Karnataka High Court
The Telecom Employees Co-Operative ... vs The Special Deputy Commissioner And ... on 20 September, 1989
Equivalent citations: AIR1990KANT363, ILR1990KAR467, 1989(2)KARLJ382, AIR 1990 KARNATAKA 363
ORDER
1. The Telecom Employees Cooperative Housing Society Limited represented by its Secretary, Mangalore, is the petitioner herein questioning the impugned notice and notification dated 13-9-1985 issued by the Special Deputy Commissioner and Competent Authority, Dakshina Kannada, Mangalore, who is respondent 1 herein.
2. A vacant land measuring 86 cents situate in R.S. No. 714 and T.S. No. 177, northern portion of Attavar of Mangalore lying within Mangalore Corporation originally belonged to the family of respondent 2. A declaration was filed under S. 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter called 'the Act'). On receipt of the said declaration made by T. Rajanandan Walke son of late T. Krishna Walke not only on his behalf but also on behalf of 10 other members of the same family dated 16-6-1982, an endorsement was issued on 11-8-1983 by respondent 1 stating that on a scrutiny of the declaration made under S. 6(1) of the Act by T. Rajanandan Walke for and on behalf of Govardhana Walke, Rajanandan Walke, Smt. Vasanthi Walke, Smt. Champavathi Walke and Smt. Narmada K. Walke that the land jointly held by them in Bolur and Attavar villages in respect of each one of them is within the ceiling limit. The endorsement contains a reference mentioning that the declaration refers to the one made under S. 6(1) of the Act by Rajanandan Walke son of Krishna Walke duly authorised by Govardhan Walke, Rajanandan Walke, Smt. Vasanthi Walke, Smt. Champavathi Walke, Smt. Narmada Walke, Srikanth Walke and Ramakrishna Walke. Thereafter, on 8-11-1983, a registered deed of sale was executed by Govardhan Walke, Rajanandan Walke, Suprabha S. Shet, Subodha B. Vetekar, Lakshmidevi V. Nayak, Shrikanth Walke and Ramakrishna Walke in favour of the petitioner society for a valuable consideration of Rs. 4,30,000/- in respect of the property described in the schedule to the sale deed, a copy of which is Annexure-B, inclusive of 86 cents of vacant land which is referred to in the declaration submitted under S. 6(1) of the Act. The identity of the land in respect of which a declaration was filed under S. 6(1) of the Act is the same as 86 cents of vacant land sold under Annexure-B to the petitioner society. On 26-4-1985, a notice was issued by respondent 1, a copy of which is Annexure-D, notifying that it is presumed that the declarant has no objections to acquire the excess vacant land determined and, therefore, the final notice under S. 9 of the Act is prepared and sent. This notice is addressed to T. Rajanandan Walke. On 13-9-1985, a notification was enclosed along with a letter of the same day, a copy of which is Annexure-C1, declaring that the excess vacant land the particulars of which are described in the schedule thereunder held by Rajanadan Walke is deemed to have been acquired by the Government of Karnataka with effect from 1-10-1985. On the same date, a letter was addressed by respondent 1 to the Assistant Director, Government Branch Press, Madikeri, Coorg District requesting for gazette publication of the notification under S. 10(3) of the Act in respect of the excess vacant land held by T. Rajanandan Walke of Mangalore in Mangalore Urban Agglomeration shall be deemed to have been acquired by the Government of Karnataka with effect from 1-10-1985. On 18-7-1985, the Secretary of the petitioner society as an objector preferred objections S. 9(1) notification bringing to the notice respondent 1 that the society had purchased a part of the property from Rajanandan Walke in Sy. No. 177 measuring 86 cents under registered sale deed dated 8-11-1983 for the purpose of putting up residential flats for the members of the society. It was also pointed out in the said objection statement that prior to the purchase of the land from the vendor, the vendor had obtained clearance certificate from the competent authority by order dated 8-11-1983. It was also mentioned in the said statement that the above fact had already been intimated by the vendor through his Lawyer to respondent 1 on 22-5-1983. In view of the purchase preceded by clearance as aforementioned, the objector maintained that the contemplated action under law by the authorities is unsustainable. On 30-7-1985, respondent I issued an endorsement to Sri M. Krishna Rao, Advocate, bringing to his notice that a reply has been issued by the authorities dated 16-7-1985 in response to the notice of 28-5-1985 issued by the Lawyer on behalf of Rajanandan Walke. The reply issued on 16-7-1985 by repondent 1 darified that the endorsement issued on 11-8-1983 under Annexure-A that the said endorsement relates only to the members of the undivided family who had attained majority. The said reply also made it clear that as such, notices under Ss. 9 and 10(1) of the Act were issued to Rajanandan Walke who was the authorised agent of the members of the family. The petitioner is aggrieved by the notification dated 13-9-1985 issued under Annexures-C and 'C1' by respondent 1 the said notification having been issued under S. 10(3) of the Act declaring that there was excess holding of land and the same having been deemed to be acquired by the Government of Karnataka with effect from 1-10-1985.
3. The respondents have not filed any statement of objections.
4. The point for consideration is whether the acquisition of land purchased by the petitioner society is in accordance with law and whether the impugned notification is liable to be quashed.
5. The learned counsel for the petitioner contended that after the declaration was submitted by Rajanandan Walke as a member of the family under S. 6(1) of the Act, since the competent authority was of the opinion being convinced that vacant land in excess of the ceiling limit was not held by them, the prescirbed authority could not proceed to serve a notice under sub-sec. (2) of S. 6 of the Act and instead proceeded to issue an endorsement under Anncxure-A dated 11-8-1983. Whereas the declaration was made on 16-6-1982 by Rajanandan Walke as the authorised agent of the family, the endorsement that every member of the family possessed land within the ceiling limit was issued on 11-8-1983. It can be fairly said that on due consideration, after a lapse of about 14 months from the date of declaration under S. 6(1) of the Act, the endorsement under Annexure-A came to be issued. A reading of this endorsement makes it unequivocally clear that the endorsement did not make any exception or reservation in respect of minors, if any, among the members of the family. From Annexure-A manifestly clear are the names of relevant persons, viz., Smt. Vasan-thi Walke, Smt. Champavathi Walke and Smt. Narmada Walke who have been referred to in the reply issued by respondent 1 dated 16-7-1985. In the letter dated 16-7-1985, it is mentioned that Smt. Sawchidevi Walke and the minors Suryanarayana Walke and Suchithra K. Walke possessed lands beyond the ceiling limit and that Annexure-A refers only to the other members of the family who have attained majority. In the reply dated 16-7-1985, the names of the minors are Suryanarayana Walke and Suchithra Walke. It is not clear as to whether Sachidevi Walke is alsoincluded amongtheminors. A reading of the contents of the said reply makes it appear that Sachidevi Walke is not a minor. The declaration was made by T. Rajanandan Walke on behalf of T. Sachidevi K. Walke being the widow of late T. Krishna Walke, T. Goverdhana Walke, T. Rajanandan Walke, K. Subraba S. Shet, Subodha D. Vetekar, Lakshmidevi V. Nayak, T. Sri-kanth Walke, T. Suchithra K. Walke, T. Ramakrisna Walke and T. Nithyanand Walke. Sachidevi Walke being the widow of late Krishna Walke is not obviously a minor. Suryanarayana Walke whose name is mentioned in the reply dated 16-7-1985 is not one of the declarants. Suchithra Walke whose name is mentioned in the reply dated 16-7-1985 is alone a minor. In the second para of the letter dated 16-7-1985, it is very clearly mentioned that Annexure-A dated 11-8-1983 applies only to the members of the family of the declarant who have attained majority which obviously means that Annexure-A does not come to the aid of the minors in the family referred to in para 1 of the reply dated 16-7-1985. Admittedly Sachidevi Walke is not a minor and Suryanarayana Walke who is stated to be the minor does not find a place in the list of declarants. The only person who survives as a minor is Suchithra K. Walke. Thus, it is clear that the assumptions that the three persons referred to in the first para of the reply dated 16-7-1985 hold excess land or lands beyond the ceiling limit is an assumption without basis at least in so far as Sachidevi Walke and Suryanarayana Walke are concerned. At the risk of repetition, it may be observed that the authority proceeded on the premise that Suryanarayana Walke is a minor having land above the ceiling limit being a minor and Suchithra K. Walke having land beyond the ceiling limit as a minor and Sachidevi Walke having land beyond the ceiling limit though she is not a minor.
6. The contention of the learned Government Pleader appearing on behalf of respondent 1 is that Annexure-A pertains only to the major members of the family and not to the minors. This contention would be a fallacy in the light of the admitted facts that among the three persons mentioned in the letter dated 16-7-1985, one person who is stated to be a minor is not a declarant at all and not a member of the family, another person by name Sachidevi Walke is not a minor at all and the only minor, if at all, is Suchithra K. Walke.
7. The point for ocnsideration in the light of the facts ascertainable by reference to the original records of the proceedings is whether subsequent to the issue of Annexure-A, the authorities are empowered under the statute to revoke the order once made to the effect that the family does not hold land in excess of the ceiling limit. It is not brought to my notice that such a provision exists in the statute book. The power to revoke an order passed on a decision reached after due consideration of the declaration made under S. 6(1) of the Act holding that the family does not possess land in excess of the ceiling limit, after communication to the concerned party, can be revoked only if the statute empowers in express language. The special feature of the proceedings adopted by respondent 1 is that, after having issued Annexure-A, the authority has proceeded to issue the Gazette notification under S. 8(4) of the Act followed by the final notification under S. 10(3) of the Act. According to S. 6(2) of the Act;
"If the competent authority is of opinion that-
(a) in any State to which this Act applies in the first instance, any person held on or after the 17th day of February, 1975 and before the commencement of this Act or holds at such commencement; or
(b) in any State which adopts this Act under Cl.(1) of Art. 252 of the Constitution, any person holds at the commencement of this Act, vacant land in excess of the ceiling limit, then, notwithstanding anything contained in sub-sec. (1), it may serve a notice upon such person requiring him to file, within such period as may be specified in the notice, the statement referred to in sub-sec. (1)".
The plain meaning of the provision is that the competent authority may call upon the declarant after due service of notice within the time-limit stipulated by it, to file a statement as contemplated by sub-sec. (1) of S. 6, only after forming an opinion that the declarant is holding on or after 17-2-1975 and before the commencement of the Act, or at such commencement, vacant lands exceeding the ceiling limit.
In the case in hand, as evident from Annexure-A the competent authority formed an opinion in no uncertain language that the declarants are not holding lands in excess of the ceiling limit. This opinion was indeed communicated to the declarants. Therefore, in my opinion, the competent authority was not justified in resorting to further proceedings against the holders ofland.
It is significant to note that there is no order from respondent 1 revoking or cancelling Annexure-A; but it is only as late as 16-7-1985 that a clarification has been issued by respondent 1 only after a legal notice was served on respondent 1 by the Advocate on behalf of Rajanandan Walke objecting to the notification issued under S. 10(3) of the Act. In the absence of such a revocation if the Act empowers the authority to do so, assuming that respondent I enjoys such a power by implication, it cannot be said that the power exercised by respondent 1 is in accordance with law. Even assuming that respondent 1 was invested with the power of revocation of the order passed under Annexure-A, principles of natural justice demand that a notice or an opportunity of hearing should have been afforded to the persons likely to be affected by a proposed revocation of Annexure-A. I must observe that respondent 1 has acted arbitrarily and without the authority of law in issuing the gazette notification under S. 10(3) of the Act. I would also add that from the stage of issue of Annexure-A, subsequent proceedings under the provisions of S. 6(2) up to S. 10(3) of the Act are without jurisdiction. Annexure-A having taken effect obvitates the power to exercise jurisdiction of acquisition by having recourse to the remaining provisions leading to the publication of the final notification under S. 10(3) of the Act.
8. The learned Government Pleader appearing for respondent I submitted that the petitioner has no locus standi and, therefore, the writ petition is liable to be dismissed. Acting on the basis of the endorsement issued under Annexure-A by respondent 1 subsequent to the date of the endorsement, the petitioner purchased the land in question from the vendors who are the declarants under S. 6(1) of the Act. Since I have taken the view that the acquisition itself is bad in law, it automatically follows that the petitioner has acquired title by virtue of the registered sale deed executed on 8-11-1983. Since the petitioner has a recognised legal right in the property in question, it cannot be said that the petitioner is not an aggrieved person. Consequently, I hold that the writ petition is maintainable.
9. Another contention was advanced by the learned Government Pleader that it was always open to the declarant to obtain the necessary permission under S. 20 of the Act. This argument has to be negatived because the declarant did not see the necessity of obtaining such a permission since an endorsement had been issued on 11-8-1983 to the declarants that the holdings are within the ceiling limit.
10. It was next contended that under S. 5(3) of the Act, the sale transaction is void. This presupposes the untenable ground that the declarants possessed land in excess of the ceiling limit.
11. Finally, it was contended that S. 33 of the Act affords adequate and alternative legal remedy to the petitioner by way of appeal and that this is not a fit case for being entertained under Art. 226 of the Constitution. An over all picture of this case convinces me that respondent 1 has acted without jurisdiction and, therefore, when there is a jurisdictional error, this Court is fully justified in exercising the extraordinary power vested in it under Art. 226 of the Constitution.
12. In view of the above discussion, rule is issued and made absolute. The writ petition is allowed and the impugned notice and notification under Annexures 'C and 'C1' are hereby quashed. In the circumstances of the case, there will be no order as to costs.
13. Petition allowed.