Karnataka High Court
R.M.S. Telephone Employees' H.B. ... vs Government Of Karnataka And Ors. on 19 August, 1996
Equivalent citations: ILR1997KAR75, 1997 A I H C 903, (1997) 3 ICC 342, (1997) 2 CIVLJ 275, (1997) 1 KANT LJ 136, (1997) 2 LACC 426
ORDER Chandrashekaraiah, J.
1.The petitioner in all Writ Petitions is a Society registered by the Karnataka Co-operative Societies Act for whose benefit the land belonging to the respondent-land owners was proposed for acquisition under the notification dated 28.4.1983 followed by a final notification dated 28.2.1985 issued under Section 4(1) and 6(1) of the Land Acquisition Act, hereinafter referred to as the 'Act'.
2. In respect of the said lands, the Land Acquisition Officer passed an award as required under Section 11 of the Act. Thereafter the Government issued three notifications under Section 48 of the Act withdrawing the acquisition in respect of land in, Survey Nos.54/2, 23 and 35 of the Byatarayanapur Village, Yelahanka Hobli, Bangalore North Taluk. These three notifications are challenged in these Writ Petitions by the Society for whose benefit the land was acquired.
3. Sri S.K.V. Chalapathy, learned Counsel appearing for the petitioners in these Writ Petitions contended that the Government before withdrawing the application under Section 48(1) of the Act ought to have heard the petitioners since the lands that were acquired were for the benefit of the petitioner's Society. Further the petitioner's Counsel contended that Section 48 of the Act is to meet only three contingencies namely:-
a) Where the Government finds that the land notified for acquisition is in excess of the requirement and as such portion of it will have to be dropped from the acquisition.
b) Where Government finds that the land notified for acquisition is not suitable for the purpose for which it was proposed to be acquired.
c) Where the Government or the body for which it was acquired is unable to meet the cost of acquisition.
According to the Counsel for the petitioner, if any of the above said conditions is present then only the State Government may exercise the power under Section 48 of the Act and in the absence of any such conditions, the Government has no power to withdraw the acquisition. Next, it is contended on behalf of the petitioner that the power conferred on the State Government under Section 48 should not be exercised arbitrarily, and if exercised arbitrarily it would result in vitiating the action taken by the State Government.
4, In reply to the said contention, Sri K.P. Ashok Kumar, the learned Government Advocate appearing for the State Government and Special Land Acquisition Officer contended that the State Government while exercising the power under Section 48(1) of the Act need not hear any person as the power conferred on the State Government under Section 48 is an absolute power and which is the High Authority as distinguished from minor official.
5. The learned Counsel appearing for land owners contended that from the mere reading of Section 48, it is dear that the State Government while exercising that power need not hear any person much less, the Society, provided that exercise of that power is before taking possession of the lands. Further, it is submitted that the Society itself had written some letters in respect of certain lands acquired under the very same notification requesting the Special Land Acquisition Officer to drop the acquisition proceedings. When such being the case according to the Counsel for the land owners that there is nothing wrong in withdrawing the acquisition proceedings relating to their lands by the State Government.
6. I proceeded to consider the rival contentions referred to above with reference to the scheme of the Act. It is not disputed that acquisition initiated are under Chapter-11 of the Act and not under Chapter-VII of the Act. The petitioner-Society is a Society registered under the Karnataka Co-operative Societies Act. The State Government as stated earlier initiated the proceedings under Chapter-11 of the Act since the Government is of the opinion the acquisition of the land is for a public purpose as defined under Section 3(f)(vi) of the Act. If the land is acquired by the State Government for public purpose then it is open to the State Government to withdraw the said acquisition proceedings under Section 48(1) of the Act before taking possession. Section 48(1) of the Act reads as follows:-
"Section 48(1) - Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken."
From the reading of the above Section, it is clear that the Government is at liberty to withdraw from acquisition of any land of which possession has not been taken. The power conferred on the Government under Section 48(1) of the Land Acquisition Act is the absolute power which can be exercised at its discretion before taking possession, if it is of the opinion that the said land is not required for the public purpose. Sri S.K.V. Chalapathy, learned Counsel appearing for the petitioner contended that the land is acquired by the State Government for the benefit of the petitioner-Society. Therefore, the petitioner-Society ought to have been heard before withdrawing the acquisition proceedings under Section 48(1) of the Act. Under the scheme of the Act, when the land is acquired for the public purpose, it vests with the State Government after passing of the award and after taking possession of the land. The Society for whose benefit the land is acquired will get the right over the property only on handing over possession of the said property to the Society by the State Government; till then the Society has no locus-standi to question the power of the Government that may be exercised under Section 48(1) of the Act.
7. The Supreme Court in the case of SPECIAL LAND ACQUISITION OFFICER v. GODREJ AND BOYCE, has held that the Government before exercising the power under Section 48(1) of the Land Acquisition Act need not hear the land owner nor assign any reasons to withdraw the acquisition proceedings. Therefore, I am of the opinion that the Society need not be heard before exercising the power by the State Government under Section 48(1) of the Act. The learned Counsel for the petitioner cited a Decision in case of S.C. AND WEAKER SECTION WELFARE ASSOCIATION (REGD.) v. STATE OF KARNATAKA, in support of his contention that the Society must be heard by the State Government before withdrawing the acquisition proceedings. In my view the said decision has no application to the facts of this case. Firstly, on the ground that the Supreme Court proceeded to hold that the persons for whose benefit a notification was issued ought to have been heard firstly because that there is no such power conferred on the State Government to rescind or cancel the notification. Secondly, because that they are the persons for whose benefit the notification has been issued. In the instant case, no-doubt it was the Society for whose I benefit the land was proposed for acquisition but the Society will not get any right till the State Government delivers possession to the Society. This Court in the case the of KARNATAKA POWER CORPORATION EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD. v. STATE OF KARNATAKA1991(2) KLJ 608 has held as follows:
"That power of the Government cannot in any way be curtailed by invoking the doctrine of promissory estoppel."-
The Supreme Court in case of JETHMULL BHOJRAJ v. STATE OF BIHAR AND ORS . has held as follows:
"The only question that arose for decision is whether on the facts and circumstances of the case, the Government was competent to withdraw from acquisition certain lands sought to be acquired. Under Section 48(1) of the Act, except in the case provided for in Section 36, the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken."
In the instant case, admittedly the possession has not been taken. When such being the case, the Government is at liberty to withdraw the acquisition in exercise of its powers conferred on it under Section 48(1) of the Act.
8. For the reasons stated above, I pass the following order:-
ORDER The Writ Petitions are dismissed.