When the Petitioner who challenges the election on the ground that the returned candidate is not the voter of that same constituency- non of production of electoral roll or a certified copy thereof by him is a fatal to him but not to the returned candidate as there is no need to him to produce voter list or certified copy of that constituency = The entire case of the election petitioner as pleaded is that the appellant-returned candidate was a voter of another constituency i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest the election.= The trial of an election petition, as per Section 87 of 1951 Act has to be in accordance with the provisions of the Code of Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on grounds mentioned in Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a). In fact, from a reading of para 1.11 of the election petition as extracted above, it clearly appears that the election petitioner had stated that the appellant-returned candidate is a voter of No.80 Singrauli constituency but he had omitted to enclose the electoral roll or a certified copy thereof along with his nomination papers which made him ineligible to contest the election. This part of the pleading must be seen in the light of the provisions of Section 33(4) and 33(5) of the 1951 Act. Under Section 33(4) the returning officer must satisfy himself that a candidate’s name and electoral roll numbers is the same as claimed/entered in the nomination paper. If the candidate is a voter of the same constituency from which he seeks election, there is no difficulty the electoral rolls would be readily available with the returning officer. But if the candidate is a voter of another constituency, then Section 33(5) requires him to enclose along with the nomination or at the time of scrutiny, the electoral roll or certified copy of the same pertaining to that constituency. The entire case of the election petitioner as pleaded is that the appellant-returned candidate was a voter of another constituency i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest the election.= we cannot agree with the High Court that the respondent-election petitioner had made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Having reached our conclusion on above said basis, it is not necessary to go into the question raised on behalf of the respondent-election petitioner that failure to produce the copy of the electoral roll of the constituency in which a candidate is a voter or a certified copy thereof, by itself, would amount to a proof of lack of/absence of qualification under Section 5 of the 1951 Act. All that would be necessary for us to say in this regard is that any such view would not be consistent with the legislative intent expressed by the enactment of two separate and specific provisions contained in Section 100 (1) (a) and 100 (1) (d) of the 1951 Act. Consequently and for the aforesaid reasons, we cannot sustain the order of the High Court. Accordingly, the same is set aside and the appeal is allowed. The election of the appellant-returned candidate is declared to be valid in law.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.9934 of 2016
(Arising out of SLP (C) No.20826 of 2010)

HUBLI-DHARWAD URBAN DEVELOPMENT AUTHORITY
…. Appellant(s)
Versus

SHEKHARGOWDA CHENNABASANNAGOWDA
PHAKIRGOWDAR (SINCE DECEASED) BY LR. & ANR.

…. Respondent(s)

J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.

Respondent No. 1 filed Writ Petition No. 12564 of 2006 in the High
Court of Karnataka for quashing the preliminary Notification dated
06.02.2002 issued under Section 17(3) of the Karnataka Urban Development
Authority Act, 1987 (hereinafter referred to as ‘Act’) and final
declaration under Section 19 (3) of the Act dated 27.11.2003. The said
Notification pertained to acquisition of 54 acres and 39 guntas which
included 2 acres and 36 guntas in Survey No. 311/A/1 in Byridevana Koppa
Village, Hubli Taluk belonging to the First Respondent. The said Writ
Petition was allowed by a judgment dated 02.04.2009 against which Writ
Appeal No. 6258 of 2009 was filed by the Appellant. A Division Bench of
the High Court dismissed the Writ Appeal by a judgment dated 24.03.2010.
Aggrieved by the said judgment, the Appellant has approached this Court by
filing this Appeal.
2. The First Respondent filed the Writ Petition stating that his family
owns 2 acres and 35 guntas in Survey No. 311/A/1 in Byridevana Koppa
Village, Hubli Taluk in which there were bore wells, cattle sheds,
residential houses and standing trees. It was averred in the Writ Petition
that a Notification under Section 17(3) of the Act was issued on 06.02.2002
but no notice was personally served on him. It was also stated in the
Writ Petition that a Notification under Section 19(1) of the Act was issued
on 07.10.2003 which was published in the Karnataka Gazette on 17.11.2003.
It was stated in the Writ Petition that the First Respondent was not aware
of the publication in the Gazette and that the Notification issued under
Section 17 and the declaration issued under Section 19 of the Act were not
served upon him. He was also unaware of the award proceedings. The First
Respondent further stated in the Writ Petition that he came to know about
the preliminary Notification only in August, 2005 when the officials of the
Appellant visited the site and informed him about the acquisition. The
First Respondent also stated in the Writ Petition that immediately after he
came to know about the acquisition proceedings he approached the
authorities and found that no layout was prepared and finalized. The First
Respondent averred in the Writ Petition that the preliminary Notification
under Section 17(3) of the Act was prepared without complying with the
provisions of Section 15(1), 16 and 17 (1) of the Act. He further stated
that due to non service of the notice, he lost an opportunity to file his
objections. On the basis of the averments mentioned above, the First
Respondent sought for quashing of the Notification issued under Section
17(3) and the declaration issued under Section 19(3) of the Act.
3. The Appellant filed its Statement of Objections in Writ Petition No.
12654 of 2006 in which it was stated that there were no structures on the
acquired land and possession of the said land was taken on 02.09.2005. A
Notification under Section 16(2) of the Land Acquisition Act, 1894 was
published in the Gazette on 22.12.2006. It was also stated that personal
notice was issued to the First Respondent on 11.09.2001 but he refused to
receive the notice on 13.09.2001. The said notice was also published in
Samyukta Karnataka Daily Newspaper on 26.07.2001 and Vijaya Karnataka Daily
Newspaper on 27.07.2001. It was further averred that the First Respondent
was aware of the Notification under Section 19(1) of the Act dated
07.10.2003 which is evident from the fact that he gave an application dated
30.01.2004 for dropping the acquisition proceedings. The said application
was rejected on 28.02.2004. According to the Appellant, the acquisition
Notification issued under Section 17(3) and the declaration issued under
Section 19(3) of the Act were issued after complying with the relevant
provisions of the Act and that interference by the High Court was
unwarranted.
4. By a judgment dated 02.04.2009, a learned Single Judge of the
Karnataka High Court allowed the Writ Petition by holding that the
objections filed by the First Respondent were not considered before
issuance of the final declaration and that the First Respondent was in
possession of the land. The learned Single Judge recorded a finding that
the property in question is situated in a corner of the layout and the
scheme was not implemented in respect of the land belonging to the First
Respondent.
5. The Division Bench confirmed the judgment of the learned Single Judge
by holding that a perusal of the record indicated receipt of objections
which were not considered by the Appellant. The Division Bench held that
only a xerox copy of the original Mahazar drawn at the time of taking
possession was produced in the Court. The Division Bench rejected the
submission of the Appellant that possession of the land was taken. The
Division Bench further found that the scheme remained unimplemented in
respect of the land in dispute.
6. Mr. Basavaprabhu S. Patil, learned Senior Counsel appearing for the
Appellant submitted that the findings of the High Court are contrary to the
record. He submitted that the question of consideration of objections of
the First Respondent did not arise as the averments in the Writ Petition
are to the effect that he was not aware of the acquisition proceedings till
the middle of August, 2005 and that he lost an opportunity of filing his
objections. He took us through the minutes of the meeting of Hubli-
Dharwad Urban Development Authority dated 06.02.2002 in which the
recommendation for acquisition of the land was approved. The total land
under acquisition for development of a housing scheme was shown as 54 acres
and 39 guntas. An extent of 2 acres 36 guntas in Survey No. 311/A/1,
belonging to the First Respondent forms part of 54 acres and 39 guntas.
It was stated in the said minutes that the objections submitted by the land
owners/interested persons were considered. It was clearly mentioned in the
said minutes that the objections of farmers and interested persons in
respect of lands admeasuring 32 acres and 28 guntas were examined by a one
man committee. The First Respondent’s land was not part in the said land
of 32 acres and 28 guntas. He also referred to the draft award dated
31.01.2005 in which the names of 13 persons who filed their objections were
mentioned. The name of the First Respondent was not found therein.
7. Mr. Patil submitted that the authority considered all the objections
that were filed by the landholders. The High Court went wrong in holding
that the objections filed by the First Respondent were not considered. It
was also submitted by Mr. Patil that the Mahazar that was produced by the
Appellant before the High Court clearly showed that possession was taken.
He also submitted that the Notification under Section 16(2) of the Land
Acquisition Act, 1894 is conclusive proof of possession being taken by the
authority. According to Mr. Patil, the judgment of the High Court suffers
from apparent errors and is liable to be set aside.
8. Mr. Balaji Srinivasan, Advocate appearing for First Respondent
submitted that the High Court was right in holding that the objections
filed by the Respondent were not considered by the authorities. He also
submitted that the landowners are in possession of the land even now.
According to him, the High Court rightly refused to consider the xerox copy
of the Mahazar produced by the Appellant to show that possession was taken.
He further submitted that the scheme was not implemented in respect of the
land in dispute. Pursuant to the liberty given by this Court, the First
Respondent filed his written submissions in which he stated that there is a
farm house along with a cattle shed on the land. A leave and licence
agreement dated 16.12.2009 was filed along with written submissions to show
that a mobile tower is erected on the land. The Respondent further stated
in the said written submissions that the legal heirs of the original
Respondent furnished their Statement of Objections dated 29.08.2001 to the
Counsel. The said objections did not receive any consideration by the
authorities. The Respondent is still in possession of the land which is not
integral to the housing scheme. The Respondent submits that the judgment of
the High Court be upheld.
9. The High Court quashed the Notification dated 05.02.2002 and
declaration dated 27.11.2003 for the reasons that the objections filed by
the landowners were not considered before issuance of the final
declaration, that the possession of the land was not taken by the
authorities and that the scheme was not implemented in respect of the
property in question. The First Respondent pleaded in the Writ Petition
that he was not aware of the Notification issued under Section 17(3) and
the declaration issued under Section 19(3) of the Act. It was further
averred in the Writ Petition that he was deprived of an opportunity of
filing objections as notice was not given to him personally. We find
force in the submission of Mr. Patil that the question of consideration of
the objections which were not filed does not arise. In view of the
findings recorded by the High Court that a perusal of the record disclosed
that objections were filed by the Respondent and were not considered, we
summoned and examined the relevant record carefully. The minutes of the
meeting of Hubli-Dharwad Urban Development Authority held on 06.02.2002 was
filed as Annexure P-2 along with the written submissions of the Appellant.
The recommendations of the Chairman of the Hubli-Dharwad Urban Development
Authority for acquisition of lands of Byridevana Koppa Village were
discussed in the said meeting. The First Respondent’s land was part of the
total extent of 54 acres and 39 guntas of land which was sought to be
acquired for the housing scheme. It was stated in the minutes that
objections filed by the landowners/interested persons of the lands included
in the Notification issued under Section 17(3) of the Act were considered
by the Chairman of the Hubli-Dharwad Urban Development Authority. It is
clear from the said minutes that out of 19 blocks of land which were
acquired, landowners of only 10 blocks filed their objections which were
considered. Survey No. 311/A/1 does not find place in the said 10 blocks.
A draft award dated 31.01.2005 was also placed on record by the Appellant
in which the names of the landholders/ landowners whose lands were acquired
and who filed objections were given. The Respondent’s name does not find
place in the said list of persons who had submitted their objections. The
High Court has committed an error in holding that the First Respondent
filed his objections which were not considered.
10. Admittedly, the land was acquired for a housing scheme. It was
submitted by the Appellant that plots have already been allotted. The land
belonging to the First Respondent has been earmarked for civic amenities.
In view of the interim order of status quo passed by the High Court on
13.09.2006, no development could take place on the land. The High Court
ought not to have held that the Appellant was responsible for non-
implementation of the scheme qua the land of the Respondent. It was
submitted by the Appellant that the land is very much needed for
development of civic amenities.
11. A Panchnama was filed by the Appellant to show that possession of the
land was taken on 02.09.2005 in the presence of five Panchas. A
Notification under Section 16(2) of the Land Acquisition Act, 1894 was
published in the Karnataka State Gazette on 21.12.2005. It is no more res
integra that a Notification issued under Section 16 (2) of the Land
Acquisition Act, 1894 shall be evidence of the fact that possession was
taken, though not conclusive. The prevaricating stands taken by the First
Respondent about the possession of the land does not help his cause. On
30.01.2004, the power of attorney holder of the First Respondent submitted
a representation to the Chairman of the Hubli-Dharwad Urban Development
Authority requesting for exemption of the land from acquisition. He stated
in the said representation that he was running a ginning factory on the
said land. He also stated that he employed 40 workmen for whose housing
the land was needed. The said representation was rejected by the
Commissioner, Hubli-Dharwad Urban Development Authority on 28.08.2004 by
stating that the acquisition proceedings were at a final stage and so the
request cannot be acceded to. In the written submissions filed by the
Respondent, it is stated that a farm house along with a cattle shed and a
mobile tower exist on the land. Some photographs and a lease agreement
have been filed in support of the said averments. The submission made by
the First Respondent regarding the non-consideration of his objections is
contrary to the pleading in the Writ Petition. The First Respondent is
also guilty of taking contradictory stands in the matter of possession. We
see no reason to doubt the Panchnama evidencing taking over of possession.
In addition, the Notification under Section 16(2) of the Land Acquisition
Act, 1894 was published in the Gazette. Any attempt made by the First
Respondent to show that he is still in possession is of no avail.
12. In view of the above, the judgment of the High Court is set aside and
the Appeal is allowed.

.………………………….J.
[ANIL R. DAVE]

…………………………..J.
[L. NAGESWARA RAO]
New Delhi,
October 03, 2016

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