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Judgment
Anand Byrareddy, J.—These petitions are heard and disposed of together, as the issues that arise for consideration are the same. Re. WP 24393/2013:
The petitioner claims to be the absolute owner of property bearing No. 1070, I Block, Gnanabharathi Layout, Bangalore, measuring about 30'' X 40''. The said site was formed as part of a residential layout by the Bangalore Development Authority (BDA). The same is now said to be within the jurisdiction of the Bruhath Bangalore Mahanagara Palike (BBMP) and the property is said to be shown in the name of the petitioner in the records of BBMP.
It is stated that the above said residential layout was formed after acquiring lands under the provisions of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as ''the BDA Act'', for brevity) initiated in the year 1989 and as per final notification u/s 19(1) of the BDA Act as on 19.1.1994. Upon formation of the layout, the site in question is said to have been allotted to the petitioner under the provisions of the Bangalore Development Authority (Allotment of Sites) Rules, 1984, (Hereinafter referred to as ''the BDA Rules'', for brevity). The property is said to have been conveyed to the petitioner after complying with all procedural requirements.
It transpires that as on 12.8.2011, respondent No. 5 is said to have descended with men and machinery and commenced digging up the roads and other infrastructure in the vicinity of the petitioners property, in an attempt to purportedly restore the land to its original state. When he is said to have been questioned, it was indicated that the State Government had issued a Notification withdrawing from the acquisition of the land over which the layout had been formed and since he was the original owner of the land, he had a right over the property to reclaim it. It was then discovered that there was indeed a notification issued u/s 48(1) of the Land Acquisition Act, 1894 (Hereinafter referred to as ''the LA Act'', for brevity) dated 6.10.2010 proposing to withdraw from the acquisition of lands in Valagere village, which had been utilized in the formation of the layout. The property of the petitioner was apparently included therein. However, by a further notification dated 23.11.2012, the notification dated 6.10.2010 was said to have been withdrawn. The said withdrawal has been questioned by respondent No. 5 by recourse to a Writ petition before this court in W.P. No. 50415/2012, which is heard along with the present petition. The present petition is filed questioning the propriety of having issued the notification u/s 48(1) of the LA Act, in the first instance and the consequent damage and hardship that followed on the fifth respondent taking law into his own hands. The petitioner has sought for damages in view of the same, especially for the mental agony to which the petitioner is said to have been exposed on account of the unwarranted action of the State.
W.P. No. 50415/2012:
The petitioner is said to have been in possession and enjoyment of properties in Survey Nos. 59/4 to 59/11, 59/17 and 58/18, in all measuring about 3 acres at Valagerehalli, Bangalore South Taluk. It is these and other lands which were notified for acquisition and the Gnanabharathi layout was formed by the BDA as already stated above. But, however, the petitioner had claimed that he continued to be in possession and is said to have approached the State Government with a representation dated 2.1.2002 seeking that the State Government withdraw from the acquisition, the petitioner claimed that there was an existing Brick factory and other permanent structures.
The petitioner is said to have approached this court in the first instance, challenging the acquisition proceedings by way of a writ petition in W.P. 12679/2002, which was disposed of on 12.3 2004, with a direction to the respondents to consider the representation said to have been made by the petitioner. As there was no further action taken by the respondents, the petitioner is said to have filed another writ petition in WP 10710/2005. In the course of those proceedings, the BDA is said to have admitted the existence of the structures on the petitioner''s land. This court is said to have directed the parties to maintain status quo, as per order dated 13.4.2005.
It thereafter transpires that inspite of two separate opinions furnished by the Law Department, to the effect feat there are permanent structures existing over the petitioner''s land and recommending that the land was qualified for withdrawal from acquisition, the Administrative Department did not agree with the finding that possession had not been taken of the lands in question and rejected the representation of the petitioner, as on 31.10.2007. In the light of which, the petition in WP 10710/2005 was dismissed as having become infructuous, by order dated 17.6.2008. The said Order dated 31.10.2007 was unsuccessfully challenged in yet another writ petition in W.P. 11266/2008, which was said to have been withdrawn on 30.10.2008. The petitioner is said to have made another representation to the State Government reiterating his original request. The same having been rejected yet again, by an Order dated 31.1.2009, the same was subject matter of challenge in a writ petition in W.P. Nos. 13693-702/2009. During the pendency of the said petition, the State Government is said to have issued a notification dated 6.10.2010, withdrawing from the acquisition. The Petitioner claims to have immediately formed house sites on his lands and sold several such sites to third parties. At the above stage, several persons, said to be allottees of sites through the BDA in the very lands, are said to have filed writ petitions in WP 32457-458/2011, questioning the issuance of a notification u/s 48(1) of the LA Act, by the State Government as aforesaid. Even during the pendency of the said writ petition, the State Government is said to have withdrawn the notification dated 6.10.2010, by its notification dated 23.11.2012. Consequently the writ petition in W.P. 32457-458/2011, was withdrawn. The petitioner has challenged the notification dated 23.11.2012.
Re. WP 22779/2013:
The petitioner is said to be an allottee of a residential site by the BDA and the absolute owner in possession of the same bearing No. 1051, I Block, Gnanabharathi Layout, Bangalore and has raised an identical complaint as in the above petition in W.P. No. 24393/2013.
The learned Senior Advocate Shri Ashok Haranahalli appearing for the counsel for the petitioner in WP 50415/2012 would contend that, as stated in the petition, the State Government having issued a notification seeking to withdraw from the acquisition, in so far as the petitioner''s land was concerned, as per Annexure-L, dated 6.10.2010, pursuant to which, the petitioner had formed sites on the said land and sold the same under registered sale deeds in favour of third-parties. The withdrawal from acquisition, as aforesaid, was sought to be questioned by several persons claiming to be allottees of sites, under the BDA by way of writ petitions in WP 32457-458/2011 before this court. Even during the pendency of the said petitions, the State Government had issued another notification, dated 23.11.2012 withdrawing the notification u/s 48(1) of the LA Act, withdrawing from the acquisition.
It is contended that the impugned notification issued by the second respondent-State Government is arbitrary, illegal and unsustainable. The second respondent has issued the impugned notification thereby withdrawing the de-notification dated 6.10.2010, which is impermissible in law. The de-notification issued u/s 48(1) of the LA Act, could not have been withdrawn by the State Government even without providing an opportunity of hearing and without complying the principles of natural justice. The compliance of the principles of natural justice is mandatory even in the absence of any provision provided in the statute. The petitioner was conferred upon a right in respect of the properties by issuing de-notification dated 6.10.2010 and the same could not have been taken away without hearing the petitioner.
It is contended that the impugned notification issued by the State Government is without any justification. The notification now issued by the State Government does not contain any reasons and no proper and justifiable reason is forthcoming for withdrawal of the notification and is liable to be set aside.
Further, the notification impugned in the present writ petition is without jurisdiction and the same is impermissible in law. The LA Act provides for issue of de-notification u/s 48(1). The State Government had issued de notification by exercising its powers u/s 48(1) of the LA Act. The same is now sought to be withdrawn by issuing notification dated 23.11.2012. The exercise of such power by the second respondent-State Government is not traceable to any of the provisions either under the BDA Act or under the LA Act. In the absence of any such power conferred upon by the statute and without there being any enabling provision, the issue of impugned notification is unsustainable.
It is further contended that the State Government ought to have noticed that the de-notification was issued u/s 48(1) of the LA Act, on taking into consideration the legal opinion furnished by the Law Department. In the legal opinion, it was categorically mentioned that there was a brick factory and there were newly constructed houses existing in the land in question. It was also observed in the opinion that the reports of the BDA in relation to the possession of the property runs contrary to each other. Accordingly, the opinion was furnished stating that the lands in question can be de-notified. The State Government has also obtained another legal opinion and in the subsequent opinion also, the Law Department has reiterated the contents of the earlier opinion and recommended for issue of de-notification. It is only thereafter that the de-notification came to be issued. It appears that the impugned notification now issued is ignoring the two opinions of the Law Department and taking into consideration the facts and circumstance of the case involved. Thus, the impugned notification is liable to be set-aside.
It is contended that the State Government ought to have noticed that the petitioner continued to be in possession of the property in question notwithstanding the issue of preliminary and final notifications. The notification issued u/s 16(2) was only on paper and the physical possession was not taken at all at any point of time. Even as on date, the brick factory is being run and the people are residing in 12 RCC houses constructed on the land. The Law Department, having regard to the same, has opined that the lands can be de-notified as the possession of the land continued to remain with the owner. This aspect of the matter was overlooked by the second respondent for the reasons best known to it. The issue of the impugned notification is nothing but abuse of power and colourable exercise of power.
It is contended that the de-notification came to be issued by the State Government on 6.10.2010. The impugned notification now issued withdrawing the said notification is after lapse of more than two years. The State Government could not have issued the impugned notification at this length of time in as much as several developments have taken place. Pursuant to the de-notification dated 6.10.2010, the petitioner has sold the sites in favour of third-parties. The exercise of power by the State Government should have been within a reasonable time. It is, therefore, contended that the impugned notification could not have been issued without considering the subsequent events or developments and hearing the parties interested.
On the other hand, Shri Madhusudhan Rao appearing for the petitioners in the connected petitions and for the respondent in W.P. No. 50415/2012, seeks to justify the notification dated 23.11.2012 and in support of the prayer seeking compensation for the damage caused to the roads and other areas meant for the benefit of the allottees of sites in the layout, caused by respondent No. 5, the erstwhile land owner who was purportedly acting on the strength of and pursuant to the notification dated 6.10.2010, issued by the State withdrawing from the acquisition proceedings.
It is contended that admittedly the preliminary notification was issued in the year 1989 and the final notification was issued in the year 1994 and the layout has been formed and sites were allotted in the year 2000 and the sale deeds were executed in the year 2001 in favour of the respective allottees and some of the allottees, who have absolute sale deeds in their favour have lawfully transferred their sites to the subsequent purchasers like the petitioner and in this background, the very concept of de-notification after 17 years is something ex-facie illegal and without any authority of law.
The notification has been issued by respondent No. 1 purportedly exercising its power u/s 48(1) of the LA Act. Section 48(1) specifically provides that the Government can withdraw from acquisition of any land of which the possession has not been taken. In the instant case admittedly, the site of the petitioner has been formed in the layout, which has been formed after the acquisition proceedings are over and after taking possession of the land and after formation of sites therein. The sites have already been sold by respondent No. 2 to their respective allottees, including the predecessor in title of the petitioner. In this background, the question of exercising the power u/s 48(1) does not arise and the very notification issued by respondent No. 1 is contrary to the very provisions of Section 48(1) of the LA Act and the same is without jurisdiction.
Respondent No. 5, at whose instance, the impugned notification has been passed, has no right to get the same issued and the impugned notification has been issued for extraneous considerations and with obvious intention to help respondent No. 5. In this view of the matter, the impugned notification is a clear case of mala fide exercise of power.
Respondent No. 5 had no right what so ever to trespass into the layout and damage the roads which are formed therein. The officials of respondent No. 2 have been silent spectators and they have supported the cause of respondent No. 5 stating that there is de-notification in his favour. In this view of the matter, the pleas that were made by the petitioner and others before the officials of respondent No. 2 and respondent No. 4 have been in vain and the petitioner and the other allottees were hapless spectators to the misery caused to them.
It is therefore contended that respondent No. 4 being the statutory authority, which has the responsibility of maintaining the roads and maintenance in the layout, has been a silent spectator to the damage caused by respondent No. 5 to the roads. The very conduct of respondent No. 4 in not taking any action against respondent No. 5 amounts to a clear case of dereliction of duty on the part of respondent No. 4.
In the light of these rival contentions and on examination of the record that is made available, the points that would arise for consideration are:
a) Whether the State had satisfied itself that it was possible to withdraw from the acquisition proceedings in respect of the subject land in issuing the notification, dated 6.10.2010, u/s 48(1) of the Land Acquisition Act, 1894.
b) Whether the State could and was justified in withdrawing the notification dated 6.10.2010 by a further notification dated 23.11.2012. And whether can claim a right to be heard before the issuance of the same.
It is seen from the record that though the land belonging to the petitioner in W.P. No. 50415/2012, had been notified for acquisition and a final notification was issued as early as in the year 1994, the petitioner had sought to challenge the acquisition proceedings in the year 2002 by recourse to a writ petition before this court in W.P. No. 12679/2002, which was disposed of by an order dated 12.3.2004, with a direction to the State Government to consider the representation made by the petitioner seeking withdrawal from the acquisition. It is seen from the record that a Committee known as a de-notification Committee had considered the case of the petitioner and had recommended that the petitioner''s request be rejected as per order dated 5.3.2003 itself. But for reasons best known, the same was not communicated to the petitioner. As there had been no formal response from the State, the petitioner is said to have approached this court yet again in another writ petition in W.P. No. 10710/2005, it was during the pendency of the said petition that the request of the petitioner was rejected by an order dated 31.10.2007, which was duly communicated to the petitioner, on the ground that possession of the lands had been taken and hence the request could not be entertained.
The petitioner had filed another writ petition in W.P. No. 11266/2008 questioning the order dated 31.10.2007, but withdrew it on 30.10.2008 and is said to have made further representations to the State government. This representation was considered and rejected by an Order dated 20.3.2009, declaring that the law did not permit the withdrawal from the acquisition proceedings. The said order was the subject matter of challenge in another writ petition in W.P. Nos. 13693-702/2009. It was during the pendency of the said writ petition that the State Government on the basis of the following Order passed by the then Chief Minister that the State Government issued the notification dated 6.10.2010, u/s 48(1) of the LA Act, choosing to withdraw from the acquisition proceedings in respect of the petitioner''s lands.
The order passed by the Chief Minister as per the note sheet in the file, and loosely translated to English reads thus:
NOTE SHEETS
Sub: Dropping of lands, from acquisition, in Survey No. 59/4, 59/11, 59/17, 59/18 of Valagerahalli Village, Kengeri Hobli, Bangalore South Taluk.
NAE/456/BLA/2000 NAE/59/BLA/2009
The lands bearing Survey Nos. 59/4 to 59/11, 59/17 and 59/18, totally measuring 3 acres, having been reported to be notified for acquisition by the Bangalore Development Authority for Gnanabharathi Layout and the same having been taken into possession, the petitioners, even prior to the said notification, having got the said lands converted through the Deputy Commissioner and having formed private revenue layouts and having sold the same, these revenue site holders have constructed houses and are residing therein. It is also reported that the Authority has formed a layout in the lands in question and has also issued the Lease Deed. It is also evident from the records that the petitioners have approached the court. On perusal of the reports of the Bangalore Development Authority, City Improvement Department and the Law Department, as the petitioners are residing in the houses constructed in the said lands, considering the request of the petitioners on humanitarian grounds and since the Authority had allotted sites and had given lease deeds in respect of the lands in Survey No. 59/4 to 59/11, 59/17 and 59/18, totally measuring 3 acres of the Valagerahalli Village, Kengeri Hobli, Bangalore South Taluk, excluding those sites, the rest of the lands namely, 10 guntas in Survey No. 59/4, 9 guntas in Survey No. 59/5, 7 guntas in Survey No. 59/6, 6 guntas in Survey No. 59/7, 35 guntas in Survey No. 59/8, 13 guntas in Survey No. 59/9, 8 guntas in Survey No. 59/10, 2guntas in Survey No. 59/11, 6 guntas in Survey No. 59/17 and 6 guntas in Survey No. 59/18, (totally 2 acres 22 guntas) are ordered to be dropped from acquisition by the Bangalore Development Authority.
From the above, it is evident that the above notification is issued in the teeth of repeated rejection of the petitioner''s persistent requests for withdrawal from the acquisition and the strong resistance by the officialdom and the BDA, and is attributable only to the benevolence of the then Chief Minister, which is extended even while taking note of the fact that the BDA had formed a residential layout and had sold the sites to third party allottees. Therefore, it cannot be said that the State was in a position to have issued the notification u/s 48(1) of the Act as at Annexure-J.
It is seen from the records that the above action on the part of the State was vehemently questioned by the BDA and it is after much persuasion from within that the State Government has chosen to issue a further notification dated 23.11.2012 to recall the notification dated 6.10.2010, to merely set at naught a blatant illegality. The contention on behalf of the petitioner, the erstwhile land owner, that it was necessary to have afforded a hearing before issuing the notification dated 23.11.2012, as he becomes invested with rights over the land by virtue of the issuance of a notification u/s 48(1) of the LA Act, and that therefore the impugned notification be quashed - is not tenable. If once it is held that the notification dated 6.10.2010 is non-est and illegal, the examination of the validity or otherwise of the notification dated 23.11.2012 is redundant.
In so far as the claim of the petitioners in WP 22779/2013 and WP 24393/2013 for compensation is concerned - as the petitioners would have to establish the actual damage suffered on account of the action on the part of the State as well as the alleged acts of the erstwhile land owner, the said petitioners are at liberty to institute a civil suit for damages in accordance with law.
In the light of the above, the Notification dated 6.10.2010, Annexure-J in WP 24393/2013 and WP 22779/2013 is hereby quashed. WP 50415/2012 is dismissed. WP 24393/2013 and WP 22779/2013 are allowed in part.