Karnataka High Court
Shri Mallikarjun vs The State Of Karnataka on 25 April, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 102639 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 102639 OF 2023 (KLR-RES)
BETWEEN:
SHRI. MALLIKARJUN,
S/O. LATE SHANKAR NIRALAGI,
AGE: 57 YEARS, OCC: SERVICE,
R/O: PRESENTLY RESIDING AT H.NO.214/F,
KALPAVRUKSH SATERI NAGAR,
CANCA VERLA, PARRA BARDEZ,
NORTH GOA, GOA-403510, STATE: GOA.
...PETITIONER
(BY SRI. PRUTHVI K. S.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
RPTD. BY ITS SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
M.S.BUILDING, DR. AMBEDKAR VEEDHI,
BENGALURU-560001.
2. DEPUTY COMMISSIONER
BELAGAVI-590001, TQ AND DIST: BELAGAVI.
Digitally signed
by
MOHANKUMAR
B SHELAR
MOHANKUMAR
B SHELAR
Location:
DHARWAD
3. THE TAHASILDAR
Date:
2023.04.28
11:44:41 -0700 BELAGAVI-590001, TQ AND DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. V.S. KALASURMATH, HCGP FOR RESPONDENTS)
THIS WRIT PETITION IS FILED PRAYING TO DECLARE THAT
THE ENTIRE PROCEEDINGS INITIATED BY THAN SPECIAL DEPUTY
COMMISSIONER AND COMPETENT AUTHORITY, URBAN
AGGLOMERATION,, BELAGAVI DECLARING THAT THE PETITION IS
HOLDING THE EXCESS VACANT LAND BEARING R.S.NO. 1383, PLOT
NO. 1,2,3 MEASURING TO AN EXTENT OF 8 GUNTAS 5 ANNAS 9
PAISE AND LAND BRG R.S.NO. 1383, PLOT NO. 13 MEASURING TO
AN EXTENT OF 3 GUNTAS 9 ANNAS 3 PAISE SITUATED AT
VISHWESHWRAIAH NAGAR, BELAGAVI TQ AND DIST: BELAGAVI
STANDS ABATED AND ETC.,
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WP No. 102639 of 2023
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, who is the owner of the properties bearing R.S. No.1383. Plot Nos.1, 2, 3 and Plot No.13 of Anagol village of Belagavi taluka has approached this Court with a prayer to declare the proceedings initiated by Special Deputy Commissioner and competent authority, Belagavi, declaring that the petitioner who was holding an extent of 8 guntas 5 annas 9 paise and 3 guntas 9 annas 3 paise of land as excess vacant lands, stand abated and for a direction to delete the name of the Government in the aforesaid three items of lands and restore the name of the petitioner herein in the owner's column of the revenue records of the said lands.
2. The learned counsel appearing for the petitioner in this writ petition submits that the Urban Land (Ceiling & Regulation) Repealing Act (for short, 'the ULC Act') has come into force in the year 1999, and having regard to Section 4 of the said Act, since the possession of the properties in question was not taken over by the competent authority, the entire proceedings including the order impugned herein stands abated.
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3. In support , reliance is placed on the order passed by the coordinate bench of this Court in W.P. No.63674/2011 disposed of on 2nd November 2011, and also the order of this Court in W.P. No.61621/2009 disposed of on 4th September 2019.
4. Learned Additional Government Advocate opposing the petition submits that the Revenue Inspector has taken possession of the properties in question and therefore, it cannot be said that the proceedings stands abated in view of Section 4 of the Repealing Act. He submits that since the entire proceedings was completed much earlier to the Repealing Act coming into force, the provisions of Section 4 of the Repealing Act is not applicable to the facts of the case.
5. In the case on hand, though the impugned order has been passed in the year 1985 itself, the State has failed to establish that the possession of lands, which are the subject matter of the impugned order, have been taken strictly in accordance with Section 10(6) of the Act. Admittedly, the possession has been taken by the Revenue Inspector who is -4- WP No. 102639 of 2023 not the competent authority under Section 10(6) of the ULC Act. This Court in W.P. No.63674/2011, in identical circumstances, has observed as follows:
"9. ...................As far as State of Karnataka is concerned, the competent authority is the Special Deputy Commissioner who is authorized to perform the functions under the Act including taking possession under sub-Section 6 of Section 10 of the Act. However, the possession when taken under sub- Section 6 by the competent authority or delivered by the owner or person interested under sub Section 5, then it has to be handed over to a person who is duly authorized by the State Government. Therefore, the authorization of the State Government by any person to take possession under the said proceedings is a mandatory requirements. The said authorization can be general authorization which would be effective in all cases or they could be specific authorization on a case to case basis. Therefore, in the absence of there being any due authorization to any officer by the State Government, possession taken would not be in accordance with law since it is only a duly 7 authorised person of the State Government who can receive possession under Section 10.
10. In this context, it would be relevant to refer to a decision of the Division Bench of this Court in the case of Mangalore Urban Development Authority, Mangalore V/s Leelavathi and Others reported in (2009 2 KLJ 284), wherein it has been stated that the Revenue Inspector is not the authorized person competent authority under Section 10(6) to take possession of the land. In the instant case also, it is seen that it is the I-Grade Revenue Inspector who has taken possession of the land in question. There is no provision for the competent authority to delegate the power under sub-Section 6 of Section 10 to any other officer or official for the purpose of taking possession. It is only the -5- WP No. 102639 of 2023 competent authority, which can take possession under sub-section 6 of Section 10 of the ULC Act. The said decision squarely applies to the present case since in the instant case, it is the I-Grade Revenue Inspector and not the competent authority who has taken possession of the land in question. Therefore, Annexure-D is contrary to what is envisaged under Section 10."
6. Following the said judgment passed by a co- ordinate bench of this Court in W.P. No.63674/2011, a similar view was taken in W.P. No.61621/2009.
7. The Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Hari Ram reported in (2013) 4 SCC 280 at para 42 held as follows:
"42. The mere vesting of the land under subsection (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 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 4 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 4 of the Repeal Act.-6- WP No. 102639 of 2023
8. In the case of VAIJAYANTI VS. THE STATE OF KARNATAKA REPRESENTS BY ITS SECRETARY URBAN DEVELOPMENT DEPARTMENT AND ANOTHER (ILR 2014 KAR 4648), the Division of this Court at paras-8 and 9 has held as follows:
"8. In our opinion, that observation applies on all its fours to the facts of this case. The competent authority had no jurisdiction to declare agricultural land in question as urban land or excess vacant land since it did not fall within the said definition under Section 2(O) of the ULCAR Act. The competent authority having not examined his jurisdiction to entertain the declaration and pass orders thereon, the order of the competent authority declaring the land in question as excess vacant land suffers from lack of jurisdiction, hence void ab initio.
9. In Mallaiah's case, the co-ordinate Division Bench further observed that the "Learned Single Judge was not justified in dismissing the writ petition on the ground of delay and latches more appropriately when the competent authority had passed an order without jurisdiction. In the facts of this case, though there is a delay of 18 years in filing the writ petition calling in question the order of the competent authority, nevertheless since the order is without jurisdiction is -7- WP No. 102639 of 2023 non est hence the question of delay and latches does not arise. In our opinion, the Learned Single Judge was not justified in dismissing the writ petition on the ground of delay and latches."
9. The Hon'ble Supreme Court in the case of TUKARAM KANA JOSHI AND OTHERS THROUGH POWER-
OF-ATTORNEY HOLDER -VS- MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION AND OTHERS (2013) 1 SCC 353 at para 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 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 -8- WP No. 102639 of 2023 : 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) 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."-9- WP No. 102639 of 2023
10. The Hon'ble Supreme Court in the case of STATE OF UTTAR PRADESH -VS- HARI RAM [(2013) 4 SCC 280] at para-42 held as follows:
"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. The State has to establish that there has been a voluntary surrender of vacant 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 landowner or holder can claim the benefit of Section 4 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 4 of the Repeal Act."
11. The Division Bench of this Court in the case of MANGALORE DEVELOPMENT AUTHORITY -VS-
LEELAVATHI AND OTHERS (ILR 2008 KAR 5059) at para-9 has held as follows:
"9. Assuming that the Revenue Inspector took possession of the land, no document is produced to show that he was the competent authority under Section 10(6) of ULC Act to take possession of the land which is declared as surplus urban land under Section 10(3) of the Act. The language used therein is "the competent Authority may take possession of the vacant land or cause it to be
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given to the State Government or to any person duly authorized by such State Government in this behalf........." There is no document in the original file of the State Government to show that possession of the land was taken by the competent Authority and given to the State Government. Even if the alleged mahazar is construed as the document regarding taking possession of the land in question, possession was not given to the Government but was given to Urban Development Authority. Viewed from any angle, it cannot be said that possession of the land was taken by competent authority from the owner of the land in question and given to the Government. Therefore, the question of vesting of the surplus urban land with the Government did not arise at all. In the circumstances, Section 3(1) of Repeal Act will not apply to the land in question."
12. The Hon'ble Supreme Court in the case of GAJANAN KAMLYA PATIL VS. ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY reported in AIR-(SCW) 2014 - 1359 at para 9 as held as follows:
"We have, therefore, clearly indicated that it was always open to the authorities to take forcible possession and, in fact, in the notice issued under Section 10(5) of the ULC Act, it was stated that if the possession had not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed: Respondents have no case that such procedures were followed and forcible possession was taken. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure
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possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act Since there is nothing to show that de facts possession had been taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed".
13. In the instant case, the possession is alleged to have been taken by the Revenue Inspector who is not the Competent Authority as specified under Section 10(6) of the Act, 1976 to take possession of land which has been declared as excess land under Section 10(3) of the Act, 1976. The possession of the subject land having been taken by the Revenue Inspector who has no Authority, the same is non-est in the eye of law as held by the Division Bench of this Court in the case of Mangalore Urban Development Authority supra.
14. The lawful possession of the subject land having not been taken as specified under Section 10(5) or Section 10(6) of the Act, 1976, the petitioner is entitled for restoration of the subject land as specified under Section 3(2)(a) and Section 4 of
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WP No. 102639 of 2023the Repealing Act, 1999, since de jure possession of the subject land was taken and not de facto possession as held by the Hon'ble Supreme Court in the case of Gajanan Kamlya Patil (supra).
15. The State is under an obligation to follow due process of law for taking possession of immovable properties of its citizens . The State cannot deprive the right over immovable property by taking unlawful possession and continue to be in unlawful possession stating that the writ petition is hit by delay and laches when the State Government is a welfare state and governed by rule of law The petitioner cannot be deprived of his valuable rights over the immoveable property when there is violation of his substantial legal rights. Further, Article 300A of the Constitution of India specifies that no person will be deprived of his property save by authority of law. No third party right has been created in favor of any person and the State Government cannot enrich itself by claiming to be in possession which is unlawful and the said unlawful possession does not bestow any right to the State Government. Hence, the submission of the learned High Court Government Pleader that the writ petition is hit by delay and laches is not acceptable,
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WP No. 102639 of 2023and delay if any filing this writ petition deserves to be condoned.
16. In view of the dictum of the Hon'ble Supreme Court in the aforesaid cases, it is held that the then competent Authority has not taken possession of the subject land as specified under sub-Section 5 or 6 of Section 10 of the ULC Act, 1976 and it is also held that the State of Karnataka does not have defacto possession of the subject property and the petitioner is entitled for the benefit of Section 4 of the Repealing Act.
17. Under the circumstances, I am of the considered view that the State has failed to establish that the possession of the properties in question, which is the subject matter of the order impugned, has been taken in compliance of requirement of Section 10(6) of the Act and therefore, having regard to Section 4 of the Repealing Act, the entire proceedings in No.ULC/D/SR-101 dated 21.05.1991 and No.RD/ULC/2/KABAJA/CR-10/9/91-92 dated 08.08.1991 initiated by respondent Nos.2 and 3 with regard to the lands in question under the ULC Act stands abated and consequently
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WP No. 102639 of 2023the entries made in the name of the Government in the revenue records of the land in question is directed to be deleted and the name of the petitioner who is the absolute owner of the property shall be restored. Accordingly, I pass the following:
ORDER
i) Writ petition is disposed of.
ii) It is declared that the entire proceeding initiated by the Deputy Commissioner declaring that the government is holding excess land to an extent of 8 guntas 5 annas 9 paise in R.S.No.1383, Plot Nos.1, 2, 3 and 3 gunta 9 annas 3 paise in R.S.No.1383, Plot No.13 situated at Vishweshwaraiah Nagar, Belagavi, Tq. & Dist. Belagavi stands abated.
iii) The respondents No.2 and 3 are hereby directed to delete the name of the government in the record of rights in respect of the subject land, and restore the name of the petitioner i.e. Sri Mallikarjun s/o late Shankar Niralagi in the owner's and possession column within six weeks from the date of receipt of certified copy of this order.
Sd/-
JUDGE MBS List No.: 1 Sl No.: 7