IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 5TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL Nos.1941-1944 OF 2016 (LA-UDA) BETWEEN:
1. MYSORE URBAN DEVELOPMENT AUTHORITY JHANSI RANI LAXMI BAI ROAD MYSURU-570 005 REPRESENTED BY ITS COMMISSIONER.
2. SPECIAL LAND ACQUISITION OFFICER MYSURU URBAN DEVELOPMENT AUTHORITY JHANSI RANI LAXMI BAI ROAD MYSURU-570 005.
... APPELLANTS (BY SRI. VIVEKANANDA T P, ADVOCATE) AND:
1. STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT VIKAS SOUDHA BENGALURU -560 001 REPRESENTED BY ITS SECRETARY.
2. K C VEERABHADRAPPA AGED ABOUT 69 YEARS SON OF CHENNAVEERAPPA AGRICULTURIST RESIDENT OF KATEGAGENALLI VILLAGE MYSURU-570 001.
3. SMT. K. MAHADEVAMMA AGED ABOUT 45 YEARS WIFE OF U. S. SIDDALINGAPPA HOUSE WIFE RESIDING AT NO.155 13TH CROSS, ANIKETHAN ROAD C AND D BLOCK KUVEMPU NAGARA MYSURU-570023.
4. SHIVAPPA AGED ABOUT 66 YEARS SON OF LATE PUTTABASAPPA AGRICULTURIST RESIDING AT NO.475 2ND MAIN ROAD 8TH CROSS, "E" BLOCK J. P. NAGAR MYSURU-570023.
5. U. S. SIDDALINGAPPA AGED ABOUT 50 YEARS SON OF SIDDALINGAYYA AGRICULTURIST RESIDING AT NO.155 13TH CROSS ANIKETHAN ROAD C AND D BLOCK KUVEMPUNAGARA MYSURU-570023.
... RESPONDENTS (BY SRI. VENKATESH P DALWAI, ADVOCATE FOR RESPONDENT Nos.2 TO 5 SRI. LAXMINARAYAN, AGA. FOR R1) THESE APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION Nos. 19164-167/16 DATED 22/04/2016.
THESE APPEALS COMING ON FOR PRONOUNCEMENT THIS DAY, S.G. PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 22.04.2016 passed by the learned Single Judge in W.P.Nos.19164-19167 of 2016, by which the writ petitions are allowed, declaring that the Scheme has been abandoned and acquisition proceedings initiated against the petitioners’ lands stand quashed, the respondents No.2 and 3 are in appeal.
2. The petitioners filed writ petitions challenging the preliminary notification bearing No.LAQ(1)CR 98/2006-07 dated 03.07.2009 issued by the second respondent therein under Section 17(1) of the Karnataka Urban Development Authorities Act, 1987 (hereinafter referred to as ‘the Act’ for short). The petitioners claim that they are the absolute owners in possession of Sy.No.60/10 measuring 2 acres, Sy.No.34 measuring 2 acres, Sy.No.60/P5 measuring 2 acres, Sy.No.60 Block 61(New P3) measuring 2 acres, Sy.No.60 Block 15 (new Block No.10-P-2) measuring 30 guntas, Sy.No.60 Block 58 measuring 30 guntas and Sy.No.60 Block 63 (New Block 3-P1) measuring 30 guntas situated at Keregehalli village, Jayapura Hobli, Mysuru Taluk having purchased the same in the year 2006. It is contended in the writ petitions that apart from issuing preliminary notification under Section 17(1) of the Act, no further steps have been taken for issuance of final notification, even though, as on the date of filing of the writ petitions, seven years had elapsed. It is stated that within a reasonable time, the final notification ought to have been issued and as the final notification has not been issued within a reasonable time, the notification has lapsed. The learned Single Judge on hearing the parties to the lis, by order dated 22.04.2016 allowed the writ petitions declaring that the Scheme has been abandoned and acquisition proceedings initiated against the petitioners’ lands stand quashed. However, the learned Single Judge has reserved liberty to file an application to recall the order in case order is passed in favour of the respondents in a pending writ petitions challenging the same notification by other land owners. Aggrieved by the said order, the respondents No.2 and 3 in the writ petitions are in appeal.
3. Heard the learned counsel for the appellants, learned counsel for the respondents No.2 to 5 and perused the writ appeal papers.
4. Learned counsel for the appellants submits that no opportunity was provided to them to file their statement before the learned Single Judge and learned Single Judge hurriedly passed the order. It is his contention that the writ petitions were filed on 04.04.2016 which came up for preliminary hearing on 05.04.2016. The learned Single Judge directed the petitioners to serve the copy of the writ petitions on one of the panel counsel. Copy of the writ petitions was served on 20.04.2016 and when the writ petitions were listed before the Court on 22.04.2016 for service of notice to respondent No.1, the learned Single Judge passed the impugned order allowing the writ petitions. There was no opportunity to instruct its counsel as well as to file statement of objections. It is further submitted that similar writ petitions challenging the very same notification are pending wherein the learned Single Judge had granted time to file objections. Further, the learned counsel for the appellants contends that the respondents had explained the reasons for delay in the process of acquisition in the writ appeals. Taking note of the same, the writ appeals may be allowed remanding the matter to the learned Single Judge for fresh consideration. The learned counsel for the appellants further submits that time constraints of land acquisition are not applicable to the Act under which, acquisition proceedings are initiated. In support of his contention, he would rely on the decision of the Hon'ble Supreme Court in Civil Appeal Nos.7661-63 of 2018 decided on 03.08.2018, BENGALURU DEVELOPMENT AUTHORITY AND ANOTHER V/S. THE STATE OF KARNATAKA AND ANOTHER.
5. Per contra, learned counsel appearing for the petitioners therein submits that the learned Single Judge has rightly allowed the writ petitions since, only question before the learned Single Judge was as to whether the respondents had issued final notification under Section 19 of the Act. Having noticed that even after seven years from the date of issuance of notification under Section 17(1) of the Act, as no final declaration has been published, the learned Single Judge has rightly held that the scheme has been abandoned. The learned counsel invites attention of this Court to Section 27 of the Act to say that where after final declaration also if the scheme is not substantially implemented within a period of five years from the date of publication in the official gazette, the declaration under sub-Section (1) of Section 19, the scheme would lapse. Hence, they pray for dismissal of the writ appeals.
6. Having heard the learned counsels for the parties, the only question which falls for consideration is whether the order of the learned Single Judge requires interference in the facts and circumstances of the case.
7. The petitioners are the land owners whose lands are sought to be acquired by the respondents for developmental scheme called “Ravindranath Tagore Nagara II Stage” by the second respondent. The respondents issued notification under 17(1) of the Act on 03.07.2009. The writ petitions are filed on 04.04.2016. The main contention of the petitioners was that even after lapse of seven years, no final declaration is issued in respect of the lands covered under notification issued on 03.07.2009. Because of issuance of notification under 17(1) of the Act in respect of their lands, they are deprived of enjoying their lands and they are also deprived of developing their lands. Section 17(1) of the Act would enable the respondents to draw up notification stating the facts of a scheme, statements specifying the land which is proposed to be acquired. The said notification shall be forwarded to the local authority as well as the same shall be published in two consecutive issues of local news papers. Notice also shall have to be served on individual land owners, requiring such persons to show cause as to why such acquisition should not be made. Thereafter by following the procedure under Section 18 of the Act, final declaration shall be published under Section 19 of the Act. As contended by the learned counsel for the appellants, no time constraint is prescribed under the Act. The Hon'ble Supreme Court in the decision cited by the learned counsel for the appellants supra dealing with the Bengaluru Development Authority Act, 1976 at paragraphs 17 has held as follows:
“17.This Court has emphasized that the primary object of the BDA Act is to carry out planned development. The State Act has provided its own scheme. The time constraints of the land acquisition are not applicable to the BDA Act. Making applicable the time frame of Section 11A of LA Act would debilitate very object of the BDA Act. It is apparent that the decision of the Single Judge as well as the Division Bench is directly juxtaposed to the decision of Five Judge Bench of this Court in Offshore Holdings (supra) in which precisely the question involved in the instant cases had been dealt with. By indirect method by making applicable the time period of two years of 11A of LA Act mandate of BDA Act has been violated. However, it is shocking that various decisions have been taken into consideration particularly by the Single Judge, however, whereas the decision that has set the controversy at rest, has not even been noticed even by the Single Judge or by the Division Bench. If this is the fate of the law of the land laid down by this Court that too the decision by the Constitution Bench, so much can be said but to exercise restraint is the best use of the power. Least said is better, the way in which the justice has been dealt with and the planned development of Bangalore city has been left at the mercy of unscrupulous persons of Government and the BDA.”
8. The provisions of the Act are paramateria with the provisions of BDA Act. But the question would be how long the land owners could wait for issuance of final declaration under Section 19 of the Act. The notification dated 03.07.2009 issued under Section 17(1) of the Act (Annexure-B) indicates that as per Section 24 of the Land Acquisition Act, 1894 from the date of issuance of preliminary notification, the lands in question shall not be alienated nor dealt with in any way to transfer the property. The issuance of preliminary notification would restrict the use of the land by the land owners. The land owners would not be in a position to enjoy the property or to develop the same. In the case on hand, even after lapse of seven years as on the date of filing the writ petitions, no progress has taken place, as such the learned Single Judge rightly held that the scheme has been abandoned. The learned Single Judge takes note of Section 27 of the Act, wherein it states that after final declaration if the scheme is not implemented substantially within five years, the same would lapse. In this case, no final notification is issued. But delay in issuing final notification itself would be sufficient to hold that the lands are no more required for the purpose, for which it was notified under Section 17(1) of the Act.
9. With regard to the contention of the appellants that the appellants were not given opportunity before the learned Single Judge to defend properly, an opportunity was provided to the respondents/appellants to make submissions in respect of the merits also as to why final declaration is not issued even to this day and whether at this stage, the respondents could issue final declaration. The learned counsel invited our attention to the dates and events wherein action of the respondents are explained in the writ appeals. We have gone through the said dates and events mentioned at paragraph 16 of the appeal memorandum which reads as follows:
“16. If the Learned Single Judge were to grant sufficient opportunity to file counter to the writ petition, the following sequences of events and the action taken by the Authority would have been brought to his notice by the appellant Authority:
Date Particulars 30.01.2009 Administrative Approval accorded by the State Government under section 15(b) of the KUDA Act 03.07.2009 Preliminary notification issued under section 17(1) of the KUDA Act and gazetted on 30.07.2009.
10.08.2009 Publication in the notice board of the Deputy Commissioner, Assistant Commissioner, Thasildar and Village Panchayat.
13.08.2009 Paper publication in Andolana Kannada Daily 15.08.2009 Paper publication in Mysore Mithra Kannada Daily 23.09.2009 Starting of issue of preliminary notification individually to the land owners.
25.01.2009 Service of notice on all the land owners completed.
04.10.2012 Joint measurement Survey Report and sketch furnished by the Tahsildar, Mysore Taluk.
05.10.2012 Order passed in W.P.No.19401/2012 04.02.2013 Order passed in W.P.No.43974/2012 08.02.2013 Scheme for formation of layout under 40:60 ratio submitted to State Government seeking approval under section 18(3) of the KUDA Act.
21.03.2013 Clarification sought for by the Government 28.04.2014 In the meeting held on 28.4.2014 it has been decided to have a meeting with the land owners with regard to grant of 40% of the developed area in lieu of compensation as per 2009 Rules 09.05.2014 A meeting notice was issued on 9.5.2014 calling upon the land owners to attend the meeting to discuss about the allotment of 40% of the development area. However, the said meeting could not be convened for various reasons.
08.12.2015 Reply furnished by MUDA through submission of modified scheme in respect of land measuring 89 acres 16 guntas.
10. The above sequence of events would indicate the action up to December 2015, but it would not indicate the issuance of final declaration as on that date and the final declaration is not issued as on the date of hearing these appeals. As on the date of hearing the appeals, nearly ten years have elapsed after issuance of preliminary notifications. We feel that even though the Act would not indicate time constraint for issuance of final declaration, the authorities ought to have taken steps for issuance of final declaration within a reasonable time. But, in the case on hand nearly ten years have elapsed and no final declaration is issued. We feel that there is inordinate delay in completing the acquisition proceedings and it would definitely infringes the rights of the land owners to enjoy their lands and to develop the same. More over, the learned Single Judge has protected the interest of the appellants by reserving liberty to them to file application for recalling the impugned order by filing a review petition, if the writ petitions challenging the same notification are decided in their favour on a later date.
11. We are of the view that the respondents have not made out any ground to interfere with the order passed by the learned Single Judge. The writ appeals are dismissed.
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JUDGE JUDGE mpk/-* CT:bms