries, Banks, Burial and Cremation Grounds andSites for public purposes of other kinds.

D

19. Preparation and submission of annual housingprogramme and land development programme budget andestablishment schedule.- (1) Before the first day of Decemberin each year, the Board shall prepare and forward,- E

(i) a programme,

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(ii) a budget for the next year,

(iii) a schedule of the staff of Officers and servants alreadyemployed and to be employed during the next year; To the State Government in such form as may be prescribed.

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(2) The programme shall contain.-

(a) such particulars of housing schemes, land developmentschemes and labour housing schemes which the Boardproposes to execute whether in part or whole during thenext year as may be prescribed; H

SUPREME COURT REPORTS

A(b)the particulars of any undertaking which the Board proposesto organize or execute during the next year for the purposeof the production of building materials; and

(c) such other particulars as may be prescribed.

(3) The budget shall contain a statement showing the estimatedreceipts and expenditure on capital and revenue accounts for thenext year.

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20. Sanction to programme, budget and establishmentschedule.- The State Government may sanction the programme,the budget and the schedule of the staff of Officers and servantsforwarded to it with such modifications as it deems fit.

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21. Publication of sanctioned programme.- The StateGovernment shall publish the programme sanctioned by it underSection 20 in the official Gazette.

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22. Supplementary programme and budget.- The Board may,at any time, during the year, in respect of which a programme hasbeen sanctioned under Section 20 submit a supplementaryprogramme and budget and the additional schedule of the staff, ifany, to the State Government and the provisions of Sections 20and 21 shall apply to such supplementary programme.

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23. Variation of programme by Board afterit is sanctioned.-The Board may, at any time, vary any programme or any partthereof included in the programme sanctioned by the StateGovernment; F

Provided that no such variation shall be made if it involves anexpenditure in excess of twenty per cent of the amount as originallysanctioned for the execution of any housing scheme or landdevelopment scheme included in such programme or affects itsscope or purpose.

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24. Sanctioned housing schemes and land developmentschemes to be executed.—(1) After the programme has beensanctioned and published by the State Government under sections20 and 21, the Board shall, subject to the provisions of Section 23,proceed to execute the housing scheme, land development schemeor labour housing scheme included in the programme.

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(2) The Board shall not execute any housing scheme, landdevelopment scheme or labour housing scheme unless the samehas been sanctioned by the State Government.

32. Schemes entrusted to Board by Government, etc.—(1)The provisions of sections 18 to 24 (both inclusive) shall not beapplicable to any housing scheme, land development scheme orlabour housing scheme entrusted to the Board by the StateGovernment except to such extent and subject to suchmodifications as may be specified in any general or special ordermade by the State Government, and every such order shall bepublished in the Official Gazette.

(2) Notwithstanding anything contained in this Act, the Boardshall not be competent to carry on any trading or financing activityfor profit, whether in the execution of any scheme undertaken by,or entrusted to it, or otherwise.”

25. A conjoint reading of the afore-extracted provisions of KHBAct will unfold the duties of the KHB as to undertake housing schemesand land development schemes as it may consider necessary from timeto time or as may be entrusted to it by the State Government. What arethe matters to be provided for by housing schemes and land developmentschemes are mentioned respectively under Sections 18 and 18A. Goingby Section 2(n) ‘programme’ means the annual housing programme andland development programme prepared by KHB under Section 19. Section19 mandates that before the first day of December in each year, KHBshall prepare and forward a programme, a budget for the next yearand a schedule of the staff of officers and servants already employedand to be employed during the next year, to the State Government. Asper the said section, the said programme shall contain such particularsof the housing schemes, land development schemes and labour housingschemes which it proposes to execute whether in part or whole duringthe next year as may be prescribed. Under Section 20 the StateGovernment may sanction the programme, the budget and the scheduleof the staff of officers and servants forwarded to it with suchmodifications as it deems fit. As per Section 21, the State Governmentshall publish the programme sanctioned by it under Section 20 in theofficial Gazette. Section 22 permits submission of supplementaryprogramme and budget in respect of which a programme and budgethad been sanctioned under Section 20 and in the eventuality of submission A

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Aof such a supplementary programme and budget the provisions of Sections20 and 21 would apply.

26. Section 23 confers power on the board to vary any programmeor any part thereof included in the programme sanctioned by the StateGovernment, at any time. The bare perusal of the proviso thereunderBwould reveal that it is not an unfettered power. Going by the proviso, nosuch variation shall be made if it involves an expenditure in excess of 20per cent of the amount as originally sanctioned for the execution of anyhousing scheme or land development scheme included in such programmeor affects its scope or purpose. Thus a bare perusal of the provisionsunder Sections 17 to 23, contained in Chapter-III of the KBH Act, wouldCreveal that they deal with duties of KHB to undertake housing schemesand land development schemes, matters to be included in such schemes,preparation and submission of annual housing programme and landdevelopment programme, budget and establishment schedule and suchother procedures to be followed ultimately unto the sanctioning of theDprogramme and also the power of KHB to make variance of sanctionedprogramme and its limit.

27. Going by the scheme of the KHB Act, it deals with the subjectof execution of housing schemes, land development schemes and labourhousing schemes under Section 24. Bearing in mind the provisions underESections 18-23 we will consider the scope and purport of Section 24 ofthe KHB Act. A careful scrutiny of sub-Sections (1) and (2) of Section24 would bring forth their distinct differences. Section 24(1) prescribesthat after the programme has been sanctioned and published by the StateGovernment the board shall, subject to the provisions of Section 23,proceed to execute the housing scheme, land development scheme andFlabour housing scheme included in the programme. Thus, Section 24(1)states in unequivocal terms as to when the KHB shall proceed to executethe housing schemes, land development schemes and labour housingschemes included in the programme. Indisputably, in terms of the saidstatutory mandate KHB could proceed to execute any of the aforesaidGschemes included in the programme only after the sanction and publicationof the programme wherein the scheme concerned is included.

28. Now, we will consider the question of executability or otherwiseof housing schemes, land development schemes and labour housingschemes other than those included in a programme, by the KHB. AsHnoticed earlier, the unambiguous terms in Section 24(1) would reveal that it speaks only of such schemes included in a programmeand therebymake such ‘housing schemes, land development schemes and labourhousing schemes’ a definite category. The further question is whetherany other category containing such schemes is contemplated in the KHBAct and if so, when such scheme(s) would become executable? Theword ‘any’ that qualifies the words ‘housing scheme, land developmentscheme and labour housing scheme’ employed in sub-Section (2) thereofin contradistinction to the words ‘included in the programme’ employedunder sub-Section, positively indicates the executability of scheme(s)other than those included in the sanctioned programme. Indeed it iscouched in a negative form, as can be seen from sub-Section (2) thereof,extracted hereinbefore. As per the said provision KHB shall not executeanyhousing scheme, land development scheme or labour housing schemeunless the same has been sanctioned by the State Government.

29. As noted earlier, what sub-Section (2) proscribes is executionof such a scheme, be it a housing scheme or land development schemeor labour housing scheme, evidently not included in the programme forany particular year unless the same has been sanctioned by the StateGovernment. Pithily put, the schemes falling under sub-Sections (1) and(2) are different. If they are one and the same in view of the positivemandate under sub-Section (1) of Section 24 with respect to the time ofexecutability of such schemes included in the programme, viz., only aftertheir sanction and publication by the State Government, there wasabsolutely no necessity for incorporating sub-Section (2) under Section24 in the negative form. Certainly, the legislative intention under sub-Section (2) can be taken only as one to enable KHB to undertake suchschemes which were not included in the programme, as exception, butsubject to the condition of obtainment of sanction of the State Governmentbefore execution. In short, as a whole, the purport of Section 24 is thatno housing scheme or land development scheme or labour housingscheme, undertaken by the KHB shall be executed sans sanction fromthe State Government. Sub-Section (2) of Section 24 cannot be interpretedas one requiring obtainment of a second sanction for executing suchschemes included in the programme. On the contrary, the provision underSection 24(2) has to be interpreted as one enabling KHB to undertakesuch schemes which were not included in the programme, but becamenecessary to undertake, subject to sanction from the Government.According to us, such a construction will only sub-serve the purpose ofconstitution of KHB.

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A30. There can be no doubt that for executing a housing scheme,land development scheme and labour housing scheme, be it included ornot included in the programme, necessary extent of land has to beacquired. For, without the required extent of land, construction of housesunder housing and labour housing schemes or development of land underland development schemes could not be effected. It is a fact that, theBexpression ‘execution’ is not defined in the KHB Act. Therefore, thequestion is how the expressions ‘execute/execution’ employed in sub-Sections (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 ofKHB and its duties the dictionary meaning of the said expression has toCbe looked into. Accordingly, the following meanings given for the word‘execution’ in the Black’s Law Dictionary, Tenth Edition, are ascribableto 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); D

(2) The performance or completion of a thing;

(3) The final process of an action.

31. Chapter-IV of the KHB Act deals with the acquisition anddisposal of land. Section 33 reads thus:- E

E“S.33. Power to purchase or lease by agreement.- (1) TheBoard may enter into an agreement with any person for theacquisition form him by purchase, lease or exchange, or any landwhich is needed for the purposes of a housing scheme or landdevelopment scheme or any interest in such land or forFcompensating the owners of any such right in respect of anydeprivation thereof or interference therewith:

Provided that the previous approval of the State Governmentshall be obtained in case of purchase or exchange involving landworth more than rupees ten lakhs or lease for more than fiveyears.

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(2) The Board may also take steps for the compulsory acquisitionof any land or any interest therein required for the execution ofa housing scheme or land development scheme in the mannerprovided in the Land Acquisition Act, 1894, as modified by thisAct and the acquisition of any land or any interest therein for H

the purposes of this Act shall be deemed to be acquisition for apublic purpose within the meaning of the Land AcquisitionAct,1894,”

Section 33 was subsequently substituted in the year 2016 as perAct 24 of 2016. Taking into account the fact that the substitution tookplace subsequent to the notifications impugned in these proceedings it isunnecessary for us to look into the said substituted provision. In fact, noserious argument was advanced by any one with reference to the saidprovision.

32. Section 33 in Chapter-IV actually deals with the power ofKHB to acquire land. Sub-sections (1) and (2) thereof envisage differentmodes of acquisition which are different in nature. To put it succinctly, inthe matter of acquisition under Section 33(1), ‘consent’ is required andin respect of unwilling owners acquisition may be effected under sub-Section (2) thereof. What is relevant to be noted is that Section 33 dealswith acquisition of land or interest thereon and it is not dealing withsanction of the schemes. Obviously, for acquiring land or interest thereon,upon entering into an agreement with any person, by following anyoneof the three modes prescribed under Section 33(1) prior approval of theState Government is mandatory, subject to its proviso.

33. Under sub-section (1) of Section 33, the KHB may enter intoagreement with any person for the acquisition from him by purchase,lease or exchange of any land which is needed for the purposesof housingscheme or land development scheme or any interest in such land or forcompensating the owners of any such right in respect of any deprivationthereof or interference therewith. The proviso to sub-section (1) makesit mandatory to obtain previous approval of the State Government incase of purchase or exchange, involving land worth more than Rs.10lakhs. For lease such previous approval is mandatory if it is for morethan 5 years. The necessary corollary is that even in respect of acquisitionof land needed for the purposes of such schemes either by purchase,lease or exchange previous approval of the State Government need notbe obtained in case purchase or exchange, involved land worth Rs.10lakhs or less and in the case of lease if it is for 5 years or lesser period.

34. Sub-section (2) of Section 33 permits KHB to take steps forcompulsory acquisition of any land or any interest therein required forthe execution of a housing scheme or land development scheme.

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A35. In the case of compulsory acquisition of land required for theexecution of a housing scheme or land development scheme obtainmentof no such prior approval is prescribed under sub-Section (2) thereof.The reason is obvious. A perusal of the sub-Section (2) would revealthat what is permissible thereunder is compulsory acquisition of any landor interest thereon in the manner provided in the L.A. Act as modifiedBby the KHB Act. Section 4(1) of the L.A. Act is worthy for reference inthis context and it reads thus:- “S.4 Publication of preliminary notification and power ofofficers thereupon.- C(1) Whenever it appears to the [appropriate Government] theland in any locality [is needed or] is likely to be needed for anypublic purpose [or for a company], a notification to that effectshall be published in the Official Gazette [and in two dailynewspapers circulating in that locality of which at least one shallbe in the regional language], and the Collector shall cause publicDnotice of the substance of such notification to be given at convenientplaces in the said locality [(the last of the dates of such publicationand the giving of such public notice, being hereinafter referred toas the date of the publication of the notification)].”

36. But then, Section 4 (1) in its application to the State of KarnatakaEreads as hereunder:- In Section 4 of the principal Act,-

(1) In sub-section (1),-

(a) after the words “the appropriate Government”, the wordsF“or the Deputy Commissioner” shall be inserted; (b)for the words “notification to that effect”, the words“notification stating the purpose for which the land is needed,or likely to be needed, and describing the land by its surveynumber, if any, and also by its boundaries and itsGapproximate area” shall be substituted;

(c) after the words “the said locality”, the following sentenceand explanation shall be added, namely,- “the Deputy Commissioner may also cause a copy of suchnotification to be served on the owner, or where the owner is notHthe occupier, of the land.”

Explanation. - The expression “convenient places” includes, inthe case of land situated in a village, the office of the Panchayatwithin whose jurisdiction the land lies.

This State amendment was brought vide Land Acquisition (MysoreExtension and Amendment Act) Act 17 of 1961. We have already notedthat the Government of Karnataka as per Annexure-‘A’ Notificationdated 15.12.1998 (marked thus in the appeal arising from SLP (C)No.1361of 2021), which was issued under Clause (c) of Section 3 of the L.A.Act, appointed the Housing Commissioner of KHB to perform thefunctions of Deputy Commissioner under Section 4 of the L.A. Act inrespect of lands to be acquired for the purpose of KHB in Bengaluruand Mysore Revenue Divisions. In such circumstances, no error or defectcan be attributed against his issuing preliminary notification under Section4(1) of the L.A. Act.

37. A bare perusal of L.A. Act would reveal that the acquisitionproceedings 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 anypublic purpose. The Notification under Section 4(1) is a formal expressionof the decision to start acquisition proceedings for a public purpose. Thesaid notification takes the concrete shape and form by publication in theofficial Gazette of the appropriate Government, when that be mandatoryprocedures and when they are strictly complied with it would be withoutrhyme or reason to prescribe obtainment of a further approval of theGovernment for such compulsory acquisition by KHB. It is also to benoted that in the cases on hand subsequently, Government had issueddeclaration and final Notification as prescribed under Section 6 of theL.A. Act.

38. As noted earlier in L. Krishnan’s case a three-Judge Benchof this Court clearly found that there is nothing in Section 4(1) of theL.A. Act which insists for availability/existence of a sanctioned andpublished scheme for initiation of land acquisition under L.A. Act. Inparagraph 9 of L. Krishnan’s decision this Court held and observed thus:

“Section 4 of the Land Acquisition Act does not state expressly orby necessary intendment that before a Notification is issued/published thereunder proposing to acquire land for the purposesof a body like the Tamil Nadu Housing Board, a duly publishedfinal scheme prepared in accordance with the relevant Act should A

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Abe in force. The respondents/writ petitioners, however, seek todeduce such a requirement from the provisions of the TNHBAct.”

In view of the provisions under Section 4 of the L.A. Act and thedecision in L. Krishnan’s case as extracted above, it cannot be said thatBfor initiation of land acquisition proceedings under Section 4(1) of theL.A. Act proposing to acquire any particular land for the purpose ofKHB a duly published final scheme prepared in accordance with theprovisions of KHB Act should be in force. Despite the said positionobtained from Section 4 of the L.A. Act and the decision in L. Krishnan’scase the attempt herein is to deduce such a mandate from the provisionsCunder the KHB Act. The scanning of Section 33(2) of the KHB Act, asabove would clearly show that it contains no condition, either expresslyor by necessary implication, that before a Notification under Section4(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/Dland development scheme/labour housing scheme should be in force. Inthe said circumstances, the said contention cannot be sustained.

39. Unlike the provisions under TNHB Act, which mandate foracquisition of land for the purpose of TNHB Act and Tamil Nadu HousingBoard only in accordance with the provisions of L.A. Act, Section 33(2)Eof the KHB Act empowers the KHB to take steps for compulsoryacquisition of any land or any interest therein, required for the executionof a housing scheme in the manner provided in the L.A. Act, as modifiedby KHB Act.

40. Therefore, the next question is whether L.A.

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Act stands modified in any manner by the KHB Act in respectany particular aspect or procedure. A bare perusal of sub-Section (2) ofSection 33 itself would answer this question. Its latter limb contains ‘adeeming provision’. Certainly, that is attracted only on establishing thefoundational fact that the acquisition of land or interest therein is for theGpurposes of KHB Act. The said provision, extracted hereinbefore, wouldgo to show that upon establishing the same the acquisition of landconcerned or interest therein, as the case may be, shall have to be deemedas 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, interms of the same L.A. Act stands modified by KHB Act to the extentH

mentioned above. Hence, it would be suffice if the Notification specifiesthat the acquisition is for the purpose of KHB. It is a fact that in theTNHB Act no provision pari materia to Section 33(2) of the KHB Actenabling the Housing Board to take steps for compulsory acquisition forthe purposes of the Act/the Board as also a deeming provision relating‘public purpose’, as mentioned hereinbefore, is available.

41. Another allied question arises for consideration is whethernon-particularisation with sufficient specificity of the land to be acquiredcan be a reason for annulling acquisition proceedings initiated under theL.A. Act as modified by KHB Act for the purpose of KHB Act. Thecontention raised is to the effect that owing to such vagueness in theNotification the holders/land owners would be deprived of the opportunityto file an effective objection under Section 5A of the L.A. Act. In thatcontext, it is worthy to refer to the Constitution Bench decision of thisCourt in Aflatoon’s case (supra). That was a case where the questionwas whether before publishing the Notification under Section 4 of theL.A. Act the Government had not declared any area in Delhi as adevelopment area under Section 12(1) of the Delhi Development Actnor was there a Master Plan drawn up in accordance with Section 7 ofthe Act. On that basis Notification under Section 4 was attacked. Thecontention that no development of land could be undertaken or carriedout in such circumstances in terms of Section 12(3) of the said Act wasnegatived by the Constitution Bench. In the said case, it was held thatthe wording of Section 5A of the L.A. Act would make it clear that allthat is necessary to be specified in a Notification under Section 4 is thatthe land is needed for a public purpose. It is true that the specific purposeis also to be mentioned. In L. Krishnan’s case the decision in Aflatoonwas referred to. It was held that whether a particular Notification isvague or not is a question of fact to be decided in the facts andcircumstances of each case. In the cases falling under the provisions ofKHB Act mentioning of the fact that the acquisition is required for thepurposes of the KHB would make it one for public purpose within themeaning of L.A. Act and a further mentioning of the locality in whichacquisition would be effected, would save it from the attack based onSection 5A. At the stage of Section 4 Notification to enable personsinterested to file objection, especially in the light of the provisions underSection 33(2) carrying the aforesaid deeming provision, a mention onthe aforesaid lines would be sufficient. As already noted that in the appealarising from SLP(C)No.1361/2021, the deceased mother of Respondent A

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ANos.2 and 3 had filed objections under Section 5A. It is also relevant tonote that the High Court had also noted the fact that in some of thecases acquisition based on the selfsame Notification were effected andawards were also passed.

42. We have already noted the provisions under Section 24 of theBKHB Act and held that Section 24(1) speaks of the question as to whenKHB could proceed to execute the housing schemes, land developmentschemes and labour housing schemes included in the programme. Thatapart, we have also held that Section 24(2) pertains to executability ofsuch a scheme not included in the programme and in respect of such ascheme falling within the sweep of Section 24(2) the mandate thereunderCis that it shall not be executed unless the same has been sanctioned bythe State Government. In such circumstances, a conjoint reading ofSection 33(2) and Section 24(2), of the KHB Act would make it clearthat prior approval or sanction of any schemeis not required forcompulsory acquisition invoking the power under Section 33(2). This isDbecause in terms of the State amendment of Section 4(1), notificationmarking initiation of acquisition proceedings under L.A. Act, is issued bythe appropriate Government or by the Deputy Commissioner andthereafter, the said formal expression of the decision to start acquisitionproceedings gets into concrete shape and form by publication in the Official Gazette of Government of Karnataka. In such circumstances, ifEit is for the purposes of KHB, in other words, for implementation of ascheme of the KHB, what is statutorily required is to wait for its executiontill the same is sanctioned by the State Government. In other words, themere factum of non-existence of a sanctioned and published schemeprior to the initiation of acquisition proceedings, by itself, will not makeFthe notifications and the initiated acquisition proceedings null and void.

43. One another aspect also requires reference in the context ofthe rival contentions and situation. The scheme of the Act reveals thatKHB has also a duty to undertake the schemes entrusted to it by theState Government. Section 32(1) of the KHB Act exclusively make itGclear 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 bespecified in general or special order made by the State Government. It isalso to be noted that in respect of housing schemes, land developmentschemes or labour housing schemes entrusted to the Board by theH

Government, sometimes such entrustment takes place only afteracquisition of the necessary extent of land by the State Government. Allthe above mentioned provisions and situations would reveal that thecontention of the appellants other than the appellants in the appeal arisingfrom SLP(C)No.1361/2021 and Respondent Nos.2 and 3 therein thatexistence of a finally sanctioned scheme is a pre-condition for initiationof acquisition of any land or any interest therein is a pre-condition and itsnon-existence must invariably make the acquisition proceedings null andvoid, are unsustainable and liable to be rejected. Hence, on a carefulperusal of Sections 18 to 24 (both inclusive) and Section 33(2) we haveno hesitation to hold that KHB Act carry no statutory insistence that forinitiation of acquisition invoking the power under Section 33(2), for thepurposes of the KHB Act/KHB, framing, finalization and publication ofa housing scheme or land development scheme or labour housing scheme,is a pre-condition.

44. For all the above reasons we answer the mooted question inthe negative and to the effect that initiation of proceedings for acquisitioninvoking the power under Section 33(2) of the KHB Act without thehousing scheme being in existence or the housing scheme not havingbeen sanctioned under Section 24(2) thereof, would not render suchproceedings null and void. We also hold that unless sanction is obtainedfrom the State Government for execution of any scheme therein, in termsof Section 24(2) of KHB Act, the actual act to complete the process,viz., execution shall not be effected thereon.

45. In view of the answers to the moot question and the otherallied issues we pass the following orders:

(i) In the appeal arising from SLP(C) No.1361/2021 no questionother than the moot question (decided as per this judgment)was considered. In view of our clear conclusions and findingsthe judgment and order dated 01.12.2020 in Writ AppealNo.5712/2012, where the law on the question was expositedto the contrary, is liable to be set aside. Accordingly, it is setaside. Nothing further survives for consideration in thisappeal. Consequently, Writ Petition No.25184/2011 fromwhich Writ Appeal No.5712/2012 arose, stands dismissed.

(ii) In Civil Appeal Nos.7011-13/2013, 9002-9003/2013 and7017-19/2013 the position is that as per the common A

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judgment and orders respectively in Writ Petition Nos.4625/2004, 18596/2006, 11568/2008 and 47616/2004 dated26.4.2013 and also the judgment in Writ Appeal Nos.1244-45/2009, the Division Bench virtually decided that forinitiation of acquisition proceedings for the purposes ofKHB, existence of a sanctioned and published scheme isnot a pre-condition. Consequently, the Division Benchconfirmed the decision of the leaned Single Judge on thatquestion and thereupon, the Writ Petitions concerned/WritAppeals were disposed of with request to the learned SingleJudge to decide whether Sections 18-23 of the KHB Actwere complied with or not. Obviously, those Writ Petitionsare now pending. The issue is whether in view of the factsinvolved in those cases, the question of scrupulousadherence of Sections 18-23 of the KHB Act survives orneeds to be followed, requires consideration depending uponthe nature of acquisition and other relevant facts. Hence,Civil Appeals shall be listed before appropriate Bench forconsideration on their own merits, subject to this judgment.

Divya Pandey and Anurag Bhaskar

Directions issued.

(Assisted by : Priyanshu Agarwal, LCRA)