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2008 DIGILAW 601 (KAR)

MADAMMA v. STATE OF KARNATAKA AND OTHERS

2008-10-17

P.D.DINAKARAN, V.G.SABHAHIT

body2008
JUDGMENT P.D. Dinakaran, C.J.: These writ appeals are directed against the common order dated 30-5-2008 of the learned Single Judge in Writ Petition No. 7756 of 2006 connected with W.P. Nos. 7261,9317 and 2381 of 2006. 2. For the purpose of convenience, parties are arrayed as per their rank in the respective writ petitions. For more clarity, petitioners in Writ Petition Nos. 7756 and 7261 of 2006 and the respondent 3 in W.P. No. 2381 of 2006 are described as 'beneficiaries' under the scheme for the provision of house sites to landless workers in the rural areas. 3. In Writ Petition No. 7756 of 2006 the petitioner seeks to quash the preliminary notification dated 8-4-2003 issued by the BDA and the final notification dated 9-9-2003 issued by the Government and the impugned order dated 29-8-2003 issued by the Special Deputy Commissioner. 4. In the preliminary notification dated 8-4-2003 issued by the BDA the authority proposed to form a layout viz., Sir M. Visweswaraiah (Extended) layout over an extent of 773 acres 18 guntas which includes Sy. Nos. 38 and 39 to an extent of 40 acres 36 guntas and 7 acres 18 guntas respectively of Gidadakonenahalli Village, Yeshwanthpur Hobli, Bangalore North Taluk. However, by proceedings dated 29-8-2003, the Special Deputy Commissioner allotted 6 acres in Sy. No. 38 in favour of the 5th respondent in Writ Petition No. 7756 of 2006 - Buddha Education Trust ('BET', for short). Similarly the Government by its letter dated 11-7-2003 allotted 4 acres in Sy. Nos. 38 and 39 in favour of the 5th respondent in Writ Petition No. 7261 of 2006 viz., Basaveswara Little Flowers Educational Society ('BLF Society', for short). 5. Proceedings of the Government dated 11-7-2003 was challenged by another set of persons in W.P. No. 7261 of 2006. In the meanwhile the BDA issued a layout plan dated 1-7-2005 indicating that 6 acres allotted by the Government by proceedings dated 29-8-2003 is not included in the proposed layout. On the strength of the above layout plan dated 1-7 -2005 of the BDA, the 5th respondent-BET applied for No Objection Certificate for construction of the educational institution in 6 acres of land allotted by the Government in proceedings dated 29-8-2003. On the strength of the above layout plan dated 1-7 -2005 of the BDA, the 5th respondent-BET applied for No Objection Certificate for construction of the educational institution in 6 acres of land allotted by the Government in proceedings dated 29-8-2003. But the BDA by proceedings dated 28-1-2006 refused to grant No Objection Certificate for the proposed construction citing that- Ii) a suit in O.S. No. 585 of 2005 filed by one Sudha for a declaration that the grant made in favour of BET by the Government is illegal, is pending before the City Civil Court, Bangalore; and Iii) Appeal No. 572 of 2005 filed against the grant made in favour of BET by the Government with regard to 6 acres of land is pending before the Karnataka Appellate Tribunal. 6. Aggrieved by the order dated 28-1-2006 of the BDA refusing to grant No Objection Certificate, BET filed Writ Petition No. 2381 of 2006. 7. Since all the writ petitions relate to the land measuring 6 acres in Sy. No. 38 granted in favour of BET and land measuring 4 acres in Sy. Nos. 38 and 39 granted in favour of BLF Society, all the writ petitions were heard together and the learned Single Judge by common order dated 30-5-2008 dismissed W.P. Nos. 7756, 7261 and 9317 of 2006 and allowed W.P. No. 2381 of 2006. Hence, Writ Appeal Nos. 997 and 1023 of 2008 are filed by the writ petitioners in W.P. Nos. 7756 and 7261 of2006 and Writ Appeal No. 1022 of 2008 is preferred by the respondent 3 in W.P. No. 2381 of 2006. 8. Heard all the parties. 9. The non-controversial facts of the case are: The Government by Government Order No. DPC 15 DRH 72, dated 13-5-1972 proposed to allot house sites to the families of landless workers in rural areas and the said allottees were the beneficiaries under the above scheme by the then Government. The names of those persons were verified and found to be correct by the Tahsildar, Bangalore North as per his proceedings. The names of those persons were verified and found to be correct by the Tahsildar, Bangalore North as per his proceedings. Since there were complaints that there was double allotment to Some of the families, the matter was investigated by the Inspector General of Police, COD, Bangalore, who took 10 cases for sample survey, of course, including the impugned land (Serial No. 271 and by his report dated 22-12-1990 addressed to the Commissioner and Secretary to Government, Home Department, Government of Karnataka, recommended as follows.- "In this context we may mention that the sites which have been occupied have to be regularised in many cases. Those occupants who are in actual possession of the sites and who qualify as per the norms laid down by the Government in 1972 and 1983 may be granted ownership of the sites. In a similar way those occupants who are unauthorisedly staying on Government land but who come within the norms laid down by the Government may also be granted ownership. The occupants of the sites, who do not come within the prescribed norms, whether or not their possession is legal or illegal, may be asked to pay the cost of the land along with a penal fee. As regards the persons who stay there on rent, ownership may be granted to them provided they come within the norms and provided they are in full possession of the entire site. In order to determine the possible beneficiaries, an exhaustive assessment of each and every occupant has to be taken up by the Revenue Department, Teams of officers may have to be constituted for going into the allotment of sites in detail and to determine the action to be taken in respect of illegal occupants". 10. The petitioners' case is that all the sites covered under the report of the COD dated 22-12-1990 are similar to the sites governed under the scheme dated 13-5-1972 and the Government letter dated 15-6-1984, where the Government has referred for investigation to the COD. 11. Even though the BDA initially proposed to include the entire 40 acres 36 guntas in Sy. Nos. 38 and 39 for the formation of the proposed layout, since the Government in the meanwhile allotted 6 acres to BET and 4 acres to BLF Society as stated above, the BDA subsequently deleted 6 acres from the layout plan by notification dated 1-7-2005. Nos. 38 and 39 for the formation of the proposed layout, since the Government in the meanwhile allotted 6 acres to BET and 4 acres to BLF Society as stated above, the BDA subsequently deleted 6 acres from the layout plan by notification dated 1-7-2005. However, there is no material placed before us for having deleted 4 acres allotted to the BLF Society from the proposed layout by the BDA. 12. Aggrieved by the allotment made to the Educational Institutions, the beneficiaries under the scheme filed the Writ Petition Nos. 7261. 7756 and 9317 of2006, and aggrieved by the refusal to issue NOC, BET filed Writ Petition No. 2:381 of 2006. That apart, one of the beneficiaries under the scheme viz., Sudha independently filed an appeal before the Karnataka Appellate Tribunal in Appeal No. 572 of 2005 and also filed a suit for declaration claiming that allotment made in favour of BET is illegal. 13. Sri Jayakumar S. Patil, learned Senior Counsel appearing for the beneficiaries under the scheme, contends that since it is not in dispute that beneficiaries have been allotted sites under the 1972 Scheme, without cancelling the allotment in the manner known to law, the Government has no authority to allot 6 acres of land to the BET and 4 acres to the BLF Society. Even though the said contention was resisted by the respondents-Educational Institutions stating that the allotment to the beneficiaries under the scheme was already cancelled, the admitted fact as per the report of the Tahsildar dated 7-8-1993 is that no records are available to substantiate the above cancellation. 14. According to the learned Counsel for the beneficiaries under the scheme, the scheme enables the Committee only to recommend the house sites for allotment to the landless families in the rural areas, who do not have even the house sites, and based on such recommendation, the land will be granted only under the provisions of the Karnataka Land Grant Rules, 1969. The relevant portion of the scheme reads as under: "(2) Selection of Sites.-The land required for implementation of the scheme will be obtained by utilization of available Government land; or Gaonthana land where such land is available. The relevant portion of the scheme reads as under: "(2) Selection of Sites.-The land required for implementation of the scheme will be obtained by utilization of available Government land; or Gaonthana land where such land is available. Where no such land is available, land may be obtained by donations from philanthropic villagers; and where this is not possible, by acquisition of suitable land under the Land Acquisition Act, 1894, Lands of Scheduled Castes or Tribes or of Denotified Tribes should not be acquired for the purpose. The villages selected under this programme should be fairly large. Villages with a High School, Primary Health Centre or a shandy or a hobli headquarters or villages with larger population should be selected for the purpose, in the first instance. The following procedure is laid down for selection of land.- A Committee consisting of Tahsildar, Block Development Officer, officer-in-charge of the Primary Health Centre, Social Welfare Inspector will be constituted in each Taluk for the selection of proper village sites as per the scheme. The Block Development Officer will be the Convener of the Committee. The Committee will make selection in consultation with the Village Panchayats. While doing so the Committee should bear in mind the following points among other things.- (a) The land selected for acquisition should be non-controversial to avoid delay in acquisition proceedings as far as possible; (b) Where land has to be obtained from private parties the same may be secured by private negotiations on the basis of private transactions available in the neighbourhood as on the lines of the Trust Board Act; (c) The size of the site should not be less than 150 sq. yard s; (d) The location should be nearer the village and working place of the prospective allottees; (e) The land so selected should also be suitable from hygienic paint of view; (f) The Assistant Commissioner should oversee the work; (g) The unit for formulation of the project shall be the Community Development Block (i.e., jurisdiction of Taluk Development Board). The Assistant Commissioner of the Revenue Sub-Division shall be responsible to step up the work. A Committee consisting of the Assistant Commissioner, District Health Officer and District Social Welfare Officer is constituted for each Revenue Sub-Division to oversee the work of the Taluk Committees. The Assistant Commissioner of the Revenue Sub-Division shall be responsible to step up the work. A Committee consisting of the Assistant Commissioner, District Health Officer and District Social Welfare Officer is constituted for each Revenue Sub-Division to oversee the work of the Taluk Committees. After selection of the sites, proposals should be sent immediately for acquisition of land clearly indicating therein the land that is to be granted under the Land Grant Rules, lands donated and the land to be acquired under the Land Acquisition Act. Where the land is vested in Village Panchayats, proposals may be initiated for divesting the land from the Village Panchayats under Section 49121 of the Mysore Village Panchayats and Local Boards Act, 1959, so as to make it available for grant, free of cost under the Land Grant Rules". 15. It is accordingly contended that even though the Committee was constituted for the purpose of selecting the beneficiaries, the sites were allotted by the Tahsildar only under the provisions of the Land Grant Rules. Our attention was also drawn to the recommendations of the COD, the operative portion of which is extracted above and based on that, the learned Counsel for the beneficiaries under the scheme contends that what was recommended by the COD is in favour of the beneficiaries which confer rights on the beneficiaries and not otherwise. It is further contended that unless and until the original allotment of the sites to the landless people who are beneficiaries under the scheme is cancelled in the manner known to law, the same cannot be acquired. Even assuming that the beneficiaries under the scheme have violated the conditions of allotment viz., such allottees should have completed the construction within two years from the date of allotment and without following the due procedure or the principles of natural justice the same cannot be allotted nor included in the layout by the BDA nor allotted by the Government to any other persons much less to two educational institutions referred to above. 16. In this regard, our attention was invited to the decision of the Supreme Court in the case of Kunwar Pal Singh (dead) by L.Rs v State of Uttar Pradesh and Others, where it is held: "D. STATUTE LAW - When Statute prescribes a particular manner for doing a particular act, that act must be done in that manner alone. 16….. In this regard, our attention was invited to the decision of the Supreme Court in the case of Kunwar Pal Singh (dead) by L.Rs v State of Uttar Pradesh and Others, where it is held: "D. STATUTE LAW - When Statute prescribes a particular manner for doing a particular act, that act must be done in that manner alone. 16….. There is no option left with anyone to give up or waive any mode and all such modes have to be strictly resorted to. The principle is well-settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefor in the Act". 17. Ms. Niloufer Akbar, learned Government Advocate is not disputing the fact that these beneficiaries are the allottees under the scheme and the allotments are made by the Tahsildar under the Land Grant Rules and even though the conditions stated in the grant were not complied with, there is no material available on record to show that the Competent Authorities have initiated proceedings to cancel such allotments granted in favour of the beneficiaries under the scheme and even the alleged proceedings of cancellation under the scheme are not available in the office of the respondent-authorities. It is also not disputed that without following the procedure, the allotment was made In favour of the educational institutions. 17.2 That apart. Ms. Niloufer Akbar, learned Government Advocate invites our attention to the fact that the impugned lands were denotified from the classification of 'gonlallands' as 'revenue lands' before passing the order allotting the land in favour of the educational institutions under Rule 93-A of the Karnataka Land Revenue Rules, 1966. She also fairly concedes that she is not in a position to explain how after the allotment of house sites to the landless families in the rural areas and who were beneficiaries under the scheme as early as in the year 1972, the impugned land was still classified as 'gomal land'. There is no explanation on behalf of the Government in this regard that once it was granted to the landless rural families as sites under the scheme, the impugned land loses its character of gomal land by virtue of such allotment and the question of reclassifying the land under the Rule 97141 of the Karnataka Land Revenue Rules does not arise. 18. 18. Mr. Krishna, learned Counsel appearing for the BDA restricts his arguments to the extent that even though it was initially proposed to include this land for the proposed layout in the preliminary notification dated 8-4-2003, but thereafter, based on the subsequent development viz., grant of 6 acres and 4 acres land in favour of the institutions viz., BET and BLF Society respectively, the BDA excluded these lands from the purview of the proposed layout. 19. Mr. A.G. Holla, learned Senior Counsel appearing for the institutions strenuously contends that the very scheme is to be held illegal in view of the decision of the Division Bench in the case of Dr. B.R. Ambedkar Dalitha and Hindulida Alpa Sankhyatara Gramabhivruddhi Sangha (Registered), Bangalore South Taluk, Bangalore Urban District v State of Karnataka and Others, wherein Ashraya Scheme framed by the State Government exercising the power under Article 162 of the Constitution was held to be beyond its competence. He further contends that even the very fact that the impugned lands are included in the preliminary notification dated 8-4-2003 issued by the BDA for forming the layout makes it clear that the beneficiaries were not in possession and the Government alone was in possession and therefore requisition under Section 97 of the Karnataka Land Revenue Act, 1964 and further grant under Rule 93-A of the Karnataka Land Revenue Rules, was valid in law. Lastly it is contended that in any event, the impugned lands having been allotted to them and based on the said allotment, sale deeds having been executed for valid consideration and Government have handed over possession under the sale deeds and as such they are entitled for NOC for the proposed construction and there is no merit in the claim of the beneficiaries. 20. We have given our careful consideration to the submissions of all the parties. 21. The following issues arise for our consideration: (I) Whether the Government is competent to grant sites to the landless families in the rural areas under the 1972 Scheme and whether the said allotment can be held to be illegal in view of the decision in the case of Dr. B.R. Ambedkar Dahtha and Hinduhda Alpa Sankhyatara Gramabhivruddhi Sangha (Regd.)? 21. The following issues arise for our consideration: (I) Whether the Government is competent to grant sites to the landless families in the rural areas under the 1972 Scheme and whether the said allotment can be held to be illegal in view of the decision in the case of Dr. B.R. Ambedkar Dahtha and Hinduhda Alpa Sankhyatara Gramabhivruddhi Sangha (Regd.)? (II) Whether the allotment granted to the beneficiaries under the scheme was withdrawn or cancelled by the Government before the BDA proposed to include the impugned land for forming the layout or the Government allotting the land to the educational institutions? (III) To what reliefs the parties are entitled to? 22. Issue No.I.- Whether the Government is competent to grant sites to the landless families in the rural areas under the 1972 Scheme and whether the said allotment can be held to be illegal in view of the decision in the case of Dr. B.R. Ambedkar Dalitha and Hindulida Alpa Sankhyatara Gramabhivruddhi Sangha (Regd.)? In this regard, we are obliged to extract the object of the 1972 Scheme: (a) The scheme aims at assisting the State Governments and Administrations of Union Territories to provide house sites free of cost to families of landless workers in the rural areas who do not already own a house site or a built up house or a hut on land of their own. With the house sites so provided the workers will have to build houses/huts thereon with their own resources, and live in peace without being constantly threatened with eviction by the owner of the land on which they have built their houses/huts; (b) The same is being introduced as a Central Sector Scheme. It will however, be implemented through respective State Governments and Administrations of Union Territories. 23. To advance the above object, the Government made provisions relating to the size of the programme, selection of sites, acquisition of sites, financial assistance, development of the land, horticultural look, incentives, scope of the programme etc. 24. The scheme to provide house sites to the landless and siteless families in the rural areas is a Central Sector Scheme and the implementation of the scheme is by the State Government by Order No. DPC 15 DRH 72, Bangalore, dated 13th May, 1972. 24. The scheme to provide house sites to the landless and siteless families in the rural areas is a Central Sector Scheme and the implementation of the scheme is by the State Government by Order No. DPC 15 DRH 72, Bangalore, dated 13th May, 1972. A careful analysis of the scheme would make it clear that even though the persons who are selected under the scheme, the land should be granted only under the provisions of the Karnataka Land Grant Rules. But the Division Bench Judgment in the case of Dr. B.R. Ambedkar Dalitha and Hindulida Alpa Sankhyatara Gramabhivruddhi Sangha (Regd.), proceeds on the basis that the Ashraya Scheme is not governed under the Land Grant Rules. Therefore this decision is not applicable to the facts of the present case. 25. On the other hand, in the present case, the Tahsildar has allotted the sites to the beneficiaries under the scheme under Rule 18161 of the Land Grant Rules, which reads as under: "18. (6) Notwithstanding anything stated in this rule or in the Government Notification No. RD 26 GNA 69, dated 21st June, 1969, it shall be competent for the Tahsildar of a Taluk to grant building sites not exceeding two acres within the limits of any Grama Panchayat in the Taluk and not exceeding one acre in Town Panchayat limits, to poor residents without the Panchayat limits who do not own any house or a building site: Provided that in such areas as the State Government may, by notification specify, the officers specified in such notification shall be and the Tahsildar of the Taluks shall not be competent within their respective jurisdiction to grant building sites to the extent and subject to the conditions specified in this sub-rule". 26. The allotment of sites, therefore, is well-within the jurisdiction of the Tahsildar. Even though the scheme provides for the object/purpose and the method to be followed, it was implemented strictly in accordance with the provisions of the Land Grant Rules. Hence, we are satisfied that there is no illegality or irregularity in the allotment. Issue No.I is answered accordingly. 27. Issue No.II.- Whether the allotment granted to the beneficiaries under the scheme was withdrawn or cancelled by the Government before the BDA proposed to include the impugned land for forming the layout or the Government allotting the land to the educational institutions? Issue No.I is answered accordingly. 27. Issue No.II.- Whether the allotment granted to the beneficiaries under the scheme was withdrawn or cancelled by the Government before the BDA proposed to include the impugned land for forming the layout or the Government allotting the land to the educational institutions? No material is placed before us by the Government to show that the authorities have followed the procedure contemplated under the Rules for cancellation as provided under Rule 25 of the Karnataka Land Grant Rules. Even assuming that there is any violation of the conditions by the allottees, Rule 25 provides the procedure to be followed before cancellation, which also specifically contemplates that they should be given notice before cancellation and which also is in consonance with the principles of natural justice. But with all fairness as conceded by the learned Government Advocate, they are not in a position to place any material before us to show that the authorities have followed the procedure for cancellation. On the other hand the instructions furnished by the department/authorities that there was cancellation but the records are not available, is strange for out acceptance" 28. It is settled law that when a particular thing has to be done in the manner provided under the statute, no other manner is permissible for doing the same and if such a decision is taken by not following the due procedure prescribed under the law, such action shall have no legal sanction or validity (vide Kumoar Pal Singh's case). Even at any stretch of imagination, it cannot be presumed that the right conferred on the beneficiaries under the scheme has been divested at any point of time in the manner known to law. It is also settled law that once the initiation of the action vitiates for non-compliance of the procedure established in law, the consequent action also fails (Competent Authority v Barangore Jute Factory). Therefore, it is a clear case where the Government lost their right over the impugned lands as long back in 1972 after having granted the rights in favour of the landless people in rural areas and they have never resumed the impugned lands in their favour and therefore the question that the BDA notifying the lands for acquisition muchless proposing to allot the lands to the educational institutions does not arise. Hence, the consequential proceedings are also held to be illegal. 29. Hence, the consequential proceedings are also held to be illegal. 29. For all the above reasons, the second issue is also answered in the negative against the institutions and in favour of the writ petitioners- beneficiaries under the scheme. In that view of the matter, the allotment made in favour of the educational institutions fails and the registration of documents cannot be legally sustained and the consequential claim of the educational institutions for the NOC also loses its base. 30. Issue No.III.- To what reliefs the parties are entitled to: (1) In view of the answers to Issues 1 and 2, the petitioners are entitled for the respective sites unless and until their possession is resumed by the Government in accordance with the procedure and in the manner known to law. (2) The two educational institutions viz., Buddha Education Trust and Basaveshwara Little Flowers Educational Society, having been granted 6 acres and 4 acres respectively in their favour, even though not entitled for the reasons aforesaid, are entitled for alternative land to be allotted by the Government within a period of 3 months from the date of receipt of this order without claiming any extra amount. 31. Writ appeals are ordered accordingly. No order as to costs.