Dismissed

Lakshmamma v. the Mysore Urban Development Authority

Karnataka HC4 Jul 2022WP/10852/2010

Case brief

AI extract

What is this about?

In a Writ Petition under Articles 226 and 227 of the Constitution, the petitioner challenged the land acquisition proceedings on the ground of scheme lapsing under Section 27 of the Karnataka Urban Development Authorities Act. The single judge dismissed the petition by holding that prior judgments had already rejected similar claims for the same survey number, rendering the present issue non-maint

What did the court decide?

The writ petition seeking declaration of lapse of acquisition proceedings and direction for cessation of coercive steps is dismissed.

Lakshmamma Vs the Mysore Urban Development Authority — Land Acquisition | Karnataka HC (2022)

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WP No. 10852 of 2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 04TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 10852 OF 2010 (LA-UDA)

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BETWEEN:

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LAKSHMAMMA, W/O.PUTTASWAMACHARI, AGED 55 YEARS

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SOMASUNDARA MURTHY S/O.PUTTASWAMACHARI, AGED 42 YEARS,

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CHELUVARAJU S/O.PUTTASWAMACHARI, AGED 36 YEARS,

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SANNACHARI S/O.NARAYANACHARI, AGED 55 YEARS,

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RAJASHEKAR S/O.NARAYANACHARI, AGED 45 YEARS,

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Digitally signed by POORNIMA SHIVANNA Location: HIGH COURT OF KARNATAKA

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ALL ARE RESIDING AT HINKAL VILLAGE AND POST, MYSORE.

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…PETITIONERS

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(BY SRI. T A KARUMBAIAH .,ADVOCATE)

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AND:

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THE MYSORE URBAN DEVELOPMENT AUTHORITY, JHANSI LAKSHMI BAI ROAD, MYSORE-1. BY ITS COMMISSIONER.

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WP No. 10852 of 2010

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THE SPECIAL LAND ACQUISITION OFFICER JHANSI LAKSHMI BAI ROAD, MYSORE-1.

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THE STATE OF KARNATAKA REVENUE DEPARTMENT, M.S. BUILDING, DR. B.R. AMBEDKAR ROAD, BANGALORE. BY ITS SECRETARY

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…RESPONDENTS

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(BY SRI.S.V.DESAI, ADVOCATE FOR R1 & R2; SRI.B.V.KRISHNA, AGA FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE ACQUISITION PROCEEDINGS INITIATED BY THE RESPONDENTS PURSUANT TO ANNEXURE-D THE PRELIMINARY NOTIFICATION DATED 23.12.1991 GAZETTED ON 2.1.1992 AND ANNEXURE-E THE FINAL NOTIFICATION DATED 10.12.1992 GAZETTED ON 31.12.1992 ARE LAPSED IN SO FAR AS IT RELATES TO THE PETITIONERS LAND IS CONCERNED BECAUSE THE RESPONDENTS HAVE NOT IMPLEMENTED THE SCHEME AS PER SECTION 27 OF THE KARNATAKA URBAN DEVELOPMENT AUTHORITIES ACT AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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1. The petitioners are before this court seeking for the

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following reliefs:

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"(i) Declare that the acquisition proceedings initiated by the respondents pursuant to Annexure-D the preliminary notification dated 23.12.1991 gazetted on 2.1.1992 bearing No.PLA 2/91-92 and Annexure-E the final notification dated 10.12.1992 gazetted on 31.12.92 NO.VNE 837/MIB 92 are lapsed insofar as it relates

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WP No. 10852 of 2010

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to the petitioners land is concerned because the respondents have not implemented the scheme as per Section 27 of the Karnataka Urban Development Authorities Act.

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(ii) issue a writ of mandamus directing the respondents not to take any coercive steps against the petitioners. (iii) issue any other writ, order or direction as this Hon'ble Court deems fit in the circumstances of the case."

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The petitioners claim to be the joint owners in possession and enjoyment of an extent of 37 guntas of land in Sy.No.114/3 of Basavanahally village, Mysore taluk and district, the same being an ancestral property. The said land of the petitioners was sought to be acquired under a preliminary notification regarding the scheme under Section 17(1) of the Karnataka Urban Development Authorities Act, proposing to acquire certain lands in the Basavanahalli village of Mysore taluk, for formation of Vijayanagar IVth stage.

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The preliminary notification came to be gazetted on 2.1.1992, final notification came to be issued on

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10.12.1992, gazetted on 21.12.1992. The award came to be passed on 18.7.1994.

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The contention of the petitioners is that there is no sanction under section 18(3) of the Act, even if there is a scheme, the same is lapsed in terms of Section 27 of the Act on account of the scheme not having been substantially implemented. It is on this ground that Sri.T.A.Karumbaiah, learned counsel submits that the aforesaid reliefs have to be granted. In respect of the above, Sri.T.A.Karumbaiah, relies upon the decision of this court in ILR 2010 KAR 62, more particularly, paras 18, 30 and 34 hereunder reproduced for easy reference:

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“18. On the basis of the pleadings and the grounds urged and legal contentions advanced by the Learned Counsel for the parties, the following points would arise for consideration:—

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i) Whether the sanction of scheme by the State Government without considering the statement of objections to the proposed acquisition of lands of the petitioners and not furnishing is legal and valid?

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ii) Whether the acquisition proceedings are liable to be quashed for not conducting enquiry and considering the objections as contemplated under Section 5-A of the Act?

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iii) Whether possession of the lands were taken over as contemplated under Section 16(2) of L.A.Act read with Section 36(3) of KUDA Act?

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iv) Whether the decision rendered by this Court under Annexure-Rl has to be applied to these cases?

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v) Whether the writ petitions are liable to be dismissed on the ground of delay and laches?

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30. Since possession of the lands remained with the petitioners, mere publication of Section 16(2) of L.A.Act Notification to evidence the fact of taking possession cannot be accepted by this Court. That apart, the Notification is issued by the Special Land Acquisition Officer of MUDA and it is not notified either by the Deputy Commissioner of the District or Assistant Commissioner of the Revenue sub-division. Therefore, Section 16(2) of the LA Act Notification has no legal sanction at all and it cannot be considered as proof for having taken over possession of the lands of the petitioners from them. Consequently, Point (iii) is answered in the negative.

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34. For the reasons stated above, petitioners succeed. The impugned Notifications are liable to be quashed. However, since MUDA claims that sites have been formed, allotted and some of the allottees have constructed houses and are residing therein, we confine relief only in so far as the lands of the petitioners are concerned.”

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He relies upon the decision of the Division Bench of this court in W.A.Nos.3785-3790/2009, more particularly, para 2 thereof hereunder reproduced

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for easy reference:

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“2. In view of his submissions, W.A.No.3785/2009 is dismissed as not pressed. Liberty is granted to the appellant to raise the contentions in the remaining appeals.”

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He also relies upon the decision of the Division Bench

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in W.A.Nos.3786-3790/2009, more particularly para

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7 hereunder reproduced for easy reference:

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“7. For the aforesaid reasons, we are of the view that since the act of the appellant-MUDA amounts to gross discrimination, the present appeals cannot be considered on merits. In view of the withdrawal of the writ appeal No.3785 of 2009, these appeals are

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consequently, dismissed with the aforesaid observations.”

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Per contra, Sri.S.V.Desai learned counsel for

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respondent Nos.1 & 2 submits that there is a substantial compliance with the scheme inasmuch as 1255 sites have been formed in the Vijaynagar II Stage. This aspect has been considered by this court in several matters where the petitions which had been filed have been dismissed.

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He submits that in one earlier writ petition in W.P.No.40889/2003 which had been filed as regard the very same Sy.No.114/3 measuring 18.1/2 guntas wherein similar grounds had been raised and the said Writ Petition came to be dismissed vide order dated 7.11.2003. The entire extent of Sy.No.114/3 being 37 guntas which had been notified, the question of the present petition being maintainable after the earlier petition in W.P.No.40889/2003 having been dismissed, does not at all arise. He therefore submits

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that the present writ petition also requires to be

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dismissed.

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Apart from the above, he relies on the order passed in W.P.Nos.15648-50/1998 dated 4.3.1998, W.P.No.39097/2003 dated 5.1.2012, W.A.No.838/2012 dated 23.1.2013, W.P.No.39101/2003 dated 5.1.2012, W.A.No.767/2012 dated 27.1.2012 and

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W.A.No.2908/2019 dated 17.3.2020, and contends

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that the Writ Petitions which had been filed as regard the lands of the family members of the petitioners in or around Sy.No.114/3 of Basavanahalli village have also been dismissed, rejecting the very same contention as regard lapsing raised in those Writ Petitions.

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He submits that the contention as regards the non-

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sanction of the scheme has also been considered and therefore, finding of this court in all those matters as

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regards the surrounding lands would equally apply to the present case. This court having categorically come to a conclusion that there is no lapsing of the scheme on account of the substantial implementation of the scheme, the same would apply to the present case also. On this ground, he submits that the above petition is required to be dismissed.

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Having gone through the orders relied upon by

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T.A.Karumbaiah and S.V.Desai, the judgment relied upon by T.A.Karumbaiah in ILR 2010 KAR 62, is regards the land covered under Sy.Nos.122/1, 123/1 and certain other survey number which are nowhere related to or connected with the survey number in question in the present matter. The said survey numbers are not situate near the survey number of the petitioners in the present matter. Hence, the facts which have been stated therein are germane only to that case and not to this case.

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As regards the present case, the orders passed by this court in W.P.No.40889/2003 wherein the family member of the petitioners had filed another petition as regards 18 1/2 guntas of land in Sy.No.114/3 is very much relevant inasmuch as this court has, after considering all arguments, has passed the order rejecting the claim of the petitioners therein as regards lapsing of the scheme. This court having categorically come to a conclusion in respect of the very same Sy.No.114/3 that there is no lapsing, the present contention as regards the very same survey number cannot be maintained. Similarly, the other decisions referred to by Sri.S.V.Desai in the other writ petitions referred above are relevant to properties in and around the above property wherein, this court has rejected the claim of lapsing. Hence, there would be no requirement by this court to again go through the very same contention when there is a finding already given as regards the very same area.

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