Karnataka High Court
Fr Eldho John vs The Mysore Urban Development Authority on 26 June, 2019
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26th DAY OF JUNE 2019
BEFORE
THE HON'BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NOs.47459-461 OF 2018 (LA-UDA)
BETWEEN:
1. FR ELDHO JOHN
S/O LATE V V YOHANNAN
AGED ABOUT 40 YEARS
RESIDING AT NO.194 8TH CROSS
ROYAL GARDENIA BOMMASANDRA
BANGALORE-560 099.
2. SMT SHUBY JOHN
W/O FR JOHN IYPE
AGED ABOUT 40 YEARS
RESIDING AT NO.26
DIVINE ENCLAVE MANGATTU HOUSE
KOTHANUR POST
NEAR SANDRA RICKETS SCHOOL
BANGALORE-560 077.
3. FR M U PAULOSE
S/O LATE M V UTHUPPU
AGED ABOUT 58 YEARS
RESIDING AT NO.13
DIVINE ENCLAVE MANGATTU HOUSE
KOTHANUR POST
NEAR SANDRA RICKETS SCHOOL
BANGALORE-560 077.
... PETITIONERS
(By MR. M S BHAGWAT, ADV.)
AND:
1. THE MYSORE URBAN DEVELOPMENT AUTHORITY
REPRESENTED BY ITS COMMISSIONER
JHANSI LAKSHMI BAI ROAD
MYSORE-570 005.
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2. THE SPECIAL LAND ACQUISITION OFFICER
MYSORE URBAN DEVELOPMENT AUTHORITY
JHANSI LAKSHMI BAI ROAD
MYSORE-570 005.
3. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
REPRESENTED BY ITS SECRETARY
VIKASA SOUDA BANGALORE- 560 001.
... RESPONDENTS
(By MR. E S INDIRESH, AGA FOR R3
MR. T P VIVEKANANDA, ADV. FOR R1 & 2)
---
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS
FROM THE RESPONDENTS PERTAINING TO THE PRELIMINARY
NOTIFICATION DATED 04.01.2007; AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Mr.F.R.Ramesha, learned counsel for the petitioners.
Mr.E.S.Indiresh, learned Additional Government Advocate for the respondent No.1.
Mr.T.P.Vivekananda, learned counsel for the respondent Nos.2 and 3.
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2. The petitions are admitted for hearing. With consent of the learned counsel for the parties, the same are heard finally.
3. In these petitions, the petitioners inter alia seek a writ of certiorari for quashment of preliminary notification dated 04.01.2007 issued by the respondent No.1 insofar as it pertains to the land comprised in Sy.No.31/1 measuring 2 acres 22 guntas situated at Haalalu Village, Kasaba Hobli, Mysuru Taluk.
4. Facts giving rise to the filing of the petitions briefly stated are that the petitioners are the owners of the land measuring 2 acres 22 guntas forming part of Sy.No.31/1 of Haalalu Village, Kasaba Hobli, Mysuru Taluk. The respondents issued a notification under Section 17(1) of the Karnataka Urban Development Authorities Act, 1987 (hereinafter referred to as 'the Act' for short) on 04.01.2007. However, despite a lapse of 11 years, no action was taken to finalise the 4 land acquisition proceedings. Thereupon, the petitioners have approached this Court on the basis of a decision rendered by a Bench of this Court in 'C.G.GANGADHAR Vs. MYSORE URBAN DEVELOPMENT AUTHORITY, MYSORE AND ANOTHER' 2013 (4) K.L.J 559.
5. Learned counsel for the petitioners submits that the rights to hold the land are the constitutional rights which are carried to the petitioners under Article 300A of the Constitution of India and the aforesaid right cannot be taken away except in accordance with law. It is further submitted that the inaction on the part of the respondents for more than 11 years is arbitrary and the controversy involved in these writ petitions is squarely covered by a decision rendered by this Court in C.G.GANGADHAR's case, supra.
6. On the other hand, learned counsel for the respondent Nos.1 and 2 submitted that no time limit is 5 prescribed under the Act for completion of the land acquisition proceeding and therefore, merely on the ground of delay, a notification issued under Section 17(1) of the Act cannot be quashed. While referring to the decision of the Supreme Court in the case of 'BANGALORE DEVELOPMENT AUTHORITY & ANR. Vs. THE STATE OF KARNATAKA AND & ANR.' dated 03.08.2018 passed in Civil Appeal Nos.7661-63/2018, learned counsel for the respondent Nos.1 and 2 submitted that the provisions of the Land Acquisition Act, 1894 cannot be incorporated in the provisions of the Act and there is no requirement of passing an award within a period of two years. In this connection, attention of this Court has been invited to paragraph 19 of the aforesaid decision. It is further submitted that no prejudice on account of delay is being caused to the petitioners as the petitioners would get an adequate compensation.
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7. I have considered the submissions made by both the sides and have perused the record. It is well settled in law that whether the statute prescribes no time limit for exercise of power, the aforesaid power has to be exercised within a reasonable time. The parties are enjoint by the statute to perform their duties within a reasonable time and are answerable to the Court as to why such dues have not been performed by them within the reasonable time. In this connection, reference may be made to the decision of the Supreme Court in the cases of 'RAM CHAND AND OTHERS Vs. UNION OF INDIA' (1994) 1 SCC 44 and C.G.GANGADHAR, supra. In the instant case, undisputedly, the provisions of the Act do not contain any time limit for passing an award. It is also not in dispute that the provisions of the Land Acquisition Act cannot be read into the provisions of the Act and no time limit with reference to the provisions of the Act can be prescribed for passing the award. However, the fact remains that in the instant case, the notification was issued under Section 7 17(1) of the Act on 04.01.2007. However, despite lapse of more than 11 years, no explanation has been offered on behalf of the respondents for inordinate delay in conclusion of the proceedings. The inordinate delay for conclusion of the proceedings render the action of respondent Nos.1 and 2 arbitrary, which cannot be sustained in the eye of law. It is pertinent to mention here that in several cases namely, W.P.No.7373- 77/2015, W.P.Nos.8013-16/2015, W.P.No.26550/2014, W.P.No.32192/2014, W.P.No. 62142/2016 and W.P.No.47710/2017, the notification issued by the respondent Nos.1 and 2 have been quashed on the ground of inordinate delay. It is pertinent to mention here that respondent No.1 have accepted the orders passed by this Court in the aforesaid decisions and have not challenged the aforesaid orders. It is also relevant to mention here that in some of the decisions, same notification has been challenged which has been also accepted by respondent Nos.1 and 2. Therefore, at this stage, learned counsel for the respondents cannot be 8 permitted to turn around and take a different stand in case of the petitioners. However, reliance has been placed by the learned counsel for the respondent Nos.1 and 2 to the decision of the Supreme Court in BANGALORE DEVELOPMENT AUTHORITY & ANR. supra. I deem it appropriate to refer to paragraph 19 of the aforesaid decision which reads as under:
"19. It is also apparent from the facts and circumstances of the case that there were a large number of irregularities in the course of an inquiry under Section 18(1) of the BDA Act. Government had nothing to do with respect to the release of the land at this stage, as the stage of final notification had not reached but still the landowners in connivance with the influential persons, political or otherwise, managed the directions in respect of 251 acres of the land and Special Land Acquisition Collector also considered exclusion of 498 acres of the land against which the question was raised in the Assembly and eyebrows were raised in public domain. Two inquiries were ordered on 24.11.2012 and 19.1.2013 by the State Government and 9 based upon that inquiry, it was ordered and a public notice was issued on 3rd May, 2014 that the BDA will consider the entire matter afresh. In the aforesaid backdrop of the facts, the writ petitions came to be filed, it would not be termed to be the bona fide litigation, but was initiated having failed in attempt to get the land illegally excluded at the hands of Special Land Acquisition Collector and the State Government and after the inquiries held in the matter and the notice was issued to start the proceedings afresh. At this stage, the writ petitions were filed. In the aforesaid circumstances, it was not at all open to the High Court to quash the preliminary notification issued under Section 17, as the land owners, State Government and BDA were responsible to create a mess in the way of planned development of the Bangalore city."
8. From perusal of paragraph 19, it is evident that the Supreme Court in the aforesaid decision has held that in the circumstances mentioned in paragraph 19 of the aforesaid decision, it was not open to the High Court to quash the preliminary notification issued under 10 Section 17 of the Act as the land owners, State Government and Bengaluru Development Authority are responsible to create a mess in the way of planned development of the Bengaluru city. The aforesaid factual situation referred to by the Supreme Court in paragraph 19 of the aforesaid decision does not arise in the obtaining factual matrix of the case. Therefore, on the ground of parity, the petitioners have also been granted similar relief which have been granted to several land owners including similar case C.G.GANGADHAR.
9. In view of the preceding analysis, the impugned notification issued by the respondent Nos.1 and 2 dated 04.01.2007 under Section 17(1) of the Act insofar as the petitioners are concerned, is hereby quashed.
Sd/-
JUDGE RV