Karnataka High Court
G.V. Rudrappa vs Deputy Commissioner on 25 March, 1991
Equivalent citations: ILR1991KAR2497
JUDGMENT M. Ramakrishna, J.
1. In this Writ Petition under Article 226 of the Constitution, the petitioner has sought for quashing the notification, Annexure-G, dated 22-6-1984 made by the State of Karnataka, respondent-1 herein, for a Writ of Mandamus directing the respondents 1 to 5 not to dispossess the petitioner from the land bearing Sy.No. 99/E situated in Bull Temple Road, Bangalore, and for such other direction or order as this Court deems fit, for the reasons stated in the Writ Petition.
2. The facts of the case briefly stated are as under:-
The petitioner is the owner of the land bearing Sy.No. 99/E situated in Bull Temple Road, Bangalore City. The land measures 46,143 1/2 sq. feet with the boundaries as described in the first para of the Writ Petition.
At the request of the then Administrator of the Corporation of the City of Bangalore, respondent-1 issued a notification No. RD 85 AQW 75 dated 17-6-1977 under Section 3(c) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) appointing the Deputy Commissioner (Administration), Bangalore City Corporation, to perform the functions of the Deputy Commissioner for purposes of acquisition of the land in question. Accordingly, the Deputy Commissioner issued a notification dated 5-1-1978 under Section 4(1) of the Act which came to be gazetted on 12-1 -1978 seeking to acquire the land for a public purpose, to wit, formation of a park and a play ground. The petitioner filed his objections. After considering the objections and after hearing the petitioner, a notification under Section 6(1) of the Act was issued by publication in the Gazette dated 28-7-1978 declaring that the land was needed for a public purpose. Thereafter the Land Acquisition Officer issued notices under Sections 9 and 10 of the Act.
It is necessary to mention here that in the meanwhile, the power of the Land Acquisition Officer was taken away from the Deputy Commissioner of the Bangalore City Corporation and vested in the Deputy Commissioner, Bangalore District, and all the pending cases of acquisition in the Corporation of the City of Bangalore were transferred to the Assistant Commissioner, Bangalore Sub-Division, in view of the Government Order of delegation.
Thereafter, the Assistant Commissioner and Land Acquisition Officer after due enquiry under Sections 9 and 10 of the Act passed an award on 31-12-1979 in a sum of Rs. 58,960-50 paise as compensation for the acquired piece of land measuring 5125 sq. yards in Sy.No. 99/E and he also issued notice of award as required under Section 12(2) of the Act to the claimant. Later the award came to be approved by the Deputy Commissioner.
Pursuant to the award, respondent-4 deposited the sum awarded in the Civil Court so as to enable the claimant to receive the same. Thereafter, the Land Acquisition Officer on 12-6-1980 took possession of the land acquired under Section 16 of the Act and handed it over to the Junior Engineer, Division No. 30, Bangalore City Corporation under a mahazar.
The case of the petitioner, however, as averred in the Writ Petition is that this very property came to be acquired by the erstwhile State of Mysore in the year 1935 for the public purpose. However, those proceedings came to be dropped. It is submitted by him that this was so because the petitioner came forward voluntarily to surrender a portion of the land for formation of two roads of 30 and he accordingly surrendered that part of the land. Therefore, it is not right on the part of the State Government to have initiated fresh proceedings under the Act to acquire the very land once again.
The further case of the petitioner is that the Special Deputy Commissioner, Urban Land Ceiling and Taxation, Bangalore, issued a notification No. UFC(6) 81/78-79 dated 20-8-1979, published in the Gazette dated 25-10-1979, under Sub-section (3) of Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 (the Act of 1976 for short) whereby 1581.37 sq. yards out of the schedule land was shown as excess of the ceiling limit and thus a notice also came to be issued on 31-10-1979 requesting the petitioner to deliver possession of the said excess land within 30 days from the date of service of the notice. The petitioner objected to that notice.
The further case of the petitioner is that although the Assistant Commissioner, Bangalore Sub-Division, Bangalore, deposited a sum of Rs. 58,960-50 paise in Court where the case was referred under Sections 30 and 31 of the Act and the said amount was pending in the Court of the 9th Additional City Civil Judge, Bangalore, the petitioner did not withdraw the amount.
In the meanwhile, according to the petitioner, one more Notification bearing No. RD 140 AQB 81 dated 8-12-1982 which came to be published in the Gazette dated 9-12-1982 came to be issued under Section 48(1) of the Act by which earlier Notification referred to above came to be withdrawn. This Notification is marked as Annexure-A in the Writ Petition. Thus, according to him, the entire proceedings initiated under the Act for the purpose of acquiring the land in question came to be withdrawn and therefore a right came to be accrued to him as regards the land, subject matter of notification. Thereafter, the Assistant Commissioner filed a memo in the Court of the 9th Additional City Civil Judge, Bangalore, in LAC No. 1463 of 1980 stating that the State Government ordered withdrawal of the acquisition proceedings and therefore the reference made under Sections 30 and 31 of the Act might be dropped. By an order made on 20-4-1983, the Court directed to close the case besides directing the withdrawal of the amount in deposit. Annexure-B is the certified copy of the order so made in L.A.C.No. 1463 of 1980. In the operative portion of the order, Annexure-B, the learned Judge ordered as follows:-
"The file is closed without prejudice to the rights of the claimants if any."
It is therefore submitted that pursuant to the above order made by the Court, the award amount in deposit came to be withdrawn by respondent-3. This is as per Annexure-C. It is pertinent to note in this behalf that the Special Deputy Commissioner, Urban Land Ceiling and Taxation, Bangalore, respondent-5 herein, issued a notification on 16-12-1982 as per Annexure-D withdrawing the earlier notification dated 20-8-1979 declaring excess land held by the petitioner.
It is the contention of the petitioner that pursuant to the above proceedings culminating in the notification Annexures-A and D, possession of the land in question came to be re-delivered to him by the Assistant Commissioner, Bangalore Sub-Division, on 8-9-1983 as per Annexure-E. This annexure has been produced in the Court along with others to demonstrate that the petitioner had been put in possession of the land in question as on the date when the Writ Petition came to be presented on 31-8-1984.
Thereafter, the petitioner approached the Deputy Commissioner of the Corporation of the City of Bangalore (Revenue) to change khata and to show his name in the fresh khata to be issued in his favour, besides showing the said land as having been assessed to tax under the Corporation Act. Since the Deputy Commissioner refused to accede to the request, the petitioner issued a legal notice to him on 21-6-1984 as per Annexure-F. In the meanwhile, respondent-1 State issued a notification as per Annexure-G on 22-6-1984 which came to be gazetted on 19-7-1984 clarifying that the State Government did not intend to withdraw the acquisition proceedings as notified in Annexure-A. In Annexure-G, the State Government has clarified as to how a confusion had been created which led to the issuance of the Notification, Annexure-A, in as much as it was made clear by a perusal of Annexure-G that the Special Deputy Commissioner, respondent-5 herein, having issued a Notification under the Urban Land (Ceiling and Regulation) Act, 1976 declaring an area of 1581.37 sq. yards out of 46,143 1/2 sq. feet comprising in Sy.No. 99/E as vested in the State Government as it was in excess of the ceiling limit, there was no need to acquire the area under the Land Acquisition Act. The action taken by the Special Deputy Commissioner, respondent-5, led the State Government to a confusion to withdraw the earlier acquisition proceedings culminating in Annexure-A. The State Government however clarified that it did not intend to withdraw the acquisition proceedings thereby Annexure-G Notification dated 22-6-1984 stood rescinding its earlier Notification, Annexure-A. Thus, the earlier proceedings under the Act came to be revived. It is these proceedings resulting in Annexure-G that gave rise to the grievance of the petitioner to approach this Court. The action taken by respondent-1 in issuing Annexure-G, according to the petitioner, is opposed to Article 300A of the Constitution of India. He has sought to quash it for the grounds taken in the Writ Petition,
3. A detailed statement of objections has been filed on behalf of respondents 2 and 3 controverting the averments of the Writ Petition and urging mainly the following grounds:-
The land in question is within the limits of the Corporation of the City of Bangalore and is situated in a densely populated area. The citizens living nearby and certain social organisations repeatedly made representations to the Corporation to provide certain lung space for a play ground and a park in the said area. The Corporation authorities having been satisfied about the need of the citizens of that area to provide a lung space to carve out a play ground and a park for the beneficial enjoyment of the children and the citizens living in that area submitted a proposal to the Administrator of the Corporation of the City of Bangalore for passing a resolution unanimously requesting him to acquire vacant land measuring 5127 sq. yards in site No. 99/E situate at Bull Temple Road, Bangalore belonging to the petitioner which was most suitable for the said purpose. The Administrator of the Corporation approved the proposal on 5-4-1976 and the proposal was submitted to the Government for acquisition of the said land.
4. Accordingly, the Government acting upon the request made by the Corporation acquired the land in question.
5. On 31-12-1979 the Assistant Commissioner, Bangalore Sub-Division, Bangalore, and Land Acquisition Officer, after due enquiry under Sections 9 and 10 of the Act, passed an award under Section 11 of the Act and the award was approved by the Deputy Commissioner under Section 12(2) of the Act. Thereafter, the award amount came to be deposited by way of a cheque in favour of the Civil Judge, Bangalore and thereafter the Corporation requested the Land Acquisition Officer to handover possession of the acquired land to the Corporation Engineer. On 12-6-1980 the Land Acquisition Officer Kasaba Hobli, Bangalore North Taluk took possession of 46,143 1/2 sq. feet out of khata No. 99/E i.e., the acquired land under Section 16 of the Act and handed over the same to the Junior Engineer, Division No. 30 Corporation of the City of Bangalore under a mahazar. I will refer to this mahazar later during my discussion.
6. In the meanwhile, the Land Acquisition Officer forwarded a reference under Sections 30 and 31 of the Act to the 9th Additional City Civil Judge, Bangalore, for adjudication of the title to the property and the said reference came to be registered as LAC No. 1463 of 1980 on the file of the said Court. The Land Acquisition Officer also deposited the compensation amount in the said Court and the said fact was intimated to the petitioner.
7. As to the notification Annexure-A issued under Section 48(1) of the Act, the stand taken by respondents 2 and 3 is that having regard to the provisions of Section 177 of the Karnataka Municipal Corporations Act, 1976 (Corporation Act for short) the land vests with the Corporation as possession of it was taken by respondents 2 and 3 under Section 16 of the Act by drawing a mahazar and therefore the Corporation cannot be dispossessed of the land in question. Therefore, the State Government has no right to issue a notification, Annexure-A, under Section 48(1) of the Act, inasmuch as such a power is not available to the State Government. Indeed, according to the Corporation, it continued to be in possession of the land right from 1980 and it invested about Rs. 1,50,000/- for the development of a play ground and a park in the land in question and presently there is a fully developed play ground and a park and therefore the question of divesting the land from the possession of the Corporation would not arise.
8. Referring to the withdrawal of the notification issued by the Special Deputy Commissioner for Urban Ceiling, it is contended that the said notification was withdrawn because of the acquisition proceedings. However, this would not in any way help the petitioner as contended in the Writ Petition. The stand taken by respondents 2 and 3 is that Annexure-A is illegal and therefore Annexure-G came to be issued by the State Government with a view to sustain the acquisition proceedings.
9. There is one more aspect of the matter I will have to mention. During the pendency of the Writ Petition, I.A.No. 1 was filed for impleading certain persons as respondents and by an order made by this Court that application was allowed and accordingly respondents 6, 7 and 8 were impleaded. They presented a joint statement of objections to the petition as follows;-
There is an approximate population of 30,000/- in Kempegowdanagara having facilities of five high schools in the area. None of the high schools have got facilities of play grounds and parks. There is no lung space available for the people living in the area. The open space in khata No. 99/E (entire land) was being used by the children as a play ground from time immemorial. In that place, a number of matches such as ball badminton, cricket, kabbadi, kho-kho, volley ball are being played. Thus for the last 30-40 years, the land in question is being used for the said purpose.
When the people of the area have come to know that the petitioner landlord was making an attempt to dispose of the property or to construct certain building to the detrimental to the public use, they agitated. They gave representations as far back as on 13-9-1975 to the Administrator of the Corporation of the City of Bangalore by way of memorandum. A number of institutions joined the memorandum requesting the administrator to acquire this piece of land and make it available for the children and people of the area for being used as a play ground and a park. Thus acceding to the request of the people, the Administrator persuaded the Corporation to pass a resolution. Resolution No. 14 dated 5-4-1976 came to be passed by the Corporation and the Government by its order bearing No. HMA.239 MNG 76 dated 31-12-1977 approved the resolution. Thus a notification under Section 4(1) of the Act came to be issued. By virtue of the possession handed over to the Junior Engineer free from encumbrance, Section 177 of the Corporation Act is attracted. In other words, the land came to be vested in the Corporation of the City of Bangalore and the award amount also came to be deposited in the Civil Court on 28-4-1980.
Another contention urged opposing the Writ Petition is that having regard to Section 16 of the Act, once possession has been taken by drawing a mahazar, the acquired land came to be vested in the acquiring body. In the instant case, a right has been accrued to the Corporation acquiring body after the land vested in it under that Section. Therefore, it is not open to respondent-1 State Government to take action with a view to withdraw the notifications issued under Sections 4 and 6 of the Act. Therefore, Section 48(1) of the Act cannot be invoked by respondent-1. Even if it is invoked, it is of no assistance to the petitioner. They have brought to the notice of the Court that by virtue of another resolution made by the Corporation, a sum of Rs. 1,50,000/- came to be allocated for the purpose of developing the land into a park and a play-ground and that at present there exists a park and a playground. These respondents have referred to the several resolutions passed by the Corporation in this behalf. The contention that the Assistant Commissioner, Bangalore Sub-Division, Bangalore, gave possession of the land in favour of the petitioner subsequently, is a false statement, inasmuch as neither the Assistant Commissioner had power to do so nor the petitioner could take possession of the land from the Corporation because there was no resolution whatsoever to divest the same in favour of the petitioner. That being so, no authority is competent to put the petitioner in possession of the land.
As to the withdrawal of the award amount from the Civil Court, it is contended that it is again one without jurisdiction and this must have been done on a mistaken fact. The interim order of stay granted by this Court is of no assistance. They have produced Annexures R1 to R3. Annexure-R1 is the order of the Administrator of the Corporation of the City of Bangalore, approving the estimate in a sum of Rs. 1,50,000/- for the formation of a play ground and a park on the land in question. Annexure-R2 is a letter dated 23-12-1983 from the Government addressed to the Commissioner, Bangalore City Corporation, to retain the land with the Corporation and not to handover possession of the same to the former owner, till the matter is finally decided. Annexure-R3 is the Government Order allotting the excess land in Sy.No. 99/E to the Corporation for formation of a play ground and a park. Thus, respondents 6 to 8 support the case of respondents 1 to 3 in opposing the prayer of the petitioner.
10. Sri Castelino, learned Counsel for respondents 2 and 3, argued that there was no case made out by the petitioner for quashing Annexure-A. Sri Somayaji, learned Government Advocate representing the learned Advocate General argued on behalf of respondent-1 opposing the prayer of the petitioner. Smt. Pramila, learned Counsel for respondents 6 to 8, adopted the arguments advanced on behalf of respondents 1 to 3.
11. Having regard to the respective contentions urged - one on behalf of the petitioner in support of the Writ Petition and the other on behalf of respondents 1 to 8, per contra, opposing the Writ Petition and contending that the action taken by respondent-1 State in withdrawing the acquisition proceedings by issuance of the Notification, Annexure-A, under Section 48(1) of the Act, is of no assistance to the petitioner as such action is the one without jurisdiction, the following points arise for my consideration:-
(1) Whether the notification (Annexure-A) issued under Section 48(1) of the Act would enure to the benefit of the petitioner.
(2) Whether respondent-1 State issued the notification, Annexure-G with a view to clarify the action by which Annexure-A was issued and to maintain the acquisition proceedings in favour of the acquiring body.
(3) Whether the petitioner has been able to make out a case to quash the notification, Annexure-G so as to entitle him to retain, the acquired land.
12. Dealing with the first point, I must restate certain events referring to the factual position arising in the Writ Petition to appreciate the contentions urged on behalf of the petitioner.
13. It is not in dispute that pursuant to the notification issued under Section 4(1) of the Act on 5-1-1978 and published in the Karnataka Gazette dated 12-1-1978, an opportunity was given to the petitioner to file statement of objections and accordingly he was heard as required under Section 5A of the Act. Thereafter, rejecting the case of the petitioner for dropping the proceedings, a final notification under Section 6(1) of the Act came to be issued declaring that the land in question was needed for a public purpose to wit, for formation of a park and a play ground. These are admitted facts.
14. It is also not in dispute that pursuant to the award made by the competent authority, compensation came to be awarded in a sum of Rs. 58,960-50 ps. acquiring 5127 sq. yards in Sy.No. 99/E and the award having been approved by the competent authority under Section 12(2) of the Act, the said amount came to be deposited in Civil Court.
15. The further undisputed fact is that by virtue of the action taken by the competent authority under Section 16 of the Act, possession of the acquired land came to be handed over to the Junior Engineer, Division No. 30, Bangalore City Corporation under a mahazar dated 12-6-1980. Thus the proceedings under the Act is complete resulting in handing over possession of the land acquired in accordance with law. .
16. Now the question is, having done so, is it open to the petitioner to contend that he moved the Assistant Commissioner, Bangalore Sub-Division, seeking to put back possession of the land in his favour? This was based upon the contention of the petitioner that there was an order made by the Civil Court directing withdrawal of the award amount and return of the reference. I have referred to these aspects in the aforesaid paragraphs. One thing I have got to mention is that no doubt the learned Civil Judge made an order in the order sheet pertaining to case No. LAC.1463/1980 dated 20-4-1983 based upon a memo filed by the Government Pleader. It appears to me that there was mis-apprehension on the part of the learned Government Pleader who filed the memo and obtained an order on 30-4-1983 though there was no direction as such by the competent authority to do so. On the other hand, the State Government by Annexure-R2 dated 23-12-1983 directed the Commissioner of the Corporation of the City of Bangalore to retain the land in question and not to handover possession of the same to the former owner till the matter was finally decided. This has clearly indicated that there was no intention on the part of the State Government or the Corporation acquiring body to withdraw the amount of award deposited in Civil Court. Therefore, the order made by the Civil Court based upon the memo filed by the Government Pleader is one without jurisdiction. Such an order cannot be acted upon muchless could it be construed in favour of the petitioner. The stand taken by the Corporation in their statement of objections is that the Corporation never intended either to withdraw the amount deposited in Civil Court or to invest possession of the land already acquired in favour of the petitioner. Indeed, during the course of the arguments, it was brought to the notice of the Court by Sri Castelino, learned Counsel for the Corporation, that the said amount of award came to be redeposited in the Civil Court on 16-3-1985. Accordingly, a memo to that effect is presented in the Court.
17. There is one more aspect to be considered in this behalf. Learned Counsel Sri Nanjundaswamy emphasised that by an order made by the Assistant Commissioner, Bangalore Sub-Division, possession of the land in question Was redelivered to the petitioner and therefore it was vehemently argued that the petitioner as on the date of the argument of the case was in possession of the land. That being so, the State or the Corporation acquiring body were not serious in the matter. To demonstrate this aspect, Sri Nanjundaswamy drew my attention to the letter of the Assistant Commissioner written as per Annexure-E dated 8-9-1983 stating that as per the De-notification in No. RD 140 AQB 81 dated 8-12-1982 published in the Gazette dated 9-12-1982 the site No. 99/E, Bull Temple Road, Bangalore, owned by Sri G.V. Rudrappa, has been handed over to Sri K.V. Narayan, General Power of Attorney Holder, and submitted that that document had indicated the intention of the Government and the Corporation acquiring body to drop the acquisition proceedings. On the other hand, Sri Somayaji, learned Government Advocate for the learned Advocate General appearing for respondent-1 plainly submitted that the document, Annexure-E, was neither prepared by the Assistant Commissioner, Bangalore Sub-Division nor was it signed by him. He produced the original records to show that the document in question is not signed by the Assistant Commissioner then holding the Office. His submission is that this is a mischievous document and a spurious one concocted to deceive the Court as the State Government never directed the Assistant Commissioner to do so muchless the latter signed it. Therefore, the Court should not act upon the said document.
18. I carefully went through the original records made available. There is no signature of the Assistant Commissioner who held the Office as on 8-9-1983. It is not possible to decipher the signature found at the bottom of the document, Annexure-E. However, presuming for the sake of argument that it is a genuine document signed by the competent person, even then it is one without competence as once possession of the acquired land is taken in accordance with Section 16 of the Act by drawing a mahazar, the Assistant Commissioner has no business to act in the manner complained of. The Supreme Court is very clear on this point. I will presently deal with the legal position on this point. In Jethamul Bhojaraj v. State of Bihar, the Supreme Court dealing with the implications of Section 48 of the Act held that possession referred to under Section 48 necessarily is the possession taken under Section 16 or Section 17(1) of the Act. This decision of the Supreme Court has been followed by a Division Bench of this Court in Muninanjappa v. State of Karnataka, 1980(1) KLJ 191 wherein it has been held as follows:
"As Sub-section (1) of Section 48 of the Act provides that the power to withdraw from acquisition of the land can be exercised by the State Government in respect of the land of which possession has not been taken, it is reasonable to draw an inference that taking possession of the land contemplated by Sub-section (1) of Section 48 of the Act is taking possession either under Section 16 or Section 17 of the Act."
19. Therefore; the consistent view taken authoritatively on this point is that if possession of the acquired land has been taken either under Section 16 or Section 17 by drawing a mahazar attested by the witnesses, the State Government cannot withdraw the acquisition proceedings under Section 48(1) of the Act. In other words, the State Government in such a case is not competent to withdraw acquisition proceedings in exercise of the powers under Section 48(1) of the Act.
20. There is yet another interesting point arising in this case. It is undisputed that the land in question came to be acquired for a public purpose by issuing notifications under Sections 4(1) and 6(1) of the Act by respondent-1 State at the request of the acquiring body viz., the Corporation of the City of Bangalore. Indeed, as disclosed from the arguments advanced by Sri Castelino pointing to the stand taken in the statement of objections filed by the Corporation, a resolution came to be passed by the Council of the Corporation at the request of the Administrator to acquire this piece of land. If that is so, what is the position? Is it open to the State Government suo moto to drop the proceedings under Section 48(1) without there being a resolution passed by the Corporation Council in that behalf. Certain intricate questions arise to be considered in this case.
21. Firstly, Section 178 of the Corporation Act relating to land and other properties provides:
"178. Provision relating to land and other properties - (1) Any land or other property transferred to the Corporation by the Government shall not, unless otherwise expressly provided in the instrument of transfer, belong by right of ownership to the Corporation, but shall vest in it subject to the terms and conditions of the transfer and on the contravention of any of the said terms and conditions, the land or other property with all things attached thereto, including all fixtures and structures thereon, shall vest in the Government and it shall be lawful for the Government by order to resume possession thereof."
xx xx xx 22. Section 177 thereof reads:
"177. Procedure for acquisition of immovable property under the Land Acquisition Act, 1894 - Any immovable property which any municipal authority is authorised by this Act to acquire may be acquired under the provisions of the Land Acquisition Act, 1894, and on payment of the compensation awarded under the said Act in respect of such property and of any other charges incurred in acquiring it, the said property shall vest in the Corporation."
23. These are the important statutory provisions provided to safeguard the interests of the Corporation. In the instant case, the Council of the Corporation having passed a resolution at the request of the then Administrator, the land was sought to be acquired for a public purpose. According to Section 177, once a land is acquired for a public purpose and payment of compensation awarded under the Act is made, the land vests in the acquiring body. Once vesting takes place, would it be open to the State Government to undo or withdraw the acquisition proceedings without there being a resolution to that effect by the acquiring body? My answer is in the negative because once an immovable property vests in the acquiring body by virtue of the acquisition of the land for a public purpose, the State Government has no power to undo or withdraw the proceedings under which the land was acquired. Such a power is not given to the State Government. My view has been fortified by a decision of the Gujarat High Court in Kikabhal Ukabhai Patel and Ors. v. State of Gujarat and Ors., A Division Bench of Gujarat High Court dealing with the very question has held as follows:-
"Where a letter written by Section Officer on behalf of the State Government had not stated that the State Government had decided to withdraw from acquisition of the land which proceedings were initiated at the behest of the Municipal Corporation for installation of its drainage disposal scheme but it only conveyed the decision of the State Government not to proceed with the said acquisition, it could not be said that the State Government had taken a decision to withdraw from acquisition and that the letter amounted to withdrawal from acquisition and not mere suspension of the proceedings because if the State subsequently decided to withdraw from acquisition, it had to call for such proposal from the Municipal Corporation and if such proposal had been moved by the Corporation, then only a stage would have reached for the State Government to withdraw from acquisition as required by Section 48(1) of the Act. Consequently, when the acquisition proceedings started for such resumption of proceedings, there was no legal impediment as the acquisition proceedings had not died out but they survived and had merely got temporarily suspended by the State Government as per the above said letter, passing of the award and all subsequent proceedings seeking possession from the landowners under the impugned notifications under Sections 4 and 6 of the Act would not be null and void."
The Division Bench of the Gujarat followed its earlier Decision reported in (1988) 29 Guj L.R. 1460 and the Decision of the Bombay High Court in AIR 1984 Bom 1971, (please see paragraph-4).
24. Sri Nanjundaswamy, learned Counsel for the petitioner was unable to convince the Court on this point. Therefore, I must hold that Annexure-A, the noification issued by the State Government seeking to withdraw acquisition proceedings under Section 48(1) of the Act, is one without jurisdiction and therefore it cannot be acted upon. Thus, it would not enure to the benefit of the petitioner.
25. Dealing with points 2 and 3, the argument advanced by Sri Somayaji is two fold: He firstly submitted that the State Government had no intention to drop the proceedings under Section 48(1) of the Act as could be gathered from Annexure-A. On the other hand, by virtue of the subsequent notification issued as per Annexure-G withdrawing the earlier notification, Annexure-A, the matter was clarified that the State Government had no intention to drop the acquisition proceedings. He secondly submitted that certain events arose in view of the order passed by the Special Deputy Commissioner, respondent-5 herein as per Annexure-D withdrawing his earlier order declaring an extent of 1581.37 sq. yards in Sy.No. 99/E held by the petitioner herein as excess of the ceiling limit on the ground that the State Government initiated proceedings to acquire the entire land in Sy.No. 99/E, and hence there was no need to take further action in the matter. On the Government side, Sri Somayaji submitted, in view of the earlier order passed by the Special Deputy Commissioner, Urban Ceiling, respondent-5 herein, declaring 1581.37 sq. feet in Sy.No. 99/E as excess of the ceiling limit, which was available to the Government free of compensation, the Government thought it fit that there was no need to pursue the acquisition proceedings wherein a huge amount of compensation was to be paid based upon the market value, in case land was acquired. It is in that context, Annexure-A came to be issued under Section 48(1) of the Act. But subsequently since respondent-5 Special Deputy Commissioner passed an order as per Annexure-D withdrawing the earlier order declaring excess land held by the petitioner on the ground that there was no need to pursue the matter under Sections 9, 10 and 11 of the Act of 1976, the State Government again thought Of clarifying the matter by issuing the notification, Annexure-G. A perusal of Annexure-G makes the matter clear. In Annexure-G the State Government has referred to the action taken to acquire the land in Sy.No. 99/E Bull Temple Road, Bangalore under the Act and since respondent-5 passed an order seeking to declare a portion of the land as excess which would therefore be available to the State Government without paying the market value by way of compensation, it proceeded to issue Annexure-A. However, subsequently since resppndent-5 passed an order in October, 1982 as per Annexure-D dropping further proceedings in relation to excess land sought to be declared under the Act of 1976, the State Government again issued Annexure-G. By a perusal of the order, Annexure-G, it is seen that after examining the entire matter, the State Government found that the possession of the acquired land having been taken over by the authorities and the award amount having been deposited in Civil Court, there was no need to drop the acquisition proceedings. In the circumstances explained above, the State Government passed a considered order seeking to undo or withdraw the action taken under Annexure-A. It is contended on behalf of the first respondent-State that the petitioner wanted to take advantage of this situation by arguing that the State Government is not competent to issue the order, Annexure-G, inasmuch as once the State Government has dropped the proceedings under Section 48(1) of the Act, it cannot again redo it by Annexure-G.
26. It is true that Sri Nanjundaswamy argued that the State Government was estopped from taking any further action to revive the acquisition proceedings as, by Annexure-A, the Government had intended to drop acquisition proceedings. He cited a number of authorities in support of his argument. I do not think that any of such authorities relied upon by him would help him because factually the State Government clarified under what circumstances, Annexure-A came to be issued. Without understanding the factual position and the circumstances under which the notification, Annexure-A, came to be issued, the Court cannot embark upon holding that merely because Annexure-A came to be issued, the State Government is estopped from taking further action to clarify the matters. In Kallaiah Nagaiah Koradhanyamath v. Basappa Tirakappa Buradikatti and Ors., this Court in a similar situation held as follows:-
"It is well settled that the jurisdiction of the High Court under Article 226 of the Constitution is discretionary and has to be exercised only in aid of justice. Even assuming that the District Judge functioning as Election Tribunal could not set aside that election in the absence of express statutory provision laying down the grounds on which election could be set aside, the High Court need not interfere with the decision of the District Judge setting aside the election when the result of election, as declared by the Returning Officer, was obviously illegal. In such circumstances, interfering with the order of the District Judge would only result in allowing an illegal election to stand and it would not be proper exercise of discretion to interfere with the Judgment of the District Judge."
In that view of the matter, if Annexure-G Government Order came to be issued with a view to clarify matters and to restore legal position, the Court cannot find fault with the action taken by the Government to correct the mistake crept in the earlier notification.
27. Sri Nanjundaswamy placed reliance upon Section 21 of the General Clauses Act. According to him, this Section has conferred necessary powers to add, to amend, vary or rescind notifications, orders, rules or bye-laws made by the State or by the Legislature. I am afraid, this is not a case in which Section 21 of the General Clauses Act could be invoked. In Lt. Governor of Himachal Pradesh v. Sri Avinash Sharma, the Supreme Court dealing with a similar question held as follows::
"After possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers of the Land Acquisition Act under Section 48. When possession of the land is taken under Section 17(1), the land vested in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification."
In this behalf, it may also be noted that the legal contention urged by Sri Nanjundaswamy based upon Section 21 of the General Clauses Act is held against him in that Judgment
28. In the instant case, as already observed, the State Government has simply attempted to correct the mistake crept or some error found in the earlier notification, and it is in this context that Annexure-G came to be issued. It is nobody's case that such a power is not available to the State Government or the Legislature. However, we are not concerned with the interpretation of Section 21 in this case. In view of the above, there is no force in the contention of Sri Nanjundaswamy, learned Counsel for the petitioner.
29. In sum and substance of the discussion, as already observed, the earlier notification, Annexure-A came to be issued under the confusion created in the mind of the State Government in view of the order made by the Special Deputy Commissioner declaring certain extent of the land in Sy.No. 99/E, subject matter of the Writ Petition, as excess of the ceiling limit and this has been borne out by the original records as also the subsequent rectification Government Order issued as per Annexure-G. And there was no intention at all on the part of the Government to drop the acquisition proceedings and in fact in cannot, in view of the circumstances of the case. Thus, I do not find any merit in this Writ Petition and there is no need for me to consider the other arguments advanced by Sri Nanjundaswamy.
30. So far as the reference made to the Civil Court under Sections 30 and 31 of the Act seeking apportionment of the award amount by the other co-sharers along with the petitioner, it is open to them to pursue the remedy available to them under the Act.
31. For the reasons stated above, I make the following:
ORDER This Writ Petition fails and is dismissed. No costs.