Karnataka High Court
Smt. Manjula And Ors. vs The Chief Minister, Government Of ... on 8 April, 2004
Equivalent citations: 2004(4)KARLJ495
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
JUDGMENT N.K. Jain, C.J.
1. Writ Appeal Nos. 4001 and 6910 to 6939 of 2001 have been filed by the petitioners of various writ petitions against the common order passed by the learned Single Judge in W.P. Nos. 15209 to 15269 of 2000, dated 28-5-2001.
The necessary facts in brief are that the appellants are the residents of the layout formed in Sy. No. 1 of Vijayashreepura Village, Kasaba Hobli, Mysore Taluk, Mysore. They purchased the properties and constructed residential houses long back, They had filed Writ Petition Nos. 9203 to 9224 of 2000, which were clubbed by the learned Single Judge and dismissed by a common order dated 28-5-2001. It is stated that K.B. Ramachandraraje Urs, claiming to be the owner of the property, questioned the acquisition proceedings wherein number of persons claiming to be the tenants of the said land had made applications for grant of occupancy rights. The Land Tribunal, after hearing, held that the property is a Government land. The same was challenged by KB. Ramachandraraje Urs in W.P, Nos. 14726 and 31449 of 1994, The writ petitions were allowed on 22-2-2001 (K.B. Ramachandra Raje Urs v. State of Karnataka and Ors.2002(3) Kar. L.J. 385 : AIR 2000 Kant. 512). Writ Appeal No. 1297 of 2001 and connected cases were filed. Interim order of stay was granted. The main contention is that persons who are affected were not made parties in W.P. No. 23429 of 1998, An interim order was passed for demolition, disconnection and others. However, S.L.P. Nos. 8375 and 8714 of 2000 were filed, wherein interim orders of stay have been granted. The further case of the appellants is that the learned Single Judge without going into the merits of the case dismissed the writ petitions filed by the appellants by a common order dated 28-5-2001. Therefore, it is prayed that the said order may be set aside.
2. Writ Appeal Nos. 4002, 6137 to 6156 of 2001 and 3524 of 2002 are filed by Vijayashreepura Residents Welfare Association against the State, being aggrieved by the order dated 28-5-2001 passed in W.P. Nos. 9203 to 9224 of 2000 and connected matters. The learned Single Judge had dismissed the said writ petitions observing that the petitioners had purchased the lands from their vendor who had no ownership or title to the land in question and are therefore not entitled for regularisation of their unauthorised constructions. Therefore, the appellants pray for setting aside the order.
3. Writ Appeal No. 1297 of 2001 is filed by J.S.S. Mahavidyapeetha (respondent 28 in W.P. No. 14726 of 1994) against the common order dated 22-2-2001 passed in W.P. No. 14726 of 1994 connected with W.P. No. 31449 of 1994 filed by the petitioner-KB. Ramachandra Raje Urs, wherein the writ petitions were partly allowed without disturbing the notification and award, but respondent 28-appellant herein was ordered to hand over the property granted to it under Annexure-H notwithstanding improvements made upon the land in question within 60 days to Mysore Urban Development Authority ('MUDA' for short). The MUDA was further directed to take steps to evict the unauthorised occupants. The appellant prays to set aside the order dated 22-2-2001. This writ appeal was admitted on 13-3-2001 and it was directed to maintain status quo as to the possession of the land under dispute pending further orders.
4. Writ Appeal Nos. 1682 and 1683 of 2001 are filed by the MUDA against the order dated 22-2-2001 passed in W.P. Nos. 14726 and 31449 of 1994 filed by KB. Ramachandra Raje Urs. It is stated that the appellant-MUDA issued preliminary notification under Section 16(1) of the City of Mysore Improvement Act, 1903 proposing to acquire 94 acres 28 guntas of land in Sy. No. 1 of Vijayashreepura Village, Mysore Taluk for the purpose of improvement of Mysore City. Respondent 1 received the notice under Section 16(2) of the Act and filed objections to the effect that the acquisition would cause economic hardship to him and that he had no objection provided 20 acres of land out of total extent of 94 acres 28 guntas was deleted from acquisition. Final notification was issued under Section 18(1) of the Act on 29-4-1988 and 55 acres of land was allotted to respondent 3 vide Government Order dated 28-5-1988. Cost of acquisition was deposited, possession was taken and after getting building plan sanctioned, two buildings were constructed in the year 1994 itself. It is stated that respondent 1 had challenged the acquisition after six years. Interim order was passed on 13-9-1994 by the learned Single Judge. Challenging the same, respondent 1 filed W-A. No. 2278 of 1994, which was dismissed on 22-9-1994 at the admission stage without notice to respondent 3. However, the writ petition was resisted by respondent 3 on several grounds. The learned Single Judge allowed the writ petition on 22-2-2001 quashing the allotment order and directing respondent 3 to hand over the possession of the land in question to this appellant within 60 days as stated above. The same is challenged.
5. Writ Appeal No. 1668 of 2001 is filed by KB. Ramachandra Raje Urs against the State and 31 others against the order dated 22-2-2001 passed in W.P. No. 14726 of 1994.
It is stated that 816 acres 15 guntas of lands which were previously parts of four villages were acquired by the then Government of Maharaja of Mysore under the notifications published in Mysore Gazette, dated 23-11-1899 and 12-7-1900 for the use of palace namely, Jayalakshmi Vilas Mansion, Mysore. It is stated that the entire land belonged to the appellant-petitioner's adoptive mother late Princess Leelavathi Devi who died on 11-5-1958 and after her death the appellant became the owner of the said land. It is stated that the provisions of the Karnataka Land Reforms Act, 1961 are not applicable to this land as it is not an agricultural land. It is also stated that respondents 4 to 27 were never and are not in possession of any part of this land, much less as tenants. It is also stated that the applications filed by the said respondents were registered as K.L.R.M. Nos. 3934 to 3977 of 1976 by the Tribunal. The Tribunal, without notice to the appellant-petitioner and without conducting enquiry, had registered them as occupants of portions of land by its order dated 26-9-1980. The same was challenged in W.P. No." 17533 of 1981 and the writ petition was allowed on 22-1-1985. The matter was remanded to the Land Tribunal, Mysore for fresh disposal in accordance with law and the matter is still pending. In the meanwhile, the Mysore City Improvement Board (hereinafter called the 'Board') issued a notification in No. Pr.Bhoo.Swn, 2/85-86, dated 21-6-1985 proposing acquisition of 94 acres and 28 guntas of land in the above said Sy. No. 1 showing therein Smt. Gayathri Deviyavaru Trust, (L.R.) Ramachandra Raje Urs as the Khatedar and the names of respondents 4 to 27 as persons in whose favour the said lands were said to have been registered as occupants. Notice dated 8-5-1987 was issued by the Special Land Acquisition Officer to the petitioner calling upon him to file objections within 30 days. The said notice was served on 13-5-1987 and objections were filed on 12-6-1987. It is stated that only during the last week of March 1994 the appellant-Ramachandraraje Urs came to know that respondent 28 was making attempts to encroach certain area. The petitioner was not served with notice of final notification nor was aware of the award dated 27-10-1988 fixing the compensation at Rs. 15,000/- per acre, Though the writ petition filed by him was allowed in part as stated, the direction to hand over the property to MUDA is bad and it should be given to the landowner and to this extent he has challenged the same with limited grievance.
6. The main controversy involved in these cases is same and identical, As submitted and as agreed by the respective learned Counsels for the parties, all the writ appeals are taken together and finally heard.
7. As per the facts culled out, the dispute pertains to the land measuring 94 acres 28 guntas in Sy. No. 1 of Vijayashreepura Village, which was acquired by the Mysore Urban Development Authority. A Preliminary Notification dated 21-6-1985 was issued under Section 16(1) of the Act of 1903, in which the name of the Kathedar was shown as Smt. Gayathri Devi Trust represented by its legal representative, KB. Ramachandra Raje Urs. Objections were filed by KB. Ramachandra Raje Urs as per Annexure-E on 12-6-1987 stating that he had no objection for the acquisition of the land in question except 20 acres of land towards the roadside. A final notification dated 29-4-1988 was issued by the Government and awards were passed as per Annexures-G and G1 to G16. Out of 94 acres 28 guntas of land, 55 acres of land was reserved for Jayachamarajendra College of Engineering and was granted to it by Government order dated 28-5-1988 vide Annexure-H. The same was challenged by Ramachandra Raje Urs in W.P. No. 14726 of 1994 connected with W.P. No. 31449 of 1994 and others separately, which were disposed of by a common order, as stated above.
8. Learned Senior Counsel, Sri Somayaji for Sri AN. Venugopalagowda for the appellants in W.A. Nos. 4001 and 6910 to 6939 of 2001 submits that the learned Singe Judge erred in not considering the matter in a proper perspective and in observing that the self-Government has no power for issuing the notification inviting applications from unauthorised occupants for regularisation. He submits that as the learned Single Judge erred in relying upon the decision dated 22-2-2001 rendered in W.P. Nos. 14726 and 31449 of 1994 as the appellants were not parties to the said petitions and no opportunity was given to them. He further submits that the order dated 22-2-2001 in the said writ petitions was challenged in W.A. No. 1297 of 2001 which has been admitted on 13-3-2001, and therefore relying upon the decision, the appeal against which had already been admitted is not sustainable and the order dated 28-5-2001 passed in W.P. Nos. 15209 to 15269 of 2000 and connected matter is liable to be set aside.
9. Learned Senior Counsel, Sri Somayaji for Sri A.N. Venugopalagowda, appearing for the appellant-Association in W.A, Nos. 4002, 6137 to 6156 of 2001 and 3525 of 2002, submits that the appellants had purchased the land long back, constructed the houses. He also submits that framing of scheme is not necessary nor it is a condition precedent and they are entitled for regularisation but the learned Single Judge erred in holding that the appellants are not entitled for any relief, and therefore, the order of the learned Single Judge is liable to be aside, and that the case of appellants may be considered for regularisation, in accordance with law. He relied on the decisions in Ajay Krishan Shinghal and Ors. v. Union of India and Ors., and in State of Tamil Nadu and Ors. v. L. Krishnan and Ors., .
10. Learned Counsel Sri Ashok B. Hinchigeri, appearing for the appellant-Institution in W.A. No. 1297 of 2001 submits that the learned Single Judge has failed to note that very same acquisition notifications were upheld. The allotment order was upheld by this Court in earlier Writ Petition Nos. 6920 to 6922 of 1993, DD: 16-3-1993 and the order of learned Single Judge was upheld in Writ Appeal Nos. 1568 to 1570 of 1993, DD: 21-9-1996. He also submits that the learned Single Judge erred in observing that the earlier orders do not operate res judicata. He also submits that the learned Single Judge erred in not taking note that the petition was filed after a long delay of 6 years by respondent 1, who is totally a stranger and has no locus standi, even though he had filed objections on 12-6-1987 itself. Learned Counsel submits that MUDA is competent to issue acquisition notification. He further submits that without noticing that there was a scheme even before the issuance of the preliminary notification, the learned Single Judge erred in holding that the scheme was prepared subsequent to 87-88. It is submitted that only after following all the provisions and considering the objections to the preliminary notification, necessary modification to the scheme was made, which is within the jurisdiction, and thereafter the Government has sanctioned the scheme, but the learned Single Judge has wrongly misconstrued the material on record and erred in holding that there is colourable exercise of the power, which is not sustainable. He further submits that the appellant is in possession of the property for the last 12 years and substantial amount has been spent and the learned Single Judge erred in disturbing its possession without considering the earlier Division Bench decisions of this Court and Full Bench decisions and the law laid down by the Apex Court, in a proper perspective and therefore the order is liable to be set aside. He relied on the decision in Pratibha Nema and Ors. v. State of Madhya Pradesh and Ors., .
11. Sri B.V. Acharya, learned Senior Counsel appearing for Smt. M.P. Geetha Devi for the appellant in W.A. No. 1668 of 2001 has challenged the acquisition and the allotment of land to respondent 28-Institution. It is stated that the City of Mysore Improvement Act, 1903 was repealed and superseded by the Karnataka Urban Development Authorities Act, 1987 and the MUDA Act on 1-1-1989. It is submitted that there is no power to invoke the provisions under the City of Mysore Improvement Act, 1903 and therefore the notification is bad in law and without jurisdiction. It is also stated that the Urban Development Authority has given a power only to formulate a scheme and provide land to such persons and therefore the issuance of notification is without jurisdiction and the learned Single Judge has rightly interfered considering it to be a colourable exercise. It is also submitted that long prior to the issuance of final notification, respondent 28 made a request to the Government/MUDA to allot the land. The allotment of 55 acres of land out of 94 acres 28 guntas of land by the Government Order (Annexure-H) dated 28-5-1988 is bad and is liable to be set aside. He also submits that there is no question of delay. Once fraud has been played and learned Single Judge has exercised discretion and delay is condoned, the argument of the learned Counsel for respondent 28 and the other side will not be helpful and on this ground no interference is called for. The judgment whereby acquisition has been upheld will not be binding, as it does not take away the right of the rightful owner. However, he has challenged the order to the extent that once the Court has come to the conclusion as stated, notification has been set aside with a direction to give the land to MUDA is bad and actually it should have been given to the landowner and to this extent the order is liable to be set aside.
12. In rejoinder, it is stated that the decision in L. Krishnan's case, supra, and the other decisions relied upon are not helpful and the entire scheme is only to accommodate respondent 28.
13. We have heard the learned Counsels for the respective parties, perused the copy of the scheme placed by the learned Counsel for the MUDA, and the Preliminary Notification of 1985. We have also perused the voluminous material on record and the case-laws cited before us.
14. It is well-settled that a land can be acquired for public purpose under the provisions of the Land Acquisition Act. The acquisition proceedings and notification can be interfered with if it is not for a public purpose or if the procedure prescribed under the Act has not been followed. However, if there is a special statute for acquisition of land, the procedure prescribed in that Act has to be followed. It is also settled that if the acquisition of large area of land comprises of several plots of land, specification of a particular land for acquisition needed by the development plan, is not a condition precedent to initiate the action of acquisition and publication of the notification while issuing the preliminary notification. The acquisition proceedings should be challenged by the aggrieved party within a reasonable time. So far as the law of equity is concerned, delay defeats equity and no writ petition can be filed challenging the acquisition proceedings after the award has been passed. There is a duty cast on the Court to balance the interest between the parties.
15. It is also settled that generally this Court will not interfere with the discretion exercised by the learned Single Judge unless it is arbitrary or capricious. It is also well-settled that mere averment of fraud without any pleadings is not sufficient and the fraud has to be proved by substantial material, and if it is proved, the delay will not come in the way to set aside the order.
16. The learned Counsel contended that when there is a special statute for acquisition of land, acquisition has to be made for a specific purpose as per the requirement of that Act and the preliminary notification, in the instant case, has been issued without following the procedure, and therefore the notification is liable to be set aside.
17. Shri P.S. Manjunath, learned Counsel for the MUDA, submits that the respondent 1 is totally a stranger and has no locus standi. In his objections dated 12-6-1987, KB. Ramachandra Raje Urs has stated that if land is acquired then it will be a hardship and has no objection for acquisition of land except for 20 acres of land for him. The impugned notification and award relating to acquisition of land has not been disturbed by the learned Single Judge. But the learned Single Judge has erred in coming to the conclusion that there was no scheme and quashed the Government Order (Annexure-H) and Notice (Annexure-B). Therefore, the writ petitions are to be dismissed by allowing these appeals.
18. Considering the above arguments and the relevant facts which are not in dispute, what is to be seen is whether the provisions of the original Act has been followed or not.
19. From a perusal of record, it is clear that the land was proposed to be acquired for the development of the Vijayashreepura layout along the Mysore-Hunsur Road; that out of the land acquired 55 acres has been reserved for the respondent 28-College of Engineering; that there is an unauthorised construction in the area of 3 acres 8 guntas, and remaining 37 acres 30 guntas has been proposed for the formation of Vijayashreepura layout and that the report also gives portion of the extent involved in the implementation of the scheme. As per the counter and the submissions of the learned Counsel for MUDA, notice was served upon the Leelavathi Trust represented by Ramachandra Raje Urs and he filed that objections stating that the land measuring 94 acres 28 guntas is in his possession. It is also stated in his objection that the land is the property of the Princess Leelavathi Devi and he being her adopted son, has a right over it. It is further stated that he has no objection for the acquisition of the remaining land except for 20 acres situated on the roadside and if the 20 acres of land are saved to him he will be in a position to overcome his difficulties. The objections were considered and the final notification was issued.
20. As per the counter, it is stated that the MUDA had drawn up a scheme for the development of layout and after drawing a scheme notification was issued, and thereafter considering the objections, a final notification was issued and as such the provisions have been followed. It is also stated that the scheme was formulated, its cost was worked out; that in the notification it was mentioned that the scheme of the layout, the annexures and maps were in the office, which could have been seen, but in spite of it the 1st respondent filed his objection stating that he has no objection except leaving 20 acres of land. Under the circumstances, we are the view that the learned Single Judge erred in coming to the conclusion that there was no scheme.
21. Once the scheme has been formulated for the betterment and development of the layout and the same has been approved, the argument that there is fraud and colourable exercise of power is not sustainable, unless pleaded and proved by producing material in that behalf.
22. It is true that the delay will not come in the way of challenging an order, if there is a fraud and the same has been proved. But, in the absence of any pleadings and proof by substantial material, mere alleging fraud is not sufficient. A perusal of Section 23 of the Improvement Act reveals that publication of declaration under Section 18 shall be deemed to be the publication of declaration under Section 6 of the Land Acquisition Act. Section 18(c) of the City of Mysore Improvement Act states that the declaration shall be conclusive evidence that the land is required for public purpose. Section 23 of the City of Mysore Improvement Act makes it clear that Section 18 of the City of Mysore Improvement Act is similar to one of Section 6 of the Land Acquisition Act and further from Section 18(c) of the City of Mysore Improvement Act, it is clear that the declaration made shall be the conclusive evidence that the land to be acquired for a public purpose.
23. As stated, it is not necessary to notify the use of each and every bit of land, which is sought to be acquired. When a large extent of land is being acquired non-mentioning of the particular purpose or the use to which each bit would be put to, would not constitute vagueness in the notification. In other words, when a large area of land, comprising of several plots of planned development, is sought to be acquired, the specification of a particular land for acquisition needed by the development plan, is not a condition precedent to initiate action for acquisition. Therefore, the entire approach of the learned Single Judge, in our humble view is not correct. A reference can be made to the decisions in Ajay Krishan Shingal's case, supra and Pratibha Nema's case, supra.
24. So far as the argument that there is a delay is concerned, no doubt delay will not come in the way if the Court comes to the conclusion that fraud has" been played and we have repelled the finding of the learned Single Judge to the extent as stated above. The writ has been filed after an abnormal delay of 6 years. As per the objection of K.B. Ramachandra Raje Urs, he has no objection except leaving 20 acres of land and in the absence of any other material pleading and the proof of fraud. By taking note of the correspondence between the authority concerned and respondent 28-Engineering College, the finding of the learned Single Judge vitiating the notification on the ground of fraud and colourable exercise of power, is not sustainable. As per the counter, the acquisition notification was issued on 9-4-1988, the award has been passed on 8-6-1988 and as stated since the petitioner was abroad, he could not be served. On 6-8-1988, when the petitioner returned from abroad, he was sought to be served but he refused to receive the notice, mahazar was drawn, and as such he was deemed to have knowledge on 6-8-1988 and filing of the writ petition on the allegation that the respondent 28-Engineering College started building and he came to know about the acquisition only in 1994, is not a sufficient explanation to condone the delay. More so, the learned Single Judge has entertained the petition merely on the ground of the alleged fraud played and colourable exercise of power and has not taken note of delay. But, as stated, once the fraud is not established for want of pleadings and proving the same, the finding of the learned Single Judge regarding fraud is not sustainable. Therefore, in our view, in spite of having knowledge of the acquisition on 6-8-1988, filing of the writ petition in 1994 after an abnormal delay is not maintainable. Pleading his ignorance cannot be believed and on that basis, the delay cannot be condoned. More so, the award has been passed, and once the award is passed the acquisition proceedings cannot be challenged. A reference can be made to the decision in Municipal Council, Ahmednagar and Anr. v. Shah Hyder Beig and Ors., .
25. The order of the learned Single Judge is also not sustainable for the reason that the materials on records reveal that the notifications dated 21-6-1985 and 29-4-1988 were challenged by other persons claiming to be in possession of the property. One Thimmaiah alias Bayanna Bettaiah since deceased by his L.R.Bette Gowda, Yalakkaiah by his L.R., Dasegowda, filed W.P. Nos. 6920 to 6922 of 1993 seeking to quash the notifications dated 21-6-1985 and 29-4-1988 and challenging the allotment made in favour of respondent 28-Engineering College. The writ petitions were dismissed on 16-3-1993 by observing that the petitioners had not approached the Court within a reasonable time. It was held that it cannot be said that such purpose is not a public purpose', and further observed that it is very difficult to accept the explanation that they were not aware of the action taken by the Government, Being aggrieved the petitioner filed W.A. Nos. 1568 to 1570 of 1993. The Division Bench by its order dated 21-9-1994 held that the petitioner-appellant was not justified in approaching this Court and allotment of the land to respondent 3 (respondent 28 in the present writ petition) cannot be said to be for a purpose other than public purpose. The Division Bench observed as follows:
"It is now brought to our notice by the learned Counsel for respondent 3 that, in pursuance of the allotment, a number of buildings have come up where the Institution is running. It is further stated that certain International Agencies are also involved in development of its educational project. In the circumstances, we do not find it a fit case for interference in the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution. The writ appeals are accordingly rejected".
It is also seen that one Rajashekara filed W.P. No. 7073 of 1993 challenging the same preliminary notification that is under challenge in the present petition and allotment of plan in favour of respondent 28, in the present petition. This Court dismissed the same considering the decision in W.A. Nos. 1568 to 1570 of 1993, dated 21-9-1994 and the Apex Court decision. These writ appeals are liable to be dismissed for the reason that the writ petitions were filed after an abnormal delay of 6 years, when admittedly he filed objections on 12-6-1987 as stated, so he cannot plead ignorance of the acquisition proceedings and the award passed on 8-6-1988 as stated.
26. The Full Bench of this Court had an occasion to consider the scope of the provisions of the Act for improvement and future expansion of the city in the case of Venkatamma v. Special Land Acquisition Officer, CITB, Mysore, 197 2(1) Mys. L.J. 398 (FB) and has observed that the object was to make provision for improvement and future expansion of the city of Mysore as well as for the appointment of a Board of Trustees with power to carry out the aforesaid purposes. The Board is authorised to make new and additional schemes from time to time. In the instant case, in the scheme itself it was proposed to allot 55 acres of land to the respondent 28-Engineering College, which was held to be a public purpose on an earlier occasion. Therefore, it cannot be said that the scheme should be sanctioned before issuing notification under Section 16(1) of the Act.
27. The fact is that the scheme having been made as per requirement, the limit of the area specifying the land which is proposed to be acquired has been fixed and the map has been issued. It is clearly stated that a detailed plan is drawn and is available for inspection, but no action has been taken by the appellant-K.B. Ramachandra Raje Urs at appropriate time. It is not the specific case of the petitioner that he went and verified in the office and found that no scheme has been drawn as stated in the notification under Section 16 and if he really went and made enquiries and found that no scheme has been drawn, it would have been reasonable for him to challenge the notification under Section 16 at that stage itself contending that no scheme has been drawn. K.B. Ramachandra Raje Urs, the petitioner filed objection stating that he has no objection except for leaving 20 acres of land and after considering the objection, a scheme was submitted for sanction and estimates relating to the scheme were worked out. In this case, a declaration has been issued which became conclusive upon publication and thereafter the Board can proceed to execute the scheme. It is also seen that Section 23 provides that acquisition, otherwise than by agreement of land within or outside the city shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894 and by the following further provisions as mentioned in Sub-sections (1) to (4) of Section 23 of the Act and therefore apart from the provisions of Sections 14 to 18 and 23 there is no other provision in the Act dealing with the acquisition of land and therefore the further proceedings have been taken under the provisions of the Land Acquisition Act.
28. The specific case of the Improvement Board is that the scheme had been issued and particulars of the manner in which the land acquired would be utilised including 55 acres allotted to respondent 28-Engineering College was also mentioned in the scheme which is available in the records of the Improvement Board. Further, it is also clear that the scheme was sanctioned by the Government on 11-4-1988 and thereafter notification under Section 18 declaring that it is required for a public purpose was issued on 29-4-1988. Under the circumstances, the learned Single Judge was not justified in drawing any inference that the acquisition is void ab initio. The learned Single Judge is not right in not taking note of the earlier decisions of this Court and the Full Bench decision in Venkatamma's case, supra. The learned Single Judge was not right in holding that the final notification was not issued within one year from the date of preliminary notification and that respondents 1, 2 and 28 have colluded to acquire the land for the private parties in the garb of Improvement Scheme without noticing the provisions of Section 11-A. Section 11-A would not be applicable to notifications made under the City of Mysore Improvement Act as the provisions are different. As held by the Supreme Court that the said provisions under Section 11-A are not applicable to acquisition made under the City of Mysore Improvement Act. A reference can be made to the decision in Munithimmaiah v. State of Karnataka and Ors., ILR 2002 Kar. 3023 (SO : (2002)4 SCO 326.
29. So far as the point that the appellant was not a party in the above writ petition is concerned, though he was not a party, the acquisition was upheld. Under the circumstances, mere fact that under the scheme 55 acres of land was sought to be given to respondent 28 and even the fact that there was correspondence between respondent 28 and the Improvement Board prior to notification under Section 16, would not by themselves lead to inference of any mala fides or fraud in the exercise of power, as it is well-settled that the Improvement Board is entitled to acquire the land for the purpose of improvement and expansion of the city of Mysore and such acquisition would be for a public purpose. The fact remains that the acquisition of such land was held to be for public purpose.
30. The adverse inference drawn by the learned Single Judge for not producing the records pertaining to the sanction of the scheme by the learned Government Advocate, is not correct. The mere fact that the Executive Engineer in the estimate has signed on 11-4-1988 and the estimate is as per the P.W.D. rate of 1987-88 cannot be held to be a fraud, as plan is sent for approval after notification under Section 16(1) and the sanction by Government has not even been challenged. The colourable exercise of power does not arise, as stated, when in the objections itself there was no averment that the Government has exercised its power fraudulently as stated. The reasoning of the learned Single Judge that there is no scope for bulk allotment of 55 acres of land in favour of respondent 28 is also erroneous and cannot be sustained as it is clear that the very acquisition itself was started by preparing a scheme wherein it was intended to allot 55 acres to respondent 28 and as stated earlier this Court has already held that allotment of land to respondent 28 is for a public purpose, and therefore, the learned Single Judge could not have held in the absence of any provision prohibiting bulk allotment under the Improvement Board Act and merely by relying upon the provisions of the BDA Act that no allotment could be made to respondent 28. Therefore, the reasoning assigned by the petitioner and accepted by the learned Single Judge for holding that there is fraud or colourable exercise of power in the acquisition proceedings is not correct, and therefore, it is void ab initio, cannot be sustained and the same is liable to be set aside. Considering the settled legal position and in the facts of the given case as discussed above, we are of the considered opinion that the order passed by the learned Single Judge allowing W.P. No. 14726 of 1994 is liable to be set aside. Accordingly, W.A. Nos. 1682 and 1683 of 2001 filed by MUDA are allowed. In view of the above decision in the writ appeals and the finding, it is unnecessary to consider the contention, raised in W.A. No. 1668 of 2001, that instead of the MUDA, the possession should be given to the owner as we have upheld the acquisition and the appeal is disposed of accordingly.
31. Insofar as the order passed in W.P. No. 31449 of 1994 is concerned, the learned Single Judge, without considering the merits of the case, has merely stated that the order was illegal and without jurisdiction. The said order could not have been passed without hearing the affected persons, that is unauthorised occupants who are in actual possession of the land, when they are not made parties to the writ petition. So far as respondents 3 to 27 in the writ petition are concerned, the learned Single Judge has stated that the determination of their right will be dependent upon the determination of tenancy issue, which is pending in writ petition. Accordingly, W.A. Nos. 1682 and 1683 of 2001 and W.A. No. 1297 of 2001 are allowed and W.P. Nos. 14726 and 31449 of 1994 are dismissed W.A, No. 1668 of 2001 is dismissed.
32. Insofar as regards the order passed by the learned Single Judge in W.P. Nos. 15209 to 15269 of 2000 connected with W.P. Nos. 9203 to 9224 of 2000, dated 28-5-2001, it is clear that the said writ petitions have been filed by the unauthorised occupants in Sy. No. 1 of Vijayashreepura Extension. The learned Single Judge having held in W.P. No. 14726 of 1994 and connected W.P. No. 31449 of 1994, DD: 22-2-2001 that the notification in question is bad in law, the acquisition proceedings have not been quashed. In the said order, it is further held that the local self-Government has no power for issuing notification inviting applications for regularisation of unauthorised occupation. In view of the above said order setting aside the order passed in W.P. Nos. 14726 and 31449 of 1994, dated 22-2-2001 and dismissal of the said writ petitions in the above said W.A. Nos. 1297, 1682 and 1683 of 2001, it is clear that the said reasoning of the learned Single Judge does not survive. The learned Single Judge has held that regarding the constructions made on the land bearing Sy. No. 1 of Vijayashreepura, Mysore, the appellants are not entitled to any relief as they fall within the provisions of Section 4(viii) of the Karnataka Regularisation of Unauthorised Constructions in Urban Area Act and they cannot seek regularisation as the land in question has been acquired by MUDA for the formation of Vijayashreepura Extension. The learned Counsel appearing for the appellants in other writ appeals wherein the said order passed by the learned Single Judge has been challenged submitted that in view of the fact that the persons who are in unauthorised occupation of land in Sy. No. 1 of Vijayashreepura, viz., the writ petitioners have deposited certain amount on the basis of the representation made by the Authority that their unauthorised possession would be regularised on payment of certain amount and certain directions have also been issued by this Court in earlier writ petitions, a direction may be issued to consider their representations also for regularisation of their unauthorised occupation, in accordance with law as they have already deposited the amount as per the representation made by the respondent-authorities. In view of the fact that the order passed by the learned Single Judge in W.P. Nos. 14726 and 31449 of 1994, dated 22-2-2001 has been set aside. Those writ petitions are dismissed upholding the acquisition as stated and it is mentioned in the scheme itself that certain portions of the land measuring 3 acres 8 guntas are in unauthorised occupation and constructions have come up, it is open to the Competent Authority to consider their respective representations in accordance with law.
33. In view of what we have discussed above, accordingly, with the said modification, W.A. No. 4001 of 2001 connected with W.A. Nos. 6910 to 6939, 4002, 6137 to 6156 of 2001 and 3525 of 2002 are disposed of. No order as to costs.