MANU/KA/0690/1999

Equivalent Citation: ILR 2000 KARNATAKA 250

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Contempt of Court Case No. 1266 of 1998 and Writ Petition No. 22875 of 1999
Decided On: 18.11.1999
Appellants: Dr. B.R. Ambedkar Dalitha and Hindulida Alpa Sankhyatara
Gramabhivruddhi Sangha
Vs.
Respondent: State of Karnataka and Ors.
Hon'ble Judges/Coram:
G.C. Bharuka and Mohammad Anwar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sri C.R. Lakshmana Murthy and Sri M. Devaraj, Advs.
For Respondents/Defendant: Sri R.I. D'Sa,Additional Government Adv., Sri. G.D.
Aswathanarayana,M/s. H.N. Nagamohan Das andAssociates, Advs.
Amicus Curiae: Sri S.A. Nazeer
Case Note :
CONSTITUTION OF INDIA-Article 162-Ashraya Scheme Framed by the State
Government-Question arose for decision in these matters-' Whether the State
Government could have framed Ashraya Scheme in exercise of its executive
powers under Articles 162 of the Constitution of India?'
Held : Ashraya Scheme framed by the State Government under its purported
exercise of executive powers under Article 162 of the Constitution was
beyond its competence and therefore quashed and declared unenforceable.
The Government lands can be transferred, alienated or granted only in
accordance with the rules including the Land Grant Rules framed under the
Karnataka Land Revenue Act . [Para 27]
Result : Appeal disposed of accordingly.
ORDER
G.C. Bharuka, J.
1 . Since the facts and issues raised are overlapping and inextricably interwoven,
therefore we have found advisable to dispose of both the I.A. filed in the contempt
proceedings as well as the writ petitions by a common judgment.
2. The petitioner claims to be a registered society consisting of the purported allottees
under "Ashraya Scheme" of house sites in Survey No. 14 of Ganakal Village of Kengeri
Hobli, Bangalore South Taluk. The petitioner-society had earlier filed Writ Petition No.
253430 of 1996 in the public interest domain for direction to the respondents-State of
Karnataka and its police wing to register criminal case against Sri Nagaraj @ Shivpuri
Swamy (respondent 5) as per their complaint dated 26-4-1996 (Annexure-J) for

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encroaching public lands and also to protect the members of the society against
dispossession of sites claimed to have been validly allotted to them. In the above writ
petition, the State Government took the stand that since it had come to their knowledge
that there had been widespread illegalities committed in distributing sites under the
"Ashraya Scheme", therefore, the matter was referred to the Corps of Detectives (for
short, COD ) and it was under the investigation. The writ petition was disposed of on
27-2-1998 with the following observations and directions:
"Keeping in view the facts and circumstances of the case, this petition can be
disposed of with the direction that the COD while investigating into the
circumstances referred to it, shall also take into consideration the allegations
made by the petitioner in Annexure-J and if prima facie satisfied regarding the
allegations made therein, register a case against the erring persons or officials.
If by this time the investigation has already been completed by the COD, the
agency is directed to independently investigate into the allegations made in
Annexure-J and take appropriate action in accordance with law. No person who
has been validly allotted any site shall be dispossessed without adopting due
process of law. The official respondents, as shown by them, are directed to take
action against respondent 5 in terms of the submissions made in their
statement of objections".
3 . Subsequently, present contempt proceedings in C.C.C. No. 1266 of 1998 were
initiated at the instance of the petitioner-society filed through its Secretary, Sri G.S.
Bommegowda making various allegations regarding non-compliance of the above
directions issued by this Court. These proceedings were ultimately dropped on 23-11-
1998 by the following order:
"In the objections filed on behalf of the respondent, it is submitted that the
Court directions have been complied with. Sri G.S. Bommegowda, Secretary of
Dr. B.R. Ambedkar Dalitha and Hindulida Alpa Sankyathara Gramabhivruddi
Sangha has filed a memo along with his affidavit submitting that as the Court
directions have been complied with, the complaint may be dismissed as not
pressed.
We order accordingly".
4 . Subsequently, an LA. was filed on 19-12-1998 by the petitioner-society, now
represented by another Secretary, Mr. Srinivasa, seeking to recall the above order dated
23-11-1998 alleging that the above contempt proceedings were dropped on the basis of
the memo filed by the erstwhile Secretary, Sri G.S. Bommegowda though by the said
date he had already been removed from his post. It is also alleged that the said Sri G.S.
Bommegowda was guilty of committing fraud in defending the interests of the allottees
by colluding with the respondents.
5 . Keeping in view the said allegations and particularly to ascertain as to whether the
orders passed by this Court in the above writ petition had been duly complied with, by
our order dated 27-5-1999, we required the State and its officers to file their reply.
Pursuant to this order the Superintendent of Police, Special Enquiries, COD, Bangalore,
filed his personal affidavit on 4-6-1999 disclosing therein that at their end the enquiry
had already been completed and COD report No. CRM.86.SC.COD.93 dated 16-3-1999
had already been submitted to the State Government. Para 4 of the affidavit made some
material revelations regarding allotments made under the "Ashraya Scheme". This para
reads as under:

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 "Further, I submit that the report submitted to the Government includes
allotment of sites relating to Sy. No. 14 of Ganakal Village of Kengeri Hobli,
Bangalore South Taluk, wherein 728 sites under "Ashraya Scheme" have been
formed and out of which, 628 sites were allotted to ineligible persons including
close relatives of the persons involved, who have been allotted sites vide
proceedings dated 18-5-1992 of the Task Force Committee formed under the
Ashraya Scheme".
A copy of the said report was also placed before us. According to the report, illegal and
unauthorised allotments were made because of criminal conspiracy entered into by 25
officials, the specific names of the officials whereof were also disclosed therein.
Keeping in view the said report we called upon the Secretary of the Revenue
Department to file his personal affidavit to enlighten this Court as to what action the
Government has taken so far with regard to these unauthorised and illegal distribution
of housing sites to ineligible persons as a follow up action to the COD report. He was
also directed to place on record as to what disciplinary action has been initiated or
sought to be initiated against the alleged erring officials to remedy the wrongs done by
them by granting hakku patras to ineligible persons. We also required the revenue
authorities to produce the original or the copies of the alleged hakku patras and the
relevant official records.
6 . Pursuant to the above order the Principal Secretary to the Government, Revenue
Department, filed his personal affidavit on 10-6-1999. In substance, in his affidavit, he
stated that as per the COD report submitted to the Government serious irregularities
and illegalities have been committed in distribution of housing sites pursuant to the
"Ashraya Scheme" but he preferred to pass the buck to the Housing Department by
taking a plea that the allotment of sites under the "Ashraya Scheme" comes under the
purview of the Department of Housing and as such appropriate actions for
cancellation/revocation/annulment of such allotments have to be done under the
authority of that department only. Accordingly, we directed the Secretary of the Housing
Department to come on record to State as to what action he intends to take for
remedying the wrongs done by unauthorised or illegal allotments. We also directed him
to secure and state before us the names of all the 728 persons who are alleged to have
secured the benefit of such unwarranted allotments. He was also required to place on
record the "Ashraya Scheme" and the orders passed by the committee constituted
therein.
7. The Secretary, Housing Department, filed his affidavit on 16-6-1999. In his affidavit
he admitted of receiving the investigation report of the COD. According to him, keeping
in view the said report and the other information received from the Special Deputy
Commissioner, Bangalore and the Secretaries of the Revenue and Rural Development
and Panchayatraj, decision had been taken to cancel all the above allotments by passing
Government Order No. DOH 41 HAS 99, dated 15-6-1999. A copy of this order has been
placed on record. The order is to the following effect:
"After careful examination of the above, Government hereby cancel all the
allotments of Ashraya Sites in Survey No. 14 of Ganakal Village, Uttarahalli
Hobli, Bangalore South Taluk made during 1991-92. Genuine allottees, if any,
may approach the Ashraya Committee for fresh allotment".
In his affidavit, the Secretary, Housing Department, made a further material disclosure
that neither any Government Department nor the District Administration is having the
list of the alleged 728 allottees nor the copies of all the related hakku patras are

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available, except in the case of 471 persons. This statement made by none else than the
head of the Housing Department of the Government eloquently reflects the State of
affairs which was continuing in the Revenue and Housing Department and possibly no
one is bothered in the Government about such illegal activities though it was required
to be viewed in a more serious manner in order to protect the public interest and
safeguard the public properties of which Government and its servants are the
constitutional custodians and trustees.
8 . Further, on being required by Sri Venkateshaiah, Tahsildar, Bangalore South Taluk,
under whose jurisdiction the lands in question situate, furnished us with a list
containing the names of 166 persons who according to him are in occupation of certain
portions of Survey No. 14 in question. This list according to him was prepared on the
basis of his personal verification of the plot on 25-5-1999. According to this list, out of
166 occupants 47 do not appear to have any legal right to enter upon the land. But so
far as remaining 119 persons are concerned they claim to have hakku patras in their
favour. But according to Mr. D'Sa, learned Government Advocate, even these 119
persons could not have occupied any portion of survey number in question because
apart from issuance of purported hakku patras no specific site was allotted in their
favour since those were never formed by the concerned authorities and that the process
was yet to be commenced and completed.
9 . Faced with the stand which was being taken on behalf of the respondent-State
Government, its functionaries and servants, we were shocked and surprised about the
manner in which the public properties were being dealt with though there were specific
statutory provisions dealing with allotment of housing sites by adopting rational,
intelligible and fair method. Further, we also found ourselves at loss to find that though
the Government authorities had specific powers to remove the illegal occupants and
encroachers from public lands still no action had been taken for removal thereof despite
specific provisions and empowerment contained in Section 39 of the Karnataka Land
Revenue Act, 1964 (in short, "the Revenue Act"). Accordingly, we called upon the
respondent-Tahsildar and Deputy Commissioner to place on record and state as to what
action had been taken in this regard.
10. On 23-6-1999 both Tahsildar as well as Special Deputy Commissioner filed their
personal affidavits, wherein they disclosed that proper notices have been issued against
illegal occupants of the lands in question for initiating proceedings in terms of Section
39 of the Revenue Act. So far as 5th respondent is concerned the Tahsildar in paragraph
4 of his affidavit disclosed that:
"With regard to the occupation of the respondent 5, in the appropriate
proceedings initiated against him, an order of eviction had already been passed
by the then Tahsildar on 15-9-1998. The respondent 5 had filed an appeal
before the concerned Assistant Commissioner against the said order of eviction.
That appeal has been dismissed on 31-5-1999. Proceedings for his eviction
have been initiated by means -of an order dated 4-6-1999 to vacate, along with
a notice dated 4-6-1999 also is issued to that effect. Further action will be
taken".
1 1 . Subsequently, on 19-7-1999 the respondent-Tahsildar filed a further affidavit
disclosing therein that action against fifth respondent who was found to have made
illegal constructions over Survey No. 14 in question has been evicted and possession of
the constructions made by him have been taken over by the Government. In paragraph
5 of the affidavit it was stated as under:

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 "With regard to evicting the 5th respondent, action has been completed and the
local Village Accountant is now in possession of the concerned land and
buildings. The 5th respondent is not in possession of the same. However, the
on going poojas in the prayer hall and the feeding of the devotees in the dining
halls, are going on under the control and supervision of the concerned Revenue
Authorities. More effective and legally proper working arrangements will be
evolved in due course".
11-A. So far as topography of Survey No. 14 is concerned, at our request Mr. D'Sa,
learned Government Advocate, made a personal visit to the area along with the
Tahsildar and other Revenue Officers. According to him this survey number comprises
of two hills and valleys well surrounded. In a portion of this hilly track some
unauthorised huts and sheet houses have been put up. On the top of one of the hills
there is an ancient small temple under a tree. Near this temple some buildings have
been constructed by respondent 5 which on statutory enquiry were found to have been
constructed illegally and as such possession thereof has already been taken. But
according to him so far as hutments are concerned the enquiries are still being
conducted by the Tahsildar and Deputy Commissioner to ascertain under what legal
authorities these hutments have been put up. He further stated that appropriate decision
is required to be taken at Governmental level by the Housing and Urban Development
Department for forming a layout with appropriate building sites and therefore de novo
process has to be started for granting the sites to the weaker sections of the society
under the "Ashraya Scheme".
12. In the meantime the petitioner-society has filed another Writ Petition No. 22875 of
1999 questioning the Government Order No. DOH 41 HAS 99, dated 15-6-1999,
operative portion whereof has already been reproduced above, by which all the hakku
patras in relation to Sy. No. 14 have been cancelled.
13. In order to examine the rival contentions raised at the Bar, we required the State
Government to produce the copies of the "Ashraya Scheme" and the statutory provisions
under which those schemes had been framed. On 12-8-1999 the Secretary, Housing
Department produced a Government order dated 4-8-1995. According to this order if
any Government land is found to be suitable for forming sites and distributing the same
among poorer persons then the Deputy Commissioner after taking a decision in this
regard, has to transfer the said land in favour of the Zilla Panchayat. According to this
order, as submitted by Mr. D'Sa, the learned Government Advocate, it is the Zilla
Panchayat which was required to take appropriate steps for forming the sites and
making the distribution thereof. On being asked as to under what provision of the Land
Revenue Act the said Government order was passed, he expressed his inability to give
any answer. He was also not in a position to enlighten us as to at what point of time
and under what orders the Deputy Commissioner concerned had taken a decision in
relation to Survey No. 14 in question transferring the lands to Zilla Panchayat and
thereafter who had taken the steps for distribution of sites. He sought for time to
ascertain the facts of appropriate legal provisions and place the same on record.
14. Ultimately, the above aspects were addressed to by the Housing Secretary in his
affidavit dated 26-8-1999 inter alia stating therein "I have now been informed by the
Deputy Commissioner, Bangalore Urban District that the related and relevant records
are not readily available in his office. Several irregularities have come to the knowledge
of the Government, the 15-6-1999 order had been passed cancelling all the allotments
for the purpose of re-appraisal and proper allotment of sites". He has further stated that
"Ashraya Scheme" was framed by the Government by exercising its executive power

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under the exclusive powers of the Government under Article 162 of the Constitution of
India. This policy decision was taken in furtherance of the directive principles contained
in Articles 38, 39, 41, 46 and 47 of the Constitution of India. The name "Ashraya" was
given to the scheme in 1991-92. To fulfill the said objective the Government order No.
HUD 535 KHB 91, dated 4-11-1991 came to be issued. A copy of this order has been
filed as Annexure-R1. Subsequently, several other Government orders came to be
passed covering different aspects regarding allotment of sites. It was further stated that
for implementing the aforesaid scheme provisions were made by means of appropriate
Government orders for identifying and thereafter securing the lands as follows:
(a) Allocating available Government land;
(b) Purchase of suitable land from private owners; and
(c) Acquisition of lands under relevant statutory acquisition laws.
14-A. It is the stand of the respondent-Government that the Karnataka Acquisition of
Lands for the Formation of House Sites Act, 1972, was enacted to provide for
compulsory acquisition where the required land could not be procured by the aforesaid
alternative means. The Secretary, Housing Department, has further stated that in 1991-
92 when no Zilla Panchayat was in existence in Bangalore Urban District the
implementation of "Ashraya Scheme" was left to the Deputy Commissioner of the
District, who functioned in association with the Block Development Officer and
assembly constituency level task force committees comprised of official and non-official
members to identify suitable land and deserving and eligible beneficiaries in each
assembly constituency. A copy of the guidelines issued to the Chairpersons of such
committees has been filed as Annexure-R2.
15. Keeping in view the aforesaid facts and circumstances and the rival stands taken at
the Bar, the following issues call for our consideration:
(i) Whether any case for revival of contempt proceedings is made out?
(ii) Whether the State Government could have framed any scheme like the
"Ashraya" in exercise of its executive powers under Article 162 of the
Constitution of India?
(iii) Whether the impugned Order No. DOH 41 HAS 99, dated 15-6-1999 suffers
from vice of unreasonableness and/or violation of principles of natural justice?
(iv) Whether under any existing statutory provisions the possession of the
occupants of the lands in question can be regularised?
RE: QUESTION NO. I
16. So far as the question of revival of contempt proceedings is concerned the only
ground taken in support thereof is that the respondents have not taken appropriate
steps for eviction of respondent 5 from encroached portion of Survey No. 14 in
question. In this connection, as already noticed above, we may only refer, to the
affidavit filed by the respondent-Tahsildar on 19-7-1999 wherein he has clearly stated
that respondent 5 has already been evicted from the illegally occupied portion of the
land and the constructions put up by him has been taken over by the Government. In
view of this factual aspect, we find no valid ground to revive the contempt proceedings.
This question is accordingly answered in negative.

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 BE: QUESTION NO. II
17. During the course of hearing of the present proceedings a question had cropped up
as to under what powers the State Government has framed the "Ashraya Scheme" for
allotment of Government lands amongst the deprived and poor sections of the society
through agencies created under the said scheme. The Secretary, Housing Department, in
his personal affidavit dated 26-8-1999 took a firm stand that the said scheme was
framed by exercising the executive powers under Article 162 of the Constitution of India
and not pursuant to any legislative delegation. Article 162 of the Constitution of India
provides that:
"Article 162. Subject to the provisions of this Constitution, the executive power
of a State shall extend to the matters with respect to which the Legislature of
the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and
Parliament have power to make laws, the executive power of the State shall be
subject to, and limited by, the executive power expressly conferred by this
Constitution or by any law made by Parliament upon the Union or authorities
thereof".
The above constitutional provision clearly confers executive power on the State in
relation to the subject-matters in respect of which the State legislature is competent to
legislate laws. The matters on which the State Legislature has exclusive domain to make
laws have been specified in List II (State List) of Seventh Schedule of the Constitution.
Entries 18 and 45 of this List are material for the present purposes. The said entries
read as under:
"18. Land, that is to say, right in or over land, land tenures including the
relation of landlord and tenant, and the collection of rents; transfer and
alienation of agricultural land; land improvement and agricultural loans;
colonization.
4 5 . Land revenue, including the assessment and collection of revenue, the
maintenance of land records, survey for revenue purposes and records of rights
and alienation of revenues".
18. In respect of the matters covered by the above entries, the State Legislature has
already enacted "Karnataka Land Revenue Act, 1964" ("the Act", for short). Section 67
of the Act inter alia declares that all lands which are not the property of others belongs
to the Government. So far as disposal and grant of Government lands are concerned
Sections 69 and 71 of the Act make specific provisions in this regard. These sections
read as under:
"69. Disposal of lands or other property belonging to State Government under
Section 67.--Subject to such rules as may be made in this behalf, the State
Government, the Divisional Commissioner, the Deputy Commissioner, the
Assistant Commissioner in-charge of a Taluk or Taluks and the Tahsildar, may
dispose of land or other property belonging to the State Government under
Section 67 or otherwise, for purposes of agriculture, industry or any public
utility and subject to the provisions of Chapter XII for the construction of
buildings.
71. Lands may be assigned for special purposes and when assigned, shall not

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 be otherwise used without sanction of the Deputy Commissioner.--Subject to
the general orders of the State Government, Survey Officers, whilst survey
operations are proceeding under this Act, and at any other time, the Deputy
Commissioner, may set apart lands, which are the property of the State
Government and not in the lawful occupation of any person or aggregate of
persons in any village or portions of a village, for free pasturage for the village
cattle, for forest reserves or for any other public purposes; and lands assigned
specially for any such purpose shall not be otherwise used without the sanction
of the Deputy Commissioner; and in the disposal of lands under Section 69 due
regard shall be had to all such special assignments".
19. Both the sections open with the expression "subject to such rules as may be made
in this behalf. Section 197 of the Act empowers the State Government to make the
rules. Sub-section (1) and clauses (i) and (k) of sub-section (2) of Section 197 requires
to be noticed here. These provisions read as under:
"197. Power of State Government to make rules.--(1) The State Government
may, by notification and after previous publication, make rules, not inconsistent
with the provisions of this Act; to carry out the purposes and objects thereof
and for the guidance of all persons matters connected with the enforcement of
this Act or in cases not expressly provided for thereunder.
(2) In particular and without prejudice to the generality of the foregoing power,
such rules may be made.-
(a) to (h).. .
(i) regulating the disposal under Section 69 of land and other property vesting
in the State Government;
(i)...
(k) prescribing the terms and conditions on which and the period for which
unoccupied unalienated land may be granted";
20. Section 198 of the Act provides for laying of the rules before the State Legislature
in order to retain its control over the State Government in relation to delegated
legislative power. This section is to the following effect:
"198. Laying of rules and regulations and notifications before the State
Legislature.--Every rule made under this Act, every regulation made under
Section 48, and every notification issued under Section 201, shall be laid as
soon as may be after it is made before each House of the State Legislature
while it is in session for a total period of thirty days which may be comprised in
one session or in two or more successive sessions and if, before the expiry of
the session in which it is so laid or the sessions immediately following, both
Houses agree in making any modification in the rule, regulation or notification
or both Houses agree that the rule, regulation or notification should not be
made, the rule, regulation or notification shall thereafter have effect only in
such modified form or be of no effect, as the case may be; so however, that
any such modification or annulment shall be without prejudice to the validity of
anything previously done under such rule, regulation or notification".
21. In exercise of the above delegated powers the State Government has framed the

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Karnataka Land Grant Rules, 1969 (in short, "the Rules") which are very much in force.
Under these rules elaborate provisions have been made for preparation and publication
of list of lands available for disposal (Rule 3), persons eligible for grant of land for
agricultural purposes (Rule 4), authorities who can grant the lands for agricultural
purposes (Rule 7). Rule 18 has been specifically incorporated for grant of Government
lands as building sites. Under this rule the power to grant the building sites has been
conferred on specific officers. The material part of this rule reads as under:
"18. Grant of building sites.--(1) The Deputy Commissioner may grant building
sites after reserving 18 per cent of the sites available for the members of the
Scheduled Castes and Scheduled Tribes where necessary subject to all or any of
the following conditions, on payment of such price as he may fix which shall
not except in specially deserving cases be less than the market value of such
site:
Proviso....
(2) Where a building site cannot with advantage be granted as an independent
site, the adjoining holder, if he so desires, may be granted such site at such
value as the Deputy Commissioner may determine.
(3) Notwithstanding anything contained in these rules, the Deputy
Commissioner, may grant sites on payment of upset price fixed by him for any
educational or charitable institution or to a public authority and free of charge
to persons belonging to Scheduled Castes or Scheduled Tribes or to a site less
person of the village whose annual income including that of his family does not
exceed Rupees Eight Thousand and Four hundred.
(4) When a building site is reserved for a specific purpose, the Deputy
Commissioner may lease such site temporarily, for a period not exceeding
twelve months, subject to recovery of rent to be fixed by him having regard to
the circumstances and the purpose in each case.
(5) A building site to be granted under this rule shall not exceed Five Ares.
(6) Notwithstanding anything stated in this rule or in the Government
Notification No. RD 26 GNA 69, dated 21st June, 1969, it shall be competent for
the Tahsildar of a Taluk to grant building sites not exceeding Two Ares within
the limits of any Mandal Panchayat in the taluk and not exceeding One Ares in
Mandal Panchayat limits, to poor residents without the Panchayat limits who do
not own any house or a building site:
Provided that in such areas as the State Government may, by notification
specify, the officers specified in such notification shall be and the Tahsildar of
the Taluks shall not be competent within their respective jurisdiction to grant
building sites to the extent and subject to the conditions specified in this sub-
rule".
22. The above statutory provisions clearly establish that the legislative field relating to
transfer and alienation of Government lands is entirely covered by the provisions of the
Act and the rules framed thereunder. The question is whether still State Government in
purported exercise of executive powers can draw scheme for allotment of building sites
carved out of the Government lands in derogation of statutory provisions.

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23. In the case of Samsher Singh v State of Punjab and Another, it has been held by
the Supreme Court that the executive has the primary responsibility for the formulation
of the Governmental policy and its transmission into law. The condition precedent to the
exercise of its responsibility is that the executive retains the confidence of the
legislative branch of the State. The initiation of legislation, the maintenance of order,
the promotion of social and economic welfare, the direction of foreign policy, the
carrying on the general administration of the State are of the executive functions. The
executive is to act subject to the control of the legislature.
2 4 . In the case of State of Andhra Pradesh and Another v Lavu Narendra Nath and
Others, the Supreme Court has further held that "the Executive have a power to make a
regulation which would have the effect of a law so long as it does not contravene any
legislation already covering the field. .. .".
25. The above judgment of the Supreme Court has been followed with approval in the
case of State of Madhya Pradesh and Another v Kumari Nivedita Jain and Others.
Following the said dictum of the Apex Court this Court as well in the case of A Citizen of
India v State of Karnataka and Others, had held that the State Government could not
have exercised its executive powers in relation to the aspects of medical education
which are covered by specific legislations. The judgment of this Court has been affirmed
by the Supreme Court in the case of Medical Council of India v State of Karnataka and
Others.
2 6 . As held by a Constitution Bench of the Supreme Court in the case of Sub-
Committee of Judicial Accountability v Union of India and Others, it was also to be
always borne in mind that.-
". . . in this country and unlike in England, there is a written Constitution which
constitutes the fundamental and in that sense a "higher law" and acts as a
limitation upon the legislature and other organs of the State as grantees under
the Constitution, the usual incidents of parliamentary sovereignty do not obtain
and the concept is one of 'limited Government'. Judicial review is, indeed, an
incident of and flows from this concept of the fundamental and the higher law
being the touchstone of the limits of the powers of the various organs of the
State which derive power and authority under Constitution and that the judicial
wing is the interpreter of the Constitution. . .".
27. In view of the law declared by the Supreme Court which very much binds the State
Government as well, it is held that "Ashraya Scheme" framed by the State Government
under its purported exercise of executive powers under Article 162 of the Constitution
was beyond its competence and therefore it is quashed and declared to be
unenforceable. It is further declared that the Government lands can be transferred,
alienated or granted only in accordance with the rules including the Land Grant Rules
framed under the Karnataka Land Revenue Act and in no other manner.
RE: QUESTION NOS. III AND IV
28. In view of the above declaration it is not necessary to examine the validity of the
Government Order No. DOH 41 HAS 99, dated 15-6-1999 for the simple reason that in
law, apart from the facts as found above, the very grant made under the alleged
"Ashraya Scheme" was ab initio void. Anyhow it is clarified that if by following the
procedure laid down under the Land Grant Rules, the competent authorities find that the
persons in occupation of Survey No. 14 in question were eligible for grant of housing
sites then the same be regularised or else appropriate steps should be taken for their

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eviction in accordance with law.
2 9 . We also feel that the decision making authorities in the Government should be
made fully aware about the constitutional limits of the powers which they can exercise
because decisions taken by the executive in excess of the constitutional limits create
much inconvenience to the public at large and many times leads to arbitrary and mala
fide exercise as has surfaced in the present case. We expect that the Law Secretary of
the State will minutely examine the declarations made by the Supreme Court which we
have noticed hereinbefore and acquaint executive authorities, both political and
administrative, so that even acting bona fide they may not find themselves guilty of
acting in excess of the constitutional powers conferred upon them. We also strongly feel
that if the respective organs of the State do not respect the limits of their respective
constitutional powers, then the next millennium may warrant some more stringent
measures to enforce constitutional discipline, in order to preserve the democratic
norms.
30. The present matters are accordingly disposed of but without any order as to costs.

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