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2007 DIGILAW 456 (KAR)

Mallamma v. State of Karnataka Revenue Department

2007-07-25

NARAYANA SWAMY, SREEDHAR RAO

body2007
JUDGMENT Sreedhar Rao, J. The land belonging to the appellant bearing Sy.No. 12/1 measuring 1 acre 15 guntas situate at Kareguddadahalli, Chikkabanavar Post, Yeshwanthpur Hobli, Bangalore North Taluk, was declared as excess land by the Government under the Urban Land Ceiling Act (U.L.C.Act) under Section 10(3) of the U.L.C.Act by Gazette Notification. The notice was issued to the appellant under Section 10(5) to surrender the above excess land. 2. The appellant challenged the order of declaration that the above land is a excess land in Appeal No. 12/1990-91 before the Karnataka Appellate Tribunal, Bangalore. The appeal was dismissed confirming the orders passed under Section 10(3) and 10(5) of the U.L.C.Act. 3. The amendment Act No. 15/1999 repelled the U.L.C.Act of 1976. Section 3 of the amendment Act reads as follows: “3. Savings.- (1) The repeal of the principle Act shall not affect- (a) the vesting of any vacant land under sub-Section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Goverment in this behalf or by the competent authority; (b) the validity of any other granting exemption under sub-Section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any Court to the contrary; (c) any payment made to the State Government as a condition for granting exemption under sub-Section (1) of Section 20. (2) Where- (a) any land is deemed to have vested in the State Government under sub-Section (3) of Section 10 qf 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 (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.” 4. The appellant in view of Section 3(2) of the Amendment Act filed the writ petition seeking writ of prohibition directing the respondents not to disposses the appellant trom the above land. The learned Single Judge held that the possession of the land is taken by the authorities under U.L.C. Act on 11-4-1989 therefore found that the appellant is not entitled to any relief in the writ petition and dismissed the writ petition. Hence this appeal. 5. The learned Single Judge held that the possession of the land is taken by the authorities under U.L.C. Act on 11-4-1989 therefore found that the appellant is not entitled to any relief in the writ petition and dismissed the writ petition. Hence this appeal. 5. The case file relating to the proceedings in respect of the above land under the U.L.C. Act is secured and perused. The case file discloses that the Additional Special Deputy Commissioner respondent No.2 on the basis of the report of the Tahsildar vide ULC No. 50/1989 dated 11-4-1989 reports to the Additional Special Deputy Commissioner that the possession of the above land is taken. The records also shows that mutations are effected in the revenue records to show the possession of the above land with the Government with effect from 9-2-1989. The report of the Village Accoutant dated 21-2-2005 states that the resumption of possession is made on 14-9-1988. 6. The fact is that in the above land there is a residential house of 40' x 30' and rest of land is a vacant land. The report shows that excluding the residential house the rest of the vacant area is resumed. 7. It is not in dispute that the compensation is yet to determined u/s. 11 of the U.L.C. Act. The Section 3(2) declares that if possession is not taken as on the date of amending Act the land to be redelivered to the owner upon refund of compensation received if any. In the instant case, it is admitted that the compensation is yetil be detennined and not paid. 8. Sri A. G. Shivanna, learned Govemment Advocate strenuous argued that mutations are effected in the land revenue records, report of the Tahsildar would clinchingly establish that the possession has been taken prior to Amendment Act No. 15/199, therefore, the appellant is not entitled to any relief by virtue of Section 3(1)(a) of U.L. C. Act. It is further argued that the appellant has belatedly filed in the writ petition almost five years after the Amendment Act came into effect and that there is delay and laches on the part of the appellant. 9. The averments in the writ petition categorically disclose that the appellant is in continued possession and enjoyment. The appellant physical possession was never disturbed at any point of time much less pursuant to the notice u/s. 10(5) dated 5-8-1988. 9. The averments in the writ petition categorically disclose that the appellant is in continued possession and enjoyment. The appellant physical possession was never disturbed at any point of time much less pursuant to the notice u/s. 10(5) dated 5-8-1988. The compensation amount has also not been determined and paid effective possessory rights of the appellant is not invaded until some time just before filing of the writ petition. In view of the above circumstances, it is submitted that there is no delay or laches on the part of the appellant. 10. After carefully going through the pleadings and the records we are of the view that the respondents have not placed convincingly any material on record to show resumption of possession on 14-9-1988. The mutation and other revenue records will be of no avail to the respondents to prove the taking of possession or resumption of possession. The reports of the Tahsildar and the Deputy Commissioner regarding resumption of possession and mutations in the land revenue records is only in the nature of assertion of the fact of taking possession by the concerned authorities. 11. The Supreme Court in BALAMAKOND KHATRI EDUCATIONAL AND INDUSTRIAL TRUST, AMRITSAR Vs. STATE OF PUNJAB AND OTHERS, (1996) 4 SCC 212 , has held that the normal mode of evidence in taking of possession of land is by drafting a Panchanama in presence of Panchas. In the instant case the records produced do not show that any mahazar is prepared witnessed by independent panch witnesses to prove the resumption of possession on 11-4-1989. Only on the basis of the self-serving reports of the Revenue Officers, It is difficult to believe that the possession is taken on 11-4-1989. In that view, it is to be held that the appellant was never displaced from physical possession and that provisions of Section 3(2) (a) will apply. 12. The compensation is yet to be detennined therefore the question of refund of compensation by the appellant does not arise. The contention that there is delay ahd laches in filing the writ petition is untenable. The explanation offered by the appellant is convincing. When the right of physical possession of the appellant was invaded the appellant has filed the writ petition, therefore, we do not find any delay or laches on the part of the appellant. 13. The contention that there is delay ahd laches in filing the writ petition is untenable. The explanation offered by the appellant is convincing. When the right of physical possession of the appellant was invaded the appellant has filed the writ petition, therefore, we do not find any delay or laches on the part of the appellant. 13. For the reasons and discussions made above, the Writ Appeal is allowed, as prayed for.