Shadilal Chitram Sharma Vs the State of Karnataka

THIS WRIT PETITIONER IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE RESPONDENT NO.1 RELATING TO THE CASE OF THE PETITIONER AND QUASH THE ORDER PASSED BY THE RESPONDENT NO.1 IN NO. PÀAE 66 ¨sÀÆ¸ÁézsÁ 2008 DATED 19.08.2015 (ANNEXURE-G) AND ETC.

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IN WP NO. 105608/2016:

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BETWEEN:

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UNIVERSITY OF AGRICULTURAL SCIENCES, KRISHI NAGAR, DHARWAD, REP. BY ITS REGISTRAR, B.B.HOSAMANI, AGE: 53 YEARS.

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...PETITIONER

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(BY SRI. RAMACHANDRA A.MALI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA

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REP. BY ITS SECRETARY, DEPARTMENT OF REVENUE, M.S. BUILDING, BANGALORE-01.

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HC-KAR

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THE DEPUTY COMMISSIONER, DHARWAD.

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THE TAHASILDAR, DHARWAD.

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SRI. SHADILAL CHITRAM SHARMA SINCE DECEASED BY HIS LRs.,

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4(A). USHARANI W/O. SHADILAL SHARMA AGE: 64 YEARS, OCC: HOUSEHOLD WORK,

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4(B). LAXMIDEVI W/O. SUSHILKUMAR AGE: 43 YEARS, OCC: HOUSEHOLD WORK,

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4(C). PRADEEPKUMAR S/O. SHADILAL SHARMA AGE: 42 YEARS, OCC: BUSINESS,

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4(D). ANILKUMAR S/O. SHADILAL SHARMA AGE: 40 YEARS, OCC: BUSINESS,

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(ALL ARE R/O. MUDHOLAKAR COMPOUND BESIDE KAREMMA TEMPLE, DHARWAD).

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...RESPONDENTS

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(BY SRI. PRAVEEN K.UPPAR, AGA FOR R1 TO R3; SRI. JAGADISH PATIL, ADVOCATE FOR R4)

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THIS WRIT PETITIONER IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF MANDAMUS OR ANY OTHER WRIT OR ORDER IN THE LIKE NATURE DIRECTING THE 2^ND RESPONDENT TO IMPLEMENT AND COMPLY WITH THE GOVT. ORDER DATED 19.08.2015 ISSUED BY 1^ST RESPONDENT PRODUCED AT ANNEXURE-H BEARING NO.PÀAE 66 ¨sÀÆ¸ÁézsÁ 2008 AND ACCORDINGLY DIRECT THE 2^ND RESPONDENT HEREIN TO HAND OVER THE POSSESSION OF 4-GTS. OF LAND COMPRISED IN BLOCK NO.7/1A OF SAIDAPUR, DHARWAD TO THE PETITIONER FORTHWITH AND ETC.

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THESE WRIT PETITIONS COMING ON FOR DICTATING ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.HEMALEKHA

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ORAL ORDER

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Both these writ petitions arise out of a long drawn acquisition dispute pertaining to land bearing Survey No.7/1A measuring 1 acre 4 guntas situated at Saidapur, Dharwad, which was acquired as early as 1975-77 for the purpose of extension of the University of Agricultural Sciences, Dharwad.

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While W.P.No.109515/2015 is filed by the private individual questioning the Government order dated 19.08.2015 declining the de-notification and directing delivery of possession to the University, W.P.No.105608/2016 is filed by the beneficiaryUniversity seeking a writ of mandamus for implementation of the very same Government order.

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Since both the writ petitions emanate from the same acquisition proceedings, identical facts and

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interlinked orders, they are heard together and

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disposed of by this common order.

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4. Brief facts of the case:

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4.1. Preliminary and final notifications were issued

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for acquisition of the lands including Survey No.7/1A (1 acre 4 guntas) on 15.01.1975 and 02.11.1977 respectively, for extension of the University of Agriculture Sciences, Dharwad. An award was passed on 23.09.1986 and the acquisition attained statutory completion.

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4.2. The petitioner in W.P.No.109515/2015 and others challenged the acquisition in W.P.Nos.21205-216/1986, which were

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dismissed. The dismissal was confirmed in Writ Appeal No.1157/1987, and thereafter by the

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Hon’ble Apex Court in SLP.No.2245-53/1988 thereby giving finality to the acquisition.

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4.3. When possession of the remaining 4 guntas was

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sought to be taken, the petitioner - private individual i.e., the petitioner in W.P.No.109515/2015, filed W.P.No.11247/1999

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which was dismissed, reserving liberty only to seek de-notification if possession has not been taken.

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4.4. The Government rejected the request for denotification against which W.P.No.34518/2000 was filed, which came to be dismissed and confirmed in Writ Appeal No.1202/2001 with costs.

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4.5. The Government issued an order de-notifying the land in the year 2002, the same was quashed in W.P.No.42158/2002, and the matter was remanded for reconsideration to hear the University.

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4.6. The second de-notification order was passed, which was quashed by this Court in

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W.P.No.7477/2008, holding that, when the

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Deputy Commissioner has submitted a detailed report, the Government could not de-notify the land without hearing the beneficiary-University. Repeated directions were issued to the government to take fresh decision in accordance with law.

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4.7. The Government, after issuing notice and

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hearing all stakeholders, passed a reasoned order rejecting the de-notification and directing handing over position of 4 guntas to the University.

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4.8. W.P.No.109515/2015 as stated supra is filed by

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the private individual challenging the said order of rejecting the de-notification and W.P.No.105608/2016 is preferred by the University seeking mandamus for

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implementation.

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5. Contention of the petitioner :

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5.1. Learned counsel appearing for the petitionerprivate individual contends that the Government Order dated 19.08.2015 is not a speaking order, does not assign reasons for revoking the earlier de-notification and was passed mechanically.

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5.2. The petitioner also alleged delayed communication of the order. It is contended that, since the land was earlier de-notified twice, the Government could have subsequently rejected his request and restored the acquisition.

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5.3. It is urged that, under Section 48(1) of the Land Acquisition Act, 1894 (‘the Act’, for short), the Government has absolute power to withdraw from acquisition so long as possession has not been taken, and therefore the earlier de-notification orders were valid.

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5.4. The petitioner alleges that other adjoining lands

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were de-notified, while he alone is being singled out causing hardship.

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5.5. It is contended that the petitioner is in continued physical possession and asserts that this possession would deprive him of his only means of livelihood. It is contended that though the acquisition has attained finality earlier, the petitioner reiterates a plea that the acquisition is illegal and unconstitutional and void ab initio.

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6. Contention of respondent-Beneficiary:

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6.1. Learned counsel appearing for the respondentBeneficiary submits that the acquisition of the land bearing Survey No.7/1 measuring 1 acre 4 guntas of Saidapur, Dharwad was completed pursuant to the notification dated 15.01.1975 and 02.11.1977, followed by an award dated

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23.09.1986 and that the acquisition has been

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upheld by the Division Bench of this Court and the Hon’ble Apex Court, thereby, attaining finality. It is submitted that the same cannot be reopened in a collateral manner.

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6.2. It is argued that the petitioner has repeatedly

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approached this Court seeking to stall the acquisition including by filing W.P.Nos.21205216/1986, 11247/1999, 34518/2000 and by pursuing appeals up to Apex Court, all of which were dismissed.

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6.3. The present writ petition is therefore contended

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to be a case of re-litigation and abuse of process of law.

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6.4. It is further contended that, though de-

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notification orders were issued in 2002 and 2008, both were set aside by this Court in W.P.Nos.42158/2002 and 7477/2008, and the

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matters were remanded with specific direction

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that the beneficiary-University be heard and the

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decision be taken in accordance with law. Consequently, no right accrued to the petitioner on basis of the quashing de-notification order.

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6.5. It is contended that the Government Order dated 19.08.2015 was passed strictly in compliance with the remand directions issued by this Court after issuing notice to all concerned, affording opportunity of hearing and considering the report of the Deputy Commissioner, which did not recommend denotification, and the said order is reasoned and lawful, warranting no interference.

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6.6. It is contended that the petitioner's reliance on Section 48(1) of the Act is misconceived as the power of withdrawal cannot be exercised in a manner contrary to the binding judicial orders or to nullify a concluded acquisition which has attained finality. It is contended that Section

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48(1) of the Act does not confer an enforceable right on a landowner to demand de-notification.

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6.7. With regard to W.P.No.105608/2016 filed by the beneficiary, it is contended that despite valid Government order dated 19.08.2015, the revenue authorities failed to implement the same, necessitating filing of writ petition by the University and hence the mandamus is warranted.

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This Court has carefully considered the contentions urged by the learned counsel for the parties and perused the material on record.

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The points that arise for consideration are:

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i. Whether the acquisition proceedings in respect of the land bearing Survey No.7/1A measuring 1 acre 4 guntas of Saidapur, Dharwad, which has attained finality up to the Apex Court can be reopened by the petitioner in W.P.No.109515/2015

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questioning the Government order dated 19.08.2015?

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ii. Whether the impugned order passed by the Government dated 19.08.2015 warrants any interference by this Court?

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9. Answer to question No.(i)

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9.1. The acquisition proceedings culminated in an award dated 23.09.1986 for the purpose of extension of the University of Agricultural Science, Dharwad.

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9.2. The legality of the acquisition was challenged at

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the earliest point of time by the present petitioners and other landowners in W.P.Nos.21205-216/1986, which came to be dismissed by this Court. The dismissal was affirmed by the Division Bench in Writ Appeal No.1157/1987 and further confirmed by the Hon’ble Apex Court in SLP No.2245-53/1988,

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thereby giving finality to the acquisition proceedings.

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9.3. Notwithstanding such finality, the petitioner has

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repeatedly approached this Court at different stages seeking to prevent the taking of possession of remaining 4 guntas of land. W.P.No.11247/1999 is filed when steps were initiated to take possession, this Court dismissed the writ petition while observing that liberty would remain to approach the Government for de-notification, only if possession had not been taken. The said observation cannot be read as conferring a vested or an enforceable right to seek denotification, but merely as an observation reserving statutory discretion to the Government.

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9.4. Pursuant thereto, the petitioners sought denotification, which was rejected by the

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Government and the rejection was upheld by this Court in W.P.No.34518/2000 and by the Division Bench in W.A.No.1202/2001.

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9.5. Despite this, a de-notification order dated 13.05.2002 was issued, which was challenged by the beneficiary-University in W.P.No.42158/2002. This Court quashed the

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said de-notification and remanded the matter specifically directing that the University, being the beneficiary of the acquisition must be heard.

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9.6. Thereafter, yet another new de-notification

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order dated 28.02.2008 was passed. The same was again challenged by the University in W.P.No.7477/2008, wherein this Court, after detailed examination of the entire litigation history, quashed the de-notification. The matter was once again remanded for fresh consideration strictly in accordance with law.

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9.7. When the remanded directions were not complied with, the University was constrained to file W.P.No.112812/2014, wherein this Court directed the Government to take final decision in light of the earlier orders.

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9.8. It is only thereafter, after issuing notice to all the concerned and after affording opportunity of hearing that the Government passed the impugned order dated 19.08.2015 rejecting denotification and directing re-delivery of possession to the University.

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From the above sequence, it is abundantly clear that every earlier de-notification order stood quashed by this Court. The petitioner's reliance on Section 48(1) of the Act is misplaced. It only enables the Government in its discretion to withdraw from the acquisition of land of which possession has not been taken. The provision does not create a right in favour of the land owner to demand de-notification nor does

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it permit the Government to act contrary to the binding judicial direction or to nullify the concluded acquisition that has attained finality. The discretion under Section 48(1) of the Act must be exercised lawfully, reasonably and subject to judicial review, particularly where the land is required for continuing public purpose.

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In the present case, the acquisition has attained finality up to the Apex Court, the land is required for the public institution, repeated attempts at denotification have been judicially interdicted, impugned order dated 19.08.2015 has been passed strictly in accordance with law. The challenge in W.P.No.109515/2015 is thus a clear instance of relitigation.

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On the other hand, the University's writ petition seeking enforcement of Government order is justified and administrative action cannot be permitted to

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defeat a lawful decision taken pursuant to judicial

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directions.

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Accordingly, the points framed for consideration are answered and this Court pass the following:

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ORDER

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i. The W.P.No.109515/2015 is hereby dismissed . ii. The Government Order dated 19.08.2015 is hereby confirmed .

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iii. W.P.No.105608/2016 is allowed .

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iv. The Deputy Commissioner, Dharwad and the Tahsildar, Dharwad are hereby directed to forthwith implement the Government Order dated 19.08.2015 and hand over possession of the remaining 4 guntas of land in Survey No.7/1A of Saidapur, Dharwad to the University of Agricultural Sciences, Dharwad in accordance with law.

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v. The entire exercise shall be completed within four weeks from the date of receipt of the certified copy of this order.

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Sd/JUSTICE K.S.HEMALEKHA

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gab Ct:VH List No.: 1 Sl No.: 29

Shadilal Chitram Sharma v. the State of Karnataka

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Shadilal Chitram Sharma v. the State of Karnataka

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