Karnataka High Court
Dr C Narasingh Bhan Singh vs The Mysore Urban Development Authority on 26 April, 2019
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF APRIL 2019
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
WRIT PETITION NOs.1835/2012
& 3733/2012( LA-UDA)
BETWEEN
1. DR C NARASINGH BHAN SINGH
S/O CHANDRA BHAN SINGH
AGED ABOUT 83 YEARS,
R/A NO.558,
CHALUVAMBA AGRAHARA,
K.R.MOHALLA,
MYSORE
SINCE DEAD BY
LEGAL REPRESENTATIVES
1(a) DR.N.CHANDRA BHAN SINGH
S/O LATE DR.C.NARASINGH BHAN SINGH
AGED ABOUT 48 YEARS
1(b) DR.N.CHANDRANATH SINGH
S/O LATE DR.C.NARASINGH BHAN SINGH
AGED ABOUT 38 YEARS
BOTH ARE R/O NO.558, CHALUVAMBA
AGRAHARA, K.R.MOHALLA,
MYSORE
2. SMT N SUNITHA BAI
W/O NARASINGH BHAN SINGH
AGED ABOUT YEARS,
R/A NO.558,
-2-
CHALUVAMBA AGRAHARA,
K.R.MOHALLA,
MYSORE ... PETITIONERS
(BY SRI G BALAKRISHNA SHASTRY, ADVOCATE)
AND
1. THE MYSORE URBAN DEVELOPMENT
AUTHORITY, MYSORE
REP. BY ITS COMMISSIONER
2. THE SPECIAL LAND ACQUISITION OFFICER
MYSORE URBAN DEVELOPMENT AUTHORITY
MYSORE
3. THE DEPUTY COMMISSIONER
MYSORE
4. TAHASHILDAR
MYSORE TALUK & DISTRICT
5. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY TO THE URBAN
AND MUNICIPAL DEPARTMENT
M.S.BUILDING,
DR.AMBEDKAR ROAD,
BANGALORE-560001 ... RESPONDENTS
(BY SRI DINESH RAO, ADDL. ADVOCATE GENERAL A/W
SRI VENKATESH DODDERI, AGA FOR R3 TO R5
SRI T.P.VIVEKANANDA, ADVOCATE FOR R1 & R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE i) ACQUISITION NOTIFICATION PUBLISHED BY
CITY IMPROVEMENT TRUST BOARD MYSORE, NOTIFICATION
DATED 29.07.1974 PRODUCED AT ANNEXURE C,
NOTIFICATION DATED 1.3.1982 IN RESPECT OF SY.NO.212
PRODUCED AT ANNEXURE-D, NOTIFICATION DATED
-3-
10.03.1982 PRODUCED AT ANNEXURE-E, NOTIFICATION
DATED 23.12.1987 PRODUCED AT ANNEXURE-F, UNDER
SECTION 16(1) OF THE CITB ACT 1903 IN RESPECT OF THE
SY.NO.225 MEASURING 35 GUNTAS OF
MARAGOWDANAHALLI VILLAGE, TALUK MYSORE HAVE
LAPSED AND ARE NULL AND VOID AND UNENFORCEABLE
AND ETC.
THESE WRIT PETITIONS COMING ON FOR DICTATING
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
These writ petitions were initially filed by one Dr.C.Narasingh Bhan Singh and his wife Smt.N.Sunitha Bai seeking following reliefs:
i) for declaration with reference to land bearing Sy.No.14 measuring 4 acres 17 guntas in Maragowdanahalli village, Kasaba Hobli, Mysuru Taluk and District, which are at Annexures-A C to F.
ii) for writ of certiorari to quash MR.No.4/2010-11 T.No.7 dated 23.4.2011 issued by the Tahsildar, Mysuru Taluk which is at Annexure-S, to quash preliminary notification dated 4.3.1974 bearing No.PLA 7/73-74 issued by the Chairman of City Improvement Trust Board, Mysuru, at Annexure-B. -4-
ii) for an order of restraint to respondents 1 to 5 from disturbing lawful peaceful possession or interference with the possession of the petitioners in respect of Sy.No.212 measuring to an extent of 35 guntas and Sy.No.14/1 measuring 2 acres 35 guntas and Sy.No.14/2 measuring 1 acre 22 guntas of Maragowdanahalli village.
2. Subsequent to filing of these writ petitions 1st petitioner Dr.C.Narasingh Bhan Singh died and in his place his two sons, namely Dr.N.Chandra Bhan Singh and N.Chandranath Singh have come on record as petitioners 1(a) and 1(b).
3. Brief facts leading to these writ petitions are as under:
Original 1st petitioner and his two sons who subsequently came on record are all Doctors by profession. The original 1st petitioner and petitioner 1(b) are Doctors in Indian Ayurvedic Branch of Medicine and petitioner 1(a) is an MBBS Doctor. The original 1st petitioner, owner of land bearing Sy.No.14 measuring to an extent of 4 acres 24 -5- guntas and also owner of land bearing Sy.No.212 measuring to an extent of 35 guntas, which are continuously situated in Maragowdanahalli village, Kasaba Hobli, Mysuru Taluk and District, has set up an Ayurvedic Hospital in some portion of the aforesaid lands and remaining extent was used for cultivating and developing the medicinal plants to be used in the Ayurvedic Hospital.
4. When matter stood thus, the then City Improvement Trust Board (CITB for short), which is subsequently referred to as Mysore Urban Development Authority (MUDA for short), 1st respondent herein issued preliminary notification under Section 16(1) of the City of Mysore Improvement Act, 1903, to acquire an extent of 4 acres 17 guntas in Sy.No.14, which is subject No.5 at Annexure-A, dated 9.11.1964/gazetted on 19.11.1964 in No.PLA.4/1964-65. Subsequently, final notification was also issued to very same extent of land by CITB in No.HQA 3 MNJ 68, dated 11.4.1968 under Section 18(1) and (2) of the City -6- of Mysore Improvement Act, 1903, which is at Annexure-R1 to these writ petitions.
5. Thereafter, it is seen that considering the applications of Pandith P.H.Chandra Bhan Singh dated 12.2.1968 and 11.3.1968 to exclude from acquisition an extent of 0.04 guntas in Sy.No.13 and 4 acres 17 guntas in Sy.No.14 of Maragowdanahalli village, the CITB in its proceedings held on 22.5.1968 vide Subject No.420 decided to give up its notification to an extent of 2 acres 35 guntas in Sy.No.14. In this regard the resolution of CITB dated 24.5.1968 is at Annexure-R4 and the same was communicated to Sri.P.H.Chandra Bhan Singh on 20.6.1968 vide Annexure-R5 with a condition to handover the remaining land which is acquired for formation of layout to the CITB. Subsequently an award was also passed on 5.3.1969 and the same was communicated vide award notice dated 17.4.1969, which is at Annexure-R6.
6. After passing of the award in respect of 1 acre 22 guntas of land in Sy.No.14, again a preliminary notification -7- was issued by the then CITB on 4.3.1974 bearing No.PLA.7/73-74 vide Annexure-B indicating its intention to acquire an extent of 2 acres 35 guntas of land in Sy.No.14/1 of Maragowdanahalli village, Kasaba Hobli, Mysuru Taluk and District (the extent which was excluded in the earlier notification) and an extent of 1 acre 22 guntas in Sy.No.14/2 of the very same village (the extent in respect of which award was passed), but the same was not pursued further. Subsequently, another notification was issued on 29.7.1974 bearing No.PLA.8/73-74 with reference to Sy.No.212 measuring to an extent of 35 guntas of the very same village and even this notification was also not pursued. However, again preliminary notifications were issued in No.5/1981-82, dated 1.3.1982, 10.3.1982 and in No.1/87-88 dated 23.12.1987 in respect of Sy.No.212 and with reference to these notifications also, no further proceedings were initiated to take the same to its logical end in issuing final notifications, passing award and taking possession. Hence, in this background the present writ petitions are filed. -8-
7. In the meanwhile, it is stated that the petitioners have also approached the authorities by making representations to give up acquisition with reference to land measuring to an extent of 1 acre 22 guntas in Sy.No.14, on which MUDA is already said to have formed a layout, with an intention to allot the same to General Public. It is specifically stated that this 1 acre 22 guntas of land is on the left side of Raja Kaluve which is dividing original Sy.No.14 into two portions, which is retained by MUDA. Initially when it decided to give up an extent of 2 acres 35 guntas pursuant to decision taken in its meeting on 22.5.1968 at subject No.420, passed resolution on 24.5.1968 vide Annexure-R4 and communicated to petitioners' ancestor on 20.6.1968 vide Annexure-R5.
8. In these writ petitions, after service of notice 1st respondent - MUDA came on record and brought to the notice of this Court that Preliminary Notifications issued subsequently at Annexures-B to F are issued without noticing the earlier notification at Annexure-A, where the -9- acquisition has reached finality insofar as 1 acre 22 guntas of land in Sy.No.14 is concerned and awarding compensation to the land owner. Hence, by quashing the subsequent notifications, these writ petitions may be disposed of.
9. In this background, these writ petitions are pursued by the parties. Though it was initially for various reliefs, now it is confined only with reference to portion of Sy.No.14 measuring to an extent of 1 acre 22 guntas (in award notice it is stated as 1 acre 20 guntas), which was subject matter of acquisition pursuant to the resolution passed vide subject No.420 in the meeting dated 22.5.1968 by the then CITB and Sy.No.13 measuring 4 guntas and sarkari Oni situated between Sy.No.14 and Sy.No.212.
10. In the course of arguments, learned counsel for the petitioners brought to the notice of this Court that the petitioners are doing yeoman service to the City of Mysuru; they are benevolent land owners who have donated 30 acres of land in the year 1965 to the then CITB for locating
- 10 -
Jawaharalal Navodaya Vidyala, which is presently being run under the Chairmanship of the Deputy Commissioner of Mysuru; they have never encroached into any portion of the Government land, though a portion of kharab land is lying to the east of their property bearing Sy.No.14/1 and to the left of their property bearing Sy.No.212, the same is allowed to be kept intact. The learned counsel would further submit that, earlier the petitioners were owners of total extent of 35 guntas of land in Sy.No.212, out of which some portion is utilized by the Government for formation of new road which is proceeding from Mysuru to KRS, for which no compensation is awarded and they have not claimed any compensation till today; that in the remaining land, which is now the contesting land, is the land where they are cultivating the medicinal plants to be used for the Ayurvedic Hospital which is run by them. Therefore, if this entire land is given to the petitioners, the same will be utilized only for public purpose and not for any other commercial activity. Therefore the same should be considered in a liberal view.
- 11 -
11. After hearing the arguments on behalf of the State as well as MUDA and the petitioners, what is seen by this Court is, the original 1st petitioner, a philanthropist and also a benevolent landlord, who had set up the Ayurvedic Hospital in a portion of his property is seeking to retain the entire extent of land measuring to an extent of 4 acres 17 guntas in original Sy.No.14 for utilizing the same to develop ayurvdic plants garden to be utilized in the Ayurvedic Hospital, which is situated in a portion of Sy.No.14 which portion is already given up by MUDA in his favour in a decision taken by the then CITB in its meeting on 22.5.1968.
12. In the course of arguments, learned counsel for the petitioners submitted to this Court that in the present situation if the claim for de-notification of 1 acre 22 guntas which is situated on the left side or western side of nala is given up by the landlord in favour of MUDA to be utilized for its project, the MUDA in turn may be directed to give up an extent of 4 guntas of land belonging to it in Sy.No.13 situated on the north eastern corner of Sy.No.14, which is a
- 12 -
small strip of land with roughly 20 ft. width on its northern side and 0 ft., width on southern side running to a distance of 200 to 300 ft., not being of any use to MUDA as stated by its Commissioner when he was present before this Court may be considered for giving up by MUDA. At the same time, the learned counsel would also submit that if the vacant space referred to as sarkari oni, which was earlier a old road lying between petitioners' lands bearing Sy.No.14 on its eastern side and on the western side of Sy.No.212 measuring to an extent of 35 guntas and out of which some extent is now utilized by the Government for formation of new KRS Road is given to the petitioners, they would not claim compensation for 1 acre 22 guntas in Sy.No.14 and they would also not fight for giving up the notification with reference to acquisition of 1 acre 22 guntas of land which is now referred to as portion of Sy.No.14 situated on western side of halla/nala.
13. To understand this prayer of the petitioner, one has to look into Annexure-A4 - sketch, which is produced by
- 13 -
the petitioners, where halla is shown in red colour and on its right i.e, on its eastern side is portion of Sy.No.14, which is admittedly in the possession of petitioners and on the left side or western side of the halla is portion of Sy.No.14 measuring 1 acre 22 guntas, which is in yellow colour. Further, when the said sketch is keenly observed, a small strip of land referred to as Sy.No.13 measuring 4 guntas which is roughly about 20 ft width on its northern side and 0 ft., width on southern side running to a distance of 200 to 300 ft., shown in orange colour is lying on the eastern side of Sy.No.14 and to the east of that small strip, sarkari Oni is lying which is in green colour, the new KRS road is in blue colour and in between Sarkari Oni and new KRS Road formed is on the land belonging to the petitioners is seen in uncolored portion which is Sy.No.212.
14. Now the bone of contention by the petitioners is that if the 1st respondent and other respondents together give up Sy.No.13 measuring 4 guntas which exclusively belongs to 1st respondent - MUDA and sarkari Oni which is
- 14 -
lying between Sy.Nos.13, 14 on its left side and Sy.No.212 on its right side in lieu of the compensation to which the petitioners are entitled for acquisition of a portion of Sy.No.212 acquired for formation of new KRS Road, the petitioners would not pursue these writ petitions. To buttress this argument, the learned counsel for petitioners would state that sarkari Oni on its northern side has no exit and it hits the wall of the property belonging to Gokulam Theatre, which is situated on northern side of Sy.Nos.13, 14 and part of Sy.No.212. Therefore, the sarkari Oni which has entry through a small lane from new KRS road would come to a dead end and it is of no use to anybody and same is left open and the said oni is situated in between the property of petitioners in Sy.Nos.14 and 212 of same village. Therefore, if the said extent is given to them they would give up claim for larger extent of land measuring to an extent of 1 acre 22 guntas in Sy.No.14.
15. In this behalf, a proposal was placed before the Deputy Commissioner of Mysuru, Mr.Abhiram G.Shankar on
- 15 -
22.4.2019 when he was present before the Court along with the Commissioner for MUDA Sri.P.S.Kantharaju. On the said day, P.S.Kantharaju fairly conceded that land measuring 4 guntas in Sy.No.13 which is situated to the east of Sy.No.14 cannot be used by MUDA and giving up that land in exchange to some extent in some other portion of petitioners' land could be placed before the Board of Directors of MUDA and appropriate decision could be taken subject to the approval by the Board and Government. When it comes to Deputy Commissioner, he fairly conceded that he does not have competence to take independent decision unless the same is approved by the Government.
16. In any event, when the entire matter was heard in the presence of these two responsible officers and in the presence of learned Additional Advocate General Sri.Dinesh Rao with the assistance of learned Additional Government Advocate Sri.Venkatesh Dodderi appearing for the Government and Sri.Balakrishna Shastri, learned counsel for the petitioners as well as Sri.Vivekananda, learned
- 16 -
counsel for 1st respondent - MUDA, the learned Additional Advocate General also felt that this is the matter where the parties should not agitate on an unsolvable issue and the same should be decided in a manner where quietus could be given to the litigation.
17. The learned Additional Advocate General after going through the entire material on record, more particularly the location of sarkari Oni, which is seen in green colour in the sketch, would submit that it is difficult for the Deputy Commissioner to take appropriate decision independently without following due procedure contemplated under the Land Revenue Act, 1964. However, he would submit that, it would be appropriate and necessary to meet the ends of justice that this Court in exercises of its powers under Article 226 of the Constitution Court may consider issuance of certain directions to the Government and the same would be implemented to the extent it is permissible under law.
- 17 -
18. In this background, after giving careful consideration to the fact situation and also the submissions of learned counsel for the petitioners as well as learned counsel for MUDA and learned Additional Advocate General, these writ petitions are disposed of with the following directions:
(i) In the present set of facts, the acquisition which is already made by MUDA through its erstwhile Board, namely City Improvement Trust Board, Mysore, for acquisition of an extent of 1 acre 22 guntas pursuant to meeting held on 22.5.1968 vide subject No.420 by giving up 2 acres 35 guntas of land in Sy.No.14 in favour of the petitioners cannot be disturbed notwithstanding the further notifications issued for acquisition of very same land.
Therefore, all other notifications which are issued subsequently to reacquire the same are hereby quashed.
(ii) While doing so, this Court is of the considered opinion that the remaining portion of 1 acre 22 guntas in
- 18 -
Sy.No.14 which is situated on the western side of sarkari halla/nala cannot be given up from acquisition.
(iii) Therefore, in the fact situation, considering the fact that the petitioners are belonging to the family of benevolent land holders, who have already donated an extent of 30 acres to Government free of cost in the year 1965 and that too they are utilizing the remaining land in Sy.No.14 for the purpose of setting up of the Ayurvedic Hospital for the benefit of the general public of Mysuru City, granting them the marginal land situated adjacent to their property cannot either be against the interest of the State or would be yielding it to the petitioners in any other manner to their benefit either in an illegal or improper manner.
(iv) In that view of the matter, this Court would direct the State Government to consider changing the abandoned and disused sarkari oni situated on the eastern side of land bearing Sy.No.14 and Sy.No.13 and western side of Sy.No.212 into Urban land usable for other purposes and thereafter to transfer the same to MUDA by passing
- 19 -
appropriate orders in that behalf and subsequently MUDA to pass appropriate orders to allot that portion along with 4 guntas of land in Sy.No.13 in favour of petitioners in lieu of compensation payable for acquisition of 1 acre 22 guntas in Sy.No.14 as well as portion of land utilized in Sy.No.212 for formation of new KRS Road. After transferring of sarkari Oni to MUDA, the same shall be transferred to the petitioners along with Sy.No.13, which is marginal land measuring to an extent of 4 guntas, which is even otherwise not useful to MUDA as stated by its Commissioner himself before this Court on 22.4.2019.
(v) This Court would further direct all the stakeholders, namely MUDA as well as Deputy Commissioner of Mysuru and also the Revenue Secretary, State of Karnataka to take appropriate decision in this behalf within six months from the date of receipt of a copy of this order.
Sd/-
JUDGE nd/-