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2012 DIGILAW 479 (KAR)

P. Nagarathna v. Commissioner, Bangalore Development Authority

2012-06-11

S.ABDUL NAZEER

body2012
Judgment 1. Since common questions of law and fact are involved in all these cases, they are clubbed together, heard and disposed of by this common order. 2. Petitioners are the allottees of different sites from the Bangalore Development Authority, the second respondent herein at J.P. Nagar 8th Stage Layout, Bangalore. BDA has executed the sale deeds in respect of the sites allotted in their favour on different dates. Pursuant to the execution of the sale deeds, katha of the property has been transferred to their names by the BDA and that they have been paying taxes. It is the case of the petitioners that certain structures were coming up on their sites. On verification, they came to know that the State Government has issued a notification under Section 48 of the Land Acquisition Act, 1894 ('LA Act' for short) dated 8.6.2010 bearing No.UDD/321/MNX/2010 de-notifying the land to an extent of 33 guntas in Sy.No.24 of Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore. They also came to know that the sites in question were carved out of the aforesaid survey number. That is why they have filed these writ petitions challenging the validity of the said notification. 3. BDA has filed its objections in W.P.No.38745/2010 contending that the notification under Section 17(5) of the Bangalore Development Authority Act, 1976 ('BDA Act' for short) was issued on 23.8.1988 proposing to acquire the land in question along with various other lands for the formation of J.P. Nagar 8th Stage Layout. This was followed by a declaration, which was issued on 19.10.1984. Award was passed on 20.9.1985 and possession of the land was taken on 3.2.1996. Thereafter, land was transferred by the State Government to the BDA for formation of the layout. BDA has formed the layout and sites have been allotted to the petitioners herein and others in the survey number in question. 4. Annapoorna Education Trust ('Trust' for short), which is impleaded as the third respondent in W.P.Nos.30684/2011, 30685/2011, 7502/2011, 30683/2011, 30687/2011 and as the fourth respondent in W.P.No.38745/2010 has filed its statement of objections in W.P.No.38745/2010 contending that T.V. Mohan and V. Radha, the Trustees of the Education Trust have purchased different portions of land in Sy.No.24 for establishing an Educational Institution from T. Meenakshi. Thereafter, the Trust made an application to the State Government for withdrawal of the land from acquisition. Thereafter, the Trust made an application to the State Government for withdrawal of the land from acquisition. Considering the request of the Trust, the State Government has withdrawn the lands measuring 33 guntas in Sy.No.24 from acquisition. The Trust has put up construction and has been running the school in the said building. 5. Learned Counsel for the petitioners submits that after taking possession of the land under Section 16 of the LA Act, the State Government has no power to withdraw the said land from acquisition. It is argued that after acquisition of the land by the State Government, the same has been transferred to the BDA under Section 36 of the BDA Act for formation of the layout. BDA has formed the layout and has allotted the sites to the general public including the petitioners. Therefore, the State Government could not have issued a notification under Section 48 of the Act in respect of the property in question. It is argued that the Trustees of the fourth respondent have admittedly purchased the property after issuance of the notifications for acquisition of the land. The notified kathedar of the said property was Smt. T. Meenakshi. Therefore, the sale deed executed by T. Meenakshi in favour of the Trustees itself is void as it has been executed after the issuance of the preliminary and the final notifications. At best, the subsequent purchasers can claim compensation. Therefore, question of issuing a notification under Section 48 at the behest of the subsequent purchaser is illegal. 6. Learned Counsel for the respondent-BDA submits that after the vesting of the lands with the State Government, it has been transferred to the BDA for the formation of the layout. Layout has been formed by the BDA and sites have been allotted to the petitioners. BDA has informed the State Government the vesting of the land. BDA has been requesting the State Government to withdraw the notification issued under Section 48(1) of the Act. 7. Learned Counsel appearing for the fourth respondent submits that the scheme approved by the State Government for formation of J.P. Nagar 8th Stage itself has lapsed having regard to Section 27 of the BDA Act. It is further submitted that this Court in SRI R.ADIKESAVULU NAIDU AND OTHERS VS. THE STATE OF KARNATAKA, BY ITS SECRETARY, U.D.D. AND OTHERS -ILR 2011 KAR 3657 has declared that the scheme has lapsed. It is further submitted that this Court in SRI R.ADIKESAVULU NAIDU AND OTHERS VS. THE STATE OF KARNATAKA, BY ITS SECRETARY, U.D.D. AND OTHERS -ILR 2011 KAR 3657 has declared that the scheme has lapsed. Therefore, the petitioners do not get any right, title or interest in respect of the sites. It is further submitted that after the de-notification, the Trust has put up construction and has been running an Educational Institution in the said building. The Trust is ready to give up the sites, which have been purchased by the petitioners from the BDA. They may be permitted to retain the balance of the de-notified land under the impugned notification. 8. I have carefully considered the arguments made by the learned Counsel at the Bar and perused the materials placed on record. 9. The undisputed facts are that Sy.No.24 of Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, was notified for acquisition under Section 17(5) of the Act for the formation of J.P. Nagar 8th Stage Layout. The notified kathedars are Motappa, H. Venkatesh, Pandit Ramaiah, T. Meenakshi, D.S. Nataraj, M. Ramamurthy, G. Chinnappa, H. Venkatesh S/o Hanumanthappa, Gullappa, Muniveerappa. The final notification under Section19(1) was issued on 19.10.1994 and the award was passed on 23.9.1995. Possession was taken on 3.2.1996. Admittedly, T.V. Mohan and V. Radha, the Trustees purchased the property under different sale deeds after the issuance of the notifications for acquisition of the land. Some of the sale deeds are executed after taking possession of the land. 10. Learned HCGP has produced the file bearing No.......321...............2010 (C-74142) in respect of the land measuring 33 guntas in Sy.No.24 of Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore. The file contains an undated letter sent by Annapoorna Education Trust signed by T.V. Mohan and V. Radha to the Hon'ble Chief Minister stating that 33 guntas of land in Sy.No.24 of Kothanur Village has been notified for acquisition and that possession of the land has also been taken. They have requested the Hon'ble Chief Minister to withdraw the land from acquisition. On the basis of this letter, Joint Secretary to Chief Minister sent a note to the Additional Chief Secretary dated 13.5.2010 enclosing a copy of the said letter and requesting him to furnish his opinion after verification of the file. They have requested the Hon'ble Chief Minister to withdraw the land from acquisition. On the basis of this letter, Joint Secretary to Chief Minister sent a note to the Additional Chief Secretary dated 13.5.2010 enclosing a copy of the said letter and requesting him to furnish his opinion after verification of the file. The Additional Chief Secretary has sent his note stating that there are certain legal hurdles for withdrawing the land from acquisition and that as per the survey report, Layout has been formed by the BDA in the said land though notification under Section 16(2) of the Act has not been issued. BDA has sent a letter to the Government dated 19.5.2010 stating that after taking possession of the land, it was handed over to the Engineering Section. As per the Surveyor's report, layout has been formed in the land. It appears that thereafter the file was sent to the Hon'ble Chief Minister. The Hon'ble Chief Minister has directed for withdrawal of the land measuring 33 guntas in Sy.No.24 from acquisition on the ground that notification under Section 16(2) of the LA Act has not been issued and the BDA has not formed the layout. The file was returned on 1.6.2010 and it appears that thereafter, notification dated 8.6.2010 was issued by the State Government. 11. It is clear from the materials on record that after issuance of the final notification, possession of the land was taken and handed over to the BDA under Section 36 of the BDA Act and that BDA has formed a layout in the land in question. BDA has allotted the sites formed in the said land to the petitioners. Sale deeds have also been executed by the BDA in their favour. Having regard to Section 36(3) of the BDA Act, after transfer of the land by the State Government, the property vests with the BDA absolutely. Even the Trust in its communication to the Hon'ble Chief Minister has stated that possession of the land has been taken by the competent authority. The Additional Chief Secretary has stated that as per the spot inspection report, layout has been formed by the BDA and that there are certain legal hurdles for withdrawal of the land from acquisition. BDA has also informed the State Government that after vesting of the land, layout has been formed. The Additional Chief Secretary has stated that as per the spot inspection report, layout has been formed by the BDA and that there are certain legal hurdles for withdrawal of the land from acquisition. BDA has also informed the State Government that after vesting of the land, layout has been formed. As noticed above, the Hon'ble Chief Minister has directed withdrawal of the land from acquisition on the ground that notification under Section 16(2) of the Act has not been issued and that BDA has not formed a layout in the said land. The said order appears to have been passed on 1.6.2010. Materials on record clearly disclose that the layout has been formed and sites have been allotted to the general public including the petitioners herein. 12. Section 16 of the LA Act provides for taking possession of the land. It states that when the Deputy Commissioner has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. The records would disclose that possession of the land has been taken by the competent authority and it is not contended before me that possession has not been taken by the authority concerned. Non-issuance of a notification under Section 16(2) cannot be a ground for holding that the possession of the land has not been taken by the competent authority. Section 16(2) merely authorises the Deputy Commissioner to publish the fact of taking possession in the gazette and if there is such a notification, it shall be evidence of such fact. Publication of notification under Section 16(2) is not mandatory and the absence of it would not vitiate acquisition. Even without such a notification, the effect of Section 16(1) holds the field. (See BASAVEGOWDA K.C. & OTHERS VS. SESHAPPA SETTY - 1976(2) KLJ 340 and MODINBI AND OTHERS VS. THE KALAL KHATIK SAMAJ SEVA SANGHA (REGD)., OLD HUBLI, DHARWAD DISTRICT AND OTHERS - 2002(1) KLJ 180). 13. Before considering the scope of Section 48 of the Act, it is beneficial to know the object for which it was enacted. Section 48 of the Land Acquisition Act, 1894 (Act 1 of 1894) corresponds to Section 54 of the Land Acquisition Act, 1870 (Act 10 of 1870). 13. Before considering the scope of Section 48 of the Act, it is beneficial to know the object for which it was enacted. Section 48 of the Land Acquisition Act, 1894 (Act 1 of 1894) corresponds to Section 54 of the Land Acquisition Act, 1870 (Act 10 of 1870). Section 54 of the old Act gave power to the Government or the public bodies it represents, the power of withdrawal of the land, which it has proposed to acquire. This power, however, has to be exercised before the award is made. This was causing great hardship to the Government. The reasons for re-enacting the said provision in the LA Act of 1894 can be gathered from the preliminary report of the Select Committee dated 2.2.1893, which is as under: "Sec.54 of the Act (X of 1870) gives to the Government or the public bodies whom it represents the power of withdrawal from land it has proposed to acquire. This power, however, must be exercised before the award is made. After award, withdrawal is prohibited whatever may be the circumstances. Experience has shown that the only occasions on which powers of withdrawal, would be really useful are when an award has shown that the Government was seriously misled by an under-estimate of the value of the land. A case has been reported in which a municipality has been nearly ruined by being compelled to proceed with an acquisition in which the award was inordinately in excess of the original valuation. We think, therefore, that power to withdraw should be given after, as well as before, the award, but that, if so exercised, it should only be on terms of the most liberal compensation to the owner and that, if he is dissatisfied with the collector's offer, he should have the same rights of reference to the Judge as in case of acquisition. " (underlining is by me) 14. The Select committee in its second report dated 23.3.1893 has stated as under: "We have altered the terms of the first clause of Section 48, which gives certain powers to Government to withdraw from a contemplated acquisition of land so as to make it clear that this withdrawal may be made at any time before possession is taken but not afterwards. Instances were quoted in our Preliminary Report in which the Collector was proved by the Judges' award to have been seriously misled as to value of the land and in which the Government would not have acquired the land had it received a correct appraisement. We think that a Government which provides compensation from the taxes of the Empire should have larger powers of withdrawal than are given by the present Act, but we are of opinion that no such power should be given after possession has once been taken and that each Local Government must protect itself by executive instructions to Collectors to refrain from taking possession until after the award of the Judge, in every case in which there is a material difference between the Collector and the owner as to the value of the property." (See A. Ghosh's Laws of Compulsory Acquisition & Compensation in India and The Land Acquisition Act, 1894 - Eighth Edition At page Nos.709 & 711) 15. It is clear from the two reports that liberty to withdraw from acquisition in the present Act was made prior to taking possession of the land in order to curtail payment of exhorbitant award amount. 16. In SPECIAL LAND ACQUISITION OFFICER, BOMBAY AND OTHERS VS. M/S. GODREJ AND BOYCE - AIR 1987 SC 2421 , the Supreme Court was considering the case of withdrawal of the land from acquisition. In that case, where the Government had intended to acquire a vast piece of vacant land for construction of houses by the State Housing Board and had also issued the notifications under Sections 4 and 6, but meanwhile, the land in question had been overrun by slum dwellers to such an extent that it was no longer possible for the Government to effectuate the intended purpose of acquisition and the State Government subsequently passed the orders withdrawing the lands from acquisition under Section 48. In this context, the Supreme Court has held that the State Government had acted in best interests of the public and of public revenues and its decision cannot be faulted. If the Government is reluctant to go ahead with the acquisition in view of the genuine difficulties, it can hardly be claimed and the Government cannot be directed to acquire the land and embark on such a venture. If the Government is reluctant to go ahead with the acquisition in view of the genuine difficulties, it can hardly be claimed and the Government cannot be directed to acquire the land and embark on such a venture. The State could not be compelled to take over the land because the owner of the land needs to take care of it at his own cost until it vests in the Government. The State cannot be held responsible for the occupation of the land by trespassers. Thus, it is clear that the land can be withdrawn from acquisition in public interest and of the public revenue. The land cannot be withdrawn from acquisition arbitrarily without any just cause. 17. In S.P.SUBRAMANYA SHETTY AND OTHERS VS. KARNATAKA STATE ROAD TRANSPORT CORPORATION AND OTHERS - 1998(2) KLJ 453 (SC) : AIR 1997 SC 2076 : (1997) 11 SC 250, the Apex Court has held as under: "The Court cannot compel the Government to withdraw the notification under Section 4 (1) of the Act. It is for the Government to consider the same on merits and keeping it in mind the subservience of public interest." (underlining is by me) 18. Thus, it is clear that the Government has absolute power for withdrawing of the land from acquisition at its discretion before taking possession. However, while doing so, it has to keep in mind the subservience of public interest. 19. The word 'discretion' in itself implies vigilant circumspection and care. Where the legislature concedes wide discretion, it also imposes a heavy responsibility. It signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste. Therefore, discretion cannot be arbitrary and must be the result of judicial thinking. In P. Ramanatha Aiyar's Law Lexicon, the meaning assigned to the word 'discretion' is as under: "Discretion: In general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to the will and private affections of persons." 26 20. In SHARP VS. In SHARP VS. WAKEFIELD AND OTHERS-(1891), 64 LAW TIMES REPORTS 180, the meaning to the word 'discretion' has been assigned as under: "Discretion means, when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself." 21. From the discussion made above, it is clear that Section 48(1) gives liberty to the State Government to withdraw from acquisition at any stage before possession is taken. Under the old Act, withdrawal from acquisition was permitted prior to making of the award. It was felt that the Government was misled by an underestimate of the value of the land. Some times, it was compelled to proceed with the acquisition in which award was inordinately in excess of the original valuation. Section 48(1) was enacted giving liberty to the Government to withdraw the land from acquisition, the possession of which has not been taken. The power conferred on the Government under this provision is an absolute power which can be exercised at its discretion before taking possession, if it is of the opinion that the land is not required for public purpose. This power has to be exercised in the best interest of the public and of the public revenue. The discretion has to be exercised in accordance with the rules of reason and justice and not according to the private opinion. It has not to be done in an arbitrary, vague and fanciful manner but in a legal and regular manner. It has to be exercised within the limit to which an honest man confine himself. Needless to mention here that the authority concerned cannot mechanically dispose of an application under this provision without application of mind. It has to assign the reasons while passing the order one way or the other. 22. In the present case, the lands have been withdrawn from acquisition at the instance of certain persons, who had purchased the same after the issue of the notifications for acquisition. It has to assign the reasons while passing the order one way or the other. 22. In the present case, the lands have been withdrawn from acquisition at the instance of certain persons, who had purchased the same after the issue of the notifications for acquisition. The Trust in its undated letter has identified the land for withdrawal from acquisition. Even according to the Trust, the land has already been acquired. It is also evident that after vesting of the land, layout has been formed and sites have been allotted to the general public including the petitioners. One of the reasons assigned for withdrawing the land from acquisition is that notification under Section 16(2) has not been issued, which is not necessary for vesting of the land. The second reason is that BDA has not formed the layout, which is contrary to the materials placed before the Hon'ble Chief Minister. Thus, the withdrawal of acquisition is totally without authority of law and is opposed to the public interest. 23. In BANGALORE DEVELOPMENT AUTHORITY AND OTHERS VS. R.HANUMAIAH AND OTHERS - (2005) 12 SCC 508, the Apex Court has held that after the vesting of the land and taking possession thereof, the notification for acquiring the land could not be withdrawn or cancelled in exercise of powers under Section 48 of the Land Acquisition Act. Power under Section 21 of the General Clauses Act could not be exercised after vesting the land statutorily in the State Government. Therefore, once possession has been taken by the State Government and handed over to the BDA under Section 36 of the BDA Act for formation of the layout, question of withdrawing the land from acquisition under Section 48(1) does not arise. 24. Section 65 of the BDA Act authorises the Government to give directions to the authority. It states that the Government may give such directions to the authority as in its opinion are necessary or expedient for carrying out the purposes of the Act, and it shall be the duty of the authority to comply with such directions. From the scheme of the Act, it is clear that the land is acquired by the State Government and made over to the BDA for the purpose of executing a scheme framed under Section 16 of the Act. From the scheme of the Act, it is clear that the land is acquired by the State Government and made over to the BDA for the purpose of executing a scheme framed under Section 16 of the Act. Once the lands are acquired by the State Government and made over to the BDA, BDA has to allot, convey, re-convey the lands strictly in accordance with the BDA Act and the Rules made thereunder. Under Section 65 of the BDA Act, the State Government is only authorised to give directions to the BDA as are necessary or expedient for carrying out the purposes of the Act. Certainly, a direction in disregard of the statutory provision cannot be issued. Such a direction is not permissible in law. In R. HANUMAIAH's case (supra), the Apex Court has held that the directions issued by the Chief Minister to reconvey the land to the land owner are of no consequence. The power of the State Government under Section 65 to issue directions is not unrestricted. Directions have to be to carry out the objective of the Act and not contrary to the provisions of the Act. In the instant case, the State Government has no power or authority to de-notify the land. 25. The Trust does not get title to the property as its purchase was after issuance of the notifications for acquisition of the lands. The Apex Court in AJAY KRISHAN SHINGHAL VS. UNION OF INDIA & OTHERS - AIR 1996 SC 2677 has held that the title of a property purchased subsequent to the preliminary notification is void. The subsequent purchaser can only have the right to claim compensation in respect of the acquired land claiming interest in the land, which his predecessor-in-title had. It has been held as under: "13. Another contention raised by Sri Ravinder Sethi is that the claimant in the first appeal had purchased the property after the declaration under Section 6 was published and that therefore, he does not get any right to challenge the validity of the notification published under Section 4(1). Since his title to the property is a void title, at best, he has only right to claim compensation in respect of the acquired land claiming interest in the land, which his predecessor-in-title had. ............................................ We need not deal at length with this issue as is the settled legal position." (emphasis supplied by me) 26. Since his title to the property is a void title, at best, he has only right to claim compensation in respect of the acquired land claiming interest in the land, which his predecessor-in-title had. ............................................ We need not deal at length with this issue as is the settled legal position." (emphasis supplied by me) 26. It is true that the State Government has absolute power at its discretion to de-notify the land. The said power cannot be exercised in favour of a person, who has purchased the property illegally. I am of the view that at the instance of a subsequent purchaser whose title is void, the State Government cannot de-notify the land from acquisition for his benefit. 27. This Court in R.ADIKESAVULU NAIDU's case (supra), has held that the scheme of J.P. Nagar 8th Stage has lapsed under Section 27 of the Act. In paragraphs 141 and 142, this Court has observed as under: "141. In the result, a writ of certiorari is issued to quash the acquisition proceedings in respect of subject lands which are covered under the preliminary Notification and final Notifications, but which have not vested in the State Government within the period of five years from the date of issue of the final Notification. 142. The BDA is restrained from further implementation of the lapsed scheme if it is to be to the detriment and adverse to the interest of the land owners whose lands have, as a consequence of this order, revert to them." 28. It is clear that the learned Single Judge has quashed the acquisition proceedings in respect of the subject matter of those writ petitions, which have not been vested in the State Government within a period of five years from the date of issue of the final notification. The Court has not interfered with the land, which has already been vested in the State Government and layout has been formed. Therefore, there is no merit in the contention of the learned Counsel for the Trust that the acquisition proceedings even in respect of the land in question has lapsed. 29. In the light of the above discussions, I pass the following: (i) The notification dated 8.6.2010 in No.UDD.321.MWH.2010 issued by the respondent-State Government is hereby quashed. Writ petitions are allowed accordingly. 29. In the light of the above discussions, I pass the following: (i) The notification dated 8.6.2010 in No.UDD.321.MWH.2010 issued by the respondent-State Government is hereby quashed. Writ petitions are allowed accordingly. (ii) In view of the disposal of the writ petitions as above, Misc.W.No.8269/2011 filed in W.P.No.38745/2010 does not survive for consideration. It is accordingly dismissed. No costs.