Karnataka High Court
Narayan S/O Ganesh Bable @ Kamati vs State Of Karnataka on 21 November, 2017
IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 21 S T DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MRS . JUS TICE K.S .MUDAGAL
WRIT PETITION NO.108631/2014 (ULC)
AND
WRIT PETITION NO.108712/2014
BETWEEN:
1. SRI.NARAYAN S/O.GANESH BABLE @ KAMATI
AGE : 78 YEARS , O CC : AGRICULTURE,
R/O.H.NO .10, SHIVASHAKTI NAGAR,
ANGOL, BELGAUM,
2. SMT.LAXMI W/O .CHINTU BABLE @ KAMATI,
AGE : 73 YEARS , O CC : HOUSEHOLD,
3. SRI.YALLAPPA S/O .CHINTU BABLE @ KAMATI,
AGE : 43 YEARS , O CC :NIL,
4. SRI.VINOD S/O.CH INTU BABLE @ KA MATI,
AGE : 38 YEARS , O CC : PLUMBER.
5. SMT.SUNITA D/O .CHINTU BABLE @ KAMATI,
AGE : 33 YEARS , O CC : HOUSEHOLD,
NO.2 TO 5 ARE R/O.H.NO.457/1,
BABLE GALLI, ANG OL, BELGAUM.
...PETITIONERS
(BY SRI PRASAD KUMAR GUNAKI, ADVOCATE.)
AND:
1. STA TE OF KARNA TAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
M.S.BUILDING, BA NGALORE-01.
2
WP.NO.108631/14 & 108712/14
2. THE DEPU TY COMMISSIONER,
BELGAUM DIS TRICT, BELGAUM.
3. THE TAHSILDAR,
BELGAUM TALUKA,
BELGAUM DIS TRICT.
4. THE BELAGAVI U RBAN DEVELOPMENT AU THORITY ,
REPRESENTED BY ITS COMMISSIONER,
ASHOK NAGAR, BELAGAVI.
... RESPONDENTS
(BY SMT.VEENA HEGDE, AGA FOR R-1 TO R-3 AND
SRI.M .A.HULYAL, ADVOCATE FOR R- 4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITU TION OF INDIA PRAYING TO
DECLARE THAT THE PROCEEDINGS INITIATED UNDER THE
PROVIS IONS OF U RBAN LAND (CEILING AND REGULA TION)
ACT, 1976 IN RESPECT OF 1392.62 SQ.M TRS. OF LAND
COMPRISED IN R.S.NO.710/1 OF ANGOL BELGAUM IN ULC-
D-SR-653+655, D ATED 28.01.1989 VIDE ANNEXU RE-A,
STAND ABATED A ND ARE NULL AND AVOID AND DIRECT
THE 3 R D RESPONDENT HEREIN TO RES TORE THE NAMES
OF THE PETITIONERS IN THE ROR IN RESPECT OF 1392.62
SQ.MTRS . OF LAND COMPRISED IN R.S .NO.710/1 OF
ANGOL BELGAUM.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEA RING IN B-GROUP THIS DAY, THE CO URT
MADE THE FOLLO WING:
3
WP.NO.108631/14 & 108712/14
ORDER
Heard.
2. Petitioners are the owners of lands bearing R.S.No.710/1 measuring 1 acre and R.S.No.710/10 measuring 1 acre 23 gunta situated within Anagol village limits of Belagavi Taluk.
3. On 03.03.1977 the then City Improvement Board of Belagavi issued notification under Section 15(b) of the Karnataka Improvement Boards Act, 1976 for acquisition of the aforesaid two lands along with the other lands for the purpose of formation of the residential layout under Scheme No.6. On 09.04.1980 City Improvement Board, Belagavi issued further notification under Section 18(1) of the Karnataka Improvement Boards Act, 1976 for acquisition of the aforesaid lands. Out of aforesaid two lands the dispute in this case is confined to 1392.62 Square 4 WP.NO.108631/14 & 108712/14 Meters approximately measuring 13 gunta 12 Anna 4 paise in R.S.No.710/1.
4. The land owners did not challenge the notifications. As against that, their Power of Attorney Holder Sri.Shantinath Yallappa Patil conceded to voluntarily hand over the possession of the properties to the acquiring authority that is to Assistant Commissioner, Sub-Division Belagavi. On 20.03.1984 the Land Acquisition Officer -Assistant Commissioner, Belagavi Sub-Division directed the Tahashildar Belagavi to take over the possession of the properties in respect of which notification were issued.
5. On 31.03.1984 the owners of the land delivered the possession of the properties. The petitioners' family delivered the possession of the entire land bearing R.S.No.710/10 measuring 1 acre. Annexure-R-14 and 15 are the mahazar and receipt regarding the delivery of the possession of the property. Pursuant to that, the khata of the property 5 WP.NO.108631/14 & 108712/14 was changed in the name of Belgaum City Improvement Board.
6. When the matters stood thus, the Special Deputy Commissioner, Belagavi who was the competent authority for the Belgaum Urban Agglomeration Areas and the Special Deputy Commissioner, Belagavi passed an order under Section 8(4) of the Urban Land (Ceiling and Regulation) Act, 1976 (which will be referred to hereafter 'ULC Act' for short).
7. In pursuance of the declaration made by the owners of the R.S.No.710/1 under Section 6(1) of the ULC Act, on 28.01.1989 competent authority passed order Annexure-A holding that, the land to the extent of 1392.62 Sq.Mtrs is in excess of the ceiling limit. Thus there arose two parallel proceedings in respect of the same land. One for acquisition of the land by the City Improvement Board, Belagavi and the other one under the ULC Act. Such parallel proceedings led 6 WP.NO.108631/14 & 108712/14 to all these long drawn litigations for want of proper co-ordination between two departments.
8. On 28.02.1989 the competent authority proceeded to issue notification under Section 9(1) of the ULC Act determining the excess vacant land.
9. On 31.10.1989 the competent authority issued notification under Section 10(1) of the ULC Act, inviting the objections of the general public for determination. On 06.10.1992 the competent authority also proceeded to pass an order under Section 10(2) of the ULC Act.
10. On 04.01.1994 the competent authority passed an order under Section 10(3) of the ULC Act, declaring that the excess vacant land namely 1392.62 sq.mtrs. in R.S.No.710/1 out of 1 acre deemed to have vested with the Government.
11. On 18.03.1994 the competent authority issued notice under Section 10(5) of the ULC Act, 7 WP.NO.108631/14 & 108712/14 ordering the owner to surrender/deliver the possession of the excess vacant land in R.Sy.No.710/1 to the state Government, failing which it was stated action will be initiated under Section 10(6) of the ULC Act. However by that time the City Improvement Board Belagavi had taken possession of the land on 31.03.1984 itself.
12. On 06.09.1989 in Land Acquisition Proceedings while passing the award, the Special Land Acquisition Officer excluded 1392.62 sq.mtrs (the excess land) for computing the compensation as well as awarding the compensation. Under Award Annexure-R-16 the compensation was awarded only in respect of rest of the land viz. 26 gunta 3 anna 2 paise in R.Sy.No.710/1.
13. The Land Acquisition Officer in his award states that, since the ULC proceedings are initiated and 1392.62 sq.mtrs is declared as excess area, he does not grant any compensation for the same. 8
WP.NO.108631/14 & 108712/14
14. On 14.09.1994 the petitioners filed petition under Section 18(1) of the Land Acquisition Act, in respect of the entire land in R.Sy.No.710/1. By that time on 04.04.1994 the Revenue Inspector who was directed to take possession of the land under the ULC proceedings inspects the spot and submits the report to the competent authority that the possession of the land is taken by City Improvement Board on 31.03.1984 itself and declarant is not in possession of the excess land therefore ULC proceeding would not be completed.
15. On 01.06.1998 the II Additional Civil Judge Senior Division, Belgaum (reference Court) in LAC No.122/1994 enhanced the compensation from Rs.2,500/- to Rs.3,500/- per gunta. In the reference application, petitioners claimed the compensation of the excess land which was also referred to the reference court.
9
WP.NO.108631/14 & 108712/14
16. The petitioners as well as the Special Land Acquisition Officer challenged the award passed in LAC No.122/1994 before this Court in MFA Nos.3436/1998 and 3847/1998. This Court vide order Annexure-R-21 dated 26.07.1999 dismissed the appeal of the petitioners and partly allowed the appeal of the City Improvement Board which was by that time re-nominated as Belgaum Urban Development Authority.
17. This Court in Annexure-R-21 held that since ULC proceedings are pending in respect of 1392.62 sq.mtrs of the land, the petitioners are not entitled to compensation from the Belgaum Urban Development Authority to that extent of the land. By that time BUDA had taken possession of the entire land, formed the sites over the same and even disposed of them to the allottees.
18. This being the position in 1999 the Government of India enacted the Urban Land (Ceiling 10 WP.NO.108631/14 & 108712/14 and Regulation) Repeal Act, 1999 which came into force on 19.03.1999. Under the said Act the Central Government/Parliament repealed the 1976 Act. Section 1(3) of the 1999 Act states that, the Act comes into force for the state of Haryana and Punjab and in all the Union territories and other states, on adoption of the said law by the respective state Governments as per Article-252(2) of the Constitution of India. State of Karnataka adopted the Urban Land (Ceiling and Regulation) Repeal Act, 1999 on 17.09.1999.
19. Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 is reads as follows:
"4. Abatement of legal proceedings - All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, tribunal or other authority shall abate :11
WP.NO.108631/14 & 108712/14 Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, 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."
20. Thereafter the petitioners gave a new twist to their case and came before this Court in the above writ petition claiming that in pursuance of the ULC proceedings they had not delivered possession to the competent authority and no compensation was paid to them under Section 11, therefore the proceedings have lapsed. They sought declaration to that effect and directions to the 3 r d respondent- the Tahasildar to restore their names in the record of rights in respect of 1392.62 sq.mtrs., area.
12
WP.NO.108631/14 & 108712/14
21. Initially, petitioners had not impleaded Belgaum Urban Development Authority as party to these petitions. On hearing the parties this Court on 18.09.2015 allowed the writ petition and directed the Tahasildar to restore the names of the petitioners in record of rights in respect of the said land.
22. The respondents as well as BUDA challenged the said judgment before the Division Bench in Writ Appeal Nos.100688/2016 and 100041/2016. Those appeals were disposed of on 09.11.2016 modifying the relief in the following terms :
"[i] The BUDA is directed to restore the possession of the lands in question to their owners within one month from the date of the issuance of the certified copy of today's order. Thereafter, the Tahsildar shall restore their names in the record of rights and delete the name of BUDA in respect of the lands in question, 13 WP.NO.108631/14 & 108712/14 OR [ii] In the alternative, if the BUDA wants to retain the land in question, the Land Acquisition Officer or any concerned authorized functionary of the Government shall pass the award in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and the award amounts shall be disbursed to the writ petitioners. This exercise shall be done as expeditiously as possible and in any case within an outer limit of two months from the date of the issuance of the certified copy of today's order."
23. The BUDA challenged the said judgment before the Hon'ble Supreme Court in Civil Appeal Nos.2800-2801/2017. The Hon'ble Supreme Court by 14 WP.NO.108631/14 & 108712/14 its order dated 27.03.2017 allowed the appeals holding that BUDA is a necessary party to the writ petitions and it should have been heard in the matter by the Single Judge. The Supreme Court remitted the matter to the Single Judge with the following directions :
"The case is remitted to the single judge to decide afresh after obtaining the reply from the BUDA. Eight Weeks' time is granted to the BUDA to file its reply. Thereafter the writ petitions be heard and decided as expeditiously as possible.
The appeals are allowed to the aforesaid extent. All the contentions are left open to be decided."
24. Sri.Prasad Kumar Gunaki the learned counsel for the petitioners contends that, the proceedings under the ULC Act have lapsed and consequently the 3 r d respondent either has to restore 15 WP.NO.108631/14 & 108712/14 the land or to pay the compensation in accordance with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
25. As against that, Sri.M.A.Hulyal the learned standing counsel for the 4 t h respondent challenges the claim of the petitioners on the following grounds :
[a] The petitioners have slept over the matter two decades. On the ground of the delay the petition shall fail.
[b] Though the petitioners themselves delivered the possession of the property to BUDA they suppressed that fact in the petition. Therefore very petition is liable to be dismissed. [c] Alternatively, since petitioners did not claim the possession from the ULC authority or seek the declaration in that regard immediately after 1999 they are not entitled to the compensation under the Land Acquisition Act, 2013. 16
WP.NO.108631/14 & 108712/14
26. There is no dispute that in the proceedings under the Urban Ceiling Act, neither the possession was delivered to the competent Officer nor he paid the compensation to the petitioners. Therefore, by virtue of Section 4 of the Urban Land Ceiling & Regulation Repeal Act 1999 the ULC proceedings stood abated. It is also not disputed that the petitioners have delivered the possession of the property to the 4 t h respondent as long back as on 31.03.1984.
27. The 4 t h respondent, though utilized the land, all along maintained that it is not liable to pay compensation since ULC proceedings are pending. Therefore, no compensation is paid to the petitioners either in the ULC proceedings or under the land acquisition proceedings. Having regard to these facts the only question that remains for consideration is whether the land should revert back to the petitioners? If not to which relief they are entitled to? 17
WP.NO.108631/14 & 108712/14 Regarding Delay.
28. The counsel for the 4 t h respondent contends that the petitioners have not approached this court immediately after abatement of the ULC proceedings therefore, they are not entitled to any relief. Irrespective of the petitioners not approaching this court immediately after the abatement of the ULC proceedings in the year 1999, the fact remains that the 4 t h respondent had initiated the land acquisition proceedings and taken possession even before the commencement of the ULC proceedings.
29. If the 4 t h respondent maintained that after commencement of the ULC proceedings, it has no hold over the excess land, it could have at least coordinated with the competent authority under the ULC Act, done the needful. BUDA did not even sought concurrence of the competent authority to continue further acquisition proceedings. BUDA formed the 18 WP.NO.108631/14 & 108712/14 sites and sold the same to the allotees without information to competent authority and enjoyed the usufructs.
30. Even after the lapse of the proceedings under ULC Act, 4 t h respondent has not taken any steps to settle the claim of the petitioners for compensation. It is to be noted that the petitioners fought up to this court in MFA No.3436/1998 and 3847/1998 claiming that since 4 t h respondent has notified and issued notification for acquisition of the entire land they are entitled for compensation for the entire land from the 4 t h respondent.
31. Admittedly, land belongs to the petitioners. Either the ULC authorities or the 4 t h respondent should have paid the compensation to the petitioner. Since petitioners' claim for compensation to the excess land also was turned down by this Court in MFA No.3436/1998 and 3847/1998, till the coming into force of the ULC Act, 1999, the petitioners were 19 WP.NO.108631/14 & 108712/14 without any remedy. Petitioners have lost the valuable right of the property. The only advantage they enjoyed from 1984 till 1999 was the web of the litigation. Therefore, they cannot be driven out of the court only on the ground of delay.
32. However, it is to be noted that the 4th respondent is also a statutory body. The petitioners have not approached this court immediately after coming into force of 1999 Act. They have approached this court only after the enactment of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 to claim higher compensation.
33. The funds of the 4 t h respondent are also the public funds. The conduct of the petitioners shows that they get sudden enlightenment as and when the New Laws are enacted. If they claimed that by virtue of ULC Act, 1999, the proceedings lapsed and the land 20 WP.NO.108631/14 & 108712/14 vests in them, they could have approached the court in 1999 itself.
34. Having regard to the latches on the part of the petitioners, the 4 t h respondent cannot be saddled with the liability of paying compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The petitioners are entitled to the compensation for the land measuring 1392.62 Sq.Mtrs., on par with the compensation awarded by the Reference Court in LAC.No.122/1994 for the remaining land in the same survey number.
Regarding suppression of material facts and fairness:
35. The learned counsel for the 4 t h respondent contends that, in this petition the petitioner have suppressed the fact that they voluntarily delivered the possession to the 4 t h respondent. He contends that the suppression of that fact shows that the petitioners 21 WP.NO.108631/14 & 108712/14 were not fair, therefore, the petitions are liable to be dismissed.
36. As already pointed out, the petitioners fought up to this court claiming compensation for 1392.62 Sq.Mtrs., of land and failed. Therefore, except for abatement of the proceedings under ULC Act by virtue of 1999 Act, they could not have made any claim again as the judgment of this court was staring at them adversely.
37. Since their request for compensation was turned down in those appeals, they have claimed the relief to enter their names in the record of rights. Until the 4 t h respondent was made party to these proceedings, the petitioners had no occasion to make any reference to the LAC proceedings initiated by 4 t h respondent. Still when the name of the 4 t h respondent had appeared in the record of rights of property in dispute, the petitioners should have explained that in their petitions. But principle of fairness is not 22 WP.NO.108631/14 & 108712/14 unilateral. One who expects that shall reciprocate the same.
38. Admittedly, though the 4 t h respondent was aware about ULC proceedings it proceeded to seek award through the Special Land Acquisition Officer for the entire land. The 4 t h respondent did not even reserve the land in dispute without any development or alienation. As already pointed out, though the ownership of the petitioners was admitted neither respondents No.1 to 3 nor 4 t h respondent paid the compensation to the petitioners in any of the proceedings.
39. The 4 t h respondent having acquired the land and utilized that, if it was excess land, at least could have deposited with the competent authority the compensation at the rate prescribed under section 11 of the ULC Act. Then the petitioners could have become defenceless. The principle of fairness cannot be applied only for the benefit of the 4 t h respondent. 23
WP.NO.108631/14 & 108712/14
40. As already pointed out, though the petitioners were aware of the acquisition made by the 4 t h respondent and development made by it, did not claim the compensation immediately after 1999 ULC Act came into force, did not make the 4 t h respondent party to these proceedings initially. Therefore, they cannot claim the compensation from the 4th respondent under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
41. Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, applies where no award is passed. In this case an award was passed by Land Acquisition Officer rejecting the claim of the petitioner in respect of 1392.62 Sq.Mtrs., area. That was reversed by the trial court and the trial court award so far it relates to 1392.62 Sq.Mtrs., land was reversed by this Court. Thus, the award passed 24 WP.NO.108631/14 & 108712/14 by the Special Land Acquisition Officer had become, final so far as the subject matter of this writ petition. Therefore, the New Act cannot be applied.
42. Having regard to these facts, the petition deserves to be allowed in part. It is hereby declared that the proceedings in ULC-D-SR-653+655 before the Competent Authority and Deputy Commissioner, Belagavi are lapsed in respect of land measuring 1392.62 Sq.Ft in R.S.No.710/1 of Angol Village of Belagavi Taluk.
43. It is further declared that the said land is acquired by 4 t h respondent by virtue of notification dated 03.03.1977 issued by the then Karnataka City Improvement Board, Belagavi under Section 15(b) of the Karnataka Improvement Boards Act, 1976.
44. The 4th respondent is directed to pay compensation to the petitioners in respect of 1392.62 Sq.Mtrs. on par with the compensation paid in the 25 WP.NO.108631/14 & 108712/14 award passed by the II Additional Senior Civil Judge (Sr.Dn.) on 01.07.1998 in LAC.No.122/1994 i.e., at the rate of Rs.3,500/- per gunta along with statutory benefits, i.e., 30% soletium, interest at the rate of 9% p.a for the period of one year from the date of dispossession and after one year at the rate of 15% p.a. till the date of payment. Petitioners are also entitled additional market value at the rate of 12% p.a. from the date of the notification till 31.03.1984 i.e., the date of delivery of possession. Petitions are disposed of accordingly.
Sd/-
JUDGE CKK/EM/-