Karnataka High Court
Dr. H.S. Hanumanthappa vs State Of Karnataka And Ors. on 12 February, 1997
Equivalent citations: 1997(3)KARLJ163
ORDER G.P. Shivaprakash, J.
1. A large extent of land, including the following survey numbers, were notified for acquisition under the provisions of the Bangalore Development Authority Act, 1976, by the second respondent for the formation of Rajmahal Vilas II Stage Layout.
i) Sy. No. 1/1 measuring 5 guntas and Sy. No. 1/2 measuring 1 acre 10 guntas; of Lottegolahalli village, Kasaba Hobli, Bangalore North Taluk;
ii) Sy. No. 23, measuring 1 acre 10 guntas; of land situated at Poanapura village, Kasaba Hobli, Bangalore North Taluk;
iii) Sy. No. 112 measuring 1 acre 15 guntas and Sy. Nos. 110 and 111/1 measuring 13 guntas situated at Mattikere Village, Kasaba Hobli, Bangalore North Taluk;
2. The petitioner in W.P. No. 33360/96 (hereafter referred to as the owner) claims to be the owner of the aforesaid lands. After the issue of final notification, the owner presented Writ Petition No. 20377/89 questioning the validity of the acquisition. The said Writ Petition was allowed by the Learned Single Judge by his order dated 20th February, 1992. Aggrieved by the said order, the 2nd respondent Bangalore Development Authority ('BDA' for short) preferred writ appeal before the Division Bench in W.A. 693/92 and the said appeal was allowed on 24.1.1996 setting aside the order of the Learned Single Judge and dismissing the Writ Petition and consequently the land acquisition was held to be valid,
3. When the Writ appeal was pending, it appears from the records, a proposal was under consideration by the Government to withdraw the acquisition in respect of the aforesaid lands.
4. As noticed above, the appeal was allowed by the Division Bench of this Court. Even the petition for Special Leave to appeal preferred by the owner to the Supreme Court of India was also rejected. Subsequently, the Government issued the notification, dated 11.10.1996, Gazetted on 14.10.1996, copy of which is marked as Annexure-A notifying that the acquisition of the aforesaid lands has been withdrawn. However, by another notification dated 26.11.1996, the notification dated 11.10.1996 has been withdrawn which is under challenge by the owner.
5. During this period, it appears, the Bangalore Development Authority had formed the layout and allotted the sites in the aforesaid lands to many applicants. Challenging the denotification, the petitioners claiming to be allottees, have filed W.P. Nos. 32980-82/ 96 and W.P. No. 2774/97. These petitions are being heard along with the petition No. 33360/96.
6. On the representation given by some of the allottees as could be seen from the original records produced by the learned HCGA, the Government have issued the impugned notification dated 26.11.1996 withdrawing the previous notification dated 11.10.1996. The original records reveal that the authorities had applied their mind and had found that the possession of the lands in question had already been taken and sites had been formed by the B D.A., and allotted to third parties. The original records also disclose that in view of the realisation that the possession of the lands had already been taken and therefore, the Government had no power to withdraw the lands from the acquisition, that the impugned notification was issued.
7. Sri Basava Prabhu S. Patil, Learned Counsel for the owner submitted that when once notification is issued under Section 48 of the Land Acquisition Act, rights are conferred upon the owners of the land and it cannot be unilaterally taken away by issuing another notification cancelling the notification withdrawning from acquisition. Secondly he contended, if at all the Government wanted to cancel the notification withdrawing from acquisition, the owner ought to have been given an opportunity of hearing before issuing the impugned notification. In this context, the Learned Counsel invited my attention to a Division Bench decision of this Court dated" 23.9.1996 in W.P.Nos. 33404-406/95 wherein this Court has ruled as follows:
"......It follows, therefore that after a power under Section 48 of the Land Acquisition Act is exercised, the rights are conferred upon the owners of the land, which cannot be taken away by mere cancellation of the notification issued conferring rights upon them. The conferment of right under the Land Acquisition Act created a bar for the respondents to invoke the provisions of the General Clauses Act for reviving of the action once dropped by them. Otherwise also, once the rights were conferred upon the land owners, the same could not be taken away at least without the compliance of the principles of natural justice and affording the beneficiaries an opportunity of hearing ....."
8. It is not in dispute that the owner was not heard before issuing the impugned notification and therefore he had no opportunity whatsoever to show cause against the impugned notification dated 26.11.1996,
9. The petitioners in Writ Petition Nos. 32980 to 32982 of 1996 and 2774/97 are allottees of sites allotted by the respondent-BDA. Petitioners in W.Ps 32980 to 32981 /96 were appellants in Writ Appeal Nos. 2679 and 2846 of 1995 which were also directed against the order of the Learned Single Judge in W.P. No. 20377/89 and were heard along with Writ Appeal No, 693/92 presented by the BDA against the order of the Learned Single Judge. Writ Appeal Nos. 2679 and 2846 of 1995 were also allowed along with the appeal preferred by the BDA. These petitioners question the legality and validity of the notification dated 11.10.1996 Gazetted on 14.10.1996 issued by the State Government in terms of Section 48(1) of the Land Acquisition Act, 1894 ('Act' for short) withdrawing the very same lands from acquisition.
10. Sri Basava Prabhu Patil, Learned Counsel for the owner in W.P. 33360/96, at the out set, submitted that the petitions presented by the allottees are not maintainable since they have no locus standi to challenge the notification issued by the Government withdrawing the acquisition since they are not the persons for whose benefit the lands were acquired. He submitted that the lands were acquired by the B.D.A. for formation of a layout and if at all any party is aggrieved it ought to be the B.D.A. and since the B.D.A. itself has not challenged the validity of the notification, the allottees cannot be considered as having any locus-standi to maintain these petitions. The Learned Counsel invited my attention in this regard to several decisions including the decisions reported in UNION OF INDIA v. SHER SINGH 1. and S.I.P. CORPORATION v. V. ARPUTHARAJ. 2.
11. In these cases it is not in dispute that the petitioners in W.P.Nos. 32980 to 32982 of 1996 and 2774/97 were each allotted one of the sites in RMV II Stage layout formed by the B.D.A., pursuant to the final notification dated 31.8.1978. The very object of forming the residential layout is for the purpose of allotment of sites who are eligible for such allotment and therefore, in my view, it is the allottees who are the ultimate beneficiaries of the acquisition. As noticed above, the petitioners in W.Ps 32980 and 32981/96 had preferred Writ Appeal Nos. 2679 and 2846 of 1995 against the order passed by the Learned Single Judge in W.P. 20377/89, and the Division Bench of this Court had entertained the appeals preferred by the said petitioners. The narrow concept of locus standi had been in a state of flux and has now lost its original characteristics and now any person who has sufficient interest in the subject matter of the litigation is entitled to maintain the Writ Petition. The petitioners who are allottees of the sites in the residential layout certainly have sufficient interest to maintain these petitions, since the impugned order issued under Section 48(1) of the Act renders the allotments Of sites made in their favour a farce.
12. Sri Basava Prabhu Patil next submitted that since the areas denotified under notification dated 11.10.1996 is only in respect of parts of Sy. Nos. 1/2 and 1/1 of Lottegolahaili, Sy. No. 23 of Poornapura, and Sy. Nos. 110, 111 and 112 of Mattikere Village, totally measuring 4 acres 13 guntas of land which belong to the petitioner in W.P. No. 33360/96 and it is riot shown by the allottees that their sites are situated in any part of the denotified area, the allottees cannot be considered as aggrieved parties having sufficient interest to maintain the petitions.
13. It is true, that the allottees have not pleaded anywhere in the petitions that the respective sites allotted in their favour are situated in any particular survey number owned by the petitioner and denotified by the Government. In the notification dated 11.10.1996 though the survey numbers which are withdrawn from acquisition and their extent are specified, the boundaries given therein comprise the whole of the lands in each of the survey number as shown in the final notification Gazetted on 31.8.1978.
14. Sir B.V. Acharya, Learned Senior Counsel appearing for the petitioners in W.Ps 32980 to 32982 of 1996 and Sri Anant Mandgi, Learned' Counsel appearing for the petitioner in W.P. 2274/97 submitted that it is impossible to identify the respective sites of the petitioners with reference to the lands denotified. Even the Learned Counsel for the B.D.A. Sri C.B. Srinivasan submitted that since the boundaries of the lands belonging to the owner have not been clearly defined, but comprise the whole of the survey numbers, it is not possible even for the B.D.A. to pin-point the sites in the layout map prepared by it and allotted in favour of the allottees.
15. In the Writ Petition filed by the owner a map is produced delineating in yellow colour the lands said to have been denotified. In the said map, the sites allotted in favour of the petitioners in W.Ps 32980 to 32982/96 and W.P. 2774/97 are identified. It appears from the said map that the sites allotted in favour of the petitioners are outside the denotified area. Assuming it is so, I do not think it would make any difference since the area shown as denotified area cuts through the layout formed by the B.D.A. obliterating the roads and the parks formed therein, and it would certainly affect the allottees of the sites in the residential layout.
16. Lastly, Sir Basava Prabhu Patil contended that the petitions preferred by the allottes are not well conceived since the impugned order in the said Writ Petition as a matter of fact does not exist. He submitted that the impugned order in the said Writ Petitions has since been withdrawn by the Government by a subsequent notification dated 26.11.1996. It is also pointed out that the petitions presented by the allottees are subsequent to filing of the petition by the owner in Writ Petition No. 33360/96 questioning the legality and validity of the notification dated 26.11.1996 withdrawing the notification issued under Section 48(1) of the Act.
17. The Learned Counsel appearing for the allottees on the other hand contended that the notification withdrawing from acquisition is a statutory notification issued in terms of Section 48(1) of the Act whereas the so-called "cancellation notification" dated 26.11.1996; issued by the Government cancelling the " withdrawal notification " cannot be related to any of the provisions in the Act and, therefore, for all purposes it has to be considered as non-est in law. Besides, the Learned Counsel urged that in the Writ Petition filed by the owner of the lands he has challenged the legality and validity of the " cancellation notification" and in the event the said notification were to be quashed by this Court, the notification withdrawing from acquisition becomes effective and therefore, it cannot be said that the presentation of the petitions by the allottees is misconceived.
18. Sir C.B. Srinivasan, Learned Counsel appearing for the B.D.A., and Sri B. Veerappa, learned HCGP, appearing for the State Government, made available to the Court the original records. From the records produced by the Government, it is seen that the owner of the lands Dr. H.S. Hanumanthappa in his letter dated 5.10.1994 had requested the then Chief Minister of Karnataka to denotify his lands situated in Sy.No. 1/1 and 1/2 of Lottegolahalli, and Sy.No. 23 of Poornapur and Sy.Nos. 112, 110 and 111/1 of Mattikere Village, in all measuring 4 acres. In the said letter he has invited the attention of the Chief Minister to the fact that he had filed Writ Petition No. 20377/89 and the said Petition was allowed on several grounds including the fact that certain extent of lands had been given to several Housing Co-operative Societies and this Court had quashed the notification as regards the lands belonging to him. He has also urged in the said letter that the Writ Appeal No. 693/92 preferred by the B.D.A., against the order of the Learned Single Judge was still pending and that the said appeal would fail because there are no "valid and legal grounds and therefore the appeal deserves to be withdrawn." He has ended up the letter by requesting the Government to withdraw from acquisition and "give effect to the order passed by the Karnataka High Court" in his favour.
19. It is seen from the records that the then Chairman of the B.D.A. in his letter dated 31.10.1994, addressed to the Secretary of the Housing and Urban Development, has brought to his notice regarding the appeal preferred by the B.D.A. and that it was pending consideration before the High Court. He has also stated therein that the B.D.A. had already formed sites in the lands acquired, and allotted the sites to the general public. He has emphasised in the said letter that any move by the Government to denotify the lands belonging to Dr. Hanumanthappa would amount to undermining the interest of the B.D.A. and it will cost irreparable damage to the B.D.A. He has requested the Government not to denotify the lands " in the interest of the B.D.A. and also keep up its image in public." He has urged that there was no reason to denotify these lands and the matter must be allowed to be decided by the courts. He has indicated that he has written the said letter to him since he wanted a factual report regarding the present status of the lands in question.
20. From the extensive notings in the file it appears that the file has passed through several stages. In the noting, the then Chief Minister relying on the decision of the Learned Single Judge of this Court in W.P. 20377/89 has observed that there are no good reasons why acquisition should not be given up in respect of the lands belonging to the owner and that the 'acquisition of the said lands cannot be said to be in public interest. He has, therefore, directed that the lands in question should be withdrawn from acquisition. This order of the then Chief Minister is dated 9.12.1994. On 12.12.1994 there is a noting in the file. From a reading of the noting, it appears (because the order of the Chief Minister is referred to as the order passed by the previous Chief Minister) there was a change in the Government and, therefore, it is suggested in the noting that "a decision has to be taken to confirm the order passed by the then Hon'ble C.M. in paras 44 and 45/NF for denotifying the land Sy. Nos. 1/1, 1/2, 110, 111 and 112 acquired for extension of R.M.V. II stage." Subsequently, there are several notings made. The Minister for Bangalore Urban Development has issued direction to confirm the order passed by the previous Chief Minister. This is dated 10.7.1996. Later on, the file is placed before the Chief Minister who has directed issue of the notification. However, the Principal Secretary to the Housing and Urban Development Department in his note dated 10.10.1996 has high-lighted that in the lands sought to be denotified several sites have been formed and the same have been allotted to several persons including legislators and past legislators and in the event an extent of 4 acres belonging to Dr. Hanumanthappa were to be given up from acquisition it would cause difficulty to the allottees of the sites and the B.D.A. may have to withdraw the appeal filed by it against the order of the Learned Single Judge and the allottees will have to be given alternative sites. He has also noted that in Writ Appeal this Court has directed status quo to be maintained. He has further stated that in the event the lands were to be denotified even the "fifty percent" chance of succeeding in appeal filed by the BDA would disappear. He has sought further instructions in this regard. However, the Minister for Bangalore Urban Development has affirmed the previous order to denotify the land. It is only then, the notification dated 11.10.1996 has been issued which is assailed by the allottees.
21. The Learned Counsel appearing for the allottees as well as the Learned Counsel appearing for the BDA submitted that in the instant case there was absolutely no justification for the Government to exercise its power under Section 48(1) of the Act to withdraw the lands from the acquisition.
22. When the acquisition of the lands has been upheld by a Division Bench of this Court and affirmed by the Supreme Court, the exercise of the power by the Government in terms of Section 48(1) of the Act tantamounts to undoing the judgments rendered by this Court and affirmed by the Supreme Court. Any order deriotifying the land should stand the test of reason though it may not be a speaking order giving reasons for denotification. But, at least circumstances should exist for the Government to justify withdrawal from acquisition.
23. In CHANDRA BANSI SINGH v. STATE OF BIHAR 3. , the Supreme Court has observed as follows:
"Sometimes while taking a pragmatic and progressive action under a statute in the general public interest, which is doubtless a step in the right direction, the Government succumbs to internal or external pressure by a citizen or group of citizens so as to show special favour to them which destroys the laudable object of the nature of the action. Such a cause is adopted to help a few chosen friends at the cost of the people in general and frustrates the very object of meaningful State action. Furthermore the State action brings it into direct collision with Article 14 of the Constitution of India."
24. The above observation of the Supreme Court is made in circumstances identical to the facts of the case on hand. In the said case Section 4 notification was issued on 19.8.1974 and the release came on 24.5,1980. The Court held that the release of the land in favour of a particular family was a pure and simple act of favouritism without there being any legal or constitutional justification for the same and that the State was also was not in a position either to rebut or support the release of the lands in question and in such a case the order of release passed by the Government under Section 48 of the Act was " non est as being violative of Article 14 of the Constitution."
25. As already noticed neither the original file of the BDA nor that of the HUD Department of the Government disclose any valid reasons for withdrawing the lands belonging to the owner from acquisition. The notification withdrawing from acquisition has been issued almost 18 years after the issue of the final notification, that too, after this Court and the Supreme Court has upheld the validity of the acquisition. I, therefore, hold that the exercise of power under Section 48(1) of the Act by the State Government in issuing the notification dated 11.10.1996, denotifying the lands of the petitioner, as invalid and the same deserves to be quashed.
26. Sri Basavaprabhu Patil, Learned Counsel for the owner submitted that for exercise of power under Section 48(1) of the Act no reasons need be given whatsoever, and it is the prerogative of the Government to denotify the lands. In this regard, he invited my attention to the decision of the Supreme Court reported in THE SPECIAL LAND ACQUISITION OFFICER, BOMBAY AND ORS. v. GODREJ AND GOYCE 4. . That was a case where a large extent of land was notified for acquisition. But, subsequently, the Government passed an order in terms of the provisions of Section 48(1) of the Act. The owner of the land challenged the validity of the said notification. In the said case the Government produced material to show that the entire extent of land had been occupied by slum dwellers and it was practicably impossible to take possession of the land for the public purpose for which it was notified. It was in that context the Supreme Court observed that the order as such need not contain any reasons justifying the withdrawal from acquisition. In the said decision, the Supreme Court has observed that withdrawing of the land from acquisition under Section 48 of the Act when it was overrun by slum dwellers to such an extent that it was no longer possible for the Government to effectuate the intended purpose of acquisition and the State Government subsequently releasing the lands from acquisition, would not be illegal. The State Government had acted in the best interests of the public and of public revenues and its decision cannot be faulted. If the Government is reluctant to go ahead with the acquisition in view of the genuine difficulties, it can hardly be blamed and the Government cannot be directed to acquire the land and embark on such a venture. The State could not be compelled to take over the land because the owner of the land will need to take care of it at his own cost until it vests in the Government. The fact that the Government exercised the power of withdrawal after the Writ Petition was filed by the land owner for a Writ of mandamus directing the State Government to make the award under Section 11 of the Act and take possession of the lands after payment of due compensation to the land owner, does not spell mala fides, once the existence of circumstances, which justified the Government's decision to withdraw, is acknowledged.
27. In the instant case, as already noticed, there is absolutely no justification for withdrawing the lands from acquisition.
28. One more contention emphasised by Mr. Basava Prabhu Patil, Learned Counsel for petitioner in W.P. 33360/96 remains to be considered. He submitted that the allottees have no cause of action as such because the very notification withdrawing from acquisition has been cancelled by the Government and the allottees should feel happy about it. This submission of the Learned Counsel cannot be accepted for the simple reason that the owner of the land himself has challenged the notification dated 26.11.1996 cancelling the notification dated 11.10.1996 issued under Section 48(1) of the Act. As already noticed the order dated 26.11.1996 cancelling the notification dated 11.10.1996 withdrawing from acquisition has no statutory basis. In the event the owner of the land who has presented W.P.No. 33360/96 were to succeed in having the notification dated 26.11.1996 cancelling the previous notification dated 11.10.1996 withdrawing from acquisition quashed, on the ground that he has not heard before the order of cancellation was made, the denotification becomes effective. Since the notification dated 11.10.1996, challenged by the allottees, and the notification dated 26.11.1996, challenged by the owners are so inter-related to hold that the allottees can maintain the petitions and challenge the validity of the notification even though for a short period the order withdrawing from acquisition has been eclipsed by the cancellation notification. That apart, as already noticed the cancellation notification is non est in the eye of law.
29. Sri Basava Prabhu Patil, Learned Counsel appearing for the owner cited several decisions, including the decision reported in R.M.S. TELEPHONE EMPLOYEES H.B.CO-OP.SOCIETY v. GOVT. OF KARNATAKA 5. . wherein it is held that before taking of possession the Government had power to withdraw from acquisition and it was not necessary to hear the beneficiary before passing the order withdrawing from acquisition and no reason need be assigned.
30. Sri C.B. Srinivasan, Learned Counsel for the B.D.A., with reference to the acquisition pointed out that the lands were notified for acquisition under notification dated 2.8.1978, Gazetted on 31.8.1978 and possession of the lands was taken on 19.5.1982, 27.7.1982, 8.10.1986, 29.10.1986, 7.11.1986 and 16.9.1992. This is borne out from the original records produced by the B.D.A. As a matter of fact, notifications under Section' 16(2) of the Act issued by the Government are marked as Annexures R.1 to R.8, produced along with the statement of objections, which evidence the fact of taking of possession in terms of the said Section. It is well settled that when once possession is taken and lands vest in the Government, the Government cannot exercise the power of withdrawing from acquisition by issuing notification under Section 48(1) of the Act. On this ground also the petition filed by the allottees have to succeed.
31. In the view I have taken regarding the validity of the notification dated 11.10.1996, Gazetted on 14.10.1996, issued under Section 48(1) of the Act, the question of considering the validity or otherwise of the subsequent notification dated 26.11.1996 cancelling the notification dated 11.10.1996 does not arise.
32. In the result, I made the following Order:
1) The notification dated 11.10.1996 issued under Section 48(1) of the Act, Gazetted on 14.10.1996, withdrawing from acquisition certain lands described therein is quashed.
2) Writ Petition Nos. 32980-82 of 1996 and 2774 of 1997 are allowed.
3) Writ Petition No. 33360 of 1996 is disposed of since the prayers sought in the petition do not arise for consideration in view of the quashing of the notification dated 11.10.1996, Gazetted on 14.10.1996.