B K Ganapathy Vs State of Karnataka

D. DEVARAJ URS TRUCK TERMINALS LIMITED REPRESENTED BY ITS MANAGING DIRECTOR 3^RD FLOOR, SHANTHINAGAR, TTMC B BLOCK K H ROAD, SHANTHINAGAR,. BANGALORE-560 027.

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…RESPONDENTS

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(BY SRI. HANUMANTHARAYA LAGALI, AGA FOR R1; SRI. T.P. VIVEKANANDA, ADVOCATE FOR R2 AND R3; SMT. SUSHMA NAVEEN, ADVOCATE FOR R4) V/O DATED:27.06.2022

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A.CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN ISSUING THE FINAL NOTIFICATION DATED 01.02.1997; B. DECLARE THAT THE ACQUISITION OF THE SCHEDULE PROPERTY HAS LAPSED BY OPERATION OF SEC. 27 OF THE KUDA ACAT AND SEC. 24(2) OF THE 2013 ACT AND CONSEQUENTLY DECLARE THAT THE PRELIMNARY NOTIFICATION DATED.30.11.1995 ISSUED U/S 17 OF THE KUDA ACT VIDE ANNEXURE -A DATED 13.02.1997 AND FINAL NOTIFICATION U/S 19(1) OF THE KUDA ACT VIDE ANNEXURE - B HAVE LAPSED; ISSUED BY R2 AND R3 OR IN THE ALTERNATIVE DECLARE THAT THE RESPONDENTS HAVE NO RIGHT TO UTILIZE THE SCHEDULE PROPERTY INVIEW OF SEC. 101/2013 ACT AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioners claiming to be the children of one B.A. Kaveriappa, who was the erstwhile owners of the land in Sy.No.112, measuring 1 acre of Bandipalya Village, Kasaba Hobli, Mysore Taluk and District (petition schedule property) which has been acquired by the respondentAuthority for formation of Devraj Urs Truck Terminal are before this Court seeking following relief:

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''a) CALL for the records which ultimately resulted in issuing the Final Notification dated 1.2.1997 bearing No. NAE/490/APV/96;

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b) DECLARE that the acquisition of the Schedule Property has lapsed by operation of Section 27 of the KUDA Act and Section 24(2) of the 2013 Act and consequently DECLARE that the Preliminary Notification No.LAQ(5)CR53/95-96 dated 30.11.1995 issued under Section 17 of the KUDA Act Vide Annexure 'A' dated 13.02.1997 and final notification under Section 19(1) of the KUDA Act vide Annexure'B' have lapsed issued by respondent Nos.2 and 3 or in alternative DECLARE that the Respondents have no right to utilize the Schedule Property in view of Section 101 of the 2013 Act;

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c) ISSUE an Order, Direction or Writ in the nature of Mandamus, directing the Respondents not to take possession of the Schedule Property or interfere with the rights of the Petitioners to be in possession and enjoyment of the Schedule Property;

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d) ISSUE an Order, Direction or Writ in the nature of Mandamus, directing the Respondents to delete the name of the MUDA from the Khatha Extracts of the Schedule Property and enter the names of the Petitioners in respect of the Schedule Property; and

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e) ISSUE such other reliefs which this Hon'ble Court may deem fit in the facts and circumstances of the case, in the interest of justice.''

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Case of the petitioners is that:

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2.1 Their father was the absolute owner in

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possession and enjoyment of the petition schedule property having purchased the same in terms of deed of

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sale dated 25.03.1970. Their father passed away on 25.08.1975 leaving behind the petitioners and their mother Smt. Seethamma Kaverappa to succeed to the petition schedule property. Upon his demise, the name of the mother of the petitioners was mutated in the revenue records in respect of the petition schedule property. The respondent Nos.1 and 2 had no right to acquire the land for the purpose for formation of the Truck Terminal, inasmuch as the Karnataka Urban Development Authority Act, 1987 (hereinafter referred to as 'the Act, 1987') did not provide any provisions for framing of the scheme for

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the said purpose. As such, the respondents have no power to acquire the land without there being any provisions or the scheme under Section 15 and 16 of the Act, 1987.

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2.2 That the Mother of the petitioner as a khatedar

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had filed the objections to the notification and without even considering the said objections, the respondent No.1 had sent the scheme for approval and State Government without looking into the said aspect of the matter had caused publication of the final notification on 01.02.1997. Thus the approval accorded for the acquisition of the property was without application of mind.

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2.3 That on 31.10.1997, the petitioner had given a detailed representation stating that the land belonging to the petitioners consisted of commercial crops such as 'sapota', 'coconut' and 'mango' etc., and that the said land completely being a green land, was not suitable for the purpose for formation of the Truck Terminal. After the said representation, the respondent-Authorities did not

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take possession of the petition schedule property. That a ring road has been formed by the respondent-Authority running through the land adjacent to the petition schedule property. Though the respondent-Authorities had taken possession of the property which is situated on the other side of the ring road, petitioners are continuing to be in possession of the petition schedule property till date.

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2.4 Neither the mother of the petitioners nor the petitioners have received the notice as contemplated under Section 12(2) of the Land Acquisition Act, 1894 and they have also not received any compensation. Mother of the petitioners had made an application on 22.11.2002, seeking deletion of the petition schedule property from the acquisition, as the same was not put to use for the purpose to which it was acquired, on the premise that in view of the operation of Section 27 of the Act, 1987 the

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scheme had lapsed. Similar representations dated 16.01.2014, 11.03.2014 and 11.02.2015 seeking to

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denotify the land, have met with no result. Hence, the petition.

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Sri. R. Madhusudhana Reddy, learned counsel for

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the petitioner taking this Court through the records forming part of the writ petition, more particularly the additional documents produced along with an application dated 27.06.2022, submitted that the respondentauthorities have taken possession of the land in Sy.No.112, total extent of which measures about 6 acres. However only an extent of 2 acres belonging to one Srinivas has been utilised by the respondent-Authorities and rest of the land has not been utilised. He refers to a Communication that was issued by the Under Secretary, Department of Urban Development to the Commissioner, Mysore Urban Development Authority and submits that a recommendation was made through the said Communication as early as on 04.09.1988, to reconsider the acquisition of the said land as the same has been used for agricultural purposes and that it was not feasible to

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utilise for the intended purpose. He refers to an award proceedings produced at Annexure-X and points out that even as per the recordings made by the respondent-SLAO award notice has not been personally served on the petitioners or their mother. He refers to the Schedule to the deed of sale dated 07.11.2008, produced at Annexure-

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Z and submits that only an extent of 2 acres and 25 guntas of land in Sy.No.112 has been conveyed by the respondent-MUDA in favour of D. Devaraj Urs Truck Terminal Ltd., which only indicates that the rest of the land has not been utilised and the possession of the same continued with the petitioners. He also refers to an Endorsement dated 13.02.2013, produced at Annexure-

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ZA, which contains details of 16 acres and 20 guntas acquired of which only 2 acres and 20 guntas of land is stated to have been utilised.

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Thus, referring to these documents learned

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counsel submitted that the possession of the land still continues with the petitioners, scheme has not been

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implemented within the period of 5 years as contemplated under Section 27 of the Act, till date. As such, by operation of law the acquisition has to be declared to have been lapsed. Hence seeks for allowing of the petition.

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Per contra, learned counsel for the respondentMUDA taking this Court through the statement of objections, at the outset submits that petition filed by the petitioners suffers from delay and laches. Admittedly the acquisition was completed as far as back in the year 1988 by passing of the award and issuance of the notification under Section 16(2) of the Land Acquisition Act, 1894 and there has been no objections filed by the petitioners. He points out to the award proceedings produced at Annexure-R2, more particularly to Page No.6 of the said proceedings wherein there is reference of petitioners participating in the award proceedings through their GPA holders. He further refers to Award Notice dated 12.02.1998 produced at Annexure-R3 wherein the compensation of Rs.5,61,415/- was determined. He also

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refers to the Mahazar which is found at the overleaf of the said Notice with regard to service of the said notice, by way of affixture onto the house bearing No.19, situated in the said property. Thus, he submits that award notice was properly and effectively served on the petitioners. He further refers to an application filed under Section 31(2) of the Land Acquisition Act, 1894 before the Civil Judge (Sr.Dn), Mysore in L.A.C.No.371/2005, pointing that the compensation has been deposited before the Court. He also refers to an application under Section 18 of the Land

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Acquisition Act, 1894 produced at Annexure-R2 stated to have been filed by the mother of the petitioners requesting the respondent-SLAO to make the reference to the Civil Judge (Sr.Dn), Mysore for determination of just and proper compensation for the land acquired. He also refers to an application under Section 18(3)(b) of the Land Acquisition Act, stated to have been by the mother of petitioners herself seeking enhancement of compensation. Annexure-R8 is the order dated 04.11.2008, passed by the

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I Additional Senior Civil Judge and CJM., Mysuru in

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L.A.C.No.371/2005, wherein the petitioner did not pursue

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the matter resulting in closure of the same. He also refers to a Survey Sketch produced at Annexure-R9 and points out the portion shown in the green and pink colors consisting of Sy.Nos.145, 143/1, 144, 143/2 and portion of land in Sy.No.112 having been utilised for the purpose of formation of D. Devaraj Urs Truck Terminal Ltd., and Ring Road. Thus referring to the aforesaid documents, learned counsel for the respondent-MUDA submits that petition apart from suffering the delay and laches would

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also require to be dismissed on the count petitioners having accepted the acquisition had sought for reference of the matter under Section 18 and for determination of compensation under Section 18(3)(b) of the Land Acquisition Act, 1894. He submits that once a petitioner had sought for enhancement of compensation, the question of acquisition would not arise.

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Adverting to the contention regarding lapsing of

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the scheme, learned counsel for the respondents submits

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that the scheme has been substantially implemented which is the only requirement under the law, even as evident from the sketch produced at Annexure-R9. In support of his contention, he refers to the Order passed by the Division Bench of this Court passed in W.A.No.1900/2013, pertaining to the notification dated 28.11.1996 issued under the Act, 1987 acquired for the very same purpose of establishing heavy Truck Terminal, in respect of the lands situated adjacent to the land subject matter of the present petition, wherein this Court considering the identical and similar contentions urged by

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the learned counsel for the petitioners therein had confirmed the order that was passed by the Co-ordinate Bench of this Court in rejecting the petition. Thus, he submits that petitioners have not made out any grounds warranting interference at the hands of this Court and seeks for dismissal of the petition.

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Heard and perused the records.

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There is no dispute of the fact that the respondent-MUDA having issued the preliminary notification dated 30.11.1995 and final notification dated 01.02.1997 for acquiring the properties including the petition schedule property belonging to the petitioners for the purpose of formation of truck terminal. Though in the petition the petitioners have been contended that they have not been paid the compensation and during the arguments learned counsel for the petitioners vehemently contends that no notice was served regarding the award proceedings, it is appropriate to refer to the re-joinder filed by the petitioners to the statement of objections of the respondents filed on 15.01.2025, wherein at paragraph No.5, while adverting to the averments regarding the award proceedings, the petitioners have categorically admitted as under:

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''It is true that the third Petitioner herein appeared on behalf of the mother of the Petitioner and gave a statement that the Schedule Property consist of fruit bearing trees and the said land is required for the Petitioners family as this is the only property of the Petitioners and further this is also part of the

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green coverage of the Mysore City. The Award was passed without considering the said Representation and also the same is against law and the circulars passed by the first Respondent government against acquisition of the lands which are having fruit bearing trees. The copy of the said Award is produced by the Petitioners at Sl.No.2 along with Application dated 11.07.2016. However, the Petitioners have not named it as an Annexure.''

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This categoric admission on the part of the

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petitioners would defy their case of they not having served

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with any notice of award proceedings or they not being aware of any award having been passed. As regards, the mother of the petitioners seeking reference under Section 18 as per Annexures-R5 to R8, expect bare denial as made

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at the paragraph Nos.11 and 12 of the said re-joinder stating that the signatures found thereon were not the signatures of the mother of the petitioners. Neither any averments is made nor any materials is produced to rebut the contention raised by the respondent-Authorities regarding mother of the petitioner seeking enhancement of compensation. As such, the law down by the Hon'ble Apex Court in the case of MUNICIPAL CORPORATION

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OF GREATER BOMBAY vs. THE INDUSTRIAL

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DEVELOPMENT & INVESTMENT CO. PVT. LTD. & ORS

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reported in AIR 1997 SC 482 would be applicable in the present case, wherein it has been held that when the land owner who has chosen to file an application seeking enhancement of compensation, he cannot be permitted to question the validity of the acquisition proceedings.

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Adverting to the contention of the learned counsel for the petitioners with regard to the lapsing of the scheme under Section 27 of the Act, 1987, it is appropriate to extract the said provision:

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''27. Authority to execute the scheme within five years.- Where within a period of five years from the date of publication in the official Gazette of the declaration under sub-section (1) of section 19, the Authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of section 36 shall become inoperative.''

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Perusal of the above provision would indicate that

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the petitioners is required to make out a case that there has been no substantial implementation of the scheme on account of the failure on the part of the respondent-

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Authority. Except stating that out of 6 acres of the land in Sy.No.112, only 2 acres and 25 guntas of land is put to use by the respondent-Authorities, nothing else is stated. On the contrary, the Sketch produced by the respondentMUDA as per Annexure-R9 would indicate that apart from 2 acres and 25 guntas of land in Sy.No.112, 6 acres of land in Sy.No.145, 4 acres and 26 guntas of land in Sy.No.143/1, 38 guntas of land in Sy.No.143/2. 2 acres and 11 guntas of land in Sy.No.144 has been used for the purpose of establishment of truck terminal. That apart, an extent of 2 acres and 37 guntas of land in Sy.No.144, 1 acre of land in Sy.No.143/2 and 39 guntas of land in Sy.No.112 has been used for formation of Ring Road. Thus, the contention of the petitioners that the scheme has not been substantially implemented, has no substance and same requires to be rejected.

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The Division Bench of this Court in its order dated 01.02.2023 passed in W.A.No.1900/2013, while adverting to the similar contentions urged by the land owners in

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respect of acquisition made by the respondent-MUDA of the land situated adjacent to the lands of the subject matter of the present petition, has held that the petitioners therein had approached the Court after lapse of 14 years from the date of issuance of final notification. In the instance case as well, admittedly the final notification has been issued on 01.02.1997, award amount was deposited in the year 2002 and present petition is filed in the year 2015, which is after lapse of 13 long years. Even if lapsing of scheme has to be considered the same may

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have to be reckoned from the date of final notification, which would have, as taken note of the Division Bench in its order passed in the aforesaid writ appeal, expired in the year 2002. The petitioners having approached this Court after 13 years, cannot be said to be vigilant of their rights.

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Petition thus lacks merits apart from suffering from delay and laches. Accordingly same is dismissed.

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Learned counsel for the petitioners submits that petitioners are still in possession of the property and are

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cultivating the same. Hence, insist that some protection regarding the possession be granted. It is equally a settled position of law that if any person remains in acquired land which has vested with the authorities free from all encumbrances, his possession would be that of the trespasser. In that view of the matter, it is made clear, if the petitioners are found to be in possession of the acquired land, the respondent-Authorities may adopt due process of law for their eviction.

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SD/- (M.G.S. KAMAL) JUDGE

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RL

B K Ganapathy v. State of Karnataka

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B K Ganapathy v. State of Karnataka

Case brief

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