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2020 DIGILAW 1957 (KAR)

Narayan Daji Ulvekar Kira Ajja Harikantra Since Deceased v. State Of Karnataka

2020-09-30

P.S.DINESH KUMAR, S.VISHWAJITH SHETTY

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JUDGMENT P.S.Dinesh Kumar, J. - These writ appeals are presented by unsuccessful writ petitioners challenging the common judgment and order dated 11.04.2019 by the Hon ble Single Judge in Writ Petitions No.110545-110549/2017 and connected cases. 2. Heard Shri F.V.Patil, Shri Shriharsh Neelopant and Shri Gachchinamath, for appellants, Smt.Vidyavathi, learned Additional Advocate General and Shri V.S.Kalasurmath, learned High Court Government Pleader for State and Shri C.V.Angadi, learned advocate for Indian Oil Corporation. 3. For the sake of convenience, parties shall be referred to as per their ranking before the Hon ble Single Judge. 4. Brief facts of the case are, writ petitioners, claiming to be in occupation of buildings allegedly in their possession have filed instant writ petitions with prayers inter alia to declare that the land acquisition proceedings pursuant to preliminary notification dated 29.01.1962 have lapsed in view of Section 24 (2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short the 2013 Act ) and not to dispossess them from their respective houses. 5. The Hon ble Single Judge by the impugned common order has dismissed the writ petitions. Hence, these appeals. 6. Learned advocates for the writ petitioners urged following contentions: that petitioners are owners in possession of their respective houses; respondents have not taken possession of the properties in accordance with law; the symbolic possession allegedly taken by the respondents is not permissible under Section 16 of the Land Acquisition Act, 1894; petitioners are not trespassers as they are in settled possession of their respective properties; in Writ Appeal No.1649/2007 decided on 26.02.2008 (Shrikant Ram Salaskar Vs. State of Karnataka and others), this Court has observed that if the possession of the writ petitioners is disturbed, they can defend their possession based on the precedents declared by the Hon ble Apex Court and this Court. 7. Learned Additional Advocate General submitted that: lands in question have been acquired long back; symbolic possession has been taken in accordance with law and the subject land has been given to Karwar Port authority; 8. By placing reliance on INDORE DEVELOPMENT AUTHORITY VS. MANOHAR LAL AND OTHERS, (2020) AIR SC 1496 , learned Additional Advocate General submitted that the contentions urged on behalf of the writ petitioners are wholly untenable and writ appeals are liable to be dismissed. 9. We have carefully considered rival contentions and perused the records. 10. By placing reliance on INDORE DEVELOPMENT AUTHORITY VS. MANOHAR LAL AND OTHERS, (2020) AIR SC 1496 , learned Additional Advocate General submitted that the contentions urged on behalf of the writ petitioners are wholly untenable and writ appeals are liable to be dismissed. 9. We have carefully considered rival contentions and perused the records. 10. Undisputed facts of the case are, acquisition proceedings were initiated under the Land Acquisition Act, 1894, (for short the 1894 Act ) by issuing preliminary notification on 29.01.1962 and final notification on 04.03.1964. Awards have been passed on 31.03.1971 and compensation has been given to the khatedaars of the respective properties. Respondents have taken actual possession of 71 acres and 33 guntas. So far as remaining 42 acres is concerned, it is the case of the writ petitioners that possession has not been taken, whereas respondents claim that they have taken symbolic possession. 11. Hon Ble Single Judge has recorded the history of litigation. As many as 59 persons had filed Writ Petition No.41376/2003 and connected cases seeking quashment of entire acquisition and the batch of said cases has been dismissed on 27.06.2007. On appeal preferred by the writ petitioners in W.A.No.1649/2007 decided on 26.10.2007, a division bench of this Court while dismissing the writ appeals has observed that should the possession of appellants therein were to be disturbed, they can defend their possession based on the precedents declared by the Hon ble Supreme Court and this court. The writ petitioners in these proceedings have been making strenuous efforts to draw support from the said observation. 12. In the light of the facts recorded hereinabove and the contentions urged on behalf of writ petitioners and the State, the only question that falls for our consideration is: Whether the symbolic possession said to have been taken by the State Government is in accordance with law? 13. The issue with regard to mode of taking possession under the 1894 Act is dealt with in INDORE DEVELOPMENT AUTHORITY. 14. Reckoned from the date of the preliminary notification, 58 years have elapsed. Compensation has been paid to respective khatedaars in whose name the khata stood at the time of taking possession. 15. 13. The issue with regard to mode of taking possession under the 1894 Act is dealt with in INDORE DEVELOPMENT AUTHORITY. 14. Reckoned from the date of the preliminary notification, 58 years have elapsed. Compensation has been paid to respective khatedaars in whose name the khata stood at the time of taking possession. 15. Thus, it is amply clear that once possession is taken by drawing panchanama, the land vests with the State and claim of any nature as the one made in the cases on hand is clearly unlawful and does not enure for conferring benefits under Section 24 (2) of the 2013 Act. 16. Learned advocates for the petitioners have relied upon the decisions in: BALWANT NARAYAN BHAGDE VS. M.D.BHAGWAT AND OTHERS, (1976) 1 SCC 700 , BANDA DEVELOPMENT AUTHORITY VS. MOTilAL AGARWAL AND OTHERS, (2011) 5 SCC 394 P.K.KALBURQI VS. STATE OF KARNATAKA, (2005) 12 SCC 489 17. All three cases sought to be relied upon on behalf of the writ petitioners have been considered in INDORE DEVELOPMENT AUTHORITY at paragraphs no.259, 261 and 264 and after considering various authorities including authorities those relied upon by the writ petitioners, the Supreme Court ofindia in paragraphs No.276 and 277 has held thus: 276. We have seen the blatant misuse of the provisions of section 24(2). Acquisitions that were completed several decades before even to say 50-60 years ago, or even as far back as 90 years ago were questioned; cases filed were dismissed. References were sought claiming higher compensation and higher compensation had been ordered. Now, there is a fresh bout of litigation started by erstwhile owners even after having received the compensation in many cases by submitting that possession has not been taken and taking of possession by drawing a Panchnama was illegal and they are in physical possession. As such, there is lapse of proceedings. 277. The court is alive to the fact that are a large number of cases where, after acquisition land has been handed over to various corporations, local authorities, acquiring bodies, etc. After depositing compensation (for the acquisition) those bodies and authorities have been handed possession of lands. They, in turn, after development of such acquired lands have handed over properties; third party interests have intervened and now declaration is sought under the cover of section 24(2) to invalidate all such actions. After depositing compensation (for the acquisition) those bodies and authorities have been handed possession of lands. They, in turn, after development of such acquired lands have handed over properties; third party interests have intervened and now declaration is sought under the cover of section 24(2) to invalidate all such actions. As held by us, section 24 does not intend to cover such cases at all and such gross misuse of the provisions of law must stop. Title once vested, cannot be obliterated, without an express legal provision; in any case, even if the landowners argument that after possession too, in case of non-payment of compensation, the acquisition would lapse, were for arguments sake, be accepted, these third party owners would be deprived of their lands, lawfully acquired by them, without compensation of any sort. Thus, we have no hesitation to overrule the decisions in Velaxan Kumar, (2015) AIR SC 1462 (supra) and Narmada Bachao Andolan, (2011) AIR SC 1989 (supra), with regard to mode of taking possession. We hold that drawing of Panchnama of taking possession is the mode of taking possession in land acquisition cases, thereupon land vests in the State and any re-entry or retaining the possession thereafter is unlawful and does not inure for conferring benefits under section 24(2) of the Act of 2013. (Emphasis supplied) 18. The only other remaining ground is the observations contained in W.A.No.1649/2007 which the learned advocates for the writ petitioners seek to strongly rely upon. It is relevant to note that the said observations have been made while dealing with the judgment of the Hon ble Single Judge that was under challenge in that writ appeal. Therefore, the said observations cannot be read in isolation. The relevant paragraph reads as follows: 3. Apparently out of 113 acres, the authorities made use of more than 50% of the land for the purpose for which they have acquired. It is also not clear in the said 40 acres how many acres have been used for the residential purpose. These are matters where several facts have to be taken into consideration. The learned Single Judge opined mainly based on the fact that these appellants having kept quiet for the last 40 years, are questioning the acquisition and wi thout asking for implementation of the rehabili tation scheme, could not have approached this Court at this stage. These are matters where several facts have to be taken into consideration. The learned Single Judge opined mainly based on the fact that these appellants having kept quiet for the last 40 years, are questioning the acquisition and wi thout asking for implementation of the rehabili tation scheme, could not have approached this Court at this stage. Even otherwise in the absence of any one trying to be dislodged f rom the place, we do not find any good ground to interfere wi th the opinion of the learned Single Judge for the simple reason that if the possession of the appellants is disturbed, they can always defend their possession based on the precedents declared by Apex court and this Court. 19. Thus, the resultant position which emerged in that case is dismissal of the writ appeal. It is very relevant that 59 writ petitioners had challenged the preliminary notification dated 29.01.1962 which is under challenge in these proceedings also. In any event, for writ petitioners contention that they can defend their possession based on the precedents declared by the Hon ble Apex Court, the complete answer is the decision in INDORE DEVELOPMENT AUTHORITY by the Constitutional Bench of Hon ble Apex Court. 20. In view of the law laid down by the Hon ble Surpeme Court of India, these appeals must fail and accordingly are dismissed.