Karnataka High Court
Vijaya Leasing Limited vs The State Of Karnataka By Its Secretary ... on 29 March, 2005
Equivalent citations: ILR2005KAR2539, 2006(4)KARLJ126, 2005 AIR - KANT. H. C. R. 1331, (2005) 33 ALLINDCAS 883 (KAR), (2006) 4 KANT LJ 126, (2006) 2 LACC 292, (2006) 4 ICC 279, (2005) 2 KCCR 1533, (2005) 4 CIVLJ 324
Author: Anand Byrareddy
Bench: Anand Byrareddy
JUDGMENT S.R. Nayak, J.
1. The Writ Petitioner being aggrieved by the order of the Learned Single Judge dated 26th August 2002 passed in W.P. No. 2565 of 2001 has preferred this writ appeal.
2. The appellant is a company registered under the provisions of the Companies Act. An immovable property admeasuring 21480 Sq.Ft comprised in sites bearing No. 526, 527, 528, 529, 530, 531 and 532 carved out in Survey No. 57 of Tippasandra, K.R. Puram Hobli, Bangalore South Taluk which land is hereinafter shortly referred to as 'the schedule land' originally belonged to one late A. Thimma Reddy, son of Muniswamappa. The scheduled land was sold by A. Thimma Reddy to the vendors of the writ petitioner. The petitioner company purchased the schedule land under two registered sale-deeds dated 28-11 -1995. After the State Government in exercise of its eminent domain power initiated the proceedings to acquire the schedule land for a public purpose, to wit, formation of HAL II stage layout by issuing Section 4(1) Notification on 21-9-1967 and Section 6(1) declaration on 15-7-1971 and when the acquisition proceedings were in pipeline, the vendors of the writ petitioner, it seems, made an application to the State Government for denotifying the acquisition of the schedule land. Accordingly, the State Government having satisfied itself that the physical possession of the schedule land was not taken over, issued a Notification under Sub-section (1) of Section 48 of the Act on 5-10-1999 and the same was published in the Official Gazette on 6-10-1999. When the matter stood thus, as per the BDA, having realised that even before the date of Section 48(1) Notification, the physical possession of the schedule land was taken by it, it addressed a letter to the State Government complaining that the Notification under Section 48(1) of the Act ought not to have been issued. That led to the State Government passing Annexure-F dated 27-6-2000 withdrawing the Notification issued by it under Section 48(1) of the Act.
3. The petitioner appellant being aggrieved by the order of the Government Annexure-F dated 27-6-2000 preferred writ petition No. 2565 of 2001. Before the learned single Judge, two fold contentions were raised to assail the validity of the impugned order. It was contended that the Government, having issued Notification under Sub-section (1) of Section 48 of the Act, lost the power to issue the impugned Notification and, therefore, the impugned Notification is one without authority of law. Alternatively, it was contended that even assuming that the State Government had power to issue the impugned Notification Annexure-F, the same is vitiated on account of utter violation of principles of natural justice in asmuchas the petitioner was not heard in the matter before the impugned Notification was issued. Learned Single Judge found merit in both the contentions. The learned Judge held that the Government lacks power of review under the Act to review the order made under Section 48(1) of the Act and that since the action of the State Government in issuing the Notification Annexure-F tantamounts to it exercising power of review, that action should be condemned as the one without authority of law. Learned Single Judge also held that the impugned Notification was issued without hearing the writ petitioner and therefore, it is vitiated for infraction of principles of natural justice.
4. Before the learned single Judge, as a defence, it was contended by the BDA and the State Government that the Notification issued by the State Government under Section 48(1) of the Act itself is one without authority of law and without jurisdiction for well before the date of the said notification, the Government had taken possession of the schedule land and without noticing that fact, the Notification was issued and, therefore, the subsequent Notification issued vide Annexure-F is only a corrective action on the part of the State Government. In the context of that contention raised as a defence by the State Government, learned single Judge thought it appropriate to frame point No. 2 for decision-making which reads as follows:
"If Annexure-F is held to be void does it have the effect or reverting back the land to the owners or to the petitioner by virtue of the order under Section 48(1) of the Act?"
5. The learned single Judge having dealt with point No. 2 has concluded that the Notification issued under Section 48(1) of the Act dated 27-6-2000 is void ab initio and in that view of the matter, the petitioners being purchasers of the schedule land have no right to maintain the writ petition. Having held so, learned Judge has opined that the schedule land does not revert back to the writ petitioners. In the result, learned single Judge has dismissed the writ petition.
6. Although learned single Judge has held against the BDA and the State Government on point No. 1, neither the State Government nor the BDA has preferred any writ appeal against the order of the learned single Judge.
7. We have heard Sri B.V. Acharya, learned senior Counsel for the appellant, Sri S. Vijaya Shankar, learned senior Counsel for the second and third respondents, and Sri Deshraj, learned Government Advocate for the first respondent State. While attacking the finding of the learned single Judge on point No. 2, Sri B.V. Acharya would place before us multifanged arguments. It was contended by Sri. B.V. Acharya that learned Judge, having rightly held that the impugned Notification is one without authority of law and in utter violation of principles of natural justice, ought to have quashed the impugned Notification Annexure-F dated 27-6-2000. According to Sri B.V. Acharya, in the absence of the challenge to the Notification issued under Section 48(1) of the Act, the learned Judge ought not to have reviewed the validity of the same. Sri B.V. Acharya would also contend that no power of review is granted to the State Government under the Act to review its order made under Sub-section (1) of Section 48 of the Act. Sri B.V. Acharya would contend that the contention of BDA and the State Government that by issuing the impugned Notification, they corrected their own error in passing the order under Sub-section (1) of Section 48 of the Act is untenable. Sri B.V. Acharya would also contend that the learned Judge has exceeded jurisdiction not only in reviewing the validity of the order made in Sub-section (1) of Section 48 of the Act, but also in reviewing the finding of fact recorded by the Government that the possession of the schedule land was not taken on the date on which Section 48(1) Notification was issued. Per contra, Sri S. Vijaya Shankar, learned senior Counsel for the BDA while supporting the finding recorded by the learned single Judge on point No. 2 would question the correctness of the finding recorded by the learned single Judge on point No. 1. It was highlighted by Sri S. Vijaya Shankar that by issuing the impugned Notification Annexure-F the Government did not review its order made under Sub-section (1) of Section 48 of the Act and what the Government did actually is that it has corrected its own mistake and that power cannot be denied to the State Government; such a power very much inheres in the provision of Sub-section (1) of Section 48 of the Act itself. Alternatively, Sri S. Vijaya Shankar would point out that the impugned Notification Annexure-F could be sustained, because, the power to issue the impugned Notification could be traced to the provisions of Section 21 of the General Clauses Act which is made applicable to the proceedings under the Act also. Learned Government Advocate would also support the finding recorded by the learned single Judge on Point No. 2 and adopt the argument of the learned senior Counsel for the BDA.
8. Although the pleadings filed in this case and the arguments advanced before us would throw number of legal issues for decision-making, we do not find it necessary to deal with all those issues for the purpose of disposal of this writ appeal. The basic question that arises for decision-making in this writ appeal is whether the learned Judge is justified and acted legally in undertaking the judicial review of the order made by the State Government under Sub-section (1) of Section 48 of the Act in the absence of any challenge to it by any party. It is trite that the order made by the State Government as per Annexure-E dated 5-10-1999 is a statutory order as a donee of the statutory power conferred under Sub-section (1) of Section 48 of the Act. If that order has to be annulled, there should be challenge from some aggrieved party. Of course, this question would not arise for decision-making if we were to accept the argument of Sri S. Vijaya Shankar that the power to make Annexure-F Notification is inherent in the power of the State Government conferred under Sub-Section (1) of Section 48 of the Act itself. But we have good reasons not to agree with the submission of the learned senior Counsel. Section 48 or any other provision of the Act does not deal with the power of the State Government to modify or annual or rescind an order made by the State Government under Sub-section (1) of Section 48 of the Act. Therefore, the impugned Notification Annexure-F could not be regarded as an outcome of an exercise of the power of State Government conferred under Sub-section (1) of Section 48 of the Act. In the first place, the order made by the State Government impugned in the present writ proceedings cannot be traced to the power conferred upon the State under Sub-section (1) of Section 48 of the Act. If these two orders are distinct and separate, they have to be challenged specifically and separately invoking the power of judicial review of this Court under Article 226. What was assailed before the learned single Judge in the writ petition was only Annexure-F, and not Annexure-E. However, the impugned action is sought to be supported by referring to Section 21 of the General Clauses Act. Suffice it to state that having perused several authorities placed before us by the learned Counsel for the parties, we do not find any direct judgment of the Apex Court or this Court or any other High Court to say that the provisions of Section 21 of the General Clauses Act are applicable with regard to an order that may be made by the State Government in exercise of its power under Sub-Section (1) of Section 48 of the Act. In THE STATE OF MADHYA PRADESH AND ORS. v. VISHNU PRASAD SHARMA AND ORS., AIR 1966 SC 1593 a three-Judge Bench of the Apex Court has opined that the Notification issued under Section 4(1) of the Act initiating the land acquisition proceedings can be withdrawn by the State Government in terms of Section 21 of the General Clauses Act. A contrary view was taken by a Division Bench of Supreme Court in LARSEN AND TOUBRO LIMITED V. STATE OF GUJARAT AND ORS., AIR 1998 SC 11608 It is seen that the two-Judge Bench of the Supreme Court have not noticed the earlier larger Bench binding decision in Vishnu Prasad Sharma's case (supra). Alternatively, it needs to be emphasized that even assuming that Section 21 of the General Clauses Act could be invoked by the State Government, the necessary condition to invoke that power did not exist in this case when the Government issued the impugned Notification. The rights of the owner of acquired land before the Notification under Sub-section (1) of Section 48 of the Act and the rights of the owner thereafterwards are all together different in legal terms. There is no dispute and there cannot be any dispute between the parties that after the State Government issued Notification under Sub-section (1) of Section 48 of the Act, the lands sought to be acquired stood reverted to the owner with full bundle of rights. The petitioner-owner being the purchaser of the schedule land from the vendee of the original owner, it stepped into the shoes of the original owners with all legal entitlements. In other words, all steps and proceedings taken by the State in exercise of its eminent domain power starting with issuance of Section 4(1) Notification and ending with passing of the award are wiped out by virtue and force of the legal consequences that flow from the issuance of notification under Sub-section (1) of Section 48 of the Act. If this is the legal consequence, then, the attempt of the State Government again to acquire the very schedule land by a shortcut method by issuing the impugned notification to withdraw the Notification issued under Sub-section (1) of Section 48 of the Act should be frustrated. After issuing Notification under Sub-section (1) of Section 48 of the Act, if the land previously sought to be acquired is required for any public purpose, the only course open to the State Government is to again initiate proceedings envisaged under the Act to acquire the land by issuing Section 4(1) Notification again. Therefore, it cannot be said that the power to issue the impugned notification withdrawing the earlier Notification issued under Sub-section (1) of Section 48 of the Act is a part of the power of the State Government conferred on it under Sub-section (1) of Section 48 of the Act.
9. We also find force in the contention of Sri B.V. Acharya that the learned Judge has exceeded his jurisdiction in undertaking the judicial review of the finding of fact recorded by the State Government before it issued the Notification under Sub-section (1) of Section 48 of the Act. The question whether the possession of the schedule land was taken by the State before the date on which the Section 48(1) Notification was issued is a pure question of fact. The then Government acting through the Minister of the Department concerned on appreciation of the materials placed before it, has recorded a finding of fact that possession of the schedule land was not yet taken by the State Government. Such a finding of fact, in the absence of challenge, could not have been upset by the learned single Judge. The Constitutional Courts, quite often held and reiterated that the Courts in purported exercise of judicial review under Article 226 cannot go into questions of fact even in a properly instituted legal action unless the Court finds that the fact-finding is not based on any legal evidence. It is also well settled that the Court cannot go into the question of sufficiency and adequacy of the evidence on which findings of fact are recorded. Here is a case where there is no challenge to the fact-finding made by the State Government. Further, it needs to be noticed that the fact-finding made by the State Government on an earlier occasion cannot be condemned as perverse by applying 'No Evidence Rule'. The learned single Judge in upsetting the fact-finding made by the State Government has not only questioned the correctness of the factual finding recorded by the Minister concerned, but also the fact-finding recorded by the Civil Court in O.S. No. 10300 of 1980 dated 15-12-1981. In the circumstance, with respect, we would say that the learned single Judge has exceeded jurisdiction vested in this Court under Article 226 of the Constitution in undertaking the judicial review of the order made by the State Government under Sub-section (1) of Section 48 of the Act without there being any challenge from any body.
10. In conclusion, we cannot sustain the order of the learned single Judge insofar as the finding recorded on Point No. 2 is concerned. In the result, we allow the writ appeal and set aside the finding of the learned single Judge on Point No. 2 and also the consequential direction issued in that regard. We, however, affirm the finding recorded by the learned single Judge on Point No. 1. As a consequence, we allow W.P. No. 2565 of 2001 and quash the impugned order Annexure-F dated 27-6-2000 of the first Respondent. No. costs.