Judgment:
1. Two questions arise in this appeal by special leave from the judgment of the Mysore High Court rendered in Writ Petition No. 4407 of 1970 dated March 14, 1973 viz.:
1. Whether the High Court has committed an error in taking the view that the appellant has not acquired any right for re-grant in respect of land in question which was earlier acquired for a public purpose under Section 54-A of the Hyderabad Land Revenue Act 8 of 1317 from him.
2. Whether the State Government was in error in making a grant in favour of Respondent 5 without taking into account the claim of the appellant for a grant in his capacity as the original owner of the acquired land upon the State Government being satisfied that the land is not required any longer for the public purpose for which it was acquired under Order No. RD 105, ACP 69 dated January 23, 1970.
2. Insofar as the first question is concerned, we agree with the reasoning and conclusion of the High Court particularly having regard to the fact that the Hyderabad Land Revenue Act itself was repealed on April 1, 1964 and till then the appellant had not made any application for grant of land to him in his capacity as the original owner of the acquired land under Section 54-A of the said Act. It was more than 6 months later on August 10, 1964 that he made an application in this behalf. There is nothing to show that the land which was acquired earlier for a public purpose was no longer required for the said public purpose prior to repeal of the Hyderabad Land Revenue Code on April 1, 1964. Therefore, till then there was no occasion for making any offer to the original owner to grant a patta in case the original owner was agreeable to refund the compensation paid to him at the time of acquisition of the land. None of these events had occurred before the repeal of the Hyderabad Land Revenue Act on April 1, 1964. The appellant had, therefore, no legal right to claim the grant of the land on the date on which he made the application
some 6 months after the Hyderabad Act came to be repealed and ceased to be in force.
3. Insofar as the second question is concerned we are unable to agree with the reasoning of the High Court. It is no doubt true that Government Order No. RD 105, ACP 69 as per Annexure D dated January 23, 1970 (hereafter referred to as GO) did not have statutory force. All the same so long as the said GO was in force the appellant could make a claim for a grant being made in his favour as per the said GO if he satisfied all the conditions for re-grant. To deny such a right to the appellant without any good ground would amount to discrimination. The State Government was, therefore, obliged to consider the request made by the appellant in the light of the said GO. No doubt it was for the competent authority to decide whether or not the terms and conditions for grant reflected in Annexure D were satisfied and whether or not there was justification for the grant. But the request made by the appellant had to be considered in accordance with law in the light of the aforesaid GO and the relevant provisions before pre-empting the issue by making a grant in favour of Respondent 5. Since the State Government has failed to do so the impugned order passed by the State Government making a grant of 3 acres 30 guntas in favour of Respondent 5 by order dated July 22, 1970 must be quashed and set aside.
4. It will be open to the State Government in considering the request for grant made by the appellant under GO No. 105 dated January 23, 1970 to take into account all the relevant factors including the factor whether the land or any part of the land was required any longer for the relevant public purpose or whether the re-grant should be made and if so on what terms and conditions consistent with law. It will be open to the State Government to consider the liability, if any, incurred by the appellant in the context of the fact that admittedly he has taken the law in his hands and has unauthorisedly occupied the land from 1955 onwards for as long as 30 years whilst he has retained the amount of compensation already recovered by him with himself. The State Government will also doubtless consider whether the holding of the appellant is within the ceiling limits and whether the grant as per request would violate the provisions of the Ceiling Act. It will be open to the State Government to consider all these relevant aspects and pass appropriate orders in accordance with law.
5. Since the appellant has been occupying the land unauthorisedly for so long, we direct that the appellant should hand over possession thereof within four months from today. Appellant will be at liberty to make a formal application for grant as per Annexure D along with an affidavit evidencing that he has handed back the land, within four months thereafter. Upon such an application being made, the competent authority will pass an appropriate order in accordance with law thereon after hearing the appellant. Learned counsel for the appellant submits that Section 94 of the Karnataka Land Revenue Act, 1964 will come into play. We do not wish to express any opinion on this question. The respondent will decide the matter in accordance with law after affording a reasonable opportunity to be heard to the appellant.
6. The appeal is allowed partly to the aforesaid extent. There will be no order as to costs.