Shanta W/O Yallappa Dhakaluche Vs the State of Karnataka

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO. 113892 OF 2019 (ULC)

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BETWEEN

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SHANTA W/O. YALLAPPA DHAKALUCHE, AGE: 80 YEARS, OCC: HOUSEHOLD, R/O: H.NO.378, TANAJI GALLI, ANGOL, BELAGAVI. SINCE DEAD BY LR’S.

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1A. VILAS S/O. YALLAPPA DHAKALUCHE, AGE: 60 YEARS, OCC: SERVICE, R/O: H.NO.378, TANAJI GALLI, ANGOL, BELAGAVI.

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Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA

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1B. SHANKAR S/O. YALLAPPA DHAKALUCHE, AGE: 50 YEARS, OCC: SERVICE, R/O: H.NO.378, TANAJI GALLI, ANGOL, BELAGAVI.

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1C. PANDU S/O. YALLAPPA DHAKALUCHE, AGE: 45 YEARS, OCC: SERVICE, R/O: H.NO.378, TANAJI GALLI, ANGOL, BELAGAVI.

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1D. SUJATA W/O. KRISHNA DESURKAR, AGE: 35 YEARS, OCC: HOUSEHOLD, R/O: H.NO.378, TANAJI GALLI, ANGOL, BELAGAVI.

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RAJASHREE D/O. SUBHASH DHAKALUCHE,

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AGE: 35 YEARS, OCC: NIL, R/O: H.NO.378, TANAJI GALLI, ANGOL, BELAGAVI.

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AMIT S/O. SUBHASH DHAKALUCHE, AGE: 30 YEARS, OCC: NIL, R/O: H.NO.378, TANAJI GALLI, ANGOL, BELAGAVI.

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BHAGYASHREE D/O. SUBHASH DHAKALUCHE, AGE: 25 YEARS, OCC: HOUSEHOLD, R/O: H.NO.378, TANAJI GALLI, ANGOL, BELAGAVI.

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...PETITIONERS

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(BY SRI. PRASADKUMAR B. GUNAKI, ADVOCATE)

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AND

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THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, M.S. BUILDNIG, BENGALURU-01.

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THE DEPUTY COMMISSIONER, BELAGAVI-590016.

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THE TAHSILDAR TALUK BELAGAVI, DIST: BELAGAVI-590016.

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THE BELAGAVI URBAN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS COMMISSIONER, ASHOK NAGAR, BELAGAVI-590016.

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THE DEPUTY CONSERVATOR OF FORESTS, SOCIAL FORESTRY DIVISION, ZILLA PANCHAYAT, BELAGAVI-590016.

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…RESPONDENTS

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(BY SRI. V.S. KALASURMATH, AGA FOR R1-R3 AND R5; SRI. M.A. HULYAL, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE ULC PROCEEDINGS INITITATED BY THE COMPETENT AUTHORITY IN ULC/D/SR 2703 STAND ABATED IN VIEW OF SECTION 4 OF THE ULC REPEAL ACT 1999; DECLARE THAT THE KABJA PANCHANAMA ANNEXURE-E AND KABJA PAVATI ANNEXURE-F ARE NULL AND VOID AB INITIO; ISSUE A WRIT OF MANDAMUS TO THE RESPONDENTS NO.2 TO RESTORE THE NAMES OF THE PETITIONERS IN R.S.NO.203/4/4 MEASURING 3035.10 SQ.MTRS. OF ANGOL AND 30 GUNTHAS IN R.S.NO.701 OF ANGOL, BELAGAVI; GRANT ANY OTHER RELIEF DEEMED FIT IN THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY; DIRECT THE RESPONDENT NO.4 TO PAY COMPENSATION TO THE PETITIONERS AT THE PRESENT MARKET VALUE FOR THE EXTENT OF 2 ACRES 9 GUNTHAS, 10 ANNAS AND 11 PAISE IN R.S.NO.701 OF ANGOL BELAGAVI AS REVEALED BY ANNEXURE-J1 BY A WRIT OF MANDAMUS; DIRECT THE RESPONDENT NO.5 TO DEMOLISH THE FOREST GUEST HOUSE AND HANDOVER VACANT POSSESSION OF 30 GUNTHAS OF LAND IN R.S.NO.701 OF ANGOL TO THE PETITIONERS BY A WRIT OF MANDAMUS.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 06.02.2025, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

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CAV ORDER

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(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

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The Petitioners are before this Court seeking for the following reliefs:

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a) Declare that the ULC proceedings initiated by the Competent Authority in ULC/D/SR 2703 stand

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abated in view of section 4 of the ULC repeal act 1999;

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b) Declare that the Kabja Panchanama Annexure-E and Kabja Pavati Annexure-F are null and void ab initio;

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c) Issue a Writ of Mandamus to the Respondents No.2 to restore the names of the petitioners in R.S.No.203/4/4 measuring 3035.10 sq.mtrs. of angol and 30 gunthas in R.S.No.701 of Angol, Belagavi;

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d) Grant any other relief deemed fit in the circumstances of the case in the interest of justice and equity;

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e) Direct the Respondent No.4 to pay compensation to the petitioners at the present market value for the extent of 2 Acres 9 Gunthas, 10 Annas and 11 paise in R.S.No.701 of Angol Belagavi as revealed by Annexure-J1 by a writ of mandamus;

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f) Direct the Respondent No.5 to demolish the forest guest house and handover vacant possession of 30 Gunthas of land in R.S.No.701 of angol to the petitioners by a writ of mandamus.

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The petitioners claim that one Yallappa S/o Devappa Dhakaluche was the owner of the vacant land in R.S.No.701, measuring 3 acres 3 guntas and R.S.No.203/4/4, measuring 30-guntas situated at Angol, Belagavi District. He expired on 29.09.2004, leaving behind petitioner No.1 who is his wife, petitioners No.1A to 1D who are his children,

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petitioners No.2 to 4 are the children of one Subhash Dhakaluche, who is brother of Yallappa Dhakaluche.

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Shri Prasadkumar Gunaki., learned counsel appearing for the petitioners submits that

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3.1. upon the coming into force of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ‘ULC Act’ for brevity), the said Yallappa Dhakaluche filed a statement on 13.08.1976 before the competent authority under subsection (1) of Section 6 of the ULC Act. The competent authority held that the declarant held excess land of 10241.31 sq.mtrs in R.S.No.701 and 3035.10 sq.mtrs in R.S.No.203/4/4 of Angol village, Belagavi District.

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3.2. Thereafter, a notification under subsection (1) of Section 10 of the ULC Act came to be issued on 09.11.1985 and subsequently, a notification

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under subsection (2) of Section 10 of the ULC Act came to be issued inviting objections from interested persons holding that the declarant held the above excess land.

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3.3. On 06.10.1986, the competent authority issued a notification under subsection (3) of Section 10 of the ULC Act, to the effect that the excess vacant land as determined above stood vested in the State Government free from all encumbrances.

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3.4. On 08.03.1988, a notice under subsection (5) of Section 10 of the ULC Act came to be issued calling upon the declarant to hand over possession to the Revenue Inspector.

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3.5. Thereafter, a panchanama was prepared and possession of the excess vacant land was taken on 22.03.1988. The petitioners contend that the entire action by the authorities, is improper.

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The land continues to be vested with the petitioners, the possession has not been taken by the concerned authorities. Even if the possession is taken, the same is improperly taken. No notice having been issued under subsection (5) of Section 10 of the ULC Act, the Revenue Inspector was not authorized to take possession. It is only the competent authority, who could take possession. On taking over possession of the excess vacant land, the declarant has not been paid adequate compensation.

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3.6. The authorities have taken advantage of the litigation between the declarant and his family members, the State has taken over the possession on paper creating a right in the State without the actual possession being taken

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over.

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3.7. Be that as it may, since no compensation has been paid, it is contended that the proceedings under the ULC Act have not been completed. As such, the petitioner would be entitled to the lands covered under the aforesaid survey numbers on account of the Urban Land (Ceiling And Regulation) Repeal Act, 1999 (hereinafter referred to as ‘ULC Repeal Act, 1999’ ).

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3.8. In this regard, reliance is placed on Section (3) of the ULC Repeal Act, 1999, which reads as under:

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3. Savings – (1) the repeal of the principal Act shall not affect-

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(a) the vesting of any vacant land under subsection (3) of section 10, 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;

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(b) the validity of any order granting exemption under sub-section (1)of section 20 or any action taken therunder , notwithstanding any judgment of any Court to the contrary;

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(c) any payment made to the State Government as a condition for granting exemption under sub- section (1) of section 20.

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(2) Where-

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(a) any land is deemed to have vested in the State Government under sub-section (3) of section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

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(b) any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

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3.9. The land not having been taken possession of, the compensation not having been paid, the land would continue to vest with the landowners/declarants and as such, the said land would have to be restored back to the landowners. In this regard, an application came to be filed by the petitioners on 18.01.2019, no action has been taken by the respondents and it is in that background that a direction is sought for by the petitioner.

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3.10. The submission of Sri Prasadkumar Gunaki., learned counsel for the petitioners is that the

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Revenue Inspector does not have the power to take possession. In this regard, he relies upon the decision of a Division Bench of this Court in the case of Mangalore Urban Development Authority vs Leelavathi and Others¹ , more particularly para no. 9 thereof, which is reproduced hereunder for easy reference:

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“9. Assuming that the Revenue Inspector took possession of the land, no document is produced to show that he was the competent authority under Section 10(6) of ULC Act to take possession of the land which is declared as surplus urban land under Section 10(3) of the Act. The language used therein is "the competent Authority may take possession of the vacant land or cause it to be given to the State Government or to any person duly authorised by such State Government in this behalf...." There is no document in the original file of the State Government to show that possession of the land was taken by the competent Authority and given to the State Government. Even if the alleged mahazar is construed as the document regarding taking of possession of the land in question, possession was not given to Government but was given to Urban Development Authority. Viewed from any angle, it cannot be said that possession of the land was taken by competent authority from the owner of the land in question and given to Government.”

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1 ILR 2008 KAR 5059

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3.11. By referring to Leelavathi's case (supra), he submits that the Revenue Inspector not being the competent authority, has no authority to take possession of the land and even if the State were to contend that the Revenue Inspector has taken possession, the same is without any basis.

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3.12. He relies upon the decision of the Hon’ble Apex Court in the case of Shakuntala Yadav and others v. State of Haryana and others² , more particularly para No.13 thereof, which is reproduced hereunder for easy reference:

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“13. There being no Rojnama to show that the physical possession had already been taken, nor any pleadings in that regard, we find it difficult to appreciate the submission made by the learned counsel for the State that the possession had already been taken and handed over to HUDA. Unless the property is taken possession of, in accordance with law, there arises no question of handing over the property to HUDA. Symbolic possession, as has been held by this Court in (2012) 1 SCC 792 titled as Raghbir Singh Sehrawat versus State of

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2 AIR 2016 SC 1612

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Haryana and others, will not serve the purpose.”

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3.13. By relying on Shakuntala Yadav's case, he submits that without a proper mahazar being conducted, it cannot be contended by the authorities that the possession has been taken over, when the petitioners claim that possession continues to be with them.

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3.14. He places reliance upon the decision of the Division Bench of this Court in the case of Narayana S/o Ganesh Bable @ Kamati and

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others v. The State of Karnataka and

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others³ , more particularly para no. 20 thereof, which is reproduced hereunder for easy

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reference:

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“20. It is well settled law that the Court exercising the power under Articles 226 and 227 of the Constitution of India can mould the relief in the interest of justice and equity, keeping in mind the subsequent events/changed circumstances of the case. As contended by the learned counsel for the BUDA, if the third party rights are created and

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3 W.A.No.100002/2018

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the lands are developed, it would not be appropriate to direct the respondents to restore the lands to the appellants de-hors the rights accrued to the third parties and more particularly, without providing an opportunity of hearing to them. If the developmental activities taken by the BUDA creating the private/third party interest is established, it would be justifiable for respondent No.2 to examine the aspect of granting compensation for the lands in question by passing an appropriate award. In such circumstances, in view of the law declared by the Constitutional Bench of the Hon’ble Supreme Court in S.L.P. (C) Nos.9036-9038 of 2016 (D.D. 06.03.2020) (Indore Development Authority V/s Mahoharlal and others), Section 24(1)(a) of the Act, 2013 would attract since no award has been made as on 01.01.2014. However, these aspects have to be addressed by the Deputy Commissioner considering the materials placed/to be placed by the parties regarding the actual possession taken vis--vis the development of the land in question as aforesaid. Hence, the matters are remitted to the 2nd respondent to examine whether the appellants are entitled to the benefit of saving clause under Section 3(2) of the Repeal Act, 1999 or for the compensation in accordance with law.”

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3.15. By relying on Narayana's case (supra), he

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submits that this Court has the necessary powers under Article 226 and 227 of the Constitution of India to mould the reliefs sought for in the interest of justice. Even if third-party rights were created, it would be for the

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authority to make payment of just

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compensation.

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3.16. He relies upon the decision of the Division Bench of this Court in the case of Seetharam S/o Late Bachappa and others v. The State of Karnataka and others⁴ , more particularly para no. 20 thereof, which is reproduced hereunder for easy reference.

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“20. On the contrary, in Bangalore City Cooperative Housing Society limited (supra) the Supreme Court of India found that there was a middleman for the purpose of acquisition and, therefore, the entire acquisition was vitiated on the ground of fraud. We hold that Byanna (supra) has no application in these cases. As fraud vitiates everything, delay is inconsequential. In identical circumstances when acquisition was found to be vitiated on the grounds of fraud and malafides, resulting from the use of middleman to influence the Government, the Apex Court held that the delay was of no consequence. It was categorically held that when the acquisition was found to be totally malafide and not for bonafide purpose, the grounds of delay and acquiescence had no substance. All the facets of fraud get attracted to the case at hand.”

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4 WA No.818-849 of 2014 C/w WA No.958 of 2014

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3.17. By relying on Seetharam 's case (supra), he

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submits that when there is fraud or mala-fides on part of the acquiring authority like both the competent authority in the present case and the BUDA, the actions taken by them would have to be set-aside and even if it were to be contended that there is delay on part of the petitioner in approaching this Court, that delay would have to be condoned.

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3.18. He relies upon the decision of the Hon’ble Apex Court in the case of G. Manikyamma and Ors v. Roudri Coop. Hous. Society Ltd and Ors⁵ , more particularly paranos. 40 and 41 thereof, which are reproduced hereunder for easy reference:

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“40. Until the procedure contemplated under Section 10 is followed, the land which is determined to be the excess vacant land of any landholder does not either vest in the Government or the possession thereof can be taken by the State.

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5 Civil Appeal No.10536 of 2014 (Arising out of SLP (C) No.38017/2013)

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There is nothing on record before us to establish that the land in question was duly taken possession by the Government under the provisions of the Act. Until possession is duly taken as explained above, property still remains private property notwithstanding the determination that such property is “land in excess of the ceiling limit” under the Act. The persons in possession of such property, whatever be the nature of their possessionwhether they are encroachers or persons such as the first respondent Society - cannot be evicted by force. All this requires a thorough examination of the respective rights of the various parties and the authority of the State to deal with the property in question.”

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3.19. By relying on G. Manikyamma 's case, he submits that until the procedure under Section 10 of the ULC Act is followed, the vacant land of any landowner does not vest with the Government nor can the possession be said to be taken over by the State. The actual possession continuing to be with that of the owner, the property still remains private property.

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3.20. He relies on the decision of this Court in the case of ITI Employees’ Housing CoOperative Society Limited, Bangalore v.

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Venkatappa⁶ , more particularly para no. 19 thereof, which is reproduced hereunder for easy reference.

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“19. For vesting of land absolutely in the State Government free from all encumbrances under Section 16 of the Land Acquisition Act, the Deputy Commissioner must take actual possession of the land since all interests in the land are sought to be acquired by it. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rules laying down that what act would be sufficient to constitute taking possession of the land. What the Act contemplates as a necessary condition of vesting of land in the State Government under Section 16 of the Act is only the taking of actual possession of the land and such possession would have to be taken as the nature of the land admits of. The manner of actual taking of possession of land is not prescribed under the Act. One of the accepted modes of taking possession of the acquired land is recording of a memorandum or a panchanama by the Deputy Commissioner (or the LAO) in the presence of witnesses signed by them and that would constitute taking possession of the land as it is impossible to take physical possession of the acquired land. The presence of owner or the occupant of the land is not necessary to effectuate the taking of possession as it is common knowledge that invariably in most of the cases, the owner or the occupier of the land may not co-operate in taking possession of the land. It is also strictly not necessary as a matter of fact or legal requirement that notice should be given to the owner or the occupier of the land that

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6 2010 (4) Kar. L.J. 19 (FB),

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possession would be taken at a particular time. The fact of such taking possession may be notified by the Deputy Commissioner (or the LAO) in the Official Gazette as envisaged under Section 16(2) of the Land Acquisition Act and such notification shall be evidence of fact of taking such possession for the vesting of the land in the State Government. Under Section 16 of the Land Acquisition Act, the Deputy Commissioner (or the LAO) has been authorised to take possession of the land regarding which an award has been made by him under Section 11 of the Act and thereupon the land shall vest in the Government free from all encumbrances.”

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3.21. By relying on the Venkatappa’s case (supra), he submits that for the land to absolutely vest in the State Government free of any encumbrances, the Deputy Commissioner must take actual possession of the land since all the interest in the land was sought to be acquired by it. Without the same being complied, the State cannot contend that possession has been taken over.

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3.22. He relies upon the decision of this Court in the

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case of Naganna (deceased) by L.Rs and

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Others v. State of Karnataka and

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Others⁷ ,more particularly Para nos. 9, 10, 11 and 12 thereof, which are reproduced hereunder for easy reference:

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“9. Undisputedly, the Authorities Act came into force with effect from 16th of November, 1987. Section 11A came to be incorporated into the Acquisition Act, as noticed by me earlier, with effect from 24th of September, 1984. Therefore, when the Authorities Act came into force, the provisions of the Acquisition Act contained Section 11A. Sub-section (1) of Section 36 of the Authorities Act extracted above, provides that acquisition of the land under the Authorities Act otherwise than by agreement, shall be regulated by the provisions as far as they are applicable by the Acquisition Act. Sub-section (1) of Section 19 of the Authorities Act, in my view, is similar to the declaration to be made under sub-section (1) of Section 6 of the Acquisition Act. The provisions contained in sub-section (3) of Section 19 of the Act is similar to the provisions contained in sub-section (3) of Section 6 of the Act. There is no provision made in the Authorities Act providing for passing of the Award, taking possession of land and the procedure provided for determination of compensation. On the other hand, subsection (3) of Section 36 of the Authorities Act indicates that the vesting of the land acquired is with the State Government under Section 16 of the Acquisition Act. Therefore, I am unable to accept the submission of the learned Government Advocate and also Sri Raya Reddy that the Authorities Act is a self-contained Code which fully provides for the procedure for

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7 1998 (5) Kar.L.J. 658

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acquisition of the land and, therefore, the provisions of the Acquisition Act cannot be made applicable. Since there is no provision made in the Authorities Act providing for passing of the award, taking possession of land, vesting of the land and determination of the quantum of compensation to be paid, etc., in view of sub-section (3) of Section 36 of the Act, I am of the view that the provisions contained in Sections 9, 11, 11A, 16, etc., of the Acquisition Act are applicable in respect of the acquisition made under the Authorities Act. As rightly contended by the learned Counsel for the petitioners, since the Authorities Act being a subsequent Act, if the intention of the legislature was to exclude Section 11A of the Acquisition Act, it would have been specifically stated so in the Authorities Act. When it is not specifically excluded and when Section 36(1) of the Authorities Act specifically provides that acquisition of the land under the Authorities Act otherwise than by agreement within or without the urban area shall be regulated by the provisions, so far as the Land Acquisition Act is concerned, it is not possible to take the view that the provisions of Section 11A of the Acquisition Act cannot be made applicable. The decision of the Supreme Court in the case of H. Narayanaiah, supra, referred to by the learned Counsel for the petitioners, in my view, fully supports his contention. It is useful to refer to paragraph 22 of the said decision which reads as hereunder:

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"There was some argument on the meaning of the words "so far as they are applicable", used in Section 27 of the Bangalore Act. These words cannot be changed into "insofar as they are specifically mentioned" with regard to the procedure in the Acquisition Act. On the other hand, the obvious intention, in using these words, was to exclude only those provisions of the Acquisition Act which become inapplicable because of any special procedure prescribed by the Bangalore Act (e.g. Section 16) corresponding with that found in the

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Acquisition Act (e.g. Section 4(1)). These words bring in or make applicable, so far as this is reasonably possible, general provisions such as Section 23(1) of the Acquisition Act. They cannot be reasonably construed to exclude the application of any general provisions of the they are specifically mentioned". They amount to laying down the principle that what is not either expressly, or, by a necessary implication, excluded must be applied".

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(emphasis supplied)

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Therefore, I have no hesitation to hold that Section 11A of the Acquisition Act applies in respect of the acquisition made under the provisions of the Authorities Act.

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Now, the next question that would arise for consideration is whether the award was made within two years from the date of the declaration made under sub-section (1) of Section 19 of the Authorities Act. Admittedly, the declaration under sub-section (1) of Section 19 of the Authorities Act was made on 30th of January, 1992. The award was admittedly passed on 10th of March, 1997. Therefore, the award passed is admittedly beyond two years from the date of the declaration made under sub-section (1) of Section 19 of the Authorities Act.

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Section 11-A of the Acquisition Act mandates the Land Acquisition Officer to make an award under Section 11 within a period of two years from the date of the declaration and further provides that if no award is made within that period, the entire proceedings for acquisition of the land would lapse. It is relevant to point out that Section 11-A of the Acquisition Act not only casts an obligation on the Land Acquisition Officer to make an award under Section 11 within a period of two years from the date of the declaration, but also provides for the consequences, if such

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declaration is not made. As observed by me earlier, the consequences of not making an award is that the entire proceedings for acquisition of the land would lapse. Therefore, in my view, the provisions contained in Section 11-A of the Acquisition Act are mandatory in nature. The consequences of not passing the award within the time prescribed is that statutorily acquisition proceedings stand lapsed. Therefore, since there is no dispute and there cannot be any dispute that the award was not passed within a period of two years from the date of the declaration made under sub-section (1) of Section 19 of the Act, I am of the view that the entire acquisition proceedings stood lapsed. In my view, I am also supported by the declaration of the Supreme Court in the case of Abdul Majeed Sahib, supra, wherein at paragraph 8 of the said judgment, the Supreme Court has observed as follows:

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"Section 11-A was brought on statute by Amendment Act 68 of 1984. It was notorious that the State, after publication of declaration under Section 6 went on delaying for years, to pass the awards putting obstruction to the owner of the land for enjoyment; resultantly, loss and undue disadvantage ensued to the owner of the land. To mitigate such hardship, the Parliament introduced Section 11A and directed the Land Acquisition Officer to make the award within two years from the date of publication of last of the steps under Section 6(2) publishing the declaration under Section 6. As a consequence, the Land Acquisition Officer is statutorily under an obligation, at the pain of invalidation of the acquisition itself, to make the award within two years unless it falls within one of the provisos or the explanation added thereto. In this case, neither the proviso nor the Explanation stands attracted to the facts. Consequently, since the Land Acquisition Officer did not make the award within two years from the date of the declaration, viz.,

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June 17, 1988, the entire acquisition shall stand lapsed".

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(emphasis supplied)

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In the light of the discussion made above, I am of the view that the entire acquisition proceedings statutorily stood lapsed for the default in not passing the award within the time prescribed.”

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3.23. He relies upon the decision of this Court in the case of V.A. Narasimha Reddy and Others vs. Government of Karnataka through Secretary, Urban Development Department

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Others⁸ , more particularly para nos. 16, 17, 18, 20 and 21 thereof, which are reproduced hereunder for easy reference:

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Learned Counsel for the respondents contend that on earlier occasion this Court in W.P. No. 44949/2003 and connected matters disposed on 6.6.2006 upheld the validity of acquisition proceedings. After lapse of several years, the petitioners have approached this Court. On the ground of delay and latches the writ petitions are liable to be dismissed. In support of this contention reliance is placed on some decisions. I decline to accept this contention of Learned Counsel for the

¶148

8 ILR 2012 KAR 3571

¶149

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respondents. The Supreme Court in State of Punjab v. Gurudayal Singh3, held as under:

¶152

“Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentime overlaps motives, passions and satisfactions - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of power is fulfillment of legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the Court calls it a colourable exercise and is undeceived by illusion.”

¶153

In Greater Noida Industrial Development Authority v. Devendra Kumar , it is held as under:

¶154

“We are not unmindful of the plight of large number of persons, who have made investment by booking flats etc., but, at the same time, it is impossible to ignore that the landowners and their transferees have been deprived of their property and the only source of livelihood in a most arbitrary and mala fide manner without following the procedure established by law. It will be grave in justice to the people belonging to the latter category if the acquisition impugned before the High Court is sustained only with a view to save the investment made by those who are aspiring to acquire some property from the builders. However, it is made clear that those who have paid money to the builders for booking flats etc., shall be entitled to get back the amount

¶155

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along with interest at an appropriate rate and if the builders refuse to repay the amount, then they shall be free to avail appropriate legal remedy.”

¶157

In Vyalikaval House Building Co-Operative Society v. V. Chandrappa , it is held as under:

¶158

“Land Acquisition Act, 1894 - Sections 4 and 6 - Mala fides and fraud - Whole acquisition proceedings earlier found by High Court and Supreme Court to be vitiated by mala fides and fraud and the appellant society, for which the acquisition was made, was found to be not a bona fide housing society -Writ petition filed before High Court by respondent landowners after 14 years challenging the acquisition of their lands for appellant Society on the same reasoning - Held, when the acquisition found to be totally mala fide and not for public purpose, ground of delay in filing the writ petition or the petitioner having acquiesced in the proceedings by participating in inquiry under Section 5-A has no substance - Further, even if respondents accepted any amount offered by appellant in an effort to settle out the acquisition, when the entire acquisition emanated from the tainted notification, any settlement on the basis thereof cannot be validated - When the basic notification under which the present land is sought to be acquired stood vitiated then whatever money that appellant had paid, was at its own risk and once the notification goes, no benefit could be derived by appellant - Constitution of India - Article 226 - Delay and latches - Mala fides or fraud - Delay condonable.”

¶159

Whenever the State and its agencies initiate action for acquiring lands, the land owners and the general public will be under the impression that the same is for a genuine public purpose, rules, regulations and procedure is followed. At a later stage, if it

¶160

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comes to light that rules, regulations and procedure is not followed, no uniform policy is adopted, pick and choose policy is adopted and for extraneous considerations some lands are deleted from acquisition, then the question of delay and latches is not a ground to dismiss the writ petitions. The cause of action will arise from the date of knowledge of fraud. In the instant case, the petitioners came to know about the deletion of certain lands, sale of certain lands and levy of betterment charges in respect of certain lands through Information Act. Immediately the writ petitions are filed. Therefore the delay and latches is not a ground to non suit the petitioners.

¶162

In the preliminary notification, it was proposed to acquire 1532.17 acres. In the final notification it was restricted to 750 acres. From these notifications it is clear that more than 50% of the lands are left out from acquisition. If the reasons assigned by the respondents for deletion of certain lands are true, then they issued preliminary notification without inspecting the spot, conducting the survey of the area, without studying the ground reality, the authorities by sitting in a room, marked the extent of land on a map. This casual approach by the custodians of the power is a fraud on the power.

¶163

The BDA Act is a special law for acquisition of land for planned development of Bangalore City. Any scheme formulated under the Act shall specify the immediate need, extent of lands required for proposed sites and other civic amenities like roads, parks, play grounds, community purpose, drains etc. The material on record discloses that nearly 78% of the land proposed in the scheme are left from acquisition and only 22% of the land is acquired. Even out of this 22% land acquired, there are certain proposals pending before the Government for denotification. It is not shown by the respondents as to how they will implement the project. No material is placed on

¶164

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record to show that the layout plan is approved by the Government. Several laws relating to Greenbelt area, Comprehensive Development Plan, Bangalore-Mysore Infrastructure Corridor Area, Minor Forest Area etc., are violated. There may be several other illegalities and acts of abuse of power which are not brought on record. The key attributes of good governance like transparency, responsibility and accountability are totally absent and writ large in the instant case. In the circumstances, I am of the considered opinion that the matter requires a thorough enquiry.

¶166

Karnataka Lokayukta Act contemplates the initiation of action against the person guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as a public servant. The failure on the part of public servant to act in accordance with the norms of integrity and conduct, which ought to be followed, amounts to lack of integrity. Prima-facie, I am of the opinion the matter requires investigation by Lokayukta.”

¶167

3.24. By relying on V.A.Narsimha Reddy 's case, he submits that unless the notification of subsection (2) of Section 16 of the Land Acquisition Act is issued, the question of possession being vested with the State would not arise.

¶168

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¶169

3.25. He relies upon the decision of the Hon’ble Apex

¶170

Court in the case of Sharda Devi v. State of

¶171

Bihar and Another⁹ , more particularly para nos. 31 and 36 thereof, which are reproduced hereunder for easy reference:

¶172

“31. We have entered into examining the scheme of the Act and exploring the difference between reference under Section 18 and the one under Section 30 of the Act as it was necessary for finding out answer to the core question staring before us. The power to acquire by the State the land owned by its subjects hails from the right of eminent domain vesting in the State, which is essentially an attribute of sovereign power of the State. So long as the public purpose subsists, the exercise of the power by the State to acquire the land of its subjects without regard to the wishes or willingness of the owner or person interested in the land cannot be questioned. (See Scindia Employees' Union v. State of Maharashtra [(1996) 10 SCC 150] , SCC para 4 and State of Maharashtra v. Sant Joginder Singh Kishan Singh [1995 Supp (2) SCC 475] , SCC para 7.) The State does not acquire its own land for it is futile to exercise the power of eminent domain for acquiring rights in the land, which already vests in the State. It would be absurdity to comprehend the provisions of the Land Acquisition Act being applicable to such land wherein the ownership or the entirety of rights already vests in the State. In other words, the land owned by the State on which there are no private rights or encumbrances is beyond the purview of the

¶173

9 AIR 2003 SC 942

¶174

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¶175

provisions of the Land Acquisition Act. The position of law is so clear as does not stand in need of any authority for support. Still a few decided cases in point may be referred since available.

¶176

36. In Collector of Bombay v. Nusserwanji Rattanji Mistri [AIR 1955 SC 298], the decisions in Esufali Salebhai case [ILR (1910) 34 Bom 618 : 12 Bom LR 34] and Aiyavu Pillay case [9 IC 341 : (1911) 2 MWN 367 : 9 MLT 272] were cited with approval. Expressing its entire agreement with the said views, the Court held that when the Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition because there can be no question of the Government acquiring what is its own. An investigation into the nature and value of that interest is necessary for determining the compensation payable for the interest outstanding in the claimants but that would not make it the subject of acquisition. In the land acquisition proceedings there is no value of the right of the Government to levy assessment on the lands and there is no award of compensation therefor. It was, therefore, held by a Division Bench of Judicial Commissioners in Mohd. Wajeeh Mirza v. Secy. of State for India in Council [AIR 1921 Oudh 31 : 24 Oudh Cas 197] that the question of title arising between the Government and another claimant cannot be settled by the Judge in a reference under Section 18 of the Act. When the Government itself claims to be the owner of the land, there can be no question of its acquisition and the provisions of the Land Acquisition Act cannot be applicable. In our opinion the statement of law so made by the learned Judicial Commissioners is correct.”

¶177

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3.26. In Sharda Devi's case (supra), he submits that when a government possesses an interest on the land, which is subject matter of acquisition, that interest would be outside of such acquisition since there would be no question of the Government acquiring its own land.

¶179

3.27. On that basis, he submits that if at all BUDA had acquired any land and the land vested with BUDA, the question of the State once again acquiring the said land, would not arise. On that basis, he submits that there is no acquisition, which has been made by BUDA and the land continues to be free of acquisition. The proceedings under the ULC Act not being completed, the land is to be restored to the petitioner.

¶180

Sri V.S. Kalsurmath, learned AGA appearing for Respondent-State would submit that

¶181

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4.1. The present proceedings under the ULC Act have not stood abated in terms of Section 4 of the ULC Repeal Act 1999.

¶183

4.2. The petitioners have not produced the earlier proceedings in Appeal No.304 of 2005 before the Karnataka Appellate Tribunal whereunder the Karnataka Appellate Tribunal had remitted the matter to the competent authority taking into consideration the objections that could be filed by the appellants therein.

¶184

4.3. The appellants were the entire family of Dhakaluche. Yallappa Devappa Dhakaluche being the first appellant, Maruti Devappa Dhakaluche, being the second appellant, Nakul Devappa Dhakaluche, being the third appellant, Madhav Fakira Dhakaluche, being the fourth appellant and the rest of them being the children of the deceased Rama Dhakaluche.

¶185

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¶186

32 -

¶187

4.4. The entire family having challenged the matter before the Karnataka Appellate Tribunal together, no member of the family can now contend that the notification was issued only in the name of Yallappa Devappa Dhakaluche. His submission is that the notification was issued in

¶188

the name of Yallappa Devappa Dhakaluche since he was the Kartha of the family and representing the family.

¶189

4.5. He refers to the earlier order passed dated 21.12.1993 passed in WP No.18407 of 1990, which had been filed by Fakira Devappa Dhakaluche, Rama Devappa Dhakaluche, Maruti

¶190

Devappa Dhakaluche, Vithal Devappa Dhakaluche and Nakul Devappa Dhakaluche challenging the orders dated 27.03.1989 and 26.05.1990, which came to be withdrawn on 21.12.1993 reserving their right to seek for enhancement of compensation under Section

¶191

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¶192

18 of the Land Acquisition Act, 1894. Thus, he submits that the predecessors of the petitioners’ having categorically sought for enhancement of compensation, the question of now contending that there is no acquisition, would not arise.

¶193

4.6. He refers to a letter dated 26.04.1994 issued by Vithal Devappa Dhakaluche on behalf of all his brothers including Yallappa Devappa Dhakaluche categorically stating that the land of petitioners’ family in R.S.No.701 measuring 3 acres and 3 guntas had been acquired by the SLAO BUDA, Belagavi for allotment of plots to the public. In respect of which, compensation of Rs.5,73,727.80 was awarded. The said amount was with the SLAO, BUDA.

¶194

4.7. It is further contended that after the passing of the award, notice under subsection (2) of Section 12 having been issued under the Land

¶195

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Acquisition Act and the award passed, the amount is still lying with the SLAO and has not been withdrawn.

¶197

4.8. Though an application had been moved before the SLAO, BUDA, Belagavi requesting to pay the compensation, the SLAO has not paid the amount. In the said letter, it has been categorically stated that the Government of Karnataka has taken the land on 08.03.1988, declaring the said land to be in excess and a mutation entry has been carried out in furtherance thereof.

¶198

4.9. It is in that background, it was contended that the proceedings before the ULC would not arise and the entire compensation would have to be paid to the family instead of the State. He submits that thereafter, on 05.01.1999, an amount of Rs.1,11,307.70 has been paid as compensation, which has been received by the

¶199

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¶200

Dhakaluche family. The said amount is in full and final settlement of the compensation liable to be paid.

¶201

4.10. Subsequently, a writ petition had been filed by the Dhakaluche family in WP No.38088 of 2002 challenging the order passed by the Divisional Commissioner-Appellate Authority, this Court held that the rights of the parties have to be determined both by the competent authority as well as the Appellate Authority in accordance with the provisions of the ULC Act and set-aside the order of abatement passed by the Appellate Authority and remanded the matter to KAT for fresh consideration.

¶202

4.11. The KAT vide its order dated 28.02.2007, remitted the matter to the competent authority to dispose the matter in accordance with law. The competent authority, vide order dated 19-

¶203

10/11.2009, directed the payment of

¶204

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¶205

compensation as per the prevailing market value for non-agriculture plots in the area. The said order has attained finality, not having been challenged. He therefore submits that the declaration of excess land having been confirmed, a large portion of the said land having been acquired for BUDA, an award having been passed by the SLAO, compensation having been crystallized, the compensation payable in respect of the land of the petitioners having been paid, the petitioners cannot now seek for the reliefs as sought for.

¶206

Shri M.A. Hulyal, learned counsel appearing for BUDA would submit that

¶207

5.1. The above petition has been filed suppressing material facts.

¶208

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5.2. By following the due procedure under Section 6 of the ULC Act, the excess area held by the declarant has been determined.

¶210

5.3. During the pendency of the proceedings under the ULC Act, the City Improvement Board, Belagavi, the predecessor of BUDA had issued a notification of Section 15(b) of the Karnataka Improvement Boards Act, 1976 for acquisition of the lands in Angol village including R.S.No.701 measuring 3 acres and 3 guntas, a declaration under Section 18 of the said Act, was published on 09.04.1980. During the pendency of the land acquisition proceedings and after conclusion of the proceedings under the ULC Act 1976, the excess land has been handed over to the Improvement Board, Belagavi.

¶211

5.4. The SLAO has declared an award on 12.04.1990 in respect of the remaining land

¶212

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measuring 19 guntas and 12 anas, which was in the possession of the family of Vithal Devappa Dhakaluche and the balance land of 2 acres and 1 gunta in the name of Government of Karnataka. In furtherance of the said award, the SLAO took actual possession by drawing a panchanama on 12.06.1990 and caused the entry in the revenue records vide M.E.No.11483 dated 22.06.1990.

¶214

5.5. Vithal Devappa Dhakaluche received the award amount of 19 guntas and 12 annas, compensation in respect of the excess land could not be paid in view of the stay order in WP No.38088/2002.

¶215

5.6. It is contended that the CITB, Belagavi had formed residential sites, roads, civic amenities in the entire land acquired including R.S. No.701, the said sites having been allotted to various allottees and they have put up

¶216

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construction of their respective houses. Insofar as R.S.Nos.701, 705, 706 and 710 are

¶218

concerned, those have been earmarked for open space. Merely because, they have been marked as open space would not mean that possession has not been taken, nor the property not used. The open space forms an integral part of the layout.

¶219

5.7. The proceedings under the ULC Act, 1976 having culminated, they are binding on the petitioners’ and as such, he submits that the above petition not making out any grounds, is required to be dismissed.

¶220

Heard Sri Pasadkumar B. Gunaki., learned counsel appearing for the petitioners, Sri V.S. Kalasurmath., learned Additional Government Advocate for respondents No.1 to 3, 5 and Sri M.A. Hulyal., learned counsel appearing for respondent No.4. Perused the papers.

¶221

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¶222

The points that would arise for the consideration of this Court are as under:

¶223

i) Whether the proceedings under the ULC Act 1976 have culminated and attained finality?

¶224

ii) Whether the petitioners’ would be entitled for compensation of the excess land determined by the competent authority under the ULC Act 1976?

¶225

iii) Whether on account of the excess land which has been determined by the competent authority being acquired for the CITB Belagavi upon the land being declared excess, would they be entitled for compensation on account of the acquisition proceedings?

¶226

iv) Whether the petitioners would be entitled for a mandamus to restore their names in respect of R.S.No.203/4/4 and R.S.No.701 of Angol, Belagavi?

¶227

v) What order?

¶228

I answer the above points as under:

¶229

Answer to Point No.1: Whether the proceedings under the ULC Act 1976 have culminated and attained finality?

¶230

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¶231

9.1. The submission of Sri.Prasadkumar Gunaki,

¶232

learned counsel for the petitioners is that the proceedings under ULC Act 1976 have not culminated and have not attained finality, therefore, the repeal of the ULC Act would enure to the benefit of the petitioners. It is not in dispute that the competent authority had held that the declarant, that is, the family of the petitioners held excess land of 10241.31 square meters in RS No.301 and 3035.10 square meters in RS No.203/4/4 of Angol village, Belagavi district. Notification under Subsection (1) of Section 10 of the ULC Act had been issued on 9.11.1985 and a notification under Subsection (2) of Section 10 having been issued thereafter is also not in dispute., so, also it is not in dispute that on 6.10.1986 a notification under Subsection (3) of Section 10 of the ULC Act had been issued and thereafter a notification under Subsection (5) of Section 10

¶233

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had been issued on 8.3.1988 calling upon the petitioner to hand over the possession to the revenue inspector, thus I’am of the considered opinion that the submission of Sri.Prasadkumar Gunaki learned counsel for the petitioners can not be accepted.

¶235

9.2. The further contention of Sri.Prasadkumar

¶236

Gunaki is that the Revenue Inspector was not authorized to take possession, it is only the competent authority who could take possession. Therefore, Subsection (5) of Section 10 has not been complied with and it is on that basis that it is contended that the proceedings have not attained finality.

¶237

9.3. Learned AGA has contended that the petitioners have suppressed various documents and events from this court inasmuch as an appeal in appeal No.304/2005 had been filed by the family members of the petitioners wherein they had

¶238

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¶239

admitted that the notification had been issued in the name of Yallappa Devappa Dhakluche. Another writ petition having been filed in WP No.18407/1990, the said writ petition had been withdrawn on 21.12.1993 reserving right to seek for enhancement of compensation under Section 18 of the LA Act. Thus, he submits that a challenge having been made by the family members which enures to the benefit of the entire family, only reservation being made for enhancement of compensation. At this stage, it cannot be contended that the proceedings under the ULC Act have not been completed when the writ petition had been withdrawn way back on 21.12.1993 reserving the rights aforesaid.

¶240

9.4. He submits that a large portion of the land in the aforesaid survey numbers having acquired for formation of a layout by the BUDA,

¶241

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¶242

compensation has been awarded in relation thereto and it is only that compensation which the petitioners would be entitled to receive. Apart from the compensation as regards the land which has been held to be in excess after the said acquisition, as regards which there is a recommendation which has been made by the Regional Commissioner for awardal of compensation as per the market value, which the petitioners have not collected. He therefore, submits that the petitioner cannot take advantage of their own wrongs and seek to press the repeal of the ULC Act into service.

¶243

9.5. Sri.Hulyal, learned Counsel appearing for respondent No.4 would submit that during the pendency of the proceedings under the ULC Act

¶244

against the petitioners, the City Improvement

¶245

Board, Belagavi, the predecessor of BUDA had issued a notification under Section 15B of the

¶246

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¶247

Karnataka Improvement Boards Act, 1976 for acquisition of the land in Angol village including RS No. 701 measuring 3 acres 3 guntas. A declaration also being published on 9.4.1980 under Section 18 of the said Act. The excess land under the ULC Act 1976 had been handed over to the Improvement Board for formation of the layout. The SLAO had declared an Award on 12.04.1990 and it is the SLAO who took possession of the land acquired by drawing a Panchnama on 12.06.1990 in pursuance of which necessary mutation entry was made on 22.06.1990 as per ME No.11483. Since there was a writ petition filed by Vithal Devappa Dhakaluche in WP No.38088/2002, the compensation amount was not received. However, the CITB Belagavi formed residential sites, roads, civic amenities in the entire land acquired in R.S.701, entire land for which the layout had been designated. Though some of

¶248

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¶249

the lands in RS number 701, 705, 706 and 710 have been earmarked as open space, the same would not enure to the benefit of the petitioners since the open space is a composite part of the layout plan of the BUDA and the said open space is required for better enjoyment of the site owners in the layout.

¶250

9.6. It is in this background that it would have to be considered as to whether the proceedings under the ULC Act 1976 have culminated and attained finality.

¶251

9.7. This is a peculiar case where there are two actions which have occurred simultaneously. One is the declaration of excess land under the Act of 1976, the other is the acquisition of land under the Karnataka Improvement Trust Board Act. Both of them having been taken up parallelly, the acquisition being completed, the excess land also being part of the acquisition

¶252

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¶253

has been taken possession of and handed over to the BUDA and thereafter BUDA has formed a layout.

¶254

9.8. In so far as the excess land under the ULC Act

¶255

is concerned, the contention of the Counsel for the Petitioner is that the revenue officer was not authorized to receive the possession. This aspect by itself could have helped the petitioners if not for the petitioners having filed proceedings in W.P. No. 18407/1990 and having withdrawn the same on 21.12.1993 reserving right to seek for enhancement of compensation. Once the family members of the petitioners withdrew the said writ petition which had challenged the orders dated 27.03.1989 and 26.05.1990 and only right reserved being for compensation, the question of the petitioners claiming that the Revenue Inspector was not authorized and or possession was not

¶256

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¶257

taken cannot be sustained. The facts and documents on record would categorically establish the possession having been taken over, the layout having been formed, sites in the said layout having been allotted to various persons which cannot be now sought to be contradicted by the petitioners.

¶258

9.9. Thus, I answer point number 1 by holding that the proceedings under the ULC Act 1976 in the present matter have culminated and have attained finality.

¶259

10. ANSWER TO POINTs NO.2 and 3: Whether the petitioners would be entitled for compensation of the excess land determined by the competent authority under the ULC Act, 1976?

¶260

And

¶261

Whether on account of the excess land which has been determined by the competent authority being acquired for the CITB Belagavi

¶262

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¶263

upon the land being declared excess, would they be entitled for compensation on account of the acquisition proceedings?

¶264

10.1. The compensation which would have to be looked into in the present matter is two-fold. One as regard the land which has been acquired on behalf of the CITB, Belagavi, now the BUDA, and the other being the excess vacant land after such acquisition.

¶265

10.2. Insofar as the acquisition is concerned, an award has been passed determining the compensation payable and it is as such clear that the petitioners would be entitled for the compensation as determined under the award subject to any challenge made to the said award.

¶266

10.3. Insofar as the compensation in respect of the excess vacant land is concerned, there is already a recommendation made for

¶267

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¶268

compensation to be paid on a commercial basis,

¶269

which the petitioners would be entitled to. Thus, the compensation that the petitioners would be entitled to on both the above counts would continue to be their entitlement which they cannot be deprived of. The respondents would be liable to make payment of the due compensation amounts in terms of the above.

¶270

11. ANSWER TO POINT No.4: Whether the petitioners would be entitled for a mandamus to restore their names in respect of R.S. No.203/4/4 and R.S. No.701 of Angol, Belagavi?

¶271

11.1. In view of my finding to point No. 1 that the proceeding under the ULC Act 1976 have culminated and have attained finality and also on account of the finding that the petitioners would be entitled for compensation, both under the ULC Act, as also under the Improvement Trust Board Act, the question of the petitioners’ names being required to be restored in respect of RS No.203/4/4 and RS No. 701 of Angol

¶272

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village, Belagavi would not arise. There being no vested right in their favour, the acquisition having been completed, so also the proceedings under the ULC Act having culminated, the question of issuance of any mandamus to restore their name in respect of the aforesaid survey numbers would not arise.

¶274

12. ANSWER TO POINT No.5 : What Order?

¶275

In view of my answer to points No.1 to 4 above, no grounds being made out, the petition stands dismissed.

¶276

SD/(SURAJ GOVINDARAJ) JUDGE

¶277

List No.: 19 Sl No.: 1

Shanta W/O Yallappa Dhakaluche v. the State of Karnataka

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Shanta W/O Yallappa Dhakaluche v. the State of Karnataka

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