Karnataka High Court
Vaijayanti W/O Prabhakar Patil vs State Of Karnataka on 19 August, 2014
Bench: Ram Mohan Reddy, B.Manohar
1
®
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF AUGUST, 2014
PRESENT
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
WRIT APPEAL NOs.30966-30967/2012 (ULC)
BETWEEN
VAIJAYANTI W/O PRABHAKAR PATIL
D/O, ARJUN YESHWANT
KITTUR @ KITTURKAR,
AGED 27 YEARS,
OCC: HOUSEHOLD WORK,
R/O BHAVANI NAGAR, MANDALI ROAD,
BELGAUM-590 001,
REPRESENTING THE ESTATE OF
SRI YESHWANT KITTUR
@ KITTURKAR BEING
GRAND DAUGHTER OF
Y.R.KITTUR. ... APPELLANT
(BY SRI. SHIVARAJ C BELLAKI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
REP. BY IT SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE.
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2. THE SPECIAL DEPUTY COMMISSIONER,
URBAN LAND CEILING, BELGAUM REGION,
BELGAUM-590 001. ... RESPONDENTS
(BY SRI. C.S PATIL, GOVERNMENT ADVOCATE)
THESE WRIT APPEALS ARE FILED U/S.4 AND R/W.
SEC.10(iv)(a) OF THE KARNATAKA HIGH COURT ACT, PRAYING TO,
CALL FOR THE RECORDS IN W.P.NO.67162 AND 67163 OF 2009
(ULC) AND ON PERUSAL OF THE SAME BE PLEASED TO SET
ASIDE THE JUDGMENT AND ORDER DATED:15/06/2012 AND
25/06/2012 PASSED BY THE LEARNED SINGLE JUDGE, AND TO
GRANT PRAYER AS PRAYED FOR IN THE WRIT PETITION.
THESE APPEALS COMING ON FOR DICTATING JUDGMENT
THIS DAY, RAM MOHAN REDDY.J., DELIVERED THE FOLLOWING:
JUDGMENT
These intra court appeals are filed by the unsuccessful petitioner, calling in question the order dated 15.6.2012 of the learned single Judge dismissing WP Nos.67162 & 67163/2009.
2. Learned single Judge dismissed the petition on the following two counts:
[a] petitions were filed eighteen years after the cause of action arose, hence suffered from delay and latches;3
[b] lands in question after being held to be excess vacant land under the Urban Land [Ceiling and Regulations] Act, 1976, for short 'ULCAR Act', was allotted to two beneficiaries after possession was taken over from the petitioner.
3. Briefly stated facts are:
I. One Yeshwant Ram Kittur @ Kitturkar, grandfather of the petitioners, a tenant of agricultural lands measuring 2 acres 30 guntas in RS No.166 of Belgaum Taluk, Belgaum District, on the coming into force of Karnataka Land Reforms Act, 1961, having made an application under section 48-A in form No.7, was conferred with occupancy rights by order dated 26.11.1976 of the Land Tribunal, Belgaum, following which a certificate of registration in form No.10 was issued on 28.2.1981.4
II. Petitioner's father by name Arjun Yeshwanth Kittur filed a declaration under section 6 of the 'ULCAR Act' which when enquired into, the competent authority by order dated 19.6.1982 declared that the declarant held excess vacant land of 9128.70 sq.meters in RS No.166 of Belgaum.
III. The State Government asserted that though by notice on 4.2.1983 the declarant was informed to hand over possession of the excess vacant land nevertheless remained absent, hence possession of excess vacant land was taken on 26.2.1983, by drawing a panchanama.
IV. It is the further case of the Government, that by order dated 17.12.1984, a direction was issued to the competent authority to allot the excess vacant land to two beneficiaries for a specific purpose, to be utilized within a period of one year, laced with a condition that if it is not utilized within the period 5 stipulated, the Government may resume the land.
6098.70 sq. meters of land from out of 9128.70 sq. meters was allotted to the Divisional Engineer, Telegraphs, Belgaum, for construction of office building and the balance area of 3030 sq. meters was allotted in favour of the Assistant General Manager, Syndicate Bank, Belgaum, for construction of an office building. The said two allottees did not comply with the condition of erecting the buildings, within the time prescribed. Having not utilized the land for the specific purpose for which it was allotted, although Syndicate Bank put up a compound wall, notices of even date 16.1.2008 were issued to the allottees to show cause as to why the allotments should not be cancelled. Thereafterwards, by order dated 17.9.2009, the State Government cancelled the allotment and directed the allottees to hand over possession of the said properties, following which possession was taken.6
V. In the meanwhile appellant is stated to have made a representation on 07.10.2008 to the State Government to restore the excess land in her favour on the ground that the allotment made in favour of the aforesaid two allottees was cancelled and that no compensation was paid to her under the ULCAR Act nor was physical possession handed over to the Deputy Commissioner while she continued to be in possession of the excess vacant land. That representation when rejected by order dated 17.09.2009 (Annexure-M) resulted in the writ petition, which was dismissed by the order impugned.
4. These appeals when heard on 11.08.2014 the following order was passed.
"Sri.Ashok Haranahalli, leaned Senior counsel for the appellant, submits:
(a) That the land measuring 9128 sq.mt. in R.S. No.166 of 7 Belgaum Taluk is agricultural land, even according to the Deputy Commissioner, though declared as excess vacant land under Section 8 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short 'the ULCAR Act'), in the order dated 19.06.1982, Annexure 'E'. Learned Sr. counsel places reliance upon the decision of the Apex Court in STATE OF GUJARAT AND ANOTHER Vs. MANOHARS INHJI PRADYUMANS INHJI JADEJA, (2013) 2 SCC 300, wherein at paragraph No.90, it is held thus:-
"90. Whatever stated in Paragraph 28 in Valluri Basavaiah case [Union of India v.Valluri Basavaiah Chowdhary, (1979) 3 SCC 324] can only be understood 8 to mean that when the State Legislature authorizes the Parliament to pass a legislation in respect of the subject matter of Schedule VII List II Entry 18, i.e. "land" it would cover "land and building" and would necessarily include "vacant land" and would take in land of every description including "agricultural land" or any other kind of land. It also went on to hold that the resolution passed by the State Legislature cannot be said to impose any restriction as it would be contrary to the terms of Article 252 (1) of the Constitution. It was further held that the Parliament was empowered to enact the law pursuant to the surrender of the State to enact a law with said subject by formulating its own prescription as to the nature of urban land in different stages.
Beyond that, we do not find any 9 other statement of law propounded in the said decision. Applying the said legal principle, it can only be held that the 1976 Act in having imposed a restriction by way of ceiling on urban land within the urban agglomeration by excluding agricultural land it was a valid piece of legislation. In this respect, the contention of Mr. Soli J. Sorabji that the State Legislature only intended in its authorization to bring about a legislation only on "urban immovable land" and not on any agricultural land is quite appealing. We can also state that in paragraph 32 of the said decision, this Court consciously decided not to dilate on the question any further in that judgment as it can be better dealt with separately at a later point of time. We now hold that the situation has now come where the 10 position has to be made loud and clear to state that the 1976 Act would govern only such of those lands which would fall within its area of operation within urban agglomeration to the specific exclusion of the agricultural lands and consequently the continued application of the unamended 1960 Act remain without any restriction."
(Emphasis supplied)
(b) That possession of the land was not taken either voluntarily or perforce since notice issued under sub-
section (5) of Section 10 of the
ULCAR Act did not fructify
into a voluntary surrender and
there is no material
whatsoever to establish
forcible taking of possession
as required by sub-section (6)
of Section 10 of the ULCAR
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Act. Learned Sr. Counsel
placed reliance upon the
decision of the Apex Court in
GAJANAN KAMLYA PAT IL Vs.
ADDL. COLLECTOR AND
COMPETENT AUTHOR ITY, D.D.
14.02.2014, Civil Appeal
No.2069/2014.
(c) That the order of the Deputy
Commissioner declaring excess vacant land being without inherent jurisdiction, since the land is agricultural land, is non est and could be challenged at any point of time, not attracting dismissal on account of delay and latches. Learned Sr. counsel places reliance upon a decision of a Co-ordinate Division Bench in MALLA IAH BASAL INGAYYA HIREMATH Vs. THE STATE OF KARNATAKA, URBAN DEVELOPMENT 12 DEPARTMENT AND ANOTHER, ILR 2012 KAR 3298.
(d) That the State Government though allotted land measuring 6098.70 sq.mts. in
favour of Divisional Engineer, Telegraphs, Belgaum and 3030 sq.mts. in favour of Assistant General Manager, Syndicate Bank, Belgaum, nevertheless, was cancelled by order dated 17.09.2009, Annexure 'L', since the land was not utilised for the purpose for which it was allotted within the time stipulated.
(e) That the Government paid no compensation for the said land declared as excess vacant land and that in the statement of objections to Writ Petition No.67162 of 2009 [ULC], it was specifically averred that distribution of compensation not only in the case of 13 appellant, but also in other cases, was awaiting receipt of compensation amount from the Government and that the Deputy Commissioner, Belgaum, is making efforts to secure a grant from the Government to be distributed as compensation, which would be done only after the receipt of grant. (f) Lastly, that the Deputy Commissioner did not notify in the gazette the orders as required by sub-section (1) and sub-section (3) of Section 10 of the ULCAR Act. That the appellant has been in possession and enjoyment of the lands in question by cultivating paddy and essentially the lands are agricultural in character and nature. 14
2. Learned Government Advocate, per contra, submits:
(a) That the notifications, under sub-sections (1) and (3) of Section 10 of the ULCAR Act, since issued and duly gazetted are available in the records;
(b) That possession of the land
when not voluntarily
surrendered though notice
dated 26.02.1983 under sub-
section (5) of Section 10 of
the ULCAR Act was issued,
since possession was not
handed over voluntarily,
possession was taken under a
Mahazar of even date
26.02.1983.
(c) That the lands were allotted
to the Divisional Engineer of
Telegraph Authority and
Syndicate Bank, who took
possession of the said land,
pursuant to which the entries in 15 the records of rights were effected in the names of allottees;
(d) That during the life time of the declarant, who filed the declaration under Section 6(1) of the ULCAR Act, neither the order of the Deputy Commissioner nor the taking of possession was challenged, but the daughter of the declarant claims to be in possession and enjoyment, and that the Government was not a party to the Civil suit instituted arraigning the Bank as a defendant.
3. Learned Government Advocate seeks time to obtain the Gazette Notifications and instructions over the present status of the immoveable property in question.
At request, list on 18.08.2014 for further hearing."
---
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5. Regard being had to the facts noticed supra more appropriately that the land in question forming part of a larger extent was classified as agricultural land put to use for agricultural purposes as on 26.11.1976 the date of order of the Land Tribunal conferring occupancy rights and on 28.2.1981 when the Revenue Department issued the certificate of registration as on occupant under the Karnataka Land Reforms Act 1961, and the declaration made by the appellant's father invoking Section 6 of the 'ULCAR Act' in respect of agricultural land, the question is:
'Whether the competent Authority was invested with a jurisdiction to declare the said land as excess vacant land, though ULCAR Act applies to such of those lands which fall within the urban agglomeration to the specific exclusion of the agricultural lands?17
6. The answer to the question need not detain the court for long, in the light of the authoritative pronouncement of the Apex Court in Manoharsinhji's case, supra, that the ULCAR Act was a valid piece of legislation imposing restriction by way of ceiling on urban land within the urban agglomeration by excluding agricultural lands.
(emphasis supplied)
7. A co-ordinate Division Bench in Mallaiah's case supra, observed that "merely because the appellant committed an error in filing a declaration declaring his agricultural lands as urban lands, as it fell within the urban agglomeration, the same cannot be adjudicated mechanically since a duty is cast upon the competent authority under the ULCAR Act to point out whether the land declared by the applicant is urban land or not and whether such a declaration can be adjudicated upon'; in addition, it was observed thus:
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"If the authorities lacks inherent jurisdiction from filing of declaration, the competent authority is not invested with the jurisdiction and the Government cannot declare agricultural lands which are excluded from the ULCAR Act as excess vacant land."
8. In our opinion, that observation applies on all its fours to the facts of this case. The competent authority had no jurisdiction to declare agricultural land in question as urban land or excess vacant land since it did not fall within the said definition under Section 2(O) of the ULCAR Act. The competent authority having not examined his jurisdiction to entertain the declaration and pass orders thereon, the order of the competent authority declaring the land in question as excess vacant land suffers from lack of jurisdiction, hence void ab initio.
9. In Mallaiah's case, the co-ordinate Division Bench further observed that the "learned Single Judge was not justified in dismissing the writ petition on the ground of 19 delay and latches more appropriately when the competent authority had passed an order without jurisdiction. In the facts of this case, though there is a delay of 18 years in filing the writ petition calling in question the order of the competent authority, nevertheless since the order is without jurisdiction is non est hence the question of delay and latches does not arise. In our opinion, the learned Single Judge was not justified in dismissing the writ petition on the ground of delay and latches.
10. Possession of the land was asserted to have been taken over by the competent authority under ULCAR Act by issuing notice under sub Section 5 of Section 10 to the appellant's father who acknowledged the same and having not voluntarily handed over possession of the land, the State asserts to have taken possession of the land by drawing a mahazar.
11. It is no doubt true that sub Section 5 of Section 10 of the 'ULCAR Act' provides for notice to the 20 declarant/occupier to voluntarily hand over possession of the excess vacant land so declared while sub Section 6 provides for forcibly taking possession of the said land if not voluntarily surrendered. The requirement of sub Section 5 of Section 10 is, issue of a show cause notice to hand over possession of the land within 30 days from the date of receipt of notice failing which possession of the land would be taken by application of necessary force. It is a matter of fact that appellant's father did not voluntarily hand over possession and comply with the notice under sub Section 5 of Section 10 of the 'ULCAR Act'. Sub-Section 6 of Section 10 speaks of "possession" which says that, "if any person refuses or fails to comply with an order under sub Section 5, the competent authority may take possession of the vacant land to be given to the concerned State Government or any person duly authorized by the State in that behalf and may for the purpose of using such force as may be necessary". Forcible dispossession of the land therefore, can be 21 resorted to only in a situation which falls under sub Section 6 and not under sub Section 5 of Section 10.
12. Sub Sections 5 and 6, therefore, take care of both the situation, i.e., taking possession by giving notice, i.e., peaceful dispossession/voluntarily dispossession and on failure to surrender or give delivery of possession, then forcible dispossession under sub Section 6. The requirement of notice under sub Section 5 and 6 are mandatory for the purposes of taking possession, and deploying the word "may" in both the sub Sections it is to be understood as "shall" since the authority is charged with the task of enforcing the statute.
13. For taking forcible possession certain proceedings have to be followed. It is not the case of the State Government or its authorities that such procedures were followed except stating that possession was taken by drawing a panchanama. In the absence of relevant material constituting substantial legal evidence of the fact 22 of either peaceful voluntary possession having been delivered or forceful dispossession, it cannot be said that possession of the excess vacant land was in fact taken by the State Government on 26.02.1983, without complying with Sub Sec.(6) of Sec.10 of ULCAR Act. This is precisely the law laid down by the Apex Court in Gajanan's case, supra.
14. Although the learned Government Advocate sought time to place before the Court the gazatte notifications issued under sub Sections 1 and 3 of Section 10, it is submitted today that the competent authority issued necessary directions to the Government Press at Dharwad to have the same published, but is unable to secure and place before Court the said gazette publications. In the absence of the notifications under sub Section 1 and sub Section 3 of the 'ULCAR Act' duly gazetted, it cannot be said that the land measuring 9128 sq.mt. in R.S. No. 166 23 of Belgaum taluk was vested in the State Government free from all encumbrances. If that is so, then the question is, "Whether the urban land (Ceiling & Regulation) Act, Repeal Act, 1999, for short 'Repeal Act' with effect from 8.7.1999, would apply to declare as abated the proceeding relating to the declaration filed by the appellant's father?"
15. Clause-(a) of sub Section 1 of Section 3 of the Repeal Act states that, the repeal of the principal Act shall not affect vesting of any vacant land under sub Section 3 of Section 10, possession of which is not taken over by the State or any person duly authorised by the State Government in that behalf or by the competent authority. While Clause-(a) of sub Section 2 of Section 3 states that where any land is deemed to have vested in the State Government under sub Section 3 of sub Section 10 of the Principal Act, possession of which is not taken over by the State or any person duly authorised by the State Government in that behalf or by the competent authority 24 and any amount spent/paid by the State Government with respect to such land, then such land shall not be restored unless amount paid if any has been refunded to the State Government. Section 4 of the Repeal Act states that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of the Repeal Act, before any Court, tribunal or other authority shall abate, while the proviso saves proceedings as are relatable to the land, possession of which has been taken over by the State Government or Competent Authority.
16. In the instant case, having concluded that there is no vesting of the excess vacant land in question in the State, under sub Section 3 of Section 10 of the 'ULCAR Act' nor forcibly taking possession of the vacant land under sub Section 6 of Section 10 of the 'ULCAR Act' and applying Clause-(a) of sub-Section 2 of Section 3 of the Repeal Act, the proceedings pursuant to the declaration 25 filed by the appellant's father in respect of the land in question stands abated under Section 4 of the Repeal Act.
17. Admittedly neither the appellant's father nor the appellant was paid compensation pursuant to the declaration of excess vacant land in view of the averments in the statement of objections filed in the writ petition that distribution of compensation, not only in the case of appellant, but others, could not be done since awaiting from the Government receipt of amount to be paid as compensation, and that the competent authority was making efforts to secure grants from the Government for that purpose.
18. The fact that the State Government by order dated 17.09.2009 (Annexure-L) cancelled the allotments of the lands made in favour of the Divisional Engineer (Telegraph), Belgaum and the Assistant General Manager, Syndicate Bank, Belgaum, for non-compliance with the condition to utilize the land for the purpose for which it 26 was granted within the time frame, prescribed, which order is final and binding since not questioned, on that score too, the learned Single Judge was not justified in dismissing the writ petition.
19. In the result, these appeals are allowed in part. The order dated 16.06.2012 of the learned Single is set aside. W.P. Nos.67162-67173/2009 are allowed in part:
(a) All proceedings pursuant to the declaration filed by the appellant's father under ULCAR Act and orders passed thereon stands abated in view of the Repeal Act;
(b) Appellant to have her grievance redressed in an appropriate forum, if dispossessed from the land.
SD/-
JUDGE SD/-
JUDGE AN/BVV