Karnataka High Court
Vijaya Bank Employees Housing ... vs Assistant Commissioner, Bangalore ... on 5 February, 2007
Equivalent citations: 2007 (3) AIR KAR R 151, 2007 A I H C 1823
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER V. Gopala Gowda, J.
1. The petitioner is Vijaya Bank Employees Housing Co-operative Society Ltd., (hereinafter called as 'Society' in short). It has filed this writ petition praying to quash the order at Annexure-A passed by the Assistant Commissioner. The Asst. Commissioner has set aside the mutation entry in MR No. 16/95-96 made in the name of the petitioner in respect of 1-00 acre of land bearing Sy. No. 134/1A of Bilekahally village, Bangalore South Taluk and ordered to restore the earlier entry standing in the names of Subbaiah Raju and Srinivasa Raju.
2 (i). The skeleton of facts that gave rise to this writ petition are, the 2nd respondent Subbaiah Raju and one Srinivasa Raju are the sons of one Chinnaiah Raju. Chinnaiah Raju purchased 1-00 acre of land in Sy. No. 134/3A1 under registered sale deed dated 21-3-1974. On the same day, one Mr. Narayanaswamy Raju purchased the remaining extent of land measuring 0-22 guntas of the same survey number.
ii) The land in question was acquired by the State Government for the petitioner to an extent of 1-00 acre as per final notification at Annexure-C dated 20-6-1985 issued under Section 6 of the Land Acquisition (Mysore Extension and Amendment) Act, 1961 (hereinafter called as L.A Act in short). In the said notification names of both purchasers of land, viz., Mr. Narayanaswamy and Chinnaiah Raju are shown. However, by another Notification at Annexure-B dated 8-8-1989, the acquisition of land has been withdrawn by the State Government to an extent of 0-20 guntas. Whose land is withdrawn from acquisition is not known because the names of both the purchasers are shown in that notification.
(iii) The notification dated 8-8-1989 withdrawing the acquisition of land was challenged by the petitioner in W.P. No. 18426/1989 but the same was rejected by this Court on 24-7-1989, again Writ Appeal No. 7909.1996 was filed, the same was allowed quashing the notification of withdrawing the acquisition. Award as per Annexure-R10 is passed by the Land Acquisition Officer for 1-00 acre. Petitioner claims that possession of the acquired land was taken on 29-9-1998 under Annexure-E. However, Notification dated 2-11-1988 under Section 16(2) of Land Acquisition Act is published in the Karnataka Gazette dated 24-11-1988.
iv) The acquisition proceedings were challenged by Srinivasa Raju, the brother of 2nd respondent and Mr. Narayanaswamy, but the same ended in failure (Reported in ILR 1989 Karnataka 376). The said Srinivasa Raju also filed suit in O.S. No. 4843/1988 against the petitioner and the same was compromised. As per the compromise, the petitioner gave 0-09 guntas of land to Srinivasa Raju. A sketch was part of the compromise petition and according to the petitioner, the 2nd respondent is a signatory to the said sketch, which is seriously disputed by him. There is also some civil litigation between the parties, with which we are not concerned for the purpose of disposing of this writ, petition.
v) When the Tahsildar of Bangalore South Taluk after passing an order entered the name of the petitioner in the revenue records, the 2nd respondent challenged the same in appeal before the Assistant Commissioner by filing an Appeal under Section 136(2) of the Karnataka Land Revenue Act of 1964 r/w Rules of 1966 (hereinafter called as KLR Act and Rules). The appeal was allowed by first respondent and the mutation entry made in the name of petitioner in respect of the land in question was set aside and the Asst. Commissioner ordered to restore the names of 2nd respondent and his brother in the RTC records. The correctness of the same is challenged by the petitioner in this writ petition urging various grounds.
3. Mr. Ravivarma Kumar, learned Senior Counsel for the petitioner contended that the order passed by the Asst. Commissioner on the appeal filed by second respondent questioning the mutation entry made in favour of the petitioner is a nullity in the eye of law as the appeal filed by him was belated and no application was filed to condone the delay in filing the Appeal but the Appeal was allowed by the Appellate Authority without condoning the delay. He has further submitted that since the acquisition proceedings in respect of the land in question became final, possession of the land was taken by the State and it has handed over to it on 29-09-1998 and therefore the petitioner became the owner of the land. That apart, the petitioner also acquired ownership of the land in question by virtue of the compromise entered into between the petitioner and Srinivasa Raju in O.S. No. 4843/1988. Therefore, he has contended that the mutation entry was made in the RTC records of the land in question in favour of the petitioner and therefore the Appellate Authority ought not to have set aside the order of mutation passed and the entries made in its name by the Revenue Officer. The order passed by the Asst. Commissioner is bad in law for the reasons stated supra and therefore learned Sr. counsel has contended that the same is liable to be quashed.
4. Mr. T.R. Subbanna, learned Senior Counsel for the 2nd respondent has justified the impugned order passed by the Appellant Authority and prayed for dismissal of the writ petition urging various legal contentions.
5. The issue involved in this matter revolves on a narrow compass. What had been acquired by the State Government under final notification was only 1-00 acre of land belonging to both Mr. Narayana Swamy and Late. Chinnaiah Raju father of respondent No. 3. Narayana Swamy is the owner of 0-22 guntas under the sale deed Annexure-R2, he and late Chinnaiah Raju have challenged the acquisition proceedings in the Writ Petitions which were dismissed on merits and those orders have become final. Therefore, it has to be held that the entire extent of 0-22 guntas of land belonging to Narayana Swamy is acquired. Out of the acquired 1-00 acre, the remaining extent should be construed as the land belonging to Late. Chinnaiah Raju, the father of 2nd respondent.
6. Under the document Annexure-F dated 8/8/1989 produced by the petitioner, the State Government withdrew from acquisition 0-20 guntas by issuing notification under Section 48 of the L.A Act. The same was challenged in W.P No. 18426/89 by the petitioner which came to be dismissed by this Court on 24/7/1996. The same was set aside in Writ Appeal No. 7909/1996 on 05/03/1998. Therefore, what has been really acquired is only 0-20 guntas of land of late Chinnaiah Raju and not 1-00 acre, and another 0-20 guntas of land must be treated as having belonged to Mr. Narayana Swamy.
7. Now, coming to the question of possession of the acquired land, the petitioner claims that possession of the acquired 1-00 acre was handed over to it on 29/9/1998 as per the document produced as Annexure-'E'. But from what has been narrated above, actually the acquired land of the second respondent is only 0-20 guntas. Now, it is to be seen whether the petitioner has taken possession of the acquired land in accordance with law. Petitioner has produced Annexure-E in proof of having taken over possession of the acquired land from the owners. That apart, notification under Section 16(2) of L.A. Act is also placed on record. According to that, possession of the acquired land was taken on 1/10/1988. The correctness of the same requires examination.
8. In the first place, as already stated above, the extent of actual acquisition of land of late Chinnaiah Raju the father of second respondent is only 0-20 guntas. But, possession claims to have been taken by the petitioner in respect of 1-00 acre. In the second place, Section 16(2) notification is dated 2/11/1988. It merely states that possession of acquired lands is taken by the Special Land Acquisition Officer. When he in turn handed over possession to the petitioner, is not forthcoming. In the third place, Section 16(2) notification is conflict with Annexure-E, which does not bear any date. In this document there is a reference to the order dated 23-9-1998 of Sub-Divisional Magistrate, Bangalore Sub-Division. As per this document possession was taken on 29-9-1998 by the Revenue Inspector/Tahsildar and handed over to the petitioner by the SLAO. This document does not bear the signature of any of the officers and the petitioner.
9. Under Section 16(2) of L.A. Act, the Deputy Commissioner of the District has to take possession of acquired land. That is not done in this case. In the absence of document that possession of the land was taken by the Deputy Commissioner of the District in accordance with law, no importance can be given to the notification issued under Section 16(2) which is produced by the petitioner, the said notification is also contrary to Annexure-E. That apart, when the acquisition of land of late Chinnaiah Raju is only 0-20 guntas, the possession of 1-00 acre could not have been taken. Mr. T.R. Subbanna, learned Senior Counsel for the 2nd respondent has rightly relied upon paragraphs 24, 25, 26 and 28 of the decision of the Apex Court (Balawant Narayan Bhagde v. M.D. Bhagwat) in support of his legal submissions that the possession of the land of Late Chinnaiah Raju was not taken by the State Government by following the procedure.
10. With regard to possession, in the impugned order at Annexure-A, the Assistant Commissioner disbelieved the claim of the petitioner who has stated as under:
Thus, though Notification under Section 16 of the Land Acquisition Act was issued on 2/11/1988 and published in the Karnataka Gazette on 24/11/1988 which specifically says that 1.00 acre of land was taken over on 1/10/1988, according to the factual position on spot, the possession and enjoyment of the land by the appellant is not altered muchless the possession of the land could not have handed over to the 2nd respondent-society"
x x x x In the instant case, as things stand, the appellant has not handed over possession of the land with its appurtenances such as residential house, garden etc., and even now he is continuing in possession and enjoyment of entire extent of land including that that portion of the land which is deleted under Section 48 of the Act and it is continued in possession and enjoyment of the Appellant himself. In such circumstances, particularly handing over possession of the land cannot be construed and that the right and title over the land held by the appellant cannot be infringed, particularly when Government has withdrawn the acquisition proceedings.
Since possession of the land is not taken over by the Deputy Commissioner of the District and handed over the same to the petitioner, the land does not vest with the State Government and title is not divested to the petitioner. In other words, petitioner has not acquired ownership rights upon the acquired land. Therefore, the Tahsildar of the Taluk ought not to have mutated the name of the petitioner in the revenue records in respect of the land in question. The Assistant Commissioner has rightly set aside the mutation entry made in favour of the petitioner and ordered to restore the names of the owners. Hence, no interference is warranted by this Court.
11. So far as the contention urged on behalf of the petitioner by the learned Sr. Counsel that there was delay in filing the appeal by 2nd respondent and without application for condonation of the same and without condoning the delay the Assistant Commissioner could not have passed the impugned order is concerned, technically it is correct. But, it is only a procedural irregularity committed by the Asst. Commissioner and no thing else. The order of Asst. Commissioner is nothing but rectification of the illegality in passing the order by the Tahsildar in respect of the land in question in favour of the petitioner. For the reasons stated supra, since the petitioner has not acquired ownership right over the land in question, it cannot take such technical contention regarding the impugned order. A wrong action of the Revenue Officer cannot be allowed to continue or allowed to perpetuate the illegality committed by him in mutating the name of the petitioner in respect of the property in question as it did not acquire any right. Even though no application was filed by second respondent in the Appeal to condone the delay in filing the appeal, in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution, I formally condone the said delay in filing the Appeal by exercising the Appellate Jurisdiction of the first respondent, which is permissible in law, as held by the Apex Court in the case of Gujarath Steel Tubes Ltd. v. Its Mazdoor Sabha which is extracted hereunder.
79. The basis of this submission, as we conceive it, is the traditional limitations woven around high prerogative writs. Without examining the correctness of this limitation, we disregard it because while Article 226 has been inspired by the royal writs its sweep and scope exceed hide-bound British processes of yore. We are what we are because our Constitution framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our conditions. Heritage cannot hamstring nor custom constrict where the language used is wisely wide. The British paradigms are not necessarily models in the Indian Republic. So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power.
12. It is necessary to look into what the petitioner has stated in the writ petition. In paragraph 6 of the writ petition, the petitioner has averred as under:
xxx the Special Land Acquisition Officer took possession of the said land measuring 1 acre in Sy. No. 134/3A1 belonging to Srinivas Raju on 29/9/1988. The possession of the said land along with the other land were handed over to the petitioner society by the Special Land Acquisition Officer on 1/10/1988. The certificate evidencing the handing over of possession of the said land to the petitioner is produced herewith as ANNEXURE-E. (emphasis supplied) In Annexure-E it is mentioned that possession was taken on 29-9-1998. Probably the year is wrongly typed as 1998 instead of 1988. But there is also reference to the order of Sub-Divisional Magistrate dated 23-9-1998. Even if this is also considered to be a typographical error, Section 47 of L.A. Act is mentioned which reads as under:
47. Magistrates to enforce surrender:- If the Collector is opposed or impeded in taking possession under this Act of any land, he shall, if a Magistrate, enforce the surrender of the land to himself, and, if not a Magistrate, he shall apply to a Magistrate or (within the towns of Calcutta, Madras and Bombay) to the Commissioner of Police, and such Magistrate or Commissioner (as the case may be) shall enforce the surrender of the land to the Collector).
The above provision pertains to exercise of power to enforce surrender of land and does not pertain to taking over possession of land.
13. In Annexure-F the person who took possession is the Revenue Inspector/Tahsildar. He is not the competent officer to take possession of the acquired land. Under Section 16(2) of L.A. Act, the Deputy Commissioner has to take possession of the acquired land. It is well-settled principle that if a statute prescribes a certain thing to be done in a particular manner, the same shall be done in that manner or not at all as held by the Apex Court in the case (Babu Verghese v. Bar Council of Kerala) paras 31 & 32 which paragraphs are extracted hereunder:
31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor (1875) 1 Ch. D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor 63 Ind App 372 : AIR 1936 PC 253 who stated as under:
Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh and again in Deep Chand v. State of Rajasthan . These cases were considered by a Three Judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh and the rule laid down in Nazir Ahmad's case (supra) was again upheld. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law.
That apart, while Section 16(2) L.A Act notification shows the extent of possession taken over is 1-00 acre. In Annexure-E the extent is shown as 0-20 guntas. Possession of 1-00 acre of land obviously could not have been taken for the reasons already mentioned above. In that view of the matter also, Section 16(2) notification cannot be believed as the correct document. Considering all these factual aspects of the case, I hold that possession of the land in question was not at all taken in accordance with law either by the Deputy Commissioner or Revenue Inspector/Tahsildar. Therefore, the plea of the petitioner regarding taking over possession of the land in question by them, is factually incorrect and untenable in law and the same is rejected.
14. For the reasons stated by me in this order the various legal contentions urged by the learned Senior Counsel on behalf of the petitioner is wholly untenable in law, liable to be rejected and accordingly rejected. In the facts and circumstances of the case no relief can be granted to the petitioner. The Writ Petition is devoid of merit and deserves to be dismissed.
15. Accordingly, the Writ Petition is dismissed.