Karnataka High Court
The Bangalore City Co Operative vs The State Of Karnataka on 22 September, 2012
Equivalent citations: 2012 (4) AIR KAR R 665
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22nd DAY OF SEPTEMBER 2012
BEFORE:
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No. 6283 OF 2008 (LA-RES)
BETWEEN:
The Bangalore City Co-operative Housing
Society Limited,
Seethapathi Agrahara,
Bangalore - 560 002,
Represented by its Secretary. ...PETITIONER
(By Shri. Raviverma Kumar, Senior Advocate for Shri.
K.Shashikiran Shetty, Advocate)
AND:
1. The State of Karnataka,
Represented by its Secretary,
Revenue Department,
M.S.Building,
Bangalore - 560 001.
2. The Under Secretary,
Revenue Department (LAQ),
M.S.Building,
Bangalore - 560 001.
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3. The Special Deputy Commissioner,
Bangalore District D.C.Compound,
Bangalore - 560 009.
4. The Special Land Acquisition Officer,
Podium Block,
Vishweswariah Towers,
Ambedkar Veedhi,
Bangalore - 560 001.
5. Sri. Muniswamappa,
Since deceased by
His legal representatives,
a) Smt. Byamma,
Aged about 73 years,
b) Sri. Ramaiah,
Aged about 56 years,
c) Sri. Seethramaiah,
Major,
d) Smt. Nanjamma,
Aged about 61 years,
(a) to (d) are wife and
children of late Muniswamappa,
and all are residents of Vajarahalli,
(Byyanapalya)
Uttarahalli Hobli,
Bangalore South Taluk.
e) Smt. Munirathnamma,
Daughter of Late Muniswamappa,
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Wife of Govindappa,
Aged about 48 years,
Anjanapura Post,
Uttarahalli Hobli,
Bangalore South Taluk.
6. Sri. Jamdar,
Principal Secretary,
Revenue Department,
Government of Karntaka,
M.S.Building,
Bangalore - 560001. ... RESPONDENTS
(By Shri. Uday Holla, Senior Advocate for Shir. H.G.Shivananda,
Advocate for Respondent No.5 (b to e)
Shri. K.S. Malikarjunaiah, Government Pleader, for Respondent
Nos. 1 to 4,
Respondent No.6 is served and unrepresented)
*****
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to call for records form the first and
fourth respondents which ultimately resulted in passing the order
Annexure-A, dated 7.3.2008 made in No.RD 40 AQB , passed by
the first respondent, directing the fourth respondent to de-notify
the schedule lands under Section 48(1) of the L.A.Act.
This petition having been heard and reserved on 10.09.2012
and coming on for Pronouncement of Orders this day, the Court
delivered the following:-
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ORDER
Heard the learned counsel for the parties.
2. The facts of the case are as follows:
The petitioner is a society registered under the Karnataka Co-operative Societies Act,1959 (Hereinafter referred to as 'the Act' for brevity). With an intention to form a residential layout for the benefit of its members, it is said to have approached the Government of Karnataka with a request to acquire an extent of 238 acres and 27 guntas of land located in Vajarahalli and Raghuvanahalli villages, Uttarahalli Hobli, Bangalore South Taluk. The State Government is said to have examined the proposal through an official Committee constituted by it and accorded prior approval for acquisition of the said extent of land.
Accordingly, a preliminary notification under Section 4 (1) of the Land Acquisition Act, 1894 (Hereinafter referred to as ' the LA Act' for brevity) was issued on 23-8-1988 notifying its intention to acquire 201.27 acres of land identified in the aforesaid villages. 5
It is contended that one Muniswamappa , who is no more and is now represented by respondents 5 (a) to (e), had filed objections to the notification. An enquiry had been conducted thereon and the objections were overruled. Thereafter, a Declaration under Section 6(1) of the LA Act was issued on 25-9- 1989 acquiring a total extent of 189.23 acres of the notified land. An Award is said to have been passed in respect of the lands on 23-6-1990, duly approved by the government on 11-3-1991. Possession of the lands is said to have been taken by the respondents on 10-4-1991, 19-12-1991 and other dates. The petitioner claims to have been put in possession of 161.21 acres of land on 14-10-1992 and 25-1-1995. Muniswamappa is said to have challenged the acquisition proceedings before this court in a writ petition in WP 4944/1990, the same was allowed by an order dated 18-11-1996 - on the ground that he had not been afforded a hearing by the Land acquisition officer. The said order was challenged in an appeal in WA 1871/1997, the same was allowed by an order dated 29-1-1998.
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The petitioner was again put in possession under a mahazar dated 7-4-1999 and a notification was also issued in this regard as on 9-4-1999.
As Muniswamappa was dead by then, his legal representatives are said to have made a representation to the government through its revenue minister, seeking denotification of their lands. The minister is said to have directed the first respondent to denotify the land. Pursuant to which the respondents 1 to 3 had jointly issued a notification, denotifying the lands in question. In the meanwhile the said legal representatives of Muniswamappa had also filed a Special Leave Petition before the Supreme Court of India. That petition was withdrawn as on 23-7-1999, on the lands being denotified.
The petitioner had then challenged the order denotifying the lands in writ proceedings before this court in writ petition, WP 22352/1999, during the pendency of the said petition, the respondents are said to have withdrawn the notification by which the lands had been denotified. This was said to be on a finding 7 that the possession of the lands having been taken the same could not have been denotified.
Respondents 5 (a) to (e) had challenged the above cancellation in yet another writ petition in WP 18439/2000. The same was allowed by an order dated 25-10-2000 on the ground no opportunity of hearing had been given to the fifth respondent before cancelling the notification.
The petitioner had then preferred another writ petition in WP 37448/2000 challenging the notification denotifying the lands. The State Government, in its statement of objections in the said writ petition, admitted the factum of taking possession of the said lands. On the basis of the said admission and on verification of the records, this court had quashed the order dated 19-6-1999 issued under Section 48(1) of the LA Act, by its order dated 29-7-2002. Respondents no.5(a) to (e), having challenged the same in appeal, a division bench had confirmed the order of the Single Judge by its Order in WA 4957/2002 dated 15-9-2004.
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On a fresh representation made by the fifth respondent, the first respondent is said to have issued notice to the petitioner as regards the claim of the fifth respondent seeking denotification of the lands claimed by them. By an order dated 7-3-2008, the first respondent had directed that the lands of the fifth respondent by denotified. It is that order which is under challenge in the present petition.
3. The learned Senior Advocate Shri Ravi Varma Kumar appearing for the counsel for the petitioner would contend that the State Government is denuded of any power to direct denotification of the land under Section 48 of the LA Act, when once possession of the land had been taken under Section 16 of the LA Act as evidenced by material produced by the petitioner along with the petition.
It is contended that the reasoning afforded in the impugned Order that the record does not contain the relevant documents to evidence the handing over and taking over of physical possession 9 of the lands in question, is in the face of categorical statements on behalf of the State Government in earlier proceedings before this court, to the effect that physical possession was taken and a mahazar having been drawn to record the same and a report having been submitted in this regard. It is pointed out that this court in its order dated 19-6-1999 in WP 37448/2000 has recorded as follows :
" Looking to the entire records relating to the withdrawal of the acquisition proceedings, it is not the case of the State Government that the possession of the land from the contesting respondents has not been taken. From the proceedings I find that the Government has taken possession from the land owners under a mahazar on 7.4.1999. The fact of taking possession was also ordered to be notified as per the Government Order dated 9.4.1999."
It is contended that this can only lead to an inference that the relevant documents have been deliberately concealed or destroyed to facilitate the impugned order to be passed relying on that very shortcoming.
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It is contended that the petitioner has deposited substantially huge amounts of money towards the cost of acquisition. The land in question claimed by the respondents is in the middle of the layout that is formed and this leads to a serious impediment in the orderly development of the layout.
4. The learned Senior Advocate, Shri Udaya Holla, appearing for the counsel for respondent no.5 (a) to (e) , would submit that the writ petition is rendered infructuous in the light of the entire acquisition proceedings having been set at naught by this court at the instance of other land owners and the same having been affirmed by the apex court in the case of Bangalore City Co- operative Housing Society Limited v. State of Karnataka & others (2012) 3 SCC 727. He would hence submit that the alleged illegality of the impugned order pales into insignificance.
5. Shri Ravi Varma Kumar would however, dispute the position and would submit that the said judgement would apply 11 only to the land owners who were involved in that case and the present landowners cannot draw any sustenance from the said decision. In the light of this development it is firstly examined whether the landowners in the present case can place reliance on the above said decision of the apex court to seek dismissal of the present writ petition.
6. From a reading of the above decision of the apex court, there is no doubt that the validity of the entire acquisition proceedings in favour of the petitioner was addressed. The court has considered the mandatory nature of the twin requirements of the framing of a housing scheme by a society and the prior approval of the same by the State government in terms of Section 3 (f) (vi) of the LA Act. The apex court has found that the petitioner society had not framed any such housing scheme, which is the sine qua non for treating acquisition of land for a co- operative housing society as being acquisition for a "public purpose" within the meaning of Section 3(f) (vi) of the LA Act. 12 The apex court has also found that a contract entered into by the society with a real estate agent who was to act as a "go-between"
to facilitate the speedy and smooth acquisition of land within a time frame and payment of crores of rupees by the society to the agent, in consideration thereof , clearly implied the agent was in a position to manipulate the State apparatus to facilitate acquisition of land and was hence an unlawful contract, hit by Section 23 of the Indian Contract Act, 1872.
The only course available to the society to salvage the situation is also stated by the apex court, having regard to the circumstance that some of the members of the society may have built their houses on the sites allotted to them, liberty has been granted to the society to negotiate with the land owners for purchase of their land at the prevailing market rate ,while hoping that the land owners would agree. At the same time it has been made clear that the society shall return the vacant land to the land owners irrespective of the fact that it may have carved out sites and had allotted the same to its members.13
7. In the light of the above, it can safely be said that the present petition is rendered infructuous and the legal representatives of respondent no.5 are certainly entitled to reclaim their land, de hors the impugned order.
The writ petition stands dismissed.
Sd/-
JUDGE nv