IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4070 OF 2010
(Arising out of SLP(C) No. 21385 of 2009)
N. Rajanna and others ...Appellant(s)
Versus
State of Karnataka and others ...Respondent(s)
With
CIVIL APPEAL NO.4071 OF 2010
(Arising out of SLP(C) No. 22394 of 2009)
JUDGMENT
G.S. Singhvi, J.
1. Leave granted.
2. Whether the Division Bench of the High Court of Karnataka could
modify order dated 13.2.2009 passed by the learned Single Judge in Writ
Petition No. 15348/2008 without issuing notice and giving opportunity of
hearing to the appellants, who claim to have right over the land sought to
be acquired by the State Government on behalf of respondent No.3 and
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who were represented before the learned Single Judge through an
advocate is the question which arises for consideration in these appeals
filed against order dated 17.4.2009 passed by the Division Bench in Writ
Appeal No. 1295/2009.
3. Respondent No.3 filed an application under the Karnataka Industries
(Facilitation) Act, 2002 (for short, `the Facilitation Act’) for approval of its
proposed project which included Tourist Complex, Commercial Space,
Financial Hub, Research and Development Facility with Residential
Condominium, Service Apartments and Medical City to be set up in
Chalamakunte village, Chikkajala Hobli, Bangalore North Taluk on land
measuring 500 Acres. On coming to know of the application made by
respondent No.3 for acquisition of land for its project, the appellants and
others filed objections dated 30th May, 2007 by asserting that their claim
for grant of occupancy rights over a portion of the land sought to be
acquired was pending before the competent authority, which is required to
decide the matter in compliance of the direction given by the High Court in
Writ Petition Nos. 33954 and 41207 of 1982.
4. The project of respondent No.3 was considered in 10th, 13th and 15th
meetings of the State High Level Clearance Committee (for short, `the
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Committee’). After seeking some clarifications from respondent No.3, the
Committee recommended approval of the project. The State Government
accepted the recommendations of the Committee and issued order dated
18.11.2008 for approval of the project of respondent No.3 subject to
certain conditions. While making recommendations in favour of
respondent No.3, the Committee took note of letter dated 28.4.2008 sent
by Principal Secretary to Government, Revenue Department, wherein he
made a mention of the pendency of case for grant of occupancy right.
This is evinced from the following extract of order dated 18.11.2008:
“The Principal Secretary to Government, Revenue
Department, vide letter dated 28.4.2008 has informed that,
the lands in Sy. No. 1 to 104 of Chalamanakunte village is Jodi
Inam and there is a case pending before Land Tribunal on
grant of occupancy rights. In this regard, the Committee felt
that if the occupancy rights are confirmed, the occupants will
get the compensation. Otherwise, the cost of lands to be
determined by SLAO have to be remitted to the Government,
as such there is no hindrance for acquisition, however it was
felt that the consent of revenue department is necessary in
this regard.”
5. After 8 days, the State Government revised its decision and issued
order dated 26.11.2008 for withdrawal of the approval accorded to the
project of respondent No.3 on the ground of pendency of the case before
the competent authority. This action of the State Government was ratified
by the Committee in its meeting held on 28.1.2009.
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6. Respondent No.3 challenged order dated 26.11.2008 in Writ Petition
No. 15348/2008 by contending that under the Facilitation Act, the State
Government does not have the power to review the approval accorded to
its project. Another plea taken by respondent No.3 was that the action of
the State Government is vitiated due to violation of the rules of natural
justice.
7. During the pendency of the writ petition, the appellants filed an
application dated 13.1.2009 for their impleadment as party by asserting
that they have direct interest in the property sought to be acquired for the
project of respondent No.3. On their part, respondent Nos. 1 and 2 filed
objections to contest the writ petition.
8. After hearing learned counsel for the parties and Shri B.M. Shyam
Prasad, who had appeared on behalf of the appellants, the learned Single
Judge passed order dated 13.2.2009 whereby he partly allowed the writ
petition. He rejected the plea taken by respondent Nos.1 and 2 that
approval to the project of respondent No.3 did not create a right in its
favour and held that the minimum expected of the State Government was
to hear the writ petitioner before withdrawing the approval. However,
instead of quashing order dated 26.11.2008, the learned Single Judge
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directed the State Government to hear respondent No.3 and pass fresh
order. Paragraph 8 and operative portion of the order passed by the
learned Single Judge read as under:
“8. In that view of the matter, the impugned order cannot
be sustained. But at the same time, it is not necessary to
quash the impugned annexure. When a project has been
approved by the State in accordance with law, if they want to
withdraw it, it is always open to them to do so after hearing
the person to whom such an approval is granted and
thereafter take a decision in accordance with law so that the
aggrieved person will have the satisfaction of putting forth his
case. In that view of the matter, I pass the following:
O R D E R
1. Writ Petition is allowed in part.
2. Annexure-A shall be treated only as a show cause
notice issued by the State High Level Clearance
Committee to the petitioner asking him to show cause
why the approval of his project accorded on 18.11.2008
should not be recalled or withdrawn.
3. It is open to the petitioner to contend and raise all such
defences which are available to him in law.
4. The authorities shall after hearing the petitioner pass
appropriate orders in accordance with law.
5. It is submitted that the owners of the lands have
already objected to the grant of land and are before the
authorities and therefore, it would be appropriate for
the authorities also to hear the owners of the land, if,
the said land is meant to be given to the petitioner.
6. All contentions urged in this petition by all the parties
are kept open to be decided by the appropriate
authorities.
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7. Consequent to Annexure-A, all the orders passed by the
Government or by the High Level Committee has no
value in the eye of law and are unenforceable.
8. IA for impleading is ordered to be filed.
9. No costs.”
9. Respondent No.3 did not feel satisfied with the directions given by
the learned Single Judge and challenged the order passed by him in Writ
Appeal No. 1295/2009. By the impugned judgment, the Division Bench
allowed the writ appeal, quashed order dated 26.11.2008 and directed the
State Government to proceed on the basis of approval granted by it on
18.11.2008.
10. Shri P.S. Patwalia, learned senior counsel appearing for the
appellants argued that the impugned judgment is liable to be set aside
because the Division Bench of the High Court disposed of the appeal
without complying with the basics of the natural justice, inasmuch as no
notice or opportunity of hearing was given to his clients. Learned counsel
emphasized that the appellants have direct and substantial interest in the
land sought to be acquired for the project of respondent No.3 because
their claim for grant of occupancy rights is pending before the competent
authority and argued that the Division Bench committed serious error by
directing implementation of the project of respondent No.3 without issuing
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notice to the appellants. Shri Patwalia submitted that the so-called
consent given by one of the claimants of occupancy rights, namely, Shri H.
Kempiah cannot be made basis for depriving the appellants of their
legitimate right to be heard and oppose the acquisition of land ignoring
that in terms of the direction given by the High Court in Writ Petition Nos.
33954 and 41207/1982, the competent authority is yet to decide the issue
relating to grant of occupancy rights. Ms. Anitha Shenoy, learned counsel
for the State of Karnataka not only supported Shri Patwalia, but also
justified the Government’s decision to withdraw the approval accorded to
the project of respondent No.3 by arguing that the decision contained in
order dated 18.11.2008 was vitiated due to non consideration of the
relevant factors including the pendency of case relating to occupancy
rights. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for
respondent No.3, pointed out that the impleadment application filed by the
appellants had not been allowed by the learned Single Judge and
submitted that the factual statement contained in paragraphs 5 and 13.11
of the impugned judgment suggesting that the learned Single Judge had
already impleaded the appellants as parties to the writ petition does not
appear to be correct. He then submitted that the appellants do not have
any locus to be heard in the proceedings instituted by respondent No.3
against the Government’s decision to withdraw the approval to its project
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because the competent authority is yet to decide their claim for occupancy
rights. The last submission of the learned senior counsel is that even if
this Court comes to the conclusion that the Division Bench ought to have
heard the appellants, the impugned judgment may not be disturbed
because, in the event of grant of occupancy rights to the appellants, they
will get a maximum of 103 Acres land and for that his client is prepared to
pay the prevailing market value so that the implementation of the project
may not be delayed.
11. We have considered the respective submissions. In our view, the
impugned judgment is liable to be set aside only on the ground that the
procedure adopted by the Division Bench in deciding the appeal preferred
by respondent No.3 was contrary to one of the well recognized facets of
natural justice i.e., audi alterm partem. A careful scrutiny of the records
reveal that while considering the project of respondent No.3 and approving
the same, the Committee and the State Government were alive to the fact
that the issue relating to grant of occupancy rights in respect of the land
comprised in survey Nos.1 to 104 of Village Chalamakunte is pending
adjudication before the competent authority. It is also not in dispute that
even before consideration of the project of respondent No.3 by the
Committee, the appellants had filed objections dated 30.5.2007 against
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proposed acquisition of the land. They had also filed an application under
Order 1 Rule 10 CPC for being impleaded as parties to Writ Petition
No.15348/2008. Although, it is not clear from the order of the learned
Single Judge whether the application filed by the appellants was allowed,
but this much is evident that their advocate Shri B.M. Shyamprasad was
heard along with other learned counsel. This appears to be the reason
why in paragraph 5 of the operative portion of the order passed by him,
the learned Single Judge made it clear that land owners must be heard
before their land is acquired. The Division Bench of the High Court
proceeded on the premise that the application filed by the appellants for
their impledment as parties was allowed by the learned Single Judge. This
is clearly reflected in paragraphs 5 and 13.11 of the impugned judgment.
Therefore, the Division Bench should have afforded an opportunity of
hearing to the appellants before deciding the appeal preferred by
respondent No.3 and directing the State Government to act in accordance
with approval accorded vide order dated 18.11.2008. In any case, once
the learned Single Judge had heard the counsel representing the
appellants and the Division Bench found that their application for
impleadment had been allowed, the minimum which the Division Bench
ought to have done was to issue notice to the appellants and given them
an opportunity to contest the appeal.
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12. Although, the issue relating to grant of occupancy right over the
land comprised in survey Nos.1 to 104 of Village Chalamakunte is yet to be
decided by the competent authority, it cannot be said that the appellants
do not have the locus to be heard in the proceedings which may result in
acquisition of the land. If ultimately the competent authority accepts the
claim of the appellants for grant of occupancy rights and in the meanwhile
the land is utilized by respondent No.3, the determination made by the
competent authority will become illusory for them.
13. The submission of the learned counsel for respondent No.3 that his
client is prepared to pay market value of the land to the appellants subject
to their claim being finally adjudicated by the competent authority in the
proceedings relating to grant of occupancy rights cannot be accepted
because the learned counsel for the appellants emphasized that his client
would like to contest the very approval of the project of respondent No.3
and support the decision taken by the Government to withdraw the same.
14. In the result, the appeals are allowed. The impugned judgment is
set aside and the matter is remitted to the High Court for deciding the
appeal of respondent No.3 afresh after giving opportunity of hearing to the
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parties. Keeping in view the nature of the case, we request the High Court
to dispose of the appeal as early as possible but latest within two months
from the date of receipt/production of copy of this order.
……………………………….J.
[G.S. Singhvi]
………………………………..J.
[Asok Kumar Ganguly]
New Delhi
May 04, 2010