JUDGMENT
G.C. Bharuka, J.
1. The appellant is a Housing Co-operative Society registered under the Karnataka Co-operative Societies Act, 1959. In this intra-Court appeal, the appellant has questioned the order of the learned Single Judge dismissing its writ petition filed for quashing the notification dated 29-8-1994 (Annexure-F) issued by the State Government under Section 48(1) of the Land Acquisition Act, 1894 (in short, the ‘L.A. Act’). By the impugned notification (Annexure-F), the Government has withdrawn from acquisition Sy. Nos. 14/6B measuring 37 guntas and 12/5B measuring 23 guntas of Tavarekere Village claimed to be owned by respondent 3-Mrs. Sharadamma (hereinafter referred to as the lands’). At the time of acquisition, Sri S.K. Venkateshappa, who is the husband of respondent 3, was the registered khatedar. Admittedly, after acquisition, the lands were allotted by the Bangalore Development Authority (in short, the ‘Authority’) to the appellant-society along with other lands under its letter dated 6-12-1982 (Annexure-C).
Facts:
2. It is not in dispute that the lands in question along with other lands were notified for acquisition for public purpose viz., for formation of Byrasandra, Tavarekere, Madivala Scheme Layout (in short, ‘BTM Layout’) vide preliminary notification dated 19-9-1977 under Sub-sections (1) and (3) of Section 17 of the Bangalore Development Authority Act, 1976 (in short, ‘BDA Act’). This notification has been filed as Annexure-R1 to the affidavit of the Commissioner of BDA dated 13-8-2001. Thereafter, final notification dated 7-2-1978 under Section 19(1) of the BDA Act (Annexure-R2) was issued. After publication of the final notification, notices were issued and served on the Khatedar under Sections 9, 10, 11 and 14 of the L.A. Act, in accordance with law.
3. As regards Sy. No. 12/5B, the award was passed on 13-10-1981. Copy of the award has been filed as Annexure-R3. According to the award, notice was duly served on late Sri S.K. Venkateshappa, the original Khatedar, but he did not file any objection. The award specifically mentions that no malkies or structures are found on the land at the time of inspection by the Special Additional Land Acquisition Officer on 29-11-1979. The possession of the land was taken on 11-12-1981. The possession Mahazar is produced at Annexure-R4. Subsequently, notification under Section 16(2) of the L.A. Act was issued on 19-4-1982 (Annexure-R5) wherein at SI. No. 8, Sy. No. 12/5B belonging to S.K. Venkateshappa is shown to have been taken possession on 11-12-1981, by the Special Additional Land Acquisition Officer from the owner (in short, ‘Spl. Addl. A.O.’).
4. So far as Sy. No. 14/6B is concerned, the award was passed on 26-3-1980 (Annexure-R6). According to the award, notice was served on late S.K. Venkateshappa, the original Khatedar on .15-11-1978, but he did not file any objections. The award specifically mentions that no malkies or structures are found on the land at the time of inspection by
the Special Additional Land Acquisition Officer on 29-11-1979. The possession of the land was taken on 26-7-1980 as per the possession Mahazar (Annexure-R7). Subsequently, notification under Section 16(2) of the L.A. Act was issued on 4-2-1982 (Annexure-R8) wherein at SI. No. 139, Sy. No. 14/6B belonging to S.K. Venkateshappa is shown to have been taken possession on 8-8-1980 by the Spl. Addl. L.A.O. from the owner.
5. After taking over possession of the lands in question, the lands were handed over to the Engineering Department of BDA for formation of layout. Thus the lands stood vested absolutely with the BDA.
6. Re: Nature of land and construction thereon.–The award, Annexure-R3, dated 13-10-1981 gives the following description of the land bearing Sy. No. 12/5B as found on spot inspection:
“The land under acquisition is agricultural land. It is in undeveloped area. A mahazar of land is drawn by the Revenue Inspector on 15-2-1979. I have inspected the land on 29-11-1979 along with the executive staff and found it correct. The land do not contain any malkies/structures”.
7. The award dated 26-3-1980 (Annexure-R6) gives the description of the land bearing Sy. No. 14/6B as found on spot inspection, and specifically states that.–“No malkies or structures are found on the land at the time of inspection on 29-11-1979”.
8. Re: Possession.–According to the respondent-BDA, the possession of the land in Sy.No. 12/5B was taken on 11-12-1981. Copy of the possession mahazar is produced at Annexure-R4. Subsequently, notification under Section 16(2) of the L.A. Act was issued on 19-4-1982 (Annexure-R5). As regards possession of the land in respect of Sy. No. 14/6B, the same was taken on 26-7-1980. Copy of the possession mahazar is produced at Annexure-R7. Subsequently, notification under Section 16(2) of the L.A. Act was issued on 19-4-1982 (Annexure-R8).
9. Notifications under Section 16(2) of the L.A. Act (Annexures-R5 and R8) which were issued in respect of the lands in question read as under:
“In exercise of the power conferred under Sub-section (2) of Section 16 of the Land Acquisition Act (Mysore Extension and Amendment Act, 1961), it is hereby notified for the information of general public that the properties noted in the Schedule below have been acquired and taken possession of by the undersigned from the owners for formation of layouts by the Bangalore Development Authority, Bangalore and the same vests within Bangalore Development Authority, Bangalore, free from all encumbrances. The public are hereby informed that they are refrained from entry into transaction with those khatedars of the survey numbers as noted below:
Schedule ….
xxx xxx”
Section 16 of the L.A. Act as amended by Land Acquisition (Mysore Extension Amendment) Act, 1961 reads as under:
“16. Power to take possession.–(1) 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.
xxx xxx
(2) The fact of taking such possession may be notified by the Deputy Commissioner in the Official Gazette, and such notification shall be evidence of such fact”.
It is not in dispute that Spl. Addl. L.A.O. has been specially appointed by the State Government to perform the functions of the Deputy Commissioner under the L.A. Act. It is of importance to note here that at no point of time either the original Khatedar or the contesting respondents ever questioned the correctness of the notification issued under Section 16(2) of the L.A. Act.
10. Re: Allotment in favour of the appellant-Society.–Subsequently, the Authority under its letter dated 6-12-1982 allotted 30 acres of land in Sy. Nos. 12 and 14 of Tavarekere Village under BTM Scheme (Annexure-C to the writ petition) to the appellant-Society for construction of houses and for allotment to its members subject to the following conditions:
“1. The Society should pay the land cost at Rs. 25,000/- per acre and such other compensation enhanced by the Court from time to time.
2. The layout plan should be got approved by the B.D.A.”.
After the above allotment, a lease-cum-sale agreement dated 13-1-1983 was entered into between the appellant and the Authority in respect of the allotted lands which included the lands in question as well. This lease-cum-sale agreement has been placed at Annexure-D. After execution of the above lease-cum-sale agreement, the appellant-Society was given a possession certificate dated 22-1-1983 along with the land sketch. This possession certificate along with the land sketch is produced as Annexure-E.
11. After a lapse of almost 12 years from the date of acquisition of the lands in question, the legal heirs of the original Khatedar namely, late S.K. Venkateshappa (respondents 3 to 6 herein) filed Writ Petition No. 12195 of 1990 before this Court questioning the acquisition of the lands in question by taking various pleas and obtained an interim order of stay against their dispossession from the lands in question. Subsequently, after notice, the Authority appeared and filed their detailed statement of objections setting out all the above facts and also that the Khatedars/L.Rs appeared in the Civil Court in L.A.C. No. 126 of 1982 seeking compensation. The learned Single Judge on being apprised of all the facts which appear to have been suppressed by the contesting respondents in their writ petition, vacated the interim order on 15-3-1993 by passing the following order:
“In view of the statement of objections filed by respondent 2 stating that the notices under Section 17(5) was served on the Khatedar and as a matter of fact objections were filed by the Khatedars/L.Rs of the Khatedars and in view of the issue of subsequent notices under Sections 9, 10 and 11 of the B.D.A. Act and also taking into consideration that the Khatedars/L.Rs of Khatedars have subsequently appeared in the Civil Court in L.A.C. No. 126 of 1982 seeking compensation, LA. No. IV for vacating stay filed by the 2nd respondent is allowed. Stay vacated”.
12. The contesting respondents thereafter filed LA. No. VI for recalling the order dated 15-3-1993, but the same was rejected on 1-4-1993 by passing the following order:
“Since the order dated 15-3-1993 has been passed after hearing both the sides, LA. No. VI for recalling the order dated 15-3-1993 is rejected”.
13. The order dated 15-3-1993 passed by the learned Single Judge was assailed by the contesting respondents 3 to 6 by filing Writ Appeal No. 724 of 1993 and obtained an interim order in terms of the order dated 11-6-1990 passed in the above Writ Petition No. 12195 of 1990. But, subsequently, on appraisal of the factual aspects by the BDA and the appellant-Society, the appeal was dismissed by order dated 27-1-1994. Paragraphs 3 and 4 of the order passed by the Division Bench reads as under:
“The reasoning assigned by the learned Single Judge to vacate the interim order was that the petitioners are the claimants before the Civil Judge in L.A.C. No. 126 of 1982 for higher compensation and that therefore the interim order of stay could not be justified. Thus holding, he vacated the interim order of stay.
The order vacating the interim order of stay and the order rejecting the application for recalling the order dated 15-3-1993, being discretionary orders made by the learned Single Judge, we do not see any justification to interfere with those orders. In that view of the matter, without going into the other questions, we dismiss the appeal”.
14. Curiously, during the pendency of the above writ petition before this Court, the contesting respondents 3 to 6 filed an application before the Authority for withdrawing from acquisition of the lands in question, which was examined by a Sub-Committee of the Authority. The Sub-Committee submitted its report to the Authority noticing the following points:
“Sri S.K. Venkateshappa S/o. Kolappa, is the notified Khatedar in respect of Sy. Nos. 12/5B and 14/6B, Tavarekere Village, Begur Hobli, Bangalore South. The same has been notified by the BDA
vide final Notification No. HUD 3 MNJ 78, dated 7-3-1978, published in the Karnataka Gazette, Part III(1), pages 51 to 79, dated 9-3-1978 an extent of 0-23 guntas and 0-37 guntas, totally 1 acre 20 gunta. The award has been passed and the physical possession of the land has been taken and handed over to the Engineering Section on 11-12-1981 and 4-9-1980 respectively for the formation of layout called BTM Layout. The compensation amount has been sent to the City Civil Court, Bangalore”.
15. The Authority despite being fully apprised of the above fact of acquisition and taking possession of the lands in question, in its meeting dated 16-11-1992 (Subject No. 507 of 1992) resolved to the following effect:
“BDA MEETING DATED 16-11-1992
Subject No. 507 of 1992
Sub: Request for denotification of land in Sy. Nos. 12/5B and 14/6B to an extent of 01 acre 20 guntas of Tavarekere Village, Begur Hobli, Bangalore South-reg.
The note placed before the Authority was perused. After discussions, it was resolved to write to Government for withdrawal of Sy. Nos. 12/5B and 14/6B to an extent of 01 acre 20 guntas of Tavarekere Village, Begur Hobli, Bangalore South Taluk from the acquisition proceedings in favour of Smt. Sharadamma for the reasons stated by her in her application and to take further necessary action.
Sd/-
Chairman,
BDA, Bangalore”
This resolution has been enclosed to the additional affidavit of the Commissioner of BDA filed on 24-9-2001. Subsequently, the Authority having been apprised of the legal position that once the possession over the lands are taken, no denotification of the lands is permissible, the Authority in its meeting dated 27-9-1993, constituted a Sub-Committee for ascertaining the fact of taking over of possession. The Sub-Committee consisted of the following members:
“1. Chairman, Bangalore Development Authority;
2. Commissioner, Bangalore Development Authority;
3. Sri K. Lakkanna, MLA, Rajajinagar Assembly constituency, Bangalore;
4. Smt. Mumtaz Begum, Corporator, Bangalore;
5. Sri H.N. Hiriyannaswamy, Member, BDA, Bangalore;
6. Sri S.C. Karigowda, City Planning Member, BDA, Bangalore”.
The Sub-Committee, after spot inspection and perusal of the records submitted its report in respect of various extents of lands including
lands in question which is in Kannada at Item No. 42, the English translation whereof is as under:
“42. Subject No. 211:93 (Old No. 507:92:16-11-1992), Sy. No. 12/5B and 14/6B 1 acre 20 guntas of Tavarekere Village.–The land is totally vacant. As this land has already been acquired, question of denotifying the same will not arise. Therefore, it is necessary to cancel the resolution passed in Sub. No. 507:92, dated 16-11-1992. Steps may be taken to vacate the interim order dated 11-6-1990 in W.P. No. 12195 of 1990. As it is informed to the applicants about the de-notification of the land from acquisition on 19-11-1992, it is appropriate to take further steps after obtaining legal opinion from the Law Officer”.
16. The Authority, on perusal of the above recommendations of the Sub-Committee, accepted the same in its meeting held on 30-10-1993. These facts along with the copies of the resolution and the Sub-Committee Report has been enclosed by the Commissioner, BDA, with his additional affidavit filed on 24-9-2001. Thereafter, the stay granted in the writ petition in favour of the contesting respondents was vacated by the learned Single Judge and subsequently approved by the Division Bench as noticed in para 13, supra.
17. The learned Single Judge in his impugned order has rejected the writ petition filed by the appellant seeking quashing of the notification issued under Section 48(1) of the L.A. Act (Annexure-F) on the ground that Sri Patil, learned Counsel appearing for the BDA could not produce the mahazar evidencing taking of possession. The Commissioner, BDA, in his affidavit dated 13-8-2001 filed before us has categorically stated that all the relevant documents including the award, possession mahazar and notification under Section 16(2) of the L.A. Act were forwarded to the learned Advocate appearing for BDA and its non-production before the Court is a matter of surprise. He has further stated that a decision has been taken to hold an enquiry against the officials concerned in this regard. In support of this fact, he has produced a copy of parawise comments sent to their Counsel (Annexure-R9) in the earlier Writ Petition No. 12195 of 1990, the last para whereof reads as under;
“The copy of the award, possession mahazar, notification under Section 16(2) of the L.A. Act, published in Karnataka Gazette, copy of the Court order dated 8-7-1987, are herewith enclosed for being sent to BDA Advocate for disposal of writ petition immediately”.
18. Sri K.N. Puttegowda, Additional Government Advocate, has produced the original records of the Government. It appears the appellant had also brought the above facts to the notice of the Government, which were duly examined by the Principal Secretary to Government, Housing and Urban Development Department. After examining the facts and circumstances of the case, the Principal Secretary has opined thus-
“In view of the facts mentioned above, it would appear that Government should withdraw the denotification order issued on 29-8-1994 denotifying 37 guntas in Sy. No. 14/6B and 23 guntas in Sy. No. 12/5B of Tavarekere Village since this order was issued on the basis of misrepresentation of facts by Mrs. Sharadamma. Department of Law may kindly advise regarding the manner by which the denotification order dated 29-8-1994 could be withdrawn”.
19. The contesting respondents after filing writ petition before this Court and having obtained an ex parte interim order in their favour, filed a representation before the then Chief Minister of the State (Annexure-R8 to the statement of objections in the writ petition filed by them) with an appeal to drop the acquisition proceedings initiated in respect of the lands in question. Thereafter, another representation was filed before the then Commissioner, BDA, for denotification of the lands. Thereafter, the Government has passed the impugned notification dated 29th August, 1994 (Annexure-F) withdrawing the acquisition proceedings.
20. Being aggrieved by the said notification, the appellant-Society preferred the above writ petition. Before the learned Single Judge, the main contention agitated was that once the possession of the lands are taken after completion of the acquisition proceedings, the power of withdrawing from acquisition conferred under Section 48 of the L.A. Act cannot be invoked. Reliance was placed on the judgment of the Supreme Court in the case of Lt. Governor of Himachal Pradesh and Anr. v. Avinash Sharma,
wherein it has been held:
“. . . . after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification”.
But, the learned Single Judge, having found that the records produced before the Court by the Counsel for the BDA did not contain the mahazar taking possession held that the possession over the land was not taken and therefore the State Government was very much within its competence to withdraw from acquisition.
21. Two independent questions arise in relation to taking of posses
sion over the lands in question. The first relates to taking of possession
by the State Government and its handing over to the Authority. The
second question relates to grant of possession by the Authority to the
appellant-Society.
22. Re: Taking over possession by the Government.–As already noticed above in paragraph 8 of this judgment, the Government had taken possession over Sy. No. 12/5B on 11-12-1981, possession mahazar is at Annexure-R4 and notification under Section 16(2) of the L.A. Act evidencing taking of possession was published on 19-4-1982. Similarly, in respect of Sy. No. 14/6B possession was taken on 26-7-1980, possession mahazar is at Annexure-R7 and notification under Section 16(2) of the L.A. Act was published on 19-4-1982. The awards passed in relation to the lands in question clearly show that at the time of taking possession no malkies or structures were found thereon. The original records maintained by the Authority substantiate all these facts. The Commissioner, BDA, in his affidavit has stated that though copies of award, possession mahazar, notification under Section 16(2) of the L.A. Act were sent to BDA Advocate, for reasons best known to him, the same were not produced before the Court. From these facts, it becomes glaringly clear that after passing of the award, possession of the lands in question was taken by the Government. It is also borne out from the records that after taking of the possession, the same was handed over to the Authority.
23. Re: Handing over of possession to the appellant-Society.–
It is again a matter of record that 30 acres of land including the lands in question was allotted to the appellant-Society under letter dated 6-12-1982 (Annexure-C). Thereafter, the appellant-Society paid the entire allotment amount and the Authority executed lease-cum-sale agreement (Annexure-D) which was registered on 13-1-1983. The Authority thereafter issued possession certificate to the appellant-Society on 22-1-1983 (Annexure-E) in respect of the entire extent of 30 acres including the lands in question. According to the appellant-Society, after securing the possession certificate, when it went to fence the land, objections were raised by some of the owners including the contesting respondents on the strength of some stay orders/injunctions obtained from Courts. As a result of this, the appellant-Society could secure actual possession to an extent of only 21 acres 17 guntas. Therefore, the Authority had sanctioned layout plan in respect of this extent of land only. Subsequently, on 7-10-1996, as noticed by the learned Single Judge himself in para 4 of the impugned judgment, the appellant-Society wrote a letter to the Authority to sanction the plan for remaining extent of land measuring 8 acres 23 guntas as well. Paragraphs 3 and 4 of the said letter reads as follows:
“3. When the Society proceeded to fence the 30 acres of land allotted, after giving information to BDA, to prevent encroachments, Court injunctions were brought and the Society was estopped from taking possession and fencing a portion of the land. The Society could then take effective possession of only 18 acres and 31 guntas on the north side of 100′ road.
4. In view of the Court cases, the BDA directed the Society to submit a revised plan excluding the area covered by Court cases. Accordingly, layout plan was prepared for 21 acres and 17 guntas of land and the plan was approved by BDA for 205 sites and work order was issued to the Society vide Ref. No. BDA:TPM:74/84-85, dated 26/28-4-1984, on the basis of which 205 members were given provisional allotment of sites and other members were kept in waiting list pending disposal of the Court cases”.
24. It is also a matter of record that in O.S. No. 749 of 1988 which was filed by the appellant-Society against the BDA and another housing society seeking a direction against the BDA to demarcate the boundaries between the land allotted to the plaintiff-Society and the 2nd defendant-Society, an application under Order 6, Rule 17 of the CPC for amendment was filed. In the said application, the appellant-Society had admitted that so far as the land in question is concerned, the same is in possession of the contesting respondents.
25. The learned Single Judge has taken the view that since the Counsel appearing for the BDA had failed to produce the possession mahazar and further that the appellant-Society had admitted that it could not secure the possession of the lands in question, it was very much permissible for the Government to issue notification under Section 48(1) of the L.A. Act withdrawing from acquisition of these lands.
Conclusion:
26. In our considered opinion, the fact as to whether the appellant-Society was able to secure possession from the Authority or not is not at all relevant for the purpose of considering the validity of denotification under Section 48(1) of the L.A. Act. What is material is as to whether after acquisition, the Government had taken over possession of the land. In the present case, from the sequence of events as noticed above, and from the documents, notifications and the awards including possession mahazar placed on record it is abundantly clear that after acquisition, the Government had taken possession of the land and it was handed over to the Authority. In the present case, as borne out from the Government records, it is clear that notification under Section 48(1) of the L.A. Act was issued on a misrepresentation by the contesting respondents.
27. For the aforesaid reasons and as held by the Supreme Court in the case of Avinash Sharma, supra, Government was not competent to withdraw from acquisition of the lands in question. Accordingly, the impugned notification dated 29th August, 1994 (Annexure-F) issued under Section 48(1) of the L.A. Act is quashed. Appeal is allowed with costs which is assessed at Rs. 10,000/-. The costs should be paid by the contesting respondents 3 to 6 jointly or severally within two weeks from today by a crossed Bank draft drawn in favour of the appellant-Society under registered post with acknowledgment due.