Indian Kanoon - Search engine for Indian Law

3. Writ Appeal No. 1297 of 2001 is filed by J.S.S. Mahavidyapeetha (respondent 28 in W.P. No. 14726 of 1994) against the common order dated 22-2-2001 passed in W.P. No. 14726 of 1994 connected with W.P. No. 31449 of 1994 filed by the petitioner-KB. Ramachandra Raje Urs, wherein the writ petitions were partly allowed without disturbing the notification and award, but respondent 28-appellant herein was ordered to hand over the property granted to it under Annexure-H notwithstanding improvements made upon the land in question within 60 days to Mysore Urban Development Authority ('MUDA' for short). The MUDA was further directed to take steps to evict the unauthorised occupants. The appellant prays to set aside the order dated 22-2-2001. This writ appeal was admitted on 13-3-2001 and it was directed to maintain status quo as to the possession of the land under dispute pending further orders.

4. Writ Appeal Nos. 1682 and 1683 of 2001 are filed by the MUDA against the order dated 22-2-2001 passed in W.P. Nos. 14726 and 31449 of 1994 filed by KB. Ramachandra Raje Urs. It is stated that the appellant-MUDA issued preliminary notification under Section 16(1) of the City of Mysore Improvement Act, 1903 proposing to acquire 94 acres 28 guntas of land in Sy. No. 1 of Vijayashreepura Village, Mysore Taluk for the purpose of improvement of Mysore City. Respondent 1 received the notice under Section 16(2) of the Act and filed objections to the effect that the acquisition would cause economic hardship to him and that he had no objection provided 20 acres of land out of total extent of 94 acres 28 guntas was deleted from acquisition. Final notification was issued under Section 18(1) of the Act on 29-4-1988 and 55 acres of land was allotted to respondent 3 vide Government Order dated 28-5-1988. Cost of acquisition was deposited, possession was taken and after getting building plan sanctioned, two buildings were constructed in the year 1994 itself. It is stated that respondent 1 had challenged the acquisition after six years. Interim order was passed on 13-9-1994 by the learned Single Judge. Challenging the same, respondent 1 filed W-A. No. 2278 of 1994, which was dismissed on 22-9-1994 at the admission stage without notice to respondent 3. However, the writ petition was resisted by respondent 3 on several grounds. The learned Single Judge allowed the writ petition on 22-2-2001 quashing the allotment order and directing respondent 3 to hand over the possession of the land in question to this appellant within 60 days as stated above. The same is challenged.

11. Sri B.V. Acharya, learned Senior Counsel appearing for Smt. M.P. Geetha Devi for the appellant in W.A. No. 1668 of 2001 has challenged the acquisition and the allotment of land to respondent 28-Institution. It is stated that the City of Mysore Improvement Act, 1903 was repealed and superseded by the Karnataka Urban Development Authorities Act, 1987 and the MUDA Act on 1-1-1989. It is submitted that there is no power to invoke the provisions under the City of Mysore Improvement Act, 1903 and therefore the notification is bad in law and without jurisdiction. It is also stated that the Urban Development Authority has given a power only to formulate a scheme and provide land to such persons and therefore the issuance of notification is without jurisdiction and the learned Single Judge has rightly interfered considering it to be a colourable exercise. It is also submitted that long prior to the issuance of final notification, respondent 28 made a request to the Government/MUDA to allot the land. The allotment of 55 acres of land out of 94 acres 28 guntas of land by the Government Order (Annexure-H) dated 28-5-1988 is bad and is liable to be set aside. He also submits that there is no question of delay. Once fraud has been played and learned Single Judge has exercised discretion and delay is condoned, the argument of the learned Counsel for respondent 28 and the other side will not be helpful and on this ground no interference is called for. The judgment whereby acquisition has been upheld will not be binding, as it does not take away the right of the rightful owner. However, he has challenged the order to the extent that once the Court has come to the conclusion as stated, notification has been set aside with a direction to give the land to MUDA is bad and actually it should have been given to the landowner and to this extent the order is liable to be set aside.

30. The adverse inference drawn by the learned Single Judge for not producing the records pertaining to the sanction of the scheme by the learned Government Advocate, is not correct. The mere fact that the Executive Engineer in the estimate has signed on 11-4-1988 and the estimate is as per the P.W.D. rate of 1987-88 cannot be held to be a fraud, as plan is sent for approval after notification under Section 16(1) and the sanction by Government has not even been challenged. The colourable exercise of power does not arise, as stated, when in the objections itself there was no averment that the Government has exercised its power fraudulently as stated. The reasoning of the learned Single Judge that there is no scope for bulk allotment of 55 acres of land in favour of respondent 28 is also erroneous and cannot be sustained as it is clear that the very acquisition itself was started by preparing a scheme wherein it was intended to allot 55 acres to respondent 28 and as stated earlier this Court has already held that allotment of land to respondent 28 is for a public purpose, and therefore, the learned Single Judge could not have held in the absence of any provision prohibiting bulk allotment under the Improvement Board Act and merely by relying upon the provisions of the BDA Act that no allotment could be made to respondent 28. Therefore, the reasoning assigned by the petitioner and accepted by the learned Single Judge for holding that there is fraud or colourable exercise of power in the acquisition proceedings is not correct, and therefore, it is void ab initio, cannot be sustained and the same is liable to be set aside. Considering the settled legal position and in the facts of the given case as discussed above, we are of the considered opinion that the order passed by the learned Single Judge allowing W.P. No. 14726 of 1994 is liable to be set aside. Accordingly, W.A. Nos. 1682 and 1683 of 2001 filed by MUDA are allowed. In view of the above decision in the writ appeals and the finding, it is unnecessary to consider the contention, raised in W.A. No. 1668 of 2001, that instead of the MUDA, the possession should be given to the owner as we have upheld the acquisition and the appeal is disposed of accordingly.