Karnataka High Court
Kengal Credit Co-Operative Society ... vs Bangalore Development Authority on 4 September, 1991
Equivalent citations: ILR1991KAR3593, 1991(4)KARLJ35
JUDGMENT Rama Jois, J.
1. How lack of coordination and communication between the two Secretariat Departments of the Government, could lead to the passing of contradictory orders by the Government in respect of the same subject matter and could create a piquant situation, is demonstrated by the facts of the case of this appeal presented by the appellant-co-operative society, aggrieved by the order of the learned Judge dismissing the Writ Petition presented by it praying for a declaration that the respondent - Bangalore Development Authority ('the B.D.A.' for short) 'established under the provisions of the Bangalore Development Authority Act, 1976 ('the Act' for short) had no authority to form a layout in 8 acres of agricultural land in Sy.No. 13 of Laggare village of Bangalore North Taluk, forming part of the Nandini Layout Scheme approved by the Government in the. Urban Development Department on the basis that the same land has been reconveyed to the. society by Government in the Revenue Department.
2. The relevant facts leading to the presentation of the Writ Petition, are these:
(i) Under the Act, a Development Scheme had been prepared called "Nandini Layout Scheme". Under the Scheme, an extent of 1074 acres 13 guntas of land in Laggare village and 43 acres 13 guntas in Jarakbandekayal village were proposed to be acquired for formation of Nandini Layout in accordance with the provisions of the Act. The preliminary notification under Section 16 of the Act was published on 26-11-1977 publishing the scheme. After consideration of the objection/representation received, the Scheme was submitted by the B.D.A. to the Government for sanction. After sanction was accorded by the Government under Section 18(3) of the Act, a final notification dated 20-9-1979 was issued acquiring the land for the purpose of the Nandini Layout Scheme, According to the B.D.A. possession of the entire lands acquired under the Scheme, was taken by the Land Acquisition Officer and was handed over to the B.D.A. as evidenced by the Notification issued under Sub-section (2) of Section 16 of the Land Acquisition Act on 25-11-1983. Having acquired the land for the purpose of Nandini Layout Scheme, the B.D.A. proceeded to execute the scheme.
(ii) At this stage, the petitioner-Society presented this petition praying for a declaration that the B.D.A. had no authority to carry out the scheme in respect of 8 acres of land in Laggare village. The basis of the case of the appellant is that it purchased 2 acres of land by registered sale deed on 25-11-1880 and another 8 acres of land by registered sale deed dated 27-11-1980 from its previous owners. As Section 79B of the Land Reforms Act prohibited a co-operative society from owning agricultural lands and therefore the purchase of agricultural lands by the society was in contravention of the Land Reforms Act, the Assistant Commissioner made an order on 28-11-1981 declaring the sales as void and forfeiting the lands to the Government, as provided in Section 83 of the Land Reforms Act. The relevant portion of the said order reads:
"Perused the records of the case. It is an admitted fact that the society has purchased the agricultural lands hence there was prohibition for the societies to hold agricultural lands in clear violation of Section 79B of K.L.R. Act, 1961.
I therefore, declare that the sale transaction in respect of Sy.No. 13 of an extent of 8 acres of Laggare village, Bangalore North Taluk, are null and void and the lands forfeited to Government as a penalty under Section 83 of the KLR Act, 1961."
(iii) According to the appellant, pursuant to the order of the Assistant Commissioner, the Revenue Inspector of Yeshwantpur Hobli took possession of the land on 3-8-1982. Thereafter, on the representation of the appellant-society, the State Government made an order dated 10-1-1985 (Annexure-A) under Section 77 of the Land Reforms Act reserving the 8 acres of land in question in favour of the appellant-society. Sub-section (3) of Section 77 of the Karnataka Land Reforms Act, reads:
"77. Disposal of surplus land:
xxx xxx xxx (3) Notwithstanding anything contained in Sub-section (1), the State Government may, if it considers that any land vesting in it is required for any public purpose, reserve such land for such purpose."
The relevant portion of the order made under Section 77 of the Land Reforms Act, reads:
"The Special Deputy Commissioner, Bangalore, in his letter read at (1) above has reported that the society has been founded in the name of Sri Kengal Hanumanthaiah, with a noble object of helping the poor members of the society. He has requested to reserve the 8 acres of land in Sy.No. 13 of Laggere village, Bangalore North Taluk, which was purchased by the Society in contravention of Karnataka Land Reforms Act, 1961, for public purpose under Section 77(3) viz., for providing house sites by the Society to its members.
ORDER NO.RD 63 LRM 83, BANGALORE, DATED 10TH JANUARY 1985 In the circumstances reported by the Special Deputy Commissioner, Bangalore, and in exercise of the powers vested with Government under Section 77(3) of K.L.R. Act, Government are pleased to reserve 8 acres of land in Sy.No. 13 of Laggere village, Bangalore North Taluk, for public purpose under Section 77(3) of the K.L.R. Act, 1961, in favour of Sri Kengal Credit Co-operative Society, West of Chord Road, II Stage, Bangalore."
Thereafter, the Revenue Department made a further order on 24-3-1986 reconveying the land to the appellant-society. Relevant portion of that order reads:
"Sri Kengal Credit Co-operative Society Ltd., Bangalore, had purchased an extent of 8 acres of land in Sy.No. 13 of Laggere village, Bangalore North Taluk in contravention of provisions of KLR Act 61.
On the request of the Society and as recommended by Special Deputy Commissioner, Bangalore, in his letter read at 1 above these lands were reserved in favour of the society wide G.O. read at 2.
The society has requested to reconvey these lands in their letter read at 2.
ORDER NO.RD 63 LRM 83, BANGALORE DATED 24-3-1986 Considering all aspect of the case, the Government of Karnataka are pleased to reconvey the lands measuring 8 acres in Sy.No. 13 of Laggere village, Bangalore North Taluk in favour of Sri Kengal Credit Co-op. Society Ltd., Bangalore, subject to the following terms and conditions:
1. The society shall utilise the land expeditiously and form the layout within a period of one year from the date of taking over possession of the land.
2. The Society should pay a nominal upset price of Rs. 2,000/- (Rupees two thousand) per acre to Government plus the conversion charges of the land as per the provisions of the Karnataka Land Revenue Act, 1964 and rules thereunder.
3. The Society should distribute the sites only to its members.
4. The Society shall get the layout formed through the Bangalore Development Authority according to the terms and conditions envisaged under the Town Planning Act and Rules. If the B.D.A. so permits, the Society itself can get the layout done under the supervision of the BDA and Town Planning Authority, subject to such terms and conditions as may be stipulated by the B.D.A. for the purpose.
5. The Society shall not divert any portion of land to be used for commercial purpose."
By that order, the Society was called upon to credit the conversion charges plus the upset price. The said amount was credited by the society. Conversion certificate was issued on 28-4-1986. According to the appellant, possession of the land was given to the society by the Revenue Inspector of Yeshwantpur Hobli, but as even before this the authorities of the B.D.A. were trying to make layout on the land in question, the appellant presented the Writ Petition on 4-3-1986. In view of these facts, the case of the appellant in the Writ Petition has been that the appellant is the owner of the land and the B.D.A. was not the owner of the land and therefore had no authority to form the layout.
3. The learned Judge held that the so called purchase of the lands in question by the appellant on 25-11-1990 and 27-11-1980 was of little consequence, for, even before that date, on 20-9-1979 itself the Final Notification had been issued by the Government under Section 19 of the Bangalore Development Authority Act under which the land stood acquired for the purpose of Nandini Layout Scheme. Therefore, the learned Judge held that the B.D.A. had become the owner of the land and the appellant had no manner of right to the land in question. Accordingly, the Writ Petition was dismissed.
4. Sri R.N. Narasimha Murthy, the learned Senior Advocate, appearing for the appellant, urged the following contentions:
(1) Under the Scheme of the Land Acquisition Act, the relevant provisions of which also apply for the acquisition of land under the B.D.A. Act, the land acquired for any development scheme becomes the property of the B.D.A. only by transfer of the land by the Government to the B.D.A. and in the present case before such a thing happened, the State Government had reserved the land in favour of the appellant by making an order under Section 77 of the Land Reforms Act on 10-1-1985 and therefore the B.D.A. had no manner of right over the lands in question.
(2) Section 138 of the Land Reforms Act gives overriding effect over the provisions of any other law or orders made thereunder, and therefore even assuming that there is any conflict between the orders passed or notification issued under the Land Acquisition Act and the Land Reforms Act, the order of the State Government made under the Land Reforms Act prevails in view of Section 138 of the Act.
5. In support of the first contention the learned Counsel for the appellant submitted as follows: Until a land acquired under the provisions of the Land Acquisition Act vests with the Government, the owner of the land has the right to sell the land proposed for acquisition and the persons so purchasing the land gets a valid title to the land, notwithstanding the fact that it had been proposed for acquisition, as held by the Supreme Court in the case of SPECIAL LAND ACQUISITION OFFICER v. GODREJ AND BOYCE, . In view of the ratio of the above Judgment, until an award was passed and possession of the land was taken by the Government and the same was handed over to the B.D.A. the erstwhile owners of the land had the title to the land and they had the right to sell the same to any one of their choice and therefore it cannot be said that the erstwhile owners had no right to execute the two sale-deeds. However, as the appellant-society was debarred from holding the agricultural land and the purchase of the land by the society was in contravention of Section 79B of the Land Reforms Act, the Assistant Commissioner had the jurisdiction to make an order declaring the sale as void under Section 83, of the Land Reforms Act and once such an order was made the land stood forfeited to the Government. In exercise of that power, the Assistant Commissioner did make an order on 26-12-1981. Pursuant to this order the Revenue Inspector of Yeshwantpur Hobli took possession of the land on 3-8-1982. Thereafter; under Section 77 of the Land Reforms Act, the Government had the power to reserve the agricultural land vesting in it under the provisions of that Act for any purpose it considered necessary in public interest and that it was in exercise of this power that the State Government made the. order on 10-1-1985 (Annexure-A) reserving 8 acres of land in favour of the appellant-society. He pointed out that after passing the above order, the Government proceeded to pass another order dated 24-3-1986 (Annexure-E) reconveying the land to the appellant-society. Pursuant to the above order, the society credited conversion charges plus upset price on 26-4-1986 and Conversion Certificate was issued on 28-4-1986 and thereafter the Revenue Inspector, Yeshwantpur, gave possession of the land to the society on 30-4-1986. The learned Counsel submitted that in view of these facts, the B.D.A. had no manner of right in the land in question,
6. Sri H.B. Qatar, the learned Senior Advocate, appearing for the B.D.A. however, vehemently opposed the contention urged for the, appellants. He submitted as follows: The preliminary notification incorporating the Nandini Layout Scheme prepared under Section 16 of the Act, was published on 26-11-1977, as required under Section 17 of the Act. The said Scheme was submitted to the Government in terms of Section 18 of the Act, which reads:
"18. Sanction of Scheme:
(1) After publication of the scheme and service of notices as . provided in Section 17 and after consideration of representations, if any, received in respect thereof, the Authority shall submit the . scheme, making such modifications therein as it may think fit to the Government for sanction, furnishing -
(a) a description with full particulars of the scheme including the reasons for any modifications inserted therein;
(b) complete plans and estimates of the cost of executing the scheme;
(c) a statement specifying the land proposed to be acquired;
(d) any representation received under subjection (2) of Section 17;
(e) a schedule showing the rateable value, as entered in the municipal assessment book on the date of publication of a notification relating to the land under Section 17 or the land assessment of all land specified in the statement under Clause (c); and
(f) such other particulars, if any, as may be prescribed.
(2) Where any development scheme provides for the construction of houses, the Authority shall also submit to the Government plans and estimates for the construction of the houses.
(3) After considering the proposal submitted to it the Government may, by order, give sanction to the scheme."
The State Government gave sanction to the Scheme in terms of Section 18(3) of the Act. Thereafter, the Final Notification was published on 20-9-1979, as required under Section 19 of the Act. In view of the wide publicity given to the proposed scheme as required under Section 17, neither the appellant nor their vendors could say that they were not aware of the scheme. Whatever that may be, the fact remains that the appellant-Society, who had no right to hold the agricultural land in view of Section 79B of the Land Reforms Act, for the reasons best known to it, proceeded to purchase the land on 25-11-1980 and 27-11-1980 long subsequent to the final notification. The appellant did not acquire any right pursuant to the two sale deeds, in view of Section 79B of the Act. If the land had been purchased by any person other than the society, the only right such a person could get by such purchase was the right to get compensation and he could not resist the acquisition in respect of which the Final Notification had already been issued under Section 19 of the Act. But in a case like this in which a co-operative society purchased the agricultural land, sale was void in view of Section 79B of the Act. The reservations of land in favour of the society, after the very land had been included in the Nandini Layout Scheme approved by the Government in the Urban Development Department in purported exercise of power under Section 77 of the Land Reforms Act, was of little consequence. The learned Counsel submitted that if there was any conflict between the two, the action taken under the Act prevails in view of Section 73 thereof, which gives overriding effect to its provisions and this being a later enactment, it prevails. As far as possession is concerned, it was not true that the actual possession of the land was taken by the Revenue Inspector on 3-8-1982 and thereafter the possession was given to the appellant by the Revenue Inspector on 30-4-1986. They were mere paper possession, but the actual possession was taken by the B.D.A. on 25-11-1983 and a notification dated 16-11-1984 was issued under Section 16 of the Land Acquisition Act and the same was published in the official gazette dated 3-1-1985.
7. The learned Counsel for the B.D.A. pointed out that under the above notification, possession of the land was taken over by the Land Acquisition Officer and was handed over to the B.D.A. The learned Counsel submitted that this notification has the effect of vesting the land in the B.D.A. as provided in Sub-section (3) of Section 36 of the B.D.A. Act.
8. Sri T.R. Subbanna, the learned Government Advocate, submitted that while it was true that an order was passed under Section 77 of the Land Reforms Act by the Government reserving the land in question in favour of the appellant-society, the order was passed by the Revenue Department of the Government without being aware of the fact that the Government in the Urban Development Department had already approved the "Nandini Layout Scheme" in which the land in question had been included. The learned Counsel submitted that the order of the State government passed under Section 77 of the Act on 10-1 -1985 reserving the land in favour of the appellant-society and the subsequent orders of the Government reconveying the land to the appellant-society or its depositing the conversion charges or the alleged hanging over of possession by the Revenue Inspector, were ail of no consequence as the land having been included in the finally approved Nandini Layout Scheme was not at all available, for being reserved and granted to the appellant-society. The Government realised this mistake later and had passed an order on 5-10-1990 withdrawing the order dated 24-3-1986 under which the land in question was sought to be reconveyed to the appellant-society.
9. As far as the lawful taking of possession of the land and its vesting in the B.D.A. is concerned, Section 36 of the Act and Section 16 of the Land Acquisition Act are relevant. They read:
B.D.A. Act "Section 36. Provisions applicable to the acquisition of land otherwise than by agreement: (1) The acquisition of land under this Act otherwise than by agreement within or without the Bangalore Metropolitan Area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894.
(2) For the purpose of Sub-section (2) of Section 50 of the Land Acquisition Act, 1894, the Authority shall be deemed to be the local authority concerned.
(3) After the land vests in the Government under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the acquisition and upon the Authority agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the Authority and the land shall thereupon vest in the Authority."
L.A. Act "Section 16. Power to take possession: (1) When the Deputy Commissioner has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.
(2) The fact of such taking possession may be notified by the Deputy Commissioner in the official gazette, and such notification shall be evidence of such fact."
A reading of the two Sections indicates, inter alia, for the taking of possession of the lands acquired under the Act, Section 16 of the Land Acquisition Act applies. In respect of the land in question, a notification dated 16-11-1984 was issued under Section 16 of the Land Acquisition Act and was published in the Official Gazette dated 3-1-1985. It reads:
"Notification under Section 16(2) of L.A. Act.
Dated: 16th November 1984 No. BDA/ALAC/LA2/46/84-85. The lands mentioned below have been acquired (1) as per Government notification No. HUD 41 MNJ 78, dated 30th September 1979, at pages 419 to 422, Part III-I of the Karnataka Gazette dated 20th September 1979, for the formation of layout called "Extension of Mahalakshmi Layout" (Nandini Layout) comprising Laggere and Jarakabandekavai villages. The possession of the lands have been taken over on the date noted against each Sy.No. The facts of the same is published as required under Section 16(2) of . Karnataka Land Acquisition Act (Karnataka Extension amended Act 1961). The Bangalore Development Authority is the owner of the land described below:
District: Bangalore, Taluk: Bangalore North Hobli:
Yeshwanthapur, Village: Laggere Sl.no.
Sy.No. Extent Date of taking over possession of land AG XXX XXX XXX
3. 13
20-33 25-11-1983 Voluntary possession XXX XXX XXX Village: Jarakabandekavai Hobli: Yelahanka Taluk: Bangalore North District: Bangalore.
Sd/-
Addl. Land Acqn. Officer, B.D.A., Bangalore (Underlining by us) The learned Counsel for the B.D.A. submitted that the fact of taking possession of the land acquired by the Land Acquisition Officer and its transfer to the B.D.A. are done by the same notification. He submitted that the last sentence in the same notification, which states that the B.D.A. is the owner of the land, clearly indicates that by virtue of the same notification the land was transferred to the B.D.A. and it vested in it. We are convinced that the effect of the above notification was to transfer the land to the B.D.A. in terms of Section 36(3) of the B.D.A. Act
10. As far as the physical possession is concerned, the learned Counsel for the B.D.A. and the Government submitted that the actual possession was taken by the B.D.A. and was with the B.D.A. In support of this submission, the learned Counsel submitted that the appellant-society had filed a suit before the City Civil Court in O.S.No,2353 of 1986 seeking permanent injunction against the B.D.A. restraining it from interfering with the possession of the land by the appellant-Society asserting that it was in possession and in the suit the appellant had also sought for an interim injunction on the same terms and that the City Civil Court on consideration of the material on record, prima facie, was of the view that the B.D.A. had been in possession of the land and consequently refused the interim injunction by its order dated 12-12-1986 and that M.F.A.No. 2866 of 1986 filed against that order was dismissed by this Court on 2-2-1988 and further the Special Leave Petition No. 13743 of 1988 preferred by the appellant before Hon'ble the Supreme Court was also dismissed by order dated 8-8-1990. Copies of these orders have been produced. These facts are not disputed by the appellant. Therefore, there is no substance in the submission of the appellant that the appellant-society has been in possession of the land.
11. The crucial question, however, for consideration is, whether the order of the Government passed under Section 77 of the Karnataka Land Reforms Act reserving the land in question in favour of the society, is a valid order. If that can be regarded as a valid order, there can be no doubt that the subsequent order of the Government reconveying the land in favour of the appellant-society would be valid and consequently it can be said that on the appellant complying with the conditions prescribed by the Government in its order they secured a right for getting possession of the land and also an order restraining the Bangalore Development Authority not to enter upon the land. We, therefore, proceed to consider the said question.
12. As stated earlier, the undisputed facts are that the B.D.A. prepared a Scheme for the formation of a residential layout called "Nandini Layout" under Section 16 of the Act. The land, which is the subject matter of this Writ Appeal, is included in the scheme. It was published in terms of Section 17 of the Act inviting objections and suggestions from the public. After considering the objections and suggestions received to the said Scheme, the B.D.A. submitted the Scheme as emerging after such consideration to the State Government for its sanction as prescribed under Section 18 of the Act. The State Government accorded sanction to the Scheme and thereafter a final notification under Section 19 of the Act was issued as early as on 20-9-1979 acquiring the lands for the purpose of the scheme. After the above notification was issued; unless the Scheme prepared was modified in accordance with law and the 8 acres of land in question were deleted from the layout scheme, there was no land available for being reserved by making an order under Section 77 of the Act. Admittedly the Scheme approved by the Government remains unaltered and consequently the 8 acres of land in question forms part and parcel of the Scheme. This being the undisputed position, it was impossible for the State Government in the Revenue Department to reserve the same 8 acres of land in favour of the society, for, the land was not at all available for being reserved. In our opinion, therefore, the order of the Government dated 10-1-1985 reserving 8 acres of land in favour of the appellant-society was lifeless and nonest as the land in question was not at all available for being reserved as it had become part of the Nandini Layout Scheme sanctioned by the Government in the Urban Development Department under Section 18(3) of the Act and a final notification acquiring the very land for the purposes of the Scheme was published as early as on 20-9-1979. From this it follows the subsequent order of the Government dated 24-3-1986 reconveying the land and all other subsequent steps regarding conversion of land from agricultural purpose to non-agricultural purpose were all futile. This single circumstances is sufficient to hold the contention urged for the respondent.
13. Further, admittedly, the 8 acres of land in question formed part of the Nandini Layout Scheme approved by the Government under Sub-section (3) of Section 18 of the Act. Once the Scheme was approved, the B.D.A. was in duty bound to implement the Scheme. There could be no diversion of the land for a purpose different from one specified in the Scheme unless the Scheme was altered in accordance with the provisions of Section 19(4) of the Act. This position in law is clearly laid down by the Supreme Court in the case of BANGALORE MEDICAL TRUST v. B.S. MUDDAPPA, Judgments today, 1991(3), S.C. 172. In the present case, there has been no alteration of the Scheme. On this ground also, the order of the State Government dated 24-3-1986 is illegal and invalid. Realising this position, though belatedly, the Government itself has withdrawn the order dated 24-3-1986 by its order dated 5-10-1990. The learned Counsel for the appellant submitted that the said order was passed without notice to the appellant and the appellants have challenged the legality of the said order in the connected W.P.No. 20427 of 1990.
14. While it is true that Section 138 of the Land Reforms Act, 1961, which reads:
"138. Act to prevail over other enactments: This Act and any Rule, order or notification made or issued thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other enactment with respect to matters enumerated in List II and List III of the Seventh Schedule to the Constitution of India or in any instrument having effect by virtue of any such other enactment."
gives overriding effect to the provisions of that Act and the orders made thereunder, the B.D.A. Act contains Section 73, which reads:
"73. Act to override other laws: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."
This Section gives overriding effect to the provisions of the B.D.A. Act 1976. This being a special and later enactment, in so far as matters covered by the B.D.A Act are concerned, its provision prevails over all other enactments including the Land Reforms Act. Therefore, the sanction for the scheme given under Section 18(3) of the Act prevails. This is an additional ground to hold that the Government order reserving and allotting land in favour of the appellant-society, is nonest and ineffective.
15. The learned Counsel for the B.D.A. also submitted that out of 8 acres of land in question, 160 sites were formed, that is, 9 sites of the dimension of 50' x 60', 64 sites of 40' x 60' and 87 sites of 30' x 40' and out of them 100 sites have been allotted to various individuals and possession certificates have been given in respect of all those sites and some of the allottees have constructed houses on the sites allotted to them. Documents to prove these acts of the B.D.A. have been produced. He, therefore, submitted that the process cannot be reversed.
16. The learned Counsel for the appellant does not dispute that such action has been taken by the B.D.A. but he submitted that all these actions were taken during the pendency of the Writ Petition taking advantage of the fact that interim order was refused by this Court. As held earlier, the land formed part of the Nandini Layout Scheme sanctioned by the Government under Section 18(3) of the Act and the possession was transferred to the B.D.A. on 16-11-1984 by virtue of the notification issued under Section 16 of the Land Acquisition Act. Therefore, it was in duty bound to implement the scheme and it did implement it. As the Scheme is not modified the learned Counsel for the respondents are right in their submission that the process cannot be reversed.
17. The learned Counsel for the appellant next contended that not allowing of the appellant to retain 8 acres of land for the purpose of forming its own private layout, was violative of Article 14 of the Constitution of India, for, In respect of another co-operative society called Satyanarayana House Building Co-operative Society, the respondents have excluded the land from the Scheme and have given possession of the land to the said society. In support of the above contention, the learned Counsel relied on the Judgment of the Supreme Court in the case of VISHNUDAS HUNDUMAL v. STATE OF M.P., The learned Counsel relying on the above Decision submitted that even if the deletion of the land and handing over possession of land in favour of Satyanarayana Society was in contravention of law, having regard to the fundamental right to equality guaranteed under Article 14 of the Constitution of India, the appellant was entitled to similar treatment.
18. The learned Counsel for the respondents do not dispute that a part of the land included in the same scheme, was reserved and released in favour of Satyanarayana House Building Society. The learned Counsel for the B.D.A. submitted that it could not have done unless the scheme was modified by the B.D.A. and approved by the Government in accordance with law. He further submitted that in view of the above legal position, all that could be done by this Court was to set aside such diversion of the land, if the legality of the same had been challenged by the appellant or by any one else, but it would not be open for this Court to direct the B.D.A. or the Government to pass similar unlawful orders in favour of the appellant. The learned Counsel submitted that, that would not be a case of enforcement of Article 14, but it would be a case of defeating Article 14 and Rule of Law, which is the essence of Article 14. He further submitted that Article 14 ensures equality before law and equal protection of the laws to persons similarly situated and does not require or authorise the State to ensure equality, by way of passing similar illegal orders in favour of a person similarly situated after having passed an illegal order in the first instance in favour of a person. They also submitted that the Decision of the Supreme Court in Vishnudas's case depended on the facts of that case and does not support the contention of the appellant claiming a right to seek a direction to the Government to pass an order which in law it is not authorised to pass.
19. We see considerable force in the above submission made by the learned Counsel for the respondents. However, it is unnecessary to pursue this question for the reason that in the present case the B.D.A. had taken possession of the land and has formed layout and has allotted sites in favour of various individuals numbering 100. A list containing names of 65 allottees has also been produced. They are not parties before this Court. Further, some of them have also constructed buildings on the sites allotted to them. These circumstances, in our opinion, clearly establish that it is impracticable to accord similar treatment to the appellant-society.
20. We are constrained to observe that it is either the ingenuity or indiscretion of the appellant-society that has placed itself and its members in the present predicament. It is difficult to believe that the appellant society was not aware of the acquisition of the land for the purpose of the Nandini Layout Scheme, as there had been wide publicity given by the B.DA for the Scheme for formation of Nandini Layout as required under Section 17 of the Act. From the facts, it is clear the lands in question were purchased by the appellant-society after about a year after the final notification dated 20-9-1979 acquiring the land for the formation of the Nandini Layout Scheme was published. Further having regard to the total prohibition under Section 79-B of the Land Reforms Act for a co-operative society to hold agricultural land, it is unlikely that the Society proceeded to purchase the land without proper legal advise. It is quite probable that the society thought that it could circumvent the provisions of the B.D.A. Act by purchasing the agricultural land and thereafter securing an order of the Assistant Commissioner for the vesting of the land in the State Government so that the Government may be persuaded to reconvey the land to the appellant-society. Otherwise it is difficult to believe that the appellant-society would have proceeded to purchase agricultural land in the face of the prohibition incorporated in Section 79B and the consequential action contemplated under Section 83 of the Land Reforms Act. The appellant tried to be cleverer than law. It is this ingenuity that was resorted to by the appellant, which misfired. If it is not ingenuity, then it can only be a case of total indiscretion on the part of the society to purchase a land which has already been the subject matter of Nandini Layout Scheme, in respect of which final notification acquiring the land had already been issued. Being a society, which is required to safeguard the interest of large number of its members, it could not have acted with such indiscretion. Whatever that may be, the fact remains that the Society has placed itself and large number of its members in the present predicament and the managers of the society have to blame themselves for this situation.
21. It is also amazing that the Government in the Revenue Department of the Secretariat, proceeded to pass orders in respect of the lands in question under Section 77 of the Land Reforms Act giving it to the appellant-society when the very land was part of the Nandini Layout Scheme sanctioned by the Government in the Urban Development Department after nearly one year and was not at all available for being reserved under Section 77 of the Land Reforms Act. We hope that the glaring facts of this case would be taken into account by the Government and it would evolve a procedure for consultation and communication between the concerned Departments of the Secretariat to avoid passing of more than one order by the Government on the same subject matter, which are contradictory to each other, which brings the administration to disrepute and causes inconvenience and hardships to the citizens.
22. Finally, the learned Counsel for the appellant made a fervant plea to the effect that all the members of the appellant-society who have deposited sital value with the appellant, were bona fide members who were in need of sites for putting up their dwelling and therefore atleast there should be a direction to the B.D.A. to allot the remaining sites to the members of the appellant-society. In this behalf, he submitted that actually a resolution to that effect was passed by the B.D.A. on 26-11-1988 and had also been confirmed in the Meeting of the B.D.A. dated 30-12-1988, but was rescinded by resolution dated 31-7-1990. He further submitted that as the number of bona fide members of the appellant-society were more than the number of sites available, the B.D.A. should be directed to allot sites in any other layout.
23. Irrespective of the method adopted by the appellant either ingeniously or by indiscretion, the factual position has been, as the Government in the Revenue Department passed orders reserving and reconveying 8 acres of land, the members of the society were made to believe that sites would be allotted to them and therefore they have made the deposits. It is also not the case of the B.D.A. that the Society is indulging in any business of sale of sites and is not seeking land for allotting to its bona fide members. In fact, the B.D.A. had passed a resolution on 26-11-1988, which reads:
"Sub. No. 1354: Request of Sri Kengal Credit Co-operative Society Ltd., Bangalore, for approval of Layout plan in Sy.No. 13 of Laggere village measuring 8 acres.
The note placed before the Authority was perused. After detailed discussions and under the circumstances explained by the Engineer Member in his note, it was resolved as under:
(i) to examine and obtain legal opinion whether it would be possible to get back the sites from the allottees who have been already allotted sites (P.Cs. issued and plan sanctioned) in the lands proposed for Kengal Credit Co-operative Society Ltd.
(ii) to ascertain whether the allottees of sites would be satisfied to part with their sites i f alternative sites are allotted to them;
(iii) to identify the sites still remaining unallotted and propose them for allotment to the members of the Society if they are agreeable;
(iv) to request the Deputy Commissioner and the Engineer Member to identify suitable alternative lands for allotment to the said Society, if it is necessary;
(v) to authorise the Commissioner to have consultations with the office bearers of the said society to ascertain whether the above proposals wherever they could be implemented or agreeable to them."
(Underlining by us) Though this resolution was confirmed on 30-12-1988, it was rescinded by resolution dated 31-7-1990. Obviously the resolution was rescinded as it was impossible to get back the sites from allottees or to give alternative land to the society.
24. After giving careful consideration to all the facts and circumstances of the case, we are of the view that though the appellant has to blame itself for the predicament in which it has placed itself and its members, we should direct the B.D.A. to consider the request of the members of the appellant-society for allotment of the unallotted sites in the layout as also in respect of sites available in any other layout, in accordance with law.
25. In the result, we make the following order:
(i) The appellant-Society shall furnish all the relevant particulars of all its members, who have not yet secured sites, to the B.D.A., within a period of one month from today and shall furnish such further particulars as the B.D.A. might call for and within the time fixed by the B.D.A.
(ii) The B.D.A. shall thereafter proceed to consider the cases of each of the members of the appellant-Society for allotment of a site out of the balance of the.sites available for allotment in the Nandini Layout as also against unallotted sites available in any other layout in accordance with law.
(iii) In all other respects, the appeal is dismissed.