Karnataka High Court
The Dodda Jala Grama Panchyat vs The Special Land Acquisition Officer on 10 December, 2024
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RFA No.134 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
RFA NO. 134 OF 2018(RES)
BETWEEN:
THE DODDA JALA GRAMA PANCHYAT,
DODDAJALA, JALA HOBLI,
BANGALORE NORTH TALUK,
REPRESENTED BY ITS
PANCHAYATH DEVELOPMENT OFFICER.
...APPELLANT
(BY SRI. M. SHIVAPRAKASH, ADVOCATE)
AND:
1. THE SPECIAL LAND ACQUISITION OFFICER
AND COMPETENT AUTHORITY,
NATIONAL HIGHWAY AUTHORITY OF INDIA,
NO.678/3, NEERUBHAVI KEMPANNA LAYOUT,
HEBBAL, BANGALORE - 560 024.
2. SRI. ASGARJAN,
AGED ABOUT 80 YEARS,
R/AT JANSONS BUILDING,
3RD FLOOR 75 & 76,
COMMERCIAL STREET,
BANGALORE - 560 001.
...RESPONDENTS
(BY SMT. PRIYADHARSHINI .C, ADVOCATE FOR
SRI. B.V.PRAKASHA ANGADI, ADVOCATE FOR R1,
SRI. DHYAN CHINNAPPA, SENIOR ADVOCATE FOR
SRI. CHINTAN CHINNAPPA, ADVOCATE FOR R2)
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RFA No.134 of 2018
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT DATED 22.11.2017 PASSED IN LAC
NO.11/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, DEVANAHALLI, DISMISSING THE REFERENCE PETITION
FILED UNDER SEC.3(H)(4) OF THE NATIONAL HIGHWAYS ACT,
1956.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.07.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, V KAMESWAR RAO J.,
DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
CAV JUDGMENT
(PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO) The challenge in this appeal is to a judgment dated 22.11.2017 passed by the Senior Civil Judge and JMFC, Devanahalli ('Civil Judge' for short) in LAC No.11/2012, whereby the learned Civil Judge has answered the reference made by the respondent No.1 in the following manner:
"O R D E R The reference petition filed by the petitioner under Section 3(H) (4) of the National Highways Act -3- RFA No.134 of 2018 1956 is allowed in favour of respondent No.1 with costs.
The respondent No.1 is entitled for entire compensation amount of Rs.6,00,24,293/- along with accrued interest.
The claim petition of the respondent No.2 is dismissed.
Draw award accordingly."
2. The facts as noted from the record are, that the respondent No.1 who was the petitioner in LAC No.11/2012, had made a reference under Section 3H(4) of the National Highways Act, 1956 ('Act of 1956' for short) to the Civil Judge with a prayer to pass appropriate orders as to who is entitled to receive the compensation amount of Rs.6,00,24,293/- in respect of acquired land and structure in Sy.No.80 (New Sy.No.89) of Settigere Village, Jala Hobli, Bengaluru North Taluk measuring 4,200 sq.m. (Schedule property) for the purpose of widening National Highway as per the notification issued under Section 3D of the Act of 1956 dated 02.07.2010. The appellant and respondent No.2 have respectively filed their claim petitions before the -4- RFA No.134 of 2018 learned Civil Judge seeking compensation in respect of the schedule property.
3. The case of the appellant before the learned Civil Judge was that, 4,200 sq.m. land is part of the road margin on NH-7 as per the conditions prescribed in the official memorandum dated 15.02.1991 (conversion order) issued by the Special Deputy Commissioner and the same belongs to the appellant.
4. Whereas, the case of the respondent No.2 was that, he himself and others purchased certain large extent of land in the year 1991 including the schedule property referred in the reference petition. In the year 1992-93, respondent No.2 developed the land into a residential layout. The schedule property was acquired by National Highways Authority of India (NHAI) for widening National Highway. Respondent No.2 being the purchaser of the land and developer of the said residential layout, is entitled to receive the compensation amount. -5- RFA No.134 of 2018
5. It may be stated here that, the case of the respondent No.2 was the original land measuring 9 acres 20 guntas in Sy.No.80 (New Sy.No.89) belongs to Smt. Kanakabasamma; the land was converted for non-agricultural residential purpose vide conversion order. The said Smt. Kanakabasamma sold the said land under six separate registered sale deeds dated 28.05.1991 in favour of respondent No.2 and five others. Upon purchase of the said land, the land owners obtained khata in their name. The land owners agreed to entrust and authorize respondent No.2 to develop a residential layout and divide the sale proceeds from the sale of residential sites and in this regard, they executed separate General Power of Attorney dated 23.12.1991 appointing respondent No.2 as their lawful attorney to develop the land, to effect sale and conveyances, to receive the money, etc. The approval and sanction has been obtained by respondent No.2 from the appellant for formation of residential layouts. In terms of the conversion order, a road margin of 40 mts. from the centre of the National Highway to the extreme edge of construction is required to be maintained. -6- RFA No.134 of 2018 Respondent No.2 provided the same at the planning stage itself. It is also noted from the record that the land owners have executed memorandum of understanding (MOU) dated 25.03.1994 in favour of respondent No.2. Respondent No.2 has developed the land and accordingly, claim was made to receive the entire compensation amount on the acquisition of the schedule property.
6. On the other hand, the case of the appellant before the Civil Judge was that, conversion of the land for non-agricultural residential purposes is subject to conditions to be followed by the person who got the conversion order. Reliance was placed on conditions No.4 to 11 in the conversion order. It was stated that the appellant is a statutory authority constituted under the Zilla Panchayath Raj Act, 1992. The compensation amount to be disbursed has to be paid to the appellant. It was stated that respondent No.2 has misinterpreted the real picture. The entire area which includes the road margin/schedule property for which the conversion is sanctioned is situated within the jurisdiction of -7- RFA No.134 of 2018 Doddajala Gram Panchayat. Hence, the respondent No.2 has no right to the reserved land for road margin (schedule property). The occupants have handed over the road margin (schedule property). Therefore, the question of payment of compensation amount to respondent No.2 for the area reserved for the road margin (schedule property), which is the public property, does not arise. The respondent No.2 has purchased an extent of 9 acres 20 guntas of land measuring 4,13,820 sq.ft. wherein he has got the plan approved for the area of 4,61,222 sq.ft. which is against the law. He has let off the area of 84,832 sq.ft. for parks, roads, etc. Hence, respondent No.2 has no right to receive the compensation.
7. Learned Civil Judge has framed the following points for consideration:
1) Who is entitled for the compensation amount?
2) What order or award?
The finding of learned Civil Judge on point no.1 is the following:
"14. Point No.1:- PW.1 is none other than the claimant No.1 in his evidence by way of affidavit -8- RFA No.134 of 2018 reiterated the facts stated in the claim statement. He has relied upon Ex.P1 to P54. Exs.P2 to P7 are the Original Sale Deeds dated 28.05.1991 reveal that respondent No.1 along with five other persons purchased the property from their vendors for valuable sale consideration amount. Exs.P8 to P13 are the Demand Register Extract with respect of the suit schedule property reveal the name of the 1st respondent and other purchasers of the schedule property. Ex.P14 is the Encumbrance Certificate with respect of the acquired land reveals the name of the respective owners of the schedule property, who acquired the same under Exs.P2 to P7. Ex.P15 is another Encumbrance Certificate reveals the name of the purchasers under the Sale Deeds dated
08.06.2000. Ex.P16 is the No-Encumbrance Certificate reveals that there is no Encumbrance on the properties in question. Ex.P17 is the Village Map of Settigere Village reveals the existence of the acquired land adjacent to the National Highways. The sketch enclosed to Exs.P2 to P7 reveal the existence of the entire schedule property as well as the portion sold under the sale deeds. Therefore, it is clear that to the eastern side of the property purchased by the 1st respondent and others, there exists Bengaluru Bellari National Highways NH-7. Ex.P18 is the Power of Attorney executed by the other purchasers of the schedule property constituted the 1st respondent as their Power of Attorney Holder with respect of the schedule -9- RFA No.134 of 2018 property. Under Exs.P18 to P21, the purchasers have also given right to the respondent No.1 to alienate the schedule property. Ex.P22 is the application seeking information under Right to Information Act wherein one Chintan Chinnappa sought for Certified Copy of Approvals from the respondent No.2. Exs.P24 to P30 are the Photographs of the land acquired by the petitioner. Ex.P31 is the Memorandum of Understanding dated 25.03.1994 executed between the owners of property mentioned in the schedule as well as the claimant No.1 wherein all the remaining owners of the schedule property executed this document in favour of claimant No.1 declaring that they have no right or interest to claim the schedule property. Moreover, none of the said purchasers disputed right of the respondent No.1 in the schedule property nor they are the parties before the Land Acquisition Officer.
15. Ex.P32 is the Public Notice dated 19.08.2010 issued by the petitioner in a National Newspaper, the Times of India dated 19.08.2010 with respect of acquisition of the schedule property as well as other properties.
16. Ex.P33 is the Possession Certificate shows that the respondent No.1 being the absolute owner of the schedule property had handed over the possession of the same in favour of the Special Land Acquisition Officer and competent authority,
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RFA No.134 of 2018Hyderabad, Bengaluru Road. The schedule property has been handed over to the petitioner by the respondent No.1 along with buildings and malkies. This document shows that the possession of the schedule property was with the respondent No.1 and not with the respondent No.2. Ex.P34 is the Certified Copy of the Ordersheet in O.S.No.462/2012 shows that the respondent No.1 herein filed a suit for declaration against the Special Land Acquisition Officer and later the said suit has been dismissed as not pressed. Ex.P35 is the Encumbrance Certificate reveals that claimant No.1 is the owner of the entire schedule property. Ex.P36 is the Layout Plan reveal that existence of 55 sites measuring 3,20,659 square feet, 21,480 square feet for parks 2,023 square feet for transformer, 61,349 square feet for yard roads. It also shows the existence of 55,111 square feet for set- back area for NH-7. The total extent of the land is 4,61,222 square feet and 42,863.586 square meter. Ex.P36 reveal the residential layout comprised with sites, parks, amenities, transformer yard, roads and set-back area. Ex.P37 is the Copy of the Order of the Executive Officer, Bengaluru North Taluk reveal that the respondent No.1 herein filed a dispute wherein the Executive Officer passed an order stating that road margin, civic amenities land handed over the respondent No.2 herein. The said Order has been stayed by the Hon'ble High Court of Karnataka in W.P.No.16235/2014 marked at Ex.P45. Ex.P38 is the
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RFA No.134 of 2018Demand Register Extract reveal the name of 1st respondent. Ex.P47 is the Order of the Deputy Commissioner for conversion of the land. Ex.P48 is the Certified Copy of the Sale Deed dated 04.04.1996 reveal that Azam Jan, Mohamed Usman, Mouzzam Jan, Mukkaram Jan, Farhath Begum, Misbah Jan and Asgar Jan, sold some other properties in favour of M/s. Prestige Garden Resorts Private Limited. Ex.P49 is a Sketch pertaining to a layout by name Green Field and Ex.P50 is a Sketch. Ex.P51 is the Copy of Register of payment of compensation as per Award wherein the compensation has been disbursed to the claimants. Ex.P52 is the Copy of the Final Notification dated 02.07.2010 issued by the Ministry of Road Transport and Highways reveal the acquisition of the schedule properties by the petitioner. Ex.P54 is the Copy of an application filed by the respondent No.1 herein addressed to the petitioner seeking suitable compensation. Ex.P53 is the Copy of the Award passed by the petitioner reveal that after enquiry, the petitioner has passed an Award with respect of the acquired land in various survey numbers including the schedule property.
17. To prove the case of the respondent No.2 Panchayath Development Officer by name Gangaram has been examined as PW.2. He has relied upon Exs.P57 to P65. Ex.P57 is the Certified Copy of the Sale Deed dated 18.01.1962 reveal that
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RFA No.134 of 2018Narayanaswamy .S has sold land in Sy.No.80 measuring 10 acres in favour of Mr. Hanry J. Machado. Ex.P58 is the Certified Copy of the Sale Deed dated 24.09.1992 shows that Mr. Hanry J. Machado sold the same property in favour of My Jad Wet. Ex.P59 is the Certified Copy of the Sale Deed dated 24.08.1981 reveal that said My Jad Wet sold the same property in favour of Shoukath Ali @ Chand Pasha. Ex.P60 is the Certified Copy of the Sale Deed dated 25.08.1981 reveal that My Jad Wet sold the property in favour of Hussain Ali. Ex.P61 is the Certified Copy of the Sale Deed dated 22.06.1988 reveal that Hussain Ali sold the property in favour of Smt. Aturu Kanakabasamma. Ex.P62 is the Certified Copy of the Sale Deed dated 22.06.1990 reveal that Shoukath Ali @ Chand Pasha sold the property in favour of Smt. Aturu Kanakabasamma.
18. The above sale deeds reveal the flow of title over the schedule property from one person to another and finally vested with the respondent No.1 by virtue of Power of Attorney executed by the remaining owners. Ex.P64 is the Certified Copy of the Sale Deed dated 13.11.1961 reveal that Munichinnappa and his brother Nanjundappa sold the property in favour of S. Narayanaswamy. Ex.P65 is the Certified Copy of the Sale Deed dated 03.12.1956 with respect of the schedule property. This document shows the flow of title of the schedule
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RFA No.134 of 2018property and later vested with the respondent No.1 by virtue of Exs.P2 to P7 and Exs.P18 to P21.
19. Ex.P56 is a letter issued by Panchayath Development Officer stating that the land in Sy. No.79, New Sy.No.112 is having Kaneshumari No.9/85 is not within the jurisdiction of Gramapanchayath. Based on this documents, the respondent No.2 would contend that he is entitled for the compensation amount since the acquired land though belongs to the respondent No.1 by virtue of the conversion order, vested with respondent No.2 as the land reserved for civic amenities.
20. According to the respondent No.2 there is a specific conditions made in the conversion order dated 15.02.1991 issued by the Deputy Commissioner, wherein civic amenity land is vested with Gramapanchayath. Ex.P1 is the said sanction of conversion of 9 acres 20 guntas of land in Sy.No.89 of Settigere Village shows that sanction was accorded for conversion of the agricultural land for non-agricultural residential purpose in favour of Smt. Kanakabasamma subject to the conditions. Condition No.4 is that a road margin of 40 meters from National Highway from the center of the road to extreme edge of the construction should be maintained and no construction should be put up within this road margin. The condition No.5 shows that other required road margin and open spaces
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RFA No.134 of 2018etc. and also be reserved in the area as per rules. The condition No.8 shows that all the road portions, approaches, civic amenity areas should be handed over to the Village Panchayath concerned free of cost.
21. Based on the above conditions in the conversion order, the learned Advocate appearing for the respondent No.2 vehemently contended that the 1st respondent is bound to handover the civic amenity areas to the 2nd respondent and hence the 2nd respondent is entitled for compensation amount. It is pertinent to note that though there is a condition laid in the conversion order to handover the civic amenity areas, no such registered Relinquish Deed came to be executed in favour of the respondent No.2. Therefore, it is clear that the Village Panchayath has not acquired the title nor the possession with respect of the set back area. If at all the road margin area is belongs to respondent No.2 it should have been reflected in the award passed by the petitioner. The entitlement of 2nd respondent for compensation is neither reflected in the award nor the said award has been set-aside.
22. Exs.C1 to C11 are the documents produced by the Dodda Jala Gramapanchayath i.e. the respondent No.2. Ex.C1 is the Original Register of Form No.9 reveals that land in Sy.No.89/1 is shown at the first instance and land in Sy.No.89 is shown in the 2nd respondent. The learned Advocate
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RFA No.134 of 2018appearing for the respondent No.1 would contend that normally the serial number of survey number should appear in chronological order and sub survey number would come in the next order. Based on this type of entry, he would contend that it is a created document. On perusal of the Ex.C1 absolutely there is no record to show that the katha of the land in Sy.No.89 changed into the name of 2nd respondent.
23. Ex.C2 is the Demand Register Extract Book in Page No.68 and Ex.C3 is the entries made in Page No.69 reveal that an entry is made to the effect that as per the Order of the Deputy Commissioner in conversion order the name of the owner of the properties rounded off. There is no signature with regard to corrections made and there is no office order number mentioning the proceedings held for change of the katha. Ex.C4 is the Form No.9 for the year 1992-93 in Page No.44, it is mentioned that as per Resolution dated 21.12.1992, in the general body meeting, the katha in Sy.No.89/56 is cancelled. No such resolution is produced by the respondent No.2 nor the cancellation of katha has been proved. Exs.C5 and C6 are the Demand Register Extract and Exs.C7 and C8 are the Original Register and Exs.C9 and C10 are the Immovable Properties Register. Ex.C11 is the Copy of Budget Statistics for the year 1996-97 pertaining to the Village Panchayath. Based on the revenue entries, the respondent No.2 would contend that Village
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RFA No.134 of 2018Panchayath is entitled to receive the compensation amount. The revenue entries made in the Exs.C9 and C10 are not in accordance with law. As per Rule 9 of the Karnataka Panchayathraj Rules 2006, any correction or re-alteration to an account has to be made in red-ink initialed by the Secretary in a single line drawn through the original entry. No, such compliance is found in the revenue entries.
24. In the cross-examination PW.1 has stated that he had purchased 9 acres 20 guntas of land in Sy.No.8, New Sy.No.89 from one Kanakabasamma. After the measurement it is found that total measurement of the land is 4,61,000 square feet. He has further stated that he is the owner of 9 acres 20 guntas of land. He has further stated that the schedule land has been converted into non agricultural purpose. He has categorically stated that he has not executed Relinquishment Deed in favour of respondent No.2. Therefore, the evidence PW.1 reveal that no Relinquishment Deed has been executed in favour of respondent No.2 with respect of transformer area, park civil amenities, road and open space etc.
25. PW.2 is none other than the claimant No.2 represented by its Development Officer by name Gangaram. In his cross-examination stated that being Panchayath Development Office, he knows what are the requirements to be mentioned in concerned Register maintain by the panchayath. He
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RFA No.134 of 2018denied the suggestion that entries made in Ex.C10 is a false entry.
26. On perusal of the evidence it is clear that respondent No.2 has no right over the property which is the subject matter of the sale deed marked as Exs.P2 to P7.
27. The learned Advocate appearing for the claimant No.1 has relied upon a decision reported in:
1. (2009) 10 Supreme Court Cases 686 between State of Goa and Another V/s. Gopal Baburao Gaudo and Others, it was held that, "A. Land Acquisition Act, 1894 Ss.23, 4 & 6- Value and potential of acquired land Determination of - Long strip of land measuring two thirds of acre adjoining highway Held, cannot be treated as land without value or without any potential for development, merely on ground that law relating to highways prohibited construction on either side of the highway, upto a depth of 40 m from centre of highway Potential of such land could be realized by annexing or merging said strip of land with land to its rear In that event, the strip of land would become "access" to rear side land from main road and would also become frontage of the aggregate land, thereby enhancing potential and value of rear side land, as also creating a potential for its own use Therefore, determination of market value of acquired land with reference to value of comparable land at rate of Rs.200ха per square metre cannot be cannot be faulted."
2. He has also relied upon a decision reported in: ILR 1988 KAR 554 between
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Narasimha Shastry V/s. Mangesha Devaru, wherein it was held that, "Where the sale deed mentioned the boundaries specifically and clearly to identify the property, the actual extent of the land not being clear, a recitals has to boundaries should prevail.
3. ILR 2011 KAR 4956 between Madappa V/s. The Deputy Commissioner and Others, wherein it was held that, "The correctness or otherwise of an entry made in revenue records is a matter which are fit to be taken up before the Civil Court to establish the ownership.."
4. ILR 2009 KAR 458 between Jayamma V/s. The Assistant Revenue Officer and Others, wherein it was held that, "Katha only does not confer title to the immovable property."
28. Admittedly, no Relinquishment Deed has been executed in favour of 2nd respondent. So, there can be no transfer of title or interest in favour of respondent No.2 without in a registered deed. It is well settled law that the boundaries prevail over the measurement and extent of the land. The entries made in the Exs.C1 to C10 with respect of the katha of the schedule property is concerned the entries are not made lawfully. It is the duty of the respondent No.2 to prove the lawful change of katha in his name, when the original owner taken the contention that it is a fabricated entries. The respondent No.2 has not obtained Relinquishment Deed in his favour and there is no explanation as to why no Relinquishment Deed has been obtained by the
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RFA No.134 of 2018respondent No.2. The respondent No.2 has failed to prove that he is entitled for the compensation amount. On the other hand, the respondent No.1 has proved that he is the absolute owner of the acquired schedule property. Therefore, the respondent No.1 is entitled for entire compensation amount of Rs.6,00,24,293 with accrued interest. Hence, I answer the above point in favour of respondent No.1."
On point No.2, the learned Civil Judge has passed directions which we have already reproduced above in paragraph No.1.
Submissions:
8. The submission of Sri. M.Shivaprakash, learned counsel for the appellant are in the following paragraphs:
9. That on 12.09.2009, the Ministry of Road Transport (NHAI) issued notification under the Act of 1956 invoking Section 3A. The very purpose and object is 'for upgrading (widening and maintaining NH-7) Hyderabad-
Bengaluru in Bengaluru Rural and Bengaluru Urban' in the village Shettigere, property bearing Sy.No.89 (Old No.80) measuring 4,200 sq.m. On 28.05.1991, respondent No.2
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RFA No.134 of 2018and 5 others purchased the land measuring 9 acres 20 guntas. In the year 1991 itself, an application was made before the Competent Authority Deputy Commissioner, Bengaluru Rural District for conversion of agricultural land into non-agricultural residential purpose in favour of original owner Smt. Kanakabasamma. On 15.02.1991, order of conversion from agricultural to non-agricultural/ residential purposes under Clauses-95(2), 4 and 8 of the Karnataka Land Revenue Act, 1964 ('KLR Act' for short) was passed. According to him, the very intent of legislation for reserving in the layout, area for road, street, open space for public purpose, is that such reservation shall be used by the public. The owner ceases to be the legal owner of the reserved areas. On 18.06.2012, the Land Acquisition Officer passed an award for Rs.6,00,24,293/- which is under deposit before the Civil Court. On 05.04.2012, respondent No.2 filed a suit for injunction and stalled the disbursement of compensation in favour of the appellant.
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RFA No.134 of 2018
10. The suit was withdrawn on 01.06.2013. According to Sri. Shivaprakash, on 25.08.2012, the Appellate Authority viz., the Executive Officer, Taluka Panchayat passed an order holding that the road identified in the layout is the property of the appellant-Panchayat. According to him, the layout plan of Sy.No.89 (xerox copy of which is produced) is not the original plan; incorporation/insertion of set back area is manipulation. In the KLR Act or land converted, there is no word of 'set back'. He stated, the village Shettigere is within the territorial jurisdiction of the appellant- Panchayat. In the original sale deed, on eastern side, boundaries are shown as National Highway. Even in the approved layout, the eastern portion is indicated as road, which the respondent No.2 is claiming as 'set back'. He has heavily relied upon the evidence of PW-1 in support of his stand. He also states that, the witness to whom question was posed as to whom the park, civic amenity site, road, open space in the layout belongs, the witness answered, the same belongs to the Government.
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RFA No.134 of 2018
11. He also stated, the Civil Judge failed and erred to consider and appreciate the admitted evidence of PW-1; extent of land purchased, extent of land converted, extent of land utilized and extent of land earmarked for civic amenity, roads. He also stated that the Civil Judge has also failed to consider and appreciate that the layout produced by respondent No.2 at Ex.P36 is tampered and manipulated in order to misrepresent and mislead the Civil Judge to make a claim for award. A serious illegality apparent on the face of record resulted in miscarriage of justice, which calls for interference. It was also his submission that the conclusion of the Civil Judge that the land converted was subject to mandatory condition that the land owner shall execute a relinquishment deed/ release deed in respect of open space, civic amenities and roads is a perverse finding. He also stated, even the finding in the absence of relinquishment deed, the owner/respondent No.2 would not acquire any right in the property, more so to claim compensation awarded while acquiring the road margin/schedule property, has resulted in total miscarriage of justice, which calls for interference.
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RFA No.134 of 2018
12. The appellant being statutory body and a local Government, has no personal interest; it is the property of the Government, which fact has not been appreciated by the Civil Judge.
13. His submission was also that, the Civil Judge failed to consider and appreciate that the property earmarked for acquisition is road margin and in terms of conversion order, the road margin vest with the Government. Even in the absence of execution of relinquishment deed, the area reserved for civic amenities is deemed to vest with the Government. He also stated that the Civil Judge failed to appreciate the admitted fact in the evidence of PW-1 that, property purchased is 9 acres 20 guntas, in terms of square feet it is 4,13,820 sq.ft., but measurement is shown as 4,61,000 sq.ft., which is a serious admission which the Court failed to consider and appreciate. He has referred to the provisions of Section 95 (2), (4) and (8) of the KLR Act; Section 4 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ('Panchayat Raj Act' for short) and Karnataka Town and
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RFA No.134 of 2018Country Planning Act, 1961 ('KTCP Act' for short). He has relied upon the judgment of the High Court of Bombay at Aurangabad in Kishor Sharad Borawake and Another
-Vs.- The State of Maharashtra and Others [Writ Petition No.2486/2018 and connected matters, decided on 04.07.2019] and the judgment of the Andhra Pradesh High Court in Telecom Colony Residents Welfare Association -Vs.- The State Of Andhra Pradesh [Writ Petition No.1093/2020, decided on 01.05.2020] in support of his submissions.
14. On the other hand, Sri. Dhyan Chinnappa, learned Senior Counsel for respondent No.2 would justify the impugned judgment by stating that the respondent No.2, along with others, purchased certain large extent of land in which the schedule property referred to in the reference petition is comprised. In 1992-93, respondent No.2 developed the said land into a residential layout. In the year 2010, the schedule property was acquired by the Central Government vide notification dated 02.07.2010 under Section 3D of the Act of 1956. Upon acquisition,
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RFA No.134 of 2018the compensation amount payable was determined by the NHAI being the competent authority. Respondent no.2 being the purchaser of the said land and developer of the residential layout, is entitled to receive the compensation amount. However, the appellant had claimed the amount on the basis of certain entries in the revenue registers maintained by the appellant itself. In view of the two claims in respect of disbursement of compensation, the NHAI had referred the dispute to the Civil Judge for determination. On the aspect of title, according to Sri. Chinnappa, the land measuring measuring 9 acres 20 guntas comprised in Sy.No.89 (old Sy.No.80) in Settigere Village, Jala Hobli, Bengaluru North Taluk, Bengaluru was owned by Smt. Kanakabasamma w/o Sri. Veera Raghavaiah. The said land was converted for non-agricultural residential purpose vide official memorandum dated 15.02.1991. Smt. Kanakabasamma sold and conveyed the said lands as parcels under six separate registered sale deeds, all dated 28.05.1991 in favour of respondent No.2 and five others. According to him, upon purchase, the land owners obtained khata to
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RFA No.134 of 2018stand in their respective names. The land purchased in parcels by the aforesaid land owners for developing the same into a residential layout under the name 'Down Town Park'. The land owners agreed to entrust and authorize respondent No.2 to develop the residential layout and divided the sale proceeds from sale of residential sites, amongst themselves and had executed power of attorney on 23.12.1991 in that regard. He stated that acting upon the general power of attorney, the approval and sanction from the appellant-Panchayat was obtained for the formation of the residential layout. The residential layout comprised of plots, parks/amenities, transformer yard, roads and set-back for NH-7. In terms of condition No.4 of the official memorandum dated 15.02.1991, a road margin of 40 mts. from the National Highway from the center of the road to the extreme edge of construction is required to be maintained and no construction is to be put up in the set-back area. According to him, the set-back runs alongside the eastern boundary throughout the residential layout where no sites were formed and left vacant. According to him, set-back
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RFA No.134 of 2018continues to be private property until acquisition and has been maintained by fencing and compounding. It is the respondent No.2 who was instrumental in developing the land in Sy.No.89 (old Sy.No.80) into the residential layout for and on behalf of the other land owners. In view of the aforesaid, the land owners executed a memorandum of understanding (MOU) dated 25.03.1994 in favour of respondent No.2. In terms of the said MOU, the land owners assigned and allotted all the incomes and appreciation from the set-back for NH-7 to the sole entitlement of respondent No.2. According to him, the NHAI has determined the compensation payable in respect of acquisition of schedule property. He also stated that the land though called as set-back for NH-7, has been purchased for valuable consideration. The set-back for NH-7 has been provided in the residential layout and is a private property; other than respondent No.2, no one has a right whatsoever for claiming the compensation. The compensation amount determined by the NHAI in its order dated 18.06.2012 includes a reference to a payment of Rs.6,42,005/- towards acquisition of the stone pillars,
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RFA No.134 of 2018compound wall and fencing on the schedule property, all of which had been put up by respondent No.2.
15. According to Sri. Chinnappa, it is a belated claim of the appellant after the publication of the public notice for claim. The appellant appeared before the NHAI making baseless claims. Upon publication of the final notification and public notice for claim and other proceedings, the NHAI required respondent No.2 to hand over the possession of the schedule property for widening of NH-7. Respondent No.2 handed over possession to NHAI, subject to the NHAI referring the instant dispute to the Court and depositing the compensation amount before the Court. According to him, the case of the appellant before the NHAI is that the set-back/road margin, road/civic amenity are required to be surrendered to the appellant in terms of conditions No.4 and 8 of the conversion order. The set-back for NH-7 is neither road nor civic amenity. It is, as aforesaid, private property. The preliminary notification dated 02.07.2010 and public notice for claim dated 19.08.2010, do not refer to
- 29 -
RFA No.134 of 2018appellant as being the owner or interested person. In fact only the respondent No.2 is specified as the owner along with persons to the exclusion of the appellant. According to him, if the contention of the appellant is accepted, then each and every immovable property, alongside each and every National Highway, for a distance of upto 40 mts. from the center of the road margin would vest with the local authorities such as the appellant. According to Sri. Chinnappa, the claim of the appellant for compensation is on the basis of entries in the property tax register and register of immovable properties are incorrect and without any basis, both in fact and in law. The said entries are self-made and concocted. The said entries have been made by the appellant to unjustly enrich itself. Moreover, the said entries have been made without any notice or knowledge of respondent No.2. The said entries are under challenge by respondent No.2. Apart from the said entries, no other document has ever been produced so as to even remotely substantiate the claim of the appellant. He also stated that the Civil Judge is right to hold that no transfer deed or a relinquishment deed has
- 30 -
RFA No.134 of 2018been executed in favour of the appellant and in the absence of any title document, a mere entry in a revenue register does not confer any right in favour of the appellant. In support of his submissions, he has relied upon the judgment of Madras High Court in Dharmakanny Nadar Siviseshamuthu and Others
-Vs.- Mahalingam Nadar Gopalakrishna Nadar and Others [MANU/TN/0055/1963]. He has also relied on the following judgments of this Court:
i. Narasimha Shastry -Vs.- Mangesha
Devaru [MANU/KA/0143/1987];
ii. Jayasheela Venu and Others -Vs.- A.J.F.
D'souza and Others [MANU/KA/
0030/2021];
iii. Dr. Arun Kumar B C -Vs.- State of
Karnataka and Others [WP No.
9408/2020 and connected matters,
decided on 17.02.2022];
iv. Sri. Arun Venkanna Navali -Vs.- Hubballi
Dharwad Municipal Corporation and
Others [WP No.108208/2016 and
connected matters, decided on
22.12.2021].
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RFA No.134 of 2018
Analysis:
16. Having heard the learned counsel for the parties and perused the record, the issue which arises for consideration is whether the Civil Judge is justified in answering the reference in favour of respondent No.2 by interalia holding that as the appellant has not obtained relinquishment deed in its favour, the appellant has failed to prove that it is entitled to compensation amount as there is no transfer of title or interest in favour of the appellant?
17. It is the conceded case of the parties that respondent-NHAI has acquired the land to the extent of 4,200 sq.m. forming part of the road margin of NH-7. It may be stated here that Sri. Chinnappa has represented the road margin to mean 'set-back'. According to Sri. Shivaprakash, this representation as set-back by the respondent No.2 is fraudulent and mischievous, as no statute provides for such representation. Suffice to state, whether the nomenclature of the road abutting the National Highway should be referred as 'set-back' or 'road
- 32 -
RFA No.134 of 2018margin' is inconsequential as it shall have no bearing on the issue. For the purpose of this judgment, we shall refer the land in question as 'road margin'/'schedule property'. That apart, the issue is not of nomenclature; the issue is of substance as to who is entitled to the compensation on the acquisition of the road margin/schedule property. It is the conceded case of the parties that NHAI has acquired the land and had determined the compensation to be Rs.6,00,24,293/-. Both the appellant and respondent No.2 have made their claims for that amount. It is in view of the rival claims of the appellant and respondent No.2 that a reference was made by the NHAI and paragraphs No.6 to 9 and the prayer made in the reference petition by the NHAI are reproduced as under:
"6. It is submitted that subsequent to the award being passed, out of the total extent of 33600 Sq. Meters of land acquired in Sy. 80, Jala Hobli, Bangalore North Taluk, the 2nd Respondent filed rival claim before the petitioner seeking compensation for the lands acquired Sy. No. 80 situated in Shettigere Village for an extent of 4200 Sq. Mtr. (hereinafter referred to as "Schedule
- 33 -RFA No.134 of 2018
Property") contending that the said extent is part of the road margin on NH-7 left out as per the condition prescribed in the conversion order passed by the Spl. Deputy Commissioner and the same belongs to the 2nd respondent. The 1" respondent on the contrary contended that the said extent was left unused as per the condition stipulated in the Spl. Deputy Commissioner order, but the 1 respondent is the absolute owner of the said extent and claimed compensation. Further the 1" respondent stated that the 1" respondent has filed O.S.NO. 462/12 before the Civil Judge & JMFC, Devanahalli and the court has granted injunction not to disburse the compensation amount.
7. It is submitted that the petitioner on considering the rival claims of the respondents, coming to the conclusion that thee exist a civil dispute between the parties, by its order No. LAQ/NH-7/CA/CR/11-12, dated 18th June 2012, ordered to refer the matter under Section 3-H(4) of NH Act to the competent Civil Court and to deposit the compensation amount of Rs. 6,00,24,293/- (Rupees Six Crore Twenty Four Thousand Two Hundred and Ninety Three only) which included compensation of Rs. 5,93,82,288/- (Rupees Five Crore Ninety Three Lakhs Eighty Two Thousand Two Hundred and Eighty Eight Only) for the lands acquired to an extent of 4200 Sq. Mtr and Rs. 6,42,005/- (Rupees Six Lakh Forty Two Thousand
- 34 -RFA No.134 of 2018
and Five Only) for stone pillar barbed fence etc. The order of the Petitioner is herewith marked and produced as DOCUMENT No.4.
8. It is submitted that in furtherance to the order passed by the petitioner for adjudication of the dispute between the Respondents as to whom the amount of compensation / apportionment of enhanced compensation of Rs. 6,00,24,293/- awarded in respect of land in Sy. No. 80 to an extent of 4200 Sq. Mtrs. (45192 Sq. Ft.) situated in Shettigere Village, Jala Hobli, Bangalore North Taluk, the petitioner, for the reasons aforementioned refers this matter to the decision of the Hon'ble Court under Section 3(H) (4) of the NH Act.
9. The Petitioner submits that the schedule property falls within the jurisdiction of this Hon'ble Court and hence this Court has jurisdiction to try this case.
PRAYER WHEREFORE, the petitioner most respectfully prays that this Hon'ble Court be pleased to pass appropriate orders as to who is entitled to receive the compensation amount of Rs. 6,00,24,293/- (Rupees Six Crore Twenty Four Thousand Two Hundred and Ninety Three Only) and apportionment thereof, if applicable, after conducting enquiry as this Hon'ble Court deems fit in the interest of Justice and Equity."
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RFA No.134 of 2018
18. The respondent No.2 who was the 1st claimant before the Civil Judge, had made a claim, the grounds thereof have already been reproduced above. The case of the appellant was primarily based on certain entries in the property tax/revenue registers maintained by it. The appellant had also relied upon the conversion order dated 15.02.1991 issued by the Deputy Commissioner, wherein road portion, civic amenity areas are to be handed over to the appellant-Panchayat. Much reliance has been placed by Sri. Shivaprakash on the conversion order wherein relevant conditions No.4, 5, 8 and 10 read as under:
"4. A road margin of 40 Mtrs from National High Way and State High Way and 25 Mtrs from District Road from the Centre of the road to extreme edge of the construction should be maintained and no construction should be put up within this road margin as per G. O. No.PWD 7556-665-R-and-B-8- 54-5 and 12-2-1955 and letter No. P1.7(II)57, dated 1/1/1966 of the Ministry of Transport, Government of India.
5. Other required road margins and open spaces etc., should also be reserved in the areas as per rule sand the specifications of the VP concerned as fixed by them.
- 36 -RFA No.134 of 2018
xx xx xx xx xx
7. The layout and buildings plans etc., should be duly got approved by the VP authority concerned and the constructions etc., should be put up in strict conformity with the plans approved by the VP concerned.
8. All road portions approaches, civic amenity areas should be handed over to the VP concerned free of cost.
9. The layout buildings and plans should be duly modified suitably to adjust with the layout schemes that may be taken up in the areas in future."
19. The submission of Sri. Shivaprakash was primarily that in terms of the conversion order, the road margin (schedule property) shall vest with the appellant/ Government even if no relinquishment deed is executed by respondent No.2. It must be stated, the land abutting the National Highway is a road margin [ref: condition No.4] to be used for widening the National Highway. So it is required to be maintained without any construction as per the circulars issued by the Ministry of Transport, Government of India and as such, the road margin is
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RFA No.134 of 2018compulsorily a reserved land. A reference to road margins is also made in clause-5 of the conversion order. They are those which form part of the layout, as such margins are reserved as per rules and specifications of the Village Panchayat-the appellant herein. In this clause, reference is also made to open spaces. It is as per clause-8 the road portions approaches, civic amenity areas need be handed over to the Village Panchayat. The road margin abutting the National Highway is not reserved as per rules and specification of the Village Panchayat, but as per the circulars issued by the Ministry of Transport, Government of India. The Supreme Court in the case of Pt. Chet Ram Vasist -Vs.- Municipal Corporation, Delhi [AIR 1995 SC 430], held as under:
"5. ... ... .... There is no provision in this chapter or any other provision in the Act which provides that any space reserved for any open space or park shall vest in the Corporation. Even a private street can be declared to be a public on the request of owners of the building and then only it vests in the Corporation. In absence of any provision, therefore, in the Act the open space left for school or park in a private colony cannot vest in the Corporation. That is why in England whenever a
- 38 -RFA No.134 of 2018
Private Colony is developed or a private person leaves an open space or park to be used for public purpose he is required to issue what is termed as 'Blight Notice' to the local body to get the land transferred in its favour on payment of compensation. Section 313 which empowers the Commissioner to sanction a layout plan, does not contemplate vesting of the land earmarked for a public purpose to vest in the Corporation or to be transferred to it. The requirement in law of requiring an owner to reserve any site for any street, open space, park, recreation ground, school, market or any other public purposes is not the same as to claim that the open space or park so earmarked shall vest in the Corporation or stand transferred to it. Even a plain reading of sub-section (5) indicates that the land which is subject-matter of a layout plan cannot be dealt with by the owner except in conformity with the order of the Standing Committee. In other words the section imposes a bar on exercise of power by the owner in respect of land covered by the layout plan. But it does not create any right or interest of the Corporation in the land so specified. The resolution of the Standing Committee, therefore, that the area specified in the layout plan for the park and school shall vest in the Corporation free of cost, was not in accordance with law."
(emphasis supplied)
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RFA No.134 of 2018On a reading of the above judgment, it is clear that a land earmarked/reserved for National Highway being for public purpose, shall not vest in the Village Panchayat. The clause-8 stipulates handing over the road approaches, civic amenities, etc., to the Village Panchayat and not road margins, open spaces, so it follows road margins, open spaces are not required to be handed over to the Village Panchayat. Even clause-8 in the conversion order do not say the road approaches, civic amenities, etc., which needed to be handed over to the appellant shall vest with the appellant. So, no right or interest is created even in road approaches, civic amenities, what to talk about road margins abutting the National Highway. Handing over road approaches, civic amenities means, holding them in trust for the interest of plot holders.
20. The above judgment in Pt. Chet Ram Vasist (supra) has been considered by the Supreme Court in the case of Shirdi Nagar Panchayat -Vs.- Kishor Sharad Borawake [2023 SCC OnLine SC 1214], which is an appeal arising from the judgment referred to by
- 40 -
RFA No.134 of 2018Sri. Shivaprakash in Kishor Sharad Borawake (supra). In paragraph No.22 of the said judgment, the Supreme Court has stated as under:
"22. Insofar the reliance by the High Court on the judgment of this Court in the case of Pt. Chet Ram Vashist (Dead) By LRs (supra) is concerned, in the said case, this Court was dealing with the issue of compulsorily reserved land and held that while sanctioning a plan, a Corporation cannot insist on a condition that the same should be transferred to it. However, in the present case, insofar as the compulsory reserved land is concerned, it pertains to 'open space' and we do not propose to interfere with the finding of the High Court in that regard. However, insofar as the 'amenity space' is concerned, it was on the basis of the conditions imposed by the State of Maharashtra while converting the land, which was reserved for a 'non- residential' purpose, to a 'residential' purpose. The landowners not only accepted the said condition but also acting on the basis of the same entered into more than one agreement with the Municipal Council transferring the 'amenity space' in favour of the Municipal Council."
(emphasis supplied)
21. One of the submissions of Sri. Shivaprakash is that, the very intent for reserving road margins, open
- 41 -
RFA No.134 of 2018spaces, civic amenity areas is that such areas shall be used by the public, as such the owner ceases to be the legal owner as the said area vests with the local authority. In this regard, he has relied upon Section 95(2), (4) and (8) of the KLR Act, which we reproduce as under:
"95. Uses of agricultural land and the procedure for use of agricultural land for other purpose.--
xx xx xx xx xx (2) If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall [notwithstanding anything contained in any law for the time being in force] apply for permission to the Deputy Commissioner who may, subject to the provisions of this section and the rules made under this Act, refuse permission or grant it on such conditions as he may think fit.
Provided that in case of any agricultural land assessed or held for the purpose of agriculture, falling within the Local Planning Area for which the Master Plan has been duly published under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) and such land and such diversion is in accordance with the purpose of land use specified in such Master plan. The permission
- 42 -
RFA No.134 of 2018therefore shall be deemed to have been granted subject to payment of fine prescribed under sub- section (7).
Provided further that in Dakshina Kannada District, subject to any law for the time being in force regarding erection of buildings or the construction of wells or tanks, an occupant of 5 [dry (punja) land, wet land or garden land]5 who is not,--
(a) a person registered or liable to be registered as an occupant of such land under section 48A of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962); or
(b) a grantee of such land under section 77 of the said Act, may, without obtaining the permission required under this sub-section and notwithstanding anything contained therein, divert such land or part thereof to any other purpose after sending a prior notice in that behalf, in the prescribed form to the Tahsildar and paying in the prescribed manner, the fine prescribed under sub-section (7).
Provided that the farm Building or farm House so erected shall not be more than ten percent of his holding subject to maximum of such extent of land as may be prescribed.
xx xx xx xx xx
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RFA No.134 of 2018
(4) Conditions may be imposed on diversion in order to secure the health, safety and convenience, and in the case of land which is to be used as building sites, in order to secure in addition that the dimensions, arrangement and accessibility of the sites are adequate for the health and convenience of occupiers or are suitable to the locality and do not contravene the provisions of any law relating to town and country planning or the erection of buildings.
xx xx xx xx xx (8) The permission for diversion of agricultural land for industrial development, educational institutions, Places of worship a Housing Project approved by the State Government, or for purpose of Horticulture under this section shall be deemed to have been granted when permission for purchase of agricultural land is accorded under section 109 of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962) for industrial development, educational institutions, Places of worship, a Housing Project approved by the State Government, or for purpose of Horticulture as the case may be subject to the payment of 10 [fine]10 as may be prescribed."
We are afraid that no such position or implication is contemplated under Section 95(2), (4) and (8) of the KLR
- 44 -
RFA No.134 of 2018Act. In any case, we have already reproduced the legal position in this regard as laid down in the case of Pt. Chet Ram Vasist (supra).
22. Sri. Shivaprakash has also relied upon Section 2(28) and Section 4 of the Karnataka Panchayat Raj Act to contend that the property belongs to the appellant. Section 2(28) defines 'panchayat area' to mean any area declared as panchayat area under Section 4. Section 4 contemplates declaration of panchayat area and establishment of Grama Panchayats. The same reads as under:
"4. Declaration of panchayat area and establishment of Grama Panchayats.- (1) Subject to the general or special orders of the Government, the Deputy Commissioner, if, in his opinion, it is expedient to declare any area comprising a village or group of villages having a population of 1 [not less than five thousand and not more than seven thousand] 1 to be a panchayat area, may, after pervious publication, declare such area as a panchayat area for the purposes of this Act and also specify its headquarter:
Provided that the Government may order that an area with a population of 1 [not less than two
- 45 -RFA No.134 of 2018
thousand five hundred] 1 may be so declared as a panchayat area in such areas of the districts of Belgum, Chickmagalur, Dakshina Kannada, Dharwar, Hassan, Kodagu, Shimoga , 2 [Udupi , Haveri] 2 and Uttara Kannada as may be specified by the Government:
Provided also that the Deputy Commissioner may, with, the previous permission of the Government declare any area comprising a village or group of villages having a population of 1 [either less than five thousand or more than seven thousand] 1 to be a panchayat area.
(2) Subject to the general or special orders of the Government and the provisions of this Act, the Deputy Commissioner may, at the request of the Grama Panchayat concerned, or otherwise, and after previous publication of the proposal by notification, at any time,-
(a) increase the area of any panchayat area by including within such panchayat area any village or group of villages;
(b) diminish the area of any panchayat area by excluding from such panchayat area any village or group of villages;
(c) alter the head quarters of any
panchayat area;
(d) alter the name of any panchayat area;
or
(e) declare that any area shall cease to be a panchayat area.
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RFA No.134 of 2018(3) The Commissioner may either on an application made within thirty days from the date of the notification by any person aggrieved by such notification, or suo moto, and after giving a reasonable opportunity of being heard to the applicant or the Grama Panchayat concerned revise the orders of the Deputy Commissioner under sub- section (1) or sub-section (2) and may also if he considers necessary, modify it as provided in the third proviso to sub-section (1). Every order so passed revising or modifying the order of the Deputy Commissioner shall be published in the Official Gazette.
(4) In every panchayat area declared as such under this section, there shall be established a Grama Panchayat."
The above Sections do not remotely suggest the schedule land (road margin) shall, on the issuance of conversion order, vest with the appellant. In fact, Sri. Shivaprakash has not qualified his submission on the applicability of Sections 2(28) and 4 of the Panchayat Raj Act for deciding the issue which arises for consideration in this appeal. In any case, Sri. Shivaprakash has not placed before the Court any declaration as is contemplated under Section 4 of the Panchayat Raj Act.
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RFA No.134 of 2018
23. The submission of Sri. Shivaprakash is also by relying upon the KTCP Act, but he did not elaborate his submission by relying upon any of the provisions of the said Act.
24. Sri. Shivaprakash has also relied upon the judgment of the High Court of Bombay at Aurangabad in the case of Kishor Sharad Borawake (supra). The issue in the said case was on the maintainability of the orders passed by the Municipal Council to transfer open space and space for amenity free of cost to it and consequential taking possession free of charge as condition for sanctioning the layout. The High Court in the said judgment was concerned with open space and amenity space. The High Court has relied upon the judgment of the Supreme Court in Pt. Chet Ram Vashist (supra), which we have already referred to and dealt with in paragraph No.18 above. The High Court held, the transfer of open space and amenity space by the original owners to the Shirdi Nagar Panchayat in view of the condition laid down for grant of sanction for development as illegal and
- 48 -
RFA No.134 of 2018unsustainable. Suffice to state, the Supreme Court did not interfere with the conclusion of the High Court on open space, which was a reserved area, but within the layout. Insofar as amenity space is concerned, the Supreme Court by relying upon the judgment in the case of Narayanrao Jagobaji Gowande Public Trust -Vs.- State of Maharashtra [(2016) 4 SCC 443], has set aside the judgment of the High Court to that extent.
25. It must be stated here that, the judgment relied upon by Sri. Shivaprakash shall not help the case of the appellant. Unlike in this case (we are concerned with the road margin abutting the National Highway which is reserved for its widening), the High Court was concerned with open space and amenity space within the layout. If road margin abutting the National Highway is comparable to open space (being reserved) in a layout, the High Court has held, the transfer of open space by the original owners to the Shirdi Nagar Panchayat as a condition laid down for grant of sanction for development as illegal and unsustainable, which conclusion of the High Court has not
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RFA No.134 of 2018been interfered by the Supreme Court. It follows, reserved land for public purpose cannot create a right or interest in the local authority.
26. Having said that, the Civil Judge has answered the reference in favour of respondent No.2 by stating, as no relinquishment deed has been executed in favour of the appellant by the respondent No.2, there can be no transfer of title or interest in favour of the appellant.
27. In this regard, we may refer to a judgment of the Co-ordinate Bench of this Court in Sri Pabba Reddy Kodandarami Reddy -Vs.- M/s. Upkar Residences Pvt. Ltd. [WA No.61/2023, decided on 24.11.2023] wherein it is held as under:
"3. xx xx xx xx In our considered view, such an arrangement would not militate the idea of such roads being relinquished to the concerned authority or the local body. That being said, we need to clarify that once the relinquishment is done, the land owner or the developer of the layout will have no right whatsoever, which they had before relinquishment was done."
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RFA No.134 of 2018
28. The above suggest that the transfer of interest presupposes relinquishment in favour of the local authority or local body, which never happened in this case. In the absence of the same, no title or interest in the land gets transferred in favour of the local authority or local body.
29. At this stage, it is also relevant to refer to the judgment of a Single Judge of this Court, as relied upon by Sri. Chinnappa, in the case of Sri. Arun Venkanna Navali and other connected writ petitions (supra). The question (a) which was posed by the learned Single Judge for his consideration reads as under:
"a) Whether the acquired properties in question, which were earmarked for widening of National Highway No.4 in the Master Plan published by local planning authority and earmarked as road margin area in the layout plans approved under the provisions of the KUDA Act, Karnataka Town and Country Planning Act (for short 'KTCP Act') and the KIAD Act fall under the purview of Section 32(5) of the KUDA Act?"
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RFA No.134 of 2018
30. Section 32(5) of the Karnataka Urban Development Act, 1987 ('KUDA Act' for short) reads as under:
"32. xx xx xx xx (5) The Authority may require the applicant to deposit, before sanctioning the application, the sums necessary for meeting the expenditure for making roads, side drains, culverts, underground drainage and water supply and lighting and charges for such other purpose as such applicant may be called upon by the Authority, provided the applicant also agrees to transfer the ownership of the roads, drains, water supply mains, parks and open spaces, civic amenity areas laid out by him to the Authority, permanently without claiming any compensation therefor."
31. Though the provisions which were interpreted by the learned Single Judge are those of KUDA Act, KTCP Act and the Karnataka Industrial Areas Development Act, 1966, but the following conclusion of the learned Single Judge in paragraphs No.14 to 16 is of relevance for the purpose of this case:
"14. Admittedly, the acquired properties in question were earmarked for widening of National Highway No.4 in the master plan published by the local Planning Authority. The Authorities while
- 52 -RFA No.134 of 2018
sanctioning the layout plans (residential/commercial/ industrial) having regard to the fact that the portion of lands which were earmarked for widening of national highway imposed a condition that the said portion of land referred to as margin area should be surrendered or relinquished in favour of the local Authority free of cost. Thus, the acquired properties were earmarked as road margin area in the approved layout plans in the context of the said properties being earmarked for widening of national highway in the master plan published by the local Planning Authority and not as roads which were to be formed in the respective approved layout. The layout plans were sanctioned by imposing a condition that the area earmarked as road margin area specifying that the same should be surrendered in favour of the local Authority free of cost.
15. Section 32 of the KUDA Act specifies that the ownership of roads formed in the layout plans should be transferred to the local Authority without claiming any compensation. In the present cases, the land earmarked for road widening was not incorporated in the development plan and were neither developed as road nor was there a requirement for the owner to develop the road margin area by forming a road and was not part of the area permitted to be developed by the owner under Section 32 of the KUDA Act.
- 53 -RFA No.134 of 2018
16. Road Margin Area means the portion of land at the edge of the property abutting an existing road or a proposed road and not the roads which are formed within the developed property. The acquired properties were all portions of lands at the edge of the property and admittedly abutting the old National Highway No.4. The properties in question acquired for the BRTS project cannot be said that the same comes under purview of Section 32(5) of the KUDA Act. Hence, the denial of compensation to the petitioners on the ground that the acquired properties come under the purview of Section 32(5) of the KUDA Act is not sustainable and violates Articles 300A of the Constitution of India."
(emphasis supplied)
32. It is clear that, road margin in the context of National Highway means the portion of land at the edge of the property abutting an existing road or a proposed road and not the roads which are formed within the developed property. In the above case, the acquired properties were all portions of lands at the edge of the property abutting the old National Highway No.4 and acquired for the BRTS project cannot be said to be the same which comes under purview of Section 32(5) of the KUDA Act. The learned Single Judge has also held that the denial of compensation
- 54 -
RFA No.134 of 2018to the petitioners on the ground that the acquired properties come under the purview of Section 32(5) of the KUDA Act is not sustainable and violates Articles 300A of the Constitution of India. From the conclusion drawn by the learned Single Judge, it follows that the properties which have been acquired by the NHAI as in this case, cannot form part of the layout for the Panchayat to make a claim on the same and consequently for compensation. To be noted, the appeals against the judgment of the learned Single Judge being Writ Appeal No.100266/2022 (and connected appeals) have been dismissed by the learned Division Bench on 07.10.2023, thereby upholding the order of the learned Single Judge.
33. The submission of Sri. Shivaprakash is also by relying upon the entries in khata/revenue registers maintained by the appellant to contend that the appellant has the right over the land. Such entries were made on the basis of the conversion order dated 15.02.1991. The conclusion of the Civil Judge in that regard is in
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RFA No.134 of 2018paragraphs No.22 and 23 of the impugned order, which we reproduce as under:
"22. Exs.C1 to C11 are the documents produced by the Dodda Jala Gramapanchayath i.e. the respondent No.2. Ex.C1 is the Original Register of Form No.9 reveals that land in Sy.No.89/1 is shown at the first instance and land in Sy.No.89 is shown in the 2nd respondent. The learned Advocate appearing for the respondent No.1 would contend that normally the serial number of survey number should appear in chronological order and sub survey number would come in the next order. Based on this type of entry, he would contend that it is a created document. On perusal of the Ex.C1 absolutely there is no record to show that the katha of the land in Sy.No.89 changed into the name of 2nd respondent.
23. Ex.C2 is the Demand Register Extract Book in Page No.68 and Ex.C3 is the entries made in Page No.69 reveal that an entry is made to the effect that as per the Order of the Deputy Commissioner in conversion order the name of the owner of the properties rounded off. There is no signature with regard to corrections made and there is no office order number mentioning the proceedings held for change of the katha. Ex.C4 is the Form No.9 for the year 1992-93 in Page No.44, it is mentioned that as per Resolution dated 21.12.1992, in the general body meeting, the katha in Sy.No.89/56 is
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cancelled. No such resolution is produced by the respondent No.2 nor the cancellation of katha has been proved. Exs.C5 and C6 are the Demand Register Extract and Exs.C7 and C8 are the Original Register and Exs.C9 and C10 are the Immovable Properties Register. Ex.C11 is the Copy of Budget Statistics for the year 1996-97 pertaining to the Village Panchayath. Based on the revenue entries, the respondent No.2 would contend that Village Panchayath is entitled to receive the compensation amount. The revenue entries made in the Exs.C9 and C10 are not in accordance with law. As per Rule 9 of the Karnataka Panchayathraj Rules 2006, any correction or re-alteration to an account has to be made in red-ink initialed by the Secretary in a single line drawn through the original entry. No, such compliance is found in the revenue entries."
The aforesaid is a finding of fact, which conclusion has not been contested by Sri. Shivaprakash in the appeal or in submissions by specifically controverting the findings with proper reasoning. Hence, this plea is unmerited.
34. During the course of hearing, Sri. Chinnappa has stated that in respect of a portion of land bearing Sy.No.79 of Settigere Village which lies opposite to the schedule land in Sy.No.89 (old Sy.No.80) measuring
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RFA No.134 of 20183737.5 sq.m., compensation has been disbursed to the land owner though the land conversion was carried out in terms of official memorandum dated 10.05.1989 with similar conditions, but no claim has been made by the appellant in that regard. The appellant has not contested the stand taken by the respondent No.2 either in the memorandum of appeal or in the written submissions.
35. Insofar as reliance placed by Sri. Shivaprakash on the judgment of the High Court of Andhra Pradesh in the case of Telecom Colony Residents Welfare Association (supra), more specifically paragraphs No.19 and 20 of the judgment is concerned, the issue in the said case was, the action of the respondents in attempting to construct the Grama Sachivalayam (Village Secretariat) building on the land to an extent of 750 sq. yards earmarked for the purpose of park/community hall/play ground situated in Telecom Colony Welfare Association, Gollapudi, Krishna District in spite of availability of various other lands belonging to the respondents therein. It was
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RFA No.134 of 2018in that context, in paragraphs No.19 and 20, the High Court has held as under:
"19. In Municipal Corporation of Greater Mumbai's case (Supra 3), the Apex Court was dealing with the case of selling of the property which was earmarked for Garden in the development plan under the provisions of Maharashtra Regional & Town Planning Act, 1966. Reviewing several of its earlier cases, the Apex Court observed as follows:
"This court has laid down that public interest requires some areas to be preserved by means of open spaces of parks and play grounds, and that there cannot be any change or action contrary to legislative intent, as that would be an abuse of statutory powers vested in the authorities. Once the area had been reserved. authorities are bound to take steps to preserve it in that method and manner only. These spaces are meant for the common man, and there is a duty cast upon the authorities to preserve such spaces. Such matters are of great public concern and vital interest to be taken care of in the development scheme. The public interest requires not only reservation but also preservation of such parks and open spaces. In our opinion, such spaces cannot be permitted, by an action or inaction or otherwise, to be converted for some other purpose, and no development contrary to plan can be permitted.
The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment
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and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of open spaces land to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection."
20. Thus, a conspectus of the statutory provisions and judicial pronouncements would expound that the open spaces vested in the Local Authorities while making layouts are held by them under Public Trust and thereby obligated to utilize such open spaces exclusively for the purpose for which they were earmarked. Any deviation, for however different laudable object, will not subserve the interest of public. Therefore, the proposed construction of Village Secretariat (Grama Sachivalayam) by the respondents cannot be given a stamp of approval."
(emphasis supplied) The said judgment shall not help the case of the appellant herein as the Court has held that the open spaces vested in the local authorities while making layouts are held by them under public trust and thereby obligated to utilize
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RFA No.134 of 2018such open spaces exclusively for the purpose for which they were earmarked.
36. Sri. Shivaprakash has also relied upon the evidence of PW-1 and also Exs.P23 and P36 to contend that PW-1 had admitted the extent of land purchased, extent of land converted, extent of land utilized and extent of land earmarked for civic amenities, road, which has been overlooked by the Civil Judge and also the documents Exs.P1, P35 and P36 clearly demonstrate that the schedule land as road, vest with the appellant- Panchayat. Suffice to state, Ex.P1 is the conversion order. Exs.P35 and P36 are the encumbrance certificate and layout plan. These documents, in whatever manner existing, still the issue which falls for consideration is the entitlement of the appellant to the compensation on the acquisition of the schedule property by the NHAI and the case of both the parties is by relying upon the conversion order. The said issue has to be decided on the basis of interpretation of the clauses thereof. As per our interpretation, it is clear that no right or interest get transferred in favour of the appellant in respect of road
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RFA No.134 of 2018margin abutting the National Highway reserved for widening.
37. In view of our discussion above, we for the reason stated by the Civil Judge and for our reasons, find no merit in the appeal. The same is dismissed.
No costs.
In view of disposal of the appeal, pending IAs are disposed of as infructuous.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(C M JOSHI) JUDGE PA