Dr. Radhakrishna Gruha Nirmana Sahakari Sangha Limited, Hubli vs Government of Karnataka

V. Gopala Gowda, J.-The appellant-Housing Co-operative Society has filed this appeal challenging the order dated 23-6-1997 passed by the learned Single Judge rejecting the writ petition filed by it. In the writ petition the appellant-society had questioned the legality, validity and correctness of the communications informing that the lands mentioned therein cannot be given up from acquisition.

The learned Single Judge has considered the various contentions put forth on behalf of the appellant-society in the writ petition and rejected the writ petition by assigning reasons as reflected in the order under challenge. Whether, the reasons assigned by the learned Single Judge are reasonable and correct, has to be examined on the basis of the factual position.

In paragraph 2 of the order, the learned Single Judge held that the writ petition is not maintainable as the appellant-society did not acquire any title under the agreements of sale entered into with the owners of the lands. It is also held that the appellant has no locus standi to challenge the notification issued under the Karnataka Urban Development Authority Act for acquisition of the lands on the ground that the award was not passed by the Land Acquisition Officer and possession of the lands was not given to the appellant-society. In our view, these reasonings assigned by the learned Single Judge in the impugned order are not correct. The appellant-society not only entered into agreement of sale with the owners of the lands but also requested the Government to acquire the lands on its behalf. The acquisition for the appellant-society was also approved in the ''Three Man Committee''. Appellant-society also deposited a part of cost of acquisition. Preliminary notification was published which was followed by publication of final notification on 14-4-1994. Award was passed on 15-10-1995. Even notification under Section 16 of the Land Acquisition Act was also published after taking over possession of the lands. Thus, the entire acquisition proceedings in favour of the appellant were concluded. This being the position, the learned Single Judge was not justified in holding that appellant did not acquire any title or it has no locus standi to challenge the acquisition proceedings proposed under the Karnataka Urban Development Authority Act.

The learned Single Judge failed to notice that the final notification for acquisition of the lands in question in favour of the appellant-society was dated 14-4-1994 whereas, the final notification in favour of 2nd respondent was dated 28-7-1994. Thus, the acquisition in favour of the appellant-society was much earlier to the acquisition of very same lands in favour of the 2nd respondent.

The learned Single Judge also failed to notice that 2nd respondent has communicated to the president of appellant-society vide Annexure-C, dated 12-11-1992 produced in the writ petition giving up their proposal for acquisition of the lands. A resolution also came to be passed by the 2nd respondent to this effect vide Annexure-D. Since the 2nd respondent has consented for the acquisition of lands in favour of the appellant, the learned Single Judge was not right in rejecting the writ petition of the appellant-society on the ground that it is not maintainable. The learned Single Judge failed to observe that everything was in favour of the appellant-society.

At paragraph 4 of the order the learned Single Judge has stated that after issuance of notification under Section 6(1) of the Act, the Land Acquisition Officer has not passed award and has not taken possession from the landowners. These findings of the learned Single Judge are factually incorrect. Annexure-P9 is the draft award which has been approved under Annexure-P14 by the Government. The same has been thereafter passed under Annexure-P15. Vide Annexure-P18 notification has been published under Section 16(2) of the Act for having taken over possession of the lands. On the face of these documents, the learned Single Judge should not have recorded his reasons contrary to the factual possession.

We are fully satisfied that even though appellant had a good case, the learned Single Judge passed the order against it on wrong assumptions and without considering the documents and material available on record. Thus, the impugned order being error in law and contrary to the documents, the same cannot be sustained and it is liable to be set aside.

We, therefore, allow the appeal and set aside the order of the learned Single Judge passed in the writ petition. We allow the writ petition of the appellant and consequently quash the communications impugned in the petition.