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2019 DIGILAW 1588 (KAR)

Mallappa v. State Of Karnataka

2019-07-05

S.G.PANDIT

body2019
JUDGMENT : S.G. Pandit, J. The petitioners are before this Court under Article 226 of the Constitution of India praying the following reliefs: 1. Issue a writ in the nature of certiorari quashing the allotment order dated 29.02.2008 passed by the BDA allotting half acres of land in favour of the 5th respondent bearing No. marked as Annexure-C to the writ petition. 2. Direct respondents No.1 to 4 to restrain the 5th respondent from putting up any petrol pump on the lands in dispute. 3. Denotify the land to an extent of 10 acres 25 guntas together in Sy.No.34/2 and 34/2/2 situated at Bagalkot. 2. The petitioners claim that they were the owners of land bearing Sy.No.134/2 to an extent of 6 acres 25 guntas and land in Sy.No.134/2/2 to an extent of 4 acres situated at Bagalkot. The petitioners state that the respondent-State issued Annexure-A preliminary notification dated 09.08.1991 under Section 4(1) of the Land Acquisition Act (for short, the 'Act' ) for acquisition of petitioners' lands. Subsequently, the respondent issued final notification under Section 6(1) of the Act on 20.06.1992. Award in respect of the acquired lands was passed on 02.06.1994 and on reference, compensation was enhanced. The petitioners also received the compensation including the enhanced compensation. 3. Respondent No.5 made an application to respondent No.2 requesting for allotment of 1 acre of land for setting up a petrol pump. Considering the application filed by respondent No.5, respondent No.2 on 28.12.2006 allotted the land measuring 1500.00 sq.mtr. in Sy.No.134/2 to respondent No.5. It is stated that respondent No.5 paid a sum of Rs.4,84,380/- on 09.02.2007 and possession of the land was also handed over to the respondent No.5 on 07.07.2007. Sale deed was also executed and registered in favour of respondent No.5 on 12.07.2007. The petitioners being aggrieved by the allotment of land in favour of respondent No.5 are before this Court praying to quash the allotment order dated 29.02.2008 under Annexure-C. Further, the petitioners have also prayed to denotify the land to an extent of 10 acres 25 guntas in Sy.No.34/2 and 34/2/2 situated at Bagalkot. In that regard it is stated that the petitioners had made a representation to the respondents on 09.03.2007. 4. In that regard it is stated that the petitioners had made a representation to the respondents on 09.03.2007. 4. The respondent-State on appearance has filed statement stating that with an object of achieving full fledged development of the acquired area, land was allotted to respondent No.5 for the purpose of establishing petrol pump which would be useful for general public and to meet the needs of fuel to the users of the road. Respondent No.5 filed statement stating that he had made representation to respondent No.2 for allotment of 1 acre of land for establishment of petrol pump which was considered and allotted 15 guntas of land. He submits that he has paid the entire sale consideration and he has taken the possession of the allotted land. 5. Heard the learned counsels for the parties and perused the materials on record. 6. The learned counsel for the petitioners would submit that the petitioners' lands were acquired in the year 1991 with a specific purpose of formation of link road from Navanagar to Bagallkot. But only 20 guntas of acquired land is utilized for road purpose and the remaining acquired land is not utilized for any other purpose. As the land acquired is not utilized for the purpose for which it is acquired, the petitioners submit that they are entitled for repossession of the lands. Further, the learned counsel for the petitioners would submit that the allotment of land to respondent No.5 is not for public purpose. It is also contended that respondent No.5 was a member of the Bagalkot Town Development Authority has got the allotment made in his favour. The learned counsel further submits that the petitioners have made representation to the respondent authorities to denotify the land and they have stated that they are ready to deposit the compensation received. It is contended that even though representation is made in the year 2007 no action is taken on the said representation. 7. The learned counsel for the petitioners relies upon the decisions of this Court reported in 1992 (1) KLJ 589 and the decision of the Hon'ble Supreme Court reported in (2011) 10 SCC 608 in support of his contentions. 8. Per contra, the learned counsel for the respondent-State would submit that the petitioners have no locus standi to challenge the allotment of land made in favour of respondent No.5 for establishment of petrol pump. 8. Per contra, the learned counsel for the respondent-State would submit that the petitioners have no locus standi to challenge the allotment of land made in favour of respondent No.5 for establishment of petrol pump. He submits that the petitioners are neither applied for allotment of land nor the rival claimants. Further, he submits that the land is allotted for public purpose i.e. for establishment of petrol pump which would be useful for general public. It is stated that on Navanagar and Bagalkot link road for about 7 k.m. there is no petrol pump, as such, establishment of petrol pump in the allotted land would be for public utility. The learned AGA submits that after more than 15 years the petitioners cannot indirectly challenge the acquisition. When once the land vests with the Government, it is for the Government to utilize the land for any other public purpose. When the land vests with the Government and when the petitioners have received compensation including enhanced compensation, it is not open for the petitioners to seek denotification. There is no provision to denotify the lands after taking possession in accordance with law. 9. The learned counsel for respondent No.5 contends that the petitioners' lands were acquired in the year 1991 and by filing writ petition in the year 2008, the petitioners are trying to challenge the acquisition made in the year 1991 and 1992. It is his submission that the petitioners cannot have any grievance with regard to the allotment of 15 guntas of land in favour of respondent No.5 for establishment of petrol pump. When the petitioners' lands are acquired by issuing final notification, passing the award and taking possession, the lands vest with the State Government. The petitioners cannot seek for reconveyance of the lands. Further, it is contended that the petitioners have no locus standi to challenge the allotment made in favour of respondent No.5, since they neither applied for allotment of land nor they are the rival claimants. 10. The learned counsel for respondent No.5 would further submit that the site was allotted in favour of respondent No.5 on 28.12.2006. Whereas, he was member of respondent No.2-Authority subsequently from 15.02.2007 to 08.10.2007. He becoming a member of respondent No.2-Authority had no bearing on the allotment of site in his favour. 10. The learned counsel for respondent No.5 would further submit that the site was allotted in favour of respondent No.5 on 28.12.2006. Whereas, he was member of respondent No.2-Authority subsequently from 15.02.2007 to 08.10.2007. He becoming a member of respondent No.2-Authority had no bearing on the allotment of site in his favour. The learned counsel for respondent No.5 in support of his contention relies upon the decision of the Hon'ble Supreme Court reported in (1996) 3 SCC 491 and ILR 2009 KAR 446. 11. It is an admitted fact that the petitioners' lands were acquired under 4(1) and 6(1) notifications dated 09.08.1991 and 20.06.1992 respectively. In respect of the acquired lands, award was passed on 02.06.1994 and on reference, compensation was enhanced. The petitioners have received the compensation including the enhanced compensation. The petitioners have not challenged the acquisition and on the other hand they have accepted the acquisition by receiving the award amount and handing over possession. When once the acquisition proceedings is complete and possession is taken, the land vests with Government free from encumbrance. When once the lands on acquisition vest with the State Government, it is for the State Government to utilize the same for public purpose. Even if the lands are unutilized or not utilized for the purpose for which the lands are acquired, it cannot be reassigned to the petitioners nor the petitioners can seek for reconveyance of the lands on the ground that the lands are not utilized. The lands which are acquired and which are not utilized for the purpose for which they were acquired could be utilized for any other public purpose. 12. The Hon'ble Supreme Court in the case reported in (1996) 3 SCC 491 relied upon by the learned counsel for the respondent No.5 at Paragraph No.4 has held as follows: "It is contended for the respondents that since the acquisition is for housing scheme, the land cannot be used for commercial purpose, namely, District Center. Therefore, the learned single Judge and the Division Bench have rightly disapproved the change of the user contrary to the purpose notified in section 4(1) of the Land Acquisition Act. We find no force in the contention. It is conceded by the learned counsel that the construction of the District Center for commercial purpose itself is a public purpose. Therefore, the learned single Judge and the Division Bench have rightly disapproved the change of the user contrary to the purpose notified in section 4(1) of the Land Acquisition Act. We find no force in the contention. It is conceded by the learned counsel that the construction of the District Center for commercial purpose itself is a public purpose. No doubt it was sought to be contended in the High Court that in a housing scheme, providing facilities for commercial purpose is also one of the composite purposes and that, therefore, acquisition was valid in law. However, the contention was rejected by the High Court. We need not go to that part. Suffice it to state that it is a well - settled law that land sought to be acquired for public purpose may be used for another public purpose. Therefore, when the notification has mentioned that the land is sought to be acquired for housing scheme but it is sought to be used for district Centre, the public purpose does not cease to be public purpose and the nomenclature mentioned in the notification under section 4(1) as housing scheme cannot be construed to be a colorable one. The notification under section 4(1) could not have been quashed on the ground that the land is sought to be used for District Center, namely, for commercial purpose. It is obvious that the lands acquired for a public purpose should serve only the public purpose of providing facilities of commercial purpose, namely, District Center as conceded by the learned counsel in fairness to be a public purpose. The notification under section 4(1) cannot be quashed on the ground of change of user. The High Court was wholly wrong in quashing the notification on the ground of change of user." 13. Admittedly, the lands were acquired in the year 1991 and 1992 by issuing preliminary and final notifications under the Act. After more than 15 years from the date of acquisition, for the first time on 09.03.2007 petitioners are said to have made representation requesting denotification and thereafter in the year 2008 filed the present writ petition, when the acquired lands were allotted to respondent No.5 for establishment of petrol pump. There is inordinate delay of more than 15 years in questioning the acquisition or in requesting reassignment or to denotify. There is inordinate delay of more than 15 years in questioning the acquisition or in requesting reassignment or to denotify. It is not in dispute that the petitioners did not oppose the acquisition when 4(1) and 6(1) notifications were issued in the year 1991 and 1992. They participated in the award proceedings and subsequently got enhanced compensation. There is inordinate delay in approaching this Court, which is not at all explained in the writ petition. The petitioners have no right to request for denotifing the acquired land subsequent to final notification and taking possession. Here it is not in dispute with regard to taking possession of the acquired land and the petitioners having received the compensation. There is no provision under the Act to denotify the lands once the possession of the lands is taken. The Hon'ble Supreme Court dealing with the issue of denotification and whether the land could be reassigned if the land acquired is not utilized for the purpose for which it was acquired has held as follows in the judgment reported in the case of Mahadeo (Dead) though LRs and Others Vs. State of Uttar Pradesh and Others, (2013) 4 SCC 524 at paras 14 and 16: "14. There is no dispute with regard to the settled proposition of law that once the land is acquired and mandatory requirements are complied with including possession having been taken, the land vests in the State Government free from all encumbrances. Even if some unutilised land remains, it cannot be re-conveyed or re-assigned to the erstwhile owner by invoking the provisions of the Land Acquisition Act. This Court in the case of Govt. of A.P. vs. V.Syed Akbar, (2005) AIR SC 492 held that : - "10. It is neither debated nor disputed as regards the valid acquisition of the land in question under the provisions of the Land Acquisition Act and the possession of the land had been taken. By virtue of Section 16 of the Land Acquisition Act, the acquired land has vested absolutely in the Government free from all encumbrances. Under Section 48 of the Land Acquisition Act, the Government could withdraw from the acquisition of any land of which possession has not been taken. By virtue of Section 16 of the Land Acquisition Act, the acquired land has vested absolutely in the Government free from all encumbrances. Under Section 48 of the Land Acquisition Act, the Government could withdraw from the acquisition of any land of which possession has not been taken. In the instant case, even under Section 48, the Government could not withdraw from acquisition or to reconvey the said land to the respondent as the possession of the land had already been taken. The position of law is well settled. In State of Kerala and Others. v. M. Bhaskaran Pillai & Anr., (1997) 5 SCC 432 para 4 of the said judgment reads: (SCC p. 433) '4. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value. '" 15. XXXXX 16. Indisputably, the land in question was acquired by the State Government for the purpose of expansion of the city i.e. construction of residential/commercial building under planned development scheme by the Meerut Development Authority and that major portion of the land has already been utilized by the Authority. '" 15. XXXXX 16. Indisputably, the land in question was acquired by the State Government for the purpose of expansion of the city i.e. construction of residential/commercial building under planned development scheme by the Meerut Development Authority and that major portion of the land has already been utilized by the Authority. Merely because some land was lef t at the relevant time, that does not give any right to the Authority to send proposal to the Government for release of the land in favour of the land owners. The impugned orders passed by the High Court directing the Authority to press the Resolution are absolutely unwarranted in law." 14. The petitioners have no locus standi to challenge the allotment of land made in favour of respondent No.5 for the purpose of establishment of petrol pump. The petitioners have neither made application for allotment of land nor they are the rival contenders for establishment of petrol pump. The respondent No.5 made application for allotment of land for establishment of petrol pump and respondent taking into consideration the necessity of petrol pump, as there was no petrol pump for about 7 k.m. on the Navanagar and Bagalkot link road, allotted 15 guntas of land. The petitioners cannot have any grievance with regard to allotment of land to respondent No.5. The establishment of petrol pump would be for general public and it cannot be at any stretch could be considered as for private purpose. In the decision cited by the petitioner i.e. in the case of Mrs.Behroze Ramyar Batha and Others Vs. The SLAO Bangalore, (1992) 1 KarLJ 589 (DB) it is observed that "where a cross section of the public or even an individual is benefited as a member of public and not as an individual thereof, certainly it will be a public purpose." Hence, the contention that allotment of land to respondent No.5 for establishing petrol pump is not for public purpose cannot be accepted. Admittedly, the petitioners' lands were acquired for formation of road in the Bagalkot Navanagar areas. So as to achieve around development of the Bagalkot Navanagar area and with an object of securing further development, the respondent Authority allotted the land for establishment of petrol pump. 15. The petitioner relied on the decision reported in Royal Orchid Hotels Limited and Another Vs. So as to achieve around development of the Bagalkot Navanagar area and with an object of securing further development, the respondent Authority allotted the land for establishment of petrol pump. 15. The petitioner relied on the decision reported in Royal Orchid Hotels Limited and Another Vs. G.Jayarama Reddy and Others, (2011) 10 SCC 608 to contend that lands acquired for the purpose of formation of road could not have been allotted to petrol pump. With respect I find that the said decision would have no application to the facts of the present case. In the above cited decision lands were acquired for public purpose and then the same were transferred to a private individual and corporate entities by citing poor financial health of the corporation as the cause for doing so. Moreover, in that case the acquisition notification concerned had already been quashed in their entirety in earlier writ petitions filed by some land owners. Under those circumstances, the Hon'ble Supreme Court observed that land acquired for public purpose cannot be transferred to private parties. 16. Further, the contention of the petitioners is that respondent No.5 was the member of respondent No.2-Authority and respondent No.5 got allotted the land in his favour. The learned counsel for respondent No.5 repelling the contention of the petitioners has stated that the allotment of land for the purpose of establishment of petrol pump was much prior to respondent No.5 becoming the member of respondent No.2-Authority. He submitted that respondent No.5 became member of respondent No.2-Authority on 15.02.2007 and he was member till 08.10.2007. But he submits that the site for establishment of petrol pump was allotted much prior i.e. on 28.12.2006. Therefore, taking into consideration the above factual position, I am of the view that the petitioners' contention would not merit any consideration. 17. For the reasons stated above, the writ petition is rejected.