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Judgment
B.V. Nagarathna, J.—The appellant is one of the respondents in the writ petitions which have been disposed of by the learned Single Judge by his common order dated 02/01/2013 and an allottee of land from Hassan Urban Development Authority (for the sake of convenience referred to as "HUDA"). The appellant had also filed W.P. No. 361/2008. By the common order the learned Single Judge dismissed W.P. No. 361/2008 and allowed in part W.P. No. 1914/2007 and other writ petitions, in which the appellant was one of the respondents. Being aggrieved by the said order, these writ appeals have been preferred. W.P. No. 1915/2007 and other connected matters were filed by the owners of lands assailing the preliminary notification dated 26/02/2002 and final notification dated 03/12/2002 issued under Sections 17 and 19 respectively of Karnataka Urban Development Authorities Act, 1987 (for short "the Act") insofar as it pertains to their lands. Land measuring 394 acres 35 guntas was sought to be acquired for the benefit of HUDA for the formation of ''Sri. S.M. Krishna Nagar''. Apart from assailing the notifications, certain land owners had also sought a declaration that the acquisition proceedings had lapsed. Certain other land owners had also sought quashing of bulk allotment made to various organizations including the appellant herein. The appellant in its writ petition had assailed the cancellation of allotment of six acres of land to it. The cancellation was made on account of the delay in payment of allotment charges.
In the writ petitions, two preliminary objections were raised by the respondents. One was that the majority of the land owners some of whom were the petitioners, had consented for awards being passed and had received compensation and therefore, they were estopped from challenging the acquisition proceedings. The second objection was that the petitions were liable to be dismissed on the ground of delay and laches. HUDA contended that the preliminary and final notifications were of the year 2001 and 2002 respectively, but the writ petitions were filed between 2007 and 2011, after delay of nearly five to nine years. That in the interregnum, subsequent to the passing of the award, possession had been taken and the lands vested in the State Government and thereafter the lands were made over to HUDA. When once the lands were vested with the State Government, they could not be divested at the instance of the erstwhile land owners.
On the first preliminary objection, learned Single Judge held that the petitioners were indeed estopped from challenging the acquisition notifications. However, the relief sought by them could be moulded despite there being delay in assailing the acquisition of the lands. The reason being that the land owners had assailed diversion of the lands for an alien purpose resulting in violation of the approved housing scheme. Therefore, over-ruling the preliminary objections, the learned Single Judge formulated the following three issues for his consideration:
1) Whether the allotments made and sale deeds executed by HUDA in favour of organizations like, Nisarga Educational Trust, KSCA, Chetana Neuro Centre, Netaji Rural Development Trust, etc. withstand the scrutiny of law?
2) Whether the acquisition proceedings are liable to be declared as lapsed?
3) What relief, if any, can be given to the petitioning land owners?
While answering point No. 1, learned Single Judge held as follows:
The allotments made to the said organizations are directed to be cancelled, if they are not yet cancelled. Any amounts that HUDA has received from the said organizations shall be refunded to them within four weeks from the date of the issuance of the certified copy of today''s order. The said amounts shall carry interest at the rate of 9.5% per annum from the date of the receipt of the amounts till the date of refund. This rate of interest is specified and prescribed based on the HUDA''s resolution, dated 29.02 2012, wherein a reference is made to the HUDA taking the financial assistance from the Vijaya Bank at the rate of 9.5% per annum.
It is also made clear that the liberty is reserved to the said societies/organizations to respond to the advertisement, if, as and when HUDA issues the same calling for the applications for-allotment. Other things remaining the same, that is, if the claims of the present allottees and of the fresh applicants are evaluated and found to be possessing the same merits and if they are required to pay the same allotment consideration, be it a pre-fixed allotment consideration or the open auction, the present allottees would be preferred.
On issue No. 2, learned Single Judge declined to grant the relief of declaration that the acquisition proceedings had lapsed. As far as issue No. 3 is concerned, learned Single Judge has held as follows:
My answer to the question No. 3 is that the petitioning land-owners are entitled to the allotment of developed lands. Their entitlement is to 40% of the lands acquired from them. Their obligation shall be to return the entire compensation amount along with interest at the rate of 9.5% per annum from the date of the receipt of the amounts till the date of the return of the amounts. I am prescribing the interest at the rate of 9.5% per annum based on the agenda note for the HUDA''s meeting on 29.2.2012. The agenda note states that the HUDA has availed of the financial assistance in the region of Rs. 15 crores from Vijaya Bank with interest at the rate of 9.5% per annum. While imposing the interest, neither the HUDA nor the petitioning land-owners can be permitted to make unlawful gain. The petitioning land-owners cannot be saddled with more interest liability than what is borne by the HUDA.
The Government shall accord approval to the HUDA''s resolution, dated 29.2.2012 within one month from the date of the issuance of the certified copy of today''s order. Needless to observe that the Government shall approve the said resolution on such terms, as are permissible in law.
The HUDA is directed to issued the demand notice to the land-owners, who have received the compensation, quantifying the amounts liable to be paid by them. It shall be done within one month from the date of the receipt of the Government''s order of approval for the said resolution of the HUDA.
It is made clear that taking the alternative site or retaining the compensation is the option of the land-owners. If the land-owners opt for the incentive site allotments, they shall comply with the demand notice of the HUDA for the payment of amounts within three months from the date of the receipt of the demand notice.
As the writ petitions filed by the land owners were partially allowed and W.P.No. 361/2008 filed by the appellant herein was dismissed, these appeals have been preferred being aggrieved by the answer given on issue No. 1 and dismissal of W.P. No. 361/2008.
As far as the appellant is concerned, their contention before the learned Single Judge was that none of the petitioners who are the land owners had filed the writ petitions in public interest. They were not the applicants for allotment of sites. Therefore, they could not have any grievance with regard to allotment made to third parties. Therefore, the writ petitions filed by the land owners were to be dismissed on the ground of locus standi and delay and laches. On the other hand, the writ petitions filed by the appellant had to be allowed as HUDA had unilaterally cancelled allotment of six acres of land to it. However, the said contentions were not accepted by the learned Single Judge and the cancellation of allotment was upheld.
We have heard the learned counsel for the parties and perused the material on record.
Sri. M.S. Bhagwat, learned counsel appearing for the appellant contended that the land owners had assailed the acquisition notifications belatedly. Therefore, the writ petitions had to be dismissed on the ground of delay and laches. Further they had consented for the acquisition and had received compensation pursuant to consent awards being passed. Hence, they were not entitled to assail the acquisition. Moreover, when once the acquisition is complete, the lands stood vested with the State Government and thereafter were handed over to HUDA. The land owners cannot have a say in the matter of utilization of the land in the instant case. HUDA in its wisdom had allotted various parcels of land to the appellant and various other institutions. The land owners cannot assail the same as they have no locus standi to do so. However, learned Single Judge had treated the writ petitions as being in the nature of a public interest ligitation and while upholding the acquisition notifications, has granted certain relief to the land owners and has upheld cancellation of allotment insofar as the appellant is concerned. Relying on certain decisions he contended that the order of learned Single Judge be set aside and the allotment of lands made in favour of the appellant be upheld.
Learned counsel for the caveator respondent Nos. 2 and 3 has supported the judgment of the learned Single Judge. Learned Addl. Government Advocate appearing for the State, while supporting the common order of the learned Single Judge stated that the learned Single Judge was right in considering the manner of utilization of the land subsequent to acquisition, particularly when the land owners had brought to the notice of the Learned Single Judge, the illegal allotments of land and was right in granting relief not only to the land owners but also to the appellant in para 79 of the impugned judgment and that there is no merit in these appeals.
Having heard the learned counsel on both sides, the only point that arises for our consideration is, as to whether the order of the learned Single Judge would call for any interference in these appeals.
It is not in dispute that HUDA had resolved to form a residential layout by acquiring certain lands in various villages coming within its jurisdiction. A scheme was formulated u/s 17 of the Act and it was decided to acquire about 390 acres 15 guntas of land and approval of the scheme was sought from the State Government. Exercising powers u/s 17 of the Act, notification dated 26/02/2002 was issued and published on 28/02/2002 proposing to acquire the aforesaid lands and in all 450 acres for a residential layout. Subsequently, final notification dated 03/12/2002 was published on the same date in the Karnataka Gazette. The Land Acquisition Officer of HUDA fixed the market value of the lands and passed awards. Possession of the lands was taken for the formation of the layout. However it transpires that, HUDA realized that it was not possible to implement the project as the Pollution Control Board had declined to grant clearance. Under these circumstances, HUDA sought permission of the State Government to make bulk allotment to various institutions such as the appellant herein and others. Being aggrieved by the acquisition of lands for the formation of residential layout and the failure to implement the scheme and the allotment of lands to various institutions, the land owners filed the writ petitions. The land owners not only assailed the preliminary and final notifications, but also sought quashing of allotments made in favour of the appellant herein and other institutions and sought compensation by restoring the lands to the original condition as also damages.
Learned Single Judge, while considering the contentions of the land owners in the light of the points formulated by him as extracted above, held that the allotment of lands made by HUDA in favour of various organizations were unsustainable as the requirement of law had not been complied with. No advertisements were published calling parties desirous of allotment from civic amenity sites. That the allotments made to various institutions were unconstitutional, being apposed to the principles of equality. That under the Act or the Rules made thereunder, allotment could not be made without advertisement. According to Learned Single Judge there was no fairness, transparency or equal opportunity in allotting the lands to the societies or institutions, one of whom is the appellant herein. Therefore, the allotments were liable to be cancelled. In this regard, HUDA, on 29/02/2012 had passed a resolution stating that the bulk allotments were illegal and that the amount be refunded to the allottees. The correctness of the cancellation was also considered by learned Single Judge in light of the principles of natural justice as no prior notice of cancellation was given to the allottees. Learned Single Judge, however, held that when the allotments were per se illegal, hearing the allottees prior to cancellation would have been an empty formality. Under the circumstances, a direction was issued to cancel all the allotments to institutions if they had not yet been cancelled and to refund the amounts if any, received by them with interest at the rate of 9.5% p.a. from the date of receipt of amount till the refund. Liberty was also reserved to the institutions to respond to the advertisements to be issued by HUDA for the purpose of making fresh allotment and seek fresh allotment by preference on complying with all other requirements. While so holding, declaration that the acquisition had lapsed was declined. Certain reliefs were granted to the landowners also as extracted above.
In the instant case, the State Government had, on 28/06/2005, approved the grant of six acres of land to the appellant at the rate of Rs. 5.00 lakh per acre in response to HUDA''s letter dated 18/04/2005. Under the provisions of the Act, the Karnataka Urban Development Authorities (Allotment of Sites) Rules, 1991 have been framed, wherein, under Rule 7, it is stated that to an extent of 10% of a layout can be set apart for allotment to institutions. Rule 8 of the said Rules reads as follows:
Allottee to be lessee:- The site allotted under these rules, shall be deemed to have been leased to the allottee until the lease is determined or the site is conveyed in the name of the allottee in accordance with these rules. During the period of the lease, the allottee shall pay to the Authority before the commencement of each year, rent at the rate of rupees five per annum where the area of the site does not exceed two hundred square metres, rupees ten per annum where the area of the site exceeds two hundred square metres, but does not exceed five hundred square metres, and rupees twenty per annum where the area of the site exceeds five hundred square metres.
Under the Karnataka Urban Development Authorities (Allotment of Civic Amenity Sites) Rules, 1991, a civil amenity site can be allotted to an institution. Rule 3 read with Rules 4, 5, 7 and 8 are relevant and read thus:
Offer of Civic Amenity Site for allotment:- (1) The authority may, out of the Civic Amenity sites available in any area-reserve such number of sites for the purpose of providing civic amenity referred to in clause (b) of Section 2, by the Central Government, the State Government Corporation or by a body established by the Central Government or the State Government may require.
(2) After making reservation under sub-rule (1), the authority may, subject to Section 39 and general or special orders of the Government, and having regard to the particular type of Civic Amenity required to be provided in any locality offer such of the remaining Civic Amenity sites for the purpose of allotment on lease basis to any institution:
Provided that the authority shall while so offering remaining Civic Amenity sites reserve eighteen per cent of such sites for being allotted to an institution established exclusively for the benefit of Scheduled Castes the majority of members of which consists of persons belonging to Scheduled Castes and three per cent of such sites to an institution established exclusively for the benefit of Scheduled Tribes the majority of members of which consists of persons belonging to Scheduled Tribes, and if at the time of making allotment sufficient number of such institutions are not available the remaining sites so reserved may be allotted to other institutions.
(3) Due publicity shall be given in respect of Civic Amenity sites so offered for leasing to the institutions, specifying their location, number, dimension, purpose and last date for submission of application and such other particulars as the Commissioner may consider necessary, by affixing a notice on the notice board of the office of the authority and also by publishing in not less than two daily news papers in English and Kannada having vide circulation in the Urban Area concerned.
Disposal of sites reserved:-Notwithstanding anything contained in these rules the sites reserved under sub-rule (1) of Rule 3 may be allotted to the categories specified therein on lease basis by the authority for the purposes of providing Civic Amenity subject to such terms and conditions as may be specified by it.
Registration:- (1) Every institution applying for Civic Amenity site shall register itself with the authority on payment of registration fee specified in the table below. If any Institution withdraws the registrations the authority shall refund to such institution, the entire registration fee paid by it after deducting ten per cent of the registration fee towards service charges. The Registration shall be done in form I.
(2) The Registration once made shall be valid for subsequent allotment unless the institution withdraws the registration.
(3) The registration fee paid shall not be refundable or adjustable if a civic amenity site is allotted to an institution.
Principles of selection of Institutions for leasing out Civic Amenity Sites:- (1) The Authority shall consider the case of each institution on its merits and shall have special regard to the following principles in making the selection:-
(a) The objectives and activities of the institution and public cause served by it since its establishment;
(b) The financial position of the institution;
(c) The present location of the institution;
(d) The benefit likely to accrue to the general public of the locality by allotment of the civic amenity site;
(e) The bona fide and genuineness of the institution as made out in the annual reports, audit report etc.,
(f) The need of the civic amenity site by the institution for providing the civic amenity in question.
(2) For the purpose of sub-rule (1), the authority may constitute a separate committee to be called "Civic Amenity Site Allotment Committee" consisting of three Official members and three non-official members. The Chairman of the Authority shall be the chairman of the civic amenity site allotment Committee.
(3) Subject to the approval of the authority, the decision of the Civic Amenity Site Allotment Committee shall be final.
Lease amount of site allotted to Institutions:- (1) The lease amount of the site to be allotted on lease basis shall be fixed by the authority provided the value of the site per Sq. Mtr. is fixed at not less that the value per Sq. Mtr. of the largest residential site in that area.
(2) The lease amount may be paid in the one lumpsum or in annual instalments during the lease period. If the lease amount is paid in 5 annual instalments, the rate of interest to be charged will be 12 per cent and if the lease amount is paid in more than five annual instalments the interest rate will be 18 per cent for the sixth and subsequent installments.
(3) The lease amount of a site notified while inviting applications may be altered by the authority and the institutions may accept the site at the altered rate or decline allotment.
(4) Allotment may be made at fifty per cent of the lease amount fixed by the authority in the following cases:-
(a) Institutions established for the welfare of physically handicapped and mentally retarded;
(b) Educational institution running the schools in only Kannada medium;
(c) The departments of the Central Government or the State Government, Corporation or a body established by the Central Government or the State Government".
Section 39 reads as follows:
Prohibition of the use of area reserved for parks, playground and civic amenities for other purposes:-The authority shall not sell or otherwise dispose of any area reserved for public parks and playgrounds and civic amenities, for any other purpose and any disposition so made shall be null and void.
The said Rules are in pari materia with the Bangalore Development Authority (Allotment of Civic Amenities Sites) Rules, 1989 except for the fact that under the Bangalore Development Authority Rules, the Bangalore Development Authority u/s 38-A(1) of the Act has the power to lease, sell or otherwise transfer any area reserved for civic amenities for the purposes for which such an area is reserved. But the Bangalore Development Authority cannot sell or dispose any area reserved for public parks and playgrounds and civic amenities, for any other purpose and if any such disposition is made, it shall be null and void. Section 38A of Bangalore Development Act, 1976 reads as follows:
38A. Grant of area reserved for civic amenities etc:- (1) The authority shall have the power to lease, sell or otherwise transfer any area reserved for civic amenities for the purpose for which such area is reserved.
(2) The authority shall not sell or otherwise dispose of any area reserved for public parks and playgrounds and civic amenities, for any other purpose and any disposition so made shall be null and void:
Provided that where the allottee commits breach of any of the conditions of allotment, the authority shall have right to resume such site after affording an opportunity of being heard to such allottee.
In the absence of such a provision in the Allotment of Civic Amenity Sites Rules, 1991 under the Act in question neither HUDA could have allotted six acres of land to the appellant herein, nor could the State Government have approved it.
That apart, under Rule 7 of the Karnataka Urban Development Authorities (Allotment of Sites) Rules, 1991, for the purpose of certain institutions such as educational institutions like that of the appellant, allotment could be made only on lease basis. But in the instant case, sale of six acres of land at the rate of Rs. 5.00 lakh per acre was made by HUDA to the appellant, which is contrary to the Rules. For this reason also, the allotment of land to the appellant is illegal. Since the allotment of land to the appellant is held to be illegal, the appellant can have no say with regard to the utilization of the land allotted to it except to the extent as stated by the learned Single Judge in para 79.
The decisions relied upon by appellant''s counsel are as follows:
a) In Northern Indian Glass Industries Vs. Jaswant Singh and Others, it has been held that if the land is not used for the purpose for which it is acquired, it is open to the State Government to take action but that would not confer any right on the land owners to seek restitution of the land. The said observations have been made in light of the High Court ordering restoration of the land to the land owners on the premise that the land acquired was not used for which it had been acquired. After passing of the award and taking possession u/s 16 of the Land Acquisition Act, 1894, the acquired land vests with the Government free from all encumbrances. Even if the land is not used for the purpose for which it is acquired, the landowner has no right to claim revesting of the land and restitution of possession. This is a matter which has to be decided by the acquiring authorities in the instant case and the appellant also can have no say in the matter. When it has been held that the allotment of land made to the appellant is illegal, then the said land would vest with the authority for being utilized in accordance with law. The said decision does not come to the aid the appellant having regard to the facts of the present case.
b) Similarly, the order of a Division Bench of this Court in W.A. No. 2397/2012 disposed of on 25/06/2012 in the case of Sri. K.K. Ponnappa V/s. State of Karnataka has no relevance as in that case, it has been held that a party who is personally interested in the subject matter of a lis cannot advocate or advance it as a public interest litigation. In the said case, the allotment of a civic amenity site was questioned.
c) Also in Nal Layout Residents'' Association and Nal Employees Co-Operative Housing Society Limited Vs. Bangalore Development Authority and Kashmiri Hindu Cultural Welfare Trust (R), one of us (Nagarathna J.) has held that having regard to Section 38-A of the Bangalore Development Authority Act, 1976, the authority is competent to allot civic amenity sites on lease, after reserving the sites for Central Government, State Government or Corporations or bodies established by Central Government or State Government, to eligible institutions to enable them to provide a civic amenity. In the absence of a provision, similar to Section 38-A under the Act and Rules in question, the appellant cannot derive any assistance from the said decision.
In the light of the aforesaid discussion, we find that there is no merit in these appeals. They are dismissed, without any order as to costs.