N.Rajanna & Ors. Vs. State of Karnataka & Ors.  INSC 338 (4 May
APPELLATE JURISDICTION CIVIL APPEAL NO.4070 OF 2010 (Arising out of SLP(C) No.
21385 of 2009) N. Rajanna and others ...Appellant(s) Versus State of Karnataka
and others ...Respondent(s) With CIVIL APPEAL NO.4071 OF 2010 (Arising out of
SLP(C) No. 22394 of 2009)
Whether the Division Bench of the High Court of Karnataka could modify order
dated 13.2.2009 passed by the learned Single Judge in Writ Petition No.
15348/2008 without issuing notice and giving opportunity of hearing to the
appellants, who claim to have right over the land sought to be acquired by the
State Government on behalf of respondent No.3 and 2 who were represented before
the learned Single Judge through an advocate is the question which arises for
consideration in these appeals filed against order dated 17.4.2009 passed by
the Division Bench in Writ Appeal No. 1295/2009.
Respondent No.3 filed an application under the Karnataka Industries
(Facilitation) Act, 2002 (for short, `the Facilitation Act') for approval of
its proposed project which included Tourist Complex, Commercial Space,
Financial Hub, Research and Development Facility with Residential Condominium,
Service Apartments and Medical City to be set up in Chalamakunte village,
Chikkajala Hobli, Bangalore North Taluk on land measuring 500 Acres. On coming
to know of the application made by respondent No.3 for acquisition of land for
its project, the appellants and others filed objections dated 30th May, 2007 by
asserting that their claim for grant of occupancy rights over a portion of the
land sought to be acquired was pending before the competent authority, which is
required to decide the matter in compliance of the direction given by the High
Court in Writ Petition Nos. 33954 and 41207 of 1982.
project of respondent No.3 was considered in 10th, 13th and 15th meetings of
the State High Level Clearance Committee (for short, `the 3 Committee'). After
seeking some clarifications from respondent No.3, the Committee recommended
approval of the project. The State Government accepted the recommendations of
the Committee and issued order dated 18.11.2008 for approval of the project of
respondent No.3 subject to certain conditions. While making recommendations in
favour of respondent No.3, the Committee took note of letter dated 28.4.2008
sent by Principal Secretary to Government, Revenue Department, wherein he made
a mention of the pendency of case for grant of occupancy right.
evinced from the following extract of order dated 18.11.2008:
Principal Secretary to Government, Revenue Department, vide letter dated
28.4.2008 has informed that, the lands in Sy. No. 1 to 104 of Chalamanakunte
village is Jodi Inam and there is a case pending before Land Tribunal on grant
of occupancy rights. In this regard, the Committee felt that if the occupancy
rights are confirmed, the occupants will get the compensation. Otherwise, the
cost of lands to be determined by SLAO have to be remitted to the Government,
as such there is no hindrance for acquisition, however it was felt that the
consent of revenue department is necessary in this regard."
8 days, the State Government revised its decision and issued order dated
26.11.2008 for withdrawal of the approval accorded to the project of respondent
No.3 on the ground of pendency of the case before the competent authority. This
action of the State Government was ratified by the Committee in its meeting
held on 28.1.2009.
Respondent No.3 challenged order dated 26.11.2008 in Writ Petition No.
15348/2008 by contending that under the Facilitation Act, the State Government
does not have the power to review the approval accorded to its project. Another
plea taken by respondent No.3 was that the action of the State Government is
vitiated due to violation of the rules of natural justice.
the pendency of the writ petition, the appellants filed an application dated
13.1.2009 for their impleadment as party by asserting that they have direct
interest in the property sought to be acquired for the project of respondent
No.3. On their part, respondent Nos. 1 and 2 filed objections to contest the
hearing learned counsel for the parties and Shri B.M. Shyam Prasad, who had
appeared on behalf of the appellants, the learned Single Judge passed order
dated 13.2.2009 whereby he partly allowed the writ petition. He rejected the
plea taken by respondent Nos.1 and 2 that approval to the project of respondent
No.3 did not create a right in its favour and held that the minimum expected of
the State Government was to hear the writ petitioner before withdrawing the
approval. However, instead of quashing order dated 26.11.2008, the learned
Single Judge 5 directed the State Government to hear respondent No.3 and pass
fresh order. Paragraph 8 and operative portion of the order passed by the
learned Single Judge read as under:
In that view of the matter, the impugned order cannot be sustained. But at the
same time, it is not necessary to quash the impugned annexure. When a project
has been approved by the State in accordance with law, if they want to withdraw
it, it is always open to them to do so after hearing the person to whom such an
approval is granted and thereafter take a decision in accordance with law so
that the aggrieved person will have the satisfaction of putting forth his case.
In that view of the matter, I pass the following:
O R D E R
1. Writ Petition is allowed in part.
Annexure-A shall be treated only as a show cause notice issued by the State
High Level Clearance Committee to the petitioner asking him to show cause why
the approval of his project accorded on 18.11.2008 should not be recalled or
3. It is
open to the petitioner to contend and raise all such defences which are
available to him in law.
authorities shall after hearing the petitioner pass appropriate orders in
accordance with law.
5. It is
submitted that the owners of the lands have already objected to the grant of
land and are before the authorities and therefore, it would be appropriate for
the authorities also to hear the owners of the land, if, the said land is meant
to be given to the petitioner.
contentions urged in this petition by all the parties are kept open to be
decided by the appropriate authorities.
Consequent to Annexure-A, all the orders passed by the Government or by the
High Level Committee has no value in the eye of law and are unenforceable.
8. IA for
impleading is ordered to be filed.
Respondent No.3 did not feel satisfied with the directions given by the learned
Single Judge and challenged the order passed by him in Writ Appeal No.
1295/2009. By the impugned judgment, the Division Bench allowed the writ
appeal, quashed order dated 26.11.2008 and directed the State Government to
proceed on the basis of approval granted by it on 18.11.2008.
P.S. Patwalia, learned senior counsel appearing for the appellants argued that
the impugned judgment is liable to be set aside because the Division Bench of
the High Court disposed of the appeal without complying with the basics of the
natural justice, inasmuch as no notice or opportunity of hearing was given to
his clients. Learned counsel emphasized that the appellants have direct and substantial
interest in the land sought to be acquired for the project of respondent No.3
because their claim for grant of occupancy rights is pending before the
competent authority and argued that the Division Bench committed serious error
by directing implementation of the project of respondent No.3 without issuing 7
notice to the appellants. Shri Patwalia submitted that the so-called consent
given by one of the claimants of occupancy rights, namely, Shri H.
cannot be made basis for depriving the appellants of their legitimate right to
be heard and oppose the acquisition of land ignoring that in terms of the
direction given by the High Court in Writ Petition Nos.
41207/1982, the competent authority is yet to decide the issue relating to grant
of occupancy rights. Ms. Anitha Shenoy, learned counsel for the State of
Karnataka not only supported Shri Patwalia, but also justified the Government's
decision to withdraw the approval accorded to the project of respondent No.3 by
arguing that the decision contained in order dated 18.11.2008 was vitiated due
to non consideration of the relevant factors including the pendency of case
relating to occupancy rights. Dr. Abhishek Manu Singhvi, learned senior counsel
appearing for respondent No.3, pointed out that the impleadment application
filed by the appellants had not been allowed by the learned Single Judge and
submitted that the factual statement contained in paragraphs 5 and 13.11 of the
impugned judgment suggesting that the learned Single Judge had already
impleaded the appellants as parties to the writ petition does not appear to be
correct. He then submitted that the appellants do not have any locus to be
heard in the proceedings instituted by respondent No.3 against the Government's
decision to withdraw the approval to its project 8 because the competent
authority is yet to decide their claim for occupancy rights. The last
submission of the learned senior counsel is that even if this Court comes to
the conclusion that the Division Bench ought to have heard the appellants, the
impugned judgment may not be disturbed because, in the event of grant of
occupancy rights to the appellants, they will get a maximum of 103 Acres land
and for that his client is prepared to pay the prevailing market value so that
the implementation of the project may not be delayed.
have considered the respective submissions. In our view, the impugned judgment
is liable to be set aside only on the ground that the procedure adopted by the
Division Bench in deciding the appeal preferred by respondent No.3 was contrary
to one of the well recognized facets of natural justice i.e., audi alterm
partem. A careful scrutiny of the records reveal that while considering the
project of respondent No.3 and approving the same, the Committee and the State
Government were alive to the fact that the issue relating to grant of occupancy
rights in respect of the land comprised in survey Nos.1 to 104 of Village
Chalamakunte is pending adjudication before the competent authority. It is also
not in dispute that even before consideration of the project of respondent No.3
by the Committee, the appellants had filed objections dated 30.5.2007 against 9
proposed acquisition of the land. They had also filed an application under
Order 1 Rule 10 CPC for being impleaded as parties to Writ Petition
No.15348/2008. Although, it is not clear from the order of the learned Single
Judge whether the application filed by the appellants was allowed, but this
much is evident that their advocate Shri B.M. Shyamprasad was heard along with
other learned counsel. This appears to be the reason why in paragraph 5 of the
operative portion of the order passed by him, the learned Single Judge made it
clear that land owners must be heard before their land is acquired. The Division
Bench of the High Court proceeded on the premise that the application filed by
the appellants for their impledment as parties was allowed by the learned
Single Judge. This is clearly reflected in paragraphs 5 and 13.11 of the
the Division Bench should have afforded an opportunity of hearing to the
appellants before deciding the appeal preferred by respondent No.3 and
directing the State Government to act in accordance with approval accorded vide
order dated 18.11.2008. In any case, once the learned Single Judge had heard
the counsel representing the appellants and the Division Bench found that their
application for impleadment had been allowed, the minimum which the Division
Bench ought to have done was to issue notice to the appellants and given them
an opportunity to contest the appeal.
Although, the issue relating to grant of occupancy right over the land
comprised in survey Nos.1 to 104 of Village Chalamakunte is yet to be decided
by the competent authority, it cannot be said that the appellants do not have
the locus to be heard in the proceedings which may result in acquisition of the
land. If ultimately the competent authority accepts the claim of the appellants
for grant of occupancy rights and in the meanwhile the land is utilized by
respondent No.3, the determination made by the competent authority will become
illusory for them.
submission of the learned counsel for respondent No.3 that his client is
prepared to pay market value of the land to the appellants subject to their
claim being finally adjudicated by the competent authority in the proceedings
relating to grant of occupancy rights cannot be accepted because the learned
counsel for the appellants emphasized that his client would like to contest the
very approval of the project of respondent No.3 and support the decision taken
by the Government to withdraw the same.
the result, the appeals are allowed. The impugned judgment is set aside and the
matter is remitted to the High Court for deciding the appeal of respondent No.3
afresh after giving opportunity of hearing to the 1 parties. Keeping in view
the nature of the case, we request the High Court to dispose of the appeal as
early as possible but latest within two months from the date of receipt/production
of copy of this order.
.....................................J. [G.S. Singhvi]