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2005 Supreme(Kar) 633
Karnataka High Court
YELLAPPA MUDUKAPPA ITAGI - Appellant
Versus
HUBLI-DHARWAD URBAN DEVELOPMENT authority, HUBLI - Respondent
Decided On : 10-07-05
Writ Appeal : 1542 of 1998
Writ Appeal : 2089 of 1999
Writ Appeal : 6127 of 1998
A.NIRANJAN KUMAR, B.RUDRAGOWDA, BASAVA PRABHU S.PATIL, C.H.JADHAV, G.S.VISHVESHVARA, H.K.Vasudeva Reddy, J.S.SHETTY, JAYAKUMAR S.PATIL, N.R.Bhaskar, S.V.Prakash, SUBASH BADI, SURESH S.JOSHI, TAJUDDIN, V.Y.Kumar, Veena Jadhav, Y.R.Sadashiva Reddy
Headnote:Karnataka Urban Development Authorities Act, 1987 - Section 32 - Compulsory acquisition - Section 32 - Compulsory acquisition - Private layout - handing over of roads, drains etc without compensation - Does not amount to compulsory acquisition. See, Land Acquisition Act, 1894 - Section 4.
Cases Referred: AIR 1995 SC 142: 1995 Supp. (1) SCC 596. Affirmed: 1999(2) Kar. L.J. 637 : ILR 1998 Kar. 3794. Relied : ILR 1978 Kar. 311 (SC): AIR 1978 SC 215: (1977)4 SCC 471.
Ut res magis valeat quam pereat
LEGAL MAXIMS - Ut res magis valeat quam pereat - It is better to validate a thing than to invalidate.
Compulsory acquisition
LAND ACQUISITION ACT, 1894 - Section 4 - Compulsory acquisition - Private layout - handing over of roads, drains etc without compensation - Does not amount to compulsory acquisition.
[S. R. Nayak and Ram Mohan Reddy, JJ]: The scheme envisaged under the Act, provides for transfer of ownership of the civic amenity sites, open spaces, roads, drains, sewers, etc., for effective management of the civic amenity sites while providing good roads, working drains and facilities by the State, a statutory obligation which benefits are direct, regular and endowed to the lands. The precondition imposed under sub-section (5) of Section 32 of the Act cannot be characterised as "land grabbing", but on the contrary the colonizer himself is benefited enabling him to secure a better price for the developed plots, since price fixation for the plots is left to the discretion of the colonizer. The orderly development of the urban area, under the Act, requires the providing of civic amenity sites which is the primary responsibility of the State, which cannot be entrusted to private persons. Thus, the taking over of civic amenity sites cannot be regarded as a separate event of acquisition, but it is a concomitant of the power, nay the duty of the State to permit formation of the layout to subserve the legitimate and required needs of the inhabitants of the layout and to ensure healthy and planned development of human habitation.
Cases Referred: AIR 1995 SC 142: 1995 Supp. (1) SCC 596.
Affirmed: 1999(2) Kar. L.J. 637 : ILR 1998 Kar. 3794.
Relied : ILR 1978 Kar. 311 (SC): AIR 1978 SC 215: (1977)4 SCC 471.
Compulsory acquisition
KARNATAKA URBAN DEVELOPMENT AUTHORITIES ACT, 1987 - Section 32 - Compulsory acquisition - Private layout - handing over of roads, drains etc without compensation - Does not amount to compulsory acquisition. See, Land Acquisition Act, 1894 - Section 4.
Interpretation of Statute
STATUTE LAW - Interpretation of Statute -Interpretation of Statute - How to be made.
[S. R. Nayak and Ram Mohan Reddy, JJ]: While interpreting the statute, it is to be construed so as to make it effective and operative on the principle expressed in the maxim "Ut res magis ualeat quam pereat" (It is better to validate a thing than to invalidate it). There is a presumption that the Legislature does not exceed its jurisdiction. The burden of establishing that the Act is not within the competence of a Legislature or that it has transgressed other constitutional mandates, such as those violating the fundamental rights is always on the person who challenges its vires. The Courts strongly lean against reducing a statute to a futility. As far as possible, the Courts act to make a legislation effective and operative.
Cases Referred: AIR 1995 SC 142: 1995 Supp. (1) SCC 596.
Affirmed: 1999(2) Kar. L.J. 637 : ILR 1998 Kar. 3794.
Relied : ILR 1978 Kar. 311 (SC): AIR 1978 SC 215: (1977)4 SCC 471.
Statute Law - Interpretation of Statute - Interpretation of Statute -Interpretation of Statute - How to be made. [S. R. Nayak and Ram Mohan Reddy, JJ]: While interpreting the statute, it is to be construed so as to make it effective and operative on the principle expressed in the maxim "Ut res magis ualeat quam pereat" (It is better to validate a thing than to invalidate it). There is a presumption that the Legislature does not exceed its jurisdiction. The burden of establishing that the Act is not within the competence of a Legislature or that it has transgressed other constitutional mandates, such as those violating the fundamental rights is always on the person who challenges its vires. The Courts strongly lean against reducing a statute to a futility. As far as possible, the Courts act to make a legislation effective and operative.
Legal Maxims - Ut res magis valeat quam pereat - Ut res magis valeat quam pereat - It is better to validate a thing than to invalidate.
Cases Referred: AIR 1995 SC 142: 1995 Supp. (1) SCC 596. Affirmed: 1999(2) Kar. L.J. 637 : ILR 1998 Kar. 3794. Relied : ILR 1978 Kar. 311 (SC): AIR 1978 SC 215: (1977)4 SCC 471.
Land Acquisition Act, 1894 - Compulsory acquisition - Section 4 - Compulsory acquisition - Private layout - handing over of roads, drains etc without compensation - Does not amount to compulsory acquisition. [S. R. Nayak and Ram Mohan Reddy, JJ]: The scheme envisaged under the Act, provides for transfer of ownership of the civic amenity sites, open spaces, roads, drains, sewers, etc., for effective management of the civic amenity sites while providing good roads, working drains and facilities by the State, a statutory obligation which benefits are direct, regular and endowed to the lands. The precondition imposed under sub-section (5) of Section 32 of the Act cannot be characterised as "land grabbing", but on the contrary the colonizer himself is benefited enabling him to secure a better price for the developed plots, since price fixation for the plots is left to the discretion of the colonizer. The orderly development of the urban area, under the Act, requires the providing of civic amenity sites which is the primary responsibility of the State, which cannot be entrusted to private persons. Thus, the taking over of civic amenity sites cannot be regarded as a separate event of acquisition, but it is a concomitant of the power, nay the duty of the State to permit formation of the layout to subserve the legitimate and required needs of the inhabitants of the layout and to ensure healthy and planned development of human habitation.
Cases Referred: AIR 1995 SC 142: 1995 Supp. (1) SCC 596. Affirmed: 1999(2) Kar. L.J. 637 : ILR 1998 Kar. 3794. Relied : ILR 1978 Kar. 311 (SC): AIR 1978 SC 215: (1977)4 SCC 471.
( 1 ) THESE intra-Court appeals are filed by the unsuccessful petitioners assailing the order dated 27-3-1998 passed in W. P. No. 21413 of 1994 and batch (Dr. Radhakrishna Co-operative Housing Society Limited, hosur, Hubli and Others v Government of Karnataka and Others ); order dated 30-3-1998 in W. P. No. 19748 of 1997; order dated 25-9-1998 in w. P. No. 28208 of 1998; order dated 6-10-1998 in W. P. No. 22106 of 1996; order dated 24-11-1999 in W. P. No. 4839 of 1997; order dated 17-12-1999 in W. P. No. 44864 of 1999; order dated 27-1-2000 in W. P. No. 44728 of 1999; order dated 6-10-2003 in W. P. No. 27435 of 2003 and order dated 21-11-2000 in W. P. No. 28014 of 1999 by learned Single judge of this Court, upholding the constitutional validity of sub- section (5) of Section 32 of the Karnataka Urban Development Authorities Act, 1987 (for short, 'act'), while declining to declare the petitioners to be owners of the civic amenity sites and that the Urban Development authority has no right to deal with the said problem.
( 2 ) THE appellants, either owners of lands or colonizers, with an intention to form an extension or layout, applied to the Commissioner, enclosing plans showing the particulars as required by sub-section (2) of section 32 of the Act. The appellants, in terms of sub-section (5), agreed to transfer to the authority the ownership of the roads, drains, water supply mains, parks, open spaces and civic amenity areas, laid out by them permanently, without claiming any compensation. The authority, being satisfied that the appellants have complied with the statutory provisions, accorded sanction to the plans subject to certain conditions, one of which, was the statutory prescription to transfer the ownership of the civic amenity area, to the authority permanently, without claiming compensation. The appellants accepted the sanction subject to the above condition and after forming the layout consisting of sites, roads, drains, sewers, parks, open spaces, civic amenity areas, etc. , refused to abide by the condition to transfer the civic amenity areas to the authority, free of cost, permanently, without claiming compensation. The appellants unsuccessfully challenged the vires of sub-section (5) of Section 32 of the act insofar as it relates to transfer of ownership of the open spaces and civic amenity areas to the authority. Hence, these appeals. 1. 1999 (2) Kar. L. J. 637 : ILR 1998 Kar. 3794
( 3 ) THE contentions advanced by the learned Counsel for the appellants are the very same as canvassed before the learned Single judge. The main grounds of challenge of the appellants, as advanced by their learned Counsel, are two-fold and they are: (i) Any form of compulsory acquisition of private land should be done only under the Land Acquisition Act, 1894; (ii) The condition requiring the appellants to transfer the land without compensation is arbitrary, unreasonable and is violative of Article 14 of the Constitution.
( 4 ) ELABORATING on the first contention, it is urged that the requirement to transfer ownership compulsorily is not in exercise of regulatory power of the State but a clear case of acquisition. Appropriation of private land in whatever mode or method, according to the learned Counsel, is an instance of acquisition and that the law made for acquisition by a distinct and separate power of the State under the entry 42, List III should satisfy the constitutional requirement, including Article 300-A of the Constitution.
( 5 ) AS regards the second contention, it is urged that the provision of the Bangalore Development Authority Act, 1976, analogous to Section 32 (5) of the Act does not stipulate the condition to agree for transfer of open spaces and civic amenity sites to the authority without compensation. Hence, the impugned provision is arbitrary, discriminatory and violative of Article 14 postulates.
( 6 ) PER contra, learned Counsel for the respondent-authority would support the findings o
