Karnataka High Court
M. Madappa vs The State Of Karnataka on 2 August, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 35856 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 35856 OF 2016 (LA-UDA)
BETWEEN:
1. M. MADAPPA
S/O LATE MADEGOWDA
AGED ABOUT 48 YEARS
R/AT NO.2378/D6, CH-25/D6
(SY.NO.7/1B)
NEW KANTHARAJA URS ROAD
JAYANAGARA, MYSORE-570023
2. THAYAMMA
W/O LATE NINGAPPA
AGED ABOUT 55 YEARS
RA/T NO.2378/D1, CH-25/D1
(SY.NO.7/AB)
NEW KANTHARAJA URS ROAD
JAYANAGARA, MYSORE-570023
3. M. SHAMBEGOWDA
Digitally signed by
POORNIMA S/O LATE MADEGOWDA
SHIVANNA
AGED ABOUT 65 YEARS
Location: HIGH COURT
OF KARNATAKA R/AT NO.2378/D2, CH-25/D2
(SY.NO.7/1B)
NEW KANTHARAJA URS ROAD
JAYANAGARA, MYSORE-570023
4. S. PRATHIBHA
D/O LATE M. SHIVANNA
AGED ABOUT 28 YEARS
R/AT NO.2378/D6, CH-25/D6
(SY.NO.7/1B)
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WP No. 35856 of 2016
NEW KANTHARAJA URS ROAD
JAYANAGARA, MYSORE-570023
5. M. PUTTAMADHU
S/O LATE MADEGOWDA
AGED ABOUT 61 YEARS
R/AT NO.2378/D6, CH-25/D6
(SY.NO.7/1B)
NEW KANTHARAJA URS ROAD
JAYANAGARA, MYSORE-570023
6. M. BHANDANNA
S/O LATE MADEGOWDA
AGED ABOUT 52 YEARS
R/AT NO.2378/D6, CH-25/D6
(SY.NO.7/1B)
NEW KANTHARAJA URS ROAD
JAYANAGARA, MYSORE-570023
7. M. CHOWDAPPA
S/O LATE MADEGOWDA
AGED ABOUT 56 YEARS
R/AT NO.2378/D6, CH-25/D6
(SY.NO.7/1B)
NEW KANTHARAJA URS ROAD
JAYANAGARA, MYSORE-570023
...PETITIONERS
(BY SRI. SRINIVAS.V, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY TO
URBAN DEVELOPMENT DEPARTMENT
VIKAS SOUDHA, BANGALORE-560001
2. THE COMMISSIONER
MYSORE URBAN DEVELOPMENT AUTHORITY
J.L.B.ROAD, MYSORE-570005
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WP No. 35856 of 2016
3. THE SPECIAL LAND ACQUISITION OFFICER
MYSORE URBAN DEVELOPMENT AUTHORITY
J.L.B.ROAD, MYSORE-570005
4. SRI. ADHI CHUNCHANAGIRI SHIKSHANA TRUST
ADI CHUNCHANAGIRI KSHETRA
NAGAMANGALA TALUK
REP. BY ITS PRESIDENT
SRI. SRI. SRI. NIRMALANDA NATHA
SWAMIJIGALUE
... RESPONDENTS
(BY SRI. NITHYANANDA.K.R, AGA FOR R1;
SRI. H.C. SHIVARAMU, ADVOCATE FOR R2 & R3:
SRI. K.N.PUTTEGOWDA, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT, THE
SCHEME BY NAME "FORMATION OF SITES CONNECTING JAYNAGAR,
SARASWATHIPURAM AND THONACHIKOPPAL MYSORE" IN
NOTIFICATION BEARING NO.HMA137MNJ68 DATED 25.03.1969
ISSUED BY RESPONDENTS VIDE ANNEXURE-D IS LAPSED IN VIEW
OF SECTION 27 OF THE KARNATAKA URBAN DEVELOPMENT
AUTHORITY ACT 1987 OR UNDER SECTION 24(2) OF THE RIGHT TO
FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT ACT 2013 WITH RESPECT TO
SCHEDULE PROPERTIES AND CONSEQUENTLY ISSUE ANY
APPROPRIATE WRIT OR DIRECTION FORBEARING THE MUDA FROM
MEDDLING WITH PROPERTY RIGHTS OF THESE PETITIONERS AND
CONSEQUENTLY AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 11.07.2022, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
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a. Declare that, the scheme by name "formation of sites connecting Jaynagar, Saraswathipuram and Thonachikoppal Mysore" in notification bearing No.HMA137MNJ68 dated 25.03.1969 issued by respondents vide ANNEXURE-D is lapsed in view of Section 27 of the Karnataka Urban Development Authority Act 1987 or under section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 with respect to schedule properties and consequently issue any appropriate writ or direction forbearing the MUDA from meddling with property rights of these petitioners and consequently.
b. Issue a writ or order in the nature of writ of certiorari and quash the preliminary notification bearing No.LA 4/63-64 dated 19.12.1963 initiated by Respondent No.2 at Annexure-C in so far as it relates to the petitioners property in question herein are concerned and c. Issue a writ or order in the nature of the writ of certiorari and quash the final notification bearing No.HMA137MNJ68 dated 25.03.1969 issued by 2nd respondent vide Annexure-D in so far as it relates to the petitioners property in question herein are concerned; and d. Grant any other relief/s that this Hon'ble Court deems fit, under the facts and circumstances of the cases, in the interest of justice and equity.
2. The petitioners claim to be absolute owners, in possession and enjoyment of various properties situated at New Kantharaj Urs Road, Chamaraja Mohalla, Jayanagara, K.G.Koppal, Mysore. The said properties are situated in Sy.No7/1B measuring about 11 guntas at Malalavadi village, which is now -5- WP No. 35856 of 2016 known as Jayanagar in Mysore. The petitioners state that 2.1. the khata in respect of the aforesaid properties stand in the name of the petitioners. 2.2. In the year 1949, a publication was made by the Assistant Commissioner, Mysore on 11.05.1949 seeking to acquire land in Sy.No.7/1 to 7/6.
2.3. There being certain opposition to the acquisition, objections were filed requesting the government to drop the acquisition proceedings, as such the acquisition did not go forward.
2.4. Subsequently, the City Improvement Trust Board, Mysore (for short 'CITB') which is now the Mysore Urban Development Authority(for short 'MUDA') had issued a preliminary notification on 19.12.1963 proposing to acquire -6- WP No. 35856 of 2016 the said land for the purpose of formation of sites connecting Jayanagar, Saraswathipuram and Thonachikoppal.
2.5. The final notification came to be issued on 25.03.1969 and award came to be passed on 03.10.1975.
2.6. The award notice which was issued was served on one Lingamma and Puttathayamma, who has nothing to do with the land in question. 2.7. The possession of the property was not taken by the State and continued with the predecessors of the petitioners and now continues with the petitioners. 2.8. It is further contended that though award was passed, compensation has neither been paid to the petitioners nor deposited before the Civil Court, in respect thereof an endorsement had been issued by respondent No.2 categorically -7- WP No. 35856 of 2016 stating that no amount was deposited in any court.
2.9. Subsequent thereto, the mother of the petitioners made a representation to the Tahsildar of Mysore, seeking permission to put up residential houses in Sy.No.7/1B, the Tahsildar issued an endorsement directing to pay Rs.450/- as conversion charges and Rs.85/- as bifurcation charges, which was paid on 28.02.1981 by the mother of the petitioners. Thereafter, licence was obtained from the Grama panchayat.
2.10. It is contended that subsequently respondent No.4 and its officials started to dig a trench and on enquiry, the petitioners came to know that respondent No.2 had executed a lease deed in favour of respondent No.4 which came to be challenged before this Court in -8- WP No. 35856 of 2016 W.P.No.20875/2011 and other connected matters.
2.11. The writ petitions came to be dismissed by this Court vide order 01.10.2012 and the contention of the petitioners that petitioners were in adverse possession of the property as against Karnataka Urban Development Authority (for short 'KUDA') was rejected since there was no findings by any Civil Court.
2.12. It is contended that respondent No.4 tried to interfere with the possession of the petitioners, the petitioners filed a suit for permanent injunction in O.S. No.1416/2013 on the file of the Prl. Civil Judge and JMFC, Mysore, wherein sketch of the leased lands had been produced by Respondent No.2. The petitioners after going through the sketch were of the opinion that the lands leased to respondent No.4 were different from that owned by the petitioners and allege -9- WP No. 35856 of 2016 that Respondent No.4's encroachment is unauthorized.
2.13. In the said suit, an application under Order 12 Rule 8 of CPC was filed requesting respondent No.2-MUDA to file a report of the current situation, in pursuance of which a report has been filed stating that the petitioners are in possession of the properties above mentioned and that the petitioners have obtained building licence and built houses and got katha in their names and making payment of taxes to Mysore City Corporation (for short 'MCC') and also obtained electric connections in their name. 2.14. The petitioners had challenged the acquisition proceeding by filing W.P.Nos.50208/2012 and 610-615/2012 and in the meanwhile, the petitioners contend that they had made representation for allotment of alternate land under wrong advise, on which basis the writ
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WP No. 35856 of 2016 petitions came to be withdrawn on 23.09.2013 and subsequently the representation filed by the petitioners for alternate land came to rejected by endorsement dated 16.05.2016. 2.15. In that background, the petitioners are before this Court seeking for the aforesaid reliefs.
3. Sri.Srinivas.V, learned counsel appearing for the petitioners would submit that:
3.1. The petitioners continue to be in possession of the properties and as such, acquisition insofar as the petitioners' land has lapsed;
3.2. There are several neighbouring lands as that of the petitioners which had been denotified;
3.3. The petitioners have neither been paid compensation nor physical possession has been taken over by the authorities for the last 45 years. Therefore, the acquisition is lapsed.
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WP No. 35856 of 2016 3.4. In terms of Section 27 of the Karnataka Urban Development Authorities Act, 1987 ('KUDA Act' for short), a Scheme has to be implemented within a period of five years which has not been done. The petitioners have not received any notice of award under Section 9 of the Land Acquisition Act, 1894. There is a violation of the provisions Article 300-A of the Constitution of India.
3.5. Since no notice having been issued by MUDA, the acquisition proceedings itself are bad and are required to be quashed.
3.6. He relies upon the decision in N.M.Annaiah -v-
State of Mysore [1971 Mys. Short Note.69], which is reproduced hereunder for easy reference:
(2) Ss.9, 10 and 12(2)- Non-issue of notice-
Passing award-Not valid.
No notice was issued by the Land Acquisition Officer to the Petitioner who claimed to be the
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WP No. 35856 of 2016 owner of a plot of land, at any stage of the acquisition proceedings. His grievance was that when the Land Acquisition Officer knew that petitioner had an interest in that plat of land, he should have issued a notice to him under Section 9 and 10 of the Act. The respondents No.2 and 3 submitted that a large body of persons appeared to have had interest in the said plot of land, notices under S.9 and 10 were issued by publication in local daily newspapers. On writ Petition, High Court held that even if the publication of notices in local newspapers, could be regarded as sufficient notice to all persons having interest in that plot of land, the Land Acquisition Officer should have issued notice of his award to the petitioner under S.12(2) of the Act. In the absence of such a notice, the petitioner would be deprived of an opportunity for asking for reference to the Civil Court under S.18 of the Act, if he is dissatisfied with the compensation awarded by the Land Acquisition Officer. (Chandrashekar & Bhimiah, JJ., 19-1-71). N.M.Annaiah v. State of Mysore, WP No.1310 of 1970.
3.7. He relies on para 5 of the decision in R.Narayana Prasad -v- The State of Karnataka and others [W.P.No.2262/2016], which is reproduced hereunder for easy reference:
5. It is well established by a catena of decisions in the cases of RAM CHAND & OTHERS VS UNION
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OF INDIA & OTHERS -
(1994)1 SCC 44; and SMT. ANDALAMMA VS STATE OF KARNATAKA & OTHERS - 2002(4) KCCR 236 that the authority who is vested with a power has to act in a reasonable manner while exercising the power.
Reasonable exercise of power includes exercise of the same within a reasonable period. If the award is not passed within a reasonable period, the acquisition proceedings stand lapsed and shall be treated as having been abandoned. In the instant case, though the award has been passed within a reasonable period i.e., within a period of two years from the date of final declaration, the fact remains that without any justification, for the last nearly 39 years compensation has not been paid to the land owner. There is no material placed before the Court to show that though the amount of compensation was offered to the petitioner he has deliberately refused to receive the same or omitted to receive the same. In such circumstances, if petitioner is now asked to take the compensation along with interest as is provided under Section 34 of the Act, then, it would tantamount to forcing the petitioner to receive the market value of the land as obtained during the year 1977, to be precise, as on 25.08.1977 when the preliminary notification was published in the gazette after 40 years. This consequence cannot befall on him for no fault on the part of petitioner. It is for this reason, the principle of law, well enunciated in several decisions, has emerged to the effect that if the acquiring body fails to discharge its duties to ensure completion of acquisition proceedings within a reasonable period, the acquisition shall stand lapsed. The acquisition proceedings cannot be said to have completed until the acquiring body discharges its duties as enjoined under the
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WP No. 35856 of 2016 provisions of the Bangalore Development Authority Act or the Land Acquisition Act as may be applicable.
3.8. By relying on the above, he submits that if an award is not passed within a reasonable period, the acquisition proceedings stand lapsed. 3.9. He relies on the decision in D.Narayanappa -
v- the State of Karnataka and others [ILR 2005 KAR 295], more particularly para 7(VI)(vii) which is reproduced hereunder for easy reference:
vi) If the acquired land is not utilized for several years by the acquired body or authority for the purpose for which it was acquired, it has to be held that the acquired body or authority failed to exercise its rights over the land. In such a situation, the right of the land owner revives. In the instant case since the petitioner is in settled possession upon the land, he has acquired a valuable statutory right as held in James case.
Hence the officers of the BDA should not have demolished the existing structures upon the land in question by using force without taking possession of the land from the petitioner with due process of law as held in several decisions.
vii). For the reasons stated in paragraphs (i) to
(vi) above, in the instant case the acquisition proceedings in respect of the land in question are not in force as the acquisition proceedings have lapsed and the B.D.A. has abandoned its scheme due to non-utilization of the land in question for
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WP No. 35856 of 2016 nearly four decades. The BDA has no right to exercise its power over it at this stage as the petitioner has acquired a valuable statutory right upon the land in question. Accordingly, point (b) is answered against the B.D.A. 3.10. Relying on the above, he submits that the land of the petitioners not being utilized for several years, the petitioners being in settled position, they have acquired valuable right and as such, the scheme is lapsed and the MUDA is deemed to have abandoned the scheme insofar as the property of the petitioners are concerned. 3.11. Reliance is placed upon the decision of this Court in the case of Sri.Munibyrappa, s/o late Muniyappa and others -v- State of Karnataka and others [ILR 2018 KAR 300], more particularly para 20 and 21 which are reproduced hereunder for easy reference:
20. Now coming to the consequence of not taking over possession of the land and not paying compensation to the land losers, it is well established by a catena of judgments that the Authority vested with the power has to exercise the said power in a reasonable manner and
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reasonable exercise of power includes exercising the same within a reasonable period. The BDA is not entitled to have the land acquired, pass award and then, ignore the rights of land losers. It is enjoined with a duty to pay compensation to the land losers and take over possession of the land. If the possession of the land is not taken over and the land losers have not been paid compensation, the land does not vest with the BDA.
21. The land owner has got statutory right to receive the compensation and his right has been constitutionally recognized as per Article 300A of the Constitution of India. He cannot be deprived of his right to get just and fair compensation within a reasonable period. Omission on the part of the beneficiary of the acquisition in paying the compensation would affect the rights of the land loser whose land is compulsorily acquired. It would lead to unjust enrichment.
3.12. Relying on the above, he submits that any power vested with the authority is required to be exercised in a reasonable manner, within a reasonable period. He submits that since the MUDA has not taken possession and or made payment of compensation, the MUDA cannot be permitted to take possession of the lands of the petitioners.
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WP No. 35856 of 2016 3.13. Reliance is placed upon the decision of this Court in the case of Savithramma and others
-v- The State of Karnataka and others [W.P.No.10824/2009], more particularly para 26 thereof which is reproduced hereunder for easy reference:
26. However, given the facts and circumstances of the present case, the propositions of law laid down in the judgments relied upon by the respondents do not come to their rescue. The property was sought to be acquired for "Hennur Bellary Road II Stage". Final Notification was issued on 28.04.1985. The total extent of land sought to be acquired were 1,228 acres 39 guntas. Layout has been formed only in 291 acres 38 guntas. Because of which, it cannot be held that the scheme for which the land was sought to be acquired was substantially implemented. However, if the acquisition of the property in question were to be completed within the time framed as contemplated within the BDA Act, the acquisition would not have lapsed. But though the award was passed on 14.07.1988 and 28.06.1988, the possession of the lands in question has been taken only on 07.08.2008. Further, compensation is deposited on 26.03.2009 before the Civil Court, which is not availed by petitioners/land owners. Section 27 of the BDA Act contemplates that if the Authority fails to execute the scheme within 5 years, then the scheme lapses and provisions of Section 36 of the BDA Act becomes inoperative.
Consequently, if the land has not vested with the
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WP No. 35856 of 2016 BDA before the lapse of the scheme, the rights of the owners revive. The main objective of BDA is development of city of Bengaluru and it can acquire lands for the said purposes. It has to acquire land only when it is required. In the instant case, though the final notification was issued in the year 1985 and possession taken in the year 2008, the land remained unutilized and has been transferred to respondent No.4 in the year 2019. Before taking possession in the year 2008, BDA contemplated to denotify the land. It goes to show that the respondent no.2 never required the land in question. Further the award was passed in the year 1988 and the amount was deposited in the Civil Court in the year 2009. The land losers are entitled to compensation at the rate which was prevailing when they loose land immediately. Otherwise, they will be put to irreparable loss and injury. For the aforementioned reasons, the writ petition succeeds.
3.14. Relying on the same, he submits that within a period of five years, the possession ought to have been taken, otherwise the scheme would have to be stated to be lapsed and that the MUDA has no need of the said land. From the year 1969 till now the petitioners being in possession of the said lands, said possession ought not to be disturbed and the reliefs as sought for are required to be granted.
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WP No. 35856 of 2016
4. Respondents No.2 and 3 upon service of notice entered appearance and contended that 4.1. The petitioners have not produced any document of title to establish their ownership over the residential status, 4.2. the claim of the petitioners is only in terms of katha certificate, tax paid receipt which would not establish any title 4.3. the petitioners have no locustandi to question the acquisition proceedings and therefore, the petitions are liable to be dismissed. One Mr.Madagowda s/o Bandigowda had filed claim petition on 14.12.1973 claiming compensation in respect of land in Sy.No.7-1/B measuring 11 guntas and award had been passed on 08.10.1975 determining compensation awarding an amount of Rs.2012/- which had been approved on 09.10.1975.
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WP No. 35856 of 2016 4.4. On 23.09.1981 one Venkatamma claiming to be the wife of Madagowda had approached the respondents stating that she has put a house construction for her own use.
4.5. On 04.11.1981 a notice had been issued by respondents No.2 and 3 to Madagowda calling upon him to receive compensation by producing the relevant documents, despite which no one came forward.
4.6. Respondents No.2 and 3 had taken possession of the property on 24.09.1981 after conducting necessary mahazar. The said property was handed over to the engineering department on 26.02.1982 and notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the gazette on 21.04.1982. 4.7. The petitioners are given to filing repeated proceedings only to harass the respondents.
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WP No. 35856 of 2016 Once earlier W.P. No.50208/2012 and W.P. 610-615/2013 had been filed contending that no compensation had been paid; upon statement of objections being filed and documents were produced, the petitioners withdrew the said writ petitions with liberty to seek for alternate land and in that background W.P. NO.50208/2012 and W.P. 610-615/2013 came to be withdrawn.
4.8. Subsequently, a suit came to be filed contending that the petitioners were in adverse possession of the properties and sought for an injunction restraining respondent No.4 from interfering with their possession. The said suit came to be dismissed on 15.11.2016 and a Regular Appeal in R.A. No.97/2017 was filed which came to be dismissed on 07.10.2017. 4.9. In the meanwhile, the present petition has been filed in the year 2016, which is an abuse of
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WP No. 35856 of 2016 process of the Court. It is further contended that Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013 [for short 'LARR Act'] is not applicable for acquisitions by KUDA inasmuch as the acquisition has been made under the provisions of KUDA Act and not under Land Acquisition Act.
4.10. Section 24(2) of the LARR Act would not be applicable to acquisition under KUDA Act and in support of which he relies upon the decision in Indore Development Authority v. Manoharlal and Ors.,(2020) 8 SCC 129. 4.11. The petitioners having initially filed writ petition in W.P.No.20885/2011 and other matters, challenging acquisition and the same came to be been dismissed, W.P.No.50208/2012 challenging allotment made in favour of
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WP No. 35856 of 2016 respondent No.4 had been dismissed, the proceedings challenging preliminary and final notifications in W.P.No.50208/2012 and 610- 615/2013 had been dismissed reserving liberty to the petitioners to approach the concerned authority for allotment of incentive site. 4.12. The suit in O.S. No.1393/2013 having been dismissed and the R.A No.97/2017 also having been dismissed, all the claims made by the petitioners have been dismissed. There is no basis for any of the claims made by the petitioners, the said claims are not sustainable, as such the writ petition is required to be dismissed.
4.13. The petitioners themselves having withdrawn the challenge to the acquisition on 23.09.2013, the present proceedings cannot be filed after the petitioners' request for allotment of incentive site has been rejected.
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WP No. 35856 of 2016 4.14. The petitioners having lost in all the earlier proceedings, the present writ petition once again challenging the acquisition, this time on the ground that the scheme has lapsed is impermissible and requires to be dismissed.
5. Sri.K.N.Puttegowda, learned counsel appearing for respondent No.4 would submit that respondent No.4 has nothing to do with acquisition proceedings. Respondent No.4 has been allotted a civic amenity site in terms of the scheme, respondent No.4 has been in possession of the land, same cannot be disturbed in any manner by the petitioners or anyone else. He therefore submits that the writ petitions insofar as land alloted in favour of the respondent No.4 is required to be dismissed.
6. Heard Sri.Srinivasa.V, learned counsel for the petitioners, Sri.H.C.Shivaramu, learned counsel for respondents No.2 and 3 and Sri.K.N.Puttegowda, learned counsel for respondent No.4. Perused papers.
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WP No. 35856 of 2016
7. Having heard the learned counsel for the parties, the points that would arise for determination are:
1. Whether on account of a challenge to an acquisition being dismissed, can the land loser raise a contention that the scheme in pursuance of which land acquisition had been made is lapsed and therefore land acquisition is also lapsed?
2. Whether a land loser once seeks for allotment of incentive site can challenge the acquisition itself and/or contend that the scheme has lapsed?
3. Whether Section 24(2) of the LARR Act would be applicable to acquisitions under KUDA Act?
4. In the present facts and circumstances can it be said that the scheme has lapsed requiring a declaration to that effect and further requiring the quashing of the acquisition notifications ?
5. What order?
8. I answer the above points as under:
9. ANSWER TO POINT NO.1: Whether on account of a challenge to an acquisition being dismissed, can the land loser raise a contention that the scheme in pursuance of which land acquisition had been made is lapsed and therefore land acquisition is also lapsed?
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WP No. 35856 of 2016 9.1. When a challenge to an acquisition is made at the time when the notifications are issued, the points that would be required by this court to be considered is as regards whether there is any public purpose served by the acquisition and/or if the acquisition is for a public purpose. Apart therefrom procedural violation, if any, would have to be considered to come to a conclusion as to whether acquisition notification is valid or not.
9.2. The consideration for lapsing of an acquisition are completely different, inasmuch as in the first case, the acquisition itself is in question, but in the second case, the acquisition as also the purpose of acquisition is admitted and the only contention that can be raised is that the purpose of acquisition has not been achieved as the Scheme which forms the basis of an acquisition and the object of the scheme have
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WP No. 35856 of 2016 not been substantially achieved. In such an event the provision of Section 36 of either the BDA Act or the KUDA Act becomes inoperative. 9.3. Thus, in the second case, the validity or otherwise of the acquisition is not in question. Whenever an issue of lapse of is raised, it is admitted that the acquisition is valid, the purpose of acquisition is also valid, but that purpose has not been achieved.
9.4. In view of the above discussion, I am of the considered opinion that even if a challenge to an acquisition notification has failed, a land loser can at a later point of time, if the requirements of Section 27 of the BDA Act or KUDA Act are met, seek for a declaration by the concerned Court that the acquisition has lapsed on account of the Scheme not having been substantially implemented.
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WP No. 35856 of 2016 9.5. Once the Court were to come to a conclusion that the scheme has lapsed and a declaration is issued under Section 27, the provision of Section 36 being inoperative, the acquisition itself would lapse, and in such a situation, if possession has not been taken, the possession would revert to the land loser. If possession has been taken, the possession would continue with the acquiring Authority as held by the Hon'ble Apex Court in the case of Offshore Holdings Pvt. Ltd vs Bangalore Development Authority & Others reported in (2011) 3 SCC 139 and this Court in Anthony Reddy, since deceased by His LRs and another vs The State of Karnataka by its Secretary reported in ILR 2020 KAR 1348. 9.6. In view of the above, I answer point No.1 by holding that even where a challenge to acquisition has been dismissed, the land loser
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WP No. 35856 of 2016 can seek for a declaration that acquisition has lapsed in the event of necessary requirements being satisfied.
10. ANSWER TO POINT NO.2: Whether a land loser once seeks for allotment of incentive site can challenge the acquisition itself and/or contend that the scheme has lapsed?
10.1. A land loser seeking for incentive site would amount to acquiescence to the acquisition, since it is only in the event the land of the person being acquired and/or such person handing over the possession of the acquired land that the person would get a right to claim for an incentive site. As a corollary in the event of there being no acquisition and/or the acquisition being incomplete, then the question of a person seeking for incentive site would not at all arise.
10.2. The reason behind the allotment of an incentive site is to hasten the acquisition proceedings by
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WP No. 35856 of 2016 providing an incentive in the form of a developed site to the land loser to come forward and handover possession. If they were to handover possession of the acquired land and/or not challenge the acquisition proceedings, as an incentive for such person an incentive site is allotted which incentive would not be available otherwise.
10.3. Thus, when a land loser seeks for allotment of an incentive site, there is an explicit acceptance of the acquisition itself and once an acquisition is accepted and an incentive site is sought for, such a person cannot claim that he is in possession of the property acquired or that the acquisition is bad, let alone contend that the scheme has lapsed on account of substantial non-compliance.
10.4. The fact that an incentive site has been sought for indicates and establishes that the scheme
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WP No. 35856 of 2016 has been implemented and it is the implementation of the scheme which would provide a benefit to such land loser in the form of incentive site.
10.5. I answer point No.2 holding that once a land loser seeks for allotment of incentive site, he can neither challenge the acquisition nor contend that the scheme has lapsed.
11. ANSWER TO POINT NO.3: Whether Section 24(2) of the LARR Act would be applicable to acquisitions under KUDA Act?
11.1. As held by the Hon'ble Apex Court in Indore Development Authority vs Manoharlal and Others reported in (2020) 8 SCC 129, the provision of LARR Act would apply only to acquisition made under the LARR Act, the said provision would not apply to acquisitions made under any other enactments.
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WP No. 35856 of 2016 11.2. The Hon'ble Apex Court recently in Bangalore Development Authority vs State of Kanataka reported in 2022 SCC Online SC 69 has held that the provision of Section 24(2) of the LARR Act would not apply to the Bangalore Development Authority. The Bangalore Development Authority is an Urban Development Authority specially constituted under the BDA Act for the city of Bangalore. In respect of other cities, there are various other Urban Development Authorities which are constituted under the Karnataka Urban Development Authorities Act, 1987. 11.3. The Statement of objects and reasons of KUDA, 1987 reads as under:
An Act to provide for the establishment of Urban Development Authorities for the planned development of major and important urban areas in the State and the areas adjacent thereto and for matters connected there with.
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WHEREAS it is expedient to provide for the establishment of Urban Development Authorities for the planned development of major and important urban areas in the State and the areas adjacent thereto and for matters connected therewith.
11.4. The said Act extends to the whole of Karnataka except to the Bangalore Metropolitan area since in the Bangalore Metropolitan area, it is the BDA Act which would apply.
11.5. Most of the provisions of the KUDA Act are more or less identical to the ones under the BDA Act, 1976. Insofar as the applicability of Section 24(2) or otherwise is concerned, a reference can be made to Section 27 of the KUDA Act which is identical to Section 27 of BDA Act. Section 36 of the KUDA Act is also identical to Section 36 of the BDA Act.
11.6. Thus, the scope, operation and working of the BDA and any other Urban Development Authority including the MUDA being on similar
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lines, the Apex Court having held that Section 24(2) of LARR Act would not apply to the BDA, I am of the considered opinion that by the very same logic, Section 24(2) of LARR Act would not be applicable to any Urban Development Authority constituted under the KUDA Act. 11.7. I answer point No.3 by holding that Section 24(2) of LARR Act would not be applicable to acquisitions made by any Urban Development Authority under the KUDA Act, 1987.
12. ANSWER TO POINT NO.4: In the present facts and circumstances can it be said that the scheme has lapsed requiring a declaration to that effect and further requiring the quashing the acquisition notifications ? 12.1. In the present case, final notification had been issued in the year 1969 and award came to be passed on 03.10.1975, thereafter there was a checkered history of litigation. The petitioners had initially not challenged acquisition notification, but had challenged the execution
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WP No. 35856 of 2016 of lease executed by respondent No.2 in favour of respondent no.4 in W.P.No.20875/2011 which came to be dismissed on 01.10.2012 since the contention that the petitioners were in adverse possession of the land was not upheld by any civil court.
12.2. It is a matter of record that there are no orders passed by any court upholding the claim of adverse possession raised by the petitioners. 12.3. The petitioners thereafter filed O.S. No.1416/2013 before the Prl. Civil Judge and JMFC, Mysore seeking for permanent injunction restraining the respondent No.4 from interfering with the possession of the petitioners. The said suit also came to be dismissed holding that the petitioners are not in possession. The finding in the said suit has not been challenged by the petitioner in any proceedings and the same has attained finality.
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WP No. 35856 of 2016 12.4. It is only in the year 2012 that the petitioners had challenged the acquisition proceedings by filing W.P.No.50208/2012 and W.P. No.610- 615/2012. The said writ petitions were withdrawn on the ground that the petitioners had made an application dated 21.09.2013 for allotment of incentive site in the same layout or any other layout in lieu of their land being acquired by MUDA. This court permitted the petitions to be withdrawn directing MUDA to consider the application referred to by the petitioners as expeditiously as possible. However, this court had made it clear that this Court had not expressed any opinion on merits of the claim of the petitioners one way or the other.
12.5. A perusal of the said request dated 21.09.2013 indicates that the petitioners had sought for alternate land and not incentive site, as such the said request of the petitioners came to be rejected by orders dated 16.05.2016 at
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WP No. 35856 of 2016 Annexure-Q series which is under challenge in this proceeding. While rejecting the said request, the respondent was of the opinion that a request for alternate land could not have been made after lapse of 13 years. As such, no alternate land could be granted. 12.6. Though the above are the facts of the case, Sri.Srinivas.V, learned counsel for the petitioners has addressed his argument on various issues, most of the issues have been answered hereinabove in answer to points No.1 to 3.
12.7. The petitioners by relying upon the decision in N.M.Annaiah's case (supra) sought to contend that when there is no issue of notice as regards passing of the award, award is bad in law.
12.8. The petitioners in the present proceeding has not challenged the award, but has sought to contend that the acquisition has lapsed in terms of Section 27 of the KUDA Act and in terms
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WP No. 35856 of 2016 of Section 24(2) of LARR Act. As held above, Section 24(2) of LARR Act is not applicable under the KUDA Act. Insofar as Section 27 of KUDA Act is concerned, as held above, there is explicit acquiescence to the acquisition and it is only on the petitioners agreeing that there is acquisition which is complete, could a proceeding under section 27 of KUDA Act be filed.
12.9. If the argument of Sri.Srinivas, learned counsel for the petitioners is to be accepted, then the challenge now sought to be made to the acquisition wis impermissible for more reasons than one.
12.10. Firstly, it has been challenged after nearly 40 years.
12.11. Secondly, the petitioners have invoked Section 27 of the KUDA Act which disentitles the
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WP No. 35856 of 2016 petitioners from challenging the acquisition or the award which has been awarded. 12.12. Similar is the contention of learned counsel for the petitioner by relying upon the decision of this Court in Narayan Prasad's case (supra), where a challenge has been made as regards the award passed on the ground that the award has not been passed within a reasonable time. 12.13. As regards the prayer for declaration on lapsing of the acquisition, Sri.Srinivas.V, learned counsel has relied upon the decisions in D.Narayanappa's case, Sri Munibyrappa's case and Savithramma's case, which have been extracted hereinabove.
12.14. For Section 27 to be applicable, the entire Scheme is required to be viewed as a whole. Thus, it is for the petitioners to make out a case that there is substantial non-compliance with the scheme. In the present case, there is absolutely no averment made in the petition as
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WP No. 35856 of 2016 regards the total extent of land proposed to be acquired under the preliminary notification, total extent of land acquired under the final notification, total land taken possession of, total extent of land handed over to the Engineering department, total extent of land on which a layout has been formed, denotification of land, if any, or otherwise. On enquiry, learned counsel for the petitioners submits that such details are not available, but however, submits that much of the area has been developed. 12.15. There is no evidence on record to support the contention of the petitioners that there is substantial non-compliance of the Scheme. The petitioners, in my considered opinion, cannot invoke Section 27 of the KUDA Act to contend that the Scheme has lapsed. Apart therefrom, as held above, once the petitioners had withdrawn the earlier challenge made to the acquisition on the ground that have made an application for grant of incentive site, the
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WP No. 35856 of 2016 petitioners cannot now contend that the Scheme has not been implemented and/or that there is substantial noncompliance with the scheme.
12.16. In view of the above, I am of the considered opinion that in the present facts and circumstances, it cannot be said that the Scheme has lapsed requiring a declaration to that effect and/or for quashing of the acquisition proceedings.
13. ANSWER TO POINT NO.4: What Order?
13.1. For all the aforesaid reasons, no grounds have been made out. Hence, the petition is dismissed.
Sd/-
JUDGE ln
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WP No. 35856 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU [M. MADAPPA AND OTHERS VS. THE STATE OF KARNATAKA AND OTHERS] SGRJ 02.08.2022 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER
1. After pronouncement of the order, the learned counsel for the petitioners has filed an application (I.A.No.2/2022) under Section 151 of CPC seeking for continuation of the interim order passed by this Court for a period of four weeks.
2. I am of the considered opinion that no such order is required to be passed. Hence, I.A.No.2/2022 is rejected.
3. Sri.V.Srinivas, learned counsel for the petitioners once again at 5.30 p.m. moves the matter and submits that there was an amendment application which had been filed with the registry and the same may be rejected.
4. On enquiry as to when the application was filed, he submits that the said application has been filed after the matter having been reserved. It is rather shocking that a counsel would file an application for amendment after the matter is reserved and submission is made today after pronouncement of the order. Be that as it may, the application for amendment stands rejected.
Sd/-
JUDGE Prs*/List No.: 1 Sl No.: 40