Karnataka High Court
Sri C G Gangadhar vs Mysore Urban Development Authority on 31 May, 2013
Equivalent citations: 2013 (4) AKR 366
Author: H N Nagamohan Das
Bench: H.N. Nagamohan Das
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31st DAY OF MAY, 2013
BEFORE
THE HON'BLE MR. JUSTICE H.N. NAGAMOHAN DAS
WP No.43463 OF 2011[LB-RES]
BETWEEN
SRI C G GANGADHAR
AGED ABOUT 47 YEARS,
S/O SRI. GUDDAIAH,
RESIDING AT NO.50, "HARSHA GAGANA"
3RD STAGE, K.H.B. CHAMARAJA MOHALLA,
MYSORE REPRESENTED BY ITS G.P.HOLDER
C.N. MANJEGOWDA
... PETITIONER
(By Sri : M S BHAGWAT & D PAVANESH & LOKESH M)
AND
1.MYSORE URBAN DEVELOPMENT AUTHORITY
REPRESENTED BY ITS COMMISSIONER
MYSORE
2.STATE OF KARNATAKA
DEPARTMENT OF URBAN AND HOUSING
REPRESENTED BY ITS SECRETARY,
VIKASA SOUDHA,
BANGALORE
... RESPONDENTS
2
(By Sri : P S MANJUNATH FOR R1
SRI N.B.VISHWANATH, HCGP FOR R2)
THIS WRIT PETITION FILED UNDER ARTICLES 226 & 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE
PRELIMINARY NOTIFICATION DT 12.12.06 VIDE ANNX-A
PASSED BY THE R1 AS FAR AS THE LAND BELONGING TO THE
PETITIONER.
This petition coming on for preliminary hearing 'B' group, this
day, the court made the following;
ORDER
In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the preliminary notification dated 12.12.2006, Annexure-A issued by the first respondent in so far as it relates to the land belonging to the petitioner measuring 1 Acre 39 guntas in sy.no.81 situated at Sarakari Utthanahalli village, Varuna Hobli, Mysore Taluk.
2. Respondents issued a preliminary notification on 12.12.2006 as per Annexure-A proposing to acquire 760.02 Acres for formation of layout called "Shantaveri Gopalagowdanagar, II Stage extension, Mysore. This preliminary notification was issued 3 under Section 17 of the Karnataka Urban Development Authorities Act, 1987. In this preliminary notification respondents have also proposed to acquire the land belonging to the petitioner. Even after lapse of four years the respondents have not issued the final notification. Therefore, the petitioner is before this court to quash the acquisition proceedings in so far as it relates to the land belonging to the petitioner.
3. Heard arguments on both the side and perused the entire writ papers.
4. A Division Bench of this court in Shimoga Urban Development Authority vs. State of Karnataka [ILR 2002 Kar 2078] considered the question of delay in issuing the final notification. For the purpose of this case the relevant paras 17 and 18 are as under:
The effect of delay has been considered by the Supreme Court in RAM CHAND vs. UNION OF INDIA. Though the said case dealt with the delay between the date of Final Notification and the date of passing of the award, the principles enunciated 4 therein will equally apply in respect of the delay between the Preliminary Notification and Final Notification. The following observations are apposite:
"It is settled that in a statute where for exercise of power no time limit is fixed, it has to be exercised within a time which can be held to be reasonable. The authorities are enjoined by the statute concerned, to perform their duties within a reasonable time and as such they are answerable to the Court, why such duties have not been performed by them, which has caused injury to the claimants."
The Supreme Court held that where the compensation is pegged down to the date of preliminary notification and there is inordinate delay, the market rate as on the date of preliminary notification becomes a fraction of the market rate prevailing at the time of passing of the award and taking of possession and that would be unjust to the land owners.
18. In this case the Authority has not explained the inordinate delay. Even if it is assumed that the delay upto 15.3.1989 is explained by reason of the fact that the scheme was approved by the Government under Section 18(3) of the Act on that day, there is absolutely no reason forthcoming for the delay of more than 3 years between 15.3.1989 to 2.6.1992. In this case, the land owners have approached this court in the year 1992 5 immediately after the Final Notification and are having the benefit of stay. In the circumstances, even if the preliminary notification is held to be valid for any reason, the final declaration under Section 19(1) of the Act may have to be held to be invalid on the ground of delay in issuing the same. Be that as it may.
5. Further learned single Judge of this court in Smt.Lalithamani vs. Mysore Urban Development Authority (2003) 4 Kar.LJ 528 by considering the law declared by the Division Bench of this court in the case referred above held "if there is no explanation offered the delay becomes fatal. In other words, if there is acceptable explanation, delay is to be condoned. Therefore quashing of the final notification on the ground of delay depends upon whether delay has been properly explained or not". Further the learned single Judge of this court in W.P.No.19468-475/2012 vide order dated 03.07.2012 (unreported judgment) held that "preliminary notification is only a proposal for acquisition of land and the land owner will have an opportunity to oppose the same by filing the objections. Therefore the writ petition filed questioning the preliminary notification came to be dismissed.
6
6. It is not in dispute that the Karnataka Urban Development Authorities Act, 1987 do not specify the period in which the final notification is to be issued unlike under the provisions of the Karnataka Land Acquisition Act. In those circumstances, a Division Bench of this Court and learned single Judge of this court in the decisions referred to above held that in the absence of any specific provisions specifying the period of limitation to issue the final notification the same is to be issued within a reasonable time. What is the reasonable time depends on the facts and circumstances of each case. If there is acceptable and satisfactory explanation for the delay in issuing the final notification then the courts cannot quash the acquisition proceedings. Keeping these principles in view, it is necessary to examine the fact situation in the present case.
7. Admittedly, the impugned preliminary notification was issued on 12.12.2006 under Section 17 of the Karnataka 7 Urban Development Authorities Act. Even after lapse of 6 ½ years the final notification is not issued. After lapse of four years, 11 months from the date of issuing of preliminary notification the petitioner is before this court questioning the same. Respondents in their statement of objections offered explanation and the same reads as under:
In this case also, this respondent seeks to place the following chronology of events in justification of the delay in issuing the final notification:
Particulars Date Preliminary notification dated 12.12.2006 under section 17(1) of the 21.12.2006 KUDA Act published in the Gazette Paper publication 28.12.2006 Publication in the notice board of the Deputy Commissioner, 04.01.2007 Assistant Commissioner, Thasildar and Village Panchayat Starting of issue of preliminary notification individually to the land 29.01.2007 owners Service of notice on all the land owners completed State Government directed the Authority to seek for change of land 24.01.2007 use Letter addressed to the Deputy Commissioner, Mysore District to 23.03.2007 stop unauthorized construction coming up on the land proposed for acquisition 8 Spot inspection regarding unauthorized construction 29.03.2007 Intra office letter for conducting joint measurement of the land 09.08.2007 proposed to be acquired to enable issue of final notification to accurately state the land proposed to be acquired Survey work entrusted to private agency Private agency sought time to complete the work 25.02.2008 Joint measurement completed on 23.06.2009 Request sent to the Special Land Acquisition Officer, Varuna Canal 29.07.2009 to indicate the extent of land in various sy.nos. which have already been acquired for the Varuna Canal Approval of the Board for acquiring 465 acres 24 ½ guntas 11.02.2010 Proposal sent to the Government for approval under section 18(3) of 16.06.2010 the Act Clarification sought for by the Government 13.10.2010 Reply furnished by MUDA 15.11.2010 Further clarification sought for by the Government 23.04.2011
8. A reading of the above explanation manifestly makes it clear that the same is not reasonable and satisfactory. The steps that are required to be taken by the respondents before initiation of acquisition proceedings are taken by them after issuing of preliminary notification. Therefore the various steps taken by the 9 respondents after issuing of preliminary notification cannot be a satisfactory explanation for this inordinate delay of 6 ½ years from the date of initiation of preliminary notification. Therefore, the explanation offered by the petitioner as stated above is liable to be rejected.
9. When a preliminary notification is issued certain civil and legal consequences will follow. After issuing of preliminary notification the owner of the land is barred from alienating, developing and improving the land. Further the owner of the land will be forced to part with the land for market value as on the date of preliminary notification when prices are escalated. This court can take judicial notice that in the recent past in and around Mysore where the lands in question is situated the land rates are escalated tremendously. The delay in issuing the final notification by the respondents has caused great hardship, loss and inconvenience to the petitioner who is the 10 owner of a bit of land. For the reasons stated above, the following:
ORDER
i) Writ petition is hereby allowed.
ii) The impugned preliminary notification dated
12.12.2006 issued by the first respondent as per Annexure-A, in so far as petitioner is concerned is hereby quashed.
iii) Ordered accordingly.
Sd/-
JUDGE.
DKB