Karnataka High Court
C Krishne Gowda vs The State Of Karnataka on 21 January, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 21ST DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.50211-50215 OF 2012 (LA-RES)
BETWEEN:
1. C. Krishne Gowda,
Son of Late Chikkavenkataiah,
Aged about 53 years,
Resident of D.No.140,
13th A Main Road,
Gokul I Stage, I Phase,
Mathikere,
Bangalore - 560 054.
2. M.D. Javarappa,
Son of Late M. Devaiah,
Aged about 63 years,
No.3751/1-A, Yogesh Nilaya,
Honnaiah Badavane,
Sugar Town Post Office,
Near KSRTC Depot,
Mandya Town - 571 401.
3. Lakshmilal,
Son of Late Dharmchand,
Aged about 53 years,
Agriculturist,
2
Shanthinath Jewellers,
Renukamba Road,
Chennarayapatna Town,
Hassan District - 573 116.
4. Smt. Susheela,
Wife of Sri. Lakshmilal,
Aged about 45 years,
Housewife,
Resident of Shanthinath Jewellers,
Renukamba Road,
Chennarayapatna Town,
Hassan District - 573 116.
5. Gopal,
Son of Late Dharmachand,
Aged about 48 years,
Chennarayapatna - 573 116,
Hassan District.
...PETITIONERS
(By Shri. Jayakumar S Patil, Senior Advocate for Shri. Pruthvi
Wodeyar, Advocate )
AND:
1. The State of Karnataka,
Housing and Urban Development
Department, M.S.Building,
Dr. B.R. Ambedkar Beedhi,
Bangalore - 560 001,
Represented by its Principal Secretary.
2. Mysore Urban Development Authority,
Jansi Lakshmibai Road,
3
Mysore - 570 005,
Represented by its Chairman.
...RESPONDENTS
(By Shri. H. Anantha, Government Pleader for Respondent
No.1
Shri. P.S. Manjunath, Advocate for Respondent No.2)
*****
These Writ Petitions filed under Articles 226 and 227 of
the Constitution of India praying to quash the impugned
notification dated 22.11.2012, passed by the first respondent,
vide Annexure-M.
These Writ Petitions coming on for Hearing this day, the
court made the following:
ORDER
Heard the learned Counsel for the petitioners and the learned Counsel for the respondents.
2. The facts are as follows:-
The land bearing Survey No.7/3 measuring 28 guntas of Mallalawadi village, Mysore District is said to be the property in possession and enjoyment of one late Lingaiah. Lingaiah had filed an application seeking regularization of his possession and occupation of the land before the respondent no.2 - 4 Mysore Urban Development Authority (MUDA). During the pendency of the application, a notification under the City of Mysore Improvement Act, 1903 (Hereinafter referred to as the "CMI Act", for brevity) dated 19.12.1963 was said to have been issued proposing to acquire the said land along with other lands. Subsequent to the issuance of the said notification, the respondent no.2, on a consideration of the application filed by late Lingaiah had issued an endorsement dated 10.5.1968 directing Lingaiah to approach the Tahsildar, Mysore in respect of the claim for regularization. It further transpires that the first respondent had issued a final notification under the CMI Act on 25.3.1969.
Lingaiah, in the meanwhile, had approached the Deputy Commissioner, Mysore District seeking regularization and by an order dated 22.9.1971, the Deputy Commissioner had regularized the occupation of Lingaiah and accepted the conversion and phodi fees and the land stood converted for non-agricultural purpose. Insofar as the acquisition 5 proceedings are concerned, it was found that the award amount was deposited before the civil court and Lingaiah had formed sites in the land in question and had sold to the present petitioners. Petitioners 3 to 5 are said to have purchased three sites measuring 60'x75' under registered sale deeds dated 28.3.1986. Petitioner no.1 is said to have purchased a site measuring 45' x 75' under sale deeds dated 15.12.2004.
Similarly, petitioner no.2 had purchased a site measuring 75'x75' under a sale deed dated 30.10.2006.
The petitioners claim that they have been in possession and their possession has been recognised by the Bangalore City Corporation, which has been collecting the property tax from the petitioners in respect of their respective lands and that even though the acquisition notifications of the year 1963 and 1969 had been issued, no further steps were taken insofar as the physical possession of the land was concerned and that they had continued in possession. It was in this circumstance that as on 17.7.2009, the land bearing Survey Nos.7/3 and 7/4 measuring 6 28 guntas and 4 guntas, respectively, were withdrawn from the acquisition proceedings. The notification dated 17.7.2009 was duly gazetted. The said notification had incorrectly indicated the village concerned as Bogadi instead of Malalavadi and this was rectified by further a notification dated 30.7.2009. The fact that possession was never taken from Lingaiah or the petitioners is sought to be established by reference to Annexure-H, which is a letter written by the Secretary to Urban Development Department to the Commissioner, MUDA, Mysore as well as Annexures - J, K and L to the writ petition.
It is stated that in this background, one Adichunchanagiri Shikshana Trust had challenged the
notifications dated 17.7.2009 and 30.7.2009 by way of a writ petition before this court in WP 6954/2011, wherein the present petitioners were made parties. The petitioners, upon learning of the institution of the said petition, had approached this court and sought to implead themselves and their application for 7 impleadment was however rejected. During the pendency of the writ petition, it transpires that the State Government chose to issue yet another notification dated 22.11.2012 withdrawing the notification issued under Section 48(1) of the Land Acquisition Act, 1894 (Hereinafter referred to as the 'LA Act', for brevity). Neither the petitioners nor their vendors were heard before such notification was issued and it is the case of the petitioners that the same had been issued at the instance of the said Adichunchanagiri Shikshana Trust, without any basis. It is this which is under challenge in the present writ petition.
3. The learned Senior Advocate Shri Jayakumar S Patil, appearing for the counsel for the petitioners, would contend that it cannot be in dispute that neither the petitioners nor their vendor was put on notice before the notification issued under Section 48(1) of the LA Act was withdrawn and on that ground alone, the petitions would have to be allowed without anything more. While it is also pointed out that even the notification which is issued at the instance of the Adichunchanagiri 8 Shikshana Trust is on the footing that there was a lease deed in favour of the said Trust, which was subsisting when the notification under Section 48(1) of the LA Act was issued and therefore, it was void. The learned Senior Advocate would point out that the so called lease deed is dated much subsequent to the notification issued under Section 48(1) of the LA Act and therefore, the impugned notification cannot be sustained even on merits and would seek that the petition be allowed.
4. While the learned Counsel Shri P.S.Manjunath appearing for the second respondent would contend that the petitioners have no locus standi to challenge the impugned notification. Admittedly, the petitioners are the purchasers, who have purchased the lands in question much after the notifications for acquisition had been issued and hence would have no locus stnadi to question the notifications. Even otherwise, the very notification issued under Section 48(1) of the LA Act was at the instance of one G.T.Deve Gowda, who had made a representation to the effect that there was 9 unauthorized construction and there were irregularities, which warranted the land having been unauthorisedly shown in the name of the MUDA, the name should be deleted from the RTC and that the name of Lingaiah ought to be incorporated. Therefore, it is not clear that there was any justification in the issuance of notification under Section 48(1) of the LA Act and if there is to be any further consideration of whether or not the impugned notification was legal, it ought to be considered in entirety, in that, whether the land could be withdrawn from acquisition under Section 48(1) of the Act itself is a basic question, which also ought to be considered by the State Government if there is a remand for fresh hearing. On the other hand, no such exercise is warranted since it is on record that Lingaiah, the vendor of the petitioners was a party in the earlier writ petition before this court and any contentions that could be raised have been raised by Lingaiah and it is not open for the petitioners to seek any addition by recourse to the present petitions. It is also pointed out that the notification was 10 intended to be issued only in respect of 4 guntas of land, as is evident from the order that was passed preceding the notification. Whereas on account of some mischievous ploy, it is now found that the notification has been issued in respect of 28 guntas, which in itself, is an apparently illegality and therefore, it would not be complete if the hearing, on any possible remand by virtue of this petition, being restricted to the consideration of the validity of the impugned notification and the entire proceedings should be thrown open for a reconsideration by the State Government.
5. The learned Government Pleader, on the other hand, would seek to justify the impugned notification and places reliance on a quotation from the judgment in Bangalore Development Authority vs. Vijaya Leasing Limited, AIR 2013 SC 2417.
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6. By way of reply, the learned Senior Advocate would point out that insofar as the notification under Section 48(1) of the LA Act was concerned, it was issued on 30.7.2009 and the land was proposed to be acquired for the MUDA. The MUDA never chose to question or challenge the said notification and it is out of the blue at the instance of the above said Trust that the said notification has been withdrawn. Therefore, the contention of Shri Manjunath that the matter must be considered not only with reference to the impugned notification, but also notification under Section 48(1) of the LA Act, would not be fair as there was no challenge to the notification issued under Section 48(1) of the LA Act in the first instance.
Insofar as the contention that the petitioners have no locus standi to file the present petitions is concerned, the effect of a notification under Section 48(1) of the LA Act was that the ownership of the land acquired reverts back to the land owner and the present petitioners, who are the purchasers under the land owner, could perfect their title, even if there are 12 transactions, under which they had purchased the lands, were void by virtue of the acquisition proceedings. Therefore, the question whether the petitioners have any right to challenge the impugned notification cannot be relevant. Even if it is to be stated that the Government was unaware of the present petitioners being the purchasers of the land by virtue of the present petitions having been instituted, now that the State is made aware, it would be necessary for the State to hear the petitioners and consider their case on merits. Insofar as the contention that the notification was in respect of 28 guntas whereas the order preceding the notification was restricted to 4 guntas is not a contention that could be raised by MUDA in these proceedings as the notification would take precedence and it is issued on behalf of the State Government and the notification by itself cannot be held to be illegal notwithstanding there was a discrepancy between the order preceding the notification and the notification itself. Though it was a ground raised in the earlier writ petition since the MUDA 13 was only a respondent and not the petitioner, it is irrelevant. Insofar as the judgment cited by the Government Advocate is concerned, though the decision of the division bench in Vijaya Leasing, supra, has been reversed, the paragraph that is cited is wholly irrelevant as it addresses the question as to a subsequent purchaser not being in a position to question the acquisition proceedings. It is pointed out that the present petitions do not seek to question the proceedings and on the other hand, it is restricted to the validity or otherwise of the notification under Section 48(1) of the LA Act and therefore, the said judgment would have no relevance.
7. In the above background, it is not in serious dispute that the present petitioners claim under one Lingaiah, who was the original owner of the lands, which are the subject matter of acquisition. The purchases made by the several petitioners were certainly after the acquisition proceedings had been initiated and prior to the notification under Section 48(1) of the LA Act. By virtue of the said notification, as rightly contended 14 by the learned Senior Advocate, the defect in title, in that, the purchases were made subsequent to the initiation of the acquisition proceedings, would get cured and the ownership of Lingaiah, which was restored by virtue of such withdrawal from acquisition, would enure to the benefit of the petitioners. If such a right had accrued either to Lingaiah or to the petitioners, the same being deprived of by virtue of the impugned notification, without an opportunity of hearing, would offend the very first principle of natural justice that a party could not be deprived of his right without a hearing. Therefore, on that sole ground alone, the petitions would have to be allowed.
The petitions are allowed. The impugned notification is quashed. The matter is remanded for a reconsideration by the State Government as to whether it would be available for the State to now withdraw the notification under Section 48(1) of the LA Act, after affording opportunity to the petitioners and to such other persons, who may be interested. Insofar as the 15 contention that the petitioners have no right to question the same and the State was not justified in not notifying them before issuing the impugned notification is answered by the above circumstance that their claim to the property is by operation of law and to that extent, their status cannot be doubted.
Sd/-
JUDGE nv