JUDGEMENT :-

1 Challenge in this appeal is to the order passed by the learned Single judge dismissing the writ petition. In the writ petition, the challenge was to the preliminary Notification dated 28.3.2007 (Annexure-B) and the final declaration dated 25.11.2007 (Annexure-F), whereby the land which belongs to appellant was acquired for the benefit of respondents 3 and 4.

2 Facts of the case briefly stated are as under: appellant is the owner of land bearing Sy. No.477/02 measuring 4 acres and 90 cents, situated at Sulliya village and Taluk of Dakshina Kannada District. The said land came to be notified for acquisition under the provisions of the Land Acquisition Act (the Act for short ). A preliminary Notification dated 28.3.2007 (Annexure-B) was issued to acquire the said land with 3 other bits of land for the benefit of respondents 3 and 4. Appellant filed his objections (Annexure-D) to the said Notification. Thereafter, a declaration under Sec.6 of the Act was made on 25.11.2007 (Annexure-F ). Appellant filed writ petition challenging the acquisition proceedings vide Notification as at Annexures B and F. Respondents 3 and 4 filed statement of objections. The respondents contested the writ petition. Learned Single Judge has dismissed the writ petition.

3 Though appellant had raised several grounds in the writ petition and has also raised several grounds in this appeal, all those grounds are not urged for consideration. Prof. Ravivarma Kumar, learned Sr. counsel appearing for appellant, would urge that, the enquiry which is mandatory under S.5a of the Act was conducted in the instant case and therefore, the declaration under S.6 of the Act and proceedings thereafter, if any, are illegal. In support of the contention, learned Sr. counsel placed strong reliance on a decision in the case of V. K. kangan VS. STATE OF MYSORE AND OTHERS, (1976) 2 SCC 895 ).

4 On the other hand, learned Additional Government Advocate appearing for the respondents 1 and 2 and Smt. Shwetha Anand, learned counsel appearing for respondents 3 and 4 beneficiaries, would contend that, a stop inspection was conducted by the Collector, which is nothing but an enquiry being held under S.5a of the Act and it is thereafter the report has been submitted to the Government and hence, there is no merit in the contention addressed on behalf of appellant. Learned counsel would submit that the learned Single Judge has taken into consideration the material aspects of the case and having found that there is no merit in the writ petition, has dismissed the same and since there is a detailed consideration of the matter by the learned Single Judge, in the facts and circumstances of the case, no interference is called for. learned counsel would make submissions in support of findings and conclusion recorded by the learned Single Judge in the order impugned herein.

5 Learned Single Judge has held that, the records disclose an enquiry have been conducted under S.5a of the Act, in that, spot inspection to find out that, the place in question is suitable for the purpose of establishing a bus depot has held and the Land Acquisition Officer Commissioner in his report has referred to the objections raised by land owner and has replied that, the land in question are necessary to establish a bus depot and therefore, the objection raised have to be rejected and hence, recommended for acquiring the land, in the background of which, the contention that, no enquiry has been held under S.5a of the Act, cannot be accepted. With regard to the violation of S.5a (2), it was held that, there is no contention raised in the writ petition and unless there is a foundation laid in the facts, the question cannot be gone into. In the said view of the matter, the writ petition was dismissed.

6 In the case of SHRI FARID AHMED ABDUL SAMAD AND ANOTHER VS. THE MUNICIPAL CORPORATION OF THE CITY OF AHAMEDBAD AND ANOTHER, (1976 (3) SCC 719), it has been held that, personal hearing under S.5a of the Act is mandatory and does not rest on a persons demand for personal hearing.

7 In the case of SHRI MANDIR SITA RAMJI VS. GOVERNOR OF DELHI AND OTHERS (1975 (4) SCC 298), it has been held that, the duty of the Land Acquisition Officer to afford opportunity of being heard under S.5a of the Act is mandatory and that the decision by the Government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper.

8 In the case of SHYAM NANDAN PRASAD AND OTHERS VS. STATE OF BIHAR AND OTHERS (1993) 4 SCC 255), the Apex Court has held that, affording of opportunity of being heard to the objector is a must and this provision embodies a just and wholesome principle that a person whose property is being, or is intended to be acquired, should have the occasion to persuade the authorities concerned that his property be not touched for acquisition.

9 The objections under S.5a, if filed, can relate to the contentions that, (i) the purpose for which land is being acquired is not a public purpose (ii) that even if the purpose is public purpose, the land of the objector is not necessary, in the sense that, the purpose could be served by other land already possessed or some other land to which the objector may refer or (iii) that in any event, even if his land is necessary for public purpose, the special fact-situation in which the objector is placed, it is a fit case for omitting his land from acquisition. The objection at Sl. No. (ii) is personal to the objector. In case of objections as at Sl. Nos. (i) and (iii) supra, there is a personal element, which has to be pleader under S.5a enquiry and when the objections are filed, it is necessary that the same is required to be considered after affording a personal opportunity of hearing.

10 S.5a enquiry is an important stage in the land acquisition proceedings. A land owner who is aware of S.4 (1) Notification can raise objections of the nature Stated supra. Such a person is also at liberty to raise incidental contentions against the land acquisition. The objector must be given a reasonable opportunity of being heard and in case of violation of the procedure prescribed under S.5a, would seriously prejudice the rights of the owner of the property, whose land is sought to be acquired. The land acquisition can be made in the manner provided under law and not otherwise. When the property of the person is sought to be acquired in exercise of power eminent domain, the State/authority is required to scrupulously follow the procedure prescribed under the Act. Otherwise, the land acquisition proceedings would stand vitiated and may not stand the test of judicial scrutiny, if a challenge is made thereagainst.

11 Apex Court in the case of STATE OF PUNJAB VS. GURDIAL SINGH (AIR 1980 SC 319) and OM PRAKASH VS. STATE OF U. P. (1998 AIR SCW 2507) has observed that, it was fundamental that compulsory taking of a mans property is a serious matter and smaller the man, the more serious the matter. The observations made in the said judgments would indicate that, enquiry under S.5a is not merely statutory but also has almost a flavour of fundamental rights under Articles 14 and 19 of the Constitution of India. The said observations assign a grate deal of important to the right of a citizen to file objections under S.5a of the Act when his land is being taken over under the provisions of the Act. The kind of the importance that has been given to the right, in the said judgments, is in itself sufficient to indicate that, great care had to be taken by the authorities concerned to give effect to the procedure as mandated by the Statute.

12 In the instant case, in view of the objections filed as at Annexure-D, it is pertinent to observe that, the Commissioner has only conducted a spot inspection and in fact, has not afforded any opportunity of hearing thereafter to the objector. The records of the Commissioner were secured and were perused by learned counsel appearing on both sides and also by us. There is no material on record to show that appellant was notified of any hearing date nor was heard in person. What all the records disclose is that, a spot inspection notice was issued, the Commissioner conducted the spot inspection and based on the observations, by making a reference to the objections filed as at Annexure-D, without affording a personal hearing, sent, the report to the government.

13 The point for consideration is, whether a mere holding of spots inspection can be a substitute to the personal hearing?

14 In pursuance of the powers conferred under S.55 of the Act, the Government of Karnataka has made the Karnataka Acquisition s, 1965 (the Rule for short ). Rule 5 thereunder is regarding hearing of objections. Sub-rule (2) of Rule 5 provides that, if any objection is received from a person interested in the land on or before the date specified in the notification is under section 4, the Deputy Commissioner shall fix a date for hearing the objections and give notice thereon to the objectors as well as to the Department, where such department or the public body requiring the land which may file on or before the date fixed by the Commissioner, a statement by way of answer to the objections and may also depute a representative to attend the enquiry. Sub rule (3) provides that, on the date fixed for enquiry or any other date to which the enquiry may be adjourned by the Commissioner, the Commissioner shall hear the objector or his Advocate and the representatives, if any, of the department or other public body and record any evidence that may be produced in support of the objections. Rule 6 provides for appearance through Advocate in the enquiry held under S.5a of the Act.

15 The Commissioner is right in conducting the spot inspection to find out the location of the land, suitability for the intended purpose and other relevant aspects. However, after spot inspection, the Commissioner should have granted opportunity of personal hearing and thereafter should submit his report to the Government. That would meet the ends of justice. Mere inspection of the spot, not followed by a personal hearing, will fall short of personal hearing contemplated in S.5a of the Act. When a persons property is sought to be acquired, unless the special powers in cases of urgency as provided under S.17 of the Act is invocked, such a person should necessarily have reasonable opportunity of hearing. Such a procedure has not been followed in the instant case. Learned Single Judge has erred in not considering the matter in the manner indicated herein, which would be in tune with the principles of natural justice, since an important aspect has been missed by the learned Single Judge, the writ petition has erroneously been dismissed. Hence, interference is called for.

16 Since S.5a enquiry which is mandatory has not been held in the manner required under law, the proceedings subsequent thereto resulting in issue of declaration under S.6 of the Act, as at Annexure-F, being vitiated, cannot be sustained. In the result, we pass the following:

ORDER (i) The order dated 4.8.2009 passed in W. P.3898/2008 dismissing the writ petition by the learned Single Judge, is hereby set aside. (ii) W. P.3898/2008 is allowed in part. Declaration under S.6 vide Annexure-F insofar as the property of appellant is concerned, shall stand quashed. (iii) 2nd respondent shall conduct an enquiry under S.5a of the Act, by hearing to appellant. In order to expediate the process, the appellant is hereby directed to appear before the Commissioner on 15.2.2010 at 3 p. m. and receive further orders. The Commissioner shall complete the hearing on objection of the appellant, as expeditiously as possible and submit is report to the Government on or before 15.3.2010. (iv) All other contentions are kept open for consideration. Writ appeal stands allowed accordingly.