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2020 DIGILAW 697 (KAR)

Narayan v. State Of Karnataka And Others

2020-03-11

JYOTI MULIMANI, S.SUJATHA

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JUDGMENT 1. These intra court appeals are directed against the order of the learned Single Judge dated 21.11.2017 whereby the writ petitions filed by the appellants are allowed in part. 2. Marshalling of facts is necessary for the better understanding of the matter as the case has a checkered history. 3. Petitioners claim that they were the owners of land bearing R.S.No.710/1 measuring 1 acre and R.S.No. 710/10 measuring 1 acre 23 guntas situated within Anagol village limits of Belagavi taluk. The then City Improvement Board of Belagavi issued notification dated 03.03.1977 under Section 15 (b) of the Karnataka Improvement Boards Act, 1976 (for short Boards Act, 1976) for acquisition of the aforesaid two lands along with other lands for the formation of the residential layout under Scheme No.6. Notification dated 09.04.1980 is said to have been issued under Section 18 (1) of the Boards Act, 1976. The fulcrum of dispute thus relates to the land measuring 1392.62 sq. meters approximately 13 guntas 12 annas 4 paise, in R.S.No.710/1. 4. The Special Deputy Commissioner, Belagavi (competent authority) had prepared a draft statement dated 28.01.1989 under Section 8(4) of the ULC Act holding that the declarants have land in excess of ceiling limit to an extent of 1392.62 sq. meters in R.S.No.710/1 in Anagol village limits of Belagavi taluk. The competent authority prepared a final statement under Section 9 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short the ULC Act) in respect of the land in question. Further notification was issued under 10 (1), 10 (2) and 10 (3) of the ULC Act. The competent authority has issued a notice dated 18.03.1994 to the declarants to hand over possession of excess vacant land measuring 1392.62 sq. meters in R.S.No.710/1 to the State Government. 5. Thus, two parallel proceedings were initiated in respect of the same land, i.e., R.S. No..710/1, one for acquisition of the land by the City Improvement Board, Belgavi and the other one under the ULC Act. The Land Acquisition Officer has awarded compensation in respect of 26 guntas 3 annas 2 paise of land excluding the land to an extent of 1392.62 sq. meters declared as excess area. 6. The appellants filed W.P. Nos. 108631/2014 and 108712/2014 on 08.09.2014 challenging the decision of the competent authority dated 28.01.1989 in respect of 1392.62 sq. The Land Acquisition Officer has awarded compensation in respect of 26 guntas 3 annas 2 paise of land excluding the land to an extent of 1392.62 sq. meters declared as excess area. 6. The appellants filed W.P. Nos. 108631/2014 and 108712/2014 on 08.09.2014 challenging the decision of the competent authority dated 28.01.1989 in respect of 1392.62 sq. meters of land comprised in Sy.No.710/1 interalia seeking a direction to respondent No.3 - the Tahsildar to restore the names of the appellants in the revenue records in respect 1392.62 sq. meters of land in R.S.No.710/1. Learned Single Judge vide order dated 18.09.2014 allowed the said writ petitions and thereby directed the Tahsildar, Belagavi, to restore the names of the appellants in the revenue records. Respondent Nos. 1 to 3 filed W.A.Nos.100574- 100575/2015 challenging the said order of the learned Single Judge. The respondent No.4 also filed W.A.Nos.100688/2015 and 100041/2016 challenging the order of the learned single judge dated 18.09.2014. The division bench was pleased to allow the appeals in part modifying the relief as under: 'i) The BUDA is directed to restore the possession of the lands in question to their owners within one month from the date of the issuance of the certified copy of todays order. Thereafter, the Tahsildar shall restore their names in the record of rights and delete the name of BUDA in respect of the lands in question. OR ii) In the alternative, if the BUDA wants to retain the land in question, the Land Acquisition Officer or any concerned authorized functionary of the Government shall pass the award in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and the award amounts shall be disbursed to the writ petitioners. This exercise shall be done as expeditiously as possible and in any case within an outer limit of two months from the date of the issuance of the certified copy of todays order.' 7. This order was assailed by the respondent No.4-BUDA before the Honble Apex Court in Civil Appeal Nos.2800-2801/2017. The Honble Apex Court vide order dated 27.03.2017 allowed the appeals observing that the BUDA is a necessary party to the proceedings but it was not so done. This order was assailed by the respondent No.4-BUDA before the Honble Apex Court in Civil Appeal Nos.2800-2801/2017. The Honble Apex Court vide order dated 27.03.2017 allowed the appeals observing that the BUDA is a necessary party to the proceedings but it was not so done. Accordingly, directed to implead the BUDA as respondent No.4 in the writ petitions setting aside the order passed by the Division Bench in the appeals as well as learned Single Judge in the writ petition. The matter has been remitted to the learned Single Judge to decide the matter afresh after obtaining the reply from the BUDA. 8. Pursuant to which, BUDA was impleaded in the writ petition as respondent No.4. Statement of objections/reply has been filed by BUDA along with Annexures R 1 to R 23 before the writ court. Learned Single Judge after considering the same and hearing the parties has passed the order impugned. 9. It is significant to note that subsequent to the acquisition of the land by the BUDA, award was passed by the Special Land Acquisition Officer determining the compensation for acquiring lands to an extent 26 guntas 3 annas 2 paise in Sy.No.710/1 as well as 1 acre 33 guntas in Sy. No.710/10. The appellants had sought for reference under Section 18 of the Land Acquisition Act, 1894 (for short the LA Act). Being dissatisfied with the compensation awarded in reference petitions, M.F.A.Nos.3436/1998 and 3847/1998 were filed before this Court. The Division Bench of this Court vide order dated 26.07.1999 has disposed of the said appeals. It is apt to quote the relevant paragraph of the same which reads thus: 'But, one acceptable objection has been raised on behalf of the acquisition officer that in the impugned judgment and award, the area in R.S.No.710/1 has been taken as 1 acre whereas under the acquisition proceedings, the area acquired is only 26 guntas 3 annas 2 paise. Admittedly, out of the extent of one acre in R.S.No.710/1, 13 guntas 12 annas 14 paise had vested in the Government as being excess land under the provisions of the Urban Land (Ceiling and Regulation) Act and, therefore, no compensation was awardable in respect of the excess land to the owner of the land under the provisions of the Land Acquisition Act.' 10. Accordingly, M.F.A.No.3436/1998 filed by the Special Land Acquisition Officer has been allowed in part by restricting the compensation payable in respect of R.S.No.710/1 for an extent of 26 guntas 3 annas 2 paise only with statutory amount and interest. 11. The learned counsel for the appellants inviting the attention of this Court to Section 3(2) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short the Repeal Act, 1999) submitted that appellants are saved in terms of the said provision since no possession of the land was taken over by the State Government or any person duly authorized by the State Government or by the competent authority and no compensation is paid to the extent of 1392.62 sq.mt.- the extent of land involved herein. It was argued that in terms of Section 3(2) of the Repeal Act, 1999, the land in question shall be restored to the appellants. Further, placing reliance on the Division Bench judgment dated 26.07.1999 in MFA No.3436/1998 and MFA No.3847/1998 it was contended that the Division Bench has held that the excess land 13 guntas 12 annas 14 paise (1392.62 sq.mt) had vested in the Government as being excess land under the provisions of the Urban Land (Ceiling & Regulation) Act and therefore, no compensation was awardable in respect of the excess land to the owner of the land under the provisions of the Land Acquisition Act. The said finding has reached finality. The learned single Judge erred in directing respondent No.4 to pay compensation relating to the land in question on par with the compensation paid in the award passed by the II Additional Senior Civil Judge (Sr.Dn.) on 01.07.1998 in LAC No.122/1994 i.e., at the rate of Rs.3,500/- per gunta along with statutory benefits. The order of the learned single Judge declaring that the proceedings in ULC-DSR- 653+655 before the competent authority and the Deputy Commissioner, Belagavi are lapsed in respect of land measuring 1392.62 sq.ft., is contrary to Section 3(2) of the Repeal Act, 1999. It was submitted that the lands which were voluntarily handed over to respondent No.4 as per Annexure-R14 was relating to 26 guntas 3 annas 2 paise and not the land in question. It was submitted that the lands which were voluntarily handed over to respondent No.4 as per Annexure-R14 was relating to 26 guntas 3 annas 2 paise and not the land in question. The documents placed on record by respondent No.4 at Annexures-R2 to R14 would establish the factum of taking over possession of the land in question is not conclusive and not in accordance with law as no notification under Section 16(2) of the L.A.Act has been issued. Unless such notification is issued and the land in dispute is still in the possession of the appellants, the contention of respondent No.4 that the entire 1 acre of land in Sy.No.710/1 was taken is baseless. The learned single Judge proceeded to hold that the appellants have approached this Court only after the enactment of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short Act 2013) coming into force to claim higher compensation, albeit the Repeal Act was enacted in the year 1999. The learned counsel placed reliance on the judgment of the Honble Apex Court in the case of Press Council of India Union of India and Another (2012) 12 SCC 329 to contend that the prayers sought in the writ petitions were entirely different from the order passed by the learned single Judge i.e., the order impugned is not in consonance with the prayers so made. 12. The learned counsel for respondent No.4 argued that the appellants have suppressed the material facts. Drawing the attention of this Court to Annexures-R1 to R14, it was submitted that on 31.03.1984 itself the land measuring 1 acre in Sy.No.710/1 was handed over by the appellants as such, the appellants are not entitled to any protection under Section 3(2) of the Repeal Act, 1999. It was argued that the appellants suppressing the material facts of taking over the possession of lands including the disputed land by respondent No.4, has filed frivolous writ petitions in the year 2014 and on the ground of delay and laches, the writ appeals are liable to be dismissed. It was contended that respondent No.4 has utilized the land in question for developing the layout and the portion of the land has been leased out to the Deputy Conservator of Forests and the Forest Department is in actual possession, use and enjoyment of the said land in question. It was contended that respondent No.4 has utilized the land in question for developing the layout and the portion of the land has been leased out to the Deputy Conservator of Forests and the Forest Department is in actual possession, use and enjoyment of the said land in question. In total extent of 1 acre, sites are formed to the public and most of the allottees have already constructed residential buildings and residing therein. The name of then Improvement Board, Belagavi came to be entered in the village records in respect of the land in question on 31.03.1984 itself and the same has remained unchallenged. In view of the vesting of the land with respondent No.4 on 31.03.1984 issuance of notification under Section 16(2) of the L.A.Act, 1894 is not necessary. Thus, it was argued that the provisions of the Repeal Act, 1999 are not applicable to the facts and circumstances of the case. 13. The learned AAG appearing for respondent Nos.1 to 3 and 5 supported the arguments advanced by the learned counsel for respondent No.4. It was submitted that forest department is in possession of the land in question. Hence, the relief sought by the appellants relying upon Section 3(2) of the Repeal Act, 1999 is wholly unsustainable. 14. We have carefully considered the submission of the learned counsel for the parties and perused the material on record. 15. The moot question that arises for consideration of this Court is; 'Whether the appellants are entitled to restoration of the land in question to an extent of 1392.62 sq.mts. in terms of Section 3(2) of the Repeal Act, 1999? 16. Section 3(2) of the Repeal Act, 1999 reads thus: '3. Saving. - (1) The repeal of the principal Act shall not affect- (a) XXXX (b) XXXX (c) XXXX (2) Where - (a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorized 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.' 17. In terms of the aforesaid provision, the crucial point is, whether the possession of the land in question has been taken over by respondent No.4. Annexure-R2 mutation entry depicts that the entire extent of 1 acre in Sy.No.710/1 was taken possession by Urban City Improvement Board, Belagavi (BUDA). Annexure- R3 dated 04.04.1994 indicates the date fixed on 26.04.1994 to take possession of the land in question by the Government on the premise that BUDA has taken possession on 31.03.1984. Annexure-R4 indicates the name of City Improvement Board, Belagavi in the RTC records relating to 38 guntas in Sy.No.710/1. Annexure- R5 indicates that, on 31.03.1984 the excess land of 1392.62 sq.mt. was taken into possession by respondent No.4. Annexure-R6 discloses that, excluding the excess land, the compensation was determined only to the extent of 26 guntas 2 annas and 2 paise. Annexure-R11 is the notification dated 07.04.1980 issued by the Government of Karnataka exercising power under Section 18 of the Boards Act, 1976. 18. All these documents prima facie indicate that no possession of the land in question was taken by respondent No.4 in accordance with law by issuing the notification under Section 16(2) of the L.A.Act, 1894. Moreover, the acquisition notification relates to 1 acre, the award dated 06.09.1989 is passed only in respect of 26 guntas 3 annas 2 paise of the said land acquired. It is an admitted fact that no award has been passed in respect of the land in question i.e. 13 guntas 12 annas 4 paise (1392.62 sq.meters) neither by BUDA nor by the competent authority under the ULC Act. No documents are placed on record to show that notice was issued to the appellants for taking over the possession of land in question or issuance of Section 16(2) notification under the L.A.Act, 1894. In the circumstances, the possession of land in question said to have been taken by BUDA prima facie appears to be not in a manner known to law. Further there is serious dispute inasmuch as the layout said to have formed and developed utilizing the lands in question. It is a categorical submission of the learned counsel for the appellants that the possession of the vacant land is still in the possession of the appellants. 19. Further there is serious dispute inasmuch as the layout said to have formed and developed utilizing the lands in question. It is a categorical submission of the learned counsel for the appellants that the possession of the vacant land is still in the possession of the appellants. 19. Though the learned counsel appearing for BUDA and the State Government argued that no relief could be granted to the appellants considering the delay and laches, we are not inclined to accept the same, as no award has been passed till date relating to the lands in question. 20. It is well settled law that the Court exercising the power under Articles 226 and 227 of the Constitution of India can mould the relief in the interest of justice and equity, keeping in mind the subsequent events/changed circumstances of the case. As contended by the learned counsel for the BUDA, if the third party rights are created and the lands are developed, it would not be appropriate to direct the respondents to restore the lands to the appellants de-hors the rights accrued to the third parties and more particularly, without providing an opportunity of hearing to them. If the developmental activities taken by the BUDA creating the private/third party interest is established, it would be justifiable for respondent No.2 to examine the aspect of granting compensation for the lands in question by passing an appropriate award. In such circumstances, in view of the law declared by the Constitutional Bench of the Honble Supreme Court in S.L.P. (C) Nos.9036-9038 of 2016 (D.D. 06.03.2020) ( Indore Development Authority v. Mahoharlal and others), Section 24(1) (a) of the Act, 2013 would attract since no award has been made as on 01.01.2014. However, these aspects have to be addressed by the Deputy Commissioner considering the materials placed/to be placed by the parties regarding the actual possession taken vis--vis the development of the land in question as aforesaid. Hence, the matters are remitted to the 2nd respondent to examine whether the appellants are entitled to the benefit of saving clause under Section 3(2) of the Repeal Act, 1999 or for the compensation in accordance with law. 21. Since the parties are represented by their respective learned counsels, the parties are directed to appear before the 2nd respondent- Deputy Commissioner on 07.04.2020 without waiting for any notice. 21. Since the parties are represented by their respective learned counsels, the parties are directed to appear before the 2nd respondent- Deputy Commissioner on 07.04.2020 without waiting for any notice. The 2nd respondent-Deputy Commissioner shall take an appropriate decision in accordance with law in the light of the observations made hereinabove, in an expedite manner, in any event not later than six weeks from the date of the appearance of the parties before him. 22. All rights and contentions of the parties are left open to substantiate their claim. Accordingly, the order of the learned single Judge dated 21.11.2017 is set aside. In the result, writ appeals are allowed as indicated above.