Dismissed

T K Sudhindra v. the State of Karnataka

Karnataka HC20 Nov 2023WP/22892/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging an Urban Land Ceiling Act notification. The court held that the petitioner, having purchased the property after it vested with the State and after the authority developed a portion of it, lacked locus standi. The court further rejected claims regarding land classification due to lack of evidence. Petition rejected.

What did the court decide?

Petition rejected without granting any direction to the respondents.

T K Sudhindra Vs the State of Karnataka — Land Acquisition | Karnataka HC (2023)

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NC: 2023:KHC:41561 WP No. 22892 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF NOVEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 22892 OF 2021 (ULC)

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BETWEEN:

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T K SUDHINDRA T KRISHNA MURTHY

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AGED ABOUT 50 YEARS

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FALT NO 57, BRINDAVAN APARTMENTS, AKASHAVANI CIRCLE, VANIVILAS MOHALA MYSURU 570002.

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…PETITIONER

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(BY SRI. ROHITH SWAMY B S, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REP BY ITS CHIEF SECRETARY M S BUILDING, VIDHAN SOUDHA BANGALORE 560001.

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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THE DEPUTY COMMISIONER MYSURU DIST, MYSURU 570001.

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THE TAHASILDAR MYSURU DIST, MYSURU 570001.

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KARNATAKA URBAN DEVELOPMENT AUTHORITY REP BY ITS SECRETARY M S BUILDING, VIKASA SOUDHA BENGALURU 560001.

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MYSURU URBAN DEVELOPMENT AUTHORITY REP BY ITS COMMISSIONER JLB ROAD, MYSURU 570001.

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…RESPONDENTS (BY SRI.BHOJEGOUDA T KOLLUR., AGA FOR R1 TO R4; SMT. POONAM PATIL, ADVOCATE FOR R5)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE PROCEEDINGS INITIATED UNDER NOTIFICATION DATED 10.01.1978 PRODUCED AT ANNEXURE-A3 TO THE EXTENT OF THE PETITIONERS LANDS WHICH ARE CONCERNED I.E, IN SY.NO.21/1 OF DATTAGALLI GRAMA, MYSURU TALUK, KASABA HOBLI TO THE EXTENT OF 2 ACRES AND 37 GUNTAS OUT OF WHICH 0.5 GUNTAS KHARAB LAND; DIRECT THE R4 AND 5 TO ISSUE PRELIMINARY NOTIFICATION AND FINAL NOTIFICATION UNDER THE KARNATAKA URBAN DEVELOPMENT AUTHORITY ACT 1961, FOR THE EXTENT OF 0.25 GUNTAS IN SY.NO.21/1 DATTAGALLI GRAMA, KASABA HOBLI, MYSURU DISTRICT AND AWARD COMPENSATION FOR UTILISING THE SAID LAND.

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THIS 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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The petitioner, who has purchased an extent measuring 2 acres 37 guntas [11837.49 sq. meters] in Sy. No.21/1 of Dattagalli Village, Mysuru Taluk [ the subject property ] under the two sale deeds dated 21.10.2002 from the family members of the undisputed erstwhile owner, Sri. Desi Gowda @ Thapaiah, has impugned the Notification dated 10.01.1978 under Section 10[1] of the Urban Land [Ceiling and Regulation] Act, 1976 [for short, ‘ULCR Act’ ] while seeking directions to the fourth and fifth respondents to issue preliminary and final Notifications under the Karnataka Urban Development Authority Act, 1961 for acquisition and payment of compensation for utilization of 0.25 guntas in the subject property.

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Sri Desi Gowda @ Thapaiah has filed a declaration under Section 6 of the ULCR Act on 16.09.1976 declaring the subject property [ and certain other properties ] as excess urban land. The

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draft notice, as contemplated under Section 8[3] of the ULCR Act, is addressed to the aforesaid on 12.06.1979, and after the final statement as contemplated under Section 9 of the ULCR Act is issued, the impugned Notification is issued on 10.01.1972. Further, notice under Section 10[3] of the ULCR Act is issued on 22.12.1979 followed by a notice for taking possession under Section 10[5] of the ULCR Act on 24.03.1980. The State Government, on 01.03.1984 has allotted the subject property [and certain other adjacent lands] to the fifth respondent which was earlier known as ‘City Improvement Trust Board, Mysore’ and this allotment is for formation of a residential layout.

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Sri Desi Gowda @ Thapaiah has filed the writ petitions in W.P. Nos.3057-58/1991 for a direction to the Special Deputy Commissioner and Competent Authority under the ULCR Act, to the fifth respondent and to the State Government to pass

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Award insofar as 40,929.03 sq. meters land which undisputedly includes the subject property. This Court has dismissed this writ petitions on 11.04.1991 on a memo filed by Sri Desi Gowda @ Thapaiah. The petitioner has filed the subsequent writ petition in W.P. No.14601/2006 for quashing the impugned Notification insofar as the subject property, and this writ petition, on petitioner’s request, is dismissed as withdrawn reserving liberty to the petitioner to redress his grievance before the appropriate Forum. The petitioner, apart from filing certain representations to the respondents, has not availed such remedy but has again approached this Court with the present writ petition.

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On behalf of the fifth respondent, it is asserted that the State took possession of the subject property from Sri Desi Gowda @ Thapaiah on 03.12.1990 and possession is also made over to it on 07.12.1990. The fifth respondent asserts that it has

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forwarded a proposal for utilizing the subject property for a Group Housing and a portion of this property is also developed into a road with necessary storm water drain and this proposal is pending consideration with the State Government. This Court must observe that it is obvious even from the petitioner’s prayer that the petitioner does not dispute that a portion of the subject property is utilized inasmuch as the request is for directions for issuance of necessary notifications and payment of compensation. The fifth respondent also contends that on 21.12.2000, an Award is passed consequent to the impugned Notification.

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Sri Rohith Swamy B S, the learned counsel for the petitioner, submits that the erstwhile owner, Sri Desi Gowda @ Thapaiah, being ignorant of the requirement of the provisions of the ULCR Act, has filed his declaration under Section 6 of the ULCR Act but no proceedings could have been continued

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pursuant to such declaration because the subject property was an ‘agricultural land’. The learned counsel emphasizes that the declaration itself demonstrates that the subject property was agricultural land and that merely because the declaration is filed under Section 6 of the ULCR Act, the authority could not have issued the impugned Notification unless they examine whether such declaration related to ‘ urban land ’ as contemplated under Section 2[o] of the ULCR Act.

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Sri Rohith Swamy B S, relying upon two decisions of Division Benches of this Court in

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Mallaiah Basalingayya Hiremath v. The State of Karnataka, Urban Development Department and Another¹ and in ‘Vaijayanti v. The State of Karnataka, Rep., by its Secretary, Urban Development Department and Another² , argues that the authorities under the ULCR Act cannot notify the

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1 ILR 2012 KAR 3298

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2 ILR 2014 KAR 4648

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lands as ‘excess urban land’ only because the declarant has committed an error; that a duty is cast upon the Officers to examine the same; that the authorities could not have assumed jurisdiction to notification/s under the ULCR Act unless the nature of the subject property is considered and it is determined that the declaration relates to an urban land .

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Sri Rohith Swamy B S argues that this

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Court must interfere with the impugned Notification under Section 10(3) of the ULCR Act and grant reliefs as sought for because the petitioner has placed on record indisputable circumstances to show that the subject property was an ‘agricultural land’ at the relevant time and was not part of urban agglomeration; and in this regard, the learned counsel proposes to rely upon the statements recorded before the impugned Notification as also the

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entries in the RTCs for the subject property which are appended in the petition as annexures.

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Sri Rohith Swamy endeavors to persuade this Court to hold that because the authorities have not taken actual physical possession of the subject property, even as on the date of the repeal of the ULCR Act³ , the fifth respondent cannot utilize any portion of the subject property unless possession is taken after due extinguishment of the petitioner’s interest in the subject property and upon payment of compensation as required in law.

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Smt. Poonam Patil, the learned counsel for the fifth respondent supported by Sri. Bhojegouda T Koller, the learned Additional Government Advocate, at the threshold, relying upon the decision of the Hon’ble Supreme Court in State of Uttar Pradesh and

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3 The Urban Land [Ceiling and Regulation] Repeal Act, 1999, and in terms of Section 4 of this Act, w.e.f. 08.07.1999, all pending proceedings shall abate and the proceedings under sections 11, 12, 13, and 24 of the ULCR Act will not apply to the lands if in case possession is not taken.

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Others v. Adarsh Seva Sahkari Samiti Limited⁴ , submits that the writ petition must be dismissed as not maintainable because the petitioner has purchased the subject property after the subject property vested with the Government upon issuance of the impugned Notification under Section 10[3] of the ULCR Act and after possession is handed over to the fifth respondent. The learned Counsel emphasizes that especially the petitioner does not dispute that as of the date of the petition the fifth respondent has developed a portion of the subject property with the proposal of further development.

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Smt. Poonam Patil submits that the

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erstwhile owner of the subject property, Sri Desi Gowda @ Thapaiah, has not filed objections when he had opportunities either under Section 8 or Section 9 or Section 10[1] of the ULCR Act contending that subject property is agricultural land, and when Sri

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4 [2016] 12 SCC 493

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Desi Gowda @ Thapaiah has not filed objections, the petitioner, who has purchased the subject property, cannot contend that the authorities have not examined the relevant factors and therefore the impugned Notification must yield. The learned counsel canvasses that in very similar circumstances, where the objections have not been filed by the owner either under Section 8 or Section 9 or Section 10[1] of the ULCR Act, the Hon’ble Supreme Court has held that the affected cannot re-agitate the proceedings and even delay in calling in question has been considered.

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Smt. Poonam Patil in this regard relies upon the decision of the Hon’ble Supreme Court in ‘ Competent Authority, Calcutta, under the Urban Land [Ceiling and Regulation] Act, 1976 and Another v. David Mantosh and Others⁵ and ‘ Sulochana Chandrakant Galande v. Pune Municipal Transport

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5 [2020] 12 SCC 542

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and Others ’⁶ , and the learned counsel, reiterating the afore, argues that the petitioner cannot rely upon the pronouncements of the Division Benches either in the case of Mallaiah or Vaijayanti supra , and even on facts, those decisions would not apply inasmuch as, the opinion rendered therein is in the premise that possession is not taken by the authorities as required under Section 10[6] of the ULCR Act.

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The question, for consideration, in the light of the rival submissions is:

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Whether this Court must dismiss this petition on the ground of maintainability, and if not, whether this Court, in the circumstances of the case, quash the impugned Notification dated 10.01.1978 under Section 10[1] of the ULCR Act in respect of the subject property and issue any direction to the respondents .

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The documents produced in the present proceedings indicate that after Sri Desi Gowda @ Thapaiah has filed a declaration under Section 6 of 6 [2010] 8 SCC 467

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the ULCR Act on 16.09.1976 declaring the subject property [ and certain other properties ] as excess urban land, the draft notice, as contemplated under Section 8[3] of the ULCR Act, is addressed to him on

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12.06.1979. Thereafter, final statement, as

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contemplated under Section 9 of the ULCR Act, is issued, and the impugned Notification under Section 10[1] of the ULCR Act is published on 10.01.1972. The Notification under Section 10[3] of the ULCR Act is issued on 22.12.1979 followed by a notice for taking possession under Section 10[5] of the ULCR Act on 24.03.1980.

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The fifth respondent has produced records

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to establish that the State Government has taken possession of the subject property from Sri Desi Gowda @ Thapaiah on 03.12.1990 and that possession is handed over to the fifth respondent on 07.12.1990. Sri Desi Gowda @ Thapaiah has filed the writ petitions in W.P. Nos.3057-58/1991 for a

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direction to pass Award insofar as 40,929.03 sq. meters land [including] the subject property, and writ petitions are dismissed on 11.04.1991 on a memo filed by Sri Desi Gowda @ Thapaiah. The Award is passed on 21.12.2000.

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The petitioner, after the conclusion of these proceedings, has purchased the subject property under the two sale deeds dated 21.10.2002 from the family members of the undisputed erstwhile owner, Sri. Desi Gowda @ Thapaiah, and crucially, the fifth respondent has admittedly developed a portion of the subject property into a Road and its proposal for a group housing is pending consideration with the State Government. This Court must examine the import of these circumstances in the light of the decision in Adarsh Seva Sahkari Samiti Limited supra .

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The Hon’ble Supreme Court examining whether a person who has purchased a property after

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notifications are issued under Section 10 of the ULCR Act can challenge such notifications, has opined thus:

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“We have examined this aspect. Having regard to the undisputed fact that the respondent has purchased the property from the declarant which is vested with the State Government under Section 10(5) of the Act in terms of Section 10(3) notification, therefore, the transfer of property in favour of the respondent, who is claiming its interest in the said property is void ab initio in law. On this ground alone, the order passed by the High Court cannot be allowed to sustain .”

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The Hon’ble Supreme Court, in view of the fact that the concerned Development Authority had developed a portion of the subject property into a park, has also observed thus:

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“It is also brought to our notice by the learned Senior Counsel Mr. Misra that after the proceedings under Sections 10(3) and 10(5), notice and the alleged taking over possession of the land in question, the subsequent event has taken place, namely, the said property has been transferred to the Lucknow Development Authority by the State Government and the

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Development Authority has laid a park for public use. On this, the learned Senior Counsel for the respondent submits that the said event has taken place during the pendency of the proceedings before the High Court. Though it may be the fact, subsequently, after the transfer of the property in favour of the Development Authority, the Authority has developed a park is an undisputed fact. This is also a very relevant aspect of the matter for this Court to annul the impugned judgment/order passed by the High Court.”

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The fact that the petitioner has purchased the subject property after the proceedings as aforesaid and that the fifth respondent has developed a Road are overwhelming circumstances and mitigate against the petitioner’s locus to challenge the said notifications.

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Significantly, the petitioner has chosen to withdraw the earlier writ petition in W.P. No.14601/2006, which is filed for the same relief/s but for a minor change, and this is also a formidable reason. If the petition is entertained notwithstanding

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this disposal of the earlier proceedings, this Court must opine that the rule of finality, which is crucial is

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in judicial proceedings, will be defeated. The petitioner’s case that different representations have been filed after the disposal of the writ petition would not in any manner mitigate against the afore salient law.

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The petitioner contends that the

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declaration is filed in respect of ‘agricultural land’ and as such, the proceedings under the ULCR Act could not have been initiated, and in this regard, it is essentially canvassed that nothing is brought on record to demonstrate that, as of the effective date, the subject property was urban land. The provisions of Section 2[O]⁷ of the ULCR Act stipulates that an

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7 “urban land" means,-

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(i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or

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(ii) in a case where there^{is no master plan, or where} the master plan does not refer to any land as

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‘ urban land’ would include those lands which is part of any Master Plan, or where the Master Plan does not refer to it as an urban land, if it is situated within the local limits of the Municipality or even a Panchayath. The petitioner, who despite Sri Desi Gowda @ Thapaiah filing a declaration that the subject property is urban land, contends that the subject property was an agricultural land has not placed on record any material to demonstrate that it was not within the local limits as aforesaid. The petitioner, unless demonstrates that it is outside the local limits, cannot succeed on the ground that the

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urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture

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The Explanation to this Section is not extracted but this Explanation stipulates that agriculture should include horticulture but does not include certain activities.

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subject property is not part of the Master plan or that it is not declared as an ‘urban land’ in the Master plan.

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Further, it follows from the Explanation to Section 2[o] of the ULCR Act that the lands, though used for some agriculture related purposes, would not be construed as agricultural lands unless it is shown that the land is used mainly for agricultural

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purposes. These provisions read as hereunder:

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“Explanation – For the purposes of this clause and clause (q) – (A) "agriculture" includes horticulture, but does not include-

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(i) raising of grass,

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(ii) dairy farming,

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(iii) poultry farming,

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(iv) breeding of live-stock, and

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(v) such cultivation, or the growing of such may be prescribed;

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(B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture: Provided that where on any land which is entered in the revenue or land records before the

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appointed day as for the purpose of agriculture, there is a building which is not in the nature of a farm-house, then, so much of the extent of such occupied by the building shall not be deemed to be used mainly for the purpose of agriculture:

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Provided further that if any question arises whether any the nature of a farm-house, such question shall be referred to the State Government and the decision of the State Government thereon shall be final;

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(C) notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master purpose other than agriculture.”

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The petitioner, except for contending that the subject property was agricultural land as of the effective date, has not brought on record any circumstance to justify a view that the subject property was mainly used for agricultural purposes. In the absence of these material circumstances, a general contention that the subject property was ‘agricultural land’ cannot prevail.

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The erstwhile owner, Sri Desi Gowda @ Thapaiah, has filed affidavit way back in the year 1981 stating inter alia that he has agreed to surrender possession of the subject property along with other lands and he must be paid compensation accordingly, and in fact, the writ petitions filed by him in W.P. Nos. 3057-58/1991 for passing of the Award is dismissed based on a memo filed by him. The petitioner cannot plead a case that was not available to his vendor as of the date of the sale deeds. Therefore, the petitioner cannot rely upon the decision either in the case of Mallaiah or Vaijayanti supra supra.

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In the light of the above the petition is rejected.

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Sd/-

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JUDGE

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AN/-

T K Sudhindra v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

T K Sudhindra v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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