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1984 DIGILAW 332 (KAR)

KARIYAPPA v. DEPUTY COMMISSIONER

1984-11-02

HAKEEM, JAGANNATHA SHETTY

body1984
K. A. SWAMI, J. ( 1 ) IN this Petition under Article 226 of the Constitution, the Petitioner has challenged the validity of the notifications issued under Section 3 (1) and Section 3 (3) of the Karnataka Acquisition of lands for Grant of House Sites Act, 1972 (hereinafter referred to as 'the Act') acquiring the land in question bearing No. 192/la situated at Innorugollahalli Village, Kanakapura Taluk, bangalore, belonging to the Petitioner. ( 2 ) . Rangaraj, the learned Counsel for the Petitioner, urged the following contentions for consideration : (i) that the preliminary notification is vitiated and is liable to be quashed as respondents 1 to 3 have not followed the guidelines issued by the State Government for the purpose of proposing the land for acquisition; and (ii) that the notification issued under Section 3 (4) of the Act, is vitiated as the Deputy commissioner has not passed the order in accordance with the provisions of Section 3 (3) of the act. There is no difficulty in accepting the second contention in view of the fact that the order passed "by the Deputy Commissioner under Section 3 (3) of the Act, is a cyclostyled order and the same has been passed without considering the objections raised by the Petitioner. ( 3 ) IT has been held by this Court in more than one case that the Deputy Commissioner, while passing an order under Section 3 (3) of the Act, is required to consider each and every objection raised by the persons interested in the land proposed for acquisition and he must give reasons for overruling the same. The learned Government Advocate has made available the records of the case and from the records, it is found that the order passed under Section 3 (3) of the Act, is not a valid order inasmuch as it is passed without considering the objections raised by the Petitioner. Therefore, on this ground, the notification issued under Section 3 (4) of the Act, which is issued pursuant to the order passed under Section 3 (3) of the Act, cannot at all be sustained. ( 4 ) THE first contention of the Learned Counsel is that the notification issued under Section 3 (1) of the Act, is vitiated because of the fact that respondents 1 and 2 have not followed the guidelines issued by the State Government under its order No. DPC. ( 4 ) THE first contention of the Learned Counsel is that the notification issued under Section 3 (1) of the Act, is vitiated because of the fact that respondents 1 and 2 have not followed the guidelines issued by the State Government under its order No. DPC. 15 DRH 72, dated 13-5-1972 before proposing the land in question for acquisition. It is not in dispute that the aforesaid guidelines issued by the State Government have not been followed while proposing the land in question for acquisition, but, however the Learned II Additional Government Advocate appearing for respondents submitted that the said guidelines are not enforceable as they do not have the force of law and they are only intended to serve as departmental instructions to the concerned officers and not intended to create any enforceable right in the persons interested in the lands proposed for acquisition. It was also further contended that neither the Act nor the rules framed thereunder, authorise the State Government to issue such guidelines. Therefore, the violation of those instructions will not render the acquisition made in accordance with law, illegal. But, the Learned Counsel for the Petitioner, in this regard relied upon the decision of a division Bench of this Court in Writ Appeal No. 150/80, dated 22-1-1980, State -v.- Munireddy. That was a case which arose out of the acquisition proceedings initiated under the provisions of the Act. The Learned Single Judge, in W. P. 8311 of 1978, Munireddy -v.- State held that the notification issued under Section 3 (1) of the Act was vitiated because the guidelines referred to above, were not followed. The decision of the Learned Single Judge has been affirmed by a division Bench in the aforesaid Writ Appeal in the following words : "since the authorities have not followed the guidelines issued by the Government, the learned single Judge was right in quashing the impunged notifications. " The compulsory acquisition of land belonging to a citizen cannot be made except in accordance with the law made in that regard. The law that is made governing the acquisition of the land in question in this case, is the Act referred to above. There is no provision either in the Act or in the rules framed thereunder, empowering the State Government to issue the guidelines in question. The law that is made governing the acquisition of the land in question in this case, is the Act referred to above. There is no provision either in the Act or in the rules framed thereunder, empowering the State Government to issue the guidelines in question. It may be, the concerned officer being an officer under the control of the Government is required to follow the guidelines and in the case of failure on the part of the officer to follow the guidelines, the State Government may direct the Deputy Commissioner to drop the acquisition or cancel the Notification issued under Section 3 (1) of the Act ; but it is not possible to hold that if the guidelines are not followed the person interested in the land proposed for acquisition can enforce the guidelines in a Court of law and on that basis, the Notification issued under Section 3 (1) of the Act, can be held to be illegal by the Court. If the acquisition proceedings are in accordance with the provisions of the Act and the Rules framed thereunder and such acquisition proceedings might have been initiated without following the aforesaid guidelines but such acquisition proceedings cannot be quashed on the ground that the guidelines have not been followed. The guidelines in question do not have the force of law, as such, the same cannot at all be enforced in a Court of Law Hence, it is not possible to hold that the Notification issued under section 3 (1) of the Act, is contrary to law as such, it is liable to be quashed on the ground that it is issued without following the guidelines in question. Therefore, with great respect, I find it difficult to pursuade myself to agree with the view taken by the learned Single Judge in Writ petition No. 8311 of 1978 and affirmed by the learned Judges of the Division Bench in Writ appeal No. 150 of 1980. Hence, I refer this case to a Division, Bench. 1. This Writ Petition has come up before us upon reference made by K. A. Swami, J. , casting doubts on the correctness of the view taken by this Court in Muni Reddy -v.-The State of karnataka (W. P. No 8311 of 1978 - disposed of on September 19, 1979) and affirmed in Writ appeal No. 150 of 1980 (The State -v.- Muni Reddy ). 2. 2. The land belonging to the Petitioner has been acquired under the Karnataka Acquisition of lands for Grant of House Sites Act, 1972 ('the Act' ). With regard to acquisition of lands under the Act, the State has issued certain guidelines under the order dated May 13, 1972. In this case, those guidelines have been admittedly not followed by the authorities, who have acquired the land of Petitioner. The Petitioner, therefore, has moved this Court, challenging the validity of the acquisition. 3. The Learned Single Judge after perusing the relevant records has observed that the order passed by the Deputy Commissioner under Section 3 (3) of the Act was invalid since it was a cyclostyled order without considering the objections raised by the Petitioner. Before the Learned single Judge, the Petitioner also contended that the notification issued under Section 3 (1) of the act was vitiated since the authorities have not followed the said guidelines laid down by the government. In support of this contention, reliance was placed on the decision of this Court in muni Reddy's case. It was in this context the learned Judge has observed that the said guidelines are not enforceable in the Court of law and the validity of the acquisition which is otherwise in accordance with the Act, cannot be quashed mainly on the ground that the authorities have not followed the guidelines prescribed for the purpose of acquisition. So stating, the learned Judge, doubting the correctness of the view taken in Muni Reddy's case has referred the matter for disposal by a Division Bench. 4. In Union of India -v.- K. P. Joseph, AIR1973 SC 303 , (1973 )1 scc194 , [1973 ]2 SCR752 , 1973 (1 )SLJ1 (SC ) Mathew, J. , speaking for the Supreme Court observed : "generally speaking, an administrative order confers no judiciable right, but this rule like all other rules is subject to exceptions. " the learned Judge went on to add : "'to say that an administrative order can never confer any right would be too wide a proposition. These are administrative orders which confer rights and impose duties. " the learned Judge went on to add : "'to say that an administrative order can never confer any right would be too wide a proposition. These are administrative orders which confer rights and impose duties. " in Acchanaika -v.- The State of Mysore and Another, W. P. 1426 of 1973 dated 10-7-1974 it was observed by one of us (Jagannatha Shetty, J.) that the aggrieved person is entitled to submit in this Court that if a relevant circular governing the acquisition of lands, though without force of law, had been considered by the Deputy Commissioner, his opinion would have been different and he would not have issued the notification under Section 3 (4) of the Act. There, the notification issued under Section 3 (4) of the Act was quashed. We have perused the order in Writ Appeal No. 150 of 1980. The Division Bench while modifying the order of the learned Single Judge in W. P. No. 8311 of 1978 has not expressly laid down that the said guidelines could be enforced in the Court of law. The observation of the division Bench that "since the authorities have not followed the guidelines issued by the government, the learned Single Judge was right in quashing the impugned notifications" should not be understood in the sense that the guidelines confer justiciable rights. ( 5 ) THE contention raised in the present case should be taken in the light of these principles. The guidelines are administrative instructions and they, therefore, cannot be enforced through the process of the Court at the instance of an aggrieved party. But it should not be forgotten that the guidelines were issued for the benefit of the public and are binding on the authorities who are charged with the duty to acquire lands under the Act. They were intended to minimise the arbitrary exercise of powers by the administrative authorities in dealing with the rights of parties. They are neither contrary to nor inconsistent with the provisions of the Act or the Rules framed thereunder. They are in aid of or supplementary to the provisions thereof. They were intended to minimise the arbitrary exercise of powers by the administrative authorities in dealing with the rights of parties. They are neither contrary to nor inconsistent with the provisions of the Act or the Rules framed thereunder. They are in aid of or supplementary to the provisions thereof. Therefore, if the deputy Commissioner, without considering the objections raised by the Petitioner and without due regard to the guidelines issued by the Government, has approved the acquisition and made the order under Section 3 (3) of the Act, it may then be argued that the discretion of the Deputy commissioner was either exercised on extraneous considerations or without taking into account the relevant considerations. (See Administrative Law by S. P. Sathe, 3rd Edn. p. 94 ). ( 6 ) THE contention urged for the Petitioner is much the same in this case. It was urged that the deputy Commissioner by not insisting upon the observance of the guidelines in acquiring the land of the Petitioner has acted arbitrarily. This contention is sound and also gains support from the decision of this Court in Ganga Birappa -v.- State of Karnataka and another, 1978 (1) K. L. J. 364 wherein it was observed : "the whole object of sub-section (3) read with Rule 8 of the Rules is that after the report of the assistant Commissioner is received along with the objections of the persons aggrieved, the deputy Commissioner has to apply his mind to the objections of the parties concerned, the views expressed by the Block Development Officer or the Chief Officer, as the case may be, and also the report of the Assistant Commissioner. It is open for the Deputy Commissioner to either accept the objection to the acquisition raised by the parties and drop the acquisition or to reject the same and to proceed to acquire the lauds as proposed, it is only after passing an order under sub-section (3) of Section 3 of the Act rejecting the objection to the proposed acquisition and holding that the acquisition should be made, that the Deputy Commissioner gets jurisdiction to direct issue notification under sub-section (4) of Section 3 of the Act. " If the Deputy Commissioner has not applied his mind properly or acted arbitrarily, the notification issued under Section 3 (4) must fall to be quashed at the instance of the aggrieved person. " If the Deputy Commissioner has not applied his mind properly or acted arbitrarily, the notification issued under Section 3 (4) must fall to be quashed at the instance of the aggrieved person. It would then be unnecessary for this Court to consider the validity of the notification issued under Section 1 (3) of the Act unless it is patently without authority of law. It would be for the Deputy Commissioner to consider the validity of that notification having regard to all aspects of the case. In the instant case, there is no dispute that the Deputy Commissioner has made the order under section 3 (3) of the Act in a cyclostyled form and without applying his mind. ( 7 ) IN the result, we allow the Petition and quash the notification dated October 30, 1976 issued under Section 3 (4) of the Act with liberty to the Deputy Commissioner to proceed in accordance with law and in the light of the observations made.