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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7141 OF 2005

Bangalore Development Authority  …Appellant

VERSUS

M/s Vijaya Leasing Ltd. & Ors.          …Respondents

WITH

CIVIL APPEAL NO. 7142 OF 2005

State of Karnataka & Anr.   …Appellants

VERSUS

M/s Vijaya Leasing Ltd. & Anr.          …Respondents

O R D E R

1. These two appeals arise out of the common judgment 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 specifically  

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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 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  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  preliminary  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 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 purported to be one under  

Section 6 of the Land Acquisition Act. Civil Appeal No.7141 of 2005                                                                            2 of 16

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4. Award was, however, passed by the Acquisition Authority  

on 21.11.1983 and the same was approved on 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  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 05.10.1999.  By order  

dated 27.6.2000 impugned in the writ  petition,  the said  

de-notification dated 05.10.1999 was recalled.  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,  

after  holding  that  there  is  no  provision  in  the  Land  

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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 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,  insofar  as  it  related  to  the  setting  aside  of  the  

recalling of the de-notification dated 27.6.2000, however,  

held  that  the  Single  Judge  was  not  legally  justified  in  

setting aside the de-notification itself dated 05.10.1999.

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 deserves to be set aside.  Civil Appeal No.7141 of 2005                                                                            4 of 16

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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  whether  the  Single  Judge  was  justified  in  

setting  aside  the  same  even  after  holding  that  the  

subsequent recalling of the said notification by order dated  

27.6.2000 was without jurisdiction.  

9. A perusal of the order of the learned Single Judge would  

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 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  1998,  it  was  more  

probable  that  the  possession  continued  with  the  owner  

and  was  not  handed  over  to  the  appellant.  A  further  

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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 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  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  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 the  

Civil Judge dated 15.12.1981 and found that the decree of  

permanent  injunction  granted  was  to  the  limited  effect  Civil Appeal No.7141 of 2005                                                                            6 of 16

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that  the  defendant/appellant  was  restrained  by  way  of  

permanent injunction from interfering with the plaintiff’s  

possession of the suit property except in accordance with  

law.  One other factor which was found in the proceedings  

of  the  Hon’ble  Minister’s  inspection  was  that  the  name  

board of the first respondent was 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  

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-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 Minister  

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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  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,  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  

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  

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him can 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 Tubes Ltd & Ors.  v. Gujarat Steel  

Tubes Mazdoor Sabha & Ors. -  1980 (2) SCC 593.  In  

Dwarakanath case the Supreme Court stated as under:

“This  article  is  couched  incomprehensive  phraseology and 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  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.  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 country.  Any attempt to equate the scope  of the power of the High Court under 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  

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structure.   Such  a  construction  defeats  the  purpose of the Article itself.”

(Emphasis added)

15. Similarly  in  Gujarat  Steel  Tubes  Case  (supra),  the  

relevant principles can be culled out from paragraphs 73  

and 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 surgery but the 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 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  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   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 of the Constitution is limited to holding  the  judicial  or  quasi-judicial  tribunals  or  

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administrative bodies exercising the quasi-judicial  powers within the leading strings of legality and to  see  that  they  do  not  exceed  their  statutory  jurisdiction and correctly  administer  the law laid  down by 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)

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  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 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  Civil Appeal No.7141 of 2005                                                                            11 of 16

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said  conclusion  obviously  appeared  to  have been made  

with some ulterior motive and purpose and with a view to  

show some undue 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 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  

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 impermissible in law. The relevant part of  

the  said  decision has  been set  out  in  paras  17 and 21  

which are as under: Civil Appeal No.7141 of 2005                                                                            12 of 16

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“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  accordance  with law. The said notification is also required  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  the  Government.  A  number  of  decisions  of  this  Court  have  recognised  the  aforesaid  proposition  of  law  wherein it was held that subsequent purchaser  cannot  challenge  acquisition  proceedings  and  also  the  validity  of  the  notification  or  the  irregularity  in  taking  possession  of  the  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  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  

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  

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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 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  

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.  

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 09.12.83 and that the decree of the Civil Court  

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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 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  

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.  

    …….……….…………………………...J.                                          [Dr. B.S. Chauhan]

  …….…….………………………………J.

            [Fakkir Mohamed Ibrahim  Kalifulla]

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New Delhi;  April 01, 2013

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