Karnataka High Court
Sri Venkatappa vs State Of Karnataka on 5 December, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 32187 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 32187 OF 2014 (ULC)
BETWEEN:
SRI VENKATAPPA
S/O LATE CHANNAPPA,
AGED ABOUT 75 YEARS,
R/AT NO.KODIGEHALLI VILLAGE,
RAMAMANDIRA ROAD,
SAHAKARANAGARA POST,
BANGALORE-560 092.
...PETITIONER
(BY SRI. M.B. NARGUND, SENIOR COUNSEL FOR
SRI. NAGARAJ JAIN, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY TO
Digitally signed REVENUE DEPARTMENT
by R
HEMALATHA M.S. BUILDING,
Location: HIGH BANGALORE-560 001.
COURT OF
KARNATAKA 2. THE DEPUTY COMMISSIONER
EARLIER ACTED AS URBAN LAND (CEILING &
REGULATION)
BANGALORE DISTRICT,
BANGALORE-560 001.
3. THE SPECIAL TAHSILDAR
BANGALORE SOUTH TALUK,
BANGALORE
BANGALORE-560 037.
...RESPONDENTS
(BY SMT. HEMALATHA, AGA FOR RESPONDENTS
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WP No. 32187 of 2014
SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI. HALESHA R.G., ADVOCATE FOR
IMPLEADING APPLICANTS)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE THAT THE PROVISIONS OF URBAN LAND (CEILING
& REGULATIONS) ACT 1976 ARE NOT APPLICABLE IN
RESPECT OF THE LAND BEARING SY.NO.1/10, 1/11, 1/12,
TOTALLY MEASURING 1 ACRES 2 GUNTAS, SITUATED AT
CHANNASANDRA VILLAGE, UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK, AS THE ENTIRE PRINCIPAL ACT
HAS BEEN REPEALTED IN THE YEAR 1999, BY THE ACT NO.5
OF 1999 AND ETC.
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The lands measuring 0.16 guntas in Sy.No.1/10, 0.13 guntas in Sy.No.11 and 0.13 guntas in Sy.No.1/12 all situated at Channasandra village, Uttarahalli Hobli, Bengaluru South Taluk, is subject matter of this writ petition.
2. Doddapunjappa, Dasappa and Chennappa sold the subject lands in favour of Venkatappa through a registered sale deed dated 23.12.1967. The petitioner sold the subject lands in favour of Chennarayappa through a registered sale deed dated 15.4.1972. The Urban Land (Ceiling and Regulation) Act, 1976 (for short `Act, 1976') came into effect from 17.2.1975.
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3. The petitioner purchased the subject land through a registered sale deed dated 31.7.1978, which is admittedly after commencement of the Act. Thereafter, Dasappa during his lifetime filed a declaration under Section 8(4) of the Act, 1976, and that, he died in the year 1981 and his son viz:
Hanumanthappa was brought on record. Thereafter, the competent Authority passed an order under Section 10(1) of the Act, 1976 holding that Dasappa was holding excess land to an extent of 25,200.31 sq.metres out of 36,506.00 sq. mtrs. including the subject lands.
4. Following the order passed under Section 10(1) of the Act, 1976, the competent Authority passed an order under Section 10(3) of the Act, 1976 vesting the excess land with the government free from all encumbrances.
5. Sri M B Naragund, learned Senior Counsel representing the petitioner's counsel submits that following the order passed under Section 10(3) of the Act, 1976, the competent Authority has not taken lawful possession under Section 10(5) or (6) of the Act, 1976. The petitioner is entitled for restoration of the land as stated under Section 3(2) of the Act, 1976. He further submits that the declarant was holding land to an extent of 36,506.00 sq. mtrs. and an extent of 26,299.00 sq. mtrs. was declared as excess vacant land, and therefore, the petitioner, who is the purchaser to an extent of 4249 mtrs. was entitled for the benefit under Section 5 of the -4- NC: 2024:KHC:50245 WP No. 32187 of 2014 Act, and on this ground alone, the impugned order passed by the competent Authority is not sustainable in law. In support, reliance is placed on the following decisions:
1) B Mahadevappa -vs- The Deputy Commissioner & Competent Authority in WP No.43155/2011 (DD 23.7.2024);
2) Sri Dhanumanthappa represented legal representatives -
vs- the STate of Karnataka & ors. (WP No.51700/2024)(DD 22.10.2024).
6. On the contrary, the learned counsel for the impleading applicants submits that the subject lands are proposed to be allotted to the Karmika Raitha Vasathi Nirmana Sahakara Sangha, which is evident from the official memorandum vide Annexure-R4. He further submits that the petitioner having purchased the subject land after the commencement of Act, the sale deed executed in favour of the petitioner is null and void as stated under Section 5(3) of the Act, 1976. Therefore, he submits that the order passed by the competent Authority declaring that the declarant was holding excess land is inconformity with the provisions of the Act, 1976. The impugned order was passed on 7.3.1988, and that, the writ petition filed after an inordinate delay of more than 25 years is not maintainable, and on the ground of delay and laches, the same requires to be dismissed.
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7. In support, reliance is placed on the decision of a coordinate Bench of this Court in the case of Raksha R Acharya -vs- Deputy Commissioner and Competent Authority in WP No.39439/2016 - (DD 26.9.2018).
8. The learned Additional Government Advocate for the State submits that the lawful possession of the excess land was taken by the competent Authority. Therefore, the petitioner is not entitled for restoration of land as stated in Section 3(2) of the Repealing Act, 1999. Subsequently, the name of the government was mutated in the revenue records as owner in possession. The present petition, filed after an inordinate delay of more than 25 years, is therefore, barred by delay and laches. On this ground alone, the present petition is liable to be dismissed.
9. In support, reliance is placed on the Division Bench of this Court in Secretary to Government, Department of Urban Development and others -vs- Smt.Ningavva, since deceased by her LRs and others (ILR 2021 Kar 3028).
10. After examining the arguments of the learned counsel for the parties, the following is observed:
11. The Act, 1976 came into effect from 17th February, 1976. The petitioner purchased the lands from the declarant -6- NC: 2024:KHC:50245 WP No. 32187 of 2014 through a registered sale deed dated 31.7.1978. The competent Authority passed an order declaring that the declarant viz: Dasappa was holding excess land to an extent of 25,200.31 sq. mtrs. out of 36,506.00 sq.mtrs including the subject lands.
12. Section 5 of the Act deals with transfer of vacant land, and it states that if any person after commencement of the Act holding an excess of the ceiling limit shall transfer such land, the extent of the land so transferred shall also be taken into account in calculating the extent of vacant land, and the excess vacant land in relation to such person shall, for the purposes of this Chapter be selected out of the vacant land held by him after such transfer, and in case the entire excess land cannot be so selected, the balance, or where no vacant land is held by him after the transfer, the entire excess vacant land shall be selected out of the vacant land held by the transferee.
13. Therefore, the competent Authority was required to select the excess vacant land out of the total excess vacant land held by him. In the instant case, the declarant was declared to be holding excess land to the extent of 26,200.31 sq.mtrs. out of total extent of 36,506.00 sq. mtrs. including approximately 4,000 sq., mtrs purchased by the petitioner. However, the competent Authority has not selected 26,200.31 -7- NC: 2024:KHC:50245 WP No. 32187 of 2014 sq. mtrs. out of 36,506.00 sq. mtrs. in terms Section 5 of the Act, 1976.
14. The impleading applicants have annexed the copy of the communication dated 16.8.2014 issued by the Tahsildar, Bengaluru South Taluk to the Assistant Commissioner, Bengaluru South Sub-Division, stating that the excess land is vacant, and the possession has been taken as per the official memorandum dated 5.9.1996. The impleading applicants have also annexed the copy of the order dated 17.4.2015 passed by the Assistant Commissioner Bengaluru South Sub-Division wherein the MR No.8/2007-08 in relation to lands in Sy.No.1/3, and Sy.No.1/5 has been set aside and the name of the government was restored. The petitioner was not a party to the said proceedings.
15. The impleading applicants have also annexed the communication dated 6.8.2015 issued by Karmikara Raithara Vasathi Nirmana Sahakara Sangha Ltd. to the Hon'ble Minister of Revenue seeking for restoration of the excess land in favour of the Sangha. In the said communication, it is stated that the erstwhile land owner suppressed the facts that the subject lands were declared as excess vacant land while selling the land to the Sangha. However, the government has not taken any further action, and therefore, the allottees of the sites in the said excess land continued to be in possession and enjoyment of the respective sites. Meanwhile, the ULC -8- NC: 2024:KHC:50245 WP No. 32187 of 2014 Act was repealed. Therefore, the entire proceedings stand abated, and the Sangha is entitled to retain the excess land. Therefore, sought for allotment/restoration of the subject excess lands under Section 23(4) of the Act, 1976 which provides for disposing of the excess land by the State government to subserve the common good on such terms and conditions as the State Government may deem fit to impose.
16. Section 10(5) of the Act, 1976 empowers the competent Authority may by a notice in writing, order any person who may be in possession of the excess land to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government.
17. Section 10(6) of the Act, 1976 states that if any person refuses or fails to comply with an order made under sub-Section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorized by the State Government.
18. The impugned notification/order dated 7.3.1988, by which, the lands in question were declared as excess vacant land was challenged in WP No.51700/2014 by Sri Dhanumanthappa represented by his L.R. who is the son of deceased declarant viz: Dasappa. The coordinate Bench of -9- NC: 2024:KHC:50245 WP No. 32187 of 2014 this Court vide order 22.10.2024 allowed the writ petition, and quashed the impugned order/notification by observing as follows:
"15. At this juncture, it is useful to refer to the decision of the Hon'ble Apex Court in the case of Hari Ram, wherein it is held as follows:
"37. Requirement of giving notice under sub- sections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word 'may' in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word 'may' has to be read as 'shall'.
xxx
39. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land.
xxx
42. The mere vesting of the 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 before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant
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NC: 2024:KHC:50245 WP No. 32187 of 2014 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 Section 3 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 3 of the Repeal Act."
(emphasis supplied)
16. In the present case, the original records that are produced does not contain the notice that is said to have been issued under Section 10(5) of the Act calling upon him to surrender possession within thirty days.
17. The original records also do not contain the notice or the proceedings initiated under Section 10(6) of the Act in order to take physical possession. The objections filed by the State as follows:
"3. ...... Thereafter, on 28.02.1995 a notice has been issued calling upon the Petitioner to put in possession of the land in question within 30 days. Subsequently, on 30.05.1996, possession has been taken from the Petitioner. Consequently, on 13.05.1996 mutations RTC also effected to that effect. ...."
18. As already extracted above, the notice dated 28.02.1995 was a communication addressed to the Deputy Commissioner, Bengaluru District by the Special Deputy Commissioner, Urban Land Ceiling, in which there is a reference made to the notice that has been issued under Section 10(5) of the Act.
19. However, as already observed above, the file does not contain the notice that has been issued under Section 10(5) of the Act. The State has also not filed a copy of this notice along with its counter.
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20. However, in the subsequent communication dated 08.11.1996, which is also extracted above, though there is a reference to Section 10(5) notice dated 02.03.1995, the same has not been produced. It is therefore clear that there is nothing on record to indicate that any notice was issued and served upon the declarant or his family members.
21. More importantly, the notice as required under Section 10(6) of the Act is neither found in the records nor is there any reference to such a notice or a proceeding initiated under Section 10(6) of the Act. It is clear that unless the physical possession of the property is taken, the Government would not get the benefit of the savings provision in the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and the declarant would be entitled to the benefit of repeal under Section 3 of the Repealing Act.
22. Since there is absolutely no documents produced indicating that the procedure prescribed under sub-sections (5) and (6) of Section 10 the Act had been complied with, as held by the Apex Court in Hari Ram (supra), the contention of the State that the possession was taken cannot be accepted.
23. The learned Government Pleader also argued that the order passed under Section 10(1) of the Act was of the year 1988 and the writ petition was filed in the year 2014 and the petition ought to be dismissed only on the ground of delay and laches.
24. It has to be stated here that, if the State Government itself has not taken further steps as required under Sections 10(5), 10(6) and 11 of the Act, it cannot put forward the plea of delay and laches.
25. The plea of delay and laches would come into play only when a litigant had the opportunity to challenge the order and had chosen not to take immediate steps in that regard. In the instant case,
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NC: 2024:KHC:50245 WP No. 32187 of 2014 since there is nothing on record to indicate that the possession was attempted to be taken or was taken as contemplated under Sections 10(5) and 10(6) of the Act, the question of delay and laches would not arise in such a situation.
26. It may also be kept in mind that the process of acquisition of land entails the lawful owner to lose the land and if the lawful owner has not been dispossessed in the manner known to law, it will have to be presumed that he continued to be in possession. If a person has remained in undisturbed possession, in a proceeding of this nature, the plea of delay and laches cannot be pressed into service by the State.
27. In my view, the impleading applicants have no right over the lands in question since their vendors acquired title from a person who himself did not possess the title, as the title stood vested with the State free from all encumbrances.
28. The argument that the possession of land was, in fact, taken as observed by the Assistant Commissioner in his order dated 17.04.2015 passed under Section 136(2) of the Karnataka Land Revenue Act, 1964 would not at all be available to the impleading applicants, firstly because they have no right over the lands in question and, secondly, because the Assistant Commissioner, while exercising powers under Section 136(2) of the Karnataka Land Revenue Act, does not have jurisdiction to record a finding that the possession was taken, and, that too, in the absence of the records of the Special Deputy Commissioner.
29. As already noted above, the records of the Special Deputy Commissioner which have been produced before this Court indicate that there is absolutely no evidence to establish that possession was taken after following the procedure prescribed under Sections 10(5) and 10(6) of the Act.
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30. Since possession has not been taken, Section 4 of the Urban Land (Ceiling and Regulation) Act, 1999 would come into operation and the proceedings would have to be declared to be abated.
31. Since possession of the land has not been taken, the savings Clause 3(1)(a) of the Urban Land (Ceiling and Regulation) Act, 1999 will not enure to the benefit of the State Government."
19. The coordinate Bench has also rejected the claim of the impleading applicant therein by observing as follows:
(para-27 to 31) "27. The impleading applicant, who claims to have an interest in the land, raised strenuous objections regarding the maintainability of the writ petition. It was sought to be contended that there is an inordinate delay and the petitioners had resorted to unfair means in getting their names entered in the mutation records by entering into a collusive compromise decree, which, by itself, indicated that they have had knowledge of taking over of the possession. (CHECK)
28. It has to be noticed here that the impleading applicants claim title from the allottees of a Housing Society. In the affidavit, it is admitted that one of the sons of the declarant--Dasappa viz., D.Ramachandraiah had executed a sale deed dated 04.08.1995 in favour of C.N.Sathyanarayana Sastry who was the Director of the Housing Society viz., Karmikara Vasathi Nirmana Sahakara Sanga Limited, and C.N.Sathyanarayana Sastry had transferred the land to the Housing Society which had formed a residential layout, wherein sites had been formed and had been allotted to the vendors of the applicants.
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29. As already noticed above, the land in question stood vested in the State free from all encumbrances on 27.03.1992, consequently, the question of there being a subsisting title with D.Ramachandraiah to sell it to C.N.Sathyanarayana Sastry would not at all rise. In other words, the applicants claim title to the property on the basis of a sale deed which had been executed after the land had stood vested with the State Government free from all encumbrances.
30. In my view, the impleading applicants have no right over the lands in question since their vendors acquired title from a person who himself did not possess the title, as the title stood vested with the State free from all encumbrances.
31. The argument that the possession of land was, in fact, taken as observed by the Assistant Commissioner in his order dated 17.04.2015 passed under Section 136(2) of the Karnataka Land Revenue Act, 1964 would not at all be available to the impleading applicants, firstly because they have no right over the lands in question and, secondly, because the Assistant Commissioner, while exercising powers under Section 136(2) of the Karnataka Land Revenue Act, does not have jurisdiction to record a finding that the possession was taken, and, that too, in the absence of the records of the Special Deputy Commissioner."
20. The Hon'ble Supreme Court in the case of Tukaram 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
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NC: 2024:KHC:50245 WP No. 32187 of 2014 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 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)
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NC: 2024:KHC:50245 WP No. 32187 of 2014 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."
21. 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 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."
22. 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
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NC: 2024:KHC:50245 WP No. 32187 of 2014 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.
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,
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NC: 2024:KHC:50245 WP No. 32187 of 2014 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, 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."
23. 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.
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NC: 2024:KHC:50245 WP No. 32187 of 2014 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 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."
24. In the instant case, though the third party was created by the government following the declaration of the subject land as excess land, the impleading applicant claimed to be in possession following the agreement of sale executed by the owners of land. It is settled law that the petitioner cannot be deprived of his valuable right over the immoveable property, which is only constitutional right, but also human right.
25. The impleading applicants claim that the petitioner fully knowing that the lands will be vested with the government under the provisions of the Act, 1976 entered into an agreement of sale with the Sangha in the year 1980 suppressing the fact that the lands were declared as excess vacant land. The Sangha formed sites in the excess vacant lands, and allotted to its members, and the impleading applicants claim to be purchasers of the plots from the members of the Sangha. Therefore, as rightly held by the coordinate Bench in WP No.51700/2014, the impleading applicants have no right and title over the lands in question, since their vendor acquired title from a person who himself did not possess the title,
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NC: 2024:KHC:50245 WP No. 32187 of 2014 as the title vested with the government free from all encumbrances. Having claimed rights through the petitioner, the impelading applicants cannot contend that the present petition is not maintainable, and their rights would get regularized upon disposal of excess land by the government in favour of the Sangha under Section 23(4) of the Act, 1976.
26. The State Government has not placed on record the documents for having taken physical possession of the excess vacant lands either under Section 10(5) or 10(6) of the Act, 1976. The record of rights right from 1982-83 to 2003-04 reflect the name of the petitioner as owner in possession of the subject land vide MR No.5/1982-83. Therefore, when lawful possession of the subject lands have not been taken, the impugned order declaring that Dasappa was holding excess vacant land including the subject land stands abated as stated under Section 4 of the repealing Act, 1999, and the petitioners are entitled for restoration of the excess land as stated under Section 3(2) of the Act, 1999.
27. In view of the preceding analysis, the possession of the subject lands having not been taken either under Section 10(5) or (6) of the Act, 1976 the entire proceedings initiated under the Act, 1976 culminating in issuance of the impugned notification/order stands abated. Accordingly, I pass the following ORDER
i) The petition is allowed.
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NC: 2024:KHC:50245 WP No. 32187 of 2014
ii) The impugned order dated 7.3.1988 and the impugned notification dated 30.5.1990 are hereby quashed.
iii) The provisions of Urban Land (Ceiling and Regulations) Act, 1976 are not applicable in respect of the lands bearing Sy.No.1/10, 1/11 and 1/12 totally measuring 1 acre 02 guntas situated at Channasandra Village, Uttarahalli Hobli, Bangalore South Taluk as the Act, 1976 has been repealed by the Act No.5 of 1999.
iv) The respondent No.3 is hereby directed to delete the name of the Government in RTC at Annexures - C, C1 to C8 and restore the name of the petitioner in Sy.No.1/10, 1/11 and 1/12 totally measuring 1 acre 02 guntas situated at Channasandra village, Uttarahalli Hobli, Bangalore South Taluk.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE BKM