Partly allowed

Sri I M Omkar v. State of Karnataka

Karnataka HC9 Oct 2023WP/20401/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka held that since acquisition of the disputed land must proceed under Section 36 of the Karnataka Urban Development Authorities Act, 1987 as no agreement was reached, the requirement of serving notices under Section 17 is mandatory. The Court allowed the petition by keeping the final notification in abeyance and directing the Authority to serve proper notice and consider

What did the court decide?

Final notification affecting petitioners' properties kept in abeyance; Authority to consider objections and pass orders within eight weeks.

Sri I M Omkar Vs State of Karnataka — Land Acquisition | Karnataka HC (2023)

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1 - NC: 2023:KHC:36635 WP No. 20401 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL

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WRIT PETITION NO. 20401 OF 2023 (LA-UDA)

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BETWEEN:

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SRI I M OMKAR S/O MALLEGOWDA I.M., AGED ABOUT 52 YEARS, R/AT INDAVARA VILLAGE AND POST, KASABA HOBLI, CHIKMAGALURU TALUK - 577 101.

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SRI. NARENDRA, S/O LATE I.M. KALLEGOWDA, AGED ABOUT 52 YEARS, R/AT INDAVARA VILLAGE AND POST, KASABA HOBLI, CHIKMAGALURU TALUK - 577 101.

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SRI. CHANDRASHEKAR N. S/O LATE NONAIAH POOJARY, AGED ABOUT 37 YEARS, R/AT INDAVARA VILLAGE AND POST, KASABA HOBLI, CHIKMAGALURU TALUK - 577 101.

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SRI. MOHAN I.E., S/O ERE GOWDA I.K, AGED 60 YEARS, R/AT INDAVARA VILLAGE AND POST, KASABA HOBLI, CHIKMAGALURU TALUK - 577 101.

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SRI. GAJENDRA I.R. S/O I. J. RAJASHEKARAPPA, AGED ABOUT 37 YEARS, R/AT INDAVARA VILLAGE AND POST, KASABA HOBLI, CHIKMAGALURU TALUK - 577 101.

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SRI. I.B. MALLEGOWDA, S/O BASAVEGOWDA AGED ABOUT 74 YEARS, R/AT INDAVARA VILLAGE AND POST, KASABA HOBLI, CHIKMAGALURU TALUK - 577 101.

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SRI I.J. RAJSHEKARAPPA, S/O LATE JUNJEGOWDA, AGED ABOUT 68 YEARS, R/AT INDAVARA VILLAGE AND POST, KASABA HOBLI, CHIKMAGALURU TALUK - 577 101.

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SRI. VEERABHADRE GOWDA I.B. S/O LATE AJJEGOWDA, AGED ABOUT 63 YEARS, R/AT INDAVARA VILLAGE AND POST, KASABA HOBLI, CHIKMAGALURU TALUK - 577 101.

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SRI. I.R. NAVEEN, S/O I.S.RUDREGOWDA, AGED ABOUT 63 YEARS R/AT NO.7, INDAVARA VILLAGE AND POST, KASABA HOBLI, CHIKMAGALURU TALUK - 577 101.

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SMT. H.C. ANUPA, W./O I.R. NAVEEN., AGED ABOUT 54 YEARS R/AT NO.7, INDAVARA VILLAGE AND POST, KASABA HOBLI,

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3 - NC: 2023:KHC:36635 WP No. 20401 of 2023

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CHIKMAGALURU TALUK - 577 101.

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…PETITIONERS

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(BY SRI. SACHIN B S.,ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESENTED BY SECRETARY FOR URBAN DEVELOPMENT AND MUNICIPAL ADMINISTRATION

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VIDHANA SOUDHA - 560 001.

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STATE OF KARNATAKA UNDER SECRETARY TO GOVERNMENT URBAN DEVELOPMENT DEPARTMENT VIKASSAUDHA BANGALORE - 560 001.

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THE COMMISSIONER, CHIKMAGALUR URBAN DEVELOPMENT AUTHORITY, CHIKMAGALURU - 575 101.

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THE PRESIDENT, CHIKAMAGALURU URBAN DEVELOPMENT AUTHORITY,

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CHIKMAGALURU - 575 101.

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DEPUTY COMMISSIONER, CHIKMAGALURU DISTRICT CHIKMAGALURU - 575 101.

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PANCHAYATH DEVELOPMENT OFFICER INDAVARAGRAMA PANCHAYATH CHIKMAGALURU TALUK, CHIKMAGALORE - 577 101.

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…RESPONDENTS

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(BY SRI. YOGESH D. NAIK, AGA FOR R1 & R2, R5; SRI. A. RAVISHANKAR, SENIOR COUNSEL FOR C/R3)

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4 - NC: 2023:KHC:36635 WP No. 20401 of 2023

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) QUASH THE IMPUGNED RESOLUTION DATED:15/09/2022 PASSED BY THE RESPONDENT NO.3 AND RESPONDENT NO.4 AS PER ANNEXURE-A AND QUASH THE FINAL NOTIFICATION DATED:20/02/2023 ISSUED BY RESPONDENT NO.2 AS PER ANNEXURE-B IN SO FAR SCHEDULE PROPERTY.

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

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ORDER

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Heard Sri. Sachin B.S, learned counsel for petitioner, Sri. Yogesh D.Naik, learned counsel for the respondent Nos. 1 and 2 and Sri. A.Ravishankar, learned Senior counsel for the respondent No.3.

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The short grievance of the petitioners is that they being the owners of various lands as referred to in the schedule to the petition, have not been served with the statutory notice as contemplated under Section 17(5) and 6 of the Karnataka Urban Development Authorities Act, 1987, (hereinafter referred to as 'Act' for short)

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thereby further action and steps taken by the

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respondents-authority stands vitiated.

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Sri. B.S.Sachin, learned counsel for the petitioners draws attention of this Court to the Government Order dated 25.01.2023 produced at Annexure-X, particularly, condition No.12 of the order, which is as follows;

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"aPÀÌªÀÄUÀ¼ÀÆgÀÄ £ÀUÀgÁ©üªÀÈ¢Þ ¥Áæ¢üPÁgÀzÀ ªÁå¦ÛAiÀÄ aPÀÌªÀÄUÀ¼ÀÆgÀÄ vÁ®ÆèPÀÄ PÀ¸À¨Á ºÉÆÃ§½AiÀÄ EAzÁªÀgÀ UÁæªÀÄzÀ°è ªÀ¸Àw §qÁªÀuÉAiÀÄ£ÀÄß ¤«Äð¸À®Ä GzÉÝÃ²¹gÀÄªÀ ¥ÀÄ¸ÀÄÛvÀ ¥Áæ¢üPÁgÀªÀÅ PÀgÁgÀÄ M¥ÀàAzÀ ªÀiÁrPÉÆArgÀÄªÀ 170 JPÀgÉ 07-UÀÄAmÉ ºÁUÀÆ 05-JPÀgÉ 09UÀÄAmÉ J RgÁ§Ä ªÀÄvÀÄÛ zÉÃªÀgÀ d«ÄÃ£ÀÄ/UÉÆÃªÀiÁ¼À d«ÄÃ£ÀÄUÀ¼À£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ G½zÀ 33.21 JPÀgÉ d«ÄÃ£À£ÀÄß ¨sÀÆªÀiÁ°ÃPÀgÉÆA¢UÉ PÀgÁgÀÄ ¥ÀvÀæ ªÀiÁrPÉÆ¼Àî®Ä ¥ÀæAiÀÄwß¸ÀÄªÀÅzÀÄ, ¸ÁzsÀåªÁUÀ¢zÀÝ°è PÀ£ÁðlPÀ £ÀUÀgÁ©üªÀÈ¢Þ ¥Áæ¢üPÁgÀUÀ¼À C¢ü¤AiÀÄªÀÄ, 1987gÀ PÀ®A 36gÀAvÉ ¨sÀÆ¸Áé¢üÃ£À PÁAiÉÄÝ, 2013 gÀ£ÀéAiÀÄ ¨sÀÆ¸Áé¢üÃ£À¥Àr¹PÉÆAqÀÄ ªÀÄÄAzÀÄªÀgÉAiÀÄvÀPÀÌzÀÄÝ".

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4. Referring to the same, learned counsel for the

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petitioners submits that;

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(a) admittedly petitioners herein have neither

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consented nor have entered into any agreement with

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respondents-authorities agreeing for acquisition of their land. He submits that in that event, respondent-

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NC: 2023:KHC:36635 WP No. 20401 of 2023

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authority cannot presume to proceed to acquire the land in terms of Section 35 of the Act.

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(b) He submits that since there is no

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consent/agreement, respondent-authorities even as noted in the Government order, extracted hereinabove, are required to adopt the method prescribed under Section 36 of the Act, namely, issuance of preliminary notification under Section 17 of the Act after serving the notice calling for the objections, determination of objections under Section 18 of the Act and then passing the general award. Thus, it is his short submission that not complying with the statutory requirements, has caused injustice to the petitioners.

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(c) He submits without even complying with statutory obligation, respondent -authorities have proceeded to issue final notification as per Annexure-

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B dated 20.02.2023 thereby have taken away the constitutional rights of the petitioners in respect of

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7 - NC: 2023:KHC:36635 WP No. 20401 of 2023

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their properties described in the schedule to the petition, warranting interference by this Court.

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Statement of objection have been filed by the learned counsel for the respondent No.3. Referring to Annexures produced along with statement of objections, Sri. Ravishankar, learned counsel for the respondent No.3 submits that;

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(a) the grounds urged by the petitioners are hypotechnical. In that, he submits that merely because individual notices have not been served to the petitioners, the statements of objection which was voluntarily filed by the petitioners, though belatedly, and consideration of such representations by the respondent-authority cannot be negated.

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(b) He refers to the order passed by the respondent No.3 which preceded with a discussions in the meeting held at the office of Chikkamangaluru Development Authority, wherein all the contentions raised by the petitioners were considered in detail.

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Notwithstanding the objections were filed belatedly, counsel for respondent No.3 further furnishing copy of the proceedings dated 28.08.2023 held at the office of the respondent No.3 submits that all contentions raised by the petitioners were considered in the meeting held by the Deputy Commissioner.

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(c) He submits that all contentions urged by the petitioners are with respect to the fact that they are the agriculturist and if they are deprived of their lands they would be left without any livelihood and these objections were considered in detail in the presence of the petitioners who had affixed their signatures in the register maintained for the particular meeting. Thus, he submits that the objections of the petitioners have been considered in detail.

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(d) He fairly submits that as taken note of by the Government in its meeting referred to above dated

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25.01.2023 the further proceedings as contemplated

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under Section 36 of the Act would be undertaken.

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Heard. Perused the records.

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It is contended that out of 170 acres 7 guntas

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of land, except 33.21 acres of land the rest of the land has

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been acquired with the consent of land owners. Petitioners herein are the owners of land forming part of remaining 33.21 acres and who have admittedly not consented/ agreed for acquisition.

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Section 35 of the Act reads as under;

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"35. Authority to have power to acquire land by agreement.- Subject to the provisions of this Act and with the previous approval of the Government, the Authority may enter into an agreement with the owner of any land or any interest therein, situated within the urban area for the purchase of such land".

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Thus, since there has been no agreement,

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authorities have to proceed with under Section 36, which reads as under;

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"36. Provisions applicable to the acquisition of land other-wise than by agreement.- (1) The Acquisition of land under this Act otherwise than by agreement within or without the urban area shall be regulated by the provisions, so far as they are applicable, (of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.];

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(2) For the purpose of sub-section (2) of section 95 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013], the Authority shall be deemed to be the local authority concerned.

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(3) After the land vests in the Government under section 23 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013], the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the Authority agreeing to pay any further cost which may be incurred on account of the acquisition, transfer the land to the Authority, and the land shall thereupon vest in the Authority."

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Needless to state if the authorities are opting the mode of acquisition in terms of Section 36 of the Act, and requirement of service of notice under Section 17 of the Act has to be complied with.

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Though it is contended on behalf of the petitioners that no individual notices were served on them and that the paper notification as contemplated under Section 17 of the Act, is not published in the newspaper having wide circulation, admittedly petitioners have voluntarily submitted objections on three occasions, which objections have been apparently considered by respondent-authorities.

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Be that as it may. Since as fairly submitted by the learned counsel for the respondent No.3 that in terms of the order of the Government order (Administration sanction) dated 25.01.2023 (as extracted herein above) the respondent No.3 are in the process of initiating

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proceedings under Section 36 of the Act to an extent of 33.21 acres of land, which includes lands belonging to the petitioners hereinabove, another opportunity to the petitioners would be provided in accordance with law.

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Submission is taken on record.

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In view of the above, considering this narrow

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issue involved in this matter, petition is disposed of with the following;

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ORDER

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(1) Petitioners shall present before the respondentauthorities on 30.10.2023 @ 11.00 a.m. with all necessary records and objections if any.

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(2) Respondent No.3 shall consider the representation /objection of the petitioners and pass orders thereon in accordance with law, within an outer limit of eight weeks thereafter.

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(3) It is made clear that the petitioners shall not raise any grounds of non-service of notice as

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contemplated under Section 17 of the Act as they have been provided fresh opportunity by virtue of this order.

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(4) It is also made clear the final notification at Annexure-B to the extent of the properties belonging to the petitioners shall be kept in abeyance till the respondent-authorities consider the objections filed by the petitioners as directed by this Court.

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Sd/JUDGE

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Sri I M Omkar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri I M Omkar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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