BANGALORE DEVELOPMENT AUTHORITYversusM/S VIJAYA LEASING LTD. & ORS.

                         [2013) 3 S.C.R. 140


A           BANGALORE DEVELOPMENT AUTHORITY
                                    v.
                M/S VIJAYA LEASING LTD. & ORS.
                  (Civil Appeal No. 7141 of 2005)
                            APRIL 1, 2013
B
         [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                   IBRAHIM KALIFULLA, JJ.]

        Land Acquisition Act, 1894 - s.48(1) - Acquisition de-
e notified by de-notification dated 05.10.1999 - Single Judge
    of High Court set aside the de-notification - Order overturned
    by Division Bench - On appeal, held: While exercising
    extraordinary jurisdiction u!Article 226 of the Constitution, the
    Single Judge came across incongruities in the proceedings
D   of the Hon'ble Minister which resulted in the issuance of de-
    notification dated 05.10.1999 - Order of the Single Judge in
    setting aside such a patent illegality cannot be held to be
    beyond the powers vested in the Constitutional Court - The
    Division Bench failed to take note of the gross illegality
E   committed by the Hon'ble Minister while directing the issuance
    of the de-notification dated 05. 10. 1999 inspite of the fact that
    possession had already been handed over to the State as
    early as on 09. 12. 83 and that the decree of the Civil Court
    did not in any way create any fetters on the authorities
F   concerned to take steps for possession by resorting to
    appropriate legal means - The Civil Court decree to that effect
    was dated 15.12.1981 and the possession was taken by taking
    necessary steps under the provisions of the Land Acquisition
    Act under the Mahazar dated 09. 12. 83 which was never
    challenged by any party much less the first respondent - The
G   Division Bench completely omitted to take note of the relevant
    facts while interfering with the order of the Single Judge -
    Order of the Single Judge restored - Constitution of India,
    1950 - Article 226 - Power of the writ court to correct errors
    apparent on the face of the record.
H                                  140
BANGALORE DEVELOPMENT AUTHORITY v. VIJAYA 141
           !-EASING LTD. & ORS.
     Dwarakanath v. Income Tax Officer 1965 (2) SCJ 296;          A
Gujarat Steel Tubes Ltd & Ors. v. Gujarat Steel Tubes
Mazdoor Sabha & Ors. 1980 (2) SCC 593: 1980 (2) SCR 146
and Meera Sahni v. Lt. Governor of Delhi and Others 2008
(9) SCC 177: 2008 (10) SCR 1012 - referred to.
                                                                  B
                     Case Law Reference:

    1965 (2) SCJ 296          referred to         Para 14

    1980 (2) SCR 146          referred to         Para 14, 15

    2008 (10) SCR 1012        referred to         Para 17         C

    CIVIL APPELLATE JURISDICTION : Civil Appeal 'No.
7141 of 2005.

    From the Judgment & Order dated 29.03.2005 of the High
Court of Karnataka at Bangalore in Writ Appeal No. 4947 of        D
2002(LA-RES).
                              WITH
C.A. No. 7142 of 2005
                                                                  E
    Altaf Ahmed, P.V. Shetty, S.K. Kulkarni, M. Gireesh
Kumar, Ankur S. Kulkarni, V.N. Raghupathy, C.B. Gururaj,
Sanjay R. Hegde, Aman Vachher, Ashutosh Dubey, T.S. Shanti,
Abhishek Chauhan, Harsh Sharma, P.N. Puri, Vijay Kumar
Paradesi for the appearing parties.
                                                                  F
    The following Order of the Court was delivered

                         ORDER

     1. These two appeals arise out of the common judgment        G
of the Division Bench of the Karnataka High Court at Bangalore
dated 29.3.2005 in Writ Appeal No.4947 of 2002. Though the
issue lies in a narrow compass as to the power of writ court
under Article 226 of the Constitution to correct certain errors
which is quite apparent on the face of the record though not      H
     142      SUPREME COURT REPORTS                [2013] 3 S.C.R.


A specifically challenged by a party, in order to appreciate the
  order of the learned Single Judge dated 26.8.2002 which
  sought to remedy the manifest injustice by setting aside a
  notification passed under Section 48 (1) of the Land Acquisition
  Act dated 27.6.2000 without any specific challenge to the said
B Notification.

       2. By the impugned judgment the Division Bench set aside
  the order of the learned Single Judge on the sole ground that
  there was no specific challenge to the Notification dated
C 27.6.2000. To appreciate the points raised, it is necessary to
  refer to the basic facts in a brief account.

        3. There was a preli~inary Notification dated 21.9.1967
  under the provisions of Bangalore Improvement Act, 1945
  (Mysore Act V of 1945) which is analogous to Section 4 of the
D Land Acquisition Act. By the said notification, there was a
  proposal to acquire survey No.57 of Thippasandra Village, K.R.
  Puram Hobli by the Government for the formation of a layout
  called HAL, second stage layout by the appellant herein. The
  final notification was issued on 15. 7 .1971 under the same Act
E purported to be one under Section 6 of the Land Acquisition
  Act.

        4. Award was, however, passed by the Acquisition
  Authority on 21.11.1983 and the same was approved on
F 29.11.1983 for Rs.58,426,25. Compensation was paid under
  the Mahazar dated 09.12.1983 and the possession was taken
  and handed over to the Engineering Section on the same date.
  After the final notification dated 15. 7.1971 and six months prior
  to the award dated 21.11.1983, the land was sold by the original
  owners, namely, A. Thimma Reddy and Muniswamappa on
G 27.5.1983 to the vendors of the contesting respondent. The
  petitioner therein (respondent No.1 herein) purchased the land
  in question under two sale deeds on 28.1.1995. The
  acquisition was stated to have been de-notified under Section
  48 (1) of the Land Acquisition Act by notification dated
H 05.10.1999. By order dated 27.6.2000 impugned in the writ
BANGALORE DEVELOPMENT AUTHORITY v. VIJAYA 143
           LEASING LTD. & ORS.
petition, the said de-notification dated 05.10.1999 was recalled.     A
The said order dated 27.6.2000 was the subject matter of
challenge of the writ petition filed by the first respondent herein
in WP 2565/2001.

     5. By the order dated 26.8.2002, the learned Single Judge,       B
after holding that there is no provision in the Land Acquisition
Act for recalling the order passed under Section 48(1) of the
Act also proceeded to hold that in any event the Notification
dated 05.10.1999 for certain specified reasons had to be
declared as non est in law and struck down the said notification
which sought to de-notify the acquisition which became final          C
and conclusive as on 09.12.1983 (i.e.), sixteen years after the
acquisition became final.

      6. In the appeal preferred by the appellant, the Division
Bench while affirming the order of the learned Single Judge,          D
insofar as it related to the setting aside of the recalling of the
de-notification dated 27.6.2090, however, held that the Single
Judge was not legally justified in setting aside the de-
notification itself dated 05 .1 0.1999.
                                                                      E
      7. We heard Mr. Altaf Ahmad learned senior counsel for
the appellant, Mr. P.V. Shetty, learned senior counsel for the
first respondent and learned counsel for the parties. We also
perused the judgment of the learned Single Judge, as well as,
that of the Division Bench and we are convinced that the
judgment of the Division Bench impugned in this appeal                F
deserves to be set aside.

      8. As the facts are not in dispute, as stated in the opening
paragraph the short question for consideration is, in the
absence of a challenge to the de-notification dated 05.10.1999        G
whether the Single Judge was justified in setting aside the same
even after holding that the subsequent recalling of the said
notification by order datE.J 27.6.2000 was without jurisdiction.
     9. A perusal of the order of the learned Single Judge would      H
    144      SUPREME COURT REPORTS               [2013) 3 S.C.R.


A disclose that before issuing the de-notification dated
  05.10.1999, the Hon'ble Minister dealing with the appropriate
  subject stated to have made a spot inspection along with the
  officials of the appellant and recorded a statement that
  possession was not delivered to the Government or the
B appellant and that it continued with the owner of the land. The
  said statement was recorded on 13. 7 .1998. One other
  statement found in the said proceeding was that even if
  possession had been handed over in the year 1983, as no
  layout was formed till the time of inspection i.e. in the year
c 1998, it was more probable that the possession continued with
  the owner and was not handed over to the appellant. A further
  reference was made to a decree of permanent injunction by the
  Civil Court dated 15.12.1981 in O.S. 10300/1980 against the
  appellant restraining the appellant from interfering with the
0 possession   of the land owner Krishna Reddy.

        10. The learned Single Judged has noted the above
  factors after perusing the original records. The learned Judge
  further found that though the proceedings of the Hon'ble Minister
  stated that possession continued to remain with the owner and
E not handed over to the appellant, the Mahazar drawn on
  09.12.1983 clearly disclosed that possession was handed over
  to the Assistant Executive Engineer on that date, that the survey
  had shown the boundary of the land which was acquired while
  handing over possession to the Executive Engineer and that
F the said Mahazar was attested by four witnesses apart from
  the signature affixed by the Revenue Officer in proof of delivery
  of possession in his presence.

       11. The learned Judge also went through the judgment of
G the Civil Judge dated 15.12.1981 and found that the decree of
  permanent injunction granted was to the limited effect that the
  defendant/appellant was restrained by way of permanent
  injunction from interfering with the plaintiffs possession of the
  suit proper:ty except in accordance with law. One other factor
H which was found in the proceedings of the Hon'ble Minister's
 BANGALORE DEVELOPMENT AUTHORITY v. VIJAYA 145
            LEASING LTD. & ORS.
 inspection was that the name board of the first respondent was    A
 found in a small house located in the scheduled property and,
 therefore, the possession with the owner should have been
 continued till that date. Though the Hon'ble Minister concerned
 was of the view that based on the above factors the acquisition
 had to be de-notified, a three-men Committee which                B
 considered the proceedings of the Hon'ble Minister rejected
 those observations and recommended that there was no
 necessity for de-notification of the land. Unfortunately,
 superseding the above decision of the Committee, the
 concerned Hon'ble Minister appeared to have ordered for de-       c
 notification and that is how the said notification came to be
 issued on 05.10.1999.

       12. The learned Judge after referring to the proceedings
  of the Hon'ble Minister, the decision of the three-men
  Committee and the reasons which prevailed upon the Hon'ble       D
  Minister to issue the de-notification held that none of the
-reasons mentioned for issuing de-notification were legally
· sustainable and, therefore, it called for an interference. The
  learned Judge specifically referred to the Mahazar dated
  09.12.1983 wherein, after following the required formalities     E
  possession was duly handed over to the Government through
  the concerned Assistant Executive Engineer in the presence
  of the witnesses, that the Civil Court decree dated 15.12.1981
  passed in OS 10300/1980 empowered the authorities
  concerned to resort to possession in accordance with law and,    F
  therefore, steps taken for taking possession under the Land
  Acquisition Act cannot be held to be in violation of the Civil
  Court decree and that issuance of the de-notification dated
  05.10.1999 was, therefore, in gross violation of the authority
  vested in the Hon'ble Minister and was patently illegal and      G
  unjustified.

      13. In the abovesaid background, the question for
 consideration is, therefore, whether such a conclusion of the
 learned Single Judge and the ultimate order passed by him can
                                                                   H
    146        SUPREME COURT REPORTS                  [2013] 3 S.C.R.


A   be held to be justified in exercise of his power and jurisdiction
    under Article 226 of the Constitution.

         14. To appreciate the legal position we only wish to refer
    to two of the decisions of this Court reported in Dwarakanath
    v. Income Tax Officer -1965 (2) SCJ 296 and Gujarat Steel
8
    Tubes Ltd & Ors. v. Gujarat Steel Tubes Mazdoor Sabha &
    Ors. - 1980 .(2) SCC 593. In Dwarakan?th case the Supreme
    Court stated as under:

          "This article is couched incomprehensive phraseology and
c          it ex facie confers a wide power on the High Courts to
           reach injustice wherever it is found. The Constitution
          designedly used a wide language in describing the nature
          of the power, the purpose for which and the person or
          authority against whom it can be exercised. It can issue
D         writs in the nature of prerogative writs as understood in
          England; but the scope of those writs also is widened by
          the use of the expression 'nature', for the said expression
          does not equate the writs that can be issued in India with
          those in England, but only draws an analogy from them.
E         That apart, High Courts can also issue directions, orders
          or writs other than the prerogative writs. It enables the High
          Courts to mould the reliefs to meet the peculiar and
          complicated requirements of this countrv. Any attempt to
          equate the scope of the power of the High Court under
F         Article 226 of Constitution with that of the English Courts
          to issue prerogative writs is to introduce the unnecessary
          procedural restrictions grown over the years in a
          comparatively small country like England with a unitary
          form of Government to a vast country like India functioning
          under a federal structure. Such a construction defeats the
G
          purpose of the Article itself."

                                                   (Emphasis added)

          15. Similarly in Gujarat Steel Tubes Case (supra), the
H
BANGALORE DEVELOPMENT AUTHORITY v. VIJAYA 147
           LEASING LTD. & ORS.
relevant principles can be culled out from paragraphs 73 and         A
81.

    "73.While the remedy under Article 226 is extraordinary
    and is of Anglo-Saxon vintage, it is not a carbon copy of
    English processes. Article 226 is a sparing surgerv but the      B
    lancet operates where injustice suppurates. While
    traditional restraints like availability of alternative remedy
    hold back the court, and judicial power should not ordinarily
    rush in where the other two branches fear to tread, judicial
    daring is not daunted where glaring injustice demands            C
    even affirmative action. The wide words of Article 226 are
    designed for service of the lowly numbers in their
    grievances if the subject belongs to the court's province
    and the remedy is appropriate to the judicial process.
    There is a native hue about Article 226, without being
    anglophilic or anglophobic in attitude. Viewed from this         D
    jurisprudential perspective, we have to be cautious both
    in not overstepping as if Article 226 were as large as an
    appeal and not failing to intervene where a grave error has
    crept in. Moreover, we sit here in appeal over the High
    Court's judgment. And an appellate power interferes not          E
    when the order appealed is not right but only when it is
    clearly wrong. The difference is real, though fine.

    81 ......................... Broadly stated, the principle of law
    is that the jurisdiction of the High Court under Article 226 F
    of the Constitution is limited to holding the judicial or quasi-
    judicial tribunals or administrative bodies exercising the
    quasi-judicial powers within the leading strings of legalitv
    and to see that they do not exceed their statutory
    iurisdiction ·and correctly administer the law laid down by G
    the statute under which they act. So long as the hierarchy
    of officers and appellate authorities created by the statute
    function within their ambit the manner in which they do so
    can be no ground for interference ............................ ."

                                              (emphasis added)       H
    148        SUPREME COURT REPORTS               [2013) 3 S.C.R.


A       16. We are of the view that the above principles when
  applied to the case on hand, it can be safely concluded that
  the order of the learned Single Judge in the light of the peculiar
  facts noted therein cannot be faulted. We also wonder as to
  why the Hon'ble Minister concerned should have taken upon
B himself the extraordinary effort of making an inspection for
  which no special reasons were adduced in the report. That
  apart none of the reasons which weighed in the report of the
  Hon'ble Minister reflected the true facts. The conclusion of the
  Hon'ble Minister that the possession continued to remain with
C the owner was contrary to what was found on records. The
  Mahazar dated 09.12.1983 as noted by learned Single Judge
  from the original file reveal that the conclusion of the Hon'ble
  Minister was ex facie illegal and untrue. The said conclusion
  obviously appeared to have been made with some ulterior
  motive and purpose and with a view to show some undue
0
  favour to the first respondent herein. The acquisition became
  final and conclusive as far back as on 15.7.1971 when Section
  6 declaration came to be issued. At no point of time there was
  any challenge to either preliminary notification dated 21.9.1967
  or the final declaration notified on '15. 7.1971. Even the award
E dated 21.11.1983 approved on 29 .11.1983 was not the subject
  matter of challenge in any proceedings.
       17. In this context, reliance placed upon by Mr. Altaf Ahmad
  in the decision reported in Meera Sahni v. Lt. Governor of
F Delhi and others - 2008 (9) SCC 177 wherein this Court has
  held that transfer of land in respect of which acquisition
  proceedings had been initiated under Sections 4 and 6 would ·
  be final and not bind the Government and that a challenge to
  said proceedings by a subsequent purchaser was
G impermissible in law. The relevant part of the said decision has
  been set out in paras 17 and 21 which are as under:
          "17. When a piece of land is sought to be acquired, a
          notification under Section 4 of the Land Acquisition Act is
          required to be issued by the State Government strictly in
H
 BANGALORE DEVELOPMENT AUTHORITY v. VIJAYA 149
            LEASiNG l TD. & ORS.

     accordance with law. The said notification is also required    A
     to be followed by a declaration to be made under Section
     6 of the Land Acquisition Act and with the issuance of such
     a notification any encumbrance created by the owner, or
     any transfer made after the issuance of such a notification
     would be deemed to be void and would not be binding on         B
     the Government. A number of decisions of this Court have
     recognised the aforesaid proposition of law wherein it was
     held that subsequent purchaser can.not challenge
     acquisition proceedings and also the validity of the
     notification or the irregularity in taking possession of the   c
     land after the declaration under Section 6 of the Act.

     21. In view of the aforesaid decisions it is by now well-
     settled law that under the Land Acquisition Act, the
     subsequent purchaser cannot challenge the acquisition
     proceedings and that he would be only entitled to get the      D
     compensation."
       18. Therefore, while exercising the extraordinary
 jurisdiction under Article 226 of the Constitution, the learned
 Single Judge came across the above incongruities in the            E
 proceedings of the Hon'ble Minister which resulted in the
 issuance of de-notification dated 05.10.1999. We fail to note
 as to how the ultimate order of the learned Single Judge in
 setting aside such a patent illegality can be held to be beyond
 the powers vested in the Constitutional Court. The conclusion
 of this Court in Gujarat Steel Tubes Case (supra) that judicial
                                                                    F
 daring is not daunted when glaring injustice demands even
 affirmative action and that authorities exercising their powers
,should not exceed the statutory jurisdiction and correctly
 administer the law laid down by the statute under which they
 act are all principles which are to be scrupulously followed and   G
 when a transgression of their limits is brought to the notice of
 the Court in the course of exercise of its powers under Article
 226 of the Constitution, it cannot be held that interference in
 such an extraordinary situation to set right an illegality was
 unwarranted.                                                       H
    150      SUPREME COURT REPORTS                 (2013] 3 S.C.R.


A       19. In our considered opinion, the Division Bench failed
  to take note of the above gross illegality committed by the
  Hon'ble Minister while directing the issuance of the de-
  notification dated 05.10.1999 inspite of the fact that possession
  had already been handed over to the State as early as on
B 09.12.83 and that the decree of the Civil Court did not in any
  way create any fetters on the authorities concerned to take
  steps for possession by resorting to appropriate legal means.
  At the risk of repetition, it will have to be stated that the Civil
  Court decree to that effect was dated 15.12.1981 and that the
c possession was taken by taking necessary steps under the
  provisions of the Land Acquisition Act under the Mahazar dated
  09.12.83 which was never challenged by any party much less
  the first respondent herein. The Division Bench unfortunately
  completely omitted to take note of the relevant facts while
D interfering with the order of the learned Single Judge. The
  appeals, therefore, stand allowed. The order of the Division
  Bench is set aside and the order of the learned Single Judge
  dated 26.8.2002 passed in WP No.2565 of 2001 stands
  restored by this common judgment.

E B.B.B.                                          Appeals allowed.