Partly allowed

Sri.Shivakumar v. State of Karnataka

Karnataka HC28 Aug 2024WP/11359/2021

Case brief

AI extract

What is this about?

Petitioner sought declaration that Urban Land Ceiling proceedings over two survey numbers lapsed as possession was never taken. Sy.No.39/4 had been acquired by BDA for Arkavathi Layout; for Sy.No.46/1 the State failed to show possession was taken, so proceedings abated. Petition allowed in part; records mutated to petitioner.

What did the court decide?

ULC order quashed re Sy.No.46/1; Tahsildar directed to enter petitioner's name within six weeks; compensation entitlement noted for BDA-acquired Sy.No.39/4.

Sri.Shivakumar Vs State of Karnataka — Land Acquisition | Karnataka HC (2024)

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NC: 2024:KHC:34689 WP No. 11359 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF AUGUST, 2024 BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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WRIT PETITION NO.11359 OF 2021 (ULC)

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BETWEEN:

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SRI SHIVAKUMAR S/O. HANUMANTHAPPA, AGED ABOUT 37 YEARS, R/AT DOMMARAHALLI VILLAGE, MUDURE HOBLI, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT – 561 203. ... PETITIONER

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(BY SRI VINAYAKA B. VISHNU BATTA, ADVOCATE)

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AND:

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STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MULTI STORIED BUILDING, DR. B.R. AMBEDKAR VEEDHI, BENGALURU – 560 001.

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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DEPUTY COMMISSIONER, BENGALURU URBAN DISTRICT, K.G. ROAD, BENGALURU – 560 009.

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ASSISTANT COMMISSIONER, BENGALURU NORTH SUB-DIVISION, KANDAYA BHAVAN, K.G. ROAD, BENGALURU – 560 009.

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TAHSILDAR, BENGALURU NORTH ADDITIONAL TALUK, YELAHANKA, BENGALURU – 560 064. ... RESPONDENTS

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(BY SMT. RADHA RAMASWAMY, AGA FOR R-1 TO R-4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS PERTAINING TO THE PROCEEDINGS UNDER URBAN LAND (CEILING AND REGULATION) ACT, 1976, BEARING NO.ULC(A)(7)352/82-83; AND DECLARE THAT THE PROCEEDINGS UNDER URBAN LAND (CEILING AND REGULATION) ACT 1976 VIDE ORDER DATED 26.10.1984 VIDE NOTIFICATION DATED 02.02.1988 AND ALL CONSEQUENTIAL PROCEEDINGS IN RESPECT OF SY.NO.39/4 MEASURING 15 GUNTAS AND SY.NO.46/1 MEASURING 1 ACRE 31 GUTNAS HAS BEEN LAPSED IN VIEW OF THE URBAN LAND (CEILING AND REGULATION) REPEALING ACT, 1999 (ANNEXURE-A AND B); AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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Petitioner in this writ petition is seeking to declare that the proceedings under the Urban Land (Ceiling and Regulations) Act, 1976 and all consequential proceedings in respect of Sy. No.39/4 measuring 15 guntas and Sy. No.46/1 measuring 01 acre 31 guntas has lapsed, as the respondents-Authorities have not taken over the physical possession of the lands.

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Respondent-State has filed a memo along with

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the report of the Deputy Commissioner, Bengaluru Urban District, Bengaluru stating that Sy. No.39/4 measuring 15

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guntas have been acquired for Arkavathi Layout by the Bangalore Development Authority (‘BDA’ for short) under final notification dated 18.06.2014 and the possession has been taken over by the BDA.

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Learned counsel for the petitioner does not

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dispute that Sy. No.39/4 measuring 15 guntas have been acquired for Arkavathi project and possession has been over taken by the BDA. The said submission is recorded.

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In light of the same, prayer insofar as Sy. No.39/4 measuring 15 guntas does not fall for consideration before this Court and it is needless to observe that the petitioner would be entitled for compensation, if so advised, in accordance with law.

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Petition avers that the petitioner is the absolute

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owner of property bearing Sy. No.39/4 measuring 15 guntas and Sy. No.46/1 measuring 1 acre 31 guntas of Sampigehalli Village, Yelahanka Hobli, Bengaluru North Taluk. One Nanjappa, grand-father of the petitioner was

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the absolute owner of the petition property and he inherited the above properties from his ancestors by virtue of the partition effected among his brothers. The said Nanjappa had two daughters, namely Kanthamma and Muniyamma, petitioner’s father had married both the daughters of Nanjappa. Kanthamma died issueless, petitioner is the son of second wife-Muniyamma, and on death of Nanjappa on 10.10.1992, the petitioner is the sole legal heir.

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After the Urban Land (Ceiling and Regulation) Act, 1976 (‘the Act’ for short) came into force, Nanjappa filed a declaration before the Competent Authority under Section 6 (1) of the Act, declaring that the particulars of the properties owned by him, the Competent Authority after considering the declaration made by Nanjappa passed the order under Section 10 (1) of the Act, determining the excess vacant land and declared that the excess are of vacant land of 12,192.73 sq. ft. in Sy. Nos.39/4 and 46/1A and directed the authorities to act

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and serve the draft statement along with the notice on the declarant under Section 8 (3) of the Act.

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The Competent Authority issued a notification dated 02.02.1988 under Section 10 of the Act declaring that the excess vacant land is deemed to have been acquired by the Government. It is the case of the petitioner that though the notification has been issued under Section 10 (3) of the Act, the respondentauthorities have not taken physical possession of Sy. No.46/1 and the possession remained with Nanjappa and thereafter, with the petitioner.

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The State has filed statement of objections, inter alia, contending that the Additional Special Deputy Commissioner, Urban Land Ceiling, Bengaluru initiated proceedings against Nanjappa, and after holding detailed enquiry, the Additional Special Deputy Commissioner, has issued notification and thereafter, took possession over the land as per the provisions of the Act, and this has been reflected in the RTC pertaining to the petition land. It is

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stated that pursuant to the mutation order in MR No.14/1987-88 dated 15.10.1988, possession has been taken by the Government land. It is stated that Sy. No.39/4 measuring 15 guntas have been notified by the BDA and BDA has acquired the said land and developed the same for Arkavathi Layout,

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The question that falls for consideration before

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this Court is:

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“Whether in light of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (‘the Repeal Act, 1999’ for short), the proceedings in the instant case stands abated in light of non-taking of possession by the respondent-State in Sy. No.46/1?”

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Section 10 of the Act, 1976 prescribes the procedure for acquisition of the vacant land in excess of ceiling limit. Sub-Clause 4 of Section 10 states that, during the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under subsection (3)—

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(i) no person shall transfer by way of sale, mortgage,

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gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and (ii) no person shall alter or cause to be altered the use of such excess vacant land. Sub-Section 5 of Section 10 envisages that, where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service of the notice. Sub-Section 6 of Section 10 envisages that, if any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorized by such State Government in this behalf and may for that purpose use such force as may be necessary.

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The provisions of Section 10 of the Act, 1976 fell for consideration before the Apex Court in the case of State of Uttar Pradesh Vs. Hari Ram¹ (Hari Ram) , the Apex Court observed that from the date of publication under notification sub-section 1 and ending with the dates specified in the declaration made in sub-section 3, there is no question of disturbing the possession of a person, the possession, therefore, continuous to be with the holder of the land. The Apex Court further observed that mere vesting of the land under Sub-Section 3 of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land or the possession has been taken before 18.03.1999 .

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The State has to establish that there has been a

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voluntary surrender of vacant land or surrender and delivery of peaceful possession under Sub-Section 5 of Section 10 or forceful dispossession under Sub-Section 6

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1 (2013) 4 SCC 280

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of Section. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 4 of the Repeal Act.

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A careful perusal of the material on record would indicate that the State has failed to establish that there has been any voluntary surrender of the vacant land or surrender and delivery of peaceful possession as contemplated under Sub-Section 5 of section or any possession being taken under Sub-Section 6 of Section 10, in light of the failure by the respondents, Sub-Section 4 of the Repeal Act comes to the benefit of the petitioner and all the legal proceedings stood abated in light of the possession being not taken by the respondent in respect of Sy. No.46/1. Mere entry of the name of the respondentState in the revenue records would not indicate that the possession has been taken over by the petitioner in Sy. No.46/1. The Apex Court in the case of Mukarram Ali Khan Vs. State of Uttar Pradesh and others²

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2 (2007) 11 SCC 90

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(Mukarram Ali Khan) has held that all the legal proceedings would stand abated, since the possession continued to remain with the (petitioners) and there was no materials to indicate that the (respondent) has taken over all the land from the petitioner.

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In light of the decisions of the Apex Court in the cases of Hari Ram and Mukarram Ali Khan, and by virtue of repeal of ULC Act, all the proceedings including the impugned order would stand abated and deserves to be quashed in respect of Sy. No.46/1 measuring 1 acre

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31 guntas and this Court pass the following:

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ORDER

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i. Writ petition is allowed in part.

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ii. Impugned order at Annexures-A and B are hereby quashed in respect of Sy. No.46/1 measuring 1 acre 31 guntas insofar as Sy. No.39/4 measuring 15 guntas, the land having been acquired by the BDA, the petitioners/land owners are entitled for compensation in accordance with law.

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NC: 2024:KHC:34689 WP No. 11359 of 2021

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iii. Respondent No.4/Tahsildar is directed to enter the name of the petitioner in respect of Sy. No.46/1 within a period of six weeks from the date of receipt of certified copy of this order.

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Sd/(K.S. HEMALEKHA) JUDGE

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MBM List No.: 1 Sl No.: 40

Sri.Shivakumar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri.Shivakumar v. State of Karnataka

Case brief

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