Writ Petition No. 2285 of 1992 c/w Writ Petitions Nos. 23470 and 24877 of 1991, D/- 24-4-1992
M. Rama Jois and R. Ramakrishna, JJ.
(A) Karnataka Land Revenue Act (12 of 1964), Ss. 95, 6 - Conversion of agricultural land - Purpose of construction of housing scheme - Order by Special Deputy Commissioner - Writ petition and appeal against - High Court while quashing order of conversion permitted Govt. to look into matter and take fresh decision - Subsequent permission of conversion by Govt. by nullifying order of High Court - Non compliance with provisions of Act - Order of Govt. held, was illegal.
Conversion of land - Non agriculture user - Order by Govt. by nullifying order of High Court - Non compliance with provisions of Revenue Act - Govt. order held, illegal.
Housing scheme - Conversion of agricultural land - Govt. order nullifying orders of High Court - Non compliance with provisions of Revenue Act - Govt. order held, illegal.
(Paras 10, 12, 18, 19, 40)
(B) Karnataka Land Revenue Act (12 of 1964), Ss. 95, 3,49 - Conversion of agricultural land - Power is conferred on Deputy Commissioner - Govt. cannot as chief controlling authority under S. 3, exercise such power.
(Para 12) (C) Karnataka Land Revenue Act (12 of 1964), S.8 - Power of Deputy Commissioner under - He is bound to follow only such instruction given by State Government as Chief Controlling Authority on matters which are not specifically provided for - Government cannot supplant provisions of Act and Rules by issuing instructions.
(D) Constitution of India, Art. 226 - Locus Standi - Agricultural land near water reservoir - Water at reservoir supplied to City would be affected - It can not be said that residence have no locus standi to challenge legality of conversion of land on ground of violation of provisions of Karnataka Land Revenue Act (12 0f 1964), S. 95.
(Paras 30, 32, 40)
(E) Constitution of India, Art. 226 – Costs - Conversion of agricultural land - Govt. order nullifying orders passed by High Court - Petition against - Petitioners espousing public cause - Exemplary costs Rs. 10,000 awarded to them.
Civil P. C. (5 of 1908), S. 35.
Rama Jois, J. :- The State Government has nullified the order of this Court in the order impugned in these petitions, is the most extraordinary feature disclosed in that case, in the impugned order the State Government has directed that several orders made by the Special Deputy Commissioner, Bangalore Rural District under S. 95 of the Karnataka Land Revenue Act according permission for conversion of 414 acres of agricultural land for non-agricultural use, to wit, for establishing a housing colony on the banks of Arkavati River near Thippagondanahalli Water Reservoir, one of the sources of supply of drinking water to the City of Bangalore, which were quashed by this Court in writ petitions Nos. 19919 to 19954 and 21172 to 21177/1982 presented by the Bangalore Water Supply and Sewerage Board, which order was confirmed in Writ Appeals Nos. 744 to 785 of 1987, shall continue.
2. The above ground urged by the petitioners against the impugned order causes consternation to us, as it was beyond our comprehension that the Government has done so, but after hearing. We are amazed to find that the Government has actually done so.
.......3. The brief and und facts of this case are these:- .....
4. The substance of the pleading in all the three petitions may be summarized thus:-
(i) The Water Reservoir constructed at Thippagondanahalli across the river Arkavati is one of the main sources for supply of water to the City of Bangalore with a population of 60 lakhs. By allowing a township to come up on the Banks of Arkavati river by construction of 270 country villas, both quality and quantity of water in the river and reservoir would be adversely affected which is injurious to the interest of millions of people residing in the City of Bangalore. Not only there would be depletion of water but also there is every chance of pollution of water and, in fact, that has been the stand of the Water Board in the Writ Petitions filed by it in which it had succeeded. Granting permission for establishing of township in such a sensitive locality was wholly arbitrary as it only favours DLF, which is a financially powerful company engaged in profit making venture of land development and a few affluent individuals, who lone could purchase such sites and construct country villas, and is totally injurious to public interest. The State Government had acted totally without jurisdiction in passing the impugned order and it had done so only on collateral considerations yielding to the influence brought to bear on it by DLF. In spite of the orders of this Court quashing the orders of conversion, in the impugned order, the Government has directed that the very orders which were quashed by this Court shall continue and thereby setting at naught the orders of this Court, which is not only high-handed, arbitrary and without jurisdiction, but also amounted to committing contempt of this Court. By the impugned order, the State Government has in fact and in truth permitted establishment of a new township consisting of 270 houses and this could not have been done by the State Government without complying with the mandatory provisions of the Land Revenue Act and the Planning Act. In any event, the State Government had no power to grant conversion of agricultural land for non-agricultural use as the said power is vested in the Deputy Commissioner under S. 95 of the Land Revenue Act.
(ii) The purchase of lands by 42 individuals who were not agriculturists and who had more than Rs. 12000/- income was void in view of S. 79-A of the Karnataka land Reforms Act and therefore the lands stood vested in the Government as provided in that Section. Further, under S. 79B of the Act, no Company could own agricultural lands and therefore the DLF could not have purchased 414 acres of agricultural land and therefore in view of S. 79B of the Act action should have been taken by the revenue officers to forfeit all the lands to the State Government as provided in that Section.
5.In this order, for convenience, we are referring to the respondents as in Writ Petition No. 2285/1992. The first respondent State Government, the 4th respondent - DLF Company and the 3rd respondent - Pollution Control Board have filed Statement of Objections refuting the material allegations and averments in the petitions. The Water Board the 2nd respondent, has not filed statement of objections or any statement.
6. Learned Counsel for the petitioners urged the following contentions:-
(1) The impugned order which directs that permission for conversion of agriculture lands for non-agricultural use which were quashed by this Court shall continue is high handed, arbitrary, illegal, destructive of Rule of Law and also amounts to committing contempt of this Court.
(2) Under the Land Revenue Act the Government had no power to grant permission for conversion of agricultural land for non agricultural use as that power under S. 95 thereof is concerted only on the Deputy Commissioner and therefore the order is without authority of law.
(3) Though the clear pronouncement of this Court in the Writ Petition filed by the Board and in the Writ Appeal arising there from was unless a new Township is established after following the procedure prescribed under the Land Revenue Act, and the Karnataka Town and Country Planning Act, question of exercise of power under S. 95, would not arise, the Government has passed the impugned order allowing a new Township and therefore not only it is violative of the Land Revenue Act but also a clear case of louting the decision of this Court.
(4) The impugned order is totally arbitrary and violative of Arts. 14 and 21 of the Constitution, as it adversely affects the quality and quantity of drinking water to the City and it is passed for collateral consideration, namely, the influence brought to bear on the Government by the DLF and which would benefit only the DLF to make profit and a few affluent individuals to put country villas which would be at the cost of the interests of millions of residents of the City of Bangalore.
(5) Though by the force of S. 79-A and Section 79-B of the Land Reforms Act the 414 acres of land has to be forfeited to Government, the Government has chosen to pass the impugned order and therefore, it is illegal.
7. Though the pleadings are long, the records are voluminous and the argument were elaborate, in our opinion, the matter is within a narrow compass, in that, the decision in the case depends upon our answer to the three questions of law which arise for consideration, on the first three contentions urged by the learned counsel for the petitioners. They are:-
(1) Whether the Government order is not invalid as it directs that the orders of the Special Deputy Commissioner granting permission for conversion of agricultural lands in question for non-agricultural use, which were quashed by this Court, shall continue?
(2) Even if the impugned order were to be understood as an order granting fresh permission for conversion of the lands in question .for non-agricultural use, whether the State Government had the power to pass the same, and if not whether it is not illegal and without authority of law?
(3) Whether the impugned order accords permission for establishing a new township and if the answer to the question is in the affirmative, whether the Government Order is not invalid for not following the mandatory provisions of the Karnataka Land Revenue Act?
(4) Before considering the three questions it has become necessary to consider as ‘to what is the scope of the liberty given by the Division bench of this Court to the Government by making the following observations:-
‘Our judgment will not come in the way of the Government independently considering the matter and coming to any conclusion on merits’.
The learned counsel for respondents 1 and 4 heavily relied on the said observation as authorising the Government to pass the impugned order and therefore was a complete answer to the aforesaid three questions.
(5) A reading of the judgement of Swami, J. would show that the ground on which the order of the Special Deputy Commissioner giving permission for conversion was quashed was that in the first instance the State Government had to take a decision as to whether a new township should be permitted on the 414 acres of land situated near Thippagondanahalli reservoir and it was only after the Government took a decision, if the decision were to be for establishing a township and such a township was brought into existence after following the procedure prescribed under the Karnataka land Revenue Act and the Planning Act, the question of the Deputy Commissioner entertaining application under S. 95 of the Land Revenue Act would arise. This view of the learned Judge was affirmed by the Division Bench, Relevant portion of the judgement of the Division Bench reads :-
“In other words, only when a township is proposed to be established the question of such conversion would arse. Granting permission for such conversion without even their being a proposal to establish a township, will amount to circumventing the provisions of S. 148 of the Land Revenue Act. It is not the case of the appellant that already a township exists and it is proposed to be extended and for such extension the agricultural lands in question required to be converted into non-agricultural purposes. If the records produced before the Court do not disclose any decision taken by the State Government to establish a new township, the question of conversion of lands would not arise.
XXX XXX XXX
Thus, as rghtly concluded by the learned single Judge, the preliminany requirement for establishing a new township as required under the provisions of the Town Planning Act as well been complied with, there is no scope for invoking S. 95 of the Land Revenue Act.”
It is common ground that the Authority con under the Land Revenue Act to take a decision as to whether a new township should be established and to issue a statutory notification is the State Government and according to the decision of the Division Bench, such a decision was a condition precedent for invoking the powers of the Deputy Commissioner under S. 95 of the Land Revenue Act. Therefore, it is crystal clear that the liberty given by the Division Bench was, that the government could proceed to consider as to whether a new township should be allowed to come into existence on the lands in -question. Therefore, the only course that was open to the Government, in view of the liberty given by the Division Bench was to consider whether a new Township according to the modified proposal which was pending before it at the time of disposal of the Writ Appeals, should be allowed to be established on the lands in question. If its tentative decision was in favour of establishing a new Township, then it should have followed the procedure prescribed under S. 6 of the Land Revenue Act and it was only after a notification in terms of S. 5 read with S. 6 of the Land Revenue Act was issued the 4th respondent could file application before the Special Deputy Commissioner under S. 95 of the Act, for, the power to grant permission for conversion of agricultural land for non-agricultural use is conferred under S. 95 of the Land Revenue Act only on the Deputy Commissioner and no other authority. Therefore, we are unable to agree with the submission made on behalf of respondents 1 and 4 that the observations made in the last part of the Judgement of the Division Bench conferred any extra power on the Government which was not given to it under the provisions of any of the Acts. Our conclusion on this aspect of the matter is that,
(1) The Government was given liberty to take a decision in accordance with law on the question as to whether a new township should be established on the lands in question.
(2) If the Government’s decision was in favour of establishing a new Township in the locality, it could implement it by complying with the mandatory - procedure prescribed under- the provisions of the Land Revenue Act, but itself could not proceed to pass orders without complying with the provisions of the Land Revenue Act.
(3) This Court did not give liberty to the -Government to pass orders under S. 95 of the Land Revenue Act, which power under that Section is conferred only on the Deputy Commissioner.
(4) The Government was not given the liberty to nullify the writ issued by this Court and to restore the orders quashed by this Court. Having clearly explained the scope of the observations made by the Division Bench which is by itself very clear, we now, proceed to consider the validity of the three questions one after another. ........
10. On the first question, the learned Counsel for the petitioners submitted that when the orders passed or deemed to have been passed by the Special Deputy Commissioner under 5. 95 of the Act according conversion have been quashed by this Court the said order was binding on the Government arid the Government did not have the power to pass an order stating that the orders which have been quashed by this Court shall continue to be in force. He submitted that jury’s order, apart from being totally without jurisdiction, amounted to contempt of Court.
(i) Learned Senior Counsel appearing for the 4th respondent and the learned Advocate General appearing for the State per contra contended that the Government proceeded to pass the order because the Division Bench of this Court while disposing off the appeal had permitted the Government to look into the matter and take a fresh decision.
(ii) We have pointed out earlier as to what is the scope of the liberty given. It is amazing that the Government has abused the liberty given by taking liberty to pass an order directing that the permission given under the orders which were quashed by this Court shall continue. It is high handed and arbitrary. The Government thereby has arrogated to itself power to overrule the orders passed by the High Court, which power under the Constitution is only vested in the Supreme Court. The executive Government should have taken the liberty of nullifying the order of the High Court is most shocking and unfortunate. To put it in a nutshell no argument is necessary to make out a case for quashing the impugned order and no amount of arguments can save it. It is astonishing that after four decades of the functioning of the Government under Constitution, such a thing has happened. In this regard, it is necessary to set out the request made by the 4th respondent to the Government in their letter dated 20th March 1991 (Enclosure VS to the synopsis of the case filed by 2nd respondent). Relevant portion reads:-
Ref - DLF Arkavati Green Valley Retreat Scheme.
In continuation of our letter dated 17th April 1991 addressed to you, while hoping that the Government is actively considering our fresh proposal we would like to bring the following to ydur study and incorporation in the Government order when a G.O. is being issued approving our proposal.
The Government may kindly issue an order for the continuance of the permission and conversion given by the Revenue Department in 1979-82 for conversion to non-agricultural purposes (Residential) (notwithstanding the orders passed by (the Divisional Bench of the High Court WA. No. 744 to 785 of 1987 c/w W.P. 13014/89 dated 28th Nov 1990, but read in conjunction with Para 14 of the judgement).
The 4th respondent could not have made such request before the Government, and even if the Government could not have granted. But the Government conceded the request and has nullified the orders which were set aside by the Court. The Constitutional discipline demands that the Government must implicitly and give effect to the orders of this Court. This is the essence of Rule of Law. In this regard the conduct of the highest administrative authority i.e. the Government must be an ideal on which should be worthy emulation by the lower authorities. It is very sad that the Government has set a very bad example by exceeding its power in a blatant manner, by going to the extent of nullifying the writs issued by this Court by ordering the continuance of the permission giving the Revenue Authorities in 1979-82 using these agricultural lands for non-agricultural purpose (residential), which were quashed by this Court. Another facet of the arbitrariness of the order in its favour and against the 4th respondent at the hands of this Court, for the benefit of the residents of the City, and now the 4th respondent has obtained the Impugned order from the Government, the effect of which is the order of this court which had become final stands sabotaged and the Board is left in the lurch. In our opinion, this one ground is sufficient and justifies the allowing of the petitions with exemplary costs. We strongly deprecate the action of the government in passing such an order. As regards the submission of the learned counsel that the Government has committed contempt of this court by passing such an order, we do not consider it appropriate to express any opinion in these cases.
11. Coming to the second question, it should be pointed out that the pomer to accord permission for putting agricultural, land or non agricultural use has been designedly conferred by the Legislature on the Deputy Commissioner of the respective district, which expression includes the Special Deputy Commissioner and on no other authority higher or lower Section 95 of the Act reads: ..........................
As reading of the Section itself would indicate the nature of the power conferred on the Deputy Commissioner and the precautions he has to take before according permission for conversion of agricultural lands for non-agricultural use. Sub- sec. (3) of S. 95 provides that the Deputy Commissioner has the power to refuse permission if it is not in public interest. Even in cases where permission is granted sub-sec. (4) of S. 95 authorises the Deputy Commissioner to impose stringent conditions to safeguard the interests of the general public. Under S. 49 of the Act, as held by this Court, any person genuinely aggrieved by the granting of permission for conversion to any other person is entitled to prefer an appeal to the Appellate Tribunal. Therefore, it is clear that the Government had no power to consider any request by the 4th respondent for according permission for conversion of agricultural land for non-agricultural use by passing the provisions of S.95 and 49 of the Act.
12(1). The only defence strongly put forward by the learned Counsel for the 2nd respondent was that the Government could exercise the power under S. 95 of the Act in view of S.3 of the Act, under which the Government is declared as the Chief Controlling Authority in all revenue matters. Section 3 reads:-
“3. Chief Controlling Authority in Revenue Matters:- The State Government shall be the Chief Controlling Authority in all matters connected with land and land revenue adininist ration under this Act.
The learned counsel submitted that as the State Government was the Chief Controlling Authority under the Act, it could pass an order which the Deputy Commissioner could pass under 5. 95 of the Act. The learned counsel for the petitioners submitted that the above stand of the respondents is totally untenable. In support of this, the learned counsel relied on the judgement of the Supreme Court in State of Punjab Vs. Harikishan, AIR 1966 SC 1081. That was a case which arose under the Pynjab Cinema Regulation Act. Under S.5 of that Act, the District Magistrate was empowered to issue Cinema licence and the State Government was only the Controlling Authority. In the guise of exercising the controlling power State Government itself exercised the power of the licensing authority. The question for consideration before the Supreme Court was whether the Government could do so. The Supreme Court held it could not. Relevant portion of the judgement reads:-
“12. The question which we have to decide in the present appeal lies within a very narrow compass. What appellant No. I has done is to require the licensing authority to forward to it all applications received for grant of licenses, and it has assumed power and authority to deal with the said applications on the merits for itself in (he first instance. Is Appellant No. I justified in assuming jurisdiction which has been conferred on the licensing authority by S. 5(1) and (2) of the Act? It is plain that S. 5(1) and (2) have conferred jurisdiction on the licensing authority to deal with applications for licences and either grant them or reject them. In other words, the scheme of the statute is that when an application for licence is made, it has to be considered by the licensing authority and dealt with under S. 5(1) and (2) of the Act. S. 5(3) provides for an appeal to appellant No. I where the licensing authority has refused to grant a licence and this provision clearly shows that appellant No. I is constituted into an• appellate authority in cases where an application for licence is rejected by the licensing authority. The course adopted by appellant No. I in requiring all applications for licences to be forwarded to it for disposal, has really converted the appellate a into the original authority itself, because S.5(3) clearly allows an appeal to be preferred by a person who is aggrieved by the rejection of his application for a licence by the licensing authority.
13. It is, however, urged by Mr. Bishen Narain for the appellants that S. 5 (2) confers very wide powers of control on appellant No. I and this power can take within its sweep the direction issued by appellant No. 1 that all applications for licences should be forwarded to it for disposal. It is true that S. 5(2) provides that the licensing authority may grant licenses subject to the provisions of S. 5(1) and subject to the control of the Government, and it may be conceded that the control of the Government subject to which the licensing authority has to function while exercising its power under S.5(1) and (2), is very wide; but however wide this control may be, it cannot justify appellant No. I to completely oust the licensing authority and itself usurp his functions. The Legislature contemplates a licensing authority as distinct from the Government. It no doubt recognises that the licensing authority has to act under the control of the Government; but it is the licensing authority which has to act and not the Government itself. The result of the instructions issued by appellate No. I is to change the statutory provision of S. 5(2) and obliterate the licensing authority from the Statute-book altogether. That, in our opinion is not justified by the provision as to the control of Government prescribed by S. 5(2).”
In our opinion, the ratio of the above decision is a complete answer to the stand taken by the State Government and the 4th respondent. The learned counsel for the 4th respondent relied on the judgement of the Supreme Court in Kewal Krishan Vs. State of Punjab, (AIR 1980 SC 1008) in which at paragraph 30 the decisions in Harinarayan was distinguished. The question which arose in that case was under S. 23 of the Punjab Agricultural Produce Marketing Act, which expressly provided that subject to the Rules made by the State Government, the Committee could levy fees and therefore Rule 29 which conferred power on the Board was valid. In our opinion, the ratio of the said decision is not apposite to this case, for under S. 95 of the Act, power is conferred on the Deputy Commissioner, and therefore, the Government cannot as Chief Controlling Authority under S. 3 of the Ad exercise the very statutory power which the statute has designedly conferred on the Deputy Commissioner and whose order is appealable to the Appellate Tribunal under S. 49 of the Act and not to the State Government. In this behalf, S.8 of the Act, which provides for appointment of Deputy Commissioner is also significant. It reads:-
“8. Deputy Commissioner (1) The State Government shall by notification appoint for each district a Deputy Commissioner, who shall be subordinate to the Divisional Commissioner.
(2) The Deputy Commissioner shall in his district exercise all the powers and discharge all the duties conferred and imposed on him under this Act or under any law for the time being in force. He may also exercise such powers and discharge such duties as are conferred and imposed on an Assistant Commissioner under this Act or under any other law for the time being in force, and in all matters not specially provided for by law, he shall act according to the instructions of the State Government.
As can be seen from the language of S.8 the Deputy Commissioner is bound to follow only such instructions given by the State Government as the Chief Controlling Authority on matters which are not specifically provided for. This Section clearly indicate that the Government acting as Chief Controlling Authority can only supplement the provisions of the Act and the Rules by issuing instructions, but it cannot issue instructions which supplant the provisions of the Act.
In its latest decision in Bangalore Medical Trust Vs. B. S. Muddappa, AIR 1991 SC 1902, the Supreme Court has emphatically laid down that a general power conferred on the Government is any enactment to give directions for carrying out the purposes of that Act cannot be understood as enabling the Government to exercise the specific power conferred on a designated authority..... The ratio of the above decision is a complete answer to the argument of the learned Advocate General and the learned counsel for respondent No. 4, based on S. 3 of the Land Revenue Act.
(iii) Further, as can be seen from the above extracts of the judgement, in the above case, the Supreme Court made a caustic remark against the Government to the effect that by doing so, it threw the law to the winds. But in this case, not only the law is thrown to the winds, but the writs issued by this Court also have been thrown to the winds; also, for a private purpose, namely, to help the 4th respondent and to the detriment of the interests of millions of people of the City of Bangalore. Therefore, the second question also has to be answered in favour of the petitioners and on this ground also the impugned order is liable to be set aside.