Karnataka High Court
Sri M Chandra Kumar vs The State Of Karnataka on 15 April, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2024:KHC:14803
WP No. 16361 of 2023
C/W WP No. 264 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 16361 OF 2023 (ULC)
C/W
WRIT PETITION NO. 264 OF 2016 (ULC)
IN W.P.16361/2023
BETWEEN:
SMT. HEMAVATHI M.,
D/O. LATE V. MUNIRAMAIAH,
W/O. SRI NARAYANASWAMY,
AGED ABOUT 50 YEARS,
R/AT: 45/1, 21ST CROSS,
BAGALAGUNTE, BANGALORE NORTH,
Digitally signed by B
NAGASANDRA, BANGALORE - 560 073
K
MAHENDRAKUMAR
...PETITIONER
Location: High Court (BY SRI. BHANU PRAKASH .H.V., ADVOCATE)
of Karnataka
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
THE PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
M.S BUILDING,
BENGALURU - 560 001
2. THE DEPUTY COMMISSIONER,
BENGALURU URBAN DISTRICT,
(ADDITIONAL SPECIAL DEPUTY
COMMISSIONER URBAN LAND CEILING)
K.G. ROAD, BENGALURU - 560 009
3. THE ASSISTANT COMMISSIONER,
BENGALURU NORTH SUB-DIVISION,
KANDAYA BHAVAN,
-2-
NC: 2024:KHC:14803
WP No. 16361 of 2023
C/W WP No. 264 of 2016
BENGALURU - 560 009
4. THE TAHSILDAR,
BENGALURU NORTH TALUK,
KANDAYA BHAVAN,
BENGALURU - 560 009
...RESPONDENTS
(BY SMT. HEMALATHA .V., AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS AND QUASHING THE ORDER DTD PASSED IN PASSED
BY RESPONDENT NO. VIDE ANNX-A AND ETC.,
IN W.P.264/2016
BETWEEN:
1. SRI. M. CHANDRA KUMAR
S/O MUNIRAMAIAH
AGED ABOUT 45 YEARS,
2. SRI. M. NARAYANASWAMY
S/O LATE MUNISWAMY
AGED ABOUT 50 YEARS,
3. SRI. M. VISHWANATH
S/O LATE MUNISWAMY
AGED ABOUT 35 YEARS,
ALL ARE R/AT NO.244,
'RAMA KRUPA' MARUTHINAGAR,
YELAHANKA, BENGALURU - 560 064.
...PETITIONERS
(BY SRI. P.N. NANJA REDDY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
THE PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
M.S BUILDING,
BENGALURU - 560 001
-3-
NC: 2024:KHC:14803
WP No. 16361 of 2023
C/W WP No. 264 of 2016
2. THE DEPUTY COMMISSIONER,
BENGALURU URBAN DISTRICT,
(ADDITIONAL SPECIAL DEPUTY
COMMISSIONER URBAN LAND CEILING)
K.G. ROAD, BENGALURU - 560 009
3. THE ASSISTANT COMMISSIONER,
BENGALURU NORTH SUB-DIVISION,
KANDAYA BHAVAN,
BENGALURU - 560 009
4. THE TAHSILDAR,
BENGALURU NORTH TALUK,
KANDAYA BHAVAN,
BENGALURU - 560 009
...RESPONDENTS
(BY SMT. HEMALATHA .V., AGA FOR R1 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATIONS DATED 15.12.1984 AT ANNEX-D AND
NOTIFICATION 09.04.1985 AT ANNEX-E PASSED BY R-2 AS THE
SAME AS ILLEGAL, ARBITRARY AND CONTRARY TO THE
PROVISIONS OF THE URBAN LAND (CEILING AND REGULATION)
ACT, 1976 AND THE REPEAL ACT, 1999 AND ETC.,
THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The legal representatives of the deceased Venkatamma, who was the owner of the land bearing Sy.No.32, measuring to an extent of 3 acres, situated at Kammagondanahalli Village, Yeshwanthpur Hobli, Bengaluru North Taluk, are before this Court.
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2. The petitioners assert that Venkatamma, during her lifetime, filed a declaration under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the "Act", in short). She died on 16.01.1981 and then the competent authority in exercise of power under Section 10(1) of the Act passed an order dated 15.12.1984, declaring that the declarant was holding excess land to an extent of 8140.52 sq.mtr in Sy.No.32. Thereafter, the competent authority passed an order under Section 10(3) of the Act, vesting the excess land with the Government free from all encumbrances.
3. In pursuance of the order passed under Section 10(3) of the Act, the name of the Government was mutated in the revenue records to the extent of land declared as excess land. The petitioners assert that the representation was submitted for deleting the name of the Government, stating that the order was passed against dead person and also lawful possession was not taken as stated. The representation having not been considered, the present petition is filed.
4. Admittedly, Venkatamma was the owner of the excess land, and she died on 16.01.1981. The competent authority passed an order under Section 10(1) of the Act, declaring that the -5- NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 declarant was holding the excess land to an extent of 8140.52 sq.mtr on 15.12.1984. The order under Section 10(3) of the Act was passed on 19.02.1985. Therefore, the order under Sections 10(1) and (3) of the Act, was passed against a dead person.
5. In pursuance of the order passed under Section 10(3) of the Act, the name of the Government was mutated in the record of rights in respect of the excess land. The petitioner's contention is that the lawful possession, having not been taken, is entitled to the restoration of the excess land as stated under Section 3(2) of the Repeal Act, 1999. The petitioners have produced a copy of the communication dated 26.09.2013, issued by the Assistant Commissioner, Bengaluru North Division, Bengaluru, to the Deputy Commissioner, Bengaluru District, stating that on inspection of the excess land, the Revenue Inspector and the Village Accountant have submitted a report stating that the excess land is a vacant land and the compound wall is constructed around the excess land.
6. The State has filed statement of objections contending that possession of the excess land was taken under Section 10(5) of the Act but have not produced any document to substantiate that the declarant voluntarily surrendered possession of the excess land to the competent authority. Therefore, in the absence of any -6- NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 document to substantiate that the declarant or her legal representatives surrendered the excess land voluntarily as stated under Section 10(5) of the Act., the contention of the State Government that lawful possession of excess land was taken is not acceptable. In similar circumstances, the Co-ordinate Bench of this Court in WP No.107862 of 2023 disposed of on 03.01.2024 restored the excess land to the petitioner therein, although there was an inordinate delay in approaching this Court. This Court, in the said decision, has observed the following:
" 7. The points that arise for consideration are as follows:
i) Whether the lawful possession of the subject land was taken as specified under Sections 10(5) and (6) of the Act, 1976?
ii) Whether the petitioners are not entitled for restoration of the subject land on the ground of delay and laches?
Reg. Point (i):
8. The full Bench of this Court in the case of S.M. Kannaiah v. State of Karnataka, [2011 SCC OnLine Kar 49] at para 12 has held as follows:
"12. We see no reason to differ from the view taken by the Division Bench in the case of M/s. Hunnikeri Brothers since we are of the opinion that taking over possession is one of the functions in the sequence of the different proceedings in the acquisition process and is consequential and a function which is not in the nature of performing a quasi-judicial function or an action calling for exercise of discretion since by such time all such acts which require deeper application of mind will already -7- NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 be completed and a decision to acquire the land would already be in place. Therefore, the power available to the Deputy Commissioner/ Assistant Commissioner in charge of a sub- division of a district/ any officer specially appointed by the appropriate Government under Section 16(1) of the LA Act cannot be construed to mean that such power should be exercised by his personal presence at the spot or location where the acquired property is situate. It- 7 - NC: 2024:KHC- D:146 WP No. 107862 of 2023 16(1) of the LA Act is exercised by the said persons by initiating the process for taking possession by requiring the subordinate officers including the Revenue Inspector or Surveyor to visit the spot and take possession. If such subordinate officer completes the process of taking possession as per procedure laid down, it cannot be considered as delegation of power in strict sense so as to attack the same as impermissible. Instead, it is an authorization or a direction of the superior Officer to enable the completion of the process by utilizing the services of the subordinate officers who also have sufficient knowledge of the land revenue process. However, on taking possession, the officer empowered under Section 16(1) would have to accept the report of taking possession."
9. The Hon'ble Supreme Court in the case of Sulochana Chandrakant Galande v. Pune Municipal Transport, [(2010) 8 SCC 467] has held as follows:
"13. The meaning of the word "vesting" has been considered by this Court time and again. In Fruit & Vegetable Merchants Union v. Delhi Improvement Trust [AIR 1957 SC 344] this Court held that the meaning of the word "vesting"
varies as per the context of the statute in which the property vests. While considering the case under Sections 16 and 17 of the 1894 Act, the Court held as under : (AIR p. 353, para 19) -8- NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 "19. ... the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration."
(emphasis added)
14. "Encumbrance" actually means the burden caused by an act or omission of man and not that created by nature. It means a burden or charge upon property or a claim or lien on the land. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. It may be a mortgage or a deed of trust or a lien of an easement. An encumbrance, thus, must be a charge on the property. It must run with the property. (Vide Collector of Bombay v. Nusserwanji Rattanji Mistri [AIR 1955 SC 298] , H.P. SEB v. Shiv K. Sharma [(2005) 2 SCC 164 : AIR 2005 SC 954] and AI Champdany Industries Ltd. v. Official Liquidator [(2009) 4 SCC 486] .)
22. In view of the above, the law can be summarised that once the land is acquired, it vests in the State free from all encumbrances. It is not the concern of the landowner how his land is used and whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restoration of land on any ground, whatsoever."
11. The Division Bench of this Court in the case of MangaloreUrban Development Authority (supra) referring toSections 10(3) and 10(6) of the Act,1976 at para-9 has held as follows:
-9-NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 "9. Assuming that the Revenue Inspector took possession of the land, no document is produced to show that he was the competent authority under Section 10(6) of ULC Act to take possession of the land which is declared as surplus urban land under Section 10(3) of the Act. The language used therein is "the competent Authority may take possession of the vacant land or cause it to be given to the State Government or to any person duly authorized by such State Government in this behalf........." There is no document in the original file of the State Government to show that possession of the land was taken by the competent Authority and given to the State Government.
Even if the alleged mahazar is construed as the document regarding taking of possession of the land in question, possession was not given to Government but was given to Urban Development Authority. Viewed from any angle, it cannot be said that possession of the land was taken by competent authority from the owner of the land in question and given to Government. Therefore, question of vesting of the surplus urban land with the Government did not arise at all. In the circumstances, Section 3(1) of Repeal Act will not apply to the land in question."
12. The Hon'ble Supreme Court in the case of Gajanan Kamlya Patil supra at para 9 as held as follows:
"9. We have, therefore, clearly indicated that it was always- 10 -NC: 2024:KHC-D:146 WP No. 107862 of 2023 possession and, in fact, in the notice issued under Section 10(5) of the ULC Act, it was stated that if the possession had not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed:
Respondents have no case that such procedures were
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 followed and forcible possession was taken. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act Since there is nothing to show that de facts possession had been taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed".
13. The Hon'ble Supreme Court in the case of the State of U.P. v. Hari Ram, [(2013) 4 SCC 280], at para 42, has held as follows:
"42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right onthe State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.03.1989. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 Section 4 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the high Court is right in holding that the respondent is entitled to get the benefit of section 4 of the Repeal Act."
14. In view of the dictum of the Hon'ble Supreme Court in the aforesaid cases, mere vesting of land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land, unless there has been a voluntary surrender of vacant land. The State has to establish that there has been a voluntary surrender of vacant land and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 4 of the Repeal Act.
15. The then competent authority in exercise of the power conferred under Section 10(3) of the Act, passed an order dated 30.05.1986 declaring that the declarant was holding an- 12 -NC: 2024:KHC-D:146 WP No. 107862 of 2023 excess land to an extent of 14687.3839 sq. mtrs. and the said order has attained finality. The respondent-State claims that the possession of the land declared as excess land was taken in the year 1985 and thereafter, the name of the Government was mutated in the revenue records in respect of the subject land vide M.E.No.3388 certified on 18.05.1985 at Annexure-F. To substantiate the claim that, the lawful possession of the subject land was taken as specified under Sections 10(5) or 10(6) of he Act, the respondent has neither produced any document nor stated in the statement of objection as to who has taken the possession of the subject land as specified under Section 10(6)
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 of the Act. Hence, it is implied that lawful possession of the subject land was not taken as specified under Section 10 (5 ) or (6) of the Act, 1976.
16. The possession is alleged to have been taken by the Revenue Inspector by drawing panchanama, however, the respondents have not placed any material to substantiate the said claim. Even otherwise, the Revenue Inspector was not the competent Authority specified in Section 10(6) of the Act, 1976 to take possession. The lawful possession of the subject land having not been taken as specified under Section 10(6) of the Act, 1976, the petitioners are entitled for restoration of the subject land as specified under Section 3(2) and Section 4 of the Repeal Act, 1999, since de jure possession of the subject land was taken and not de facto possession as held by the Hon'ble Supreme Court in the case of Gajanan Kamlya Patil (supra).
17. Even accepting for a moment that, the possession of the subject land was taken by the Revenue Inspector concerned by drawing panchanama, the same cannot be construed as one taken by the competent Authority, since the Revenue Authority is not the competent Authority to take possession as held by the Division Bench of this Court in the case of Mangalore Urban Development Authority (supra).
18. Hence, point No.(i) is answered in favour of the petitioners holding that the lawful possession of the subject land having not been taken by the competent Authority under Section 10(5) and (6) of the Act, 1976, the petitioners are entitled for restoration of the subject land.
19. Reg. Point No.(ii):
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 The Division Bench of this Court in the case of Gawadu Siddappa Patil, since deceased by L.R. Vs. State of Karnataka and others, (Writ Appeal No.100102/2019 disposed of on 22.07.2019) at para 19 has held as follows:
"19. Hon'ble Apex Court in this context has held that even in circumstances where possession has been taken by the Government without issuing notice to land owner, it would not vitiate the act of taking possession and more so in case where land owner had for years not challenged taking of possession, which parameters are writ large in the instant case namely (i) possession of the excess vacant land has been taken way back in the year 1992 (ii) during the lifetime of the declarant he did not challenge the taking of possession; and (iii) the writ petitioner though having attained majority way back in the year 1982, yet, did not challenge the same till 2018 and thereby he has waived his right even, if any. It is in this context Hon'be Apex Court in the case of State of Assam V/s. Bhaskar Jyoti Sarma, reported in 2015 AIR SCW 548 has held as follows: "11. Section 3 of the Repeal Act postulates that vesting of any vacant land under sub- section (3) of Section 10, is subject to the condition that possession thereof has been taken over by the competent authority or by the State Government or any person duly authorised by the State Government. The expression "possession" used in Section 3 (supra) has been interpreted to mean "actual physical possession" of the surplus land and not just possession that goes with the vesting of excess land in terms of Section 10(3) of the Act. The question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the competent
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 authority or by the State Government or an officer authorised in that behalf by the State Government. The case of the appellant is that actual physical possession of the land was taken over on 7th December, 1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the constitution, what needs examination is whether the failure of the Government or the authorized officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative. We say so because in the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for any reason the competent authority or the Government or the authorized officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a notice to him. It is this aspect that has to an extent bothered us. The High Court has held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 on the ground that no notice under Section 10(5) had been served upon him.
13. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so."
[
20. The Division Bench in the aforesaid case, refused to entertain the writ appeal/writ petition on the ground that the possession of excess land was taken on 26.07.1982, and the petitioner therein should have
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 questioned the same at the first available opportunity, and even if such grievance had been made, at that relevant point of time, the competent authority would have undertaken the exercise of taking possession under Section 10(6) of the Act.
21. In the instant case, the respondent-State has not produced any document to substantiate its claim that lawful possession was taken under Section 10(5), or 10(6) of the Act, 1976. The possession of the subject land having not been taken, the State Government is obligated under Sections 3(2) & 4 of the Repeal Act to restore the subject land.
22. The Division Bench of this Court in Mallaiah Basalingaiah Hiremath supra has held that, when the competent authority has passed an order without jurisdiction, even if there is a delay, it was for the learned Single Judge to set aside the order and give relief to the parties, and under those circumstances, the appellant therein cannot be made to lose his valuable agricultural land and similarly on the ground of delay in approaching the Court, the legitimate rights of a farmer cannot be taken away by the Government on technicality.
23. The Division Bench of this Court in Vaijayanti Vs. State of Karnataka reported in 2014 SCC OnLine Kar 10086, relying on the Division Bench judgment of this Court in the case of Mallaiah Basalingaiah Hiremath (supra), at para 9, has held that the 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 laches does not arise.
24. The Hon'ble Supreme Court in the case of Tukaram
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 Kana Joshi v. MIDC, [(2013) 1 SCC 353] at paras 13, 14 and 15 has observed as follows:-
"13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the courts to exercise their powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide P.S. Sadasivaswamy v. State of T.N. [(1975) 1 SCC 152 : 1975 SCC (L&S) 22 : AIR 1974 SC 2271] , State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] )
14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on-
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] , Collector (LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172 : AIR 1987 SC 1353] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [(1992) 2 SCC 598 : AIR 1993 SC 802] , Dayal Singh v. Union of India [(2003) 2 SCC 593 : AIR 2003 SC 1140] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56 :
AIR 2011 SC 2161] .)
15. In H.D. Vora v. State of Maharashtra [(1984) 2 SCC 337 : AIR 1984 SC 866] this Court condoned a 30-
year delay in approaching the court where it found violation of substantive legal rights of the applicant. In that case, the requisition of premises made by the State was assailed."
25. The Hon'ble Supreme Court in the case of Vidya Devi v. State of H.P., [(2020) 2 SCC 569] referring to the decision in the case of Tukaram Kana Joshi (supra) has held as follows:
"12.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is-
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice."
26. The Hon'ble Supreme Court in the case of Kapilaben Ambalal Patel v. State of Gujarat, [(2021) 12 SCC 95] at para 16 and 18 has held as follows:
"16. It is further contended by the appellants that the purported possession panchnama dated 20-3-1986 is not a reliable document at all. It is vague and bereft of details. Its authenticity and contents have been disputed by the appellants. It is intriguing that although the subject land is dispersed and not one continuous piece of land, yet one common possession panchnama is drawn without any explanation as to the manner in which the possession of five non-contiguous plots came to be taken by the authorities concerned. Further, the panchnama does not bear any time. All these deficiencies lead to the only conclusion that the possession panchnama was prepared by the officials sitting in their office without visiting the site. Secondly, the possession panchnama has not been signed by any of the twelve (12) landowners. The appellants are also relying on the observations made- by the learned Single Judge recording the factum of possession being in favour of the appellants to hold that the possession panchnama was illegal.
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016
18. The respondent State, on the other hand, would urge that the writ petition filed by the appellants was hopelessly delayed and suffered from laches. The possession of the suit land was taken under the possession panchnama dated 20-3-1986. That fact was within the knowledge of the appellants as is evident from the record and in particular from the stand taken by the respondent State to oppose review application in relation to application under Section 21 of the 1976 Act. It was clearly stated by the respondent in the said proceedings that the appellants were not entitled for any relief as possession has already been taken on 20-3-1986 and that the subject land had already vested in the State. Thus, it was within the knowledge of the appellants being party to the said proceedings. That fact has been recorded in the order dated 19-9-1998 in review application while remanding the application (under Section 21) for reconsideration by the competent authority. The present writ petition, however, has been filed only in 2001 without disclosing any cause for such delay and laches, much less plausible explanation. The Division Bench of the High Court was, therefore, justified in non-suiting the appellants including on the ground of delay and laches in filing of the writ petition. That finding is unexceptionable. It is urged that before taking possession vide possession panchnama dated 20-3-1986, notices were duly issued to the landowners under Section 10(5) of the 1976 Act. The first notice was issued on 17-12-1985 to Ambalal Parsottambhai Patel, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai Patel. This was duly served. The second notice dated 23- 1-1986 was also issued to Ambalal Parsottambhai Patel,
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai Patel. The second notice sent to Ambalal Parsottambhai Patel was returned with endorsement "said owner has expired". However, the other noticees--Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai were duly served with the second notice and their acknowledgments have been produced on record. Despite those notices, the appellants concerned failed to remain present for handing over the possession on the specified date. Therefore, after waiting for 30 days' period, the authority proceeded to take forcible possession on 20-3-1986 vide possession panchnama. That is permissible in law and was the only course open to the authority to take forward the acquisition process of the excess/surplus land. It is urged that none of the appellants challenged the said notices or the possession panchnama of 1986. Further, the appellants have not asked for further relief of declaration regarding the other proceedings, which have become final or for that matter that the entire proceedings stood abated in terms of the Repeal Act, knowing fully well that such a plea would not be available to them in the light of having lost possession of the surplus/excess land on 20- 3-1986."-
27. The State is under an obligation to follow due process of law for taking possession of immovable properties of its citizens. The State cannot deprive the right over immovable property by taking unlawful possession and continue to be in unlawful possession stating that the writ petition is hit by delay and laches, when the State Government is a welfare state and governed by rule of law. The petitioner cannot be deprived of
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 his valuable rights over the immoveable property, which is not only a constitutional right but also human right, when there is violation of his substantial legal rights. Though it is alleged that the subject land is allotted to the Police Department, no material is placed that the subject land is developed by putting up any construction, which implies that the subject land is still vacant. Admittedly, the lawful possession much less unlawful possession of the subject land having not been taken, the petitioners cannot be deprived of their legitimate right under Section 3(2) and 4 of the Repeal Act, 1999 only on the ground of delay. The State Government cannot enrich itself by claiming to be in possession which is unlawful and the said unlawful possession does not bestow any right to the State Government. Hence, the submission of the learned Additional Government Advocate that the writ petition is hit by delay and laches is not acceptable, and the delay if any in filing this writ petition deserves to be condoned.
28. Hence, point No.(ii) is answered in favour of the petitioners holding that the delay in approaching the Court is not a bar for restoring the subject land in favour of the petitioners in light of Section 3(2) of the since possession muchless lawful possession was not taken under Section 10(5) and (6) of the Act, 1976 by the Revenue Inspector.
29. This Court in W.P.No.103654/2017 disposed of on 09.04.2021, W.P. No.61621/2009 disposed of on 04.09.2019, W.P. No.108986/2017 disposed of on 16.09.2021, W.P. No.100495/2015 C/w W.P. No.102484/2015, disposed of on 05.10.2021, and W.P. No.63674/2011 disposed of on 02.11.2011, has held that the proceedings stand abated since lawful possession of the land which has been declared as
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 excess land has not been taken by the competent authority as declared by Section 10(6) of the 1976 Act. The State Government has implemented the similar orders passed by this Court in various writ petitions."
7. Therefore, the lawful possession of the subject land having not been taken as stated under Section 10 (5) or (6) of the Act, and the order having been passed against the dead person, the petitioner is entitled for restoration of the excess land as stated under Section 3(2) of the Repeal Act, 1999. Accordingly, I pass the following:
ORDER
i) The Writ Petitions are allowed.
ii) Notifications dated 15.12.1984 and
09.04.1985 issued by the then competent
authority i.e., the Special Deputy
Commissioner, Urban Land Ceiling, Bengaluru at Annexure-C and D are hereby quashed.
iii) Respondent No.4 is directed to delete the name of the Government in the record of rights pertaining to the subject land, and
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NC: 2024:KHC:14803 WP No. 16361 of 2023 C/W WP No. 264 of 2016 restore the name of the deceased Venkatamma in the record of rights within the period of three(3) months from the date of receipt of a certified copy of this order.
iv) IA No. 1 of 2020 and IA No. 1 of 2023 does not survive for consideration in view of the disposal of the main matter.
Sd/-
JUDGE SPV List No.: 1 Sl No.: 41