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D. Ananthakrishna Bhat Vs. Special Deputy Commissioner and Competent Authority, Mangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberW. P. Nos. 15601 and 15601(A) of 1982
Judge
Reported inAIR1987Kant5
ActsUrban Land (Ceiling and Regulation) Act, 1976 - Sections 20(1)
AppellantD. Ananthakrishna Bhat
RespondentSpecial Deputy Commissioner and Competent Authority, Mangalore and ors.
Appellant AdvocateHarikrishna S. Holla, Adv. for ;G.K. Shevagoor, Adv.
Respondent AdvocateB.J. Somayyaji, High Court Govt. Pleader
Excerpt:
.....of natural justice - impugned notification and order valid. (ii) exemption - order passed by state government rejecting exemption claimed by petitioner under section 20 challenged - rejection on grounds that it is not speaking order and offends well-recognized principles of natural justice - petitioner sought exemption of land on two grounds - firstly on ground of public interest that portion of land is required in connection with temple situated on land - secondly on ground of undue hardship to him and members of his family - both ground come under clauses (a) and (b) of section 20 - sole ground for rejection of application was that land was required by karnataka housing board for public purpose - state government failed to consider any grounds urged by petitioner in his..........viz., w. p. no. 15601(a)/ 1982 relating to the order annexure-f dt. 5-12-1981 passed by the state government rejecting the exemption claimed by the petitioner under s. 20 from the provisions contained in chapter iii of the act.13b. the counsel for the petitioner challenged the validity of this order mainly on two grounds viz., that it is not a speaking order and offends the well-recognized principles of natural justice.14. before adverting to the contentions on merits, it is necessary to state the relevant provisions of law.15. section 20 of the act empowers the state government to exempt any vacant land in excess of the ceiling limit from the application of the provisions of chapter iii of the act. it reads:'20(l): notwithstanding anything contained in any of the foregoing.....
Judgment:
ORDER

1. The case of the petitioner is as under:

S. No. 157/2 measuring 2 acres 25 cents classified as punja land of Derebail village of Mangalore Taluk, Dakshina Kannada District is part of the properties owned by the Hindu undivided family of which the petitioner is the yajaman. A temple by name 'Sri Durga Parameshwari temple' is situated in the said land. It is situated within the Mangalore City Agglomeration. Under the impression that punja lands, though form part of the agricultural lands, are 'urban lands' if situated within the limits of City Agglomeration, the petitioner gave a declaration under subsection (1) of Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short the 'Act'), before the 1st respondent who was the competent authority for the said purpose. In fact declaration was given under the misconception that it was a vacant land under the Act. A portion of the land is used for the purpose of the temple and the rest is being used only for the purpose of agriculture. It contains various kinds of trees and shrubs of natural growth providing green leaves which are being used for the cultivation of an areca garden and the fields in the possession of the petitioner's family. Large extent of agricultural land owned by the petitioner's family had been granted to the tenants under the provisions of the Karnataka Land Reforms Act and the petitioner and his family are left with only 60 cent of garden land and a few items of wet lands, besides S. No. 157/2. Having filed the declaration, the petitioner also filed an application D/-19-12-1979 before the Commissioner and Secretary to Government, Department of Housing and Urban Development, Bangalore, under Section 20 of the Act to exempt S. No. 157/2 from the provisions of Chapter III of the Act. In the meanwhile, the 1st respondent issued a draft statement under S. 8(l) of the Act, without even holding a local inspection and hearing the petitioner provisionally holding that the vacant land held by the petitioner exceeded the ceiling limit by 6592.37 Sq. Mts. to which the petitioner filed his objections Annexure-B. The 1st respondent, rejecting the objections raised by the petitioner on untenable grounds, passed an order Annexure-C on 11-6-1980 directing to issue a final statement under S. 9 of the Act.

2. The petitioner challenged the order Annexure-C in appeal before the 2nd respondent-Divisional Commissioner, Mysore by preferring an appeal under S. 33 of the Act on 5-7-1980. The 2nd respondent as per his order Annexure-E D/- 31-3-1981 dismissed the appeal and confirmed the order Annexure-C passed by the 1st respondent. In the meanwhile, the 1st respondent had caused a notification Annexure-Cl. D/- 9-7-1980 published as required under S. 10(l) of the Act in which the excess vacant land with possession of the petitioner was stated to be 4682-97 Sq. Mts. in S. No. 157/2 and the application filed by the petitioner under S. 20 of the Act for exemption had also been dismissed by the 3rd respondent as per its order Annexure-F D/- 5-12-1981.

3. The petitioner being aggrieved by these orders filed W.P. No. 15601/1982 questioning the legality of the notification Annexure-Cl. and the appellate order Annexure-E, both made on the declaration filed by him under S. 6(l) of the Act and also the order Annexure-F made on the application filed by him under Section 20 of the Act for exemption of the land in question from the provisions of Chapter-III of the Act. As the petitioner could not challenge the validity of all the three orders in one writ petition, he restricted the relief in the original writ petition in respect of Annexure-C.1 and 'E' and assailed the validity of Annexure-F in Writ Petition No. 15601(A)/1982 by paying necessary additional court fee. I shall first deal with W.P. No. 15601/1982.

4. Sri Harikrishna S. Holla, learned advocate appearing for the petitioner contended that S. No. 157/2 being a punja land, does not constitute 'vacant land' within the meaning of Section 2(q) of the Act as it is being used for the purpose of agriculture, that the 1st respondent should have considered the declaration filed by the petitioner and the declaration filed by his major son Lakshminarayana Bhatta together and determined the vacant land in excess of the ceiling limit in the holding of the petitioner and both the orders Annexure-C and E' passed by respondents 1 and 2 respectively are not speaking orders, besides the former being violative of the principles of natural justice. On these grounds he maintained that both the notification Annexure-C.1 and also the order Annexure-E are invalid and liable to be quashed.

5. I shall proceed to consider these contentions in the order in which they were p resented before me.

6. The contention that the land being punja land and used for the purpose of agriculture, falls outside the scope of the Act seems to me without much force. Admittedly S. No. 157/2 is described as 'punja' in the revenue records. In Dakshina Kannada District, land is classified as Nanja, Punja and Bagayat, of which Nanja is further classified as Nanja I Class, II Class and III Class depending upon the nature and number of crops raised in a year and also the source of water. III Class Nanja land generally yields one crop in a year entirely depending upon the rains for its water source. This class of land could fairly be equated with the dry land of the other districts of the State other than the Districts of the erstwhile Madras State. In punja land no crop is grown. It is a hillock with natural tree growth and shrubs. Bagayat is garden land. The classification of land into Nanja, Punja and Bagayat and the further classification of Nanja land into I Class, II Class and III Class prevails in our State only in Bellary and Dakshina Kannada Districts which were formerly part of the erstwhile State of Madras.

7. Bearing these general features and qualities of different kinds of land as prevailing in the District of Dakshina Kannada, I shall proceed to consider the argument of Sri Holla that the land in question is not a vacant land within the meaning of the Act as it being classified as punja land and being used for the purpose of agriculture.

8. 'Vacant land' as defined under subsection (q) of Section 2 reads :

''vacant land' means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include-

i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;

ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and

iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building:

Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records) then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause.'

9. The petitioner, apart from alleging in his objection statement filed to the draft statement prepared by the 1st respondent under S. 8(l) of the Act that the property in question is suitable only for the purpose of agriculture and no useful purpose would be served by acquiring it as it is a hillock and that the petitioner intended to raise coconut and cocoa plants in the said land, has not produced any satisfactory material before the 1st respondent to show that the land in question was either being used for the purpose of agriculture or it is suitable for agricultural purposes. The 1st respondent in his order, obviously after holding a local inspection, has observed table the land in question is a slopy hill and not suitable for agricultural purposes. This observation of the 1st respondent gathers sufficient support from the averments made by the petitioner in his objection statement wherein the petitioner has stated that the entire land is a slopy hillock and no useful purpose will be served by acquiring the same. One fails to understand as to how a land with these features could either be used for the purpose of agriculture or to say that it is suitable for agricultural purposes. Thus I find no force in this argument.

10. Now turning to the second contention that the competent authority should have considered the declaration filed by the petitioner and also the declaration filed by his son Lakshminarayana Bhatta together and decided the vacant land in excess of the ceiling limit in the holding of the petitioner, I fail to see how the petitioner is prejudiced by not considering the declaration filed by his son along with the declaration filed by him. The extent of S. No. 157/2 in the possession of the petitioner works out at 9105.75 Sq. Metres. Out of the said extent, the 1st respondent had deducted 513.38 sq. Meters towards the land covered by the building viz., the temple and also the land appurtenant to the said building. He had further deducted 1909.40 sq. meters being the holding of his major son and one major daughter. Thus the extent of the holding of the petitioner and his family as defined under the Act was 6682.97 sq. mts. As per the provisions of the Act, the petitioner and his family is entitled to hold 2000 sq. mtrs. The 1st respondent finally determined the vacant land in the holding of the petitioner and his family in excess of the ceiling limit at 4682.97 sq. mtrs. by allowing 2000 sq. mtrs. To be retained by the petitioner and his family as found in the notification Annexure-C. 1, which was, as noticed earlier, confirmed by the 2nd respondent as per his order at Annexure-E. Thus it is seen from the above that the method adopted by the 1st respondent in deciding the extent of the vacant land in the holding of the petitioner and his family and the determination of the land in excess of the ceiling limit cannot be said to be erroneous or legally unsustainable. Due allowance was made in respect of the share of the major son and the daughter of the petitioner while determining the excess vacant land in the holding of the petitioner and his family. For the aforesaid reasons, I find no force in this contention.

11. The next contention urged was that both the order Annexure-C and E passed by the respondents 1 and 2 respectively are not speaking orders. As noticed earlier, the 2nd respondent in appeal has confirmed the order of the 1st respondent Annexure-C fixing the vacant land in excess of the ceiling limit in the holding of the petitioner as per his order Annexure-E. The 1st respondent who is the competent authority to determine the vacant land in excess of the ceiling limit of a holding has considered each and every point raised by the petitioner in his objections preferred to the draft statement made under S. 8(l) of the Act and recorded his findings by assigning good reasons. The 2nd respondent by a well-reasoned order in appeal confirmed the order of the competent authority. The learned Advocate appearing for the petitioner apart from contending that both the orders are not speaking orders, has not pointed out in what way they suffer from the vice of not being speaking orders. For these reasons, this contention also fails.

12. The last contention urged was that the order passed by the 1st respondent offends the principles of natural justice. This argument was based on the ground that the counsel for the petitioner at the time of hearing the case on 9-6-1980 had undertaken to produce documents within a week to show that the petitioner has major children and the 1st respondent having adjourned the case for enabling the petitioner's counsel to produce the documents, passed the order Annexure-C within two days i.e., on 11-6-1980 without giving sufficient time to produce the documents and thereby contravened the principles of natural justice. Annexure-C shows that the counsel for the petitioner undertook to produce certain documents within a week to show that the petitioner's family consisted of his major children and produced only the school certificate of Lakshminarayana Bhatta, one of the sons of the petitioner, obviously as undertaken by him. Only thereafter the 1st respondent proceeded to make the order as appears from the order itself. In the face of these material on record, it is difficult to accept the contention that the petitioner was not given adequate opportunity to place all the material before the 1st respondent in support of his contentions. For the reasons aforesaid, I find no substance in the contention

13. These are all the grounds urged in assailing the validity of the notification and the order Annexure-C. 1 and E respectively. From the above discussion, the one and the only conclusion to be drawn is that both Annexure-C. 1 and E are valid. There is no merit in this writ petition.

13A. This takes me to the next writ petition viz., W. P. No. 15601(A)/ 1982 relating to the order Annexure-F dt. 5-12-1981 passed by the State Government rejecting the exemption claimed by the petitioner under S. 20 from the provisions contained in Chapter III of the Act.

13B. The counsel for the petitioner challenged the validity of this order mainly on two grounds viz., that it is not a speaking order and offends the well-recognized principles of natural justice.

14. Before adverting to the contentions on merits, it is necessary to state the relevant provisions of law.

15. Section 20 of the Act empowers the State Government to exempt any vacant land in excess of the ceiling limit from the application of the provisions of Chapter III of the Act. It reads:

'20(l): Notwithstanding anything contained in any of the foregoing provisions of this chapter. -

a) Where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied, either on its own motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the public interest so to do, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter;

b) Where any person holds vacant land in excess of the ceiling limit and the State Government, either on its own motion or otherwise, is satisfied that the application of the provisions of this Chapter would cause undue hardship to such person, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter:

Provided that no order under this clause shall be made unless the reasons for doing so are recorded in writing.

2) If at any time the State Government is satisfied that any of the conditions subject to which any exemption under clause (a) or clause (b) of sub-section (1) is granted is not complied with by any person, it shall be competent for the State Government to withdraw, by order, such exemption after giving a reasonable opportunity to such person for making a representation against the proposed withdrawal and thereupon the provisions of this Chapter shall apply accordingly.'

Clause (a) of sub-section (1) of section 20 empowers the State Government of exempt any vacant land in the possession of a person in excess of the ceiling limit in public interest; whereas clause (b) empowers the State Government to grant exemption to such person where such exemption is considered necessary to avoid undue hardship. However, the grant of exemption under both the clauses (a) and (b) is subject to such conditions, if any, as may be specified in the order imposed by the State Government and the exemption stipulated is from the provisions of Chapter III in which Section 20 is found. The power to exempt so conferred on the State Government carries with it an obligation to exercise that power on a case being made out for granting exemption for the purposes specified in clauses (a) and (b) as the case may be. Of course, the power to exempt is exercisable by the State Government on its own motion but the same can be exercised otherwise also. This is what emerges from the use of the expression 'either on its own motion or otherwise' used in clauses (a) and (b) of sub-section (1) of Section 20 of the Act. The words 'or otherwise' cannot be construed ejusdem generis and are indicative of the fact that the power is exercisable on being invoked in any other manner. The natural corollary of this position of law is that it is open to a party aggrieved to submit a petition invoking the exercise of the power of exemption so conferred on the Government under clauses (a) and (b). This legislative intendment is clear from the provisions of the court fee on an application for exemption of vacant land under S. 20 of the Act made in Schedule II to the Act. The power to exempt by its very nature in cases to which clause (a) of sub-section (1) of Section 20 of the Act is applicable appears to be execisable in public interest, whereas under clause (b) of sub-section (1) of Section 20 of the Act, the power is exercisable for the benefit of the holders so that undue hardship on account of the operation of Part III of the Act may be avoided. Where the exemption in the public interest as contemplated under cl. (a) of Sub-section (1) of Section 20 is to be made, the State Government should be satisfied, either on its own motion or otherwise, that having regard to the location of such land, the purpose for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient so to do and in the case of avoiding undue hardship to any person if exemption is required to be extended as contemplated under clause (b) of sub-section (1) of Section 20, again the State Government should be satisfied that the application of the provisions of Chapter III would cause undue hardship to the claimant. As noticed earlier, this power of exemption could be exercised by the State Government either on its own motion or on an application filed by the aggrieved party. If the State Government so chooses to make an order under any of these two clauses (a) and (b) of sub-section (1) of Section 20 on its own motion, it may so do after making the necessary enquiry for satisfying itself that an order in the public interest under clause (a) or an order to avoid undue hardship to any person under clause (b) needing to be made, it could so do without giving an opportunity of being heard to the person concerned. An order to be made under these circumstances would be, if at all, in favour of the person and an order in favour of a person can be passed behind his back even. However, the same thing would not hold good in the case where a party seeks exemption either under clause. (a) or under clause (b) of sub-section (1) of Section 20 by presenting an application for exemption in proper form and by paying the necessary court fee for such exemption application fixed under Schedule II to the Rules. In such a case, it is for the applicant to make out a case for exemption by providing the necessary material and evidence to satisfy the State, Government that the party deserves to be granted exemption. An order to be made on such application may adversely affect the interest of the claimant and the question is whether an order affecting the interest of the claimant can be passed without hearing him. Having regard to the object which the provisions contained in clauses (a) and (b) of sub-section (1) of Section 20 of the Act, to be achieved and also having regard to the serious consequence which will ensue in case the claim for exemption is rejected without hearing the claimant, it must be held that the claimant has to be heard before refusal of his claim for exemption so that he may show that either the public interest would suffer or undue hardship would be caused to him in case exemption is not granted. Clauses (a) and (b) of sub-section (1) of Section 20 do not negate natural justice and in the absence of express exclusion of the rule audi alteram partem, it is fair and reasonable, indeed fundamental that the person claiming exemption should not be prejudiced by action without opportunity to show the contrary.

16. It is true that unlike sub-section (2) of Section 20, in clauses (a) and (b), there is no specific provision for giving a reasonable opportunity to the person concerned. But it seems to me from the language employed therein and also in view of the object sought to be achieved, it is to be regarded that acting upon the principles of natural justice regarding hearing of the claimant is necessary while deciding his claim for exemption thereunder. Satisfaction of the State Government contemplated under clauses (a) and (b) of sub-section (1) of Section 20 of the Act has to, be with regard to the question of public interest or the nature of hard ship, which would be caused to the claimant. Having regard to these objects to be achieved, it must be reasonable to hold that the satisfaction envisaged has to be objective in its character and cannot be merely subjective satisfaction the touchstone for testing the validity or otherwise of the satisfaction having been provided by the law. In this view, the function of the State Government, appears to me, is of a quasi-judicial character. The view I take gains support from a decision of the Madhya Pradesh High Court in Nanda kishore v. State, : AIR1982MP33 .

17. Keeping in view the aforesaid principles of law, I shall now proceed to consider the twin arguments canvassed by the counsel for the petitioner in assailing the validity of the impugned order Annexure-F.

18. The petitioner in his application under Section 20 of the Act, inter alia, contended that there is a temple of Sri Satya Devatha situated in a portion of the land in S. No. 157/2, that during the festival time, large number of devotees assemble for the festival and about 10 cents of land around the temple would be necessary for the congregation of the devotees at the time of the festival. He further contended that the land in question is capable of being used for agricultural purposes, that he intended to plant coconut trees in it and that it may be treated as agricultural land and exempted from the purview of the Act. He has also maintained that he had lost large extent of agricultural land under the Karnataka Land Reforms Act, leaving a small item of garden land measuring 60 cents, that for the proper enjoyment of the said garden land, the land in question is absolutely necessary, that the petitioner had no other property other than the garden land and if the land in question is not exempted, he and the members of his family would suffer undue hardship.

19. The application shows that the petitioner has sought for the exemption of the land in question on two grounds; one on the ground of public interest that a portion of the land is required in connection with the temple situated on the land and the other on the ground of undue hardship to him and the members of his family. The grounds urged by the petitioner for claiming exemption of the land cover both the clauses (a) and (b) of subsection (1) of Section 20. The State Government without giving any opportunity to the petitioner to substantiate the ground urged in his application for exemption, summarily rejected the application as per its order. Annexure-F reads:

'With reference to your application dated 19-12-1979 on the subject mentioned above, I am directed to state that your request for grant of exemption is rejected as the lands held by you are required by Karnataka Housing Board for public purposes.'

20. The order ex-facie shows that the only ground on which the application was rejected was that the land in question was required by the Karnataka Housing Board for public purpose. The State Government appeared to have not considered any of the grounds urged by the petitioner in his application for granting exemption. In other words, the State Government without applying its mind and without giving reasons has summarily rejected the application. No grounds, much less, proper grounds have been advanced by the State Government in rejecting the claim of the petitioner for granting exemption although he has grounded his application under both the clauses (a) and (b) of sub-section (1) of Section 20. Further, the proviso stipulates that no order shall be made, which would include an order of rejection of the claim for exemption, without the reasons for doing so are recorded in writing. The State Government in my view, has not complied with the provisions contained in clauses (a) and (b) of sub-section (1) of Section 20 before rejecting the application for exemption as per its order Annexure-F. An order not supported by reasons, more so when it was required to be stated as per law, certainly suffers from the vice of 'not a speaking order'. The competent authority when it is required under law to assign reasons in making an order under S. 20 of the Act fails to record its reasons, the same is liable to be quashed as it is one not in accordance with law.

21. The other limb of the argument canvassed by Sri Harikrishna S. Holla was that the impugned order offends the principles of natural justice as it was made without giving any opportunity to the petitioner to substantiate the grounds urged in his application. Undoubtedly, the petitioner was not called upon by the State Government to substantiate his case for exemption of the land in question from the purview of Chapter III of the Act. The order of rejection of the application has resulted in serious consequences against the interest of the petitioner and the members of his family. The impugned order gives an impression that it was made in the usual routine course as if the State Government is obliged to give an endorsement as to what had happened to his application and not a decision on an application filed by the petitioner seeking the relief under S. 20 of the Act. The order in question was purely one-sided decision without affording the party seeking the relief an opportunity to substantiate his cause. Thus I have no hesitation to hold that the order Annexure-F was made in clear breach of the well-recognized principles of natural justice.

22. In the result for the reasons stated above, writ petition No. 15601/82 fails and the same is dismissed. Rule issued regarding the Notification Annexure-C.1 and the order Annexure-E is discharged. W.P. No. 15601(A)/ 82 is allowed. Annexure-F is quashed. Rule issued is made absolute. The State Government is directed to dispose of the application filed by the petitioner under S. 20 of the Act for exemption afresh in accordance with law after giving opportunity to the petitioner to substantiate his case and of being heard.

23. In the circumstances of the case, I direct each party to bear his own costs.

24. Order accordingly.


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