Karnataka High Court
Sri P K Somaiah vs State Of Karnataka on 29 November, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29Th DAY OF NOVEMBER 2012
BEFORE:
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No. 31728 OF 2010 (LA-RES)
BETWEEN:
Sri. P.K. Somaiah,
Represented by his G.P.A.
Holder Sri. Manje Gowda,
Son of Nanje Gowda,
Aged about 45 years,
No.1, 9th Block,
B.E.M.L. Layout,
Srirampura,
Mysore. ...PETITIONER
(By Shri. D. Pavanesh, Advocate for Shri. M.S. Bhagwat,
Advocate )
AND:
1. State of Karnataka,
Represented by its
Secretary,
Department of Urban
Development,
M.S.Building,
Bangalore - 560 001.
2
2. Mysore Urban Development
Authority,
Represented by its
Commissioner,
J.L.B. Road,
Mysore - 570 001. ...RESPONDENTS
(By Shri. T.P. Vivekananda, Advocate for Shri. P.S. Manjunath,
Advocate for Respondent No.2
Shri. H.C. Shivaramu, Advocate for Respondent No.2
Shri. K.S. Mallikarjunaiah, Government Pleader for Respondent
No.1)
*****
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to declare that acquisition of the
land of the petitioner has lapsed under Section 27 of the Act and
declare that acquisition of the land of the petitioner in Sy.No.34,
extent 1.10 acres of Kuppaluru Village, Mysore, is ab-initio void
and consequently direct the respondents to restore the possession
of the land to the petitioner subject to the petitioner depositing the
compensation amount of `1,40,000/- received by him.
This petition, having been heard and reserved on
15.11.2012 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
ORDER
The facts of the case are as follows:-
2. The petitioner claims that he is the absolute owner of land in Survey No.34 measuring 3 acres 24 guntas at Kuppalur, 3 Kasaba Hobli, Mysore Taluk, and is said to have acquired the same under a sale deed dated 27.11.1996. The revenue records pertaining to the same have been mutated in favour of the petitioner as per Mutation Entry in No.MR.17/96-97.
It is claimed that out of a total extent of 3 acres 24 guntas, he had sold certain extent and has retained 1 acre 10 guntas of the said land, which is the subject matter of this petition.
It transpires that the State Government had proposed to acquire the aforesaid land under the provisions of the Karnataka Urban Development Authority Act, 1987 (Hereinafter referred to as the 'KUDA Act' for brevity), for the benefit of the second respondent - Mysore Urban Development Authority for the purpose of forming a ring road and in this regard, had issued a provisional notification under section 17 of the KUDA Act dated 30.1.1997.
The petitioner had filed objections to the same contending that no Scheme had been formulated as regards the formation of a ring road and that the master plan prepared under the Karnataka 4 Town and Country Planning Act, 1961 (Hereinafter referred to as the 'KTCP Act', for brevity) indicated the area in which the above land is situated as being in the residential zone. However, the objections were not considered and a final notification dated 27.3.1999 was issued. Pursuant to the same, an award was also passed awarding a compensation of Rs.1,12,000/- per acre and the petitioner had received a sum of Rs.1,40,000/- as compensation. The petitioner claims that such amount was received under protest and on condition that if the land was not utilized for the purpose for which it was ostensibly acquired, the same would be handed over to the petitioner, subject to refund of the compensation.
It is the case of the petitioner that even after lapse of five years, the land in question has not been utilized for the purpose of formation of a ring road and according to the petitioner, the ring road itself has been formed and it transpires that the same is away 5 from the property of the petitioner and that the land in question is no loner necessary for the purpose of the said ring road.
Therefore, it is contended that in terms of Section 27 of the KUDA Act, since the land in question has not been utilized for the ring road and even if there was a Scheme, in respect of such formation of the ring road, the same lapses insofar as the land of the petitioner is concerned and therefore, would have to be redelivered to the petitioner, who is ready and willing to refund the compensation amount received.
It is in this background that the petitioner had made a representation dated 3.8.2005, requesting the authority to restore the land on the above ground. Respondent no.2 however has declined to the demand made by the petitioner. It is the petitioner's case that the land cannot be utilized for any proposed purpose of the respondents and therefore the present petition.
It is further contended that the petitioner was under the bona fide impression that the land in question would, in fact, be utilized for formation of the ring road. The formation of the ring 6 road itself was completed only during the year 2010. Neither was the land of the petitioner utilized for the formation of the ring road nor is it necessary to be utilized for peripheral or incidental purposes. It is only after this dawned on the petitioner after completion of the formation of the ring road, that the petitioner has been provoked to file the present writ petition.
Therefore, it is contended that there is a seeming delay in approaching this court for that reason and that there is no delay on the part of the petitioner in seeking to claim a legitimate right over his property. It is also pointed out that any Scheme formulated by the authority would become redundant only after the expiry of five years from the date of passing of the award. Hence, it is one more ground, on which it can be said that there is no delay in the petitioner approaching this court.
3. The learned counsel for the petitioner while reiterating the above circumstances, would submit that the power of eminent domain exercised in the present case on hand has not effectuated 7 the purpose declared in the acquisition proceedings. Therefore, the power exercised is a colourable exercise of power and could even be termed as fraud on power and is vitiated on that count.
It is the case of the petitioner that the land cannot be utilized for any other purpose when once the declared purpose has become redundant. It is further contended that it is practically not possible for the respondent to utilize the land for any other public purpose as the land of the petitioner is surrounded by private layouts that have been formed and therefore, it is not practically possible to include the petitioner's land in any other project for a purported public purpose and the learned Counsel seeks to place reliance on the following authorities in support of his case:
1. State of Punjab and another Vs. Gurdial Singh and others, (1980) 2 SCC 171,
2. Collector (District Magistrate) Allahabad and another Vs. Raja Ram Jaiswal, (1985) 3 SCC 1,
3. Royal Orchid Hotels Limited and another Vs. G. Jayarama Reddy and others, (2011) 10 SCC 608,
4. Shah Hyder Beig and others Vs. The State of Maharashtra and others, (Writ Petition No.1156/1993 8 dated 27.8.1998 passed by the Hon'ble High Court of Judicature at Bombay)
5. Ameer Khan and others Vs. State of Karnataka and others, ILR 1998 KAR 2762,
6. Sri. K. Raju Vs. Bangalore Development Authority, ILR 2011 KAR 120,
7.Tulsi Cooperative Housing Society, Hyderabad and others Vs. State of A.P. and others, (2000) 1 SCC 533.
4. The respondents have entered appearance and have contested the petition.
It is stated that as admitted by the petitioner himself, the land in question is subject matter of acquisition proceedings initiated under a preliminary notification dated 28.2.1998. As the project for formation of the outer ring road was taken up with the assistance of M/s Asian Development Bank (Hereinafter referred to as the 'ADB', for brevity), the approval of the Scheme for the formation was by the State Level Co-ordination Committee at the instance of the State Government, in that, the State Government, by its order dated 30.1.1997, had accorded administrative 9 sanction under Section 15B of the KUDA Act, pursuant to which, the preliminary notification was published. It was further instructed by the State Government under a Circular, that insofar as the projects, which are taken up with the assistance of the ADB, the approval of the State Government contemplated under Section 18(3) of the KUDA Act was dispensed with. It is for this reason that prior sanction of the project was dispensed with. This is not an irregularity or a departure from the legal requirement at the instance of the authority. Since the State Government itself has indicated that no such prior sanction was essential, it would no longer be a ground of challenge and the same would not in any manner invalidate the acquisition proceedings. In any event, the acquisition proceedings having been completed and the petitioner also having received a substantial amount of compensation including the statutory benefits, in a total sum of Rs.2,28,442/- and possession of the land having been taken and a notification under Section 16(2) of the LA Act also having been issued, the land vests with the State free from all encumbrances and therefore, 10 the petitioner's claim that the Scheme, under which the land has been acquired, would lapse if there was no development on the said land in terms of the project envisaged, would not in any manner benefit the petitioner in seeking restoration of the land.
The petitioner seeking to invoke Section 27 of the KUDA Act, it would be necessary for the petitioner to furnish all necessary details regarding the acquisition of lands for a particular Scheme. It would be incumbent on the petitioner to establish that there has been dereliction of statutory duties on the part of the authority. Merely because the land was not used for the purpose for which it was acquired, it could not be said that the entire Scheme would lapse not could it be said that the Scheme would lapse in respect of particular pockets of land, such as that of the petitioner.
Even according to the petitioner, the acquisition was for the purpose of formation of a ring road and therefore the petitioner's primary contention that the Scheme had lapsed and therefore the 11 land should revert to the petitioner, is not a ground that can be raised.
It is further contended that the outer ring road was formed in the year 2002 and it was thrown open for public use in that year itself. It is also pointed out that even if the land of the petitioner has not been utilized for the formation of the ring road, the land however, has vested in the State Government and as such, the acquisition would not lapse. Hence, the contention of the petitioner that the acquisition of the petitioner's land was with a mala fide intention with the fore-knowledge that it would not be utilized for the ring road, is a mischievous and a false allegation. However, the land having been acquired by the State Government, the question of restoration of the land to the erstwhile land owners, even if they had been utilized for a particular project, is not contemplated in law. The acquisition cannot be faulted as being vitiated by fraud or otherwise as sought to be contended by the petitioner.
12
That insofar as the original alignment of the ring road, which was to pass through the land in Survey No.34, it was latently realized that there was a railway over-bridge across the ring road and therefore, in order to facilitate the construction of the ring road below the railway over-bridge, there was a realignment, where the ring road was constructed utilizing the land in Survey No.39, which land incidentally had been acquired for the purpose of formation of a housing layout, namely, Nachanahalli III Stage Layout.
Further, the width of the ring road as envisaged in the year 2002 was only 10 metres. With passage of time, however, it was felt necessary to extend the width to 45 metres and this may entail the use of the land, which was otherwise kept unused in the formation of the ring road.
In any event, the present petition filed in the year 2010 is hopelessly barred by delay and laches and would have to be rejected on that ground alone.
13
The petitioner having received the compensation and possession of the land having been taken, the petitioner cannot be permitted to challenge the acquisition proceedings on the basis of an alleged right reserved for himself. The law does not contemplate any such situation.
The learned Counsel places reliance on the following authorities:-
1. A. Krishnamurthy (since deceased) by legal representatives Vs. Bangalore Development Authority and others, 1996 (3) Kar. L.J. 506 (DB),
2. Northern Indian Glass Industries Vs. Jaswant Singh and others, (2003) 1 SCC 335,
3. State of Kerala and others Vs. M. Bhaskaran Pillai and another, ILR 1997 Kar. 2196.
5. In the above circumstances, whether in the admitted circumstances, the land in question had been acquired and possession had been taken of the same and that it had vested in the State, which in turn, was handed over to respondent no.2 - 14 authority and whether the same ought to be redelivered to the original owner if the land was ultimately not used for the purpose for which it was required, is the point for consideration in this petition.
It is also not in dispute that the petitioner has even received the compensation in respect of the acquired land though it is stated that such receipt was under protest. And that since the land in question has not been utilized even after a lapse of five years, either for the project for which it was acquired or for any other public purpose, the petitioner seeking to reclaim the land is the dispute.
Insofar as the case-law that is relied upon by the petitioner in support of his case is concerned, in the case of State of Punjab vs. Gurdial Singh, supra, the facts would indicate that a parcel of land was selected for the purpose of building a mandi and notifications under Sections 4 and 6 of the LA Act were issued, but the proceedings were denotified within one year and notifications were issued to acquire the land of the respondents. 15 Aggrieved by the same, the respondents had challenged the acquisition proceedings alleging mala fides on the ground that fresh notifications were issued as a result of influence wielded by a minister, who was one of the respondents and who was related to the owner of the land, which was initially sought to be acquired. The High Court had quashed the notifications on the ground of mala fides. After some years, the State Government sought to acquire the land by invoking the emergency provisions under Section 17 of the Act. The High Court had struck down the notifications for the second time and it was in that background that the State was before the apex court. The apex court, while addressing the facts of the case, agreed with the factual findings by the High Court and dismissed the Special Leave Petition.
The said decision would not in any manner advance the case of the petitioners.
In the case of Raja Ram Jaiswal, supra, the facts of the case were that the Hindi Sahitya Sammelan had obtained a large 16 extent of land from the Municipal Board for construction of a building, but it was left vacant and unutilized. In the same vicinity was the land of the respondent in that case, who had, with a view to construct an air-conditioned Cinema Hall, sought a certificate of approval from the Deputy Commissioner under the relevant rules. The Sammelan opposed to the proposal on the ground that the establishment of a Cinema Hall in the vicinity would be destructive of cultural and academic environment. The Deputy Commissioner had overruled the objection and granted the certificate. The Sammelan then made an application to the Government for acquiring the respondent's land on the ground that it was needed for the purpose of extension of its premises and on the basis of the said representation, a notification was issued under Section 4 (1) of the LA Act that the land was needed for a public purpose. There was an error committed in referring to the identity of the property in the notification. This was sought to be corrected by way of a Corrigendum. The Corrigendum was not given publicity as it ought to have been. This was indeed the 17 point of dispute in the proceedings, namely, whether the requirement under the second part of Section 4(1) regarding giving public notice of the substance of the notification in the locality is mandatory and its non-compliance is fatal to the acquisition proceedings. Incidentally, it was also considered whether the acquisition was vitiated by legal mala fides.
The apex court answered both the questions in the affirmative. Therefore, from the facts of that case, it cannot be said that it would have a bearing on the present case on hand.
In Royal Orchid Hotels Limited, supra, the question was whether the land acquired by the State Government at the instance of the State Tourism Development Corporation, a State Government undertaking, for the specified purpose of golf-cum- hotel resort could be transferred by the Corporation to a private individual and corporate entities. It was concluded that the Corporation did not have jurisdiction to transfer the land acquired for a public purpose to companies and thereby allow them to 18 bypass the provisions of Part-VII of the Act and that diversification of purpose for which the land was acquired under Section 4(1) read with Section 6 would amount to fraud on the power of eminent domain.
This decision is sought to be relied upon by the learned counsel for the petitioner to contend that if the land in question in the present case on hand could not be used for one public purpose, the second respondent - authority claiming that it intends to use it for some other purpose is impermissible, as was held in the above case by the apex court. Whether this is tenable shall be presently considered.
In Shah Hyder Beig and others, supra, the contention was that the power to acquire the land of the petitioner was exercised for extraneous and irrelevant purposes and therefore, it was a colourable exercise of power vitiated by malice. This was contended in the following background:-
That the land in dispute was originally owned by the father of the petitioners. The local Municipal Council contended that 19 the land in the master plan was indicated as a site reserved for the purpose of school building and play ground. It was also on record that the Municipality had claimed ownership of the land by adverse possession much earlier, which entailed the predecessors of the petitioners having initiated civil proceedings and a judgment obtained in their favour. In view of this litigation, the relationship between the petitioners' family and the local Municipal Council had soured and even though the petitioners' predecessors had succeeded in the civil proceedings, they were not allowed to construct over the property by the Municipal Council and to add, several cases were filed against them numbering 95 and this, according to the petitioners, was only to harass the father of the petitioners. The other contention was that the land in question was claimed as having been reserved for a school building and a play ground in the master plan of the same vintage, but no steps had been taken over the decades to put up any such construction by the local authority. It is in the above background that acquisition proceedings were initiated, which was opposed by 20 the petitioners. The acquisition proceedings however, culminated in an award and possession was taken of the land in question.
Therefore, having regard to the background, it was contended that the acquisition proceedings were a mere camouflage to the mala fides on the part of the Municipal Council to acquire the land of the petitioners by any means whatsoever. The said decision also may not assist the case of the petitioners.
In Ameer Khan's case, supra, the validity of the acquisition proceedings initiated, without the prior sanction of the Government to the Scheme as required under Section 18(3) of the KUDA Act, was in question. This court has held that such a prior sanction was mandatory.
In K.Raju vs. Bangalore Development Authority, the points for consideration were whether the State Government had power to direct the Bangalore Development Authority to allot sites in 'G' category in terms of a circular and whether the BDA had the 21 power to cancel the sale deeds executed by it earlier in favour of the petitioner or his father.
The points for consideration are totally alien to the facts of the present case and any observations made in the said decision would clearly be irrelevant for application in the present case on hand. Therefore, the same also would not advance the case of the petitioner.
Tulsi Cooperative Housing Society, supra is cited out of context having regard to the facts therein.
On the other hand, the decision cited by respondent no.2 in the case of Krishna Murthy vs. Bangalore Development Authority, supra is in support of the proposition that in order to establish that a Scheme for formation of a layout under the provisions of the Bangalore Development Authority Act, 1976 would lapse, it would have to be established by demonstrating that there was a dereliction of statutory duty or failure on the part of the authority to execute the scheme within five years from the 22 date of declaration. In the present case on hand, there is no such dereliction of duty and even according to the petitioner, the ring road, which was envisaged under the Scheme has been constructed.
In Northern Indian Glass Industries, supra, the Supreme Court found that if a land is not used for the purpose for which it was acquired, the land would vest in the State and that the land owner would have no right to seek revesting of the land in himself, even if the land is not utilized for the purpose for which it was acquired.
To the same effect is the judgment in State of Kerala vs. M.Bhaskaran Pillai, supra, where the apex court has held that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose, for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the 23 public purpose envisaged in the Directive Principles of the Constitution. Hence, insofar as the contention of the respondents that since the land is not utilized for the purpose for which it was acquired, the same should be revested with the owner of the land, is not available to the petitioner in view of the settled position in this regard.
The question whether respondent no.2 could divert the land in question for some other purpose, other than the purpose for which it was acquired, is also answered by the apex court in the above decision cited on behalf of the respondents. It is mere a matter of formality, even if it is the State Government which should decide as to whether the land was capable of being used for any other purpose and whether that other purpose would be a public purpose and therefore, there cannot be any controversy in that regard by the petitioner. The fact that the petitioner has received compensation in respect of the land that is acquired and seeks to contend that since the same has not been utilized for the purpose for which it was acquired, the Scheme would lapse and 24 that the land should revert to the owners is a contention that cannot be accepted and the scheme has not lapsed since admittedly the ring road, which was the object of the Scheme, has been formed. Whether the land of the petitioner which was acquired, if not utilized for that purpose, would be available for the petitioner is clearly answered in the above decisions.
Therefore, the petition fails and is dismissed.
Sd/-
JUDGE nv