CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1948 of 1968’.
Appeal from the Judgment and Order dated the 21st Sept., 1967 of the Mysore High Court in W.P. No. 1168/65. S.V. Gupte with S.S. JavaIi and B. Dutta for the appellant. N. Nettar and K.R. Nagaraja, for respondents. The Judgment of the Court was delivered by
KRISHNA IYER, J. Two short legal issues--both apparently devoid of merit--were urged unsuccessfully before the High Court and repeated, with a somewhat similar fate, before us, ii we may anticipate our conclusion. A Judgment of affirmation may usefully be an abbreviation and so, we shall briefly deal with Shri Gupta’s twin submissions on behalf of the appellant writ petitioner. The appeal is by special leave and the subject-matter is land compulsorily acquired under the City of Bangalore Improvement Act 1945 (for short the Improvement Act) (Mysore Act V of 1945).
A concise narration of the necessary facts may conveniently be compressed into a paragraph or two. The appellant purchased two portions of S. No. 211 within the District of Bangalore from two persons Giliteppa and Nanjappa during the pendency of land acquisition proceedings under the Improvement Act. These proceedings were for acquisition of land in S. No. 211 for making a lay-out plan for a building colony. This limited objective was completed after due formalities were complied with and thereafter the land was made over to the Housing Board whose statutory responsibility is to implement housing schemes. We are told that houses have been built on the land already although there is some doubt as to whether 5 acres out of the total extent still remain vacant. If the contentions of the appellant are sound the whole scheme will be shot down, a disaster a socially conscious court should try to avert unless compelled by fundamental legal laws.
What, then, are the alleged vital weaknesses in the acquisition proceedings which vitiate them altogether ? Firstly, a technicality technically countered; and secondly, a compassionate consideration which has no invalidatory effect.
The appellant has urged before us that Section 16(2) of the Improvement Act has a mandatory requirement that service of notices shall be effected on "every person whose name appears in the ............ in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on.........land which it is proposed to acquire in executing the scheme" .......... This peremptory mandate has not been complied with and that is the first vital flaw pressed before us. The second contention is based upon Section 15 (3 ) of the Improvement Act whereunder every improvement scheme "may provide for the construction of buildings for the accommodation of the poorer and working classes, including the whole or part of such classes to be displaced in the execution of the scheme." This provision, it is argued. clothes the appellant, in his capacity as a displaced person with a right to allotment of land for construction of a building for his own residence. We will presently consider these two submissions seriatim.
To make short work of the first point we may straightway state that the obligation under section 16(2) is to serve notices on persons whose names appear in the land revenue register as being primarily liable to pay the land revenue assessment. The complaint made is that the predecessors of the appellant Giliteppa and Nanjappa were. entitled to notice under this provision and ’that they had not been so given. Of course, there is no affidavit from these two vendors of the appellant that they have not received any notice. Apart from that the burden is on the appellant to prove that his vendors were persons whose names were borne on the land revenue register. This is a question of fact but the moot point debated before the High Court was what in law was the land revenue register. Certainly notice has been given to Khatedars. The return of the respondents states that "notified Khatedars were notified of the acquisition". Ex. R-I produced alongwith the return shows one Somayaji as the Khatedar, not the vendors of the appellant. This disputed point was investigated by the High Court with a thoroughness and intimate acquaintance with the local revenue laws which elicits our appreciation. Considering the documentary evidence adduced and the authoritative revenue laws bearing on the subject and scanning the meaning of the entries in the extracts before Court, the learned Judges reached the conclusion that the Khatta produced by the appellant was "a mere tentative compilation of information transmitted to the Revenue Department by the Inams Abolition Department" and not "Khetwar Patrak" which was the land revenue register within the meaning of section 16(2) of the Improvement Act. The High Court concluded:
"We are of the opinion ’that the land
revenue register to which section 16(2) refers
is no other than the register of lands the
Khetwar Patrak, and, that register is not the
Khatta which is something very different."
Further, on, after full discussion the Court
crystallized its conclusions thus:
"Even though a person may be an occupant
in the sense in which that word has to be
understood, so long as it is not proved that
his name appears in the land revenue register,
at the material point of time, we should not
pronounce against the validity of the
acquisition or the publication of a
declaration under section 18 on the slender
foundation of insufficient material such as
the certified copy of a tentative Khata which
we have referred." Indeed, the appellant produced some wrong documents but the Court was too cute to be misled as is evident from its observation:
"It emerges from the discussion so far
made that that land revenue register is no
other than the register of lands or the
Khetwar Patrak which has to be maintained in
form No. 1 which is set out in volume 2 of the
Mysore Village Manual at page 8(a), and, we do
not have before us either that register of
lands or a certified copy of it and no
exlplanation has been offered to us as to
why the petitioner did not obtain a copy of
that register or produce it." After hearing Shri Gupte at some length we are not disposed to be dislodged from the finding painstakingly recorded by the High Court. The first point, therefore, fails.
The only other point seriously pressed before us by Shri Gupte is that under section 15(3) there is an obligation on the part of the Board of Trustees to provide a plot to the displaced appellant. There is nothing in Section 15(3) of the Improvement Act which warrants. such a compulsive duty or creates a right to claim a plot. Of course, the Board may consider providing some land for the persons from whom acquisitions have been made. This is a beneficient consideration, not a necessary obligation. That this is so clear also from the rules for the allotment of sites. Rule 10 settles the principle for selection of applicants for allotment of sites. Rule 10(1) reads:
"10. Principles for selection of applicants
for allotment of sites.--(1) The Board shall
consider the case of each applicant on its
merits and shall have regard to the following
principles in making selection and fixing the
priority for allotment :--
(i) applicants whose lands or houses have
been acquired by the Board provided they are
otherwise qualified for allotment;
(ii) the status of the applicant, that is,
whether he is married or single and has
dependent children;
(iii) the income of the applicant and his
capacity to purchase a site and build a house
thereon for his residence;
(iv) the number of years the applicant has
been waiting for allotment of a site and the
fact that he did not secure a site earlier
though he is eligible and had applied for a
site." The facts before us are that the lands acquired have already been transferred to the Housing Board and houses have already been built at least on a substantial part of the land. All that we can say, at this stage, is that having regard to the compassionate factor that the appellant’s lands have been acquired and he has perhaps been displaced from the entirety of his building sites, it should be a fair gestureon the part of the Housing Board if there are vacant lands still avail able--the order of stay granted by this Court is strongly suggestive of some land being still available as not built upon--to consider ’the claim of the appellant, if he applies within three months from today for allotment of a site for a house, subject, of course, to his eligibility for allotment and other criteria for comparative evaluation of claims prescribed by the rules in this behalf. It follows that beyond this is not for the Court to direct and less than this is not fair play to the appellant.
The High Court had gone into the question of delay disentitling the appellant in maintaining his writ petition. In the view that we have already taken on the merits of the substantive points, we are not called upon to consider the deadly effect of the delay such as there is between the dates of the acquisition notification and the institution of the writ petition. The appeal is dismissed but having consideration for the conspectus of circumstances present in this case we direct that the parties will bear their own costs throughout. P.H.P. Appeal dismissed.