Karnataka High Court
Ningaiah vs The State Of Karnataka on 5 June, 2013
Equivalent citations: 2013 (4) AKR 283
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.47989/2012 (ULC)
BETWEEN:
Ningaiah, S/o. Kempaiah,
Aged 72 years,
R/at Hebbal,
Mysore Taluk & District - 570 016. ...PETITIONER
(By Smt. P.C. Vinitha, Adv.)
AND:
1. The State of Karnataka,
Revenue Department,
M.S. Building, Dr. B.R. Ambedkar Road,
Bangalore - 560 001,
By its Secretary.
2. The Special Deputy Commissioner,
Mysore District,
Mysore - 570 001. ...RESPONDENTS
(By Sri K.A. Ariga, AGA)
This petition is filed under Articles 226 and 227 of
the Constitution of India, praying to direct the respondents
not to initiate any proceeding against the petitioner under
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the provision of ULC Act in respect of 21 guntas of land in
Sy.No.235/2 of Hebbal Village, Mysore Taluk and District.
This petition coming on for preliminary hearing this
day, the Court made the following:
ORDER
Doddaiah, son of Kempaiah, the elder brother of the petitioner, had filed a statement on 16.09.1976, giving details of the vacant land he was holding in excess of the ceiling limit prescribed under the Urban Land (Ceiling & Regulation) Act, 1976 (for short the Act), as provided under S.6 of the Act. The Competent Authority under the Act surveyed the land and Doddaiah was served with a draft statement on 20.08.1983, under S.8(1) of the Act, calling for objections within 30 days. Doddaiah filed statement of objections on 13.09.1983. However, the Competent Authority found that Doddaiah was holding excess land in Sy. Nos.235/2 & 235/3, measuring 1939.93 sq.mtrs. and 10218.67 sq.mtrs. respectively and an order to that effect was passed under S.8(4) of the Act, on 22.10.1984. The Competent Authority issued a Notification dated 12.03.1985, under S.10(1) of the Act, which was 3 published in the Karnataka Gazette dated 25.04.1985, giving the particulars of the vacant land held by Doddaiah. The Competent Authority later issued a Notification dated 20.07.1985, which was published in the Karnataka Gazette dated 01.08.1985 stating that the said excess vacant land shall be deemed to have been acquired by the Government of Karnataka with effect from 01.08.1985. The Competent Authority informed the Deputy Commissioner, Mysore District on 14.08.1985, to take possession of the said land under S.10(5) of the Act. The Competent Authority issued a notice under S.10(5) of the Act, directing Doddaiah to handover possession of the land declared as 'excess land', to the Deputy Commissioner, Mysore or the Authorized Representative, within a period of 30 days. The Surveyor attached to the Office of the Competent Authority conducted survey and prepared a sketch of the said lands on 10.12.1985. The Revenue Inspector, Kasaba, prepared a mahazar dated 22.10.1986 and assumed possession of the said excess land. The Competent Authority, in 4 exercise of power under S.11(7) of the Act, passed an award on 16.11.1990.
2. Petitioner, who is the younger brother of Doddaiah, claiming that there was an oral partition between himself and his brother in the year 1984 and that the land in question fell to his share and with consent, khata of the land was also transferred to his name and that the RTC shows that he is in possession and enjoyment of the property as owner, has filed this writ petition, to declare that the proceedings initiated by respondent No.2, in ULA No.2085/76-77, in respect of 21 guntas of land in Sy.No.235/2 of Hebbal Village as having lapsed and for directing the respondents not to initiate any proceedings in respect of the said property. The petitioner has asserted that the possession of the subject land has remained with him and at no point of time, the same was taken over by the Competent Authority or any authorized person.
3. Smt. P.C. Vinitha, learned advocate for the petitioner contended that the possession of the subject 5 property has remained with the petitioner and although the land vested in the Government of Karnataka in view of the action taken under S.10(3) of the Act, the actual possession having remained with the petitioner, in view of the Act having been Repealed, by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short, the Repeal Act) on 22.03.1999, the petitioner is entitled to continue to hold and enjoy the property without any kind of hindrance from the respondents and sought for passing of appropriate orders.
4. Sri K.A. Ariga, learned Addl. Government Advocate appearing for the respondents, on the other hand contended that the land having vested in the State Government and possession having been taken over by the Revenue Inspector on 22.10.1986, the Repeal Act has no application and sought dismissal of the writ petition.
5. Perused the file of the Competent Authority, made available by Sri K.A. Ariga. It is evident from the file, that there is vesting of the land with the State 6 Government by operation of law. However, the file does not show the actual possession of the land having been taken over in exercise of the power and in the manner provided under S.10(6) of the Act, either by the Competent Authority or by any person duly authorized by the State Government.
6. Section 2 of Repeal Act reads as follows:
"2. Repeal of Act 33 of 1976.- The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the principal Act) is hereby repealed."
Section 3 of the Repeal Act reads as follows:
"3. Savings.- (1) The repeal of the principal Act shall not affect-
(a) the vesting of any vacant land under sub-
section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;
(c) any payment made to the State Government as a condition for granting exemption under sub- section(1) of Section 20.
7(2) Where-
(a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government."
It is clear from the above provisions that where the possession of the vacant land has not been taken over by the State Government or by any person duly authroised by the State Government in this behalf or by the Competent Authority, the proceedings under the Act would not survive. Mere vesting of the vacant land with the State Government by operation of law without actual possession is not sufficient for operation of S.3(1)(a) of the Repeal Act.
7. Sub-section(3) of S.10 states that after publication of the Notification under sub-section (1), the Competent Authority has to declare that the excess land 8 referred in the Notification published under sub-section (1) of S.10, shall with effect from such date, as may be prescribed in the declaration, deemed to have been acquired by the State Government. On publication of declaration to that effect, such land shall be deemed to have been vested absolutely in the State Government, free from all encumbrances, with effect from the date so specified. After the land is vested in the State Government under sub-section (3) of S.10 and in case the person does not voluntarily surrender and deliver possession under S.10(3) of the Act, the Competent Authority, may, by notice in writing, order any person who may be in possession of it to surrender or transfer possession of the vested land to the State Government or to any other person duly authorized by the State Government. If there is no voluntary surrender or delivery of possession as provided under S.10(3) of the Act, a notice in writing shall be issued under sub-section (5) of S.10 to surrender or deliver possession. In case, the person fails to comply with the notice issued under sub-section (5) of S.10, sub- 9 section (6) of S.10 provides that the Competent Authority may take possession of the vacant land or cause it to be given to the State Government concerned or to any person duly authorized by the State Government on its behalf and may for that purpose use such force as may be necessary. Forcible taking of land or dispossession of person is not provided under sub-section (5) of S.10. The same has been provided only under sub-section (6) of S.10. In both events, giving of notice in the manner provided, by the Competent Authority, under sub-sections (5) and (6) of S.10 is mandatory as has been held in the case of State of Uttar Pradesh Vs. Hari Ram, (2013) 4 SCC 280. Apex Court, in the said decision has held as follows:
"37. The requirement of giving notice under sub- sections (5) and (6) of Section 10 is mandatory. Though the word "may" has been used therein, the word "may" in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result in the landholder being dispossessed without notice, therefore, the word "may" has to be read as "shall".
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39. The abovementioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the landowner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land.
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42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18-3-1999. The State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act."
(Italicized by me for emphasis)
8. Record shows that after the notice dated 14.08.1995, under S.10(5) of the Act was issued by the 2nd respondent, the Revenue Inspector prepared the mahazar and declared the taking over of the possession of the land, which is not permissible. Indisputedly, in the instant case, notice under S.10(6) of Act was not issued and served and the measures in the manner provided 11 under S.10(6) has not been taken. The record shows that Smt.Savithramma, wife of late Doddaiah has submitted a representation to the effect, that during the life time of her husband, many persons who were houseless constructed houses in 2 acres 20 guntas of the land bearing Sy.No.235/3 of Manchegowdanakoppal and the Government having provided water and other amenities to the houses. She has stated that, only houses are in existence and not the land. A spot inspection having been made and the surveyor having found the unauthorised constructions having come up on the subject property, has submitted a report to the said effect. From the record it is clear that possession of the excess land has not been taken over by the Competent Authority or by any person duly authorized by the State Government, prior to 22.3.1999, when the Act was repealed. In this case, S.3(2)(a) of the Repeal Act applies and consequently, the proceedings initiated by the 2nd respondent stood abated. The statement of law in the decision of the Apex Court, noticed above, squarely applies.
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In the result, writ petition is allowed and it is declared that the proceedings initiated by the 2nd respondent under the Act, in respect of the subject property stood abated. Consequently, the respondents shall not interfere with possession and enjoyment of the subject property by virtue of the proceedings initiated and held as above, by the 2nd respondent.
It is made clear that if there is any inter-se disputes between the petitioner and the widow of late Doddaiah or the persons claiming under Doddaiah, this order shall not have any effect on such claims and the petitioner shall get his claim decided in the competent Civil Court.
No costs.
Sd/-
JUDGE Ksj/-