Karnataka High Court
Dr Talavane Krishna vs State Of Karnataka on 1 April, 2013
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P.Nos.17372-17373/2012 &
W.P.Nos. 18795-799/2012 (LA-UDA)
BETWEEN:
1. DR TALAVANE KRISHNA
S/O. T. THIMMAPPAIAH
AGED ABOUT 61 YEARS
INDUS VALLEY AYURVEDIC CENTRE,
TALAVANE FARM, LALITHADRIPURA,
MYSORE-570 010
2. SMT. JAYALAKSHMI
W/O SRI VENUGOPAL,
AGED ABOUT 68 YEARS
NO.1845, K BLOCK, 1ST STAGE,
KUVEMPUNAGAR
MYSORE-570 023 ... PETITIONERS
(BY SRI G KRISHNA MURTHY, ADV.)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF URBAN
DEVELOPMENT,
NO.435, 4TH FLOOR,
VIKASA SOUDHA,
BANGALORE-560 001
REP. BY ITS SECRETARY.
2. MYSORE URBAN
DEVELOPMENT AUTHORITY
MYSORE
REP. BY ITS COMMISSIONER
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3. THE SPECIAL LAND ACQUISITION OFFICER
MYSORE URBAN
DEVELOPMENT AUTHORITY
MSYORE ... RESPONDENTS
(BY SRI T P VIVEKANANDA, ADV. FOR
SRI P S MANJUNATH FOR R2
SRI H VENKATESH DODDERI, AGA. FOR R1 & 3)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 28.4.12 PASSED BY R1 IN
FILE/RECORD NO. UDD 59 MUDA 2010 VIDE ANNX-Y; QUASH
THE PRELIMINARY NOTIFICATION DATED 3.4.06 PASSED BY
THE MYSORE URBAN DEVELOPMENT AUTHORITY VIDE ANNX-J
IN SO FAR AS IT RELATES TO THE PETITION SCHEDULE
PROPERTIES OR IN THE ALTERNATIVE, DIRECT THE
RESPONDENTS TO DROP THE ACQUISITION PROCEEDINGS IN
RESPECT OF THE SCHEDULE PROPERTIES.
THESE WRIT PETITIONS ARE HAVING BEEN RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
ORDER
The petitioners are before this Court assailing the order dated 28.04.2012 passed by the first respondent as also the preliminary notification dated 03.04.2006 issued by the Mysore Urban Development Authority (MUDA for short) which are impugned at Annexures-Y and J respectively.
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2. The first petitioner claims to be the owner of the property measuring 23 acres 21 guntas in Sy.No.4 Kurubarahalli and another extent of 4 acres 10 guntas in the same survey number and 30 guntas in Sy.No.41 of Alanahalli village having purchased the same under registered sale deeds. The second petitioner claims to be the owner of property measuring 4 acres 30 guntas in Sy.No.4 of Kurubarahalli and 10 guntas in Sy.No.41 of Alanahalli. The first petitioner is a medical practitioner and has served in different capacities in USA, Canada and UK for about 30 years. In 1994 he returned to India with the intention to establish a World class Ayurvedic Centre. It is in that context, he purchased the properties indicated in Schedule-A and the second petitioner agreed to sell the property mentioned in Schedule-B to the first petitioner.
3. The first respondent is stated to have issued an order dated 05.03.1988 constituting a committee to identify financial resources and to evaluate the time frame for various stage of Nehru Loka Plan. The properties which are the subject matter herein were also 4 the part of the Nehru Loka Plan. In that regard, the Karnataka Exhibition Authority was authorised to perform the functions. The first petitioner accordingly sought 'no objection' from Nehru Loka Pradhikara to establish Ayurvedic Centre which issued the 'no objection' on 23.09.1996 to establish Ayurvedic Centre. The first petitioner thereafter obtained permission and sanction of the plan to establish the Ayurvedic Centre which was established as Hospital-cum-Research centre in the name and style Indus Valley Ayurvedic Centre which is spread out in various blocks in the property which is the subject matter and a sum of more than Rs.8 crores has been invested for establishment as well as planting rare species of medicinal plants and other plants which are in the verge of becoming extinct.
4. When this was the position, the second respondent issued a notification dated 03.04.2006 under Section 17(1) of the Karnataka Urban Development Authorities Act, 1987 ('KUDA Act' for short). The name of the first petitioner had not been 5 indicated despite the khatha being in favour of the first petitioner. The first petitioner challenged the notification in W.P.No.11199/2008 along with the owner of the adjacent properties Smt.H.B.Sulochana Balaram Bhat. The petition was disposed of on 19.01.2009 allowing liberty to the petitioner to file his objections to the preliminary notification which would be considered by the second respondent herein. The first petitioner and the said Smt.H.B.Sulochana Balaram Bhat submitted their representations to the Land Acquisition Officer to drop the proceedings. The first respondent on consideration of the same have dropped the proceedings relating to the property belonging to Smt.Sulochana Balaram Bhat by order dated 05.03.2009 but, the case of the first petitioner has not been considered favourably. The instance of similar requests made by certain other land owners viz., Smt.Nagarathnamma, Sri L.K.Nanjaraja Urs, Sri Manoharlal Jain and several others and the same being considered favourably by the Government is also referred to. While doing so, the Government is stated to 6 have taken into consideration the lack of funds for payment of compensation and as such the same not being viable is averred by the petitioner. Despite the first petitioner having established a well equipped Ayurvedic Centre, the same has not received a favourable consideration by the first respondent. On the other hand the endorsement dated 10.08.2009 was issued indicating that the request of the petitioner cannot be considered. The petitioners assailed the said endorsement in W.P.Nos.38040-46/2009. This Court while disposing of the petition on 27.01.2011 has quashed the endorsement and liberty was granted to the petitioner to file a representation to the first respondent to consider the request to drop the land from acquisition proceedings. Thereafter the petitioner has filed a written submission before the authorities along with the supporting documents as Annexures. The second respondent filed their reply along with the documents relied upon by them. The first respondent having considered the matter has passed the order dated 28.04.2012 rejecting the representation of the 7 petitioner. The petitioner is therefore assailing the said order and also the preliminary notification which is the basis for acquiring the property with which the petitioner is aggrieved.
5. Even prior to the same, the Deputy Commissioner is stated to have issued an official memorandum dated 23.05.2011 directing to enter the revenue entries as 'B' Kharab in the RTC. The same has been separately challenged by the petitioner in W.P.Nos.12979-83/2012.
6. The first respondent has filed the objection statement seeking to justify their action and to sustain the order dated 28.04.2012. It has been stated that the Government had issued a circular on 29.01.1998 directing all the authorities including the Urban Development Authorities to secure prior approval for the proposed scheme with full details in accordance with law before issuing notification under Section 17(1) of the KUDA Act. The second respondent issued the notification on 03.04.2006 for acquisition of land for the 8 purpose of park and open space without such approval. The challenge made by the petitioner in the earlier petition in W.P.No.11199/2008 and the representation being permitted has been adverted to. The case of Smt.Sulochana Balaram Bhat being considered favourably is not disputed. The consideration made subsequent to disposal of W.P.Nos.38040-46/2009 and the present impugned order being passed is referred and the consideration made is adverted to. It is contended that the consideration which has gone into their decision is the comparison of the land with the land of the other persons whose cases were considered. The first petitioner having obtained the permission from unconnected bodies for establishment of the Ayurvedic Centre cannot claim equity. The location of the land as compared to the extent of the property which is sought to be acquired, the deletion of the same would affect the project are the matters which have weighed against the petitioner. It is also stated that the petitioners could have taken up development works in the property only if the permission had been obtained from MUDA. The 9 respondents also question the locus-standi of the petitioner since the property has already been entered as 'B' Kharab. In that view, they have sought for dismissal of the petition.
7. Heard the learned counsel for the parties and perused the petition papers.
8. Since the petitioners have assailed the preliminary notification dated 03.04.2006, the contentions in that regard requires to be noticed at the outset. If the contentions to challenge the said notification is accepted, the challenge to the order dated 28.04.2012 would not be necessary to be gone into. Hence it is necessary to consider the second prayer made in the petition at the outset.
9. Learned counsel for the petitioners while assailing the said notification has contended that prior to issue of the said notification, the sanction of the scheme had not been obtained nor is there application of mind with regard to the availability of funds for implementing such a huge project and therefore the 10 very issue of preliminary notification is contrary to law. Hence it is contended that though in normal circumstance the Court would not interfere with the preliminary notification as opportunity would be available for filing objections, in the instant case, the position being otherwise, it calls for interference.
10. The learned counsel for the second respondent on the other hand would contend that a petition challenging the preliminary notification would have to be treated as premature since it is only a proposal to acquire the lands indicated therein and on the objections being filed, the necessity or otherwise for including such lands in the final notification in any event would be considered by the Land Acquisition Officer and as such, it would not arise for consideration before this Court. It is also pointed out that the petitioner in his earlier attempts to challenge the preliminary notification has failed before this Court when this Court had held that the petitioner can file his objections to the preliminary notification and in such 11 circumstance, the petitioner cannot once over again assail the preliminary notification.
11. On the above noticed rival contentions, the learned counsel for the petitioner has relied on the decisions in the case of The Collector (Dist. Magistrate), Allahabad and another vs. Raja Ram Jaiswal (AIR 1985 SC 1622) and in the case of Metro Theatre, Bombay Ltd and another vs. Union of India and others (AIR 1988 Bombay 183) to contend that refusal to examine a preliminary notification though is the normal practice, it can certainly be looked into even at that stage by the Courts in the circumstances explained therein. The learned Government Advocate has on the other hand relied on the decision in the case of B.Laxminarayana vs. State of Karnataka and others [AIR 1985 NOC 64 (Kant)] and in the case of HMT Ltd vs. Mudappa and others [2007(9) SCC 768] to contend that this Court would not interfere at the stage of issue of preliminary notification as the 12 acquisition would not have fructified at that stage as it is only a proposal to acquire.
12. A cumulative understanding of the above cited judgments would indicate that as a normal rule, the Court would not interfere with the preliminary notification as opportunity would be available to the land owner to put forth all contentions in opposition to the proposal for acquisition, before the Land Acquisition Officer who would be the competent authority to consider such objections and arrive at the conclusion. However, in certain circumstances, it would also be open for the Court to interfere even at that stage, when fraud on power is noticed but such discretion would be exercised sparingly. Hence, in the present situation, the question is as to whether this Court should examine the matter further on that aspect relating to the validity or otherwise of the preliminary notification.
13. While noticing this aspect, the fact that the petitioner challenged the very preliminary notification dated 03.04.2006 in W.P.No.11199/2008 is the 13 admitted position. The contention with regard to the scheme not being approved by the Government was also a contention in the said writ petition. Despite the said contentions and the other contentions having been urged therein, this Court was categorical in its conclusion that the petition is premature at that stage and had allowed the Land Acquisition Officer to consider the objections and also to take note of the fact that the petitioner herein is an Ayurvedic Centre. An endorsement issued thereafter brought the petitioners back to this Court. Even in the second petition filed in W.P.Nos.38040-46/2009, the petitioners apart from challenging the endorsement dated 10.08.2009 had also questioned the preliminary notification dated 03.04.2006. In the said petition also, this Court did not go into the question relating to the validity or otherwise of the preliminary notification but had only quashed the endorsement dated 10.08.2009 issued by the first respondent.
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14. Therefore, irrespective of the legal position pointed out by the learned counsel for the petitioner by relying on the decisions cited supra, in the very facts of the instant case, when this Court on two earlier occasions has not interfered with the preliminary notification dated 03.04.2006 more particularly in the first instance, the challenge to the said notification was termed as premature, judicial discipline would require that this Court on the same set of facts and that too between the same parties, will not re-examine the issue to the said extent of the challenge made to the preliminary notification since the Land Acquisition Officer is yet to consider the objections filed by the petitioner. Further, the order dated 23.11.2012 passed by this Court in W.P.Nos.47075-76/2011 relied on by the learned counsel for the second respondent will disclose that the challenge to the same preliminary notification dated 03.04.2006 has been held as premature. Hence, the prayer (b) made in the instant petition laying challenge to the preliminary notification dated 03.04.2006 would not arise for consideration for 15 the same reasons assigned in the earlier orders of this Court.
15. Having said so, the question that could still be considered herein is with regard to the validity or otherwise of the order dated 28.04.2012 passed by the first respondent. In this regard, the learned counsel for the petitioner on referring to the order passed by the first respondent in the case of Smt.H.B.Sulochana Balaram Bhat on 05.03.2009 and also the orders passed in the case of certain other land owners which are at Annexures-M and N series wherein the first respondent has directed the second respondent to delete the properties indicated from the said notification to contend that the similarly situated owners have been treated differently which would amount to discrimination. The decisions in the case of Tata Cellular vs. Union of India (AIR 1996 SC 11) and in the case of Om Kumar and others vs. Union of India (AIR 2000 SC 3689) are relied on to support the power of judicial review when there is arbitrary exercise of 16 power by the authorities. In that view, it is contended that the impugned order is not only contrary to the fact situation with regard to the nature of the lands and development that has been carried out by the first petitioner, but is also contrary to the circular (Annexure-O) and the communication (Annexure-P) which would require that fertile land and green areas including plantations should not be included for the purpose of acquisition.
16. The learned Government Advocate and the learned counsel for the second respondent would however contend that the petitioner cannot seek for equal treatment along with certain other persons even if they have been given any benefit under the directions issued by the first respondent to the second respondent. It is contended that as per Section 17 of KUDA Act the notification would be issued by the Development authority after the decision under Section 15 of the Act and till the process of acquisition is completed, it is the second respondent who alone would have the authority 17 to delete or proceed further. The approval under Section 18 of the Act is to be obtained thereafter. Only when the stage of exercising the power under Section 48 of the Land Acquisition Act arises, the Government would have a role to play and not until then. Hence, even the benefit granted to certain other land owners by the first respondent, if given to the petitioner merely because it is given to others, it would only amount to perpetuating the illegality. It is therefore contended that the first respondent considering the request of the petitioner would not arise and it is for the first petitioner to put forth all contentions before the Land Acquisition Officer by way of objections to the preliminary notification which would be considered in accordance with law.
17. The learned Government Advocate has also relied on the decisions in the case of Subashgir Khushalgir Gosavi and ors vs. SLAO and ors [(1996)8 SCC 282] and in the case of Ramiklal N.Bhutta and another vs. State of Maharashtra and 18 ors [(1997)1 SCC 134] to contend that it is for the acquiring authority to choose the location of the land sought to be acquired and the Courts have no role to play in that regard. The decision in the case of Anand Buttons Ltd. Vs. State of Haryana and others [(2005)9 SCC 164] wherein it is held that if exemption granted to one party is wrong, the same benefit cannot be sought as two wrongs will not make one right is relied to contend that the petitioner cannot seek for equal treatment.
18. Though the above contentions have been put forth by the learned counsel for the respondents, the denial of the role to be played by the first respondent at this stage and that no order can be passed by them as it is presently within the power and in the domain of the second respondent cannot be accepted at this juncture in the facts of the present case inasmuch as this Court while disposing of W.P.Nos.38040-46/2009 by the order dated 27.01.2011 had granted the liberty to the first petitioner to make the representation to the first 19 respondent seeking to drop the lands from acquisition, a copy of the same was also permitted to be submitted to the second respondent and a direction was issued to the respondents to consider the same and take a decision in the matter in accordance with law. That too, such direction was issued after quashing the endorsement dated 10.08.2009. Neither the first respondent nor the second respondent have felt aggrieved by the liberty granted and the direction issued to consider the representation. On the other hand, the second respondent has participated in the proceedings relating to consideration of the representation and it is not as if the first respondent has disposed of the representation by indicating that it has no jurisdiction to do so. Instead, the first respondent has taken note of the contentions put forth by the first petitioner and the second respondent and has thereafter passed the impugned order by adjudicating upon the rival contentions. Therefore, the contention that they cannot interfere at this stage cannot be accepted. 20
19. That apart the first respondent themselves having passed the earlier orders in favour of certain land owners and when such orders still remain in force, they cannot by themselves contend that if any order is passed by them, it would amount to perpetuating the illegality while objecting to the contention on behalf of the petitioners regarding discrimination when they have not taken any steps to rectify, if the earlier orders were illegal. Further, the learned counsel for the second respondent, in response to a pointed question posed by this Court as to whether the second respondent would make a statement that the orders passed by the Government in favour of the other land owners would not be followed by them as illegal orders or as not binding on them, was unable to state before this Court categorically that such orders would not be followed. Hence, when benefits in respect of the same transactions have been granted by the first respondent more particularly in a circumstance where deletion of lands have been sought, the case of the petitioner cannot be foreclosed only because the respondents are 21 presently contending that the first respondent would not have any authority at this juncture, moreso when the order of the first respondent passed on merits is in issue before this Court. The respondents however may be entitled to justify as to why they cannot be considered as similarly placed. Hence, the decision relied on in that regard will not be of assistance.
20. In this background, the correctness or otherwise of the impugned order dated 28.04.2012 (Annexure-Y) and as to whether any directions are required herein needs to be examined. A perusal of the order would indicate that the major portion of the narration therein is with regard to the request that has been made by the petitioner and the references to the circumstances wherein the deletion of lands relating to certain other land owners has been made. The reason indicated to treat the instant lands differently, it has been stated that from the perusal of the photographs and spot inspection report, the lands are not similar. It is also indicated that insofar as the improvements made 22 by the petitioner, the approval has been obtained by the authorities who were not competent. Reference is made to the indication as 'B' Kharab and in that regard, the observation relating to locus-standi made in an earlier petition is referred to.
21. On the last aspect as noticed from the order itself, reference has been made to the pending writ appeal and as such that in itself was sufficient for the first respondent not to rely upon such observations which is yet to attain finality. With regard to the conclusion reached by the first respondent that the lands are not similar to the ones which have been deleted, the learned Government Advocate sought to rely on the spot inspection report dated 12.05.2011. The said spot inspection report is available as a part of Annexure-X to the writ petition from which it is pointed out that the main consideration is the factual aspect that the lands in question are situate in the middle portion of the total extent which have been proposed to 23 be acquired. Hence it is contended that if the lands in question are excluded, it would affect the project.
22. As noticed, the impugned order itself has taken note of the contention that several other lands have been excluded. The only indication in the order is that they are not similar as seen from the photograph and the spot inspection report and it is stated that it is in the middle of the project. At the outset, what cannot be disputed is that the property belonging to Smt.H.B.Sulochana Balaram Bhat is adjacent to the property belonging to the petitioner and they were before this Court together in the earlier petition. If that position is kept in view, the said land measuring 4 acres 20 guntas which has been permitted to be deleted by the communication dated 05.03.2009 also would be situate in the middle of the project. Similarly the other extents of the land belonging to the other land owners as indicated from Annexures-N series has also been deleted. Hence, insofar as the location the first respondent was required to consider this aspect also when the contention in that regard has been noticed. 24 Therefore, the order should have disclosed the actual location of the other lands which were deleted and as to how that would not affect the project for the reasons to be stated and only thereafter there could have been a conclusion that the deletion of the lands of the petitioner would have affected the project due to its location.
23. That apart, while deleting the lands of one Sri H.Manoharlal Jain, the consideration therein was that there are coconut, mango, silver oak and teak trees as also house and borewell. The very spot inspection report relied upon would indicate the existence of the facilities in the lands is question including 1500 Ayurvedic trees. Despite these aspects, the reasons to differentiate the land belonging to the petitioner in that sense is not forthcoming. Furthermore, to conclude that it is located in the middle and would affect the project, the very nature of the project, the way in which it has been planned and as to how the deletion would affect the project are all considerations which would have mattered for the ultimate conclusion. Though the 25 learned Government Advocate has sought to rely on the decisions noticed supra to contend that the choice of the place would be at the discretion of the authority, the instant situation is not one such case where the respondents are seeking to complete a project at a place and the choice of the location is being questioned. The petitioner on the other hand is seeking similar treatment with other citizens who in respect of the very same project have been considered worthy of being acceded to their request for excluding their lands more particularly in a circumstance where the proposed acquisition is only for the purpose of maintaining an open green space and to achieve the same, as part of the project, the case of the said land owners has been considered with the condition to maintain it as a green area which condition the petitioner is also prepared to adhere. No doubt, these are all aspects which in a normal circumstance would have been considered by the Land Acquisition Officer while taking note of the objections to the preliminary notification, but in the instant case, the consideration in the case of others has 26 been made by the first respondent. Even in the case of petitioners, when the second respondent's version has been taken note of and a decision is taken by the first respondent against the petitioner, the consideration of the same objection by the Land Acquisition Officer will be an empty formality. Therefore, an objective consideration by the first respondent is imminent.
24. One other aspect which also is to be noticed is that though the petitioner contends that the scheme has not been approved as provided under Section 18 of the KUDA Act, the learned counsel for the second respondent would point out that the said procedure is contemplated after the representations are considered pursuant to the notification under Section 17 of the Act. It is also pointed out that under Section 15, the second respondent authority has the power to undertake work and incur expenditure from its resources. In this background, the averment in the objection statement of the first respondent would also be relevant. It is stated that the Government had issued a circular on 27 29.01.1998 directing all the authorities including Urban Development Authority to secure prior approval for the proposed scheme with full details in accordance with law from the Government before issuing notification under Section 17(1) of the KUDA Act. If that be the position, the first respondent was required to apply its mind to this aspect of the matter as well. In the instant case, the acquisition proposed is for park and open space and a vast extent of about 579 acres is sought to be acquired. The second respondent would not be developing the property as a layout and allotting the sites as in a normal case, so as to recover the costs of the acquisition and implementation which would be included in the allotment price sought from the allottees. In that view, in the instant case, keeping in perspective the nature of the project, the entire costs incurred would be an expenditure without provision for recovery of the same. In such event, the financial implication which will include land cost and malkies was also one of the aspects which require consideration towards viability of the project. The impugned order 28 does not refer to these aspects also. Hence, the matter requires consideration at the hands of the first respondent.
25. In the result, the following:
ORDER
i) The petition is allowed in part.
ii) The order dated 28.04.2012 (Annexure-Y) is quashed. The matter is remitted to the first respondent to reconsider the same afresh and in accordance with law.
iii) Until the same is considered, the issue shall not be precipitated.
iv) Parties to bear their own costs.
Sd/-
JUDGE
Akc/bms