1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED THIS THE 10TH DAY OF AUGUST, 2012 PRESENT THE HON'BLE MR.JUSTICE DILIP B. BHOSALE AND THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY WRIT APPEAL Nos.10124/2010 c/w 10125/2010, 10241/2010 & 10242/2010 (LB-RES) WA NO.10024/2010 BETWEEN The [ENTITY], Rep.by its Commissioner. Appellants (By Shri.[ENTITY], Sr. Counsel for [ENTITY], Advocate) AND 1. The [ENTITY] Rep. by its Secretary to Govt, Urban Development Authority, 4th Floor, M.S. Building, Dr. Ambedkar Veedhi, Bangalore-01. 2. [ENTITY], Vikas Bhavan, [ENTITY]-585101. 2 3. [ENTITY] S/o [ENTITY] Aged about 27 years, Occ: Agriculturist & Student, R/o Godutai Nagar, [ENTITY]-585103. Respondents
(By Sri [ENTITY], Sr. Counsel for Sri [ENTITY] and Sri [ENTITY], Advocates for R-3 Sri [ENTITY] a/w Sri [ENTITY], AGA for R-1) This writ appeal filed u/[SECTION] of the [ACT], to set aside the order/Judgment dated 21/01/2010 in [CASE NUMBER] (LB-RES) and [CASE NUMBER] (LB-RES) passed by the learned single Judge of this Hon'ble Court and allow this Writ Appeal and dismiss the Writ Petition with costs.
BETWEEN The [ENTITY], Rep.by its Commissioner Appellants (By Shri. [ENTITY], Sr. Counsel for [ENTITY], Advocate) AND
1. The [ENTITY] Rep. by its Secretary to Govt, Urban Development Authority, 4th Floor, M.S. Building, Dr. Ambedkar Veedhi, Bangalore-01.
2. [ENTITY] S/o [ENTITY], Aged about 47 years, Occ: Business, Resident of [ENTITY].
3. Smt. [ENTITY] W/o [ENTITY], Aged about 35 years, Occ: Household, Resident of [ENTITY].
4. [ENTITY] S/o [ENTITY], Aged about 40 years, Occ: Business, Resident of [ENTITY].
5. Dr. [ENTITY] S/o [ENTITY], Aged about 45 years, Occ: Doctor, Resident of, N.G.Os Colony, Jewargi Road, [ENTITY].
6. Smt. [ENTITY] W/o [ENTITY], Aged about 37 years, Occ: Household, N.G.Os Colony, Jewargi Road, [ENTITY].
7. [ENTITY] S/o [ENTITY], Aged about 36 years, Occ: Agricutlure, Resident of Afzalpur, [ENTITY].
8. [ENTITY] S/o [ENTITY], Aged about 29 years, Occ: Agriculture, Resident of Afzalpur, [ENTITY].
9. [ENTITY] S/o [ENTITY], Aged about 55 years, R/o [ENTITY].
10. [ENTITY] S/o [ENTITY], Aged about 57 years, Agricutlurist, R/o [ENTITY].
11. [ENTITY] S/o [ENTITY], Aged about 50 years, R/o [ENTITY].
12. [ENTITY] S/o [ENTITY], Aged about 55 years, Occ: Business, NGO Colony, [ENTITY].
13. Smt. [ENTITY] W/o [ENTITY], Aged about 50 years, Occ: Household, R/o Shahabad,Tq: Chittapur, [ENTITY].
14. Smt. [ENTITY] W/o [ENTITY], Aged about 35 years, R/o [ENTITY].
Respondents (By Sri [ENTITY] - Advocate for R2-5, 7 & 8 Sri [ENTITY] - Advocate for R9 to R11 Sri [ENTITY] AAG a/w Sri [ENTITY] AGA For R-1 Sri [ENTITY] - Advocate for [ENTITY] - Advocate for R-6 Sri [ENTITY] - Advocate for R12 -14) This writ appeal filed u/[SECTION] of the [ACT], to set aside the order/Judgment dated 21/01/2010 in [CASE NUMBER] (LB-RES) passed by the learned single Judge of this Hon'ble Court and allow this Writ Appeal and dismiss the Writ Petition with costs. BETWEEN The [ENTITY], Rep. by its Secretary to Govt.
Urban Development Authority, 4th Floor, M S Building, Dr. Ambedkar Veedhi, Bangalore - 01. Appellant (By Sri [ENTITY], AAG a/w Sri [ENTITY], AGA for appellant) And:
1. The [ENTITY] Rep. by its Commissioner.
2. [ENTITY] S/o [ENTITY], Aged about 47 years, Occ: Business, Resident of [ENTITY].
3. Smt. [ENTITY] W/o [ENTITY], Aged about 35 years, Occ: Household, Resident of [ENTITY].
4. [ENTITY] S/o [ENTITY], Aged about 40 years, Occ: Business, Resident of [ENTITY].
5. Dr. [ENTITY] S/o [ENTITY], Aged about 45 years, Occ: Doctor, Resident of, N.G.Os Colony, Jewargi Road, [ENTITY].
6. Smt. [ENTITY] W/o [ENTITY], Aged about 37 years, Occ: Household, N.G.Os Colony, Jewargi Road, [ENTITY].
7. [ENTITY] S/o [ENTITY], Aged about 36 years, Occ: Agricutlure, Resident of Afzalpur, [ENTITY].
8. [ENTITY] S/o [ENTITY], Aged about 29 years, Occ: Agriculture, Resident of Afzalpur, [ENTITY].
9. [ENTITY] S/o [ENTITY], Aged about 55 years, R/o [ENTITY].
10. [ENTITY] S/o [ENTITY], Aged about 57 years, Agricutlurist, R/o [ENTITY].
11. [ENTITY] S/o [ENTITY], Aged about 50 years, R/o [ENTITY].
12. [ENTITY] S/o [ENTITY], Aged about 55 years, Occ: Business, NGO Colony, [ENTITY].
13. Smt. [ENTITY] W/o [ENTITY], Aged about 50 years, Occ: Household, R/o Shahabad, Tq: Chittapur, [ENTITY].
14. Smt. [ENTITY] W/o [ENTITY], Aged about 35 years, R/o [ENTITY]. Respondents (By Sri [ENTITY] for Sri [ENTITY], Advocate for Respondent No.1 Sri [ENTITY], Sr.counsel for [ENTITY] - Advocate For R2, 3 & 5).
Sri [ENTITY], Adv. for R3, 4, 6, 7 & 8, Sri [ENTITY], Advocate for R9 to R11, Sri [ENTITY], Adv. for R12 to 14, Sri [ENTITY], Adv. for [ENTITY], Advocate for R-6).
This writ appeal filed u/[SECTION] of the [ACT], to set aside the order/Judgment dated 21/01/2010 in [CASE NUMBER] (LB-RES) passed by the learned single Judge of this Hon'ble Court and allow this Writ Appeal and dismiss the Writ Petitions with costs. [CASE NUMBER] (LB-RES):
BETWEEN:
The [ENTITY], Rep. by its Secretary to Govt.
Urban Development Authority, 4th Floor, M S Building, Dr. Ambedkar Veedhi, Bangalore - 01. Appellant (By Sri [ENTITY], AAG a/w Sri [ENTITY], AGA for appellant) And:
1. The [ENTITY] Rep. by its Commissioner.
2. [ENTITY].
3. [ENTITY], s/o [ENTITY], Aged about 27 years, Occ: Agriculturist & student, R/o Gudutai Nagar, [ENTITY] 585 103. Respondents (By Shri. [ENTITY], Sr. Counsel for [ENTITY], Advocate for R-1 Sri [ENTITY], Sr. Counsel for Sri [ENTITY] -
Advocate for R3) This writ appeal filed u/[SECTION] of the [ACT], to set aside the order/Judgment dated 21/01/2010 in [CASE NUMBER] (LB-RES) passed by the learned single Judge of this Hon'ble Court and allow this Writ Appeal and dismiss the Writ Petition with costs.
This writ appeals coming on for admission/preliminary hearing, this day, the court delivered the following:
These writ appeals are arising from the judgment and order dated 21.1.2010 rendered by the learned Single Judge whereby Writ Petitions preferred by the respondents-
purchasers, have been allowed. In the writ petitions, the respondents-purchasers (hereinafter referred to as "the petitioners") had prayed for setting aside the order dated 6.8.2004 issued by the [ENTITY] (for short "the Government"), and for direction to the respondent - [ENTITY] to implement their resolution - 277 dated 30.10.1999 in view of the order of the Government dated 6.12.2000 issued under [SECTION] of the [ACT] (for short "the Act"). In [CASE NUMBER], the petitioners also assailed the endorsement dated 31.08.2004 made by Assistant Director of Land Records.
2. The Government vide order dated 6.8.2004, after recording reasons in the preamble, withdrew its earlier order bearing No.12 ACG 2000 dated 6.12.2000, and so also the Resolution-277 dated 30.10.1999 passed by the [ENTITY] (for short, "the Corporation") by which it had resolved to allow the original land owners to retain 14 sites out of the 10 acres of land in Sy.No.70. The Government issued this order in exercise of the powers conferred by [SECTION] of the Act.
3. We have heard learned counsel for the parties at considerable length and with their assistance gone through the entire record and so also the judgments of this Court and the Supreme Court to which our attention was invited in support of their contentions. Having regard to the questions raised before us and considering peculiar facts of the case, we deem it appropriate to state in detail the sequence of events/facts, which in our opinion, would support the view that we are taking in these appeals. Detail narration of facts/events would also demonstrate as to how the impugned order is wrong.
4. The land involved in these appeals is measuring 10 acres in Sy.No.70 situate at [ENTITY] village, Taluk [ENTITY] (for short "the land"). The identity of the land is not in dispute. The facts we propose to narrate hereinafter are not in dispute:
(a) Acquisition proceedings were initiated in respect of the land some time in 1947-48. It was completed and award was passed in 1947-48 itself. The compensation was also paid to the land owner-
[ENTITY]. Though the petitioners - purchasers of 14 sites from the land owners, claim that possession was not taken by the Government, the record reveals that possession was taken from [ENTITY]. We would make reference to the material on record little later, which would clearly reveal that the possession of the land was taken on completion of the acquisition.
(b) After the acquisition proceedings were completed in 1948 itself, [ENTITY] after 13 years for the first time in 1961 filed a suit bearing [CASE NUMBER] in the Court of II Additional Munsiff, [ENTITY], for declaration and perpetual injunction against the Corporation. The suit was in respect of land measuring 26 acres 19 guntas of Sy.No.70. Though, the petitioners made a feeble attempt to contend that the suit was only in respect of 5 guntas of land, we have verified from the plaint itself and so also from the orders passed in different proceedings that it was in respect of 26 acres and 19 guntas of Sy.No.70. When we examined the other documents to satisfy ourselves, whether suit was in respect of 5 guntas, learned counsel for the petitioners also fairly stated that it was in respect of 26 acres and 19 gutnas of land in Sy.No.70. Therefore, that issue is no more in controversy. The suit instituted by [ENTITY] was dismissed on 24.7.1972.
(c) Against the judgment and order passed by the trial court, [ENTITY] filed a Regular Appeal bearing [CASE NUMBER]. The appeal also came to be dismissed by the Additional Civil Judge, [ENTITY] vide judgment and order dated 19.8.1973. Thereafter, [ENTITY] filed [CASE NUMBER] in this court. This Court also dismissed the second appeal vide judgment and order dated 22.11.1979. Thus the order passed by the trial court dismissing the suit of [ENTITY] for declaration that he is owner of the land, attained finality.
(d) After 1979 till 1988 the landlord as well as his heirs and legal representatives kept quiet. In 1988, Sri [ENTITY], the son of [ENTITY], who was also a party to the [CASE NUMBER], suppressing dismissal of the suit, R.F.A and R.S.A, and falsely claiming to be owner in possession of the land, approached the Deputy Commissioner, [ENTITY], seeking conversion of 5 acres 25 guntas of land for residential use and 3 acres 15 guntas for commercial use out of the land under [SECTION] of the [ACT] (for short `the [ACT]'). The Deputy Commissioner though initially granted an order in favour of Sri [ENTITY], having realized that he was misrepresented, withdrew the order of conversion on the ground that Sri [ENTITY] was not owner of the said land on the date of application under [SECTION] of the [ACT].
(e) This order of Deputy Commissioner dated 24.4.1989 was challenged by Sri [ENTITY] before the Karnataka Appellate Tribunal in an Appeal bearing [CASE NUMBER]. The appeal was allowed by the Appellate Tribunal holding that the Deputy Commissioner had no power to review his own order passed under [SECTION] of the [ACT]. Feeling aggrieved by the order of the Appellate Tribunal dated 21.6.1995 the Corporation filed a Writ petition in this Court bearing [CASE NUMBER] before the learned Single Judge. The writ petition was allowed and the order passed by the Appellate Tribunal was set aside. Against this order, Sri [ENTITY] filed a Writ Appeal bearing [CASE NUMBER]. The writ appeal also came to be dismissed vide judgment and order dated 25.6.1998. The matter was not carried further.
(f) Thereafter suppressing all the facts referred to herein above, G P A holder of Sri [ENTITY] in 1998 filed another suit bearing [CASE NUMBER] in the court of the Additional Civil Judge (Jr.Dn.) [ENTITY] for injunction simplicitor. In the meanwhile, a portion of the land was acquired for Bidar Srirangapatna Highway and 6 acres 36 guntas of land only remained out of the land. In the suit, initially exparte order of injunction was passed and it remained in force for some time. We were informed by learned counsel for the parties that the interim order was subsequently vacated.
(g) Before this suit ([CASE NUMBER]), it reveals from the record, Sri [ENTITY] himself had filed one more suit bearing [CASE NUMBER] for injunction simplicitor and in that suit also initially an order of status quo was passed. That order, we were informed across the bar, remained in force for some time and was then vacated. Thus, in both the suits, instituted in 1994 and 1998, though were pending, till they were withdrawn, no interim order was running in favour of the petitioners.
(h) It is against this backdrop, it appears Sri [ENTITY] approached the Corporation and the Corporation passed a resolution in respect of the land being Item No.277 on the supplementary Agenda on 30.10.1999. It would be relevant and necessary to reproduce the resolution for better appreciation of the submissions advanced by the learned counsel for the parties. The true translation of the resolution placed on record by the petitioners reads thus:
Item No.(277) Resolution:
"As per Resolution No.265 dated 03.07.1999 of the Corporation the Mayor and the Commissioner were authorized to negotiate with the concerned party in respect of dispute of Sy.No.70 of [ENTITY], [ENTITY] and to allot the plots to the applicants. The dispute of Sy.No.70 of [ENTITY] is pending since long time i.e., since 1961. The Corporation is not getting any revenue from this land. Due to this long pending litigation and in view authorsation given in Resolution No.265 dated 03.07.1999 negotiation was made by the Mayor and the Commissioner with the concerned party.
As per Resolution No.265 dated 03.07.1999 of the Corporation the Mayor and the Commissioner are authorised to negotiate in respect of above mentioned dipsute with the concerned party and to allot the plots. The Mayor has now submitted a report stating that it would be in the interest of the Corporation to amicably settle the dispute. This suggestion is given by the Mayor to improve the financial position of the Corporation and also to put an end to the long pending litigation in respect of the said Sy.No.70 of [ENTITY], [ENTITY]. The Corporation is litigating in respect of above land since 1961. After great persuation the concerned party has agreed to retain 14 plots out of which 7 plots are measuring 40' x 60' Nos. 17, 10, 21, 22, 23, 24 & 25 and 3 plots measuring odd size Nos. 19, 20 & 103 and 4 plots are measuring 30'x 40' Nos. 43, 44, 45 & 46 in the approved layout by the [ENTITY] Development Authority. In pursuance of the settlement the concerned party has agreed to withdraw the cases pending before the Civil Court, [ENTITY] and has also agreed to forego his right over the remaining plots, open space. The Corporation is liberty to deal with the remaining plots and open space. In the same way the concerned party is an liberty to deal with 14 plots retained by him in whatsoever manner he likes. The concerned party is entitled to get his name entered in the Corporation records (for mutation) as well as other concerned authority. This settlement is proposed by the Mayor as the Corporation has collected money from the citizens of [ENTITY] for allotment of plots and in view of the statusquo order passed by the Court, the Corporation is unable to proceed in this matter. In pursuance of the Resolution the party is directed to withdraw all the cases before the Civil Court as well as City Survey Office so as to enable the Corporation to have free hand in allotment of plots.
In the light of the above negotiation it is unanimously resolved to settle the dispute of Sy.No.70 of [ENTITY], [ENTITY] by way of compromise with the concerned on the following conditions:
1. The concerned party has agreed to retain 14 plots out of which 7 plots are measuring 40' x 60' Nos. 17, 10, 21, 22, 23, 24 & 25 and 3 plots measuring odd size Nos. 19, 20 & 103 and 4 plots are measuring 30' x 40' Nos. 43, 44, 45 & 46 in the approved layout by the [ENTITY] Development Authority. The party shall be at liberty and also he should forego his right over the remaining plots and open space.
2. The remaining plots of Sy.No.70 of [ENTITY], [ENTITY] retains with the Corporation and deals with as per rule including the open space.
3. The concerned party should withdraw immediately all the cases pending before the Civil Court, City Survey Office or in any other Court or Govt. Offices. The Commissioner is authorized to enter into settlement agreement etc., and issue necessary letters to the concerned party."
(emphasis supplied)
(i) By the said resolution, the Corporation allowed, Sri [ENTITY] to "retain" 14 plots out of which 7 were measuring 60' x 40', 4 sites were measuring 30' x 40' and the remaining of different sizes. Thus from bare perusal of the resolution, it appears, the Corporation proceeded on the assumption that Sri [ENTITY] was still in possession as an owner of the land and therefore, allowed him to "retain" 14 plots.
(j) The Corporation, thereafter approached the Government as required under [SECTION] of the Act seeking its approval to the Resolution. The Government approved the said Resolution vide its order dated 6.12.2000. The true translation, placed on record by the petitioners, of the preamble to the order dated 6.12.2000, which would be relevant, reads thus:
"In the letter as read over above at (1) wherein it is informed that the case pertaining to the land bearing Sy.No.70 belonging to the limits of [ENTITY] is pending since 1961 and there is a case pending before the court in respect of the said land in between the Mahanagara Palike and the owners of the land and since no income whatsoever is deriving from the said land and also in the financial interest of the Mahanagara Palike in order to dispose of the said case the Hon'ble Mayor and the Commissioner after having discussion with the owner of the land have taken the decision under [SECTION] of Mahanagara Palike on 30.10.1999, sought for the permission of the Government."
(k) After the order dated 6.12.2000 the General power of attorney holder of Sri [ENTITY] withdrew the suit [CASE NUMBER] in view of the resolution passed by the Corporation in terms of the so-called compromise between Sri [ENTITY] and the Corporation.
(l) It appears that a public interest litigation bearing [CASE NUMBER] was filed by one Sri [ENTITY] challenging the Resolution dated 3.7.1999 and 30.10.1999 passed by the Corporation and the Government order dated 6.12.2000. That writ petition (P.I.L) was ultimately disposed of as not maintainable.
(m) It has also come on record that after the order of the Government dated 6.12.2000 granting approval to the resolution passed by the Corporation, the Commissioner himself filed application before the Assistant Director of Land Records (for short `ADLR') for entering name of Sri [ENTITY] in the record of rights in respect of 14 plots. Thereafter the petitioners purchased these plots from Sri [ENTITY] under registered sale deeds.
(n) It is pertinent to note that though the Commissioner/Corporation had filed an application as aforementioned for changing the land records in respect of 14 plots, actual change was never effected in view of the endorsement dated 31.8.2004, impugned in [CASE NUMBER], issued by the ADLR. Thus, it is not in dispute that when the petitioners purchased the plots from Sri [ENTITY], his name was not appearing in the record of rights in respect of the said land.
(o) The Government, it seems, having realized its mistake, perhaps after receiving notice in the PIL, directed the Divisional Commissioner to conduct a detailed enquiry and submit his report in respect of the land. The Divisional Commissioner accordingly conducted a detailed enquiry and submitted his report on 22.4.2003. The true translation provided by the petitioners of the conclusions, recorded by the Divisional Commissioner in his report read thus:
1. Even though the Land bearing Sy.No.70 of Brahmapura Village, [ENTITY] was acquired by the then Nagara (Town) Palike in 1947, departmental enquiry has to be conducted against the concerned staff who has given No Objection Certificate for conversion of land for non-agricultural purposes.
2. Suitable action has to be initiated against the then Commissioner who has failed to raise objection for the Resolution dated 30.10.1999 in Item No.277 or failure to submit the adverse report to the Government in the interest of the Mahanagara Palike (aginst handing over of 14 sites to the previous land owner free of cost).
3. The market rate per square feet is average Rs.45.82, There is no basis for fixing the rate of 33.33 per sq. feet. Enquiry has to be conducted for not fixing the total market rate of Rs.77.42 per square feet i.e., Development fee of Rs.31.60 per sq. feet, by including the market rate at Rs.45.82 per Square feet.
4. By canceling the action of releasing 14 sites to the land owner free of cost (either from the Government or by the Court), the said 14 sites are to be sold by way of public auction.
5. When the applications are invited from the public, if the Government or the Court enhance the rate of the site, the condition is precedent in the Notification that the persons who availed the site ought to have to pay the higher rate. It is learnt that even the registration also made in the similar manner. Hence only after collecting the higher market rate at Rs.12.50 per sq. ft.
(45.82-3.33) from the site holders and also the development fee of Rs.31.60 per sq.ft permission may be granted for construction of the house or buildings.
6. Necessary action has to be initiated only in respect of 14 sites which are to be handed over the land owners by filing an affidavit before the High Court for vacation of stay. By got vacating the stay order in respect of the 94 sites allotted to the public, to facilitate them to construct the houses thereon."
(p) On the basis of the aforesaid report of the Divisional Commissioner and so also the other record, the Government, after making detailed reference to earlier proceedings in the preamble, passed the order dated 6.8.2004, impugned in the writ petitions, in exercise of the powers under [SECTION] of the Act, withdrawing the earlier order dated 6.12.2000 with immediate effect and canceling the Resolution - 277 dated 30.10.1999. Admittedly, before issuing the order dated 6.8.2004 the Corporation was given a show cause notice as contemplated by [SECTION] of the Act, and that the Corporation did reply to the show cause notice, after once again passing a similar resolution, as was passed bearing Resolution No.277 dated 30.10.1999.
4.1 It is against this backdrop the 14 petitioners filed writ petitions in this Court under [SECTION] & [SECTION] of the [ACT] mainly assailing the order passed by the Government dated 6.8.2004.
5. Before we proceed further, we deem it appropriate to reproduce certain observations in the order passed by the learned Single Judge. The following observations, in our opinion, would demonstrate that the view taken in the impugned order is based on misleading information/facts placed on record by the petitioners.
(i) In view of the series of litigations, the Corporation of City of [ENTITY] (henceforth referred to as the `Corporation') could not take the possession of the property from the erstwhile owner. Therefore, in order to avoid litigation, the Corporation as well as the erstwhile owner of the property viz., [ENTITY] entered into a compromise. By virtue of the said compromise, the Corporation agreed that 14 plots out of which seven plots measuring 40' x 60' i.e., 17, 18, 21, 22, 23, 24, 25, 3 plots measuring odd size i.e., 19, 20 and 103 and 4 plots measuring 30' x 40' i.e., 43, 44, 45 and 46 in the layout formed by the Sy.No.70 of Brahmapur village, [ENTITY] should be retained by the owner, [ENTITY].
(ii) The Commissioner of Corporation of City of [ENTITY] himself filed petition before the Deputy Director of Land Records, [ENTITY] to mutate and transfer those 14 plots in the name of Sri [ENTITY]. After hearing and on considering the material on record, the Deputy Director of Land Records, [ENTITY] by his order dated 29.7.2004 entered the name of Sri [ENTITY] in respect of above mentioned 14 plots and the name of the Corporation of City of [ENTITY] in respect of other plots formed in Sy.No.70.
(iii) As aforementioned, there were series of litigation filed against the Corporation by erstwhile owner [ENTITY] and plots could not actually be formed and possession could not be taken by the Corporation in respect of plots formed in Sy.No.70 even after about 40 years of acquisition.
(iv) Which means acquisition was dropped in respect of the areas comprising of those 14 plots before taking possession. There cannot be any dispute that State Government can drop the acquisition proceedings prior to taking possession of properties. By then an order was passed in favour of [ENTITY] of converting the land into non agricultural purposes, by the competent authority. Pursuant to the order Annexure-B, even the entries were changed in the name of [ENTITY] in respect of 14 plots that too at the request of [ENTITY] Corporation. The Commissioner of the Corporation himself filed an application before the Assistant Director of Land Records for changing the entries in the name of Sri [ENTITY] in respect of 14 plots. Thereafter, these petitioners have purchased 14 plots from [ENTITY].
(v) There is absolutely nothing in the impugned order that either [ENTITY] or the petitioners have played fraud on Corporation or on the State Government. In the absence of such material, it was not open for the State Government to review its earlier order. Based on the order dated 6.12.2000, the parties have acted and the petitioners have purchased the plots.
(vi) If compromise entered into was really not in the interest of Corporation, the State Government would not have approved resolution at all. In that view of the same, the impugned order subsequently passed by the State Government cannot be sustained."
(emphasis supplied)
6. We have heard the learned counsel for the parties at considerable length. We would like to advert to the submissions made by the learned counsel for the parties in the light of the observations made by the learned Single Judge in the impugned order, which, in our opinion, are based on incorrect/misleading facts.
7. The learned Judge proceeded on the assumption that the Corporation could not take possession of the property from the erstwhile owner, and therefore, in order to avoid long standing litigation they entered into a compromise. No such compromise purportedly entered into was produced on record by the petitioners either before the learned Single Judge or before this Court. It appears, the negotiations which were entered into by the then Mayor and the Commissioner, as they were authorized by the Corporation, and whatever was their report that seems to have been referred to as compromise. But the compromise never was recorded in black and white, at any point of time, signed by both the sides. As has been rightly submitted by the learned senior counsel for the appellant, they could not bring the so-called compromise on record in pending suits since it was based on false averments regarding ownership and possession of the said land. In other words, it was submitted that in any case, they could not have entered into any such compromise. Moreover, from the observations in the order, it is further clear that the learned Judge proceeded on the assumption that Sri [ENTITY] was not only an owner of the land, but was in possession thereof and that the acquisition was not complete. It was completely overlooked that the then Commissioner and the Mayor prevailed over the Corporation to pass the resolution-277 by placing false/incorrect information before the House.
8. Then, the learned Judge also took a serious notice of the fact in favour of the petitioners that the Commissioner himself had approached the Deputy Director of Land Records (D.D.L.R for short) for effecting entries in the record of rights in favour of [ENTITY]. As has been observed earlier, the order of the D.D.L.R. dated 29.7.2004 passed at the instance of the Commissioner was never executed and that the name of [ENTITY] was not entered in the record of rights. It is evident from the subsequent order/endorsement dated 31.8.2004 referred to herein above. It appears that the subsequent order/endorsement was however, not brought to the notice of the learned Single Judge, which led him to make incorrect/wrong observations in the impugned order that "the name of [ENTITY] was actually entered in the record".
9. Then it was observed in the impugned order that "in view of the series of litigations, the Corporation could not take possession of the said land for 40 years", which again is factually incorrect. It is evident from the observations made in Paragraph 12 of the judgment dated 22.11.1979 rendered by this Court in [CASE NUMBER] that the possession was also taken by the Corporation way back. The relevant observations read thus:
"12.That being so, it is obvious that the defendant has proved that the final notification is also published. As submitted by the learned Advocate appearing on behalf of the respondent the evidence of that notification is final and conclusive proof that the land was legally acquired. Exhibit D-15 is an order settling the compensation for Rs.1,000/-. The power of attorney holder received the same, by filing an application (Exhibit D-1) dated 27.4.1948. Exhibit D1(b) is a true copy thereof. Exhibit D-1(c) is the translation. The Power of Attorney is at Exhibit D-17, the copy of which is at Ex.D17(a). Exhibit D- 18 is the letter addressed by the Municipality to the Tahsildar to hand over possession of the land and its true copy is at Exhibit D.18(a). Ex.D.19 is the document which shows that possession was taken after paying the compensation."
(emphasis supplied)
10. Thereafter in [CASE NUMBER] this Court while dismissing the appeal filed by Sri [ENTITY] vide judgment and order dated 25.6.1998, in Paragraph-4 made the following observations:
"Thus, in all previous proceedings title and possession of the appellant was negatived. It is a fact that the Dy. Commissioner has no power to review as the statute has not conferred any review but this court while exercising power U/[SECTION] of the [ACT] has to see that ends of justice has to be done. When the appellant has no right over the land he is not entitled to file petition for conversion of the land. Once he has no right to file petition for conversion of land, he has no other incidental right to prosecute the case or carry on the case. If it is allowed it amounts to pursuing frivolous litigation abusing process of court, wasting time of the court apart from spending public money where government has to contest. On this ground itself, we are not able to see any ground to interfere in the appeal."
It is, thus clear that the observations made in the impugned order in respect of possession of the land were also factually incorrect. The aforesaid observations, made by this Court in the earlier proceedings, it seems, were not brought to the notice of the learned Single Judge.
11. Then there is an observation in the impugned order that "the acquisition was dropped in respect of the areas comprising of 14 plots before taking possession". We are at loss to understand as to how could the acquisition be dropped?; When was it dropped?; where is such order? The acquisition was in fact completed in 1947-48 itself, the award was passed, the compensation was paid and, as has been seen from the orders of this Court, the possession was also taken. By no stretch of imagination, it could be said that acquisition came to be dropped. Even if it is assumed that such step could be taken, it is only by following the due procedure contemplated by the provisions of the [ACT]/by following the due procedure contemplated by law.
12. Then, we find the observation in the impugned order that "there is absolutely nothing in the impugned order dated 6.8.2004 that either Sri [ENTITY] or the petitioners have played fraud on the Corporation or on the State Government". Even if it is assumed that no fraud was played by the petitioners, in our opinion, it cannot be stated that Sri [ENTITY] by joining hands with some interested persons in the Corporation did not play fraud on the Corporation and so also on the Government. The Corporation and the Government were undoubtedly misled by the Mayor and the Commissioner, which is also evident from the report submitted by the Divisional Commissioner dated 22.4.2003. It is on the basis of this report the decision/order dated 6.8.2004 was issued by the Government. From the report it is clear that the Corporation was given to understand, when the first Resolution dated 30.10.1999 was passed, that litigation was pending since 1961 and that possession of the land was not taken, apart from the fact that the Corporation when passed the resolution-277, was not informed that the acquisition of the land was complete in all respects in 1947- 48 itself. Based on such misleading information, the Corporation passed the Resolution - 277. The Corporation was specifically informed by the Commissioner that Sri [ENTITY] was owner in possession of the land and in order to put an end to long standing dispute, he ([ENTITY]) may be allowed to "retain" 14 plots. 12.1 It is on the basis of the resolution 277, passed on 30.10.1999, the Corporation approached the Government as required under [SECTION] of the Act. The Government accepting the information to be true and without knowing the fact that the acquisition was complete; the award was passed; the compensation was paid; and the possession was taken; passed the first order dated 6.12.2000. In view thereof, we have no hesitation in holding that fraud was played on the Corporation and/or on the Government which prompted them to pass the resolution-277 and the order dated 6.12.2000. Even if it is assumed, as observed earlier, that these petitioners were not at all in picture either in misleading or committing fraud on the Corporation, they cannot be allowed to enjoy fruits of the resolution/decision obtained by fraud or of the illegalities committed by Sri [ENTITY] and the Commissioner. In any case the extraordinary power under [SECTION] of the [ACT] cannot be exercised in favour of the persons who have absolutely no legal right whatsoever in the property. This Court cannot turn its blind eye to such illegalities/fraud played on the statutory authorities and allow to perpetuate the same, particularly when it is in respect of a public property. The interest of people at large is paramount and not interest of any individual, such as the petitioners. Loss to the Corporation would be more than to the petitioners, if the impugned order is allowed to be implemented.
12.2 In this connection, we would like to refer to judgment of the Supreme Court in [ENTITY] v. Government of Andhra Pradesh, (AIR 1966 SC 828). In this judgment, the Supreme Court, observed that "ordinarily", the petitioner who seeks to file a petition under [SECTION] of the [ACT], should be one, who has a personal or individual right in the subject matter of the petition or who has been prejudicially affected by an act or omission of an authority. In the present case, the first order of the Government dated 6.12.2000 was passed on the basis of misleading facts and therefore, the Government having realized its mistake, corrected the order by canceling the Resolution - 277. It is in this backdrop, it is relevant to notice the observation made by the Supreme Court in [ENTITY]'s case. In Paragraph-17, the Supreme Court observed, after making reference to the factual matrix, that "if the High Court had quashed the said order, it would have restored an illegal order. The High Court, therefore, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case". The first order dated 6.12.2000 of the Government, in the present case was illegal since it was obtained by fraud and that would stand restored if the second order dated 6.8.2004 is set aside. 12.3 In [PRECEDENT], the Supreme Court has observed that a party who secured a decision by fraud cannot be allowed to enjoy its fruits. In the present case, we have already observed that by placing misleading factual matrix, before the Corporation and the Government, Sri [ENTITY], the owner of the land, by joining hands with the interested persons in the Corporation, committed fraud and therefore, we are satisfied that neither Sri [ENTITY], nor the petitioners, who are claiming right through him, can be allowed to enjoy the fruits of the Resolution - 277 dated 30.10.1999. The Supreme Court has reiterated this principle in [PRECEDENT]. 12.4 The Supreme Court in [PRECEDENT], has observed that the authorities, be constitutional, statutory or administrative, possess the power to recall their judgments or orders, if they are obtained by fraud, as fraud and justice never dwell together. In our opinion, the omission to place true and correct facts before the Corporation, when it passed the Resolution-277 and when approval was sought from the Government, as contemplated under [SECTION] of the Act, tantamounts to playing fraud on these authorities and therefore this Court need not and should not exercise its extraordinary jurisdiction under [SECTION] of the [ACT].
13. Then there is again a reference to the so-called compromise in the impugned order. It was observed in the order that "it is in the interest of Corporation, and if it was not, the Government would not have approved the resolution at all vide order dated 6.12.2000". It is thus clear that the order impugned in these appeals is based on some wrong/misleading facts and therefore it cannot be sustained in law.
14. Sri [ENTITY], learned Senior Counsel and Mr.[ENTITY], learned counsel for the petitioners submitted that while passing the order, impugned in the writ petitions, the Government ought to have granted hearing to the petitioners. In other words, they submitted that the impugned order was passed in gross violation of the principles of natural justice. It was submitted that a definite interest was created in favour of the petitioners in view of the Resolution No.277 passed by the Corporation and the order dated 6.12.2000 passed by the Government. All the petitioners are bona fide purchasers of the plots and they cannot be punished by cancellation of the Resolution without affording an opportunity of being heard to them. They did not urge any other contentions. Similar contentions were also urged by Mr.[ENTITY], Mr.[ENTITY] and Mr.[ENTITY], learned counsel appearing for some of the petitioners. The reliance was placed upon the judgments of the Supreme Court in support of this contention, [ENTITY] vs., J M As Industries Limited 1993) 3 SCC 259, [PRECEDENT] W.S. Welfare Assn. VS., [ENTITY] 1991 (1) (U.J.(S.C) 628.
15. Therefore, the crucial question that needs to be considered and adjudicated is, whether the principles of natural justice have been violated and if so, what extent, any prejudice has been caused. In other words, observance of principles of natural justice, in the facts of the present case and in the light of the provisions of [SECTION] of the Act, would be necessary and that the petitioners can seek that as of right. It may be noted at this juncture that the cases, where grant of opportunity in terms of principles of natural justice, do not improve the situation, "useless formality theory" can be pressed into service (See [PRECEDENT]).
16. The principles of natural justice are well settled. The first and foremost principle is what is commonly known Audi alteram partem rule. It says that no one should be condemned unheard. The principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of any individual against the arbitrary procedure that may be adopted by a judicial, quasi judicial and the administrative authority while making an order affecting those rights. These Rules are intended to prevent such authority by doing injustice.
17. It is also well settled that where grant of opportunity in terms of principles of natural justice, does not improve the situation, it need not be observed being an empty formality. Unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the facts situation of the case, High Court can exercise extraordinary jurisdiction under [SECTION] of the [ACT] and direct the concerned authority to observe principles of natural justice. But the case where facts are admitted or undisputable, the Court may certainly consider, whether hearing is necessary and if the court is satisfied on the admitted/undisputed facts that hearing would be an empty formality, it can press into service "useless formality theory" (See [PRECEDENT]). In the present case, we have examined the admitted/indisputable facts and on the basis thereof, we are satisfied that even if the hearing is granted to the petitioners, it would be an empty formality/futile exercise.
18. In Karnataka State Road Transport Corporation & another vs., S G Kotturappa 2005) 3 SCC 409), the Supreme Court observed that the question as to what extent, the principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality.
19. In [PRECEDENT], the Supreme Court observed thus:
"The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs.
(emphasis supplied)
20. A similar view has been expressed by the Supreme Court in [PRECEDENT] and [PRECEDENT].
21. In [ENTITY]'s case, the Supreme Court observed that in case where rights of the parties involving civil consequences, the concerned authority should follow the principles of natural justice. The person concerned must be informed and must be given a fair opportunity to meet the case before an adverse decision is taken. Then the Supreme Court in Scheduled Caste & Weaker Section Welfare Assn. Case, in Paragraph 15 observed, when any alteration is sought to be made in the original scheme, it becomes incumbent upon the authorities to give an opportunity to the persons who had been affected by the earlier order and required to adopt certain course of action. These judgments relied upon by Mr.[ENTITY], in our opinion, are of no avail to the petitioners.
22. Thus, the law laid down by the Supreme Court in respect of principles of natural justice is very clear and it needs to be applied in the facts and circumstances of each case. In the present case, in our opinion, observance of principles of natural justice would be a futile exercise for simple reason that, the petitioners who are claiming interest in the property, are claiming through Sri [ENTITY] who executed registered sale deeds in their favour without having any authority in law. In other words, Sri [ENTITY] had no title at all to the property in respect of which he had executed registered sale deeds in favour of the petitioners. Moreover, Sri [ENTITY], by joining hands with the Commissioner, had played fraud on the Corporation and so also on the Government. It is in this backdrop, as observed by the Supreme Court, principles of natural justice need not be observed.
22.1 In our opinion, the principles of natural justice, in the facts and circumstances of the present case, are not required to be observed since, we are satisfied, that it would lead to an empty formality. The case where on an admitted or undisputable facts only one conclusion is possible and under the law only one view is permissible, the court need not issue its writ to compel observance of natural justice. On the basis of factual matrix in the present case, in our opinion, only one conclusion can be drawn, and that is, the petitioners did not acquire any right whatsoever in the sites purchased by them under the registered sale deeds executed by a person/[ENTITY], who did not have title to the sites. Sri [ENTITY] had lost title to the suit land in 1947-48 itself. We have already seen as to how [ENTITY]/Sri [ENTITY], with the gap of 8-12 years, approached some or the other judicial forum for seeking relief in respect of the land that was acquired in 1947-48. If [ENTITY] had no right whatsoever in the property, the petitioners claiming through [ENTITY], are also not entitled for any relief in these petitions under [SECTION] of the [ACT].
23. Next we would like to consider [SECTION] of the Act. [SECTION] of the Act provides for submission of all copies of resolution to the Government and the Government's power to cancel resolution and orders. Under this provision, the Commissioner of Municipal Corporation requires to submit to the Government copies of all resolutions of the Corporation. The Government is empowered to suspend the execution of resolution or order, or prohibit the doing of any act in execution of any resolution or order of the Corporation, if it is in contravention of or in excess of the powers conferred by this Act or of any other law or is prejudicial to the interest of the Corporation. The Government before doing so, is expected to issue a notice to the Corporation to show cause as to why the resolution or the order may not be canceled. Upon consideration of the reply, if any, received from the Corporation and after such enquiry as it thinks fit, the Government may pass orders canceling the resolution or order and communicate the same to the Corporation. The Government may at any time, on further representation by the Corporation or otherwise, revise, modify or revoke an order passed canceling the resolution or order under sub- [SECTION] of the Act.
23.1 Thus, the provisions contained in [SECTION] of the Act provide the procedure and so also empowers the Government to deal with resolution or order of the Corporation. It confers the Government with a power to accord approval to the Resolution/Order passed by the Corporation. The nature of power conferred on the Government to accord approval to the Resolution/Order of the Corporation, in our opinion, is supervisory, and in any case, it cannot be termed as quasi judicial. It contemplates hearing to the Corporation. Even if it is assumed, that a beneficiary of the Resolution/Order, issued by the Corporation, is entitled for hearing before cancellation of such resolution/order, in the present case, it is only, Sri [ENTITY], being a beneficiary, could have made such grievance. He never came forward either in this proceedings or sought hearing independently. The persons like petitioners did not have any right of being heard, particularly when the Government is satisfied that the Corporation passed a Resolution/Order in contravention of, or in excess of the powers conferred by the Act or of any other law for the time being in force or is prejudicial to the interest of the Corporation. Thus, we have no hesitation in holding that the petitioners did not have any right of being heard before cancellation of the resolution - 277. 23.2 If the right of indirect beneficiaries of the resolution, such as the petitioners is recognized, that, in our opinion would create a chaotic situation. In a given case, there could be hundreds of beneficiaries, such as the petitioners, and if the resolution or order is prejudicial to the interest of the Corporation or is in contravention or in excess of the powers conferred by the Act, the Government would have to issue notice to all such persons and grant them opportunity of being heard. In our considered opinion, that was not the intent of legislature. Moreover, that is not contemplated by [SECTION] of the Act. On this count also, the submission of learned counsel for the parties seeking hearing to the petitioners must be rejected.
24. We would now like to examine the submission of Mr.[ENTITY] that the Government had no power of review their earlier order dated 6.12.2000. In support of this contention, he placed reliance upon the judgments of the Supreme Court in [ENTITY] vs., Management of Hindu Kanya Maha Vidyalaya Sitapur U.P. (AIR 1987 SC 2186), [ENTITY] vs., Pawan Kumar Jain (2008) 1 SCC(Cr.) 537 and [ENTITY] vs. State of Madhya Pradesh & others (AIR 2011 SC (Civil) 1868). We have perused all the three judgments. In [ENTITY]'s case, the Supreme Court has observed that a quasi judicial authority cannot review its own order, unless a power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Government in the present case was neither acting as a quasi judicial authority nor was expected to hear the petitioners, who claim to be the beneficiaries of the Resolution - 277 and of the order dated 6.8.2000. Hearing to the persons, such as the petitioners, is not contemplated by [SECTION] of the Act. In [ENTITY]'s case, the Supreme Court while referring to [SECTION] of the Code, observed that court cannot alter or review its judgment or the order after it is signed except correcting clerical or arithmetical error. This judgment in our opinion has no application to the facts of the case. In [ENTITY]'s case, Supreme Court observed that power of review by High Court has to be specifically provided for in the Act. The Supreme Court was dealing with Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam (23 of 1973). In our opinion, none of these judgments are of any avail to the petitioners.
25. In the present case, in our opinion, the Government has passed the order, impugned in the writ petitions, in exercise of the powers conferred under [SECTION] of the Act. By this provision, the Government has unbridled powers to cancel the resolution or order communicated by the Corporation. From bare perusal of this section, it cannot be stated that the Government cannot withdraw its earlier order and cancel the resolution passed by the Corporation if it is satisfied and convinced that the earlier order granting approval to the resolution was ex facie illegal and/or based on misleading facts/information or was obtained by fraud. We have already observed that not only the Corporation but even the Government was misled and the fraud was committed on the authorities. Thus this submission also deserves to be rejected outright.
26. The submission of learned counsel Sri [ENTITY] that the record of rights show entries in favour of Sri [ENTITY] till 1998. Even if it is accepted as true and correct, that also would not help the petitioners to claim any right whatsoever in the land. It is now well settled that the entries in the revenue record ought, generally, to be accepted at their face value. But presumption of correctness can apply only to genuine entries. If the entries are not consistent with the record/rights of the parties, such entries do not confer any right/title on the party, claiming such right on the basis of the entries in the revenue record. In the present case, even if it is accepted that name of the land owners continued till 1998, that by itself, would not entitle them to claim ownership of the land, of which they lost title/possession in 1947-48 by keeping their dispute artificially alive in courts. Similarly, even if it is assumed that names of the petitioners on the basis of the registered sale deeds are appearing in the record of rights, that will not help them to claim any relief from this Court in these proceedings.
27. We have already considered the facts in depth and so also the law and on the basis thereof, we have recorded a finding that the sale deeds are illegal and no title could be derived on the basis of such sale deeds, which were executed by so-called landlord, who had lost title in the land in 1947- 48 itself. Even if it is assumed that the petitioners did not have any information or knowledge about all the developments which had taken place before they purchased the lands under registered sale deeds, the only course open to them is to proceed against the landlord either to recover the price paid by them or to proceed against the Corporation for appropriate relief. While making this observation, we shall not be understood to have recognized any rights of the petitioners in that regard. If at all, they file any such proceedings, the same shall be considered on merits in accordance with law.
28. In the result, the appeals are allowed. The order dated 21.1.2010 passed by the learned Single Judge is set aside and as a consequence thereof, the order passed by the Government dated 6.8.2004 is confirmed.
JUDGE.
JUDGE.