Karnataka High Court
M V Kasturi vs State Of Karnataka on 17 April, 2008
Author: Ravi Malimath
Bench: Ravi Malimath
XN THE HIGH coum' OF KARNATAKA AT BANGA DATED THIS THE 17TH DAY OF' APRIL, N BEFORE 'i fi« THE HoN*13L.r:«: MR.JUsTIcE«r2A*¢I. WRIT PET§T§ON NO. 9357 BETWEEN: VT % X T % AA ' 1 . M.V. Kasturi, . W/0 vasudevaiahscgty, . % Aged about 45 years; ' S/0 Aged aboutso % Both .a§'e V , . 3. A S /' o2,.ASavygx1ara.y;9;i1a Sctty, » j<A_g6d'3£'5>Y€8I'S, " . R€Si€1!?_I1': or Sfuprabhatha Nilaya, - Opp.' PGlic¢Station, A »B.H.Roa_a;g1,' Tumkur City. ' " ' . . PETITIONERS & " .. " * (B? SRLASHOK HARANAHALLI, ADVOCATE.) " State of Karnataka, Represented by its Secretary to Revenue Depaxtnzent, %/C... M.S.Bui1ding, Banga1oIB560 001. . Deputy Secretary, Revenue Department (LAQ) / Rehab] SSLR, M.S.Bui1ding, Banga1ore~«56D O0 1. . State Government, Houseiess Harijan Employees Assn, (Regal) _ Represented by its Secretary, " . Shanthjnagar, 'F11mkur--5'}'" 102;" . . (BY SRI.R.K.HATTI,;::'*AI3VO(§A'l'E FOR 'VVR;1"3$f72; -- SRLRAVIVARMAKUMAR,i_sR;CoUr:sEL FOR SRI.M.R.31fiA1I.E§NDRA, ADVQCATE FOR 12.3.) V hfi§*** _ writ iéeetmn is filed under Articles 226 and jbonsfitofion of India, praying to quash the eve.:<ji'e}ted 21.9.2005 issued by K2 vide direct 12.1 to give efiect to the decision --V of Minister dated 27.2.2004 by publishing ' H H " the Gazette and etc. This petition coming on for preliminary hearing in VT 'B5 Group, having been heard and reserved for orders, A ' * 'this day the Court pronounced the fo1Iowing:~ eek" ORDER
At the request of ail the counsels ' pefition is taken up for final dispe§sa1." ~ ._
2. The petitioners wefefile efivneis of L' the land bearing Sy.No__. 49/ I V1 :5 acres, which was subsequehtijt / 1, 49/2 and 49/3 of :'E'?I't)b1i, Tumkur District. '1' :_e' efqviiers of 1 acre 21% of _Byw;vi1tue of a Preliininary Notificaiiiogn' "Section 4(1) of the Land Acqiggisitien J("15tCt;'fOI.; short) dated 6.8.1991 and the % Nafaficaaonkdstcd 15.55.1992, the lands of the I 'I'hereafter, the State issued a _ noti*Eicat,iO11.LA':'i1Ander Secfion 48 of the Act on 2.8.1993, ' from aequisitien the said lands. The third respoizdcnt herein, filed Writ Petifion No.441-42/1993, VT " "qtzestioning the order of denotification, which came to % " be dismissed. The Writ Appeal filed against the said ma/we order was also rejected and oonsequenflys~«~~§he:
respondent approached the Hon'ble ., wherein, by the order dated 11. Supreme Court in the decision L, 610 (STATE oovr. .':§;£ARIJAN EMPLOYEES' Assoexgrrofi oF1§AiéNA'rAKA AND O'I'HERS),_ quashed issued under Section certain land owners, quesfiorfipg ' proceedings, filed Writ Petitions 20 /2002, and the learned Single ,.o_AJu?:1§e,;p"..:by. ppthéw' dated 7.5.2002 dismissed the of delay and lashes by reserving pizpetitioners therein to approach this Court.
for the: 3 purpose of seeking permission to make an "_happiimfion under Section 18(3) of the Act. Thereafier, . __§E1e petitioners filed Writ Appeals No.336I--3380/2002, wherein the appellate Court by order dated 30.8.2002, %A--
dismissed the Writ Appeals. The Hon'b1e Court, by the order dated 1.1 1.2002, Special Leave Petitions, which "
order passed by the learned Judge' "
appellate Court Hence eonfirmed.
4. Also the crwn; had filed Writ Petitions No. 206%, disposed ofi' on the following observa_tions;:AVV"L"--" _ 2 _ «3. ofind._ e§o to interfere with the _ to withdrawal of acquisition, the reached finality.
V V' " that the petitioners have now "'Vem.aVée'oj§f1evVepplieafion before the State Government foafiwithdrawal of the acquisition proceedings on _ t..11e:g'ound that they have invested very huge ' V. fimount of money for development of the land and also on the gound that they have formed the ere layout after obtaining necessary '_ the concerned Authorities. Now, the the petitioners is that the se1d_e.pp§1eat1ti1}.;1otj " "
been considered by the petitioners have made seeking for of the eeofiisifion V proceedings, the coi1'sid,ere,ri by the State Govemmeiit 1:71 with law as expeditiously as possi?)ie.fi observation, Writ Pcfitiéfls are diS1é<>S¢<ioi€*i1'? i % 1 5. Ifi tim..:.aIoove'order, the Revenue Minister steam dated 27.22.2004 vide AImex11ie;E,e% lands from acquisition. Thettsaficr, .1-V11": ,Aendor.étement in reply was issued vide % i dated 2i.9.2o05 by the Deputy Secretary to itooone Smt.Padma Murthy, who is not a i _ party to" petition, stating that withdrawing' from it :_el.€q1}iSitit)sI1 of the aforesaid lands does not arise and ooziseoueaitly it has been decided that the order of the VT " "then Revenue Minister dated 27.2.2004 cannot be given it effect to.
gazes»
6. in this petition, the petitioneis seek for ewrit of ceitiorari to quash the endorsement dated 2 and further for a writ of mandamus to decision of the Revenue Miiiister-damd it '7. Various orders ._diff.eren"i:« ivith reference to the acquisition of uhajze referred to during the eourse of 1 en__t.e.'i~ however, the learned _.___Lf'atVidI'essed their argurrients to the order passed by the Revenue Miiiisiiezf impugied endorsement vide _ Aneexme-A. I' "
it 4vi"SIi.Ashok Haranahalli, learned counsel petitioners submitted that the order the Revenue Minister is an order passed in it 'V V of the directions issued by the learned Single _ and hence there is no illegality in passing the He further submitted that the order of the wild--or Minister is an order of the State gala ._ eensfiqueflfly thl*3/brder éfixfllin 0 "'- ' .. be given eflect to. He relied on (2004) 13 Supreme Court 7 PROJECTS (1) (P) LTD. vs. o[maNs or' :.VINVf2§IAVV AND A OTHERS) and AIR com 563 (FONSECA (P) LTD. I§e.oU1?rA AND OTHERS) 31;; He further eontendecf to the Government has issue the impugned endorsement Secretary cannot sit in an éovexitltle orcier passed by the Minister and e1'1dorseerent deserves to be quashed. other hand, SI'i.R.K.Hatti, learned Advocate, appearing for the State, submitted that the State has taken possession of the "':»sid"Iands on 10.10.2002 and therefore the impugned 0 "order passed by the Revenue Minister on 27~--2-2004 is D {,@;\,....._ opposed to facts and law and hence "
effect to. He submitted that the order of not sustainable since he had no;poweré_to order. He further submitted ., arr1v_ ' ed at, by the various and d Supreme Court with 'acqt1isifion, the impugned has been issued. .. of the orders t in tune with the facts no 'mterference is called ~'Annexure-A. He accordingly prayed that Wirit dI4?etit*.ion be dismissed. 1QV.'«.tSI{iIR__avivax*x;oa Kumer, learned senior counsel third respondent submitted that on the and merits of the case, the VV V' could not have passed the said order. That the om passed by the learned Single Judge in Writ No. 19968 to 997/2002 on 19*2«2003 was a sdeé-*' direction to the State Government to eonsitierfiitj' representation and accordingly it Government alone that :::'ot1ld «_ "--.cot1siti€:r ' representation. In the instant is Government, but the the order and hence 1asf.V'FIe"VreIied on the observations niaéiigi in various Petifiotis, to V» the acquisition the order of submitted that he the Honfble Supreme .. of by a Contempt Petition alleging V. --diseiiedienee of the"'order of the Hon'b1e Supreme Court 133.2000. That in the said proceedings, the respondentifitate has filed an afiidavit afiirming the fact State has issued an order dated 17.4.2002 to A the order of the Hon'b1e Supreme Court to the Deputy Commissioner to take possession of V the land and hand over the same to the compiainants. 3&4...» 1} That those necessary steps would be for implementation of the said order and strict would be resorted to. Therefore, in ' afiidavit/undertaking filed by ootheoos:..-gm % Supreme Court vide Axmcxuxe-(3;,'.__tf1oA. the Minister is bad on facts be V quashw. He on fitzcisions on Article 166 of the the conduct of business of Gow}em_ mm ostate and submitted that not an order of the Governj;'m_:1it%, Ho on the judgment of the Sup'-gems in ILR 2005 KAR 5533 %(BANoALo:eEV ESEVELOPMENT AU'I'HORI'I'Y AND AND OTHERS; (1986) 4 sU}*REM'E ooum' CASES 632 (STATE 01? KARNATAKA sI»a*i*.A.LAI<sHM1KUT'rY & OTHERS); (2003) 5 COURT CASES 134 (J.P.BANSAL vs. STATE T "ooF RAJASTHAN AND OTHERS) and an unreported judgment dated 15.7.2005 passed by a lwrned Single WK Judge of this Court in Writ Petition No.6073/2£¥(:)%'~%._:'_&s;d connected matters. He submitted that it Government alone and not the 1s4.iz1ister''v}ého*::'« ' to pass an order. Consequent13?;4&a}I_'Tot'de1*. 352:. Minister are not orders of State_ He" V L' referred to the VC-otiemflgent' of Business) Rules £977 order passed by a Ministet'. Department, is not an oxdei
1. __ learned counsels appearing, E am of 'tests "t§eV.'W1it Petition deserves to be A disesissed fo1*"vt'ollow1'ng:
REASONS order passed by the Revenue Minister V --V victe is an order for dewnofifying the lands a i.e;,4_.AaxVi"'order under Section 48 of the Land Acquisition possession of the lands have already been "taken on 10.10.2002, the power under Section 48 ofthe fix-
13 Act cannot be exercised. The power under Section 48 of the Act can be exercised provided possession bee-...r1et men taken. The Courts have time and the powers, scope and gamut of__S.ec_tion_--'4'8" " " 'V exercisable by the State. More-«fiver, Supreme Court has by ¥fi_T'L1¢ ef"
11-12-2000 reported 200}_(.1:IA'*S(3C_61.();'"quasflcd the order of dea--notificatioi1.:e" 0 ~ State or its Minister could 4.':fio=.'.__ isetied an order of de~130tijf'1ceiio1'r the Act. The order is, therefore, an order that is null and void, , it, Loperaetesr nativity, i.e., from the very as. orcier did not exist at all. The the Revenue Minister, under these by attempting to over---ride the Supreme is contemptuous. Such action needs to be . coildeizznod.
13. The Supreme Court in Civil Appea_«'fi"--No. claX:ec\ so 15/ 1999 , by the Judmem/11.12.2000 96 LC"
notification issued under Section 48(1)' .9 Thereafter the Imrned Single Jucige 19968-97/2002 by the order da'r;m19.2.9»9o3°, a;f:er"; referring to the said order Shy Supreme Court, held that the acquisition id i,fie"ithd1'awa1 of acquisition H _ the 2 S" ached finality. However, 1 if the petitioners have made such seeking for withdrawal from the may be considered by the State fioxiexjxlment in accordance with law as I possible. It was therefore unnecessary to fine State Government to consider the S H H S' jappjications for withdrawal especially in View of the fact S t3.1£fi:"the question; of withdrawal from acquisition was VS "considered by the Supreme Court and by the order dated 11.12.2000 the order_ of withdrawal from O5/\..._.--»--
acquisition was quashed. Therefore there..__'iIjae§"~Vs.1ioV. ' question of any application by any person" K considered for withdrawal from aeqtiisition. terms of the order passed quashing the order of denoiifitiafion,rxo_ for the same cause Therefore entertaining of the are bad
14.-~» ttolfierfpassed by the lmmed Single-._ J;;<1g,=,%Vssoitaa.ted"f-@952-2003 in Writ Petition Nos. 19968'-..to 1 it was the State Government v .... to dispose of the applications in law. In the instant case, by virtue of thersaidé the Minister has passed the order. The direetéorx. was to the State Government and not to the ":t:V'_}.IIi>Iti§.3ter. The Minister it appears has usurped the t' fiowers of the State Government while passing the said order. Z {M The source and absence of V power " V the order passed by the Minister:'and;"thefefore is unsustainable.
15. l'v'a;rt---I oi' _V Government (Transaction 04fe_§usia§ess)1':: deals with allocation :__ illiiisirless of the , is relied upon by the "petitioner states that all businesses .a11ot£edte% :3:Vl:'3'e41)a1'tInent shall be disposed of 4% by,v_»»er'V;indver ntnegenemi or special directions of the The learned counsel for the Siéliixiits that by virtue of this Rule, the eeoxmxuleter passed the said order and hence it is an V' :~:ifof§de"ra'of the State Government. "Rule 6 deals with allocation and distribution of V' Vii" 'ousiness. The said rule is subject to the provisions with regard to consultation with other Department and Q6/<"' submission of cases to the Chief Minister, the Caieiixet and the Governor. It is therefore meant '. purpose of aiiocation and distribution of busiiiessoi' Government and nothing more. j'Itd'ees "toot by virtue of Rule 6 any order Minister imcharge is an orvdenof the In terms of Article 166 . of. executive actions of the State shall .of.~the Governor and it is only me: it: an order of the Goverzzfioxenti' would be responsible for the the instant case, there is no such ;~ at1thentieefion would result in concluding . ."fl1ett"orderWof the Minister is an order of the A - . .
impugned endorsement issued by the is only an endorsement and not an 'A as contended. The contention of the learned .eonnsel for the petitioners that the Deputy Secretary cg}/3., cannot sit in appeal or act as an appellate autfnoiity ever an order of a Minister needs to be gorinciple. However, the impugned order,jie.Vv i endorsement and not an appeal contended by the learned for .
The endorsement states orders passed by the Supieine it No. 5015/1999 dated i1.i2;i2mo% itaaaiaipaaaaaaa of the acquired ' the Society on 5.9.2oo2iand taaaa» section 16(2) of the Land AeqnisitionV_?i'aet.i:fa.s"a£so issued on 10.10.2002. It is alse that iiindw of these facts and the V. ".'}nd@ent crime éiiiafeme Court, the order of the then cannot be gven efieet to. The endorsenaent' a reiteration of the facts involved in the neither an appellate order not an order of the 'C3(:)V€l"i1II1€nt. It is purely an endorsement issued in '~ -reiily to one Srnt. Padma Murthy. Notwithstanding the V " V fact that there is no material to show as to who 3&9/A...» Smt. Padma Murthy is and what application was made by her, the impugned endorsement cannot be With.
17. The learned counsel... for tfieii K V' referred to Annexureni i.e., T executed. by respondeI1t--3 that. " it same the possession of the is to the terms of the itis only on the basis that the possession of the lands iifas " h The enforceability of an indemnity gone in a proceeding under Article fiozsstitufion nor does it affect the factum of possessioifiin pursuance of the nofification under *li3(2) of the Land Acquisition Act. The handing A 'otter possession of the acquired lands is governed by 'V provisions of the Land Acquisition Act and not by A V contract betwmn the parties. Respondent No.3 being Q/\....» the beneficiary of the acquisition. would mererere _ possession of the lands from the State not from the land owners. It is Govermnent that takes possessionffif the w from the OWHEIS. 'H E
18. It has stror 'yL_eurged by'~thev learned senior counsel Mr. - . is; -sappearing for respondent 15303 .. in the related down heavily on the dflatorftsefios «the land owners which have consequenfly 'fto 'i11V1ji.osition of costs also on them. V. '~He"»:fif1ereforeéAsuoifiifted that costs should also be levied ~ frefifion also.
A owner has a statutory right to defend against acquisition by the State as well as 'to"'<:ha}1eI1ge the exercise of the power of eminent
-riomain. It cmmot therefore be said that the petitioners V should be riddled with costs on the basis of adopting £/A.» dilatory tactics. Therefore, I do not find it just or preigier to impose cost on the petitioners.
19. In order to determine the validity "
of the impugned endorsement, it was ;_s .' into the correctness of the oamier by Minister. in the process, I to eoneiusion and held that the order 'r3y¢L'.t'r;ejvvv3§e*zenue Minister is an order that is void,-X11» "conclusion, I rely on 'fi"oD.'b1e Supreme Court r6P0I'ted "'.Aii3.'_ 'A'I1*{:V:'.":§?'UPREME comm 1471 {NAWABI(}I'A}§ vs. STATE OF GUJARAT) is paragraphs 19 and 20 of the §:s..'ie11o:ys:
v'.' .. .So, the Court quashed it -- not % it then but performed the formal Q * = obsequies of the order which had died at fbirth. The legal result is that the accused was never guilty of flouting an order which never legally existed.
sfl/<-"-'
20. We express no fins} opinio_n;*of;.__'__o' the many wide~ran@'11g problems ' '% iaw of illegal orders arid:-vio}atioI*;s by citizens, grave though some of 7-1' may be. But we do -ohold" 3 which is void he collaterally proceedings. . _ In AIR 1930 sosssifgxses '@037 (M/S SHIV S}{ANKER__ m:;e vs. STATE 09 ',' the Horfble Supreme Court 'at ,.the judgment has held as foIlc_ws:~ L4 A V A ';'Artio1e""'226 grants an extraordinary V' _ wlaich is essentially discretionary, founded on legal injury. It is open for the court, exoxtising this x T x flexible power, to pass such order such as V public interest dictates and equity projects.
"Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go Where only s€/or 23 private interests are involved. Accomiiggiy,' A' the ganting or withholding of properly be dependent upc}n"'cons1clereticr1s V' as of Public 1I1tCI'CSt.....'c = . In the process of the of if " ' glaring injustice emerges avviiuavesty of justice, if Courts rnerely on the 8?"°'md 01° 3a'53rce1~ J "W15 therefore eu¢'siev.ey of the Courts doing substeiifiiei " i V flceuld therefore mould and for or Iequixe, in order to male; ./ttA1.e::i"Tt::he particular exigencies of the Article 226 is conferred on the I reach injustice wherever it is found. Justice; therefore also mean, interference where mgusecei prevails. The power under Article 226, _' "therefore, needs to be exercised in such circumstances. W,» 24 It is therefore appropriate that the order A' the Mirnjster being an order that is null and to be quashed.
For the aforesaid reasons order:
(1) The ordersiaged .%%%2:+¢2-;gaQ4 pas§ed by the Revenue' jNo. gag 63 091*' is quashed.
(ii) me .}t'sejég:te€1.
" " N'o. :é:1*s_fte...:t:osts:.M' V Sd Iudgé 3%.. A