Karnataka High Court
Dr. Talavane Krishna vs State Of Karnataka on 14 August, 2023
Author: R Devdas
Bench: R Devdas
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NC: 2023:KHC:28721
WP No. 10786 of 2023
C/W WP No. 11907 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO.10786 OF 2023 (LA-UDA)
C/W
WRIT PETITION NO.11907 OF 2023 (LA-UDA)
IN WP 10786/2023
BETWEEN:
1. DR. TALAVANE KRISHNA
S/O T. THIMMAPPAIAH
AGED ABOUT 73 YEARS
INDUS VALLEY AYURVEDIC CENTRE
TALAVANE FARM, LALITHADRIPURA
MYSORE-570010.
2. ANITA KRISHNA
W/O DR. TALVANE KRISHNA
Digitally signed by
JUANITA AGED ABOUT 62 YEARS
THEJESWINI
Location: HIGH INDUS VALLEY AYURVEDIC CENTRE
COURT OF
KARNATAKA TALAVANE FARM, LALITHADRIPURA
MYSORE-570010.
REPRESENTED BY GPA HOLDER
DR. TALAVANE KRISHNA
...PETITIONERS
(BY SRI. G. KRISHNAMURTHY, SENIOR COUNSEL FOR
SMT. G.K.BHAVANA., ADVOCATE)
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WP No. 10786 of 2023
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AND:
1. STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
NO.435, 4TH FLOOR, VIKASA SOUDHA
BANGALORE-560001
REP. BY ITS SECRETARY.
2. MYSORE URBAN DEVELOPMENT AUTHORITY
JHANSI RANI LAKSHMI BAI ROAD
MYSORE-570005
REP. BY ITS COMMISSIONER.
3. THE SPECIAL LAND ACQUISITION OFFICER
MYSORE URBAN DEVELOPMENT AUTHORITY
JHANSI RANI LAKSHMI BAI ROAD
MYSORE-570005.
...RESPONDENTS
(BY SRI. SIDHARTH BABURAO, AGA FOR R1,
SRI T.P. VIVEKANANDA ADVOCATE FOR R2 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-
DECLARE THAT THE PRELIMINARY NOTIFICATION DATED
03/04/2006 ISSUED UNDER SECTION 17(1) OF KARNATAKA
URBAN DEVELOPMENT AUTHORITIES ACT ANNEXURE-J IS
INVALID, CONTRARY TO LAW AND HAS BECOME REDUNDANT
AS AGAINST THE SCHEDULE PROPERTIES AND ETC.
IN WP 11907/2023
BETWEEN:
SMT. ALAKA R. PAI
W/O SHRI RAJESH PAI
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WP No. 10786 of 2023
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AGED ABOUT 54 YEARS
VILLA NO.6, VILLA DELMAR
SARJAPUR ROAD
BANGAORE 560 102
...PETITIONER
(BY SRI. G. KRISHNAMURTHY, SENIOR COUNSEL FOR
SMT. G.K.BHAVANA., ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
NO.435, 4TH FLOOR, VIKASA SOUDHA
BANGALORE-560001
REP. BY ITS SECRETARY.
2. MYSORE URBAN DEVELOPMENT AUTHORITY
JHANSI RANI LAKSHMI BAI ROAD
MYSORE-570005
REP. BY ITS COMMISSIONER.
3. THE SPECIAL LAND ACQUISITION OFFICER
MYSORE URBAN DEVELOPMENT AUTHORITY
JHANSI RANI LAKSHMI BAI ROAD
MYSORE-570005.
...RESPONDENTS
(BY SRI. SIDHARTH BABURAO, AGA FOR R1,
SRI T.P. VIVEKANANDA ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE THAT THE PRELIMINARY NOTIFICATION BEARING
NO. LAQ(5)CR 540/2005-06 DTD 03/04/2006 ISSUED U/S
17(1) OF KARNATAKA URBAN DEVELOPMENT AUTHORITIES
ACT IS INVALID, CONTRARY TO LAW AND HAS BECOME
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WP No. 10786 of 2023
C/W WP No. 11907 of 2023
REDUNDANT AS AGAINST THE SCHEDULE PROPERTIES AND
ETC.,
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
COMMON ORDER
R.DEVDAS J., (ORAL):
Since the prayers made in the writ petitions are common, raised against the respondents - State and Mysore Urban Development Authority (MUDA), these matters are clubbed, heard together and disposed of by this common order.
2. The petitioners are seeking to quash the preliminary notification dated 03.04.2006 issued by the 2nd respondent - MUDA under Section 17(1) of the Karnataka Urban Development Authority Act, 1987 insofar as they relate to the scheduled properties which are all situated in Sy.No.4 but having different block numbers such as 11 to 13, 15 and New Sy.Nos.23 and 27, in all measuring about 17 acres 21 guntas.
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3. Learned Senior Counsel Sri G.Krishnamurthy appearing for the petitioners submits that the matter stands squarely covered by a recent decision of a co- ordinate bench of this Court in the case of Shri C.Bhaskaran /vs./ State of Karnataka and others in W.P.No.7505/2014 dated 17.11.2020. Learned Senior Counsel submits that the co-ordinate bench accepted the contentions of the petitioners that though the impugned preliminary notification was issued on 03.04.2006, the State Government has not issued final notification/declaration as required under Section 19 of the Act, till date.
4. Learned Senior Counsel submits that it is more than 18 years since the issuance of the preliminary notification and the final notification/declaration has not been issued under Section 19 of the Act. It is submitted that though a submission was made on behalf of the respondent - MUDA before the Co-ordinate bench that there is no prescription of any time period within which the -6- NC: 2023:KHC:28721 WP No. 10786 of 2023 C/W WP No. 11907 of 2023 notification under Section 19 is required to be issued, nevertheless co-ordinate bench has held that the final notification/declaration had to be issued within a reasonable time and 17-18 years cannot be held as reasonable time, having regard to the predicament of the petitioners who are not permitted to develop their lands and curtailment of their rights vested under Article 300A of the Constitution of the India. The co-ordinate bench noticed the fact that under the preliminary notification lands to an extent of more than 595 acres were notified, however in terms of the directions issued by the Department of Urban Development more than 100 acres of land have been dropped from the acquisition proceedings. Learned Senior Counsel has drawn the attention of this Court to atleast 6 communications made by the State Government directing the respondent authority to drop the acquisition proceedings in respect of the lands mentioned therein. The Co-ordinate bench took note of the submissions made on behalf of the writ petitioners that no material was placed before the Court to show that a -7- NC: 2023:KHC:28721 WP No. 10786 of 2023 C/W WP No. 11907 of 2023 scheme was framed and that MUDA had the financial capacity to form a park and open spaces to an extent of more than 500 acres etc.
5. It was also noticed that in the subsequent Comprehensive Development Plan notified by the MUDA in the year 2016, only an extent of 9 acres 7 guntas were reserved for park and the remaining extent is reserved for residential/commercial/public/semi-public and transportation purposes. Learned Senior Counsel would therefore submit that it is evident from the subsequent developments that an extent of more than 500 acres which were earlier shown in green, and reserved for the purposes of park and open spaces in the earlier Comprehensive Development Plan was thereafter reduced to only 9 acres and 7 guntas, which clearly shows the intention of the respondent authority that it has no financial capacity to convert more than 500 acres of land for parks and open spaces, more-so because if the authority was planning to form only parks and open -8- NC: 2023:KHC:28721 WP No. 10786 of 2023 C/W WP No. 11907 of 2023 spaces in the entire area of more than 500 acres it would not get any financial support like it does when it forms residential layout. In that view of the matter, it is submitted that the subsequent reservation of only 9 acres and 7 guntas of land in the new Comprehensive Development Plan for park and open spaces clearly supports the contentions raised by the petitioners that the earlier reservation of more than 500 acres has been given up and the authority has notified only 9 acres and 7 guntas of land for the purposes of developing the parks and open spaces. It is submitted that in the new Comprehensive Development Plan the land in question are reserved for the purposes of "commercial axis" and therefore the lands in question are clearly out of the purview of the notification issued in the year 2006. Viewed from any angle, it is a fit case where the Court has to quash the impugned preliminary notification insofar as the lands of the petitioners are concerned. -9-
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6. Learned counsel Sri T.P.Vivekananda, appearing for the respondent - MUDA submits that statement of objections have been filed at the hands of the authority. Learned counsel submits that a contention has been taken in the statement of objections that although in the new Comprehensive Development Plan, the lands which were earlier earmarked for parks and open spaces in Sy.No.4 of Kurubarahalli Village is later on reserved for residential/commercial/public/semi-public/transportation etc., nevertheless there would be no impediment for the authority to form residential layout on the land in question. It is stated in the statement of objections that although the lands in question are now designated for commercial purposes, nevertheless it is within the powers of the authority to re-designate the same for residential purposes. The learned counsel would further submit that the petitioners herein had approached this Court thrice earlier and on all the three occasions, this Court had directed the State and its authorities to reconsider the representations given by the petitioners for dropping the
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NC: 2023:KHC:28721 WP No. 10786 of 2023 C/W WP No. 11907 of 2023 acquisition proceedings and the Secretary of the department of Urban Development is seized of the matter between the petitioner and the respondent - MUDA in terms of the directions issued in W.P.No.10786/2023. In that view of the matter, it is submitted that this Court should allow the State Government to take a decision in the matter.
7. Having heard the learned Senior Counsel for the petitioner, learned counsel for the respondent - MUDA and the learned Additional Government Advocate for the respondent - State, this Court finds that the petitioners are entitled for similar relief as was granted to the writ petitioners in W.P.No.7505/2014 (supra). The decision of the co-ordinate bench that even if there is no period prescribed in the Act for issuance of a final notification/declaration under Section 19 of the Act, nevertheless, it is required to be held that having regard to the constitutional right guaranteed under Article 300A of the Constitution of India enabling the owner of a
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NC: 2023:KHC:28721 WP No. 10786 of 2023 C/W WP No. 11907 of 2023 immoveable property to utilise his lands for any beneficial use in accordance with law, the same cannot be curtailed at the hands of the State and its authorities, without due process of law. There are provision found in the Karnataka Town and Country Planning Act mandating that if a private property is reserved for any public purposes such as parks and open spaces, roads, etc., the same are required to be acquired by the State and the Urban Development Authority within the prescribed period. Section 69(2) of the Karnataka Town and Country Planning Act mandates such acquisition within a period of 5 years insofar as the lands designated as parks and open spaces/public/semi public purposes. Similarly, in the considered view of this Court the provisions contained in Section 27 of the Karnataka Urban Development Authorities Act 1987 also cannot be ignored. Section 27 mandates that no sooner the declaration under sub- section (1) of Section 19 is made, and within a period of 5 years from the date of publication in the official gazette the scheme has to be substantially implemented. Having
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NC: 2023:KHC:28721 WP No. 10786 of 2023 C/W WP No. 11907 of 2023 regard to the subsequent developments whereby the State and the respondent - MUDA have reduced the designation of more than 500 acres of land which were earlier reserved for parks and open spaces and maintained it at only 9 acres and 7 guntas in new Comprehensive Development Plan, notified in the year 2016, there is a clear indication of the intention of the State and the respondent - MUDA that the lands in question cannot be now acquired for the purposes of formation of park and open spaces. Therefore, this Court would not hesitate to hold that when the designation of the land in question do not remain or continued to be reserved for parks and open spaces, as it was in the earlier Comprehensive Development Plan, the purpose for which the preliminary notification was issued in the year 2006 has lost its efficacy. A final notification/declaration under Section 19 cannot now be issued for the purpose of acquisition of lands in question as parks and open spaces. The subsequent designation of the land in question as commercial access, would now prevent the respondent -
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NC: 2023:KHC:28721 WP No. 10786 of 2023 C/W WP No. 11907 of 2023 MUDA from proceeding with the preliminary notification issued in the year 2006 and the respondent - State Government cannot now issue a final notification/declaration under Section 19 of the Act enabling the usage of the lands in question for parks and open spaces.
8. Though the learned Senior Counsel appearing for the petitioners had submitted that the petitioners have developed world class Ayurvedic Centre in the lands in question and therefore the lands could not have been notified for acquisition for the purposes of parks and open spaces, nevertheless in the considered opinion of this Court, that issue need not be gone into at this point of time.
9. For the reasons stated above, this Court is satisfied that the petitioners are entitled for the relief as was given in the case of Shri C.Bhaskaran (supra). Accordingly, this Court proceeds to pass the following:
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WP No. 10786 of 2023
C/W WP No. 11907 of 2023
ORDER
(i) The writ petitions are allowed.
(ii) The impugned preliminary notification dated 03.04.2006 is hereby quashed insofar as the land of the petitioners are concerned.
Sd/-
JUDGE KLY