2007 Supreme(Kar) 230

Karnataka High Court
Judges : Manjula Chellur
MUNIYAMMA - Appellant
Versus
STATE OF KARNATAKA - Respondent
Writ Petn 13404 Of 2005
Decided On : 03/30/2007

The court held that the withdrawal of the de-notification order was arbitrary and discriminatory as the petitioner was not treated on parity with similarly placed land owners.

Headnote:

LAND ACQUISITION ACT - SECTION 48 (1) - WITHDRAWAL OF NOTIFICATION - POSSESSION OF LAND - ACTUAL POSSESSION - TAKING OVER POSSESSION - MODE OF TAKING POSSESSION - SECTION 16 (2) OF THE ACT - VESTING OF LAND IN GOVERNMENT - RIGHT OF INTERMEDIARY TO RETAIN LAND - STRUCTURES ON LAND - LEASE - SECTION 21 OF THE KARNATAKA GENERAL CLAUSES ACT - POWER TO NOTIFY OR DE-NOTIFY - ARBITRARINESS AND DISCRIMINATION - STANDING ORDER 28.

Fact of the Case:

The petitioner, the legal representative of the original owner of the land, filed a writ petition challenging the notification dated 22-3-2005 issued by the State Government withdrawing the earlier de-notification order dated 12-4-2001. The land in question was acquired for the formation of BTM layout and the petitioner claimed that they were in possession of the land and had developed it into a nursery and garden. The State Government contended that possession of the land was taken over by the BDA in 1984 and that the de-notification order was issued without hearing the BDA. The BDA also filed objections stating that the petitioner had concealed the fact of possession being taken over by the BDA and that the withdrawal of the de-notification order was justified.

Finding of the Court:

The court held that the petitioner was in possession of the land and that the BDA had not taken actual physical possession of the land as required under Section 16 (2) of the Land Acquisition Act. The court also held that the withdrawal of the de-notification order was arbitrary and discriminatory as the petitioner was not treated on parity with similarly placed land owners. The court further held that the right, title, and interest acquired by the respondents 3 to 21 (auction purchasers) would not be affected by the judgment as the writ petition was disposed of in terms of the joint memo entered into between the petitioner and the respondents 3 to 21.

Issues: 1. Whether the petitioner was in possession of the land at the time of the withdrawal of the de-notification order? 2. Whether the BDA had taken actual physical possession of the land as required under Section 16 (2) of the Land Acquisition Act? 3. Whether the withdrawal of the de-notification order was arbitrary and discriminatory? 4. Whether the right, title, and interest acquired by the respondents 3 to 21 (auction purchasers) would be affected by the judgment?

Ratio Decidendi: 1. The court held that the petitioner was in possession of the land at the time of the withdrawal of the de-notification order based on the following factors: - The petitioner and her family members had been consistently claiming possession of the land since the inception of the acquisition proceedings. - The BDA had not taken actual physical possession of the land as required under Section 16 (2) of the Land Acquisition Act. - The possession mahazar dated 23-3-1984, which was relied upon by the BDA to establish possession, was drawn up without the presence of the Deputy Commissioner, who is the competent authority to take possession of the land under Section 16 (2) of the Act. 2. The court held that the withdrawal of the de-notification order was arbitrary and discriminatory based on the following factors: - The petitioner was not treated on parity with similarly placed land owners, as several other lands belonging to different owners which were acquired for the same purpose were de-notified from acquisition. - The State Government did not provide any rational distinction between the case of the petitioner and the cases of the other landowners whose lands were excluded from the acquisition. 3. The court held that the right, title, and interest acquired by the respondents 3 to 21 (auction purchasers) would not be affected by the judgment as the writ petition was disposed of in terms of the joint memo entered into between the petitioner and the respondents 3 to 21.

Final Decision: The writ petition was allowed. The notification dated 22-3-2005 withdrawing the earlier de-notification order dated 12-4-2001 was quashed. The order dated 12-4-2001 de-notifying the lands from acquisition remained in force. However, the right, title, and interest acquired by the respondents 3 to 21 (auction purchasers) would not be affected by any of the observations made in the judgment.