Allowed

Sri D Hanumanthappa v. the State of Karnataka

Karnataka HC22 Oct 2024WP/51700/2014

Case brief

AI extract

What is this about?

Petitioners challenged the 1988 acquisition of their excess vacant land under the Urban Land (Ceiling and Regulation) Act. The court found no record of Section 10(5)/(6) notices or physical possession, held the proceedings abated under the Repeal Act, rejected the delay plea, and quashed the acquisition order.

What did the court decide?

Impugned order dated 07.03.1988 (Annexure-J) and gazette notification dated 30.05.1990 quashed; pending interlocutory applications disposed of.

Sri D Hanumanthappa Vs the State of Karnataka — Land Acquisition | Karnataka HC (2024)

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1 - NC: 2024:KHC:42592 WP No. 51700 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA

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WRIT PETITION NO. 51700 OF 2014 (ULC)

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BETWEEN:

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SRI. DHANUMANTHAPPA,

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S/O LATE DASAPPA, AGED ABOUT 60 YEARS, CHANNASANDARA, RAJARAJESHWARINAGAR POST, UTTARAHALLI HOBLI, BANGALORE-560 098.

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1(a) SMT. LAKSHMAMMA, W/O LATE D.HANUMANTHAPPA, AGED ABOUT 60 YEARS,

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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1(b) SRI. HARISH.H., S/O LATE D.HANUMANTHAPPA, AGED ABOUT 33 YEARS,

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1(c) CHAITHRA.H., D/O LATE D.HANUMANTHAPPA, AGED ABOUT 31 YEARS,

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1(d) SRI. GIRISH.H., S/O LATE D.HANUMANTHAPPA, AGED ABOUT 28 YEARS,

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Nos.1(a) TO 1(d) ARE ALL RESIDING AT No.54, KENGERI, UTTARAHALLI MAIN ROAD, NEAR ANJANEYA TEMPLE ROAD,

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2 - NC: 2024:KHC:42592 WP No. 51700 of 2014

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CHANNASANDRA, R.R.NAGAR, BENGALURU SOUTH, BENGALURU-560098.

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SRI.MAHADEVAIAH S/O LATE DASAPPA, AGED ABOUT 49 YEARS, CHANNASANDARA, RAJARAJESHWARINAGAR POST, UTTARAHALLI HOBLI, BANGALORE-560 098.

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…PETITIONERS

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(BY SRI.H.SHANTHI BHUSHAN., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REVENUE DEPARTMENT, VIDHANASOUDHA, BANGALORE-560 001.

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REP. BY ITS PRINCIPAL SECRETARY.

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THE SPECIAL DEPUTY COMMISSIONER, BANGALORE URBAN DIST. K.G.ROAD, BANGALORE-560 009.

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SMT V.J.SHOBHA, W/O SRI.V.G.JANARADHANA GUPTA, AGED ABOUT 50 YEARS, R/AT No.873, 13^TH MAIN, SRINIVASANAGAR, S.B.M. COLONY, BENGALURU-560 050.

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SHRI. MADHU, S/O LATE LINGAIAH, AGED ABOUT 57 YEARS, R/AT No.205/A, 12^TH B’ CROSS, VYALIKAVAL, BENGALURU-560 003

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…RESPONDENTS (BY S MT. HEMALATHA.V., AGA FOR R-1 & R-2; SRI. HALESHA.G., ADVOCATE FOR R-3 AND R-4)

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3 - NC: 2024:KHC:42592 WP No. 51700 of 2014

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDERS PASSED BY THE SPECIAL DEPUTY COMMISSIONER, AND COMPETENT AUTHORITY, URBAN LAND CEILING, KUMARAPARK WEST, BANGALORE-560 020, DATED:07.03.1988, VIDE ANNEXURE-J, ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 14.10.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: THE HON'BLE MR JUSTICE N S SANJAY GOWDA

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CAV ORDER

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A statement as contemplated under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, ‘ the Act’ ) was filed by Dasappa—father of the petitioners. The Special Deputy Commissioner considered said statement and came to the conclusion that all the survey numbers, except Sy.No.1/2, were situated within the 100 meters from gramathana limit.

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Dasappa was therefore instructed to produce the required documents and also to make an application to the State Government for exemption under Section 20 of the Act for agricultural purposes.

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The Special Deputy Commissioner noticed that

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Dasappa neither filed an application to the State Government nor produced any documents to indicate that said lands have been used for agricultural purposes. The Special Deputy Commissioner, accordingly, prepared a draft statement and served it on Dasappa’s son. However, no objections were received and, hence, the Special Deputy Commissioner came to the conclusion that the total vacant land available according to the declarant is 36,506 meters and after permitting the holding of 1,000 square meters of land and excluding Sy.No.1/2, the declarant was found to be holding an extent of 26,299 square meters, which was required to be acquired under the provisions of the Act.

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Accordingly, he passed an order directing the acquisition of excess vacant land measuring 26,299 square meters in Sy.Nos.1/3, 1/4, 1/5, 1/10, 1/11 and 1/12. This order was passed on 07.03.1988 under Section 10(1) of the Act.

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5 - NC: 2024:KHC:42592 WP No. 51700 of 2014

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The notification dated 30.05.1990 was published in the Gazette on 02.08.1990 under Section 10(1) of the Act declaring that the abovementioned lands were to be acquired by the State Government and the claims of interested persons could be made.

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Thereafter, a Notification under Section 10(3) of the Act dated 21.07.1992 was published in the Gazette on 23.07.1992 in exercise of the powers conferred under Section 10(3) of the Act. Thus, the aforementioned lands were deemed to have vested absolutely with the State Government free from all encumbrances.

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The original file which was produced by the High Court Government Pleader indicates that a communication dated 28.02.1995 was addressed by the Special Deputy Commissioner, Urban Land Ceiling, to the Deputy Commissioner, Bengaluru District. The said

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communication reads as follows:

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“£ÀA:AiÀÄÄJ¯ï¹:(13) 80/91-92 «±ÉÃµÀ f¯Áè¢üPÁjUÀ¼ÀªÀgÀ PÁAiÀiÁð®AiÀÄ, £ À UÀgÀ ¨sÀÆ ¥Àj«Äw, PÀÄªÀiÁgÀ ¥ÁPïð ªÉ¸ïÖ,

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NC: 2024:KHC:42592 WP No. 51700 of 2014

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£ÀA:131, gÉÊ¯Éé ¥ÁågÀ®¯ï gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ-20, ¢£ÁAPÀ:28.2.95

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EªÀjUÉ:

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f¯Áè¢üPÁjUÀ¼ÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ f¯Éè, PÀÈ¶ ¨sÀªÀ£À, ¨ÉAUÀ¼ÀÆgÀÄ.

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ªÀiÁ£ÀågÉ,

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«µÀAiÀÄ: £ÀUÀgÀ ¨sÀÆ ( ¥Àj«Äw ªÀÄvÀÄÛ ¤AiÀÄªÀÄ) PÁ¬ÄÝ 1976 gÀ C£ÀéAiÀÄ ¸ÀPÁðgÀPÉÌ ¤»vÀªÁVgÀÄªÀ ºÉZÀÄÑªÀj d«ÄÃ£ÀÄ ªÁ¸ÀÛªÀ ¸Áé¢üÃ£ÀvÉ ¥ÀqÉAiÀÄÄªÀ §UÉUÉ.

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¶53

¢£ÁAPÀ 23.7.94 gÀAzÀÄ PÀ£ÁðlPÀ gÁdå ¥ÀvÀæzÀ°è ¥ÀæPÀltÂAiÀiÁVgÀÄªÀ ¢£ÁAPÀ:21.7.94 gÀ AiÀÄÄ.J¯ï.¹.80/91-92 £ÉAiÀÄ PÀæªÀiÁAPÀzÀ°è F ¥Áæ¢üPÁgÀªÀÅ ºÉÆÃgÀr¹gÀÄªÀ C¢ü¸ÀÆZÀ£ÉAiÀÄAvÉ GvÀÛgÀ ºÀ½î ºÉÆÃ§½ ZÀ£Àß¸ÀAzÀæ UÁæªÀÄzÀ°è ªÁ¸À EgÀÄªÀ ²æÃ ºÀ£ÀÄªÀÄAvÀ¥Àà ©£ï zÁ¸À¥Àà gÀªÀgÀÄ ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ GvÀÛgÀ ºÀ½î ºÉÆÃ§½ ZÀ£Àß¸ÀAzÀæ UÁæªÀÄzÀ ¸À.£ÀA.1/3, 1/5, 1/4, 1/10, 1/11 ªÀÄvÀÄÛ 1/12 gÀ°ègÀÄªÀ 252000=31 ZÀ.«ÄÁ ºÉZÀÄÑªÀj d«ÄÃ£ÀÄ ¸ÀPÁðgÀPÉÌ ¤»vÀªÁVgÀÄvÉÛ.

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£ÀUÀgÀ ¨sÀÆ (¥Àj«Äw ªÀÄvÀÄÛ PÁ¬ÄÝ) 1976gÀgÀ «¢ü 10(5) gÀAvÉ, WÉÆÃµÀuÁzsÁgÀjUÉ F ¢£À ¸ÀzÀj d«ÄÃ¤£À ªÁ¸ÀÛªÀ ¸Áé¢üÃ£ÀvÉAiÀÄ£ÀÄß ¨ÉAUÀ¼ÀÆgÀÄ «±ÉÃµÀ f¯Áè¢üPÁjUÀ½UÉ PÉÆqÀ®Ä, £ÉÆÃnÃ¸À£ÀÄß PÉÆqÀ¯ÁVzÉ.

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CzÀÝjAzÀ ªÉÄÃ¯É PÁtÂ¹gÀÄªÀ d«ÄÃ¤£À ªÁ¸ÀÛªÀ ¸Áé¢üÃ£ÀvÉ ¥ÀqÉzÀÄ ¸ÀA¨sÀAzsÀ¥ÀlÖ PÀAzÁAiÀÄ zÁR¯ÉUÀ¼À°è £ÀªÀÄÆ¢¹ F ¥Áæ¢üPÁgÀPÉÌ w½¸À®Ä PÉÆÃgÀÄvÉÛÃ£É.

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- 7 - NC: 2024:KHC:42592 WP No. 51700 of 2014

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EzÀPÉÌ ¸ÀA¨sÀA¢ü¹zÀAvÉ «¢ü 10(3) gÀAvÉ ¥ÀæPÀltÂAiÀiÁVgÀÄªÀ, C¢ü¸ÀÄZÀ£É ªÀÄvÀÄÛ ¸ÀPÁðgÀPÉÌ ¤»vÀªÁVgÀÄªÀ d«ÄÃ£ÀÄUÀ¼À £ÀPÉëUÀ¼À£ÀÄß EzÀgÉÆA¢UÉ ¸ÀÆPÀÛ PÀæªÀÄPÁÌV ®UÀwÛ¹zÉ.

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£ÀUÀgÀ ¨sÀÆ ¥Àj«Äw, ¨ÉAUÀ¼ÀÆgÀÄ.

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£ÀPÀ®£ÀÄß «¢ü 10(3) gÀAvÉ ¥ÀæPÀltÂAiÀiÁVgÀÄªÀ C¢ü¸ÀÆZÀ£É ªÀÄvÀÄÛ ¸ÀPÁðgÀzÀ ¤»vÀªÁVgÀÄªÀ d«ÄÃ£ÀÄUÀ¼À £ÀPÉëUÀ¼À£ÀÄß vÀºÀ²Ã¯ÁÝgï zÀQët vÀ®ÆèPÀÄ EªÀjUÉ ¸ÀÆPÀÛ PÀæªÀÄPÁÌV gÀªÁ¤¹gÀÄvÉÛ.

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As could be seen from the above, a notice under Section 10(5) of the Act was said to have been issued on 02.03.1995 to the declarant. However, this notice dated 02.03.1995 is also not available in the records. It could also be gathered from this communication that the Special Deputy Commissioner, Urban Land Ceiling, had indicated that a request had been made to obtain physical possession and thereafter, make the necessary entries in

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the revenue records. As could be seen from this communication dated 08.11.1996, no information had

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been furnished regarding taking over possession of the

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8 - NC: 2024:KHC:42592 WP No. 51700 of 2014

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property had been received. In fact, the last sentence of the letter dated 08.11.1996 would indicate that a direction

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was to be issued to the Tahasildar to secure actual physical possession of the land. This statement would thus indicate that till 08.11.1996, at least physical possession was not taken.

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The original file contains entire communication dated 08.11.1996 which reads as under:

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“ªÀÄgÀÄ eÁÕ¥À£À

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£ÀA:AiÀÄÄJ¯ï¹:(13) 80/91-92

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«±ÉÃµÀ f¯Áè¢üPÁjUÀ¼ÀªÀgÀ PÁAiÀiÁð®AiÀÄ, £ À UÀgÀ ¨sÀÆ ¥Àj«Äw, PÀÄªÀiÁgÀ ¥ÁPïð ªÉ¸ïÖ, £ÀA:131, gÉÊ¯Éé ¥ÀågÀ®¯ï gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:8.11.96

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EªÀjUÉ:

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«±ÉÃµÀ f¯Áè¢üPÁjUÀ¼ÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ f¯Éè, PÀÈ¶ ¨sÀªÀ£À, ¨ÉAUÀ¼ÀÆgÀÄ.

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ªÀiÁ£ÀågÉ,

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«µÀAiÀÄ: £ÀUÀgÀ ¨sÀÆ ( ¥Àj«Äw ªÀÄvÀÄÛ ¤AiÀÄªÀÄ) PÁ¬ÄzÉ 1976 gÀ C£ÀéAiÀÄ ¸ÀPÁðgÀPÉÌ ¤»vÀªÁVgÀÄªÀ ºÉZÀÄÑªÀj d«ÄÃ£ÀÄ ªÁ¸ÀæªÀ ¸Áé¢üÃ£ÀvÉ ¥ÀqÉAiÀÄÄªÀ §UÉUÉ. G¯ÉèÃR: F PÁAiÀiÁð®AiÀÄzÀ EzÉÃ ¸ÀªÀÄ ¸ÀASÉå ¢£ÁAPÀ:28.02.95. *****

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¢£ÁAPÀ 23.07.92 gÀAzÀÄ PÀ£ÁðlPÀ gÁdå ¥ÀvÀæzÀ°è ¥ÀæPÀltÂAiÀiÁVgÀÄªÀ ¢£ÁAPÀ 21.7.92 AiÀÄÄJ¯ï¹ (13)80/91-92

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9 - NC: 2024:KHC:42592 WP No. 51700 of 2014

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£ÉAiÀÄ PÀæªÀiÁAPÀzÀ°è F ¥Áæ¢üPÁgÀªÀÅ ºÉÆgÀr¹gÀÄªÀ C¢ü¸ÀÆZÀ£ÉAiÀÄAvÉ ZÀ£Àß¸ÀAzÀæ UÁæªÀÄzÀ°è ªÁ¸À EgÀÄªÀ ²æÃ ºÀ£ÀÄªÀÄAvÀ¥Àà S/o zÁ¸À¥Àà gÀªÀgÀÄ ¨ÉA. zÀQët vÁ¯ÉÆèÃPÀÄ GvÀÛgÀºÀ½î ºÉÆÃ§½ ZÀ£Àß¸ÀAzÀæ UÁæªÀÄzÀ ¸À.£ÀA.1/3, 1/5, 1/4, 1/11, 1/12 gÀ°ègÀÄªÀ 252000=31 ZÀ.«ÄÁ ºÉZÀÄÑªÀj d«ÄÃ£ÀÄ ¸ÀPÁðgÀPÉÌ ¤»vÀªÁVgÀÄvÉÛ.

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£ÀUÀgÀ ¨sÀÆ (¥Àj«Äw ªÀÄvÀÄÛ PÁ¬ÄzÉ) 1976 gÀ «¢ü 10(5) gÀAvÉ WÉÆÃµÀuÁzÁgÀjUÉ 2.3.95 ¢£ÁAPÀ zÀAzÀÄ ¸ÀzÀj d«ÄÃ¤£À ªÁ¸ÀÛªÀ ¸Áé¢üÃ£ÀvÉAiÀÄ£ÀÄß ¨ÉAUÀ¼ÀÆgÀÄ «±ÉÃµÀ f¯Áè¢üPÁjUÀ½UÉ ªÀ»¹ PÉÆqÀ®Ä, £ÉÆÃnÃ¸À£ÀÄß PÉÆqÀ¯ÁVzÉ.

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ªÉÄÃ¯É PÁtÂ¹gÀÄªÀ d«ÄÃ¤£À ªÁ¸ÀÛªÀ ¸Áé¢üÃ£ÀvÉ ¥ÀqÉzÀÄ, ¸ÀA§AzsÀ¥ÀlÖ PÀAzÁAiÀÄ zÁR¯ÉUÀ¼À°è £ÀªÀÄÆ¢¹ F ¥Áæ¢üPÁgÀPÉÌ w½¸À®Ä ¢£ÁAPÀ 28.2.95 gÀAzÀÄ ¤ªÀÄä PÁAiÀiÁð®AiÀÄPÉÌ ¥ÀvÀæ §gÉAiÀÄ¯ÁVvÀÄÛ. CzÀgÉ vÀºÀ¯ïªÀgÀ«UÉ, ¸ÀzÀj d«ÄÃ¤£À ªÁ¸ÀÛªÀ ¸Áé¢üÃ£ÀvÉ ¥ÀqÉzÀ §UÉÎ ªÀiÁ»w §A¢gÀÄªÀÅ¢®è. F §UÉÎ ¸ÀA§AzsÀ¥ÀlÖ vÀºÀ²Ã¯ÁÝgïgÀªÀjUÉ d«ÄÃ¤£À ªÁ¸ÀÛªÀ ¸Áé¢üÃ£À¥ÀqÉAiÀÄ®Ä £ÀzÉðÃ±À£À ¤ÃqÀ¨ÉÃPÉAzÀÄ PÉÆÃjzÉ.

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¸À»/-

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«±ÉÃµÀ f¯Áè¢üPÁjUÀ¼ÀÄ,

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£ÀUÀgÀ ¨sÀÆ ¥Àj«Äw, ¨ÉAUÀ¼ÀÆgÀÄ.”

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10. There is yet another Unofficial Note available in the

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records, which reads as follows:

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“£ÀA.AiÀÄÄJ¯ï¹ (13)80/91-92 «±ÉÃµÀ f¯Áè¢üPÁjUÀ¼ÀªÀgÀ PÁAiÀiÁð®AiÀÄ, £ÀUÀgÀ ¨sÀÆ ¥Àj«Äw, PÀÄªÀiÁgÀ ¥ÁPïð ªÉ¸ïÖ, £ÀA:131, gÉÊ¯Éé ¥ÁågÀ®¯ï gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:27-06-97.

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C£À¢üPÀÈvÀ n¥ÀàtÂ

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«µÀAiÀÄ: £ÀUÀgÀ ¨sÀÆ (¥Àj«Äw ªÀÄvÀÄÛ ¤AiÀÄªÀÄ) PÁ¬ÄzÉ 1976 gÀ C£ÀéAiÀÄ ¨sÀÆ ¸Áé¢üÃ£ÀªÁVgÀÄªÀ d«ÄÃ£À£ÀÄß ºÀAaPÉ ªÀiÁqÀÄªÀ §UÉUÉ.

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G¯ÉèÃR: ¢£ÁAPÀ 20/5/97, LAQ 76/96/97; ***** 61/96-97 £ÉAiÀÄ

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10 - NC: 2024:KHC:42592 WP No. 51700 of 2014

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PÀæªÀiÁAPÀzÀ ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ vÀºÀ²Ã¯ÁÝgÀgÀ ¥ÀvÀæ.

¶90

G¯ÉèÃRzÀ°è PÁtÂ¹gÀÄªÀ ¥ÀvÀæzÀAvÉ F PÉ¼ÀUÉ £ÀªÀÄÆ¢¹gÀÄªÀ WÉÆÃµÀuÉzÁgÀgÀÄ CªÀgÀ JzÀÄjUÉ £ÀªÀÄÆ¢¹gÀÄªÀAvÉ ºÉÆA¢gÀÄªÀ ºÉZÀÄÑªÀj d«ÄÃ£À£ÀÄß ¢£ÁAPÀ 10.12.96 13.05.96 gÀAzÀÄ ªÁ¸ÀÛªÀ ¸Áé¢üÃ£ÀvÉAiÀÄ£ÀÄß ¥ÀqÉ¢gÀÄvÉÛ. F d«ÄÃ£À£ÀÄß ºÀAaPÉ ¥ÀnÖUÉ ¸ÉÃj¹PÉÆAqÀÄ ªÀÄÄA¢£À PÀæªÀÄ vÉUÉzÀÄPÉÆ¼ÀÄîªÀÅzÀÄ.

¶91

WÉÆÃµÀuÁzÁgÀgÀ ºÉ¸ÀgÀÄ	UÁæªÀÄ	¸À.£ÀA.		«¹ÛÃtð
ªÀÄvÀÄÛ «¼Á¸À				ZÀ.«Ä
ºÀ£ÀÄªÀÄAvÀ¥Àà,S/o	ZÀ£Àß¸ÀAzÀæ	æ 1/3		7395.00
zÁ¸À¥Àà, ZÀ£Àß¸ÀAzÀæ	æ	æ 1/5	æ	æ 7284.31
GvÀÛgÀ ºÀ½î ºÉÆÃ§½, ¨ÉA. zÀ. vÁ®ÆèPï”		1/4 1/10 1/11		6272.00 4249.00
		1/12
			¸À	»/-
		«±ÉÃµÀ £ÀUÀgÀ ¨sÀÆ ¥	f Àj	¯Áè¢üPÁjUÀ¼ÀÄ «Äw, ¨ÉAUÀ¼ÀÆgÀÄ.

¶92

EªÀjUÉ, ºÀAaPÉ ±ÁSÉ.

¶93

As could be seen from the aforesaid note, a statement is made that the possession of the property was taken on 13.05.1996. Though in this Note it is stated that the possession was taken on 13.05.1996, there is no Mahazar or any other document to indicate who took over the possession of the property or as to whether the possession was delivered voluntarily.

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¶95

There, however, is a Mutation Extract dated 13.05.1996 indicating that the revenue entries were mutated in the name of the Government. The relevant portion of Mutation Register Extract reads as follows:

¶96

“«±ÉÃµÀ f¯Áè¢üPÁjUÀ¼ÀÄ £ÀA. AiÀÄÄ.J¯ï.¹.¹ Dgï 82/94-95

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¢£ÁAPÀ: 14/8/95 gÀAvÉ vÁ®ÆèPÀÄ vÀºÀ¹Ã¯ÁÝgï £ÀA.AiÀÄÄ.J¯ï.¹.¹.Dgï.4/95-96 ¢£ÁAPÀ 5/9/95 gÀAvÉ ªÀÄvÀÄÛ «±ÉÃµÀ f¯Áè¢üPÁjUÀ¼ÀÄ G¯ÉèÃRzÀ £ÀA.AiÀÄÄ.J¯ï.¹.(13) 80/91-92 ¢: 2/3/95 gÀAvÉ ZÀ£Àß¸ÀAzÀæ UÁæªÀÄzÀ ¸À.£ÀA.1/3, 1/5, 1/4, 1/10, 1/11, 1/12 MlÄÖ 252000-31 ZÀ.«ÄÁ d«ÄÃ£ÀÄ ¸ÀPÁðgÀzÀ ¸ÀÄ¥À¢ðUÉ vÉUÉzÀÄPÉÆ¼ÀÄîªÀAvÉ

¶98

DzÉÃ±ÀªÁVgÀÄªÀAvÉ zÁR¯É.

¶99

ZÀPï jf¸ÀÖçgï£ÀAvÉ.”

¶100

As could be seen from the aforesaid extract, a statement is made that the possession of the property was taken pursuant to the order dated 14.08.1995 of the Special Deputy Commissioner, order dated 05.09.1995 of the Tahasildar and the order dated 02.03.1995 of the Special Deputy Commissioner. However, the original record does not contain any of the aforementioned orders. In short, the original record that is produced by the

¶101

12 - NC: 2024:KHC:42592 WP No. 51700 of 2014

¶102

Government does not contain any document which indicates that the actual physical possession was taken from the declarant or from his family members.

¶103

It may also be pertinent to state here that pursuant to the vesting of the land under Section 10(3) of the Act, no steps have been taken for payment of the amount for the vacant land acquired as contemplated under Section 11 of the Act. It is to be noticed here that though the vesting occurred on the publication of the notification on 21.07.1992, there is nothing in the original file which is produced to indicate that any steps were taken for payment of the amount for the vacant land acquired.

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At this juncture, it is useful to refer to the decision of the Hon’ble Apex Court in the case of Hari Ram¹ , wherein it is held as follows:

¶105

“ 37. Requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word ‘may’ has been used therein, the word ‘may’ in both

¶106

1 State of Uttar Pradesh vs. Hari Ram, (2013) 4 SCC 280.

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13 -

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the sub-sections has to be understood as “shall” because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word ‘may’ has to be read as ‘shall’.

¶110

x x x

¶111

39. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land.

¶112

x x x

¶113

The mere vesting of the land under sub-section (3) of Section 10 would not

¶114

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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 before 18.3.1999.

¶116

State has to establish that there has

¶117

been a 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) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section

¶118

3 of the Repeal Act . The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act.”

¶119

(emphasis supplied)

¶120

In the present case, the original records that are

¶121

produced does not contain the notice that is said to have been issued under Section 10(5) of the Act calling upon him to surrender possession within thirty days.

¶122

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¶123

The original records also do not contain the notice or

¶124

the proceedings initiated under Section 10(6) of the Act in order to take physical possession. The objections filed by the State as follows:

¶125

“3. …… Thereafter, on 28.02.1995 a notice has been issued calling upon the Petitioner to put in possession of the land in question within 30 days. Subsequently, on 30.05.1996, possession has been taken from the Petitioner. Consequently, on 13.05.1996 mutations RTC also effected to that effect. ….”

¶126

As already extracted above, the notice dated 28.02.1995 was a communication addressed to the Deputy Commissioner, Bengaluru District by the Special Deputy Commissioner, Urban Land Ceiling, in which there is a reference made to the notice that has been issued under Section 10(5) of the Act.

¶127

However, as already observed above, the file does not contain the notice that has been issued under Section

¶128

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¶129

10(5) of the Act. The State has also not filed a copy of this notice along with its counter.

¶130

However, in the subsequent communication dated 08.11.1996, which is also extracted above, though there is a reference to Section 10(5) notice dated 02.03.1995, the same has not been produced. It is therefore clear that there is nothing on record to indicate that any notice was issued and served upon the declarant or his family members.

¶131

More importantly, the notice as required under Section 10(6) of the Act is neither found in the records nor is there any reference to such a notice or a proceeding initiated under Section 10(6) of the Act. It is clear that unless the physical possession of the property is taken, the Government would not get the benefit of the savings provision in the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and the declarant would be entitled to the benefit of repeal under Section 3 of the Repealing Act.

¶132

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¶133

Since there is absolutely no documents produced indicating that the procedure prescribed under subsections (5) and (6) of Section 10 the Act had been complied with, as held by the Apex Court in Hari Ram ( supra ), the contention of the State that the possession was taken cannot be accepted.

¶134

The learned Government Pleader also argued that the order passed under Section 10(1) of the Act was of the year 1988 and the writ petition was filed in the year 2014 and the petition ought to be dismissed only on the ground of delay and laches.

¶135

It has to be stated here that, if the State Government itself has not taken further steps as required under Sections 10(5), 10(6) and 11 of the Act, it cannot put forward the plea of delay and laches.

¶136

The plea of delay and laches would come into play only when a litigant had the opportunity to challenge the order and had chosen not to take immediate steps in that

¶137

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¶138

regard. In the instant case, since there is nothing on record to indicate that the possession was attempted to be taken or was taken as contemplated under Sections 10(5) and 10(6) of the Act, the question of delay and laches would not arise in such a situation.

¶139

It may also be kept in mind that the process of acquisition of land entails the lawful owner to lose the land and if the lawful owner has not been dispossessed in the manner known to law, it will have to be presumed that he continued to be in possession. If a person has remained in undisturbed possession, in a proceeding of this nature, the plea of delay and laches cannot be pressed into service by the State.

¶140

The impleading applicant, who claims to have an interest in the land, raised strenuous objections regarding the maintainability of the writ petition. It was sought to be contended that there is an inordinate delay and the petitioners had resorted to unfair means in getting their names entered in the mutation records by entering into a

¶141

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¶142

collusive compromise decree, which, by itself, indicated that they have had knowledge of taking over of the possession. (CHECK)

¶143

It has to be noticed here that the impleading applicants claim title from the allottees of a Housing Society. In the affidavit, it is admitted that one of the sons of the declarant—Dasappa viz ., D.Ramachandraiah had executed a sale deed dated 04.08.1995 in favour of C.N.Sathyanarayana Sastry who was the Director of the Housing Society viz ., Karmikara Vasathi Nirmana Sahakara Sanga Limited, and C.N.Sathyanarayana Sastry had transferred the land to the Housing Society which had formed a residential layout, wherein sites had been formed and had been allotted to the vendors of the applicants.

¶144

As already noticed above, the land in question stood vested in the State free from all encumbrances on 27.03.1992, consequently, the question of there being a subsisting title with D.Ramachandraiah to sell it to C.N.Sathyanarayana Sastry would not at all rise. In other

¶145

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¶146

words, the applicants claim title to the property on the basis of a sale deed which had been executed after the land had stood vested with the State Government free from all encumbrances.

¶147

In my view, the impleading applicants have no right over the lands in question since their vendors acquired title from a person who himself did not possess the title, as the title stood vested with the State free from all encumbrances.

¶148

The argument that the possession of land was, in fact, taken as observed by the Assistant Commissioner in his order dated 17.04.2015 passed under Section 136(2) of the Karnataka Land Revenue Act, 1964 would not at all be available to the impleading applicants, firstly because they have no right over the lands in question and, secondly, because the Assistant Commissioner, while exercising powers under Section 136(2) of the Karnataka Land Revenue Act, does not have jurisdiction to record a finding that the possession was taken, and, that too, in the

¶149

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absence of the records of the Special Deputy

¶151

Commissioner.

¶152

As already noted above, the records of the Special Deputy Commissioner which have been produced before this Court indicate that there is absolutely no evidence to establish that possession was taken after following the procedure prescribed under Sections 10(5) and 10(6) of the Act.

¶153

Since possession has not been taken, Section 4² of the Urban Land (Ceiling and Regulation) Act, 1999 would come into operation and the proceedings would have to be declared to be abated.

¶154

Since possession of the land has not been taken, the savings Clause 3(1)(a)³ of the Urban Land (Ceiling and

¶155

2 Abatement of legal proceedings

¶156

4. All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:

¶157

Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.

¶158

3 3. Saving .- (1) The repeal of the principal Act shall not affect-

¶159

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¶161

Regulation) Act, 1999 will not enure to the benefit of the State Government.

¶162

35. Consequently, this Writ petition is allowed and the

¶163

impugned order dated 07.03.1988 and the impugned notification published in the gazette dated 30.05.1990 are

¶164

quashed .

¶165

In view of the disposal of the petition, all pending interlocutory applications, if any, stand disposed of.

¶166

Sd/(N S SANJAY GOWDA) JUDGE

¶167

¶168

List No.: 1 Sl No.: 60

¶169

(a) The vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over by the state government or any person duly authorized by the state government in this behalf or the competent authority;

Sri D Hanumanthappa v. the State of Karnataka

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Sri D Hanumanthappa v. the State of Karnataka

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