R. Hanumaiah vs State of Karnataka and Others

K.L. Manjunath, J.—Aggrieved by the dismissal of the writ petitions filed by the appellants herein in W.P. Nos. 21186 and 23885 to 23895 of 2010, dated 20-4-2012. The unsuccessful writ petitioners are in these appeals. Heard Sri S. Vijayshankar, learned Senior Counsel appearing for the appellants, learned Government Advocate for respondent 1 and Sri D.N. Nanjunda Reddy, learned Senior Counsel appearing for respondents 2 and 3 and the learned Counsel appearing for the applicants.

The facts leading to these appeals are as hereunder:

According to the appellants, about 180 acres of lands of their family situated in Jakkasandra Village at Bangalore South Taluk was acquired by the then City Improvement Trust Board, Bangalore (hereinafter referred to as ''C.I.T.B.'' for short) under a preliminary notification dated 26-11-1959 for formation of house sites and industrial sites. A further extent of 102 acres of land was acquired for formation of St. John''s Medical College in the year 1965. On 26-6-1969 the then C.I.T.B., Bangalore passed a resolution to recovery 8 acres, 21 juntas of land in Survey Nos. 26/1, 36/6, 32/8, 32/9, 32/10 and 32/17 of Jakkasandra Village now known as Koramangala Extension, Bangalore South Taluk, subject to condition that they shall withdraw all the cases pending in various Courts.

According to the appellants, by their letter dated 24-1-1972, it was informed to then C.I.T.B. that they have no objection to withdraw the cases and they are agreeable to the terms and conditions imposed by the then C.I.T.B. vide a letter dated 8/9-5-1972 the C.I.T.B., intimated about the Board''s resolution dated 19-4-1972 resolving to convey 6 acres, 20 juntas and 42 sq. yards and the concerned survey numbers was also mentioned vide Annexure-D to the writ petition. Since the resolution passed by the C.I.T.B. was not acted upon, a writ petition came to be filed in W.P. No. 15487 of 1987 to issue a writ of mandamus to recovery the land of 6 acres, 21 juntas and 42 sq. yards. The said petition came to be dismissed on 3-4-1989, with a direction that the applicants can file an application for grant of sites. Aggrieved by the dismissal of the writ petition, an appeal came to be filed in W.A. No. 727 of 1989 (R. Hanumaiah and Others v. Bangalore Development Authority and Others 2001 (8) Kar. L.J. 239 (DB)), which also came to be dismissed. Ultimately, the matter was carried to the Hon''ble Apex Court in SLP No. 164 of 2002 (C.A. No. 971 of 2003), in Bangalore Development Authority and Others Vs. R. Hanumaiah and Others, and the Hon''ble Apex Court remanded the matter to the Division Bench to rehear the matter afresh in accordance with law by its order dated 31-1-2001.

After remand, the writ appeal was reheard by a Division Bench of this Court and the appeal came to be allowed on 10-7-2001, directing the respondent-Bangalore Development Authority (hereinafter referred to as ''BDA'' for short) to issue possession certificate to the appellant.

Aggrieved by the directions issued by the Division Bench of this Court, again, the matter was carried to the Hon''ble Supreme Court in Civil Appeal No. 971 of 2003. The appeal filed by the BDA before the Hon''ble Supreme Court was allowed. Consequently, the writ petition filed by the appellants herein came to be dismissed. Aggrieved by the allowing of Civil Appeal No. 971 of 2003, filed by the BDA, the deceased appellant filed a review petition before the Hon''ble Supreme Court, which also came to be dismissed. When the matter was pending before the Hon''ble Supreme Court, certain amendments were brought into the Bangalore Development Authority Act, 1976, by Karnataka Act No. 17 of 1994, and certain provisions were inserted, providing for reconveyance of block allotment, allotment in certain cases etc. Section 9 of the Amended Act provides for safeguarding of certain resolutions made by the BDA and its predecessor between 20-12-1973 and 8-5-1986, and relying on the aforesaid provisions of the amended Act and based on the resolutions dated 26-6-1969 and 19-4-1972, the appellants filed writ petition in W.P. No. 26826 of 2005, challenging the constitutional validity of Section 9 of Bangalore Development Authority (Amendment) Act, 1994 (Act No. 17 of 1994). In the said writ petition, an interim order was passed in favour of the appellants herein on 24-3-2009. The interim order reads as hereunder:

"It is for the BDA and to Government to allot the land, which is available and fenced by the petitioners, i.e., to the extent of 6 1/2 acres the same could be allotted in favour of the petitioners or for better reasons, alternative land could be identified and allotted, which would be convenient to the petitioners. If any allotment sought to be made to other public in the area, alternative allotment may be made to these allottees elsewhere. A decision be taken to leave out the said land to the petitioners in lieu of the compensation which they are foregoing".

The BDA aggrieved by the interim order dated 24-3-2009, filed an appeal before the Division Bench, in W.A. Nos. 1514 and 1515 of 2009. When the matter was pending before the Division Bench, the Government by its order dated 14-10-2009 ordered to denitrify the lands to an extent of 6 acres, 21 juntas and notification under Section 48(1) of the Land Acquisition Act, 1894 came to be passed in favour of the appellant.

Since the land was denitrified by the Government by issuing notification under Section 48(1) of the Land Acquisition Act, the writ appeals came to be dismissed on filing a memo dated 31-10-2009, the above said memo was filed by the BDA. Subsequently, on 2-11-2009 the appellants who were writ petitioners in W.P. No. 26826 of 2005 also withdrew the writ petition on the ground that the land has been denitrified and that the writ petition has become in fructuous.

When the matter stood like this, all of a sudden an order was passed by the Government on 13-11-2009, to withdraw the notification dated 14-10-2009, without giving an opportunity to the appellants and without hearing them. They questioned the order dated 13-11-2009 by filing a writ petitions in W.P. No. 21186 of 2010 connected with W.P. Nos. 23885 to 23895 of 2010, requesting the Court to quash the notification dated 13-11-2009, vide NA, AAE-141, BEMAASE 2006 and to further declare that the earlier notification dated 14-10-2009 would inure to the benefit of the appellants to an extent of 6 acres, 20 juntas and 42 sq. yards of land in different survey number of Jakkasandra Village, Bangalore South Taluk.

The main contention of the appellants before the learned Single Judge was that before withdrawing the notification issued under Section 48(1) they were not heard in the matter and the same is against the principles of natural justice. The BDA contested the matter on the ground that no illegality or irregularity has been committed by the State Government in withdrawing the notification issued earlier under Section 48(1), since the Government had no power to issue notification under Section 48(1). In view of the finality attained in respect of some of the properties between the same parties and in view of the judgment of the Hon''ble Apex Court in R. Hanumaiah''s case. The learned Single Judge after hearing the parties has dismissed the writ petition. Therefore, the present appeals are filed.

The main contention of the Sri Vijay Shankar, learned Senior Counsel appearing for the appellants is that before issuing notification under Section 48(1) of the Land Acquisition Act, 1894, the Government pursuant of the interim order granted by this Court in W.P. No. 26826 of 2005 had secured the report from the BDA and after securing the report from BDA and after considering the matter in detail had passed an order to denitrify the land and thereafter, a notification under Section 48(1) of the Act came to be issued. According to him when once notification under Section 48(1) is issued, the same could not have been withdrawn by the Government unilaterally without hearing the appellants herein, since the earlier order had inured to their benefit. According to them, the procedure followed by the State Government in passing the impugned order is quite contrary to the judgment of the Hon''ble Apex Court in Mysore Urban Development Authority v. Veer Kumar Jain and Others. Therefore, he requests the Court to allow the appeal and set aside the order of the learned Single Judge, since the learned Single Judge has committed an error in not following the aforesaid judgment of the Hon''ble Supreme Court and remand the matter for the Government for fresh consideration in accordance with law to enable the appellants herein to put forth their grievance and all other points which are available to him, to see that the notification issued under Section 48(1) of the Land Acquisition Act is undisturbed.

Sri D.N. Nanjunda Reddy, learned Senior Counsel appearing for the BDA, submits that since the list between the appellants and the BDA had come to an end and in view of the judgment of the Hon''ble Apex Court between the same parties, which is in R. Hanumaiah''s case, the Government had no power to issue a notification under Section 48(1) of the Act and issuance of the notification under Section 48(1) of the Act is an illegality, therefore the Government had every authority to withdraw the same. According to him, the question of remanding the matter to the Government to reconsider the matter afresh would be a futile exercise in view of the judgment of the Hon''ble Apex Court. Therefore, he requests the Court to dismiss the appeal retrospectively. He alternatively contends that in case this Court holds that the Government has failed to follow the judgment of the Hon''ble Apex Court in the case of Mysore Urban Development Authority, then also this Court is required to set aside its notification under Section 48(1) of the Act giving liberty for the BDA to put forth its grievance and show that Government can pass an order afresh in accordance with law.

The learned Counsel appearing for the applicants are adopting the arguments of Sri D.N. Nanjunda Reddy, learned Senior Counsel appearing for the BDA, submit that the writ appeals are required to be dismissed since no error is committed by the learned Single Judge in dismissing the writ petition.

Having heard the learned Counsel for the parties, what is to be considered by us in these appeal is:

"Whether the learned Single Judge has committed an error in dismissing the writ petition without considering the judgment of the Hon''ble Apex Court in Mysore Urban Development Authority''s case?"

Having heard the learned Counsel for the parties, the following points are not in dispute in these appeals:

Both the parties are not disputing that a vast extent of lands of the appellant''s family was notified for acquisition by the then C.I.T.B., and a preliminary notification dated 26-11-1959, was issued for formation of the residential sites and industrial sites and further a large extent of land measuring 102 acres juntas of land was also acquired for establishing St. John''s Medical College under the notification of the year 1969. While notifying the land for acquisition for the formation of the St. John''s Medical College, a resolution was passed to recovery 8 acres, 21 juntas of land in Survey Nos. 26/1, 32/6, 32/8, 32/9, 32/10 and 32/17 of Jakkasandra Village. Since the land was not reconvened as stated above, pursuant to the resolution of the C.I.T.B., the appellant herein had taken up the matter to this Court in W.P. No. 15487 of 1987 which was later decided by this Court in favour of the appellant in W.A. No. 727 of 1989. The judgment of the Division Bench in W.A. No. 727 of 1989 came to be set aside by the Hon''ble Supreme Court in Special Leave Petition No. 9456 of 1989.

Thereafter, the appellant herein taking advantage of the amendment to the BDA Act and insertion of Sections 38-B, 38-C, 50, 64, 8 and 9, filed a writ petition in W.P. No. 26826 of 2005, challenging the constitution validity of the Section 9 of the BDA (Amendment) Act, 1994 (17 of 1994). In the aforesaid writ petition, an interim order was passed on 24-3-2009 directing the BDA and Government to take a decision in favour of the appellants.

It is also not in dispute that pursuant to the interim order granted in favour of the appellant, the appellant gave a representation to the State of Karnataka for reconvening the land to the extent of 6 1/2 acres. In the meanwhile, the BDA had filed an appeal questioning the legality and correctness of the interim order dated 24-3-2009, by filing Writ Appeal Nos. 1514 and 1515 of 2009 and the interim order granted by the learned Single Judge was stayed by the Division Bench in the aforesaid writ appeals.

It is also not in dispute that the Government after securing the opinion from the BDA had passed an order to denitrify the land under Section 48(1) of the Land Acquisition Act and the same was notified on 14-10-2009. It is also not in dispute that a notification came to be issued in Gazette under Section 48(1) of the Act. Before denitrifying the lands, the Government had directed the BDA to withdraw the appeals filed. After directing the BDA to withdraw the appeal filed by it an order has been passed to denitrify the lands by its order dated 14-10-2009 and after issuance of notification under Section 48(1), the writ appeal filed by the BDA has been withdrawn and the writ petition filed by the appellants has also been withdrawn. Then all of a sudden, the Government by its order dated 13-11-2009, has withdrawn the notification dated 14-10-2009 without hearing the appellants and without there being any discussion on the subject and reasons for withdrawing the notification issued on 14-10-2009. Therefore, the short question that arises for our consideration is:

"Whether the notification issued under Section 48(1) could be withdrawn by the State Government without giving any opportunity to the appellants herein?"

The contention of Sri Nanjunda Reddy, learned Senior Counsel appearing for BDA is that the Government had no power to issue notification under Section 48(1) of the Land Acquisition Act, in view of the decision of the Hon''ble Supreme Court in SLP No. 164 of 2002 (C.A. No. 971 of 2003), in R. Hanumaiah''s case. Therefore, he contends that there is no necessity for the hearing the Government to hear the appellants by the Government for withdrawing the notification issued under Section 48(1) of the Land Acquisition Act.

According to Sri Vijaya Shankar, learned Senior Counsel, even to withdraw the notification under Section 48(1) of the Land Acquisition Act, the Government was required to give an opportunity for the appellants as the order passed on 13-11-2009 is contrary to the principles of natural justice, since the appellants could have defended the notification under Section 48(1) if an opportunity had been given to them.

Therefore, in this background, we have perused the original records produced by the State Government. We have also perused the noting in the file. In paragraph 73, the Under Secretary to the UDD, has placed the draft notification for the approvable of the Hon''ble Chief Minister and the same has been approved by the Joint Secretary and accordingly the order came to be passed. Then all of a sudden, without there being any further nothings, in paragraph 81 of the noting, an order has been passed as hereunder:

Except this one sentence of order, nothing is forthcoming in the file as to what prompted the Government or the Hon''ble Chief Minister to withdraw the notification issued earlier under Section 48(1) of the Land Acquisition Act, in order to justify the action of the Government. Therefore, in this background it is useful for us to refer to the judgment of the Hon''ble Apex Court relied upon by the appellants in the case of Mysore Urban Development Authority, at para 13:

"13. There is no dispute that the landowners were not heard before issuing the cancellation notification dated 22-7-2002. Therefore, the order dated 22-7-2002 is illegal being opposed to the principles of natural justice. In such a case, usually the cancellation of de notification, being opposed to the principles of natural justice, would be set aside and the Government would be directed to reconsider the matter after giving due opportunity to the affected parties (landowners whose lands were withdrawn from acquisition) to have their say in the matter. But then we face a dilemma. If the order dated 22-7-2002 is quashed as being violative of the principles of natural justice, it will result in the revival of the order dated 15-9-2001 which also suffers from the same vice, as that we also made in violation of the principles of natural justice, without the affected party, that is, MUDA".

In view of paragraph 13 of the aforesaid judgment, we are of the view that since the Government has passed an order to withdraw the earlier notification without application of mind and without giving any opportunity to the appellants to substantiate how the notification issued under Section 48(1) could be sustained, we are of the view that the matter requires to be reconsidered by the State Government afresh by giving an opportunity to the appellants.

Sri Nanjundareddy, learned Senior Counsel submits that since the earlier notification passed under Section 48(1) of the Land Acquisition Act was passed by the Government unilaterally without hearing the BDA, therefore he submits that the earlier notification issued under Section 48(1) by the Government dated 14-10-2009 also requires to be set aside. So far as this point is concerned, on perusal of the records, before passing an order under Section 48(1), the Government had consulted the BDA, and BDA has not objected for issuance of a notification under Section 48(1) of the Act. Therefore, in the appeal of the appellants we cannot set aside the order passed by the Government under Section 48(1) of the Land Acquisition Act dated 14-10-2009. However, it is needless to state that when an opportunity is given to the appellants to hear them by the Government before withdrawing the order/notification, BDA also can put forth its contention before the Government. If a request is made by the BDA it is for the Government to hear the BDA also.

In the circumstances, we are of the view that an error is committed by the learned Single Judge in not considering the effect of non-adhering to the principles of natural justice by the Government in passing an order on 13-11-2009. Therefore, the order passed by the learned Single Judge has to be set aside.

In the result, the order dated 13-11-2009 passed by the State of Karnataka vide NA, AAE-141, BEMAASE 2006, is hereby quashed. It is for the Government to reconsider the matter afresh by giving an opportunity to the appellants and the BDA. The contentions of all the parties are kept open.