Sri Uma Shankar S/O Late Subbarayappa vs The State Of Karnataka on 20 April, 2012

[Cites 14, Cited by 3]

Karnataka High Court

Sri Uma Shankar S/O Late Subbarayappa vs The State Of Karnataka on 20 April, 2012

Equivalent citations: 2012 (3) AIR KAR R 3

--V order ..d'a.teVd 22.7.2002 is inextricably linked to _':thes..Qrder dated 15.9.2001 which was invalid for if .ithe»«same reasons as the order dated 22.7.2002. . _'F_urther, the order dated 22.7.2002 was passed Vi 21 to set right the violation of the principles nature justice in making the order 15.9.2001. It is possible for us to hold that A order dated 22.7.2002 did" not .-"C'a-ll}forg interference in exercise of 1pow_egr;of review, as it merely cancelled anlearlieringvvalidE1"' order which was made h"eari'ng But that may prejudice the_g_la~n_downerS'as they would have no forumﬁto p_u1;_.1.fo'it_h._ fheir request for denotification.

21. We are relief should be moulded the landowners should"also.:l§.:;;vve:7}jii to putforth their grievaincer would be served if both the" dated 22.7.2002 and

15.S;.'20..O1 V aside and the State ' 1'oovelrnrnentg is directed to consider the request ~v4l'aAvndowners for withdrawal from acgluiisitigonei'afresh after giving due hearing to the .V |and'ow'ners (and also the first respondent) and and then decide the matter in accordance withiaw.

l/2 22 In the said matter, neither the de-notificationjorder nor the subsequent order withdrawing the notification did provide any notice to the affected Under such circumstances, the Ape} the order of de-notification as well aslthe' withdrawing theorder of de-notififcaytion are the eye of law and that the afresh after giving opportunity toall the on hand also, neither the. 14.10.2009 nor the the order of de--notification--. notifying the affected parties. Therefore, in normal course should have been set aside""an.d..t'he matter could have been sent back'for'---co.nsi(j'eration afresh on merits after affording Iii",.__gpport'uAn_i'ty of heard to both the parties. But, the may not; be necessary in view of certain peculiar facts {~.'i,nvo'iy_eVd_gin; these matters, which are as under: 23

8. After taking possession of the properties on vargious dates prior to 3.3.1975, the petitioner No.21186/2010 & 23885-23895/2010 startjedv':VA..n18aki'ng-..,8""

representations for re-conveying the lagnjcl'Ki>n':._h«is'=fa.yo1;vr.. Nothing turned out till 1987. lg-.l'o.y.vever__the started from 15.4.1987 between'-«..xt:lie_» peti'ti:on'jer:Eand the BDA. According to the "wafvs:'V'hoping to get the order of re--conveyance light of his correspondence 30.9.1987 the petitioner of the caveat petiton filed beforelthis'8o'urt':-Vhjy the he learnt that an extent of 6 acres " 1 square yards situated in 32/7; 32/10, 32/11 and 32/12 is already"utiiisedfxfo-r the formation of house sites and Z"...__qivstribute'dA togyariilous members. The petitioner preferred ..."_4'_l1/l/..yP...,gNo.154.817/87 before this Court on 15.10.1987 for a the BDA to convey the land to an extent of 6 . 'V:ac.re's_2§1 guntas 42 square yards in his favour the purpose VS 24 of industrial and residential purposes. On 3.4.19;8?9.gthe said writ petiton came to be dismissed judgments of this Court reported in ILR 198g7_.,l§AR' ILR 1989 Kar 75 wherein this Couift jdliiirecitleddthaotljthe persons whose lands had beena_cquir'ed'cou!d"%'a;pvp_lVy site. Being aggrieved by the in W.P. No.15487/87, the No.727/1989 before the Division said appeal also came to be The petitioner approached___ No.9456/89 on 31.8.1989.:*._ .,'Ci4".'--.'i>..:1:.:""1!\J;_'o"s:.5165/92 (arising out of SLP No.9456/A89'_)_Vw.aV:s on 31.1.2001 and the matter Division Bench of this Court to dispose ofV"t.h'e.:.Vw'rit'vvalppeall-afresh in accordance with law. After allowed W.A. No.727/89 on 10.7.2001 ..0pangd'..,directed_A'1-the second respondent to issue possession 4:-lcertiticatefgto the petitioner. Questioning the said order, 0 'V:Bl§A_preferred SLP No.164/2002 (CA No.971/2003) and the V5 25 said Civil Appeal was allowed and the judgment ~of»..the Division Bench in Writ Appeal No.727/89 was _._on 3.10.2005. The said judgment came to he Ccjr;gpgarté0 (2005)12 SCC 508.

9. It is also relevant to'--.n'Ote certainobservationsA made by the Apex Court..V_in ,t'h'e~.'V...i;Lid'gment'"reported in (2005)12 scc 508 betwleen While deciding the said gone into each and every "taking of possession and depositiingv 'of.v5c_om;pVensaVt_ivon_. _--l:;ven the correspondence between theVpetition.erfA'an'd_:':"th"e BDA as well as certain resolutions »p_ass4ed.v"b'y° the 'then City Improvement Trust alsogreferreld to in the said judgment in paraAg:rap'hs After considering all the facts and V".;«sAAvai'§ous ju*dgrhent's of the Apex Court on the issue, observed A ""'--{l'6.'AA'The possession of the land in question was

-rtalken in the year 1966 after the passing of the //> 26 award by the Land Acquisition Officei%?:.""*.g. Thereafter, the land vested in the Governrr'ien't~'j"...V'"- which was then transferred to predecessor-in-interest of the gagpgpellaynt',..__'fAfte:rV"* if the vesting of the land and itakinégj; thereof, the notification for acq..ui"ri.ng tht-;e.'A.lv'arid A could not be withdrawn orcangcelled..i'n...e':<ercise if of powers under ;_SectioAn...u:'48'--.,of .'the.._La§nd Acquisition Act. Pov»'er _ur:de;_r 31.S'ecj:ti.oi:.,'21 of the General Clauses Act after vesting of §th'eg:,,..1'l--an£:l_ the State '

47. The erred in holding that land acqu.isition*--progcessn.and the vesting process becajmegg incom_piete "since the landowners were to redepositthe amount of compensation. The ~!.-ligh"Cou:rt..failed to take notice of Section 31 Acquisition Act. Section 31 contemv«pla'tes that on making of an award under ff"'"«._VV"'SAectio.nv..--i1 the Collector shall tender amount of "compensation awarded by him to the person ' interested and entitled thereto according to the "award and shall pay to them unless prevented l/B 27 by any one or more of the contingenciefsﬁt mentioned in the subsequent clauses. those contingencies arose in the present':*--case;'f""T Thus, once the amount was tendered'"and:';:pa'iVdv'_' if the acquisition process was 1>com.pAIet'et, making the award under Section'V..1A:i--..the C'o:llect'or'3 can take possession of the under Sectio'i'i»"vi6 it which shall thereupon vestlV:"ab's--oAlutelywin../the Government free fromzlilall In the instant case, after making terms of the award;.gjpos§sessi:on'~.Awas~...._téken. The acquisition v"'4'cornpi'eted . The subsequent".d"evel_o_pm.ent "w.i.l.l.tn§ot alter the fact that the acq*u'iis.it«i.o3nl was-com.'plete.

55. isxn"otV_"in_'disputeV that Section 48 of the Larﬁd. EAcq%_uisiti"on.. ..... ..Act would apply to the acquisivtiorz--s:"'made under the 1976 Act and in matter the State could exercise its j.4urisciicti'oAn for re-conveyance of the property 'gin favour of the owner thereof only in the event "..fj"posis'ession thereof had not been taken. Once suchipossession is taken even the State cannot

-direct to re-convey the property. It has been V' 28 accepted before us that Section 21 of General Clauses Act has no application__"but'4jVr"- reliance has been sought to be placed on A 65 of the 1976 Act whichgggggempowevrsf;the':

Government to issue such idirectionfsg':t_o*-the-.___. Authority as in its opinion are'"necess;:+zry" or} expedient for carrying out..:th,e purposes Act. The power of the Sta.t.e:'Go'v.ernment...being circumscribed by the._..V:coAn"dit;i_g.ns'V--fprecedent laid down therein, thus, issued only when the':svame::A__are expedient for carrying""o._uf...-the the Act. In a case S'ta.te.5Government did not have .Aan'y",Vs,u:ch>"ju'risd~iCtion and, thus, the Bangalore " Dev.e'l'opm'e--n't'<"Authority has rightly refused to "co mpiy th'er'ewith.

lNe'lf&accept appeal and set aside the High Court as well as the directions"vlsiissiued by the State Government on K the asklinghvof the Chief Minister vide letter dated to BDA to reconvey the land ,._mVe'as'uring 6 acres, 20 guntas and 42 sq. yd to Hthfe 15' respondent. The judgment under appeal V7 29 is set aside and that of the Single Judge V restored. The writ petiton is dismissed excep't:t=o"gj'--..."'-_ the extent that the 15* respondent wotftiiidi%,.5§é;.f entitled to reclaim the amountgof compevnsati'onv'«,V V alongwith interest as indicated :,thfChi'_¢a.l;Il€f7_'L"xi,A' paragraphs. Parties shall bear th_eir,_own A

10. From the abovev,--_it the"r'igl*i'ts of the parties are fully settled the country as far back as on, reported in (2oo5)12 scc has finally concluded that the lhntoloirder of re-conveyance inasmuch prior to 3.3.1975. The State canjnotx At'hev.said order of' the Apex Court.

UnderAA'rti:cle'f141A_.of theiiconstitution, the law declared by thellwiilon.'-ble~:Su,préi"n~e Court shall be binding on all Courts Inspite of the same, the petitioner "this Court by filing W.P. No.26826/2005 the constitutional validity of Section-9 of the "(Amendment Act 17/1994) and for certain other V7 30 reliefs. In the said writ petiton, the Court was prayed to decide the constitutional validity of Section--9 (Amendment Act 17/1994). However came to be passed on 24.3.2009 §sa_id'¥'Awrit,pe'titon directing the respondents to pVrovide"dev--e|oped- extent of 6 acres 21 guntas. By"the_'veryinteirim order, the petitioner was also directed"j«to' representation to the Government__and directed to take decision in from the date of thegvsagid by the said interim order dated l3lDA filed W.A. Nos.1514- 1515/2009. Abtrrangiiithlevygpeirztilency of the writ appeal, the vS.ta.te Got/'eErrim'enVt""d:e.n_otified the land in favour of the pe'tiyti0;n'er.gA ovn'~r:V'1.%:l".'1_O.2OO9 based on the interim order :9"»,___gvrante'd.V'by in W.P. No.26826/2005. In view of order 'of de--notification passed by the State the BDA having no other go had to withdraw . appeal as the same had become infructuous by \/> 31 then. Subsequently by the impugned order, the order of de--notification dated 14.10.2009 is on 13.11.2009.

11. From the above, it is;c_learA'that the»voijder notification dated 14.1O.2OO91°itselfV initio inasmuch as the same to theﬂjudgment of the Apex CourtA._rendered._j:be'ti(y.lgg'ﬁ~.v_.'lA:%.l¥;.e'V'. same parties reported in the rights of the parties had__or;/sta'l"lVi'ze_dV_" order of the Apex Court in in (2005)12 SCC 508, it is not open to de-notify the lands ivn..Vf;;vou.r.§:g','f: _t¢'he_' based on the subsequent interim order.g'ran%ted*l.by:this Court in W.P. No.26826/2005. State :5"..,___Gover'n.meAntv.sh'ou.i:d not have hurried to de-notify the land l_..1H'_:«'J"urin_g the~~jp:endency of W.A. No.1514--15/2009 filed by .Si'rg«ce the order of de--notification itself was void and . 'V7co'n:tra_r§'y to the judgment of the Apex Court, the same is xiv 32 rightly recalled by the State Government on 13.11.2.gOf.l9 by the impugned order.

12. In view of the aforementioned' pe'culvi'a'r..'jVfa'ct.s;_ar1du circumstances of this case and ;'as¥'.'_'th'e llorubdelr notification dated 14.10.2009--.Cw.as void' "i--n'iti'o'V: and"? contrary to the judgment of4V.l-the?-.%'Vtc;':13§Vr'3'~??§< 1Cﬁou*rt~'§rendered between the parties, the State Government recalling:-. need not be preceded with? -being heard to the petitioner. being void and non-

est in the eyelofVlailvmtneel is nullity in the eye of law. Therefore.--thgere'°is:hno.7'qu-estion of notifying the petitioner while ;ecam.«g the voidorder.

13'.'--.The' a-Erin of the rules of natural justice is to secure or to 'put it negatively to prevent miscarriage of "These rules can operate only in areas not covered law validly made. In other words, they do not W 33 supplant the law of the land but supplement it. Whenever a complaint is made before a court_...tha.t"'some principle of natural justice had been contrav_ened:, the has to decide whether the observalnce' ol';_th_at--..:

necessary for a just decision on the fac_ts-- of thvatciase (seeiﬁ Judgment in the case of A.K. INDA reported in AIR 1970 SC on hand, this Court does not findany contention of the petitioner require that the petitioner " before passing the impugned :'ord--e*i'A"and circumstances of this case. As purpose of rules of natural justice is-ito__"preve'n't"miscarriage of justice. In the matter on<.hand,...the:'State--.has set right the illegality committed by the impugned order has withdrawn the orde~r_"":.of de-notification, which circumvent the the Hon'ble Supreme Court between the very ma]oalrftijes -

\/'a 34

14. In the light of peculiar facts and circums*tancjesv._of this case, the observations of the Apex Court MYSORE URBAN DEVELOPMENT AU'l""rl«OR'ITYu:f'\;<g.V:VV'*VAEl§'R KUMAR JAIN reported in (2010)5 applicable. In the said matter,"'th'e.order.of"Ade-notification I was not void ab initio. U.nd.gr the Apex Court held that, while of de.

notification the _;pai%ti'Te:s been heard. Whereas in the. of de-notification is void .the petitioner cannot claim that he shou'ld_Lhaye"VbVQ:--}gz'nl in the matter while passing the impu4cg'n'ed orderrecalliing the order of de-notification. learned counsel for the petitioner tried argue_:tha.tthjiellpetitioner is entitled for de-notification of "*'.--1't'i'i4:.=:_t-landsItin' question on merits, the same cannot be in view of the settled position between the as found in the judgment of the Apex Court reported W 35 in (2005)12 SCC 508 mentioned supra. Subsequent"'to the said judgment rendered by the Supreme settling the rights of the very parties, the allowed to be re-opened once agair;i.WVlfl'eiivce_g, No.21186/2010 & writ Petition_:l\los. 423885-89.5V/2tO'i'O %lari=.%f. liable to be dismissed.

Accordingly, the following ipfaVsvse_d:

1. Writ .l\vl':c>_.21':.V.18__.E4i,/i;2.'C)iOW:& writ Petition dismissed.

2. viewVJiVAIof>'"~~V.:g:disi'nissal of Writ Petiton iiotziiat/2010 '3; Writ Petition Nos.23885--

yg first prayer of the petitioners in Nos.32919-32922/2009 and Writ A"-««..VPetition' ANo.33654/2009 insofar as they relate to .. ___se'e'l;ing quashing the order of de--notification "dated 14"" October 2009 is concerned has become infructuous.

l/>

--.PAe't.i4l::l'o:Vr'..i:"'~l\lo.33654/2009 and writ 36 Consequently, the allotment of si..tes'j'rn'ade in favour of various allottees petitioners 32922/2009, writ Petition iior;i33i6'st4,ri2oi,o§ "=andtiV writ Petition No.258s9.AZg2i.o1oi's».to be, écgtéd siupon"

and the Bangalore g..E')'e'x.)'_:e:loVVi"3'iraientA'Authority is directed to .A'_i.n."'__respect of sites allotted§in*:tag;xIou§rfot However, it is further th':is"'oortion of the order oi"i.'l'yWivf there is no other legal hurdle. i Wxrit' Petitiion Nos. 329 19-32922/2009, Writ Petition

7.""No.v2.S'815V<§/2010 are disposed of accordingly.

  i    4 iAcAki/oSs/-

Sd/'' :)
JUDGE

in writ _.~PvetitiOl'l igNios§'3291i9¢

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Karnataka High Court