Karnataka High Court
Meenakshi Thimmaiah vs State Of Karnataka on 28 August, 2009
IN THE HIGH COURT OF KARNATAKA, BANGALORE j ' / DATED THIS THE 287 DAY OF AUGUST 2009 BEFORE THE HON'BLE MR. JUSTICE V GOPALA cowpa. WRIT PETITION NOs. 12626- 31 OF, 2003. C/W ne WRIT PETITION NO. 1287. OF 2005 (LA LAUDA) . WRIT PETITION NO. 12626-31 OF 2003 BETWEEN 1 | MEENAKSHI THIMMAIAH W/O DR H THIMMAIAH 54 YEARS mo R/O VENKATADRI PARK VUAYANAGAR IV STAGE I] PHASE, HINKAL MYSORE 17° 2 CHIKKEGOWDA S/O CHENNAIAH ~ 47 YEARS -- --_ R/O NO 172," a OLD CAUVERY GRAMEENA BANK ROAD HINAKL MYSORE, 17. ; 3. YASHODAMMA W/O NANJUNDASWAMY 40 YEARS. R/O.NO 172, OLD CAUVERY GRAMEENA BANK ROAD, HINKAL MYSORE 17 ae NANJUNDASWAMY ~. S/O RAMEGOWDA "49 YEARS > ~ R/O FARM HOUSE IN sy NO 22, - BASAVANAHALLI >. KASABA HOBLL _ MYSORE TQ AND DIST 2 JAYALAKSHMAMMA W/O N.T, SRINIVAS 48 YEARS R/O NO 22, 12TH CROSS GOKULLAM II STAGE, MYSORE CITY M MAHADEVU @ SWAMY S/O M MADAIAH 50 YRS a R/O NO 96, 7TH MAIN VINAYAKANAGAR, PADUVARAHALLI | sO MYSORE TALUK AND DISTRICT © a | PETY TONERS | (BY SRI R-S-RAVI & NARENDRA GOWDA, ADV) STATE OF KARNATAKA BY ITS SECY DEPARTMENT OF URBAN ~ DEVELOPMENT, M.S. . BUILDING BANGALORE 1 : MYSORE URBAN DEVELOPMENT AUTHORITY BY ITS COMMISSIONER: JHANSI LAXMIBAI ROAD MYSORE CITY | a oe i ; .. RESPONDENTS
(BY SRI 1 SHASHIDHAR Ss ARAMADIL GP) THIS WRIT PESITION is FILED UNDER ARTICLES 226 AND 227 OF THE. 'CONSTITUTION OF INDIA PRAYING TO QUASH THE PRELIMINARY: NOTIFICATION. DT: 23,12. 91 BY R2 VIDE ANN-A IN SO FAR AS. It RELATES TO THE PETITIONERS HEREIN ARE CONCERNED. 7 'WRIT PEITION NO. 2287 OF 2005 BETWEEN 7 = | os TV. SOMAPRABHU S/O LATE VENKATAIAH AGED ABOUT 38 YEARS
-.NO 8-325/2, PRABHU FARM _ VIJAYANAGAR, 4TH STAGE HINKAL, MYSORE-17 ... PETITIONER (BY SRI R-S-RAVI, ADV) We STATE OF KARNATAKA DEPARTMENT OF UBAN DEVELOPMENT M S BUILDING BANGALORE- ] REP BY ITS SECRETARY , MYSORE URBAN DEVELOPMENT AUTHORITY JHANSI LAXMIBAIROAD MYSORE Co REP BY ITS COMMISSIONER . RESPONDENTS ™ (BY SRI HCGP FOR Ri) THIS WRIT PETITIONS IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA: PRAYING TO QUASH VIDE ANX. A DT. 23.12.1991 ISSUED BY R2. IN SO-FAR' AS IT RELATES TO THE PETITIONER HEREIN IS CONCERNED. a THESE PETITIONS.COMING "ON FOR: PRELIMINARY HEARING THIS DAY, THE COURT. MADE 1 ThE FCLLOWING:
seeking to quash, the preliritary and final acquisition notifications dated 23. 12.1991 and 10.12.1992 respectively issued by. the Mysore Urban Development Authority
- fhereinatter called as 'MUDA') and the State Government represented by. its Secretary to the Department of Urban 7 Development respectively by urging various facts and legal RUER These writ petitions are Siled by the petitioners om contentions and prayed to allow the writ petitions by
- granting the reliefs as prayed therein.
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2. The prayer in the above writ petitions are heard together and disposed of the same by passing common order as the acquisition notifications are same. and grounds urged also are same but the lands of the | petitioners which are acquired by the State Government in . 2 :
favour of MUDA for the purpose. of forming a res sidential layout by implementing the town planning scheme, under the Karnataka Town and Country Planning Act, 1961, (hereinafter called as KT & CP Act) are different.
3. Certain relevant bi rier facts are | "stated for the purpose of appreciating t the ne rival iogal ¢ contentions urged on behalf of the parties, in W.P.Nos. 12626-31/2003, the petitioners are claiming chat 'they are the owners of the land bearing Sy.Nos 122/) and 123/2, measuring 2 acres
24. guntas, 48 acre: 16 guntas respectively, Sy.No.22/2A. : measur ng 38 guntas, 'sy. Nos.4/3 and 22/1, measuring 1 acre p18 guntas and 2 acres 33 guntas respectively, | Sy. No. 4/24, "measuring 2 acres 12 guntas and Sy.No.54 measuring 2] guntas of land. The petitioner in the ~ - comected writ petition in W.P.No.7287/2005 claims that ~ he is the owner of the land bearing Sy.No.122/2 measuring YW ] acre 10 guntas situate at Bassavanahalli Village, Kasaba Hobli, Mysore Taluk and District. --
4. The MUDA had proposed to acquire 1075 a ac res. es 10 oe guntas comprising various lands including _ the ands | referred to supra for formation of Viavansger Iv. Stage. Layout, under a scheme formed under Section pay of 'the Karnataka Urban Development Aut: rorities. a (1987 (hereinafter referred to as the Act' for short) i _ o. The case of the petitioners i is < that MUDA issued the preliminary notification under Section +7) of the Act on 23.12.1991 calling "upon: "the land owners to file objections within 30 days from the date of publication of the said notifi cation in "the official gazette which was gazetted on - 02. 01. 1992. It is the further case of the petitioners that they have filed objection statements stating __ that tie" Jands: proposed to be acquired have been developed into: 0 garden lands and the same are not feasible | to form a residential layout. It is their case that the MUDA
- wathout c -onsidering the objections filed by them, got issued . - the final notification under Section 19(1) of the Act. and » acquired their lands without obtaining prior sanction from We the first respondent as required under Section 18(3) of the Act. It is their case that the said notifications were challenged by some of the land owners by filing writ ro petitions before this Court in W.P.No. 39705/9 92, 1564 / 93, 32283/93, 7948/94 and 2921 1/94 urging" -varicus 2 - grounds. The said writ petitions - were allowed. by cas Court vide its order dated 24.08. 1998 and quashed the final notification holding that. it was issued by the first respondent without sanction as providsa "ede Section 18(3) of the Act and wit th a direction tot the owners therein to file objections ra anv wy witha a 30. days from that date. Hf such objections are sted. "the authorities shall consider the same as provided under Section 18 of the Act and submitted the same to the Government for sanction of the housing scheme. It is stated by the learned counsel for the 7 petitioners that the said order has become final.
6. It is the: further case of the petitioners that the lands in question are garden lands. The State Government "issued circular dated 29.01.1998 with reference to Sections a 17 and 15 of the Act for implementation of the plans by the * Development Authorities in the Karnataka State. The We Development authorities have to take prior approval as required under Section 15(1)(b) of the Act before publishing the preliminary notification. The same is not followed by.
the Development Authorities. Even as per the Government | Circular bearing No.Na Aa E 521 MiB. 97. dated .
06.01.1998. Further, it is stated that before issuing the preliminary notification, the Development. Authorities should conduct a spot inspection 'Tegarding existence of garden lands, constructions, hillocks ef. pean though such instructions? are given" : to the Development Authorities, the state "Government has noticed that representations were submitted by the land owners to denotify such | 'lands rain, acquisition. Therefore, Development Authority Committee during 1997-98 has issued Circular 'instructions to all the Development : Authorities int the State of Karnataka informing them not to acgitire the garden and fertile lands for urban | development. Further they all informed that, the ~ Development Authorities before issuing preliminary
- notification under Section 17(1) of the Act for "implementation of the intended housing plan, full details WH shall be submitted to the State Government for obtaining its prior permission as required in law if such procedure is not followed by the Urban Development Authorities --
disciplinary action would be _ initiated against "the | Commissioners of the Authorities, |
7. It is stated that the names of the pet sitioners. :
owners continued in the revenue records in 'respect of the lands declared to be acquired, which face is s evidenced from the copies of the RTCs extracts, produced by 'them and further it is stated that' they ra have been paying land revenue tax to the revenue department," 3
8. It is 'heir furiher -oase that the scheme formulated for formation of a reside ential layout should be implemented within five years, othierwioe the scheme would lapsed under Section 27 'of the Act. Int the instant case, the scheme is : already laps sed, fOr Wr the reason that the petitioners have been continued in possession of the lands, on this ground also it is prayed by them to quash the proceedings. To ~~ substaniiate the said legal contention, the petitioner in the
- a connected writ petition No.7287/05, has stated that under ~ Section 16 of the Land Acquisition Act, the first respondent Ye has to take possession of the lands and hand over the same to MUDA. It is their case that the first respondent has not taken possession as provided under Sections 16(4). _--
and (2) of the Land Acquisition Act, 1894 as amended by | the Land Acquisition (Karnataka Extension, cand Amendment) Act, 196] (hereinafter called as. the I A Act).
9. The petitioners in the first writ batch of petitions in W.P.No. 12626-31/2003 have 'stated that they have grown coconut trees, mango trees and other feuit 'yielding trees which are 50 years old). | os ;
10. The comin legal grounds urged in these petitions by the 'petitioners are _that before expiry of 30 days from the date of: prelimin rary notification issued and served upon them and after considering the objection statement 0 the ropased acquisition of lands the first ; responitent has given prior sanction to the housing scheme by its order. The above contention urged by the similarly | placed ovmers" | in the earlier batch of writ petition No. 20011 / and connected cases is accepted by this en Court by order dated 24.08.1998 challenged by some of the
- land. The said order in respect of these lands of those land \we7 onwer/petitioners has attained the finality. The correctness of the same is not questioned by the respondents herein.
11. Another ground of attack is that the Assuance of | the notification in the name of the vendor of the fifth 7 .
petitioner in the first batch of writ petition Nos. 12626. :
31/2003 and that she herself has get the khata and RTCs changed in her name without "heart ing and affording opportunity, results in violation of ihe principles of natural justice. oe
12. The furt her case 0 of the petitioners is that the State Government ail the UDA have dropped acquisition proceedings in respect of garden lands acquired for the aforesaid layout on the ground that the said garden lands are required to prevent air pollution and that the owners of such lands | have spent huge amount for development and pon-« extending of came benefit to these petitioners, whose | lands also garden lands and therefore they are similarly placed a as that of the owners, whose lands are denotified ~ - would be in violation of Article 14 of the Constitution of "India. it is a clear of discrimination.
WW Vf
13. The last ground urged is that the acquisition proceedings are liable to be quashed as the petitioners. are .
in possession of the land and the housing scheme of the mS MUDA lapsed by operation of law as contemplated under --
Section 27 of the Act as the lands of these petitioners | possession is not taken. | |
14. The 2nd respondent MUDA filed statemet nt of objections in W.P.No. 7287/2008, traversing ithe petition averments. It is stated that the 'grounds ur rnged in these writ petitions have been considered by this Court in W.P.No. 16054/2004 arid: upheld "the validity of the notifications and dismissed ihe writ petition by order dated 11-1-2005. Copy: of the : same 'is produced as Annexure- Rl. That decision holds good to these writ petitions. It is stated that the writ petitions are liable to be dismissed solely on the ground of delay and laches as the writ petitions ar are fled after a lapse of 12 years and reasons for a the delay is not explained properly. In support of this, the __ > decisions reported in AIR 1994 SC 1020 and AIR 1998 SC "1608. are relied upon. It is asserted that notices under Ww 12 Section 12(2) of L.A.Act have been issued to the petitioners but they refused to receive the same and affixed on their residential houses. It is stated that possession of the iand Oo was taken under a mahazar dated 19-7-2001 and | notification under Section 16(2) of the Act was issued 'on 13-2-2002 and the same was gazetted on: 2-5 52002, In the RTC the name of MUDA is entered. In paragraphs 4 and +s) of the objections statement» it is | "stated. that "MUDA acquired vast extent of 1001 acres of of land for the layout in question and formed 322 55 sites < of | various dimensions and Hakku Patras have "bekin issued to to. several allottees. It is stated that. the allotees have constructed houses and in proof of the same - some photographs are also produced. Thus the scheme has been substantially implemented and there i is no apse of the scheme. In the circumstances, the . Qnd responent has 'preyed to dismiss the writ petitions.
| 15. Similar 'statement of objections is filed in the | first batch of writ petitions also. It is stated that since the ~ petitioners have not filed objections to the preliminary _ - notification, the benefit of the order passed in similar writ petition in W.P.No.29211/1994 and other connected Ye 13 petitions quashing the impugned notification in so far as the writ petitioners therein will not enure to the petitioners. In support of this contention, reliance is aan placed on the decision of the Apex Court reported in | (1999)7 SCC 44. Therefore, it is contended that ine . petitioners cannot claim equity. I the additional statement of objections _ filed, the stand "regarding maintainability of the writ petitions is reiterated, _
16. Petitioners have -- 'ted . 'ajoinder producing Annexures-M & N. Ani BEXL ire- M is the list of persons who have filed objections, to the pretiminary notification. Annexure-N is : the decision taken by MUDA rejecting the objections and to issue final notification,
17. Learned counsel for MUDA relied upon various decisions in support of "substantial compliance of the : scheme ai and submiteed that the same are applicable with all fours io these matters and therefore requested to : dismiss the writ petitions.
18. On the basis of the pleadings and the grounds
- 7 urged and legal contentions advanced by the learned \e 14 counsel for the parties, the following points would arise for consideration:-
i) Whether the sanction of scheme aby the State Government without considering the statement . of -_ objections to the proposed acquisitisn of lands of the petitioners. and not.
furnishing is legal and valid? -
ii) Whether the acquisition 'proceedings ~~~ are liable to be quashed ~ for ~ not conducting enquiry. and. considering the objections. as contemplated under Section 5-A of the Act?
iii} Whether possession of the lands were taken over as 'conteninlated under Section. 16(2). of L.A.Act read with Section 36/3) of KUDA Act?
1¢1 decision rendered by this Court under Annexure-R1 has to be applied to these éases?
iv} | Whether the dec vy Whether the writ petitions are liable "#0 be dismissed on. the ground of deiay and laches?
POINTS i & ii): Legality of sanction of scheme and consideration of objections:-
_ "19. The scheme is approved by the State Government oa 7 "on 27: 1-1992, copy of which is produced as Annexure-R] _ along with statement of objections in W.P.No. 12626 /2003.
"The 'preliminary notification is dated 23-12-1991, final \e/ 15 notification is dated 10-12-1992, award is dated 18-7-1994 and possession is claimed to have been taken on 19-7. 2001. -
20. Section 17 of Karnataka Urban Developrnent | Authorities Act, 1987 (hereinafter referred te. as 'the Act) . contemplates the procedure to be followed. regarding the schemes. Sub-section (5) thereof - ma ndates 'service of notice on the land owners te enable there 10 to fe objections. Section 18 of the Act stipulates consideration of the representations. F cr that t purpose, Section o- A of L.A.Act provides for conducting e enquiry.
21. In the instant ¢ cases, "the categorical stand of 2nd respondent-MUDA is that none of the petitioners filed objections. i The said 'stand of MUDA is contrary to Annexure- M 1 produced along with the rejoinder. Annexure- Mis the list of persons who have filed objections. The ames of the petitioners are found in the said list. It is the : document of MUDA itself. Contrary to their own "document, it it is pleaded that none of the petitioners filed _ objections. This clearly shows that their objections are not "at all considered by the MUDA.
22. The next crucial document is Annexure-N. How the objections are considered is reflected in it. The same is .
extracted hereunder:-
" Qesobarid ake Bows ade Bem cman.
WASRBY, Maa), som, erg, ROWOBIE eGo | CRALUAN wodbs stein' on.
Seoe --wrmaigod «ET wea MOROCHAO, Zecoorva, wedhrtas ve, me wossd ehAosoba =. hataden i. a, BARE ARTA,"
From the above it is clear that no enquiry is conducted and the objections are "not considered properly and in the required manner, Regarding Consideration of objections, in the case of Hindustan Petroleum Corporation Ltd., vs. Darius Shapur Chennai reported in 2005(7) SCC 627, it is held as under: _ | "6. Itis not in dispute that Section 5- A of the Act confers a valuable right in . favour of a person whose lands are sought
-.te be acquired. Having regard to the . provisions contained in Article 300-A of _ the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by \w7 17 acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.
9. Tt is trite that hearing given to ao person must be an effective one and nota mere formality. Formation of opinion as | regards the public purpose as alsa. © = Suitability thereof must be preceded 'by application of mind as regards: .
consideration of relevant factars and rejection of irrelevant cnés. The State. in." iis decision making precess must itot - commit any misdirection in 'iaw', It is also ~ not in dispute that-Section 5-A of. the Act confers a valuable impor tant" right and having regard to the provisions contained in Article 300-A of the Constitution ii has been held fo. be akin to" a fur damental right. .
10. 'in 'State of Punjab : ws. Gurdial Singh Ta was held: (8CC 3 P.477, para 16) "Hearing him before depriving him is both reasonable and pre- emptive of arbitrariness, - and denial of this 8 administrative. fairness is constitutional oe anathema except Jor good reasons."
23. int the decision reported in 1998(4) Kar.L.J 129 (AMEER KHAN Vs STATE OF KARNATAKA) this Court has XS held that objections must be considered and disposed of by os the authority, In that case, even the objections considered Ww 18 by the Commissioner was held to be not proper. The relevant para is extracted as under:
"12. I find considerable force in the oe --_ .
third submission of the learned counsel for... the petitioners that the.
representations/petitions filed by the."
petitioners have not been considered by the authority in terms of sub sectior: (1) of:
Section 18 of the Act. ~ Annexure-RL. _ produced by the second respondent shows. that the Commissioner of the second respondent authority had considered the... 2 objections filed by the petitioners and other land owners and he had also heard 'the learned counsel appearing. for sone of the objectors. Sub Section (1) of Section 18 of the Act. in' imy view," mandates' the "Authority" te consider, the representations of the objectors and submit the scheme in the light of the chjections furnished, with such modifications. asthe authority may deem fit, to the State Government for its sanction. There cannot-be any doubt that the Commissioner is noi. the authority. As observed by mie earlier, sub Section (1) of
- Section 18 of the Act provides that
-. representations of the objectors are required to -be considered by the authority. In the instant case, the representations / objections field were considered only by the Commissioner.
a) However, the learned Counsel appearing "for the respondents relying upon the "resolution dated 10th of January, 1997 of the second respondent-authority submitted that since the report of the Commissioner was considered by the authority. It must be held that the 19 objections/representations filed by the objectors were also considered by the authority. I am unable to accede to this submission of the learned counsel for the respondents. It is useful to extract the resolution of the authority, which has-.
been placed before me, which reads as. hereunder: -- Bs MXXXXKK "AO woeeszeart sosncen "MIC IT = we ee smSmmdd: wabtiaimdds aepeba. udestesrivays oo SINGS, SmFes ANOMQ momo moh, 19870 ¥eH0 115) Cod DOU aA, esogngta amo ~~ 10-f- 1997, sors ODD DT OTL, OB: 96- o7 : 'dos ; pads SHB, » ReBOBED. om ORod _ Resozd WITS EOBAT. 7 .
sexiness ected seach SASBR, 4, CBORD" mane abebeoied Sear axencny, "
From the resolution of the authority oo extracted > above, it is manifest that the authority. has accepted the report of the ~. Commissioner. The acceptance of the report of the Commissioner, in my view, cannot be equated to the consideration of the objections of the objectors by the _-- authority itself as required under sub- ~ Section (1) of Section 18 of the Act. It is | relevant to point out that in the resolution, it is not even stated that the _ authority, after considering the objections of the objectors, has approved the report of the Commissioner. Therefore, what we 20 was before the authority was only the report of the Commissioner. Mere approval of the report without consideration of the objections of the objectors cannot, in my opinion, be held... = :
as consideration of the objections as. required under Section 18(1) of the Act...
Whether the report of the Commissioner, ~ as a matter of fact, was a true reflection of . > the objections filed by the objectors and _ whether there was proper application ef mind by the Commissioner with reference to the objections of the objectors or not, is a matter to which the .authority was required to apply. its mind. after considering the objections filed. by' the objectors. The authority, in my - view, solely on the basis of the report 'of the Commissicne#..cennot proceed to submit the scheme to the .Gevernment for sanction.. When the vatuabie property right of the pasties is-sought to be taken away and when the. Act does not provide for even a personal hearing the minimum that is required by~ari authority is to consider the objections and comply with the mandate of the law. The power to consider the objections filed objections mo filed objecting to the acquisition of the _ -lands, has been conferred on the ~ authority by the Act. The constitution of the authority itself speaks for the safeguard provided to the people, whose _ property rights are sought to be taken _ way. Therefore, in my view, since the _ material on record discloses that. the
-representations/objections filed by the petitioners and other objectors were not considered by the authority, the recommendations of the scheme made by 7 21 the authority to the State Government for sanction, is vitiated".
The sanction of scheme by the State Government on the mere recommendation of the authority without furnishing me the particulars as provided under clauses (a) to (of 'Sub Section (1) of Section of the Act is held io be vitiated, | Therefore, in the instant case als 0, "the scheme approved by the State Government is vitiated | in law. | it is not legal and valid and bad in law. "Thersone, the acquisition proceedings in relation. to these petitions ¢ are liable to be quashed. Accordingly. Points @ & uw are. answered.
POINT ()-Taking. over of possession: -
24, The petitioners! cl lair that they are in physical possession of the. lands but MUDA claims that it is in possession: of the acquired iands were taken on 19-7- 2001 undex ; : tnahazars, _and to evidence the above fact
- notication under "Section 16(2} of L.A.Act was published On. 18. 2. 2002, oe 'CPpy of which is produced as Annexure-R22
- along with objections filed in W.P.No. 12626/2003. Copies
- of the mahazars are produced as Annexures- R2, 4,5,8,10
- andl. In the light of these documents, it has to be Wwe 22 examined whether possession of the lands is taken in accordance with law.
25. Section 36(3) of the Act, which is pari-materia to --
Section 36(3) of B.D.A.Act, is relevant and the 'sarne is.
extracted hereunder:-
"After _the land vests -in- the.
Government under Section 16 of the © Land Acquisition Act, 1894. the Deputy Commissioner _shall, upon - payment of the. cost "of "the acquisition and upon the authority agreeing to pay any further. cost' which may be incurred on account of the acquisition, transfer the land to the authority, andthe land shall thereupon vest im the authority".
(emphasis supplied)
26. Section 16 of the L.A-Act reads: -
" "When the Collector has made _ an award under Section 11, he may _ take possession of the land, which _~ shallthereupon vest absolutely in
- the Government, free from all "encumbrances", The > word 'Collector' was substituted as "Deputy ~ Commissioner' by Land Acquisition (Mysore Extension aon Amendment) Act XVI of 1961, The Deputy Commissioner "has to take possession or, in the alternative since in the Wwe 23 definition of "Deputy Commissioner" under Section 3{c) of LA Act the words "an Assistant Commissioner incharge of sub-division of a district" are substituted. as per, the amended definition of Section 3(c) of L.A. Act, the Assistant | Commissioner incharge of the sub: division where the. acquired lands are situated, has to. take possession. When amendment was made to Section ste} of LA Act by Act No.17/1961, Section 16 of the Act alse got amended and re-numbered as 16(1), & sub- section (2) was i inserted in which the words | "Deputy c Commissioner 4g specifically mentioned. If this Pe ovision is read with Section 36(3) of MUDA Act, it abundantly. "makes clear that the amendment to' Section ste) of 'L.AAct by Act No.17/61 substituting "Assistant Commissioner of the revenue sub- division" in "place of Deputy Commissioner has no
- application to "Section 16(2) of the L.A Act to take 'possession of 'the acquired lands. If the Deputy | Commissioner ta takes possession, then the land vests in the Government. and thereafter they should be transferred to
-- 7 the MUDA as prescribed in Section 36(3) of the Act.
Wee 24
27. In the instant cases neither the Deputy Commissioner nor the Assistant Commissioner of. the concerned Revenue sub-division took possession. af. the -- acquired lands. On the other hand, from the copies ¢ of the | Mahazars produced by the MUDA it - is seen' that. the 7 ; Special Revenue Inspector claims to have taken 1 poss session of the acquired lands. He is net authorised to. _ take possession of the acquired lands. Tt is 5 well settled position law as laid down in the Apex Court. in the « 'case of Babu Vergheese vs. Keraia State Bar Counet! veported in AIR 1999 SC 1281 that when a statute prescribe certain things to be done . by Statutory Authorities in a_ particular manner, the same has. to be ¢ done in that manner only or not at all... Since the Act authorise only the Deputy Commissioner" to take possession, he alone has to take _ possession ot the sesquired lands and not the Special Revenue Inspector. That apart, the petitioners /owners "have snot signed the so called mahazars. From whom "possession is taken by the Revenue Inspector is not we, fortcoming. The mahazars are signed by some signatories » whose identity is not known. The possibility of obtaining Na 25 signatures of some persons visiting the office cannot be ruled-out. Therefore, it has to be held that possession of the acquired lands were not taken over from the petitioners --
in accordance with law. Consequently, notification issued | under Section 16(2) of L.A.Act has no value. In "other | :
words, by mere issuance of such. notification it cannot be concluded that possession of acquired ands was taken in accordance with law. Ne
28. There is also no transior « of the > acquit red lands of the petitioners to MUDS. The lands. vests with the State Government only if possession of the same is taken in the manner as pr ovideet under §: Section 18(2) of the LA Act and transfer of the same to. 'the' MUDA as provided under Section 36° 3) of the: Act. Smnce there is no transfer, the lands have not vested with MUDA.
29. 'That apart, 'the petitioners have filed I.A.II/2004 producing photographs as Annexure-K series to show that : they. are. in Possession of the lands. The photographs produced by the petitioners would clearly show the ~ "existence of residential houses, farm houses and » auricultural and Horticultural operations upon the V7 26 required lands of the petitioners. In view of these, it cannot be said that possession of the lands were taken over by MUDA. In the circumstances, LA.I/2004. is --
allowed.
30. Since possession of the lands remained with, 'the. petitioners, mere publication of. Sec ction 162) of LAAct notification to evidence the fact... of taking [poss ession cannot be accepted by this, Court, That apart, the notification is issued "by the Speciai Land 'Acquisition Officer of MUDA and it. is. not notified either by the Deputy Commissioner. of the District or. r Assistant Commissioner of the Revenue sub- division. Therefore, Section 16(2) of the LA Act notification has ne legal sanction at all and it cannot be" "considered as proof for having taken over possession of the lands of the petitioners from them.
: Consequentiy, Poini fii} is answered in the negative.
a POINTS. iy & v): Application of decision in os W.P.No. 16054/2004 and W.A.No. 1447/2000 aL In the aforementioned two cases filed by some _ - other jand owners, this Court declined to quash the > impugned notifications on account of delay and laches, Ye 27 MUDA wants to apply the same to the present Cases and to dismiss these petitions, That cannot be done by this court in view of the answers given to Points ( rs to itp --
holding that the approval given to the scheme is. bad 3 m | law; that possession of the lands "are Aet taken in . accordance with law and the lands are ot vested with MUDA. The acquisition proceedings are void ab. initio in law. A void action is always void and it can: be challenged at any point of time. Even if there is 'delay, the same cannot be a ground to deay the "relief in in view of the decision of the Apex Court reported i in 1 AIR 2000 SC 2306. Further the order passed in. the above writ petition need not be applied to the fact. situation for the reason that in the above writ petition. the legal ground that the prior sanction of the scheme of the MUDA was sanctioned by the State Government z as required under Section 18(3) of the Act without considering the statement of objections to the : preliminary notification and before expiry of 30 days period "irom the. date of service of notice upon the petitioners " "along with the preliminary notification inviting objection "statements to the proposed acquisition of the petitioners Ne 28 lands. Further the legal grounds urged in these petitions are entirely different, from the grounds urged in the above Said writ petition. The petitioners have Placed + chance --
upon the judgment of this Court in G.Jayarama Recidy ve State of Karnataka and others reported | in TLR 2005 iar. ; 1963. | |
32. The petitioners have produced Annexure: D the copy of the order dated 24- 8- 1998 passed by this Court in W.P.No.29211/1994 and connected cases by which the impugned notifications have been | quashed in in so far as the petitioners in these petite are concerned. That order has become final. The sala order was either produced or placed reliance' by the petitioner in W.P.No.16054/2004 & WA 1447/2000. ao 33, The petitioners also produced Annexures-E and EI which: are the Circulars issued by the Government not to ac quire: fertile agricultural lands, garden lands and | lands where nurseries are established. The lands in question. are also garden lands with residential] and farm "on houses, Therefore. they should have not been proposed for ». adquisition for formation of residential layout even though \w7 29 the said circulars have no statutory force, but the Same are binding upon the Urban Development Authorities and State Government. nN
34. For the reasons stated above, _ petitioners:
succeed. The impugned notifications are liable. to. be. quashed. However, since MUDA claims that sites s have been formed, allotted and some' of the alllottees shave constructed houses and are "residing "herein, we confine relief only in so far as the Jands of f the petitioners are concerned. -
35. Accordingly. th the writ Ht petitions « are allowed. The impugned notifications ¢ are » quashed only in so far as the lands of the petitioners ¢ are concerned, Sd/-
jUDGE