:1: IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE lO DAY OF FEBRUARY, 2012 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM BETWEEN: The University of Agricultural Sciences, Krishi Nagar, Dharwad, Rep. by its Registrar. .Petitioner [By Shri Ramachandra Mali, Advocate] AND: 1. The State of Karnataka, By its Secretary, Revenue Department, M.S.Building, Bangalore. 2. Sri. Shadilal Chitram Sharma, Major, Hotel Business, R/o, P.B.Road, Sharma Hotel, Dharwad, .Respondents [By Shri P,HGotkhindi, HCGP for Ri and Shri Hernant Chandanagoudar, Adv, for R2] This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the :2: notification dated 28.02.2008 vide Annexure — L passed by Ri and etc. This Writ Petition coming on for orders, this day, the Court made the following: - ORDER The petitioner-University of Agricultural Sciences, Dharwad, is in writ action under Articles 226 and 227 of the Constitution of India seeking to issue a writ of certiorari to quash the notification bearing No.Kom.E.12 Bhu Swadha, 2007 dated 28.2.2008 vide Annexure-L and for appropriate directions. In the party array, they brought in State of Karnataka as respondent no.1 which claims to be the owner of the land which is subject matter of notification vide Annexure-L. 2. Heard Sri Ramachandra Mali, learned counsel for the petitioner, Sri P.H.Gotkhindi, learned HCGP for the respondent-State and Sri Hemant Chandanagoudar, counsel for respondent no.2. :3: Perused records in supplementation thereto which reveals: a) Petitioner claims to have approached the 1 respondent-State for grant of lands to construct a building for the purpose of imparting education in degree and post graduate levels in the district of Dharwad in fulfillment of the State’s objective to provide quality education, with all facilities and paraphernalia. It is averred, 1 g respondent accepting their request and realizing the need for sufficient land to construct the University building, acquired lands in Block No.7/lA of Saidapur village measuring 1 acre 4 guntas including other lands of the same village belonging to the 2”’ respondent, issued preliminary notification under Section 4(1) of the Land Acquisition Act on 4.1.1975. It culminated in final notification under Section 6(1) of the said Act on 2.11.1977 and In pursuance thereto, the award is also passed on 23.9.1986. t :4: b) It is alleged, acquisition proceedings were brought in question by the 2 respondent in W.P.21205-21216/86 on several grounds, one amongst which was, the State had taken a decision to de-notify some lands. This court accepted those writ petitions and on merit found no ground worthy of acceptance, and confirmed both the notifications and ultimately acquisition of land. The order passed in those writ petitions is at Annexure-A. c) The 2 nd respondent questioned it in W.A.1157/87, but the Division Bench confirmed the order of the learned single Judge as could be seen vide order at Annexure-B. The order of the Division Bench was questioned by the 2 id respondent in SLP.2245-2253/88 before the Hon’ble Supreme Court which was also a failure. Petitioner has relied on Annexure-C in support of this contention. • 6 :5: d) Petitioner has further averred that despite failure in writ action, writ appeal action and Special Leave before the apex court, the 2 m1 respondent filed W.P.11247/99 seeking to restrain the State from obtaining possession of the lands in question. That writ petition was also a failure as could be seen from the order of this court dated 16.11.1999 vlde Annexure-D. However, it appears this court observed that dismissal of the writ petition will not prevent the 2 uid respondent to approach the Government if possession of land is not already taken, to seek de notification. This court also directed that if the 2 nd respondent makes a representation to the Government within two weeks from the date of the order, i.e. 16.11.1999, the Government shall consider his request and pass appropriate orders within two months from the date of receipt of the application/request. e) The 21 respondent appears to have applied to the Government seeking de-notification, but it was rejected by order dated 1L102000 vide Annexure-E. The said order appears to have been challenged in yet another writ petition, W.P.34518/00, but this court dismissed it with cost vide order dated 27.8.2001 produced at Annexure-F. Aggrieved by the order of the learned single Judge, 2 respondent again preferred W.A.1202/O1 but this court dismissed the appeal vide order dated 27.2.2000 at Annexure-G. f) The grievance of the petitioner is, while things stood thus, 1 st respondent-State without hearing the petitioner which was the beneficiary of acquisition of lane, issued a notification on 13.5.2002 vide No.RevDept.79 LAQ 2000 (Part) deleting 4 guntas of land from acquisition under Section 48(1) of the Land Acquisition Act. The said Gazette Notification is produced at AnnexureH. Petitioner being aggrieved by such notification, preferred writ petition before this :7: court in W.P42158/02 (LA) which petition after hearing both sides, was allowed quashing the order of the Government de-notifying the land to the extent of 4 guntas, vide order dated 20.11.2006 produced at Annexure-J. The matter was remitted to the Deputy Commissioner to consider the representation of the 2”’ respondent for de-notification after issuing notice to the petitioner. This court further directed that the Deputy Commissioner shall take into consideration innumerable attempts made by the 2 nd respondent to thwart acquisition proceedings and also proceedings in this court and apex court. g) Petitioner claims to have filed detailed objections in the remand proceedings on 30.4.2007 vide Annexure-K, but the Deputy Commissioner accepting the grounds urged by the University against de-notification, declined to recommend de notification, but the 1’ respondent has erroneously accepted request of the 2” respondent and issued the :8: notification on 28.2.2008 vide Annexure-L de-notifying the land belonging to the 2’ respondent. h) Thus aggrieved by the notification issued by the 1Y respondent-State vide Annexure-L and the notification issued pursuant thereto, petitioner has sought its quashing. 3. During the course of arguments, it is noticed Annexure-L challenged by the petitioner is only a notification and the order passed by the 1 g respondent in pursuance to it was not available. Therefore I had called for the records of proceedings which resulted in issuance of Annexure-L. 4. Learned Govt. Advocate has produced the records from the file of the 1 respondent and Deputy Commissioner concerned. On verification, it admits of no doubt that the de-notification order has been passed by the 1 st respondent on 24.1.2008 at page 12 :9: of the file produced. In terms of that order, Annexure-L has been issued, 5. The core contention of the petitioner is, this court, vide order at Annexure-J had in explicit terms remanded the matter to the Deputy Commissioner with a direction to hear the representation that would be given by the 2 nd respondent seeking de-notification and also to notify the petitioner and give them an opportunity of being heard, and then to pass appropriate orders. 6. Sri Ramachandra Mali submits during remand proceedings, the Deputy Commissioner has examined the representation of the 2 nd respondent seeking de notification in the light of objections filed by the University and found no favour with the request made by the 2 respondent. He submits this court vide order at Annexure] n WP,42158/O2, remitted the matter to the Deputy Commissioner to take into UI : 10 consideration the conduct of the 2’’ respondent in making frequent attempts to thwart acquisition proceedings in this court and also the apex court. He submits, the Deputy Commissioner to whom the matter was remanded had satisfied himself that the request made by the 2 m1 respondent for de-notification did not merit acceptance and thus did not recommend to the State Government to de-notify the land. He had sent a detailed report on 1.6.2007 to the Vt respondent against the request of the 2 respondent and suffice to say he did not recommend de notification. 7. Sri Ramachandra Mali is justified in contending that the Deputy Commissioner who was conferred with jurisdiction to examine the representation and to recommend de-notification, having found no ground, had sent a negative report, and therefore the 1 respondent could not have de-notified the land in : 11 question. He therefore seeks quashing of the notification at Annexure-L. 8. Learned counsel for the 2 respondent undoubtedly supports the impugned notification by the Government on the ground discretion has been exercised properly and no mala tides has been pointed out by the petitioner calling for interference. 9. The contentions of both sides have received my consideration. 10. Necessarily the order passed by this court in W.P.42158/02 dated 20.11.2006 has to be considered because by virtue of that order, 2’’ respondent got encouraged to renew his request for de-notification of iand. As could be seen from the facts and circumstances taken into consideration whiie disposing of W.P.42158/02,this court had considered the fact that acquisition proceedings had commenced vide preliminary notification on 15.1.1975 and despite Cs : 12 : objection of the 2 d respondent, preliminary notification and final notification were confirmed and the process of acquisition was completed. It is also noticed, 2 respondent had made several attempts thereafter but all his attempts in writ action were a failure, and appeals were also of no avail. In fact he had scaled the litigation upto the Hon’ble Supreme Court which was also a failure. This court also noticed 2’ respondent had initiated fresh litigation disputing delivery of physical possession and he had sought de notification on the ground State Government had de notified the land in favour of some other individuals. His request had to be considered only after giving an opportunity to the University which was the beneficiary of the land. Being of that view, this court had allowed W.P.42158/02 setting aside the notification issued by the Government denotifying the land and remanded the matter with directions to the Deputy Commissioner. V r 13 11. Undoubtedly the petitioner-University is justified in contending that in remand proceedings when the Deputy Commissioner did not find favour with the request of the 2 nd respondent, the State could not have issued the notification. The contention of the 2 nd respondent’s counsel that the petitioner has been given full opportunity by the Deputy Commissioner and that the records of proceedings of the Deputy Commissioner have been duly considered before issuance of the notification, does not appear to be factually correct. His second contention that the power of de-notification can be exercised only by the V’ respondent and the Deputy Commissioner’s recommendation or non-recommendation Is of no avail, is not worthy ground in support of the notification. 12. I have examined the records of proceedings from the file of the Deputy Commissioner and records maintained by the 1 respondent relating to I I ‘P t’ :14: proceedings In which the impugned notification at Annexure-L has been issued. Records reveal that the Deputy Commissioner after considering the representation of the 2 nd respondent, has sent negative report to the 1 g respondent. On its receipt, 1 St respondent was required to consider it, undoubtedly, keeping in mind the observations made by this court in W.P.42158/02. The file has been procured by the Secretary to Government in the Revenue Department. Before issuing Annexure-L de notification, the Secretary or other officers of the Department were required to notify the petitioner University and hear them. When this was confronted to Mr.Gotkhindi, he submits Deputy Commissioner is not the authority to take final decision. It is the Government which has to take decision and the Principal Secretary of the concerned department has examined records and based on his assessment, Government has issued de-notification. He submits 1 ,-I-,’ ‘I ( 15 1 respondent has dispassionately examined the 2 respondent’s request for de-notification, taking note of all attending circumstances particularly hardship which the 2 nid respondent would face, as also the fact that material on record show more than 200 acres have been acquired for use by the petitioner University and only an extent of 4 guntas was de-notified in favour of the 2 nd respondent. He submits de-notification of 4 guntas in favour of the 2 respondent would not come in the way of the petitioner utilizing 200 acres acquired and allotted to them. Therefore the order of the 1 respondent de-notifying the land is just and proper. 13. As observed in paragraphs supra, the genesis of this writ petition is the request of the 2 nd respondent to de-notify land. In fact he had succeeded in getting the land de-notifled by virtue of the notification of the Government dated 13.5.2002 which the petitioner University had questioned in F : 16 : W.P.42158/02. That writ petition was allowed and therefore that order which is at Annesure-K is important. This court had noticed that the notification dated 13.5.2002 was issued without hearing the petitioner University which was the beneficiary of the land acquired and therefore felt that the matter be remanded to the Deputy Commissioner with a direction to hear the representation given by the 2” respondent for de-notification after Issuing notice to the University. Therefore, the petitioner had the right to be heard by the officer/authority who was competent to hear the 2 rd respondent and pass appropriate orders. In this case, the Deputy Commissioner who is undoubtedly the officer/delegatee of the Government was required to hear and submit his report recommending or not recommending de-notification. 14. Indisputably the Deputy Commissioner has sent a negative report not recommending de-notification. I. 17 Therefore if the respondent had to differ from his opinion, it was incumbent on the officers in the hierarchy, like Principal Secretary/Under Secretary of the Revenue Department to hear the petitioner University. The records made available do not show that the petitioner University has been given any opportunity of being heard. 15. It is necessary to observe any order/notification that is issued by the Government precedes processing of the case at various stages and the ultimate decision is taken by the State Government on the basis of recommendation of various officers at different levels. The decision is undoubtedly an institutional decision and the Deputy Commissioner had not recommended de-notification. In a situation where final decision has to be taken against such recommendation, the Principal Secretary or other officers of the concerned Department were required to hear the petitioner in terms of the order passed by this court in • 4 18: W.P.42158/02. I am satisfied no such opportunity was given to the petitioner. 16. In the circumstances, I accept the grounds urged in the writ petition and set aside the notification issued by the Government at Annexure-L. The matter stands remitted to the 1Y respondent with a direction to give opportunity to the petitioner University to be heard and after taking into consideration the report of the Deputy Commissioner dated 1.6.2007, to take a final decision in accordance with law. In the circumstances, there is no order as to costs. Rule nisi issued is made absolute. Rsh/vgh*