IN THE COURT OF ASSISTANT COMMISSIONER AT

TUMKUR
LAQ: S R: 4/07-08
OBJECTION PETITIONERS:-
1. A.G. SHIVASHANKAR
2. T.K.LAKSHMINARAYAN
3. P. GOVINDASWAMY
4. T. NARAYAN
5. NAGARATNAMMA
V/S
RESPONDENTS:-

1. COMMISSIONER CMC TMK

2. COMMISSIONER TUDA TMK

MEMORANDUM OF ARGUMENTS SUBMITTED ON BEHALF OF OBJECTION

PETITIONERS:-

The Advocate for above objection petitioners humbly submits as follows:

1. The objections and points raised in the objections submitted through RPAD dated
29-10-2007 (after perusal of paper notification) and to office tapal section on 12-
12-2007 (after receipt of personal notice) may kindly be read as part and parcel of
this argument.

2. The main contention of these objection petitioners is the “Public Purpose”, the
proposed acquisition is for “Private Bus Stand” and “Commercial Complex”,
which is to be leased in near future the space for buses to ‘private bus operators’
and the commercial complex to ‘private parties’. There is no Public Purpose
involved in the said acquisition proceedings. The plan prepared by 1 st respondent
and PWD Tumkur produced may be perused to see that the place proposed for
acquisition is proposed as per plan to construct commercial complex, hence no
public purpose is involved, mere beautification does not amount to public
purpose. Mere snatching of one’s place and constructing shops in the place to earn
rentals to municipality does not amount to “Public Purpose”. The only thing
involved herein is the Municipality want’s to enhance its source of revenue at the
destruction of livelihood/ bread earning sources of these objection petitioners.
This is against humanitarian conduct. Enrichment of private parties / public
authorities by snatching away food bowl of middle class people, cannot be
allowed by any civilized societies.
3. Under section 3 (aa) and (g) of Land Acquisition Act 1894 Local authority
includes a town planning authority and CITB. As such municipal council is
excluded under Land Acquisition act. There fore Respondent-1 is not having any
legal authority to ask for acquisition. Even though section 75 of The Karnataka
Municipalities Act 1964 says that “Compulsory acquisition of land.—Whenever
a municipal council requires any immovable property for the purposes of this Act,
the Government may, at the request of the municipal council procure the
acquisition thereof under the Land Acquisition Act, 1894, and on payment by the
municipal council of the compensation awarded under that Act and of all charges
incurred by the Government in connection with the proceedings, the immovable
property shall be transferred to the municipal council and shall thereafter vest in
such council.” Here respondent failed to note that Municipal Council can only ask
for acquisition for the purpose of the Act. The power of municipality to undertake
improvement schemes under Chapter VIII of Karnataka Municipalities Act 1964
is withdrawn by The Karnataka Urban Development Authorities Act 1987 under
its section 76. it says that “Act to over-ride other laws.- (1) The provisions of
this Act shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force. (2) Where an Authority is
constituted for and is functioning in any Urban Area the provisions contained in
Chapter VIII of the Karnataka Municipalities Act, 1964 shall not be applicable to
such Urban Area.” Then Municipality is not entitled to ask for acquisition, only
TUDA is entitled to ask for acquisition after following due procedure of law.

4. Under section 3 (f) of Land Acquisition Act 1894 the expression "Public Purpose"
includes (ii) the provision of land for planned development from public funds and
subsequent disposal thereof in whole or in part by lease, assignment or outright
sale with the object of securing further development as planned; Under section 3
(f) of Land Acquisition Act 1894 the expression "Public Purpose" includes (iii)
the provision of land for town planning or rural planning under any law relating to
such planning; Under section 3 (f) of Land Acquisition Act 1894 the expression
"Public Purpose" includes (vii) the provision of land for any local authority and
subsequent disposal thereof in whole or in part by lease, assignment or outright
sale with the object of securing further development as planned; .................. All
these provisions clearly emphasize the importance of Planning authority that is
TUDA in the Tumkur that is 2 nd respondent herein. The planning authority is
only entitled to land acquisition for "public purpose" under Land
Acquisition Act 1894 and hence not Municipality.

5. The plan prepared by CMC and PWD as long back before any proposal for
acquisition is made shows the intentions of Respondent-1, it is with ulterior
motive and without the consent of lawful owners the 1 st respondent has made
trespass upon the rights of this objection petitioners. The Objection petitioners
 went to court seeking Judicial Protection against the excesses of Ist respondent.
All the four objection petitioners except fourth objection petitioner herein above
had approached 2 nd Addl Civil Judge Court at Tumkur, with different case
numbers and got permanent Injunction orders in OS-616/2006, OS-624/2006, OS-
625/2006, OS-626/2006, Judgement Dated 03-08-2007.No Appeal Filed By Any
Defendants Against Judgement. Defendants Are:- Deputy Commissioner
Tumkur, Assistant Commissioner Tumkur, Superintendent Of Police Tumkur,
Commissioner Cmc Tumkur, Executive Engineer Pwd Tumkur, Section Officer
Pwd Tumkur. In its Orders it is commonly ordered as follows “The defendants are
restrained by an order of Permanent Injunction from interfering with the peacefull
possession and enjoyment of the suit schedule property by the plaintiff” “ If at
all, if the defendants acquired the suit schedule property of the plaintiff for public
purpose, the same shall be done after following all the formalities and procedure
and with prior intimation to the plaintiff.” The basic plan procedure adopted and
proposed acquisition has not followed any legally prescribed procedure. In such
condition 1st Respondent is indirectly attempting to bring contemptuous
imputations against all the respondents in the above suits.

6. Form-D submitted by 1 st respondent in its 13 th column has stated that there is no

permission obtained for the proposed acquisition. The 1st respondent in their
letter written to this Hon’ble court has pleaded that administrative sanction is not
needed for land acquisition, since it is local self government after constitution
amendment. That is wrong assumption of Respondent-1. The 73rd and 74th
Constitutional Amendments Acts were introduced in the early 1990's in a bid to
achieve democratic decentralization and provide constitutional endorsement of
local self governance authorities. These amendments confer authority on
legislatures of States to endow respectively Panchayats and Municipalities with
such powers and functions as may be necessary to enable them to act as
institutions of self – government. Articles 243W provides that, subject to the
provisions of the Constitution, the legislature of any State may, by law,
endow the Municipalities, with such powers and authority as may be
necessary to enable them to function as institutions of self-government and
such law may contain provisions for the devolution of powers and responsibilities
upon Municipalities respectively at the appropriate level. As of till today there is
no amendment to Karnataka Municipalities Act or any separate state legislation to
confer any such powers on the municipality to avoid procedure prescribed for
taking government sanction for land acquisition.

7. Under section 155 of Karnataka Municipalities Act 1964, CMC Tumkur is having
power to draw improvement scheme, this needs resolution under section 155(4) of
Karnataka Municipalities Act 1964. The scheme shall provide for the acquisition
of any land which will, in the opinion of the municipal council be necessary for or
 affected by the execution of the scheme, and also provide for relaying out all or
any land including the construction and reconstruction of buildings and the
formation and alteration of streets etc under section 156(1) of Karnataka
Municipalities Act 1964. Upon the completion of formulating scheme there is
a procedure under section 157 of Karnataka Municipalities Act 1964 calling
upon municipality to serve upon interested persons calling their objections
for proposed acquisitions for the scheme and thereafter Municipality shall
apply for government seeking sanction under section 158 of Karnataka
Municipalities Act 1964.(This procedure is not followed in the our case). As
stated under section 159 of Karnataka Municipalities Act 1964 on receipt of the
sanction of the Government, the Municipal Commissioner or Chief Officer shall
forward a declaration for notification by the Government, stating the fact of such
sanction and that the land proposed to be acquired by the municipal council for
the purpose of the scheme is required for a public purpose. Hence the acquisition
proceedings instituted against this objectors without following above Law is
illegal and liable to be dropped. The legislature made law is supreme than the
administrative opinions of department officials.

8. Both the respondents have failed to give reasonable answers to our objections
strongly indicating that the proposed acquisition is against the law of our land.
Hence this acquisition needs to be dropped for the said illegality.

9. The basic thing is the IDSMT grant being utilized by Municipality for the said
Bustand cum Commercial Complex is not at all sanctioned by the IDSMT
committee headed by Secretary Urban Development Department. The whole
project is illegally conceived one. If such illegal project having no sanction of
planning authority, government and IDSMT committee. Then acquisition for such
illegal plans does not amounts to public purpose.

10. There is no Town planning scheme provided by TUDA for the Bustand Cum
Commercial complex by Second Respondent under section 26, 28, 29 32, 34 of
Karnataka town and country planning Act 1961. If such provisions are followed
then under section 70 of Karnataka town and country planning Act 1961, Land
needed for purpose of a Town Planning scheme or Master Plan shall be
deemed to be land needed for a public purpose within the meaning of the
Land Acquisition Act, 1894. Under section 81-C of Karnataka town and country
planning Act 1961, TUDA tumkur is the planning authority for Tumkur to frame
such scheme for the proper implementation of CDP or Masterplan regulations.
Under section 76-M of Karnataka town and country planning Act 1961 it
says "Save as provided in this Act, the provisions of this Act and the rules,
regulations and bye-laws made there under shall have effect notwithstanding
anything inconsistent therewith contained in any other law...............................
 when permission for such development has not been obtained under this Act,
such development shall not be deemed to be lawfully undertaken or carried
out by reason only of the fact that permission, approval or sanction required
under such other law for such development has been obtained.” In total the
purpose for which the acquisition is made is an illegal structure. To build such
illegal structure no civilized society and authority will allow its process to be
abused by any one.

11. It is my duty to bring to this Hon’ble court’s kind attention to a case of before
Supreme court of India between Bangalore Medical Trust v/s B.S.Mudappa
and others Date of Judgement: 19-07-1991 reported in AIR 1991 SC 1902. It is
observed that ”When the law requires an authority to act or decide, if it appears to
it necessary' or if he is 'of opinion that a particular act should be done', then it
is implicit that it should be done objectively, fairly and reasonably. Decisions
affecting public interest or the necessity of doing it in the light of guidance
provided by the Act and rules may not require intimation to person affected yet
the exercise of discretion is vitiated if the action is bereft of rationality, lacks
objective and purposive approach. The action or decision must not only be
reached reasonably and intelligibly but it must be related to the purpose
for Which power is exercised. Public interest or general good or social betterment
have no doubt priority over private or individual interest but it must not be a
pretext to justify the arbitrary or illegal exercise of power. It must withstand
scrutiny of the legislative standard provided by the Statute itself. The authority
exercising discretion must not appear to be, impervious to legislative directions.
No doubt, in modern State activity, discretion with executive and
administrative agency is a must for efficient and smooth functioning. But
the extent of discretion or constraints on its exercise depends on the rules and
regulations under which it is exercised.” Here in our case neither district
administration having incharge of IDSMT district committee has verified whether
respondent-1 has acted fairly or reasonably nor 1st respondent suo-motto acted
fairly.

12. The guidelines for implementing the IDSMT Scheme were last revised in August,
1995, as a result of mid-term appraisal of the Scheme during VIII Plan. The
salient features of the Revised Scheme inter alia are:- 1. The scheme will be
implemented only in towns with elected local bodies. 2. The components for
assistance will include works as per civil/Town Development/Master Plans which
may have city wide significance. Some of the components are: strengthening/ up
gradation of Master Plans roads (including street lighting) and drains, sites and
services, markets and development of bus/truck terminals, sites and services,
markets and shopping complexes, tourist amenities parks and playgrounds etc.
Hence the Bustand construction plan without obtaining TUDA approval as to
 Zoning , CDP, and building byelaws is not lawfully undertaken by CMC. The
acquisition for such illegal undertakings cannot be done it is against the law.
Such illegal procedures adopted again violate the permanent injunction orders
issued by Hon’ble civil court. And such violation of procedure of law is also
violative of Article 300A of constitution of India.

13. It is my duty to bring to this Hon’ble court’s kind attention a para from Supreme
Court Judgement in Devinder Singh & Others vs State of Punjab & Others
Appeal (civil) 4843 of 2007 DATE OF JUDGMENT: 12/10/2007 . Hon’ble
Justices S.B. Sinha & Harjit Singh Bedi have observed that “When an order is
passed without jurisdiction it amounts to colourable exercise of power. Formation
of opinion must precede application of mind. Such application of mind must be
on the materials brought on records. The materials should be such which are
required to be collected by the authorities entitled therefor. The authorities must
act within the four-corners of the statute. An opinion formed even on the basis
of an advice by an authority which is not contemplated under the statute render
the decision bad in law. A statutory authority is bound by the procedure laid
down in the statute and must act within the four-corners thereof.”

14. Even if plan is prepared by chief government architect, approval of planning

authority is a must as observed in B.R.Baliga and others v Town Municipal
council Udupi, D.K.District and another 1995 (4) Kar. L.J. 408C. In this case
also it is observed that in Transport and communications Zone there should not be
constructions exceeding 5% of the land. In the Tumkur bustand and commercial
complex construction it is purposeful violation of High court precedent Law by
constructing 27 % of shops in Transport and communications Zone.

15. In the letter dated 19-01-2007 written by 1 st respondent to this Honble court it is
quoted that section 75 of Karnataka Municipalities Act has bestowed powers upon
Municipal council to give administrative sanction for land acquisition. This is
wrong interpretation of statute. Under section 75 it says “Whenever a municipal
council requires any immovable property for the purposes of this Act, the
Government may, at the request of the municipal council procure the acquisition
thereof under the Land Acquisition Act, 1894, and on payment by the municipal
council of the compensation awarded under that Act and of all charges incurred
by the Government in connection with the proceedings, the immovable property
shall be transferred to the municipal council and shall thereafter vest in such
council.” Here the “Government” means under section 2(10) the “state
government”. The Municipal Council does not becomes state Government to
assume its powers to give administrative sanctions. Again for what purposes the
land may be acquired is a procedure and purpose prescribed under section 155 to
159 of Karnataka Municipalities Act. If such provisions are not applicable after
 passing of KUDA Act, then Municipal council is not entitled to frame such
development plans only TUDA is entitled to frame such development plans. For
such purposes and after fulfilment of such procedures the TUDA is having powers
to require government for land acquisition. It is my duty to bring to this Hon’ble
court’s kind attention a para from Supreme Court Judgement in Devinder Singh
& Others vs State of Punjab & Others Appeal (civil) 4843 of 2007 DATE OF
JUDGMENT: 12/10/2007 . Hon’ble Justices S.B. Sinha & Harjit Singh Bedi
have observed that “A provision of a statute is either mandatory or directory.
Even if a provision is directory, the same should be substantially complied with.
It cannot be ignored in its entirety only because the provision is held to be
directory and not an imperative one.”

16. The above procedures were deliberately with malicious intentions violated by 1 st
respondent thereby violating fundamental rights of these objection petitioners.
Initially we were forced to seek judicial protection for illegal threats against these
lawful owners of land and buildings. Now in the replies given by 1 st respondent it
is strangely contended and evasively replied that they have offered shops on rental
basis and they are not having intention to displace us. No piece of paper is
produced by the 1st respondent to show their good intentions. Even after
summoning such papers they have not produced. Every thing they has said in
para 2 of their reply is tissue of lies. Nothing prevented 1 st respondent to offer any
of the terms in a letter. Postal department is very much alive; RPAD process is
very much in practice. What prevented 1st respondent to convey their good
intentions if it is there. From the beginning we were looked as thugs and thieves
and after court declared our rights, they have initiated acquisition proceedings, is
it not an autocracy, is it not a breach of oath taken by public servants, is it not a
violation of human rights, is it not a mis-conduct of public servant, what not every
illegal moves were made by the 1st respondent just to illegally evict the lawful
owner, now they are speaking that they have made fair efforts. It is a shame on
democratic process, it is a shame on municipal administration in taking tissue of
lies as their reply and making documentary replies in a misleading fashion to
suppress illegal violation of legal procedure.

17. In the proposal for acquisition form and requisition form it is estimated by 1 st
respondent that the cost of acquisition as Rs 16 lakhs then it is specifically stated
that if such estimate increases then Government will release funds from IDSMT.
In some letters written by this Hon’ble court to 1st respondent and Hon’ble Deputy
Commissioner it is approximately Rs 62 lakhs total cost of acquisition. These
cost estimates are not properly arrived at, buildings are not properly valued,
several other factors as per land acquisition policy were not taken into account.
Technically first respondent is evading their responsibility to pay any additional
value for the property by estimating cost of acquisition at Rs 16 lakhs and
 additional burden is shifted on IDSMT and Government. Inspite of these shifting
of burden, 1st respondent says there is no need of government sanction required
for the acquisition.

18. In the proposed acquisition place there are about 10 shops in total including
ground floor and first floor. Late Mr T.S.Nagabhushan’s land includes total 4
shops. Mr Govindaswamy’s land includes 1 shop, Mr T. Narayan’s land includes
1 shop, Mr T.K.Lakshminarayan’s land includes 2 shops, A.G.Shivashankar’s
land includes 1 shop, Mr T.K. Venkataramu’s land includes 1 shop. It is wrong
spot assessment by respondent and other officials. The buildings were not valued
by any PWD engineers and no Joint survey is under-taken under section 4(2) of
Land acquisition act 1894. On 10-11-2007 Survey officer of Tahsildar of Tumkur
Taluk has issued a notice in reference No: LAQ: CR: 13: 2006-07 Under Section
6(1) of Land Acquisition act 1894 without any completion of procedure under
Section 5-A of Land Acquisition act 1894, this shows due disrespect towards law
( collusion of lower revenue authorities with 1 st respondent ) just to harass this
objection petitioners and to evict this objection petitioners without following due
procedure of law. All the spot assessment sketch and measurements were disputed
and all those things were done behind our back.

19. The 1st respondent has failed to produce documents mentioned in interim
application filed by this objection petitioners on 26-02-2008, Respondent was
clearly directed by this Hon’ble court to produce the said documents, but
respondent failed to produce it. These objection petitioners have sought said
documents from Secretary Urban Development Department through an
application under Right to information Act. The said documents are yet to be
obtained. Due to time bound proceedings these objection petitioners reserve their
right to produce it even after report submitted to government. This Hon’ble court
may be pleased to note the attitude of 1 st respondent in evasively giving answers
to our objections, and also attitude of 2nd respondent in not attending the
proceedings and not filing any replies even though there are specific averments
against them and their duty in relation to planning of Tumkur affairs, in the
objections filed by these petitioners. An adverse inference has to be drawn by
this Hon’ble court in submitting its report to Revenue Department.

20. As per the reply given by Municipal Commissioner as a 1 st respondent herein in

his para-6 says that there is no need for taking approval from planning authority,
but contrarily in para-7 of his reply accepts the role of planning authority. The
contentions of 1st respondent that at present there is no need of obtaining
commencement certificate from UDA, that power has been delegated to 1st
respondent is a mis-leading one. The obtaining of commencement certificate is
different from obtaining of plan sanction under section 14 of The Karnataka Town
and Country planning act 1961. The section 14 says as follows “ Enforcement of
the Master Plan and the Regulations-(1) On and from the date on which a
declaration of intention to prepare a Master Plan is published under sub-section
(1) of section 10, every land use, every change in land use and every development
in the area covered by the plan subject to section 14-A shall conform to the
provisions of this Act, the Master Plan and the Report, as finally approved by the
State Government under sub-section (3) of section 13.
(2) no such change in land use or development as is referred to in sub-
section (1) shall be made except with the written permission of the Planning
Authority which shall be contained in a commencement certificate granted
by the Planning Authority in the form prescribed.
Provided that where the use or change of land use under this section needs the
diversion of agricultural land to non-agricultural purposes, such use or change of
use shall not be permitted unless permission is obtained in accordance with the
provisions of the Karnataka Land Revenue Act, 1964 for such diversion.
Explanation.- For the purpose of this section,-
(a) the expression "development" means the carrying out of building or other
operation in or over or under any land or the making of any material change
in the use of any building or other land;
(b) the following operations or uses of land shall not be deemed to involve a
development of any building or land, namely:-
(i) the carrying out of works for maintenance, improvement or other alteration of
any building, being works which affect only the interior of the building or which
do not materially affect the external appearance of the building;
(iv) the use of any building or other land within the curtilage of a dwelling house
for any purpose incidental to the enjoyment of the dwelling house as such;
(v) when the normal use of land which was being temporarily used for any other
purpose on the day on which the declaration of intention to prepare the outline
development plan is published under sub-section (1) of section 10 is resumed;
(vi) when land was normally used for one purpose and also on occasions for any
other purpose, the use of the land for that other purpose on similar occasions.
(3) Every application for permission under sub-section (2) shall be accompanied
by a plan, drawn to scale showing the actual dimensions of the plot of land in
respect of which permission is asked, the size of the building to be erected and the
position of the building upon the plot and such other information as may be
required in this behalf by the Planning Authority.” The 1st respondent is having
least respect towards planned development by violating all the legal procedures
involved in planning.
21. It is my duty to bring to this Hon’ble court’s kind attention to a case of before
Supreme court of India between S.N. Chandrashekar and another v/s State of
Karnataka and others Date of Judgement 02-02-2006. It is observed that “The
words "subject to" used in Section 14 are of some significance. The said words
must be given full effect to. The meaning of the said words had been noticed in
Ashok Leyland Ltd. vs. State of T.N. and Another (2004) 3 SCC 1] in the
following terms : Furthermore, the expression "subject to" must be given effect
to. In Black's Law Dictionary, 5th Edn., at p. 1278, the expression "subject
to" has been defined as under: "Liable, subordinate, subservient, inferior, obedient
to; governed or affected by; provided that; provided; answerable for. The 1st
respondent is having least respect towards planned development by violating all
the legal procedures involved in planning.

22. “The Integrated Development of Small and Medium Towns (IDSMT) scheme was
initiated by the government in 1979-80 with a view to reducing the migration of
population from rural areas to large cities, generating employment by creating
resource generating ventures in the small and medium towns and providing
sufficient infrastructure facilities in these towns. Therefore, the Eighth Five Year
Plan envisages a fresh approach to the development of the towns, detailing the
activities under the employment generation programmes into the supportive
infrastructure development programme with a view to:- (a) generating
employment opportunities to reduce the rural-urban and urban-urban migration;
(b) developing growth centres for the betterment of rural hinterland adopting a
regional approach; (c) providing infrastructural facilities to support such
employment generation activities; and (d) evolving resource generating schemes
for local bodies for meeting the expenditure on operation and maintenance of the
infra-structural facilities so created. The IDSMT scheme is intended to cover
objectives (ii), (iii) & (iv) and objective (i) forms part of larger framework of
employment generation.” But herein respondent-1 by using IDSMT funds wants
to create unemployment and insecurity to these objection petitioners and their
dependents, which cannot be allowed in the interest of justice.

23. Under Karnataka Town and Country planning act in section 81. its says that “
Delegation of powers of Planning Authority.- The State Government may, by
notification and subject to such restrictions and conditions as may be specified
therein, delegate any of the powers and functions of the Planning Authority under
this Act to any local authority or any officer of the local authority.” 1st
respondent contends that such delegation of authority is given to them. Nothing
prevented 1st respondent to produce such notification of Government conferring
such powers on CMC or any other officer of CMC with such restrictions and
conditions. This provision is again mis-interpreted to suit their illegal plans in
destroying these objection petitioners food bowl.
24. Under KUDA Act in section 2 (j) "development" with its grammatical variations
means the carrying out of building engineering or other operations in or over or
under land or the making of any material change in any building or land and
includes planning and redevelopment ; In section 15. “Power of Authority to
undertake works and incur expenditure for development etc.- (1) The Authority
may,- (a) draw up detailed schemes (hereinafter referred to as "development
scheme") for the development of the urban area ; and (b) with the previous
approval of the Government, undertake from time to time any works for the
development of the urban area and incur expenditure therefor and also for the
framing and execution of development schemes. (2) The Authority may also from
time to time make and take up any new or additional development schemes,- (i)
on its own initiative, if satisfied of the sufficiency of its resources, or (ii) on the
recommendations of the local authority, if the local authority places at the
disposal of the Authority, the necessary funds for framing and carrying out
any scheme, or (iii) otherwise. (3) Notwithstanding anything in this Act or in any
other law for the time being in force, the Government may, whenever it deems it
necessary require the Authority to take up any development scheme or work and
execute it subject to such terms and conditions as may be specified by the
Government.” It can be seen that 1 st Respondent herein can only ask for 2 nd
respondent to frame such development schemes, and 1 st respondent themselves
are not entitled to frame such schemes, neither IDSMT district committee is
having such powers unless authorised under Government notification Under
Karnataka Town and Country planning act in section 81.

25. It is my duty to bring to this Hon’ble court’s kind attention to a case of before
Supreme court of India between Friends Colony Development Committee v.
State of Orissa and Others [(2004) 8 SCC 733], Supreme Court observed: “In
all developed and developing countries there is emphasis on planned development
of cities which is sought to be achieved by zoning, planning and regulating
building construction activity. Such planning, though highly complex, is a matter
based on scientific research, study and ex[perience leading to rationalisation of
laws by way of legislative enactments and rules and regulations framed
thereunder. Zoning and planning do result in hardship to individual property in the
way they like, is subjected to regulation and control. The private owners are to
some exttent prevented from making the most profitable use of their property. But
for the reason alone controlling regulations cannot be termed as arbitrary or
unreasonable. The private interest stands subordinated to public good…………..
The exercise of such governmental power (power to planned development of city)
is justified on account of it being reasonably necessary for public health, safety,
morals or general welfare and ecological considerations; …………..” The 1st
 respondent is having least respect towards planned development by violating all
the legal procedures involved in planning.

26. Recently central government announced land acquisition policy which says
"Under the new policy, no project involving displacement of families beyond
defined thresholds can be undertaken without a detailed 'Social Impact
Assessment,' which among other things shall also take into account the impact
that the project will have on public and community properties, assets and
infrastructure. The new policy and the associated legislative measures aim at
striking a balance between the need for land for developmental activities and
protecting the interests of the land owners, and others such as the tenants, the
landless, agricultural and non-ag ricultural labourers, artisans and others whose
livelihood depends on the land involved. A special provision has been made for
providing lifetime monthly pension to vulnerable persons, such as the disabled,
destitute, orphans, widows, unmarried girls, abandoned women or persons above
50 years of age (who are not provided or cannot immediately be provided with
alternative livelihood). When land acquired is transferred for a consideration,
eighty per cent of any net unearned income so accruing to the transferor shall be
shared with the persons from whom the lands were acquired, or their heirs, in
proportion to the value of the lands acquired." The whole project is started after
displacing old tenants and now to accommodate new tenants and old tenants
the proposed land is sought for acquisition. This is unfair on the part of District
administration as a whole.

27. It is my duty to bring to this Hon’ble court’s kind attention to a case of before
Supreme court of India between Raju S. Jethmalani and Others v. State of
Maharashtra and Others (SUPREME COURT OF INDIA) Date of
Judgment : 5/5/2005 Where in Maharashtra Government announced a
development scheme under Maharashtra Regional and Town Planning Act, 1966.
An interesting question arose in that case Whether Government can prepare a
development plan and deprive owner of land from using that land?; whether
without acquiring land can Government deprive a person of his use of land? –
Hon’ble Supreme court Held that , “there is no prohibition for preparing
development plan comprising of private land but that plan cannot be implemented
unless private land is acquired by Government for development purpose.” Here
in our case before this Hon’ble court already the plan is under implementation.
Municipality (1st respondent) contends that they are not binding with provisions
of Karnataka country and Town planning act. When the whole nation is going
in one way respecting Town Planning Acts the 1 st respondent authorities
seems to be from alien country implementing alien laws in their own way.
28. It is my duty to bring to this Hon’ble court’s kind attention to a case of before
Supreme court of India between Indore Development Authority v. Srikrishna
Oil Mills and Others (SUPREME COURT OF INDIA) Date of Judgment :
12/4/2005, Where in that case Indore Development Authority prepared a
plan/scheme under Madhya Pradesh Town Improvement Trust Act, 1960 – An
interesting question arose; Whether scheme No. 78 prepared and approved by
Indore Development Authority is in accordance with law?; Whether procedure
under Adhiniyam was followed by authorities? – The Hon’ble Supreme court
Held that , “notices were issued, objections were submitted and hearing was
afforded to affected persons and thereafter decision was taken (For acquisition) -
Those actions cannot be termed illegal - Scheme No. 78 was legal or lawful.”
Here in our case no notice is there regarding the development scheme either
from 1st respondent or from 2nd respondent. No preliminary procedure followed,
all of a sudden keeping in dark the 1st respondent wants to implement their
illegally conceived plans on these objection petitioners lands.

29. It is indisputable and beyond the pale of any controversy now as held by Supreme
Court in several decisions including the decision in the case of His Holiness
Kesavananda Bharati Sripadagalaveru v. State of Kerala [1973] Supp. 1
S.C.R. 1 - popularly known as Fundamental Rights case - that any law providing
for acquisition of property must be for a public purpose. Whether the law of
acquisition is for public purpose or not is a justifiable issue. But the decision in
that regard is not to be given by any detailed inquiry or investigation of facts. The
intention of the legislature has to be gathered mainly from the Statement of
Objects and Reasons of the Act and its Preamble. The matter has to be examined
with reference to the various provisions of the Act, its context and set up, the
purpose of acquisition has to be culled out therefrom and then it has to be judged
whether the acquisition is for a public purpose within the meaning of Article 31(2)
and the law providing for such acquisition.” The said principle of surrounding
Public purpose is overlooked in our case.

30. It is my duty to bring to this Hon’ble court’s kind attention to a case of before
Supreme court of India between The State of Bombay v. R.S. Nanji (1956) SCR
18, the Court observed that it is impossible to precisely define the expression
'public purpose'. In each case all the facts and circumstances will require to be
closely examined in order to determine whether a public purpose has been
established. Prima facie, the Government is the best judge as to whether public
purpose is served by issuing a requisition order, but it is not the sole judge. The
courts have the jurisdiction and it is their duty to determine the matter whenever a
question is raised whether a requisition order is or is not for a public purpose. In
the said case, the Court observed that the phrase 'public purpose' includes a
purpose, that is, an object or aim, in which the general interest of the community,
 as opposed to the particular interest of individuals is directlyand vitally
concerned. It is impossible to define precisely the expression 'public purpose'. In
each case all the facts and circumstances will require to be closely examined to
determine whether a public purpose has been established.” The said principle of
surrounding Public purpose is overlooked in our case.

31. It is my duty to bring to this Hon’ble court’s kind attention to a case of before
Supreme court of India between Sri Krishnapur Mutt, Udipi v. N. Vijayendra
Shetty and Another [1992 (3) Kar. L.J. 326], S. Rajendra Babu, as the learned
Chief Justice then was, held : "The restrictions imposed in the planning law
though in public interest should be strictly interpreted because they make an
inroad into the rights of a private persons to carry on his business by construction
of a suitable building for the purpose and incidentally may affect his
fundamental right if too widely interpreted. The building bye-laws while
sanctioning a plan will take care of what parking space should be provided in the
area and whether the building itself would have such facility." The said
principle of importance of planning law is overlooked in our case.

32. It is my duty to bring to this Hon’ble court’s kind attention to a case of before
Supreme court of India between Bangalore Medical Trust v/s B.S.Mudappa
and others Date of Judgement: 19-07-1991 reported in AIR 1991 SC 1902. It
is observed that “Discretion is an effective tool in administration. But wrong
notions about it result in ill-conceived consequences. In law it provides an
option to the authority concerned to adopt one or the other alternative. But a
better, proper and legal exercise of discretion is one where the authority examines
the fact, is aware of law and then decides objectively and rationally what serves
the interest better. When a Statute either provides guidance or rules or
regulations are framed for exercise of discretion then the action should be
in accordance with it. Even where Statutes are silent and only power is conferred
to act in one or the other manner, the Authority cannot act whimsically or
arbitrarily. It should be guided by reasonableness and fairness. The legislature
never intends its authorities to abuse the law or use it unfairly.” The said
principle of official responsibility is overlooked in our case.

33. All the Objection petitioners are holding such property as a joint family business
concern. Except that property, they have no other commercial property. In these
days due to heavy competition and footpath vending of necessary products, it is
very difficult to run a shop with heavy good-will and heavy rents. There are no
shops in the vicinity of our existing shops to either own or to take on rent to do
our daily earning business. We have not violated any law and we are not making
any violations in running our business affecting health and safety of general
public. We are un-necessarily victimised by CMC Tumkur for our no faults, with
 politically motivated vengeance they have targeted our small business concern.
We have earned good will and good rapport of people for our best services to our
clientele from through-out Tumkur district. We were not issued with any notice
from CMC tumkur before acquisition proceedings started. We were not informed
of any plan to construct bustand or commercial complex. In the month of
December 2006 the then Deputy Commissioner and Assistant Commissioner of
Tumkur threatened these objection petitioners to hand over the property or face
dire consequences. To seek judicial protection over such threats objection
petitioners went to court. Except such attempt in terrorising us no amicable talks
were held by any responsible authorities. After such illegal attempts this
acquisition was instituted. If objection petitioners land and building is acquired
objection petitioners family will be affected much throwing their future into
dilemma. If acquisition is not allowed there will be no injury or loss to General
Public or to respondent herein above case. Objection petitioner’s family members
are not having any other avocation or not having any other skills to survive.
Objection petitioners are not so financially equipped to acquire on rent or on
ownership of any shops near by their shops. Today’s sky-rocketing rental rates is
a hardship for objection petitioners to search a place to objection petitioners low
profit business and consequent resettlement expenses is not affordable by
objection petitioners family. The construction of commercial complex in the place
of objection petitioners bread earning place is displacement of objection
petitioners; such displacement will benefit only one person who can obtain shop
on rent.

Objection petitioners humble Request to this Hon’ble authority to consider the above case
in a sympathetic manner rather than treating us as alien enemies. Objection petitioners
have feelings of insecurity and depression after initiation of these acquisition
proceedings. After considering Objection petitioners detail objections and points raised in
the objections submitted through RPAD dated 29-10-2007 (after perusal of paper
notification) and to office tapal section on 12-12-2007 (after receipt of personal notice)
the facts stated in may kindly be read as part and parcel of this written arguements.

Wherefore on the counts of humanitarian aspects and legal aspects raised in objections
and written arguments the acquisition proceedings may be dropped by filing suitable
report to the government in this regard in the interest of Justice.

DATE: 27-03-2008
PLACE: TUMKUR
ADVOCATE FOR OBJECTION PETITIONERS