Urban Dev. Authority by Its Comm. Vs. Veer Kumar Jain & Ors.  INSC
260 (1 April 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2934 OF
2010 [Arising out of SLP (C) No.31132 of 2008] Mysore Urban Development ...
Appellant Authority by its Commissioner Veer Kumar Jain & ORS. ...
Respondents ORDER R. V. Raveendran J., Leave granted. Heard the parties.
15.3.1990, a preliminary Notification under section 17 of the Karnataka Urban
Development Authorities Act, 1987 (`KUDA Act' for short) was issued by the
Mysore Urban Development Authority the appellant herein (`MUDA' for short),
proposing to acquire certain lands for development of Kuvempunagar residential
layout and formation of a double Road. This was followed by a final declaration
dated 24.5.1991 under Section 19(1) of the KUDA Act by the state government
stating that it had 2 granted sanction of the scheme and that the land proposed
to be acquired by MUDA for the purposes of the scheme is required for a public
purpose. The said final declaration was challenged and quashed by the High
Court with liberty to proceed afresh from the stage of consideration of
considering the representations, a fresh final declaration was issued on
4.10.1999. In pursuance of it, an Award was made on 16.10.2000 and possession
of the lands was taken on 8th/9th December 2000. A notification dated
14.12.2000 was issued under section 16(2) of the Land Acquisition Act, 1894
(`LA Act' for short) confirming that possession of the lands had been taken
over. In view of the above, MUDA claims that the acquired lands vested in the
government and later in MUDA.
on the applications of some land owners, the state government issued a
notification dated 15.9.2001 under section 19(7) of the KUDA Act read with
section 48(1) of LA Act dropping the acquisition proceedings, in regard to 17
acres 21 guntas of the lands described therein. Immediately thereafter, on
28.9.2001, the land owners sold the de-notified lands to the first respondent.
When MUDA came to know about the de-notification, it represented to the government
that the lands could not have been de-notified as the lands had vested in it,
on possession being taken. It was also 3 submitted that the acquired lands
could not be de-notified without hearing it.
of it, the state government issued another notification dated 22.7.2002 under
section 21 of the Karnataka General Clauses Act, withdrawing the notification
this background, the first respondent, purchaser of the de-notified lands from
the previous land owners filed a writ petition (WP No.30425/2002) before the
Karnataka High Court, challenging the notification dated 22.7.2002 on the
ground that the owners of the lands were not heard before withdrawing the
notification dated 15.9.2001. It was also contended that once a notification
was issued under section 48(1) of LA Act, it could not be withdrawn under any
circumstances and Section 21 of General Clauses Act does not empower such
withdrawal. A learned Single Judge, by judgment dated 28.8.2007, allowed the
writ petition filed by the first respondent. He held that when a notification
under section 48(1) is issued, a valuable right relating to property was
acquired by the land owner in regard to the de-notified land, and therefore, a
notification under Section 48(1) of LA Act cannot be withdrawn without hearing
the concerned land owner. The learned Single Judge therefore quashing the
cancellation notification dated 22.7.2002, but reserved liberty to the state
government to 4 consider the request of MUDA to withdraw the notification dated
15.9.2001, after hearing the then land owners and their transferee (the first
aggrieved, MUDA filed a writ appeal which was dismissed by a Division Bench of
the High Court on 14.12.2007. The said order is under challenge in this appeal
by special leave.
question for consideration is whether the order of withdrawal dated 22.7.2002
is valid; and what would be the appropriate relief on the facts and
6. We may
refer to the relevant provisions of the KUDA Act before dealing with the
contentions. Sub-section (1) to (3) of Section 17 provides for issue of a
preliminary notification in regard to proposed acquisition and Section 19(1) to
(3) relate to issue of a final declaration. Section 36 deals with provisions
applicable to acquisition of land otherwise than by agreement and is extracted
Provisions applicable to the acquisition of land other-wise than by agreement.(1)
The Acquisition of land under this Act otherwise than by agreement within or without
the urban area shall be regulated by the provisions, so far as they are
applicable, of the Land Acquisition Act, 1894.
the purpose of sub-section (2) of section 50 of the Land Acquisition Act, 1894,
the Authority shall be deemed to be the local authority concerned.
After the land vests in the Government under section 16 of the Land Acquisition
Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the
acquisition, and upon the Authority agreeing to pay any further cost which may
be incurred on account of the acquisition, transfer the land to the Authority,
and the land shall thereupon vest in the Authority".
also refer to the relevant portions of Section 16 of LA Act (as amended in
Karnataka) and section 48 of LA Act :
Power to take possession: (1) When the Dy. Commissioner has made an award under
Section 11, he may take possession of the land, which shall thereupon vest
absolutely in the Government, free from all encumbrances.
fact of such taking possession may be notified by Deputy Commissioner in the
Official Gazette; and such notification shall be evidence of such fact".
Completion of acquisition not compulsory, but compensation to be awarded when
not completed (1) Except in the case provided for in section 36, the Government
shall be at liberty to withdraw from the acquisition of any land of which
possession has not been taken". x x x x x 7. The appellant urged the
Section 16(1) of the LA Act provides that when the Deputy Commissioner takes
possession of the land after making an award it shall vest absolutely in the
government free from encumbrances. Sub-section (2) of section 16 provides that
publication of a notification confirming the fact of taking of possession shall
be evidence of such fact. In this case, the Deputy Commissioner took possession
of the acquired lands, and thereafter, 6 a notification under section 16(2) of
the LA Act was issued on 9.12.2000 and that the said notification is evidence of
the fact of taking possession.
possession is taken, the state government had no power or authority to issue a
notification under section 48(1) of the LA Act and therefore, the order dated
15.9.2001 is void and non est and reviving such a notification would amount to
perpetuation of illegality.
MUDA, the acquiring authority, for whose benefit the land was acquired, was not
heard before issuing the notification dated 15.9.2001 under section 48(1) of
the LA Act. The said notification was therefore rightly withdrawn by a
notification dated 22.7.2002. If the notification dated 22.7.2002 is quashed,
it would bring back to life, the notification dated 15.9.2001 issued under
Section 48(1) of LA Act which was per se illegal and void, and that is impermissible.
Where the government, after issuing an order, finds that it is inherently
defective or void, it can withdraw the same and then reconsider the issue as
per law, and in such a situation, the question of violation of principles of
natural justice would not arise.
8. On the
other hand, the first respondent submitted that a notification withdrawing an
earlier notification under section 48 (dated 22.7.2002) could not have been
issued without hearing the land owners in whose favour a right in property had
accrued by issue of a notification under Section 48(1) of LA Act.
9. We may
first refer to the relevant principles in regard to withdrawal from acquisition
under Section 48(1) of the LA Act :
Sub-Section (1) of section 48 clearly provides that the Government will have
liberty to withdraw from the acquisition of any land, of which possession has
not been taken. Therefore, the power under Section 48(1) of the LA Act could
only be exercised before the possession of the acquired lands is taken. Once
possession of the land is taken by the government, the land vests in the
government and the power of the government under Section 48(1) of the LA Act to
withdraw acquisition in regard to such land would cease to exist.
Where possession of the acquired land has not been taken, the power and
discretion under Section 48(1) of the LA Act can be exercised by the state
government, but only in a fair and non-arbitrary manner. Consequently, no order
under Section 48(1) of the LA Act can be passed by the government, without
hearing the local authority for whose benefit the acquisition is made,
particularly when the preliminary notification has been issued by such local
authority, and the final declaration states that the lands are acquired for
such authority for a public purpose. (Vide: Amarnath Ashram Trust Society v.
Government of UP 1998 (1) SCC 591, Larsen & Toubro Ltd. v. State of Gujarat
1998 (4) SCC 387 and State Government Houseless Harijan Employees Association
vs. State of Karnataka 2001 (1) SCC 610).
is no dispute that the land owners were not heard before issuing the
cancellation notification dated 22.7.2002. Therefore, the order dated 22.7.2002
is illegal being opposed to principles of natural justice. In such a case,
usually the cancellation of de-notification, being opposed to principles of
natural justice, would be set aside and the Government would be directed to
reconsider the matter after giving due opportunity to the affected parties
(land owners whose lands were withdrawn from acquisition) to have their say in
the matter. But then we face a dilemma. If the order dated 22.7.2002 is quashed
as being violative of the principles of natural justice, it will result in the
revival of the order dated 15.9.2001 which also suffers from the same vice, as
that was also made in violation of the principles of natural justice, without
hearing the affected party, that is, MUDA.
learned counsel for the first respondent contends that while he challenged the
order dated 22.7.2002, MUDA did not challenge the order dated 15.9.2001 and
therefore the validity of the order dated 22.7.2002 alone arises for
consideration and not the validity of the order dated 15.9.2001.
contention is not tenable because of two reasons. Firstly, MUDA in fact
protested against the order dated 15.9.2001, before the state government and 9
the state government accepted the contentions of MUDA and withdrew the order
dated 15.9.2001. As the state government granted it the relief, there was no
need or occasion for MUDA to challenge the order dated 15.9.2001 in a court of
law. Secondly as of now, the order dated 15.9.2001 is not in existence.
Incidental to the question whether the order dated 22.7.2002 should be quashed,
it is necessary to decide whether this court should by so quashing, revive an
order dated 15.9.2001 which also suffers from the same vice of being in
violation of principles of natural justice, or should quash that order also.
are of the view that the order dated 22.7.2002 is inextricably linked with the
validity of the order dated 15.9.2001 which was withdrawn by the order dated
22.7.2002. The principles that is pressed into service by the first respondent
to challenge the order dated 22.7.2002 is available with equal force to hold
that the order dated 15.9.1991 is also void. In fact the very argument which is
urged by the first respondent in the writ petition to challenge the order dated
22.7.2002, was urged by MUDA before the Government, in addition to pointing out
the inherent illegality of the order dated 15.9.2001, to withdraw the
notification dated 15.9.2001. Accepting the said contentions and finding that
the order dated 15.9.2001 was liable to be 10 set aside as being in violation
of principle of natural justice, the state government withdrew the notification
dated 15.9.2001. It is another matter that in so doing, it did not hear the
affected party namely the land owner. If the first respondent should succeed
because the land owner was not heard before issuing the notification dated
22.7.2002, on the same reasoning the notification dated 15.9.2001 should also
be quashed as the same could not have been issued without hearing the MUDA.
may refer to some of the decisions of this court having a bearing on the issue.
In S.L. Kapoor v. Jagmohan and Ors. [1980 (4) SCC 379] this court rather
rigidly and sternly observed:"In our view 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 will
come from a person who has denied justice that the person who has been denied
justice is not prejudiced."
Bank of Patiala v. S.K. Sharma [1996 (3) SCC 364] this court stated that the
aforesaid observation should be understood in the context of the facts of that
case and in the light of the subsequent Constitution Bench judgment in Managing
Director, ECIL, Hyderabad vs. B. Karunakar [1993 (4) SCC 727] and C.B. Gautam
v. Union of India [1993 (1) SCC 78].
Court observed:"The decisions cited above make one thing clear, viz.,
principles of natural justice cannot be reduced to any hard and fast formulae.
As said in Russell v. Duke of Norfolk 1949 (1) All ER 109, way back in 1949,
these principles cannot be put in a straight-jacket. Their applicability
depends upon the context and the facts and circumstances of each case. (See
Mahender Singh Gill v. Chief Election Commissioner 1978 (1) SCC 405). The
objective is to ensure a fair hearing, a fair deal, to the person whose rights
are going to be affected.
applying the rule of audi alteram partem (the primary principle of natural
justice) the Court/Tribunal/Authority must always bear in mind the ultimate and
over-riding objective underlying the said rule, viz., to ensure a fair hearing
and to ensure that there is no failure of justice. It is this objective which
should guide them in applying the rule to varying situations that arises before
that there is no failure of justice is as important as ensuring that there is a
fair hearing before an adverse order is made. This Court in Roshan Deen v.
Preeti Lal 2002 (1) SCC 100; this court held:
and again this Court has reminded that the power conferred on the High Court
under Article 226 and 227 of the Constitution is to advance justice and not to
thwart it. (vide State of Uttar Pradesh vs. District Judge, Unnao & Ors.
(1984) 2 SCC 673). The very purpose of such constitutional powers being
conferred on the High Courts is that no man should be subjected to injustice by
violating the law. The look out of the High Court is, therefore, not merely to
pick out any error of law through an academic angle but to see whether
injustice has resulted on account of any erroneous interpretation of law. If
justice became the byproduct of an erroneous view of law the High Court is not
expected to erase such justice in the name of correcting the error of law.
have already noticed above that the order dated 22.7.2002 is inextricably
linked to order dated 15.9.2001 which was invalid for the same 12 reasons as the
order dated 22.7.2002. Further, the order dated 22.7.2002 was passed to set
right the violation of principles of natural justice in making the order dated
15.9.2001. It is possible for us to hold that the order dated 22.7.2002 did not
call for interference in exercise of power of judicial review, as it merely
cancelled an earlier invalid order which was made without hearing MUDA. But
that may prejudice the landowners as they would have no forum to put forth
their request for de-notification. We are of the view that the relief should be
moulded appropriately so that the landowners should also have an opportunity to
put forth their grievance.
of justice would be served if both the notifications dated 22.7.2002 and
15.9.2001 are set aside and the state government is directed to consider the
request of the land owners for withdrawal from acquisition afresh after giving
due hearing to the land owners (and also the first respondent) and MUDA and
then decide the matter in accordance with law.
15. In view
of the above, we allow this appeal and modify the orders of the High Court.
Both the notifications dated 22.7.2002 and 15.9.2001 are quashed and the state
government is directed to hear the request of the landowners for
de-notification afresh. It will be open to the landowners to place such
material as is available to them to show that the possession was 13 not taken
in regard to lands in question, and thereby rebut the presumption raised in
view of Section 16(2) of LA Act; and then establish that circumstances warrant
de-notification. On the other hand, it will be also open to MUDA also to
establish that possession was in fact taken and that power under section 48(1)
could not therefore be exercised. The state government shall hear both the
parties and pass appropriate orders in accordance with law within four months.
Status quo will be maintained in regard to lands in question by the parties
____________________J. ( R.V. RAVEENDRAN )
____________________J. ( R.M. LODHA )
April 1, 2010.