Allowed

Shailaja W/O. Ramesh Javakar, v. the State of Karnataka

Karnataka HC7 Oct 2021WP/63992/2011

Case brief

AI extract

What is this about?

The High Court held that Belgaum Urban Development Authority abandoned acquisition proceedings for 15 guntas 12 annas of land after 31 years. The court quashed the relevant notifications and acquisition steps concerning this unacquired portion.

What did the court decide?

Quashed all acquisition proceedings and notifications regarding 15 guntas 12 annas of Sy.No.1388/2A.

Shailaja W/O. Ramesh Javakar, Vs the State of Karnataka — Land Acquisition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 7^TH DAY OF OCTOBER, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE S.R. KRISHNA KUMAR

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WRIT PETITION NO.63992/2011 (LA-UDA)

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BETWEEN

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SHAILAJA W/O RAMESH JAVAKAR, AGED ABOUT 60 YEARS.

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SRI AJAY S/O RAMESH JAVAKAR, AGED ABOUT 37 YEARS.

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SRI BALASAHEB, S/O RAMESH JAVAKAR, AGED ABOUT 38 YEARS.

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SRI APPASAHEB, S/O KRISHNAJI JAVAKAR, AGED ABOUT 39 YEARS

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ALL THE PETITIONERS ARE R/O: NO. 21, COURT STREET, CAMP: BELGAUM.

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...PETITIONERS

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(BY SRI GIRISH A.YADAWAD, ADVOCATE)

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AND

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THE STATE OF KARNATAKA, BY ITS SECRETARY TO REVENUE DEPARTMENT, VIKAS SOUDHA, BENGALURU.

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BELGAUM URBAN DEVELOPMENT AUTHORITY, BELGAUM, BY ITS COMMISSIONER.

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3. DEPUTY COMMISSIONER, BELGAUM.

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... RESPONDENTS

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(BY SRI V.S.KALASURMATH, HCGP FOR R1 & R3; SRI M.A.HULYAL, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE BELGAUM URBAN DEVELOPMENT AUTHORITY HAS ACQUIRED ONLY 22 GUNTAS OF LAND IS SY.NO.1388/2A OF BELGAUM CITY PURSUANT TO THE NOTIFICATION DATED 17/02/1989 ANNEXURE-K AND THEY HAVE NO RIGHT OR INTEREST IN RESPECT OF THE BALANCE LAND OF 15 GUNTAS 12 ANNAS; 2. DIRECT THE BELGAUM URBAN DEVELOPMENT AUTHORITY (BUDA) NOT TO DISPOSSESS THE PETITIONER IN RESPECT OF THE BALANCE PORTION OF THE LAND OF 15 GUNTAS 12 ANNAS OF THE LAND IN SY.NO.1388/2A OF BELGAUM CITY; 3. DECLARE THAT THE BELGAUM URBAN DEVELOPMENT AUTHORITY IS THE OWNER OF 18 GUNTAS OF LAND OUT OF 22 GUNTAS ACQUIRED BY THEM PURSUANT OF NOTIFICATION DATED 17/02/1989 PRODUCED AT ANNEXURE-K AND ETC.

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THIS PETITION COMING ON FOR DICTATING ORDERS THIS DAY, THE COURT, MADE THE FOLLOWING:

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ORDER

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In this petition, the petitioners have sought for

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the following reliefs.

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a. To declare that the Belgaum Urban Development Authority has acquired only 22 guntas of land is Sy.No.1388/2A of Belgaum City pursuant to the notification dated

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17/02/1989 Annexure-K and they have no right or interest in respect of the balance land of 15 guntas 12 annas;

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b. Direct the Belgaum Urban Development Authority (BUDA) not to dispossess the petitioner in respect of the balance portion of the land of 15 guntas 12 annas of the land in Sy.No.1388/2a of Belgaum city;

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c. Declare that the Belgaum Urban Development Authority is the owner of 18 guntas of land out of 22 guntas acquired by them pursuant of notification dated 17/02/1989 produced at Annexure-K.

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Heard learned counsel for the petitioners

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and learned counsel for respondent No.2 and learned HCGP for respondent Nos.1 and 3. Perused the material on record.

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In addition to reiterating the various

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contentions put forth in the memorandum of writ petition and referring to the documents produced by

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the petitioners, learned counsel for the petitioners submits that they were the owners of immovable property bearing R.S.No.1388/2A measuring 37 guntas and 12 annas out of which the respondent/BUDA has acquired only 22 guntas by passing an award dated 06.06.1990 pursuant to which they took possession of 22 guntas. It is contended that in respect of the remaining 15 guntas 12 annas, even after issuance of the final notification as long back as on 23.03.1989, the respondent has so far not proceeded to pass an award or complete the acquisition proceedings even till today and as such, acquisition proceedings pursuant to the aforesaid preliminary notification and final notification have been abandoned and the same has stood lapsed by virtue of Section 27 of the Karnataka Urban Development Authority Act and consequently the impugned acquisition proceedings in respect of 15 guntas 12 annas of land pursuant to the aforesaid notifications deserve to be quashed.

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Per contra , learned counsel for respondent, in addition to reiterating the various contentions urged in the statement of objections submits that the petitioner is guilty of suppression of material facts and the petition is not maintainable and is liable to be dismissed.

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Secondly, it is contended that the petitioner had filed a suit in O.S.No.697/1993 in respect of the entire extent of 37 guntas 12 annas was entitled in the suit was rejected consequent upon which the suit also came to be dismissed. It is also submitted that even the appeal preferred by the petitioner in R.A.No.149/2002 having been dismissed, RSA No.2370/2007 is pending before this Court. It is therefore contended that since the claim of the petitioner has been rejected by the Civil Court also, the present petition is not maintainable. Thirdly, it is contended that on account of interim orders in force in the said proceedings before the Civil Court, it was not possible for the respondent to pass an award

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within reasonable time and consequently it cannot be said that the respondent had abandoned the acquisition proceedings nor filed acquisition proceedings have stood lapsed as contended by the petitioner. It is therefore submitted that there is no merit in the petition and that the same is liable to be dismissed.

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I have given my anxious consideration to the rival submissions and perused the material on record.

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Before adverting to the rival contentions

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urged by both sides, it is necessary to state that a perusal of the material on record in particular the written statement filed by the respondent/BUDA in the suit as well as in their application under Order VII Rule 11 C.P.C. that it is their specific contention that the suit filed by the petitioner herein was not maintainable since it related to the acquired land in the aforesaid survey number and consequently the

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Civil Court did not have jurisdiction to entertain or adjudicate upon the said suit. Though the exact description and extent of the suit schedule property cannot be discerned or gathered from the plaint averments and that there are some discrepancies in this regard, in the light of the specific stance and assertion on the part of the respondent that the suit in respect of acquired land was not maintainable and the jurisdictional Civil Court was ousted in this regard, the only inference to be drawn from the material on record and specific stand put forth by the respondent/BUDA is that the suit schedule property comprised of in O.S.No.697/1993 was only an extent of 22 guntas and not the entire extent of 37 guntas 12 annas given the fact that the suit was filed in 1993 after the award was passed only in respect of 22 guntas on 06.06.1990 excluding the remaining 15

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guntas 12 annas, which is the subject matter of the present petition; in other words, since the suit was filed by the petitioner after the award was passed in

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respect of 22 acres only, which was the suit schedule property, the said suit would not have been opposed by the respondent/BUDA if the suit schedule property comprised of any extent in excess of 22 guntas. Further, it is relevant to state that the only reason for the respondent/BUDa to contest and oppose the suit was that according to the respondent, the suit schedule property measuring 22 guntas had already been acquired and the suit in respect of the acquired land was not maintainable as specifically contended by them not only in their written statement but also in the application under Order VII Rule 11 C.P.C.

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At this stage, it is necessary to state that aggrieved by the judgments and decrees passed by the trial Court and the first Appellate Court in O.S.No.697/1993 and R.A.No.149/2002, the petitioner herein preferred RSA No.2370/2007 which is also dismissed vide judgment and decree dated 07.10.2021. Under these circumstances, the findings recorded by the trial Court and the first Appellate

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Court that the suit schedule property involved in the suit was the acquired land measuring 22 guntas and not the excess land which is undisputedly unacquired has been confirmed by this Court. Even this circumstance points to the fact that the suit schedule property involved in the said suit was only an extent of 22 guntas which was acquired by respondent/BUDA and not the remaining extent of 15 guntas 12 annas.

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Insofar as contention by the respondent/BUDA with regard to suppression of material fact is concerned, the specific assertion on the part of the petitioner that earlier rounds of litigation were only in respect of the acquired land as held by various Courts including this Court and since the subject matter of the present petition is unacquired land measuring 15 guntas 12 annas, the contentions of the petitioner that there is no suppression of material facts deserves to be accepted.

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Insofar as contention of the learned

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counsel for the respondent/BUDA that the interim order passed in the earlier round of litigation before the Civil Court and right up to this Court prevented the respondent/BUDA from passing an award in respect of said 15 guntas 12 annas is concerned, in view of the findings recorded above the suit schedule property involved in the proceedings before the Civil Court which culminated in RSA No.2370/2007 was only in respect of 22 guntas of acquired land and not the remaining 15 guntas 12 annas of unacquired land, the question of any interim order passed in the said proceedings either by the Civil Court or by this Court coming in the way of or acting as an impediment for the respondent/BUDA to pass an award does not arise and the said contention cannot be accepted.

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Insofar as contention of the learned

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counsel for the respondent/BUDA that since the said 15 guntas 12 annas of land which is the subject matter of the present petition was in the occupation

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of the Department of Information and Broadcasting due to which the respondent/BUDA could not pass an award in respect of the said land is concerned, in the light of the scheme of the Land Acquisition Act, 1894 (for short, ‘the L.A.Act’) which postulates that possession of the land has to be necessarily taken under Section 16 of the said L.A. Act only after passing of an award, mere possession of third parties on the said land cannot be construed or treated as an impediment or obstacle for the respondent/BUDA to pass an award and consequently even this contention of the respondent/BUDA cannot be accepted.

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In view of aforesaid facts and circumstances, I am of the considered opinion that the complete and total inaction on the part of the respondent/BUDA to complete the acquisition proceedings in respect of the subject land measuring 15 guntas 12 annas even after long lapse of 31 years, at least 21 years till the date the present petition was

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filed is a clear indicator of the fact that the

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respondent/BUDA has abandoned the acquisition proceedings and the same stood lapsed insofar as subject land is concerned

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In the result, I pass the following:

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ORDER

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i. Petition is allowed .

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ii. The impugned notifications including the notification dated 23.03.1989 issued under Section 19(1) of the Karnataka Urban Development Authorities Act, 1987 and all acquisition proceedings pursuant thereto in relation to the subject land of the petitioner measuring 15 guntas 12 annas in R.S.No.1388/2A of Belagavi are hereby quashed.

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SD/JUDGE

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CLK

Shailaja W/O. Ramesh Javakar, v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Shailaja W/O. Ramesh Javakar, v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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