Karnataka High Court
Doddamarigowda @ Marigowda vs The State Of Karnataka on 18 December, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18th DAY OF DECEMBER 2012
BEFORE:
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos. 19679-680 of 2001 (LA-UDA)
CONNECTED WITH
WRIT PETITION No.21654 OF 2001 (LA-RES)
IN W.P.Nos. 19679-680 of 2001
BETWEEN:
1. Doddamarigowda
@ Marigowda,
Son of Doddabeeregowda,
Major,
Since dead
by Legal representatives,
1(a) Beerappa,
Son of Doddamarigowda,
1(b) Muddamma,
Wife of Doddamarigowda,
Both are residing at
Hinkal Village,
2
Kasaba Hobli,
Mysore Taluk.
[vide court order
Dated 26.3.2002
Legal representatives of
petitioner is brought on record] ...PETITIONERS
(By Smt. S.R. Anuradha, Advocate )
AND:
1. The State of Karnataka,
Karnataka Urban Development
Authority, by its Secretary
Bangalore.
2. The Commissioner,
Mysore Urban Development
Authority,
Jhansi Rani Laxmi Bai Road,
Mysore.
3. The Special Land Acquisition Officer,
Mysore Urban Development Authority,
Jhansi Rani Laxmi Bai Road,
Mysore. ...RESPONDENTS
(By Shri. P.S. Manjunath, Advocate for Respondent Nos. 2 and 3
Shri. K.S. Malikarjunaiah, Government Pleader for Respondent
No.1)
*****
3
These Writ Petitions are filed under Articles 226 and 227 of
the Constitution of India, praying to quash the notification dated
12.1.2001 vide Annexure-G passed under Section 16(2) of the
Land Acquisition (Karnataka Extention and Amendment) Act
1961; set aside the declaration of general award in LAC 254/8L5-
86 to 435 and 440-85-86 vide Annexure-E as null and void; set
aside the preliminary Notification dated 1.4.81 vide Annexure-C
and final notification dated 29.3.1984 vide Annexure-D issued
under Section 16(1) and Section 18(1) and (2) of the Act
respectively as null and void and direct the respondent herein to
forbear from acquiring the lands in Sy.No.261/2 and 262/2
belonging to the petitioners.
IN W.P.NO.21654 OF 2001
BETWEEN:
A. Papanna,
Son of Annaiah,
Major,
Resident of Hinkal Village,
Mysore Taluk. ...PETITIONER
(By Shri. V.B.Siddaramaiah, Advocate)
AND:
1. State of Karnataka,
Karnataka Urban Development
Authority, by its Secretary,
Bangalore.
2. The Commissioner,
Mysore Urban Development
4
Authority, J.L.B.Road,
Mysore.
3. The Special Land Acquisition
Office,
Mysore Urban Development Authority,
J.L.B. Road, Mysore. ...RESPONDENTS
(By Shri. K.S. Mallikarjunaiah, Government Pleader for
Respondent Nos. 1
Shri. T.P. Vivekananda, Advocate for Shri. P.S. Manjunath,
Advocate for Respondent Nos. 2 and 3)
*****
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the notification dated
12.1.2001 vide Annexure-F, passed under Section 16(2) of the
land acquisition (Karnataka Extension and Amendment) Act, 1961
and etc;
These petitions, having been heard and reserved on
19.11.2012 and 22.11.2012, respectively, and coming on for
Pronouncement of Orders this day, the Court delivered the
following:-
ORDER
The present writ petitions are remanded for a fresh consideration by a division bench of this court in writ appeal in WA 8039/2003 and connected writ appeal in WA 7962/2003, by 5 its judgment dated 27.5.2008. In directing reconsideration of this matter, the Division Bench has pronounced thus:-
"It is well settled in view of the provisions of Section 27 of the Act and the decision of the Division Bench of this Court in A.KRISHNAMURTHY (since deceased by LRs.,) Vs. BANGALORE DEVELOPMENT AUTHORITY AND OTHERS (1996 (3) KAR LAW JOURNAL 506), wherein, the Division Bench of this Court was considering about lapsing of the scheme under Section 27 of the B.D.A. Act, 1976, which is identical to Section 27 of the Act, that there must be dereliction of statutory duty or failure on the part of authority to execute scheme within five years from the date of declaration. It is clear from a perusal of the order passed by the learned single Judge in the light of the said decision of the Division Bench of this court that there is no finding that the scheme for which the lands belonging to the writ petitioners were acquired i.e., for formation of Vijayanagar Residential Layout in Mysore city has lapsed under Section 27 of the Act and the learned single Judge has followed the decision of this Court in ILR 2003 KAR 3667 (CHIKKABORAIAH Vs. STATE OF KARNATAKA REP., BY ITS SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT AUTHORITY, BANGALORE AND OTHERS) and has proceeded to pass the order that the scheme has lapsed on the ground that possession of the 6 land belonging to the writ petitioners has not been taken within reasonable time. It is clear from a perusal of the judgment passed in CHIKKABORAIAH's case (ILR 2003 KAR 3367), which is also pending in appeal -
W.A.No.5961/2003 that in the said case, the Court was considering the question as to whether the lands acquired for the purpose of formation of Bogadhi Layout had lapsed and the finding given in the said case that the scheme pertaining to formation of Bogadhi Layout had lapsed, could not ipso facto be followed to hold that the scheme pertaining to formation of Vijayanagar residential layout in Mysore has also lapsed, without considering the facts in the present case pertaining to acquisition of land for the purpose of formation of Vijayanagar residential layout, with reference to the contentions of the parties and the pleadings.
9. Further, for the purpose of formation of Vijayanagar residential layout, with reference to the contentions of the parties and the pleadings in the present writ petitions, out of which these writ appeals arise, namely, Writ Petition Nos.19679-80/2001 and Writ Petition No.21654/2001 dated 21.10.2003, in the absence kof consideration of the pleadings and contentions of the parties and the finding to the effect that Vijayanagar residential layout scheme has lapsed, the impugned order passed only on the basis of the decision of this Court in 7 CHIKKABORAIAH's case (ILR 2003 KAR 3367), wherein, the question was about the lapsing of the claim pertaining to the formation of Bogadhi Layout, it is clear that the impugned order cannot be sustained and the same is liable to be set aside. The learned counsel appearing for the appellants submitted that in Writ Appeal Nos.2106/2007 and 1944/2007, wherein also the residents of the same village as that of the appellants herein namely, Hinkal Village was considered with reference to the question as to whether the Vijayanagar residential layout scheme had lapsed, the Division Bench has held that on 21.08.2000, that the Vijayanagar residential layout scheme has not lapsed, having regard to the documents produced in the said case pertaining to implementation of the scheme. The learned counsel appearing for the writ petitioners submitted that the said decision was not available, when the writ petitions were disposed of by the learned Single Judge and the facts of the present case will have to be considered as to find out whether there is implementation of the Vijayanagar residential layout scheme and the matter may be remitted to the learned Single Judge, so that the learned Single Judge can consider the matter afresh, in accordance with law and it is open to the learned counsel appearing for Respondent Nos.2 and 3 to cite the said decision also before the learned Single Judge. Having regard to the contentions of the learned counsel appearing for the parties and as the order passed by the learned Single Judge cannot be sustained, we hold that the matter 8 is liable to be remitted back to the learned Single Judge to pass fresh orders in accordance with law, after specifically considering the question as to whether there is lapse of Vijayanagar residential layout scheme under Section 27 of the Act as sought for by the writ petitioners, with reference to the material on record and accordingly, we pass the following :
ORDER The writ appeals are allowed. The order passed by the learned Single Judge in Writ Petition Nos.19679- 80/2001 dated 27.10.2003 and the order passed by the learned Single Judge in Writ Petition Nos.21654/2001 dated 21.10.2003 are set aside and the writ petitions are remitted back to the learned Single Judge for fresh disposal in accordance with law. All the contentions of the parties are kept open to be urged before the learned Single Judge."
2. The facts of the case are as follows:-
Petitioners 1 and 2 claim to be absolute owners of land bearing Survey Nos.262/1 and 262/2, measuring 3 acres 15 guntas and 2 acres 13 guntas, respectively, of Hinkal Village, Mysore Taluk. It is claimed that the land in survey no.262/1 was the ancestral property of petitioner no.1 and the petitioner has 9 inherited the same. The records reflect the name of the petitioners. Similarly, the land in Survey No.262/2 is claimed as belonging to the second petitioner.
It is stated that the City of Mysore Improvement Act, 1903 (Hereinafter referred to as the 'CMI Act' for brevity) was enacted to provide for improvement and future expansion of the City of Mysore. A Board of Trustees was constituted under the CMI Act, which was entrusted with the power to ensure the same. Under the provisions of the CMI Act, that on the conception of an improvement scheme, a Preliminary Notification for acquisition of land to implement the Scheme would be forwarded to the State Government, to obtain sanction of the same, as provided under Section 17 of the CMI Act. It is only after such sanction is accorded, that a declaration of the final notification is published under Section 18(1) and 18(2) of the CMI Act.
It is stated that a preliminary notification dated 1.4.1981 was issued under the CMI Act, proposing to acquire several lands in the vicinity of Hinkal village, which was followed by a final 10 notification dated 29.3.1984, under sections 18(1) and (2) of the CMI Act. The petitioners, however, were not served with any personal notices even though the above said notifications purported to notify the lands of the petitioners as well. It then transpires that a general award was also issued, of which the petitioners were not served with any notice. It is pointed out that the award has been signed by the third respondent on 21.4.1986 and thereafter has been approved by the Board. Hence, it is clear that the award was passed after two years from the date of publication of the final notification and was hence beyond the period prescribed under Section 11A of the Land Acquisition Act, 1894, (Hereinafter referred to as the 'LA Act' for brevity).
It is stated that in the above background in the year 1999, the employees of the second respondent threatened to interfere with the petitioners' possession of the property, on the ground that it has been acquired by the third respondent. The petitioners immediately instituted a civil suit restraining the second respondent from interfering with their possession and there was an 11 interim order directing the parties to maintain status-quo in respect of the suit schedule properties. It is thereafter that the petitioners were able to obtain the particulars of the so-called acquisition proceedings and it was also learnt that the second and third respondents are purported to have issued a notification under Section 16(2) of the LA Act, claiming that possession has been taken on 19.5.1999.
It is also stated that the Karnataka Urban Development Authorities Act, 1987 (Hereinafter referred to as the 'KUDA Act', for brevity) having come into force, in terms of Section 78 of the KUDA Act, the Karnataka Improvement Boards Act, 1976 or the City of Mysore Improvement Act, 1903, ceased to be applicable in respect of such urban area and it is the KUDA Act, which became applicable in respect of the lands in question. In terms of Section 27 of the KUDA Act, where the authority fails to execute a Scheme within five years, from the date of publication of the declaration under Section 19(1), the Scheme would lapse. It is therefore contended that in the present case on hand, the 12 declaration of final notification was made on 29.3.1984 and the award was made two years after the declaration. The possession of the land is claimed to have been taken on 19.5.1999. In view of the very fact that possession has been taken after the expiry of five years from the date of final notification, it would not be permissible for the respondents to take possession of the land when the Scheme itself would have stood lapsed as on that date.
The possession if any taken, after the lapse of the Scheme, would be without authority of law even if it is to be admitted that such possession has been taken. As a matter of fact, the petitioners claim that possession continued to be with them. It is pointed out that in the civil suit filed by the petitioners, the respondents ought to have filed their pleadings to assert the said fact. There is no such claim.
3. It is contended by the learned Counsel for the petitioners, that the acquisition proceedings are also vitiated in the following background:
13
That pursuant to the final notification, the State Government, by its letter dated 29.3.1984, which is at Annexure - N to the writ petition, as regards the formation of Vijayanagar Layout, for the purpose of which, the land had been acquired, had indicated that the approval of the final notification for the entire area would be subject to the condition that initially, only the area required for the first stage of the layout, as sanctioned by the Government could be taken possession of and that the compensation should be disbursed only in respect of such area and in the event, the Government should refuse to sanction other stages of the Scheme, it would result in the acquisition in respect of such remaining area being dropped and therefore, disbursement of compensation in respect of the remaining area ought to be kept in abeyance till the rest of the Scheme was sanctioned. Therefore, the learned counsel would submit that out of a total area exceeding 1023 acres of land which was notified, the State Government has accorded approval for acquisition of only 100 acres in respect of the first stage of the said layout. The general 14 award passed as on 21.4.1986 was after two years from the date of final notification and was also not preceded by any sanction.
It is also contended that the petitioners had proceeded in the belief that there was sanction by the State Government in respect of the impugned notification. It is only when the petitioners were made aware of a letter granting further sanction dated 3.6.1989, that the petitioner had to make inquiries as regards the procedure that was adopted insofar as the preliminary notification dated 1.4.1981 and further proceedings thereto. It is evident that the said notification issued under Section 16(1) of the CMI Act had notified a total extent of land measuring 1023 acres and approval had been sought from the State Government. The State Government, in turn, had accorded approval as already stated, only to the extent of 100 acres by order dated 22.3.1984.
However, the final notification issued thereafter dated 29.3.1984 was in respect of the entire extent of 1023 acres. But, there was no doubt that the sanction for formation of the layout was restricted to 100 acres and the said 100 acres did not include the 15 land of the petitioners. It is thus contended that the final notification was not preceded by necessary approval in respect of the entire extent of land notified and was clearly in violation of law.
Pursuant to the notification issued by the Special Land Acquisition Officer, MUDA under Section 16(2) of the LA Act, claiming that possession of the lands has been taken for formation of various layouts and the lands of the petitioners being indicated therein, the writ petitions in WP 19679-80/2001, which were filed by the petitioners, was allowed by an order dated 27.10.2003, on the ground that possession was taken after five years and therefore, was invalid. That order having been challenged by way of an appeal in WA 8039/2003 by the MUDA, the same was allowed as on 27.5.2008 and the matter was remanded for a fresh consideration with particular reference to the development that may have been taken place in the petitioners' land vis-à-vis the Scheme, under which the development was to be implemented by the respondents.
16
The petitioners have therefore sought and obtained information as regards the development and the stage under which the petitioners' lands were sought to be included. The respondent - MUDA had intimated the petitioners that the petitioners' lands would fall in the III Stage in terms of the sanction accorded by the Government dated 3.6.1989. However, it is found that the government orders sanctioning the III Stage Scheme under Section 18(3) of the KUDA Act was in respect of a composite area of 375 acres and there are no individual survey numbers shown in the said Government Order dated 3.6.1989. The petitioners had therefore sought for further information as to the notification in relation to which the sanction had been accorded as on 3.6.1989, by recourse to the Right to Information Act, 2005. The respondent had intimated that it was in relation to the Preliminary Notification of the year 1990 and final notification dated 30.4.1991. Whereas it was evident that the lands of the petitioners were subject matter of notifications of the years 1981 and 1984. Whereas the preliminary notification under 17 Section 17(1) of the KUDA Act was sought to be issued on 6.2.1990 indicating the land of the petitioner in Survey No.262/1 was sought to be notified and a final notification was issued under Section 19(1) of the KUDA Act dated 30.4.1991. The petitioners had challenged the said notifications in the year 2011 in a writ petition in WP 31427/2011, which was disposed of on 2.11.2011, on the submission on behalf of the MUDA that the petitioners' lands were inadvertently included in the 1990 notification whereas it was already the subject matter of the 1984 notification.
It is the contention of the petitioners that a declaration and a final notification was necessary for every stage if all the stages of development were not taken up together. It is apparently for this reason that the very lands which had been the subject matter of earlier notifications of the years 1981 and 1984 were again subject matter of the notifications of the years 1990 and 1991. The State Government having again chosen to withdraw the notifications of the years 1990 and 1991, for inexplicable reasons, 18 is itself indicative of the fact that even the State Government was conscious of such a requirement, but for reasons best known, has withdrawn the notifications. Therefore, the learned Counsel would submit that the acquisition proceedings are vitiated on all the above infirmities.
The learned Counsel would place reliance on a decision of this court in Ameer Khan and others vs. State of Karnataka and others, 1998(4) Kar.LJ 129, apart from drawing attention to the relevant provisions of law in support of the petition.
4. On the other hand, the learned Counsel for the respondents contends as follows:-
That the petitioners are disentitled to challenge the validity of the acquisition proceedings as the petitioners did not choose to file objections to the preliminary notification in the first instance in respect of the lands in question, pursuant to which, the CITB had sought approval of the Scheme and the State Government had issued a final notification under Section 18(1) of the CMI 19 Act, including the petitioners' lands. The petitioners were issued notices under Sections 9 and 10 of the LA Act and the same was duly acknowledged by one Doddamarigowda, who was the original writ petitioner, who in turn, claimed compensation of Rs.1,10,000/- per acre apart from additional land of 14 guntas for the benefit of the members of his family. All claims filed for such determination were considered and thereafter an award was passed on 21.4.1986. The contention of the petitioners that the Scheme being implemented in phases and certain extents of lands being utilized for the purpose of formation of the layout in a phased manner, though in line with the comprehensive scheme of the layout, consisting of several blocks or stages and the integration of the roads, drains and other civic amenities and facilities, cannot result in abandonment of the scheme nor could it be characterized as being invalid in the respondents having proceeded in a systematic fashion to implement the Scheme. The contention sought to be put-forth that the respondents are noticed to have developed the layout in stages much after the initiation of 20 the acquisition proceedings in the year 1981 and therefore, there was no implementation of the Scheme within a period of five years is not tenable and the respondents are not required to demonstrate the development of every single parcel of land and it was sufficient that there was substantial implementation of the Scheme. It is pointed out that the question whether Vijayanagar Scheme, for which the lands were acquired under the Preliminary Notification dated 1.4.1981, had been substantially implemented within five years or not, had come up for consideration before this court in a writ petition in WP 6207/2005 and by order dated 17.9.2007, while disposing of the writ petition, it was held that the Scheme had been substantially implemented. Against the said order, an appeal in WA 2106/2007 had been filed, which was disposed of along with another appeal in WA 1944/2007 and the finding by the learned Single Judge had been confirmed by the division bench.
It is contended that the argument as to the preliminary and final notifications having been issued without following the 21 procedure prescribed under the Act, is not available to the petitioners as the petitioners had not raised any objection to the preliminary notification and after 30 decades, the petitioners cannot be permitted to question the same. The delay, if any, in taking possession of the land is attributable to the pending civil proceedings, by virtue of which, the award amounts could not be paid and therefore, the taking of possession was also delayed and such delay is attributable to the petitioner-1(a), who was responsible and that therefore cannot be a ground to contend that the acquisition proceedings had been abandoned.
It is contended that the delay that has occasioned in respect of taking possession of portions of the land in question has been explained as being attributable to certain orders passed by Civil Courts. In any event, possession has been taken after the disposal of the said suits and a substantial portion of the Scheme has been implemented, as the major portion of the land was taken possession of in the year 1988 itself. It is pointed out that the 22 respondents were constrained to file additional statement of objections apart from the main statement of objections filed having regard to the petitioner being permitted to amend the writ petition. The respondents having asserted the factual position, negating the petitioner's claim there was no rejoinder filed to controvert the stand of the respondents. However, it was canvassed on behalf of the petitioners that there was approval in respect of 100 acres of the total extent that was notified and there was no approval for the remaining extent. It is hence pointed out that insofar as this aspect of the matter is concerned, it is contended that pursuant to the preliminary notification under Section 16(1) of the CMI Act proposing to acquire 1023 acres for the formation of the Vijayanagar Layout in Hinkal village along Mysore-Hunsur Road and on consideration of the objections that were filed, it was finally decided to acquire 796 acres and 14 guntas in three stages, comprising of 8245 residential sites apart from other sites reserved for commercial purposes and civic amenities. The said proposal was sent to the Government on 23 7.2.1984. It was specifically indicated that the authority did not require any financial assistance for the formation of the layout in three stages. However, the State Government was of the view that only the first stage of the layout in an area of 100 acres may be developed. The extent of 100 acres was however not identified for the formation of the layout. The said approval was accorded on 22.3.1984.
Immediately thereafter, on 29.3.1984, the Government had approved the final notification for acquisition of 1023 acres. The intention of the State Government was hence clear that the acquisition of the entire extent and the formation of the layout in respect of 100 acres could proceed simultaneously. The approval granted to acquire 1023 acres was subject to the condition that the authority should take possession of only an area of 100 acres and compensation should be paid in respect of such area and the State Government had specifically directed that compensation should not be paid for the remaining area till such time the rest of the Scheme was sanctioned. Thereafter, the State Government had 24 passed orders on 15.10.1987, according permission for formation of Vijayanagar II Stage Layout in an area of 496.24 acres. The State Government passed yet another order on 3.6.1989, according approval for formation of Vijayanagar III Stage in an extent of 375.25 acres. Therefore, the State Government had accorded approval for formation of the layout in 962.19 acres. It is hence asserted that the petitioner erroneously contended that the approval was accorded for only 100 acres and the Scheme has been approved in subsequent stages as aforesaid and the layout has been formed in respect of the total extent of 965 acres. Hence, the argument on the part of the petitioner is without merit.
It is also pointed out that this Court, on noticing the very Government Orders, whereby the Government had approved the taking up of development of Vijayanagar I, II and III Stages, has observed thus:-
" In the instant case, before issuing final notification on 31.03.1984, the State Government has approved the scheme under Section 17 of the City of Mysore Improvement Act,1903 for the formation of Vijayanagar 25 Layout I Stage, by the City Improvement Trust Board, Mysore on 22.03.1984. Thereafter, Government has approved the layout to an extent of 768.14 acres of land situated at Hinkal village in 3 stages, totally forming 8245 sites in the layout . Thereafter, by subsequent notification approved the scheme for formation of II and III Stage of Vijayanagar Layout."
Therefore, such a procedure having been followed has been noticed by this court and it has not been found to be illegal or irregular.
The further contention that the Scheme has lapsed on account of the layout not having been formed in the entire land is not a contention that can be accepted. The Scheme cannot be held to have lapsed under Section 27 of the KUDA Act with reference to individual pockets of land. There has been substantial implementation of the Scheme in respect of the entire extent of 965 acres and therefore, the contention of the petitioner on that count is also not tenable.
26
It is also contended that even if it is to be found that there was infirmity in complying with the provisions of the Act insofar as the acquisition proceedings are concerned and the petitioner being permitted to raise such objections at this remote point of time, when the petitioners were not precluded from raising such objections in the first instance at the relevant point of time and when the authority and Government had completed the process of acquisition, to reverse the process and set aside the acquisition proceedings at the instance of the petitioners by this court, would lead to a miscarriage of justice and it is pointed out that the consistent view of the apex court in a catena of decisions is not to permit any such challenge after an inordinate delay, especially when there is no explanation forthcoming for the delay in upsetting the settled position, notwithstanding any infirmity or irregularity that is sought to be set up in challenging the state of affairs. In this regard, reliance is placed on the following passage culled out from Aflatoon vs. Lt. Governor, Delhi, AIR 1974 SC 2077:
27
"A valid notification under Sec.4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The Writ Petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners."
The learned counsel also seeks to place reliance on the following authorities in support of the case of the respondents:
1. B.K.Nanjundaiah vs. The Bangalore Development Authority, AIR 1988 Kar.227,
2. A.Krishnamurthy vs. Bangalore Development Authority, 1996(3) KLJ 506,
3. Dayaprakash Trikambhai vs. Special Land Acquisition Officer, Baroda,AIR 1969 Gujarat 34, 28
4. Northern Indian Glass Industries vs. Jaswant Singh and Others, (2003)1 SCC 335,
5. K.Sathyanarayana vs. State, WP 6207/2005 and connected matters,
6. Sathy Sheshadri vs. State and Others, WP 23558/2005,
7. Ramaniklal N Bhutta vs. State of Maharashtra, 1977 (1) SCC
134.
5. In the light of the above contentions, the primary point for consideration is whether the acquisition proceedings that were initiated under the provisions of the CMI Act and the said Act having ceased to apply with effect from 26.12.1987 upon the KUDA Act having been brought into force in respect of the urban area of Mysore, where the lands in question were situated, are in accordance with law.
It is to be noticed that insofar as the procedure for acquisition is concerned, there is little difference to be found between the two Acts as regards the procedure to be followed. 29 Therefore, the acquisition proceedings having been spread over several years and notwithstanding the replacement of the CMI Act with the KUDA Act, the point for consideration would remain consistent.
The above becomes apparent from a reading of Section 16 of the KUDA Act, which corresponds to Section 15 of the CMI Act. Similarly, Section 17 of the former Act corresponds to Section 16 of the latter Act and so do the succeeding Sections in both the Acts. It is also clear that the development Scheme to be drawn up is a composite Scheme, indicating in sufficient detail, the limits of the area comprised in the Scheme, the land to be acquired to execute the Scheme, the laying and relaying any land for the formation of streets, drainage, water supply and electricity, as also to earmark areas as public parks and play grounds, apart from civic amenities. On completion of preparation of such a Scheme, a notification is issued specifying the land which is proposed to be acquired pursuant to the Scheme, A copy of the 30 notification is sent to the local authority for its comments with regard to the Scheme. The Scheme is given wide publicity for publishing in the local newspapers. Personal notices have to be served on persons, whose names appear in the assessment list of the local authority or in the Land Revenue Register in respect of any land or building, which is proposed to be acquired under the said Scheme. After consideration of the representations, if any, received in respect of the notifications so issued, the same is referred to the Government for sanction while furnishing full particulars of the Scheme, including any modifications therein, the complete plans and estimates of the cost of executing the Scheme, a statement specifying the land proposed to be acquired and so on. On considering the proposal, the Government may accord sanction to the Scheme. Upon sanction, a declaration is published in the Official Gazette to state the fact of such sanction and that the land proposed to be acquired for the purposes of the Scheme is required for a public purpose. The declaration also states the limitation within which the land proposed to be acquired is situated. The 31 purpose for which it is needed, its approximate area and on publication of the said declaration, the authority proceeds to execute the Scheme in terms of the sanction. If within a period of five years from the date of publication of the declaration, the authority fails to execute the Scheme substantially, the Scheme would lapse as laid down under Section 27 of the KUDA Act and it would not be possible to sustain acquisition of the land as Section 36 of the KUDA Act, which makes the provisions of the LA Act applicable to acquisition of land under the KUDA Act, becomes inoperative, as declared under Section 27 of the KUDA Act.
If we notice the sequence of events in the present case on hand, it is not in dispute that a preliminary notification under Section 16 of the CMI Act was issued on 4.1.1981, which would correspond to Section 17 of the KUDA Act. Thereafter, the declaration under Section 18 of the CMI Act was issued on 29.3.1984 in respect of the entire extent of land as contemplated in the Scheme. However, immediately preceding the final 32 declaration, the State Government, by order dated 22.3.1984, has stated thus:
"After considering the proposal of City Improvement Trust Board, Mysore, administrative approval is hereby accorded under Section 17 of the City of Mysore Improvement Act, 1903 to the formation of First Stage of Vijayanagar Layout by the City Improvement Trust Board, Mysore in an area of about 100 acres at an estimated cost of Rs.1.95 acres (Rupees One crore and Ninety Five lakhs) subject to the following conditions:-
(i) the scheme should be entirely self-financing
(ii) the resources of the City Improvement Trust Board, Mysore, should not be locked up in this scheme for a long time.
xx xx xx "
And a further communication issued by the Government of Karnataka to the Chairman, City Improvement Trust Board, Mysore, as follows:
"Further, I am directed to state that the approval of the final notification for the entire area shall be subject to the condition that for the time being only the area required for the First Stage which is sanctioned by the Government 33 should be taken to possession and compensation should be paid only for this area. Regarding the remaining area if Government refuses to sanction the other stages of the scheme, then the acquisition of the remaining area must be dropped. Compensation should not be paid for its remaining area till such time the rest of the scheme is sanctioned."
This communication is issued simultaneously with the final declaration of the same date.
By a subsequent order dated 15.10.1987, the State Government had, pursuant to a proposal sent by the Chairman, City Improvement Trust Board, Mysore, seeking administrative approval for the formation of Vijayanagar Layout II Stage in an extent of 486 acres and 34 guntas, accorded sanction under Section 17 of the CMI Act for the formation of Vijayanagar Layout II Stage.
Thereafter, by a further order dated 3.6.1989, on a proposal sent by the Commissioner, MUDA, for the formation of Vijayanagar III Stage in an area of 375 acres and 25 guntas, 34 sanction was accorded under Section 18(3) of the KUDA Act, for the formation of the Vijayanagar III Stage layout.
As could be seen from the above, the preliminary notification and the final notification was in respect of a composite area of land to be acquired, whereas by recourse to the staggered sanction of proposals to form the layout in stages as aforesaid, is certainly not contemplated under the Scheme of the Act. In other words, the time frame within which the Scheme, as sanctioned by the State Government is to be implemented and the lands acquired pursuant to the same are required to be developed and the substantial implementation of the scheme within the prescribed time frame, is mandatory. The devise resorted to by the State Government and the authority, no doubt driven by financial constraints and other considerations, in seeking to implement the scheme in stages, thereby obviously overrunning the time frame prescribed under Section 27 of the KUDA Act, is a consequence, which would be clearly in violation of the same. A land owner is certainly entitled to raise objection of the Scheme, 35 as sanctioned and notified, not being implemented in its entirety within the prescribed time frame. It would also give rise to a further question that even if there was a partial implementation within the five year period even by recourse to the devise adopted by the State Government and the authority. It would have to be considered whether there was substantial implementation of the project within the five year period. This overarching mandate of the law cannot therefore be circumvented, either by design or on a misconception.
In the present case on hand, there can be no doubt that there was no substantial implementation of the scheme even by the time the administrative approval in respect of the II Stage of the Layout was granted. For the preamble to the said Government Order dated 15.10.1987 would itself indicate that the formation of the sites and the invitation from the public for allotment of such sites in respect of the First Stage, for which administrative approval was accorded by a Government Order dated 22.3.1984 was yet to commence. Therefore, in the above circumstances, it 36 can be said that there was an infirmity which vitiated the acquisition proceedings and since there was a time overrun even in the implementation of the project, assuming that it was possible for the State Government to accord administrative approvals in respect of the scheme at staggered intervals, the scheme had lapsed by the time the administrative approval for the III stage of the layout was granted.
Respondent nos.2 and 3 seeking to rely on B.K.Nanjundaiah's case, for the proposition that the Scheme does not lapse only because some portions of the land contemplated in the Scheme were not acquired under the notifications, was in relation to a case where there were successive declarations under Section 19 of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the 'BDA Act', for brevity) in respect of different areas covered under the Scheme and it was in that context that it was held that the Scheme would not lapse on account of all the portions of the 37 lands covered under the Scheme had not been acquired or developed.
Whereas in the present case on hand, there is no dispute that there was a single declaration, but several administrative approvals and it is that which is questioned.
In A.Krishnamurthy's case, the law laid down is to the effect that the Scheme would lapse under Section 27 of the BDA Act only if there was dereliction of duty or failure on the part of the authority to execute the Scheme specifically within five years from the date of publication in the Official gazette and a declaration under Section 19(1) of the BDA Act, would, in fact, militate against the authority and cannot be pressed into service.
In Northern India Glass Industries, supra, it was held that the delayed challenge to acquisition proceedings would certainly be a factor to consider the maintainability of the challenge and further, if the land is vested in the State, following the taking of possession, the owner of the land could have no right to seek that 38 the land should re-vest in himself, even if the land was not used for the purposes for which it was acquired.
Whether the petitioners in the present case on hand have explained the delay, would of course be a question to be considered.
Secondly, insofar as the possession of the land is concerned, this court having granted an order of status-quo, it could not be said that there was any development over the land in question nor could it be concluded that possession had been taken of the land in question.
The decision in Ramaniklal N Bhutta, supra, is cited in support of the contention that the layout having been developed completely, to enable the petitioners to challenge the acquisition proceedings at this remote point of time was not justified and this court should balance the competing interests.
The petitioners' challenge to the acquisition proceedings is of the year 2001. The petition was disposed of in terms, as 39 referred to hereinabove, by a division bench and the division bench not having taken exception to the challenge by the petitioners, on the ground of delay and the division bench having thought it fit to remand the matter for a fresh consideration and the matter coming up for hearing at this point of time, works to the advantage of the petitioners. And though the primary contentions raised, which are accepted hereinabove, as vitiating the acquisition proceedings are urged as an after-thought, it would remain a valid objection. Therefore, the petitions cannot be rejected on the ground that notwithstanding the infirmity, the delay would defeat the petition.
The further apprehension expressed by the respondents that considering the petitioners' case would throw open the doors to challenge by other land owners on the very same grounds, is misplaced. It is not brought to the attention of this court that there are any other pending petitions, in relation to the same acquisition proceedings nor is it possible for any other land owner to challenge the proceedings, taking cue from the order passed in 40 these writ petitions, notwithstanding the delay that would have to be explained in initiating such proceedings at this point of time.
Therefore, while making it clear that the writ petition is allowed in terms as prayed for, but restricting the same to these writ petitions and to the lands in question of the petitioners. As observed by the Supreme Court in Ramniklal N Bhutta, supra, such a measure is warranted to balance the interests, while also addressing the legal issue involved. As it is not the case of the respondents that the land of the petitioners has been subjected to any development or is it their case that any third-party interests have intervened, no prejudice is caused to the respondents.
Insofar as the connected writ petition in WP 21654/2001 is concerned, the objection by the respondents to the effect that the petitioners, who were not khatedars as on the date of the notification and in the absence of any material records in support of their contention and the same self-serving statement that they have constructed a house or they are residing therein, cannot be accepted, has not been controverted. There is no further material 41 produced in this regard. There was no interim order passed in this writ petition. Therefore, the said petitioner does not stand on the same footing as the petitioner in WP 19679-80/2001.
Accordingly, the petition in WP 21654/2001, is dismissed.
Sd/-
JUDGE nv