Subramanya Construction and Development Company Limited v. State of Karnataka
2015-01-27
B.V.NAGARATHNA
body2015
DigiLaw.ai
Order B.V. Nagarathna, J. 1. Petitioner is stated to be a developer and construction company. It has challenged endorsement dated 16-5-2014 bearing No. MUDA/Town Planning/Conversion/71/13-14 (Annexure-K), issued by the 2nd respondent-Mysore Urban Development Authority (hereinafter referred to as "the MUDA" for the sake of brevity). Petitioner has also sought a declaration that preliminary notification bearing No. LAQ(1)/CR.81/97-98, dated 6-10-1997 (Annexure-M), issued by the 2nd respondent-MUDA is non est or in the alternative to declare that the acquisition in respect of the scheduled lands has lapsed. A direction is also sought to 2nd respondent-MUDA to furnish its concurrence or opinion for conversion of scheduled lands from agricultural to non-agricultural, residential use as set out in Annexures-E, E1 to E5, dated 23-6-2012, 17-7-2012 and 25-7-2012. It is the case of petitioner that pursuant to the policy of Government of Karnataka permitting private participation in housing sector, it entered into a memorandum of agreement dated 23-1-2004 with the 5th respondent-Karnataka Housing Board (hereinafter referred to as "the KHB" for the sake of brevity). Petitioner was to develop a residential project on lands, which had been acquired in Mysuru City. According to petitioner, it has raised a loan of Rs. 30.00 crores from HUDCO for the purpose of development of the project. The entire project of the petitioner is in three stages and it has made necessary payments towards the layout plans in respect of the initial 15 acres 34 guntas. Petitioner was also required to seek change of land use, which had been recommended by 2nd respondent-MUDA. Though according to petitioner, in view of the joint development agreement with the KHB, the lands proposed for project were deemed to have been converted. Nevertheless, on the insistence of MUDA, the scheduled lands had to be converted for non-agricultural purpose, for which petitioner had paid conversion charges. When the applications of petitioner for conversion of scheduled land was under consideration by 4th respondent, opinion of MUDA was sought in that regard. It is in that context, Annexure-K endorsement has been issued by MUDA, which is assailed in these writ petitions. 2. The background to the endorsement at Annexure-K1 is the fact that the scheduled lands were subject-matter of preliminary notification issued by MUDA on 6-10-1997. It is stated that since then, MUDA has not issued declaration for final notification.
It is in that context, Annexure-K endorsement has been issued by MUDA, which is assailed in these writ petitions. 2. The background to the endorsement at Annexure-K1 is the fact that the scheduled lands were subject-matter of preliminary notification issued by MUDA on 6-10-1997. It is stated that since then, MUDA has not issued declaration for final notification. Subsequent to the issuance of preliminary notification in the year 2002 and thereafter on various dates, petitioner purchased the scheduled lands for the purpose of implementation of the project envisaged by KHB. Under those circumstances, promoters of the petitioner-company have purchased the lands. In this context, petitioner has sought a declaration that preliminary notification dated 6-10-1997 has become non est and a direction is sought to MUDA to furnish its concurrence for conversion of the scheduled lands. 3. I have heard learned Counsel for petitioner and the learned Counsel for respondents as well as perused the material on record. 4. During the course of submission, learned Counsel for petitioner pointed out that the endorsement dated 16-5-2014 enclosed as Annexure-K is incorrect and that subsequent to the issuance of the preliminary notification dated 6-10-1997, no declaration of final notification has been issued by MUDA. In such circumstances, it has to be inferred that MUDA has given up or abandoned its proposal to acquire the scheduled lands and therefore, in the absence of the declaration of final notification, MUDA can make no reference to the acquisition proceedings for the purpose of declining the grant of conversion of the scheduled lands. In this context, he placed reliance on a decision of this Court dated 26-11-2014 passed in W.P. Nos. 10917 to 10928 of 2014 and connected matters and contended that a similar order may be made in the instant case also by holding that the preliminary notification dated 6-10-1997 has not been taken to its logical conclusion and the same may be quashed as against petitioner. 5. Per contra, learned Counsel for 2nd respondent in the first instance contended that petitioner has no locus standi to seek the aforesaid prayers as petitioner is only a company, which is stated to be involved in the housing project with the 5th respondent. Petitioner is not the owner of the scheduled lands. It is only the owner of lands who can assail the acquisition in question.
Petitioner is not the owner of the scheduled lands. It is only the owner of lands who can assail the acquisition in question. At best, the petitioner or the person in whose name the lands have been purchased, can seek compensation in respect of the land sought to acquired. Placing reliance on two decisions of the Hon'ble Supreme Court in the case of V. Chandrasekaran and Another v. Administrative Officer and Others, (2012) 12 SCC 133 and The Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Co-operative Housing Society, Jaipur and Others, AIR 2013 SC 1226 : 2012 AIR SCW 1174 : (2013) 5 SCC 427 he contended that the petitioner cannot assail the acquisition proceedings. It was also contended that under Section 17 of the Karnataka Urban Development Authorities Act, 1987 ("the KUDA" for short), there is a bar for KHB to undertake any housing scheme in any area within the urban area. In the circumstances, he contended that the writ petitions may be dismissed. 6. Learned Counsel for 5th and 6th respondent-KHB admitted that there is an agreement between KHB and the petitioner with regard to the proposed residential project and the services of the petitioner has been engaged to establish a residential layout under the Public Private Participation Scheme. 7. Learned Additional Government Advocate appearing for the State and for 2nd respondent stated that, having regard to the submissions made by the learned Counsel on both sides and the case law that has been submitted, appropriate orders may be made in the writ petitions. 8. In response, learned Counsel for petitioner has drawn my attention to another order of this Court in the case of C.G. Gangadhar v. Mysore Urban Development Authority, Mysore and Another 2013 (4) Kar. L.J. 559, wherein the delay in issuance of final notification by MUDA has been taken note of and it has been observed that if the final notification is not issued in time, it would cause great hardship, loss and inconvenience to the owner of the land and in those circumstances, writ petition was allowed and preliminary notification was quashed. 9. Having heard learned Counsel for the parties, it is noted that the preliminary notification in respect of the scheduled lands was issued by MUDA on 6-10-1997.
9. Having heard learned Counsel for the parties, it is noted that the preliminary notification in respect of the scheduled lands was issued by MUDA on 6-10-1997. It is an admitted fact that no declaration of final notification has been issued yet under Section 17 of the KUDA Act. The lands in question were purchased by the promoters of the petitioner-company pursuant to memorandum of agreement entered into by petitioner with KHB for the purpose of establishing a residential layout from the year 2002 onwards. 10. The first contention that has to be considered at the outset is with regard to locus standi of petitioner to seek reliefs in these writ petitions particularly with regard to a declaration that the preliminary notification dated 6-10-1997 is non est or has lapsed with regard to the scheduled properties, is concerned. No doubt, petitioner is not the original khatedar, whose name was shown in the preliminary notification dated 6-10-1997. The original khatedars of the lands in question, alienated the scheduled lands to the promoters of petitioner-company subsequent to 2002 onwards. In several decisions of this Court, particularly in two judgments of this Court, it has been held that although there is no specific time frame fixed under the provisions of the Act with regard to issuance of declaration and a final notification, it should be held that such a declaration must be made by an Authority such as MUDA, within a reasonable period, which is stated to be two years. In the instant case, nearly eighteen years has lapsed as of today and MUDA is yet to issue declaration or final notification of the Act. If reasonable time is considered to be two years, then it ought to have to be issued by the end of 1999. In the instant case, if the promoters of the petitioners had purchased lands within the reasonable period of two years, by which the final notification ought have been issued, then the contention of learned Counsel for MUDA would have been more forceful and correct inasmuch as the promoters of the petitioner-company could not have purchased the scheduled lands prior to that date and thereafter sought a declaration that the acquisition had lapsed, or for that matter, assailed the acquisition itself. That is not the fact in the instant case. 11.
That is not the fact in the instant case. 11. That apart, though the petitioner may not be the owner of the scheduled lands, it is nevertheless obstructed from carrying out its project of establishing a layout pursuant to its agreement with KHB simply because the 2nd respondent-MUDA has not been able to issue the final notification. The sheer delay of nearly two decades in issuance of declaration or final notification in respect of the scheduled lands is a sufficient ground to annul the preliminary notification. The right of petitioner as a developer in developing its project, which has been entrusted to it by 5th respondent-KHB has been interfered with, by sheer lack of decision and action on the part of MUDA insofar as scheduled lands are concerned. In fact, it can be stated that MUDA has violated the fundamental right of the petitioner envisaged under Article 19(1)(g) of the Constitution vis-a-vis the proposed project, on account of there being no certainty or conclusion in the acquisition proceedings. Article 19(1)(g) states that all citizens have the right to practice any profession or to carry on any occupation, trade or business. Clause (6) of Article 19 states that: "19. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law insofar as it imposes or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to.-- (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise". Article 19(1)(g) thus, protects rights against State action other than in the legitimate exercise of its power to regulate private interest. The scope of Article 19 has been expanded to many fields which are enumerated rights in the part of the fundamental rights or partake of the basic nature and character.
Article 19(1)(g) thus, protects rights against State action other than in the legitimate exercise of its power to regulate private interest. The scope of Article 19 has been expanded to many fields which are enumerated rights in the part of the fundamental rights or partake of the basic nature and character. The Hon'ble Supreme Court has observed that in order to treat a right as fundamental right, it is not necessary that it should be expressly stated in the Constitution as a fundamental right. Political, social and economical changes which occur in the Country may entail recognition of new rights. 12. Therefore, contention of learned Counsel for respondent-MUDA based on two decisions of the Hon'ble Supreme Court to the effect that it has no right to assail on the notifications, as it is a purchaser of the scheduled land subsequent to the preliminary notification, would be of no assistance when the same is considered in light of Article 19(1)(g) of the Constitution of India. In V. Chandrasekaran's case, the Hon'ble Supreme Court held that a person who purchases land subsequent to issuance of a notification under Section 4 of the Land Acquisition Act, 1894 with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him any title and at the most he can claim compensation on the basis of his vendor's title. The aforesaid dictum is not applicable to the present case for the reason that MUDA has not issued any final notification as yet and that the acquisition is assailed on that premise. In Rajasthan State Industrial Development and Investment Corporation's case, the Hon'ble Supreme Court held that the respondent-society therein and its members had to satisfy the Court as regards their locus standi with regard to maintenance of the writ petitions as they were subsequent purchasers after the issuance of the notification under Section 4 of the Land Acquisition Act, 1894. Once again, the aforesaid decision would not apply to the present case, as in the instant case, no final notification has been issued and that the petitioner purchased the lands in the year 2002, long after the issuance of the preliminary notification on 6-10-1997 and when no declaration and final notification had been issued when the petitioner purchased the lands.
Once again, the aforesaid decision would not apply to the present case, as in the instant case, no final notification has been issued and that the petitioner purchased the lands in the year 2002, long after the issuance of the preliminary notification on 6-10-1997 and when no declaration and final notification had been issued when the petitioner purchased the lands. On the other hand, the dictum of this Court in C.G. Gangadhar's case is squarely applicable. 13. Therefore, petitioner has locus standi to seek prayers referred to above, based on its right to carry on its occupation, trade or business. It should also be construed that the delay in issuance of final notification by MUDA, is an unreasonable restriction not protected Article 19(6) of the Constitution. In that view of the matter, petitioner has locus standi to assail preliminary notification, as its fundamental right under Article 19(1)(g) has been violated and the decisions of the Hon'ble Supreme Court cannot be applied to the facts of the present case for the simple reason that, in those cases, the final notifications had been issued and the persons who had assailed the acquisition proceedings were all purchasers either prior to the issuance of final notification subsequent to the issuance of preliminary notifications. In the circumstances, the point regarding locus standi has to be held in favour of the petitioner and against MUDA. 14. Coming to the substance of the dispute, petitioner has sought a declaration that the preliminary notification dated 6-10-1997, in the absence of there being a declaration and final notification within a reasonable time has lapsed and become non est in the eye of law and has lost its efficacy. To answer that question, it would not require any further reasoning by this Court except to rely upon the decision of the Division Bench of this Court in W.A. No. 30044 of 2013 (LA-UDA) (Nitya Gopal Babshet v. State of Karnataka and Others) disposed by the Circuit Bench at Dharwad on 10-7-2013 and W.P. No. 9640 of 2014 disposed on 26-11-2014 and W.P. Nos. 10917 to 10923 of 2014 disposed on 26-11-2014. All these judgments are with regard to the Belgaum Urban Development Authority, Bengaluru Development Authority and 2nd respondent-MUDA, which are all Authorities constituted under the provisions of the Act. 15. Those judgments are squarely applicable to the facts of the present case.
10917 to 10923 of 2014 disposed on 26-11-2014. All these judgments are with regard to the Belgaum Urban Development Authority, Bengaluru Development Authority and 2nd respondent-MUDA, which are all Authorities constituted under the provisions of the Act. 15. Those judgments are squarely applicable to the facts of the present case. The Division Bench in W.A. No. 30044 of 2013 and connected matters has observed as under: "11. The question that arises for consideration is whether the said time-limit also equally applies to acquisition proceeding? The Apex Court has held that in the absence of a specific provisions in these enactment, the provision contained in the Land Acquisition Act cannot be the read into the provision and such time-limit cannot be prescribed, but at the same time it is held merely because no such time-limit is prescribed, the authorities cannot take their own time to complete the acquisition proceedings. If the law do not specify the time-limit within which the official acts have to be completed, it is settled law that it has to be done within a reasonable time. In that context, the Apex Court has held that even in the absence of a specific provisions a reasonable time for issuing final notification may be taken as two years. This Court following the aforesaid judgment in the case of H.N. Shivanna and Others v. State of Karnataka and Another, disposed of on 20th November, 2012 has held that even in the absence of a specific provisions, a reasonable period for issuing final notification has to be two years, though not with exact mathematical preposition. 12. In that view of the matter, in the instant case, the preliminary notification is issued on 19-4-2007. Now nearly six years have lapsed. The authorities want another 300 days time to complete the transaction, which is unreasonable. If there are any practical difficulties, it is open to them for issue one more preliminary notification and then issue a final notification within a reasonable time and acquire the land. Therefore, in the facts of this case, we are satisfied the delay of six years and further the request of 300 days in issuing final notification is unreasonable and therefore, the preliminary notification issued loses its value, it become non est and the owner of the land should be at liberty to deal with the property in the manner he likes.
Therefore, it is necessary to grant such declaration. However, it is made clear that still if acquiring authorities are interested in acquiring the land, this judgment would not come in the way of issuing a fresh preliminary notification and then issue a final notification within a reasonable time, in which event, the market value of the land to be acquired is to be paid on the date of fresh notification. It will give justice to the owner of the land". 16. In the circumstances, endorsement at Annexure-K, dated 16-5-2014 is quashed. It is declared that the preliminary notification dated 6-10-1997 is quashed insofar as the scheduled lands are concerned, as they have lost their efficacy and therefore, acquisition insofar as the scheduled lands are concerned has lapsed. 17. 2nd respondent-MUDA is directed to furnish its opinion with regard to conversion of scheduled lands from agricultural to non-agricultural, residential use in accordance with law and without reference to the preliminary notification dated 6-10-1997. The said exercise shall be made within a period of six weeks from the date of receipt of certified copy of this order. In the result, writ petitions are allowed to the aforesaid extent. Parties to bear their respective costs. Petition Allowed.