Karnataka High Court
Sarakki Venkatappa S/O Pillaiah vs The Secretary Dept Of Revenue on 2 November, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 02ND DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No. 4152 OF 2006 (LA-RES)
BETWEEN:
Sri. Saraki Venkatappa,
Son of Pillaiah,
Aged about 71 years,
Residing at No.Kudlu Village,
Sarjapur Hobli,
Anekal Taluk,
Bangalore District. ...PETITIONER
(By Shri. T. Seshagiri Rao and Shri. Sunil S.Rao, Advocates)
AND:
1. The Secretary,
Department of Revenue,
Government of Karnataka,
M.S.Building,
Bangalore - 560 001.
2. The Deputy Commissioner,
Bangalore Urban District,
Bangalore.
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3. The Special Land Acquisition Officer,
Podium Block, 3rd Floor,
Vishveshwaraiah Tower,
Ambedkar Veedhi,
Bangalore - 560 001.
4. The Aircraft Employees Housing
Co-operative Society Limited,
No.15, CKC Garden,
Opposite BIO Hospital,
K.H.Road,
Bangalore - 560 027,
Represented by its Secretary.
5. The Tahsildar,
Anekal Taluk,
Anekal. ...RESPONDENTS
(By Shri. K. Shashi Kiran Shetty, Advocate for Respondent No.4
Shri. K.S. Mallikarjunaiah, Government Pleader for Respondent
No.1 to 3 and 5)
******
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the Notification dated
22.08.03 by third respondent and published in Karnataka Gazette
Extraordinary - part VI dated 22.8.2003 vide Annexure-K in so
far as it relates to 1 acre 22½ guntas of land in Sy. No.43/2, 44/1B
and 46/1 situated at Kudlu Village, Sarjaupra Hobli, Anekal
Taluk, Bangalore Urban District.
This petition, having been heard and reserved on
10.10.2012 and coming on for Pronouncement of Orders this day,
the court delivered the following:
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ORDER
The petitioner claims that he and his sister-in-law, Channamma, were owners of lands bearing Survey nos.43/2, 44/1B and 46/1, totally measuring 3 acres and 5 guntas, of Kudulu village, Sarjapur Hobli, Anekal Taluk, Bangalore District. The petitioner claims that he had purchased one-half of the above extent of land on the northern side measuring about 1 acre 23 guntas under a sale deed dated 22.4.1969 from one Nagappa. And his sister-in-law, on the other hand, had purchased the other half on the southern side.
2. It transpires that the Special Deputy Commissioner, Bangalore District, had issued a preliminary notification dated 5.9.1988 , under Section 4 (1) of the Land Acquisition Act, 1894, ( Hereinafter referred to as the 'LA Act', for brevity) proposing to acquire the same along with other items of land for the benefit of the fourth respondent, a house building co-operative society. A 4 final declaration under Section 6 of the LA Act, was made on 28.9.1989.
The petitioner is said to have challenged the above notifications in writ proceedings before this court in WP 16550/1994. The said petition was disposed of by an order dated 10.3.1997, while recording the undertaking of the fourth respondent to allot three house sites measuring 50 X 80 feet, each. It is stated, that pursuant to the same, an agreement dated 17.7.1998 was entered into by the fourth respondent - Society, represented by its President, with the petitioner agreeing not to disturb the petitioner's possession of the land to an extent of 1 acre and 22½ guntas out of 3 acres and 5 guntas, which was actually proposed for acquisition. The said extent was demarcated in a sketch attached to the agreement. The petitioner claims to be in continued possession of the said extent relinquished from the acquisition proceedings. The petitioner therefore denies that the Society can have any claim over the said extent. It is asserted that the RTC for the year 2000-2001, in respect of land bearing Survey 5 No. 46/1 measuring 18 guntas continued in the name of the petitioner. It is emphasized that the said extent was completely excluded from the acquisition proceedings as no further steps were taken in respect of the said extent under the LA Act.
However, the Land Acquisition Officer having issued a notification under Section 16 (2) of the LA Act, dated 22.8.2003, indicating that possession of the extent of 1 acre 22½ guntas of land, out of the land bearing the above said survey numbers - the petitioner seeks to question the same. Incidentally, the petitioner claims that he had remained unaware of the notification and it is only in the year 2006, when the fourth respondent sought to interfere with that portion of the land that the notification had been brought to light.
3. In support of the petitioner's case, other events subsequent to the filing of the petition have been pleaded by way of amendment to the petition. It is stated that a mutation order dated 4.11.2008 and the record of rights for the year 2008-09 in 6 respect of land bearing survey no.46/3 indicates that the petitioner is in peaceful possession to the extent of 1 acre and 19 guntas. It is further claimed that the land acquisition officer had conducted a spot inspection of the land in question and as per his report dated 2.3.2009 it is indicated that out of the extent of 1 acre 27 guntas in land bearing Survey No.46/3, only 0.7 guntas of land had been acquired for the benefit of the fourth respondent - Society and the remaining extent of 1 acre 19 guntas is in the possession of the petitioner. The said officer had also issued an endorsement along with a survey sketch, dated 18.3.2009, affirming this position.
It is further asserted that at the time the acquisition proceedings were initiated the lands in Kudlu village had not been surveyed and no Hissa, Phode durasthi work had been carried out. It is only on a subsequent survey that the land bearing Survey no.46 was sub-divided into 3 sub-divisions, namely, 46/1,46/2 and 46/3, respectively. It is claimed that Survey No.46/3, measured 1 acre 27 guntas. In the year 2002, the said land in Survey No. 46/3 was re-surveyed and further bifurcated, the holding of the 7 petitioner was assigned Survey No.46/4, while the portion acquired for the benefit of the Society was retained as Survey No.46/3, which was limited to an extent of 0.7 guntas.
4. The fourth respondent has resisted the petition and contends that the claim of the petitioner is inconsistent, in as much as the pleadings of the petitioner in the earlier writ proceedings in WP 16550/1994 cannot be reconciled with the pleadings in the present writ petition. Further, in this very writ petition the petitioner has sought to amend the petition twice with regard to the identity and the extent of the land, which completely confounds the case of the petitioner. It is pointed out that the petitioner originally claimed 18 guntas of land bearing Survey No. 46/1. It was then sought to be contended by way of amendment that only an extent of 7 guntas of land was acquired in Survey No.46/3 and the remaining extent of 1 acre 19 guntas was not acquired and that the petitioner continued in occupation of the land. It was again sought to be contended by way of a further 8 amendment that he was the owner of a total extent of 1 acre and 27 guntas of which the portion acquired remained as Survey No.46/3 and the portion remaining in his possession has been assigned Survey No. 46/4, on a re-survey. It is contended that the acquisition proceedings have attained finality and the petitioner now seeking to lay claim to any extent of land only on the basis of records that may have originated subsequently are dubbed as being dubious and not affording any right to the petitioner to negate the acquisition proceedings.
It is asserted that the claim of the petitioner to the effect that the lands in Kudlu village had not been surveyed and no hissa phode work had been carried out in respect of the said lands prior to the acquisition proceedings, is in correct and misleading. It is stated that a joint survey was conducted by the surveyors attached to the office of the Special Land Acquisition Officer and the office of the Assistant Director Land Records, Bangalore East Division. A survey sketch, dated 21.5.1989 was prepared depicting the lands 9 acquired in lands bearing Survey Nos.43, 44 and 46 in Kudlu village. It is further contended that the hissa phode work of land in Survey no. 46/1 and 46/3 done in the year 1991, was in accordance with law and procedure, the same cannot be wished away by the petitioner, nor can the same be subject to any challenge after two decades by recourse to the present petition.
It is contended that before the sub-division of the land in Sy. No. 46 as 46/1, 46/2 and 46/3, in the year 1991, the said Survey No. 46 - constituted Survey Nos. 46/1 and 46/2, totally measuring 7 acres 38 guntas. Out of this, 4 acres and 28 guntas was the notified land, under Section 6 of the LA Act.
The claim of the petitioner that the land in Survey No. 46/3 was further sub-divided as 46/3 and 46/4 - is denied as being without notice to the Society . In any event, such a procedure being possible, after the completion of the acquisition proceedings, in the year 2002, is doubted. Especially since the extent said to have been handed over to the Society, of the land in 10 Survey No. 46/3 is contrary to the extent mentioned in the survey sketch prepared during the hissa phode work in the year 1991. It is emphasized that the entire extent of land in Survey No.46/1 measuring 19 guntas and the extent of 1 acre 27 guntas of land in Survey No.46/3 had been handed over to the fourth respondent and there was no other extent of land that remained, to be demarcated as Survey No. 46/4.
It is contended that the reliance sought to be placed on the letter dated 18.3.2009 of the land acquisition officer to claim that in terms of the notification issued under Section 16 (2) of the LA Act, only 7 guntas of the land belonging to the petitioner in land bearing Survey No. 46/3 was acquired and that the remaining extent of 1 acre and 19 guntas was re-numbered as 46/4, as being false. It is pointed out that this is contrary to the actual content of the notification under Section 16 (2) of the Act, dated 1.9.2002 as well as the possession certificate dated 13.9.2002 and 17.9.2003 issued in favour of the fourth respondent.
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It is alleged that there is active collusion between the petitioner and the Special Land Acquisition Officer in the preparation of documents contrary to documents forming the record as to the state of affairs as on the relevant dates. The fourth respondent questions the very authority of the Officer to issue such endorsements which run counter to the material available on record and which are not questioned at all.
It is also denied that the petitioner was entitled to seek conversion of the land user, notwithstanding that the land was no longer available to the petitioner as it was vested in the state and handed over to the Society.
5. Respondents 1,2,3 and 5 represented by the Government Pleader, have also filed Objections to contend that the acquisition proceedings are admitted. It is also stated that the lands in question when notified for acquisition had not been surveyed and no hissa, phode and durasth work had taken place. It is further stated that the land bearing Survey no. 46, totally measuring 6 12 acres 38 guntas was phoded as 46/1 measuring 3 acres 27 guntas, Survey no.46/2 measuring 1 acre 24 guntas and 46/3 measuring 1 acre 27 guntas as per the hissa phode durast held on 27.5.1991. It is stated that out of the total extent of 1 acre 27 guntas of land, 18 guntas was sought to be acquired out of land in Survey no. 46/3, but in view of a settlement whereby three sites of the dimension of 50 X 80 feet each was to be reserved for the petitioner, equivalent to about 11 guntas of land, ultimately only 7 guntas of land was taken possession of out of the 18 guntas and the remaining extent of 1 acre 19 guntas of land ( not including 1 gunta of kharab land ) remained in the possession of the petitioner. This declaration on the part of these respondents is categorical. These statements are further fortified by an additional statement of objections dated 1.10.2012,supported by further documents.
6. In the above background it is to be considered whether the petitioner is entitled to the reliefs as prayed for. 13
It is seen that the prayer of the petitioner is as follows:
"WHEREFORE, the petitioner prays that this Honourable Court be pleased to issue a writ of certiorari quashing the notification dated 22.08.2003 bearing No.LQSR/HBCS/26/87-88 issued by the third respondent and published in Karnataka Gazette Extraordinary Part - VI dated 22.08.2003 Annexure-K insofar as it relates to 1 acres 22 ½ guntas of land in Survey No.43/2, 44/1B and 46/1 situated at Kudulu Village, Sarjapura Hobli, Anekal Taluk, Bangalore Urban District and issue any other appropriate writ or direction and grant such other reliefs this Honourable Court deems fit to grant under the facts and circumstances of the case.
And declare that the whole acquisition proceedings in the above writ petition in respect of the lands of the petitioner are null and void in view of Section 79B of the Karnataka Land Reforms Act and also fraud played on Government by misrepresentation in the interest of justice and equity." The sum and substance of the petitioner's case being that only an extent of 7 guntas of land belonging to the petitioner has been acquired and taken possession of and the remaining extent of land measuring 1 acre 19 guntas, now assigned Survey No. 46/4 14 remains intact and in the possession of the petitioner and is not the subject matter of acquisition proceedings. However, if the petition is allowed in terms as prayed for, it would not result in the petitioner being granted the relief which he seeks in respect of the land in Survey No. 46/4. In other words, it is evident that the petitioner, in effect, seeks a declaratory relief as to his title and possession of the land in dispute - on the ground that it was not at all the subject matter of the acquisition proceedings excepting an extent of 7 guntas. The state government seemingly supports the case of the petitioner. This court will not, however, grant the relief as prayed for. There is no cohesion between the pleadings and the prayer. If it is indeed the case of the petitioner that the land in question continues in his possession and was never the subject matter of the acquisition proceedings, it does not stand to reason to quash any notification pursuant to such acquisition proceedings. In the face of the resistance to the petition by the beneficiary of the acquisition proceedings and in the light of serious dispute as to the identity and extent of the land it is hardly 15 a matter that can be decided on a cursory examination of inconsistent and ambiguous documents. The petitioner however, is left to his remedies elsewhere. The disposal of this petition shall not prejudice his case, if it is otherwise capable of standing the test of a detailed scrutiny. The petition stands disposed of accordingly.
Sd/-
JUDGE nv*