Karnataka High Court
Smt.Ruby Hans vs The State Of Karnataka on 25 January, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 13752 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 13752 OF 2020 (ULC-)
BETWEEN:
SMT. RUBY HANS
D/O BETHRAL HANS,
W/O RAMACHANDRA RAO,
AGED ABOUT 64 YEARS,
HOUSE NO.6-52/9,
J.B.LOBO,
1ST CROSS ROAD, KODICAL,
MANGALORE - 575013
...PETITIONER
(BY SRI. ANANDARAMA K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REVENUE DEPARTMENT
M.S.BUILDING,
DR.B.R.AMBEDKAR VEEDHI,
BENGALURU 560001
Digitally signed
by POORNIMA REPRESENTED BY
SHIVANNA PRINCIPAL SECRETARY TO GOVERNMENT
Location: HIGH
COURT OF 2. THE URBAN DEVELOPMENT DEPARTMENT
KARNATAKA GOVERNMENT OF KARNATAKA,
VIKASA SOUDHA,
DR.AMBEDKAR VEEDHI,
BANGALORE 560001,
REPRESENTED BY
PRINCIPAL SECRETARY TO GOVERNMENT
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WP No. 13752 of 2020
3. THE DEPUTY COMMISSIONER AND
COMPETENT AUTHORITY
UNDER URBAN LAND (CEILING AND REGULATION)
ACT 1976
MANGALORE,
D.K.DISTRICT 575001.
4. THE THASHILDAR
MANGALORE TALUK,
TALUKA OFFICE,
MANGALORE, D.K. 575001.
...RESPONDENTS
(BY SRI. G.M. CHANDRASHEKAR, AGA FOR R1 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RCORDS IN
RRT (2) CR.NO.2309/2018-19 ON THE FILE OF THE TAHASHILDAR,
MANGALORE TALUK, RESPONDENT NO.4 HEREIN; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a. Call for records in RRT (2) CR.No.2309/2018-19 on the file of the Tahashildar, Mangalor Taluk, Respondent No.4 herein;
b. Issue a writ of certiorari or any other writ or order quashing the Endorsement No.RRT (2) CR 2309/2018- 19 dated 31.12.2018 (Annexure-R) issued by the Tahashildar, Mangalore Taluk, Respondent No.4 herein, in the interest of justice;-3- WP No. 13752 of 2020
c. Issue writ of Mandamus or any other writ or order, directing the Tahashildar, Mangalor Taluk, Respondent No.4 herein to restore the entry to the extent of 4 ½ cents in Sy.No.288-1F (sub divided and assigned Sy.No.288-1FP2) of Padava Village, Mangalore Taluk in the name of the Petitioner by reconsidering the Application in RRT(2) CR 2309/2018-19 in the interest of justice;
d. Issue a Writ of certiorari or any other writ or order quashing the Communication No. ULC SR:107:76-77 dated 01.02.1997 (Annexure S) issued by Respondent No.3, in the interest of justice;
e. Hold that the proceedings initiated under the Urban Land (Ceiling and Regulation) Act 176 in ULC CR:107:76-77 in respect of Sy.No.288-1F of Padavu Village, Mangalore Taluk, stood abated in view of the Repeal of the Urban Land (Ceiling and Regulation) Act 1976 vide Urban Land (Ceiling and Regulation) Repeal Act 1999 in the interest of justice;
f. Grant costs of the proceedings;
g. Grant such other relief(s) as this Hon'ble Court deems fit in the facts and circumstances of the case.
2. The petitioner claims to be the owner and in actual physical possession of the immovable property at 79, Padavu village, Mangalore taluk, comprised in Sy.No.288-F, measuring 15 cents. It is the claim of the petitioner that out of the larger extent of 3 acres 25 cents in Sy.No.288/1, which belonged to one -4- WP No. 13752 of 2020 S.Sadashiva Rao Kudmul, the same came to be purchased by Smt.Sharada, w/o Ganesh Bhat under a registered sale deed dated 19.1.1970, who in turn sold 15 cents under a sale deed dated 2.05.1984 to the petitioner. The sale deed is registered as Document No.162/1984-85.
3. The petitioner thereafter having been in possession, occupation and enjoyment of the property came to know subsequently in the year 2018 that government's name has been entered in respect of 4½ cents and the extent of property standing in the name of the petitioner has been reduced to 9½ cents.
4. It is in pursuance thereof the petitioner made necessary enquiry and thereafter came to know that certain proceedings have been initiated under the Urban Land (Ceiling and Regulation) Act, 1976 ['ULC Act' for short] whereunder the appropriate authority had come to a conclusion that one Ganesh Bhat was -5- WP No. 13752 of 2020 holding excess land and as such, after following the procedure under Section 8, 9 had issued notification under Section 10(1) of ULC Act followed by notification under Section 10(3) of the said Act.
5. When the petitioner sought for issuance of property card, the petitioner was asked to produce copy of the RTC. It is only when the RTC was secured that the petitioner came to know the above facts and when a request was made to correct the said entry, the Tahsildar issued the impugned endorsement stating that the land is vested with the State under the ULC Act. It is in that background that the petitioner is before this Court seeking for the aforesaid reliefs.
6. Sri.Anandarama.K, learned counsel for the petitioner would submit that apart from the entire proceedings being violative of principles of natural justice inasmuch as the proceedings have been initiated against one Ganesh Bhat who had no interest in the -6- WP No. 13752 of 2020 property inasmuch as the property was standing in the name of Sharada Bhat, w/o Ganesh Bhat, who had sold the property in the year 1984, as such the said Ganesh Bhat not having any right, title or interest, notices having been issued to a wrong person, the aggrieved person has not been issued with notices, there is violation of principles of natural justice.
7. Apart therefrom he submits that the entire proceedings of the State have come to an end with the issuance of 10(3) notification, there is no action taken under Section 10(4) and 10(5) of the ULC Act and therefore, he submits that without such action having not been taken, possession cannot be said to have been taken by the first respondent.
8. Mere vesting of the land would not amount to the State taking physical possession of the land. In this regard, he relies upon the decision of the Hon'ble -7- WP No. 13752 of 2020 Apex Court in State of Uttar Pradesh -v- Hari Ram1 more appropriately paragraphs 37, 41 and 42 which are extracted hereunder for easy reference:
"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'.
41. Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on sub-section (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.
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 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."
1 (2013) 4 SCC 280 -8- WP No. 13752 of 2020
9. By relying on the above, he submits that unless and until notice is issued to a person in possession under Section 10(5) of the ULC Act and the said person is given an opportunity of hearing and thereafter unless there is a voluntary surrender by the said person, the State Government would have to take action to take possession of the land. These aspects not having been complied with, the repeal of the ULC Act would come to the rescue of the petitioner, thereby setting at naught the entire procedure followed by the State until Section 10(3) of the ULC Act and it is required for a declaration to be issued that the land of the petitioner is not subject to the ULC Act.
10. Learned AGA would however submit that necessary procedure under Section 4, 5, 6, 7, 8, 9, 10(1), 10(2) and 10(3) of the ULC Act have been followed by the State, necessary notices have been issued to the person concerned and in view of the same, entries have been made, possession has been taken -9- WP No. 13752 of 2020 over, on account of no objection being made by the said Ganesh Bhat and the land being vested and in possession of the State, the State has allotted the said land to the Mangalore Corporation. It is in that basis the petition is liable to be dismissed.
11. He further submits that the transfer of land by Smt.Sharada Bhat even if accepted, it has happened after coming into force of the of the ULC Act, therefore subsection (3) of Section 5 of the ULC Act any transaction is null and void and nonest and it is in that background that the rights of the petitioner cannot be considered.
12. Heard Sri.Anandarama.K, learned counsel for the petitioner and Sri.G.M.Chandrashekar, AGA for Respondents. Perused papers
13. The short question that would arise for determination by this Court is, whether without completing the procedure under Section 10(5) of the ULC Act, the State can subsequent to the repeal of the ULC Act
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WP No. 13752 of 2020claim to be vested with the said land which was allegedly in excess of the ceiling prescribed under the ULC Act ?
14. In the present case, it is not in dispute that the land is within the Urban City Limit of Manglaore City. The applicability of the ULC Act not being in dispute, the State had initiated proceedings way back in the year 1975 under Section 4 of the ULC Act to determine the land to be in excess and thereafter followed up the procedure under Section 5, 6, 7, 8 and 9 and issued notification under Section (1) of Section 10 of the ULC Act. Subsequently, notification under Subsection (3) of Section 10 was also issued whereby declaring that the land stood vested with the state, but the fact remains that no proceedings under Section 10(4) and 10(5) have been resorted to by the State and no such documents have been produced before this Court.
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WP No. 13752 of 2020
15. A registered sale deed having been executed in favour of the petitioner, it was but required for the State to have issued notice to the person who is stated to be purchaser thereof, more so when necessary entries in the RTC had been made pursuant to the sale deed and thereafter the State itself through Deputy Commissioner who by exercise of powers under Section 95 of the Karnataka Land Revenue Act converted the land from agricultural to non-agricultural purposes and khatha of the property stood in the name of the petitioner. When all such revenue documents and title documents stood in the name of the petitioner, if not initially, at least, at the stage of taking possession under Subsection (5) of Section 10 of the ULC Act, there ought to have been a notice issued to the petitioner. This not having been done and no notice is placed on record issued either to Ganesh Bhat or Sharada Bhat, I am of the considered opinion that the procedure required under
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WP No. 13752 of 2020subsection (5) of Section 10 of the ULC Act has not been complied with by the State.
16. In the above background, when the proceedings under ULC Act for vesting of land has not been completed by taking defacto possession of the land, the dejure possession on the basis of the deemed vesting would not come to the rescue of the State.
17. Upon the repealing of the of the ULC Act, all pending matters stood abated. This repeal would, in my considered opinion, come to the rescue of the petitioner requiring the petition to be allowed.
18. The last contention of learned AGA is that after taking over possession, the land has been allotted to the Mangalore Corporation. There is no document which has been produced to establish that possession was, in fact, handed over to the Mangalore Corporation and or Mangalore Corporation has utilized the land for any purpose. Hence, the
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WP No. 13752 of 2020submission of learned AGA in this regard is required to be rejected.
19. As such, I pass the following:
ORDER i. A certiorari is issued quashing the proceedings and the endorsement No.RRT (2) CR 2309/2018-19 dated 31.12.2018 at Annexure-R issued by respondent No.4-Tahsildar;
ii. A certiorari is issued quashing the Communication No.ULC SR:107:76-77 dated 1.02.1997 at Annexure-S issued by respondent No.3 insofar as the petitioner is concerned;
iii. It is declared that under the Urban Land (Ceiling and Regulation) Act, 1976, the proceeding initiated in ULC CR:107:76-77 in respect of Sy.No.288/1F of Paduvu village, Mangalore taluk, measuring 15 cents has stood
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WP No. 13752 of 2020abated pursuant to the repeal of the ULC Act vide Urban Land Ceiling (Repeal) Act, 1999.
iv. A mandamus is issued directing the 4th
respondent to restore the name of the
petitioner in respect of 4½ cents in
Sy.No.288/1F of Paduvu village, Mangalore
taluk which has stood mutated in the name of the State Government.
Sd/-
JUDGE LN List No.: 1 Sl No.: 109