Karnataka High Court
St. Joseph Society Of Madurai vs The State Of Karnataka on 14 September, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.25708-709 OF 2009 (LA-BDA)
Between:
1. St. Joseph's Society of Madurai
Represented by its
Provincial and President
Rev. Sr.Littly Thockanattu
Ananda Sadan, Sacred Hearts Road
Thambuchetty Palya
Bangalore - 560 036, Karnataka
2. Anudhavana - the Novitiate
of Sisters of St.Joseph of Lyons
Through its Directress
Sr.Soosaimmal Vedamuthu
96/1 Chellikere
Kamanahalli Main Road
Kalian Nagar P.O.
Bangalore - 560 043, Karnataka ... Petitioners
(By Shri Udaya Holla, Senior Advocate for
Shri B.Pramod, Advocate)
And:
1. The State of Karnataka
Represented by its
Commissioner and Secretary
Department of Housing & Urban
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Development, Vidhana Soudha
Bangalore - 560 001
2. The Bangalore Development Authority
Kumara Krupa Road
Bangalore
Represented by its Commissioner
3. The Special Land Acquisition Officer
Bangalore Development Authority
Bangalore ... Respondents
(Shri K.S.Mallikarjunaiah, HCGP for respondent No.1
Shri A.M.Vijay, Advocate for respondents 2 and 3 - Absent)
*****
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash and set aside the
provision especially those under Sections 4, 6, 12, 16, 18 and
23 of Land Acquisition Act, 1894 and the provisions especially
those under Sections 17, 18, 19 and 36 of the Bangalore
Development Authority Act, 1976 as ultra vires,
unconstitutional and violative of the fundamental rights of the
petitioners and the mandatory provisions of Clause 1(A) of the
Article 30 and other fundamental rights of the petitioners under
Articles 14, 19 and 26 of the Constitution of India, etc.
This Petition coming on for final hearing this day, the
Court made the following:-
ORDER
Heard the learned Senior Advocate Shri Udaya Holla, appearing for the petitioners and the learned counsel for the respondents.
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2. The petitioner - Society, namely, the Congregation of Sisters of St.Joseph of Lyons was established in the year 1906 and also registered as petitioner No.1 under the Societies Registration Act, 1860 by a Memorandum of Association dated 7.5.1946. It is a religious congregation and denomination and also an educational agency having established and administering a number of educational institutions for the benefit of the Catholic Christian community, as well as for others. It is stated that after coming into force, the provisions of the Constitution of India, the petitioners have been establishing such educational institutions in exercise of their fundamental right under Articles 30 and 26 of the Constitution of India.
3. In the year 1972, petitioner No.2, namely, Anudhavana - the Novitiate of Sisters of St.Joseph of Lyons was established by petitioner No.1 at Bangalore to impart religious and secular education to novices i.e. the would be nuns, as part of their training and formation to become full-fledged nuns. Since the -4- educational institution did not have its own land and building, it was temporarily started on Hutchins Road, Bangalore and eventually, purchased the land, which is the subject matter of the present petitions. The land measuring about 1 acre was situated in survey No.96/1 of Chellikere Village, Bangalore South Taluk and was purchased under a sale deed dated 8.4.1975. The same was converted for non-agricultural use vide Conversion Certificate dated 5.4.1972. The petitioners had then constructed buildings and other infrastructure.
4. In the year 1976, the Government of Karnataka issued a preliminary notification dated 21.3.1977 proposing to acquire vast extents of land including the petitioners for the purposes of Bangalore Development Authority under Section 17(1) and (3) of the Bangalore Development Authority Act, 1976, for the formation of layout called "Hennur Road and Banaswadi Road Layout". There was no notice issued to the petitioner - Society and the petitioner - Society remained unaware of the same. The notification was duly published in the Official Gazette on -5- 5.5.1977. The petitioners however had remained ignorant of the same.
5. The petitioner - Society is said to have made an application dated 19.9.1978 to the Special Deputy Commissioner requesting him to transfer the Conversion Certificate issued in favour of Smt.S.A.P.Doris in the favour of the petitioner - Society to facilitate the construction of the Novitiate buildings and also requested the Authority to extend the second clause by incorporating one more clause namely to add: 'Novitiate for St.Joseph's Lyons'. The petitioner - Society also approached the Tahasildar by letter dated 27.1.1979, requesting him to grant the necessary permission to obtain sanction for the building plan for the Novitiate buildings from the competent authority. This was forwarded to the Chairman, Banaswadi Panchayat by the Tahasildar as per memo dated 1.2.1979. The petitioners did obtain the approval of the plan and sanction from the said Chairman of the Group Panchayath, Banaswadi and accordingly, construction was put up and all -6- facilities such as electricity, water supply, etc. were obtained in respect of the said construction. The Bangalore Development Authority in turn, had issued a 'No Objection Certificate' in this regard, as per Annexure-'F' to the writ petition. In the meanwhile, the final Declaration followed the preliminary notification dated 14.5.1980 and was duly published in the Official Gazette as on 12.6.1980. The petitioners claim that they remained unaware of the said publication.
6. The petitioners, however, the institution that was proposed in the building commenced its functions and the residential quarters and other facilities appurtenant to the educational institutions. The petitioners had no inkling at the time of the construction of the buildings as to the phase of the acquisition proceedings, which were simultaneously on. The Land Acquisition Officer had issued a notification under Section 16(2) of the Land Acquisition Act, which was published in the Official Gazette on 8.9.1983. The petitioners' land was not included, the entire survey number was excluded -7- from the list of lands, of which possession is said to have been taken over for the aforesaid Scheme. A public notice is said to have been issued as on 7.2.1984, informing the public that the acquisition for 'Hennur Road and Banaswadi Road' and 'Old Madras Road and Banaswadi Road' layout had been notified. The survey number in which the petitioners' lands were situated was not found in the list. The lands notified were finally acquired and vested with the Bangalore Development Authority under the Scheme. Therefore, the petitioners were surprised to receive a notice dated 10.10.1986 along with the notice of the Award dated 22.9.1986, from the office of the Special Deputy Commissioner, Bangalore Development Authority purporting to be a notice of the Award dated 22.9.1986, fixing the compensation of Rs.2,71,942/- in respect of their land and directing the petitioner - Society to hand over possession of the land in question. Aggrieved by the same, the petitioners had filed a writ petition before this Court in W.P. No.18766/1986. There was an interim order restraining the respondent from taking possession of the land and the petitioners had therefore -8- continued in possession till the date of the present petition. However, while the above writ petition was pending, the petitioners were advised to prefer a representation under Section 18 of the Land Acquisition Act, without prejudice to the rights and contentions of the petitioners in the pending writ petition and accordingly, a representation was submitted. The writ petition in W.P. No.18766/1986, however, was dismissed by an order dated 1.7.1987 with the following observation:
"If the petitioner feels that the guidelines provided in Section 23 of the Land Acquisition Act do not conform to Article 30(1A) of the Constitution, it is open to the petitioner to challenge the validity of Section 23."
7. Aggrieved by that order, the petitioner - Society had filed a writ appeal before this Court in Writ Appeal No.1044/1987. In the meanwhile, the Bangalore Development Authority at its meeting held on 7.8.1987 resolved to recommend to the Government for reconveying the area where the Church building is put up in favour of the petitioner - Society and authorised the Commissioner to take further action -9- in this regard. The Commissioner, Bangalore Development Authority had in turn inspected the land and buildings as on 18.11.1987 along with an Engineer Member and had submitted a report and recommended that it was a fit case, whereby the petitioners' land and buildings could be deleted from the acquisition proceedings and the remaining portion of the land in the said survey number which had already been taken over could be utilised for formation of the layout. It is pursuant to the recommendation by the Commissioner, that the Bangalore Development Authority, at its meeting on 11.12.1987, resolved to refer the matter to the Government for a final decision. The Writ Appeal which was pending before this Court was disposed of by a judgment dated 15.10.1990, while reserving liberty to the petitioners to approach the State Government.
8. The respondent No.2 by a letter dated 2.1.1991 addressed the respondent No.1 regarding the proposal to denotify the land in survey No.96/1 in favour of the petitioner - Society and it was also endorsed that the actual possession continued to
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remain with the petitioner - Society, which is at Annexure-'S' to the writ petition.
9. The petitioners were engaged in further correspondence with the State Government as well as other authorities at which time, the Apex Court rendered its judgment in the case of SOCIETY OF ST.JOSEPH'S COLLEGE vs. UNION OF INDIA, (2002) 1 SCC 73. The Apex Court which was called upon to interpret the provisions of Clause 1A of the Article 30 of the Constitution of India opined that Clause 1A clearly stated that after the date of its introduction there must be a law that specifically relates to the compulsory acquisition of the property of minority educational institutions and that the law must make provisions that ensure that the amounts that are fixed or determined thereunder for the acquisitions are such as do not restrict or abrogate the right guaranteed under Article 30. And that such law must necessarily require the taking into account of factors that do not come into play in the determination of amounts payable in relation to the acquisition
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of the properties of others and are, therefore, not set out in the general acquisition statutes and the Apex Court was of the opinion that it was appropriate that Parliament and the State Legislatures would have time upto 31st May, 2002 to make such laws, if they choose and that pending and uncompleted acquisitions of properties of minority educational institutions should lapse only if at the end of such time the statutes under which the acquisitions had been commenced have not been duly amended.
10. The learned Senior Advocate Shri Udaya Holla would submit that the said declaration by the Supreme Court would apply on all fours to the present case on hand as the possession of the land and buildings in question has remained with the petitioners and in the absence of a law, either by the Parliament or by the State Legislature, in respect of minority institutions as declared by the Supreme Court not having been enacted, the acquisition proceedings in so far as the petitioner's property is
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concerned would clearly lapse. It is on this preliminary ground that the present petition is sought to be urged.
11. The learned counsel for the respondents vehemently contests the petition. It is contended on behalf of the Bangalore Development Authority that the petitioners have been precluded from challenging the acquisition proceedings since they had sought for enhancement of the compensation under Section 18 of the Land Acquisition Act, albeit with a qualified plea and therefore had acquiesced in the acquisition proceedings. It is in this background, the writ petition as well as the writ appeal were dismissed. The writ appeal was dismissed on 15.10.1990. There is no reference to the Declaration by the Supreme Court as aforesaid or as regards the legal position which would follow in the light of the said decision and the presence of any law providing for the acquisition of properties belonging to the minority educational institutions.
12. The learned Government Pleader would also draw attention to the said circumstance and would submit that the
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petitioners are precluded from challenging the acquisition proceedings.
13. This aspect of the matter is not suppressed by the petitioners and has in fact, narrated in the course of the petition itself. Therefore, whether the same could be a ground for rejecting the petition cannot be in controversy. The conduct of the petitioners as well as the Bangalore Development Authority subsequent to the disposal of the writ appeal, is relevant. In that, the Bangalore Development Authority as well as the State Government had proceeded to address the circumstance, whether the land could be conveniently acquired and utilised for the purposes of the Scheme and it is in that background that the Commissioner had submitted a report to the effect that it was not suitable and also recommended to the State Government to drop the same from the acquisition proceedings. This would take away the lacuna, if any, in the petitioners seeking to prosecute the writ proceedings, as well as, to seek compensation. By conduct and intention, the petitioners did not
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choose to pursue the claim for enhanced compensation and it is in that light that the Bangalore Development Authority considered denotifying of the lands in question. Therefore, there is no impediment for the petitioners to seek the benefit of the judgment of the Apex Court in holding that the Scheme, in so far as the petitioners' land would lapse by virtue of the State Legislature as well as the Parliament, not having enacted law as directed by the Apex Court.
14. In that view of the matter and in the light of the admitted circumstances, as is evident from the material on record that the possession of the petitioners' land has never been taken, it can safely be presumed that the acquisition proceedings in so far as the petitioners' land and buildings are concerned was not completed as on the relevant date specified by the Apex Court and accordingly, the acquisition proceedings and the Scheme contemplated under the acquisition proceedings, in so far as, the petitioners' land is concerned would lapse and accordingly, the writ petition stands allowed. It is declared that the petitioners
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are entitled to the benefit of the directions issued by the Hon'ble Supreme Court in the case of SOCIETY OF ST.JOSEPH'S COLLEGE vs. UNION OF INDIA, (2002) 1 SCC 73 and consequently the communication dated 20.8.2008, Annexure-'Z14' is quashed and accordingly, the acquisition in so far as the petitioners' lands are concerned would lapse.
Sd/-
JUDGE AHB